The evidence
10 In support of its application the plaintiff relied on various supporting documents, directed to the matters specified in s 6 of the Act. In evidence was a schedule of the defendant's convictions, as well as the records relating to those convictions. This material disclosed sixteen convictions for offences committed in New South Wales, Western Australia and Queensland. The defendant is now aged 55 years. The first offence was a 1968 conviction for neglect and exposure to moral danger, for which the defendant was admonished and discharged. In 1974 there were convictions for two counts of malicious injury, one of stealing and one of stealing a motor vehicle. In 1976 a conviction for aggravated assault of a female. In 1977 convictions for assault and rape. In 1981 convictions for possession of concealable firearm; 2 counts of stealing; and 2 counts of stealing with actual violence whilst armed with a dangerous weapon. In 1982 a conviction for rape. In 1987 a conviction for produce dangerous drug. In 1988 a conviction for break enter and steal. In 1990 convictions for break, enter and steal; 2 counts of larceny (motor vehicle); and 2 counts of assault and carry firearms in a manner likely to endanger safety. In 1999 convictions for attempted aggravated sexual assault - child under 16 and aggravated sex assault - victim under 16 years. In 2003 convictions for sexual assault, possessing dangerous drug and escape in lawful custody. In 2005 fraud convictions for dishonestly obtain property from another and two counts of entering or remaining in a dwelling or yard. In 2007 a conviction of entering or remaining in a dwelling or yard. Other documents disclosed many convictions for various driving offences, including disqualified driving; negligent driving; failing to stop after an accident; and prescribed concentration of alcohol offences. The history also revealed recognisances forfeited when the defendant did not appear to answer charges.
11 A risk assessment report of the defendant dated 4 March 2010, was also in evidence. It had been prepared by the Senior Specialist Psychologist of the Department of Justice & Attorney General, Mr Sheehan, which was also signed by the Director Sex and Violent Offender Programme, Mr Ware. The report notes that the defendant consented to participating in a clinical interview for this assessment. In preparing the report regard was also paid to Departmental files, which included the sentencing remarks of Ducker J, given on 5 May 1999; Western Australian and Queensland Police and Departmental files; the defendant's CUBIT treatment file; his probation and report file; Justice Health file; and numerous other documents, including other earlier assessments of the defendant, created for various purposes.
12 The report outlined the defendant's history of sexual offending in 1977, 1983, 1998 and 2002 against adults and children, including male and female victims who have generally been known to him, with the 1998 offence being understood to constitute a serious sex offence as defined by the Act. Victim ages ranged from 12 years to adults. The offences ranged from sexual fondling to penile-vaginal sexual intercourse. An entrenched pattern of general criminality throughout the defendant's life was also noted. A number of further charges for sexual offences which did not result in conviction were also noted.
13 It was noted that parole in 2001 was then dependent on the defendant completing a sex offender treatment programme and residing in approved accommodation in Sydney and continuing treatment maintenance under a Departmental Forensic Psychology Services programme (FPS) in Surry Hills. The defendant failed to attend his initial appointment with the Parole Service, did not reside in the approved accommodation, or contact the FPS. Parole was revoked in October 2001, but the defendant had travelled to Queensland, from where he was later extradited in 2008, in order to serve the balance of his sentence. In the meantime the defendant had been convicted in Queensland of sexual and other offences and charged, but not convicted of other sexual offences.
14 The defendant's primary diagnosis was found to be Antisocial Personality Disorder. He is medicated with antidepressant medication, having been medicated with such medicines for over 10 years. The diagnostic criteria for Paedophilia were found not to be satisfied. His victims were found to be more a function of vulnerability and opportunity, than a fixated deviant interest in sexually immature children or sexual violence. There was a very long history of drug and alcohol abuse, as well as drug use in custody. A 12 session Alcohol and other Drug programme had been completed by the defendant, but management of substance use through a community supervision order was suggested.
15 The defendant had participated in the CUBIT programme in 1999, a programme offered to moderate and high risk/needs offenders while in custody. His relapse prevention plan was then noted to be deficient. He had initially declined to participate further in this programme, after his later extradition to NSW, which was regarded as reflecting a failure to appreciate his actual behaviour after release. There was a subsequent participation, but on examination, still ongoing ambivalence about his understanding of his offences.
16 The defendant had also participated in the Custodial Maintenance programme in 2000-01 for offenders who had already completed a formal structured sex offender program. He was then still found to struggle with completion of a relapse prevention programme and his insight into his own behaviour was noted as waning at times. His risk assessment was then found to be moderate, with increased risk if he engaged in illegal drugs, alcohol and other identified risk factors. His earlier behaviour after release was noted as indicating that he had been unsuccessful in transferring treatment gains in custody, into daily life.
17 The defendant further participated in maintenance programmes in 2008, but he then declined to further participate in the CUBIT programme. Following an unfavourable State Parole Authority hearing in 2009, the defendant did participate again in the CUBIT programme. There was little found to have been achieved by the defendant in that programme before the end of 2009, when observable improvements in behaviour began to be noted. The defendant had planned to relocate to rural Victoria on release, in order to reside with family until he finds his own accommodation. He has, however, been approved to reside at the Campbelltown Community Offender Support Programme, if required to reside in NSW after release.
18 After consideration of the defendant's history, the outcome of his participation in treatment programmes and his stated intentions, it was concluded in the report that the defendant was in the high risk category relative to other men who have sexually offended. He was regarded as requiring significant further assistance to enable him to overcome a lifetime of poor habits in community living. To expect him to independently adapt and maintain a positive, risk free lifestyle after release was to expect him to do what he had never before done in his lifetime. While possible, this was regarded as yet unlikely to be achieved, given the defendant's prolonged history of sexual offending behaviour and general pattern of antisocial conduct.
19 Other earlier psychological reports were considered. They were noted as revealing that the defendant has been a long term drug and alcohol abuser. That conclusion was confirmed by sentencing remarks made on conviction for the earliest of the defendant's sexual offences and other remarks made on later sentencing. In 1990 the defendant claimed that he had attended a one week drug rehabilitation programme in Canberra, and then to have recovered under his own efforts. On the evidence there had been no such recovery. A report prepared for the NSW Parole Board in 1990 recommended support and supervision for numerous identified problems, including drug and alcohol use.
20 In a 1999 report as to his state on the day of the offences for which he is presently in custody, the defendant's self report was a state of extreme inebriation, as well as having taking between 20 and 25 vallium tablets and smoked approximately six joints of marijuana. He was then diagnosed as requiring considerable psychotherapy. The report noted that the defendant's files include multiple references to ongoing alcohol, cannabis, opiate, including heroin and methadone and amphetamine abuse.
21 The defendant's suitability for anti libidinal medications was referred to, but the outcome of assessments of the defendant's suitability for such medication was not known.
22 The defendant's risk assessment was that while it was not scientifically possible to accurately predict whether or not the defendant would re-offend, actuarial risk assessments suggested that there was a high relative risk of the defendant re-offending, by comparison to other sex offenders. This reflected the defendant's intimacy defects, that is the incapacity to make friends and feel close to others, the defendant having a long history of transient living, and inhibited development of intimate and stable relationships with others and little past contact with family members, although evidence of a developing familial connection with his brother was noted. The defendant also had a long history of social networks with antisocial peers and failure to develop social connections with non-criminal persons. He had supported an antisocial belief system for many years, with some improvement in cognitive distortions noted during the recent CUBIT programme, although an ability to characterise antisocial behaviour as benign, was noted as still continuing, perhaps as a means of minimising the defendant's sense of wrongdoing. There had also been life long problems with self regulation. Current improvements were noted as possibly reflecting attempts at performance management in the period leading up to release. The defendant's history of sexual offences revealed ongoing problems with sexual self regulation, with offences reflecting sexual preoccupation, blurred sexual boundaries, a sense of sexual entitlement and a poverty of empathic connection with the distress of victims. Recent improvements in the CUBIT programme of behaviour reflecting impaired physical boundaries, were however noted.
23 It was observed that the risk factors identified in 2010 were similar to those identified in 2001. The conclusion reached in the 2010 report was that without further intervention, release into community life was likely to result in the defendant falling back into established patterns. The defendant had positive intentions, but his history suggested caution when predicting his future behaviour. Despite his stated intentions, he remained in the high risk category and required further support.