State of New South Wales v Brookes

State of New South Wales v Brookes - [2008] NSWCA 212 - NSWCA 2008 case summary — Zoe

[12]

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.

[32]

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.

[33]

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.

[42]

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.

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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. **********

At a glance

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Judgment (47 paragraphs)

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