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