State of New South Wales v Russell

The section 17(4) factors

1. The remaining material placed before the court in support of this application can be conveniently summarised under the various mandatory considerations in s 17(4) of the Act.

The offender's criminal history and any pattern of offending behaviour disclosed by that history, s 17(4)(h)

1. Mr Russell has a long criminal history beginning with his initial incarceration in 1974: 1. In 1974 he was convicted of three counts of assault as well as break, enter and steal and steal from a dwelling. He was sentenced to imprisonment. 2. In 1978 he was convicted of assault occasioning actual bodily harm and was sentenced to a 12-month period of probation. 3. In 1981 he was convicted of two counts of assault police and two counts of resisting arrest. He was sentenced to imprisonment for 3 months. 4. In 1981 he was convicted of common assault, and discharging a firearm in a public place. He received a fine for these offences. 5. In 1981 he was convicted of assault, resist arrest, stealing and malicious injury. He received a fine. Five months later he received more fines for driving as an unlicensed driver; assault; resist arrest; malicious injury and stealing. 6. In 1983 he was convicted of robbery and sentenced to 6 years imprisonment with a non-parole period of 2 years. 7. In 1985 he was convicted of common assault and sentenced to 2 years imprisonment. 8. In 1992 he was convicted of four counts of assault occasioning actual bodily harm, common assault and malicious wounding and sentenced to imprisonment for 3 years. 9. In 1992 he was convicted of the serious sexual and violence offences detailed above at [17]-[19]. He was sentenced to imprisonment for 3 years, with a total non-parole period of 2 years. 10. In 1991 and 1992 he was convicted of two counts of assault occasioning actual bodily harm and imprisoned for 16 months. He was also convicted of a further assault occasioning actual bodily harm and sentenced to imprisonment for 3 months. These offences were committed on another inmate while Mr Russell was in prison. 11. In 1996 he was convicted of assaulting another inmate and was sentenced to imprisonment for 4 months. 12. In 2001 he was convicted of three counts of aggravated indecent assault and placed on a suspended sentence. The victim was his 13 year old stepdaughter. Mr Russell touched her breasts, put his hand on her vagina, and kissed her. A condition of this suspended sentence was that Mr Russell completed a Sex Offender Rehabilitation Program. Mr Russell never attended this program. When discussing this offence with Dr Kerrie Eagle he denied the offences and said "she didn't want me to be with her mother." 13. In 2003, he was convicted of two counts of assault occasioning actual bodily harm was sentenced to imprisonment for 4 months. 14. In 2004 he was convicted of assault occasioning actual bodily harm and sentenced to a head sentence of imprisonment for 18 months with a non-parole period of 9 months. The victim was his then-girlfriend. 15. In 2006 he allegedly committed a number of sexual and violence offences on a female victim, his cousin. They were committed to the District Court for trial, some charges were ultimately not proceeded with and Mr Russell was found not guilty on the other charges. 16. In 2008 he was convicted of two counts of assault occasioning actual bodily harm and one count of assault and sentenced to imprisonment for 18 months. The victim was his current girlfriend. 17. In 2009 he was convicted of the index offences. 18. In 2017 he was convicted of assault occasioning actual bodily harm with no other penalty. This offence was committed on another inmate. 19. In 2019 he was convicted of common assault for an offence on another inmate and was sentenced to 9 months imprisonment with a non-parole period of 6 months.
2. Mr Russell's criminal record also discloses approximately 31 offences of break and enter, robbery, stealing and good in custody capable suspected of being stolen. These offences date from 1974 to 2009.

The views of the sentencing court: s 17(4)(h1)

1. The applicant was sentenced by Woods QC DCJ for the index offences on 2 July 2009. His Honour commented that the offender had a "long and tragic history of criminality flowing from deprived family circumstances and exposure to violence." When commenting on how many children Mr Russell had fathered, his Honour observed: "Whether he fathered twelve children or some other number is not entirely clear, but certainly I accept that he does have numerous children. This is relevant in the present case because [Mr Russell] is a strikingly handsome aboriginal man, who, it would seem, has little difficulty, during the limited time he is out of gaol, forming sexual relationships and fathering children, whatever be the precise number. The situation is quite extraordinary and indeed pathological. It would appear to explain much about this present case. While [Mr Russell] did not set out to arrange the circumstances in which he spent much of 6 April 2008 with the victim, once she was in his company he simply pressed on to some kind of sexual contact with her, however incongruous it was, however dangerous to him it may have been, or however non-consensual it was."
2. His Honour went on to observe that: "Little in this sad history excites any realistic hope of rehabilitation. This man is thoroughly institutionalised by the prison environment and in my view a significant factor in sentencing this man should be simple prevention. Regrettably rehabilitation appears minimally relevant. Deterrence is an important consideration, both for him and for others who may be tempted to misbehave in this fashion. As I have said, it is a case where one important purpose of the prison sentence must be to keep him away from people who he may victimise. I say this bearing in mind the decisions of the High Court in Veen's case and I specifically identify the incapacitative element in this sentence within the range of what I judge to be the just desserts for this criminality, in light of other recognised principles of sentencing."

The results of expert assessments as to the likelihood of the offender committing a further serious offence: s 17(4)(c)

1. Mr Samuel Ardasinski is a psychologist employed by Corrective Services. He prepared a Risk Assessment Report ("RAR") for the previous CDO application and a supplementary report for this application.
2. Mr Ardasinski's first RAR was dated 16 March 2018. He noted Mr Russell's criminal history and summarised the circumstances of the index offences. He noted that Mr Russell fulfilled the criteria for anti-social personality disorder and also that he demonstrated elevated scores in terms of psychopathy, with "a high-level of psychopathic features which can be linked to poor treatment outcomes and increased violence risk, including sexual violence risk and general recidivism risk."
3. Mr Ardasinski recommended that Corrective Services continue to monitor Mr Russell and that it was important for him to complete program in custody, such as the Custody Based Intensive Treatment program ("CUBIT"). This program is now known as the High Intensity Sex Offender Program ("HISOP"). In his opinion, the most likely scenario for future offending by Mr Russell would involve forced sexual intercourse against a known female acquaintance or partner and may involve the use of a weapon to gain victim compliance. The likely motivation would be sexual gratification or release after a domestic dispute in which Mr Russell felt slighted. Alternatively, Mr Ardasinski stated that if Mr Russell found a more vulnerable teenage victim then he might use psychological coercion.
4. In Mr Ardasinski's supplementary RAR dated 2 July 2019, he opined that Mr Russell remains as high a risk now as he did in 2018 when the previous CDO was imposed. In fact, he opined that the risk is potentially higher due to the fact that Mr Russell dropped out of the CUBIT.
5. Mr Ardasinski described Mr Russell as a relatively criminally versatile offender and noted that there had been reports of sexually predatory behaviour in custody and sexual interactions with transgender persons. He stated that after Mr Russell re-started the HISOP he was not able to complete it because he assaulted another inmate. He re-iterated that Mr Russell's level of anger had risen and, as such, his risk assessment had not changed.
6. The two court-appointed experts who prepared reports for the final hearing before Button J were Mr Tim Watson-Munro, a forensic psychologist and Dr Richard Furst, a forensic psychiatrist.
7. In Mr Watson-Munro's report dated 31 October 2018 he noted that he was unable to complete formal risk assessment with Mr Russell (because of logistical issues in relation to the operating hours in the clinic and inability by the staff to remain in the clinic for supervision). In the absence of a formal risk assessment, Mr Watson-Munro stated that he was of the view "…that Mr Russell poses a risk of committing further serious offences. The basis of this lies in his prior history and his ongoing custodial history, inclusive of episodes of violence in jail and alleged predatory sexual behaviour towards younger males. Until these issues are satisfactorily addressed through an ongoing and solid commitment to treatment, I believe that the risk cannot satisfactorily managed in the community."
8. Mr Watson-Munro cited Mr Russell's poor impulse control, intense substance use, poor interpersonal skills and inability to understand personal boundaries as the reason for this conclusion, stating that such issues "[needed] to be comprehensively addressed and treated prior to any realistic consideration of his involvement with treatment in the community referable to an ESO". He was concerned about Mr Russell's "continuing obfuscation" in relation to the index offences.
9. In Dr Furst's opinion, Mr Russell was in a category of offenders at a high risk of re-offending violently and sexually. He also expressed the view that there was only limited evidence that custodial-based treatment programs such as the CUBIT reduced the risk of re-offending.
10. In 2009, the psychologist who provided the report at the sentencing for the index offences before Wood QC DCJ, Mr Smith, opined that Mr Russell's early years involved a dysfunctional family characterised by high levels of alcohol, violence and fear. His opinion was that Mr Russell grew to young adulthood with "a strong sense of anti-social values, sense of being a victim, a strong sense of inadequacy and a fierce determination." Mr Smith reported that, "the adult years had been largely described as, a career offender." He also stated, that "over time it has taken very little pressure or frustration for [the applicant] to make the wrong decisions and his re-offending seems to occur very quickly."

The reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s17(4)(b)

1. Following the orders made by Fullerton J, Dr Kerri Eagle and Ms Chelsea Dewson were engaged to provide reports for the court for the final hearing.

Dr Kerri Eagle

1. Dr Eagle assessed Mr Russell on 6 February 2020. In a report dated 21 February 2020 she provided a summary of his demographic information, recent presentation, sexual offender program involvement, past psychiatric history, substance use history, index offences, prior sexual offences and prior violent offences.
2. Dr Eagle diagnosed Mr Russell as having a substance use disorder involving the use of alcohol and cannabis. However, she noted that this was in remission in a controlled environment.
3. She also diagnosed Mr Russell with an antisocial personality disorder. This was the basis of a "pervasive pattern" of disregard for the rights of others, unlawful behaviours, impulsivity, aggressiveness, reckless disregard for the safety of himself and others, consistent irresponsibility and lack of remorse. She stated that the offender had an entrenched negative attitude to the world and responded to conflict with aggression.
4. In her opinion, there was insufficient information to diagnose Mr Russell with a paraphilia. This was because his offending had been relatively opportunistic and appeared to be motivated by the vulnerability of the victim, rather than in response to sexual preference.
5. Dr Eagle assessed Mr Russell's risk of re-offending using the Static 99R, and the revised 2014 version, the results of which are summarised below. When assessing the combined results of these tests, Dr Eagle observed that: "On the basis of a statistical risk assessment utilising the Static 99R and the Stable 2007, Mr Russell falls into the well above average category of sexual offenders (category IVb). Offenders within this category are reported to reoffend at least three to four times the rate of the average offender convicted of a sexually motivated offence. An offender in the well above average category has been found to reoffend sexually, on average, at a rate of 26.8% after 5 years (17.4 - 36.3 CI)."
6. Dr Eagle also used the Historical Clinical Risk Management 20 scale, Version 3 ("HCR-20-3"), as detailed below. In her overall assessment of Mr Russell' risk, Dr Eagle stated that Mr Russell was at a "substantially elevated risk" of committing a future serious sexual offence and a further violent offence. In her opinion, it was less clear whether the offender would commit a further serious violence offence. She explained her conclusion in the following terms: "Mr Russell falls into a category of offenders at the highest risk of reoffending sexually and violently. The factors that are primarily contributing to Mr Russell's ongoing risk of reoffending include his poor insight and attitude to previous offending behaviours including his overall unwillingness to take responsibility for his actions; his emotional instability; his persistent negatives attitudes towards supervision and therapeutic programs; his distorted cognitions towards others and the world resulting in pervasive negative emotionality driven by grievances; and his limited prosocial support network or prospects for stability and employment in the community."
7. In Dr Eagle's opinion, Mr Russell could reduce his risk if he meaningfully engaged with a therapeutic process of intense psychotherapy once or twice a week for a long period of time. If he did so he might improve his conflict resolution skills and enhance his social cognitive skills. [Emphasis added.].
8. Dr Eagle explained the basis of Mr Russell's problems and why this form of therapy could work during her cross-examination as follows: "…[W]hen you've been exposed to trauma, you can become quite hypervigilant so you see the world as a dangerous place because you've always - you've had so many experiences where you've been hurt or harmed, and so everybody is, you know, automatically in your mind, out to harm you. Now, that cognitive distortion, that may be able to be reflected on in an individual psychological session where there's some trust and explored, so that when he's faced with a situation where he assumes someone is about to hurt him, he might be able to reflect on that."
9. Dr Eagle further stated that Mr Russell's ability to cope in the community was unknown. His risk could be reduced if he obtained employment, complied with supervision, reduced impulsivity and stabilised his behaviour, emotions and thoughts. She recommended the highest level of support and structure in accommodation if the offender was to be released into the community. Such accommodation, in her view, was particularly important in managing the offender's risk. Dr Eagle considered an ESO of at least five years would likely be necessary to manage such risk. If appropriate accommodation was not available, Dr Eagle recommended a CDO for at least 6 months.
10. During her evidence in court, Dr Eagle was asked about her recommendation that Mr Russell have one-on-one psychotherapy and she stated the following: "….people with the types of vulnerabilities that Mr Russell displays and that is basically vulnerabilities over a lifetime, where the vulnerabilities do appear to be quite entrenched, he's going to require regular individual psychotherapy at least on, say, a weekly basis, although that would be determined by a clinical psychologist after a period of assessment and continued, almost for the foreseeable future really, probably at least for sort of 12 months, but then you know, potentially for years if you're going to see some change or some sustained change in his behaviour. Having said that, he may achieve some improvements in his ability to manage his emotions for instance or tolerate stress or interact with others over a shorter period of time, and that may enable him to engage in other types of programmes like ..(not transcribable).. group programmes, which I do still see as, as playing an important role. It's just that at this stage he's not capable I don't think of participating in those group programmes."
11. And later: "I think even if he is provided with the intensive psychological therapy I don't think there's any guarantee that he's going to be able to address these problems quickly or even at all, but I think that's my best recommendation. However, if he didn't have any attempt at individual psychological therapy to work on these psychological vulnerabilities, then I think his risk will remain high and I think his risk will remain high to others around him generally, whether it be other residents, staff, the community at large."

Ms Chelsea Dewson

1. Ms Dewson is a registered forensic psychologist and provided a report on 25 February 2020. Ms Dewson's report was based on a 90 minute consultation with Mr Russell via AVL and other materials, such as Mr Ardasinski's report and previous risk assessments. She described Mr Russell's presentation and mental status, response to supervision, criminogenic treatment and psychosocial history. In her discussion of the offending with Mr Russell, she noted that he demonstrated little victim empathy and "appears to continue to engage in cognitive distortions in relation to his offending and these likely allow him to overcome any moral objections that he otherwise may have had to sexual and violent offending."
2. In her Psychological Assessment of Mr Russell, Ms Dewson noted that he has not had a documented history of psychopathology. However, she adopted the opinion of Mr Ardasinski that Mr Russell may have Antisocial Personality Disorder ("ASPD"). She explained that ASPD relates to a reduced moral sense or conscience and subsequent disregard for rules or the rights of others. She also added that the social and criminal history of Mr Russell likely met the criteria for a conduct disorder during childhood. She further observed that Mr Russell has a polysubstance abuse problem involving alcohol, petrol and cannabis.
3. Before indicating her conclusions as to the overall risk posed by Mr Russell, Ms Dewson made the following observations about the inherent limitations in any assessment process: "It is important to note caution with respect to the practice of risk assessment. Although useful in guiding decisions about risk and the management thereof, the practice of risk assessment is subject to several important limitations. Specifically, given the base rate of some offending is relatively uncommon, the prediction of such behaviour is difficult. Secondly, actuarial risk assessments provide information that pertains to the risk posed by groups of individuals that were studied in the creation of the instruments and it is always unclear how any one individual will perform relative to the group that was studied. Further, risk assessments are by their nature limited to the data available and are bound by time. Risk assessments can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments attempt to restrict the possibility that spurious factors, such as "gut feeling" and prejudice can sway judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment, the evidence supporting such assessments is moderately valid only."
4. Ms Dewson then summarised the previous risk assessments carried out by Mr Ardsinski, Dr Richard Furst and Mr Watson-Munro. Overall, she assessed Mr Russell as being a high risk for both sexual recidivism and violent re-offending. A potential risk scenario for him, in her opinion, would involve alcohol intoxication and physical or sexual violence against women known to him, especially after an incident such as a brief argument. She noted that "acts of violence are likely to occur during times of conflict or when he feels disempowered or ridiculed. In this context, weapons may feature in his offending; specifically, those which are commonly found within the home (e.g. knives) and sexual violence could be used to degrade the victim and as a means for Mr Russell to meet his own sexual wants".
5. In formulating this high level of risk, Ms Dewson echoed Mr Ardasinski's concerns about Mr Russell's inability to mitigate his risk factors in custody: "In considering any progress made by Mr Russell in relation to addressing his offending, he presented to the assessment with an intellectual understanding of some risk mitigation concepts, although it doesn't appear that he has been able to implement these practices, as evidenced by recent violence within custody and his failure to complete prescribed treatment. To echo the points made by Mr Ardasinski, there is evidence to suggest that treatment failure is associated with an increased level of risk. As such, any potential benefits he may have gained whilst within the HISOP program have likely been balanced (or potentially outweighed) by the risks associated with treatment drop out. In taking into consideration this information, Mr Russell appears to have made little progress in ameliorating his risk of reoffending and is therefore considered to remain at a high risk of sexual and violent offending in the community."
6. In her opinion, Mr Russell's risk could be reduced with greater investment on his behalf to engage in treatment, and to make changes on an emotional level. She stated this was best achieved by individualised treatment in addition to the group-based program in custody. She suggested that: "Should he agree to participate in a treatment program, it may be beneficial for him to engage in a few individual based sessions prior to commencing, with the intent to prepare him for treatment and to discuss contingency plans should he encounter any difficulty within the program."
7. Ms Dewson recommended the Violent Offenders Treatment Program ("VOTP"), or, given the concerns about his safety, the HISOP. She endorsed a CDO for a period of 2 years.
8. In her evidence in court, Ms Dewson was asked about her opinion regarding Dr Eagle's recommendation that Mr Russell have weekly psychotherapy. She responded as follows: "I think there's two different circumstances. There's one where he does individual treatments for the purpose of them doing individual treatments. The other is where he does individual treatments for the purpose of entering into a group‑based program. They have quite different durations. Should he do individual treatment on its own I imagine that that would take quite a long time, possibly a number of, of years. If he engages in the individual sessions and then goes into a treatment program I imagine that that would be much shorter, because essentially it would almost act as a bit of a Band‑aid fix to allow him to get into the program in order to develop those, those more or those better skills that he needs for the long term effects regulation."[Emphasis added.]

The results of any statistical or other assessments as to the likelihood of the offender committing a further serious offence, s 17(4)(d)

1. A number of tools were used in the expert reports which assessed Mr Russell's likelihood of committing a future serious offence. Most of these tools involved an identification of Mr Russell's static and dynamic risk factors. Static factors referred to unchangeable factors (such as prior offending) and dynamic (such as community support) are enduring characteristics that may be associated with the likelihood of re-offending.

Static 99-R

1. The Static 99R is an actuarial risk assessment tool which evaluates the risk of sexual recidivism among adult male sexual offenders based on their demographic and criminal history. The test contains ten items developed from data from four samples across Canada and the United Kingdom. When Dr Eagle utilised this tool in her assessment of Mr Russell in her report of 21 February 2020, she placed him in the "well above average" category.
2. Similarly, in Ms Dewson's report of 25 February 2020, she assessed Mr Russell as Risk Level IVb ("well above average risk"), with a total score of 7 out of 10. She noted that Mr Russell's risk was higher than 97.2% of sexual offenders. Offenders with the same score as Mr Russell's score generally had a recidivism rate of 27.2%, with a margin of error in this estimate of 24% to 31%. Ms Dewson was also of the opinion that the Static 99R test "has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism".
3. Mr Ardasinski scored Mr Russell according to the Static 99R and, in his assessment; Mr Russell fell into the highest risk category for general and sexual re-offending. In Dr Furst's report dated 3 November 2018, he assessed Mr Russell according to the Static-99R and Mr Russell was classified as "high risk".

Stable-2007

1. In her report dated 21 February 2020, Dr Eagle also utilised the revised 2014 version of the Stable 2007 tool. The Stable 2007 uses empirically-based risk factors. In Dr Eagle's assessment, Mr Russell fell into the "above average risk" category, which is the highest category; although Dr Eagle noted that this tool should be used with caution with an Indigenous offender.
2. Mr Ardasinski also assessed Mr Russell with the Stable 2007, noting that Mr Russell had a high density of criminogenic needs and required a high level of intervention and/or supervision. He also fell into the high risk category when Mr Ardasinski assessed him against the RSVP. Mr Ardasinski identified six criminogenic needs that needed to be addressed: 1. Substance abuse (specifically alcohol but also other drugs); 2. Lack of interpersonal intimacy skills, hostility towards women; 3. Personality disorder, and sense of adult identity as an 'offender'; 4. Increasing sexual preoccupation, sexual entitlement issues; 5. Victim access, lack of consideration as to the impact of offending on self or others; 6. Being told 'no' or otherwise not getting his way or perceiving an insult.

Spousal Assault Risk Assessment ("SARA")

1. Ms Dewson also assessed Mr Russell using the SARA, which is a 20-item tool used to assess the likelihood of domestic violence offending. She concluded that Mr Russell had a high risk of re-offending. This was due to his history of violence against acquaintances and release/community supervision violations. She also noted that he was unemployed, witnessed childhood family violence, had impulsivity and behavioural instability, was sexually jealous and had committed sexual violence, used weapons, violated no-contact orders and likely holds attitudes that condone spousal violence.

Violence Risk Scale ("VRS")

1. The VRS is another actuarial tool which is used to assess an offender's static and dynamic risk factors and their capacity for post-release violence. Offenders are scored against six static and 20 dynamic variables. Ms Dewson stated in her report that five static and 18 dynamic static variables applied to Mr Russell. She highlighted that VRS focuses on identifying positive changes as a result of treatment intervention and noted Mr Russell's difficulties with treatment. She scored Mr Russell as having a score of 66 on the VRS, which placed him in the "high risk" and within a group of offenders that had a violent recidivism rate of 54.5% after five years

HCR-20-3

1. The HCR-20-3 involves a structured professional judgment assessing multiple risk factors commonly identified in the literature as being associated with increased risk of future violence.
2. The risk factors that the HCR-20-3 identifies have been empirically validated over the course of 20 years of research. In Dr Eagle's report, she identified the historical risk factors of concern for Mr Russell as violence, other antisocial behaviour, substance use, relationships, employment, personality disorder, traumatic experiences, violent attitudes and treatment or supervision response. The clinical factors relevant to Mr Russell were insight, instability, violent ideation and treatment or supervision response. The risk management factors relevant to the offender were professional services and plans, living situation, personal support and treatment or supervision response.
3. In Dr Furst's report dated 3 November 2018, he assessed Mr Russell according to the HCR-20-3. Mr Russell was classified as "high risk". He had also assessed Mr Russell on a previous occasion.

Static-2002R

1. Ms Dewson also assessed Mr Russell using the Static-2002R, but noted in her report that this tool has "no meaningful difference" when compared to the Static 99R "in relation to predictive accuracy". She assessed him as scoring within the "above average risk" category for being charged or convicted of another sexual offence.

Risk for Sexual Violence Protocol ("RSVP")

1. Ms Dewson's report of 25 February also contained an assessment of Mr Russell according to the RSVP. The RSVP involves assessing 22 items in relation to mental disorder, sexual violence history, psychological and social adjustment and manageability. The dynamic risk factors that she identified for Mr Russell were chronicity of sexual violence, non-sexual criminality, physical coercion in sexual violence and attitudes that support or condone sexual violence. Other dynamic risk factors included Mr Russell's problems with self-awareness, stress or coping, child abuse, substance use, intimate relationships, non-intimate relationships, supervision and employment.

Rehabilitation programs in which the offender has had an opportunity to participate s 17(4)(e); Any options available that might reduce the likelihood of the offender re-offending over time, s 17(4)(e1),

1. I propose to deal with these two factors together as, on the material before me, they both concern the same issue, namely, Mr Russell's failure to participate in the recommended program and the need for him to do so to minimise his risk.
2. It was the common view of all of the experts that Mr Russell is an untreated sex offender and needs to complete the HISOP. It is usually of 6-10 months duration and It is considered by the experts to be the only group-based program and the only offence-specific program of sufficient intensity that could address Mr Russell's risks. Another program recommended by the experts was the VOTP (described below at [132]-[136]).
3. Mr Russell was referred to the CUBIT program in November 2015, assessed as suitable in November 2016 and was offered and accepted a place in the program on 13 March 2018. It was proposed that he would commence the program within the last seven months of his sentence and hopefully be able to finish it before his sentence expired on 3 October 2018. Unfortunately, he was suspended from that program due to bad behaviour but wanted to withdraw from it in any event.
4. Mr Ardasinski described Mr Russell's engagement with the program as "very poor from the start." He walked out of his very first session. According to Mr Ardasinski's calculations, in 2018 Mr Russell attended 38 two-hour group sessions and 20 to 25 individual interventions or case reviews. He noted that Mr Russell requested a discharge in October 2018. Mr Russell was suspended from the CUBIT by letter dated 27 November 2018 in which he was advised that his re-entry would be considered upon completion of the suspension (10 December 2018) and that he could not have individual treatment (as requested by him).
5. The CUBIT Progress Notes from 7 May to 25 June 2018 and the Behaviour Management Plans dated 23 May 2018, 7 January 2019 and 15 February were also before the Court. They indicate that Mr Russell walked out of three of the seven groups that he attended: on 7, 10 and 22 May 2018.
6. As at the time of the CDO made by Button J, it was envisaged that Mr Russell would return to the HISOP and complete it by the expiration of that 12 month CDO.
7. On 7 January 2019, having completed the period of suspension, Mr Russell accepted an amended Behaviour Management Plan in order to return to the CUBIT. He was to be monitored for a month from 16 January 2019 because he had received a charge of intimidation during the period of suspension in 2018. He returned to the program on 15 February 2019 and recommenced group treatment on 20 February 2019. However, following the assault on another participant in the CUBIT program described above, he was discharged again on 21 March 2019 after only 13 sessions. His level of engagement is relevantly summarised in a progress note of 5 March 2019 as follows: "He stated that he would not do anything differently because he did not see anything wrong with his behaviours…he appears to have the capacity to engage in the group process with the focus not on him. Does not appear to take on constructive feedback, instead interprets feedback as being a personal attack."
8. If Mr Russell was to return to the CUBIT, he would need to complete treatment modules in the areas of Self-Esteem, Life History Review, Treatment Gaols, Offence Pathways, Risk Factors and Early Warning Signs, and Self-Management Plans.
9. Danielle Matsuo is the Director of State-wide Programs at Corrective Services. She is responsible for the development, coordination and management of state-wide program for all offenders, including high risk sexual and violent offenders. She provided two affidavits in this matter and gave evidence at the final hearing.
10. She described the HISOP and the VOTP. She explained that the HISOP program is designed for sex offenders who are assessed as being at moderate to high risk of offending, and is delivered in an open group setting. During the 10 month long program with sessions running three times a week, the participants reside together in self-contained units that comprise a therapeutic community. This therapy format is designed to provide the offenders with the opportunity to work intensively (24/7) on changing the thinking, attitudes and feelings that led to the offending behaviour.
11. This intensive treatment is not delivered on an individual basis due to evidence-based benefits of therapy in a group setting as well as the high cost implications. Nor is it delivered in the community due to public concerns in relation to risks associated with untreated offenders in the community.
12. In relation to the VOTP, Ms Matsuo deposed that this is a high intensity program designed for medium-high and high risk violent offenders. It is delivered in a similar setting as the HISOP, namely in an open group therapy format within a therapeutic community that is not available in the community or on an individual basis.
13. Ms Matsuo deposed that Mr Russell may be eligible for the VOTP in the event he was to receive a further CDO, decline to make a new referral for the HISOP and make a referral to the VOTP. In her opinion the VOTP would not be able to address issues specific to sexual self-regulation; those issues would need to be addressed in adjunct individual sessions. She further opined that, given the significant overlap between Mr Russell's risk factors for violent and sex offending, the VOTP may impact on risk reduction but only to the extent to which Mr Russell would be willing to engage in the program.
14. In relation to other options available in custody, Ms Matsuo deposed that there may be a possibility for individual contacts with a psychologist but there are limitations to such an approach due to a high demand for services of that kind. She also opined that individual sessions, when contrasted with residential group treatment program, would not comprise effective treatment, because of the low intensity contact and lack of opportunity to be monitored or tested.
15. Ms Matsuo gave evidence at the preliminary hearing on 29 November 2019. and at the final hearing. She confirmed that Corrective Services did not have the resources to fund the form of psychotherapy recommended by Dr Eagle, but agreed that she would be able to arrange for the short form or "band aid" individual sessions suggested by Ms Dewson. She was asked this by Ms Orman-Hales in cross-examination: "Q: Is it your position with representing Corrective Services in your role that they would be able to provide at least some individual psychotherapy for perhaps about six weeks? Is that right? A. The position, to be clear and it's really around this word of "psychotherapy", so psychotherapy is effectively what I understand, certainly from my own sort of knowledge, but also from where Dr Eagle appears to be coming from, she is referring to some really intensive individual contact to start addressing those deep, deeper or core issues that Mr Russell is experiencing. That type of work is the type of work that would require - would need to happen over a long period of time in order for him to sort of experience any stability, I guess, if you're going to start discussing those sorts of issues and then for him to sort of stabilise prior to going into a group program. We cannot commit - Corrective Services cannot commit to that type of individual intervention. The type of intervention that we could commit to wouldn't start to look at those core or sort of causal issues. It would simply be readying Mr Russell to actually come back into the group program and - and dealing with strategies, I think I heard earlier Ms Dewson suggested it would be about strategies to cope essentially whilst he was in the intensive group program."
16. The Offender Integrated Management System ("OIMS") case notes from 20 May to 1 November 2019 also record Mr Russell's continuing poor attitude and behaviour towards anyone in authority as well as the fact that he becomes agitated and aggressive if he does not get his way. They record Mr Russell's discharge from the HISOP due to ongoing behavioural difficulties and fighting and that his psychologist's referral was closed after he refused to attend a referral appointment, stating that he did not want to participate because he was not interested. The notes also describe Mr Russell's continued troubles when working in a large group environment and his negative case notes regarding his interactions with staff in the education area. They further noted the deteriorating situation regarding his employment in the kitchen.
17. In summary, the evidence before the Court was that high risk offenders like Mr Russell would require at least 300 hours of offence specific treatment for it be considered effective and commensurate with the risk. The time currently completed by Mr Russell amounts to only 120-150 hours. Ms Matsuo estimated that it would take between six and eight months for Mr Russell to finish the CUBIT. To complete the VOTP, supplemented by adjunction individual sessions in relation to sexual offending, Ms Matsuo estimated a period of up to 10 months.
18. The evidence as to why Mr Russell refused to re-enter and finish the CUBIT/ HISOP was complex.
19. When he was last in the program, Mr Russell stated that he did not wish to be speaking about sex offences with other sex offenders. The progress notes dated 22 May 2018 record that Mr Russell did not want to open up in front of other people in the group and did not trust them not to share information with others in the community.
20. Mr Russell also informed officers that he was not willing to undertake the VOTP because he considered he would be in danger in the program. Mr Russell stated that he would be prepared to complete any required programs in the community. He has also explained that he would be willing to undertake one-on-one therapy in custody. When evidence was being given about this at the final hearing, Mr Russell sought to clarify the position by speaking directly to me. Given the fact that he was on AVL and could not see his counsel (who was appearing by way of telephone) I permitted him to answer (with his counsel's permission). He stated the following: "DEFENDANT: The reason why I didn't get, I, I didn't get to finish the sex offenders program, the CUBIT program, right, and then I got a 12 month CVO to go back in to finish it and then when I went back in there to finish it, an inmate inappropriately grabbed me on the groin area in front of the psychologist and other inmates, and I subsequently hit the other person; I assaulted the other person. The police came; I made a statement to the police; made allegations against the other fellow that he'd inappropriately grabbed me and I admitted to hitting the other person and so I subsequently got kicked out of the program and was sent back to Junee. I come back here for - I was up here for almost 11 months. I was working in the kitchen for that time and then I had - I almost had an altercation with another inmate in the kitchen, so I removed myself from the kitchen and went - I was - but I was in an area, in a C, a class O area and because I, I removed myself from the kitchen because of the other inmate, I got threatened by five other inmates in C well from the kitchen because this other inmate had another co-worker. So I ended up in LA and the reason why - I, I don't want to - I had no qualms about doing the CUBIT program or the VOTP, but I'm just going around in circles. I'm going into do these programs, I'm just going around in circles. All I'm doing is defending myself from getting into fights, left, right and centre. The gaol is full of young people and, you know, they look at me, they think I'm a child molester and all of this sort of stuff and I'm, I'm defending myself stupid and that's why I'm in LA. I'm in LA, limited association, to be away from those other inmates. For me to go down and do the VOTP or the CUBIT I have to sign back into SMAP to go and do the program. It's not like they say that you're protected or anything. They know what goes on in there and, you know, I go into VOTP, I don't want anybody to jump on me or king hit me or I end up dead or I might do that to them. I don't want that. I, I want - I generally want to get out of gaol and just live my life. All I'm trying to say is, your Honour, is that I'm just going around in circles. I'm, I'm, I'm, I'm in a protected area now where I'm, I'm, I'm okay in here, but I'm just going around in circles. You know, look, okay, if I have to stay in gaol to do another program, well, how are we going to go about doing that? It's not that I don't want to do the program, but how am I going to go about going down there to do the program without - and be safe and finish the program? That's - I went to CUBIT; I signed off and went to CUBIT to do it and then and, and, and then I got into trouble down there." [Emphasis added.]
21. OIMS notes for 22 January 2020 record that Mr Russell completed Workplace Hygiene on 22 November 2019, Health Survival Tips on 2 October 2019 and WRED on 16 June 2017. These were described as short courses. He has otherwise not completed any vocational courses in custody.
22. The OIMS notes for 12 February 2020 record the following during an interview with a staff member: "Mr Russell presented as anxious and institutionalised and became emotional during the interview (placed his head in his hands, sighed deeply, wiped his eyes) and spoke about feeling concerned about being released. He stated "I've made a home in here" and expressed his concern about how much things have changed - he noted that he doesn't have a mobile phone, doesn't know how to use on, doesn't have any money as he didn't participate in the call with Centrelink due to "having a bad day" and withdrawing from everything (he identified that he tends to withdraw when he is feeling stressed or overwhelmed and acknowledged that he needs to not do this) and he expressed concerns about not having accommodation. Mr Russell also verbalised his concern about the level of uncertainty surrounding his release as a decision had not yet been made by the court."

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, s 17(4)(d1)

1. To meet this statutory requirement, Kelli Grabham, the Corrective Services NSW High Risk Offender Applications and Operational Governance Officer, prepared a Risk Management Report (RMR) dated 2 August 2019 detailing Mr Russell's prior management by community corrections, his current post release plans, his risk of re-offending and risk management plan.
2. With respect to his prior management by community corrections Ms Grabham stated that on every occasion Mr Russell was released on parole since 1986 his parole was revoked due to his failure to comply with the conditions or re-offence or both. His most recent supervision in relation to a good behaviour bond in 2003 was breached due to re-offending. The breach report recorded that his poor response to supervision was due to his unwillingness to participate in recommended programs. His placement at a residential rehabilitation facility in 2005 was unsuccessful when his child sex offender status became known, as this facility accepted female clients with small children. His placement at another facility was not successful due to his failure to comply with the rehabilitation process and reporting obligations. It is noted that Mr Russell completed the EQUIPS (Explore, Question, Understand, Investigate, Practice to Succeed) addiction program while in custody in 2016.
3. Ms Grabham interviewed Mr Russell on 16 July 2019 in relation to his post release accommodation should he be released on an extended supervision order ("ESO"). Even though he was initially positive, Mr Russell was not interested in exploring those options nor did he nominate any family members with whom he could potentially reside. A further attempt to discuss this on 17 July 2019 was refused by Mr Russell who stated that he "did not want to talk to parole".
4. Ms Grabham noted Mr Russell's risk of re-offending assessments as falling in the high risk category for general re-offending, sexual offending and violent offending. Noting that Mr Russell's risk factors had not changed since the psychological assessment report of 16 March 2018, Ms Grabham detailed identified his risk factors as being substance abuse (specifically alcohol consumption and other drugs), lack of interpersonal intimacy skills and hostility towards women, personality disorder and sense of adult identity as an "offender", increasing sexual preoccupation and sexual entitlement issues, victim access and lack of consideration of impact of offending both of self and others, and being told "no" or otherwise not getting his way or perceiving an insult.
5. With respect to identified risks to be managed and monitored, Ms Grabham's risk management plan included the following: interviews with Mr Russell, field visits, third party contacts, monitoring, schedules and curfews, referrals to Corrective Services psychological services, psychiatric, alcohol and other drug services, alcohol and other drug testing, no contact with children under 18 years of age and non-association and place restrictions. The plan also provided details of management strategy and its limitations.
6. Ms Grabham provided three affidavits detailing, inter alia, the efforts she had made to find post release accommodation for Mr Russell in the event he was placed on an ESO. The efforts were all unsuccessful until just prior to the final hearing when an approval was received for Mr Russell to reside at the Campbelltown Integrated Support Centre "ISC" if he was released under an ESO. She explained the difference between an ISC and a COSP ("Community Offender Support Program"). They are both services run by Corrective Services to provide accommodation to high risk male offenders when no other accommodation options are able to be sourced. The difference is mainly in relation to the number of beds at each location. They are both short term accommodation solutions which are based in the community funded and run by Corrective Services. Generally, a high-risk offender can reside there for up to three months. There is potential for the manager to extend for a further three months depending on the offender's compliance with their case management.
7. It is always anticipated that anybody who is staying at an ISC or the COSP is actively seeking appropriate accommodation in the community. In the previous two months, both locations have been full and both locations have had a waiting list. This has impacted on the ability of people to go into placements at either locations because they have not been able to relocate people in the community. One of the main issues that many of the offenders who use these services face is with budgeting. One purpose of the stay at a COSP/ISC is to try and save enough money so that at the end of their stay they can move into more independent accommodation

Whether the offender is likely to comply with the obligations of an extended supervision order s 17(4)(e2)

1. Dr Eagle identified several risk factors which might hamper Mr Russell's ability to comply with an ESO. These included his severe emotional dysregulation, aggression, non-compliance with treatment and supervision, poor insight and lack of acceptance of responsibility. She noted that "Mr Russell has had no community access (such as day leave) and his ability to function and cope in the community after a lengthy period of time in a prison in unknown and untested." In her opinion, Mr Russell would need a high level of supervision and support in order to comply, which might be provided by a COSP or ISC.
2. Ms Dewson was of the opinion that Mr Russell could not be managed adequately in the community under an ESO. She stated that Mr Russell is "untreated" and has consistently been assessed as being high risk of sexual and violent re-offending. An ESO would not give Mr Russell the high level external management and monitoring for him to function effectively in the community.
3. When considering the possibility of an ESO, Mr Ardasinski considered the supervision measures that could be utilised to ensure Mr Russell's compliance, including the possibility of a Child Protection Prohibition Order ("CPPO"). He stated: "I would conclude that such other community-based options for Mr Russell's risk management are inadequate, given his assessed risks and needs, and especially given that he remains untreated going into the final seven months of his sentence."

The level of the offender's compliance with parole or ISO or ESO conditions: s 17(4)(f)

1. Although Mr Russell has never been on an ESO he has an unfortunate history of breaching parole. He has been released to parole on nine occasions and failed to complete parole on any of those nine occasions. Those breaches are as follows: 1. On 7 November 1986 his parole was revoked for alleged assault on his girlfriend and for failing to comply with a Community Corrections direction to see a psychiatrist; 2. On 31 July 1987 his parole was revoked because of a failure to report; 3. On 19 August 1988 his parole was revoked because of a failure to report; 4. On 7 December 1995 his parole was revoked because of a recommendation from Rehabilitation Centre staff, noting Mr Russell's volatile, abusive and aggressive behaviour. He also failed to report as directed; 5. On 22 August 1997 his parole was revoked because of a failure to moving to Adelaide without notification; 6. On 4 June 2004 his parole was revoked due to the May 2004 assault occasioning actual bodily harm offence and a failure to report. Mr Russell also failed to report in relation to his suspended sentence received in 2001; 7. On 10 March 2005 his parole was revoked because he was not at his directed abode nor attending a rehabilitation facility as directed; 8. On 14 December 2006 his parole was revoked because of a failure to report; 9. On 18 April 2008 his parole was revoked because of the index offences.
2. Mr Russell was also in breach of a suspended sentence in March/May 2002.

Consideration

1. I propose to first consider whether s 5C of the Act is satisfied and then turn to consider whether, in the exercise of the discretion conferred under s 17(1) of the Act, I would dispose of the application by way of a CDO.
2. As for the four requirements in s 5C of the Act, I have already stated above that I am satisfied that Mr Russell is an "offender" who has previously served a sentence of imprisonment for a "serious offence" for the purposes of s 5C(a)); that he is a "detained offender" for the purpose of s 5C(b) and s 13B of the Act; and that this application for a CDO has been made in accordance with s 13B: s 5C(c).
3. That leaves s 5C(d) of the Act. I could not impose a CDO on Mr Russell unless I was satisfied to a high degree of probability that Mr Russell poses an unacceptable risk of committing a "serious offence" if not kept in detention under a CDO.
4. The phrase "unacceptable risk" is not defined in the Act. It was considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in the Act is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]). In addition, s 5D of the Act provides that this 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 of the person committing such an offence.
5. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
6. Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
7. In the present matter I am satisfied that the consequences of Mr Russell committing a serious sex offence would be significant and that the likelihood that the risk will eventuate in this matter is also significant based on, inter alia, the expert evidence regarding his risk of re-offending summarised above, the actuarial risk assessments, Mr Russell's criminal history, his pattern of offending, his relatively short periods in the community without re-offending and his poor history of compliance with parole conditions in the past. Button J put it this way when placing Mr Russell on the previous CDO (at [47]): "……quite apart from the unanimous opinion of the experts, as a matter of common sense exercised by a layperson sitting as the tribunal of fact, I readily accept the proposition that Mr Russell is at high risk of seriously re-offending, either sexually, or with separate violence, or both. I say that simply because he has been committing offences of violence since the 1970s; he has committed such offences both in the community and in custody; he has failed whenever he has been on conditional liberty; the index offences were committed a few days past one month after he was last released to parole; he is institutionalised and will find re-adjustment to living in the community extremely difficult; and he has received very little therapy over the many years that he has spent in custody."
8. I adopt this observation and have independently come to the same conclusion. The risk of Mr Russell committing a serious sex offence on someone known to him is high as is the risk of him committing a serious violence offence against either someone known to him or a stranger if he felt slighted or threatened in some way.
9. As for the discretionary exercise of whether I should place Mr Russell on a CDO, I am satisfied that, regrettably, there has not been any identifiable change in his risk factors since the last CDO was made by Button J. I have had regard to the evidence relevant to the s 17(4) factors summarised above and in particular s 17(2). They all lead to the same conclusion. Mr Russell is an untreated offender. None of the experts opine that his risk could be appropriately managed in the community in a way that is actually available. The only proposed accommodation is temporary Corrective Services housing. and it is anticipated that he would move to a boarding house or other group or community accommodation thereafter.
10. There was some suggestion in the OIMS notes, and this was confirmed by some of the expert evidence, that Mr Russell has some limited insight into his violent offending. He knows that he needs to remove himself and isolate so as to prevent him losing his temper and striking out. For this reason, he removed himself from the kitchen job he had and chose to go into limited association. The difficulty with this is that he cannot, and would not want to, live in isolation for the rest of his life. He needs to acquire some skills so that he can manage his risks in a group environment. In any event, even if he does show some little insight into his violent offending, there was nothing before the court to suggest that he has any insight into his sexual offending.
11. Dr Eagle's opinion was that Mr Russell needs intense psychotherapy to learn the skills required to live in the community. Ms Matsuo's evidence that Corrective Services is not able to provide this mode of treatment either in custody or in the community. Both Ms Dewson and Ms Matsuo were of the opinion that the only practical and available type of intervention that could reduce his risk would be intensive group treatment in the nature of either the HISOP or the VOTP. Ms Dewson considers that it would both "place the community at risk" and be "setting Mr Russell up for failure" to release him without suitable treatment.
12. Each of the experts considers that the successful completion of appropriate treatment such as the HISOP would potentially reduce his risk. The difficulty is that Mr Russell objects to further participation in the HISOP on the basis of threats against his safety. He has repeatedly stated that his life is at risk if he has to go back to group therapy. He would only agree to treatment in the community or to participate in the HISOP by AVL. Neither of these options is available.
13. Ms Matsuo's evidence was that the HISOP is run in a small unit which can only house up to 20 offenders at any one time. She described the level of security as "quite sound". She repeated that Mr Russell needs a group based cognitive behavioural therapy program of high enough intensity in order to meet his needs and the only ones on offer that could actually achieve this are either the VOTP or the HISOP.
14. Ms Matsuo was cross examined about Mr Russell's objection to undertaking the HISOP due to fears for his safety and the fact that he is well known within the gaol. She was asked by Ms Orman-Hales what Corrective Services proposed to do if Mr Russell continued to refuse to participate in the program. Ms Matsuo stated, "this really is for Mr Russell a choice that he needs to make with respect to the options that Corrective Services can offer him".
15. There was a breakthrough, of sorts, on the question of possible treatment when Ms Matsuo conceded in her evidence that although the level of psychotherapy suggested by Dr Eagle could not be provided, a short course of one-on-one counselling for six weeks or so could be provided in order to prepare Mr Russell to participate in a group program such as the HISOP.
16. I have had regard to Mr Russell's explanation for not wanting to participate in any group therapy. He is on Limited Association ("LA") but the HISOP is conducted in Special Management Area Placement ("SMAP"), which is a less strict form of protective custody than LA. He would need to leave LA to go into SMAP to undertake the HISOP. Although it is to be accepted that there is an unfortunately high prospect of violence in correctional centres, the pool of people who he believes might assault him is a small one and the evidence is that the Unit has a "sound" degree of security.
17. It is not uncommon for sex offenders to refuse to undertake the CUBIT/HISOP on the basis that they claim they are innocent and/or do not need or want treatment. This is not Mr Russell's objection. Without wishing to downplay his fears, the fact remains that the expert opinion is that he needs the group therapy-based training and the court has not been provided with any available options for him to advance without it. It is to be accepted that undertaking the HISOP is no guarantee of risk reduction but Mr Russell has had virtually no assistance in custody to address his risk factors, largely of his own doing.
18. When Button J placed Mr Russell on a twelve-month CDO it was anticipated that he might be able to address his risk factors during that time. That has not occurred and nothing has effectively been achieved from him serving yet another period in custody. Although it is most unfortunate that the Court is placed in the position of being required to determine a further CDO application for Mr Russell, he does not come before the court as someone who has taken every step that he can in the custodial environment to facilitate his eventual release. On the contrary, it is to a large extent his own attitude that has led to this second CDO application being made. The fundamental problem for Mr Russell is that his dysfunctional and traumatic childhood followed by a lifetime of repeated incarcerations means that his attitudes are entrenched. But the Court is concerned with risk and unless Mr Russell can modify his attitudes in some way his risks will remain too high for him to be released.
19. Ms Orman-Hales accepted the evidence that Mr Russell need assistance to be able to cope with the group environment but she submitted that "something needs to happen" to provide reassurance to Mr Russell that he will be able to move forward and not be subjected to repeated CDO applications.
20. A further difficulty is that Mr Russell has not even been assessed as C3 classification which would allow him to undertake graduated release; he would first need to progress from his current C1 classification to a C3 classification (as determined by the Serious Offenders Review Council), and would then need to be approved for such leave by the High Risk Offenders Assessment.
21. There is no doubt that Mr Russell needs help to reduce his risk factors but the weight of the evidence did not support Mr Russell being released on an ESO. Having already been satisfied to a high degree of probability that he poses an unacceptable risk of committing either a serious sexual offence and/or a serious violence offence if he is not detained, I am also satisfied that in the exercise of my discretion he should be placed on a CDO.
22. As for the length of the CDO, Ms Dewson considered that a CDO of 2 years would be appropriate to permit Mr Russell to complete an appropriate treatment program and to engage in graded release to the community. Even though Mr Russell has completed a number of the modules in the HISOP, the evidence is that he has only completed 120-150 out of 300 hours and it could take six to eight months for him to finish it. He could also be offered six weeks of one-on-one counselling beforehand to prepare him for it and try to overcome his concerns about return to this group therapy.
23. Dr Eagle considered that any CDO would need to be at least of 6 months duration to permit the completion of individual psychological counselling on at least a weekly basis.
24. The State contended that the CDO should be for a period of 2 years in order to provide a realistic timeframe for Mr Russell to engage in a treatment program and any available graded release opportunities. On behalf of the applicant it was submitted that a shorter period, as suggested by Dr Eagle, would be more appropriate.
25. I am not satisfied that a CDO of 6 months would be sufficient for Mr Russell to complete what he would be required to complete before his release could contemplated. Nor am I satisfied that it is appropriate to order him to serve another 2-year CDO. The change in circumstances of the one-on-one counselling is a new opportunity for Mr Russell to take steps to help himself and address his risk factors.
26. I am satisfied that the length of the CDO should be 12 months.
27. It would be most unsatisfactory if in 12 months' time the court was to learn that Corrective Services had not, in fact, arranged for the important one-on-one counselling that Mr Russell obviously needs. It would also be most unfortunate if the court was to learn that Mr Russell had squandered this opportunity and was no further advanced on the road to addressing his risk factors.

Orders

1. In consideration of the above, I make the following orders: 1. Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a continuing detention order for a period of 12 months commencing on 15 April 2020 and expiring on 14 April 2021. 2. Pursuant to section 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to issue for the committal of the defendant to a correctional centre for a period of 12 months commencing on 15 April 2020. 3. Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, an, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

Endnote

1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 November 20111 at 13710.

Amendments 23 April 2020 - 14 April 2020 amended to 14 April 2021 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: 23 April 2020