Attorney-General for the State of New South Wales v Quinn - [2007] NSWSC 873

No judgment structure available for this case.

CITATION: ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v QUINN [2007] NSWSC 873

HEARING DATE(S): 16, 17, 18 and 25 July 2007

JUDGMENT DATE :
10 August 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, the defendant is to be detained in a correctional centre for one year from the date of this order (10 August 2007). (2) Pursuant to s.20(1) of that Act, I issue a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in (1).

CATCHWORDS: Criminal law – Crimes (Serious Sex Offenders) Act 2006 (NSW) – application for continuing detention order – nature of the statutory standard prescribed as to the probability that a particular offender is “likely” to commit a further serious sex offence - s.17(3) of the Act – the construction of s.17(3) and the nature of the test under that provision – judgment of the Court (Bell J in Attorney-General of NSW v Tillman [2007] NSWSC 605 in relation to the construction of s.17(3) followed and applied – recommendations made for the administration of appropriate therapeutic and other assistance to assist the defendant’s rehabilitation, that being one of the objects of the Act and for the development of a management plan for the future release of the defendant

LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006
Crimes Act 1900
The Serious Sex Offenders’ Monitoring Act 2005 (Vic)
Interpretation Act 1987

CASES CITED: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
Attorney General for the State of NSW v Quinn [2007] NSWSC 456
Attorney General for New South Wales v Tillman [2007] NSWSC 605
Boughey v The Queen (1986) 161 CLR at 10
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408
La Macchia v Minister for Primary Industries and Energy (1992) 110 CLR 201
Mustac v Medical Board of Western Australia [2007] WASC 128
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Regina v Abbrederis [1981] 1 NSWLR 530
Roads and Traffic Authority of New South Wales v
Baldock [2007] NSWCA 35
TSL v The Secretary to the Department of Justice [2006] VSCA 199

PARTIES: ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES
v QUINN, Peter Andrew

FILE NUMBER(S): SC No. 12005 of 2007

COUNSEL: P: L Babb/D T Kell
D: M Austin

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 10 AUGUST 2007

No. 12005 of 2007

ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v. PETER ANDREW QUINN

JUDGMENT

1 By summons filed on 24 April 2007, the Attorney General for the State of New South Wales sought orders pursuant to the Crimes (Serious Sex Offenders) Act 2006 (“the Act”). The Attorney General sought interim relief pursuant to s.16(1) of the Act.

2 On 24 April 2007, Hidden J made ex-parte orders abridging time for the service of the Summons and directed that the application for relief sought in paragraphs 1 – 4 of the Summons be heard and determined on an urgent basis and on or before 13 May 2007. On that date the court directed that the hearing of the claims for relief sought in paragraphs numbered 5 to 8 of the Summons be expedited.

3 The Attorney General (“the plaintiff”) claimed interim orders pursuant to s.16(1), s.21(1) and s.15(4) of the Act. The hearing in respect of such claims occurred on 8 May 2007. On 9 May 2007, I made orders pursuant to s.16(1) and s.20(1) of the Act. Additional orders were made pursuant to s.15(4) for the appointment of two qualified psychiatrists to conduct separate examinations and to furnish reports to the Court by 1 June 2007 and for the defendant, Peter Andrew Quinn, to attend such examinations. (Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456). The order made pursuant to s.16(1) for the interim detention of the defendant was for a period of 28 days from 13 May 2007.

4 On 7 June 2007, I made orders pursuant to s.16(3) of the Act that the interim detention order made on 9 May 2007 be renewed and to take effect from 10 June 2007 for a period of 28 days. The plaintiff’s claim for final relief was listed for hearing on 16, 17, 18 and 25 July 2007.

5 On 27 June 2007 the Common Law Duty Judge, Price J, made a further order extending the defendant’s interim detention. The court ordered that the previous order made on 7 June 2007 be renewed, to take effect from 8 July 2007 for a further period of 28 days or until the claim for final orders made by the plaintiff was determined, which ever was the shorter period.

6 On the hearing of the proceedings there was tendered reports of Dr Anthony Samuels and Dr Jeremy O’Dea, who were appointed by the Court for the purpose of examining the defendant and preparing reports. Dr Samuels’ report was dated 30 May 2007 and Dr O’Dea’s report was dated 1 June 2007. The defendant tendered the report of Dr Olav Nielssen dated 19 June 2007. Those three medical witnesses also gave oral evidence. The defendant did not give evidence.

7 The principal order sought by the plaintiff by way of final relief, pursuant to s. 17(1)(b) of the Act, is an order for the detention of the defendant in a correctional centre for five years from the date of the order. Alternatively, an extended supervision order was sought in the event that the Court declined to make a continuing detention order.

8 On the hearing of this application for final orders, the Crown Advocate, Mr Lloyd Babb of counsel, with Dr David T Kell of counsel, appeared on behalf of the plaintiff. Mr Mark Austin, Public Defender, appeared on behalf of the defendant.

Evidence in support of the application for final orders

9 The plaintiff read and relied upon affidavit evidence, being the affidavits of the following:-

“14. In support of the claims for final relief, the plaintiff has read the following 13 affidavits:-

(i) affidavit of Sharon Klamer affirmed 2 May 2007;

(ii) affidavit of David Anthony Bright affirmed 2 May 2007;

(iii) affidavit of Jayson Barry Ware affirmed 20 June 2007;

(iv) affidavit of Jayson Barry Ware affirmed 6 July 2007;

(v) affidavit of Joanne Kennedy affirmed 5 June 2007;

(vi) affidavit of Kenneth Owen Peterson sworn 25 May 2007;

(vii) affidavit of Narcisa Sutton affirmed 5 June 2007;

(viii) affidavit of Sue Knight affirmed 6 June 2007;

(ix) second (confidential) affidavit of Sue Knight affirmed 6 June 2007;

(x) affidavit of Christina Valentine affirmed 24 April 2007;

(xi) affidavit of Christina Valentine affirmed 2 May 2007;

(xii) affidavit of Denes Blazer affirmed 7 May 2007;

(xiii) affidavit of Mariella Schattiger affirmed 12 July 2007.”

10 Exhibited to the affidavit of Christina Valentine, affirmed on 2 May 2007, were copies of a number of files relating to the defendant, being files of the Department of Corrective Services. They were marked as Exhibit CJV 1(1) to (7). Documents constituting the Cubit treatment file relating to the defendant was tendered as Exhibit A (the file was labelled CJV1(8).

11 I note that the files of the Department of Corrective Services to which I have referred were produced pursuant to an order made by the Attorney General under s. 25 of the Act.

12 Any document or report which the Attorney General by order, under s.25, requires, and is referred to in s.25(1), is admissible in proceedings under the Act.

13 Mr Austin of counsel, correctly stated that the expert evidence directed to the issues under s.17(3) of the Act falls into three distinct categories. Firstly, the evidence concerning the statistical probability of the defendant re-offending based upon a consideration of what are termed the “static factors”. Secondly, the individualised assessment of the risk of the defendant committing further sexual offences on release based upon interviews and assessments of him by a psychologist. Thirdly, individualised assessment by three psychiatrists.

Expert evidence

14 Evidence was given by Ms Sharon Klamer, registered psychologist, for the plaintiff. Ms Klamer has worked as a psychologist with the New South Wales Department of Corrective Services since 2000. She presently holds the position of Forensic Psychologist, Sex Offender Programs, Forensic Psychology Services within the Department. She has held that position since March 2007.

15 Ms Klamer’s affidavit affirmed on 2 May 2007 included her Risk Assessment Report dated 18 April 2007, Exhibit 2 to her affidavit. Ms Klamer interviewed the defendant on 27 February 2007 for approximately two hours and on 2 March 2007 for approximately one hour. She undertook a risk assessment relating to him based upon both Static Risk Factors using the Static-99 Actuarial Risk Assessment Tool and upon Dynamic Risk Factors. Her overall assessment and conclusion was that the defendant is a high risk sex offender. It was submitted on behalf of the defendant that the statistical analysis was “simply a rough tool used by the experts in this case as a starting point for their assessment. Even though similar static risk analysis is considered, there is a fundamental conflict between the opinions offered by the psychologists and the psychiatrists giving evidence in these proceedings” (Defendant’s Outline of Submissions, at pp.9-10).

16 I will return to consider Ms Klamer’s evidence later in this judgment.

17 The medical evidence in the proceedings for final relief included the reports of Doctors Samuels and O’Dea to which I have referred and a report of Dr Olav Nielssen, consultant psychiatrist, dated 19 June 2007 (Exhibit 1). Dr Nielssen was retained on behalf of the defendant.

The statutory scheme for supervision and detention of serious sex offenders

18 The Act commenced on the date of its assent, namely on 3 April 2006. Pursuant to s.2 of the Act it came into operation on that date. The long title to the Act is An Act to Provide for the Supervision and Detention of Serious Sex Offenders; and for other purposes.

19 Section 3, Objects of the Act, provides as follows:-

“ 3 Objects of Act

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.”

20 The expression “serious sex offence”, is defined in s. 5(1) of the Act.

21 Pursuant to s.14(1) of the Act, the Attorney General may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre. The expression “sex offender” is defined by s.4 of the Act as meaning “… 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”. The expression “Continuing detention order” is defined in s.4 of the Act as meaning “a continuing detention order made under s.17”.

22 No issue is taken in these proceedings on behalf of the defendant as to the application of the Act to him. In other words, it was accepted that the defendant came within the definition of a “sex offender” and that he was serving a sentence of imprisonment by way of full-time detention for “a serious sex offence” or “an offence of a sexual nature” in accordance with the provisions of s.14(1). I will return to the application of this provision to the defendant: see paragraph [71] below.

23 The Second Reading Speech of the Minister on the Reading of the Crimes (Serious Sex Offenders) Bill recorded:-

“The Attorney-General will be able to seek two types of orders: extended supervision orders, dealt with under part 2; and continuing detention orders, dealt with under part 3 …

It is appropriate that the Attorney-General, as the first law officer of the State, consider any proposal to make an application – following advice from the Commissioner of Corrective Services to the Minister for Justice – before matters are filed in the Supreme Court …”

24 The Attorney General for the State of New South Wales is the person who has locus standi to make application to the Supreme Court for an order under the Act. Accordingly, the Attorney General has the statutory right to make an application under the Act and it is clear that the Attorney’s right to do so is one that is exercisable in the public interest.

25 The Act recognises that the administrative functions in respect of correctional centres for persons who are held in custody in the correctional centre is vested in the Commissioner of Corrective Services. The responsible Minister under s.32 of the Act, in terms of any review of it, may require the Commissioner of Corrective Services to provide information as to how the Commissioner’s functions in relation to the administration of the Act are being, and have been, exercised.

26 The statutory scheme established by the Act provides jurisdiction in the Supreme Court for the making interim orders (ss.8 and 16) and orders by way of final relief (ss.9 and 17). These are to be found in Part 2 and Part 3 of the Act.

27 Part 2 – Extended Supervision Orders provides that the Attorney General may apply to the Supreme Court for an extended supervision order against a sex offender. There is no definition of the concept of “supervision” as used in s.9(2). As earlier indicated, in the present proceedings, the Attorney General applies for an extended supervision order in the event that the primary relief sought, a continuing detention order, is refused.

28 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

29 Section 17(3) is a key provision. As the Crown Advocate, 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

30 The plaintiff submitted that the phrase “adequate supervision” in s.17(3) means “supervision that is such as to eliminate or at least substantially reduce the likelihood that the defendant will re-offend”. (paragraph 4 of the Plaintiff’s Outline of Submissions). The ordinary meaning of “adequate” includes “commensurate in fitness, sufficient, satisfactory”: Shorter Oxford English Dictionary, Fifth Edition.

31 It was further submitted on behalf of the plaintiff that the time at which the issue of the adequacy of the suggested supervision is to be assessed is the time when the Court is contemplating making an order under s.13(3). Accordingly, the plaintiff submitted that if the Court is satisfied as to the first stage of the test dealing with risk and is thus contemplating making a continuing detention order, the question of the adequacy of suggested supervision is to be determined at the present point in time, rather than by reference to what conditions may or may not be able to be put in place at some future time. This, he submitted, was because the fundamental objective of the legislation is the protection of the public referring, in that respect, to Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 (McClellan CJ at CL, 13 April 2006 at [21]).

32 In the present application, it was submitted on behalf of the plaintiff that, in terms of the second part of the test in s.17(3), the court could not be satisfied that adequate supervision would be provided by an extended supervision order in the circumstances established by the evidence in the present case.

33 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 5 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.”

34 The 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.

Proceedings under the Act

35 The Supreme Court is the only court with jurisdiction under the Act. Sections 7 and 15 provide for pre-trial procedures respectively in respect of extended supervision orders and continuing detention orders. Such procedures include a preliminary hearing into the application. It was at the preliminary hearing in the present proceedings that orders were made appointing Drs Samuels and O’Dea to whom I have earlier referred to conduct separate psychiatric examinations of the defendant and in relation to which they have reported as required. An order was also made directing the defendant to attend those examinations, which, of course, he did.

36 Section 21 in Part 4 of the Act provides:-

“ 21 Nature of proceedings

Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings

37 Section 22 provides a right of appeal to the Court of Appeal from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order or continuing detention order. Such appeal may be made on a question of law, a question of fact, or a question of mixed law and fact.

38 Section 24 of the Act provides as follows:-

“ 24 Preservation of Supreme Court jurisdiction

Nothing in this Act limits the jurisdiction of the Supreme Court apart from this Act.

39 Section 27 of the Act makes it clear that a party to proceedings under the Act may appear either personally or by his or her legal representatives, may call witnesses and give evidence and may cross-examine witnesses and make submissions to the Court on any matter connected with the proceedings.

The test under s.17(3) of the Act

40 Mr Austin, on behalf of the defendant, made a number of submissions concerning what he contended was the proper construction of the provisions of s.17(3), a key provision in the Act. It is convenient, here, to reproduce those provisions:-

“17(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

.”

41 In this submissions, Mr Austin observed that s.17(3) is composed of three parts:-

(a) The standard of proof “if and only if the Supreme Court is satisfied to a high degree of probability” . This, it was said, works in conjunction with two facts that must be established, namely, (b) and (c) below.

(b) That “the offender is likely to commit a further serious sex offence” if he or she is not kept under supervision.

“adequate supervision will not be provided by an extended supervision order”

42 It was submitted on behalf of the defendant that the key to interpreting s.17(3) with the terms “if and only if”, “high degree of probability” and “likely”. Reference was made to the dicta of McClellan CJ at CL in Gallagher (supra) at [34]. There, his Honour observed:-

“… 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

Boughey v The Queen

(1986) 161 CLR at 10 conveys the notion of ‘substantial – a real and no remote – chance regardless of whether it is less or more than 50 percent’.”

43 McClellan CJ at CL at [35] added:-

“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.”

44 In the present case, the plaintiff contended for the interpretation in Gallagher (supra). Mr Austin’s submission on behalf of the defendant was that this Court should not apply that interpretation but should follow the decision of the Victorian Court of Appeal in TSL v The Secretary to the Department of Justice [2006] VSCA 199. That Court was concerned with the provisions of The Serious Sex Offenders’ Monitoring Act 2005 (Vic) (the “Monitoring Act”).

45 Section 11(1) of that Act provided:-

“The Court may only make an extended supervision order in respect of an offender if it is satisfied to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he/she is serving, or serving at the time …”

46 In that case, the Victorian Court of Appeal considered the High Court’s judgment in Boughey v The Queen (1986) 161 CLR at 10 and the ordinary meaning of the word “likely”. Mr Austin observed that, whilst ordinarily there was no reason to think that “likely” must be more than 50%, the Monitoring Act contemplated an extraordinary remedy, namely, requiring a person who had served their sentence to be subject to monitoring if an order was made. He submitted that this had caused the Court to look at the meaning of the words chosen by Parliament and the context in which they appeared.

47 The Victorian Supreme Court concluded that the word “likely”, in context, meant that it should not be given its ordinary meaning, but rather than it required a high degree of probability. Mr Austin submitted that that Court preferred a meaning applying a much stricter test because it would be “inconceivable” that Parliament would have intended the word “likely” to bear its ordinary meaning as “all too many offenders are likely in that sense to commit a relevant offence” (at [10]).

48 Mr Austin further submitted that simply to make the decision based on likelihood would mean that too many prisoners, most of whom statistically had a chance of re-offending, would be caught by the legislation. He stated in this respect (defendant’s outline of submissions, paragraph (A)(h)):-

“… the section required, first, a standard of proof requiring a high degree of probability of likelihood, which in turn had to be applied to facts which also have a high degree of probability.”

49 Reference was made, in this respect, to the observation of the Victorian Court of Appeal at [12]:-

“The conclusion that the word ‘likely’ in s.11 is used in the sense of a high degree of probability, accords with the main purpose of the Monitoring Act stated in s.1.”

50 Section 1 of the Monitoring Act relates to the protection of society. Mr Austin observed that the purposes of the New South Wales Act was both the protection of society and the rehabilitation of the offender. He also observed that s.17(3) uses the words “if and only if it is satisfied” as against the relevant provision in the Victorian scheme which uses the phrase “if it is satisfied”.

51 Further reliance in support of the defendant’s submissions was placed upon the difference between the scheme that operates under the New South Wales legislation whereby a detention order may be made. In Victoria, only a supervision order can be made.

52 In Attorney General for New South Wales v Tillman [2007] NSWSC 605, Bell J considered the provisions of s.17(3). Bell J rejected the approach in TSL (supra) stating:-

“In this respect it seems to me that the plaintiff’s submission that s.17(3) of the Act should be construed in accordance with its terms not by reference to the approach taken to the Victorian Monitoring Act has force.”

53 Bell J, in applying the test, stated (at [165]):-

“Taking into account the expert evidence, particularly the opinions of Dr Allnutt and Professor Greenberg and looking at the inferences to be drawn from the defendant’s pattern of past offending, upon the standard of proof of high probability, I consider the plaintiff has established that it is likely that the defendant will commit a further serious sex offence if he is not kept under supervision. In this respect, I note Professor Greenberg’s opinion … which is that in the absence of treatment over an extended period of time, the defendant’s risk of re-offending is greater than the chance of not re-offending.”

54 Mr Austin submitted that the approach and interpretation adopted by Bell J was wrong and should not be followed. He relied, in particular, on the principles stated in the case law which emphasises that statutory interpretation requires a Court to have regard to the context of the legislation in the first instance and not merely after some kind of ambiguity is established: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCA 35 per Spigelman CJ at [15].

55 Mr Austin also relied upon the provisions of s.33 of the Interpretation Act 1987 which states that the interpretation of a provision of an Act which would promote the purpose of object underlying it should be preferred to a construction that that would not promote that purpose of object.

56 He submitted that the New South Wales Parliament could not be presumed to have been ignorant of the Victorian Monitoring Act and that the phrase “if and only if” plays an important role in the construction of the provision. In particular, it makes the New South Wales standard of proof “… stricter and reinforces the exceptional nature of the remedy provided for” (defendant’s outline of submissions A(o)).

57 Bell J in Tillman (supra) closely examined the analysis of the Victorian Court of Appeal in TSL (supra). Her Honour observed that the Court in that case took into account the provisions of s.7(2) of the Charter of Human Rights and Responsibilities. Her Honour stated that she proposed to adopt (at [27]) the approach favoured by McClellan CJ at CL in Gallagher (supra), namely, to take the words “is satisfied to a high degree of probability” in s.17(3) as the statement of a statutory standard of proof which is higher than the civil standard, but lower than the criminal standard. Her Honour stated at [33]:-

“… I take into account his Honour’s observation that the inclusion of the words ‘if and only if’ 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.”

58 Her Honour also noted the observations of McClellan CJ at CL that it would be necessary to give careful consideration to the context in which “likely” is used in s.17(3) on final hearing. Following reference to dicta of Gibbs CJ and of Mason, Wilson and Deane JJ in Boughey (supra), her Honour concluded that:-

“… The Act requires the Court to be satisfied of the likelihood of future offending. In this context it is not clear that likelihood is to be equated with ‘a real chance’, which I take to be a prediction falling well short of probability, albeit one that is more than a mere possibility. I have approached the determination in this case upon the basis that ‘likely’ in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence.”

59 Her Honour went on to state at [30]:-

“The plaintiff must establish to a high degree of probability that (1) the defendant is likely to commit a further serious sex offence if he is not kept under supervision and (2) that adequate supervision will not be provided by an extended supervision order. If the plaintiff establishes both, the Court may make a detention order. In the event the plaintiff establishes (1) but does not establish (2) the Court may make an extended supervision order. The Court retains a discretion not to make either order.”

60 In his written submissions, Mr Austin contended that the Victorian Court of Appeal’s reference in TSL to the Charter of Human Rights did no more than state, what in the absence of the Charter, the common law would have required; a respect for basic common law principles. These, he contended (defendant’s outline of submissions, A(s)):-

“… include the right to liberty, an aversion to preventative detention, and a requirement for proportionality in sentencing. So much has been recognised in relation to the legislation which allows for indefinite determination. It has been held that this legislation is exceptional and to be sparingly exercised and to be sparingly exercised, and then only in clear cases:

Moffit v Crown

[1998] 2 VR 229 at 255 per Hayne JA.”

61 Mr Austin further submitted:-

“(u) As a corollary to the argument that the powers be sparingly exercised and only in exceptional cases it can be asserted that legislation which derogates from fundamental common law principles must be interpreted so far as possible in a way that respects those principles unless a contrary intention is shown. Courts do not require a Charter or Rights and Responsibilities to do this.”

62 In support of this submission, specific reliance was placed upon the words of the section, in particular, “if and only if” and “a high degree of probability” which operate in conjunction with the word “likely”. Reliance was also placed upon the scheme of the Act and what was said in the Second Reading Speech and s.33 of the Interpretation Act 1987 as well as the legislation and what was contended was its “extraordinary” application. Finally, it was submitted that any interpretation must respect fundamental human rights and common law principles unless the contrary intention is shown.

63 The final submission on this question of construction was that “… this extraordinary legislation, with its extraordinary consequences, must call for an extraordinary interpretation of likelihood – a high degree of probability” (defendant’s outline of submission, A(w)).

64 In support of this latter submission, it was contended that to hold otherwise would mean that the large bulk of offenders would be caught by the test, given the real risk that anyone gaoled for a sexual (or other offence for that matter) was at risk of committing a further offence.

65 It is relevant at this point to refer to the principles of judicial comity, for they have a bearing upon whether there exists a basis upon which I ought follow and adopt the interpretation of s.17(3) as enunciated by Bell J or whether another course is and should be taken by me in relation to that question.

66 In Mustac v Medical Board of Western Australia [2007] WASC 128, Martin CJ stated at [38] that the practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each Court in a judicial hierarchy to follow and apply decisions of any Court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of Courts of co-ordinate jurisdiction, or as between a Court in one judicial hierarchy, and a Court the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way. Martin CJ there observed that the practice was well described by Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 CLR 201 in the following terms at 204:-

“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same Court. Even a decision of a single justice of the High Court exercising original jurisdiction, while ‘deserving of the closest and respectful consideration’, does not make that demand upon a judge of this Court:

Businessworld Computers Pty Limited v Australian Telecommunications Commission

(1988) 2 ALR 499 at 504. But the practice in England, and I think also in Australia, is that ‘a judge of first instance will as a matter of judicial comity, usually follow the decision of another judge at first instance … unless he is convinced that the judgment was wrong’, Halsbury, 4th ed, Vol 26, para 580. The word ‘usually’ indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. … Understood as expressing a usual or general rule, the following statement of Rogers J in

Hamilton Island Enterprises Pty Limited v FCT

[1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from Halsbury:-

‘In my view, it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising Federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of co-ordinate authority was clearly wrong, I would follow his decision.’”

67 Martin CJ also referred to the decision of Street CJ in Regina v Abbrederis [1981] 1 NSWLR 530 at 542 wherein it was stated:-

“As a matter of precedent, this Court is not, of course, bound by the decision of the Full Court of Victoria. But I have not the slightest doubt that, where a Commonwealth statute has been construed by the ultimate appellate court within any State or Territory, that construction should, as a matter of ordinary practice, be accepted and applied by the Courts of other States and Territories, so long as it is permitted to stand unchanged either by the Court of origin or by the High Court. The risk of differing interpretations amongst the States is thus negated and, in practical terms, a uniform application of Commonwealth laws throughout Australia is assured.”

68 In the circumstances of the present matter, the decision of the Victorian Court of Appeal being concerned with Victorian legislation different in terms than the New South Wales Act, such decision cannot be taken as authoritative in relation to the provisions of s.17(3). Furthermore, given that Bell J specifically examined the Victorian Act the subject of that decision, her Honour having closely considered its provisions, construed “likely” to mean “probable”. In those circumstances, there is no basis for departing from or taking a different approach to the construction of s.17(3) to that set out in the judgment of Bell J unless I concluded that there existed a basis upon which I could conclude that the decision of Bell J was clearly wrong. I have closely examined her Honour’s judgment and there is no basis for so concluding. In those circumstances, I decline to depart from the construction of s.17(3) as enunciated by Bell J and apply it to the present application.

The defendant’s criminal record in relation to sex offences

69 The defendant’s criminal record in relation to sex offences, including the offence the subject of the last term of imprisonment, was summarised in paragraph 53 of the Crown Advocate’s submissions dated 24 July 2007, and a summary is reproduced below:-

“53. The defendant’s criminal record in relation to sex offences, including the offence the subject of the current term of imprisonment, is as follows:-

Date of conviction	Conviction	Details of sentence
2 May 1977	Indecent assault (2 counts)	On each count committed to an institution (juvenile)
6 May 1977	Peep and pry	Fined $50.00
8 April 1982	Indecent assault female (date of offence: 10 October 1983)	Three years imprisonment (to date from 8 April 1982) (18 months non-parole period)
27 October 1982	Assault and ill treat female (date of offence: 2 August 1981)	12 months hard labour from expiration of sentence then serving (aggregate non-parole period to expire 8 April 1984; aggregate parole period to expire on 7 April 1986)

Date of conviction Conviction Details of sentence

8 December 1989
• Sexual intercourse without consent;
• Attempted sexual intercourse without consent (2 counts)

• Indecent assault

(date of offences: 27-28 November 1985; offence committed while on parole from previous sex offence)
5 years minimum term of imprisonment on each count of attempted sexual intercourse without consent, additional term of 20 months
2 years minimum term of imprisonment on counts of sexual intercourse without consent and indecent assault, additional term of 8 months
(all sentences to commence from 2 June 1989, all sentences to be served concurrently)
(to be considered eligible for release on parole from 1 June 1984; total sentence to expire on 1 February 1996)

14 May 1998
Aggravated sexual assault without consent (s.16J, Crimes Act)
(date of offence: 23 December 1995; offence committed while on parole from previous sex offence)
9 years imprisonment with a 7 year non-parole period
(prior to NSWCCA reducing sentence, Cantrill CDJ had imposed sentence of 11 years imprisonment with a 9 year non-parole period)
(became eligible for parole on 13 May 2005; parole twice refused; full sentence expires on 13 May 2007)

70 It is clear from the evidence that the defendant was serving a sentence of full-time imprisonment with the full term expiring on 13 May 2007. The offence in respect of which the defendant was charged, convicted and served his last sentence was the offence of sexual intercourse without consent in circumstances of aggravation: s. 61J of the Crimes Act 1900 (NSW). The aggravating factor in respect of that offence was that the victim was under 16 years of age at the time of the offence. The offence was punishable by imprisonment for seven years or more. Accordingly, it is clear, that, at the material date, the defendant was serving a sentence of imprisonment for “a serious sex offence” or an “offence of a sexual nature”.

71 An offence under s.61J of the Crimes Act is an offence under Division 10 of Part 3 of the Crimes Act. Accordingly, the definition of an “offence of a sexual nature” in s.5(2) of the Act has been satisfied. In those circumstances there was no issues that the requirements of s.14(1) of the Act have been met.

The defendant’s offences in 1985 and 1995

72 These two offences represent the two most serious offences committed by the defendant. The circumstances of each were summarised in the plaintiff’s written submissions dated 24 July 2007 and I reproduce below the summary in relation to each:-

(a) The 1985 offence

“59. The circumstances relating to the 1985 offences, the subject of the 1989 convictions, involved the defendant sexually assaulting a young woman who had been asleep on a country train travelling west across New South Wales. The victim was 18 years old and was previously unknown to the defendant. As McCredie DCJ recorded in his remarks on sentence, the victim had been asleep in her compartment on the train when the defendant entered and pulled her blanket down. He then grabbed or pushed her and she struck her head heavily against the side of the compartment. The defendant then required the victim to lie down and started interfering with her clothing while threatening her with violence with a clenched fist. He told the victim to undo her clothing which, in these circumstances, she partly did. He then inserted his fingers into her vagina and also forced the victim’s hand on to his penis. The defendant also required the victim to turn over and, after saying various unpleasant things to her, he attempted anal sexual intercourse. The attack stopped only when a conductor came on the scene and the defendant fled the compartment.”

(b) The 1995 offence

73 In the remarks on sentence, Acting Judge Cantrill, on 14 May 1998, recorded that the offence involved a 15 year old girl who had been visiting or spending time with a girlfriend at Lithgow. She had purchased something to drink and eat at a café near the railway station and proceeded to go to the toilet at the station whilst waiting for her boyfriend to arrive by train. His Honour recorded:-

“She was followed into the toilet by the accused who initially purported to offer her something called goey which I understand is a euphemism for some form of illicit drug. The young lade declined that offer and then was assaulted by the accused who firstly said to her words to the effect ‘Show us your tits then’, and proceeded to touch her on the breasts outside her clothes.

She tried to get away by climbing over the wall but he pulled her back and pulled her track suit pants down and her underpants and placed his hand on her genitalia, inserting his finger into her vagina. That is the sexual assault alleged, and while it is the situation as the Crown said, perhaps that it may not be the most serious in some respects of sexual assault in the sense that there was no penetration by or attempted penetration by the penis; nonetheless a woman, particularly a young girl of 15 is entitled to feel that she can safely go into a public toile on a public railway station without fear of violation or interference in any way, such as this.”

74 On 27 October 2000 the Court of Criminal Appeal set aside the sentence imposed with respect to the 1995 offence. The defendant was re-sentenced to a term of nine years imprisonment with a seven-year non-parole period.

75 On 17 May 2005 and on 16 June 2006 the defendant was refused parole.

Factors to be considered in an application for a continuing detention order

76 The provisions of s.17 have been set out earlier in this judgment. It is clear, by virtue of s.17(4), that in the determination of an application for a continuing detention order or an extended supervision order the Court is required to consider nine matters as specified in s.17(4)(a) to (i) and, in addition, to “any other matters it considers relevant”.

77 The specific matters referred to in s.17(4) identify, inter alia, all psychiatric examinations of the offender by psychiatrists appointed under s.15(4) and “any other assessment” by a qualified psychiatrist, registered psychologist or registered medical practitioner … “as to the likelihood of the offender committing a further sex offence …”. The fact and extent of the offender’s participation in such examinations or assessments is a matter also to be taken into account.

78 A considerable body of evidence in the present proceedings focuses upon such “examinations” and “assessment” of the defendant himself. The evidence addressed matters that are required to be considered under the last mentioned provision.

79 Counsel for the plaintiff have emphasised in their submissions the criminal history of the defendant and, in particular, the nature and circumstances in which the offences occurred. Such matters fall for determination in accordance with s.17(4)(h) of the Act. In this context, emphasis was placed upon the fact that offences committed by the offender, including the last offence, occurred whilst he was on parole following the commission of previous sex offences. Before examining the evidence in relation to the defendant’s criminal history and any pattern of behaviour disclosed by that history, it is appropriate to examine relevant matters concerning the defendant himself as disclosed and analysed by the consultant psychiatrists to whom I have referred. Drs Samuels, O’Dea and Nielssen each addressed the issue of ”risk assessment” having regard to their assessment of the defendant, his history of offending, his general history including his drug and alcohol history and the issues that arise in circumstances where he is considered as being “an untreated sex offender”.

80 The defendant’s personality features, the nature and pattern of his criminal offending, and his underlying substance (alcohol) abuse disorder are all central to the issues of risk assessment and of risk management. Although these issues have been the subject of comment by a number of officers, in particular, psychologists employed by Corrective Services, the interrelationship between them had not been analysed as they have been by the medical specialists who have given evidence in these proceedings, the consultant psychiatrists.

Risk assessment

81 In February 2007, Ms Sharon Klamer, psychologist with the Department of Corrective Services prepared a Risk Assessment Report on behalf of the Commissioner of Corrective Services in anticipation of an application under the Act. The report was Exhibit 2 to her affidavit. It contains a comprehensive history of the defendant’s sexual and non-sexual offending. It notes, in terms of institutional adjustment, that the file suggested that he is a quiet and compliant inmate, although noting the defendant’s correspondence in relation to the CUBIT program and institutional convictions concerning unauthorised use of the telephone, gambling, failed urine test (8 October 2002) and refusal or fail to supply urine sample (25 January 2004).

82 Ms Klamer observed in her report that an offender’s acknowledgment of risk, the identification of risk factors and the development of future plans to address these risk factors, can enable an offender to reduce their likelihood of re-offending (p.9).

83 She considered that the defendant had very minimal insight into his sexual offending behaviour and that he failed to take full responsibility for it, primarily denying committing the offences or externalising responsibility to his alcohol abuse or the victims. Aside from alcohol abuse and relationship difficulties, Ms Klamer noted that he was unable to identify any further risk factors that led him to sexually offend.

84 Ms Klamer also noted the limited plans for release which she attributed to the defendant’s limited insight. He had planned to live with his fiancé, who was 18 years his junior and about which trial assessments conducted by the New South Wales Probation and Parole Service indicated that she may be intellectually delayed and vulnerable. It was by reason of these concerns that accommodation for the defendant with his fiancé was not supported by the Probation and Parole Service until he had completed a sexual offender specific treatment program. The defendant, it was reported, had consistently dismissed those concerns.

85 Ms Klamer’s report addressed static risk factors as assessed using the actuarial risk assessment instrument, STATIC-99 and dynamic risk factors. On the basis of that assessment, she considered that the defendant was in the high risk category of sexual re-offending relative to other adult males. In this respect, she observed:-

“… an offender is able to manage his risk of re-offending by identifying his risk factors and developing management plans to address these …”

86 Ms Klamer again referred to the lack of acceptance of full responsibility and the externalisation of the responsibility and that, as a result, the defendant was currently unable to identify the risk factors that led him to sexually offend in the past. Accordingly, he has not been able to develop appropriate management plans to enable him to manage similar risk factors if they arose in the future.

87 Ms Klamer concluded that the defendant’s assessed risk of re-offending could be managed by participation in a program such as the CUBIT program, adding:-

“… given his identified risk factors, he might also benefit from further treatment of his addictive problems (alcohol and gambling), and from participation in the program to address his problems with violence, such as the Violent Offender Therapeutic Program (VOTP) …”

88 Ms Klamer observed that there was then no current treatment program available to address his high level of risk and needs in the community.

Programs and services provided to the defendant in custody

89 The defendant has undertaken or attended certain programs whilst in custody. In particular, in this respect:-

(a) He attended an Alcohol and Other Drug Group Program at Junee Correctional Centre. No reports were kept, the program having been conducted by inmates.

(b) He has had several one to one sessions in relation to alcohol related issues.

(c) He attended a Relapse Prevention Course.

90 According to a report from the Parole Service, South West Region, 17 February 1994, the defendant had, at no time up to that time, seen a psychologist. The report records that at no time had the defendant committed himself to a long-term rehabilitation program and that, whilst he expressed a desire to make a life for himself in the community, he had not really addressed many of his past a recurring problems, namely, his abuse of alcohol and his repetitive assaults on females. The report added (Exhibit CJV-1(7), p.1540):-

“It would appear that there is a need for some kind of treatment program that could provide for his abuse of alcohol and his anti-social behaviour.”

91 A counsellor’s report dated 13 March 1994 recorded that the defendant had enrolled in a drug and alcohol group commencing 28 January 1994. The group was focused on “relapse prevention and ran for a duration of seven, one and a half hourly sessions. The defendant’s contribution to the group was reported as being ‘positive’ and extended to convincing at least one inmate of the value of such group sessions and recruiting him to a subsequent group” (Exhibit CJV-1(7), p.1544). That report included reference to the fact that the defendant’s post-release plans included enrolling in the Alcoholics Anonymous group at the Prince of Wales Hospital, Sydney.

92 On 22 February 1994, the defendant participated at Junee Correctional Centre in the previously mentioned small alcohol counselling groups conducted by the Centre and was due to complete those groups in four weeks’ time. His attendance was reported as being “excellent” and that he was “committed to the program”.

93 On 31 March 1994, it was reported that the defendant had completed successfully an eight week drug and alcohol counselling program (Exhibit CJV-1(7), p.1542).

94 File records reveal that the defendant had a realisation or understanding of the connection between alcohol consumption and his offending (see, by way of example, Exhibit CJV-1(7), p.559, supplementary licence report dated 13 May 1983).

Defendant’s history of failure to comply with parole conditions

95 The plaintiff’s submissions emphasised the history as to past breaches of parole conditions by the defendant. That, of course, is an important matter in risk evaluation, as Dr O’Dea, amongst others, acknowledged in the course of his evidence.

96 The defendant’s conduct in committing serious offences whilst on parole bears directly upon the issue of his likely compliance with an extended supervision order if made under s.9 of the Act. It is a matter that the Court must have regard to in accordance with s.17(4)(f) of the Act. It, in particular, is relevant in determining the adequacy of supervision under an extended supervision order, for the history of offending whilst on parole suggests that the required level of trust in the defendant complying with any conditions imposed by an extended supervision order may not, at least at present, be achievable.

97 The affidavit of Joanne Kennedy, Acting Assistant Director of the Offender Policy Unit within the Department of Corrective Services, sworn on 5 June 2007, states that the offender has had a history of offending whilst on parole. According to a pre-release report dated 23 March 2005:-

• The offences of sexual intercourse without consent x 2 committed on 28 November 1985 occurred during a parole period in respect of an earlier offence that commenced on 12 April 1984 and which was due to expire on 7 April 1986.

98 Subsequently, release to parole was not recommended by Ms Kennedy in her reports dated 23 March 2005, 14 April 2006, 7 June 2006 and 16 June 2006.

99 The plaintiff’s written submissions refer to the defendant’s history of breaches of parole conditions and of his conviction on non-sexual offences during the period he was on bail pending the hearing of the last offence. In that respect, it was submitted:-

“137. These factors strongly suggest that the defendant would be unlikely to comply with any conditions imposed as part of any order for extended supervision and point to such an alternative order being inappropriate for the defendant.”

100 As the Crown Advocate submitted, a fundamental issue on the question of the effectiveness of any proposed conditions to an extended supervision order is that concerning likely compliance. On the history of the defendant’s parole breaches and offending, he submitted there are plainly grounds for a very significant doubt as to the likelihood of the defendant complying with any such conditions. Additionally, there was no evidence from the defendant in the present proceedings as to his commitment and confidence on the question of compliance.

101 The plaintiff’s submission was that the sex offences committed by the defendant had been brazenly committed against young women in public places. It was contended that it would be very difficult to provide any meaningful protection of the community by way of conditions under an extended supervision order.

The assessment undertaken by the consultant psychiatrists

102 I was impressed by Dr Samuels, both in terms of his detailed analysis as expressed in his report and in his oral evidence given on 17 June 2007. His examination and assessment focused upon the factors associated with the defendant’s offending pattern (which include details of the offences, the ages of the victims, the circumstances of the offences and historical or other source data available to him). He considered both relevant risk factors and made his own clinical assessment.

103 Dr Samuels cautioned that all forms of risk assessment are subject to inherent limitations in terms of predicting future dangerousness of offenders. He stated that such assessments are somewhat imprecise and a number of factors can affect the question of prediction. He observed that the validity and reliability of prediction was increased by the use of structured professional judgment which incorporates clinical guidelines, anamnestic methods (the historical examination of risk factors associated with the relevant offending pattern) and actuarial tools.

104 Dr Samuels concluded that he regarded the defendant “…as being at moderate to high risk of further sexual offences, particularly if he continues to abuse alcohol” (Report p.18). Dr Nielssen observed that the risk assessment instruments as they have been applied to the defendant … “are in my view unable to predict whether he will commit a further offence to a high enough degree of probability to warrant preventative detention on the basis of the findings of those scales.”

105 Dr O’Dea considered that the defendant should be considered as having a significantly high risk of engaging in further sex offending behaviours (paragraph 56 of his report). He noted in this respect that this risk would be related “…to a number of parameters, in particular his alcohol and other drug use in the community and the presence of sexually deviant urges or sexually deviant fantasies” (paragraph 56 of his report).

106 Dr Samuels did not approach the subject of risk assessment and risk management as separate issues, but saw them as related. He stated:-

it is all very well to say someone is high risk or low risk or moderate risk. The real purpose of making a risk assessment is to say, if you can put in place a risk management plan. It really means nothing, moderate or high. It is really … there is an identifiable risk and what can we do about it.”

107 Similarly, in his discussion of dynamic risk factors and other risk factors he identified (p.15 of his report) (including the issue of violence and its pattern of escalation) the main purpose of the “Risk of Sexual Violence Protocol” was to “… highlight these risk factors in order to target interventions” (Report p.15).

108 Dr Samuels commented upon his scoring of the defendant on a range of items in terms of the Psychopathy Check List. He considered the defendant by an application of the actuarial tool relevant to static risk factors to have at least some psychopathic traits in his personality, a risk factor in all types of offending. Other aspects revealed limited insight, impulsivity, the need for stimulation through alcohol abuse, manipulative behaviour – all of which he took into account in evaluating risk factors. He suspected that there is a paraphilic component to the defendant’s offending behaviour, however, it was difficult for him to give a definitive opinion in that regard.

109 Dr Nielssen stated, having regard to the defendant’s history of conduct and pattern of offending that he met the criteria of “anti-social personality disorder”. He also observed that he meets the accepted criteria for the diagnosis of an alcohol abuse disorder. In oral evidence he stated that “… alcohol is his main risk factor” (transcript p.136, lines 15 – 20), adding that he has had “… a pretty serious alcohol abuse disorder …” noting, according to the history given to him by the defendant that nearly all of his offences and all of his sexual offences had occurred whilst affected by alcohol (transcript p.136, lines 15 – 20). He emphasised that appropriate intervention by way of a treatment program should seek to deal with his alcohol abuse disorder as the main issue in terms of the future management the identified risk, adding:-

and whatever can be done to reduce relapsed alcohol abuse will, I believe, greatly reduce the risk of further offences.”

110 Dr Samuels noted the defendant’s lengthy history of conduct disorder and anti-social history and its relevance:-

In terms of Mr Quinn, he has had some employment from time to time, he doesn’t really have an, I suppose, a life plan and in terms of where to from here. He plans to live with is fiancée but he doesn’t have a very clear plan. I suppose, in terms of addressing the sexual offending behaviour as far as I can see, addressing the alcohol abuse. He feels the alcohol abuse is under control but there really is limited, I suppose, evidence to say that it is. So …, I felt that he was somewhat unrealistic in terms of where he was, how he was proposing to manage his situation in the community given his past history.

111 In terms of his past offending, he noted that some of his sex offending had been opportunistic and that he had been in an intoxicated state when the victim’s presence at a particular point of time coincided with his, adding, “…and the offending occurred. I don’t think it is planned or premeditated. I think it is … impulsive …”

The defendant’s alcohol abuse disorder

112 In both his report and in his oral evidence Dr Samuels identified the role alcohol abuse has played in the defendant’s criminal history. It was, similarly, a key factor in determining the defendant’s assessed risk of re-offending. The Crown Advocate asked him:-

“Q You would see alcohol as a major prognostic feature to his risk of re-offending? A. I would see it as being a key factor in offending. I believe that when he becomes intoxicated he becomes less inhibited and acts in an aggressive manner. Sometimes sexually, sometimes in a generally violent manner, but alcohol seems to be a very important mediator of the aggression

113 This theme of the causal interrelationship between the defendant’s alcohol abuse disorder and his past sexual behaviour and aggressiveness is evident throughout Dr Samuels’ analysis. He was asked by the Crown Advocate whether the defendant remained at a high risk of a relapse of alcohol abuse, having regard, in particular, to its remission whilst in custody. He confirmed that he considered that there remained a high risk of a relapse:-

“Q That is taking into account his chronic history? A. Yes, and the fact that he has, appears to have slipped back into a pattern of alcohol use fairly quickly after being released from incarceration.”

114 In commenting upon his risk assessment Dr Samuels emphasised the opportunistic and impulsive nature of his past offending, observing that it could take months or even years before a set of circumstances emerged in which the defendant was intoxicated in combination with other circumstances. However, he also stated that it is certainly possible that the defendant could be released from custody and nothing could happen for a prolonged period or never (transcript 17 July 2007 at p.27, lines 45 – 50). He once again emphasised the alcohol disorder and its potential role:-

“… but certainly based on history, based on his personality structure, based on his risk of – and I would see it, as I’ve said before, I think alcohol has been a critical mediator of all of this, based on whether or not he drinks again, and that, that taking all of those factors into account that he is, and I would say more than … medium risk but not quite, not absolutely high …”

115 Dr Samuels stated in his report:-

Mr Quinn has a history of severe alcohol abuse since his teenage years. His general criminality and sexual offending appears to be related to his substance misuse. In my view he remains at high risk of relapse of alcohol abuse. I would see this as a major prognostic factor in terms of all types of future offending

116 In cross-examination by Mr Austin, Dr Samuels confirmed that the alcohol abuse problem was “an integral component of his offending”.

117 The evidence established that the defendant has undertaken some alcohol counselling programs or courses whilst in custody. However, Dr Samuels agreed when it was put to him by Mr Austin that the fact that he had undertaken such alcohol counselling in custody would not change his opinion “… that he needs supervision in relation to alcohol, certainly upon any release into the community, if his risk of re-offending is to be reduced” (transcript 17 July 2007 at p. 67, lines 40 – 45).

118 Dr O’Dea also considered that the defendant’s offending was consistent with anti-social personality traits and that his general personality “is likely to have been significantly impacted upon by his alcohol and other drug use in the circumstances of his incarcerations” (paragraph 55 of his report).

119 Dr O’Dea stated that he tied the defendant’s alcohol abuse to his offending behaviour (quote p.97). He considered it appropriate for there to be a program to deal with the defendant’s alcohol problem, including the use of appropriate medication to control the urge to drink alcohol. He also stated that “psychotherapeutic interventions” could be implemented by way of treatment programs involving both psychiatrists and psychologists and other healthcare professionals, the intervention of psychologists being based on the cognitive behavioural therapeutic approach which is available in the community. The doctor considered that the defendant would only have limited benefit from “psychological treatment alone”.

120 Dr O’Dea stated:-

In my view I think the key intervention is going to be abstinence from alcohol as a key thing to reduce his risk …”

121 Dr O’Dea was asked:-

HIS HONOUR: Q. Is it your view that a person who does have a history of chronic alcohol abuse needs to, in order to overcome the problem, engage in more than mere abstinence, but needs to have some sort of treatment, therapy or assistance of some kind?

A. The short answer is for a lot of people yes. I don’t think for everybody but I think a lot of people and I certainly I think Mr Quinn would fit into that group”

122 Dr O’Dea referred to treatment and other support mechanisms including particular medications that are designed to control the craving for alcohol and involvement in organisations such as Alcoholics Anonymous.

123 He stated that the “key issue” was going to be the defendant’s “motivation to stop himself drinking” and that “… what’s going to be important is him marshalling his own will power to remain abstinent from alcohol and that’s going to be the key issue” (transcript 101, lines 5 –15). He added that a treating psychiatrist would be in an ideal situation to monitor his ability to resist alcohol and, if necessary, to offer medication to assist him. (transcript p.101) He agreed, when it was put to him, “… this key risk factor is becoming intoxicated and potentially disinhibited and offending in those circumstances” (transcript p.101, lines 40 – 45).

124 Mr Austin put to Dr O’Dea:-

“Q … The most significant matter that needs to be dealt with in your opinion is past alcohol dependence and abuse, and it is your opinion that if he were not to be abusing alcohol in the community his potential for re-offending in the community drops significantly, he is at far less of a risk to offend if he is not abusing alcohol.

A. I think I would accept that. It is very difficult to be precise about far less. I think it is likely to have a significant impact upon his risk of re-offending.”

125 He added that a treating psychiatrist could prescribe the required medication in relation to both problems but the need for such medication would better show itself during the course of therapy. He indicated that a psychiatrist experienced in those two areas would be the person to assess the need for medication assisted treatment. The issue of consent to medication may flow from a condition of release that required the defendant to subject himself to treatment as and when directed by a treating psychiatrist.

126 Dr Nielssen, like Dr Samuels and Dr O’Dea, related the defendant’s risk of further offending to his future use of alcohol, noting that his adherence to a condition of abstinence could be assisted by a prescription of anti-craving medication such as Acamprosate (Campral) and Naltrexone (Revia). He further observed that the consumption of alcohol can be readily monitored by a newly available test, Carbohydrate Deficient Transferrin (CDT). He observed that, by reason of the defendant’s impulsive personality, he was more at risk of acting on impulse when uninhibited by alcohol:-

I believe his risk of further offences, particularly offences of a sexual nature, is directly related to his future alcohol use.”

127 In his written submissions (p.10), Mr Austin submitted that Ms Klamer had expressed her opinion that the defendant externalises his responsibility for sexual offending behaviour to alcohol abuse and to his victims, but that this was the only reference that she made to alcohol. He submitted that there was no suggestion that abstinence from alcohol would play any part in a risk minimisation strategy for the defendant.

128 Mr Austin correctly submitted (p.10):-

“8. The clear evidence of Dr Samuels and Dr O’Dea is that the abuse of alcohol has played a significant role in all of Mr Quinn’s past criminal offending. This covers the range of offences sexual and non-sexual nature. They are both of the opinion that minimising any risk of Mr Quinn committing a further sexual offence upon release into the community is dependent upon him continuing to abstain from alcohol consumption. They both suggest that appropriate treatment for his underlining (sic) personality disorder would be available in the community the ongoing counselling of, for example, a supervising psychiatrist. The real concern is that Mr Quinn presents a serious risk of re-offending if upon his release he returns to his past lifestyle of alcohol abuse.”

129 Mr Austin further submitted (p.11):-

“9. It is significant that in Dr O’Dea’s opinion there is nothing that could be done in custody to ameliorate the risk that upon release into the community Mr Quinn will return to the use and abuse of alcohol in those changed circumstances. The danger that Mr Quinn may begin to consume alcohol upon release into the community is the central consideration in the opinion of all the psychiatrists. It is this concern upon which the opinion that there is a serious risk that Mr Quinn may commit a further sexual offence upon release is based. In view of this any further participation in the CUBIT program is of little relevance when considering risk minimisation upon release.”

The CUBIT program

130 The custody-based intensive treatment program (CUBIT) is described as a high intensity, prison-based therapeutic program for male sex offenders. It is designed to minimise the risk of such persons re-offending when they are released from prison. According to evidence given by Mr Bright, forensic psychologist and Therapeutic Manager of the CUBIT program, the fundamental principle upon which it is premised is that the intensity of the treatment should match the risk at which the offender has been assessed. The program involves full-time residence in a therapeutic environment that includes group-based therapy sessions in addition to ongoing homework tasks and input from specially trained custodial staff who provide supervision and ongoing support. The program is designed for sex offenders with a moderate to high risk of re-offending.

131 Offenders admitted to the program are accommodated in a special, self-contained 40-bed unit located in the Metropolitan Special Program Centre at Long Bay Correctional Centre. The first intake into the program occurred in 1999.

132 Offenders who enter the program practise newly acquired skills, behaviours and attitudes with feedback and advice from trained psychologists and custodial officers. The program runs, on average, for about eight months although the precise length of the course would depend upon the progress of an individual participant. The new program is described in a document entitled “Institutional Programs for Sexual Offenders, CUBIT, Core and Custodial Maintenance” Exhibit DA1 (tab 9 to the affidavit of Mr Bright). Dr Samuels commented that the CUBIT program is a traditional cognitive behaviour therapy program, which looked at understanding the offence cycle, victim empathy, relapse and other issues. He stated that it adds in the component of social skills, training and addresses issues of anger management and alcohol abuse.

133 Mr Bright’s evidence was that group therapy is almost universally recognised as the treatment modality of choice with sexual offenders. The majority of such treatment programs are run using a cognitive behavioural approach in a group format. He did observe, however, that:-

… however, it should be noted that despite sound theoretical rationales for employing group therapy rather than individual therapy, and despite the preference for group therapy among the majority of sexual offender treatment providers, there is little evidence of differential treatment efficacy with adult sexual offenders …”

134 Mr Bright also referred to studies which indicated that there was no significant difference in the rate of recidivism between two groups of comparable high risk sexual offenders who underwent a combination of group and individual treatment or individual treatment alone.

135 Mr Bright further stated that the formation of meaningful interpersonal relationships is recognised as one of the main “curative factors” of group therapy. In paragraph 41 of his affidavit, he identified the reasons why group based interventions for sexual offenders are preferred to individual interventions. The evidence, accordingly, does establish the benefits that may be derived from a program such as CUBIT. However, the evidence also leaves open the prospect that individualised treatment can, in the hands of a skilled psychiatrist or psychologist, produce results that reduce the risk of re-offending.

136 Mr Bright also emphasised that the final component of the CUBIT treatment program puts together a self-management plan for the offender which is designed to help him manage his risk of re-offending. This last component of the program is critical in terms of treatment progress and effective risk management of the offender.

137 Mr Bright’s opinion was that treatment for high risk sexual offenders is, in his view, likely to be ineffective when an offender starts but does not complete a program. He also observed that research supports the proposition that treatment is ineffective when a person starts but does not complete a treatment program such as CUBIT. That is an observation that has potential application to the defendant who commenced the program in 2003 but withdrew from it.

Application of the CUBIT program to the defendant

138 The evidence called by the plaintiff addressed the potential benefits of the program to the defendant.

139 The defendant, according to Mr Bright, was classified by the Department as a high risk sexual offender which meant, according to Mr Bright, that he was assessed as being “… of a high risk of sexual recidivism …”. The defendant’s current sentence was due to expire, as earlier noted, on 13 May 2007.

140 Mr Bright performed a risk assessment on the defendant and he identified documentation utilised for that purpose (paragraph 10). He explained that a fundamental principle upon which the CUBIT and DCS Sexual Offender Treatment Programs are premised, is that the intensity of the treatment program should match the risk at which the offender has been assessed. In this respect, he stated that high risk offenders, such as he suggested was an apt description of the defendant, should receive high intensity treatment.

141 The evidence indicates that the treatment afforded by these programs should address the “… criminogenic needs or dynamic risk factors of the offender …” (paragraph 17). The aim of such treatment is to reduce the likelihood of recidivism by changing those dynamic risk factors.

142 According to Mr Bright (paragraph 24):-

“During the program, and as an essential part of their treatment, participants are expected to take responsibility for their offending behaviour, examine victim issues, identify their offence cycle, and develop a detailed relapse prevention program. During the treatment program, one of the first tasks that an offender needs to undertake is to discuss (‘disclose’) all of their sexual offending behaviour. Acknowledging and taking responsibility for offending behaviour can be positive experience for offenders and helps in identifying risk factors.”

143 The participants in the program are expected, whilst remaining in a custom-build environment, to be working on the new skills that they are learning for the whole period of their confinement.

144 Mr Bright explained in his affidavit what he termed “the new CUBIT program” (Exhibit DAB1, Tab 9 to his affidavit, paragraph 28 of his affidavit). This refers to the introduction of “a maintenance program” which is held one morning per week. This component of the course is said to include “… streamlining and improvement of self-management programs for each offender which addresses his dynamic risk factors …” (paragraph 30).

145 CUBIT, as I understand the evidence, employs a cognitive behavioural approach in a group format. Mr Bright explained that sexual offending involves behaviour in which sexual offenders tend to demonstrate pervasive deficits and distortions in interpersonal relationships. Accordingly, so Mr Bright contended, group treatment “… is a highly beneficial modality …” (paragraph 37). He stated that acquiring new ways of thinking and interpersonal behaviour group processes have advantages over traditional individual treatment.

146 He stated that group based approaches represent a way of countering the isolation and alienation that is often experienced by sexual offenders (paragraph 39).

147 Dr Samuels reported on the defendant’s mental status examination and he specifically addressed issues concerning risk assessment at pp.14-15 of his report. He observed that:-

“… I thought that there was shallow affect; callousness and lack of empathy; poor behavioural controls; early behavioural problems; lack of realistic long-term goals; impulsivity; irresponsibility; failure to accept responsibility for own actions; juvenile delinquency; revocation of conditional release and criminal versatility.”

“A significant component of his score is derived from ‘factor 4’ – antisocial behaviours (juvenile delinquency; revocation of conditional release and criminal versatility) and ‘factor 3’ – affective (lack of remorse; shallow affect; callous; failure to accept responsibility). This suggests a significant antisocial component to his personality.”

(c) Dr Samuels re-scored the defendant on the STATIC-99 and concurred with Ms Klamer’s score that Mr Quinn scored at least nine.

(d) On the SORAG (Sex Offender Risk Appraisal Guide), the defendant was scored between 25 to 30 on the basis of not having lived with biological parents until 16, elementary school maladjustment, history of alcohol problems, marital status at time of offence, criminal history, failure on prior conditional release, age at index offence and score of 25 to 34 on PPCL-R. That score rated the probability of violent recidivism at seven years as being 0.75.

(e) In relation to dynamic risk factors, the defendant had a number of such factors including “a chronic pattern of sexual violence (at least 20 years); escalation of sexual violence; physical coercion in sexual violence; psychological coercion in sexual violence; extreme minimisation of sexual violence; attitudes that condone sexual violence; psychopathic personality disorder; problems with substance use; violent ideation; problems with intimate relationships; problems with employment; non-sexual criminality; problems with supervision” (p.15).

“rapist”

“… his crimes appear to have been opportunistic and alcohol a disinhibitor. His choice of adolescent female victim may well relate to a perception that a young girl may be less inclined to fight back or resist his attack.”

(g) He was unable to identify evidence to suggest any major mental illness in the form of an affective, anxiety or psychotic disorder. He said that the defendant had features which were suggestive of “Conduct Disorder” as an adolescent and “Antisocial Personality” features as an adult.

(h) There are inherent limitations in all forms of risk assessment purporting to predict future dangerousness of offenders. A review of sex offender treatment literature, treatment indicated variable outcomes and participant selection is a critical factor. He added that the defendant’s resistance to treatment may well be significant in terms of risk of future recidivism, adding that “… coerced participation in the CUBIT program will not necessarily reduce his overall risk” (p.17).

(i) The defendant had a moderate to high risk of sexual re-offending. He related his substantive criminal history, being one involving violence, to the defendant’s history of serious alcohol problems and antisocial personality features.

“… in my view, he remains at high risk of relapse of alcohol abuse. I would see this as a major prognostic factor in terms of all types of future offending.”

148 Dr Samuels observed:-

… I think continuing detention for the sole purpose of doing the CUBIT program is in my view unlikely to significantly alter his risk status. There may well be some rationale for detaining him in custody for other purposes.

149 Dr Samuels again stated:-

but in my view for the sole purpose of detaining him to complete the CUBIT program I see very limited benefit and I believe that at the end of completing that program we will be sitting in this courtroom looking at the same issues, because it will be very difficult to say that his risk has materially changed.”

150 Dr Samuels’ additional observations included the following:-

• He did not see a very clear rationale for detaining the defendant solely for the purpose of completing the CUBIT program.

• If the defendant undertook the program, that in itself would not necessarily lead to a material change in his risk of re-offending.

151 As Dr O’Dea understood it, the CUBIT program was not specifically directed at alcohol and other drug management issues (transcript 17 July 2007, page 95, lines 10 – 12). Other evidence indicated that components of the program, at least, address those matters, but not in terms of a supervised medical program.

152 The defendant entered the CUBIT program on 17 March 2003 but was discharged from it on 5 May 2003. He had twice been suspended from the program and on 5 May 2003, requested that he be able to leave the program. He was discharged on the basis of his request together with his poor treatment progress to that point in time.

153 On 16 August 2006, the defendant wrote inquiring about re-entry into the program (Exhibit DAB-1 to Mr Bright’s affidavit).

154 Between 29 August 2006 and 6 October 2006 there was correspondence which was tendered in evidence between the defendant and Mr Bright. In his letter dated 14 September 2006, the defendant confirmed that he wished to re-enter the program but made it clear that he would not be prepared to admit his guilt in respect of the last offence. He sought agreement to his re-entry on this basis. Mr Bright stated that he read Mr Quinn as seeking to dictate and impose conditions upon his proposed re-entry to CUBIT.

155 Further correspondence ensued on this matter between October and November 2006. Mr Bright stated that the defendant’s letter still raised issues of concern regarding his readiness to undertake treatment in accordance with the disclosure obligations in the CUBIT program. By November he stated the defendant would have had insufficient time to undertake and complete the program before the expiry of his then current sentence in May 2007.

156 I will return to the issue of the defendant’s participation, in any, in the CUBIT program at some point in the future.

Extended supervision

157 Dr Samuels addressed the alternatives of continued detention and extended supervision. In relation to the former, he noted that such detention would provide the defendant with an opportunity to complete the CUBIT program and for more suitable accommodation to be found, although expressing reservations, as noted above, about the value of such intervention. In this respect, he emphasised “… as I have already highlighted, even if Mr Quinn completes the CUBIT program and is then regarded as a ‘treated’ sex-offender, his level of risk may not in fact be substantially reduced”.

158 In relation to the issue of extended supervision, Dr Samuels stated:-

“This (extended supervision) would, in my view, be the key to reducing his medium to long-term risk of re-offending and should incorporate the following elements:-

1. A period of placement in a supervised accommodation setting (not to live initially with fiancée);

2. Follow-up with a psychiatrist with ext with expertise in dealing with sex offenders. (Some suitable experts would include Prof D Greenberg, Dr S Allnutt and Dr J O’Dea.) This would allow further and ongoing assessment of a possible paraphilic component and further consideration of the role of anti-androgen medication;

3. Abstinence from alcohol and mandatory attendance for drug and alcohol treatment in the community.

4. To be placed on sex offender register;

5. To have a curfew in place;

6. To have restrictions placed on travel;

7. Daily reporting requirements;

8. Not to be in company of females under the age of 17 unsupervised;

9. Random alcohol breath tests;

10. Outpatient monitoring follow-up via community sex offender treatment program and possibly follow-up via Justice Health Community Forensic Mental Health tem led by Dr Andrew Ellis which is providing some supervision and monitoring of sex offenders;

11. Any alcohol related offence, violent offence of any kind or public intoxication to be regarded as breach of conditions.”

159 Dr Nielssen, in oral evidence, stated:

… I would agree largely with the management plan suggested by Dr Samuels. Obviously the largest risk factor in this individual’s case is alcohol abuse and so the first measure that will be required will be some way of monitoring continued abstinence from alcohol. It will also be recommended that he have individual counselling after release to ensure or at least to raise issues relating to any relationships he may have.”

160 He stated that individual counselling by a psychologist or psychiatrist with specialised experience in sexual offending would be recommended. Most psychiatrists, he observed, would have some experience in drug and alcohol abuse problems. Dr Nielssen agreed that to contemplate the defendant’s return to the community there would firstly be a requirement to assess how his alcohol abuse disorder was to be managed and that, in turn, would require the input from a psychiatrist or other specialist experienced in the treatment of alcohol abuse disorders. The purpose of the assessment would be to determine appropriate treatment based on both cognitive behavioural therapy and to assess treatment requirements, including, in particular, anti-craving medication. An aspect of a rehabilitation plan, Dr Nielssen also observed, would involve assistance to the defendant in the development of a “life plan” which would include his placement, initially, in voluntary work, if paid work were not immediately available, as an antecedent step or progression to paid work, and assistance in securing appropriately supervised accommodation upon release.

161 In the Defendant’s Outline of Submissions, p.15, the following submission was made:-

“This Court may finally determine that Mr Quinn is likely (in the ordinary sense of the word) to commit a further serious sex offence if he is released into the community in circumstances where he is under no supervision and receiving no assistance in relation to his issues around the abuse of alcohol. The community certainly would be protected if an appropriate extended supervision order were in place. He should not be subjected to a further five year period of incarceration and the Court should consider orders which would allow for the necessary factors to be in place upon his release which would allow him to comply with a supervision order which would be consistent with the type of order envisaged by Dr Samuels and considered appropriate by Dr O’Dea and Dr Nielssen.”

162 In his oral submissions, Mr Austin emphasised:-

• The independent medical evidence had “shifted the focus” of the proceedings to that which was available at the time of the hearing at which the interim detention order was sought.

• On the assumption that I were to follow and apply Bell J in the construction of s.17(3) of the Act ( Tillman’s case (supra)), it was difficult for him to submit that, on the evidence, the defendant was not “… likely to commit a further serious sex offence if he … is not kept under supervision” : (s.17(3)). He submitted the position is otherwise if “likely” in s.17(3) has the meaning he contended for.

• The medical evidence would support a conclusion that adequate supervision can be provided by an extended supervision order and that such an order should be made.

• The evidence of Dr Nielssen suggested that he was a person who could, in co-operation with prison authorities, assist in the provision of appropriate accommodation for the defendant and the involvement of a person responsible for administering appropriate therapy or treatment.

• If the Court concluded that an appropriate supervisory regime could be put in place, then it should only make an order for continued detention for a relatively short period of time. That would carry with it the expectation that there would be a further application under the Act by the Attorney General. By the time that application was heard, evidence may be available which would indicate that an extended supervision order could then be implemented.

• The establishment of an adequate supervisory regime following assessment of all relevant factors could constitute changed circumstances sufficient to warrant the making of an extended supervision order upon the expiration of a continuing detention order that operates for a limited term.

Post-release support and supervision issues

(a) Available support services in the community

163 Until recently the evidence indicates that there has been little by way of progress for high-risk sex offenders in the community. Currently, the Corrective Services Sex Offender Program does not offer a high risk program in the community. Dr Samuels indicated there was “a range of other providers in that there are a number of psychiatrists who do see sex offenders in the community through Medicare” (p. 74, lines 50 – 55). Dr Samuels indicated that through the extension of medical benefits to psychologists presumably all programs run by psychologists would also be available. He confirmed that there were currently no community-based programs available for high risk six offenders.

164 On the last day of the hearing (26 July 2007) the Crown Advocate tendered Exhibit O, which is a letter written by Mr Weir, dated 25 July 2007, advising that the position as related by him in evidence had changed. The letter refers to the fact that the Department of Corrective Services recognised the need to develop a high intensity treatment program in the community. The Commissioner had approved the creation of two full-time psychologists’ positions for the purpose of using those two positions to create a community-based high intensity sex offender treatment program. The program is not likely to be operational in the community for at least six months.

(b) Developing a management plan for future supervision

165 Mr Austin, in his final submissions, correctly, in my opinion, emphasised the need to look ahead to the development of a management plan along the lines recommended by Dr Samuels that will provide the support and safeguards required for the defendant’s release. Efforts that are properly directed to custodial programs and treatment in custody are essential but not alone sufficient. Any continuing detention order must operate upon the basis that the detention will prepare the offender for release. The development of a management plan (discussed below) is essential.

166 Dr O’Dea stated, on the subject of a management plan to operate after release: -

in a structured and supervised management program on Mr Quinn’s release to the community, including specific focus on assisting him to control his use of alcohol and other drugs and to control any sexually deviant urges or sexually deviant fantasies, is likely to be more appropriate from a risk perspective and is likely to prove more effective

167 The evidence of Dr Samuels casts doubt upon the extent of the benefits, that the defendant may obtain from participating in the CUBIT program in circumstances in which the key issue concerning his alcohol abuse disorder is not properly treated as a medical problem. Whilst the evidence of the psychologists relied upon by the plaintiff suggests that he could benefit (Mr Ware‘s evidence was that the CUBIT program is apt to be able to assist an offender with an alcohol abuse disorder), there remains the important question as whether the CUBIT program alone would be sufficient or adequate in reducing and managing the defendant’s risk of re-offending. Dr Samuels stated in this respect:-

“… my concern about detaining him in custody for the purpose of a psychological treatment program is that I am not certain that at the end of completion of that program, even if he has a certificate in his hand, his risk profile will have changed.”

The issues of “risk” and “rehabilitation”

168 The evidence relied upon by the plaintiff was principally directed to the issue of the “risk” of the defendant re-offending by committing sex offences if released from custody and upon the issue of the CUBIT program and the benefit that it may bring to the defendant in terms of his assessed risk of sex offending. A number of aspects of those two principal issues were explored in evidence.

169 The evidence strongly supports the following:-

(a) The defendant’s history of sex offences and his assessed future risk of committing such offences in the future is related to both an antisocial personality disorder and to his alcohol abuse disorder.

(b) The alcohol abuse disorder has been in remission for many years whilst he has been in custody. Alcohol abuse has a historical causative link in the defendant’s past history of sex offending. Drs Samuels, O’Dea and Nielssen all share the opinion that the risk of future offending is directly related to any relapse leading to the use of alcohol and that is a “key” issue affecting the future risk of offending and his prospects of rehabilitation.

(c) In order to reduce the assessed risk referred to in (a) and (b), there is a need to support the defendant’s prospects of rehabilitation by therapy and related assistance which targets both the personality disorder that is related to a propensity for sex offending (eg., by the CUBIT program) and his alcohol abuse disorder which is presently in remission by appropriate therapy or treatment (in particular, by means of a psychiatrist-supervised program that addresses addiction propensities which are susceptible to relapse).

(d) The evidence in the plaintiff’s application addressed the first (personality issues related to his sex offending), but not the second (the strategy to prevent a relapse of his substance abuse disorder).

(e) Whilst the defendant has undergone alcohol counselling courses in custody (see the schedule entitled “Some References to DCS Documents (and DSC psychologists) and Quinn and Alcohol” , 25 July 2007) in the past, such courses do not constitute the supervised relapse prevention treatment or therapy referred to in the evidence of the consultant psychiatrists.

(f) As there is presently no program or strategy in place directed at the defendant’s alcohol abuse disorder in order to prepare him for his release from custody, the CUBIT program is unlikely to “facilitate the rehabilitation” of the defendant as a serious sex offender that being one of the principal objects of the Act: s.3(b).

(g) It follows that any “continuing detention” of the defendant imposed under an order made under s.17 should only occur in circumstances in which both disorders referred to in (a) above are addressed by appropriately qualified personnel. Anything less than that carries with it the real prospect that the defendant will remain without the assistance the medical evidence indicates is essential for his rehabilitation.

(h) It is equally essential that the defendant is willing to participate in treatment programs to which I have referred and that he does so on a bona fide basis.

170 There remains for consideration the determination of whether any order should be made as sought in the application and, if so, the type of order and its terms.

(a) On the evidence, no other conclusion can be reasonably reached other than that there is a moderate to high risk of the defendant committing a serious sex offence if released into custody.

(b) In terms of s.17(3) of the Act, I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. In reaching that conclusion, I have regard, in particular, to the safety of the community (s.17(4)(a) of the Act) and to the evidence of both the examining psychologist, Ms Klamer, and the consultant psychiatrist (s.17(4)(b) of the Act).

• the nature and circumstances of the defendant’s past sex offending conduct;

• the nature of his personality disorder;

• the history of the defendant’s past breaches of parole (s.17(4)(f) of the Act);

• the defendant’s limited participation in the CUBIT program;

• the fact that, although he will require supervision and support upon his eventual release from custody, no plan has yet been developed to this end.

171 I, accordingly, am of the opinion that the application should be determined by the making of a continuing detention order under s.17 of the Act for a period of 12 months.

172 In the course of the hearing, I raised a question as to the Court’s power to impose conditions on a continuing detention order made under s.17 of the Act. In the “Plaintiff’s Supplementary Note” dated 1 August 2007, the plaintiff submitted that the Court does not have such a power. Mr Austin, in his reply submission, accepted that position. In the Plaintiff’s Supplementary Note (paragraph 18), it was accepted that nothing in the terms of the Act would prevent the Court from including, in its reasons for judgment when making a continuing detention order, recommendations regarding matters relating to the rehabilitation of the offender while in custody, including matters as to treatment, assessment and implementation having regard to the expert evidence that the Court has heard in the proceedings. The Crown Advocate, with respect, properly observed “the Court would expect that proper regard would be had to any such recommendations”.

173 In Attorney-General (Qld) v Francis [2005] QSC 381; (2005) 158 A Crim R 399, the first yearly review of a continuing detention order made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (after the expiry of the respondent’s sentence) was before the court. At the time of making the original order, the court was told of a commitment by the Department of Corrective Services to implement a treatment plan which would involve some release of the respondent into the community. Under the relevant legislation, there was no provision for the court to place conditions on the continuing detention order. At the time of the first yearly review of the order, some aspects of the plan, including completion by the respondent of a substance abuse and managing relapse program, had been achieved. However, a number of other aspects of the treatment plan (including release) had not been carried out.

174 In light of the treatment plan not having been completely carried out, the Supreme Court of Queensland ordered that the respondent continue to be subject to the continuing detention order as it was determined that he remained a serious danger to the community and that the risk could not be managed by a supervision order.

175 Mackenzie J stated, at paragraphs 31-33:-

“The case of a person detained indefinitely for the protection of the community, especially one where there is evidence that treatment and gradual return to the community may provide some hope that the person may afterwards cease to be a serious danger to the community, is one where steps to achieve that end ought to be taken promptly. The objective of the legislation is that care and control by way of imprisonment should continue for only so long as there is acceptable cogent evidence to a high degree of probability that the person is a serious danger to the community because of unacceptable risk that he will commit a serious sexual offence if released from custody. "Treatment" is one of the three reasons for retaining the prisoner in custody after his sentence is completed.

Where there is, as in this case, medical evidence supporting the possibility of reintegration of the prisoner into society after treatment issues have been addressed, it is incumbent on his custodian to ensure that the suggested treatment occurs.

…

It cannot be lost sight of that the Act is concerned with preventative detention after the prisoner would otherwise have been released by effluxion of his finite sentence. Undue protraction of incarceration of the person because administrative procedures either do not exist to enable him to rehabilitate sufficiently to be released, or to prove that the actual risk in his case is not unacceptable, or because the administrative procedures unduly delay such rehabilitation or proof, is hard to convincingly justify. The Act is, after all, intended by its terms to allow continued detention only for as long as the unacceptable risk to the community clearly exists. It is not intended to lock up people and throw away the key if they may have prospects of rehabilitation to an extent where they can be released, given the opportunity, but are denied that opportunity due to administrative or procedural inadequacies.”

176 Mackenzie J also stated, at paragraphs 135-137:-

“The reason for raising the issues just discussed is not to make gratuitous criticism of the Department. It is to raise an important issue, that unless procedures exist for this special class of prisoner, the difficult question of drawing the boundary between making a continuing detention order which involves further imprisonment, or a supervision order, which does not, will have to be addressed more acutely than is necessary in this case. Of all kinds of prisoners, this category, if ready to be integrated back into the community by staged release, will need intensive supervision at least in the early stages to ensure that the conditions of release are strictly observed.

…

Lack of some kind of scheme under which prisoners of this category can be supervised intensively in the initial period of the stage of release is a serious deficiency. In particular, the lack of a facility in which the prisoner can reside where someone has authority to deal with and responsibility for dealing with observance of the terms of release seems to me to be a minimum requirement in the interests of the protection of the community. If that cuts across existing or proposed Departmental policy, the policy may have to be reconsidered in relation to this category of prisoner. If it requires significant commitment of resources, even though the Department may wish to deploy them in other ways, hard decisions will have to be made.

If the Department provides no means of effectively staging release of this category of prisoner back into the community, it may be that decisions about whether to further deprive a person of liberty, beyond the term of imprisonment imposed when the person is originally sentenced, will have to take that into account. It will have to be put into the balance, along with the fact that preventive detention is an extraordinary sanction, the consequences that flow from it by reason that it allows potentially open-ended deprivation of liberty and the inherent element of uncertainty in predicting further offending.”

177 Whilst the provisions of the Queensland Act considered in the above case are not identical to those in the Act the subject of the present proceedings (e.g. the differently worded test in s.17(3) of the Act and s.13(2) of the Queensland Act and the review provisions in s.30 of the latter Act) there is in my opinion sufficient similarity between them to render the above observations both relevant and significant in securing the shared objectives of both statutory schemes (s.3 in both Acts), namely, the protection of the community and the rehabilitation of serious sex offenders.

178 I recommend that:-

(a) Advice be obtained from a consultant psychiatrist as soon as practicable in relation to any assessment and treatment considered necessary for the defendant’s rehabilitation in light of the evidence in the present proceedings.

(b) That a supervised program be devised and implemented in accordance with any assessment and advice referred to in (a), such program to be reviewed by a consultant psychiatrist at such intervals as are practicable.

(c) That a management plan be developed in preparation for the defendant’s eventual release from custody including, in particular, a supervised program of monitoring and support with appropriate protective measures. In the development of such a plan, consideration should be given to the approach and arrangements that will be required for the implementation of the “elements” of extended supervision outlined by Dr Samuels in his report dated 30 May 2007, pp.18-19.

179 The above recommendations are made upon the basis that there will exist during the term of the continuing detention order the necessary willingness and participation of the defendant.

Orders

180 Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Peter Andrew Quinn is to be detained in a correctional centre for one year from the date of this order (10 August 2007).

181 Pursuant to s.20(1) of that Act, I issue a warrant for the committal of Peter Andrew Quinn to a correctional centre for the duration of the continuing detention order referred to in [180].

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Citations

Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873

Most Recent Citation

Raad v Gedeon [2022] ACTSC 337

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Cases Cited

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Statutory Material Cited

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Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456

Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340

TSL v Secretary to the Department of Justice [2006] VSCA 199

CITATION:	ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v QUINN [2007] NSWSC 873
HEARING DATE(S):	16, 17, 18 and 25 July 2007
JUDGMENT DATE :	10 August 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, the defendant is to be detained in a correctional centre for one year from the date of this order (10 August 2007). (2) Pursuant to s.20(1) of that Act, I issue a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in (1).
CATCHWORDS:	Criminal law – Crimes (Serious Sex Offenders) Act 2006 (NSW) – application for continuing detention order – nature of the statutory standard prescribed as to the probability that a particular offender is “likely” to commit a further serious sex offence - s.17(3) of the Act – the construction of s.17(3) and the nature of the test under that provision – judgment of the Court (Bell J in Attorney-General of NSW v Tillman [2007] NSWSC 605 in relation to the construction of s.17(3) followed and applied – recommendations made for the administration of appropriate therapeutic and other assistance to assist the defendant’s rehabilitation, that being one of the objects of the Act and for the development of a management plan for the future release of the defendant
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900 The Serious Sex Offenders’ Monitoring Act 2005 (Vic) Interpretation Act 1987
CASES CITED:	Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for the State of NSW v Quinn [2007] NSWSC 456 Attorney General for New South Wales v Tillman [2007] NSWSC 605 Boughey v The Queen (1986) 161 CLR at 10 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 La Macchia v Minister for Primary Industries and Energy (1992) 110 CLR 201 Mustac v Medical Board of Western Australia [2007] WASC 128 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Regina v Abbrederis [1981] 1 NSWLR 530 Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCA 35 TSL v The Secretary to the Department of Justice [2006] VSCA 199
PARTIES:	ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v QUINN, Peter Andrew
FILE NUMBER(S):	SC No. 12005 of 2007
COUNSEL:	P: L Babb/D T Kell D: M Austin
SOLICITORS:	P: I V Knight D: S E O'Connor