Attorney General for the State of New South Wales v Cornwall - [2007] NSWSC 1082

No judgment structure available for this case.

CITATION: ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v CORNWALL [2007] NSWSC 1082
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23, 24, 27, 28 August 2007; 24, 26, 27 September 2007

JUDGMENT DATE :
28 September 2007

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: 1. Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Raymond Barry Cornwall is to be detained in a correctional centre for a period of eight months from the date of this order (27 September 2007). 2. Pursuant to s.20(1) of that Act, I issue a warrant for the committal of Raymond Barry Cornwall to a correctional centre for the duration of the continuing detention order referred to in order [1] above.

CATCHWORDS: Serious sex offender – Crimes (Serious Sex Offenders) Act 2006 (NSW) – application for extended supervision order or continuing detention order – Custody Based Intensive Treatment program not completed by offender – Legislative scheme – the construction of s.17(3) and the nature of the test under that provision – meaning of the word “likely” – standard of proof – high degree of probability – whether offender likely to commit a further serious sex offence – whether adequate supervision would be provided by an extended supervision order – Psychiatric and psychological assessment of offender – whether possible to predict risk of re-offending – actuarial assessment – dynamic risk factors – whether proposed risk management plan adequate – defence barriers

LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006
Crimes Act 1900
Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Orders) 2004

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] NSWSC 528
Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071.
Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705

PARTIES: ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES
v. Raymond Barry CORNWALL

FILE NUMBER(S): SC No 13126 of 2007

COUNSEL: P: D Arnott SC/A Mitchelmore
D: D Dalton SC

SOLICITORS: P: I V Knight
D: S E O'Connor

- 50 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 28 SEPTEMBER 2007

No 13126 of 2007

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RAYMOND BARRY CORNWALL

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff, the Attorney General for the State of New South Wales, proceeds by way of amended summons filed on 5 July 2007 in which orders are sought pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) (the Act).

2 The primary orders sought by the Attorney General (hereinafter referred to as “the plaintiff”) is an order pursuant to s.17(1)(b) of that Act that the defendant, Raymond Barry Cornwall, be detained in a correctional centre for five years from the date of the order. A consequential order is sought, in that respect, under s.20(1) for a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order.

3 The alternative form of relief sought by the plaintiff is an order pursuant to s.17(1)(a) of the Act that the defendant be subjected to extended supervision for a period of five years from the date of the order, subject to conditions. The conditions are set out in paragraph 7 of the amended summons, being conditions (a) to (p).

4 On 2 July 2007, the Court (Price J) made an interim order pursuant to s.16 of the Act and a further order interim detention order was made under that provision by Grove J on 30 July 2007.

5 On this application for final relief, the plaintiff relied upon the following affidavit evidence:-

• Affidavit of Carline Rita Giurastante, solicitor, sworn 21 June 2007.

• Affidavit of Graham Rendell, psychologist, sworn 28 June 2007.

• Affidavit of Jayson Barry Ware, psychologist, affirmed 28 June 2007.

• Affidavit of Renata Zukauskas, Probation and Parole Officer, sworn 28 June 2007.

• Affidavit of Sue Knight, Department of Corrective Services, affirmed 26 July 2007.

6 On 24 and 26 September 2007, the plaintiff also tendered the following affidavits:-

Monday 24 September 2007

Affidavit of [a relative of the defendant] sworn 24 September 2007 filed in court without objection, by leave

Affidavit of [a relative of the defendant] sworn 24 September 2007 read without objection

Wednesday 26 September 2007

Affidavit of Iida Kaban affirmed on 24 September 2007 read

Affidavit of the Luke Grant affirmed on 24 September 2007

Affidavit of Rhonda Booby sworn 26 September 2007 read

Affidavit of David Anthony Bright affirmed 26 September 2007 read

7 Mr Arnott SC, who appeared on behalf of the plaintiff, tendered in the plaintiff’s case reports of Dr Stephen Allnutt, psychiatrist, dated 19 July 2007 and of Dr Jeremy O’Dea, psychiatrist, dated 26 July 2007 (respectively, Exhibits A and B).

8 Those reports came into existence by reason of orders made by the Court on 2 July 2007 pursuant to s.15(4) of the Act.

9 The defendant tendered and relied upon the report of Dr Olav Nielssen dated 26 July 2007. That report was tendered and marked as Exhibit 1 in the proceedings.

Facts

10 The defendant is presently aged 52 years (date of birth, 13 May 1955). He has a criminal history in relation to sexual and non-sexual offences, and has served a total period of sentence imposed upon him in the District Court of New South Wales on 6 December 1993 of 14 years. The sentences of imprisonment imposed with respect to the seven counts to which the defendant pleaded guilty commenced on 8 July 1993 and were to expire on 7 July 2007.

11 The defendant had one conviction in 1975 when he was 23 years of age for an offence of indecent exposure.

12 The offences for which the defendant was sentenced included:-

• Aggravated sexual assault without consent (x 4) armed with intent to commit indictable offence.

• Sexual intercourse without consent.

13 The defendant was, accordingly, sentenced to a total period of 14 years with a non-parole period of 10 years, expiring on 7 July 2003. The defendant served the sentences imposed by way of imprisonment, parole having been refused.

14 The index offences to which he pleaded guilty, involved, in all, seven offences that occurred on five occasions over a period of two years (between June 1991 and July 1993). The offences consisted of sexual attacks on young women and adolescent girls aged between the age of 13 to 23 years.

15 In relation to the last-mentioned offences, the defendant approach unknown victims with a knife and exerted physical force and threatened his victims in order to coerce them to undress and perform various sexual acts. The abovementioned stealing offence related to the taking of a handbag from one of his first victims.

16 A full history of the defendant’s offending was set out in the plaintiff’s written submissions, the accuracy of which was not disputed, and which I reproduce below:-

Serious sex offences

Victim	Date	Offence
1 (24 years old)	13 June 1991	Aggravated sexual assault (s.61J); Stealing (s.496)
2 (14 years old)	20 October 1991	Aggravated sexual assault (s.61J)
3 (14 years old)	20 October 1991	Aggravated sexual assault (s.61J)
4 (15 years old)	26 January 1992	Armed with intent to commit an indictable offence (s.114(1)(a))
5 (13 years old)	3 March 1992	Aggravated sexual assault (s.61J)
6 (18 years old)	1 July 1993	Sexual intercourse without consent (s.61J)

Other offences

Date	Conviction	Sentence details
23 October 1972	Stealing (x 2) Break, enter and steal (x 2) One charge of illegally use motor vehicle	Released on probation for 12 months to be of good behaviour
16 September 1974	PCA	Fined $150, licence disqualified for 12 months
13 January 1975	PCA Drive whilst disqualified Fail to stop	PCA: three months hard labour and licence disqualified for three years; Drive whilst disqualified: three months hard labour and licence disqualified for six months Fail to stop: $100 or 20 days hard labour
16 January 1978	Indecent exposure Drive whilst disqualified	Indecent exposure: fined $75 Drive whilst disqualified: recognisance of $500 on good behaviour for five years, also fined $400 and licence disqualified for five years
14 March 1978	Drive whilst disqualified Fail to stop after accident Drive contrary to notice	Drive whilst disqualified: fined $400 and licence disqualified for six months Other two charges: on each charge, fined $200 (breach of recognisance submitted)
12 January 1979	Drive whilst disqualified	Six months hard labour; all licences disqualified for six months (breach of recognisance submitted)
9 January 1980	Drive whilst disqualified	Six months hard labour, licence disqualified six months (directed no action on recognisance)
23 June 1986	High range PCA	Recognisance $1,000 on good behaviour for three years; also fined $1,000 and licence disqualified for three years

17 In a risk assessment report dated 3 May 2007, Mr Graham Rendell, senior psychologist, Sex Offenders Programs, observed that he had seen no documentation indicating that the defendant had any institutional convictions or punishments. Mr Rendell further observed that the defendant has been well behaved during the period of his imprisonment and had received no adverse case management reports in respect of his work or conduct. In due course, his classification was reduced, the last re-classification being to “C2” on 25 July 2000. The defendant has not been afforded any “external leave programs”.

Treatment programs

18 According to Mr Rendell’s abovementioned report, departmental records indicate that the defendant was counselled from 11 September 2001 to 15 November 2001 to attend Offence Specific Programs (Sex Offender Treatment Programs) to address his offending behaviour on eight occasions between those dates. Mr Rendell reported that records indicated that on multiple occasions the defendant was made aware that his non-participation would adversely impact on his parole consideration.

19 On 2 June 2003, he is recorded as having declined to participate in an interview with a psychologist, Victoria Bel, in respect of his then impending parole. Mr Rendell recorded (p.4 of his report) that the defendant confirmed this, stating “It was too late” then to participate in the CUBIT program. According to departmental documentation, the defendant was referred to the CUBIT 10 month High-Intensity Program on 31 January 2001. On a subsequent date while in Kirkconnell Correctional Centre, a further offer was made by psychologist S. Frost in late 2006 but was rejected by the defendant.

20 The defendant has, however, participated in some programs. Mr Rendell’s report confirms that he participated in two Sex Offender Psycho-Education (SOPE) courses while in Berrima between 1997 and 2000 delivered by staff from DCS Sex Offender Programs. He is recorded as saying he did so as he thought that SOPE was what the sentencing judge (his Honour Judge Viney, DCJ) had referred to in his remarks on sentence in 1993 (see below). Mr Rendell quotes from the following statement contained in a pre-sentence report by psychologist W. John Taylor dated 26 November 1993:-

“… it is clear Mr Cornwall is in quite a desperate need of intensive psychiatric treatment. This treatment needs to include therapy for his long-standing sexual pathology, that this needs to be seen within the context of his severe personality disorder (schizoid and avoidant personality adjustment). His future potential for recidivism would appear to depend to a great extent on the outcome of such psychiatric intervention …”

21 I will refer to this report and that of Dr Koller, consultant psychiatrist, below.

Attitude to sexual offences

22 Mr Rendell observed, in his report (p.5), that the defendant admitted to the substance of the sexual assaults to which he had pleaded guilty and had been sentenced. However, in all the assaults, he denied certain aspects of his offending. This is consistent with the histories recorded in the reports of the psychiatrists.

23 Mr Rendell, in relation to the matter of risk assessment, addressed both the actuarial risk assessment and relevant dynamic risk factors.

24 In relation to the former, he stated that the defendant’s risk of sexual re-offending was assessed using the actuarial risk assessment tool, the Static-99. That instrument is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. However, it is to be noted that Static-99 relates to group estimates and not individual assessment. This fact is acknowledged by Mr Rendell and is also commented upon by the psychiatrists. Mr Rendell added:-

“… the offender’s risk may be higher or lower, than the probabilities estimated in the Static-99 depending on the other risk factors not measured by this instrument.”

25 Mr Rendell said that based upon the Static-99 score, the defendant was in the high risk category relative to other adult male sex offenders.

26 Mr Rendell commented that dynamic risk factors provide specific information about risk of the particular individual being assessed. He then comments on each relevant factor. They were identified as:-

• Intimacy deficits.

• Social influences.

• Distorted attitudes.

• General self-regulation.

27 Mr Rendell assessed the defendant as being in the high risk category of sexual offending in the same terms to which I have referred above. He stated (at p.14):-

“… the management of an individual’s risk involves enhancing their level of functioning in the ‘dynamic risk’ domains discussed above. Through working on identified deficits in these areas, a sex offender becomes more insightful and skilled at monitoring and managing his ‘live’ risks, increasing his ability to positively respond to risk challenges, thereby enhancing his general capability to regulate his potential offending pattern. At this point, Mr Cornwall lacks the necessary awareness of his cognitive, emotional and behavioural offending sequale (sic). As a result, he has limited management strategies and skills to respond and protect him in situations of risk.”

28 Mr Rendell, who impressed me as both experienced and capable, concluded that by reason of the defendant had not previously been an adult supervised in the community, this renders a prediction difficult exercise. He stated that, given his assessed high level risk/needs, he considered that it was essential that the defendant enter a treatment program which is specific to his sex offending behaviour.

29 He also stated that the defendant’s risk may be managed or reduced if he were to complete a suitable treatment program so as to allow him to identify the risk factors associated with his sexual offending behaviour, formulate meaningful and effective management strategies and allow for the practice of the strategies. He went on to state that in custody CUBIT offers a treatment program appropriate to his high risk/needs.

30 He observed that in the defendant’s favour, the defendant had expressed a desire to enter treatment, and based on his custodial performance and the assessment process, he presented as amenable and compliant.

31 However, he expressed doubts upon the defendant’s post-release plans, given the assessment by Community Offender Services as the proposed accommodation adjoined a childcare/preschool. Reservations had also been expressed by the Probation and Parole Officer who had conducted the pre-release home visit in respect of the proposed accommodation providers. One particular difficulty referred to was the fact that the suggested providers did not appear to have knowledge of the nature of the offences that had been committed by the defendant. Mr Rendell observed that, at present, there was no appropriate community treatment program to the defendant’s risks and needs.

PSYCHIATRIC ASSESSMENT

Relevant issues

32 The specific issues arising on the plaintiff’s application are generally to be classed under two headings. The first are issues relating to risk assessment. The second include issues relevant to risk management.

33 In relation to the former, there is no substantial difference of opinion between that expressed by Mr Rendell and the assessments of Dr Allnutt, Dr O’Dea and Dr Nielssen. The assessments uniformly class the defendant as being in a high risk category and such assessment has regard, not only to the Static-99 assessment, but also to the assessment of relevant dynamic risk factors.

34 In those circumstances, the focus of attention in this application is necessarily upon the relevant factors concerned with the management of the assessed risk. That, in turn, requires consideration of the treatment and support which the defendant requires in order to both reduce the level of risk and the matters that will additionally ensure that appropriate and viable safeguards and precautions are in place when the defendant takes his place in the community.

35 In evaluating the evidence in relation to each issue falling within the general category of risk management, it is necessary that this Court assess the evidence and make findings in accordance with the provisions of the Act including, in particular, the appropriate test required to be applied as discussed in this Court’s judgments in 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] NSWSC 528 and in Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071.

Legislative scheme

36 The Act commenced on 3 April 2006. Its objects are set out in s.3:-

“… to provide for the extended supervision and continuing detention of serious sex offenders so as:-

(a) to ensure the safety and protection of the community; and

(b) to facilitate the rehabilitation of serious sex offenders.”

37 In Gallagher (supra), McClellan CJ at CL stated that it was clear from the objects that the legislative purpose of the Act was protective and not punitive.

38 The Act provides for two types of orders for which the Attorney General may apply to the Supreme Court in respect of such offenders:-

(a) An extended supervision order, for which provision is made in Part 2 of the Act.

39 An application for a continuing detention order may only be made in respect of a “sex offender” who, at the time application is made, is in custody in a correctional centre for a “serious sex offence” or an “offence of a sexual nature” (s.14(1)). A “sex offender” is defined in s.4 of the Act to mean “a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child”.

40 The term “serious sex offence” is defined in s.5(1) of the Act to include, relevant for the present purposes:-

“(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where:-

(i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for seven years or more, and

(ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises).”

41 In determining whether the test under s.17(2) or s.17(3) is made out, the Court “must” have regard to the matters listed in s.17(4) of the Act. Although the Court must consider the factors that are specifically listed, the list is not exhaustive, and the Court can have regard to “any other matter it considers relevant”.

42 Part 3 – Continuing Detention Orders, s.17 provides as follows:-

“17.

Determination of application for continuing detention order

(1) The Supreme Court may determine an application for a continuing detention order:-

(a) by making an extended supervision order, or

(b) by making a continuing detention 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 psychiatrists appointed under s.15(4) to conduct psychiatric 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 program 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.

(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 s.9

”

43 Section 17(3) is a key provision. As Mr Arnott, SC, who appeared on behalf of the plaintiff, with respect, correctly submitted, the burden is on the plaintiff to satisfy the Court “… to a high degree of probability …” that (Plaintiff’s Outline of Submissions, paragraph 37):-

(a) the offender is likely to commit a further serious sex offence if he or she is not kept under supervision; and

44 Section 18 deals with the term or period of operation of a detention order and provides a maximum period of five years. It provides as follows:-

“18.

Term of continuing detention order

(1) A continuing detention order:-

(a) commences when it is made, or when the offender’s current custody expires, whichever is the later, and

(b) expires at the end of such period (not exceeding five years from the day on which it commences) as is specified in the order.

(2) An offender’s custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order.

(3) Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender.”

45 Supreme Court has jurisdiction following the making of a detention order to revisit, on application being made, the order and make further orders in accordance with s.19, which provides:-

“19.

Detention order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke a continuing detention order or interim detention order on the application of the Attorney General or the offender.

(2) For the purpose of ascertaining whether to make such an application in relation to a continuing detention order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.’”

The psychiatric evidence

46 I have been greatly assisted in my consideration of the relevant issues in these proceedings by the reports of Drs Allnutt, O’Dea and Nielssen. There is a marked uniformity in their assessments. In general terms, their evaluation and assessment may be said to indicate the following as relevant matters:-

(a) The defendant’s history of sexual offending was not related to any drug or alcohol abuse disorder notwithstanding that there was a history of episodic abuse of substances.

(b) The defendant’s sexual offences correlate with and have a causal relationship to a severe personality disorder. This has variously been described, originally by Mr Taylor, as a severe personality disorder with schizoid and avoidant personality adjustment associated with poor self-concept and with low self-esteem marked by social isolation. Dr Allnutt has diagnosed the disorder as “an Avoidant Personality Disorder” .

(c) Much of the defendant’s offending appears to have occurred in the context of a dysphoric mood in which he experienced feelings of personal despondency and social isolation.

(d) The defendant has not developed adequate mechanisms for coping with dysphoric moods in a constructive manner. The defendant does, however, appreciate that sexual offending is an inappropriate way of dealing with it.

47 Dr Allnutt, under the sub-heading “Synthesis”, stated (p.16) the following:-

“Overall, Mr Cornwall manifests high loading of both static and dynamic risk factors as assessed by clinical and actuarial methods. He manifests some strengths. Risk for re-offence would increase in the context of dysphoric mood and social isolation, driven by underlying paraphiliac urges; it is probable that re-offence would follow a course of escalation from involvement in non-contact offences such as voyeurism, exhibitionism and fetishism to contact offences involving opportune victims in isolated areas. In the context of re-offence, there would be a risk of physical harm to victims, especially if a weapon was used again.”

48 Dr O’Dea, in his report (p.9), identified the specific dynamic risk factors that will need to be addressed in the long term in order to manage and minimise the defendant’s risk of engaging in further sex offending behaviour in the community in the long term. These factors included:-

• The defendant’s history of sexual deviance, including his history of exhibitionism.

• His history of alcohol abuse.

• His history of social isolation.

49 The second of the abovementioned factors (alcohol abuse) has been commented upon above. The history does not, as earlier indicated, suggest a strong or significant correlation between the index offences and alcohol abuse.

50 The suggested approach to supervision and treatment of the plaintiff is remarkably uniform in the analyses to be found in the psychiatrists’ reports. There is an emphasis, in particular, in the reports of Drs. Allnutt and Dr O’Dea on the need for both medical (psychiatric) treatment as well as for psychological therapy in terms of treatment programs. It is clear that unless both forms of treatment or therapy are properly administered with the defendant co-operating, the risk in question is unlikely to be minimised. I note in the remarks on sentence of Viney DCJ given on 6 December 1993 that his Honour also saw the need for psychiatric treatment as essential in the offender’s rehabilitation. His Honour, in that respect, stated (p.19):-

“… in determining what that period should be, I have to take into account the prospects of his conduct, that is, is propensity, being contained, hopefully curtailed permanently. Such curtailment, that is, really, his being reformed, depends upon the resources within the prison system to provide adequate psychiatric treatment during the period of his incarceration. Whether such treatment can effect such a change is uncertain and has to be uncertain because it depends, not only on the availability of sufficient treatment, but also the commitment of the prisoner to co-operate with those opportunities. On the evidence of the reports of Mr Taylor and Dr Koller, the prognosis at this stage must be guarded.”

51 Dr O’Dea, in his report, in terms of future management, observed (p.9):-

“Mr Cornwall should take the opportunity to explore in more detail with a suitably qualified and experience (sic) forensic psychiatrist (and forensic psychologist, as appropriate), his sexuality in general and his sexual offending behaviour in particular, in order to endeavour to gain a better understanding of specific measures required to help him to manage and minimise his risk of engaging in future sex offending behaviours in the long term. Specific treatment of his paraphilias, including specific treatment of his history of Exhibitionism and Voyeurism, should involve specific Cognitive Behavioural Therapy (CBT) interventions and specific consideration of medication, including selective serotonin re-uptake medication (SSRI), anti-depressant medication and testosterone lowering medication.”

52 Dr Allnutt also made it clear that the defendant requires both specialist medical and assistance from specialised psychologists. He stated, in this respect (p.17):-

“… the Community Forensic Mental Health Service, under Justice Health, could assist the Forensic Psychology Services and in conjunction with them provide psychiatric oversight and supervision of medication and/or sex drive suppressant medication, should he consent.”

53 The analysis, in particular, that of Dr Allnutt, leads strongly to the conclusion that the defendant requires psychiatric treatment to deal with the underlying personality disorder. If he is to remain in custody, the he considered the support and assistance from program such as CUBIT would be indicated. The latter alone plainly will not be sufficient to address the needs and requirements for the defendant’s rehabilitation. That much was clear from the evidence of the psychologist, Mr Taylor before the sentencing judge in 1993 and it was clear to the sentencing judge, whose remarks I have extracted above. It has, as I have stated, been reinforced recently by Drs Allnutt, O’Dea and Nielssen.

54 Regrettably, the defendant has not been seen by a psychiatrist for assessment until July 2007. He has not received treatment as recommended by Mr Taylor.

55 Dr Allnutt, in identifying the underlying psychiatric dynamics, has pointed to the need for an integrated treatment program involving both medical intervention and supervision as well as programs directed to cognitive behavioural issues. In his report, he stated (at p.13):-

“Mr Cornwall manifests a limited understanding of the motivations and triggers that preceded his offending, although he was able to provide me with a description of his circumstances. He, to a degree, does understand that it is driven by, some form of sexual difficulty. I did not gain the impression that he had an adequate understanding of the antecedence (sic) [antecedents] to his sexual offending.

He presented as an individual who had a limited repertoire of coping when it came to dealing with stress. Much of his offending appeared to have occurred in the context of a dysphoric mood, feelings of personal despondency and social isolation; of concern, his offending behaviour appears to have been an attempt to deal with these feelings. I do not believe, at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner, although he does appreciate that sexual offending is an inappropriate way of dealing with it.”

56 The history obtained by the psychiatrists indicates that the relevant serious sexual offences were of late onset, having occurred when the defendant was aged 36 to 38. The personality disorder which Mr Taylor originally diagnosed is against a history that the defendant had worked since the age of 14, but that he last worked in 1991 and that from that time “… he locked himself in his room and became withdrawn” (Dr Allnutt’s report, p.8).

57 The history obtained by Dr O’Dea confirmed that, before the serious sex offences in 1991-1993, the defendant had a marked period of social retreat or isolation which, on the evidence, was associated with the dysphoric mood referred to by Dr. Allnutt. Dr O’Dea recorded in his report (p.7):-

“Mr Cornwall told me he had no formal psychiatric contact prior to his arrest and detention in custody. However, he told me that in the three years leading up to his arrest and detention in custody, he became increasingly depressed and at time suicidal. He told me that after the second set of offences, he had put rat poison in a cup of coffee but did not drink it ‘I didn’t like what I had done’. He told me that he did not talk to anyone about this incident or about his offending behaviour at the time …”

58 I accept the opinions expressed by Dr Allnutt and of Dr O’Dea and Dr Nielssen. It is clear that on their analyses, the defendant has required medical treatment for his personality disorder for many years. He requires ongoing psychiatric treatment and periodic assessment for his personality disorder. Future treatment may require the use of anti-libidinal medication amongst other treatment modalities.

Continuing detention order or extended supervision order?

59 I have earlier referred to the provisions of s.9 and, in particular, s.9(3) and the provisions of s.17, including, in particular, s.17(3) and (4).

60 Section 17(3), in particular, specifies that 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”.

61 It can be seen that there are two aspects that the Court is required to consider in terms of this last-mentioned provision. The medical evidence, to which I have already referred, does establish the first of those two matters, namely, there is a high risk that the defendant is likely to commit a further serious sex offence if he is not kept under supervision.

62 The critical matter in the present proceedings is whether or not adequate supervision will or will not be provided by an extended supervision order made under the Act.

63 This last-mentioned issue requires particular consideration to be given to the evidence of Mr Rendell, and that of Dr Allnutt, Dr O’Dea, Dr Nielssen, Dr Ellis and Ms Howell.

64 Dr Allnutt, in his report, has set out a detailed set of recommendations or matters for consideration in his report directed towards the defendant’s rehabilitation. In his report, he stated (p.17):-

“… he requires further sex offender rehabilitation and close monitoring by clinicians by … clinicians expert in this field. He needs to develop understanding of the antecedents and his motives; develop better coping skills; learn strategies to manage deviant sexual interest; and manage his depressive disorder and anxiety order.”

65 Dr Allnutt then addressed a number of issues under the heading “If the Court decides to make an ‘extended supervision order’”. Issues considered under that heading include:-

• Oversight

• Placement

• Monitoring

• Supervision

66 The strong submission made on behalf of the defendant was that the Court should make an extended supervision order and not a continuing detention order. In that respect, reliance was placed, particularly, upon the recommendations set out in Dr Allnutt’s report at pp.17-19 and upon the additional evidence concerning the development of a management plan which, it is said, would give effect to the recommendations set out in Dr Allnutt’s report and to the evidence of Dr Ellis.

67 In considering the submission and the evidence relevant to the making of an extended supervision order, it is necessary that particular regard be had to the matters referred to in s.9(3), s.17(3) and (4) of the Act.

Adjournment of the proceedings: additional medical and other evidence

68 There was also tendered in the plaintiff’s case a letter dated 4 September 2007 from Mr Ware, Statewide Clinical Co-ordinator, Sex Offender Programs.

69 On 28 August 2007, the proceedings were adjourned. On that date, Mr Dalton SC, on behalf of the applicant, stated:-

“The primary purpose of the adjournment was to initiate a full assessment by both Ms Howell and Dr Ellis, [to] permit them to commence treatment and then have a report prepared for the next occasion.”

70 It was accordingly envisaged on the latter date that further medical evidence would be produced in the proceedings, in particular, in relation to future medical (psychiatric) treatment proposed and for a further report to be obtained from Ms Howell.

71 On 28 August 2007, the proceedings were adjourned on the application of the defendant. The purpose of the adjournment was to permit the evaluation of the proposed risk management plan and to obtain additional medical (psychiatric) evidence in relation to future psychiatric and psychological treatment directed to reducing and controlling the risk of relapse and re-offending by the defendant.

72 On 24 September 2007, the hearing of the proceedings resumed. On that date, Dr Allnutt’s report 19 September 2007 was tendered and admitted (Exhibit C). A copy of the report of Dr O’Dea dated 20 September 2007 was tendered and admitted (Exhibit D) as well as a letter from Mr Jayson Ware dated 4 September 2007 (Exhibit E). In addition, a copy of the report of Dr Ellis dated 19 September 2007 was tendered and admitted into evidence (Exhibit 5) as well as a copy of the report of Ms Jenny Howell dated 21 September 2007 (Exhibit 6).

73 On 24 September 2007, Ms Vivian Fahs, Co-ordinator of the Special Visitation Group with the Department of Corrective Services gave evidence in relation to proposals for the plaintiff to work and reside in the community, should he be released. Ms Fah’s evidence details the provision made for monitoring, liaising with the defendant’s family and particular provision made concerning living arrangements and movements of the defendant in the event that an extended supervision order was made.

74 In relation to the alteration to the proposed supervision plan whereby the defendant would see Ms Howell once a week, rather than twice a week, Ms Fahs stated that she was happy with that arrangement and believed that the defendant was quite motivated in regard to treatment. Ms Fahs added that, nonetheless, she maintained that the best route to follow in terms of treatment was for the defendant to undertake the CUBIT program. In the event that that was not to be, then she considered the plan to be “adequate” adding:-

“What we don’t know is how long, you know, the treatment will go for or what it will actually contain and so forth but that is for Ms Howell.”

75 Ms Fahs, in the course of giving evidence, was cross-examined in relation to the proposed risk management plan. Provision was made for Ms Howell to consult with the Sex Offenders Program on a regular basis. It was put to her in cross-examination:-

“Q. Once again, you are satisfied as to the adequacy of the treatment management program envisaging one treatment with Ms Howell a week to commence with and another consultation with Dr Ellis on a weekly basis? A. I do also believe in that meeting that Dr Ellis said in the short term he could provide some adjunct psychotherapy or something along those lines if there is a shortfall or something required that Ms Howell can’t actually do then between us we could discuss that and, you know, Dr Ellis could pick up the shortfall …”

76 Mr Rendell was recalled to give evidence on 24 September 2007. He was asked as to whether he adhered to the view that he had expressed in May 2007 that the defendant should undertake the CUBIT program. He responded:-

“It was my view and is my view that that would be the optimal, but as I said, I think the last time I appeared here it was as much to assist Mr Cornwall to gain as much from his life in the future as it was – you know, I mean, I think, as I have stated, the plan currently with him being treated by Ms Howell is adequate. It would be optimal but, you know, that is still my view.”

77 He later added in relation to the CUBIT program option:-

“… I do still see it as the preferred option. However, when I assessed Mr Cornwall in April, prior to writing the report I was of the view then that he could have done treatment in the community as well. It just was not my preferred option, that is all …”

78 Mr Rendell added in re-examination in relation to the reasons why he favoured CUBIT:-

“I know that might sound a bit trite, but, yes, he would have a better life and that is part of the theoretical foundations of the model we work with now so, as I said earlier, I think last time, unhappy people commit offences, happy people don’t, so we have finally worked out that if we can give people a full and satisfying contributing life they are less likely to commit offences …”

79 Dr Ellis’ report, Exhibit 5, confirms two fundamental matters:-

• That the defendant’s past behaviour and his self report of fantasy and urges indicates a diagnosis of paraphilia .

personality disorder

80 Dr Ellis’ opinion is, I believe, in conformity with the analyses and opinions expressed by both Dr Allnutt and Dr O’Dea and it is clear from all the evidence of those doctors that the identification of the fundamental nature of the underlying and risk-producing conditions is essential in development and implementation of a plan which has as its components both treatment and risk management elements.

81 It is plain from the medical evidence and, in particular, the history taken from the defendant, that whatever course of treatment or therapy is made available to the defendant, it should have as its primary object the treatment of his personality disorder for the interpersonal/social interaction deficits reported and which have been directly linked to the development of depression, a prominent figure in and preceding past offending.

82 These aspects call and require specialist psychiatric treatment with supporting psychological therapy. That treatment should have been devised and provided during the period of the defendant’s incarceration but has not been. The need for such treatment is, of course, of significance in determining what order should be made under the Act.

83 Appropriate treatment of this kind would involve the administration of an antidepressant medication. Dr Ellis has reported that the defendant has recently been placed upon an antidepressant medication, sertraline (50 mg) but that it is too early to assess what impact or affect such medication is likely to have upon the defendant.

84 The balance of medical opinion suggests that, in addition, the defendant should be placed on anti-libidinal medication, subject to confirmation as to possible side effects. Dr Ellis has stated that he would not commence cyproterone acetate until three months prior to the defendant’s expected release, as the potential side effects from the medication are not generally warranted until a person is in custody and not reporting or behaving in a manner consistent with paraphilia.

85 In addition to the question of psychiatric treatment, other matters to be addressed include:-

(a) The development of the defendant’s job skills by appropriate training.

(b) The question of accommodation options.

86 Whilst the defendant does have the benefit of the support of his two relatives (emotionally, financially and in terms of provision of a job in their business and accommodation) the question remains as to whether or not such support along with the proposed management plan will sufficiently contain the defendant’s assessed risk of re-offending.

87 I observe at this point that the benefit of participation in a job training program is that it would provide the defendant with the opportunity of developing interpersonal relationships which would assist him both in dealing with the personality deficits to which I have referred and also to prepare him to take his place in society. There is, in other words, a limit to the benefits that can be produced by treating doctors and therapists and it seems there is a need to supplement such specialist support with appropriate job skill training and employment opportunities.

88 In the course of his evidence, Dr Ellis explained that anti-depressant medication can be used for a variety of psychiatric disorders and that “… they have a positive effect in a number of domains of personality functions, so that is a secondary consideration in prescribing this particular medication in Mr Cornwall’s case”.

89 In this evidence in chief, he was asked:-

“Q. Now, with relation to that medication, you do not consider there has been sufficient time to assess Mr Cornwall’s response to the medication? A. No. He hasn’t been on it long enough yet for me to make a comment as to whether this particular medication will be effective in his particular case.”

90 Dr Ellis confirmed that Mr Cornwall had indicated that he would fully co-operate with the proposed treatment arrangements.

91 He stated that the defendant had not expressed any negative attitudes towards treatment or supervision. He was then asked:-

“Q. You considered that there was no requirement that he be hospitalised or detained in custody to participate further in treatment or assess further progress? A. That’s correct.”

92 This question was put in relation to observations made by Dr Ellis in his report of 19 September 2007 wherein, at pp.5-6, he stated:-

“He indicates that he will co-operate fully with the proposed treatment arrangements. He is not expressing any negative attitudes to treatment or supervision. While he reports no current paraphilic fantasy or abnormal sex drive, this is not uncommon in a prison setting. There is no requirement that he be hospitalised or detained in custody to participate further in treatment, or assess further progress. Any assessment of progress would be enhanced by his response to treatment in a community environment when this becomes available to him.”

93 In terms of proposed future treatment, Dr Ellis added in his report:-

“Should Mr Cornwall be remanded to further custody, treatment by myself will continue if he is continued to be housed in Long Bay. The Community Forensic Mental Health Service provides psychiatric treatment to prisoners housed in the Long Bay MSP area. He would be referred to the relevant Justice Health Clinic psychiatrist if he were removed to another prison. I would not commence cyproterone acetate until three months prior to his expected release, as the potential side effects from this medication are not generally warranted while a person is in custody and not reporting or behaving in a manner consistent with paraphilia. His response to sertraline would be assessed on an ongoing basis.”

94 Dr Ellis then went on to deal with the position if the defendant was released to custody under an extended supervision order. In that case, he considered the proposed risk management plan would be delivered by the Community Forensic Mental Health Service with himself as delegated Forensic Psychiatrist. He added “medication would be adjusted according to clinical response and need …”.

95 Dr Ellis was also asked about the “multi-disciplinary” approach involving Forensic Psychological Services and Ms Howell and was asked:-

“Q. You consider all these arrangements to be appropriate and adequate for the proper management of Mr Cornwall’s risk, should he be released into the community? A. Yes. I think this is an appropriate treatment regime for him, yes.”

96 He went on to explain the reason for having prescribed anti-depressant medication for the defendant in these terms:-

“… anti-depressant medications have a spectrum of effects, and one of those spectra is on sexual thoughts and sexual drive; another is on facets of anxiety and personality function, which is the clinical indication for which I have prescribed it in this circumstance. I note that he has had a history of major depression in the past. Some people might say that it would be indicative to prescribe an anti-depressant to prevent a relapse of a depressive order, but I haven’t done that in this case.”

97 He was then asked:-

“Q. Just following on from a number of questions the judge asked. Would a by-product of taking the sertraline counteract any relapse into depression? A. It is difficult to say whether it would. It may do. There is limited scientific data to say – and people who have had a depressive episode many years ago, whether taking an anti-depressant 10, 15 years down the track, might prevent a further relapse, it may do – but I think that would be better at identifying and preventing a relapse is regular review by psychiatrists, psychologists …”

98 Dr Ellis stated that it was his objective to establish the defendant on the medication first “… so I can assess its contribution and then add that in” (referring to anti-libidinal medication). He stated that he may prescribe cyproterone acetate in conjunction with anti-depressant medication. Depending on clinical progress, he might spread out his proposed weekly consultations.

99 Dr Ellis was also asked:-

“Q. And how long will it take you, do you think, to assess whether sertraline is doing its job? A. I would expect about six weeks.”

100 He stated that if released, he would maintain him on sertraline if he was showing “a positive response to it”. He added that if he were to be detained in custody for a period of time, then he would not start the anti-libidinal medication “… until I have a clearer idea about his release date, because it has got more significant health risk side effects than sertraline does …”. He added that prescribing anti-libidinal medication in the custodial environment was done on occasions but “… for Mr Cornwall’s particular clinical picture, it would not be indicated in a custodial situation”.

101 Dr Ellis added that the psychiatric medication is an important part of management “… to reduce his sex drive and sexual thoughts and pre-occupations. I think that also psychological work goes hand in hand with that. They are not mutually – they are complimentary treatments …”.

102 Dr Ellis also emphasised that from a therapeutic point of view, the defendant’s participation in vocational work:-

“… is very important because, for a number of reasons, for example, it has been pointed out that self-esteem is an important psychological issue, that can be worked on, not only in therapy but also in making sure that Mr Cornwall participates as fully as possible, given his circumstances in a social and vocational life, so he has contact with his family, has meaningful work provided so that he can contribute. The supervision aspects I’m less qualified to speak on. I think they are probably a matter for the Probation Service.”

103 Dr Ellis also emphasised that in Mr Cornwall’s case, psychotherapy would be addressing “core issues of personality” by which description he included the defendant’s self-perception, his “relatedness” to others, his ability to regulate and monitor his mood states and emotional states. He added that medication “may assist in that process, by assisting his ability to concentrate and to regulate his mood, so that medication and psychotherapy can synergistically interact in that manner …”.

104 Additionally, his placement, whether in or out of custody, in meaningful work where he can learn skills and contribute would be “a useful thing in his rehabilitation”.

105 Dr Ellis also addressed the potential benefits for the defendant in undertaking the CUBIT program in custody. He considered that there would be some benefits for Mr Cornwall in a group situation in which he would develop inter-personal skills, learning how to be in a group social situation with others “… which has been an element of his personality that has been difficult”. He added:-

“… I guess that personality function generally, in psychological and psychiatric literature, takes longer than eight months to show benefit. Given that personality takes years and years to develop, changing it in eight months is less likely. Changing more overt behaviours, such as sexual offending, might be a treatment goal that is more amenable to an eight-month period. So the benefit to Mr Cornwall, from doing a programme such as CUBIT, would be to establish him in a therapeutic relationship: learning how to talk with professionals, talk with peers, and to begin to develop skills for further therapy on his personality and to develop strategies to deal with more overt behaviours, stemming from multiple areas. Ideally, he would also be able to continue to see me while he is at CUBIT … They would be the positive aspects of attending a programme such as CUBIT.”

106 Dr Ellis addressed the advantages of individual treatment, as opposed to group therapy and identified the former as having particular advantages, it often, in a therapeutic relationship, being easier to deal with more intense emotional issues and to develop inter-personal skills in an environment with less pressure. Additionally, being in a community, he described as being a “more normalising” experience. Accordingly, he identified a balance of benefits and negatives to both individual and group therapy, but frankly conceding that he was unable to state with confidence which one would be better, adding that he was not as confident as Mr Rendell in stating that CUBIT would be better. A similar “package of treatments” can be offered in either situation, advantages and disadvantages in relation to both.

107 In re-examination, it was put to Dr Ellis:-

Q. Dr Ellis, you are aware, particularly after the conference with the relevant experts last week, that all the experts involved in this matter, psychologists and psychiatrists who have assessed Mr Cornwall, all agree that he could be released to this management plan that has been constructed with the assistance of all the relevant parties, such that his risk of re-offending a serious sex offence can be adequately managed, is that right? A. Yes, that’s correct.

Q. And that involves the various considerations of all of his past and character problems? A. Yes.

Q. Including his difficulties, as far as developing inter-personal relationships? A. Yes, that’s correct.

Q. And that’s as you have so eruditely highlighted one of the matters that should be addressed in psychotherapy? A. (witness nodded)

Q. But whichever way, he should be treated? A. Yes. That’s a core element of his psychotherapy.”

108 It was confirmed that he had experience in treating sex offenders who have been released into the community and it was then put to him:-

“Q. … and given that background, you are still confident, as much as one can be that – particularly with all the views of the expert – that this Risk Management Plan is appropriate to adequately deal with his risk? A. Yes, that’s my view.”

109 He confirmed that motivation was important and that the defendant had indicated that he was motivated to engage in treatment and that Mr Cornwall had the benefit of family support which increased one’s confidence that the risk management plan could be implemented successfully.

110 Finally Dr Ellis observed that the assessment of progress is more accurate once a person has been released to the community and that the proposed risk management plan gave him “a graded release, in a sense, in that he would be going to Corrective Services custody with considerable monitoring”.

111 Ms Howell stated that she was aware of the proposed risk management plan, that the defendant had been co-operative with her and he was supportive of being released pursuant to an extended supervision order. She had also met with the defendant’s brother and sister-in-law and they were very supportive. She confirmed that she would be able to work on a consultative basis with him and in conjunction with Dr Ellis. She proposed that she would see him once a week and she understood Dr Ellis would also him once a week:-

“Q. And do you see the combination of those two consultations on a weekly basis being adequate for the appropriate management of his risk in the immediate future? A. Yes, I do.

Q. And, of course, the Risk Management Plan has a system of reviews built in that will only take place after consultation between all those responsible for his treatment, and otherwise supervision, by – on behalf of Probation and Parole? A. Yes.”

112 The evidence of the defendant’s [relative], was that she and her husband operated a doughnut manufacturing outlet. The proposal was the defendant would work in that business, starting at approximately 4.00 am until he would leave the premises shortly before 9.00 am. His brother would be on the premises assisting the defendant. She confirmed there was a school nearby but that this work arrangement would mean that he would have left the premises before school hours.

113 [The relative] stated that she also operated a leaflet distribution business at other premises and some of that work was also done from her home. There was a pre-school next to her home but not near the premises where the leaflet business was primarily conducted. She stated the majority of the work with the leaflets was done on weekends and the plan was to have the defendant assisting her in that business on weekends when the pre-school was not operating. The plan was in relation to the leaflet business that the defendant would be in the company of his brother and they both would continue to provide constant support for him.

114 [The relative] also confirmed that she was prepared to contribute the amount of $150 for the cost of weekly consultations with Ms Howell. She confirmed that she would communicate with the various specialists overseeing the management program and that she had spoken to Ms Fahs. She had no difficulty in maintaining communication with the Probation and Parole Service and Dr Ellis.

115 [The relative] stated in cross-examination that she and her husband had not determined a pay rate to apply to the defendant’s work “… because we really don’t know what hours until we get him and we know what hours he is doing. He will be paid the appropriate pay rate for those hours he works”.

Analysis

116 In applying the provisions of the Crimes (Serious Sex Offenders) Act to the evidence, the provisions of s.17(2), (3) and (4) are critical. Accordingly, the construction, in particular, of the provisions of s.17(3) is fundamental to the application of the Act to the present case.

117 The present application is to be determined in the light of the defendant’s past serious sex offending, relevant events that occurred during the course of the 14 years he has spent in prison, the evidence of psychologists who have assessed him and who have given evidence in relation to the CUBIT program, the evidence of the psychiatrists, the evidence of officers of the Corrective Services Department and of [a relative].

118 Recently, in Winters (supra), McClellan CJ at CL addressed specific issues arising, inter alia, in relation to the interpretation of the provisions of s.17(3) of the Act.

119 The Chief Judge adverted to the proper construction of the test provided by s.17(2) and (3) as having been addressed on previous occasions, in particular, by himself in Gallagher (supra) and of Bell J in Tillman (supra).

120 Following a very detailed examination, the Chief Judge stated (at [50]) in relation to the test under s.17(3):-

“… As the authorities show, the meaning of the word ‘likely’ can vary significantly depending on its context. However, having regard to the purpose and effect of the legislation, notwithstanding my tentative view in Gallagher , in my judgment, in the Act, ‘likely’ means ‘more likely than not’ and it is that test which must be applied in s.9 and s.17. For relevant purposes, the Court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence. It follows that the defendant’s argument that the chance of re-offending must be significantly higher than 50% must also be rejected.”

121 I, with respect, concur with this interpretation and apply it for the purposes of determining the present application.

122 The proposed management plan (Exhibit 2) is central to the resolution of the question as to whether the application should be determined by the making of an extended supervision order or by the making of a continuing detention order. A copy of Exhibit 2 is annexed to this judgment.

123 Mr Dalton, on behalf of the defendant, has submitted that the evidence, in particular, that of Dr Ellis, Ms Howell and of Mr Rendell supports the proposition that the proposed management plan provides an adequate plan for the management of the defendant under an extended supervision order and that such an order should be made under s.17(1) of the Act. I will return to this important issue below.

124 I observe, at this point, that I have been greatly assisted on this latter question by the evidence of Dr Allnutt, Dr O’Dea, Dr Ellis, Dr Nielssen, Ms Howell and Mr Rendell.

125 I have earlier referred to the remarks on sentence pertaining to the defendant. He has been provided with various short courses directed towards his rehabilitation, details of which are set out above. Regrettably, however, the requirement for medical treatment to deal with his underlying personality disorders stressed and emphasised by the sentencing judge has not been met. Indeed, it was not until the Court by order made under s.15(4) in the present proceedings, that the defendant’s condition has been reviewed by a qualified medical practitioner specialising in the field of psychiatry. All psychiatrists, as earlier noted, provided a detailed diagnosis of the nature of the defendant’s psychiatric condition and the underlying factors that give rise to it. Those factors, as the sentencing judge indicated, required to be appropriately addressed over time. As Dr Ellis stated in the course of his oral evidence, ingrained personality factors often take a considerable period of time to alter or change. It is highly regrettable that the defendant has not had, over the 14 year period that he has spent in prison, the opportunity of being treated by a consultant psychiatrist for the purposes of making a full diagnosis and a determination as to the individualised treatment necessary for his long-term rehabilitation. That is a matter that has some relevance in determining the defendant’s present condition and the question of timing in relating to his future prospects of rehabilitation with the assistance of Dr Ellis and Ms Howell.

126 In the evaluation of questions of risk of serious sex offending, it is, in my opinion, essential to have regard to the underlying personality factors that have given rise to the personality disorder and what need to be done to address them. These are discussed by Dr Allnutt as well as Dr Ellis and have been described as “avoidant and anti-social typologies in his personality”.

127 The history of past offending, as indicated above, established that prior to a certain of the defendant’s more serious offences, he suffered depression, in particular, feelings of personal despondency, a dysphoric mood and social isolation. He withdrew and led a reclusive existence before committing the serious sex offences. In the context of assessing future risk, it is worth repeating, in this respect, that Dr Allnutt stated (at p.13):-

“I do not believe, at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner, although he does appreciate that sexual offending is an inappropriate way of dealing with it.”

128 Dr Allnutt earlier stated:-

“He presented as an individual who had a limited repertoire of coping when it came to dealing with stress. Much of his offending appeared to have occurred in the context of a dysphoric mood, feelings of personal despondency and social isolation; of concern, his offending behaviour appears to have been an attempt to deal with these feelings …”

129 Dr Allnutt’s opinion was that the defendant manifested evidence of a personality disorder “… with anti-social, avoidant and possibly schizoid traits …”.

130 The evidence indicates that, whilst the defendant has not, in custody, displayed any abnormal sexual conduct, the general community environment provides a different environment to prison that can stimulate such conduct.

131 I have earlier adverted to Dr Allnutt’s observation that the defendant has a limited repertoire of coping with stress and that he has not had treatment for the factors that have established his personality disorder. Dr Nielssen, in his report of 26 July 2007 (Exhibit 1) stated:-

“Mr Cornwall was assessed to carry a high risk of further sexual offences on the basis of the effects of an underlying disorder of abnormal sexual interest, which includes exhibitionism, a history of convictions for offences other than those of a sexual nature and the history of repeated coercive sex offences over a period of three years. It has been recommended that he remain in custody to complete the CUBIT program.”

132 Later in that report, Dr Nielssen stated that the defendant’s past behaviour and history of abnormal sexual interest placed him in a group of offenders described as having a high risk of re-offending. He stated that about a third of that group committed an offence within five years and about half committed another offence by 15 years after release. He recorded that the defendant maintained that he had no intention of re-offending and he stated that he wanted treatment to help prevent him from doing so.

133 Dr Nielssen also observed that he considered that an appropriate community treatment plan implemented as a condition of a supervision order would reduce his risk of offending to an acceptable level “bearing in mind that the prediction of behaviour is an inexact science”.

134 The question as to whether or not the plaintiff has established the second limb of s.17(3) is, as already indicated, fundamental to the determination required to be made. In doing so, of course, the Court is required to have regard to the matters set forth in s.17(4) (which includes “(a) the safety of the community”) and to any other matter that the Court considers relevant.

135 I have had particular regard in relation to the issues concerning the second limb of s.17(3) both to the terms of the proposed risk management plan (Exhibit 2) and to the evidence given, in particular, by Dr Ellis, Mr Rendell and Ms Howell in relation to the adequacy of that proposed plan.

136 The terms of the proposed extended supervision order as set out in Exhibit 2 contain separate provisions dealing with the following subject matters:-

(a) Monitoring, communication and accessing information in relation to the defendant’s progress under an extended supervision order.

(b) Provisions concerning proposed treatment of the defendant.

137 Although the provisions of s.17(3) do not employ the terms “risk” or “risk management”, plainly the section is directed towards an assessment being made by the Court as to the risk of an offender committing a further serious sex offence in terms, as McClellan CJ at CL in Winters (supra) stated, namely, whether it is more likely than not that an offender would commit such a further offence. In determining what constitutes “adequate supervision” under a proposed extended supervision order, the Court is required to have regard to the nature of the supervision and of the controls and restrictions that would operate under it in order to determine its adequacy to meet the risk referred to in the first limb of s.17(3).

138 In Attorney-General for the State of New South Wales vQuinn [2007] NSWSC 456 at [30], I referred to the ordinary meaning of the word “adequate” as including “commensurate in fitness, sufficient, satisfactory”: Shorter Oxford English Dictionary, Fifth Edition.

139 It is clear that the terms of an extended supervision order must be such as to provide supervision that is “commensurate in fitness, sufficient or satisfactory”, to the assessed risk in terms of the first limb of s.17(3). In this respect, “adequate supervision” would, in my opinion, require such “supervision” as will be adequate, in the above sense, to reduce the risk of the defendant committing a further serious sex offence so that, by reason of such supervision, it is less likely than not that he will re-offend in that regard.

140 Accordingly, s.17(3) in the present proceedings requires close attention be given to the proposed risk management plan and to the opinions that have been expressed by the expert witnesses to whom I have already referred.

141 The subject of risk management is, of course, one that operates in a large number of areas of human activity. The risk in many situations (eg, industrial environments) is the risk of careless or inadvertent or negligent conduct that can give rise to or cause damage or harm.

142 In the context of the Act, the risk is a risk of an offender wilfully or deliberately engaging in activities that would constitute a “serious sex offence”. The proposed management plan in Exhibit 2, when analysed, can be said to provide three levels of defence in the nature of what might be termed as “defence barriers”, namely:-

The first defence barrier

• Supervision by the Probation and Parole Service.

• Communication with officers of that Service and other relevant personnel.

• Monitoring of the defendant’s activities and conduct.

(b) The second defence barrier

• Restrictions as to accommodation.

• Restriction upon specific activities and movement.

(c) The third defence barrier

• Specialist medical (psychiatric) treatment (including the administration of anti-depressant medication and potentially at a future point in time, anti-libidinal medication).

• Psychological counselling, treatment and support.

143 It is evidence that each of the controls to be provided by the proposed Risk Management Plan is crucial. Given that, if released, the defendant would be working for limited hours early in the morning of each day, there would be many hours in which he is otherwise not specifically engaged in programmed work. The control to be provided by medical treatment, in particular, medication (what I have termed the “third defence barrier”), I consider, in the light of the evidence concerning the nature of the defendant’s disorders and the factors underlying them, to be fundamental to the other proposed controls. In the event that prescribed medication is trialled and is established as producing beneficial effects in line with the evidence of Dr Ellis (including, in particular, the suppression of sexual drive), then the level of risk to the community wouldl, of course, be commensurately reduced. Similarly, treatment by way of psychiatric and psychological counselling directed to enhancing what Dr Allnutt has described as the defendant’s “limited repertoire of coping when it came to dealing with stress”, in conjunction with the medical treatment, hopefully will also operate to reduce the risk or likelihood of re-offending by increasing the defendant’s insight, capacity and coping skills.

144 Accordingly the objective is that a combination of psychiatric and psychological treatment and support will, at some point, result in self-regulated control, given, particularly, Dr Allnutt’s statement that as at the time of his examination on 12 July 2007, his opinion was that he did not believe “… at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner …”. The significance of his dysphoric moods to past offending has been discussed above.

145 The evidence, in my opinion, plainly establishes that, in the event that Dr Ellis and Ms Howell at a future point in time are in a position to have monitored and assessed the effect on the defendant of both medical (psychiatric) and psychological treatment as having adequately addressed the factors subjacent to the defendant’s personality disorder, then the treatment regime, together with what I have referred to as the first and second lines or barriers of defence, may well be seen to be adequate to bring the risk or likelihood of re-offending down to a level that would enable supervision under an extended supervision order to be considered “adequate supervision”.

146 The position that presently operates, on the evidence, is that, whilst treatment by medication is, as I have earlier stated, fundamental to the proposed plan, it has not, by reason of a series of circumstances, been trialled for a sufficiently long period of time to enable Dr Ellis to determine what effect it will have upon the defendant, and whether there is a need for an adjustment or change in medical treatment. Similarly, Ms Howell has only recently commenced treatment and has not as yet had the opportunity of developing treatment to a level whereby she is in a position to assess the nature and extent of any beneficial effects which she considers likely to result form such treatment.

147 In written and oral submissions, it was contended on behalf of the defendant that, in all the circumstances, adequate supervision is available upon the release of the defendant. In his written submissions, Mr Dalton SC, for the defendant, addressed the issues concerning the management of the defendant’s level of risk (paragraphs 22 to 25). He submitted that “adequate supervision” should be interpreted as adequate available supervision to reduce the risk below a high degree of probability of likelihood to re-offend. I have earlier indicated that adequate supervision, in my opinion, must be such that in the case of a high risk serious sex offender, an extended supervision order is required to be such that it would no longer be “likely” (as interpreted by McClellan CJ at CL in Winters (supra)) that the defendant would commit a further serious sex offence. Mr Dalton relied upon the evidence of Dr Allnutt, Dr O’Dea and Mr Rendell as well as Dr Ellis in contending that “the overwhelming balance of the evidence is that the proposed management plan for a period of five years is adequate to appropriately manage his level of risk in the context of s.17(3) …” (paragraph 22(a) of the defendant’s written submission).

148 Mr Dalton also emphasised the support, which the defendant’s family would provide and the fact that the defendant had no history of breach of parole orders or extended supervision orders.

149 Whilst Dr Ellis, Mr Rendell and Ms Howell have given evidence, as set out earlier in this judgment (see paragraphs [91], [92], [95] and [111]) that they consider the proposed plan to be adequate to manage the defendant in the community, it would be wrong to treat the answers they gave as to the adequacy of the proposed program divorced or separated from their underlying analyses and diagnoses made of paraphilia and personality disorder, or of the need for specific medical and psychological treatment to be implemented and taken to a stage that will provide the defendant with the necessary capacity and coping skills. The evidence is that it will take some time before the effects of the medication are capable of being assessed and reviewed and, as necessary, modified or adjusted to produce the necessary outcome of reducing the assessed likelihood of the defendant committing a further serious sex offence.

150 Dr Ellis’ evidence was to the effect that he has not yet been able to make such an assessment and, as stated above, Ms Howell has only recently embarked upon a treatment program. It will require time for her to exercise her professional expertise in order to develop those matters considered necessary for the defendant to develop the required self-regulation.

151 The difficult matter of risk prediction, emphasised by the expert witnesses, is one that requires an assessment of all the evidence, taking into account the practical operation of an extended supervision order having regard to the particular offender. That practical approach must require some regard to the fact that, although the defendant has not displayed sexually deviant behaviour whilst in prison, the more stimulating environment of the general community for the defendant, who presently lacks the capacity for self-regulation, if released, is a factor to be brought into account in the assessment to be made under s.17(3).

152 Mr Dalton referred to the fact that Mr Arnott did not put to the experts that they were incorrect in the specific opinions they expressed as to the adequacy of the proposed plan. It is to be remembered that, in this Court, determining an application under the Act, it is required to examine all the evidence (including the opinions expressed by the expert witnesses to which I have specifically referred above). Ultimately, it is for the Court to determine what evidence it ought to accept. A trial judge is not bound to accept expert opinion evidence, particularly where it is evidence on an ultimate issue: Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at [89] per Heydon JA, as his Honour then was.

153 In the course of his submissions, Mr Dalton adverted to the judgment of McClellan CJ at CL in Winters (supra). The Chief Judge, in that case, referred to the evidence, in particular, of Mr Rendell and expressed confidence in the proposed management plan. His Honour also referred (paragraph 143) to the strict conditions proposed including conditions for monitoring, counselling and the “continuing administration of anti-libidinal medication will, based on past experience, significantly reduce his sex drive. Of course, his continuing ability to accept this form of medication remains uncertain”.

154 In the judgment (at 144), McClellan CJ at CL also observed:-

“But for two matters, I would have been satisfied that adequate supervision could be provided by an extended supervision order. In the words of the statute, the consequence of the two problems is that I cannot be satisfied that adequate supervision could be provided by an extended supervision order.”

155 It is important to note that his Honour’s observations are to be construed in light of the evidence adduced in Winters. The Chief Judge recorded (paragraph 51) that, whereas on occasions the defendant in that case had exhibited behaviour consistent with a continuing tendency to commit sexual offences, “… he was, for a time, administered anti-libidinal medication during which there were no reports of unsatisfactory conduct. He chose not to continue with the medication because of side effects …”.

156 Accordingly, in Winters, there had been a trial of anti-libidinal medication from which it was possible to assess that the defendant’s tendency in that case to commit sexual offences had been attenuated. In the present case, there has, of course, been no trialling of either anti-depressant or anti-libidinal medication. Whether they are suitable medications for the defendant remains to be seen. It is, of course, hoped that they will be suitable and that other treatment over time will enhance the defendant’s capacity.

Determining the duration of a continuing detention order

157 The maximum period of a continuing detention order is five years: s.18(1)(b ). In determining in a particular case the appropriate period for such an order, the Court, in my opinion, should seek to identify those facts or matters that should guide its determination.

158 In the present case, the defendant will, at least in the short term, require both medical and psychological treatment and potentially may benefit from participation in the CUBIT program which he has stated to Dr Ellis he is prepared to do. That program can take approximately eight months to complete. I take those matters into account in determining the period which I consider to be appropriate for the continuing detention order which I propose to make. The question of the need for ongoing treatment and support beyond the release date will obviously be a matter for future determination.

159 On 27 September 2007, I made the following orders:-

1 Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Raymond Barry Cornwall is to be detained in a correctional centre for a period of eight months from the date of this order (27 September 2007).

2. Pursuant to s.20(1) of that Act, I issue a warrant for the committal of Raymond Barry Cornwall to a correctional centre for the duration of the continuing detention order referred to in order [1] above.

ANNEXURE A – EXHIBIT 2

“….

THE RISK MANAGEMENT PLAN PROPOSED ON BEHALF OF THE DEFENDANT SHOULD THE COURT MAKE AN EXTENDED SUPERVISION ORDER

“The terms of the proposed extended supervision order are as follow (sic):-

1. That Vivian Fahs of the Department of Corrective Services will provide oversight of the entire management plan in consultation with The Community Forensic Mental Health Service (CFMHS) under is delegate Doctor Ellis regarding Mr Cornwall’s psychiatric treatment. Further regarding monitoring of Mr Cornwall:-

(a) Vivian Fahs and the responsible probation and parole officers under her supervision will have access to all relevant information regarding Mr Cornwall’s progress

(b) All agencies/parties involved in Mr Cornwall’s supervision order are to communicate any significant concerns regarding risk to Viviane (sic) Fahs and/or the responsible probation and parole officers immediately

(c) Otherwise regarding monitoring:

(i) Mr Cornwall is required to report personally once a week to the responsible probation and parole officer;

(ii) Whoever is overseeing Mr Cornwall’s living arrangements …, or if applicable the person overseeing the furnished accommodation arranged by the Department of Corrective Services (The Department) as suggested in paragraph 2), to contact by phone once a week and personally once a month the relevant probation and parole officer (the frequency of this contact can be varied at the direction of Viviane (sic) Fahs and/or the responsible probation and parole officer under her direction);

(iii) Similarly Mr Cornwall’s employers … contact Viviane (sic) Fahs and/or the relevant probation and parole officer in accordance with (ii) above;

(iv) The appointed psychologist and psychiatrist report to Viviane (sic) Fahs and/or the relevant probation and parole officer form time to time as they consider appropriate and be available for case management issues when required – Mr Cornwall is required to waive his rights of confidentiality in this regard;

(v) The officer in charge of monitoring Mr Cornwall’s movements contact Viviane (sic) Fahs and/or the relevant probation and parole officer once a week;

(vi) There is to be a six monthly meeting with all agencies/parties including Mr Cornwall, … in attendance if required by Viviane (sic) Fahs and/or the relevant probation and parole officer, at which point the Risk Management Plan should be reviewed and adjusted commensurate with the risk as it is determined by all the paries (sic) at that point.

2.

Accommodation

(i) First option: …

(ii) Second option: …

(iii) Third option: accommodation at a furnished residence not known to the media, provided by the Commissioner of Corrective Services:

3.

Treatment

(i) Mr Campbell (sic) is to accept psychiatric treatment, including anti-libidinal and anti-depressant medication as indicated; such treatment to be to be (sic) administered by the CFMHS, its current delegate being Dr Andrew Ellis.

(ii) Mr Cornwall should agree to regular medical consultations investigations and blood test as directed by the CFMHS.

(iii) Mr Campbell (sic) is to agree to a frequency of consultation as directed by CFMHS, at a venue and time specified by the CFMHS.

(iv) Mr Campbell (sic) is to accept psychological treatment with Jenny Howell (or a substitute psychologist if she is away) of a frequency and of a nature deemed appropriate by Jenny Howell, immediately upon release.

4. Further restrictions as required by the Department of Corrective Services:

(i) Should Mr Cornwall wish to move accommodation then to reside in accommodation approved by the Department of Corrective Services.

(ii) Accept the guidance and supervision of the Special Visitation Group for as long as necessary as determined by the Probation and Parole Service.

(iii) Not to be in contact with children less than 18 years approved and supervised by the Special Visitation Group (except family functions when he must be supervised by [a relative] at all times):

(iv) Not to use any alcohol or drugs and agree to be subject to drug and alcohol testing.

(v) To have drug and alcohol counselling and treatment if indicated.

(vi) Not to change appearance unless approved by the Department of Corrective Services.

(vii) Agree to be photographed by the Special Visitation Group.”

**********

17/12/2007 - The requirements of the administration of justice that all identifying information be removed from the judgment. - Paragraph(s) 6, 86, 112, 113, 114, 115, Annexure A

Citations

Attorney General for the State of New South Wales v Cornwall [2007] NSWSC 1082

Most Recent Citation

Cases Citing This Decision

7

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

State of New South Wales v Cornwall (Final) [2023] NSWSC 548

State of New South Wales v Cornwall (Preliminary) [2023] NSWSC 278

Cases Cited

5

Statutory Material Cited

3

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] NSWSC 528

Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071

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CITATION:	ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v CORNWALL [2007] NSWSC 1082 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23, 24, 27, 28 August 2007; 24, 26, 27 September 2007
JUDGMENT DATE :	28 September 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	1. Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Raymond Barry Cornwall is to be detained in a correctional centre for a period of eight months from the date of this order (27 September 2007). 2. Pursuant to s.20(1) of that Act, I issue a warrant for the committal of Raymond Barry Cornwall to a correctional centre for the duration of the continuing detention order referred to in order [1] above.
CATCHWORDS:	Serious sex offender – Crimes (Serious Sex Offenders) Act 2006 (NSW) – application for extended supervision order or continuing detention order – Custody Based Intensive Treatment program not completed by offender – Legislative scheme – the construction of s.17(3) and the nature of the test under that provision – meaning of the word “likely” – standard of proof – high degree of probability – whether offender likely to commit a further serious sex offence – whether adequate supervision would be provided by an extended supervision order – Psychiatric and psychological assessment of offender – whether possible to predict risk of re-offending – actuarial assessment – dynamic risk factors – whether proposed risk management plan adequate – defence barriers
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900 Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Orders) 2004
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] NSWSC 528 Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071. Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
PARTIES:	ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v. Raymond Barry CORNWALL
FILE NUMBER(S):	SC No 13126 of 2007
COUNSEL:	P: D Arnott SC/A Mitchelmore D: D Dalton SC
SOLICITORS:	P: I V Knight D: S E O'Connor