State of New South Wales v Brookes [2008] NSWSC 473 | Case summary

JUDGMENT 1 HIS HONOUR: By summons filed on 30 January 2008 the State of New South Wales seeks orders in respect of Alexandria George Brookes pursuant to the Crimes (Serious Sex Offenders) Act 2006. Unless otherwise stated, section references are to that statute. Although one possible consequence, and in this instance the principal order sought by the State, is the continued detention of the person who is the subject of the claim, these are declared to be civil proceedings (s 21). If such an order were to be made the detainee would be kept in a correctional centre (the meaning of which is to be understood by reference to the Crimes (Administration of Sentences) Act 1999) in accordance with the terms of a warrant issued by the Court (s 20 (2) (b)). Save some such term, it would not appear that the custody of the detainee would be distinguishable from that of a prisoner serving a sentence for a crime of which that prisoner had been convicted. 2 Mr Brookes is, in the sense of civil proceedings, the defendant in this action. He has been known by other names and it appears that his forename as above derives from a misspelling in a deed poll which has not been corrected. 3 In the alternative to continued detention, the State seeks that the defendant be subjected to an extended supervision order as provided for in the Act. 4 Following recent amendments (Act 97/2007) the stated objects of the Act are: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation." 5 The application comprehended by the summons may be brought if the defendant is in custody serving a sentence of imprisonment for a serious sex offence or an offence of a sexual nature (as respectively defined). It is common ground that the defendant has been convicted of offences in the former category in the past, but he was imprisoned for an offence of the latter category when these proceedings were instituted. I will turn to detail some of the offences later but I note that it was the currency of a sentence for an offence contrary to the Child Protection (Offenders Registration) Act 2000 which enabled the commencement. The particular acts or omissions giving rise to the registration offence did not involve any act or attempted act of sexual interference by the defendant with any person. 6 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. 7 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. 8 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. 9 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. 10 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. 11 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. 12 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. 13 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. 14 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. 15 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". 16 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. 17 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. 18 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. 19 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. 20 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. 21 During this liberty the defendant entered the mental health unit at Bankstown Hospital apparently because of an increase in suicidal ideation. 22 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. 23 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. 24 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. 25 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)). 26 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. 27 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. 28 The defendant has been anything but a "model prisoner". He has repeatedly been engaged in violence, and not only with other inmates, for example, on 17 August 1993 he was convicted of assaulting a Queensland prison officer. The evidence portrays the defendant as in frequent rebellion against prison discipline. I have no doubt that these circumstances are at least in part provoked from the combination of the defendant's psychiatric and psychological conditions and his personality defects. In a written submission Mr Babb SC and Ms England, counsel for the plaintiff epitomized the situation: "All of his adult life, Mr Brookes has suffered from a range of serious mental health problems including psychotic episodes, depression and personality disorder. There are suggestions that he also has schizophrenia (which finds support in the documents contained in the case management file)". 29 Dr Ellis has extracted records of medication received by the defendant via Justice Health whilst he has been in recent custody. As at February 2008 he was receiving two different anti-convulsants a total of five times daily, an anti-depressant and an anti-psychotic at sub therapeutic dose. In 2007 he received various anti-psychotic, anti-depressant and anti-convulsant medications. There were also antibiotics and analgesics which I do not regard as relevant. A similar regime is recorded in 2006 with the significant addition of an anti-libidinal medication (Androcur) which was administered in March to August of that year. 30 Professor David Greenberg and Dr Stephen Allnutt, forensic psychiatrists, were appointed and conducted examinations of the defendant at the direction of the Court (s 7 (4)). Their respective reports set out some considerable detail of psychiatric and other history and no practical purpose will be served by seeking to reduce what can be read there into summary. I shall extract some of the diagnostic observations and opinions. 31 Professor Greenberg considered the defendant had a severe anti-social personality disorder. He referred to features including a disregard for and violation of the rights of others and failure to conform to social norms with respect to lawful behaviour, deceitfulness and lying, use of aliases, impulsivity, failure to plan and he described other aspects of the defendant's irresponsibility. He noted that such a disorder was usually hard to treat. From the records he thought that the defendant's intellectual functioning was above the developmentally delayed range but certainly below average. He questioned the diagnosis of epilepsy. I believe I should, however, take note of the substantial history of the prescription of anti-convulsant medication by Justice Health during the times that the department was responsible for treating the defendant. Professor Greenberg thought that the defendant probably did not suffer a psychotic disorder but that follow-up examinations were required. Again, I observe the provision of medication by Justice Health. I also note the submission by counsel appearing for the State above set out. Professor Greenberg considered that the defendant had a paedophilic disorder. 32 Dr Allnutt recapitulated a lengthy series of psychiatric and psychological reportings. He thought that the history showed probable mood disturbances and periods of depression. He did not think that the defendant currently suffered from a mental illness such as schizophrenia but it was possible that he had in the past had psychotic episodes. He considered that it would be reasonable to assess a vulnerability to psychosis and mood disorder. He assessed the defendant as having a paedophilic sexual interest in children. He diagnosed a mixed personality disorder characterized predominantly by a significant anti-social personality disorder. 33 Both of these specialists were asked to turn their attention to future risk. As I shall later observe, certainly as far as the classification system called STATIC-99 is concerned, the defendant is as a result of scoring in that system, categorized in a group of high risk for future sexual offending. It is important, particularly in the light of the mass of statistical and actuarial material which is before the Court, predominantly through the medium of opinion evidence, not to lose sight of Dr Allnutt's precaution: "As in previous reports of this nature it is important in my view to state that, whether or not he, as an individual, will or will not in fact re-offend in absolute terms cannot be stated with reasonable medical certainty. This is because placing a person in a particular risk group denotes a probability and not a certainty. Being a member of risk group means that the person belongs to a group of individuals of whom a relatively higher or lower number will re-offend and a relatively smaller number will do not. It is difficult to determine if a particular individual within that group will be one of those that in fact offends or one of the others in the same group who in fact do not offend. Thus the expert's capacity is limited to, at best, identifying the risk group the offender belongs to but is unable to make definitive statements about the person as an individual. In this determination, the adjudicator is, in my view, alone. The expert is probably in a better position to provide recommendations about interventions and treatment that could attenuate whatever risk is present." 34 It is readily understandable that the requirements of promptness, given that what is fundamentally involved is the possible re-incarceration of a person who has already served whatever the law has deemed appropriate penalty for crime or crimes, may reveal some misunderstandings of detail. In discussing factors of increased risk of sexual recidivism Dr Allnutt commented : "He (the defendant) has a significant history of past supervision failures on a number of occasions and has seriously offended in the context of being under a legal supervision order (parole)." 35 The defendant was on parole for about ten days prior to the major offences dealt with in Queensland but, as I have chronicled, his history is of repeated denials of parole and the absence therefore of any advantage to be gained through supervision after release. Although he has breached the registration laws he is not under any supervision in respect of compliance with them. There is a particular aspect of the defendant's physiology which requires mention. An abdominal mass was recently detected in the defendant. It was confirmed that this was a phaeochromocytoma which was described by Dr Ellis as a hormone secreting tumour of the adrenal gland. Untreated, it can become life threatening. It was surgically removed at operation on 24 April 2008. The operation report was to the effect that it was thought that the entire tumour has been removed but confirmation that all abnormal tissue has in fact been removed is not yet available and may not become available before the expiry of the interim detention time limit above stated. 36 A phaeochromocytoma is a small and rarely occurring tumour. In the defendant's case it is thought that it has probably been present over the past 12 months to two years. It may have been there longer. It can definitively be stated that, by reason of the type of hormones which it secretes, there are consequential neuropsychiatric effects. Dr Ellis testified that the secretion could have had effects on matters such as levels of aggression, irascibility, sexual drive and factors such as "sexually acting out." 37 In due course attention must be directed to a suggestion that the defendant should have to undergo a course of anti-libidinal medication. Androcur, which I have noted was prescribed for him whilst in custody for a time, is in tablet form (as available in Australia) and there is ample evidence of the defendant's unreliability in regard to complying with medication. He has given evidence of his willingness to receive the alternative which is Depo-Provera which can be injected intramuscularly and therefore compliance could be confirmed not only by the defendant but by whoever was administering the drug. 38 The evidence is, however, that neither regime can commence until the lapse of a period which is likely to be some months because there must be a certainty about the removal of every vestige of the phaeochromocytoma before either drug can safely be administered. 39 Pursuant to s 17 (4) the Court is obliged to have regard to a series of specific and non-specific matters when determining whether to make either a continuing detention order or an extended supervision order. Section 17 (2) and (3) restrict the making of any such order unless the Court is satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if not kept under extended supervision or, if adequate supervision will not be provided by such an order, a continuing detention order is to be made. 40 The requisite standard of proof conveyed by the expression "high degree of probability" has been the subject of interpretative analysis. I accept that I should, and will apply, a standard of lesser certainty than the criminal onus of proof beyond reasonable doubt but of greater certainty than the balance of probability. The ultimate decision in terms of s 17 (2) or (3) will follow the consideration of the specifics in s 17 (4) as well as the non-specific which is contemplated by s 17 (4) (i). 41 Section 17 (4) (a) refers to the safety of the community. The statistical and analytical material focussing principally on the defendant's recorded past place him in the category of high risk, nevertheless, as Dr Allnutt stressed and commonsense would also suggest, whether the defendant himself will actually offend by committing a serious sex offence must be speculative. The last offence of this type was committed by the defendant over seven years ago. Of course he has been in custody for a substantial part of the elapsed period and the opportunity for offence thereby inhibited. I have earlier described the circumstances of the offence on 21 January 2001. It was, in contrast to the extremely serious crimes in 1987, unplanned and impulsive. Nevertheless the community needs to be protected from impulsive as well as premeditated offending. 42 An assessment of the safety of the community requires consideration of the future danger presented to it by the defendant. I would attach importance to the information about the conduct of the defendant when he was released from prison after 20 July 2004. Despite Judge O'Reilly's recommendations and apparent expectation, the defendant was released into the community without the benefit of supervision by parole authorities. This was because he was detained for the full term of his head sentence. Although parole had earlier been denied and was therefore not available there is no evidence that during two unsupervised periods during which he was in the community between 20 July 2004 and 20 December 2004 and between 19 August 2005 and 22 February 2007, the defendant committed any offence which involved any act of sexual misconduct. I have pointed out that the offences against registration requirements, although classified as being "of a sexual nature" did not involve sexual activity of any sort. 43 It is, I believe, reasonable to deduce therefore that if the defendant did not offend by sexual misconduct whilst he was unsupervised, it would be less likely that he would so offend if he were the subject of supervision. 44 Section 17 (4) (b) directs attention in this instance to the reports of Professor Greenberg and Dr Allnutt. I have considered the content of their reports and made some references to them above. 45 Professor Greenberg had diagnosed the defendant's severe anti-social personality disorder and he expressed the opinion that such were difficult to treat. There is no evidence, however, that any attempt to treat this disorder, other than as an incident of treatment in custody which had been directed primarily to sexual offending, has ever been made. Professor Greenberg recognized the defendant's difficulties with group therapy. The New South Wales Custody Based Intensive Treatment (CUBIT) is based on group therapy and the same applied to the Queensland version, the Sexual Offenders Treatment Program (SOTP). In his oral testimony, Professor Greenberg was asked about changes being instituted to CUBIT including the ability of a patient to enter the course at any point, to advance at an individual pace, to have some pre-entry therapy and to be engaged in some one-to-one counselling. The efficacy of the pre-entry strategies remains to be gauged and, as Dr Allnutt pithily noted, about the relevant impact of completing CUBIT: "I think the jury is still out on the treatment of high risk sex offenders." 46 As I shall later discuss, there is available for the defendant, community based therapy in which, significantly, he expresses a willingness to engage. I am conscious of the many observations over the years that the defendant is deceitful and an accomplished liar. In a term which is very frequently used by those dealing with corrective services inmates, he is often described as "manipulative". Bearing those things in mind however, I would not reject out of hand the evidence of the defendant that he perceives the need for rehabilitation as he has reached a conclusion that "enough is enough". 47 Dr Allnutt thought that the defendant continued to manifest attitudes that support or condone sexual offending but he qualified this by expressly stating that he did not formally assess it but thought it was inherent in the defendant's responses to enquiry. 48 Both Professor Greenberg and Dr Allnutt contemplated that the defendant would either be placed under extended supervision or kept in continuing detention. They did not offer any opinion as to the relative merit of either option. Professor Greenberg stated that the matter "will need to be addressed by the courts" and Dr Allnutt stated that whether the defendant requires an extended supervision order or continuing detention "is a matter for the court". 49 Section 17 (4) (c) directs that regard be had to medical, including psychiatric and psychological, assessments as well as the defendant's cooperation with the making of any such assessments. There is a great volume of material relating to this, particularly some from Mr Sheehan and Dr Lennings who are psychological professionals. There is other material from persons who have psychology qualifications and, of course, there are the psychiatric reports which I have already mentioned. 50 An important tool was the scoring of the defendant under the STATIC-99 instrument as a high risk offender. The evidence demonstrates that a consequence of this scoring is that the defendant (or anybody else who attains a similar score) will retain a place in this category indefinitely. The nature of STATIC-99 has been analysed in other instances and it is not necessary to comment beyond saying that there is limited utility in being provided with what amounts to an immutable statistical observation. 51 I have quoted a statement by Dr Allnut about predicting the future conduct of an individual. Whilst I understand why attention by the analysts is paid to reoffending, a corollary should not be ignored. For example, Mr Sheehan noted that STATIC-99 showed that persons with the same characteristics as the defendant on average reoffended at 45 percent over ten years. The unstated corollary is apparently that 55 percent did not reoffend. 52 Both the psychologists above named turned their attention to dynamic risk factors. These are focussed on the individual and are amenable to treatment. In this respect the factors are distinguishable from those which led to STATIC-99 scoring. 53 In reviewing the identified dynamic risk factors the defendant's mental state cannot be ignored. I recognize the reservations about diagnosis in the reports of Professor Greenberg and Dr Allnutt but the defendant's past includes multiple admissions as a inpatient to psychiatric units and the provision, in particular, of anti-psychotic medication. If the defendant is released under extended supervision and the therapy available from Ms Howell, which I will later describe, is to be undertaken, it should be appreciated that Dr Allnutt's evidence is that he will be available to provide psychiatric consultation. 54 Both Mr Sheehan and Dr Lennings assessed the existence of multiple dynamic risk factors affecting the defendant. There is force in the submission by counsel for the defendant that those assessed factors would be little different from those which must have pertained during the recent unsupervised releases into the community and no sexual offending (of any actual kind) took place. It is a reasonable anticipation that the risk should reduce if the defendant is in fact supervised and in fact able to undergo treatment. 55 It is true that the defendant declined the request from Mr Sheehan for interview and this must count against him when the level of his participation is to be considered. It is probable that the defendant's attitude is an aspect of his untreated personality disorder and his present attitude, as expressed, is to cooperate with an extended supervision order and its conditions. Those conditions would necessarily include movement restrictions and attendance for treatment. 56 As to the defendant's likely compliance, I have had my attention drawn to his testimony at a hearing for an interim detention order. Obviously he was aware that he had served in their entireties every sentence which the law had assessed and imposed upon him for offences which he had committed. If he was, and it appears to have been so, ignorant of the 2006 statute which potentially authorized his continued detention, it was scarcely surprising that he manifested belligerence and gave vent to some anger. I accept that he has since had explained to him the legislative structure which affects him and his testimony in the current hearing was not given in a similar manner. That is not to say that all signs of aggression had evaporated but the chagrin of the defendant at being detained without charge and without conviction or sentence for any current offence attracts an understanding. 57 Section 74 (4) (d) is concerned with statistics. I have made some remarks about the principal tool, labelled STATIC-99, which is used for forecasting. Apart from this statutory obligation it is obvious that attention should be paid to this sort of material when it is available. It is equally obvious that it does not purport to be capable of predicting the future, that is to say specifically whether a particular person will or will not offend. 58 Section 74 (4) (e) directs consideration of the defendant's opportunities and participation in treatment or rehabilitation programmes. In this case it must concern SOTP in Queensland and CUBIT in New South Wales. The defendant has never successfully completed either of these courses. I will sketch some of the circumstances. 59 In October 1992 the defendant joined SOTP which would have been at the time approximately five years into his 11 year sentence. His progress was deemed unsatisfactory and he was removed from the programme. However, in June 1994 he made another attempt to enter it and successfully completed a 15 week pre-entry programme and was again accepted into SOTP. He was withdrawn from the programme and a notation shows that it was agreed by those in charge of it that the defendant: "Had completed the aspects of the programme from which it was considered he could gain benefit, given his level of intellectual functioning". 60 A review by Mr Sheehan estimated that the defendant would have made only modest gains. 61 The defendant was again admitted to SOTP in January 1998 during the final year of his sentence. A notation referred to the defendant's apparent capacity to respond positively to therapeutic input although the writer of the note added "even if those gains are temporary". 62 A written submission on behalf of the plaintiff states that the defendant did not complete the programme but "left custody instead". There is no suggestion of an answer to the implicit query "instead of what?" The defendant left because his total sentence had expired and he was discharged from custody without parole as I have previously remarked. Even if he had wanted to complete the course, there is no indication that the State of Queensland would have permitted him to remain in custody, unsentenced and uncharged with any offence, for that purpose. 63 In December 2001 the defendant was admitted to CUBIT in New South Wales. At that time, of course, the recent changes had not been implemented. His overall progress was assessed as unsatisfactory and he was ultimately discharged in May 2002 when he committed a breach of confidentiality requirements. It was then a wholly group based treatment and the participants were inevitably aware of matters concerning each other. 64 After that discharge the defendant declined invitations to reapply for admission. In affidavit evidence in the proceedings he has maintained that stance. A considerable proportion of the evidence in the proceedings was directed to CUBIT and witnesses' opinions about it. In the light of this situation nothing will be gained by my discussing that evidence at length. 65 There is a volume of material concerning these past opportunities which have been afforded to the defendant. The impression which I gained was that there is a preponderance of evidence that failures to complete these courses were likely to be the product of the defendant's psychological, personality and/or intellectual difficulties. As recounted, he made four attempts and, at least, this demonstrated some insight by him into a need. The failures are also strongly suggestive of a conclusion that this type of treatment is not suitable for this particular person. I am satisfied that the defendant is manifestly unsuited for group therapy treatment and there are better prospects of avoiding recidivist behaviour by him if he is individually treated. Such treatment is available from Ms Howell. I do not regard the changes to CUBIT which apparently involve some individual counselling to have that prospect. I have taken into account the establishment of the Challenging Behaviours Management Team (CBMT) and the pre CUBIT (PREP) arrangements. The submission that the defendant be kept in prison for some two years in order to undergo what is effectively an experiment in moving through CBMT to PREP to CUBIT with the risk of failures along the way holds less prospect in my view for successfully rehabilitating the defendant and thus ensuring community safety than the provision of individual treatment by Ms Howell. Such a course of action has never been attempted in the past despite what I believe was a pointer to consideration to that form of treatment after the four failures of group therapy. 66 Next s 17 (4) (f) refers to compliance with parole obligations or an earlier extended supervision order. There has been no such earlier order. As I have been at some pains to draw to attention, apart from the few days between release in New South Wales and arrest in Queensland in July 1987, the defendant has not been granted parole. Clearly in 1987 he flouted any obligation which had been imposed upon him. The combination of the defendant's personality, psychological and intellectual deficit powerfully suggest a candidature of the defendant for supervision. I repeat the observation, however, that even unsupervised in two recent releases he did not sexually offend. His compliance with the requirements of the Queensland police to register while he was in that State gives some indication that, if he were subject to direction and supervision he might well have also kept his registration obligations in New South Wales. 67 Whether the defendant's level of compliance with nominated statutes was satisfactory is the express subject of s 17 (4) (g). I have detailed the two breaches of the registration laws which led to the defendant's re-incarceration. As I have just commented, it may have been a pity that the defendant was not under parole supervision which might have assisted in avoiding the commission of breaches against those laws. It should be observed that, although there is a requirement for change of address to be notified, it is only if the intention is to leave the State for more than 14 days that notification is obliged. As a person who is interstate for less than 14 days is obviously not, during that time, in occupation of a New South Wales registered address, it would seem that the essence of the breach by the defendant was that he overstayed a limit. He did in fact return to New South Wales, although he did not go to Foster House as he told the Queensland police he planned. He did in fact return to his known address at the Housing Commission flat in Revesby. I conclude that his failures in respect of registration obligations were not a part of any attempt by the defendant to abscond. 68 Section 17 (4) (h) directs attention to general criminal history. I have mentioned the absence of offence approaching the level of seriousness of the crimes for which the defendant was in prison in Queensland for 11 years. As I said, a gauge of the seriousness of non sexual offences can be derived from the various penalties received. In Children's Courts following the offence for arson for which he was committed to an institution, he was again twice subjected to a similar order (one limited to four months) for stealing and, for carrying a cutting weapon on 21 August 1982, he was placed on a recognizance to be of good behaviour for three years. It would appear that he breached that recognizance but the chronology provided by the plaintiff does not record any action being taken for the breach. 69 As an adult, the earliest offence was committed on 2 May 1983 when he was fined $500 for breaking entering and stealing. On 1 November 1983 he was placed on a good behaviour bond for 12 months for public mischief. He had made a false report of assault and robbery. For offences on 16 September 1984 namely goods in custody, unlicensed driver, state false name and address, illegal use of a conveyance and negligent driving he was, at Balmain Petty Sessions, sentenced to imprisonment until the rising of the Court, a fine of $50, a fine of 50 cents, 4 months hard labour and a fine of $300 respectively. In December 1984 he was convicted of assault, assault police and resist arrest but a record of any penalties has apparently not been able to be located. 70 I have already referred to convictions during "gaps" of the defendant's custody for sexual offences and the recent breaches of registration laws. Whilst I have referred to a persistence of offending by the defendant it should be borne in mind that, in the scale of the variety of criminal behaviour which comes before the courts, the non sexual offending by the defendant would be assessed towards a lower end. That is not to diminish his responsibility but experience suggests that his pattern of offending (other than the sexual crime) is comparable to that of many others of deprived background, limited intellect, personality defect and psychological handicaps which are traits shared by the defendant. 71 Section 17 (4) (i) comprehends the use of any relevant information. 72 I have made reference to a delay in the defendant being able to commence an anti-libidinal drug course. He has, in the past and in the present proceedings, consented to undertaking this therapy. Whether in custody or released under supervision, it should be a condition that when medically appropriate, he should undertake suitable drug regime. Needless to say, the condition must recognize that drug ingestion should only take place when, and to the extent that qualified medical advisers authorize. 73 Ms Jenny Howell is available and willing to treat the defendant outside of custody. Her affidavit of 6 May 2008 shows that she has been adequately informed about the defendant in particular, she is aware of the diagnoses of paedophilia and anti-social personality disorder and the assessment of him as a high risk offender. She has read relevant affidavit evidence and some transcript of the interim detention hearings. I note that she does not appear to have seen the affidavit of Andrew Kaw but the CBMT which he proposes is virtually at an experimental stage. 74 I am satisfied that Ms Howell has the qualifications and experience to provide the defendant with appropriate treatment. She has previously provided assessments to other offenders categorized as high risk and she has treated a third. As I have observed, four attempts at group based therapy have not led to a satisfactory outcome for the defendant and, therefore, for the community. The one-to-one treatment which Ms Howell proposes has never been attempted. In my view, it is time that it was. 75 Ms Howell's affidavit recognizes the need for the treatment regime to be developed in conjunction with and in consultation with a treating psychiatrist. Dr Allnutt gave evidence of his willingness to assist. Her evidence also outlines an anticipated routine and the goals that would be set. 76 There was reference to the funding of this treatment. The State has not put before the Court any figure representing the cost of keeping the defendant, as would be the result of upholding the State's submission, in custody. Of course, I would not expect a calculation specific to the defendant but I do not ignore that there are from time to time publications of the asserted daily cost of keeping any prisoner in custody. Such statistical material is routinely made public. It is difficult to imagine that such average cost would be lower than the fees needed for treatment of the defendant by Ms Howell and Dr Allnutt (assuming he were to be the consulting psychiatrist). 77 The State did, however, put some evidence before the Court relating to funding. There are two affidavits by Ms Booby, presently the Acting Executive Director of Offender Services and Programmes with the Department of Corrective Services. Ms Booby has several tertiary qualifications including Arts degrees with Psychology majors. She is not presently a registered psychologist and deposed that at the time she practised as such there was no registration requirement. There is no detail of what practice she did engage in but the registration requirement is now of some standing so that she presumably practised some time ago. Her evidence shows that she commenced employment as a probation and parole officer and she has followed a career path in the Corrective Services bureaucracy. 78 Her second affidavit of 9 May 2008 deposes to a conversation on the previous day with the Commissioner in which he expressly delegated to her a decision whether or not the Department will pay for this treatment (of the defendant outside of custody) "as a means of protecting the public". The conclusion I therefore reach is that there are funds that can be made available for payment of treatment of the defendant outside custody. 79 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. 80 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. 81 It is of interest, and instructive, to advert to the Second Reading Speech of the Minister when introducing the Bill which became the 2006 Act. It included: "The Bill addresses this problem by allowing this small group of high risk offenders to be placed on extended supervision, or, only in the very worst cases, kept in custody." 82 Extremely serious though the defendant's offending was, there was no attempt by the State to seek to demonstrate that he fell into a category of "the very worst cases" among high risk offenders. 83 Of course, it is the statute and not the Minister's speech which declares the law and the notion of "the very worst cases" does not find expression in the statute. The speech, however, articulates an appropriate sentiment concerning the delicate topic of detention without conviction for offence. I recognize that statutory authority for preventive detention is not unique but that does not diminish requirements of care and caution in application. 84 I observe that the Minister also made reference to the introduction of schemes elsewhere. He mentioned that, although Queensland and Western Australia legislated for possible preventive detention, Victoria and New Zealand had legislated so that a previous offender whose sentences are completed but is deemed to pose a future risk may be kept under extended supervision but not detained in custody. 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. 86 I am satisfied to a high degree of probability, having regard in particular to the assessments of Professor Greenberg and Dr Allnutt as well as the historical material exhibited to various affidavits, that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. I am 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. I summarize some of my principal reasons for that lastmentioned conclusion. 87 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. 88 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. 89 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. 90 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. 91 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. 92 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. 93 I order that the defendant be subject to extended supervision within the meaning of the Crimes (Serious Sex Offenders) Act 2006 for a period of five years and during that period to comply with the following conditions:

State of New South Wales v Brookes

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