Events which have occurred since the making of the continuing detention order
25As will be seen from paragraph 81 of my previous judgment, I was not at all confident that the defendant would willingly undertake the CUBIT program, or that if he did he would successfully complete it. Upon the material that was before me at that time, and upon further consideration of it now, I remain of the view that such scepticism was well founded. I am pleased to say, however, that the defendant did in fact enrol in, and successfully complete, the CUBIT program.
26I have before me reports by Mr Michael McElhone, specialist psychologist, CUBIT, Metropolitan Special Programs Centre and Mr Patrick Sheehan, senior specialist psychologist, Serious Sex Offender Review Group, both of Corrective Services NSW.
27Mr McElhone's report is primarily concerned with the defendant's participation in the CUBIT program. The defendant was a participant from 20 January 2010 until 8 November 2010. Mr McElhone reports that the defendant's "general approach to treatment was positive". Initially his acceptance of responsibility for his offences was very limited but in progressing through the program he came to accept a greater level of responsibility. When first discussing the processes that motivated his decisions to sexually offend, his narrative is said to have been quite simplistic. However, later in treatment he came to elaborate on the "contextual factors that he identified as being associated with his sexual offences".
28Mr McElhone carried out a risk assessment process with a view to assisting in the prediction of sexual recidivism for the defendant. Mr McElhone used the Static-99R instrument and in a range of scores from minus 3 to plus 12 rated the defendant with a score of 5. Such a score is said to have placed the defendant in the "medium-high risk category relative to other male sexual offenders". Mr McElhone reports that the rates of sexual recidivism for sexual offenders who had the same score as the defendant were between 11.4 per cent and 25.2 per cent over 5 years, and between 22.6 per cent and 35.5 per cent over 10 years. Individuals with such a score have an expected recidivism rate which is 2.23 times higher than the "typical" sexual offender. Mr McElhone noted, however, that an instrument such as Static-99R has certain limitations. It does not necessarily directly reflect the recidivism risk of an individual offender.
29Mr McElhone also assessed certain "dynamic risk factors" that were present in the defendant's case. The first factor, intimacy deficits, is said to refer to the general capacity to make friends and feel close to others. Mr McElhone reported that there were noticeable changes in the defendant's ability to interact in a positive manner with others through his participation in CUBIT. The next factor, significant social influences, is said to be regarded as one of the most well-established predictors of criminal behaviour. It is reported that the defendant's social support network is currently limited to professional supports, such as those provided through Corrective Services. Through treatment, however, he did work on developing a more adaptable orientation to potential social support.
30In terms of general self-regulation, that is an individual's ability to self-monitor and inhibit antisocial thoughts and behaviour, Mr McElhone reported that the defendant's history reflects significant problems in this area. However, there were reported changes in his thinking and emotional responses which seem to be associated with more adaptive reactions to interpersonal problems with people in authority.
31Sexual self-regulation is a reference to an individual's ability to control their expressions of sexual impulses. Mr McElhone reported that the defendant's work in CUBIT had been important in the context of him learning to better control his sexual impulses. Mr McElhone wrote, "this has been reflected in his reported ability to challenge and reframe unhelpful thinking, his apparent ability to better manage emotional distress, and his reported ability to incorporate thinking about long-term consequences into his decision-making processes".
32The next dynamic risk factor upon which Mr McElhone reported was cooperation with supervision, said to be whether or not the offender appears to be working with supervision or against it. Mr McElhone noted that the defendant had a long history of failing to comply with supervisory conditions. I referred to a number of examples of this in my earlier judgments. Mr McElhone reported that cooperation with supervision was focused on during the defendant's treatment. He reports that the defendant will need to continue to carefully monitor his thinking and his responses to staff supervising him in the community. He will need to communicate openly with support staff, such as his community based maintenance psychologist, to ensure that he is able to reflect on his attitudes and respond appropriately to the expectations of supervision.
33In the next section of his report Mr McElhone addressed issues relating to the defendant's future management. In relation to "risk factors and warning signs", he reported that the defendant was able to identify a number of risk factors, internal warning signs, and external warning signs. It is said that the defendant demonstrated that he was able to recognise and effectively intervene to manage manifestations of these factors and warnings.
34In terms of self-management, Mr McElhone reported that the defendant will need to continue to pay attention to his reactions to problematic situations, to challenge negative, unhelpful and unrealistic thinking, and to implement adaptive responses to these situations.
35In concluding his report, Mr McElhone said that he had taken into consideration both static and dynamic risk factors and that he considered that the risk rating of "medium-high" on the Static-99R instrument accurately estimated the defendant's risk at this time. He recommended that the defendant participate in a community based maintenance program, and that he participate in Alcoholics Anonymous or similar alcohol and other drug programs to assist him with his goal to maintain abstinence from alcohol and illegal drugs.
36Mr Sheehan noted that, at the time of his previous assessment of the defendant in September 2009, it was difficult to accurately gauge his true attitude towards his risk of sexual recidivism. This was contrasted with an interview with the defendant in November 2010 in which it appeared that the defendant had developed a greater understanding of his offending and the features that contributed to it. The defendant was able to identify that the main issues that he needed to be mindful of were his attitude towards women and his anger. He explained to Mr Sheehan that by maintaining a positive attitude towards women, self-monitoring his thoughts and behaviour, and practising consequential thinking, he could manage his risk and generally live a more adaptive life.
37Similarly to Mr McElhone, Mr Sheehan reported that the notes and assessments of the defendant's participation in CUBIT indicated that the experience of treatment was positive for him. Mr Sheehan's review of the material indicated to him that the defendant attended treatment sessions as required, participated when expected, and completed treatment exercises when requested. He provided a written and verbal disclosure of his sexual offences which represented a significant departure from his previous inability to directly and openly discuss his offences. Significantly, however, Mr Sheehan reported:
"Although it is important to draw attention to the positive behaviour exhibited by Mr Thomas during his participation in CUBIT, there is much work to be done in building on the successes made in CUBIT and transferring them to the context of community life".
38Mr Sheehan reported that to best take advantage of the gains that the defendant had made in treatment, he should participate in a post-treatment maintenance program, such as the Community Based Maintenance Programme offered by Corrective Services NSW.
39Mr Sheehan also used the Static-99R instrument in assessing the defendant's static risk factors and scored him at 4. Although this was slightly less than the scoring by Mr McElhone, it still placed the defendant in the "moderate-high" risk category relative to other male sexual offenders.
40Mr Sheehan assessed the dynamic risk factors in the defendant's case in a similar manner to Mr McElhone. His conclusions were similar. In short they may be summarised by saying that whilst improvements through participation in CUBIT had been noted, there remains work to be done in a number of areas. Gains thought to be made in a custodial based therapeutic program might be regarded as promising. However whether the gains are real and can be further developed will not be known until Mr Thomas is tested by being back within the community.
41Mr Sheehan concluded on the question of overall risk with the statement:
"At this point, the overall totality of evidence suggests that Mr Thomas remains in the high risk category of sexual offending relative to other adult male sexual offenders".
42In his conclusions and recommendations Mr Sheehan reported that the defendant's ability to manage himself and his interactions with those around him may indicate that he has an increased chance of responding positively to supervision in the community. He reported, "from a therapeutic and risk management prospective, now would be the optimal time to take the opportunity to transition Mr Thomas into the community".