State of NSW v Brookes

Crimes (Serious Sex Offenders) Act 2006 LEGISLATION CITED : Child Protection (Offenders' Registration) Act 2000 Guardianship and Administration Act 2009 (Qld)

Attorney General (NSW) v Hayter [2007] NSWSC 983 NSW v Manners [2008] NSWSC 1242 State of NSW v Brookes [2008] NSWSC 473 Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 CASES CITED : Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 Tillman v Attorney General for New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 State of New South Wales v Thomas [2009] NSWSC 1410

PARTIES : The State of New South Wales (Pl) (Mr) Alexandria George Brookes (Def)

COUNSEL : D Staehli SC/D Kell (Pl/Crown) M Johnston (Def)

SOLICITORS : I V Knight (Pl/Crown) Catherine Hunter (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2010/61641 THE STATE OF NEW SOUTH WALES v ALEXANDRIA GEORGE BROOKES

JUDGMENT 1 KIRBY J: By Summons filed on 10 March 2010, the State of New South Wales ("the State") (the plaintiff) sought a number of orders against Mr Alexandria George Brookes (the defendant), pursuant to the provisions of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"). The orders included the following: "4. An order pursuant to s 17(1)(b) of the Act that the defendant be subject to a continuing detention order for a period 3 years from the date of the order.

5. An order pursuant to s 20(1) of the Act, that a warrant issue for the committal of the defendant to a correctional centre for the period specified in order 4." 2 An Interim Order was made by Barr AJ on 16 April 2010, detaining Mr Brookes, pending a final hearing. That order was extended and the final hearing fixed for 28 June 2010. On that day, Counsel announced that there had been agreement between the State and Mr Brookes that a continuing order be made for a period of 15 months, that being the length of time thought necessary for Mr Brookes to complete therapy which he began in March this year. 3 Notwithstanding counsels' agreement, the Court must itself determine whether the statutory criteria justifying the orders proposed have been satisfied (Attorney General (NSW) v Hayter [2007] NSWSC 983; NSW v Manners [2008] NSWSC 1242). 4 Voluminous material was tendered by the State. The material included medical reports from Dr Samson Roberts (13.5.10) and Dr Stephen Allnutt (4.6.10), being forensic psychiatrists appointed by the Court pursuant to interim orders made by Barr AJ in April 2010. There were also a number of affidavits from various psychologists who had had dealings with Mr Brookes within Corrective Services New South Wales. They described the therapy which they believed necessary and the response by Mr Brookes to this point. 5 There was a previous application under the Act for the detention of Mr Brookes, which came before Grove J in May 2008. His Honour, in circumstances that I will later describe, declined to make such an order. He did, however, make an extended supervision order on 15 May 2008 (State of NSW v Brookes [2008] NSWSC 473). Mr Brookes was to remain under supervision for five years (expiring 14 May 2013). Within a matter of weeks of his release, Mr Brookes breached the conditions of the order and was returned to custody. The State's justification for further detention and therapy is based upon Mr Brookes' psychiatric and criminal history, and his conduct after the extended supervision order was made. 6 Before going to the evidence, it may be useful to identify the statutory setting within which orders may be made under the Act. The written submissions of the State ("Plaintiff's submissions") (PS) provided a helpful guide to such provisions.

Provisions of the Act. 7 The objects of the Act are stated in s 3 in the following terms: "3(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation." 8 The Act provides for two types of substantive orders in respect of a serious sex offender, namely an extended supervision order (Pt 2 of the Act) and a continuing detention order (Pt 3). 9 Where an extended (or interim) supervision order is made and there is a breach of its requirements, an offence is committed. The offence is punishable by fine or imprisonment for up to two years or both (s 12). Further, the State may, in such circumstances, apply to the Supreme Court for a continuing detention order against the person found guilty of the offence (s 14A(1)). Where a term of full time imprisonment has been imposed in respect of the offence, the application cannot be made "until the last 6 months of the person's current custody" (s 14A(5)). A number of documents must accompany the application, including material which addresses the matters referred to in s 17(4A) of the Act. Section 17 is entitled: "Determination of Application for Continuing Detention Order", and provides as follows:

s17(1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or

(c) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order. (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community,

(b) 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,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs,

(f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. (4A) In addition to the matters in subsection (4), in determining an application made under section 14A, the Supreme Court must have regard to the nature of the failure to comply with the requirements of the extended supervision order or interim supervision order and the likelihood of further failures to comply. (5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9." 10 The key phrases in this section have been the subject of comment in a number of cases. The phrase "satisfied to a high degree of probability" is the statutory standard in s 17(2) and (3). It is a standard higher than the civil standard but lower than the criminal standard (see Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27] per Bell J, adopting what had been said provisionally by McClellan CJ at CL in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [34]; and see also Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [18]). The phrase "likely to commit a further serious sex offence" in s 17(2) "denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 percent" (Tillman v Attorney General for New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448 at [89] per Giles and Ipp JJA). "Likely" does not mean "more probable than not" (cf Mason P in dissenting judgment in Tillman). So, as the State in written submissions (PS [32]) points out, the burden of the State in respect of a detention order, is to satisfy the Court to a high degree of probability in the sense described, that: "(a) the defendant is likely (in the sense described above) to commit a further serious sex offence if he is not kept under supervision, and

(b) adequate supervision will not be provided by an extended supervision order." 11 If the State were to establish (a), but not (b), the Court would then have jurisdiction to make an extended supervision order, if it believed it appropriate. Were the State to prove both limbs of s 17(3) (that is, establishing (a) and (b)), the Court would still have a discretion, whether or not to make an order (cf Tillman, PS [30]). 12 A number of issues arise in the context of satisfying the Court as to the second limb (b), that is, establishing that adequate supervision will not be provided by an extended supervision order (cf PS [35]-[40]). The first concerns the type of offence by the offender that supervision seeks to reduce or eliminate. The second concerns the standard of supervision which is contemplated. 13 The State submitted, as to the first issue, that the structure and purpose of the Act suggested that the "adequate supervision" was directed towards the commission of "a serious sex offence", rather than towards criminal offences generally. I agree. That is not to say that the likely commission of non sexual offences is irrelevant. There is statutory recognition of their relevance in s 17(4)(a), (h) and s 17(4A) of the Act. They are relevant both to the question of the likelihood of the offender committing a further serious sex offence and to the question of whether adequate supervision can be provided (in relation to such an offence) by an extended supervision order. 14 As to the second issue, the State said this: (PS [38]) "38. As to the second issue, the better view is that the contemplated supervision is not supervision of such a standard as would eliminate the risk of the offender committing a serious sexual offence. In practical terms no degree of supervision could ever wholly eliminate the risk of such a future offence, and it is unlikely that Parliament intended that the second limb of s 17(3) could be so easily engaged." (emphasis in original) 15 Rather, the standard contemplated, according to the State, links back to the subject of the first limb, namely the likelihood of the offender committing a further serious sex offence. The State submitted the following: (PS [39]) "39. ... On this approach, the concept of 'adequate supervision' within the second limb of s 17(3), the negative satisfaction of which if proved by the State enlivens the potential availability of a continuing detention order, contemplates supervision which would reduce the likelihood of the offender committing a further serious sex (offence) to below the level of such offender being 'likely' to commit such an offence ... " 16 According to the State, such an approach to the second limb of s 17(3) was consistent with the commentary of the Court of Appeal in Cornwall v Attorney General for New South Wales [2007] NSWCA 374, where Mason P, Giles and Hodgson JJA said this: (at [22]) "... when one comes to the second element of s 17(3), what is required is satisfaction to a high degree of probability (that is, beyond a mere balance of probabilities) that adequate supervision will not be provided by an extended supervision order; that is, that even if there is an extended supervision order, the offender will nevertheless still be likely to commit a further serious sex offence." 17 See also State of New South Wales v Thomas [2009] NSWSC 1410 at [8]-[9], per R A Hulme J. 18 Against that background, let me turn to the evidence. I will begin by describing Mr Brookes' history in the period before the State made the application heard by Grove J in May 2008. I will deal with the material more or less chronologically. I should add that some of the evidence to which I will make reference is taken from medical reports obtained in the context of the present application and was not before Grove J at the time he dealt with the first application.

Early history. 19 Mr Brookes was born in September 1964. He was the second of six children. It is said that he was born by breach presentation with the umbilical cord around his neck, following a 72 hour labour (Dr Roberts, report 13.5.10, p 9). He had difficulties at school. Part of his schooling was undertaken at a special school (Dr Roberts, p 10). He preferred to be by himself. At the age of 15 years, he was convicted of arson and committed to an institution for 12 months (11.3.80). Following his release, he was convicted (in 1981) of stealing and again committed to an institution for a further short period. 20 When interviewed much later in life about his early history, Mr Brookes referred to sexual misconduct as a child. Grove J, whilst noting that Mr Brookes was "an unreliable and deceptive historian" (supra [5]), described what the records reveal, in these words: ([6]) "6. ... that between his ages of 8 or 9 until aged 15 or 16 he engaged in some form of sexual activity with a niece who was then aged between 3 or 4 until she was aged 11. The note about this was recorded in September 1995 when the defendant would have been aged about 31. No charge was ever laid alleging such behaviour nor is there any information that the niece reported any misconduct to anyone. The sole source is the defendant himself and he has, on occasions, sought to contradict the content of the note." 21 Grove J added: [7] "7. The next record manifesting a sexual connotation is a note of a home visit by a departmental officer (I gather either probation or welfare) that the defendant's mother had said that he had 'sexually interfered with a young boy across the road' but that 'the lad's mother had not pressed charges'. There is no record of any investigation or charge about such a matter." 22 Mr Brookes told Dr Roberts that he first had intercourse with a somewhat older girl at the age of 14, which was consensual (Dr Roberts, p 11). He acknowledged to Dr Roberts "having sexual thoughts in relation to children at age 18 and 19 years" (Dr Roberts, p 11). 23 In more recent times Mr Brookes has disclosed the commission of a significant number of offences for which he has not been convicted. The State's submission summarised the evidence in these words: (PS p 19) "64. In March 2007 the defendant disclosed to Dr Andrew Ellis and Mr Rodriguez (of the NSW Community Forensic Mental Health Service) that he had perpetrated approximately 50 offences against children. 65. In May 2008 the defendant disclosed to Ms Howell that he has had 20 to 50 victims. He has indicated that some of the victims were random and not known to him; others were targeted by him."

Convictions in respect of sex offences. 24 On 9 August 1986, when Mr Brookes was almost 22 years old, he abducted a two year old girl at a railway station. He was stopped by a bystander as he was walking with the child towards the station toilets. He later asserted, at least on one version, that he abducted the child to get back at the mother, with whom he said he had a relationship. The mother said that she did not know him. He was a complete stranger. At least in some accounts Mr Brookes gave, he acknowledged a "sinister intent". Professor Greenberg, in his report of 9 March 2008, considered there to be a "high index of suspicion" that his motivation was primarily sexual. He was convicted on 16 February 1987 and sentenced to 2 years imprisonment (from 9.10.86), with a non parole period of 12 months (PS [49]-[50]). 25 Whilst Mr Brookes was in gaol, he shared a cell with another inmate, Ferguson. Together they hatched a plan to abduct three children of an acquaintance of Ferguson, boys aged seven and eight and a girl aged six years (see Grove J, supra [5] at [10]). 26 On 7 July 1987, Mr Brookes was released from gaol on parole. About ten days later (16.7.87), he and Ferguson took the three children from Sydney to a Brisbane motel. The children were then subjected to serious sexual assaults over a two day period. More than that, Mr Brookes and Ferguson engaged in sexual behaviour with each other in the presence of the children. Mr Brookes was arrested in Queensland on 16 July 1987. He was charged with the following offences: 1. Fraudulently take a child under the age of 14 years with intent to deprive;

Indecent dealing with a girl under the age of 14 years;

Carnal knowledge of a girl under 12 years of age;

Indecent dealings with a boy under 14 years (2 counts);

Carnal knowledge against the order of nature (3 counts);

Permit carnal knowledge against the order of nature; and 7. Gross indecency. 27 On 28 June 1988, Mr Brookes was convicted of these offences and sentenced to 11 years imprisonment. He was released upon the expiry of his sentence on 5 January 1999. When released, he was not subject to parole or other conditions (Grove J, supra [5] at [13]). After his release, Mr Brookes remained in Queensland for a time. He was convicted of two non sexual offences and fined. One arose from his being found in a dwelling house, or yard, without lawful excuse (15.6.99). The other concerned the use of a telecommunications service in an offensive manner (18.2.00), (Ex D, p 7). 28 Mr Brookes' next conviction for a sexual offence arose out of an indecent assault in January 2001 of a four year old boy. He was convicted of that offence on 20 September 2001 at the Penrith District Court. I will shortly describe the circumstances giving rise to the offence, but before I do so, I should refer to one aspect of the judgment of Grove J. His Honour drew attention to the gap between Mr Brookes' release from gaol in Queensland (5.1.99) and the conviction which followed for indecent assault (20.9.01). He said this: (at [13]) "13. ... It follows that he was at unsupervised liberty for over two and a half years before committing what became his last offence involving actual sexual misconduct." 29 The gap was, in fact, two years (rather than two and a half years) since the offence was committed in January 2001. Grove J described the circumstances in which the offence was committed in these words: (at [14]) "14. On 21 January 2001 the defendant attended a church service in Bankstown with his mother and thereafter at a function which followed the service. Whilst he was there he invited a four year old boy to go to the toilet with him. The boy refused. The defendant then persuaded a nine year old boy to accompany him. Once inside the toilet block he took the child into a cubicle where the defendant pulled down the boy's pants and pulled his penis twice. The boy began to cry and the defendant hugged him but the boy ran out of the block. The defendant was immediately arrested." 30 Mr Brookes was sentenced by O'Reilly DCJ to imprisonment for 3 years and 6 months, with a non parole period of 18 months. His Honour, in his remarks on sentence, said that Mr Brookes would need "at least two years post release supervision and treatment" (Grove J, supra [5] at [15]). However, Mr Brookes was not granted parole. He served the full sentence and was released on 20 July 2004. 31 At the time of his release, Mr Brookes was served with a notice under the Child Protection (Offenders' Registration) Act 2000. He was obliged, by reason of his criminal history, to attend a New South Wales police station by 16 August 2004 and register his details. He failed to do so and indeed absconded. He was arrested on 25 August 2004, but released on bail. 32 In October 2004, Mr Brookes was admitted to the Cumberland Psychiatric Hospital in circumstances described by Grove J in these terms: (at [19]) "19. I consider that it is a matter of significance as demonstrating a capacity for some insight that in October 2004 the defendant admitted himself to Cumberland Psychiatric Hospital as he considered himself to be a risk to himself and others. He was not unfamiliar with this institution and there are notes of his having been admitted to it on some seven occasions before 1986, all of which were before the first of the sexual offences which I have chronicled." 33 Upon his discharge, he did not return to his previous accommodation in Granville. Rather, he found accommodation in Ashfield. However, he failed to register his change of address as required by the Child Protection (Offenders' Registration) Act 2000. On 12 January 2005, he was convicted at the Parramatta Local Court in respect of each offence under the Registration Act and sentenced to concurrent terms of imprisonment of 8 months with a 1 month non parole period. Grove J summarised what then happened, in these words: (at [20]) "20. ... Given the length of that sentence, he would have been ordered by the Court to be released to parole after the expiry of the non parole period but six days after appearing in Court for sentence the Parole Board, exercising its powers under sentence administration legislation, resolved to revoke his parole in its entirety. Once again, the defendant served the total term and he was released without parole after total sentence expiry on 19 August 2005. Thus he neither received the benefit of supervision by a probation and parole officer nor was he subject to any conditions save those independently imposed upon him by the registration legislation."

The judgment of Grove J. 34 Grove J, having set out the background, dealt with each of the matters which the Court was obliged to consider under s 17(4) and (4A) in reaching its conclusion. There is overlap between the various subparagraphs of s 17(4) and (4A). It is convenient to analyse his Honour's reasons by reference to issues, rather than the subsections of that section. Addressing the first issue, that is, whether Mr Brookes was likely to commit a further serious sex offence if he were not kept under supervision (supra [10]), his Honour identified the following material (referring to the paragraph numbers of his judgment): First, the psychiatric illnesses diagnoses by the Court appointed forensic psychiatrists were obviously important. Mr Brookes had been examined by Professor Greenberg and Dr Allnutt. Whilst there were differences in emphasis, their views largely coincided. Professor Greenberg considered that Mr Brookes had a paedophilic disorder ([31]). Dr Allnutt assessed Mr Brookes as having a paedophilic sexual interest in children ([32]). Dr Allnutt added the following comment, summarised by Grove J: (at [47]) "47. Dr Allnutt thought that the defendant continued to manifest attitudes that support or condone sexual offending but he qualified this by expressly stating that he did not formally assess it but thought it was inherent in the defendant's responses to enquiry."

Professor Greenberg also diagnosed a severe personality disorder, noting that such disorders were usually hard to treat ([31]). Dr Allnutt believed that Mr Brookes had a mixed personality disorder, characterised predominantly by a significant antisocial personality ([32]). Neither specialist believed that Mr Brookes was suffering from a psychotic disorder ([31]-[32]) at the time of examination (2008), although Dr Allnutt noted that he possibly had such episodes in the past ([32]).

Grove J added the following comment, indicating the need for continuing therapy: (at [53]) "53. In reviewing the identified dynamic risk factors the defendant's mental state cannot be ignored. I recognize the reservations about diagnosis in the reports of Professor Greenberg and Dr Allnutt but the defendant's past includes multiple admissions as (an) inpatient to psychiatric units and the provision, in particular, of anti-psychotic medication." Secondly , it was obviously relevant that Mr Brookes had committed serious sexual offences in the past. Indeed, the 1987 Queensland offences were extremely serious ([41]). However, the commission of such offences was not determinative. The actuarial tool used by psychologists within the Corrective Services Department (STATIC- 99), gave Mr Brookes a score which suggested that he was a "high risk offender" ([33], [41] and [50]). Statistically, 45% of persons, with the same characteristics as Mr Brookes, on average reoffended over ten years ([51]). Grove J added: (at [51]) "51. ... The unstated corollary is apparently that 55 percent did not reoffend."

The past is a guide but, inevitably "whether the defendant himself will actually offend by committing a serious sex offence must be speculative" ([41]). Grove J drew attention to the words of caution of Dr Allnutt in his report, namely: (at [33]) "As in previous reports of this nature it is important in my view to state that, whether or not he, as an individual, will or will not in fact re-offend in absolute terms cannot be stated with reasonable medical certainty. This is because placing a person in a particular risk group denotes a probability and not a certainty. ... " Grove J remarked that Mr Brookes' offences must be seen in context. Although the failure to comply with registration requirements of the Child Protection (Offenders' Registration) Act 2000 are defined as offences of "a sexual nature" for the purposes of founding jurisdiction under the Crimes (Serious Sex Offenders) Act 2006, they are not allegations of sexual misconduct ([26]). The last conviction for a sexual offence (indecent assault of a boy under the age of ten years) was in September 2001, that is seven years before, although half that seven years was spent in gaol. Grove J added, referring to the circumstances of that offence (supra [28]): (at [41]) "41. ... It was, in contrast to the extremely serious crimes in 1987, unplanned and impulsive. Nevertheless the community needs to be protected from impulsive as well as premeditated offending."

His Honour later said: (at [87]) "87. The defendant is now 20 years older than at the time of his most serious offending and seven years older than when he committed his last offence. It is true that the psychiatrists generally referred to 'burn out' at an older age than the defendant but there is promise that he can restrain his criminal impulses in the two recent releases from custody without supervision during which he committed no offence involving any act of sexual misconduct. The likelihood of the absence of offence should increase if there is an application of supervision. ... "

Further, in assessing the safety of the community (as required by s 17(4)(a) of the Act), it was relevant to have regard to Mr Brookes' behaviour when at large in the community. Grove J said this: (at [42]) "42. ... there is no evidence that during two unsupervised periods during which he was in the community between 20 July 2004 and 20 December 2004 and between 19 August 2005 and 22 February 2007, the defendant committed any offence which involved any act of sexual misconduct. ... "

His Honour added: (at [43]) "43. It is, I believe, reasonable to deduce therefore that if the defendant did not offend by sexual misconduct whilst he was unsupervised, it would be less likely that he would so offend if he were the subject of supervision." Thirdly , the non sexual crimes committed by Mr Brookes were also relevant to the likelihood of future sex offences, as well as his behaviour as a prisoner when incarcerated. The non sexual offences were, according to Grove J, judging from the penalties imposed, towards the lower end of the scale. They were comparable with others of a similar deprived background, limited intellect and personality difficulties ([27], [70]). His Honour noted that Mr Brookes was "anything but a model prisoner", frequently exhibiting violence and rebellion against prison discipline ([28]). Fourthly , previous failures of supervision, as noted by Dr Allnutt ([34]), were also relevant. Mr Brookes was granted parole in respect of the offence on 9 August 1986. Having been released, he was on parole for ten days before committing the major offences in Queensland ([35]). Although later sentences included a grant of parole, he was never again given parole. 35 On the basis of that material, his Honour was satisfied by the State as to requirement (a) (supra [10]), namely that Mr Brookes was likely to commit a further sex offence were he not kept under supervision ([86]). 36 His Honour then considered the requirements of paragraph (b) (supra [10]), that is, whether adequate supervision would not be provided by an extended supervision order. The State proposed that Mr Brookes be detained so that he could undertake group therapy in a programme known as CUBIT (Custody Based Intensive Treatment). He had, in the past, embarked upon such treatment, and similar treatment in Queensland (known as SOTP). In each case, his participation was unsatisfactory ([59], [63]). Professor Greenberg recognised that his severe personality disorder made it difficult for him to participate in group therapy ([45]). The New South Wales Department of Corrective Services proposed changes to the CUBIT programme which psychologists within the Department believed may overcome the problems experienced by Mr Brookes in the past. In that context, his Honour's conclusion was expressed in these words, referring to Ms Howell, a private psychologist with experience ([73]/[74]) with serious sex offenders: (at [65]) "65. There is a volume of material concerning these past opportunities which have been afforded to the defendant. The impression which I gained was that there is a preponderance of evidence that failures to complete these courses were likely to be the product of the defendant's psychological, personality and/or intellectual difficulties. As recounted, he made four attempts and, at least, this demonstrated some insight by him into a need. The failures are also strongly suggestive of a conclusion that this type of treatment is not suitable for this particular person. I am satisfied that the defendant is manifestly unsuited for group therapy treatment and there are better prospects of avoiding recidivist behaviour by him if he is individually treated. Such treatment is available from Ms Howell. I do not regard the changes to CUBIT which apparently involve some individual counselling to have that prospect. I have taken into account the establishment of the Challenging Behaviours Management Team (CBMT) and the pre CUBIT (PREP) arrangements. The submission that the defendant be kept in prison for some two years in order to undergo what is effectively an experiment in moving through CBMT to PREP to CUBIT with the risk of failures along the way holds less prospect in my view for successfully rehabilitating the defendant and thus ensuring community safety than the provision of individual treatment by Ms Howell. Such a course of action has never been attempted in the past despite what I believe was a pointer to consideration to that form of treatment after the four failures of group therapy." 37 His Honour, in these circumstances, made the following findings in respect of the requirements of paragraph (b): (at [85]) "86. ... I am not satisfied that adequate supervision will not be provided by an extended supervision order. I am satisfied that adequate supervision will be provided by such an order." 38 His Honour then made an extended supervision order which was subject to twenty stringent conditions, including: (at [93]) Condition (b): That he comply with any reasonable directions given by an appointed Departmental officer. Condition (c): That he wear an electronic monitoring device. Condition (d): That each week he inform the officer monitoring his movements of his proposed daily movements. Condition (g): That each night he reside at an approved address between the hours of 9.00 pm and 6.00 am, unless approval has been given to do otherwise. Condition (j): That he undertake treatment with Ms Jenny Howell and obey her reasonable directions. Condition (k): That he accept psychiatric treatment from the Community Forensic Mental Health Service and comply with its directions, including that he take anti libidinal or psychiatric medication. Condition (o): That he not associate or contact any child under the age of 18, except with approval. Condition (p): That he not attend places frequented by children.

Breaches of extended supervision order. 39 Let me begin with the big picture. I will provide the detail shortly. An extended supervision order was made a little over two years ago. Dr Allnutt, one of the Court appointed psychiatrists, made the following comment on Mr Brookes' behaviour during that period: (Dr Allnutt, report 4.6.10, p 16) " ... of most concern is the apparent difficulty he has had in complying with the conditions of the current supervision order, his frequent breaches and the difficulty he appears to have in appreciating the limitations that this places on him and the need to conform to them - which raises concern about his reliability and capacity to meet the requirements of future supervision orders ... " 40 Dr Samson Roberts, the other Court appointed psychiatrist, offered a similar view. He said: (Dr Roberts, report 13.5.10, p 56) " ... He has demonstrated an inability to reside successfully with others and his conduct has been considered so inappropriate as to warrant twenty-four hour supervision to ensure the safety of the community." 41 Dr Roberts added: (p 57) "It is my opinion that Mr Brookes is at a very high risk of committing a further serious sex offence if released into the community and not kept under the strictest supervision. ... It is beyond the scope of my expertise in psychiatry to comment on whether such a level of community-based supervision is sustainable in the long-term. Given the information available, it is my opinion that Mr Brookes' condition will not alter to a degree sufficient to permit a reduction in the level of supervision in the foreseeable future, if ever." 42 Mr Brookes repeatedly breached the conditions of the extended supervision order. He was prosecuted on three occasions, as I will shortly describe, and found guilty. Each breach was an offence under the Act (s 12). None of the breaches involved a serious sexual offence or, indeed, a sexual offence. In each case it was alleged that he had failed to observe the conditions which had been imposed by Grove J. He was sentenced to periods of imprisonment. The end result has been that in the 23 months between his release on the extended supervision order (16.5.08) and the preliminary hearing before Barr AJ (16 April 2010), Mr Brookes has spent 20 months in custody. 43 But, more than that, Mr Brookes by his comments to Departmental officers and his actions in their presence, has demonstrated a preoccupation with matters sexual, and with children in particular. When escorted in public, he has repeatedly stared at children, even when asked not to do so, and made comments betraying a sexual interest in them. His actions, in the view of Dr Allnutt, displayed an ongoing interest in children, consistent with paedophilia (Dr Allnutt, report 4.6.10, p 16). On 7 June 2008, that is three weeks after his release, his room was searched and magazine pictures of children (aged between six and ten years) and babies were found (cf PS [100]). He gave an explanation that was not credible, namely that the pictures were of members of his family. His actions and comments were carefully documented by Departmental officers and were not challenged. 44 Let me go to the evidence. On release, Mr Brookes was provided with accommodation in a suburban house with another serious sex offender. It was said that he threatened the person with whom he was sharing the house with a knife. He was then transferred to alternative accommodation. When his bedroom was searched on 7 June 2008, a knife was found. On 21 May 2008, he was reported to have been staring at children when escorted. First conviction. 45 It will be remembered that, under the extended supervision order (Condition (d)), Mr Brookes was obliged to notify an officer each week concerning his daily movements, so that he could be monitored. According to the notification he provided, he intended to stay at home on 1 June 2008. In fact he chose, on that day, to go for a walk for about 20 minutes. The monitoring device, which he was obliged to wear, was fitted with an alarm. The alarm was designed to warn him if he were approaching an "exclusion zone". On his walk, Mr Brookes ignored the alarm, passing through a "warning zone" to a point just outside an "exclusion zone". He entered a property which contained a child care centre. To gain entry he had to pass a sign which clearly indicated the nature of that centre. In fact, the centre was not operating at that time. His actions, nonetheless, constituted a breach of Condition (d). 46 There was a further charge. In 2006 Mr Brookes met a woman (who will be referred to as "Megan P"), who was intellectually and physically disabled, as I will describe. Upon his release from gaol, after the order of Grove J, Mr Brookes was directed (22.5.08) to have no contact with Megan P, direct or indirect. He was charged that, in breach of Condition (b), he had contacted Megan P through a third party on 27 May 2008. 47 Mr Brookes was arrested on 5 June 2008. On 10 February 2009, he was convicted of each offence and sentenced to 12 months imprisonment with a non parole period of 8 months. The magistrate described the offences as in the middle of the range of seriousness. 48 Mr Brookes was released from custody on parole on 10 February 2009, still subject to the conditions of the extended supervision order. His parole was due to expire on 4 June 2009. He returned to the accommodation provided by the Community Offender Support Programme (COSP). On 12 February 2009, he was given a further direction not to contact Megan P by any means. He signed a copy of that direction (PS [103]).

The second conviction. 49 After his release in February 2009, a further search was undertaken of his room on 4 March 2009. He was found to be hoarding his medication, in breach of Condition (k). He was prosecuted and pleaded guilty on 19 October 2009. He was sentenced to a fixed term of 6 months imprisonment, expiring on 18 April 2010. The magistrate noted that the offence was at the lower level of objective seriousness, but was nonetheless a second failure. 50 During the short periods that Mr Brookes was not in custody in 2009, he was often escorted by Departmental officers. The State submission provided the dates that he was not in custody: (PS [126]) "126. ... In total the defendant has spent only about 13 weeks in the community (being the periods from 16 May to 5 June 2008, 10 February to 5 March 2009 and 16 June to 31 July 2009." 51 On 23 and 25 June and again on 1 July 2009, Mr Brookes was reported to have stared at children when escorted. On 25 June 2009, an officer asked him about his thoughts when he saw children. According to the note made by that officer, Mr Brookes responded with these words: (PS [111]) "I get aroused when I see children. Let me explain. When I was a child I got abused and I was somewhat aroused when I was being abused and I get the same feeling when I see the same things I went through in them, but if I did that again it would be like murder so I have strategies and I told COSP staff about my triggers." 52 There were other conversations in July, which officers documented, where Mr Brookes appeared to be preoccupied with sex and children. They included the following: (PS 113]) "113. ... You can't stop me from reoffending. I can go anywhere and only I can stop me from reoffending. The gates at the COSP aren't even locked at night and I can leave this place when I want." 53 There was a further similar conversation on 15 July 2009, which the State submissions summarised in these words: (PS [114]) "114. On 15 July 2009 a COSP centre officer reported the defendant as having stated that he 'could easily re-offend if he wanted to and nothing could prevent this from happening' but then also speaking about never wanting to have another victim." 54 Mr Patrick Sheehan, the senior psychologist with the Serious Offenders Review Group, made the following comment on this material in a thoughtful risk assessment which he prepared on Mr Brookes, dated 28 January 2010. He said this, which I find persuasive: (Ex E, p 13) "Whilst these statements appeared to alarm supervising staff, it should be understood that by saying this, Mr Brookes may have been attempting (albeit clumsily) to make a statement of personal responsibility regarding his risk of reoffending. He has also expressed a commitment to not reoffending, stating that 'he would prefer to go back to gaol if he starts having any urges to re-offend rather than risk having another victim' (Geddes, 22/6/09). On another occasion, Mr Brookes explained that anger 'made him scared of reoffending' (Morrison, 23/6/09), and that he had 'strategies' when experiencing sexual arousal to children (Morrison, 25/6/09). Taken at face value, it is positive that Mr Brookes has expressed an understanding of his own responsibility to avoid reoffending, a commitment to remaining offence-free, an acknowledgement of ongoing risk and an attitude that this risk needs to be proactively managed. In my opinion, it would not be fruitful to question the sincerity of these statements, but rather to encourage them."

Third conviction. 55 It will be remembered that Mr Brookes was given a number of written directions not to contact Megan P. On 23 July 2009, Mr Brookes disclosed to staff that he had been in contact with Megan P. On 31 July 2009, he was arrested and charged. The prosecution thereafter obtained documentation and ultimately alleged a continuing offence. The charges were heard by Magistrate Gilmore on 8 December 2009. His Honour found that Mr Brookes had made phone contact with Megan P once on 24 June 2009 and four times on 29 July 2009. Mr Brookes was sentenced to a fixed term of 9 months imprisonment from 31 July 2009 to 30 April 2010. When being sentenced, Mr Brookes made the following statement, as recorded by the court records: (PS [125]) "I don't give a damn whether they [the authorities] have that [electronic monitoring] or not, but there is no way they're going to stop me and Megan from seeing each other." 56 A document, which forms part of the material tendered by the State, records that the Office of Adult Guardian (Qld) made a decision on 16 May 2008 under the Guardianship and Administration Act 2009 (Qld) that Megan P "have no direct or indirect contact with Mr Brookes". The Office stated that the decision was in Megan P's best interest and that contact would be detrimental to her safety and wellbeing (Ex D, core documents folder Vol 2, p 282). 57 The material also included a description of Megan P's mental and physical disabilities (Affidavit Hammond, 23.3.10). She is a woman in her mid thirties. She is said to have been the victim of domestic violence and exploitation by strangers. She is described as incapable of making complex or simple decisions in respect of her personal health, lifestyle or finances. Dr Roberts, commenting upon this material, said this: (report 13.5.10, p 41) "... It is evident that she is vulnerable to exploitation. Although no psychometric assessment of her is available, based on the limited information available, it would seem that her vulnerability in this regard is analogous to that of a young child." 58 Dr Roberts later added the following comment on Mr Brookes' relationship with Megan P: (at p 56) "Mr Brookes has no meaningful supports in the community. He perceives his greatest support being derived from his relationship with his girlfriend, Megan, in Queensland, despite the fact that she is intellectually impaired, mentally ill, physically handicapped and his contact with her has been restricted. This relationship has been documented as exploitative and sexual." 59 Earlier, Professor Greenberg, when giving evidence before Grove J (T 100), expressed the view that Mr Brookes had an unrealistic expectation about his relationship with Megan P. Mr Patrick Sheehan, psychologist, made the following comment concerning Mr Brookes' personality, relevant in this context: (Ex E, Sheehan assessment 28.1.10, p 23) "20. Mr Brookes has serious deficits in his ability to devise and implement realistic and prosocial life plans. His plans tend to be fanciful or myopic in that they are obsessively focussed on one particular goal without regard and to the detriment of other important life issues." 60 In the same risk assessment, Mr Sheehan added a further comment concerning Mr Brookes' repeated contact with Megan P: (Ex E, Sheehan assessment 28.1.10, p 8/9) "Throughout Mr Brookes' order, he has exhibited a continuing focus on his 'partner' in Queensland. He has consistently placed much weight on this relationship as a primary source of future happiness, despite the unlikelihood of this occurring. It is a recurring theme noted throughout OIMS entries and Mr Brookes has maintained contact with this prohibited person despite the explicit knowledge that this would result in a return to prison. Indeed, he has continued making contact with this person even whilst in prison."

The opinions of the Court appointed psychiatrists. 61 There were two Court appointed psychiatrists, Dr Samson Roberts and Dr Stephen Allnutt. Dr Roberts diagnosed paedophilia. He also believed there were features suggestive of Personality Disorder, encompassing aspects of Antisocial Personality and Borderline Personality (report p 53/54). He thought it likely "that his personality style is a manifestation of the interplay of multiple irreversible organic factors", associated with brain damage (p 54). The prognosis was poor. He said this: (at p 56) "From a psychiatric perspective, Mr Brookes' prognosis is poor. This opinion is based on the presence of diagnostic uncertainty, poor compliance with treatment and the failure of the therapy programs in which Mr Brookes has previously engaged. It is further expected that his intellect and manner is likely to undermine future attempts at therapy." 62 Dr Roberts believed Mr Brookes represented a high risk of engaging in a further serious sex offence, if placed in the community (p 58). If his personality-style was the product of intellectual impairment through brain damage, then his failure to comply with the conditions of the extended supervision order may have been beyond his control. If his behaviour was the product of his personality disorder, then his disregard for the rules and restrictions placed upon him reflected an unwillingness to comply with directions (p 59). In these circumstances, his view was as follows: (p 57) "Given the information available, it is my opinion that Mr Brookes' condition will not alter to a degree sufficient to permit a reduction in the level of supervision in the foreseeable future, if ever." 63 Dr Roberts added: (p 58) "It is my opinion, that at this stage Mr Brookes' risk issues cannot be safely managed in the community irrespective of the level of supervision provided." 64 Dr Roberts was asked to comment upon the therapy suggested by psychologists from the Department of Corrective Services. He responded as follows: (p 58) "It is my opinion that the program outlined by Jason Ware and Andrew Kaw has merit, albeit limited. Careful consideration of Mr Brookes' individual needs has evidently been undertaken and a program tailored to his apparent needs. It is my opinion that an attempt at a tailored approach to therapy is warranted in the hope that it will ameliorate some of the risk issues relating to Mr Brookes. It is my opinion however that Mr Brookes' prognosis remains poor on the basis of the factors discussed above." 65 Dr Allnutt, in his further report of 4 June 2010, reaffirmed the opinion he gave at the time of Grove J's hearing (report p 17). He added that there was reason to be concerned that Mr Brookes had suffered brain damage (p 17). Responding to a question as to the relative merits of continued detention, as opposed to management in the community under an extended supervision order, Dr Allnutt provided the following opinion: (p 18) "Should he be released to the community under an extended supervision order, he would fall into a group at high risk of breach in a general way in the shorter term and in the longer term, sexually; if there was a community sex offender treatment program available to him he could enter that program and this could address the same issues that would be addressed in a correctional program; in the absence of an intense and highly structured community programme the risk is unlikely to be adequately ameliorated." 66 On my understanding, there is no community sex offender treatment programme that addresses the same issues as the programme undertaken within New South Wales gaols (CUBIT). 67 Dr Allnutt, in the passage already quoted, expressed concern about Mr Brookes' difficulty in complying with the conditions of the extended supervision order and his frequent breaches (report p 16) (supra [39]). Such conduct raised concern as to Mr Brookes' reliability and his capacity to comply with future supervision orders (cf s 17(4A) of the Act). 68 In respect of the issue whether Mr Brookes, at birth or subsequently, suffered brain damage, I note the following MRI findings included in a neuropsychological report of 24 June 2010 (Ex G): (at p 2) "MRI brain scan conducted in 2008 revealed non-specific left frontal signal abnormality (believed to result from gliosis secondary to previous injury), extra-axial cerebrospinal fluid collections overlying the cerebellar hemispheres and generalised cerebral atrophy. ..." 69 Unfortunately the report does not include a commentary upon the significance, if any, of those findings.

Recent therapy undertaken by Mr Brookes. 70 The application by the State to further detain Mr Brookes is based, in part, upon the view expressed by various psychologists from the Department of Corrective Services, that Mr Brookes remains untreated. He had never completed the CUBIT programme. It was recognised that his participation in that programme in the past had been unsatisfactory and that group therapy was difficult for him by reason of his personality and intellectual impairment. However, there had been structural changes to CUBIT since his last involvement. Mr Sheehan, senior psychologist, described the changes in his risk assessment of 28 January 2010, in these words: (p 15) "1. The move from 'closed groups' (where a group of 10 offenders begin simultaneously and move through treatment at the same pace) to a 'rolling group' format (where offenders move through the treatment process at their own individual pace). 2. The move from a therapeutic orientation of confrontation to a motivational approach, drawing on positive psychology." 71 A similar submission was made to Grove J, who said this: (Grove J, supra [5] at [45]) "... The efficacy of the pre-entry strategies remains to be gauged and, as Dr Allnutt pithily noted, about the relevant impact of completing CUBIT: 'I think the jury is still out on the treatment of high risk sex offenders.'" 72 Ultimately, Grove J was not persuaded that Mr Brookes should be detained in order to undergo therapy in gaol, including CUBIT. He ordered his release under an extended supervision order, as I have described. In the application before me, relying upon Mr Brookes' history since release, the State once more pressed its claim that therapy within the gaol offered the greatest prospect of change. Mr Patrick Sheehan, in his affidavit on 24 March 2010, said this: "54. I remain of the view, as stated on page 26 of my report that the custodial-based treatment plan, involving a series of structural behavioural and cognitive behavioural interventions and the continuing input of Mr Kaw's Personality and Behavioural Disorders Unit (PBDU) with the aim of Mr Brookes being able to undertake the CUBIT program, provides the best opportunity for long-term positive change for Mr Brookes. Such a treatment plan, if successful, may assist Mr Brookes in establishing and maintaining an adaptive and lawful lifestyle and in managing his high risk of sexual recidivism." 73 The programme originally contemplated has since been modified because of staffing issues within the gaol (Supplementary PS, 29.6.10). The aim, however, remains the same, that is to prepare Mr Brookes for CUBIT and to allow him to undertake that therapy at his own pace. It was agreed between the parties that a period of 15 months is likely to be sufficient to complete such treatment. 74 At the time the State lodged its application under the Act, Mr Brookes was in custody. He was approached for his consent to therapy, pending the determination of the State's application. Therapy would not be undertaken without his consent. Reversing his previous attitude, and encouragingly, Mr Brookes gave his consent. He came under the care of Ms Victoria Bel, a specialist psychologist with the Personality and Behavioural Disorders Unit (PBDU) within the Corrective Services Department. Ms Bel carried out what she described as "Functional Analysis" (report, 25.5.10). It involved the analysis of 160 behavioural incidents between October 1982 and April 2010, seeking to identify the factors involved, and the motivation of Mr Brookes for such behaviour (report, p 5). Ms Bel then conducted weekly sessions with Mr Brookes. She described the outcome in her affidavit in these terms: (Affidavit 11.6.10) "14. Observations regarding Mr Brookes are contained in my progress notes. I believe that I have developed a good therapeutic relationship with Mr Brookes. He appears to be motivated and receptive to our sessions. He also states that he obtains benefit from them. 15. I am also encouraged by the fact that, since the commencement of our sessions, I have received no reports of any significant problematic behaviour on the part of Mr Brookes. In addition, Mr Brookes has obtained a job as a Yard Sweeper, which he appears to enjoy and which provides self-esteem. As recorded in my notes, I have also received encouraging reports about Mr Brookes' recent behaviour from correctional staff within 10 Wing (Senior Correctional Officer Dennis Glover and Senior Assistant Superintendent Michael Frawley)." 75 Other psychologists have since become involved, as described by Catherine Shanks in her affidavit of 28 June 2010. Mr Brookes has been moved into the Therapeutic Unit in preparation for CUBIT. The signs remain promising. On 21 June 2010, for instance, Mr Brookes stated that he was determined not to incur any institutional infractions. He continues to work as a sweeper, which is a position of trust, which he enjoys.

State submissions. 76 The written submissions of the State, having referred to much of this material, then rearranged that material to demonstrate satisfaction of the requirements of s 17(4) and (4A) of the Act. I will not repeat that analysis. Having regard to the matters in s 17(4) and (4A), I am satisfied to a high degree of probability that Mr Brookes is likely to commit a further serious sex offence if he is not kept under supervision. I am further satisfied, to the same standard, that adequate supervision will not be provided by an extended supervision order. I therefore order his detention. 77 At the time of the hearing, the parties agreed that detention for a period of 15 months was appropriate (calculated from 28 June 2010). Almost two weeks have elapsed since the hearing. Mr Brookes is continuing his therapy. I have therefore adjusted the period of detention to subtract two weeks.

An order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 that the defendant be subject to a continuing detention order for 14 months and 2 weeks, that is, from 9 July 2010 to 22 September 2011.

An order pursuant to s 20(1) of the Act that a warrant issue for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in the previous order.

Direct that access to the Court file in respect of any document shall not be granted without leave of a Judge of the Court. If any application is made by a non-party in respect of any document, the parties are to be notified by the registrar so as to enable them to be heard.

Pursuant to s 19(1) of the Act, an order revoking the interim detention order made on 18 June 2010.

Liberty to apply on two day's notice. **********

12/07/2010 - Initials of Counsel wrongly listed. - Paragraph(s) Coversheet

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.