State of New South Wales v Harrison [2008] NSWSC 1306 | Case summary

State of New South Wales v Harrison [2008] NSWSC 1306 | Case summary | Zoe

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(i) Affidavit of Anne Maree Young affirmed 16 October 2008; (ii) Affidavit of Dr Samson Frederick Roberts affirmed 16 October 2008; (iii) Affidavit of Joanna Cheng Cheng Murray affirmed 10 October 2008; (iv) Affidavit of Joanna Cheng Cheng Murray affirmed 17 October 2008; (v) Affidavit of Joanna Cheng Cheng Murray affirmed 25 October 2008; (vi) Affidavit of Jayson Barry Ware affirmed 20 October 2008; (vii) Affidavit of Adam Simon affirmed 12 November 2008; (viii) Confidential affidavit of Adam Simon affirmed 12 November 2008; (ix) Affidavit of Darelle Williams affirmed 13 November 2008. 4 The plaintiff also tendered three volumes of documents additional to documents otherwise exhibited to the affidavit of Anne Maree Young which comprise documents produced by government agencies, including the Department of Corrective Services and the State Parole Authority, pursuant to orders issued by the Attorney General under s 25 of the Act. Documents have also been obtained from Queensland Corrective Services and the relevant Queensland courts. 5 On behalf of the defendant Mr Strickland SC took objection to certain paragraphs of the affidavit evidence and various parts of the documentary evidence where the deponents and departmental officers purported to express their views about the defendant's likelihood of reoffending or views concerning his behaviour within the prison system and/or his participation and progress through various custody based treatment programs. The principal objection was that the opinions offend against s 79 of the Evidence Act 1995 with the secondary objection being that parts of the evidence offend against the rule against hearsay. 6 Mr Strickland relied upon s 21 of the Act which provides as follows: "Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct , are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings." (emphasis added) 7 Mr Strickland also referred me to Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575 where corresponding legislation in Queensland survived a constitutional challenge. After considering the Act and its operation the Court held, in summary, that authorising the preventative detention of a person in the interests of community protection did not authorise or empower the Supreme Court of Queensland to act in a manner that was inconsistent with its judicial character. One of the features of the Queensland legislation which served to differentiate it from the legislation which was struck down as invalid in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 was that the rules of evidence apply to applications for an offender's continued detention. So it was argued the rules of evidence ought to be applied strictly to applications for continued detention or extended supervision under the New South Wales legislation. It was further submitted that section 21, operating as a procedural safeguard to protect against the usurpation of judicial power by the legislature, is a safeguard which this Court should be concerned to apply strictly. 8 That would undoubtedly be so were it not for the operation of s 25(3) of the Act, which has no counterpart in the Queensland Act. 9 Section 25 provides: 1) The Attorney General may, by order in writing served on any person, require that person to provide to the Attorney General any document, report or other information in that person's possession, or under that person's control, that relates to the behaviour, or physical or mental condition, of any sex offender. (2) A person who fails to comply with the requirements of an order under this section is guilty of an offence.

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(ii) …the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises)... 18 On 20 February 1997 the Court of Criminal Appeal upheld a Crown appeal against the inadequacy of sentences imposed on the defendant in the District Court on 13 February 1996. The defendant was re-sentenced to imprisonment for 16 years with a minimum term of 12 years, inter alia, for four counts of aggravated sexual intercourse without consent with the aggravating circumstance in each case being a threat to inflict actual bodily harm with a knife. 19 The offences were charged as breaches of s 61J of the Crimes Act which, at the relevant time, provided: (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a serious intellectual disability. 20 The defendant's conviction and sentence for the offences of aggravated sexual intercourse without consent qualify him as a person against whom substantive orders might be made under the Act. There was no submission to the contrary. 21 What emerged as an issue of some significance in the proceedings, however, was the fact that since the defendant's criminal history does not include offences against children, and his psychiatric profile does not suggest any sexual interest in children, the predictive exercise which s 17 of the Act required me to undertake was referable to only three offences under Division 10 of Part 3 of the Crimes Act namely s 61J, s 61M (aggravated indecent assault) and 80A(2A) (sexual assault by forced self-manipulation in circumstances of aggravation) and that the static risk factors, and to a lesser extent, the dynamic risk factors were of no utility in assessing the risk of the defendant reoffending by the commission of offences of that particular kind. Largely because of what I consider to be the very significant probative force of the evidence of Dr Ellis and Dr Roberts on the question of the risk of this defendant reoffending by committing a serious sex offence of the relevant kind, the difficulties which that predictive exercise might otherwise present have been overcome. I will refer, in detail, to Dr Ellis' evidence in due course. The risk of the defendant committing a further serious sex offence 22 In order to engage the jurisdiction under the Act allowing for the making of either an extended supervision order under s 17 (2) or a continuing detention order under s 17(3) the plaintiff has the burden of satisfying me, to a high degree of probability, that the defendant is likely to commit a further serious sex offence.

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24 In addition to assessing the risk of reoffending, before a continuing detention order under s 17(3) might be made the plaintiff has the burden of satisfying me, to a high degree of probability, that adequate supervision would not be provided by an extended supervision order. In Tillman v Attorney General of the State of New South Wales [2007] NSWCA 327; 178 A Crim R 133 Mason P said at [6]: "If the Court perceives itself able to devise a regime of extended supervision that will make it unlikely that the particular offender will relevantly reoffend, then the combined effect of subsections (2) and (3) is that the lesser control is to be chosen. But if reoffending remains likely despite an extended supervision order, then the power to impose the more stringent control of a continuing detention order is engaged." 25 In Tillman the meaning of the word "likely" in both ss 17(2) and (3) was considered. Giles and Ipp JJA said at [89]-[90]: "89 Accordingly, we would hold that the word "likely" in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent. The remarks Bell J made when articulating the test she intended to apply are to be understood in this sense. Her Honour said (at [29]): "I have approached the determination in this case upon the basis that 'likely' in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence." 90 Accordingly, for the reasons stated, we differ, with respect, from what McClellan CJ at CL said in Winters on this issue. As well, we do not understand Bell J to have meant "probable" as meaning "more probable than not". In our opinion, nothing her Honour said suggests this inference. For the reasons we have stated, we would hold that, in adopting this more limited approach, her Honour was correct. For the reasons we have explained, while "likely" means "probable", it does not mean "more probable than not"." And at [92]: "The difference between likelihood in the sense of a high probability but not necessarily more probable than not, and likelihood as something more probable than not, may not be great. Expressed as percentages, which is incorrect because it suggests a mathematical precision which is unattainable and is an unhelpful approach, transition from 49 per cent to 51 per cent is not the key to application of ss 17(2) and (3)." 26 What is comprehended by the concept of adequacy within the expression adequate supervision in s 17(3) of the Act is yet to be authoritatively decided (see Winters v Attorney General of New South Wales [2008] NSWCA 33 at [47] per Giles JA). The plaintiff submitted that, at the very least, it must be supervision that reduces the risk of the defendant reoffending below the level of likely to reoffend as that term is understood by reference to the reasoning of Giles and Ipp JJA in the Court of Appeal in Tillman. 27 In concluding that there was a risk of the defendant reoffending, but that the supervision proposed by the plaintiff would reduce that risk in accordance with the test provided for in the authorities, so as to justify making the extended supervision order, I accepted that the time at which the issue of the adequacy of the proposed supervision falls to be assessed is when the Court is contemplating making such an order. It was submitted by the plaintiff that the temporal connection was particularly important in this case. 28 Although it was accepted by the plaintiff that anti-libidinal medication has the potential of reducing the risk of the defendant reoffending, neither Dr Ellis nor Dr Roberts had been advised that the defendant would provide informed consent to receiving the treatment (despite his assurances under oath that he would do so) and, even if his consent was forthcoming, until the defendant has been assessed as a suitable candidate for the medication there was a risk that the use of anti-libidinal medication might be otherwise contraindicated on physiological grounds. For these reasons the plaintiff submitted that the question of the defendant's candidacy as a recipient of the medication should be assessed in a custodial environment, and that a continuing detention order ought be made for a limited period to allow that assessment to be made. The plaintiff urged me to adopt that approach given that if he is released under extended supervision, and either refuses his consent or proves not to be a suitable recipient for the treatment, there is a real question whether s 13 of the Act permits me to revoke an extended supervision order and order his return to custody under a continuing detention order. 29 Mr Strickland submitted that this approach skews the test provided for in s 17 of the Act, in that an order for continuing detention should not be made where supervision in the community is otherwise adequate and that the expediency of ensuring the jurisdiction of the Court was not compromised was an irrelevant consideration. 30 I do not need to resolve that question since, as I make clear later in this judgment, I am satisfied that the defendant's candidacy can be adequately assessed in the community in circumstances where, as Dr Ellis' evidence bears out, the risk of him being ineligible is outweighed by the prospect of the medication positively reducing the risk of him reoffending. The defendant's criminal history 31 As reflected in the table below the defendant has a history of convictions in both Queensland and New South Wales for multiple and serious sexual offences committed against young women. Some offences were committed whilst on parole. A number of the offences set out in the table, although not identified as sexual offences, contain sexual elements which are reflected in the circumstances in which the particular offence was committed.

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Date of offence Age Offence Date of conviction Sentence Armed robbery x 2 - 7 yrs 24/1/85 16 Indecent Assault x 2; Steal with Actual Violence whilst Armed with an Offensive Weapon; Deprivation of Liberty 3/11/92 Indecent assault x 2 - 5 yrs Toowoomba Qld Qld Deprivation of liberty - 2 yrs All sentences concurrent 4/1/88 & 10/12/87 19 False Pretences x 2 27/1/88 120 hrs community service Bet 1 & 30/11/87 Stealing Qld 18 mths probation 15/6/89 20 Steal with Actual Violence whilst Armed with Dangerous Weapon* 2/2/90 6 mths imprisonment Bribie Island Qld (Victim a 22 year old woman) Qld 3 yrs probation 28/12/90 22 Assault Occasioning Actual Bodily Harm* 30/7/91 240 hrs community service Southport, Qld Qld 3 yrs probation Assault Occasioning Actual Bodily Harm, 13/2/96 16/7/91 (Victim 18 years of age); 6 mths imprisonment Wooyung, NSW 23 Assault, Beat and Ill-Treat NSW 3 yrs probation (Victim 19 years of age)* 2nd offence taken into account Form 2 15/4/92 23 Knowingly Use Telecommunications Service to Harass* 27/5/92 Fined $250 Qld Qld 13/2/96 11/7/92 23 Sexual Intercourse with Intent to Inflict Actual Bodily Harm x 4; Compel Person by Threat to Engage in Self-Manipulation; (Victim 17 years of age)* NSW 16 yrs imprisonment Tyalgum & Hastings Point, NSW 20/2/97 12 yrs minimum Crown Appeal upheld Deprivation of liberty - 3 yrs 13/7/92 23 Deprivation of liberty; Indecent Assault with Circumstances of Aggravation x 3; Steal with Actual Violence whilst Armed with an Offensive Weapon; Stealing* 23/11/92 Aggravated Indecent assault x 3 - 10 yrs Toowomba, Qld Qld Steal with actual violence - 18 mths All sentences concurrent

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He was convicted in July 1991 of assault occasioning actual bodily harm, despite the denying the attack, and was fined and sentenced to 120 hours community service." The likelihood of the defendant reoffending 39 The plaintiff submitted that it has discharged the onus of establishing the high probability of the defendant committing a further serious sex offence if not kept under supervision, and that adequate supervision cannot presently be provided by an extended supervision order such as to warrant his continued detention. 40 In summary, the plaintiff emphasised that the defendant's criminal history is characterised by the commission of serious sex offences over a period of seven years from 1985 to 1992, involving actual and threatened sadistic violence against young women who were strangers to him. The plaintiff also emphasised that this pattern of offending is accompanied by a disturbing pattern of escalating violence and that the unchallenged evidence of Dr Ellis and Dr Roberts established that this pattern of offending is directly and causally related to paraphilia, a mental disorder which is characterised by sexual sadism. The defendant's condition, it was submitted, is of such a chronic nature that it is expected to persist for many years and to predispose him to criminal conduct of the very kind comprehended by the offences which qualify as serious sex offences under the Crimes Act. 41 Quite apart from his psychiatric profile, the plaintiff also relies upon the fact that the defendant falls within a high risk category of reoffending having regard to both actuarial and clinical assessments. His history of breaching parole obligations and, most recently, misconducting himself in such a way as to result in the parole granted in December 2007 being revoked in April 2008, is also said to contribute materially to the likelihood that extended supervision will be inadequate to reduce the risk of him reoffending. 42 On the defendant's behalf it was submitted that the evidence is insufficient to support a high probability that he is likely to commit a further serious sex offence and, accordingly, that the Court has no jurisdiction to make either a continuing detention order or an extended supervision order. In the alternative, even were I satisfied of the risk of him reoffending, I should nevertheless be satisfied that there is adequate supervision in the community to protect against that risk such as to warrant the making of an extended supervision order. 43 The defendant submitted that absent an admission by the defendant of his intention to commit a further serious sex offence, or the recent commission of such an offence, the Court could only make a finding on the high probabilities if there was expert evidence to support that finding. The defendant submitted that there was a critical distinction between the defendant being in a group of persons with a high risk of sexually reoffending and being in a group of persons with a high risk of reoffending by the commission of a serious sexual offence. It was submitted that for this reason I should give no weight at all to the actuarial assessments of risk as they do not discriminate between persons who have committed serious sex offences and those who have not. 44 In so far as Dr Ellis' diagnosis of paraphilia is concerned, the defendant submitted that there is no evidence of the rates of recidivism of people who suffer from that condition and, moreover, no evidence of recidivism rates of persons who suffer from that condition and who have successfully completed courses such as CUBIT and maintenance programs available within the prison system. Finally, the defendant sought to take comfort from the fact that he had been on parole for three and a half months before his parole was revoked and had not committed any offence at all, much less a serious sex offence, and that the conduct which resulted in the revocation of his parole did not bear relevantly at all upon the questions raised by the plaintiff's application for substantive orders. The Court-appointed psychiatrists

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45 Dr Ellis conducted a psychiatric examination of the defendant in accordance with orders made by Johnson J on 3 November 2008 pursuant to s 7(4) of the Act. The examination extended over for a period of two hours on 6 November 2008. Dr Roberts also examined the defendant on 13 November 2008. Their reports differ only on the basis of emphasis. To avoid repetition I intend to refer in detail to the evidence of Dr Ellis adding any point of emphasis made by Dr Roberts where relevant. 46 In the context of addressing the likelihood of the defendant committing a serious sex offence if released into community and not kept under supervision, Dr Ellis was asked to include details of any psychiatric diagnosis or psychological condition that he considered material. He was also asked to offer an opinion as to the relative merits of the defendant's continued detention in contrast with his management outside the gaol system, taking into account the safety of the community and the defendant's likely capacity to benefit from psychological and psychiatric treatments in the community. He was also invited to offer an opinion as to the necessary components of any management plan that might be put in place were the defendant to be subject to an order for extended supervision. Finally, he was asked to express an opinion as to the availability of pharmacological treatments, including anti-libidinal medication, and the defendant's physiological suitability for such treatment, inclusive of any potential limitations on the utility of the treatment in his case. 47 Dr Ellis and Dr Roberts were provided with folders of documents including an affidavit from Ms Young, a senior specialist psychologist, a report of Dr Delaforce, a forensic psychiatrist, dated October 2004, various psychological reports prepared by Corrective Services psychologists between June 2002 and July 2008, thirteen Probation and Parole reports and pre-sentence reports dated between August 2004 and March 2008, various documents relating to the defendant's criminal history, inclusive of sentencing remarks from four sentence proceedings between January 1985 and July 1992 and, finally, various documents that were prepared by the defendant which were entitled "Autobiography and Disclosure". Dr Ellis was also provided with an affidavit from Dr Roberts prepared before any clinical assessment of the defendant by him. 48 In so far as the defendant's psychiatric history is concerned, Dr Ellis reported that although the defendant came into contact with psychiatrists as a child as a result of accompanying his mother to consultation where she was a patient, and although he has seen psychiatrists for the purposes of preparing assessments for various court processes, he has never engaged a psychiatrist privately or been subject to psychiatric treatment in the community. He has not been admitted to a psychiatric hospital. 49 Dr Ellis noted that the defendant's criminal history commenced at age 16 and concluded at age 23 when he was sentenced to 16 years imprisonment with a non-parole period of 12 years. Dr Ellis also noted that whilst in custody the defendant was found in possession of pornography and noted the circumstances comprehended by "the McDonald's incident", which precipitated his parole being revoked in April 2008. 50 Dr Ellis observed that the defendant's early childhood development was marked by considerable friction within the single parent home as a result of his mother's general psychosocial instability and fluctuating mood, which resulted in the defendant being the recipient of frequent outbursts of extreme and uncontrolled violence. He was placed in foster care from time to time. The defendant reported that his mother would often bring different men into the home and engage in sexual intercourse in his presence. He said he thought that his mother was engaged in prostitution. 51 His experiences at school were marred by poor concentration. He was an isolate and the victim of frequent bullying. He ultimately left home at the age of 16. He initially lived on the streets and in relatively remote rural areas before he enlisted in the army reserve. He was trained in infantry techniques. He achieved the rank of private. Although he was in the army for three or four years he did not see any active service. 52 Since his incarceration he has completed a Bachelor of Vocational Education and Training at Charles Sturt University. His longest period of employment was whilst on parole between December 2007 and April 2008. 53 In Dr Ellis' opinion the defendant met the diagnostic criteria for sexual sadism and masochism (paraphilia). Doctor was of the view that whilst it may be that in his current custody he is not exposed to the kind of stimuli he has been exposed to in the community and, for that reason, his disorder may be currently quiescent, his observed behaviour over time indicated that, contrary to his denials, he has been sexually aroused by stimuli associated with sadism and masochism. He also reported that the defendant's reported impotence within normative sexual relationship with his current partner as consistent with a diagnosis of paraphilia. 54 The defendant's psychosexual history is a significant feature of Dr Ellis' overall assessment both of the risk of him reoffending and treatment options. In particular, he placed considerable weight on the defendant's denials that he fantasised about sadomasochistic material and/or experienced sexual arousal from such material. When Dr Ellis put to him that his behaviour as a sexual offender, across the range of his sexual offending, was typical of sadomasochism, including pain being inflicted on himself and pain, humiliation and suffering being inflicted on others, the defendant informed Dr Ellis that he did not feel he was aroused by this behaviour and that his erection and ejaculation at these times were an unrelated coincidence. Dr Ellis considered that this was at sharp variance with the material documenting his past offending. 55 The defendant also maintained that he does not fantasise about his previous offending despite describing previous thoughts with what Dr Ellis described as an increasingly elaborate and preoccupying quality. Dr Ellis regarded these thoughts as indicative of paraphilic fantasy and the defendant's inability to connect these thoughts with his sexual behaviour as indicating a gap in insight. Dr Roberts was of the same view. 56 Despite the fact that the defendant did not display any gross lack of judgment in the interview, was able to acknowledge that the crimes he had committed were dreadful and was able to empathise with the victims that had suffered at his hands, possessing pornography as an inmate and the difficulties he experienced in engaging in a genuine sense with providers of therapy in custody-based programs, indicated to Dr Ellis that over the long term his judgment in therapeutic supervisory situations is impaired. 57 Dr Ellis noted that Corrective Services reports rated the defendant at 7 on the STATIC 99 scale placing him in the "high risk" category. On the question of the risk of the defendant committing further sexual offences by reference to the actuarial assessment Dr Ellis said: "With current risk assessment technologies in behavioural science it is not possible to determine whether an individual person will reoffend with a sexual offence. Actuarial measures such as the STATIC 99 are able to allocate individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons within the group as reoffending…The difficulty with the use of this sort of instrument is that it does not discriminate between those in a particular risk group who do reoffend and those who do not…" 58 Dr Ellis also noted the defendant had been assessed for personality and behavioural patterns of psychopathy with the Hare Psychopathy Checklist (PCL-R) on two occasions in 2002 and 2005, the former by a Corrective Services psychologist and the latter by a psychologist in private practice. Dr Ellis emphasised that PCL-R is not a psychiatric diagnosis but the identification of a personality style or type which has been associated with violent and general recidivism. While he conceded that psychopathy measured by PCL-R is a modest predictor of sexual recidivism generally, he noted that there is evidence that psychopathy, in combination with sadistic sexual arousal, is associated with high rates of sexual recidivism. 59 Dr Ellis was of the view that the most important clinical factor relating to the risk of the defendant reoffending as a serious sex offender is the diagnosis of paraphilia and other evidence of deviant sexual arousal. His offences also have a repetitive quality to them providing a clear nexus between thoughts and behaviours and the commission of the criminal offences. In addition, Dr Ellis was also of the view that the defendant's inability to appraise his current relationship as unstable is a factor of concern in the context of the risk of him reoffending, particularly given that prior offences occurred at times of relationship dysfunction. 60 Overall, in considering the actuarial and clinical parameters, Dr Ellis was of the firm view that the defendant would be considered to be in a group of persons at a high risk of sexually reoffending. He accepted that it was for me to determine whether in all the circumstances the fact that the defendant was within a high risk category after clinical appraisal met the legal threshold of risk so as to enliven the jurisdiction to order his continued detention or extended supervision. 61 The glaring and telling lack of insight into the sexual dimension to his offending, revealed as recently as November this year in a clinical assessment undertaken by Dr Ellis, coupled with the diagnosis of a chronic and relapsing disorder that is causally connected to his offending, persuade me that without treatment and supervision there is a high risk of the defendant committing a serious sex offence. His conduct whilst at liberty on parole reinforces the conclusion that I have reached. The defendant is released to parole

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69 On 1 April 2008, following an incident at a McDonald's restaurant in Bathurst on 27 March 2008, the defendant's parole was revoked on the stated basis that he was assessed as unable to adapt to normal lawful community life. The precipitating event was referred to in the proceedings as "the McDonald's incident". It involved the defendant approaching a table in a McDonald's restaurant at Bathurst where two young women were seated and giving them his name and contact phone number on a piece of paper with a request that they give the number to a third young woman who was in the toilet. The young women notified the police. Although the Probation and Parole report dated 31 March 2008 also noted that the defendant made "lewd" gestures by fondling his groin, objection was taken to this aspect of the incident being taken into account in the proceedings. In the result, since the source of the information could not be verified, I disregarded it. In any event, the significance of the incident in so far as the expert witnesses have interpreted it was not the making of the so-called lewd gestures but the fact that the defendant approached the young women at all. 70 The incident, together with the defendant's account of what occurred on the one hand and the views of the experts as to what it revealed about the risk of his reoffending on the other, assumed considerable importance in the proceedings for a number of reasons. 71 At the outset it was the event that precipitated the defendant's return to custody. This in turn provided the statutory foundation for the plaintiff to apply for his detention beyond his release date under the regime provided for under the Act. In addition, while the static and dynamic risk factors to his reoffending have not changed whilst at his liberty, the experts were invited to comment upon what the incident revealed about the defendant's continued susceptibility to risk and whether his apparently positive responses to various forms of cognitive behaviour therapy in custody should be viewed with some caution. In addition, the defendant's compliance with his parole conditions is one of the matters I am required by s 17(4)(f) of the Act to take into account in determining whether to make a continuing detention order or an extended supervision order. 72 The defendant first discussed the McDonald's incident during an interview with Ms Young on 5 June 2008 after his return to custody. 73 Ms Young holds the position of a senior specialist psychologist with the Community Offender Services Division of the Department of Corrective Services. The Community Offender Services Division also includes Probation and Parole.

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77 In his affidavit, confirmed by him as accurate under cross-examination, he claimed that he first wrote his details on a piece of paper in the restaurant to call Ms Cowley's bluff, hoping that she would see what he was doing. Ms Cowley claimed that she saw him write something down but didn't realise what he was doing at the time. To my mind, it is strange, to say the least, that were his motivations to call her bluff at that time by writing down his contact details that in the heat of the argument he did not openly flaunt what he was doing. Their joint account is that they then left the restaurant and went to the carpark where they continued to argue. The defendant then told Ms Cowley that he would walk back to work at which point she left in the car. The defendant said he then returned to the restaurant (for reasons that were neither obvious nor explained) and walked past the table where the young women were seated. He claimed that when he noticed that the young woman Ms Cowley had pointed out was not at the table, he impulsively handed the piece of paper (which for some other reason he still had in his hand) to the two remaining young women and asked them to pass it on to the their friend. 78 When questioned as to why he did this, given that Ms Cowley was no longer in the vicinity of the restaurant and that on his own account he had achieved his objective by writing the note in her presence, the defendant stated that he wanted to "have the last word". He subsequently conceded that had his only objective been to spite Ms Cowley there was no point in giving the note to the young women at all. When questioned further as to why he asked for the note to be handed on, the only explanation the defendant offered was that the note was intended for the young woman who had left the table. He repeatedly denied, however, that the reason he left the note for that particular young woman was because he was sexually interested in her or because he wanted her to contact him. I do not accept his denials. I consider that the high probabilities favour him deciding to write his details after Ms Cowley left and to leave them with the young woman, not in retaliation at Ms Cowley's quite inappropriate and provocative conduct earlier, but in an attempt to recover from the slight he had suffered when she revealed he was a sex offender in a public place, taunted him and then left him, and that he sought to achieve his objective by making an advance towards another and younger woman. When the young woman called him on the phone and openly rebuffed him, the probabilities favour the fact that he simply had no means to pursue her further as distinct from him consciously deciding not to pursue her.

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80 The defendant acknowledged that his conduct at the restaurant was wrong and when asked in his evidence to explain why he said: "It was wrong for a number of reasons. The first was that it perpetuated the argument I would have had with Kim. It was wrong to involve anybody else at all in our argument, let alone three young women, young girls. Given that they were girls, it was also wrong, given my background, to risk any opportunity of unnecessary risky behaviour and ultimately had they taken up the offer to call me and perhaps want to meet, unlikely as that was, the temptation is something somebody like me should always avoid." 81 I have no doubt that on one level, and in retrospect, the defendant appreciated, that his conduct was wholly unacceptable. However, I do not accept his evidence that the sole motivation in making the advance was in retaliation at Ms Cowley's treatment of him (although I accept that this may have been the trigger) or that that he realised, as he claimed, that his conduct was wrong within moments of leaving the note. Not only was his evidence and his demeanour as a witness disingenuous on this issue, were this to have been his belief I consider it probable that he would have disclosed to Ms Young the considerable risk his conduct presented when he consulted with her days later, and that he would have proudly declared that he had extracted himself from the risk as he did when he spoke to Dr Roberts in November 2008. Furthermore, were the defendant's motives purely retaliatory, and were his actions in approaching the women to be explained as simply impulsive and not a conscious and considered sexual approach, it is difficult to see why he did not inform Ms Cowley of what he had done until after he was returned to custody. If he genuinely believed that making the approach was wrong at the time I am unable to see why, when asked by Ms Cowley why he didn't report it to Ms Young, he offered the explanation that he had "simply forgotten about it" and in any event "didn't think it was wrong". Dynamic risk factors and the McDonald's incident

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82 In her evidence Ms Young confirmed that dynamic risk factors are related to sexual recidivism but that they are factors that can change over time and are therefore amendable to change. The capacity to self-regulate is a factor of some dynamism. She paid particular regard to the McDonald's incident in that context when assessing the impact of the defendant's dynamic risk factors. However benign the incident appears in retrospect Ms Young was of the view that: "Whatever Mr Harrison's motivations, to approach teenage girls and give them his phone number was definitely a high risk situation and demonstrated a testing of known risk factors. It is of significant concern that Mr Harrison, despite considerable treatment, was not able to self-monitor his reactions in this situation, think through the possible consequences of his behaviour and intervene in this situation. Mr Harrison's tendency to still engage in high risk behaviours even when the consequences of such behaviour have a negative impact on his life and his relationship with others, and (that it) is so intrinsically linked to his sexual offending, remains a significant concern." 83 While she did not regard the McDonald's incident as indicating that the defendant had formed the intention to reoffend, she was of the view that he had placed himself in a very risky and vulnerable situation given the risk factors that had been identified for him in the course of extensive custody-based treatment programs, risk factors that he claimed in his discharge from those programs to recognise and to have formed established strategies to neutralise or minimise were they to present post release. 84 Ms Young reported that the defendant has a history of testing known risk factors to see what he can get away with, and has an established way of presenting himself as self aware such that he can articulate the reasons why certain behaviour is wrong, risky or unacceptable without being able to translate that beyond the theoretical. I note that Dr Roberts and Mr Ware, psychologist and Acting Director of the Sex and Violent Offender Therapeutic Program, offer the observation that while the defendant gives the appearance of having a firm grasp of all treatment concepts, and is able to articulate clearly what he should do, if and when he is presented with various stressors to his offending behaviour, he has a limited capacity to integrate his theoretical knowledge. I gained this same impression when the defendant was giving evidence. 85 Dr Roberts notes in his most recent report that: "Whether his inability (to integrate the knowledge) is reflective of his limited capacities in this regard, or a conscious disregard for that which he was taught in programs, the likely benefit derived from future programs is considered very limited." 86 Ms Young was of the view that the defendant's behaviour in the McDonald's incident supported the conclusion that he had moved in accordance with the orthodox path associated with reoffending, even if he did not pass beyond a preliminary stage. She accepted the following proposition put to her in cross-examination: "Within the offence cycle offenders follow different pathways to relapse, but there is a relatively predictable sequence of precursors leading up to offending. The cycle originates in negative emotions, moves to fantasy and cognitive distortions, progresses to planning the offence and finally results in acting out the fantasy or implementing the plan." 87 On the assumption that he was motivated to approach the young women out of revenge, and because he was angry with the attitude of his partner and his relationship generally, it was accepted by Ms Young that the McDonald's incident involved negative emotions. She conceded that there was nothing to indicate that the defendant's behaviour had reflected any level of fantasy or cognitive distortion. She did, however, emphasise that the risk of reoffending was not simply reflected in his failure to adjust his behaviour to what were known risk factors for him, namely dealing poorly with conflict in relationships giving rise to impulsivity, she also expressed concern as to how he might have conducted himself were the young women to have welcomed his advances. In light of all the material, in particular his criminal antecedents, his modus operandi in the concentrated offending in 1991 and 1992 and the views of the Court-appointed psychiatrists, I share Ms Young's concern.

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88 As to the influence of other dynamic factors bearing upon the risk of reoffending, from the information Ms Young had available to her from various sources, together with the information obtained from the defendant in the written tasks he completed in CUBIT, Ms Young assembled detailed background information about the defendant's family life and schooling that was generally coincident with the information that the defendant provided to Dr Ellis and Dr Roberts. 89 In so far as his sexual development and the emergence of sexual deviancy was concerned, Ms Young noted that the defendant's teenage sexual fantasies involved thoughts of forcing girls and women to be involved in sexual activity rather than engaging in consensual sexual activity, and that in his teenage years he appears to have learnt to use sex to help him cope with negative emotions or difficult situations. He also spent a lot of time fantasising about non-consensual sexual acts and masturbating to these images. His fantasies escalated in deviance and violence culminating in his offending criminally for the first time in 1985. In his CUBIT written work, the defendant openly revealed that he would approach sex workers and masturbate in front of them, or watch women in sport in a concealed location, and that he progressed to targeting female hitchhikers, driving them to isolated spots and demanding sex from them. 90 So far as his relationship history was concerned, Ms Young noted that it is replete with information relating to his manipulation of women with whom he had significant relationships. The defendant formed a relationship with Ms Cowley whilst he was serving his sentence which has current significance as a dynamic risk factor to his further offending. Ms Young also noted that the defendant's time in the correctional system has been marked by a number of contradictory reports. On the one hand he is described as accomplished, conscientious and a committed and trusted worker whilst others regard him as manipulative and engaging in inappropriate activities, including forming inappropriate relationships with female staff. 91 In the course of her report and her evidence, Ms Young set out in considerable detail her concerns, shared by the management team, as to the deteriorating relationship between the defendant and Ms Cowley over the three months of his parole and the risk that presents to him reoffending. It is not necessary for the purposes of this judgment that I chronicle the various incidents and events that were reported to Ms Young and the management team over the duration of his parole by both parties to the relationship. Suffice to note that so far as the various members of the management team were concerned, by March 2008 the relationship was assessed by them to be like a "pressure cooker". In Ms Young's view the relationship with Ms Cowley appears to have been used "instrumentally" by the defendant to meet his own needs, as distinct from it being a genuinely intimate relationship which he is genuinely committed to maintaining. In the same connection, Ms Young noted that an offender's positive social network is one of the most well established predictors of criminal behaviour and whilst prior to his release to parole it was believed that Ms Cowley would be a dominant and positive social influence, given the frequent and intense conflict at every level of the relationship, she held very real concerns that the relationship could actually increase his risk of reoffending. Dr Roberts expressed a similar view. 92 That assessment is entitled to considerable weight on the question of risk in light of the CUBIT discharge report wherein it was noted that "the stability of his current relationship remains to be tested under more 'normal' circumstances once Mr Harrison is released from gaol". 93 For these reasons, I imposed a residence condition prohibiting the defendant from residing with Ms Cowley until further order.

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Response to previous supervision - s 19(4)(f) 95 In her professional capacity, Ms Young also provides consulting services to Community Offender Services staff in the geographic region including Bathurst. The focus of her community work is the ongoing assessment and management of risk presented by high risk sex offenders in the community. In particular, she provides maintenance programs for high risk sex offenders who have previously undertaken an intensive sex offender treatment program such as the Custody-Based Intensive Treatment Program (CUBIT) conducted by the Department of Corrective Services at the Long Bay Correctional Centre. The aim of the community maintenance program is relapse prevention issues designed to assist the offender to implement strategies developed in custody into a community context to assist in the promotion of successful reintegration. 96 It was in that capacity that Ms Young was involved in a team dealing with the defendant's supervision in the community on his release to parole on 20 December 2007. The defendant was required as a condition of his parole to attend upon her from time to time. Progress notes of attendances were then entered electronically and were accessible by other members of the team. In that capacity Ms Young also spoke with Ms Cowley in relation to his progress whilst on parole. He was made aware that the program for his maintenance would involve the sharing of information which may impact positively or negatively on his management whilst in the community and that only a limited confidentiality attached to that information. 97 Ms Young reported that during his three months on parole the defendant reported promptly and did not miss an appointment. Furthermore, he appeared to cope well with the death of his mother within two weeks of his release and the related emotional issues in dealing with his family, and that he committed himself to full-time work without any suggestion that the women with whom he shared the working environment were treated by him in any inappropriate way. In the February 2008 Parolee Progress Report the parole officer regarded him as generally responding well to supervision and to have made positive advances in his integration into the community. A further progress report was to have been provided within six weeks. The McDonald's incident intervened.

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Treatment with anti-libidinal medication 99 In Dr Ellis' view, from a clinical perspective at least, anti-libidinal medication, either in oral or injectable form, was indicated consequent upon the diagnosis of sadistic paraphilia, its chronicity and the predictable and devastating consequences that flow from the disorder being untreated. 100 Dr Ellis gave evidence that clinical trials demonstrate that anti-libidinal treatment is effective in reducing reported and observed sexual drive, arousal and fantasy compared to inactive placebo. In addition, observation-based studies and non-randomised studies show low rates of sexual conviction for those who take medication although, as Dr Ellis emphasised, that does not of itself demonstrate that the medication reduces rates of recidivism. That said, since the drug is directed to suppressing sexually deviant arousal and since sexually deviant arousal, is the highest (or second highest) risk factor for recidivism in sex offenders who suffer from the condition, in Dr Ellis' view it is likely to be of utility in reducing the risk of the defendant reoffending, even if its ultimate efficacy cannot be accurately predicted. 101 Dr Ellis emphasised the clinical importance of the defendant submitting to a thorough physical examination prior to being administered the drug and the necessity for him to be afforded the opportunity to have the rationale, potential risks and benefits of the medication explained to him. If the investigative phase is to be undertaken in a prison environment Dr Ellis' experience was that at least six weeks should be allowed, largely due to the difficulties in transporting patients to and from public hospitals and the availability of equipment. By contrast, if undertaken in the community the assessment phase is considerably shorter. In addition, a minimum period of four weeks is required in order to evaluate the initial treatment response which has both a physiological and psychological dimension. The physiological response is undertaken by serum testing whilst the psychological response to the expected lowering of testosterone levels depends upon the subject faithfully reporting any decrease in sexual fantasises and arousal. 102 Dr Ellis emphasised that whilst there was no definitive treatment evidence to suggest that pharmacological treatment of serious sex offending is more or less effective in custodial or community environments he was of the view that there was a better opportunity for observation and monitoring of the defendant's response to treatment of this kind in "real world settings" such as relationships, employment and general social settings and, that despite the greater exposure to sexual stimuli and other destabilisers which incarceration neutralises, these risks would be minimised by regular review, supervision, accommodation approval and vocational approval. 103 Dr Ellis also emphasised the practical necessity of cooperation between Corrective Services and Justice Health, and Justice Health and the defendant's general practitioner at the investigative stage, the monitoring stage and ultimately the stage where, as a recipient of medication, the defendant is monitored over the medium to long term, so as to ensure that the volatility of his paraphilia has been reduced to a point where risk is reduced. This is a critical consideration given that in Dr Ellis' view the condition from which the defendant suffers is a chronic relapsing condition requiring regular monitoring. Dr Ellis was of the view that it was impossible to prognosticate as to whether extended supervision with a condition requiring the adherence to an anti-libidinal treatment regime should extend over one year or more, and that reasonably regular reviews of the defendant's response to treatment in the context of his adaptation generally to community life in a supervised sense was warranted. 104 For this reason I have ordered that the defendant be subject to an extended supervision order for an initial period of three months, and I have directed that any further orders, in particular any extension of the order for supervision, be reviewed by me at the expiration of that period. Other community-based treatment options 105 Mr Ware gave evidence that the Community-Based Treatment Services provided by sex offender programs within the Department of Corrective Services include a group-based community maintenance program for those offenders who have previously completed the CUBIT program in custody. Despite the fact that the defendant had not completed the CUBIT program (having been discharged from the program due to inappropriate use of computer equipment), he subsequently completed four months of a maintenance program prior to his release to parole which makes him eligible for the community-based maintenance program which is convened on a weekly basis. Individual treatment with a psychologist who specialises in sex offenders is also available in the community although that is not routinely offered otherwise than in instances where participants in the program are struggling to adapt to a group environment. There is also a psychological service available to participants who are resident in the COSP facilities at Long Bay and Campbelltown. 106 Without descending into the relative differences of the custody-based and the community-based maintenance programs for serious sex offenders it is clear that both are directed to maintaining therapeutic intervention to reduce the risk of relapse in the community. Mr Ware deferred to Dr Ellis' clinical view that a one-on-one therapeutic relationship is likely to be more beneficial to the defendant than a group relationship given that he has already participated in a group-based programs in custody and there is no prospect of a further program of that kind or one-to-one treatment being established within the prison system in the foreseeable future. In effect, the only treatment program available in custody would be the same programs through which the defendant has passed prior to his release to parole. Perhaps, more importantly, there is a genuine concern on the part of the court-appointed psychiatrists that a return to custody is likely to delay the defendant's therapeutic outcomes given that he has been in custody for a very extended period as a serving prisoner. Were further psychological intervention in custody to be viewed as a punishment, the risk of the defendant either being self-defeatist or defiant, refusing to establish a therapeutic alliance or engagement with the providers of therapy, would be counterproductive in view of his eventual release. Dr Ellis was of the view that the defendant's likely attitude or reaction to custody-based treatment is such that he would regard it as coercive or punitive with the result that either institutional resources were wasted or, if he did engage, it would likely be on the basis of pretence only. Finally, the defendant's ability to actually apply therapeutic outcomes to every day life is necessarily reduced if he is not managing real life risk factors. Dr Ellis was of the view that the ultimate goal of therapy is to reintegrate an offender into society in a functional manner for an extended period of time and without reoffending and that is necessarily delayed by a custodial approach.

State of New South Wales v Harrison

At a glance

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Before

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Judgment (51 paragraphs)

Parties

Cases Cited (7)

Cited By (1)