Attorney General for the State of New South Wales v Wilde

[2008] NSWSC 14

CITATION:	Attorney General for the State of New South Wales v Wilde [2008] NSWSC 14
HEARING DATE(S):	17 January 2008 24 January 2008
JUDGMENT DATE :	24 January 2008
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	24 January 2008
DECISION:	1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act 2006 John Alan Wilde is to be detained in a correctional centre for 8 months from today. 2. Pursuant to s 20(1) of the Crimes (Serious Sex Offenders) Act 2006 that a warrant issue for the committal of John Alan Wilde to a correctional centre for the duration of the continuing detention order referred to in order 1 above.
CATCHWORDS:	Serious sex offender - continuing detention order.
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 s 17(1), s 20(1)
CATEGORY:	Principal judgment
CASES CITED:	Cornwall v Attorney General for New South Wales [2007] NSWCA 374
PARTIES:	Attorney General for the State of New South Wales John Alan Wilde
FILE NUMBER(S):	SC 2007/15061
COUNSEL:	Mr P Menzies QC and Ms A Mitchelmore (plainitff) Mr A Morison (defendant)
SOLICITORS:	I V Knight, Crown Solicitor (plaintiff) Nyman Gibson Stewart Solicitors (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

24 January 2008

2007/15061 Attorney General for the State of New South Wales v John Alan Wilde

EX TEMPORE JUDGMENT

1 HIS HONOUR: These reasons are to be considered in conjunction with my judgment of 20 December 2007. I do not propose repeating what is detailed in the judgment (the judgment) save to say that I was satisfied and continue to be 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.

2 Before a continuing detention order may be made, the plaintiff must satisfy the Court to a high degree of probability “that adequate supervision will not be provided by an extended supervision order”.

3 The onus is on the plaintiff to satisfy the Court to a high degree of probability that an extended supervision order will not obviate the likelihood that the defendant will commit a further serious sex offence: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [23].

4 In the judgment, I concluded at [121] that on the evidence then available it was not possible to be satisfied to a high degree of probability that even if the defendant is subject to an extended supervision order he will still be likely to commit a further serious sex offence unless the suitability of potential conditions was properly explored and the defendant’s attitude to a proposed plan was obtained. Furthermore, it was not possible for the Court to devise a regime of extended supervision. Directions were made for the development of a risk management plan for the defendant. The parties were informed that it should not be assumed that a direction for the preparation of a risk management plan was an indication that I proposed to make an extended supervision order.

5 A risk management plan has been developed which proposes strict conditions. The plan is to be administered by the Department of Corrective Services (the Department) in consultation with the Community Forensic Mental Health Service (the CFMHS).

6 A difficulty with the implementation of the management plan is the lack of available suitable accommodation for the defendant upon his release. It appears from the evidence of Viviane Fahs that there is no Departmental accommodation presently available, and enquiries can only be made with the Department of Housing upon the defendant’s release. Ms Brennan deposed to difficulties in finding accommodation for the defendant. She states that the Department of Housing could offer the defendant accommodation, which in view of the tight timing, would be in the nature of bed-sit accommodation in a communal setting.

7 It is apparent from the accommodation assessment (exhibit 4) that a number of agencies have been recently contacted to establish if they have vacancies for the defendant. All of these agencies advised that they do not take advanced bookings. The defendant may apply for emergency housing with the assistance of the welfare officer whilst in custody. It seems that he was not approached by the welfare officer to fill out housing forms until last Friday.

8 The defendant has, it appears, no family or friends who can assist him in finding a suitable place to reside.

9 Other difficulties with the risk management plan are that the psychiatric treatment is to be provided by the CFMHS and psychological treatment is to be at the defendant’s expense which he cannot afford. The defendant says he has about $700 but will use any excess income if he obtains employment to pay for treatment. As an alternative, the Department is prepared to provide counselling by sex offender psychologists through the Forensic Psychology Service. This counselling is not a treatment program for high risk sex offenders as the Department does not offer such a program in the community.

10 Ms Booby opined that the counselling would not satisfactorily deal with the issue of safety of the community:

“….because an untreated sex offender requires long term treatment. The effects of the treatment are cumulative so the community will not be sufficiently protected until the treatment effects have had sufficient time to accumulate. So for quite some length of time until treatment gains have been made, the community would remain at significant risk .” (T43 L35-41 17/1/08).

11 Security concerns were expressed particularly for female staff and patients as the counselling would take place at the Wentworth Avenue Forensic Psychology Service premises which does not have security.

12 The defendant says that these fears are totally groundless. It should not, however, be overlooked that 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.

13 Dr Allnutt referred to limitations in the ability of the CFMHS to assist in the proposed treatment. He explained:

“ It’s important for me to stress to the court that our role is an adjunct role. We at this stage are not funded or staffed to take on primary responsibility for these individuals. At the moment we are set up to only provide consultation, liaison and adjunct follow-up treatment, with psychological services taking primary responsibility. We are a fledgling service at this stage. ” (T66 L15-21 17/1/08).

The CFMHS is not funded to independently take on a high risk sex offender.

14 Mr Menzies QC alleviated some concern about the cost of a proposed plan in his final address when he said that the plaintiff would meet the cost of ensuring its implementation if ordered by the Court.

15 Dr Allnutt expressed concern that the proposed management plan places little emphasis on psychological treatment which, in his opinion, should be the primary treatment approach, with medication a secondary consideration. Dr Allnutt as I recounted in the judgment at [88] recommended that a psychologist and psychiatrist with expertise in the treatment of sexual offences needed to be identified and to agree to take care of the defendant.

16 The defendant gave evidence that he will comply with the supervision orders without hesitation or without question. He said:

“ Whatever is needed I will comply with ” (T79 L1-2 17/1/08).

17 He believed that he needed rehabilitation and some treatment. He expressed the reservation during his evidence this morning that he would unreservedly comply provided the supervision orders did not involve child molesters.

18 When asked in cross-examination:

“ What is it that you believe you need treatment for ?”

the defendant replied:

“ For my offences in 1981 .” (T79 L20-24 17/1/08)

19 Dr Allnutt was concerned about the defendant’s consent to take medication. He was not convinced that consent provided at this stage is “an informed consent, free and voluntary.” He went on to say:

“ But I have concerns about his insight into his problem and I also have concerns about the reliability of his self-report once we prescribe medication. In other words, does it work or doesn’t it work? It would be pointless to prescribe a medication that’s ineffective in fact, and risk a person to side effects .” (T67 L 21-27 17/1/08).

20 It is true, as Mr Morison submits, that Dr Allnutt did not have the benefit of reading the defendant’s affidavit or hearing his evidence.

21 In the passage I quoted at [94] of the judgment, Dr Allnutt identified as a problem the defendant’s limited self-report. The defendant continues to deny his serious sex offending with the exception of the first offence for which he provides a non-sex drive reason. The defendant agreed in cross-examination that the first offence was committed as “a payback”.

22 I referred to the limitations in the electronic monitoring of offenders upon release in the judgment at [99].

23 All of these matters indicate how difficult it is for a plan to be designed in which the Court can have confidence that the risk of the defendant committing a further serious sex offence will be obviated.

24 The defendant in his affidavit disputes some of the “I said, he said” conversations which are referred to in the affidavit of Viviane Fahs. Ms Fahs accepted in cross-examination that the defendant had made it clear that he was prepared to comply with all conditions that the Court would impose which he has confirmed in his evidence.

25 An issue raised during these proceedings was that the defendant was charged with what the defendant describes as “having some form of drug paraphernalia” in his cell on 12 January 2008. This is a matter which I have totally disregarded.

26 The defendant says that he will abide by all the obligations in the risk management plan unreservedly if he is released upon a supervision order provided it does not involve child molesters. The reliability of what he says is to be considered in light of the evidence of the psychiatrists and psychologists, his history of non-compliance with court orders and parole, the present lack of treatment of his dynamic risk factors and the application for a continuing detention order.

27 Included in the plan is anti-libidinal medication which the defendant is now prepared to take. He had previously told Dr Allnutt as I related at [90] of the judgment he saw no reason to take medication for his sex drive. The defendant’s attitude at that time was consistent with the denial of the second and third serious sex offences and the non-sex drive reason for the first serious sex offence. These denials the defendant maintains.

28 The success of the risk management plan is dependent upon the defendant’s compliance, co-operation and honest self-report. As observed at [117] of the judgment, the defendant’s self-referential belief system and the rigidity of his attitudes diminish the prospect of his adherence to a regime of supervision. Dr Allnutt referred in the further passage quoted at [93] of the judgment to the defendant’s “tendency to perceive rules as not being pertaining to him particularly”. The defendant’s distorted attitudes have been identified as one of his personal risk factors.

29 The defendant’s personal risk factors remain untreated. I am satisfied that his risk of re-offending upon release into the community has not significantly changed in the past 16 years. When he was last on parole he committed a serious sex offence with violence some 13 days after his release. His history of compliance is extraordinarily poor.

30 He remains inadequately equipped to respond to and protect himself in the situations of risk of sexual re-offending which he will meet in the community.

31 I am satisfied to a high degree of probability that until the defendant accepts and completes a treatment program before release from custody which addresses his personal risk factors he will not comply with the proposed risk management plan nor any other supervision regime that might be fashioned by the Court.

32 I am satisfied to a high degree of probability not only that the defendant is likely to commit a further serious sex offence if he is not kept under supervision but also that adequate supervision will not be provided by an extended supervision order.

33 A detention order should be made, the plaintiff submits, for 25 months from the date of the order to enable the defendant to complete the three- stage treatment plan. The evidence, however, supporting a view that the defendant’s dynamic risk factors will be best addressed by the Department’s three-stage plan as opposed to the alternative group based sex offender program at Goulburn is not persuasive.

34 Under the alternative group based sex offender program individual sessions for the defendant with psychologists can be commenced immediately at Goulburn. Furthermore, the defendant’s objection to associating with paedophiles is removed by the adult same sex offender group sessions. Whilst Ms Booby suggested that this program might take longer than six months, it seems provided that the defendant is a willing participant there is no reason for the program to take much longer than this time. Either treatment program depends on the defendant’s desire to address his dynamic risk factors.

35 The defendant has been detained under the interim detention orders for almost three months. The making of a continuing detention order has very serious consequences for him. He will be deprived of his liberty to which he is otherwise entitled. Should the defendant’s dynamic risk factors be able to be addressed by a program which deprives him of his liberty for a shorter period of time that option should be preferred. The need to protect the community might be addressed if the defendant is willing to undertake the program proposed at Goulburn. A failure by the defendant to undertake or complete the program may result in an application by the plaintiff for a further continuing detention order. On the other hand, successful completion by the defendant of the program within eight months will enable him to apply for the order to be revoked.

36 I am not persuaded that the appropriate course is to make a detention order for 25 months.

Orders

I make the following orders:

1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act 2006 John Alan Wilde is to be detained in a correctional centre for 8 months from today.

2. Pursuant to s 20(1) of the Crimes (Serious Sex Offenders) Act 2006 that a warrant issue for the committal of John Alan Wilde to a correctional centre for the duration of the continuing detention order referred to in order 1 above.

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