(b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.
…
(3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.
117 Section 13(1) provides that:
The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State of New South Wales or the offender.
118 Each of the court appointed psychiatrists was asked to express an opinion as to the "suitability of the length of the proposed extended supervision order, namely five years". Dr Roberts expressed his opinion upon that issue in the following terms:
In considering the potential duration of an Extended Supervision Order, I note the flexibility with regard to the restriction placed on an individual on such an Order. It is also my understanding that Orders can be extended on application to Court. It is my opinion that Mr Thomas will require a period of no less than two years of supervision to ensure an optimal process of reintegration into the community . It is my opinion that during the period of his reintegration into the community, the restrictions placed on him will need to be gradually diminished to achieve progressive normalization. It is my understanding that that the Court may make a 5-year Order with a gradual reduction of conditions over that time based on periodic reassessment of Mr Thomas's progress or the Court may make a shorter Order that could be reviewed and extended if deemed necessary. I am not of the view that the rehabilitative benefit for Mr Thomas would be substantially different, nor is it my perception that the risks to the community would, with any degree of certainty, be significantly altered. It is my opinion that any conduct on Mr Thomas's part indicative of escalating risk will be likely to manifest within the first two years of his release . This having been said, a potential relocation from NSW to Victoria, could create certain stressors heightening the risk to relapse to alcohol or other circumstances reflective of escalation of risk. (emphasis added)
119 Dr Lewin declined to express a view as to the duration of the order even when he was asked to provide a supplementary report about that specific issue.
120 The following extract appears in the joint report of Dr Lewin and Dr Roberts to which I referred earlier:
From the psychiatric perspective, what is the period during which offending by the defendant is most likely to reoccur.
When considering psychiatric expertise, there is abundant research evidence that indicates that the threat of a reimprisonment is a powerful motivating factor. Where there is a supervision order, it is reasonable to presume that such a motivation continues.
With the establishment of community contacts, relationships and networks of support, Mr Thomas is likely to appreciate that he has more to lose from re offending. The greater his integration into the community networks, etc, the more powerful this protective factor is likely to be. When considering the published research regarding alcohol dependence, the development of new, loving relationships is considered to be a powerful protective factor in assisting the individual to abstain from the use of alcohol. Clinical experience suggests that the same observations are relevant with regard to other substance related problems.
The development of close, interdependant, loving relationships is a matter which takes time to evolve. This is unlikely to be an important protective factor under a period of 12 months. A somewhat longer period would allow such relationships to become established.
Clinical experience also suggests that the longer the period of abstinence (alcohol, marijuana, etc) the more likely that abstinence is to be enduring. The capacity of Mr Thomas to reintegrate into a regular, unsupervised community living (network of friendships, work, other social supports) is a complex assessment which relies on multiple variables. The provision of a period of supervision will commit Mr Thomas to develop new habits of conduct, to develop coping skills and to practice coping with a range of ordinary adversities in a community setting. When considering the long-term life history he described, Mr Thomas has had little opportunity to develop these adult coping skills, either in adolescents or in his early adult years, because of previous adversities.
Mr Thomas is at greatest risk in the first few months after release from custody and during the first few months following the withdrawal of all supervision. Clinical experience suggests that the best measure of likely future behaviour is his response to the progressive relaxation of conditions of his supervision, his acceptance of the orders initially and his management of the inevitable challenges which will arise over the next year or two . If these responses are monitored and appropriately managed his (sic) useful information will be gained.
6. Is there a risk in maintaining supervision for a period significantly longer than indicated in question 5a (i.e. frustration and bleak loss of hope by the defendant)?
The emotions of frustration and loss of hope fall within the normal human range of experience. In the presence of a program of supervision such as that described above, there would be opportunity to support Mr Thomas in the event that he experienced such emotions in order to avert an inappropriate behavioural response. The presence of a supervision order permits early intervention in the event that such emotions arise.
121 The plaintiff emphasised that the legislation was protective, rather than punitive, in nature. It was also submitted that the combination of the defendant's offending history, the entrenched nature of his anti-social character traits, his history of substance abuse and his dependency upon the opiate-based medication, oxycontin, created the need for an order of the duration which was sought, in order to ensure that the risk which the defendant posed to the safety of the community could be adequately contained. It was also submitted that a measure of flexibility had been built into the conditions which have been proposed which meant that the level of supervision of the defendant could be reduced over time depending upon how he responded to it. In other words, the defendant had an incentive to comply with the conditions of the order because compliance carried with it the prospect that they would be progressively relaxed over time.
122 The defendant's position, when ultimately refined in oral submissions was that an order for a period of 3 years was, in the circumstances, more appropriate. Counsel for the defendant, whilst recognising that the legislation was not intended to be punitive nonetheless highlighted what was described as "the highly intrusive nature of orders [made] under the Act and the consequence of up to two years imprisonment for breach of any conditions". The defendant also placed considerable reliance upon the opinion which was expressed by Dr Roberts.
123 It was also submitted that s 13 of the Act enables the plaintiff to make a further application should it become necessary to do so. That argument was developed in the following fashion in written submissions:
That the Act contemplates further orders speaks to the uncertainty of the process of rehabilitation and the wide range of offenders and offending histories which the Court encounters in these applications. It is included in the Act for a purpose, although for historical reasons no re-application has yet been before the Court. It is submitted that the re-application provision gives the Court flexibility in determining the length of these applications. Given that it is easier to assess future risk with the benefit of actual treatment rather than speculation, and that the further ahead one attempts to predict the more imprecise that prediction is likely to be, it is submitted that a shorter term is preferable in the circumstances of this case.
124 Counsel for the defendant also submitted that the defendant had made good progress in the two months since he had been released from custody. Although there is no evidence before the court to support that contention, it must nonetheless be recognised that there is nothing to suggest that any problems have been encountered in that respect. Counsel also referred to the fact that the defendant had reported that he had now abstained from consuming alcohol for a period of 5 years. I have already observed that there is a considerable tension between the various accounts which the defendant has provided about matters relating to his background. I am not disposed to uncritically accept assertions which he has made in the absence of supporting evidence.
125 In State of NSW v Quinn [2008] NSWSC 1080, Hidden J observed of that offender that his:
rehabilitation would be fostered by his seeing some light at the end of the tunnel. [para 10]
126 It was submitted that a similar approach was warranted in the present case. Moreover, it was submitted that an order of the duration which the plaintiff sought may prove to be counter-productive in that it may cause the defendant to lose hope, and then in a state of despair, resume his offending conduct.
127 Other than the matters which are identified in s 3, the Act otherwise provides no particular guidance as to how the length of the term is to be determined. In the final analysis I must make an evaluation, based on the evidence which has been adduced on this application, whilst bearing in mind that the primary object of the legislation is "to ensure the safety and protection of the community".
128 It is axiomatic that the task of assessing the risk that a particular person may reoffend is fraught with difficulty. Even more hazardous is the task of predicting the duration of that risk. Nevertheless in my view it is not without significance that Dr Roberts, who has some experience in applications of the present kind, arrived at the opinion to which I referred earlier. I have also been assisted by the views which are expressed in the joint report. It is against that background that the other submissions which the defendant has advanced assume greater cogency than might otherwise have been the case. On the other hand, the number and range of challenges which confront the defendant, lead me to conclude that an order of greater duration than the one suggested by Dr Roberts is required. I have concluded that the order should be of four years duration.