Consideration of Section 17(4) Factors
24 I turn to a number of the factors referred to in s.17(4) of the Act for the limited purpose of the preliminary hearing under s.15(4) of the Act. I will refer to factors which are presently relevant (but not in their statutory order).
25 Section 17(4)(h) requires consideration of the Defendant's criminal history including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere and any pattern of offending behaviour disclosed by that history. The Defendant has a number of convictions for sexual offences. For present purposes, I will refer solely to the offences which were before the New South Wales Court of Criminal Appeal in the judgment of 20 February 1997 to which reference has been made.
26 In the early 1990s, the Defendant committed a series of serious sexual assault offences. One group involved offences against a seventeen-year-old girl, TJK, being four charges of aggravated sexual intercourse without consent, the aggravation in each case being a threat to inflict actual bodily harm with a knife. A further set of charges related to an incident involving an eighteen year old girl, CH. The Defendant pleaded guilty to assault occasioning actual bodily harm upon that victim.
27 A further group of offences were committed in Queensland. These offences were described in the decision of the New South Wales Court of Criminal Appeal and involved offences committed two days after those committed by the Defendant against TJK. As with the other groups of charges, the Defendant had abducted a young woman and taken her to an isolated place where sexual offences were committed against her. In the Queensland case, this involved the placing of a plastic bag over the woman's head (tied by a rope around the neck) and other threats.
28 The Defendant was sentenced in the District Court in New South Wales to terms of imprisonment for the New South Wales offences against TJK and CH, involving a head sentence of twelve years and a non-parole period of nine years. That sentence was increased, on a Crown appeal, by the Court of Criminal Appeal so that a head sentence of sixteen years was imposed with a minimum term of twelve years and an additional term of four years, with the minimum term to commence in November 1992. It is that sentence which the Defendant is serving and which is approaching its expiry by effluxion of time.
29 There are other entries on the Defendant's record, involving both offences of a sexual nature and offences of a non-sexual nature. It is not necessary, for present purposes, to outline the nature of those offences.
30 With respect to the very serious offences committed upon the young woman in Queensland, I should indicate that a lengthy sentence of imprisonment was imposed in November 1992 by Ambrose J in the Supreme Court of Queensland, that sentence being the subject of an unsuccessful appeal by the Defendant to the Court of Appeal of Queensland.
31 The Plaintiff submits, by reference to the pattern of the Defendant's offences, that there is a history of sadistic violence committed against young women in terrifying circumstances which involved threatened and actual violence and threats to kill. The evidence on this application supports that submission.
32 Section 17(4)(c) and s.17(4)(d) require the Court to consider the results of any assessment prepared by a psychiatrist or psychologist as to the likelihood of the Defendant committing a further serious sex offence, the willingness of the Defendant to participate in any such assessment and the level of his participation in such assessment, and also the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to the Defendant committing a further serious sex offence.
33 There is before the Court a risk assessment prepared by Ms Young, a psychologist with the Department of Corrective Services. That report addresses both a statistical actuarial risk assessment (by reference to the Static 99 actuarial risk assessment tool) and also a dynamic risk assessment with respect to subjective factors applicable to this Defendant. Ms Young expresses the opinion that the Defendant presents a high risk of sexual recidivism.
34 Dr Samson Roberts, psychiatrist, has prepared a report annexed to his affidavit which, as I understand it, is the product of a document examination only. Dr Roberts expresses the opinion, based on the matters set out in some detail in his report, that the Defendant presents a high risk of re-offending.
35 Mr Ware, psychologist, is the Acting Director, Sex and Violent Offender Therapeutic Programs within the Department of Corrective Services. He refers, amongst other things, to the reports of Ms Young and Dr Roberts, and repeats the opinions expressed by those persons. There is nothing in Mr Ware's report that undermines the opinions of Ms Young or Dr Roberts. To the contrary, the content of Mr Ware's affidavit tends to fortify those opinions.
36 Accordingly, the evidence before the Court relevant to the factors in ss 17(4)(c) and (d) is supportive of the conclusions submitted by the Plaintiff on this application.
37 Section 17(4)(e) requires consideration of the extent to which the Defendant has undertaken treatment or rehabilitation programs and his experience of those programs. The Defendant undertook a significant part of the CUBIT program but did not complete it. It is not necessary, for the purpose of this application, to expand upon the reason for that. The Defendant, however, was one of three offenders, each of whom was a CUBIT non-completer, who did participate in a new sex offender program at the Goulburn Correctional Centre, in his case between March and September 2007. The program included three-hour group sessions held fortnightly. The report of that program observed that, whilst the Defendant actuarially presents as a high risk of re-offending, it is felt that his dynamic risk issues have been addressed as far as possible within the custodial environment.
38 Since the revocation of the Defendant's parole and his return to custody, he has undertaken a limited number of individual sessions with Departmental psychologists.
39 In the risk assessment report of July 2008, Ms Young identifies the Defendant as having significant outstanding treatment needs. In addition, the Defendant has thus far declined to be assessed by Justice Health as to his suitability for anti-libidinal medication.
40 It is the fact, then, that the Defendant has undertaken programs to an extent whilst in custody, but reservations have been expressed as to the point reached by the Defendant in that respect. I say no more on this application.
41 Section 17(4)(f) requires consideration of the compliance with any obligations to which the Defendant has been subject whilst on release on parole. The Plaintiff points to the Defendant having three separate convictions for breaches of probation orders in Queensland. Those, of course, were some years ago. It is the fact, however, that the Defendant has been in custody since the early 1990s, except for his relatively short period on parole at the end of last year and the beginning of this year.
42 The Plaintiff points to the fact that the offences in New South Wales and Queensland (referred to at [26]-[31] above), were all committed whilst the Defendant was on probation.
43 Reference is made to the recent revocation by the State Parole Authority of the Defendant's parole. The Plaintiff points to an incident at a McDonalds restaurant on 27 March 2008, in which it is said the Defendant acted in an inappropriate manner, including giving his mobile contact number to two teenage girls. Ms Young addresses this incident in her risk assessment report. It is a significant issue, being an incident occurring whilst the Defendant was at liberty, which bears upon the risk assessment.
44 Accordingly, factors relevant under s.17(4)(f), to the extent that they need to be considered for present purposes, do not assist the Defendant and support the Plaintiff's application.
45 Section 17(4)(g) requires consideration of the level of the Defendant's compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004. The Defendant was required to register under the 2000 Act, having regard to the age of one of his victims. The report of Ms Young reveals that, for the limited period of time during which he was at liberty on parole, the Defendant expressed some frustration regarding his compliance obligations. However, he did not fail to comply with any obligation during that period of time.
46 I return to s.17(4)(a), the safety of the community. This is the primary object of the Act: s.3(1). All of the matters to which I have made reference as arising for consideration under s.17, may be grouped for the purpose of consideration of the safety of the community.
47 The Plaintiff points to the Defendant's criminal history, including a pattern of assaults on women who are strangers to him involving actual and threatened sadistic violence, the history of non-compliance with parole and probation orders, the evaluation of his static and dynamic risk factors, and the assessments that are in evidence which place him in the high risk category in terms of sexual re-offending (having regard to both the static and dynamic factors). All of these factors, it seems to me, operate in favour of the Plaintiff on the present application with respect to the objective of safety to the community.