(11) Submissions
97 In relation to the duration or term of an extended supervision order, Dr Kell, in his submissions on behalf of the State, observed that a number of matters that are relevant to the making of such an order are also relevant to the question of the term of the order. Accordingly, the chronicity of the offending conduct was said to be directly relevant to the term of the order which the State contended in this case should be for a five year period. It was contended in that respect that there was an abundance of material to support such a term.
98 It was further submitted on behalf of the State that it was in appropriate for the Court to set a shorter term on the basis that the State has available to it the possibility of applying for a further order at a point of time in the future should a longer term be indicated.
99 The State, accordingly, submitted that, if the evidence supports a five year term as an appropriate one, then the Court would be justified in adopting a five year term for the making of an order rather than for a shorter period of time on the basis that the State could apply for a variation in the future.
100 Reliance, in particular, was placed upon the fact that the evidence, including, in particular, that of Dr Samuels, was that the defendant did have a severe personality disorder of a long-standing nature and that that was a matter of particular relevance in determining the term of the extended supervision order.
101 In summary, the State submitted, that the chronic nature of the offending history, the severe personality disorder and the written and oral evidence of Dr Roberts and Dr Samuels pointed strongly towards making an order for a five year term.
102 In this respect, it was submitted that it was reasonably anticipated that a period of ongoing therapy of five years' duration would be required. In this respect, the evidence that the defendant was in a very high risk group of sexual offenders pointed to that conclusion.
103 In the present case, by reason of the fact that the defendant has refused to consider taking anti-libidinal medication, a five year term was, in all the circumstances, an appropriate one.
104 Mr Thiering, on behalf of the defendant, put to Dr Samuels that, in a period of two years "the Court would be in a much better position to say where he (the defendant) is on the continuum at that time …". Dr Samuels responded that two years "wouldn't be a great deal" although an absence of offending or subversive or manipulative conduct would be "reassuring". That, he observed, however, also could reflect the appropriateness of the monitoring rather than fundamental change.
105 He did not consider two years was long enough for "substantial change" to occur (transcript, p.29). He added that a lot could occur over a five year period and that "there may well be reasons to … downgrade the risk assessment or review the risk assessment" (transcript p.29).
106 In the Defendant's Written Outline of Submissions, Mr Thiering on behalf of the defendant observed that any action by this Court on the application made by the State would be action taken in the knowledge that the provisions of the Child Protection (Offenders' Registration) Act 2000 and the Child Protection (Offenders' Prohibition Orders) Act 2004 will operate for life in respect of the defendant, he being a repeat offender.
107 Mr Thiering observed that these provisions required the defendant to notify police as to his place of residence and imposed on him ongoing obligations to report to police and restrictions on name changing and working with children. The legislative provisions also provided for offences and imprisonment in the event of breach.
108 Mr Thiering submitted that such legislative conditions in and of themselves provide very significant protection for the community and that the length of any extended supervision order in the present case "… should be determined taking these into account, especially where the purported object is protection of the community" (p.3).
109 Mr Thiering contended that the evidence indicated that the defendant had made considerable progress in his rehabilitation to date when measured against his offending history and his custodial offence history. It was further submitted that, whilst the progress had not all been "one way", it was generally positive.
110 Mr Thiering further contended that the length of the order should also take into account the secondary object of the Act in encouraging the defendant along the path to rehabilitation. He said that that objective could be achieved in two ways. Firstly, by not imposing an order for a term that is or might be perceived to be in itself punitive rather than protective or rehabilitative. Secondly, by providing a tangible target which is not too distant in time to provide motivation for the defendant to continue his rehabilitation.
111 Finally, Mr Thiering submitted that the Act contemplated the possibility that the State could make a further application at some point in the future under the provisions of s.10(3) of the Act. He submitted that, if the Court considered a shorter term than five years was appropriate, there need be no concern that, at the end of whatever period was imposed, the defendant would be simply pushed out into the community if, in the opinion of the CCG or the Probation and Parole Authority, he was unready for that.
112 Accordingly, it was contended that it was appropriate to impose a shorter term in respect of the order sought and to allow the benefit of such shorter period to be measured, rather than an order being based on prediction. If further orders were required to be made, then they would be made appropriate to the circumstances as at the time they were being considered.