State of NSW v Scott

The Facts 7The facts set out below have been derived from the following evidence: (1)Affidavits of Paul Nash (solicitor from Crown Solicitor's Office) dated 25 November 2013 and 6 December 2013 and Exhibits PN-1, PN-2 and PN-3; (2)Affidavit of Meagan Donaldson (clinical and forensic psychologist) dated 28 February 2014 and Exhibit MD-1; (3)Affidavit of Kim Ward (the manager of the Nunyara Community Offender Support Program) dated 28 February 2014; (4)Affidavit of Sharon Castellino (who works for the NSW Department of Family and Community Services in the Community Justice Program (CJP)) dated 28 February 2014; (5)Affidavit of Zoumier Abedine (the manager of the ESO Team in Community Corrections) dated 28 February 2014; (6)Dr Emma Collins (court-appointed expert psychologist) - Report dated 23 January 2014; (7)Dr Jeremy O'Dea (court-appointed expert psychiatrist) - Report dated 18 February 2014.

Mr Scott's background and intellectual disability 8Mr Scott was born on 23 August 1982. His father was absent throughout his childhood. His mother, who abused alcohol, neglected him. He attended school until about year 8. From an early age he, too, abused alcohol. He also sniffed petrol and used cannabis. These substances permanently damaged his developing brain. From the time he was 17, he was diagnosed with chronic schizophrenia and substance abuse. He has a long-standing history of non-compliance with medication. He has an intellectual disability. His IQ has been assessed as 53, which is in the extremely low range of intellectual functioning. His low IQ arises from the organic brain damage referred to above. He has refused assessments in recent years.

Mr Scott's history of offending 9Mr Scott has a lengthy history of non-sexual criminality commencing from the age of 14. His prior offences included: assault, robbery, and drug (marijuana) offences. His mental illness has played a significant role: it has caused disinhibition and compromised his ability to control himself or foresee the consequences to himself and others of his actions. On at least three occasions, charges against Mr Scott were dismissed under the Mental (Forensic Provisions) Act 1990 (NSW) on the grounds of mental illness. 10Mr Scott has a history of breaching bail conditions, community treatment orders and parole as illustrated by the following chronology of the two years preceding the index offences. In April 2004 he breached his bail conditions by continuing to use cannabis. On 7 October 2004 he breached parole by failing to return to the Percy Green Alcohol Rehabilitation Centre as directed. His parole was revoked on 22 October 2004. He was released on parole again on 10 February 2005 with a direction that he satisfactorily complete the drug rehabilitation programme at the Percy Green Centre. On 24 April 2005 he was discharged from the programme because he smoked marijuana and was violent to other residents. He subsequently tested positive to cannabis and admitted to using substitute urine when subject to drug testing. His parole was revoked on 3 June 2005. On 21 March 2006, Mr Scott was released again on parole. On 24 May 2006, he assaulted his mother, with whom he was living. He was arrested and charged, and an AVO taken out to protect his mother. On 26 May 2006 he was discharged under s. 32 of the Mental Health (Forensic Provisions) Act on condition that he comply with the conditions of a care plan which included taking his medication.

The index offences and immediate aftermath 11On 27 May 2006, Mr Scott committed the index offences. Although his conduct was, to some extent, impulsive, in that there appears to have been little planning, his acts were nonetheless persistent and deliberate. They involved considerable violence towards the victim, who was fearful, alarmed and suffered physical injury. 12On 3 June 2006, a week after the index offences, Mr Scott assaulted his mother and grandmother, breached an AVO and committed property offences, for which he was convicted on 4 June 2006 and placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedures) Act 1999. 13On 30 June 2006, Mr Scott was arrested for the index offences.

The views of the sentencing judge 14Norrish DCJ, the sentencing judge, accepted that Mr Scott was not taking his medication at the time and that he was suffering from a significant long-term mental disorder. His Honour noted that his conduct on this occasion was: "a major and significant elevation of the level of anti-social conduct...It suggests that the prisoner is a person who does present as a possible or probable danger to other people and the facts of this case are eloquent testament to that position..." 15Norrish DCJ observed that it was: "not much consolation to the community that the likelihood of the prisoner to behave in this violent way may be entirely dependent upon whether he chooses to maintain himself on his medication".

Misconduct in prison 16Mr Scott has incurred 29 institutional misconducts since his incarceration in 2007, 11 of which involved violence. On 23 August 2013 Mr Scott threatened another inmate with a plastic knife to have sex with him and hit the inmate because he was making too much noise. He received an institutional misconduct conviction for assault. 17Prison documents record that on 8 December 2006 Mr Scott said that he was really glad he raped and bashed his victim and he did not regret it because it felt really good at the time he was doing it. The degree of exaggeration and bravado that is evidenced in this statement is consistent with his mental illness. 18During a search of Mr Scott's cell on 26 February 2009, two diaries were found which contained written descriptions of violent and non-consensual sex with detailed plans to carry out such acts once released. During a subsequent search of Mr Scott's cell conducted on 11 February 2011, handwritten documents were found which contained confused and rambling descriptions of sexual acts.

Mr Scott's participation in treatment for sex offenders and other treatment received in prison 19There are various treatment programmes that are available to prisoners. I accept the evidence of Dr O'Dea, the court-appointed expert, that Mr Scott would not able to participate in any of them because of his compromised intelligence. 20On 28 July 2011 Mr Scott was transferred to the mental health unit at Long Bay Hospital pursuant to an order under s. 55(1) of the Mental Health (Forensic Provisions) Act 1990. The order was made due to a significant deterioration in Mr Scott's mental state, his refusal to take medication and his assault of another inmate. He remained there until the order was revoked on 16 August 2011. However, a further order to the same effect was made on 14 September 2011, for similar reasons. The Mental Health Review Tribunal on 3 November 2011 reviewed the order and determined that Mr Scott remained mentally ill and should continue to be detained in a mental health facility. On 16 April 2012 he was transferred back to Junee Correctional Centre, as he was assessed as no longer mentally ill.

Assistance with provision of post-release accommodation 21On 25 November 2009 Mr Scott said that when he was released he would prefer to reside independently but would consider living with his mother in Leeton if necessary. In December 2009 Mr Scott reported that his mother did not want him to live with her and that he could live in Goulburn, although he did not know anyone there. He suggested that he could obtain accommodation through the local paper. 22Mr Scott's mother's home was assessed as being marginally suitable following a home visit on 17 December 2009. At that point the assessing officer became concerned about the management of Mr Scott's mental health and intellectual disability after his release, as well as the problems that could arise from the inability to control his sexual drive arising from his mental incapacity. 23On 22 March 2011, State-wide Disability Services (SDS) asked Mr Scott to sign forms consenting to exchange client information in order to obtain a referral to Ageing Disability and Home Care (ADHC) for case management services. Mr Scott refused to sign the consent form. On 18 February 2013, SDS applied to the Guardianship Tribunal for orders in relation to Mr Scott. The evidence does not explain the reason for the delay. On 23 June 2013, the Guardianship Tribunal made an order appointing the Public Guardian as Mr Scott's guardian for a period of 5 months, with the guardian's functions expressed to be limited to deciding accommodation (where Mr Scott resides), advocacy, and making decisions about legal services and other services to be provided to Mr Scott. On 26 November 2013, the Guardianship Tribunal renewed the order for a further 12 months. Representatives from the Public Guardian were present in court throughout the hearing of the Crown's application in order to give instructions to Mr Scragg, who appeared for Mr Scott. Mr Scott was also present throughout. 24The Public Guardian authorised SDS to seek to obtain a referral to ADHC for Mr Scott. On 29 October 2013, an ADHC referral was completed and sent to CJP to determine Mr Scott's eligibility for services and accommodation in the community. 25The CJP is a community-based program run by ADHC for people such as Mr Scott with an intellectual disability who have been incarcerated, who are likely to place themselves or others at serious risk of harm, and who present a level of complexity that requires services beyond those which ADHC normally provides. The primary aim of the CJP is to minimise recidivism rates and enable appropriate community integration for this group of people. 26CJP offers, to people assessed as requiring high support, accommodation known as Intensive Residential Support (IRS), which amounts to 24-hour support for clients with very high support needs. IRS provides a closely supervised home environment, in which it is possible to separate one or more residents into different living spaces. IRS services are usually large houses with two living spaces and some separation from neighbours. IRS can provide substantial levels of behaviour support with a view to understanding, managing and reducing offending and other challenging behaviours. I am satisfied that the IRS offered by CJP is the most suitable accommodation available for Mr Scott at times when he is not an in-patient in a psychiatric hospital.

The prospects of Mr Scott obtaining IRS from CJP 27At its meeting on 5 February 2014, the CJP Referral and Assessment Panel recommended Mr Scott be regarded as eligible for CJP. The director of CJP endorsed its recommendation. The assessment is thorough and careful and takes about 6 to 8 weeks. On the basis of the assessment an accommodation placement and service model is determined having regard to the person's strengths, needs, risks and goals, as well as availability of vacancies and support, priority and resources. Once approved, the relevant service provider is approached and staff trained, upon which service to the client can be commenced. 28The assessment process for Mr Scott began on 21 February 2014. It is unlikely there will be a support model available by the end of March 2014. The CJP does not provide an emergency response service. Ms Castellino expects a support model to be available for Mr Scott by June 2014.

Ms Donaldson: psychologist 29Ms Donaldson, psychologist, prepared a report on 8 November 2013, following a risk assessment of Mr Scott conducted on 4 and 6 November 2013 for the purposes of these proceedings. Ms Donaldson remarked on the difficulty she encountered in distinguishing the effects of Mr Scott's intellectual disability from his mental health and the impact the presence of both have on Mr Scott. Whereas compliance with medication might lead to improved mental health, it would not ameliorate the effects of his intellectual impairment. She opined that his level of intellectual understanding and chronic mental illness affected his capacity to make informed decisions, which led him to reject supervision and treatment. 30Ms Donaldson discussed the index offence with Mr Scott. He acknowledged he sexually assaulted the victim and the level of intrusiveness and violence involved. He said he knew what he did was wrong and he should not have done it. He was not aware of risk factors that contributed to the index offences. He stated that 'life was good at the time', living with his mother and smoking cannabis. He was unable to identify how he was going to manage his risk in future. He did not link his substance use with his risk. 31Ms Donaldson undertook an assessment of the risk posed by Mr Scott. She noted Mr Scott's score of 6 on STATIC 99 (an actuarial risk assessment tool which uses static (unchangeable) risk factors to calculate the risk of reoffending, such as number of prior charges/convictions, unrelated/stranger/male victims etc). A score of 6 and above places Mr Scott in the high risk category relative to other male sexual offenders. The rates of sexual recidivism for sexual offenders within normative samples who had the same total score as Mr Scott were between 14.7 - 31.2 percent over five years, and 26.7 - 41.9 percent over ten years. The recidivism rates of individuals convicted/charged with sexual offences with the same score as Mr Scott would be expected to be over 3.77 times higher than the "typical" sexual offender as identified in the same population. Ms Donaldson noted that the use of STATIC 99 has not been specifically validated for use with offenders with intellectual disabilities. 32Ms Donaldson also considered the dynamic risk presented by Mr Scott. She noted that Mr Scott's sex offending is not considered chronic since it is effectively confined to the index offence and some misconduct in gaol. The risk posed by him is largely explained by his poor self-awareness, limited insight into his disability, mental health and concomitant lack of inhibition. 33Ms Donaldson considered that if Mr Scott was to return to a similar way of life as before his imprisonment he would be highly likely to reoffend. The relevant factors are: the limited structure, unstable accommodation, non-compliance with medication, use of illicit drugs, being unresponsive to supervision and feeling sexually aroused in circumstances that lead to sexual preoccupation. Ms Donaldson opined that any recidivism would be likely to be opportunistic against an adult female on her own. He was likely to use physical violence. 34Ms Donaldson considered Mr Scott's primary difficulty to be managing his mental health in the community where non-compliance with medication and substance abuse could lead to further offending. Ms Donaldson noted that if Mr Scott was subject to an ESO, it was likely that he would be subject to intensive supervision and case management by Corrective Services NSW and recommended that there be consultation with the Community Forensic Mental Health Team to determine what options are available to assist Mr Scott manage his mental health in the community.

Court-appointed expert reports 35Pursuant to orders made by the Court under s 15(4) of the Act, Dr O'Dea (psychiatrist) and Dr Collins (clinical and forensic psychologist) were appointed to provide reports to the Court. They both gave evidence at the hearing. Dr O'Dea returned to court on the second day of the hearing as he had further reflected on the evidence he had given and considered that it required further explanation.

Dr O'Dea 36Dr O'Dea interviewed Mr Scott on 30 December 2013. He considered his presentation to be superficially cooperative although he was readily aroused, frustrated and irritable. Dr O'Dea considered Mr Scott to be suffering severe chronic treatment resistant schizophrenic illness, complicated by alcohol and other drug abuse and dependence and intellectual impairment. In his view Mr Scott's general and sexual offending behaviour may be understood in the context of disinhibited expressions of his anger, aggression, and sexual urges, related to his schizophrenic illness, intellectual disability and substance use. 37At the time of the interview, 30 December 2013, Dr O'Dea considered that Mr Scott's schizophrenia was not under adequate control and he was a "mentally ill person" within the meaning of the Mental Health Act 2007 (NSW). As such, Dr O'Dea opined that he needed ongoing psychiatric treatment in a secure psychiatric hospital prior to discharge and ongoing psychiatric treatment under a Community Treatment Order (CTO), in order to adequately and appropriately manage the risk he poses of serious harm to others. 38In his report, Dr O'Dea opined that, due to Mr Scott's psychiatric needs, it was more appropriate to manage Mr Scott's ongoing risk of harm to others under the Mental Health Act rather than the Crimes (High Risk Offenders) Act. However, he considered there to be a significant risk that Mr Scott will commit further sex offences in the community in the long term and that it was unlikely that psychological therapy alone would be sufficient to mitigate this risk. Dr O'Dea said in his report: "the above comprehensive psychiatric treatment program followed by psychiatric treatment in the community under the provisions of a CTO, and in conjunction with CJP as appropriate at the time, is likely to prove the most appropriate and effective intervention in managing and minimising Mr Scott's risk of engaging in further sex offending behaviours in the community in the longer term." "Mr Scott's risk of engaging in further serious sex offending behaviours and committing a further serious sex offence, in the community in the long term, would be considered significantly high and appropriate for specific psychiatric treatment as outlined above." 39In his oral evidence, Dr O'Dea refined his opinion. He said that in his view, Mr Scott was not sufficiently mentally stable to be released into the community to IRS run by CJP although this would be the most suitable option if Mr Scott became mentally stable. He said that accommodation within a secure psychiatric hospital under the Mental Health Act would be the most appropriate way of managing Mr Scott's risk to the community and ensuring that he obtains the treatment and stability that he requires. Dr O'Dea considered that it would not necessarily be sufficient for there to be a CTO in force in respect of Mr Scott and that it would be desirable that an ESO be in place in order to provide sufficient supervision and structure for Mr Scott. 40Dr O'Dea proposed that Mr Scott ought be admitted to a psychiatric hospital as a "correctional patient" under the Mental Health (Forensic Provisions) Act while still subject to the IDO and that his status could be changed to an "involuntary patient" under the Mental Health Act when the IDO expired.

Dr Collins 41Dr Collins interviewed Mr Scott on 20 January 2014. He displayed poor social behaviour, his affect was blunted and refused to participate in psychometric testing. Dr Collins concurred with the risk assessment of Ms Donaldson (using Static-99R and another risk assessment tool known as RSVP). She assessed Mr Scott using the Assessment of Risk and Manageability of Intellectually Disabled Individuals who Offend Sexually (ARMADILLO-S). She opined that Mr Scott is a high-risk sex offender with a medium-high to high risk of sexual reoffending. 42Dr Collins was of opinion that Mr Scott ought attempt offence-specific treatment as a priority. I do not accept this view. I accept Dr O'Dea's assessment that Mr Scott does not have the intellectual capacity to benefit from such treatment. In these circumstances I do not consider there to be any utility in requiring such treatment to be undertaken. 43I accept Dr Collins' opinion that any ESO ought include conditions that provide for support in his accommodation, pro-social engagement in activities as well as substance abuse monitoring and intervention.

The Act 44Section 3 of the Act provides: Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. 45This protective purpose is fundamental: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873 at [10]; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [10]. The legislative purpose of the Act is protective, not punitive. 46Section 5 defines "serious sex offence". Mr Scott is a "serious sex offender" as he is presently serving a sentence following conviction for offences against s 61J of the Crimes Act 1900. 47Section 5B provides: High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 48In Cornwall v Attorney-General for the State of New South Wales [2007] NSWCA 374 the Court of Appeal said at [21]: "The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..." 49Section 5C confers power on this Court to make an extended supervision order in respect of a high risk sex offender. Section 5D empowers the Court to make a continuing detention order if the offender is a high risk sex offender and the Court is satisfied that adequate supervision will not be provided by an extended supervision order. 50Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an "unacceptable risk". Where supervision imposed by an ESO would be inadequate to manage what would otherwise be an unacceptable risk, a CDO ought be made: s 5D. Supervision can only be regarded as "adequate" if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk. 51Section 9 provides that the following are to be taken into account in determining whether to make an ESO: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) [court-appointed experts] 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 relevant 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 relevant 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, . . . (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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). 52Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for interim supervision orders (ISO) to be made in certain circumstances. 53Section 11 provides for the conditions that may be imposed on an ESO. 54Section 13A provides that the State may apply for a CDO in respect of offenders, including a high risk offender. The application may be determined by making an ESO, a CDO or by dismissing the application. The relevant matters are listed in s 17(4) and replicate those in s 9 for making an ESO. 55Section 18A authorises the Court to make an IDO if the offender's current custody will expire before the proceedings are determined and an ESO or CDO would be justified, if the matters alleged in the supporting documentation were proved. 56Section 18D provides that an ESO ceases to have an effect during the operation of a CDO or IDO. Section 19 provides that a detention order may be varied or revoked. 57These proceedings are to be conducted as civil proceedings: s 21. 58Section 25B provides that nothing in the Act prevents this Court from making an ESO in respect of a person at the same time as it makes a CDO in respect of such person. The ESO, in that event, commences on the expiry of the CDO.

The Mental Health Act and the Mental Health (Forensic Provisions) Act 59Because of the potential relevance of the Mental Health Act and the Mental Health (Forensic Provisions) Act, some brief reference to their provisions ought be made. 60Section 14(1) of the Mental Health Act relevantly defines "mentally ill persons" as follows: (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. 61Section 18(1)(a) of the Mental Health Act provides that a person may be detained in a declared mental health facility on a mental health certificate given by a medical practitioner or accredited person. Section 19(4)(a) provides that a mental health certificate may not be used to admit or detain a person certified to be a mentally ill person in a facility more than 5 days after it is given. 62Section 42 of the Mental Health (Forensic Provisions) Act defines "forensic patients" as including, relevantly, a person who is detained in a mental health facility, correctional centre or other place. As Mr Scott has served his sentence of imprisonment, he is a "forensic patient", rather than a "correctional patient". Section 64 provides that a correctional patient ceases to be a correctional patient if the person's sentence of imprisonment expires. 63The Director-General may, by order pursuant to s 55 of the Mental Health (Forensic Provisions) Act, transfer a person imprisoned in a correctional centre to a mental health facility on the basis of two certificates about the person's condition issued by two medical practitioners, one of whom is a psychiatrist. Section 56 provides for the person to be transferred back to the correctional centre in certain circumstances. 64Section 67 provides for the making of community treatment orders by the Mental Health Review Tribunal.

The proposal that Mr Scott be transferred to a psychiatric hospital prior to his release to CJP accommodation 65Dr O'Dea initially expressed the opinion that Mr Scott could be more appropriately dealt with under the Mental Health Act, since he is a "mentally ill" person who requires ongoing psychiatric treatment in a secure psychiatric hospital. 66Dr O'Dea, however, ultimately considered that a regime under the Mental Health Act, even if it was be invoked and implemented, is not apt to address that risk sufficiently. Dr O'Dea suggested that Mr Scott be admitted to a psychiatric hospital under s 55 of the Mental Health (Forensic Provisions) Act until he is mentally stable, at which point he could be transferred to IRS provided by CJP and subject to an ESO. Dr O'Dea said that the psychiatric hospital most appropriate to Mr Scott would be the forensic hospital next to Long Bay Gaol. As Dr O'Dea was appointed by the court to give expert opinion, and does not, therefore, play any role in Mr Scott's treatment, it would not be appropriate that he provide a certificate under s 55. Such certificate would, in the normal course, be provided by a person's treating psychiatrist. 67On 14 March 2014 I adjourned the proceedings to 19 March 2014 in order that this possibility raised could be investigated and the views of his treating psychiatrist, Dr Henderson, ascertained. Although Dr Henderson is Mr Scott's treating psychiatrist, he has only seen Mr Scott once, on 7 March 2014, following his admission to the mental health facility of the Metropolitan Remand and Reception Centre known as the Hamden Clinic. Dr Henderson also reviewed Mr Scott's medical records since in custody. 68After considering Dr O'Dea's report (but not the transcript of his evidence) and speaking with Dr O'Dea, Dr Henderson affirmed an affidavit on 18 March 2014 in which he deposed that he would not support Mr Scott's transfer to the forensic hospital next to Long Bay Gaol pursuant to s 55. The reasons for his opinion were twofold. First, Dr Henderson considered Mr Scott to be presently compliant with his medications, to be generally co-operative with psychiatric treatment and to have a stable mental state. Secondly, Dr Henderson learned that Mr Scott could undertake offence-specific treatment for persons with mental impairment and thought that he would benefit from such treatment while in custody. 69Dr Henderson was required for cross-examination. In the course of his oral evidence Dr Henderson deferred to Dr O'Dea's opinion that Mr Scott would not be able to undertake offence-specific treatment, even such treatment as was modified so that people with mental impairment could undertake it. Dr Henderson also explained that his objection to a s 55 transfer was based on the proposition that Mr Scott was not a "mentally ill person" within the meaning of s 14(1) of the Mental Health Act while he was in custody because the conditions of his incarceration were such as to mean that he was not in need of protection from serious harm and that others did not need protection from him. 70When it was put to Dr Henderson that Mr Scott might be released into the community, he accepted that, in those circumstances, he would fall within the definition of "mentally ill person" and that it would be appropriate to make an order for his transfer to the forensic hospital next to Long Bay prison under s 55. He said that he would, as Mr Scott's treating psychiatrist, sign a certificate in the form required by s 55 and that he would expect that a transfer would ensue. Dr Henderson also said that he would expect the hospital not to discharge Mr Scott into the community until suitable accommodation was available. 71Since this evidence was given, events have transpired which mean that I can have no confidence that Mr Scott will be transferred to the forensic hospital next to Long Bay prison pursuant to s 55 of the Mental Health (Forensic Provisions) Act. Although I consider, on the material available to me that such a transfer would be desirable, I have no power to order it to occur.

The threshold question 72I am satisfied on the basis of the following matters that the Crown has established to a high degree of probability that Mr Scott poses an unacceptable risk of committing a serious sex offence if not kept under supervision: (1)Mr Scott has a history of violence and other offences - the index offence was highly opportunistic - it was a violent sexual assault committed in broad day light on a street against a female stranger. (2)Mr Scott suffers from chronic schizophrenia and substance abuse and has a lengthy history of failing to comply with medication. (3)Mr Scott cannot undertake offence-specific treatment because of his low intellect. (4)Mr Scott has a lengthy history of failing to comply with bail and parole which I am satisfied is a reflection of his low intellect and poor insight. (5)The uncontroverted opinions of Dr O'Dea, Dr Collins and Ms Donaldson as to the risk he poses.

Whether a CDO ought be made and on what terms 73In determining whether to make a CDO or ESO, the Court must consider each of the matters listed in s 9 and s 17(4) of the Act as well as any other matters considered relevant. Each of these matters has been addressed above in the narrative of facts. 74I consider that the safety of the community (the primary object of the Act) will be compromised if no order is made under the Act. Although the index offences are the only sex offences of which Mr Scott has been convicted, he has displayed a continuing pattern of highly antisocial behaviour. The index offences were opportunistic and involved a significant level of violence, in broad daylight on a public street against a female stranger. The material found in his cell in February 2009 suggests a continued appetite for violent and non-consensual sex and indicates some level of sexual pre-occupation. Mr Scott's mental health has been implicated in most of his offending history. He has a history of poor compliance with his medication. He has repeatedly failed to comply with supervision imposed (in particular, committing offences whilst on bail or parole) and his institutional misconduct also indicates an inability to comply with rules. 75Mr Scott is unable, because of mental illness and poor intellect, to learn to control his impulses by offence-specific treatment and therefore there is no point in requiring him to undertake any such treatment. He will need to reside in secure highly supported accommodation for his own well-being and for the safety of the community. Because of my finding (based on Dr O'Dea's opinion) that offence-specific treatment would be futile, I do not consider that it would be appropriate to impose a CDO to require Mr Scott to undertake such treatment in custody. The only purpose of imposing a CDO would be to ensure his safety, and that of the community until suitable CJP accommodation in the community becomes available. 76It is a substantial step to order Mr Scott's continued incarceration beyond the expiry of his term of imprisonment. A CDO ought not be made lightly. Ms Callan, who appeared on behalf of the Crown, accepted that the further deprivation of liberty entailed by a CDO was an important relevant consideration against making such an order although it is not referred to in s 17(4) of the Act. The purpose of a gaol is to incarcerate those serving sentences for criminal offences, not as substitute accommodation for those entitled, but for a CDO, to be at liberty. This consideration is particularly strong in the present case where there is no reason to suppose that suitable CJP accommodation would not have been available when Mr Scott's sentence expired, had it been applied for in a timely way. 77However, in my view, the Crown has established that adequate supervision cannot presently be provided by an ESO. I accept the Crown's submission that a CDO ought be made for a limited period to permit CJP to finalise its assessment and identify suitable accommodation. 78The Crown referred to State of NSW v Davis [2008] NSWSC 664 (Davis), in which the lack of availability of suitable post-release accommodation meant a CDO was ordered, where otherwise an ESO might have been sufficient. In Davis, there was agreement between the parties that a CDO was appropriate in the short-term. In the present case, there is no agreement in the strict sense because Mr Scott wants to be released into the community at the earliest available opportunity. However, Mr Scragg indicated that the Public Guardian supported orders that would safeguard Mr Scott until he could be discharged to live in suitable accommodation to be provided by CJP, particularly if he could be treated at a forensic hospital during this interim period.

CDO 79In my view, the optimum way of obviating the risk posed to the community by Mr Scott is to keep him in custody (preferably in a forensic hospital following a transfer pursuant to s 55 of the Mental Health (Forensic Provisions) Act but otherwise in gaol, if no such transfer eventuates) until IRS accommodation provided by CJP is available. In my view he should be detained for a maximum period of three months to permit this to occur. If the accommodation is available prior to the expiry of three months, I consider that he should be released on the basis that he will be transferred to such accommodation. Upon his release he will be subject to an ESO with the specified conditions.

ESO 80If and when Mr Scott is released into the community, an ESO would provide much more appropriate and rigorous supervision than a CTO, and oblige Mr Scott to engage with services/accommodation provided by CJP. In the event of Mr Scott's admission to a psychiatric hospital, the term of any ESO would be suspended for the period of that admission (s 10(2) of the Act). 81I accept the Crown's submission that, without the services available through CJP, the supervision provided by Community Corrections if Mr Scott were released into the community would be inadequate having regard to the risk he poses. However, if a place for Mr Scott is found in IRS, then I consider the risk would be sufficiently obviated by an ESO with appropriate conditions 82The plan proposed by Community Corrections (in a report dated 18 November 2013) involves the following: (a)supervision by staff of Corrective Services; (b)regular reporting obligations; (c)the right of Corrective Services staff to see him at his accommodation at unscheduled times; (d)electronic monitoring to assist that his whereabouts are known; (e)a curfew requirement; (f)a condition prohibiting the consumption of drugs and alcohol and permitting random drug and alcohol tests; (g)a condition that Mr Scott provide a schedule of movements in advance. 83The plan is reflected in the terms of the ESO that are set out in the Schedule to the summons. Mr Scragg did not wish to be heard against any of the conditions, following concessions made by the Crown in relation to prohibition on his seeing films of a certain rating and the requirement that he be assisted in the provision of a schedule. 84I note that the Act provides for a CDO (s 19), or an EDO (s 13), to be varied, on application to this Court. I would expect any such application to be made if the plan to which my orders are intended to give effect does not, for whatever reason, come to pass.

Orders 85I make the following orders: (1)Order, pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (the Act), that the defendant be detained in a correctional centre until the earlier of the following two events: (a)The expiry of three months from the date of this order; or (b)The date on which a place in Intensive Residential Support is offered by Community Justice Program (CJP) to the defendant for his immediate occupation. (2)Pursuant to s 20(1) of the Act, a warrant issue for the committal of the defendant to the correctional centre for the duration of the continuing detention order referred to in (1) above. (3)Order, pursuant to s17(1)(a) of the Act, that the defendant be directed, for a period of 5 years from the date of this order, to comply with the conditions set out in the Schedule to this judgment, oversight of which is to be administered by an appointed representative of the Department of Attorney General and Justice. SCHEDULE EXTENDED SUPERVISION ORDER: CONDITIONS APPLICABLE TO TERRENCE SYDNEY SCOTT Oversight For the purpose of these conditions, the Departmental supervising officer is the corrective services officer authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Attorney General and Justice ("the Department"). Corrective Services NSW is a division of the Department. Reporting and monitoring obligations 1.For the duration of the supervision order, the defendant must accept the supervision of Corrective Services NSW. 2.The defendant must report personally once a week to the Departmental supervising officer or otherwise as directed by that officer. 3.The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 4.The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a corrective services officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. 5.If directed by the Departmental supervising officer, the defendant with the assistance of the CJP staff must inform the Departmental supervising officer of his movements in advance by providing a schedule. The schedule must be: a.in writing; b.for a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental supervising officer; and c.given to the Departmental supervising officer at least 3 days in advance of the schedule period. 6.The defendant must notify the Departmental supervising officer of any change to the schedule at least 24 hours in advance, unless a shorter period is approved by the Departmental supervising officer. 7.Condition 6 does not apply in the case of emergency, including if the defendant requires urgent medical attention, and he is unable to notify the Departmental supervising officer. 8.The defendant must respond accurately to the best of his knowledge and ability to all enquiries by his Departmental supervising officer, or any other corrective services officer who may from time to time be allocated to the defendant's case, about his whereabouts and movements generally. Accommodation 9.For the duration of the order the defendant must reside at accommodation approved by the Departmental supervising officer. 10.Except with the prior approval of the Departmental supervising officer, the defendant must not permit any person to reside either temporarily or a permanent basis, for any period at the defendant's approved accommodation. 11.Except with the prior approval of the Departmental supervising officer, the defendant must not stay overnight, or for any other temporary period, at a place other than approved accommodation. 12.The defendant must permit entry and accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 13.If directed by his Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified by the Departmental supervising officer) unless his presence at another place during those hours has been approved by his Departmental supervising officer. 14.The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate. Restrictions on employment and other activities Employment 15.The defendant must not engage in volunteer work, practical training as part of an educational or vocational course, or paid or unpaid employment (including self employment) other than that which has been approved by the Departmental supervising officer. 16.The defendant must notify his Departmental supervising officer of: a.the nature of his employment or proposed employment; b.any offer of employment; c.the hours of work each day; d.the name of his employer or proposed employer; and e.the address of the premises where he is or will be employed. 17.Without limiting condition 3 above, if directed to do so by the Departmental supervising officer, the defendant must make his employer aware of his offending history and that he is subject to any interim supervision order or extended supervision order and the terms of the order. 18.The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may disclose to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and the terms of the order. Non-associations generally 19.The defendant must not associate with any persons specified by the Departmental supervising officer. 20.Without limiting condition 19 above, except with the prior permission of the Departmental supervising officer, the defendant: a.must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act (except in the course of living in the COSP Centre or other Departmental facility or attending the community-based maintenance program conducted by the Forensic Psychology Services section of Corrective Services NSW); b.must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victims of the sexual offences for which the defendant was sentenced on 20 April 2007. 21.Should the defendant enter into a relationship with another person ("the other person"), involving sexual or intimate contact, he must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may disclose the defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person. 22.The defendant must obtain written permission and approval in advance from his Departmental supervising officer prior to joining or affiliating with any club or organisation. 23.The defendant must not frequent or visit any place or district specified by the Departmental supervising officer. Alcohol and drugs 24.The defendant must not, without prior approval of the Departmental supervising officer: a.possess or consume any alcohol (including any alcohol-based products such as methylated spirits); b.possess or consume any illicit drugs; c.possess any prescription medication other than prescription medication specifically prescribed to the defendant by a medical practitioner in the quantities prescribed, or abuse prescription medication or other forms of medication. 25.The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any other officer, who from time to time is allocated to his supervision. 26.The defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental supervising officer. 27.The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer. Access to the Internet and pornography 28.(a) The defendant must not possess or view pornography (including child pornography) and must not access, or attempt to access, pornography by any means. (b) Without limiting sub-paragraph (a), the defendant must not access the internet to view or to download pornography. 29.The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to the internet by him, and without limitation the Departmental Supervising Officer may direct the defendant to use on any computer or other device (including mobile phone or tablet computer) a parental lock or other device or software that may restrict access to or permit access only to certain web sites. 30.If and as directed by the Departmental Supervising Officer, the defendant must: a.permit the Departmental Supervising Officer, and any person ("the technician") employed or engaged by or on behalf of the Department, to access and inspect any computer or other device (including mobile phone or tablet computer) owned by the defendant, including the temporary removal of the computer or other device from his place of residence or his person for the purpose of inspection; b.take all available steps to permit the Departmental Supervising Officer and the technician to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant; c.provide the Departmental Supervising Officer and the technician with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) owned or used by the defendant, including providing them with any required passwords; d.permit the Departmental Supervising Officer and the technician to make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending. 31.The defendant: (a)must not access, join and / or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services, without approval from the Departmental Supervising Officer; and (b)in circumstances where the defendant accesses, joins and / or connects to any internet based social networking service, the defendant must inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service he joins and / or connects to, including web-based , e-mail, instant messaging services and on-line community services. Access to classified material 32.The defendant must not purchase, possess, access, obtain, view, participate or listen to material classified as Refused Content, X18+, R18+ Restricted Category 1 and Restricted Category 2, or any other material as directed by the Departmental Supervising Officer Access to weapons 33.The defendant must not, without reasonable excuse, have a weapon on his person or in his possession. Vehicles 34.The defendant must notify his Departmental supervising officer of the make, model, colour and registration number of any vehicle: a.owned by him; or b.driven or to be driven by him, whether hired or otherwise obtained for his use. Search and Seizure 35.If the Departmental supervising officer reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a.for the safety and welfare of residents or staff at the defendant's approved accommodation; b.to monitor the defendant's compliance with the extended supervision order or an interim supervision order; or c.because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the Departmental supervising officer may direct, and the defendant must submit to, a: d.search and inspection of any part of, or any thing in, the defendant's approved accommodation; e.search and inspection of any part of, or any thing in, any vehicle owned or hired by the defendant; and/or f.search and examination of his person in his approved accommodation. 36.For the purposes of paragraph 35.f: a.a search of the defendant means either or both a garment search or a pat-down search. b.to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by a corrective services officer of the same sex as the defendant under the direction of the Departmental supervising officer concerned NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 37.During a search carried out pursuant to paragraph 35, the defendant must allow the Departmental supervising officer to seize any thing found in the defendant's approved accommodation, any vehicle owned or hired by the defendant, or on the defendant's person, whether in the defendant's possession or not, which the Departmental supervising officer reasonably suspects will compromise: a.the safety of residents or of staff at the defendant's approved accommodation; b.the welfare or safety of any member of the public; or c.the defendant's compliance with the extended supervision order or an interim supervision; or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence. Personal details and appearance 38.The defendant must not change his name from Terrence Sydney Scott, or use any name other than Terrence Sydney Scott without the prior approval of the Departmental supervising officer. 39.The defendant must not, without the approval of the Departmental supervising officer, change his appearance to the extent that he cannot be easily recognised. 40.If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer. 41.The defendant must provide his Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed). Medical intervention treatment obligations 42.The defendant must undergo a comprehensive assessment, as recommended by a treating or consulting clinician, to determine what is required for treatment in respect of the defendant's potential for sex offending. 43.The defendant must accept psychological and psychiatric treatment as may be provided by a treating clinician. 44.The defendant must take any anti-psychotic, anti-libidinal (including SSRI's) or other prescribed medication if and as prescribed by a medical practitioner. The note at paragraph 49 below applies. 45.The defendant must not take any medication or substance which, to the defendant's knowledge, may affect the effectiveness of any medication prescribed under condition 44 being taken by the defendant, unless the defendant's treating medical practitioner prescribes such medication. 46.If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, he is to notify his Departmental supervising officer within 24 hours of ceasing to take the medication. 47.The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by a treating clinician. 48.If directed by his Departmental supervising officer, the defendant must accept and participate in maintenance or other rehabilitation programs as may be offered to him, including the maintenance program provided by the Forensic Psychology Services. 49.It is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in conditions 43 and 44) do not include participation in treatment, or requiring the defendant to take any medication that may be prescribed, without his informed consent. Disclosure of information 50.The defendant must disclose to the Departmental supervising officer the identity of any treating or consulting clinician that he consults, as soon as reasonably practicable. 51.The defendant must consent to his Departmental supervising officer and other officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment. 52.(a) The defendant must agree to the disclosure of all information between: (i) his Departmental supervising officer, and / or (ii) other officers from the Department (including from Corrective Services NSW), and / or (iii) any treating or consulting clinicians, (b) The disclosure by any treating or consulting clinician is limited to circumstances where that treating or consulting clinician believes the defendant is at risk of: (i) committing a further serious sex offence, or (ii) is demonstrating behaviours that may lead to the commission of a further serious sex offence; or (iii) is at risk of breaching a condition of his supervision relevant to (i) and (ii) above; or (iv) is with the consent of the defendant. 53.The defendant must provide his Departmental supervising officer details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 54.The defendant must provide his Departmental supervising officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 55.The defendant must provide his Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection. 56.The defendant must provide his Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet or other electronic communication service. FURTHER THE COURT NOTES AND RECOMMENDS Review of grievance 57.In the event the defendant is aggrieved by any decision of the Departmental supervising officer, he may set out his grievance, in writing, to the Commissioner of Corrective Services who is to consider his grievance and make appropriate directions as to supervision, if required. Review of order 58.At the expiration of 6 months from the date of this order (and at the end of each six monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear the electronic monitoring equipment will be reviewed by the Departmental supervising officer and, for this purpose, the Departmental supervising officer may consult with (either jointly or separately) any treating or consulting clinician and must consult with the defendant. 59.The conditions of the extended supervision order to which the Defendant is subject shall be reviewed by the Commissioner: a.on each occasion a review is conducted under condition 58; and b.at the expiry of 12 months from the date on which a decision is made (if any) that the defendant is not required to wear electronic monitoring equipment and at the end of each 12 month period thereafter. The purpose of a review under condition 59 is for the Commissioner to consider any possible adjustments of the conditions of the extended supervision order and/or consideration by the State as to whether an application should be made to the Court to vary the conditions if considered appropriate. For the purposes of this review, the Commissioner may consult with (either jointly or separately) any treating or consulting clinician and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer. 60.Following a review under condition 58 or condition 59, the reviewer must notify the defendant in writing of the result of the review. 61.The Department is to arrange for the Departmental Supervising Officer or another officer of Corrective Services NSW to provide a report, prior to the final hearing, as to the defendant's compliance with the interim orders and progress under his period of supervision of "Order of the Court".

Amendments 17 July 2018 - Condition 32 amended by replacing "TV" with "R18+" 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: 17 July 2018