What order should be made?
95A good deal of time in the case was taken up with issues concerning programs that might be undertaken by the Defendant if he was subject to a continuing detention order. Some of this evidence was directed to exploring why the Defendant had not undertaken sex offender programs whilst in prison. The reasons for his not doing so seem to me to be of secondary relevance. The fact is that he did not complete them either because he was not prepared to do so or because, in any event, he never progressed beyond Level 3.3 in the Behaviour Management Levels that would have enabled him to move from the HRMCC where it was not possible to participate in such programs.
96Whilst s 3(2) of the Act has as one of its objects the encouragement of serious sex offenders to undertake rehabilitation, I agree with what is implicit in RA Hulme J's analysis of the objects in Thomas that that is the secondary object and that the primary purpose of the Act is to ensure the safety and protection of the community.
97In the first instance, it seems to me, the Defendant declined to participate in the programs because he did not see himself as a sex offender. That appears, in particular, from responses he made to the experts who examined him where he said that he could not believe that he had done the things about which he was found guilty. However, it also appears to be the case that even if he had been willing to participate he would not have been able to do so because of his classification and location within the prison system. His unwillingness to participate is a matter I have taken into account in reaching the conclusion that he poses an unacceptable risk of committing a further serious sex offence.
98The other significant issue in relation to the various sex offender programs concerns the suitability of the Defendant to participate in those programs bearing in mind the various diagnoses of psychiatric illness that the experts are agreed upon, and the claimed lack of memory about the index offences.
99When asked to consider the suitability of the CUBIT program Dr Roberts said this:
Even if you assumed that the psychosis is well treated, it would not be considered best practice for that mode of treatment to be used with him, although it would have some utility, but it would not be primarily used if you were directing the treatment approach.
Dr Ellis said this:
Can I add to that. It would generally be considered that to engage in therapy around an event, even in general terms, Mr Richardson aside, but to suggest that someone should embark on a course of therapy, to address an issue that the person cannot even recall - to be polite - would be an act of futility. It would be really quite ridiculous, but to someone to embark on therapy to counsel someone on an issue that they cannot recall, is a pointless exercise.
100Professor Ogloff also agreed that a significant aspect of programs like PREP, CORE AND CUBIT includes modules dealing with victim empathy, and that because individuals like the Defendant lack empathy and remorse in a way that seems intractable, those modules would be less effective for somebody like the Defendant. Professor Ogloff also agreed that if a person could not remember the circumstances of the offences then certain elements of the treatment were futile. He thought his psychotic illness would have to be stabilised before he would receive any benefit from the treatment programs. He thought the likelihood of getting him into the CUBIT program was very slim, and his view was that he would not put him in a group setting to treat him.
101Evidence was also given by Jayson Ware, a registered psychologist who was the Acting Executive Director of the Offender Services and Programs for the Department of Corrective Services. He agreed that it would be necessary to stabilise the Defendant in terms of his schizophrenia before he could be put in the CUBIT Program. He agreed with Dr Ellis that one would not recommend a group program for someone who had schizophrenia unless they were in a very stable stage of it.
102Mr Ware also highlighted the individualised intervention (as he described it) of the Corrective Services programs including CUBIT which he said continued throughout the entire treatment plan. Although I found Mr Ware to be an impressive witness who clearly understood the various programs and the benefits they could offer, he volunteered, when disagreeing with some evidence from Dr Ellis, that he had not personally assessed the Defendant. For that reason, I did not find his evidence to be as useful as the evidence provided by Dr Ellis, Dr Roberts, and Professor Ogloff.
103Evidence was also given by Naomi Prince, a registered psychologist, who is the Acting Team Leader of the Personality and Behavioural Disorders Unit (PBDU) with Corrective Services. She, like Mr Ware, had not assessed the Defendant. She explained in her affidavit about the PBDU, and that it had been requested to develop an intervention plan to assist the Defendant to progress through the correctional system with the goal of entering CUBIT. She thought that a period of 9 to 15 months would be necessary before he would be able to enter CUBIT. This would involve the reclassification of the Defendant to enable him to move from the HRMCC. That in turn was said to be a stepwise progression based on the combined approach of ongoing psychiatric care and behavioural interventions. I note in this regard that the Defendant had not managed to achieve the appropriate classification to enable a move from HMRCC in the 9 years that he was there.
104Ms Prince accepted in cross-examination that until the Mental Health Team decided that the Defendant was able to work with Ms Prince's team she would not be able to proceed with what she proposed.
105Dr Roberts was asked when preparing his report to outline from a psychiatric perspective the merit or otherwise of the plan outlined by Ms Prince and Mr Ware. Dr Roberts said that the prospect of successful rehabilitation during the period of ongoing incarceration, where attempts over the past 16 years of engaging the Defendant in treatment had failed, appears bleak. He said that psychological intervention was likely to prove futile. This was because the Defendant lacked insight into his need for treatment and coerced psychological treatment was unlikely to yield a positive outcome. He did say, however, that a further period of incarceration would facilitate definitive treatment of the Defendant's psychotic illness. That cannot be a proper basis, of itself, for incarcerating the Defendant further.
106This evidence concerning the programs offered by the Department of Corrective Services was particularly significant when considering the issue of whether the result of my finding that the Defendant poses an unacceptable risk of committing a further serious sex offence should be a continuing detention order or an extended supervision order. I am not persuaded on the balance of probabilities that if the Defendant was required to participate in these programs whilst detained in custody the programs would be likely to be successful in reducing the risk that the Defendant poses in terms of the commission of a further serious sex offence. Dr Ellis stressed that it was the personality disorder that would most likely have contributed to the sexual offences as it occurred in the index offences, and that the timeline for dealing with the personality disorder (the impulsivity, the lack of empathy etc) would be in the order of a decade. Dr Roberts seemed to have a similar view. Like Dr Ellis, he considered that the psychotic illness had to be treated first, but he did not think that the success of treatment of the personality disorder could be reasonably predicted.
107Mr Hans Ellfeldt, a clinical advisor for the Violent Offender Programs with Corrective Services, and also a registered psychologist, also considered that there was a great deal of uncertainty about whether the Defendant could participate in general inmate joint therapeutic programs of an intensive nature. Given the doubts expressed by the psychiatrists and psychologists, it is doubtful if the other object of the Act referred to in s 3(2) (to encourage serious sex offenders to undertake rehabilitation) would be achieved by making a continuing detention order.
108There are other matters which need to be balanced in terms of what was said by Steytler P and Buss JA in GTR about the unacceptable nature of the risk to determine the appropriate order. First, the only sex offences with which the Defendant has been charged or convicted were the sex offences in the index offences. Secondly, his criminal record only contains one other offence of violence some 6 years before the index offences when he was convicted and sentenced to 3 months imprisonment for intentionally causing injury. Both the charge itself and the sentence he received suggest that the offence could be regarded as one of low level.
109Thirdly, it now seems clear that, although there was only that offence and the index offences which make up his record of violence and sexual offences, he was at the time suffering from the personality disorders, he had an undiagnosed schizophrenia, and he was abusing alcohol and other substances to a marked extent. One might reasonably have expected other sexual offences and, certainly, more offences of violence throughout that time, particularly when he was in his late teens and early twenties. That provides some basis for thinking that if there is further offending of any sort it will be rare.
110Fourthly, the Defendant does not appear to exhibit any symptoms of an identifiable Paraphilia or sexual deviancy. I accept that those who examined him could not reach a final view about that matter because of the reluctance of the Defendant to speak freely about matters concerning his sexual life and fantasies. Nevertheless, there is almost nothing in any of the material from the Department of Corrective Services or Justice Health that indicates any particular interest in sexual matters by the Defendant. The Crown was able to identify only one entry in the prison records of a reference to sex by the Defendant. This appeared in the progress notes of Vicky Walcott, a counsellor at the HRMCC. On 13 August 2002 the Defendant was telling her about a male voice that he hears in his head, and he told her that it made him think thoughts he had not wanted to think about for many years. She recorded:
Craig said "They made me think of sexual assault things and sex". Craig had a half- smile on his face when he said the word sex.
111On the other hand, the Defendant freely expressed thoughts of violence to those who dealt with him within the prison system, and in some cases identified the persons against whom he wished to perpetrate that violence. That provides some basis for the view that the Defendant made almost no mention of sexual matters not because he was deliberately suppressing those thoughts from those he dealt with, but because he, in fact, has no Paraphilia or sexual deviance.
112Professor Ogloff makes the point, which I accept, that most men who offend against adults by rape or other sexual assaulting behaviour do not have a Paraphilia of sadism or a sexual deviance. Nevertheless, where such matters are predictors of further sexual offending, and where the Defendant has expressed violent thoughts but not sexually violent thoughts, the absence of Paraphilia and a sexual deviance is a matter to be taken into account, and one which assists the view that the likelihood of further offending is low even though he presents an unacceptable risk.
113To keep somebody incarcerated because they might commit another offence at some time in the future is a very serious matter. Although it can be accepted that the legislation under consideration was designed particularly for repeat offenders and, in particular, for repeat offenders who could be regarded as paedophiles, the legislation is clearly capable of applying to somebody in the position of the Defendant. Because it is such a serious matter to incarcerate someone against the possibility of committing a future offence, the level of satisfaction before that can be done must be to a high degree of probability.
114The Plaintiff argues that adequate supervision would not be provided by an extended supervision order. It points to 3 matters in particular, in addition to the matters referred to in s 17(4), which have been considered earlier in this judgment.
115The first is the statement of Professor Ogloff that "Given Mr. Richardson's level of instability and lack of treatment ... his level of risk could not be adequately managed by an extended supervision order at this time." Whilst his opinion is entitled to great respect, that opinion is one of a number of factors which I am required to weigh in the balance concerning the appropriate order which should be made. In any event, I would need to be satisfied to a high degree of probability that adequate supervision could not be provided by an extended supervision order. In my view, the "adequate supervision" which is referred in the second part of s 17(3) is not supervision that will eliminate the risk of a further serious sex offence but supervision that is reasonably likely to reduce the risk of any further offence.
116Secondly, the Plaintiff relies on various breaches of parole and other orders to suggest that the Defendant is unlikely to comply with conditions attached to any supervision order. Whilst it can be accepted that the Defendant has breached a number of orders of that type these breaches took place between 1986 and 1990. The last breach was more than 20 years ago. This is a matter to be given minimal weight.
117Thirdly, the Plaintiff points to concerns of both Dr Ellis and Gavin Rowan, the Senior Compliance and Monitoring Officer with the Community Compliance and Monitoring Group within Corrective Services. In his report of 28 January 2011 Dr Ellis discusses how he believes the Defendant should be treated to address long-term risks. He considers that the Defendant should be treated in a high security forensic hospital without any leave for a 2 year period. He then says that he should be kept for a further 2 years in a medium security forensic hospital where some escorted and then unescorted leave could be given. Only after that period would Dr Ellis recommend a period in the community under supervision.
118Dr Ellis's reasons for this can be found in the last paragraph of his report as follows:
He has a history of non-compliance with community parole supervision including non-attendance, drug and alcohol use, itinerancy and attitudes expressed which do not support supervision. He has little practiced [sic] skills to live independently. Without a robust treatment approach beforehand, supervision in the community would likely be fraught with non-compliance with orders, little scope for individual treatment engagement and breaches resulting in return to custody.
119If the legislation enabled people to be incarcerated beyond a prison term based on risks of further criminal behaviour generally, or further violent behaviour, or further anti-social behaviour, Dr Ellis's views in this regard might have more force. The legislation is concerned only with the unacceptable risk that an offender will commit a further serious sex offence.
120It seems clear from other portions of Dr Ellis's report that the treatment plan that he details is also concerned with the violent tendencies of the Defendant and his "repeated threats and history of actual assaults, even within a supervised environment" (Dr Ellis at p 14). Although I must have regard to the extent to which the offender can reasonably and practicably be managed in the community the issue is whether an extended supervision order will provide adequate supervision against the unacceptable risk of the commission of a further serious sex offence.
121Mr Rowan raises a number of legitimate concerns based on the material he has seen. Mr Rowan has not met the Defendant but I do not think that his opinions are in any way diminished by that fact. It would be fair to say that, for the most part, the concerns which he expressed in a briefing note to an officer of the Department of Justice and Attorney-General derive from the Defendant's violence issues. Those issues are overlaid by his mental health issues.
122Mr Rowan expresses a number of concerns about the Defendant accommodating himself to life outside prison and, in particular, outside the high-security prison in which he has lived for a number of years. He identifies the significant problem that, unlike a number of long-term prisoners, the Defendant has not received lower security classifications to ease his return to the community. Those are valid concerns but cannot in themselves provide a reason for continuing to incarcerate the Defendant rather than releasing him on an extended supervision regime.
123Mr Rowan appeared to assume that the reason particular programs in prison were not undertaken by the Defendant were not undertaken by his choice. He also seemed to assume that the Defendant has not undertaken any therapeutic programs within the custodial setting. He holds the view that if the Defendant does not complete the CUBIT program in custody his risk is considered too high for participation in community sex offender group treatment programs.
124I have no confidence, based on the evidence of the experts, that the programs which are available within the prison system would be particularly suitable for the Defendant, nor that he would be likely to emerge from the prison system in a state any, or much, different from the state he is now in. Moreover, I have concerns arising from the fact that he never obtained a suitable level of classification whilst in the prison system that enabled him to participate in the programs. If he were put back in the HRMCC the proposed courses would not be available to him. I do not consider that the object of the Act to to encourage serious sex offenders to undertake rehabilitation would be achieved by making a continuing detention order.
125I do not seek to minimise the concerns that Mr Rowan has expressed and I accept that those concerns go to the issue of whether adequate supervision will be provided by an extended supervision order. However, I note that Mr Rowan says that CCMG officers are trained to deal with high-risk offenders who are subject to supervision in the community, that they assist offenders to reintegrate into the community with the aim of reducing the risk of recidivism, that they assist an offender in areas of health and education and in exploring employment and rehabilitation opportunities, and that they are available 24 hours a day, 7 days a week with a psychologist on the staff. I note further that the Community Offender Support Program has 2 centres within the Sydney metropolitan area which provides a communal living environment similar to that of a routine gaol wing, and that these centres are staffed by welfare and support staff.
126Further, although Mr Rowan's primary opinion is that the Defendant should not yet be released into the community in any form, he puts forward a number of highly appropriate conditions that should be attached to the Defendant in the event that he is at some time released.
127Whilst I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision, I am not satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order, particularly bearing in mind the matters I have referred to in paras [108]-[112] above.
128Whilst bearing in mind the drawbacks of comparing the outcome of cases based on a similarity of some of the facts in each case, I note that in Attorney-General v Fisher [2007] QSC 341 the Defendant was also a person who had been convicted of one serious sexual offence (within the meaning of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)), although he had also been convicted of an offence of indecent assault which fell outside the definition. He had other convictions for violence, and the psychiatrist thought that further violent offending was likely because of his Anti-Social Personality Disorder and rating on the psychopathy scale. Further, the psychiatrist believed he would only be likely to offend sexually in an opportunistic way arising from the violence. He was a young person with limited insight into his offending and problems. He was rated by the psychiatrists using Static 99 as well as other instruments that assessed dynamic elements in a similar fashion to the RSVP. MacKenzie J considered that in all the circumstances a continuing detention order was not required but that an extended supervision order should be made with a large number of conditions attached to it.
129It does not seem to me to be without relevance that the Defendant is now 16 years older than he was when he was admitted to prison, being now aged almost 44 years, and recently suffered such a severe heart attack that he was in an induced coma for some days and it was thought he would not survive. Even before that occurred, and for what it is worth, I note that for the 2 days the Defendant attended Court during the hearing of this matter his behaviour could not be faulted. I accept that part of the reason for that may be that he was then compliant with his medication, but I mention it because I do not have any concerns based on the Defendant's behaviour during the hearing.
130Dr Ellis appeared to accept that scheduling under the Mental Health Act may be the appropriate care for the Defendant at least in the first instance after he is released. I have already mentioned the fact that the Defendant is currently held under the Mental Health Act 2007. The order detaining him has been extended for a 3 month period until September 2011. To the extent that Mr Rowan's concerns include self-harm by the Defendant, and a real threat of harm to others, the provisions of the Mental Health Act are available to detain the Defendant until those issues are stabilised to the satisfaction of the treating psychiatrist.