State of New South Wales v Brookes

Crimes (Serious Sex Offenders) Act 2006 LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000 Crimes Act 1900

CASES CITED: Winters v Attorney-General of NSW [2008] NSWCA 33

PARTIES: State of NSW (Appellant) Alexandria George Brookes (Respondent)

COUNSEL: L Babb SC/D T Kell/M England (Appellant) A Haesler SC/M Johnston (Respondent

SOLICITORS: Crown Solicitor (Appellant) Catherine Hunter (Respondent)

LOWER COURT JURISDICTION: Supreme Court

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40148/2008 SC 10456/2008

IPP JA BELL JA McCLELLAN CJ at CL

THURSDAY, 4 SEPTEMBER 2008 STATE OF NEW SOUTH WALES v BROOKES Judgment 1 IPP JA: I agree with McClellan CJ at CL. 2 BELL JA: I agree with McClellan CJ at CL. 3 McCLELLAN CJ at CL: This is an appeal by the State of New South Wales from a decision by Grove J to permit the release of Alexandria George Brookes, the respondent, under an extended supervision order pursuant to the Crimes (Serious Sex Offenders) Act 2006 ("the Act"). 4 Under the Act the State may apply to the Court for a continuing detention order or in the alternative an extended supervision order, whether on a final or interim basis, in respect of the person who is "a sex offender" and who is either serving a sentence of imprisonment for "a serious sex offence" or an "offence of a sexual nature" (s 6 and s 14). In the present case the State made an application for an interim order which was granted by Fullerton J and later extended by Grove J. Application was later made for final orders. Grove J declined to make a detention order but ordered the release of the respondent under an extended supervision order which included various conditions. 5 At the time of the application the respondent was serving a sentence of 12 months imprisonment following his conviction for failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 ("the Registration Act"). He was due to be released when his sentence expired on 21 February 2008. By the operation of s 5(2) of the Act a contravention of the Registration Act is deemed to be an "offence of a sexual nature." The reporting obligations under the Registration Act were imposed upon the respondent as a consequence of his conviction on 20 September 2001 in respect of one count of aggravated indecent assault upon a child under ten years of age contrary to s 61M(2) of the Crimes Act 1900. Accordingly, the respondent is "a sex offender" for the purposes of the Act. 6 Section 9(2) of the Act provides that an extended supervision order "may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision." Section 17(3) of the Act provides that a continuing detention order "may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order." 7 The primary judge provided the following account of the respondent's background and criminal history [at [6]-[13]): "The defendant was born on 13 September 1964. The earliest record indicating a possible proclivity for sexual misconduct by him is a note in a summary upon his exit from a treatment programme whilst in gaol in Queensland that between his ages of 8 or 9 until aged 15 or 16 he engaged in some form of sexual activity with a niece who was then aged between 3 or 4 until she was aged 11. The note about this was recorded in September 1995 when the defendant would have been aged about 31. No charge was ever laid alleging such behaviour nor is there any information that the niece reported any misconduct to anyone. The sole source is the defendant himself and he has, on occasions, sought to contradict the content of the note. There is ample material supporting express conclusions that the defendant is an unreliable and deceptive historian. It is, of course, conventional to give weight to statements against interest but as I shall later mention the defendant has handicaps and these would make me have reservations about measuring the credibility of statements by him against norms which I would apply to other community members.

The next record manifesting a sexual connotation is a note of a home visit by a departmental officer (I gather either probation or welfare) that the defendant's mother had said that he had "sexually interfered with a young boy across the road" but that "the lad's mother had not pressed charges". There is no record of any investigation or charge about such a matter.

On 9 August 1986 the defendant was at a railway station and he was stopped by a bystander when he was taking a two year old child apparently heading towards the station toilets. The child was released. The defendant now disputes some detail of this event and the asserted intention which he harboured at the time. He has not been consistent in this regard and on some occasions has admitted sinister intent. Sometimes he has said that he was taking the child to spite the mother with whom he claimed to have had a relationship. This early assertion by the defendant was rejected in a statement by the mother of the child who described him as a complete stranger. In the light of the apparent brevity of the defendant's actions with the child it was acknowledged by senior counsel for the State that it is difficult to know whether the offence committed by the defendant can be characterized as a sexual offence. For present purposes, it is convenient to assume that it is in that category.

He was charged with "abduct child with intent to deprive" and sentenced in the District Court to imprisonment for 2 years with a non probation period of 12 months dating from 9 October 1986. With remissions which were then able to be acquired, he was released to parole (probation) on 7 July 1987.

This release was followed virtually immediately by the most serious by far of any offences which have been committed by the defendant. He and a former cellmate, Ferguson, hatched a plan to abduct the three children of an acquaintance of Ferguson's. The defendant has varied his version about the planning being done before or after release from prison. Apart from adding a factor to the assessment of the defendant's lack of credibility, nothing would turn upon this difference now. The two offenders took the children, boys aged seven and eight and a girl aged six, to Brisbane. Whilst there they subjected all three children to serious sexual assaults and, in an added incident of grossly disgusting behaviour, the offenders engaged in sexual behaviour with each other in the presence of these infants.

Queensland police arrested the defendant in a motel on the evening of 16 July 1987 which was therefore only ten days after his release from prison in New South Wales. Four days later, on 20 July 1987 he was convicted of a form of contempt in breach of Queensland bail legislation and for this he was sentenced to imprisonment for three months.

In June 1988 he was convicted of a series of offences arising out of his participation in the abduction and abuse of the three children and sentenced to an effective total term of 11 years imprisonment.

The defendant was released into the community on 5 January 1999. He was not subject to parole or other conditions as his sentence had been served in full. The next offence of a sexual kind was committed on 20 September 2001. In the interim and still in Queensland he was convicted of two offences, the first of being found in a dwelling house or yard and the second of using the telecommunications service in an offensive manner, for which he received a fine option order of 19 hours community service and a fine of $500 respectively. It follows that he was at unsupervised liberty for over two and a half years before committing what became his last offence involving actual sexual misconduct. 8 (His Honour's chronology requires minor correction. In fact the last offence was committed on 21 January 2001 making the period at liberty two years. That change is of no consequence) (at [14]-[27]):

"On 21 January 2001 the defendant attended a church service in Bankstown with his mother and thereafter at a function which followed the service. Whilst he was there he invited a four year old boy to go to the toilet with him. The boy refused. The defendant then persuaded a nine year old boy to accompany him. Once inside the toilet block he took the child into a cubicle where the defendant pulled down the boy's pants and pulled his penis twice. The boy began to cry and the defendant hugged him but the boy ran out of the block. The defendant was immediately arrested.

On 20 September 2001 he was convicted at Penrith District Court of indecent assault of a child under the age of ten years. He was sentenced to imprisonment for 3 years and 6 months with a non parole period of 18 months. He had been in custody since his arrest and the sentence was directed to commence on 21 January 2001 and it would, in respect of the total term, expire on 20 July 2004. It can be noted that in his remarks on sentence Judge O'Reilly recorded his findings that the offence was impulsive and not planned, which was obviously a circumstance in marked contrast with the offences of 1987 of which his Honour was aware. His Honour added an observation that the defendant had said that he felt ashamed about this new offence and that he had "let down himself and his mother". In structuring the sentence, O'Reilly DCJ expressly referred to the need for "at least two years post release supervision and treatment".

The defendant was not granted parole and was simply released into the community once he had served the entirety of the full term of the imprisonment which his Honour ordered. There was no post release supervision and treatment offered or given to the defendant.

The offence on 21 January 2001 is the last offence by the defendant which involved sexual misconduct of any kind. There was a complaint in December 2007 by a cellmate of a sexual proposition, or at least a statement of desire, while the defendant was in custody but nothing appears to have come of this. Special rules of evidence recognize the unreliability of the testimony of prison informers claiming to have heard confessions of guilt, one reason for this being the possible advantage to be gained by the informer if evidence is concocted. Somewhat analogously this complainant may, for example, have wished to acquire a change in accommodation and in the absence of any confirmatory material, I would not place any great weight on this asserted circumstance. The cellmate was, of course, an adult.

Since his unconditional release from custody after service of the sentence for the offence on 21 January 2001 the defendant has been returned to custody twice. Although in terms of sentence for offence the defendant was, as I have described it, released unconditionally, he had by reason of his offending acquired obligations pursuant to the Child Protection (Offenders Registration) Act 2000. At about the time of his release from custody on 20 July 2004 he was served with a notice of what was required of him under that statute. He was due to attend a New South Wales police station by 16 August 2004 in order to register his details. He failed to do so. He had not absconded and on 25 August 2004 he was arrested at Cardinal Freeman Centre at Granville where he had apparently sought and been granted, at least temporarily, some accommodation. He was charged under the lastmentioned Act and released on bail.

I consider that it is a matter of some significance as demonstrating a capacity for some insight that in October 2004 the defendant admitted himself to Cumberland Psychiatric Hospital as he considered himself to be a risk to himself and others. He was not unfamiliar with this institution and there are notes of his having been admitted to it on some seven occasions before 1986, all of which were before the first of the sexual offences which I have chronicled.

However, upon his discharge from hospital he did not return to Granville and went to other accommodation in Ashfield. He did not, as required, register a change of address. On 20 December 2004 he was arrested and bail was refused. On 12 January 2005 for breach of his reporting requirements he was sentenced at Parramatta Local Court to imprisonment for 8 months with a non parole period of 1 month. Given the length of that sentence, he would have been ordered by the Court to be released to parole after the expiry of the non parole period but six days after appearing in Court for sentence the Parole Board, exercising its powers under sentence administration legislation, resolved to revoke his parole in its entirety. Once again, the defendant served the total term and he was released without parole after total sentence expiry on 19 August 2005. Thus he neither received the benefit of supervision by a probation and parole officer nor was he subject to any conditions save those independently imposed upon him by the registration legislation.

During this liberty the defendant entered the mental health unit at Bankstown Hospital apparently because of an increase in suicidal ideation.

On 25 December 2006 the defendant went to Queensland and remained there beyond the permissible time that he could, without authorization, remain outside New South Wales pursuant to the registration regime. He further breached his obligations by failing to notify his change of address. Prior to his departure he had been living at Revesby in Housing Commission rental accommodation which he had himself organized whilst he was in custody.

In January 2007 while he was in Queensland the defendant formed an association with a woman Megan Porter. Ms Porter is described as both physically and mentally disabled and is assisted by carers who were identified by the defendant in evidence as Nick and Fiona. Given the clear breaches by the defendant of his obligations under the New South Wales registration laws, it is a little surprising that on 15 February 2007 the defendant was approached by Queensland police and he signed an acknowledgement concerning his obligations under parallel Queensland law but nothing seems to have been raised about his breach of New South Wales requirements. Of course it may have been that the actions of the Queensland police were triggered solely by the consequences of the convictions for which the defendant had served 11 years imprisonment in that State and the particular officers may not have been aware of his current New South Wales obligations. In any event, the defendant told them that he was returning to New South Wales in two weeks time and he stipulated that his destination was Foster House in Surry Hills. The defendant neither made arrangements to go to Foster House nor in fact went there but he did return to New South Wales and resumed residence at the Housing Commission premises at Revesby of which he was the tenant, and where he was arrested on 21 February 2007.

In testimony in the proceedings the defendant was cross examined about his intention to return to Queensland and statements which he had made to that effect. The documentary material includes copies of correspondence authored by the defendant in which he expresses passion for Ms Porter and a desire for a shared future with her. Although he claims family acquaintance, his association with her was brief. The statements of intent were made before the strictures of the Act and its consequences were explained to and appreciated by the defendant. He gave evidence that he now understood the scope of the restrictions upon him which would accompany release under supervision. The defendant's ability for compliance cannot be tested while he is detained in prison.

He has remained in custody since 21 February 2007. On 23 May 2007 he was convicted of failing to comply with his obligations under the registration laws and sentenced to a fixed term of imprisonment of 12 months dating from 22 February 2007 and which expired on 21 February 2008. He has remained in prison thereafter pursuant to a series of interim orders under the Crimes (Serious Sex Offenders) Act 2006, the last of which was made by me and expires on Friday 16 May 2008 next. There is an "ultimate bar" against interim detention orders keeping the defendant longer than three months after expiry of his sentence. The relevant date upon which this has effect will therefore be 20 May 2008 (s 16 (3)).

As I have already observed, by reason of definition, the convictions of the defendant on 12 January 2005 and 23 May 2007 were, for the purposes of founding jurisdiction under the 2006 Act, classified as offences of "a sexual nature" but in respect of neither of them was there allegation of sexual misconduct of any sort and the gravamen of the offences were failures to inform authority of where he was or where he was going. The acceptable evidence is that the most recent offence involving sexual misconduct by the defendant was that which occurred after the church service some seven years ago. It is not to be ignored that the defendant has a record of criminal behaviour other than sexual offending. He was first before a children's court in March 1980, when he would have been aged 15, for the offence of arson for which he was committed to an institution. Save when he was restrained by a current imprisonment, his record shows frequent offending in a variety of crimes but it should be noted that, gauging the penalties imposed from time to time, it can be deduced that none of that offending approached anywhere near the high level of seriousness of his sexual crimes. 9 The primary judge received evidence from both psychologists and forensic psychiatrists. His Honour also received evidence with respect to the physical health of the respondent. A particular concern is that the respondent has a phaeochromocytoma. This is a small and rarely occurring tumour which secretes hormones which have neuropsychiatric effects. There was evidence before the primary judge that these hormones could affect a person's level of aggression, irascibility, sexual drive and factors such as "sexually acting out." The consequence of the condition is that the respondent may not be able to receive anti-libidinal medication until the tumour has been successfully removed. 10 His Honour was provided with evidence of treatment programs designed to deal with sexual offending behaviour which have been available to the respondent in custody. They include the CUBIT (Custody Based Intensive Treatment) program which is a group therapy program available within the NSW prison system. On each occasion he attempted the program the respondent failed. Unsurprisingly in light of this evidence his Honour concluded that the respondent is unsuited for that form of treatment and found that "there are better prospects of avoiding recidivist behaviour by him if he is individually treated." His Honour found that suitable treatment was available in the community from Ms Howell, a psychologist. 11 There was evidence before his Honour of changes which had been made to the CUBIT program to make it more appropriate for individuals who have difficulties with group therapy. His Honour concluded that even with those changes, treatment under a CUBIT program would not be suitable for the respondent. His Honour was satisfied that the respondent's most likely prospect of successful rehabilitation was if he was given individual treatment by Ms Howell. 12 Ms Howell gave evidence before his Honour. She provided detail of her proposed treatment program and confirmed that she would be available and willing to treat the respondent outside of custody. Ms Howell proposed a treatment regime which would be conducted in consultation with a treating psychiatrist. The problem which his Honour faced was whether, if the respondent was released under supervision, Ms Howell's services would be available to him. The respondent could not afford to pay for them and no funding was available from any private source including a medical benefits fund or from a government body. 13 The Acting Executive Director of Offender Services and Programs with the Department of Corrective Services, Ms Booby, gave evidence. In an affidavit she deposed to a conversation which she had on 8 May 2008 with the Commissioner of Corrective Services. In the affidavit she said: "On 8 May 2008, I had a conversation with the Commissioner of Corrective Services, Ron Woodham, in person, about the possibility of the Department of Corrective Services providing funding for the payment of Ms Howell's treatment of Mr Brookes. The Commissioner said to me words to the effect of: 'Commissioner: I delegate you to make a decision about whether or not the Department will pay for this treatment as a means of protecting the public.' Based on my knowledge of this matter and of Mr Brookes' history, I have decided that the Department will not pay Ms Howell to provide the treatment for Mr Brookes that is outlined in her draft affidavit. I have made this decision for the following reasons: (a) I do not believe that the treatment plan outlined by Ms Howell in her affidavit will provide adequate protection for the community from the risk of sexual recidivism posed by Mr Brookes; (b) I maintain the view, as expressed in my earlier affidavit at paragraph 43, that there is no community-based program which would be capable of treating Mr Brookes' untreated high risk of re-offending; (c) the advice I have received from Mr Andrew Kaw, A/Clinical Co-ordinator of the Challenging Behaviour Management Team ("CBMT"), is that the treatment proposed by Ms Howell will not adequately address Mr Brookes' personality disorders; (d) I believe the preferable treatment for Mr Brookes' personality disorders and risk of sexual recidivism is that outlined in my earlier affidavit at paragraphs 28 to 42; and (e) although the Department has provided funding for private treatment in the community in relation to another serious sex offender, Mr Sleeman, there were special circumstances in that case. The special circumstances included: (i) The fact that Mr Sleeman had Asperger's Syndrome and at that time the Department's custodial sex offender treatment program was unable to treat a high risk sex offender with Asperger's Syndrome; and (ii) The Department only intervened to pay for the treatment by Ms Howell when Mr Sleeman, already on parole and on a disability pension, became unable to afford to pay for the treatment. I do not consider there to be equivalent special circumstances in Mr Brookes' case to warrant payment by the Department for private sex offender treatment in the community." 14 Having regard to this evidence his Honour concluded that "there are funds that can be made available for payment of treatment of the defendant outside custody." His Honour said of Ms Booby's evidence (at [79]-[80]): "Ms Booby continued to depose that she has decided not to pay Ms Howell "based on my knowledge of this matter and Mr Brookes' history". The collateral issue before the Court is whether there are available funds and, as I have concluded on the above testimony, there is such an availability. Ms Booby added reasons for her intended decision. The reasons include her opinions that compliance with Ms Howell's plan will not adequately protect the community and that her treatment will not address the defendant's personality disorders. As Professor Greenberg and Dr Allnutt explicitly acknowledged, these matters are decisions to be made by the Court and the legislation casts the responsibility for such decisions on it and not upon the Department of Corrective Services.

I note that a further reason expressed by Ms Booby was that "there is no community based programme which would be capable of treating Mr Brookes untreated high risk reoffending". That opinion implies that the statutory availability of an extended supervision order is virtually hypothetical and I would reject any inference that Parliament might have so intended. Ms Howell is in active practice and I would accord preference to her view as to treatment capability." 15 His Honour further said (at [85]): "Ms Booby described an occasion when the Department did pay for external services, in fact provided by Ms Howell, but said that she did not consider "there to be equivalent special circumstances" to warrant payment in respect of treatment for the defendant. I am unaware of the source of a test requiring the demonstration of "special circumstances". I do not accept that in a case where an order ought be made for extended supervision, the statutory intent to make that option available can be subverted by a bureaucratic decision, particularly if it is based upon an arbitrarily determined test, not to spend funds which are in fact otherwise available." 16 Having made these findings his Honour proceeded to address the statutory questions. His Honour was satisfied to a high degree of probability that the respondent is likely to commit a further serious sex offence if he is not kept under supervision. However, he said that he was "not satisfied that adequate supervision will not be provided by an extended supervision order. I am satisfied that adequate supervision will be provided by such an order" (at [86]). 17 His Honour then provided a summary of some of his principal reasons for reaching these conclusions. He said (at [87]-[92]): "The defendant is now 20 years older than at the time of his most serious offending and seven years older than when he committed his last offence. It is true that the psychiatrists generally referred to "burn out" at an older age than the defendant but there is promise that he can restrain his criminal impulses in the two recent releases from custody without supervision during which he committed no offence involving any act of sexual misconduct. The likelihood of the absence of offence should increase if there is an application of supervision. There is a significant indication of the defendant's capacity for obedience in his compliance with the registration requirement in Queensland when police approached him. The indication is that when direction is given he will comply. What he has not had in the past is that direction. It is a further sign of promise that the defendant does not adopt a posture of denial of offending.

Obviously the defendant must be treated. For the reasons above adumbrated I would discount the prospect of a satisfactory outcome from another attempt at CUBIT even in the altered format now adopted. The defendant's reluctance to make a fifth try at custody based treatment is reasonable and he is willing to undergo the treatment offered by Ms Howell. As I have said, this is a form of individual treatment and it has never been offered over the last 20 years, most of which the defendant was held in custody.

It is now known that at least a partial explanation for some of the defendant's behaviour may be derived from the side effects of the tumour which has now been removed. I accept that this is of minor consequence in the sense that it was likely to have been present only in recent years and although, inter alia, it was depositing hormones, it was not during this recent period that the defendant committed any offence other than in respect of his registration obligations.

The insertion of conditions which require discipline and the subjection of the defendant to supervision should create a situation which is novel in the sense that he has not in any practical way been on parole in the past. This should assist in many areas including those where compliance is required, especially with medication administration. I give weight to the circumstance that, through his counsel, the defendant expresses his contentment with the making of a supervision order. I am aware of the defendant's statements of intention to appeal and sue (presumably for false imprisonment) but I am satisfied that those outbursts are manifestations of the defendant's personality which I anticipate would be addressed in the course of Ms Howell's treatment. I expect that he would receive some legal advice about such matters.

The expert assessments that the defendant is "institutionalized" provoke some comment. It can be suggested that that characteristic may result in his amenability to direction and to the requirements of a structure of supervision. Nevertheless the defendant has shown that he is not without some living skills as the arrangements which he made whilst a prisoner, for the Housing Commission to lease to him the residence at Revesby shows.

Section 11 specifies conditions which may be placed on a supervision order. The available conditions are not limited to those expressed. Counsel for the defendant has submitted a draft of conditions in his written submissions which I infer convey an indication of consent by the defendant and, importantly, an indication of intent to abide by them. The alternative prayer in the summons sets out conditions desired by the State in the event that a supervision order were to be made. I will draw upon all of these sources." 18 Having made these findings his Honour ordered that the respondent be subject to extended supervision for a period of five years and imposed a number of obligations by way of conditions. The conditions include: (j) The defendant is to participate in treatment and rehabilitation if it is made available by Ms Jenny Howell and he is to obey her reasonable directions including, but not limited to, requiring his attendance at consultations with other health, psychological or psychiatric practitioners;

(k) The defendant must accept any psychiatric treatment offered by the Community Forensic Mental Health Service and comply with any requirement to receive any medication directed by them including anti-libidinal or psychiatric medication which has been prescribed by a qualified practitioner;

(l) The defendant must comply with reasonable requests of the Community Forensic Mental Health Service to attend for consultation and examination including providing material for pathology testing and undergoing medical imaging;

(m) The defendant is, when practicable after release from custody and in any event within one month thereof, to consult a general practitioner and consent to the disclosure of medical information between that practitioner, the Community Forensic Mental Health Service and any treating psychologist or psychiatrist.

The appeal 19 The appellant challenged both his Honour's finding with respect to funding and the orders which he made. It was submitted that his Honour erred in finding that funding would be available for treatment of the respondent by Ms Howell. It was further submitted that, even if funding may be available, his Honour could not make an order which required the appellant to provide that funding so that the respondent could be treated. It was further submitted, albeit without elaboration, that his Honour was in error to provide for the release of the respondent even though he could not presently receive anti-libidinal medication. 20 A similar problem to that confronting the Court in the present case was considered by this Court in Winters v Attorney-General of NSW [2008] NSWCA 33. However, as I will explain there is a significant factual difference between the circumstances applying to Mr Winters and those of the present respondent. 21 In Winters the primary judge found that having regard to the evidence before the court, community based one-on-one treatment would not be available to Mr Winters. The State Government had not made provision for its funding and the evidence was that there was no present intention to change that position. The primary judge said: "As it happens the lack of community based treatment is material to my decision to make a detention order. However, the fact that it is not available to Mr Winters is as a result of two factors. Firstly, as a matter of policy the government has presently determined that it will not support one-on-one counselling in the community other than in extraordinary circumstances. Secondly, Mr Winters' personal impecuniosity means that he cannot meet the cost of treatment from his own resources." 22 The evidence in Winters confirmed the necessity for treatment if Mr Winters was to be safely released into the community. Because the evidence established that no source of funding was available the finding that treatment was not available was inevitable. Because the primary judge was satisfied that Mr Winters could only be released if treatment was available, to provide for his release on condition that such treatment was received would be futile. A failure to comply with the requirement of an order would be an offence. In this Court, Mason P concluded that it would be unjust "to make a direction that the appellant attend upon Ms Howell unless the Court were satisfied that the State was itself intending or required to take the necessary steps to enable performance to take place, ie agree to the funding" [28]. His Honour concluded that the Act does not empower the Court to make a direction about participation in a particular treatment or rehabilitation program "unless it is one that is available to the offender." His Honour concluded that if treatment could not be funded it would not be available and accordingly the Court must disregard any prospect of community based treatment when making its decision. Such a requirement would be "both an injustice and a futility" [32]. 23 Giles JA observed that the Act does not state that the Government must make funds available to ensure that any condition provided by an extended supervision order is met. His Honour concluded that "courts should not make orders knowing that they are likely to be futile, nor should they seek to compel indirectly what can not be compelled by a direct order. Where a third party must do something to make the order effective, whether the third party will do it cannot be ignored, and no less when the third party is the Government." The order contemplated by the legislation is an order which can be put into effect and it is to that order which the decision in relation to adequacy of supervision must relate. However, his Honour allowed for the prospect that a decision not to fund a particular necessary condition may be unreasonable and acknowledged the possibility that a decision which was unreasonable may attract consideration of whether or not the proceedings were an abuse of process (see [69]). 24 Hodgson JA observed that when legislation authorises a court to make orders which require action by the State, evidence that the State would not do what was required of it to make the order effective is not admissible. The Court will assume that the Executive would perform the function that by passing the legislation the Parliament has indicated it should perform. However, where an obligation has not been imposed by the Parliament his Honour concluded that it would not be appropriate to assume that the Executive will do what the Court believes to be appropriate. With respect to the Act his Honour said that the terms of s 11(d) do not limit the treatment or rehabilitation programs which may be specified in an order and do not disclose an intention that the Court should be able to formulate any such program as it chooses and to assume irrebuttably that the Executive would provide such a program. His Honour said that "If a program is proposed which on its face seems to be one which should reasonably be supported by the Executive … then in my opinion the Court may assume that the State will provide it, but only as a rebuttable presumption of fact" [122]. 25 Hodgson JA recognised that the Court has a discretion to decline to make any order. He suggested that "this discretion could perhaps be exercised if the Court considered to be sufficiently unreasonable a failure by the Executive to make provision which would give effect to appropriate conditions of a supervision order" [124]. His Honour said (at [125]-[128]): "That there is such a discretion is suggested by the use of the word "may" in s17(1), (2) and (3), by the form of s17(2) and (3) specifying conditions precedent that must be satisfied before an order "may" be made, and by the terms of s17(4), in particular s17(4)(a). The safety of the community is not a matter relevant to the conditions precedent in s17(2) and (3), so must go to the exercise of a discretion. Of course, the terms of s17(4)(a), particularly when combined with the new s3 which makes the safety and protection of the community the primary object of the Act, provide very powerful grounds for exercising this discretion in favour of making an order, once the conditions precedent are satisfied; but there is in my opinion a discretion not to make an order.

The Act provides for detention of offenders beyond the expiration of the sentence imposed as being appropriate in respect of their offending, and discloses an intention that effective supervision should be provided where this is adequate, and that continued detention should be ordered only where supervision would not be adequate. In those circumstances, for the Executive to seek to secure the continued detention of an offender, while making inadequate provision for effective supervision which would have enabled the offender's release, might be considered unreasonable and might justify an exercise of discretion against the granting of an order.

I note that in Fardon v Attorney General (Queensland) [2004] HCA 46, (2004) 223 CLR 575, in which the High Court of Australia upheld the constitutional validity of the similar Queensland legislation, Gleeson CJ said this at paragraph [19]: [19] The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.

If the Supreme Court was bound to make an order for continued detention, whenever the Executive made no provision for appropriate supervision, it could be said that the Supreme Court was a mere instrument for Government policy.

On the other hand, decisions about how to allocate resources for the rehabilitation of offenders and the protection of the community are decisions for Parliament and/or the Executive and not for the courts." 26 Hodgson JA ultimately concluded that having regard to the evidence in that case, the primary judge was entitled to draw the inference that funding for Ms Howell's services would not be provided. It followed that any presumption that the State would fund the necessary treatment was effectively rebutted. 27 As I have earlier indicated there is a significant difference between the evidence in the present case and the evidence in Winters. In Winters the Court accepted that the Department did not have funds which could be allocated to provide one-on-one counselling for Mr Winters in the community. In the present case Ms Booby's evidence was that funds could be made available and that she had been delegated authority to make a decision as to whether they should be provided. For reasons substantially related to her conclusion that treatment of the respondent by Ms Howell would not be appropriate she made a decision not to authorise the available funds to be provided. The primary judge concluded that funds were available and if Ms Booby chose to release them the necessary treatment could be provided. 28 Ms Booby made her decision at a time when the evidence considered by the primary judge in relation to the prospective effectiveness of the contemplated treatment was not available. In light of that evidence and with the benefit of detailed submissions his Honour reached a conclusion different to that reached by Ms Booby. As I have related his Honour concluded that the respondent is unsuited for group therapy treatment and "there are better prospects of avoiding recidivist behaviour by him if he is individually treated." His Honour was satisfied that if the respondent was released Ms Howell would provide him with "appropriate treatment." 29 Before an extended supervision order can be made the Court must be "satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision" (s 9(2) of the Act). Conditions may be imposed on the order. In the present case his Honour did not provide that the respondent must be treated by Ms Howell as a condition of the order. Instead his Honour provided that the respondent must accept such treatment "if it is made available." His Honour recognised that it would not be made available unless Ms Howell was adequately compensated. If the State does not fund Ms Howell's services the effect of his Honour's order will be that the respondent is released without any obligation for treatment. However, no question of the order becoming futile could arise. 30 This is not a case where the Court has impermissibly intervened to dictate the decision which falls within the exclusive province of the Executive or the Legislature. The evidence clearly indicates that the respondent requires treatment in order to protect the community. Ms Booby having indicated that funds could be provided to fund Ms Howell's services, the Court is entitled to expect, that the primary judge having decided that the respondent should be released under supervision, Ms Booby will, in the responsible exercise of the discretion given to her, decide to release the necessary funds. In the language of administrative law any other decision would be irrational. The Court must assume that the Executive will not make an irrational decision. 31 The State further submitted that given the difficulties which the tumour creates for the respondent accepting anti-libidinal medication it was not open to his Honour to provide for the respondent's release. His Honour gave careful consideration to this issue as one of the many issues which required resolution. To my mind his Honour did not err by providing that anti-libidinal medication should be administered if and when the respondent is able to accept it. Although no doubt the medication would provide extra assurance that the respondent would not offend, the evidence did not require a conclusion that the respondent should only be released if it could be administered. 32 In my judgment the appeal should be dismissed. **********

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