Attorney General for the State of New South Wales v Gallagher

[2006] NSWSC 340

CITATION:	Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
HEARING DATE(S):	12-13 April 2006
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	04/13/2006
DECISION:	1. Make orders 1 and 2 in the summons: (1) an order pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006 that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 16 April 2006 (2) An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in paragraph (1) above; 2. Orders be entered forthwith
CATCHWORDS:	APPLICATION - continuous detention order - extended supervision order - sex offender - interim detention or interim supervision order - legislative purpose - protection and rehabilitation - alteration of standard of proof - meaning of "likely' - whether the defendant requires supervision - whether a stay should be granted - procedural fairness - psychologists' evidence - actuarial risk assessments - sexual recidivism risk - participation in treatment programs - whether electronic monitoring available - whether adequate supervision available
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Child Protection (Offenders Registration) Act 2000 (NSW)
CASES CITED:	Attorney-General v Nash (2003) 143 A Crim R 312 Attorney-General v Watego (2003) 142 A Crim R 537 Attorney-General v Watego [2003] QSC 367 Boughy v The Queen (1986) 161 CLR Dowling v Dalgety Australia Limited (1992) 34 FCR 109 Fardon v Attorney General (Qld) (2004) 210 ALR 50 R v SLD (2003) 58 NSWLR 589 Teremoana (1990) 49 A Crim R 207
PARTIES:	Attorney-General for NSW (Pltf) William John Gallagher (Def)
FILE NUMBER(S):	SC 11638/06
COUNSEL:	R CogswellSC/N L Sharp (Pltf) A Haesler SC/R Burgess (Def)
SOLICITORS:	I V Knight, Crown Solicitor (Pltf) Legal Aid Commission of NSW (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 13 APRIL 2006

11638/06 ATTORNEY-GENERAL FOR NEW SOUTH WALES v GALLAGHER

JUDGMENT

1 HIS HONOUR: On 7 April 2006 the Attorney General for NSW brought an application under the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) by summons seeking a “continuing detention order” or alternatively an “extended supervision order” with respect to the defendant. The Act was enacted by Parliament on Thursday, 30 March 2006 and received assent on Monday, 3 April 2006. Pursuant to s 2, the Act commenced on the day it received the assent.

2 The defendant is a “sex offender” as that term is defined in s 4 of the Act. He is presently imprisoned at the John Moroney Correctional Centre. His head sentence expires next Sunday, 16 April 2006, and he is due to be released from custody on that day.

3 Mindful of this fact the Attorney General seeks an Interim Detention Order for a period of 28 days pursuant to s 16 of the Act, or alternatively an interim supervision order for the same period pursuant to s 8 of the Act.

4 The summons was originally returnable before Johnson J who directed that the application for interim orders be heard on an urgent basis and set that part of the summons for hearing before me on Wednesday, 12 April 2006.

5 The application is supported by evidence provided in a number of affidavits including affidavit of David Bright affirmed on 7 April 2006, the affidavit of Anne Young affirmed on 7 April 2006, the affidavit of Christopher Lennings affirmed on 7 April 2006, the affidavit of George Marie affirmed on 7 April 2006, the affidavit of Clare Miller affirmed on 7 April 2006, the affidavit of Helen Haywood affirmed on 10 April 2006, the affidavit of Denise Constantinou affirmed on 11 April 2006; and in addition volume 1 of the tender bundle, which has been marked as an exhibit in these proceedings, containing evidence of the defendant’s antecedents and criminal history.

6 For the purpose of the legislation this material is the “supporting documentation” referred to in relevant sections. In addition, oral evidence was given by George Marie in relation to the nature and effectiveness of electronic monitoring devices.

7 Following the hearing yesterday I have been provided with a further affidavit of Kenneth Mike Middlebrook. That affidavit relates to the potential for the use of a GPS tracking system in the monitoring of sex offenders. I shall return to that affidavit in due course.

Factual matters

8 I have carefully considered the affidavit evidence which, by reason of the structure of the legislation, was not challenged at this stage of the proceedings. The Attorney-General has made detailed submissions in relation to that material which have been of considerable assistance. For the purpose of this application I generally accept that submission. I make plain that in no way should I be understood as indicating the position which I determine today would necessarily be the position that I would determine in relation to any matter on the final hearing of this matter.

9 The defendant is currently serving a sentence for aggravated indecent assault of a victim under 16 years of age. The circumstances of the offence were that the offender met a 13 year old boy at an amusement arcade, encouraged the boy to travel with him to Neutral Bay and then, unknown to the boy, followed him when he alighted from the bus. The offender approached the boy from behind and reached around and placed his hand between the boy’s pants and underwear, grabbing his penis.

10 Following a plea of guilty, the defendant was sentenced on 22 October 2004. That sentence is due to expire on 16 April 2006. A non-parole period was set which expired on 16 April 2005. However, the defendant was not released on parole.

11 The defendant was born on 23 June 1944 and is presently 62 years old. He has spent a good deal of his adult life in gaol and has a lengthy history of sexual offences against boys aged 11 to 14 dating back to 1973. He has been convicted of sexual offences against at least 10 boys. I have set out his conviction and sentences in a table which I gratefully adopted from the Crown’s submissions.

Date of Conviction	Details of Sentence
13 November 1973	Convicted in Sydney District Court for Indecent Assault, Male. This offence related to a 12 year old boy. He was sentenced to 18 months, with a non-parole period of 6 months.
5 August 1975	Convicted in Liverpool District Court for Buggery (x2), Assault Int. Com. Mit Buggery, Indecent Assault Male. These offences occurred on 13 May 1975, 24 May 1975, and 18 June 1975. He was sentenced to 8 years.
31 July 1981	Convicted in Sydney District Court for Buggery (x3). These offences related to three different male victims aged,13, 14 and 13 years, the offences occurring in September 1980, 12 March 1981 and 29 March 1981 respectively. He was sentenced to 14 years. The trial judge declined to set a parole period. The sentence was confirmed on appeal to the Court of Criminal Appeal on 16 July 1982.
26 May 1994	Convicted in the Downing Centre District Court for offences of aggravated sexual assault (x 2) and indecent assault with aggravation. These offences related to a 13 year old male. He was sentenced to nine years with a non-parole period of four years from 10 October 1993.
30 October 2003	Convicted in Central Local Court for offences of indecent assault male (x 2), indecent assault male (x 5), convicted child sex offender loiter near public place and fail to comply with bail undertaking. He was sentenced to two years with a non-parole period of 15 months to date from 17 July 2003.
22 October 2004	Convicted in Downing Centre District Court for the offence of aggravated indecent assault - victim under 16 years. This offence related to a 13 year old male. He was sentenced to 2 years 3 months with a non-parole period of 15 months to date from 17 January 2004.

12 The defendant also has a number of convictions for matters other than sexual assaults. In order to provide a complete picture of his offending I will set them forth, however in my opinion some of these matters are of no significance in relation to the question which I must determine. However, the offences of escaping from lawful custody and breach of parole conditions in my opinion play a part, albeit a small part, in the decision which I must make.

13 The relevant offences are:

(a) Carry pillion passenger, drive speed dangerous, unlicensed driver for which he was convicted on 4 March 1969;
(b) Assault for which he was convicted on 1 April 1969 and a recognizance was imposed;
(c) An offence of goods in custody for which he received a 20 day term of imprisonment;
(d) a conviction of escaping from lawful custody for which he was sentenced. That sentence imposed 21 March 1977, commenced on 5 August 1983 and expired on 4 August 1984;
(e) Breach of parole. That sentence was imposed 1 April 1981 and expired 31 March 1990;
(f) Malicious injury for which a term of imprisonment for 6 days was imposed; and
(g) Finally, an offence of stealing for which a term of imprisonment for 12 days was imposed.

14 The defendant successfully completed 11 months of parole in 1975, but within weeks he re-offended on multiple occasions (13 May 1975, 24 May 1975 and 18 June 1975). He was released to parole on 4 August 1980, but that parole was revoked on 12 December 1980 due to the defendant’s poor response to supervision while on parole. It was later discovered that within around six weeks of his being released to parole, he had re-offended.

15 The defendant was a registrable offender under the Child Protection (Offenders Registration) Act 2000 (NSW). When he was last released from prison, he failed to report to police as required under that statute.

16 The defendant’s victims have been boys aged between 11 to 14 years. They are all strangers to the defendant. He targeted them in amusement parlours, snooker halls, or on public transport.

17 As I have previously indicated the defendant’s non-parole period expired on 16 April 2005. On this date, he became subject to an automatic court-based parole order as his sentence was less than three years. However, on around 15 April 2005, the Parole Board determined to revoke his parole because suitable accommodation had not been obtained or was not available.

18 Shortly thereafter, accommodation was found for the defendant at Hope Hostel and it would appear from a parole order made on 10 May 2005, it was intended that he would be released on 17 May 2005. However, on 12 May 2005, the Parole Board again determined to revoke the defendant’s parole on the grounds that he was “unable to adapt to normal lawful community life.” In this regard, Mr George Marie, the defendant’s parole officer had provided a report stating that Hope Hostel was unsuitable and recommending that the defendant not be released to parole.

19 On 16 June 2005, the defendant told his parole officer, Mr George Marie, that he did not want to be put through the parole process every month and wanted to be allowed to stay in custody until the end of his sentence. On 21 June 2005, the Parole Board confirmed its decision to revoke the defendant’s parole on the basis that he was “unable to adapt to normal lawful community life.” It appears that release on parole was not further considered after this time.

The legislative regime

20 Section 3 of the Act provides the objects which are as follows:

“The objects of this Act are 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.”

21 It is significant that when exercising jurisdiction under the legislation the Court must be mindful that the legislative purpose addresses both protection and rehabilitation and is not punitive. The fundamental objective of the legislature is the protection of the public which, where necessary, is intended to be achieved by supervision of an individual or where the statute provides his or her continuing detention. If an order is made the consequences may be the continuing incarceration of an individual or the imposition of serious restrictions on his or her liberty. This is not the occasion to consider the history of the legislation. However, as Gleeson CJ observed in Fardon v Attorney General (Qld) (2004) 210 ALR 50 at 55:

“Legislative schemes for preventive detention of offenders who are regarded as a danger to the community have a long history.”

22 Although there are significant differences, the New South Wales Act is similar in many respects to the Dangerous Prisoners (Sexual Offenders) Act (2003) (Qld), the constitutional validity of which was upheld by the High Court in Fardon. No challenge has been brought to the constitutionality of the New South Wales legislation. I understand there is also legislation dealing with similar problems in both Western Australia and Victoria.

23 Proceedings for orders under the Act are civil proceedings (s 21). However, when considering whether or not to make orders the Act makes particular provision for the standard of proof which the Court must apply. (s 9(2), 17(2)-(3).

24 There are two types of substantive orders, as I shall refer to them.

25 The Attorney General may apply to the Supreme Court for an “extended supervision order” (s 6), or a “continuing detention order” (s 14). An application may only be made with respect to a sex offender (which is defined and means “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”). When the application is made, the sex offender must be in custody or under supervision in relation to a serious sex offence or an offence of a sexual nature. An application may not be made until the last 6 months of the offender’s current custody or supervision (ss 6(2); 14(2)) and must be supported by documentation (ss3) 6(3); 14(3)).

26 Once an application is made the Act provides pre-trial procedures including a preliminary hearing which must be conducted within 28 days after the application is filed or within such further time as this Court may allow (s 7(3); s 15(3)). If, following the preliminary hearing, the court is satisfied that “the matters alleged in the supporting documentation would, if proved, justify the making of either an extended supervision order or a continuing detention order (as the case may be), then the Court must make orders:

(a) appointing 2 qualified psychiatrists to conduct separate psychiatric examinations of the offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the offender to attend those examinations.” (ss 7(4); 15(4)).

27 If, following the preliminary hearing the Court is not satisfied that the “matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, or continuing detention order (as the case may be) the Court must dismiss the application.

28 The present proceedings fulfil two purposes. The first purpose is the preliminary hearing provided by s 7(3) and s 15(3). They also constitute the application by the Attorney General for either interim supervision orders or interim detention orders pursuant to either s 8 or s 16 of the Act. Section 8 is in the following terms:

(1) If, in proceedings on an application for an extended supervision order, it appears to the Supreme Court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order,

the Supreme Court may make an order for the interim supervision of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(3) An order under this section may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months.”

29 Section 16 is in the following terms:

(1) If, in proceedings on an application for a continuing detention order, it appears to the Supreme Court:

(a) that the offender’s current custody will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order,

the Supreme Court may make an order for the interim detention of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(3) An order under this section may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

30 Both section 8(1)(b) and 16(1)(b) require the Court when determining an application to consider whether the supporting document would, if proved, justify the making of a substantive order. Accordingly, it is necessary to consider the provisions which provide for the making of substantive orders, which are relevantly s 9 and s 17 of the Act.

31 Section 9 is in the following terms:

(1) The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or
(b) 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) In determining whether or not to make an 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 section 7 (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 programs, and the level of the offender’s participation in any such programs,
(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.

32 Section 17 is in the following terms:

(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 section 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 programs, and the level of the offender’s participation in any such programs,
(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,
(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.

(5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9.”

33 Both s 9(2) and s 17(2) provide an unfamiliar formulation of the standard of proof required before an order can be made. Being civil proceedings the appropriate standard of proof would normally be the balance of probabilities. However, the Act provides a different test which requires consideration of the true meaning of the phrase “if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit” the relevant act.

34 The meaning of those words has not been fully argued on this application. However, for the present purposes I accept that before an order can be made I must be satisfied of the likelihood that the defendant will reoffend to a high degree of probability. It presently seems to me that the act imposes a standard of proof higher than the ordinary civil standard but less than the criminal standard beyond reasonable doubt. The caution that an order can only be made “if and only if” the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person’s liberty. One potential difficulty with the subsection is the conjunction of that requirement ie that the Court be satisfied to a “high degree of probability”, with the question of whether the offender is “likely to commit a further serious sex offence.” The word “likely” presently appears to me to be used in its ordinary meaning which, as the High Court pointed out in Boughy v The Queen (1986) 161 CLR at 10 conveys the notion of “substantial - a real and not remote – chance regardless of whether it is less or more than 50 percent”: see also R v SLD (2003) 58 NSWLR 589 at 32; Teremoana (1990) 49 A Crim R 207 at 217; Dowling v Dalgety Australia Limited (1992) 34 FCR 109 at 136.

35 However, it will be necessary to give careful consideration to the context in which the word “likely” is used in the present legislation upon the final determination of this matter.

36 Both s 9(2) and s 17(2) and (3) vest a discretion in this Court as to whether or not to make an order in the event that the relevant satisfaction has been established. That discretion must be exercised having regard to the matters provided in s 9(3) or s 17(4) and any other matter which the Court considers relevant.

37 When considering the matter at a preliminary hearing the Court is required by s 7(5) or s 15(5) to dismiss the application if, “it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of “the relevant order.” The same test of whether the matters alleged in the supporting documentation would, if proved, justify the making of an interim order is found in both s 8 and s 16.

38 Accordingly, the matter which requires determination at this stage of the proceedings is whether the documentation tendered by the Attorney-General would, if proved, justify the making of a relevant order. That question must be answered by application of the test in s 9 and s 17, the effect of which is that an extended supervision can only be made if the Court has the satisfaction required by 9(2). A continuing detention order can only be made if the Court is relevantly satisfied that the defendant requires supervision “and that adequate supervision will not be provided by an extended supervision order” s 17(3).

39 As I have indicated, the supporting documentation includes a number of affidavits and a volume of documents evidencing the defendant’s criminal antecedents. The legislation does not at this stage, provide for the evidence tendered by the Attorney-General to be challenged or any evidence to be tendered by the defendant. This can occur before any final order is made. This position has, as I understand it, been accepted by senior counsel for the defendant.

40 In summary, before the Court may make an interim detention order pursuant to s 16(1) of the Act it must appear to the Court:

“(a) that the offender’s current custody will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order,

41 Before a supervision order can be made the Court must be 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. Before an interim detention order is made the Court must be satisfied that adequate supervision will not be provided by an extended supervision order.

Stay

42 The defendant has moved for a stay of the proceedings with the effect that the application for interim orders could not be determined before Sunday. The consequence would be that the defendant would be released without supervision. It is submitted that a stay should be granted because inadequate opportunity has been provided for the defendant to obtain representation, give adequate instructions and make appropriate submissions to the Court.

43 The submission is supported by reference to a number of Queensland decisions where an application was made without adequate notice being given to the defendant. There are decisions of the Queensland Supreme Court in which, in those circumstances, the court has dismissed the Attorney-General’s application for to do otherwise would deny the defendant procedural fairness: see Attorney-General v Nash (2003) 143 A Crim R 312; Attorney-General v Watego [2003] QSC 367; Attorney-General v Watego (2003) 142 A Crim R 537.

44 There are significant differences between the Queensland legislation and the Act which are material to an application for an interim order under the New South Wales legislation. The Queensland legislation requires the Court to be satisfied that there are “reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [substantive] orders” (Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 8(1)) and the Court is to receive evidence from both the Attorney-General (s 5) and the defendant (s 6) in relation to the matter. In that statutory context, procedural fairness would require the defendant to have adequate opportunity to test the Attorney-General’s evidence and also tender any evidence which he or she thought relevant.

45 The scheme of the New South Wales legislation is quite different. As I have already indicated, the matter must be determined by reference to the material tendered by the Attorney-General and a decision made upon the assumption that the matters in the supporting documentation are proved. Accordingly, at the interim detention order stage there is little or no opportunity for the defendant to bring evidence or test the evidence of the Attorney-General. The argument is confined to whether or not the material tendered by the Attorney-General supports the making of an order.

46 In these circumstances the requirements necessary to afford a defendant procedural fairness are significantly confined with respect to an interim application. Although the notice provided to the defendant was short, I am satisfied that adequate opportunity has been made available to him and his solicitor and counsel who is an experienced senior counsel to prepare for and make appropriate submissions to this hearing. Accordingly, the motion for a stay will be dismissed.

The evidence and discretionary matters

47 I have already provided an account of the defendant’s antecedents. The Attorney-General has made detailed submissions with respect to appropriate findings in relation to the evidence from the experts which has been tendered. The findings suggested in the Attorney’s submissions were not challenged by the defendant. I accept those submissions and acknowledge them in making the following findings.

48 The affidavit evidence contains the opinions of three qualified registered psychologists who have each expressed the opinion that the defendant represents a high risk of re-offending. Mr Bright also indicated that the defendant has refused to participate in an assessment of his personal risk factors.

49 Both Ms Young and Mr Bright conducted two types of risk assessments in respect of the defendant. One was an actuarial risk assessment which considered static (non-changeable factors based on past history) called “Static-99” and the other a dynamic risk assessment which considers changeable factors which are personal to the offender.

50 The difference between the static and dynamic risk assessments was explained by Mr Bright in his report in the following terms:

“Although actuarial assessment provides information about how similar a given individual is to a group of offenders who did reoffend, it does not provide any indications about whether the individual will be in the group of men who will not reoffend (statistically 39% over 5 years for the high risk group), or the group of men who will not reoffend (statistically 61% over 5 years for the high risk group). The greater the number and severity of dynamic risk factors, the more confident one can be that the particular individual being assessed will be a recidivist rather than a non-recidivist.”

51 Applying the Static-99 scale, both Ms Young and Mr Bright scored the defendant as 9. This places him in a high risk category relative to other offenders (any score of 6 or over is placed in the high risk of re-offending category). Mr Bright says that it is “rare” for an offender to receive a Static-99 code of 9, and the fact that the defendant received a score of over 6 “can increase confidence that the offender is in the high risk group.” Mr Bright also says that, “[i]ndividuals with Mr Gallagher’s characteristics, on average, sexually re-offend at 39% over five years, 45% over ten years, and 52% over fifteen years.”

52 Ms Young explains in her affidavit that an offender’s risk assessment based only upon Static-99 will not change pre and post-treatment, but that an offender’s overall risk, incorporating any progress in addressing dynamic risk factors, can change pre and post-treatment. Treatment is required to address an offender’s dynamic risk factors so that they can manage their propensity, or risk, of re-offending.

53 In relation to the Static-99 score, Mr Bright explained at p7 of his report:

“Individuals with Mr Gallagher’s characteristics, on average, sexually re-offend at 39% over five years, 45% over ten years, and 52% over fifteen years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 44% over five years and 51% over ten years.”

54 In terms of dynamic risk factors, Mr Bright indicates that the defendant:

(a) appears to underestimate or even completely dismiss his risk of re-offending”;
(b) has “poor relationship skills and may experience low levels of intimacy in his personal relationships”;
(c) has “entrenched distorted attitudes regarding his offending. These attitudes appear to centre around a believe that boys between 11-14 can consent to sexual activity with an adult”;
(d) presents with poor coping and problem solving skills, impulsivity, and poor behaviour controls, in addition to sporadic high levels of anger and hostility”.

55 Taking each of the above factors into account, as well as the Static-99 assessment, Mr Bright concludes that “Mr Gallagher presents as an overall high risk of sexual recidivism.”

56 In relation to dynamic risk factors, Ms Young says:

“the dynamic risk factors associated with Mr Gallagher which lead me to conclude that it would be extremely difficult to manage Mr Gallagher’s high risk of re-offending if he were in the community are:
(a) Mr. Gallagher has a long term pattern of deviant sexual behaviour over a 30 year period with multiple under-age male victims – research has consistently found that in relation to offence type – boy victim child sex offenders have the highest recidivism rates.
(b) Mr Gallagher “grooms” strangers within a very short period of time (most child sex offenders take much longer periods of time to “groom” their victims building up a relationship over time with the victims and such behaviour can be monitored).
(c) Mr Gallagher has been non-compliant with supervision and monitoring in the past including failing to report as a registrable offender under Child Protection (Offenders Registration) Act 2000.
(d) While research has found that offenders over the age of 50 re-offend less than younger offenders, the entrenched nature of Mr. Gallagher’s offending remains a significant concern.”

57 Dr Lennings considers at paragraph 28 of his report, that the defendant’s:

“poor response to supervision, failure to engage in treatment, significant minimization and failure to take responsibility for his offending, and his high deviant sexual drive indicate significant risk.”

58 Dr Lennings explains at paragraph 6 of his report that the “variable most commonly associated with sexual recidivism is deviant sexual interests” and that “it is clear from Mr Gallagher’s criminal history that he has a severe and compulsive deviant sexual interest.” Dr Lennings concludes that “on the review of the literature” the defendant “represents a high risk by virtue of this deviant interest.” Mr Bright makes the same point at pp10-11 of his 31 March 2006 report.

59 Dr Lennings explains at paragraph 27 of his report:

“in considering Mr Gallagher a pattern of high risk on actuarial instruments is apparent (refer para 19 of this report). A pattern of high risk on dynamic variables thought to underline high risk is also present (see Part C of my report). Personality assessment (Part D) does not reveal a pattern of severely dysfunctional behaviour although behavioural analysis does. Risk then becomes an aggregation of the various levels of risk. The question becomes: Is Mr Gallagher’s high risk on rating on the actuarial assessment a False Alarm or a Hit? As the pattern of high risk is reasonably consistent, decision making practices would regard it as a “Hit”, although this can only be confirmed if he is released on then reoffends.”

60 Both Mr Bright and Ms Young have conducted actuarial risk assessments – namely, Static-99, which assess the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious sex offence, and have scored the defendant as presenting a high risk of re-offending. Dr Lennings, a psychologist in private practice, provides background information on the nature of actuarial risk assessments in his report, and sets out the strengths and weaknesses of actuarial assessments on predicting sexual recidivism.

61 Ms Young says the Static-99 has “moderate predictive accuracy”. However, Ms Young says this observation should be placed in its proper context. No model has perfect accuracy. Ms Young considers that Static-99 is the most reliable and effective actuarial instrument for assessing risk of recidivism. Dr Lennings describes the Static-99 as the “gold standard” in the arena of prediction of sexual recidivism. At paragraph 25 of his report, Dr Lennings concludes that “[o]n the whole, the actuarial instruments [ie Static-99 and RRASOR] appear to have high reliability.”

62 All the psychologists have recorded in their reports that the defendant has a long and consistent history of refusing to attend sex offender treatment programs. Ms Denise Constantinou gives evidence that even as recently as 23 August 2005, the defendant refused to be referred to CUBIT, the sex offender treatment program that Mr Bright and Ms Young consider would most appropriately treat the defendant given the high intensity nature of the course. However, it must be remembered that the defendant was due for release before the ten months which the course takes had expired which could explain, on this occasion, his reluctance to participate.

63 During the defendant’s entire time in custody he has had approximately three individual sessions with psychologist, Mr David Taylor. He has only completed one sex offender treatment program, although the evidence indicates that this was not adequate to manage his level of risk. In 1998, the defendant attended a sex offender treatment program known as the Sexual Offender Redirection Training (“SORT”) program.

64 Ms Helen Haywood, who was a facilitator of the SORT program in 1998, gives evidence that the SORT program was not a high intensity program. Ms Haywood describes the nature of the SORT program. It involved four tiers, two of which were introductory and which lasted two weeks. Tier 3 lasted for ten weeks with about ten hours participation per week. SORT was largely comprised of group treatment with fortnightly individual review.

65 The documents upon which the Attorney General relied establish three matters which demonstrate that SORT has not adequately treated the offender:

(a) most obviously, the offender has offended again subsequent to completing SORT;
(b) three separate psychologists give evidence that SORT was not of sufficient intensity to treat the high risk of re-offending that the offender presents. Ms Haywood, who facilitated that SORT program that the offender participated in said:

“I do not believe that the SORT program alone was adequate to treat high risk offenders. My understanding is that Mr Gallagher has re-offended since he completed SORT and the additional offence(s) has further increased his level of assessed risk of re-offending. A program such as SORT is not suitable for a high risk offender such as Mr Gallagher.”

(c) the offender’s participation in the course was superficial and gave the appearance of lacking in commitment. In this regard, Ms Haywood said that while the offender did graduate from Tier 3 of SORT, her experience was that:

‘he generally participated at a fairly superficial level, although at times I believe that he did demonstrate some genuine insight into his life patterns and sexual offending. Mr Gallagher attended all SORT sessions and he did complete his homework as well as assigned tasks, but I perceived that he was not fully committed to treatment.”

66 Mr Bright gives evidence of the nature of the CUBIT treatment program at paragraphs 23 to 45 of his affidavit. CUBIT is a residential program provided in custody. As I have indicated, it is of high intensity and lasts 10 months. Mr Bright says that until the defendant receives appropriate treatment, his dynamic risk factors will not change. He continues:

“To my knowledge, CUBIT is the only treatment program in New South Wales that is suitable to address these risks because its intensity is commensurate with those risks. I do not believe that treatment of a sufficiently intensive level to address Mr Gallagher’s needs is available in the community.”

67 Similarly, Ms Young gives evidence that in her opinion, CUBIT is the only suitable treatment for the defendant in assisting him to manage the high risk he presents.

68 The defendant has previously committed sexual offences while he has been on parole. On 4 December 1998, a parole breach report was submitted due to the defendant’s failure to remain in contact with his parole officer and given that his whereabouts were unknown. On 12 December 1980, parole was revoked and a warrant was issued for his arrest. Before the warrant was executed, the defendant committed sexual offences on three boy victims (two aged 13 years, and one aged 11 years).

69 The defendant has failed to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

70 A complete criminal history of the defendant is in evidence. I have discussed it previously in these reasons. It is apparent that the defendant has a long and consistent pattern of sexual offending. A critical element in relation to this application of this history is that he “grooms” young boy victims aged between 11 to 14 years very quickly (within a space of a few hours) after meeting them in a public location. He then wins their trust and entices them to a private location where he attempts to sexually assault them, sometimes using force or threats.

71 The defendant re-offends a remarkably short time after being released, as is evidenced by the following:

(a) he was released to parole on 4 August 1980, and sexually assaulted a boy on 31 August 1980. His parole was revoked on 12 December 1980. Following his release he committed two further sexual assaults on 1 February 1981 and 12 March 1981. On 31 July 1981 he was convicted in the District Court of the above three offences;

(b) the defendant was released from another term in custody on 19 April 1992, and five months later, on 9 October 1993, he sexually assaulted a 13 year old boy; and

(c) the defendant was released from another term in custody on 9 October 2002, and eight months later, on 8 June 2003, he sexually assaulted a 13 year old boy.

72 Since the defendant was first incarcerated for a sexual offence in 1973, he has spent four periods of time residing in the community. On each of those four occasions, he has sexually assaulted young boys.

Decision

73 The defendant, through his counsel, has indicated that if I was minded to make an interim supervision order he would be prepared to accept the conditions identified in para 3 of the summons. These conditions are as follows:

a. the defendant must accept home visits by a Corrective Services officer as directed by that officer;
b. the defendant must report to a Corrective Services officer as directed by that officer;
c. the defendant shall not change his place of residence without prior approval of a Corrective Services officer;
d. the defendant must not associate or make contact with children aged 16 years and under;
e. the defendant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours, and such places as a corrective services officer may direct;
f. the defendant must wear electronic monitoring equipment as directed by a corrective services officer;
g. the defendant must not change his name from Wiliam John Gallagher;
h. the defendant must participate in treatment and rehabilitation as directed by a corrective services officer; and
i. such other conditions as the Court considers appropriate.

74 From the material available to me there is little doubt that the defendant is likely to commit a further serious sex offence if he is not kept under appropriate supervision. His history of repeated offending, often within a short period of his release from a term of imprisonment for his previous offences and his lack of preparedness to undertake appropriate treatment indicate that he has little insight into his behaviour and lacks a capacity to control his impulses if not restrained. The psychological evidence, which for present purposes I must accept, all indicates that the defendant presents a high risk of re-offending. Accordingly, it appears to me that having regard to the relevant supporting documentation, that if it is proved, it would justify the making of an extended supervision order.

75 I must emphasise that I make this decision having regard to the statutory regime which does not provide an opportunity for the defendant to test the evidence or bring other evidence to contradict it. The decision which I make in relation to this interim application and preliminary hearing will play no part in the ultimate resolution of the Attorney-General’s application.

76 The remaining question is whether adequate supervision can be provided by the making of an interim supervision order. Having regard to the material tendered before me on this application, I do not believe that adequate supervision in the relevant sense, is available. The defendant has no home and there is no evidence that any person within New South Wales will be able to provide him with support if he is released from custody. Before his recent incarceration he appears to have been an itinerant and the evidence before me indicates that he would be unlikely to establish a permanent residence upon his release.

77 The defendant resists the making of any order and submits that his current position where he has received little treatment and assistance is in large part due to the failures within the justice system. He submitted that he should not be kept in prison by reason of the fact that there are no community based treatment programs available and that effective rehabilitation is only available in prison. There are, no doubt, public policy, resource, and effectiveness issues which may explain why community based treatment is not available. It may also be that with the enactment of this legislation, further and considered thought needs to be given to whether or not community based treatment programs with appropriate supervision might not be made available. Those are matters which I could not begin to consider or resolve on this application. However, even if the defendant’s complaint is justified, I am not satisfied it could prevail at this stage of the proceedings. I stress again that it will be necessary to explore all of these matters at a final hearing when consideration can again be given to whether or not effective ongoing treatment might be available under appropriate circumstances if the defendant is released.

78 Evidence was tendered of the possibility of confining the defendant’s movements by including him in the electronic monitoring program. As that program is presently carried out, this would require him to have a permanent address with an available telephone landline. As I have indicated, there is no evidence that either facility would be available and accordingly, at present, the electronic monitoring program does not appear to be available.

79 As I have earlier indicated, I have also been provided with affidavit evidence from Mr Middlebrook, who is the chief superintendent of the Office of the Commissioner for Corrective Services. He has had responsibility for managing a special project which has developed satellite technology which may be able to be used to electronically monitor offenders. The system uses the global positioning system technology with which many people are familiar.

80 The evidence suggests that if such a system was available, it has the potential to provide more immediate knowledge of an offender’s movements than the current electronic monitoring program. Apparently, it can be managed so as to alert the monitoring officer if an offender intrudes into what I referred to earlier as exclusion zones, which could include schools, parks, or other areas where children congregate.

81 Although the system would appear to have significant advantages beyond those provided by the electronic monitoring program, Mr Middlebrook identifies weaknesses, of which the most significant is that the system depends upon the offender keeping the GPS unit fully charged and carrying the unit whenever he is away from home base.

82 Mr Middlebrook has also given evidence that the system is not 100 percent reliable, and can be prone to signal problems related to time, location and weather factors. Weak signal locations or large buildings can allow an offender to remain untracked for considerable periods of time. Mr Middlebrook also indicates that the technology has not yet been tried in real time on offenders.

83 Having regard to the defendant’s previous pattern of offending, I am not presently persuaded that electronic monitoring, in any form, would presently provide sufficient protection from the prospect of him re-offending. The evidence before me indicates that at best the available devices may, if functioning appropriately, alert the authorities to the fact that he has either left a designated location or has intruded into an area from which he has been prohibited, but it could be hours before he was subsequently located.

84 Given the pattern of his previous offences, and the fact that he, upon release, would not appear to presently have the prospect of a permanent home, the defendant would, in my opinion, have the opportunity to re-offend before he could be located.

85 The defendant’s past behaviour does not suggest that he will accept the obligations as to his movements which might be imposed if he was released under supervision. Having regard to his antecedents, and the present state of the evidence, I am not satisfied that adequate supervision could be provided by an extended supervision order. The defendant, when last in the community, failed to report in accordance with the Child Protection (Offenders) Registration) Act 2000 (NSW) and has expressed a wish to disappear when released from custody. In my opinion a supervision order is not appropriate and, at this stage, an interim detention order must be made. However, I stress again that the findings which I have expressed are made having regard to the evidence which is presently available, all of which would require reconsideration at a final hearing where substantive orders are under consideration.

86 I make orders 1 and 2 in the summons.

87 I direct that the orders be entered forthwith and an appropriate warrant issued.

88 I have already stressed that any finding which I make today has been made having regard to the evidence presently before the Court on this interim application. It is important to recognise that the legislation contemplates that, that finding having been made, the Court will then appoint two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and furnish reports to the Court. By that means, the legislation makes plain that, although a judge is required to form a view at the preliminary hearing stage, the decision which is ultimately required to be made is one which will be informed by two psychiatrists appointed by the Court.

89 It is also important to bear in mind that an offender who is the subject of proceedings in which a preliminary hearing has been held, also has the right to bring whatever evidence he or she may wish to tender to the Court to assist in the ultimate resolution of the application.

**********