State of New South Wales v Phillip Wayne Lett

The State's Evidence

1. The State read two affidavits from David Stevens, sworn on 22 February 2019 and 11 April 2019 respectively. The first of the affidavits referred to and annexed Exhibit DS-1. Further, an affidavit from Kelli Grabham of 11 April 2019 was read by the State. Neither of the witnesses was required for cross-examination by the defendant.
2. In his affidavit of 22 February 2019 Mr Stevens produced much of the evidence relied upon by the State. By his second affidavit he produced further relevant material.
3. Among the material are details of the defendant's interactions with the criminal law, including for those offences that render him a serious sex and violence offender.

The Defendant's Criminal Background, and Offences

1. The defendant's criminal antecedents, prior to the commission of the relevant offences, were negligible. He had been before the (then) Court of Petty Sessions at Blacktown in March 1989 for an offence of high range drink driving, and driving unlicensed. A s 556A dismissal (pursuant to the Crimes Act 1900 (NSW) in the form in which it then was) was applied to the former, with a monetary fine and a short disqualification from driving imposed for the latter.
2. Four years later, the defendant was committed for trial for murder. He was subsequently found guilty by a jury, which rejected the partial defence advanced by him of diminished responsibility. On 4 March 1994 he was sentenced to a term of 26 years imprisonment, with a non-parole period ("NPP") of 6 years and 6 months.
3. In his remarks on sentence Ireland J set out the facts of the murder. The victim, D, was a 6 year old boy. At about 7.20pm on 22 December 1992 he was seen by his mother as he and his two younger brothers left the house to play in a park opposite the family home. Ten minutes later he was noticed to be missing and a search was undertaken. D's body, naked but for his shoes, was found in the car park at Penrith Railway Station at about 6am the following day.
4. Prior to the murder the defendant had been drinking alone. He drove to the area of the park in which D was playing and offered to take the boy for a ride in his car. D got into the defendant's car. The car was next seen by a witness at the Railway Station at about 9pm on 22 December 1992.
5. When the defendant was first spoken to by police, he denied any involvement in the murder and gave an alibi. On his alibi being demonstrated by police to be false, the defendant admitted having killed D. He told police that the boy had wanted to go home and had started to punch him. The defendant said that he then put his hand around D's neck and threw him from the car. Although he denied sexually assaulting D, he acknowledged having tightly knotted both the boy's underpants and shorts around his neck before throwing D from the car, at which time his body was limp.
6. The post-mortem examination noted multiple injuries to D's body, consistent with him having been driven over by a motor vehicle, more than once. The cause of death was strangulation, and the inhalation of blood following trauma to the mouth.
7. Although the defendant denied having deliberately driven his car over D's body, Ireland J found that he had done so intentionally, and more than once, intending to kill the boy to avoid incrimination for his abduction. The sentencing judge found that the abduction was sexually motivated, although any sexual interference did not include penetration. His Honour referred to the crime as "horrendous", and the defendant's act as that of a man who preyed upon a defenceless child, subjecting him to sexual interference, and inflicting upon him a violent death.
8. The defendant was aged 32 years at the time he murdered D. There was evidence before the sentencing judge that he had been subjected to sexual abuse as a child. Other evidence suggested that the defendant had a borderline level of intellectual disability, with 92% of others of his age functioning at a higher cognitive level.
9. Ireland J concluded that, […] the objective facts of the present case are such as to characterise it as the worst class of case and accordingly it is one in which a life sentence may properly be contemplated.
10. It was only features of the defendant's subjective case that militated against that prospect, with his Honour concluding there were "strong mitigating circumstances" to be taken into account. They were the defendant's history of having himself been sexually assaulted as a child, his borderline level of intellectual disability, his almost immediate admissions to the crime, his remorse, the deep depression from which he suffered, and the circumstances in which - as a child killer who had molested a child - his sentence would be likely to be served. The sentencing judge also had regard to the lack of evidence to suggest the crime was pre-meditated, the personality disorder under which the defendant laboured, and that he had some prospects of rehabilitation.
11. An appeal against the asserted severity of that sentence, heard in March 1995, was dismissed. In the unreported judgment of the Court of Criminal Appeal of 27 March 1995 Hunt CJ at CL set out the facts of the murder in greater detail than had Ireland J, specifically noting the extent of the injuries to D, and giving a more detailed account of the evidence relied upon to go to diminished responsibility, the lack of success of the partial defence being described by Hunt CJ at CL as "unsurprising".
12. The Court of Criminal Appeal (per Hunt CJ at CL, with whom Sully and Levine JJ agreed) observed that "the whole tenor" of the remarks on sentence was that the defendant had gone so far as to remove D's underpants and shorts in furtherance of the intended sexual assault, before the boy's attempts to escape led to the defendant's decision to kill him. It was noted that D was run over deliberately by the defendant in his car, to stop him reporting the attempted sexual assault. The Court described the gravity of the offending as "very high indeed".
13. As to the defendant's future prospects, the CCA noted that, The judge found that [the defendant] did have some prospects of rehabilitation. It is submitted that there was no evidence to suggest that he was likely to be a danger to the community in future. This is not the subject of any finding by a judge, and there was no specific evidence directed to the issue. The circumstances of the offence itself, however, suggest the possibility that he is likely to commit or attempt to commit further offences against young boys and that, if he is intoxicated, he may well kill in order to prevent his victim from reporting him. No positive finding could be made against the applicant upon the evidence, but neither could any finding be made that there is no likelihood of danger to the community, despite the prospects of rehabilitation.
14. Two other offences committed by the applicant were later heard before the District Court of NSW at Newcastle, with Judge McGuire (or perhaps Judge Gallen, it not being entirely clear) imposing an overall sentence of 7 years imprisonment, with a NPP of 2 years specified, on 12 April 1996. The offences, of homosexual intercourse with a male under 10 years contrary to s 78H of the Crimes Act, and homosexual intercourse with a male aged between 10 and 18 years contrary to s 78K of that Act, pre-dated the murder of D, but came to light after that event.
15. The victim of the offences was aged 8 to 12 years in the period covered by the indictment, being 1988 to 1992, and was known to the defendant. The defendant was a friend of the family of the victim, and the victim often came to the defendant's home to play with the defendant's children. It was on those occasions that the sexual assaults occurred. The first count (which occurred at a time when the victim was 8 or 9 years old) involved the defendant subjecting the victim to both anal and oral intercourse. The second, which was factually similar, occurred when the victim was aged about 12 years old. The two charged counts reflected an ongoing course of conduct between 1988 and 1992.
16. In his statement, the victim said that he had always asked the defendant to stop during these assaults but that he never had. The anal intercourse hurt him. He said that he was assaulted by the defendant approximately fortnightly in this period. The defendant told the victim that the assaults were "our secret", and that he could not tell anyone about them. The victim told his mother about what the defendant had been doing to him after he became aware that the defendant was going to be "locked up" [as a consequence of the murder charge].
17. When interviewed about the offences the defendant admitted "having sex" with the victim, but said "I cannot remember penetrating him ever".
18. The sentencing remarks are unavailable, but it would be surprising if the sentencing judge regarded these offences as anything other than gravely serious.
19. In custody, the defendant has been charged from time to time with institutional offences, including using abusive language (1993), self-infliction of a wound (1993), having unauthorised property (1997), damaging property (2000), and failing a urine test (2002). He has not been charged with any breach of prison rules since September 2002.

Earlier Psychiatric Assessments

1. During the course of the criminal proceedings, and particularly in support of the partial defence of diminished responsibility advanced at his trial for murder, the defendant was seen and assessed by a number of psychiatrists. He was also assessed from time to time during the course of his sentence.
2. Dr Pauline Langeluddecke, a psychologist, completed a neuropsychological assessment of the defendant on 25 July 1993 at Long Bay Gaol.
3. Dr Langeluddecke assessed the offender to be quietly spoken and polite, with an open and genuine manner. He was cooperative with her testing and was oriented as to the time and place of his assessment. His rote mental operation was "reasonably rapid and accurate" and his immediate auditory recall span was within average range. She noted his attention capacity was poor and that he appeared anxious. Test results also indicated his "digit reversal, tracking, serial counting and digit copying tasks" was well below average for his age.
4. Dr Langeluddecke took a history from the offender which was similar to those given to other health professionals over the years. The defendant told Dr Langeluddecke that his childhood had been characterised by "a lot of tension" and that he did not have a connection with any of his family members. He said that he did not perform well at school and that he still had difficulty with reading and writing. He detailed his employment in semi-skilled roles after leaving school at age 15.
5. The defendant reported daily abuse of alcohol since the age of 14, consuming at least 24 cans of beer per day. He believed alcohol allowed him to escape negativity and help him relax and sleep. Dr Langeluddecke noted that the defendant's alcohol abuse severely compromised his relationships and "rendered him prone to impulsive, irresponsible behaviour". Gambling was also noted to be problematic.
6. The defendant referred to the de facto relationship in which he had been involved prior to his incarceration, and to his two children to the relationship.
7. In discussing the defendant's history of mental ill health, Dr Langeluddecke noted his longstanding history of depression, which had worsened in the six month period before the murder of D. He described feelings of sadness, anger, troubled sleep, and his irritable and irrational personality. During this time, substance abuse worsened, with the defendant abusing both alcohol and medication prescribed to his girlfriend.
8. Dr Langeluddecke used a range of testing to assess the defendant's functioning, namely the Revised Wechsler Adult Intelligence Scale (WAIS-R), the Beck Depression Inventory test, and the Spielberger Inventory test. This testing placed his intellectual capacity at the upper borderline level, with his verbal and visuospatial skills well below average for his age. Dr Langeluddecke's testing also indicated the defendant's concentration, immediate to short term memory, and learning abilities were limited. His psychomotor speed, higher level problem solving, sequencing, and attention to detail were poor, indicating possible impairment of non-verbal abilities due to a neurological or psychiatric syndrome. His executive function was poor and his scholastic skills at early primary school level.
9. Using the Beck Depression Inventory test, Dr Langeluddecke concluded that the defendant suffered moderate to severe depression; the Spielberger Inventory test indicated that he had high levels of general and situational anxiety. There was an unconfirmed possibility of neurological damage due to alcohol abuse.
10. Dr Bruce Westmore, forensic psychiatrist, assessed the defendant on 22 January 1994 at Long Bay prison. When he saw the defendant, the defendant displayed deep lacerations to his forearms from self-harm.
11. Dr Westmore began by noting that the offender did not suffer from a mental illness at the time of the assessment, or at the time of the 1992 offence. He recorded an account of the murder given to him by the defendant, including that the defendant recalled thinking that the victim represented himself. He recollected his feelings of self-loathing and self-hatred and his impulse to kill. The defendant said that panic had set in when he picked up the child: "'everything flashed in my mind…it was all flashing in front of me, my life….I started to panic and cry and I strangled him". He said to Dr Westmore, "I couldn't handle what I'd done, I couldn't believe it". He admitted that "he thinks about his victim often…regrets his actions…feels sorry for the boy and his parents and…for his own wife and children". Dr Westmore suggested that the offender showed good insight into the seriousness of his offence.
12. Dr Westmore recorded details, similar to those documented in more recent reports, of the sexual offences against the defendant by his Sunday School teacher and a family member.
13. Dr Westmore suggested that the offender's tendency to seek death as a child, not wanting to touch children, his detached relationships as a child, the drug and alcohol abuse and self-mutilation, all pointed to a diagnosis of personality disorder.
14. Dr Leonard Lambeth, psychiatrist, assessed the defendant in January and again in March 1996. After the January 1996 assessment, the doctor concluded that the defendant had Post Traumatic Stress Disorder ("PTSD") after an assault in gaol, and major depression.
15. In his March 1996 report, Dr Lambeth recorded a detailed history obtained from the defendant of the sexual abuse of him by his Sunday School Teacher, from age 9. The abuse involved threats of dismemberment if the defendant told anyone. After a family member also began to sexually abuse him, the defendant recalled feelings of anger and confusion, recollecting that he "didn't care if he was dead".
16. Dr Lambeth concluded that the defendant was suffering from substance abuse, borderline personality disorder, dependent personality disorder, PTSD, and chronic severe depression, namely chronic Dysthymic Disorder, at the time of D's murder.
17. Psychiatrist Dr Scott Clark assessed the defendant in early 2013 at the request of the Serious Offenders Review Council, and prepared a report for it.
18. Dr Clark obtained a history from the defendant, consistent with that given to other practitioners. The defendant said that he had seen a psychologist at Goulburn and Long Bay gaols during his time in custody.
19. In his report, Dr Clark noted that the defendant did not display symptoms of psychotic illness, auditory hallucinations, paranoia or delusions. He denied any suicidal thoughts. Despite having cut and stabbed himself years prior to the interview, the defendant denied ever trying to kill himself. This appeared to contradict a medical entry in 1992 referred to by Dr Clark, which recorded that the defendant had a history of four suicide attempts prior to entering custody. A further assessment by a psychiatrist in 1992 noted the problematic relationship that the defendant had with his wife, his ongoing alcohol abuse and his depressive symptoms. Medical notes from 1993 recorded continued instances of self-harm.
20. Dr Clark referred to a psychiatric assessment by Dr Darcy in 1994 noting the defendant's history of sexual abuse between the age of 7 and 12 years. The assessment also referred to a childhood spent with the defendant's grandmother, the death of his father at the age of 15, his feelings of guilt and desire to die as a child, and his dependence on substances, namely alcohol, cannabis, and benzodiazepines. Dr Darcy's assessment also recorded the defendant's problematic relationship with his wife, his gambling addiction, and anger issues. Dr Darcy recommended taking Mr Lett off his prescribed antidepressants and antipsychotic medication and replacing it with psychotherapy.
21. Dr Clark also referred to the 2011 psychiatric report of forensic psychiatrist Dr Andrew Furst, who noted the defendant's 12 year history of self-harm and need for counselling. He described similar symptoms to those the defendant had reported in the past, namely, stress, insomnia, and an inability to tolerate the closeness of others. Dr Furst observed evidence of personality dysfunction and chronic mood disorder. He recommended continuation of an antidepressant drug, Cipramil, which at that time had recently been increased in dosage.
22. Dr Clark assessed the defendant's state of mind. The defendant described his mood as "'up and down'"; however, Dr Clark observed that, at the time of the assessment, he did not appear anxious and displayed no symptoms of thought disorder. The doctor regarded the defendant as rational, oriented, relevant, and coherent, and noted no psychotic symptoms, or suicidal or homicidal thought during the assessment. Dr Clark did not test the defendant's cognitive functioning.
23. Dr Clark referred to the defendant's history of chronic depression, with adjustment difficulties, his former suicidal thoughts and behaviour, his symptoms of anxiety, his physiological symptoms, and his feelings of claustrophobia. The doctor also noted the defendant's obsessive habits and compulsive behavioural patterns. He attributed this to mixed anxiety disorder. Dr Clark also noted the defendant's borderline and dependent personality disorders, and PTSD. He said that he may suffer from increased symptoms of depression and anxiety in the future.
24. The defendant told Dr Clark that he did not want to leave custody, as he feels safe there from drugs, alcohol, and his anger. He said custody is where he "'feel[s] free'". Dr Clark noted that the defendant did not ask for parole during his time in custody because he "'[didn't] deserve it for what [he] did'". Dr Clark observed that the defendant appeared anxious about the end of his sentence.
25. He concluded by noting the defendant's understanding of his drug and alcohol problems and his acknowledgment that he needs external controls to become, and remain, abstinent. He was however of the opinion that the defendant needed antidepressant medication, with a small dose of quetiapine. He pointed out that the defendant's confidence and self-esteem were extremely low and recommended a formal cognitive behavioural approach in psychotherapy to address the defendant's anxiety and mood disorders in order to assist his return to the community.

Risk Assessment and Risk Management

1. In consideration of commencing these proceedings a Risk Assessment Report was prepared on 30 November 2011 by psychologist Rachel Terry.
2. Ms Terry met and assessed the defendant on 22 November 2018. She had available to her the voluminous documentary record which has accumulated over the course of the criminal proceedings against the defendant and his subsequent incarceration.
3. At the time of the interview the defendant was aged 58 year. He presented as relaxed, and without symptoms of any disorder of thought or perception, or psychosis. His concentration and attention throughout the assessment procedure was considered to be adequate, as was his capacity to communicate.
4. The defendant gave a history to Ms Terry of being the fourth of six children born to his parents. His parents' marriage dissolved when he was aged about 4 years, and the family broke up, with the defendant and two of his siblings moving to live with his father and paternal grandparents. The defendant said his grandmother had been physically and emotionally abusive towards him, whilst his father had been distant. When he was able to leave the home, at age 15 years, he did so, thereafter staying with friends. He maintains a relationship with a sister, but no other family member.
5. Between the ages of 7 and 10 years the defendant repeated his account of having been sexually abused by a Sunday School teacher and, at age 9-10, by a family member. The latter assaults were described as aggressive and violent.
6. He struggled at school, exhibiting behavioural and learning difficulties that resulted in him being bullied. He left school in Year 8 with poor literacy skills. He has been able to improve these skills since incarcerated.
7. Before being gaoled the defendant had worked consistently in various unskilled jobs, the longest period with a single employer being employment as a spray painter for ten years.
8. The defendant said he was heterosexual, having had a number of relationships throughout adolescence and early adulthood, although he characterised them as turbulent and abusive, and "for sex". He has a son with whom he had no contact, and another two children from a later relationship, one that had lasted for a decade. He has not had contact with either of these children, now aged in their thirties, but expressed a wish to initiate contact.
9. When discussing the murder of D the defendant said that, at that time, he had been ruminating over his own experience of child sexual abuse, and feeling anger and a wish to exact violent revenge on one of the persons responsible. He had been abusing alcohol and cannabis.
10. On the day of the murder the defendant said he had been drinking, and had consumed cannabis and Valium, and had lost all of his money gambling. After an argument with his partner he left his home and "came across" the victim in a park. He noticed some similarities between the boy and his childhood self. The defendant told Ms Terry that, in his car with the victim, he again began to ruminate on his own childhood abuse, becoming angry, and even angrier when D complied with his demands. This reminded him of his own compliant behaviour to his abusers, and he became enraged and strangled the boy. The anger he gave vent to he believed to be the anger he felt towards his own abusers. [This account is not consistent with the account given by the defendant contemporaneously.]
11. Of the homosexual intercourse offences, the defendant said that he had identified with his victim, who reminded him of himself as a boy. He thought the boy felt unwanted and unloved, and initiated the sexual abuse to make him "feel better". At the time of the first assault, he had been arguing with his partner, and the relationship between them was strained. He had also been using alcohol and cannabis. He acknowledged anal and oral intercourse on that first occasion, but denied anal intercourse thereafter [contrary to the facts that were before the sentencing court, and the statement of the complainant].
12. Noting the content of the Custody Based Intensive Treatment ("CUBIT") Programme report, Ms Terry said that the defendant was regarded as having developed insight into his pattern of offending, having identified a number of factors related to his offending conduct, including intrusive memories of abuse as a child, revenge fantasies against his abusers, impulsivity, using alcohol and sex as coping strategies, low self-esteem, difficulties with intimate relationships, and feelings of abandonment and hopelessness. The defendant had acknowledged barriers to victim empathy, including his deviant sexual interest, attitude of approval to sex with children, and the abuse of drugs and alcohol.
13. To Ms Terry, the defendant described feelings of self-hatred and guilt related to the offences, and a strong sense of remorse. He was able to articulate the likely impact of his crimes on those affected, and expressed the view that he did not deserve to be released from prison until his total sentence had expired.
14. Ms Terry recorded the defendant's psychiatric history, noting earlier diagnoses of chronic Dysthymic Disorder, Major Depression, and PTSD. Differential diagnoses of Borderline Personality Disorder and Dependent Personality Disorder have also been referred to. The defendant reported a chronic history of self-harm commencing in early adolescence, and related to feelings of self-hatred from historical trauma.
15. As to intellectual functioning, Ms Terry noted that the defendant has been assessed on a number of occasions during the course of his incarceration. He has generally been placed in the upper borderline range of intellectual functioning. He has additionally been found to have deficits in concentration, immediate short term memory, learning ability, and executive function. Possible neurological impairment may be indicative of alcohol related brain damage.
16. The defendant reported longstanding alcohol abuse, commencing at about age 12 years. At the same age he was introduced to cannabis and heroin, becoming a regular user of the former. When intoxicated the defendant said he tended to ruminate on earlier abuse, becoming angry as a consequence. In the months leading up to the murder of Daniel, the defendant said he was intoxicated most days. The defendant also told Ms Terry he had been a problematic gambler.
17. In custody the defendant's conduct has ordinarily been satisfactory, with Ms Terry reporting that, apart from eight institutional misconduct charges, the most recent of which is from 2002, the defendant has been consistently compliant with gaol rules and routine, and is regarded as polite and civil in his dealings with staff. He has worked throughout his years in custody, and is considered as having a good work ethic. The defendant has also undertaken a number of educational courses, remaining engaged with educative programmes throughout his incarceration. His literacy and numeracy skills have improved, and he has completed a number of trade courses. Most recently he has undertaken a traineeship in Transport and Logistics - Warehousing Operations Certificate II.
18. The defendant completed the CUBIT programme between September 2013 and April 2015. This is an unusually lengthy period over which to complete the programme. It was necessary both because the defendant struggled intellectually with some concepts, but also because some of the course content triggered symptoms of PTSD, adversely affecting his ability to participate in the course. The defendant undertook custody-based maintenance after completing CUBIT, and was regarded as strongly motivated to engage with the programme. As at January 2017 staff involved with the programme considered that the defendant had met all goals, with nothing further to achieve through it. Community based maintenance was regarded as necessary on release, to practice and develop the skills acquired in a community setting.
19. It was also recommended that the defendant receive intervention to help him to address the trauma associated with childhood abuse.
20. The defendant has completed other courses, including the Life Management Programme (in 2000), the Personal Effectiveness Programme (2000), and the Positive Lifestyles Programme (2000), and a number of courses directed to substance abuse. These include a Basic Drug Education course (1995), Relapse Prevention course (1999), a Drug and Alcohol Workshop (1999), and The Medical Model of Chemical Dependency (2000). More recently, the defendant completed the Getting SMART programme (2009 - 2010).
21. The defendant seems to have been quite isolated in custody. Until 1998 he received visits from his former de facto partner, thereafter receiving one or two visits per year until 2007, thence no visits at all until 2013. He has received occasional visits since then. The defendant has identified his sister and two married couples as his main sources of support.
22. Since about mid 2017 the defendant has had day and weekend leave, and reportedly managed leave well, interacting with others politely and without incident. About half of the day leave taken by the defendant has been accompanied, by a Corrective Services Chaplain, with the other half taken in the company of a community sponsor, a childhood friend.
23. The defendant has never been supervised in the community, because he has never been subject to parole, or any community based sentencing order.
24. Ms Terry undertook a risk assessment relevant to the defendant. Noting that it is not scientifically possible to accurately predict whether an individual will offend, she reviewed earlier assessments, and administered tests afresh herself.
25. In 2014 the Level of Service Inventory - revised ("LSI-R") assessed the defendant as presenting a low-medium risk. A year later, the defendant was assessed by reference to the Static Risk factors (Actuarial Assessment - Sex Offending) tool ("STATIC-99R"), and placed in the low to medium risk range for sexual offending. More modern terminology would rate the defendant's risk as "average". A different test, the Violence Risk Scale, administered by Ms Terry in November 2018, placed the defendant within the low risk range for violent offending.
26. Assessment by Ms Terry in November 2018 of the defendant's risk of sexually reoffending by reference to dynamic factors, using an actuarial tool known as the STABLE-2007, suggested a moderate density of criminogenic needs. The most significant concern for the defendant was his assessed deviant sexual preference.
27. Ms Terry has concluded that, taking all of the evidence together, the defendant falls into the average risk category for sexual offending, and the low risk category for violent offending. She regarded the following risk factors as relevant or potentially relevant to the defendant: 1. Difficulties in effectively managing emotions, including anger and frustration. In the past this has led to alcohol and drug abuse, and outbursts of anger and aggression. Low self-esteem, rumination on childhood trauma, and negative emotional states contribute to the inability to regulate emotion. Ms Terry noted that, whilst the defendant had learned some coping strategies whilst in custody, including compliance with medication, his skills had not been demonstrated "in high risk situations - namely within the community". Many of his strategies to deal with this problem relied upon help from others. 2. Sexual deviancy is a second area of concern and risk. Ms Terry observed that, whilst currently sexual deviancy is not a significant risk factor, and the defendant had demonstrated a lengthy period of stability of approximately 18 years, his "ability to manage these risk factors in a less controlled environment, namely in the community upon his release" was not able to be predicted. 3. Similarly, impulsivity, poor problem solving skills, hostility towards women and "negative emotionality" have not posed real problems in some years in a custodial environment, but could re-emerge in the community. 4. Sexual Preoccupation and the use of sex as a means of coping were highlighted as risk factors prior to the defendant's completion of CUBIT. Although the defendant has reported a lessening in libido over the last two decades, he was reluctant to discuss the issue with Ms Terry.
28. Ms Terry regarded the defendant as having some protective factors that could decrease risk factors in the community. These include a small group of prosocial supporters who will assist the defendant upon his release, his asserted willingness to reside in Community Offender Support Programme ("COSP") accommodation on release, and long term with his sister, his participation in CUBIT and custody-based maintenance, the defendant's willingness to undertake drug and alcohol counselling, and the positive goals he has set for himself in the community, such as learning guitar and joining a bushwalking group.
29. In summary, Ms Terry observed that the defendant is a man with a deviant sexual preference for pre-pubescent boys, with offending precipitated by periods of emotional instability, declining mental health, and increased substance abuse. Whilst his first years in prison were dominated by instability of mental health and behaviour, consistent improvement has been noted since about 2000. His participation in educational and rehabilitative programmes has been positive, and there have been positive treatment gains, including development of a good understanding of offences, risk factors, and self-management plans. Risk assessment reflects the defendant's treatment engagement and documented stability over the last 18 years.
30. Risk management strategies considered by Ms Terry as potentially useful in the event that the defendant is released to the community include: 1. Community-based maintenance programme conducted by the Forensic Psychology Service; 2. Counselling to assist the defendant to address childhood trauma; 3. Monitoring of compliance with medication to treat his mental health issues; 4. Scrutiny of social contacts, particularly as to any age inappropriate relationships; 5. Unannounced drug and alcohol testing; and 6. Electronic monitoring.
31. The question of risk management in the community was addressed in greater detail in a report prepared by Marc Corcoran, a member of the Extended Supervision Order Team, dated 23 December 2018.
32. Mr Corcoran referred to many of the same features of the defendant's incarceration as Ms Terry, such as his completion of CUBIT and good conduct in custody. Like Ms Terry, Mr Corcoran recorded an average overall risk of sexual reoffending for the defendant.
33. Post release plans considered by the defendant include residence in a COSP if subject to supervision, or with his sister if unsupervised, and participation in activities such as Men's Sheds.
34. Referring to the risk factors enumerated by Ms Terry, and extracted at [87] above, Mr Corcoran developed a risk management plan utilising a number of potential strategies. They include: 1. Weekly face to face interviews to (initially) develop a comprehensive case plan to assist the defendant to manage his own risk factors; and the use of "Practice Guide for Intervention modules" to aid him in goal setting, managing relationships, problem solving, establishing and maintaining positive routines and social networks, etc. 2. Drug and alcohol testing to monitor any relapse into the use of illicit substances, and assisting the defendant to develop strategies to cope with cravings for drugs or alcohol. 3. Scheduled and unannounced field visits to the defendant's home or other relevant places, coupled with field surveillance. 4. Possible use of searches of the defendant's home, electronic devices, and person. 5. Engaging with the Forensic Psychology Service to address deviant sexual preference and sexual preoccupation. 6. Monitoring the defendant's mental health, and developing strategies to enable him to deal with stress and anger. 7. Electronic monitoring and schedules to audit the defendant's movements, and ensure he is not attending high risk environments, coupled with place restrictions. 8. Referral for mental health treatment as necessary.
35. Although Mr Corcoran observed that all risk management strategies have limitations, he considered these potential strategies as likely to best manage the risk posed by the defendant.
36. Another member of the Extended Supervision Order Team, Kelli Grabham, provided the Court with information about the operation of the Team, and the nature and extent of supervision to which the defendant would be subject, if an ESO is made, She gave some more specific information about the conditions the State proposes the defendant be subject to, including electronic monitoring; schedules; curfews; restrictions on accommodation and travel; restrictions on association; drug and alcohol restrictions; etc.

The Law

1. The law that applies to applications of this kind is well considered in numerous judgments of this Court and of the Court of Appeal. It is not intended here to materially add to that jurisprudence. An instructive discussion of the legislative scheme overall is to be found at [12] - [26] of Lynn v The State of New South Wales (2016) 91 NSWLR 636; (2016) 258 A Crim R 196; [2016] NSWCA 57; per Beazley P, with whom Basten and Gleeson JJA agreed. Later in the judgment, at [44]-[55], her Honour considered the meaning of the phrase "unacceptable risk", and the approach to be taken in determining whether such a risk exists.
2. Section 5D of the HRO Act specifically provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk. A risk may be regarded as unacceptable, even if the likelihood of it manifesting is relatively low.
3. At the preliminary stage, it is not for the Court to weigh up the documentation, or to predict the final outcome, or to consider what evidence may be adduced by the defendant at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. Consideration must be given to the test set out at s 10A(b) of the HRO Act (there being no issue about the requirement imposed by s 10A(a)) as to whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. That consideration is necessarily undertaken in light of the statutory matters enumerated in s 9(3), to which the Court must have regard.

The Submissions of the Parties

1. The State argues that there continue to be areas relevant to the defendant's day to day functioning which are connected with risk, but which remain unaddressed at the end of his sentence, including the PTSD from which he suffers.
2. How those unaddressed features of the defendant's functioning might affect him in the community is an unknown, and gives rise to real concerns about how the defendant may respond to situations of stress that he does not have the tools to deal with.
3. The defendant submits that he has done all that he can do in custody to address his offending and the risk of any recidivism, and has been assessed most recently as posing no greater than a low - medium, or average, level of risk. It cannot be concluded that he poses a high risk of committing serious sexual or violent offences. Although it may be considered that he would have benefitted from parole, an interim ESO or an ESO is no substitute for parole, and cannot be used in that way.

Consideration

1. There is no question that the crimes committed by the defendant in the nineteen-nineties were gravely serious and, of themselves, give rise to concerns as to the level of risk the defendant may pose in the community unsupervised, as he will be at the completion of his sentence, absent any order of the nature sought.
2. There is also no question that the defendant has done all that was asked of him in custody in the last almost twenty year period, since the commission of the last institutional misconduct, to address his offending conduct. Insofar as a sentence of imprisonment can rehabilitate a prisoner who has committed terrible crimes of the nature committed by the defendant, he has achieved that level of rehabilitation.
3. However, conduct in the highly regulated environment of a prison can say little about how a prisoner will conduct him or herself in the community, particularly in circumstances where that prisoner has been apart from the community for decades, and is almost entirely unfamiliar with life as it is now lived outside an institution. The world in 2019 is a very different place to the world in 1992.
4. I accept that the defendant has done everything he could reasonably do in custody to address the risk factors material to his situation, but there remain features of concern that he could not have addressed in a custodial setting. These features suggest that, unsupervised, the defendant poses a risk to others.
5. In 2013 Dr Clark recommended that a formal cognitive behavioural approach in psychotherapy be utilised with the defendant to assist him to deal with his anxiety and mood disorders and facilitate his successful return to the community. Such an approach does not appear to have been adopted since that recommendation was made, leaving a potential risk factor unaddressed. The recommended counselling should be available in the community through the Forensic Psychology Service, were the defendant subject to a supervision order.
6. Although the defendant's completion of the CUBIT programme and later custody based maintenance is to be commended, in 2017 staff associated with the programme considered that community based maintenance was necessary upon release, to assist the defendant to practice and develop the skills he learned in custody in a community setting. It is open to infer that the defendant lacks the necessary skills without that assisted practice.
7. That is supported by Ms Terry's view that the impact of other risk factors relevant to the defendant - impulsivity, a lack of emotional control, a tendency to be preoccupied with sex (which he was reluctant to discuss with Ms Terry in November 2018), and poor problem solving skills - cannot be predicted in the community.
8. In her report Ms Terry also observed that, although the defendant had developed some insight into his offending conduct, he has also acknowledged barriers that remain, including (of most concern to the Court) his deviant sexual interests and his approving attitude of sexual relations with children. The possibility of relapse into drug and alcohol abuse as a crutch to support him in dealing with the stresses of adjusting to ordinary life is another potential risk factor for the defendant. Intoxication has in the past led to rumination upon childhood trauma, anger, and the commission of serious crime.
9. Although I would assess the likelihood of the defendant committing a serious sex or violence offence as being not necessarily any greater than that applying to other sex or violence offenders on return to the community, if the risk that exists manifests, the consequences would be too terrible to ignore. In that sense it is an unacceptable risk. I am very mindful of the opinion of Hunt CJ at CL, shared by Sully and Levine JJ, that the nature of the offences committed by the defendant of themselves "suggest the possibility that he is likely to commit or attempt to commit further offences against young boys", particularly if intoxicated.
10. Proceeding on the basis that the State can prove its case, and having regard to the matters noted in s 9(3) of the HRO Act, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the interim order.

Conditions of the Order

1. At the hearing before me the defendant argued that, if he was made subject to an ISO, he should not be obliged to establish and comply with a schedule of activity and movements. It was submitted that, having regard to his long years in custody, and his impaired executive functioning, requiring him to devise and adhere to a strict weekly schedule was beyond his capabilities, and would "set him up to fail, thereby exposing him to criminal sanctions for conduct that would otherwise be lawful" (defendant's written submissions at [15]).
2. There is, in my view, merit in this submission. Although the evidence of Ms Grabham provides an evidentiary basis for the imposition of scheduling conditions, and the conditions attached to the Amended Summons have sought to address the defendant's concerns, there remains a real risk that the defendant could find himself breaching his schedule, without any criminal intent, and then facing the risk of being charged and imprisoned as a consequence. At least at this interim stage, I consider the other conditions, including electronic monitoring and place restrictions, adequate in combination to address the risk. I propose to delete the suggested conditions 5 to 8.

orders

1. The orders of the Court are: 1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. Appointing two qualified psychiatrists and/or registered psychologists, as agreed between the parties, to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s. 10A of the Act, that the defendant by subject to an interim supervision order from midnight on 23 June 2019 ("the interim supervision order"); 2. Pursuant to s. 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff of another period of 28 days or the proceedings are finally determined; and 3. Pursuant to s. 11 of the Act directing that the defendant for the period of the interim supervision order, comply with the conditions set out in the Schedule to these orders. SCHEDULE OF CONDITIONS OF SUPERVISION PHILLIP WAYNE LETT Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting
2. The defendant must accept the supervision of CSNSW until the end of the Order.
3. The defendant must report to the DSO or any other person supervising him as directed by the DSO.
4. The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring
5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Part B: Accommodation
6. The defendant must live at an address approved by his DSO.
7. If so directed, the defendant must be at his approved address between 10pm and 6am unless other arrangements are approved by his DSO.
8. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
9. The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
10. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions
11. The defendant must not leave New South Wales without the approval of CSNSW.
12. The defendant must surrender any passports held by the defendant to the Commissioner.
13. The defendant must not go to a place if his DSO tells him he cannot go there.
14. Without limiting condition 12 above, the defendant must not, without prior approval of his DSO, go to any: a. Day-care centres, pre-schools and schools; b. Amusement parlours, amusement parks and theme parks; c. Cinemas; d. Libraries and museums; e. Camping grounds and caravan parks; f. Children's playgrounds, parks, and areas with play equipment provided for the use of children; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or i. Residences where the defendant knows that persons under 18 ordinarily reside.
15. The defendant must not remain in any place where he knows or ought reasonably to know illicit drugs are sold.
16. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment without the prior approval of his DSO. Part D: Employment, finance and education
17. The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO.
18. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol
19. The defendant must not possess or use alcohol or illegal drugs.
20. The defendant must submit to testing for drugs and/or alcohol as directed by his DSO.
21. The defendant must not enter any licensed premises without the prior approval of his DSO.
22. If directed, the defendant must attend and participate in programs and courses for drug and alcohol rehabilitation and must not discharge himself from such programs and courses without prior approval of his DSO and any persons treating the defendant in those programs.
23. The defendant must not possess or use prescription medication other than as prescribed. Part F: Non-association Association with Children
24. The defendant must not deliberately approach or have contact with anyone who he knows or ought reasonably to know is under 18, unless, prior to that contact, his DSO tells him he can, and at the time of such contact, the defendant is with someone who has been approved by his DSO to accompany him.
25. If the defendant associates with a person who is the parent or guardian or has care and control of a child under the age of 18 years, he must notify the DSO of that association as soon as possible. The DSO may want to tell the person about the defendant's criminal history and the defendant must permit that disclosure. Associations with Others (not children)
26. The defendant must not associate with people that his DSO tells him not to.
27. The defendant must not associate with any people who he knows or ought reasonably to know will be or are consuming or under the influence of illegal drugs.
28. The defendant must not associate with any people who he knows will be or are consuming or under the influence of alcohol without the prior approval of his DSO. If the defendant associates with any people consuming alcohol without the prior approval of the DSO, he must notify the DSO of that contact within 24 hours.
29. The defendant must not engage the services of sex workers without the prior approval of his DSO.
30. If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history if it is relevant to his risks. The DSO will notify the defendant of the intended disclosure and the defendant must permit it.
31. The defendant must obtain approval from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Gambling
32. The defendant must not gamble.
33. The defendant must seek assistance in controlling his gambling, if directed by the DSO. Part H: Access to the internet and other electronic communication
34. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
35. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
36. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
37. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part I: Search and seizure
38. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person.
39. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched.
40. During a search carried out pursuant to condition 37 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
41. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
42. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 37 to 40 above. Part J: Access to pornographic, violent and classified material
43. The defendant must first seek approval of his DSO before purchasing, possessing, accessing, obtaining, viewing or listening to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.
44. The defendant must obey any reasonable directions of his DSO in relation to the access, viewing, possession or purchase of the material identified in condition 46 above. Part K: Personal details and appearance
45. The defendant must not change his name from "Phillip Wayne Lett" or use any other name without the prior approval of his DSO.
46. The defendant must not use any alias, log-in name, or a name other than "Phillip Wayne Lett" or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
47. The defendant must not significantly change his appearance without the prior approval of his DSO.
48. The defendant must let CSNSW photograph him.
49. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part L: Medical intervention and treatment
50. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
51. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
52. The defendant must take all medications that are prescribed to him by his healthcare practitioners.
53. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
54. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
55. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2019