Attorney General for the State of New South Wales v Wilde

[2007] NSWSC 1490

CITATION:	Attorney General for the State of New South Wales v Wilde [2007] NSWSC 1490 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 December 2007 12 December 2007 13 December 2007 14 December 2007
JUDGMENT DATE :	20 December 2007
JUDGMENT OF:	Price J at 1
DECISION:	1. That John Alan Wilde pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006 be detained at a Correctional Centre on an interim basis for a period of 28 days from 28 December 2007 expiring 24 January 2008. 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 period specified in order 1. 3. Direct that the Director, Offender Services and Programs for the New South Wales Department of Corrective Services or some other suitable person as may be nominated by the Director develop a risk management plan for Mr Wilde in conjunction with his legal representatives. The plan is to be finalised on or before Wednesday 16 January 2008. 4. Any further affidavits are to be filed and served on or before Tuesday 15 January 2008. 5. Summons stood over for further hearing on Thursday 17 January 2008. 6. Liberty to apply on 24 hours notice. 7. Recommend that Mr Wilde be held in custody in accordance with his classification as a minimum security prisoner. 8. Section 77 order to issue to ensure the defendant is before the Court on Thursday 17 January 2008.
CATCHWORDS:	Serious sex offender - application for continuing detention order - likely to commit further serious sex offence - no onus to establish that the offender is of the very worst case - application not an abuse of process - lack of consideration of potential conditions of release under supervision - further interim detention order.
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 s 6(2), s 15(4),s 16(1), s 16(3), s 17, s 17(1), s 17(1)(b), s 17(2), s 17(3), s 17(4)(a)-(i), s 20(1) Crimes Act 1900 s 3, s 5, s 61J Law Enforcement and Other Legislation Bill 2007
CASES CITED:	Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 Re Bolton; Ex parte Beane (1987) 162 CLR 514
PARTIES:	Attorney General for the State of New South Wales (plaintiff) John Alan Wilde (defendant)
FILE NUMBER(S):	SC 2007/15061
COUNSEL:	Mr P Menzies QC and Ms A Mitchelmore (plaintiff) 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

20 DECEMBER 2007

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

JUDGMENT

1 HIS HONOUR: By an amended summons filed on 11 December 2007 the plaintiff, the Attorney General for the State of New South Wales, seeks an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that the defendant be detained in a correctional centre for 25 months from the date of the order.

2 The defendant was sentenced by Ducker DCJ on 11 June 1993 for three counts of sexual intercourse without consent and in circumstances of aggravation contrary to s 61J of the Crimes Act 1900; one count of break and enter with intent to commit a felony and one count of malicious wounding. All of the offences were committed on 6 November 1991 and involved a single victim. On count number four on the indictment the defendant was sentenced to a minimum term of imprisonment for 12 years to date from 6 November 1991 with an additional term of four years to expire on 5 November 2007. It is unnecessary for present purposes to recite all of the sentences imposed by the Judge as they were subsumed in the sentence imposed on the fourth count. The defendant was not released to parole. He completed his sentence on 5 November 2007.

3 Prior to his release from custody, the plaintiff, by a summons filed on 4 October 2007 applied for an order under s 16(1) of the Act that the defendant be detained in a correctional centre on an interim basis for a period of 28 days from 4 November 2007. Orders pursuant to s 15(4) of the Act for the appointment of two qualified psychiatrists to conduct separate psychiatric examinations of the defendant were also sought. On 1 November 2007, I ordered that the defendant be detained at a correctional centre on an interim basis for a period of 28 days from 4 November 2007 and that he be examined by two qualified psychiatrists. On 30 November 2007 the interim detention order was renewed for a further period of 28 days.

4 In addition to the interim orders, the plaintiff applied for an order under s 17(1)(b) of the Act that the defendant be detained in a correctional centre for 12 months from the date of the order. The plaintiff now seeks that the period of detention be 25 months.

5 Part 3 of the Act provides for the making of a continuing detention order against a sex offender. Section 4 of the Act defines sex offender to mean a person who has at anytime been sentenced to imprisonment following his conviction of a serious sex offence. Three of the offences for which the defendant was sentenced by Ducker DCJ were offences of sexual intercourse without consent and in circumstances of aggravation contrary to s 61J(1) of the Crimes Act 1900. These offences which fall under Division 10 Part 3 of the Crimes Act are punishable by imprisonment for twenty years and were committed in circumstances of aggravation. Each offence is a serious sex offence as defined by s 5 of the Act.

6 The defendant is a serious sex offender within the meaning of the Act.

7 Section 3 of the Act provides:

“ 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.”

8 The present application is for a continuing detention order under s 17(1)(b) of the Act. Section 17 of the Act is as follows:

“ Determination of application for continuing detention order


17 (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

(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:

(b) the reports received from the psychiatrists appointed under section 15 (4) to conduct psychiatric examinations of the offender, and the level of the offender’s participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence,
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,
(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,
(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.
(5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9.

9 Where an application under s17(1)(b) is made, the Court may make an extended supervision order, or a continuing detention order, or may dismiss the application: s 17(1) of the Act.

10 An extended supervision order under s 17(2) or a continuing detention order under s 17(3) may only be made if and only if the Court, in each instance, is “satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence”. A continuing detention order under s 17(3) may not be made unless the Court is further satisfied to a high degree of probability “that adequate supervision will not be provided by an extended supervision order”.

11 In Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 Mason P said at [6]:

“ If the Court perceives itself able to devise a regime of extended supervision that will make it unlikely that the particular offender will relevantly reoffend, then the combined effect of subsections (2) and (3) is that the lesser control is to be chosen. But if reoffending remains likely despite an extended supervision order, then the power to impose the more stringent control of a continuing detention order is engaged. ”

12 The plaintiff bears the onus of proof. The standard of proof is high. What is required by ss 17(2) and (3) is for the Court to be satisfied “to a high degree of probability”. As was said by the Court of Appeal in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]:

“ The expression “a high degree of probability” indicates something “beyond more probably that not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely” as explained in TSL v Secretary to the Department of Justice (2006) 14 VR 109. ”

13 In Tillman the meaning of the word “likely” in ss 17(2) and (3) was considered. Giles and Ipp JJA said at [89-90]:

“ Accordingly, we would hold that the word ‘likely’ in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent. The remarks Bell J made when articulating the test she intended to apply are to be understood in this sense. Her Honour said (at [29]):
‘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.’
Accordingly, for the reasons stated, we differ, with respect, from what McClellan CJ at CL said in Winters on this issue. As well, we do not understand Bell J to have meant ‘probable’ as meaning ‘more probable than not’. In our opinion, nothing her Honour said suggests this inference. For the reasons we have stated, we would hold that, in adopting this more limited approach, her Honour was correct. For the reasons we have explained, while ‘likely’ means ‘probable’, it does not mean ‘more probable than not’.”

And at [92]:

“ The difference between likelihood in the sense of a high probability but not necessarily more probable than not, and likelihood as something more probable than not, may not be great. Expressed as percentages, which is incorrect because it suggests a mathematical precision which is unattainable and is an unhelpful approach, transition from 49 per cent to 51 per cent is not the key to application of ss 17(2) and (3). ”

14 On this issue Mason P disagreed with Giles and Ipp JJA. Mason P at [13] considered that the “tighter” meaning of “more probable than not” should be chosen for “likely”.

15 The determination of the present application is to be approached by adopting what was said by the majority in Tillman at [89-90]. The word “likely” in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent. While “likely” means “probable”, it does not mean “more probable than not”.

16 The Court is required to have regard to the matters identified in s 17(4)(a)- (i) in addition to any other matter it considers relevant in determining whether or not to make a continuing detention order or extended supervision order. The factor identified in s 17(4)(g) is not relevant to the present proceedings. Both of the Acts referred to in the subsection postdate the defendant’s current period of incarceration and he has never been subject to the requirements of these Acts.

17 Mr Morison, counsel for the defendant, argues that the plaintiff bears an onus of showing that the defendant falls into the very worst case of high risk offender before a continuing detention order is made. It appears that this contention is founded upon the Second Reading Speech (New South Wales Parliamentary Debates (Hansard), Legislative Council, 30 March 2006. The Hon Tony Kelly, the Minister for Justice, said (at 21801 to 21802):

“One particular concern, that is dealt with by the scheme, relates to a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison. These offenders make up a very small percentage of the prison population, yet their behaviour poses a very real threat to the public. These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised.
The proposed legislation will address this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody.”

18 There is no mention in s 17 and in particular subsection 3 of “the very worst case”. The subsection, in my view, is neither ambiguous nor obscure. In this instance, the words of the Minister are not to be substituted for the text of the legislation: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. Whilst a result of the proper application of s 17(3) might be that extended detention orders are made only in the very worst cases, there is no onus on the plaintiff to show that the defendant falls into the very worst case of high risk offender.

19 It seems to me that an important consideration, although not identified in s 17(4), is that the making of a continuing detention order involves the deprivation of the liberty of an individual who has completed a sentence imposed by a Court. I consider that to be a relevant matter. In the present case, the defendant has served the whole term of his 16 year sentence.

20 The defendant is 45 years old. He was born on 22 December 1961. He was an only child. His parents divorced early in the relationship. His mother brought him up and he saw his father every weekend. He had a loving relationship with his mother and his relationship with his father was “alright”. He had a difficult relationship with his paternal grandmother. The defendant achieved his fourth form certificate at age 17 and was an average student. He did not have learning problems and had no difficulty making or maintaining friends. He had three serious relationships, the longest lasting nine months. Due to his incarcerations he has been unable to pursue gainful employment.

21 The defendant has been continually in custody for the past 16 years. It seems that since 28 March 1981 the defendant has been in custody save for a period of almost four months.

The serious sex offences

22 The defendant’s criminal history commenced with a conviction for the charge of break, enter and steal on 10 April 1978. He was 16 years old at the time. Further convictions for charges of breaking and entering followed.

23 His first sexual offence was committed on 23 March 1981. The defendant raped a woman in her home. The police facts sheet reveals that the defendant forced his way into the victim’s home and raped her. Seven days before the commission of the offence the defendant had been bound over to be of good behaviour for four years by Staunton DCJ for an offence of breaking, entering and stealing. Following his plea of guilty, a sentence of 5 years penal servitude was imposed by Nagle CJ at CL to date from 26 March 1981. The defendant had entered a plea of guilty to a charge of assaulting a girl aged seventeen which occurred two days after the rape. The sentencing judge sentenced him to penal servitude for one year which was to be served concurrently. A non-parole period specified to expire on 25 March 1983 was fixed.

24 The defendant was released subject to parole on 22 June 1983. Whilst in custody, he had escaped from the Oberon correctional centre and was recaptured the next day. On 26 July 1982, a four month sentence of penal servitude was imposed for the escape which was to commence at the expiration of the sentence being served. A non-parole period which I am told was to expire on 25 March 1983 was fixed.

25 On 29 September 1983, the defendant committed the offence then commonly known as category 2 sexual assault, namely that he threatened to inflict bodily harm upon the victim with the use of a knife and with intent to have sexual intercourse with her. The victim, a young married woman, had returned to her home with her two young babies when she was confronted by the defendant with a knife. In her remarks on sentence, Mathews DCJ, as she then was, referred to the circumstances of the offences as being “appalling to say the least”. The sentencing Judge referred to the defendant threatening the victim with a knife, gagging her, binding her hands and threatening her “with the greatest of degradation and depravity”. The sentencing Judge said that, although there was no specific charge of having sexual intercourse, the evidence showed that the defendant did have sexual intercourse with the victim when he forced oral sex upon her.

26 The defendant was also charged with two offences of indecent assault, one of breaking, entering and stealing from the premises and the taking of a motor vehicle. He had pleaded not guilty but was convicted of all the offences by a jury.

27 The offences were committed just over three months after the defendant’s release on parole.

28 Mathews DCJ sentenced the defendant on the category 2 sexual assault to penal servitude for ten years. Concurrent sentences of three years penal servitude were imposed for the remaining charges. A non-parole period of six years imprisonment was fixed.

29 On 24 October 1991 the defendant was released to parole.

30 All of the offences for which the defendant was sentenced by Ducker DCJ occurred on 6 November 1991, when he forced his way into the victim’s home unit and threatened to kill her if she did not “shut up”. He forced her to fellate him. When she bit his penis after it became erect, he wounded her hand with the knife as she tried to ward him off with a chair. He punched her in the face, loosening a tooth and causing her mouth to bleed. The victim was forced to lie down. He tied her hands behind her back. The sexual indignities to which she was then subjected to included digital vaginal and penile vaginal intercourse.

31 In his Honour’s remarks on sentence, he described the offences as being “premeditated, and utterly despicable”. “The prisoner”, the sentencing Judge said, “took advantage of a lone woman in what should have been the safety of her own home to inflict upon her the most degrading humiliating physically painful and distressing non-consensual acts.” His Honour remarked upon the prisoner not showing the slightest sign of remorse or contrition, and of his attitude throughout being one of “truculent self-concern”, and “total indifference to the suffering of his victim”.

32 His Honour opined that the prisoner “exudes a sense of latent, only barely concealed violence, which does not bode well for his future, nor that of the community when he is released”(ROS 12).

33 And further “the present offences were premeditated, cold blooded, humiliating, and terrifying to the victim. And the prisoner emerged, by his commission of these acts, as a dangerous sexual predator who, so long as he was at large within the community, represented a considerable threat to women” (ROS 13).

34 It was an aggravating factor that the offences were committed whilst the prisoner was on conditional liberty. He had been released on parole some thirteen days earlier in respect of offences which the Judge described as being of a similar kind. His Honour was there referring to offences for which he had been sentenced by Mathews DCJ.

35 The defendant’s record of compliance with obligations imposed upon him by a court or upon release on parole is egregiously poor. The first serious sexual offence was committed within seven days of his entry into a good behaviour bond, the second serious sexual offence just over three months after he was released on parole and the third serious sexual offence some thirteen days after his release on parole.

36 The serious sexual offences committed by the defendant reveal a pattern of offending behaviour which was summarised by Ducker DCJ in his remarks upon sentence. His Honour said:

“ The use of knives to intimidate; the apparent need to degrade and humiliate the victims; the choice of victims of lone women in their own homes; the tying up of their hands; the subjecting of his victims to bizarre behaviour (one woman being required to ‘bark like a dog’ and another being required ‘to groan and pretend that she enjoyed it’); the cuts inflicted on the victims; and the resort to bizarre attempts to excuse his conduct by using a similar story, in order to try, perhaps to persuade the victim not to complain, or to otherwise assuage the indignation and desire for retribution of the victim .” (ROS at 10-11).

Psychiatric and psychological evidence

37 Two psychiatrists Dr Jeremy O’Dea and Dr Stephen Allnutt provided reports to the Court pursuant to my orders. The defendant participated in two interviews with Dr Allnutt and three interviews with Dr O’Dea. It appears that he was co-operative and attentive during the interviews. Neither of the psychiatrists diagnosed the defendant as suffering from a major mental illness. Both considered that he could be categorised as having an antisocial personality disorder. Neither psychiatrist diagnosed a paraphilia on the basis of the defendant’s self report. In Dr Allnutt’s opinion, the defendant falls into a “a high-risk group for any form of sexual recidivism.” Dr O’Dea was of the opinion that the defendant “would be considered as having a significantly high risk of engaging in further sex offending behaviours in the longer term”.

38 Accounts of his sexual offending were provided by the defendant to the psychiatrists. He explained to Dr Allnutt, as a motive for the first sexual offence, that his girlfriend had been raped “by a bloke and his bitch over four days.” He was very angry about what had happened to his girlfriend and his offence was an attempt to “square-up”. He thought the victim that he had raped was the woman who had hurt his girlfriend. He found out afterwards that she was not. As a consequence he was shattered. As to the second sexual offence, he said that after his release on parole, the police had set him up. He was then wrongfully arrested for the further sexual offence to which he pleaded not guilty. He said had had no knowledge of the offences and could tell nothing about them.

39 When he was subsequently released on parole, he was out for 12 days and then re-arrested for the index offence. He told Dr Allnutt that in the 12 days he had met a woman and established a friendship with her. This person, he said, told him she knew another woman who might know a person AW. AW was a friend that he wanted to get in contact with. He said that the woman that he met took him to AL (the victim). AL told him that she knew AW. He said he was about to leave AL’s house when she noticed his hunting knife. At that point he happened to have a “12 inch hunting knife” with him as his intention was to have it chemically sharpened. She noticed it because he had it on him in a sheath on his hip. Whilst she was looking at the blade, she cut her finger. She fixed the cut. The woman who had taken him to visit AL had a conversation with him. This woman had told him that AL was a “part-time hooker”. She suggested he stay behind and have sex with AL with his woman friend remaining. In giving him “a head job” AL bit him on the penis to which he reacted by hitting her. As this was happening, the woman that took him then said she had to leave. He had an argument with AL. The police were called by neighbours and he was arrested. The defendant explained that while he accepted he had sex with the victim, he had not been charged correctly and the sex was consensual. He now felt a strong need to find the woman who had taken him to AL’s house, as she was the sole witness that could clear his name. It appears that the defendant intends to make an application under s 474 of the Crimes Act 1900.

40 The defendant’s account to Dr O’Dea of the offences was substantially in the same terms.

41 Dr Allnutt approached the assessment of the defendant’s risk of recidivism by adopting both a clinical and actuarial approach. In his clinical assessment he was guided by the factors identified by Karl Hanson and Morton-Bourgon and the Sexual Violence Risk–20, a clinical risk assessment tool.

42 The factors associated with increased risk of recidivism include, Dr Allnutt states, the three episodes of sexual offending which have occurred over a period of many years with evidence for recidivism after a relatively short period of time. He did not diagnose a particular paraphilia on the defendant’s self report but believed that the defendant should be regarded as having an underlying tendency to sexually deviant behaviour and interest. He considers that the defendant would be categorised as having an antisocial personality disorder. The defendant, he states, manifests a tendency to impulsive aggressive behaviour and appears to have difficulty with self-regulation.

43 Factors such as lack of victim empathy, denial of a sexual crime and minimising culpability, low motivation for treatment, Dr Allnut observes, have not been shown to predict sexual recidivism. During his oral evidence, he explained that they are risk factors but with a low correlation. They are factors, he said, that one would place less weight on than others. Risk factors Dr Allnutt described as being “red flags” that indicate danger. The more risk factors there are the greater the risk.

44 Whilst Dr Allnutt was giving evidence I raised with him the defendant’s account of the third serious sexual offence during which he had claimed that the victim consented to sexual intercourse. I asked whether that account had any impact on his assessment of the defendant so far as the likelihood of further offending is concerned. Dr Allnutt replied T 154 –155 L 48-57, L 1-5:

“ It would have an impact on my view as to whether I could engage him in treatment, in other words I need what I was saying earlier, as a practitioner one requires a certain degree of reliability with regard to information that he provides to me and that would suggest to me that I might not be able to rely on his self report which would make treatment or therapy or whatever it is that I engage with him difficult and cause me some anxiety. But whether it’s a factor that I would say predicts recidivism I would say it is a lower correlation than other factors.

A. It’s certainly something I would factor in but it’s relative. I suppose a better way of stating is I place less weight on it than other factors .”

45 In answer to a similar question, Dr O’Dea replied:

“ In general, from a clinical perspective, the answer is yes. There are different groups of sex offenders with different problems in which the issue of their inability to understand consent issues does point to a greater risk of reoffending. I point to people with limited social and sexual skills and intellectual disabilities as a group. Certainly that is an issue that can point to further sex offending. But I am not aware of any specific literature that has followed up people with that attribute and identified them as a group that will reoffend at a higher rate .” (T97 L29-39)

46 In his actuarial assessment, Dr Allnutt was guided by the Static-99, which is an instrument designed for the prediction of sexual recidivism in sex offenders. Dr Allnutt explained that any recidivism estimates provided by the Static-99 are group estimates and cannot be applied to the individual. Such estimates can only act as a guide. He states:

“ Overall the Static-99 as an actuarial instrument can act as a guide but should be cautiously and judiciously applied to the individual .”

47 The defendant had he been a subject in the study on which the Static-99 was based would have fallen, Dr Allnutt states, into the group of subjects who were categorised as high-risk for future sexual recidivism. Of individuals in the original study on which the Static-99 was based, of those who scored 6 or greater, 39 per cent sexually re-offended in five years, 45 per cent in ten years and 52 per cent in 15 years. This should be compared, Dr Allnutt states, to the overall average of the group on which the Static-99 is based which was 18 per cent in five years, 22 per cent in ten years and 26 per cent in 15 years. Dr Allnutt pointed out that these sexual offences involved any sexual offence. He cautioned the Court not to apply these statistics to the defendant in determining the legal requirement of being satisfied to a high degree under s 17 of the Act. As he had mentioned the Static-99 can only act as a guide.

48 He concludes:

“ Overall having regard to both clinical and actuarial assessments and considering all the information, in my professional opinion, the defendant would fall into a high-risk group for any form of sexual recidivism. The issue here, however, is whether or not the defendant falls into a high-risk group with regard to ‘serious sexual offending’ and sexual offending in general. Having regard [to] his history and considering the nature of his prior offences, it appears that the defendant’s prior offences have involved a similar modus operandi and the facts are that they occurred on a number of occasions over time. Based on this, in my view it would be reasonable to be of the opinion that if he re-offended sexually, the sexual offences would most likely be of a similar nature or with similar intent to commit a sexual offence of the similar nature, that is a ‘serious sexual offence’. Should he sexually re-offend he would fall into a group of offenders who pose greater risk to adult females rather than children .”

49 Whether or not he, as an individual will or will not in fact reoffend in absolute terms, Dr Allnutt comments, cannot be stated with reasonable certainty. This is because, he explains, placing a person in a particular risk group denotes a probability and not a certainty. Dr Allnutt agreed in his oral evidence that psychiatrists are unable to predict future serious sex offending with sufficient accuracy to meet the requirements of the Act: T 145 L9-13.

50 Although he did not diagnose the defendant as suffering from a major psychiatric illness, Dr O’Dea noted in his report the defendant’s evident ongoing problems with anger and depression. He comments that in addition to his reported score on the Psychopathy Checklist Revised (PCL-R) meeting the requirements sufficient to conclude that he could be regarded as having the personality disorder of psychopathy as conceptualised by the PCL-R, he would also meet the criteria for the psychiatric diagnosis of personality disorder with antisocial and narcissistic traits. Dr O’Dea was there referring to the PCL-R that had been conducted by Dr Baron about which I will expand upon at a later stage.

51 Dr O’Dea was of the view that the defendant’s apparently sustained level of anger over an extended period of years in a variety of settings in custody may point to more specific problems with his moods which may respond to treatment with mood stabilising medication and/or antipsychotic medication in addition to ongoing psychotherapy, including specific anger management. He did not diagnose the defendant as suffering from a paraphilia or other sexual deviance on the defendant’s self report. Dr O’Dea in his oral evidence said: T 99 L 22-31.

“ The fact that I was not able to elicit from Mr Wilde any sexual deviance was one thing, but the offending behaviour in and of itself points to sexual deviance that I would want to be focussing on as I mention in the Opinion section.
This particular sexual deviance is sexual sadism and if that could be identified and treated, rather than relying on psychological treatment, would be perhaps better targeted by biological treatments. ”

52 In his report, Dr O’Dea concludes:

“ From a full clinical psychiatric risk assessment and risk management perspective, and as judged by actuarial risk assessment instruments (such as the STATIC-99 – the widely used actuarial risk assessment instrument aimed at estimating future risk of recidivism of sex offenders), Mr Wilde would be considered as having a significantly high risk of engaging in further sex offending behaviours in the longer term.”

53 Dr O’Dea observed that the margins of error for risk estimates using the Static-99 are so high as to significantly reduce the appropriateness of relying on the defendant’s high score (of 9/12) alone to make decisions about release into the community. Of relevance, he states, is the fact that the Static-99 measures the risk of an individual engaging in a further sexual offence rather than a further serious sex offence as defined in the Act.

54 Dr O’Dea during his oral evidence said that:

“ Static-99 looks at general sex offending rather than specific serious offending set out in the legislation we are addressing. And also the clinical risk assessment and management that I refer to this via a formal psychiatric assessment, also doesn’t really have the power to hone down any specific levels of severity of sex offending. ”
T 92 L 22-27.

55 He further explained that another issue about the Static-99 which was emerging this year was about:

“C onfidence intervals, in the statistical measurements that render it very inexact in an individual case. ” T 92 L 54-55.

56 He comments that the defendant’s specific risk factors include his history of past sexual offending behaviours, in particular within days or months of release from custody in the past, and his diagnosis of personality disorder. In his oral evidence, Dr O’Dea said

“ I came way thinking t hat the two main risk factors for him were the offences that he engaged in and also his personality disorde r.”
T 90 L 56 58.

57 Dr O’Dea comments exhibit B at [57]:

“ Although Mr Wilde’s risk of engaging in further sex offending behaviours would be considered significantly high, I do not consider that the current evidence regarding the assessment of risk is sufficiently advanced to predict with sufficient accuracy Mr Wilde’s precise likelihood of engaging in further sex offending behaviours on release into the community .”

58 Dr O’Dea explained during his oral evidence that he was not sure that there are any clear guidelines to be precise about serious sex offenders and made further reference to the limitations in the Static-99. He was referring to the science of risk assessment: T 92, L38-51, T 96 L 15-19.

59 Dr Allnutt considered that whatever order the court makes the defendant should pursue treatment to address:

(i) his sexual interests and deviant sexual arousal pattern;
(ii) the antecedents, triggers and circumstances of his prior offending;
(iii) developing strategies to reduce exposure to high-risk situations;

(iv) develop anger management skills;

(v) pursuing a more pro-social lifestyle, to this end, assistance in engaging in a pro-social group, stable accommodation and stable employment.

60 Dr O’Dea was also of the opinion that the defendant should engage in psycho-therapeutic treatment. He said that the defendant “should take the opportunity to explore in more detail with a suitably qualified and experienced forensic psychiatrist or psychologist his sexuality in general and his sexual offending behaviour in particular, in order to endeavour to gain a better understanding of specific measures required to help him to manage and minimise his risk of engaging in further sex offending behaviours in the long term”.

61 There is in evidence an affidavit sworn by Graham Rendell on 4 October 2007. Mr Rendell is a senior psychologist with the Department of Corrective Services (the Department) and the regional supervisor for sex offender programs in southern New South Wales. He interviewed the defendant on 25 May 2007 for the purpose of preparing a risk assessment report. Mr Rendell’s affidavit and his report dated 13 June 2007 are exhibit GR1. As Mr Rendell is in hospital, he was unable to give evidence during the current proceedings. A transcript of Mr Rendell’s evidence given on 1 November 2007 is exhibit E. The defendant’s potential for reoffending was assessed by reference to both his static risk factors, using the Static-99 instrument and his dynamic risk factors. Using the Static-99, Mr Rendell obtained a score of 9 for the defendant which placed him in the high risk group for reoffending. Since the recidivism estimates provided by the Static-99 are group estimates, the score does not directly correspond to the recidivism risk of an individual offender, Mr Rendell states, nor does it provide any indication about whether an offender will be in the group of men who will reoffend or the group who will not reoffend. Into which of the two groups a particular individual offender will fall depends on an assessment of the dynamic risk factors.

62 In a report dated 5 December 2007, Dr Olav Nielssen, a psychiatrist, comments on the limitations of the Static-99 as a tool to determine the likelihood of reoffending. He says that the main limitation of the Static-99 is that it cannot say whether an individual with a given score will fall into the proportion of offenders who will commit another offence. The best it is able to predict is that 45 per cent of offenders classified as high risk will commit another offence of any kind within ten years. This reflects the relatively low rate, he states, of recidivism of sex offenders when compared to other offenders in New South Wales, of whom 47 per cent return to prison within two years of release. Another limitation of the Static-99 is that it is based on fixed historical factors which become increasingly inaccurate over time.

63 It is evident that the Static-99 is a predictive tool of limited value. The defendant’s high score on the Static-99 does not by itself establish that the defendant is likely to commit a further serious sex offence. I take his high score into account as a guide in conjunction with the assessments made of him by the psychiatrists and psychologists founded upon his personal risk factors.

64 Mr Rendell identified the defendant’s dynamic risk factors as being:

· Intimacy deficits. He opined that by and large the defendant appears to have significant intimacy deficits. Throughout the assessment process, he noted that the defendant made no mention of any desire to enter into another sexual relationship, or indicated any awareness that the future absence of such a relationship may be problematic.

· Social influences. Mr Rendell noted that on the whole, the defendant appears to have had few if any non-professional non-family positive social influences in his life, together with a limited understanding and awareness of how he will need to (and why) establish positive social influences upon release.

· Distorted attitudes. The defendant, Mr Rendell comments, presents as a man who is ruled by a robust, all encompassing, total self-referential belief system. He is a man of strong conviction and to his mind, of integrity and justice. However, he is apparently the only arbiter of this belief system, and it has little place or reference for, or to others, community convention, social legibility, or common morality.

· General self-regulation. The defendant appears to have significant problems in general self-regulatory functioning. While the defendant seems to possess some degree of emotional constraint and self-regulation when he deems it is essential, he also appears to have experienced over his life a number of situations, relationships and conflicts, which may have compromised this capacity.

· Sexual self-regulation. The defendant’s deficiency in ‘sexual self-regulation’ are evidenced by the defendant’s sexual offences all of which Mr Rendell notes had similar themes, in that the crimes appeared premeditated, the victims were targeted, they were alone and there was physical coercion in the commission.

65 In his report, Mr Rendell reviews the defendant’s attitude and amenability to treatment. He notes that the defendant has not participated in any offence specific treatment whilst incarcerated. Prior to the commencement of the Custody Based Intensive Treatment (CUBIT) Program in January 1999, the Department of Corrective Services did not have a sex offender treatment program, Mr Rendell comments, which complied with international ‘best practice’ standards. During his interview with the defendant, Mr Rendell canvassed with him the programs offered at CUBIT. Mr Rendell reports that the defendant responded by stating forthrightly with no ambiguity:

“ No I won’t do it, not in gaol…legally I can’t because I would have to admit to crimes I didn’t commit as it will impact my s 474 .”

When Mr Rendell explained to the defendant that by accepting responsibility for the 1981 offence he had already satisfied this treatment criterion, Mr Rendell reports that the defendant stated with some emotion that:

“ Morally and ethically he won’t do treatment because (he) won’t do anything with child molesters .”

66 The defendant had earlier stated that he held paedophiles responsible for the murder of his daughter in Victoria, whom he had only in recent years found out existed. Mr Rendell reports that the defendant said, if he were to be knowingly in the presence of child sex offenders he would be ethically compelled to be violent towards them. In further discussion with Mr Rendell, the defendant offered that he:

“ Will do a sex offender treatment in the community as it doesn’t impact his s 474…but not with child molesters…treatment won’t benefit me but may allay community concerns .”

67 Mr Rendell assessed the defendant as being in the high risk category of sexual offending relative to other adult male sexual offenders. He states that the management of an individual’s risk involves enhancing their level of functioning of the ‘dynamic risk factors’. He opines that the defendant lacks “the necessary awareness and motivation to address his cognitive, emotional and behavioural offending sequale (sic).” Because the defendant has not received any treatment for his sexual offending behaviour, Mr Rendell states that “he must be considered to be an untreated sex offender, meaning that his changeable, ‘dynamic’ risk factors have not been subject to psychological intervention to lessen his overall current risk if he returned to community living”: Affidavit at [19]. The defendant’s risk, he comments, may be managed or reduced if he were to complete a suitable treatment program and in custody CUBIT offers a group treatment program appropriate to the defendant’s high risk/needs. Currently there are no community based treatment programs of sufficient intensity, he states, which could expect to meet these high risk/needs. He concludes in his affidavit at [20]:

“ In my opinion, supervision in the community under an extended supervision order would not provide adequate protection in Mr Wilde’s case. This is because in my opinion he represents a high risk of re-offending due to his previous poor record when released to parole. In my opinion there are no measures that would adequately cater for that risk as the position currently stands that would render it safe to release Mr Wilde into the community .”

68 The defendant told Dr O’Dea that he had not attended any sex offender programs in custody and he would not attend any sex offender treatment programs, in particular the CUBIT program, in custody. He said that his refusal to consider attending psychological programs for sex offenders in custody was due to the fact the he would have to attend the groups with “child molesters”. He had earlier informed Dr O’Dea that he had learnt whilst in custody that he had a daughter born in February 1981. Dr O’Dea reports that the defendant told him that he had seen his daughter and her mother in custody when the child was 5 years of age, but that at the time he was not aware that she was his daughter. He informed Dr O’Dea that he subsequently “found out through people she knew”, that his daughter’s mother had been, “murdered by police in Melbourne” in 1989. The defendant said that he further learnt in 1993, that in that year his then 12 year old daughter had been, “…killed by a paedophile…from what I have been told…”

69 Dr Allnutt recounts that the defendant told him that he applied to do CUBIT in 2000 in Bathurst (Correctional Centre) but was told he needed to go to Kirkconnell (Correctional Centre). He said he would have done the program if it had been at Bathurst. The Department records do not support such a willingness by the defendant to participate in CUBIT. It appears that in 2000, Ms Macmillan, a Departmental psychologist, suggested that the defendant may benefit from an educational course known as the Education for Sex Offenders (ESO) program which may increase his motivation to participate in CUBIT. According to her report the defendant was “still reluctant to participate in Departmental Sex Offender Programs”. Ms Rita Sosic, another Departmental psychologist, in a report prepared in 2001 noted that the defendant told her that “he only agreed to do Education for Sex Offenders (ESO) because he would gain a reduction in classification without having to admit guilt”.

70 The defendant’s referral interview form for the Violence Prevention Program run by the Department in 2000 notes that in response to the question as to why he would like to undertake the program, the defendant stated “Don’t want to, forced by SORC”. In response to a question as to his expectations of the program, the defendant is recorded as having replied, “None. No relevance to him”.

71 In her 2001 report Ms Sosic stated:

“ Mr Wilde maintained that he would under no circumstances attend CUBIT as that would be admitting guilt and he would not do that and also he would not interact with child molesters as he stated that his daughter was murdered by a paedophile. This has not yet been verified. Mr Wilde had previously been referred to Violence Prevention Program (VPP) but they would not accept him and recommended that he focus on his sexual offences. Mr Wilde is adamant he will not undertake VPP in any case .”

72 In his report Dr Allnutt states at 18:

“ He is willing to participate in a rehabilitation programme but only on condition that the programme does not entail exposure to child sex offenders and occurs in the community and not the correctional environment. His reluctance to pursue treatment in the correctional setting has been driven by a strong sense of injustice at the legislation and his belief that he has a right to refuse treatment. [H]is reluctance to pursue treatment in groups with child sex offenders has been driven by his strong abhorrence for this population of sex-offenders. This raises concern about his current capacity to adhere to conditions and to engage in a therapeutic relationship. His willingness to participate in a treatment programme is also limited by his strong sense of injustice at his current legal circumstances.”

73 Whilst the defendant’s reluctance to undergo treatment for his sexual offending may find some justification in the death of his daughter, he remains an untreated sex offender. It is clear from the expert evidence that as a result of the absence of treatment, he has a limited ability to respond to and protect himself in situations of risk of sexual reoffending.

74 A report dated 17 March 2004 of Dr John Baron, clinical psychologist, is in evidence. It appears that the report was prepared as part of a risk assessment conducted for the purposes of a possible reduction in the defendant’s security classification. The aims of the risk assessment were to estimate current dangerousness to the community and to minimise the likelihood of reoffending by developing effective management strategies that target relevant risk factors. Dr Baron conducted the assessment in two phases. The first phase involved locating the defendant within a risk category using actuarial instruments. For the purposes of this assessment, the Static-99 and the Hare Psychopathy Checklist-Revised (PCL-R) were used. The second phase involved assessing the defendant’s dynamic risk factors.

75 Dr Baron explains that the PCL-R is a psychological instrument that has been shown to be a reliable predictor of both general and violent (including sexually violent) recidivism in a criminal population. A cut-off score of 30 is normally regarded, Dr Baron states, as sufficient to conclude with considerable confidence that someone can be regarded as having the personality disorder of psychopathy (as conceptualised by the PCL-R). The defendant’s score was 31.1 which placed him, Dr Baron explains, at the 82nd percentile – that is, he scored higher than 82 per cent of the normative criminal population. This score is associated with an 85 per cent rate of general recidivism over a 31 month period of time, and a 25 per cent rate of violent (including sexually violent) recidivism over the same period. The defendant’s Factor 1 score (the core personality construct of psychopathy) placed him at the 53rd percentile – that is, he scored higher than 53 per cent of the normative criminal population. This result indicates that the defendant shows personality characteristics that typify the “psychopathic personality” at about the same level as do most in a criminal population. However, his Factor 2 score (relating to a generally criminal life style) placed him at the 100th percentile, indicating that his overall lifestyle was at the extreme end of criminality relative to the normative criminal population. Dr Baron notes that the defendant’s actual risk does not, of itself, allow any prediction of whether he will be among the percentage who might be expected to reoffend generally, sexually or violently, or the percentage who do not – but it does indicate that there are significant personal risk factors that need careful attention in order to help him minimise his likelihood of reoffending.

76 Dr Baron considered the defendant’s dynamic risk factors and concluded at p4:

“ Consideration of dynamic risk factors having most empirical support (including intimacy deficits, social influences, offence- related attitudes and beliefs, sexual and general self-regulation, substance abuse, mood, problems with anger/hostility, and opportunities for victim access) would suggest that, unless all relevant risk factors are addressed in treatment, Mr Wilde would be at considerable risk of re-offending generally, violently or sexually.”

77 He assessed the defendant “as falling in high-risk groups for general and violent (including sexually violent) re-offending”: at p4.

78 The defendant’s score on the PCL-R, however, does not by itself establish that the defendant is likely to commit a further serious sexual offence. It is another factor to be taken into account as a guide in conjunction with the assessments made of him based upon his personal risk factors.

79 Jayson Ware, a psychologist and the state-wide clinical coordinator of sex offender programs with the Department, states that psychopathy was found to be “one of the most robust predictors of sexual recidivism”. In his oral evidence Mr Ware agreed that the defendant was an untreated sex offender and said that his risk of reoffending had not changed in the past 16 years of his incarceration. Mr Ware has not met the defendant. He had agreed with the contents of Mr Rendell’s report having reviewed the Department’s psychology file on the defendant and discussed the outcome of Mr Rendell’s assessment.

80 In his report dated 13 December 2007, Dr Nielssen comments that psychopathy is not a medical diagnosis, but a proposed classification of personality type that is derived from a pattern of antisocial conduct.

81 Dr Nielssen considers that:

“ Previous offences remain the best predictor of future offences, and as such a pattern of previous offences would increase the risk of both sexual and non sexual offences .”

82 A common theme of the expert opinions is that past offending is a principal risk factor in the assessment of future offending.

83 Each of the experts who has interviewed the defendant assessed him as being in a high risk group of sexual reoffending. Dr Allnutt was of the opinion that if the defendant reoffended sexually, the sexual offence would most likely be a serious sexual offence. Dr O’Dea considered that the defendant was a significantly high risk of reoffending in the long term. Dr Baron opined that the defendant was assessed as being in a high risk group of reoffending which included sexually violent offences.

The likelihood of committing a further serious sex offence

84 Considering in combination the defendant’s non-compliance with obligations imposed upon him by a court or upon release on parole, his pattern of serious sexual offending, the expert evidence, particularly the opinions of Dr Allnutt and Dr O’Dea and the absence of treatment, 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.

85 I do not propose dismissing the application.

Will adequate supervision be provided by an extended supervision order?

86 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”.

87 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 at [23]

88 Should the Court decide to make an extended supervision order Dr Allnutt recommends that a risk management plan be in place prior to the defendant’s release with the agreement of all clinicians involved. The plan would involve oversight by an identified centralised person and Probation and Parole would be best suited for the purpose. A psychologist and psychiatrist with expertise in the treatment of sexual offences needs to be identified and agree to take care of the defendant. The defendant should be placed in a metropolitan environment that provides for access to specialist psychological, medical and psychiatric services. Dr Allnutt refers to monitoring which includes face-to-face contact with clinicians and multidisciplinary meetings. Supervision should include strict demand for compliance to supervision orders. So far as treatment is concerned, Dr Allnutt opines: exhibit A at p20

“ Given the risk of ongoing limited capacity for appropriate sexual self-regulation and the significant impact that this has had on his social functioning in the past, Androcur to reduce sex drive should be considered. Consideration could also be given to Serotonin Reuptake Inhibitors. However, at this stage he is not consenting to the medication and this would be an important pre-requisite to its prescription .”

89 Dr Allnutt makes reference to the defendant pursuing rehabilitation with a community treatment program, being encouraged to integrate with an appropriate social group and to pursue gainful employment.

90 The defendant had told Dr Allnutt that he saw no reason to take medication for his sex drive.

91 Dr O’Dea considered that treatment in the form of medication might assist the defendant. He comments that his mood problems may respond to treatment with mood stabilising medication and/or antipsychotic medication in addition to ongoing psychotherapy, including specific anger management aimed at helping him better manage his anger: exhibit B at [53]. In addition specific clinical psychiatric attention should be given to the potential for sexually sadistic fantasies and/or urges driving his sexual offending behaviour. Control of such fantasies and/or behaviours, he said, if they were to be identified, may be assisted by the judicious use of testosterone lowering medication in conjunction with psychotherapy: exhibit B at [60]. Dr O’Dea, states at [62] that “further extended periods in custody to complete specific psychological programs are unlikely to significantly reduce Mr Wilde’s risk of self re-offending in the long term.”

92 There is no mention in Dr O’Dea’s report that he asked the defendant whether he would consent to either the antipsychotic or anti-libidinal medication.

93 During his oral evidence Dr Allnutt noted a number of difficulties with the proposed treatment in the form of anti-libidinal medication. When asked whether the suggestion in his report for a biological approach to be taken to suppress the defendant’s urges was a good idea, Dr Allnutt replied: T 149 L12-17, L22-39

“ It is a suggestion. The difficulty is that a clear diagnosis of paraphilia has not been made. However, there is, given that he has recidivated so quickly, potentially a high drive, whatever else motivates him, that might need suppression, and he is involved in recurrent rape behaviour.”

And further:

“ There is an argument in this case, in his case, that he might benefit from a suppressant medication. I think the difficulty is his rule adherence. Yes, there has been a reduction and one has to acknowledge that, but at the same time one has to also balance that with concern about his tendency to perceive rules as not being pertaining to him particularly. He almost has – one almost gets the sense that he has a set of rules that he feels is applicable to himself and finds justification in not adhering to other sets of rules, and that is to a large degree – that would need to be addressed, in whatever form, whether that is treatment of some sort of psychotherapy or people working with him, helping him to understand that there are certain rules that are applicable to him. He might have a certain philosophical alternative on the world if he does not comply. There is a requirement for him to comply to the people and him, their rules. He has to.”

94 A problem identified by Dr Allnutt with administering this form of treatment was its reliance on the patient’s self-report as to its effectiveness. When asked whether he would recommend it, Dr Allnutt said: T151 L11-30

“ In his case I think, on balance, I would, because of his recurrent tendency to recidivate relatively quickly after release would suggest drive. The problem in this case, however, is that we don’t have much self report. In other words, he denies all the other offences except for one, and the one he provides a non-sex drive reason. What I am saying is that he provides an account that is external to himself as to why he acted that way, which is really revenge. So, the problem here is that we have got, at this stage, to develop, in the way of self report, the frequency, nature of the fantasies that he might have, the strength of his [sexual] drive, in order to have some sort of baseline measure to see whether this will be effective or not. When you prescribe this medication, you need to have – you rely heavily on self report, because the effectiveness of the medication, your measure of it, at this stage in New South Wales, depends on self report and, obviously, external reports, which unfortunately come when there is an offence, and that is too late. ”

95 In the passage which I have quoted at [93] supra, Dr Allnutt made reference to a reduction in the defendant’s misconduct in prison. It appears from Mr Rendell’s review of the Department’s records that the defendant had some 82 entries of correctional centre “misconducts” not all of which resulted in conviction. The vast majority, it seems, were for various forms of institutional disobedience: exhibit GR1 Rendell Report at p19. Over the last ten years his institutional misconduct has reduced. There are, it appears to me, 12 “events” recorded on the custodial misconduct/misbehaviour record from 10 August 2000. Three of the events are said to have occurred this year during pat down searches conducted by female officers. It is to his credit that he has completed a number of courses whilst in custody: see p609-629 vol 2 exhibit C.

96 When asked by the defendant’s counsel whether the reduction is something to be looked at in terms of the defendant’s compliance as to what he will do on release, Dr Allnutt said: T 148 L34-43

“ A. Yes, that is a difficult call to make. We must remember that these are two different environments. There is one environment which is far more strict and stringent on the person, so one has to proceed cautiously in drawing the conclusion that he has not been complained of in custody. That does not mean he will now conform to his behaviour in the community, but one has to, at the same time, acknowledge that there seems to be a degree of self regulation that has developed and that probably comes with age .”

97 The defendant told the psychiatrists that he had yet to organise housing or employment on his release from custody. He told them that he had plenty of friends and support. The defendant informed Dr O’Dea that he was planning to see a psychologist “on a one to one basis” following his release into the community but did not feel that he needed to be directed to do so. Dr O’Dea recounts that the defendant also told him that he saw “…No need to see a psychiatrist…psychiatrists deal with psychology issues on drugs…”: exhibit B at [47].

98 The defendant did not give evidence during the hearing nor did any witness other than Dr Nielssen give evidence in his case.

99 Sue Knight, the acting superintendent with the Department’s Commissioner Compliance group, deposed to the electronic monitoring of offenders upon release. Ms Knight detailed the use of electronic monitoring using a radio frequency unit and electronic monitoring using a global positioning system. It is apparent that electronic monitoring has its limitations.

100 As I have recounted, Mr Rendell was of the opinion that there are no community based treatment programs of sufficient intensity which could meet the defendant’s high risk/needs. Both he and Mr Ware consider that the CUBIT program is the sole treatment program which is suitable in the case of the defendant’s high risk. CUBIT is a high intensity cognitive behaviour treatment program for sex offenders assessed as being in the moderate to high risk category for recidivism. Group therapy sessions are run three mornings per week for approximately 2.5 hours each morning. Between therapy sessions participants in the CUBIT program 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. The program runs for approximately eight to ten months and participants in the program are accommodated in a self-contained 40-bed unit located in the Metropolitan Special Programs Centre at the Long Bay Correctional Unit.

101 Rhonda Booby, the Director, Offender Services and Programs for the Department states in her affidavit at [7] that CUBIT is the best program to address the factors which have been identified by Mr Rendell as relevant to the defendant’s risk of reoffending for the following reasons:

a. The CUBIT program provides access to a range of psychologists to maximise opportunities of having therapists who could work effectively with the defendant. This allows for allocation of therapists appropriately to more effectively build the therapist/client alliance;
b. Participation in CUBIT would ensure the defendant was in a group program. Working in a group can result in more effective challenging of beliefs and rationalisations. This potential may be enhanced by the inclusion of heterogenous sex offenders;
c. The CUBIT program operates four groups at any one time, and his inclusion in CUBIT would allow him to be moved between groups if group dynamics required this.

102 The effectiveness of the CUBIT program is difficult to assess. Mr Ware referred to initial research which he acknowledged is limited. The study has considered 104 participants in the CUBIT program who have been released into the community. The average length of time in the community of the participants is about 3.4 years. Of those participants 6 per cent have reoffended. The prediction rate of reoffending based on the STATIC-99 for high risk sexual offences is 26 per cent. The sample group of participants in the study is necessarily small as CUBIT commenced in 1999.

103 Dr Nielssen is of the opinion that there is little scientific evidence to support the efficacy of programs to reduce recidivism among sex offenders. He points out that the CUBIT program has not been subjected to an independent assessment of efficacy. He is critical of the methodology of the study as the comparison is made between those who had completed CUBIT at an average of 3.5 years with expected reconviction rates using the Static-99 at five years. A better methodology, he says, would have been to look at the re-incarceration rates of all sex offenders, or those advised to do CUBIT.

104 One of the reasons expressed by Ms Booby as supporting her opinion that CUBIT is the best program to address the defendant’s dynamic risk factors is that participation in CUBIT would ensure that the defendant was in a group program of heterogenous sex offenders.

105 It seems that evidence supporting Ms Booby’s view is at best limited. Dr O’Dea said in his oral evidence that there was no good evidence to support group therapy as being “superior to individual therapy or vice versa”: T 89 L 55-56. Dr Allnutt commented that there is no evidence suggesting that having different sex offenders in the one group enhances a therapeutic environment. He qualified his opinion by stating that he was not an expert on group therapy: T 140 L 55-57.

106 The Department proposes a three stage treatment plan which is intended to address the defendant’s attitude towards paedophiles and thereby enable him to enter CUBIT. During stage one, the defendant would be encouraged to participate in “one on one” treatment with a psychologist to work on his threatening behaviour and his motivation in sex-offender treatment. The treatment comprises two sessions per week for a period of six to nine months depending on the defendant’s level of engagement which would take place at Goulburn Correctional Centre (Goulburn). After completing stage one, the defendant would remain at Goulburn for the purpose of undertaking the Preparatory Pre-Treatment Program (PREP) to motivate him to continue sex offender treatment. PREP runs an open-ended group format with one to two sessions per week. Ms Booby in her affidavit states that offenders usually require 12 –14 sessions to complete PREP, however, due to the defendant’s highly unmotivated level of engagement, this component may take up to four to six months.

107 The third stage of the proposal is the CUBIT program. Ms Booby states that if the defendant was to undertake the Department’s plan, he could be case managed in such a way so as to maximise the likelihood that a vacancy could be made available to him in CUBIT at the time he was ready to enter the program.

108 Ms Booby estimated that successful completion of the total program would require a minimum period of approximately 18 months to a maximum of approximately 25 months duration. It is for this reason that a continuing detention order is sought for 25 months.

109 Should the defendant after the completion of stages one and two be considered unsuitable to enter CUBIT, Ms Booby states that the Department would be prepared to provide an alternative group-based sex-offender program. Ms Booby opines that this option is inferior to CUBIT as agreeing to an individualised treatment program would tend to reinforce the defendant’s belief that he is different from other offenders and additional therapy work would be required to assist him to understand the features of his offending behaviour that are similar to other sex offenders. Furthermore a group conducted in isolation from other groups, she states, affords less scope for changing the mix of participants to maximise the therapeutic outcome. This is limited even further if the group is confined to a specific class of sex-offender, in this case rapists of adults.

110 In answer to my question, Ms Booby gave evidence that the alternative group based sex offender program could be provided at Goulburn without the defendant completing stages 1 and 2 of the proposed plan. She had discussed it with Mr Ware and had spoken to psychologists at Goulburn.

111 Ms Booby said: T 138 L35-39

“ We have spoken to psychologists down there, we could start that soon. We may not be able to start the group soon, because we have to get the other offenders there, but we can start by one on one leading to the group immediately.”

112 The choice of Goulburn, she said created an issue in relation to the defendant’s classification, because he was of a lower inmate security than the general inmates at Goulburn. The reason for the location at Goulburn was that the psychologists at that facility had been trained by Professor Marshall. The Department was intending to set up “a deniers program” under the Professor’s leadership for an offender who is in the category of denying an offence. In answer to a question by Mr Morison Ms Booby suggested that the program might take longer than six months.

113 Under the Department’s three stage treatment plan similar difficulties arise with the prisoner’s classification as stages one and two are to take place at Goulburn and are estimated to take up to 15 months.

114 Mr Morison submits that a continuing detention order should not be made as the Department has deliberately decided not to provide high risk programs in the community which prevents a fair hearing and outcome for the defendant and is an abuse of process. This contention must be rejected.

115 Consideration had been given by the Department, Ms Booby said, to conducting a high risk program in the community. The Department had, however, taken the view that it could not manage the risk of high risk sex offenders in the community for a therapeutic program. She explained that whilst a high risk sex offender is undertaking a treatment program such as CUBIT for about nine months the offender remains a high risk for the duration of the program. Should the program be undertaken in the community, the offender is a high risk person in the community. The appropriate place to complete a program that reduces the risk of an offender who is a high risk at the beginning of the nine months to something less than high risk at the end of nine months, she states, is in custody and not in the community.

116 It appears to me that this was a decision which was reasonably open to the Department to make to ensure the safety and the protection of the community. There is no justification for the assertion that the decision was made for an improper purpose.

117 The suggestions by Dr Allnutt and Dr O’Dea for future treatment in the community depend upon the defendant’s compliance, co-operation and honest self-report. Although there have been matters of concern in recent times, some improvement has been shown in his compliance whilst in custody in the last 10 years. As Dr Allnutt notes in his evidence set out at [96] supra, this improvement is to be treated with caution. The defendant’s self referential belief system and the rigidity of his attitudes, however, diminish the prospect of his adherence to a regime of supervision. The defendant’s distorted attitudes have been identified as one of his personal risk factors.

118 In the present case a risk management plan for the defendant has not been developed. Mr Morison asks that the proceedings be adjourned so that a risk management plan might be considered. He said that the defendant has been fully occupied by the present proceedings and has been unable to make arrangements for housing or employment. Mr Morison points out that the burden of proof is on the plaintiff. Mr Menzies QC for the plaintiff explained that there is no evidence concerning the conditions which might be available on a supervision order as the plaintiff does not seek such an order. It is not, Mr Menzies QC submits, for the plaintiff to elaborate on something it does not seek.

119 Although the plaintiff does not seek a supervision order, the plaintiff bears the onus of satisfying the Court to a high degree of probability that an extended supervision order would not obviate the likelihood that the defendant will commit a further serious sex offence.

120 Dr Allnutt identified what is required for a risk management plan. No steps, it seems, have been taken for such a plan to be advanced.

121 How can this Court 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 is properly explored and the defendant’s attitude to a proposed plan is obtained? On the present evidence, it is not possible to make such a determination. Furthermore, it is not possible for the Court to devise a regime of extended supervision.

122 The present difficulty may be overcome by the development of a plan in accordance with Dr Allnutt’s recommendation. The co-operation of the Department and the defendant is necessarily required. Neither of the parties should assume that a direction for the preparation of a risk management plan is an indication that I propose to make an extended supervision order.

123 The first obstacle for the proper development of such a plan is the lack of time and the time of the year. Such is a consequence of these proceedings being commenced about a month before the defendant was due for release. It was open to the plaintiff to make the application within the last six months of the defendant’s custody: s 6(2) of the Act. The second obstacle is that the current interim detention order expires on 27 December 2007 and s 16(3) of the Act provides:

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

124 As the first interim detention order was made to commence on 4 November 2007 it seems that the total period of three months expires on 3 February 2008. The present application will need to be finally determined before that date.

125 I am also mindful that s 3 of the Act is to be amended by the Law Enforcement and Other Legislation Bill 2007 tomorrow (21 December 2007).

126 As has been stated at [84] supra, 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. Furthermore, I do not propose dismissing the application. Accordingly, I make the following orders:

1. That John Alan Wilde pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act 2006 be detained at a Correctional Centre on an interim basis for a period of 28 days from 28 December 2007 expiring 24 January 2008.
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 period specified in order 1.
3. Direct that the Director, Offender Services and Programs for the New South Wales Department of Corrective Services or some other suitable person as may be nominated by the Director develop a risk management plan for Mr Wilde in conjunction with his legal representatives. The plan is to be finalised on or before Wednesday 16 January 2008.
4. Any further affidavits are to be filed and served on or before Tuesday 15 January 2008.
5. Summons stood over for further hearing on Thursday 17 January 2008.

6. Liberty to apply on 24 hours notice.

7. Recommend that Mr Wilde be held in custody in accordance with his classification as a minimum security prisoner.
8. Section 77 order to issue to ensure the defendant is before the Court on Thursday 17 January 2008.
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30/01/2008 - Typographical error - Paragraph(s) 30, 38, 88, 112