Attorney-General for the State of New South Wales v Tillman

[2007] NSWSC 356

CITATION:	Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 356
HEARING DATE(S):	16/04/2007
JUDGMENT DATE :	17 April 2007
JUDGMENT OF:	Hoeben J at 1
DECISION:	Defendant subjected to interim extended supervision for a period of 28 days subject to conditions.
CATCHWORDS:	Application - interim continuous detention order - interim extended supervision order - sex offender - legislative purpose - protection and rehabilitation - standard of proof - whether defendant requires supervision - procedural fairness - psychologist's evidence - actuarial risk assessment - sexual recidivism risk - participation in treatment programs.
LEGISLATION CITED:	Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 Crimes (Serious Sex Offenders) Act 2006
CASES CITED:	Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Boughy v The Queen (1986) 161 CLR at 10
PARTIES:	Attorney-General for New South Wales - Plaintiff Kenneth Davidson Tillman -Defendant
FILE NUMBER(S):	SC 11830/2007
COUNSEL:	Mr L Babb/Ms A Mitchelmore - Plaintiff Mr A Haesler SC - Defendant
SOLICITORS:	IV Knight, Crown Solicitor - Plaintiff SE O'Connor, Solicitor for Legal Aid Commission of NSW - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Tuesday 17 April 2007

11830/2007 – ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v Kenneth Davidson TILLMAN

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
On 11 April 2007 the Attorney General for New South Wales (the plaintiff) brought an application under the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) by summons seeking a “continuing detention order” or alternatively a “extended supervision order” with respect to the defendant.

2 The defendant is presently imprisoned at the Long Bay Correctional Centre. His sentence expires on Wednesday 18 April 2007 and he is due to be released from custody on that day.

3 The final relief sought by the plaintiff is that the defendant be subject to a continuing detention order for a period of 5 years pursuant to s17 of the Act. In the alternative, the plaintiff seeks an extended supervision order in respect of the defendant for the same length of time pursuant to s9. Because of the imminent release date of the defendant, the plaintiff seeks an interim detention order for a period of 28 days pursuant to s16 of the Act or alternatively an interim supervision order for the same period pursuant to s8.

4 The plaintiff filed a Notice of Motion seeking expedition of the hearing in relation to the relief sought in the summons and in particular that the application for interim relief be heard on an urgent basis. On 11 April 2007 Hislop J ordered that the plaintiff’s Notice of Motion be listed for hearing on Monday 16 April 2007. That is how the matter comes before the court.

5 In support of the application for the interim and other orders, the plaintiff relies on the following evidence:

(a) Affidavit of Sophie Genevieve Callan, solicitor, affirmed 13 April 2007.

(b) Affidavit of David Anthony Bright, psychologist, affirmed 13 April 2007.

(c) Affidavit of Christopher John Lennings, psychologist, affirmed 13 April 2007.

(d) Affidavit of Victoria Bel, psychologist, affirmed 13 April 2007.

6 The material exhibited to those affidavits was placed before the court and comprised two volumes. They included evidence of the defendant’s antecedents and criminal history. For the purposes of the legislation this material is the “supporting documentation”.

Legislation

7 The purpose and effect of the Act is comprehensively set out by McClellan CJ at CL in Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340. Accordingly it is not necessary or useful to carry out a similar analysis. I propose to only refer to those aspects of the legislation which are relevant to the present application.

8 The Act creates a scheme for the continued detention or extended supervision of a “sex offender” which is defined in s4 to mean “A person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence other than an offence committed while the person was a child”. It is common ground that the defendant is a “sex offender” as defined by the Act.

9 Section 3 sets out the objects of the Act.

“3 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.”

This makes clear that interim and continuing detention and supervision orders have a protective rather than a punitive purpose.

10 The Act provides for two types of order for which the Attorney General alone may apply – an extended supervision order and a continuing detention order. In this case the plaintiff has applied for both orders in the alternative.

11 Under s17(3) the court may make a continuing detention order “if and only if” it is “satisfied to a high degree of probability” of two matters:

(a) First, that the offender is “likely to commit a further serious sex offence if he or she is not kept under supervision”’ and

(b) Secondly that “adequate supervision will not be provided under an extended supervision order”.

In this context “adequate” supervision means supervision sufficient to eliminate or at the very least substantially reduce the likelihood that the offender will re-offend.

If the court were satisfied of matter (a), but not matter (b), then under s17(1)(a) of the Act it may make an extended supervision order rather than a continuing detention order.

12 The statutory formulation “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” (Gallagher at [34]. Even if the court is satisfied of both of the matters specified in s17(3), the use of the word “may” in the subsection indicates that the court ultimately has a discretion as to whether or not to make an order of the type sought.

13 In Gallagher, McClellan CJ at CL expressed the preliminary view that the Act “imposes a standard of proof higher than the ordinary civil standard but less than the criminal standard beyond reasonable doubt”. His Honour observed:

[34] … One potential difficulty with the subsection is the conjunction of that requirement ie that the Court be satisfied to a “high degree of probability”, with the question of whether the offender is “likely to commit a further serious sex offence.” The word “likely” presently appears to me to be used in its ordinary meaning which, as the High Court pointed out in Boughy v The Queen (1986) 161 CLR at 10 conveys the notion of “substantial - a real and not remote – chance regardless of whether it is less or more than 50 percent”: …”

14 In determining whether to make a continuing detention order, the court “must” take into account each of the matters specified in s17(4) together with any other matters the court considers to be relevant. Those matters are:

(a) The safety of the community.

(b) The reports received from the psychiatrists appointed under s15(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 the opportunity to participate, the willingness of the offender to participate in any such programs and the level of the offender’s participation in any such programs.

(f) The level of the offender’s compliance with any obligations to which he or she 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 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.

Interim detention orders

15 As indicated, the application before me is not for a final order but for an interim order. Such interim orders are covered by s16 as follows:

“16(1) If, in proceedings on an application for a continuing detention order, it appears to the Supreme Court:
(a) That the offender’s current custody will expire before the proceedings are determined, and
(b) That the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order,
the Supreme Court may make an order for the interim detention of the offender.”

Even if the preconditions in s16(1)(a) and (b) are satisfied, the use of “may” indicates that the court retains a discretion as to whether or not to make the order. Section 8 deals with interim supervision orders in the same terms.

16 The words “if proved” in s16(1)(b) indicate an evidentiary, as opposed to a legal, burden. This interpretation is supported by the use of “appears”. It must “appear” to the court that the matters alleged in the supporting documentation (if not rebutted) would justify the making of a continuing detention order or an extended supervision order. This in turn requires consideration of the tests for final relief in subss 17(2) and (3) and, in so considering those tests, each of the matters set out in s17(4). The provision is similar to the requirement for a prima facie case to be made out in committal proceedings. The “supporting documentation” must address each of the matters referred to in s17(4).

17 Accordingly, in order to enliven the exercise of the court’s discretion under s16(1), it must appear to the court that:

(a) The offender’s current custody will expire before the proceedings are determined;

(b) The supporting documentation contains evidence in relation to each of the matters set out in s17(4);

(c) The evidence, if not rebutted, demonstrates 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; and

(d) The evidence demonstrates that adequate supervision will not be provided by an extended supervision order.

Defendant’s background

18 The defendant was born on 25 January 1962 and is 45 years old. He is currently serving a sentence of 10 years imprisonment for offences for which he was convicted on 6 March 1998, namely two counts of sexual intercourse with a child under the age of 10 (s66A Crimes Act 1900) and one count of attempted sexual intercourse with a child under the age of 10 (s66B Crimes Act 1900). The victim was the nine year old daughter of the woman with whom, at the material time, the defendant was living in a de facto relationship. At the time of the offences, the victim’s mother was in hospital having another baby and the defendant was caring for the victim and another infant female child. The victim gave evidence that the defendant threatened her and forced her to perform fellatio on him on two occasions, ejaculating into her mouth both times and, on one of those occasions, making her swallow his semen. The count of attempted sexual intercourse related to attempted penile penetration of the victim.

19 When the defendant committed the offences in question, the maximum penalty for offences contrary to s66A and 66B Crimes Act was 20 years imprisonment. The defendant is therefore currently serving a sentence of imprisonment for a “serious sex offence” as defined by s5(1) of the Act. The non-parole period for those offences expired on 18 October 2004 but the defendant has not been granted parole.

20 The defendant’s criminal record, in relation to sexual offences – including the most recent offences – is as follows:

Date	Conviction	Details of sentence
23 February 1977	Rape of 22 year old woman and larceny in a dwelling	8 years imprisonment with a 3 year non-parole period (sentenced 8 September 1977)
10 October 1984	Sexual intercourse with a minor (victim 13 year old female)	6 years imprisonment, with a non-parole period of 3 years (sentenced 9 November 1984)
17 September 1985	Committing an act of indecency on a 15 year old girl	Deferred sentence upon payment of a $500 bond (sentenced 17 September 1985
7 November 1990	Two counts of sexual intercourse with a person under 16 and assault with an act of indecency on a person under 16 (victim 10 year old female)	6 years imprisonment with a non-parole period of 4 years and 6 months in respect of the first count of sexual intercourse; 2 years imprisonment in respect of the remaining two offences (sentenced 7 November 1990)
6 March 1998	Two counts of sexual intercourse with a person under 10, and one count of attempted sexual intercourse (victim 9 year old female); common assault.	10 years imprisonment to date from 19 April 1997 with a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months to expire on 18 April 2007. Sentence of 3 months imprisonment for assault to be served concurrently.

21 In addition to his convictions for sexual offences, the defendant has been convicted and sentenced to periods of imprisonment in for other matters which by comparison with the sexual offences are comparatively minor. He was convicted of stealing a motor vehicle in November 1980. He was convicted of break enter and steal, receiving, resist arrest, assault police and steal a motor vehicle on 6 February 1981. On 31 July 1988 he was convicted of driving with a mid-range PCA, being unlicensed, stating a false name, dangerous speeding and receiving. On 8 September 1989 he was convicted of driving with a mid-range PCA, being unlicensed, stating a false name and dangerous speeding. On 29 July 1997 he was convicted of driving an unregistered and uninsured vehicle and driving while unlicensed.

22 In relation to the offences of February 1977, October 1984 and September 1985 the victims were strangers to the defendant. In respect of the offences of November 1990 and March 1998 the victims were well known to the defendant and were the children of persons with whom the defendant had a relationship. That last aspect is of some importance when considering the safety of the community.

23 The defendant is of Aboriginal background. He had an extremely traumatic and disturbed upbringing. He came under the care of the then Department of Child Welfare at the age of 9. His mother had problems with alcohol and had a number of relationships, none of which were long standing. The defendant’s childhood was spent with his mother and her de factos and in various child welfare facilities such as the Dalmar Children’s Home, the Gateway Children’s Home, the Mittagong Training School for Boys and various youth detention centres. It would seem that the defendant has spent more time in custody than in the community.

24 The defendant says that he was sexually abused when aged about 4 years and while in state care. He also alleges being raped in the adult prison system at the age of 15 before being returned to a Department of Youth and Community Services facility. This is of significance because the defendant says that this sexual assault occurred in the building from which the CUBIT Program is run (Custody Based Intensive Treatment Sex Offender Program).

25 During 1985 and 1986 attempts have been made by the Department of Corrective Services to persuade the defendant to attend the CUBIT Program. It was made clear to him that if he did not attend the program he had little chance of being released on parole. It was also indicated to him that failure to attend the program might also have implications for him when his time for release came near because of the passing of the Act by Parliament on 30 March 2006. Despite these approaches, the defendant has consistently refused to attend the CUBIT Program.

26 The defendant’s contention is that he is willing to be involved in a therapeutic treatment process to deal with his sex offending, but he wishes this to be done on an individual basis, not as part of a group. He says that he is afraid of group work and very fearful of attending “therapy” in an area of the prison complex where he was sexually assaulted when he was 15. From what he has been told by other prisoners involved in the CUBIT Program he is not convinced that what happens there is confidential. This has implications for his safety in the prison system generally. The defendant does not think that the group approach, which is fundamental to the CUBIT Program, is appropriate for him because of his Aboriginal background, ie that his background is significantly different to that of others in the group.

Evidence and discretionary matters

27 The plaintiff has made detailed submissions with respect to appropriate findings in relation to the evidence from the experts which has been tendered. The defendant submits that these findings have not been challenged because of the late nature of the application, ie the defendant has not had time to retain an expert of his own.

28 The affidavit evidence comprises the opinions of three psychologists. Each has expressed the opinion that the defendant represents a high risk of re-offending. This of itself, the plaintiff submits, indicates that in accordance in s17(4)(a), the safety of the community would be threatened if the defendant were released.

29 In relation to s17(4)(c) the plaintiff submits that professional assessment is all one way, ie that there is a strong likelihood that if released the defendant will commit a further serious sexual offence. Only one of the psychologists, Ms Bel, had direct contact with the defendant for the purposes of preparing her psychological assessment report dated 15 November 2005. She did not have any contact with the defendant for the purposes of preparing her updated psychological assessment report of 7 June 2006. The defendant refused to be interviewed by Mr Bright for the purposes of his psychological briefing report of 1 February 2007. Dr Lennings did not have an opportunity to meet with the defendant for the purposes of preparing his report of 12 April 2007.

30 In order to reach her conclusion Ms Bel conducted two types of risk assessment in respect of the defendant.

(a) An actuarial risk assessment which considered static risk factors, ie non changeable factors based on past history. This actuarial risk assessment is called “STATIC – 99”.

(b) A dynamic risk assessment which considered changeable risk factors which are personal to the defendant.

31 Mr Bright also carried out an actuarial assessment. Since the defendant refused to be interviewed, Mr Bright relied on the dynamic risk assessment prepared by Ms Bel. Both Mr Bright and Ms Bel found that the defendant’s raw score on the application of the STATIC – 99 system was 8. This placed him in the high risk category relative to other male sexual offenders (any score of 6 or over is placed in the high risk of re-offending category). The authors of the STATIC – 99 system were not satisfied that there was sufficient evidence to conclude that offenders with scores greater than 6 presented a higher risk of re-offending than those who had a score of 6. However, “as an offender’s score increases, there is increased confidence that he is indeed a member of the high risk group” (Bel, affidavit para 39).

32 Dynamic risk factors are those which are related to sexual recidivism but are amenable to change including intimacy deficits, social influences, attitudes, general self-regulation and sexual self-regulation. Mr Bright noted in his report “the greater the number and severity of dynamic risk factors, the more confident one can be that the particular individual being assessed will be a recidivist rather than a non-recidivist” (page 15). Even though the defendant refused to participate in a structured clinical assessment interview for the purposes of Ms Bel preparing her November 2005 assessment report, Ms Bel did have an “unstructured interview” with him on 3 November 2005 which lasted for one and one-quarter hours.

33 Ms Bel’s assessment of the defendant’s dynamic risk factors was as follows:

“Intimacy deficit – research has demonstrated that those sexual offenders who are in an appropriate supportive relationship have a reduced risk of re-offending. It is of concern that Mr Tillman has committed sexual offences against step children in two separate de facto relationships. This suggests that he is unable to meet his emotional and sexual intimacy needs in the context of an appropriate sexual relationship. Mr Tillman has acknowledged that he finds it difficult to trust others. This is not surprising, given his chaotic childhood history. However, such well entrenched historical factors pose a significant obstacle for his capacity to develop and maintain appropriately supportive intimate relationships with others;
Social influences/supports – it is unclear what social supports Mr Tillman would have in the community and how effective any such supports could be in managing his risk of sexual offending;
Emotional self-regulation – Mr Tillman describes himself as “emotionally fragile” and still suffering the traumatic effects of his own childhood sexual abuse. Depending on how well or otherwise he is able to cope with those feelings, this may add to his risk of sexually re-offending;
Attitudes – based on the comments reported in psychologist John Howard’s letter (25.2.02) and other reports, as well as his comments at interview, Mr Tillman appears to take little responsibility for his sexual offending and appears to perceive himself as a “victim” of childhood abuse, of vindictive others (de facto partners), and of “the system”. Mr Tillman is unwilling to participate in appropriate treatment.
Sexual self-regulation – Mr Tillman has a lengthy history of sexual offending, beginning when he was only 15 years old. His convicted offences have included victims ranging in age from pre-pubertal female children, to adolescent girls to an adult woman. The circumstances of these offences have included both intro-familial contexts to predatory attacks on unknown females he has encountered in relatively public settings. These factors strongly suggest a wide range of deviant sexual interest and significant difficulties in sexual self-regulation.
General self-regulation – Mr Tillman has a lengthy criminal history including serious offences while still a juvenile. This suggests significant anti-social attitudes and behaviour. He has a significant history of alcohol and drug dependence.”

34 Ms Bel’s conclusion was:

“Consideration of these dynamic risk factors suggests that without appropriate treatments, Mr Tillman poses a concerning level of risk for sexual and violent re-offending.”

35 Dr Lennings refers to the STATIC – 99 system as having “achieved almost gold standard” status in the prediction of sexual recidivism. The working of the STATIC – 99 system was explained as follows:

“The STATIC – 99 consists of ten items and produces estimates of future risk based on a number of risk factors present in any one individual. The risk factors included in the test are the presence of prior sexual offences, having committed a non violent sexual offence, having a history of non sexual violence, the number of previous sentencing dates, aged less than 25 years old, having male victims, having never lived with a lover for two continuous years, having a history of non-contact sexual offences, having unrelated victims, and having stranger victims.
The recidivism estimates provided by the STATIC – 99 are group estimates based on re-convictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probability estimated in the STATIC – 99 depending on other risk factors not measured by this instrument.”

36 From his review of the materials Dr Lennings concluded:

“A constant theme in the various psychologists and probation officer reports is that Mr Tillman is a high risk sexual offender … Were he to be in the community, high risk means high risk of recidivism and a further sexual offence. It is also the case that assessment of his risk has highlighted the features that make him a high risk recidivating offender. These include his high level of risk on actuarial devices, the persistence of high levels of deviant sexual interest, reluctance or inability to achieve insight into his offending, lack of co-operation with supervision and treatment, high levels of self-absorption and lack of empathy, significant anti-social behaviour, lack of viable harm minimisation plans and strategies and the continuation of offending from an early age until current …”.

37 The plaintiff submitted that for the same reasons s17(4)(d) was satisfied in that statistical assessment indicated that the defendant was in the high risk category relative to other male sexual offenders of committing further serious sex offences.

38 In relation to s17(4)(e) – treatment or rehabilitation programs – I have already indicated the defendant’s refusal to participate in the CUBIT Program and his reasons for adopting this stance. The defendant told Ms Bel that he had read research suggesting that the CUBIT Program was not effective, he was concerned about its lack of confidentiality and he was afraid because the CUBIT Program was located in the building which was the scene of his sexual assault as an adolescent some 28 years before. Ms Bel noted that the defendant was not receptive to information that this building had been extensively renovated and would bear little resemblance to how it looked at the time of his assault, nor would the defendant agree to participate in a systematic desensitisation process as a preparation to entering the CUBIT Program. It was Ms Bel’s opinion that it was unlikely that any form of community treatment would offer the level of intensity of the CUBIT Program.

39 The defendant’s refusal to attend the CUBIT Program has emerged as a significant issue. It is therefore necessary to say something about that program. The first intake was in 1999. It is designed for sex offenders with a moderate to high risk of re-offending. This is because of its high intensity nature. The program is conducted in a residential unit. Offenders admitted to the program are accommodated in a special self-contained, forty bed unit located in the Metropolitan Special Program Centre at Long Bay Correctional Centre. The setting is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour.

40 The CUBIT facility is run as a “therapeutic community” in which offenders practise newly acquired skills, behaviours and attitudes on a daily basis with advice and feedback from specially trained psychologists and custodial officers. The unit is self-contained and is intended to provide a safe context for the practice and exercise of more pro-social attitudes and behaviours. Since August 2005 groups have been run three mornings per week for approximately 2.5 hours each morning. Between sessions, participants are expected to complete written homework tasks, practise new skills, consider and process the specific issues they are currently working on and provide support and encouragement to other offenders in the community. Weekly community meetings and other community activities underscore the importance of community involvement for all participants and assist with the attainment of treatment goals.

41 During the program participants are expected to take responsibility for their offending behaviour, examine victim issues, identify their offence cycle and develop a detailed relapse prevention program. The CUBIT Program runs for approximately eight – ten months. Because it is a residential program, it is intended that even when participants are not in a group they are in a custom built environment and are working on the new skills they are learning for the whole time. Once an offender has successfully completed the CUBIT Program, the offender must participate in a maintenance program one morning per week.

42 Mr Bright has been actively involved in the CUBIT Program. In his affidavit he noted that group therapy such as the CUBIT Program is “almost universally recognised as the treatment modality of choice with sexual offenders”. Having said that, Mr Bright also referred to research 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”. (Affidavit, para 39.) It seems that group treatment for sexual offenders is more time and cost efficient than individual therapy and this may well explain its preference as treatment in correctional institutions.

43 In relation to compliance with parole and other conditions whilst at liberty (s17(4)(f)) the plaintiff referred to 1984 and 1988 when the defendant had committed offences whilst on parole. In that regard the breach in 1984 did involve a sexual offence but that in 1988 related to a receiving charge. In any event, these breaches occurred approximately 20 years ago and there is no recent history of breaches of conditions whilst at liberty.

44 Finally, it was submitted by the plaintiff that the defendant’s criminal history and pattern of offending strongly suggested a wide range of deviant sexual interest and significant difficulties in sexual self-regulation. It was submitted that this established pattern of offending behaviour satisfied s17(4)(h).

45 The plaintiff submitted that an extended supervision order would not provide adequate protection for the community nor would it provide appropriate rehabilitation for the defendant. It was submitted that the only way in which proper rehabilitation could be provided for the defendant was if he remained in custody so that he could attend and complete the CUBIT Program. Any treatment which he might seek and undergo whilst at liberty would lack the intensity and residential supervision inherent in the CUBIT Program. All of the psychological evidence recommended the CUBIT Program as the best treatment for the defendant so as to address the high risk of sexual re-offending.

46 On behalf of the defendant it was submitted that the plaintiff’s application ought be refused and that the defendant ought be released on 18 April 2007 without conditions. The basis for that submission was that the plaintiff’s application had been made too late and was fundamentally unfair to the defendant. The defendant’s application for parole had been refused on 15 September 2006. From that date onwards it was known by the plaintiff that the defendant would be due for release on 18 April. Under the Act the plaintiff had six months from 18 October 2006 within which to bring this application, but it had not done so until 11 April 2007, ie seven days before the defendant’s release date.

47 It was submitted that it was fundamentally unfair to expose the defendant to further imprisonment at such late notice and in circumstances where he had no opportunity to challenge the evidence against him. The last minute nature of the application also prevented the defendant from being able to adduce evidence on his own behalf. The defendant had not been able to provide psychiatric/psychological evidence on his own behalf and not been able to provide evidence that he could satisfy conditions for the protection of the community and for his own rehabilitation if he was allowed at liberty.

48 The defendant also submitted that although the psychological evidence was all one way, on close analysis it did not reach the standard required by the Act, ie sufficient to satisfy the court “to a high degree of probability” that the defendant was likely to commit a further serious sex offence.

49 It was submitted that the plaintiff’s case was no higher than that the defendant was an untreated sex offender. The STATIC – 99 test identified the defendant as high risk but this was a test based on group behaviour, it did not deal with the characteristics specific to this defendant. No proper structured examination of the defendant had been carried out to identify the dynamic characteristics. At most Ms Bel had carried out an informal assessment. There was a real risk that the defendant was being punished because of his lack of co-operation with the Corrective Service psychologists and because of his refusal to participate in the CUBIT Program. No challenge had been made to the defendant’s assertion that he was prepared to undergo appropriate treatment, provided that treatment was carried out on an individual basis and not in a group context.

50 Although it was not his first preference, the defendant indicated through his senior counsel that he would be prepared to comply with the alternative order sought by the plaintiff in the summons, ie an extended supervision order for 28 days. With some slight modification he was prepared to comply with all of the conditions set out in paragraph 7 of the summons. These conditions are:

“(a) The defendant reside at an address approved by a Corrective Services Officer.
(b) The defendant must accept home visits by a Corrective Services Officer as directed by that officer.
(c) The defendant must report to a Corrective Services Officer as directed by that officer.
(d) The defendant shall not change his place of residence without prior approval of a Corrective Services Officer.
(e) The defendant must not associate or make contact with children aged 16 years or under.
(f) The defendant must not attend the public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours and such places as a Corrective Services Officer may direct.
(g) The defendant must wear electronic monitoring equipment as directed by a Corrective Services Officer.
(h) The defendant must not change his name from Kenneth Davidson Tillman.
(i) The defendant must participate in treatment and rehabilitation as directed by a Corrective Services Officer”.

51 The modifications suggested relate to condition (e) so that the prohibition would be qualified by the words “unless the child was accompanied by a parent or a Corrective Services Officer”. The second modification related to condition (i) as follows: “Except that the defendant shall not be required to attend the CUBIT Program or any other treatment program based on group therapy”.

52 Before the conclusion of the matter I was advised by counsel for the plaintiff that although no specific location had been identified, the Department of Corrective Services did have access to certain addresses where serious sexual offenders such as the defendant could reside. I was also advised by counsel for the plaintiff that appropriate electronic monitoring equipment was available and could be used in respect of the defendant so as to comply with condition (g).

Decision

53 I am concerned by the fact that the plaintiff’s application has been brought so late, ie seven days before the defendant’s proposed release date. This, in my opinion, gives rise to a fundamental unfairness insofar as the defendant is concerned which must influence my exercise of the discretion granted to me under the Act. No explanation was offered by the plaintiff to explain this delay.

54 The late nature of these proceedings has prevented the defendant from being in a position to adduce any evidence to enable him to oppose the application. While such evidence (if available) would not have assisted him as to the merits of the claim (s16(1)(b)), it may well have assisted him on the question of what treatment was most appropriate for him and as to whether an extended supervision order, rather than a continuing detention order, was more appropriate in his case. Such evidence might also have assisted in determining what conditions ought be attached to any extended supervision order made against the defendant. The lateness of the proceedings has precluded the defendant from adducing any evidence on those issues. Accordingly, even if I were persuaded to the necessary standard that an interim continuing detention order ought be made against the defendant, I would not make such an order.

55 From material placed before me, and in accordance with the statutory regime, I am persuaded to the necessary standard that the defendant is likely to commit a further serious sex offence if he is not kept under appropriate supervision. His history of sexual offending, the statistical and psychological evidence all indicate that the defendant presents a high risk of re-offending. It follows that the supporting documentation if it is proved would justify the making of an order under the Act. The only question is the nature of that order, ie a continuing detention order or an extended supervision order.

56 The plaintiff strongly urged that an interim detention order was the only appropriate order. It was submitted that an extended supervision order, even with the conditions set out in the summons, would not provide adequate protection to the community. I am not so persuaded. As indicated, the offences of November 1990 and March 1998 both involved female children in his household and substantially under his care. Except for his first offence in 1977, there has been no suggestion in his offending behaviour of him randomly seeking victims in the public arena. The offending situations have arisen when circumstances have brought young victims into close proximity to the defendant.

57 In those circumstances I am satisfied that, if the conditions suggested in paragraph 7 of the summons were imposed on the defendant as a condition of him being released from prison, the community would be adequately protected.

58 The other matter urged upon me by the plaintiff relates to the rehabilitation objectives of the Act. It was submitted that the defendant should be kept in prison because it was only in prison that he would be able to complete the CUBIT Program with its residential requirements and necessary level of intensity. Informal one on one counselling outside the prison system would not be sufficient.

59 Implicit in that submission is the unstated premise that the defendant must participate in the CUBIT Program or he should not be released. Since the defendant has (to his very real detriment) consistently refused to participate in the CUBIT Program whilst serving his sentence of imprisonment, I do not see why his attitude would change if he were to be further detained in the prison system. In the circumstances of this case I do not see it to be appropriate for the court to assist in a process which forces a person to unwillingly undergo medical treatment as a condition of obtaining that person’s liberty.

60 For the reasons indicated it seems to me that the objects of the Act are adequately fulfilled if an interim extended supervision order is made against the defendant rather than a continuing detention order. I wish to make it clear that this decision relates purely to this interim application and to the preliminary hearing. This decision will play no part in the ultimate resolution of the plaintiff’s application for final orders.

61 The orders which I make are as follows:

(1) Pursuant to s8 of the Act I order that the defendant be subject to extended supervision for a period of 28 days from 18 April 2007 and that the defendant comply with the following conditions.

(a) The defendant reside at an address approved by a Corrective Services Officer.

(b) The defendant accept home visits by a Corrective Services Officer as directed by that officer.

(c) The defendant report to a Corrective Services Officer as directed by that officer.

(d) The defendant not to change his place of residence without prior approval of a Corrective Services Officer.

(e) The defendant not to associate or make contact with children aged 16 years and under unless the child is accompanied by a parent or by a Corrective Services Officer.

(f) The defendant is not to attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours, and such places as a Corrective Services Officer may direct.

(g) The defendant is to wear electronic monitoring equipment as directed by a Corrective Services Officer.

(h) The defendant is not to change his name from Kenneth Davidson Tillman.

(i) The defendant is to participate in treatment and rehabilitation as directed by a Corrective Services Officer, save that such treatment and rehabilitation shall not include the CUBIT Program or a group based program.

(2) I order that two qualified psychiatrists conduct separate psychiatric examinations of the defendant and that those two psychiatrists furnish reports to the Supreme Court on the results of those examinations and that the results of those examinations be provided to the Court on or before 4pm 11 May 2007.

(3) I order that the defendant attend those examinations.

(4) Liberty is granted to the parties to approach the Court on two days notice.

(5) Stood over before me for mention at 9.30am on Monday, 14 May 2007.

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