HIS HONOUR: By summons filed on 14 March 2016, the State of New South Wales seeks orders against Robert John Strong pursuant to the Crimes (High Risk) Offenders Act 2006. The State seeks an order that Mr Strong be the subject of a high risk sex offender continuing detention order for a period of three years or in the alternative that he be the subject of a high risk sex offender extended supervision order for a period of five years. Mr Strong is currently incarcerated pursuant to an interim detention order that expires on 6 August 2016.
On 4 April 2016, Hall J made orders under s 15(4) of the Act appointing Dr Andrew Ellis and Dr Adam Martin, each a qualified psychiatrist, to conduct separate psychiatric examinations of Mr Strong and to report to the Court upon their findings. The doctors' reports, both dated 10 May 2016, have been tendered in these proceedings.
The nature of these proceedings, the details of the applicable legislation and the principles that apply to its implementation by the Court have been the subject of repeated exposition in a large number of similar applications of this kind. It is unnecessary to recount those matters again. It is sufficient to observe that I can only make a continuing detention order if I am satisfied that Mr Strong is a high risk sex offender and that adequate supervision will not be provided by an extended supervision order. The test for making both orders requires me to be satisfied to a high degree of probability that Mr Strong poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
The State contends in this case that, by reason of the nature of his risks, and given that suitable post-release accommodation and support services are not currently available to Mr Strong, I ought to be satisfied that adequate supervision of him will not be provided under an extended supervision order and that a continuing detention order is required.
It is conceded by Mr Strong that he is a sex offender by reason of his relevant offending history and also that he would be assessed as a high risk sex offender upon the basis of the material provided by the State, including the reports of doctors Ellis and Martin. Those concessions are uncontroversial and I would have made findings to the same effect if required. It is implicit in his opposition to the making of a continuing detention order, however, that Mr Strong maintains that adequate supervision will be provided by the making of an extended supervision order and that the required preconditions for the making of a continuing detention order have not been established.
The differences between the parties can be briefly highlighted. The State submits that Mr Strong will not be adequately supervised by an extended supervision order for a number of reasons.
First, the relevant staff of Corrective Services NSW have made diligent efforts to locate suitable post-release accommodation and support services for Mr Strong. These efforts have so far proved unproductive.
Secondly, the expert evidence unanimously predicts that if Mr Strong is released into the community he would require close supervision, including physical monitoring, as well as the support of an agency suitable to meet his needs. He has spent virtually his entire adult life in custody and requires significant and constant direction to enable him to maintain his psychiatric functioning and abstinence from substances and to assist him with daily living activities. Suitable and stable accommodation is an essential component of extended supervision and is not apparently available.
Thirdly, and in a related context, without accommodation and appropriate post-support, Mr Strong presents a real risk of resuming drug and alcohol consumption, of ceasing both his anti-libidinal and anti-psychotic medication with an associated decline in his mental health. Each of these matters, taken alone or in combination, would increase the risk of Mr Strong committing a further serious sex offence. Dr Ellis has expressed a preference for Mr Strong to be detained and treated in a secure forensic psychiatric hospital but there is no obvious procedure to ensure that such accommodation will become available.
Mr Strong on the contrary submits that none of these matters warrants the making of a continuing detention order but that the State's concerns can be adequately addressed by an extended supervision order for a period of five years.
[2]
Mr Strong's criminal history
Mr Strong's history of offending is as follows.
[3]
Assault female
On 20 February 1975, Mr Strong approached a woman and placed his hand up her dress, on her thigh and under her underpants. He entered a plea of guilty and was released on probation for a period of 12 months on the condition that he be of good behaviour.
[4]
Assault with intent to rape
On 27 May 1977, Mr Strong entered a house where a 28 year old woman was residing. Mr Strong "menaced her with a long steel meat fork". He bashed the woman and, using a length of dog chain he had brought with him, choked her to unconsciousness. Mr Strong then attempted to have sexual intercourse with her. The woman regained consciousness and struggled with Mr Strong who eventually left after having sexually relieved himself whilst on top of the woman. Mr Strong's record of interview stated that he had sexual intercourse with her. He admitted to the offence and was sentenced to four and half years' penal servitude with a non-parole period of two years. Mr Strong was denied parole at the expiration of the non-parole period. He was released from custody on 8 May 1980.
[5]
Inflict grievous bodily harm with intent to have sexual intercourse and sexual intercourse without consent
On 29 April 1983, Mr Strong and a co-offender abducted a 17 year old woman and took her to a churchyard. The woman was punched a number of times to the face and then thrown to the ground where both offenders had sexual intercourse with her. Mr Strong was sentenced on these offences at the same time as the following offence.
[6]
Inflict grievous bodily harm with intent to have sexual intercourse and sexual intercourse without consent
On 2 May 1983, Mr Strong broke into an 83 year old woman's house in Armidale late at night with the intention of having sexual intercourse with her. Mr Strong had observed her for several weeks before breaking into her flat. He climbed onto the mattress where the woman was sleeping and punched her to the face six times. He then removed her nightgown by ripping it open before hitting her a further four times to the face. Mr Strong had sexual intercourse with the woman. The police attended Mr Strong's home and found him still wearing clothes stained with blood. Mr Strong admitted the offence. The woman required 30 sutures to the lacerations on her head and neck and suffered a sizeable degree of mental and emotional trauma. The woman's independence and health declined quickly and markedly following the assault and she died prior to Mr Strong being sentenced.
Mr Strong admitted to Anita Duffy, a psychologist that he was very angry with women after the break-up with his girlfriend, and that he felt that he could have been taking it out on the young girl and old lady. He showed very little recognition of the gravity of his offences, maintaining a flat, expressionless manner. Mr Strong was released from custody on 23 April 1996.
[7]
Indecent assault
On 13 January 1997, Mr Strong approached a woman unknown to him near Macquarie Place Park, The Rocks. He struck up a conversation with her, walked with her a short distance and then grabbed her groin with one hand and the zipper of her pants with the other. Mr Strong was arrested a short time later and was found to have a screwdriver secreted in his sock. He was convicted of indecent assault on 18 February 1997 and sentenced to a six month term of imprisonment. He was released on 12 July 1997.
[8]
Stalking, malicious damage and unlawful entry
In November 1997, Mr Strong attended the home of an 18 year old woman in Armidale unannounced on a number of occasions and sought out her assistance. He gave her a false name. On 27 January 1998, a person announcing himself by that name knocked on her door and asked to be let in. She refused. At about 12.30am, the woman heard the rear door handle turning and someone pushing heavily on the door. She then heard someone rattling the front door handle and very loud bangs. The following morning she found the fly screen to her bedroom window removed and a recycle bin under the rear bathroom window with footprints on the lid. On 28 January 1998, the woman made a complaint to the police. Mr Strong's fingerprints were located on the fly screen. An apprehended domestic violence order was made. On 29 January 1998, at 1.25am, the police picked up Mr Strong a number of blocks from the woman's home, under the influence of alcohol and in possession of a can containing petrol. He was convicted on three charges of stalking and sentenced to a fixed term of two years' imprisonment, which was reduced on appeal to a minimum term of 18 months. He achieved parole and was released on 27 July 1999.
[9]
Act of indecency with female over 16 years
Within two months of release, in September 1997, Mr Strong committed an act of indecency with respect to a female over sixteen years. In Dubbo, he exposed his genitals to a young lady as she was running past and spoke to her. The young lady was scared and feared for her safety. She saw the male fondling his genitals in front of her. Mr Strong was sentenced to six months imprisonment and released on 16 March 2000. Coinciding with this sentence he served the balance of his parole which had been revoked.
[10]
Stalking with intent and intimidate with intent
While in custody in respect of the previous offence, Mr Strong sent numerous letters to a woman who he had met once at a relative's house. The letters were of an explicit sexual nature outlining sexual acts that Mr Strong stated he wanted to perform on her, including cunnilingus and sexual intercourse. Mr Strong was released from custody on 16 August 2000 and moved into a house directly across the road from the woman's residence. Mr Strong watched the woman and her house from across the road. He bragged to others that the woman was "his woman" and "missus". About 9.00pm on 1 September 2000, Mr Strong was outside the woman's house, and followed her when she left on foot. The woman had to run to a friend's house to call a taxi to get away from Mr Strong. Later that night, from about 2.30am to 3.00am, Mr Strong watched the woman in another street in Armidale after she left a hotel in the company of friends. He also continued to watch her whilst she was waiting with friends to catch a taxi. On the night of 3 September 2000, Mr Strong was outside the woman's house in an intoxicated state, and was swearing and yelling abuse and threats towards her. The woman was not home at the time due to fear of injury or worse from Mr Strong. A witness reported the matter. Mr Strong was also seen to enter the yard of the woman's home and approach the house.
An apprehended violence order was served on Mr Strong on 5 September 2000. On the following day he left Armidale. He failed to appear at the Local Court in Armidale on 18 September 2000. He was at large until 4 October 2000 when he was apprehended by police in Newtown.
On 20 February 2001, Mr Strong was convicted of the offence of stalk with intent and intimidate with intent. He was sentenced to 5 years' imprisonment which was reduced to 4 years 6 months on appeal with a non-parole period of 2 years 6 months commencing 4 October 2000.
Mr Strong was pronounced an habitual criminal by Freeman DCJ on 29 June 2001 and sentenced by the Court of Criminal Appeal to imprisonment for 8 years concluding 3 October 2008.
[11]
Sexual intercourse without consent
On 6 February 2010, Mr Strong travelled with a friend from Armidale to Sydney. He stayed at the home of his sister where a woman and her children also resided. Mr Strong had been experiencing psychotic symptoms for which he received an anti-psychotic injection two days prior to the offence. On 13 February 2010, a friend of the woman visited her at home. They left and attended two local pubs before moving to another friend's house to watch a football game. The woman left in an intoxicated state. On arriving home, the woman fell asleep on her bed wearing jeans, underwear, and a singlet. She awoke sometime later to find Mr Strong lying on top of her with his penis in her vagina and herself in a state of undress. The woman screamed and ran out of the room. Her mother confronted Mr Strong saying, "what did you do, Robert?" He replied "I'm sorry" several times. Mr Strong left the premises and stayed elsewhere with relatives. On 16 February 2010, Mr Strong was arrested and charged with the offence for which he is currently in custody.
[12]
Section 9(3) and 17(4) factors in relation to Mr Strong
In determining whether or not to make an extended supervision order, I am required to have regard to the matters listed in s 9(3) of the Act. In considering whether to make a continuing detention order, I am required to have regard to the matters listed in s 17(4) of the Act. These provisions largely mirror each other.
[13]
Reports under s 9(3) and s 17(4)(b): court appointed experts
As already mentioned, Mr Strong has been assessed by two qualified psychiatrists. Dr Martin considered that Mr Strong meets the diagnostic criteria for sexual sadism disorder, substance misuse disorder, anti-social personality disorder and also appears to support the previous diagnosis of schizophrenia. Dr Martin considered that "Mr Strong's psychological problems are likely to be chronic and enduring".
Dr Martin also considered that Mr Strong has a high risk of future sexual offending. It is his opinion that with increasing age Mr Strong's libido might reduce and plausibly this might lower his risk of re-offending, but on balance he was not persuaded that at this stage his age is particularly relevant in significantly mitigating future risks to an acceptable level. He considered that Mr Strong's risk is likely to continue for many years.
Dr Martin noted the following factors with respect to Mr Strong:
1. The repetitive nature of his offending in various differing circumstances, involving sexual violence and sexual assault while the victim was intoxicated and unconscious; exhibitionistic offending; the use of weapons and threats; stalking behaviour; erotomanic fixations on unrelated women; offending against both family members and strangers.
2. He continues to have problems in relation to substance use. He continues to smoke tobacco in the smoke-free custodial environment and it could be inferred from a response given by Mr Strong that he uses drugs in custody. Mr Strong's substance dependence will be a continuing problem if he is in an uncontrolled environment and he is more at risk of sexual offending if using substances. Mr Strong has used substances even while in a controlled environment.
3. Anti-libidinal medication should be mandated. Mr Strong was willing to continue on his medication, but may not have understood the reasons for taking it. Medication will reduce Mr Strong's risk of re-offending "to an extent" but "would not completely remove the risk". It "could reduce it somewhat". It requires intensive physical monitoring (blood tests).
4. He would pose a risk to female staff managing him in the community as there would be a "real risk of him developing future inappropriate fixations of an obsessive nature with such female staff". He should have contact with male staff only if logistically possible.
5. Mr Strong requires "constant physical monitoring". There is very little persuasive evidence to suggest that he does not remain at high risk of further sexual offending if not monitored extremely closely and "watched constantly or otherwise contained in a safe environment". Even electronic monitoring would not allow for constant observation of Mr Strong.
6. His psychotic symptoms appear to be relatively well controlled with anti-psychotic medication, but his major mental illness is not the most important risk factor. His personality disorder and predisposition to aberrant sexual behaviour, complicated by substance misuse, are the most relevant factors. Placement in a psychiatric hospital may not for that reason be the most appropriate setting for him.
7. He nevertheless needs to see a psychiatrist regularly to monitor his mental state and medication.
8. He is unlikely to benefit from psychological treatment aimed at reducing sex offending because of his psychological problems.
9. He would need intensive supervision and supported accommodation in the community.
10. Assuming appropriate accommodation is available for Mr Strong, a gradual transition into the community from custody under very extensive monitoring over two to three years would be appropriate. From a risk perspective, Mr Strong can never safely live independently.
Dr Martin considered that the proposed extended supervision order would provide structure and containment that would mitigate some of the risk. However, as it would not allow for Mr Strong to be observed constantly, this may present an opportunity for further sexual offending. Dr Martin did not expect that Mr Strong's risk of sexual offending was likely to reduce materially over the next five years.
Dr Ellis considered that Mr Strong met the diagnostic criteria for schizophrenia and has shown a partial response to anti-psychotic medication. He also met the diagnostic criteria of a paraphilic disorder and there was sufficient clinical suspicion for an additional diagnosis of sexual sadism. A provisional diagnosis of anti-social personality disorder was also considered "probably warranted" owing to the long-standing and premorbid disturbance of interpersonal function. Mr Strong further met the criteria for substance use disorders (alcohol, cannabis, stimulants and opioids) which are currently in remission in a controlled environment.
Dr Ellis noted the following factors with respect to Mr Strong:
1. Anti-libidinal medication is the best treatment to address deviant sexual arousal. Mr Strong's offence history indicated this pattern of arousal for some offences. Mr Strong had been sexually aroused while punching the 17 year old woman in the 1983 offence. "Toucherist paraphilic urges" are the prime motivators for three offences. The use of force, coupled with carrying a weapon for one offence, and bringing a dog collar to the scene of another offence, and forcing the person to wear it "seriously raise the possibility of sadistic arousal". The pattern had been present since early teenage years and persisted. Physical coercion was employed to secure access to victims. Mr Strong showed a diversity of victim age and targeted strangers.
2. Anti-social personality disorder is another factor consistently identified with sexual re-offending. Mr Strong's institutional adjustment has improved with psychiatric treatment which indicates that not all of his behavioural problems stem from personality traits. His improvement is yet to be tested in community settings.
3. Schizophrenia is an independent risk factor for sexual offending. Mr Strong's current dose of anti-psychotic medication is at a therapeutic level. Some milder breakthrough symptoms are evident, indicating his illness is likely treatment resistant.
4. His substance use disorders are relevant to his risk in that they disinhibit behaviour and worsen symptoms of schizophrenia. He displayed poor insight into previous use and is not able to articulate strategies to avoid use and made statements that condone use of substances.
5. If released from prison, without involuntary treatment (outside a prison) under the Mental Health Act 2007 he would likely default, relapse and represent a serious risk to himself and others.
6. Anti-psychotic medication alongside psychiatric case management is the mainstay of treatment. He requires further evaluation in a hospital setting, including for a trial of clozapine anti-psychotic medication.
7. Mr Strong falls into a group of persons with a risk for serious sexual offending that is statistically high in frequency, of a type with serious consequences, and greater than a theoretical average offender.
Without the imposition of a continuing detention order or an extended supervision order, Dr Ellis was of the opinion that Mr Strong would be subject to the Mental Health Act. He concluded that "[t]here is no less restrictive form of care [than] a secure forensic psychiatric hospital for care at this point. Therefore it is most likely that he would be found a 'mentally ill person' according to this Act, if not further detained in prison, and subject to care, treatment and control under it".
Dr Ellis expressed the view that a "further continuing detention order that does not include hospitalisation does not satisfactorily deal with the complex treatment need for schizophrenia, [or] the rehabilitation needs of a person who has been institutionalised and who requires social and basic living skills". Dr Ellis considered that the "optimum treatment to address clinical concerns, and thereby risk should initially take place in a forensic psychiatric hospital, with oversight by the Mental Health Review Tribunal". Dr Ellis considered that Mr Strong would require at least six months in this kind of setting. He estimated a further two to three years in a medium secure forensic hospital setting with gradual escorted, then unescorted, leave to build upon improvements and then address issues relating to offending. He further estimated a period of two years in supportive community settings, under a community treatment order to consolidate.
[14]
Reports under s 17(4) and s 9(3)(c), (d) and (d1)
A Risk Assessment Report dated 14 August 2015 by forensic psychologists Samuel Ardasinski and Danielle Matsuo, was prepared in anticipation of an application being made under the Act. The authors were of the view that Mr Strong represents an overall high risk of sexual re-offending relative to other male sexual offenders and that his risk would be most significantly increased in situations in which he is affected by alcohol, has experienced sexual preoccupation for a period of time and has access to a potential victim. Due to the diversity in his offending, there is no clear pattern which would allow anyone managing him in the community to predict a clear offence pathway.
They outline the sex offender treatment undertaken in custody and note that Mr Strong is considered "treated" in that he has completed available programs. Based on the evidence, it appears that Mr Strong has not made any significant treatment gains whilst in maximum security at Goulburn prior to the end of his previous sentence, or recently during his participation in other programs.
The psychologists note that Mr Strong's institutional adjustment has fluctuated over the years but there has been a greater sense of stability during the current sentence than previously. They state that it is "noteworthy that Mr Strong has not been charged with any institutional misconduct since he completed treatment in 2014, and he has never attracted formal penalties for violent behaviours or sexually inappropriate behaviours in CSNSW custody." However, they refer to his "history of erotomanic obsession" with female staff members and note that the problem re-presented in late 2014 when Mr Strong formed an inappropriate attachment to a female staff member resulting in his transfer from Long Bay Prison and the placement of a security alert on the OIMS database. They state that this inappropriate boundary violation further substantiates his lack of progress with treatment.
These authors also consider that Mr Strong has "failed to achieve any satisfactory moderation in the significant risks he poses of committing [sexual offending behaviours] in the future". They considered that alcohol and drug abuse had been a major issue in Mr Strong's criminal background and his needs in this regard have not been adequately addressed. They administered the STATIC-99R assessment, which gave a total score of 8, placing Mr Strong in the high risk category relative to other male sexual offenders. Dynamic risk assessment tools, namely STABLE-2007 and RSVP, also returned a high risk assessment with respect to Mr Strong. They identified various dynamic factors relevant to Mr Strong including:
1. Substance abuse, noting that the combination of alcohol and possible drug use remained a significant risk factor for repeat sexual violence.
2. Unstable mental health. They noted that Mr Strong has poor insight into his mental health and if it was up to him, he would "probably" stop taking his anti-psychotic medications.
3. Sexual preoccupation and sexualising potential victims. Sexualising a potential female victim would predispose Mr Strong, who has poor self-regulation skills, to act upon his sexual thoughts without consideration for consent issues or the consequences of the victim.
4. Lack of community support and suitable accommodation.
The psychologists considered that the "challenge for those managing Mr Strong in a community setting is that he has failed to provide any demonstration that he understands how to adequately manage the risk factors which precede his offending behaviour".
Mr Ardasinski and Ms Matsuo prepared Supplementary Risk Assessment reports dated 1 March 2016 and 1 July 2016. They refer to the possibility that all accommodation options have been exhausted and that Mr Strong has not been found suitable for any supported post-release accommodation options. A continuing detention order would mitigate his risk through his incapacitation, may allow him to engage in maintenance sessions as a follow-up to previous sexual offending therapy, allow him to engage in interventions aimed at his substance misuse and may allow him gradually to reintegrate into society as he could participate in external leave programs, such as unsupervised day leave from prison. However, in their most recent report, they cast doubt on whether these therapeutic and leave options would be available, apart from one-to-one psychological support sessions.
The authors emphasised that upon release, Mr Strong requires a high level of support and supervision which cannot viably be provided by the same agency. He needs supervision to monitor him to minimise exposure to risks and he needs support to foster pro-social activities.
A Risk Management Report dated 23 September 2015 prepared by Teresa Sartor sets out a Risk Management Plan and canvasses the various risks to be managed including social contacts, mental health treatment, abstinence from drugs and alcohol, compliance with anti-libidinal medication, compliance with curfew and avoiding isolation by linking Mr Strong with pro-social and appropriate supports. The report identifies the issues that may limit the efficacy of management under an extended supervision order including:
1. Mr Strong's cognitive impairment inhibiting his capacity to comply with fundamentals of the extended supervision order such as scheduling and treatment programs.
2. Mr Strong's impulsive behaviour and poor capacity to plan. Cooperation is needed with such matters as curfews, electronic monitoring, approved activities, exclusion areas, compliance with recommended treatment including anti-libidinal medication and urine drug screening.
3. Lack of insight into his offending behaviour.
The report identifies the risk of harm to female staff and other service providers involved in Mr Strong's supervision.
An issue raised in the treatment report is the lack of available accommodation for Mr Strong. The report notes that Mr Strong's brother and mother, the only known family supports, are not in a position to provide post-release accommodation or support for him. The report refers to the fact that certain programs have refused post-release accommodation to Mr Strong on the basis that he lacks independent living skills, is outside their geographical area or because of his offence history and risk level.
[15]
Treatment and rehabilitation: s 17(4)(e) and s 9(3)(e)
Mr Strong is considered "treated" in that he has completed all available programs for sex offenders. As noted above, Mr Ardasinski considered that he has failed to achieve any satisfactory moderation in the significant risks he poses. Dr Martin considered that he is unlikely to benefit from psychological treatment aimed at reducing sexual offending because of his psychological problems. Those opinions are borne out by the evidence of his participation in the programs.
Between 23 October 2012 and 20 March 2014, Mr Strong participated in a custody-based residential therapy program for men who have sexually abused adults and/or children and who have an intellectual disability or other cognitive impairment, as well as limited adaptive skills in the gaol environment who need both intensive treatment and a controlled, safe environment. A treatment report prepared by Celia Langton dated 2 May 2015 stated that Mr Strong "made minimal gains and did not appear to understand the purpose of treatment". It appeared that Mr Strong's
"Cognitive functioning presented a barrier to him engaging in the program resulting in him demonstrating a very poor memory for information in the short and long term, and overall recalled only a handful of words or concepts used in treatment. He tended to learn things by rote and repeat them without considering the meaning behind them."
In 2008, Mr Strong participated in a one-off treatment program for men convicted of sexual offences who were not suitable for CUBIT participation. He was placed in this program as he was found to be unsuitable for CUBIT due to his high risk of harm to female staff. Mr Strong was unable to engage in the treatment process adequately due to an apparent underlying medical/neurological condition.
Dr Gordon Elliott, a psychiatrist, assessed Mr Strong in May 2015. Mr Strong reported that he has a high libido and in the community spends a large amount of time looking at heterosexually orientated pornography and pornography of women having sex with women as well as using sex workers and having sex with friends or associates. Mr Strong admitted to continuing to masturbate on a daily basis. In interview, Mr Strong indicated that he was willing to consider anti-libidinal treatment.
[16]
Compliance with any obligations while on parole: s 9(3)(f) and s 17(4)(f)
Mr Strong has had minimal time on parole as a consequence of being refused parole for past offences, only achieving release at the expiration of his sentences. During his limited time on parole, Mr Strong has not demonstrated compliance.
Mr Strong has not previously been subject to supervision of the intensity of an extended supervision order. The State maintained that the likelihood of compliance with community supervision must be seriously in doubt. Both court-appointed experts refer to his lack of insight into his psychological problems and the difficulties he will have in developing any meaningful self-management plans to avoid re-offending. Dr Ellis referred to his history of "non-compliance" with regard to treatment and the likelihood of "default" and "relapse" if he is not in prison or detained involuntarily in hospital. Similarly, Dr Martin referred to his very poor coping abilities and his use of substances, even when in a controlled environment. He considered that Mr Strong required "constant" physical monitoring, beyond what is possible by way of electronic monitoring, to ensure that he does not misuse substances and sexually re-offend. In such circumstances, the prospect of compliance with the conditions of an extended supervision order must be in doubt.
[17]
Criminal history and pattern of offending: s(9)(3)(h) and s 17(4)(h)
Mr Strong's significant criminal history discloses a clear pattern of sexual offending. This pattern was recognised in 2001 when he was declared an "habitual offender" under the Habitual Criminals Act 1957. Judge Freeman cited the report of Dr Lucire, psychiatrist, who wrote:
"[Mr Strong] is a serious sexual offender and his crime is anger rape. This is an intolerable offence. There is no evidence of any remorse for what he had done. There is no reason to believe that he is going to stop doing it. There is no evidence of insight into the fact that what he has done is very abnormal."
Judge Freeman noted the opinion of Dr Milton, a consultant forensic psychiatrist, in 1996 who wrote that "there is every likelihood his past violent sexual behaviour will continue" and that "I do not believe that the passage of time will moderate his violence". He also noted the opinion of Dr O'Dea, a consultant forensic psychiatrist, who concluded "in view of [Mr Strong's] offending history, his personality style and the problems he has experienced relating to women in prison, his risk of re-offending on release must be considered high".
[18]
Views of the sentencing court: s 17(4)(h1) and s 9(3)(h1)
In sentencing Mr Strong for the current offence, Judge North said, "I accept that this was an opportunistic offence brought about by the heavy drinking leading up to the actual incident". His Honour noted "the victim's vulnerability due to her being asleep after a heavy night of drinking" and found that Mr Strong took "advantage of the victim in the home in which she was living". His Honour noted that the assault was "clearly serious, however it was evidently accomplished without any degree of violence, although the offender must have removed certain articles of clothing and manipulated the victim's body so as to enable penetration to take place". His Honour also accepted that Mr Strong was "highly intoxicated at the time of committing this offence" and found that "there is ample material to accept that his intoxication and mental illness are both causally related to the commission of this offence".
His Honour noted that Mr Strong had spent much of his life in gaol and that he generally re-offends within a very short period of being released from custody, with the longest period he had spent without committing a crime being sixteen months prior to the commission of the subject offence. His Honour considered that Mr Strong was a person who, "given his age and … antecedents … is someone who may be pronounced a habitual criminal". However, his Honour declined to make a further habitual criminal declaration.
As to the offences committed in 1983, the Court of Criminal Appeal referred to the offence against the 83 year old woman as a "savage and brutal attack", "premeditated", "one of savagery and viciousness … of such a degree as is rarely encountered".
The primary sentencing judge, Enderby J, expressed the view that "the circumstances of these offences reveal a degree of brutality that is extreme". His Honour noted the record of interview between NSW Police and Mr Strong in respect of both offences saying "that there is absolutely no sign of contrition or remorse in it anywhere".
[19]
The safety of the community: s 9(3)(a) and s 17(4)(a)
The State's primary position is that the need to ensure the safety of the community mandated the making of a continuing detention order. Should Mr Strong be released into the community without an extended supervision order applying to him, there is a significant risk to the safety of the community. Mr Strong has a history of being released at the expiration of substantial sentences without supervision and sexually re-offending within a short period of time. The nature of his sexual violence, the period of time over which the offending has occurred and the diversity of his sexual offending (in terms of the ages of the victims and the circumstances surrounding the offences) cause significant concern about the prospect of Mr Strong committing further sex offences if he is released or released without supervision. His history of sexual violence is linked to his diminished psychiatric and psychological functioning and drug and alcohol abuse. The State submitted that, if he is released to the community, these issues cannot be addressed in the absence of the coercive powers of an extended supervision order.
[20]
State's submissions
The State maintained that the evidence was effectively all to one effect. The need to ensure the safety of the community justified the making of a continuing detention order. Adequate supervision could not and cannot be provided by an extended supervision order and the evidence establishes the need for a continuing detention order. If released into the community Mr Strong would require close supervision as well as the support of an agency suitable to meet his needs. He has been in custody virtually his entire adult life and would not manage without close direction and monitoring. He remains at risk of committing a further serious sex offence if released, even with the supervision and monitoring that the experts suggest as essential conditions attaching to his release. If being held in a secure forensic hospital for treatment is the preferred therapeutic option, no clear pathway to such an outcome has been or is likely to be identified in the short term.
[21]
Mr Strong's submissions
As already noted, Mr Strong does not contest the proposition that he is a high risk sex offender. He submits, however, that the appropriate order in this case is for an extended supervision order for a period of five years. That would provide flexibility for those charged with the responsibility of supervising him while simultaneously giving him access to appropriate treatment in the ways preferred by Dr Ellis.
It was submitted on behalf of Mr Strong, in light of the unavoidable reality that there was nowhere for Mr Strong to go if released today pursuant to an extended supervision order, that rather than proceed by default to the imposition of a continuing detention order, it would be open to me and preferable in all respects to adjourn the present application until community based options could be uncovered or generated. That would permit the ascertainment of whether suitable accommodation could be obtained for Mr Strong and place the Court in the optimum position ultimately to make the correct decision, particularly when there is no guarantee that Mr Strong could safely be dealt with as an involuntary patient under the Mental Health Act.
[22]
Consideration
As long ago as 2000, Sully J, dealing with an appeal against the making of the habitual criminal declaration, made the following observation about Mr Strong in R v Strong (2000) 141 A Crim R 56 at [101]:
"The applicant's condition is, by any reasonable reckoning, a difficult and troubling one. It requires careful and sensitive on-going monitoring and treatment. The applicant, however he might be released back into the general community, will need some very careful ongoing supervision. The effect of the sentence passed pursuant to the Habitual Criminals Act will give the relevant authorities some added flexibility in assessing whether, and when, and upon what basis, the applicant is to be returned into the general community. It might very well be that, in due course it will be obvious that the only fair way of dealing with the applicant is by taking steps, if it is possible to do so, to have him dealt with as some kind of forensic patient pursuant to the relevant mental health legislation. No doubt matters of that character cannot be rushed; but, if there is to be purely preventative detention at all of the applicant, then it must be a matter of course that the period of such purely preventative detention is to be the minimum which the evidence suggests will be sufficient to enable the Corrective Services authorities, and the Prison Medical authorities to deal in a properly humane fashion with this applicant."
Notwithstanding these careful and incisive remarks, Mr Strong was in due course released into the community without any of the support contemplated by his Honour and with predictable, not to say inevitable, consequences. Mr Strong submitted that, sixteen years on, the context in which the State's application for a further period of preventative detention falls to be considered remains unchanged.
Mr Ardasinski has noted that Mr Strong's periods of release in the community have been both with a minimum of supervision and long ago. There is therefore no reliable or accurate empirical material upon which to assess Mr Strong's likely contemporary response to release now. Mr Strong's capacity or inclination to comply with his medication regime and his ability or inclination to abstain from drugs and alcohol are the significant factors upon which his rehabilitation will depend. Unfortunately, Mr Strong's psychotic illness and endogenous personality disorder do no combine well as optimistic predictors.
I am satisfied to a high degree of probability that Mr Strong poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision but I am also satisfied that adequate supervision will not be provided by an extended supervision order. It may be that because of the complex and difficult collocation of endogenous and situational factors that make Mr Strong so difficult to treat, together with the high risk of violent sexual re-offending if he remains untreated, suitable extended supervision in the community will never become a realistic possibility. I would for my part never wish permanently to foreclose that possibility, nor am I asked or empowered to do so. The simple and tragic facts in this case make it clear that there is no currently available institution or supported accommodation with appropriate supervision for Mr Strong in the community that would adequately or sufficiently obviate the risk of further serious sexual offences being committed. It is not possible in my opinion at this time to formulate any suitable series or combination of conditions that might reasonably attach to an extended supervision order that would satisfactorily address that risk. It would be a triumph of hope over experience to proceed otherwise.
If consideration to an extended supervision order is to become a realistic proposition, it will only emerge with the benefit of the further close and intense therapy and treatment that the experts agree will be necessary. Mr Strong's immediate transfer to a secure forensic hospital would be the optimum outcome in my view but would not appear to be an achievable prospect at present. I am therefore left with no acceptable alternative than to make a continuing detention order. The question that remains is the duration of such an order.
Mr Strong has asked that if such an order were to be made, it should be for no more than one year. The State has sought a continuing detention order for three years.
All interested parties remain hopeful that Mr Strong may eventually be returned to society in one way or another. I consider that, having regard to the expert evidence about that possibility, and what needs to be achieved before it can happen, I should take an optimistic and expectant approach. I am of the view that Mr Strong should be made the subject of a continuing detention order for a period of two years.
[23]
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: 29 July 2016