Attorney General for the State of New South Wales v Winters - [2007] NSWSC 1071

No judgment structure available for this case.

CITATION: Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17-19 July 2007 ; 26 July 2007; 9 August 2007; 24 August 2007; 28-31 August 2007; 4 September 2007; 14 September 2007

JUDGMENT DATE :
26 September 2007

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

DECISION: 1. Notice of Motion filed by the defendant on 14 September 2007 is dismissed; 2. I order that Christopher Paul Winters be detained in a correctional centre for one year from today; 3. Pursuant to s 21 of the Act, I issue a warrant for the committal of Christopher Paul Winters to a correctional centre for the duration of the continuing detention order in order 2 above.

CATCHWORDS: Serious sex offender – Custody Based Intensive Treatment program not completed by offender – application for extended supervision order or continuing detention order – STATUTORY INTERPRETATION – meaning of the word “likely” – standard of proof – high degree of probability – whether offender likely to commit a further serious sex offence – whether adequate supervision would be provided by an extended supervision order – EXPERT EVIDENCE – whether possible to predict risk of re-offending – actuarial assessment – dynamic risk factors – whether proposed management plan adequate – availability of funding to implement management plan – ABUSE OF PROCESS – motion to stay proceedings until funding available for treatment – whether the Court’s discretionary option was frustrated – whether defendant received a fair hearing – unfairness in outcome or in the hearing process

LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006

CASES CITED: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605
Attorney General v David [1992] VR 46
Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
Attorney-General v Greater Manchester Newspapers Ltd [2001] All ER 32
Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) [2003] FCA 1229,
Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1976) 14 SASR 303
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
Darkan v The Queen (2005) 227 CLR 373
Department of Agriculture and Rural Affairs v Binnie (1980) VR 836
Dietrich v The Queen (1992) 177 CLR 292
Director of Public Prosecutions for Western Australia v Williams (2007) WASC 95
Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575
Global Sportsman Pty Ltd v Mirror Newspapers (1984) 55 ALR 25
Jabarula v Poore (1989) 42 A Crim R 479
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Macartney v The Queen (2006) 31 WAR 416
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665,
Poighand v NZI Securities Australia Ltd (1992) FCR 363; 109 ALR 213
R v Hallett [1969] SASR 141
R v Hind (1985) 80 A Crim R 105
R v Sheppard [1981] AC 394
R v Wills [1990] 2 Crim LR 714
Re Bullivant’s Natural Health Products Pty Ltd & Minister for Health and Family Services (1996) 43 ALD 305
Sheen v Fields Pty Ltd (1984) 58 ALJR 93
The State of Western Australia v Alvisse (2007) WASC 129
Tillmanns Butcheries v AMIEU (1970) 27 ALR 367
TSL v The Secretary to the Department of Justice [2006] VSCA
Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260
Williams v Spautz (1992) 174 CLR 509 at 518

PARTIES: Attorney-General for NSW (Pltf)
Christopher Paul Winters (Def)

FILE NUMBER(S): SC 12483/07

COUNSEL: D A Buchanan SC/D T Kell (Pltf)
D Dalton SC (Def)

SOLICITORS: Crown Solicitor of NSW (Pltf)
Legal Aid Commission of NSW (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNEDAY 26 SEPTEMBER 2007

12483/2007 ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v WINTERS
JUDGMENT

1 HIS HONOUR: The Attorney-General for the State of NSW applies for an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 that the defendant, Christopher Paul Winters, be detained in a correctional centre for a period of five years. In the alternative the Attorney General seeks an order pursuant to s 17(1)(a) of the Act that the defendant be subject to extended supervision for a period of five years. The summons in which relief was claimed sought the imposition of various conditions in the event of an order being made pursuant to s 17(1)(a). Those proposed conditions have been modified during the course of the hearing.

2 On 13 June 2007 Bell J made orders pursuant to s 16 and s 21 for the interim detention of the defendant. Pursuant to s 15(4) her Honour also directed that two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the defendant. This was done and Dr O’Dea and Dr Allnutt were appointed. They have provided written reports and given oral evidence during the course of the proceedings.

3 On 14 September 2007 I made orders providing for the continuing detention of Mr Winters. Those orders were as follows:

4 As well as making those orders on 14 September 2007 I granted leave to Mr Winters to file a motion seeking a stay of the proceedings. I ordered that that motion be dismissed. I now publish my reasons for the orders which I have made.

The defendant and his offences

5 Mr Winters was born on 27 May 1966 and is 41 years old. During his childhood he lived with his family in Cootamundra. He was subject to both physical and sexual abuse as a child. In around 1996 he moved to Wagga Wagga where he was a student.

6 At the time the present application was made he was serving 2 sentences of imprisonment of 9 years with non-parole periods of 5 years and 5 months following conviction for various offences of sexual intercourse with children of varying ages. He was previously convicted of other offences. A complete chronology of his offences and convictions is set out below:

Date	Event
14 April 1983	Admonished and discharged re offence of negligent driving (per s 83(3) of Child Welfare Act 1939) – Cootamundra Children’s Court
8 August 1983	Admonished and discharged re offence of supplying Indian Hemp – Cootamundra Children’s Court
3 December 1984	Convicted of stealing – Magistrate’s Court, Southport (Qld) (O’Connell SM) – placed on probation for 18 months
18 December 1987	Date of offences of: 1.peep and pry [s547C of the Crimes Act]; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a fly screen) [s 247 (since repealed) of the Crimes Act] (offences occurred at 18 Warren St, Cootamundra at the property owned by Mr Frances Moss)
22 December 1987	Date of arrest re offences on 18 December 1987. (Mr Winters granted conditional bail)
28 February 1988	Date of (further) offences of: 1. peep and pry; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a window frame) (offences occurred at 80 Berthong St, Cootamundra at the property owned by Mr Alan Moston)
7 March 1989	Convicted in Cootamundra Local Court of 18 Dec 87 offences of: 1. peep and pry; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a fly screen) [s 247 (since repealed) of the Crimes Act] · on first offence: fined $200; · on second offence: recognizance (good behaviour) for 4 years (ie to 6.3.93); · on third offence: fined $100 [see ex JS-8 at 4267-4269]; · on fourth offence: sentenced to 150 hours community service and pay $35 compensation within 7 days On same day, convicted of 28 Feb 88 offences of: 1. peep and pry; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a window frame). · on first offence: fined $200; · on second offence: recognizance (good behaviour) for 4 years (ie 6.3.93); · on third offence: fined $100; · on fourth offence: sentenced to 150 hours community service and pay $75 compensation within 7 days
3 September 1990	Convicted of offensive language. Fined $150
1 January 1997 to 18 June 1998	Dates over which offences occurred for which Winters convicted on 18 March 1999 (Payne DCJ also noting that the incidents occurred as part of a wider pattern of conduct)
18 March 1999	Convicted of 13 sex offences committed against 9 male children over the period between from 1 January 1997 to 18 June 1988: Convicted of the following: · two offences of sexual intercourse with a person under the age of 10 years (s 66A Crimes Act 1900); · one offence of sexual intercourse with a person between the age of 10 and 14 years (s 66C(1)); · four offences of aggravated indecent assault with a person under the age of 10 years (s 61M(2)); · three offences of aggravated act of indecency against a person under the age of 10 years (s 61O(2)); and · three offences of act of indecency against a person under the age of 16 years (s 61N(1)). Sentenced to overall sentence of imprisonment for 9 years, commencing on 18 June 1998, with a non-parole period of 5 years and 3 months expiring on 17 Sept 03

7 The 13 sex offences against children, over the period between January 1997 and June 1998, which led to Mr Winters’ imprisonment involved 9 male victims aged between 8 and 15 years old. By reason of the fact that Mr Winters has been sentenced to imprisonment following his conviction for “serious sex offences” within the meaning of the Act, he is a “sex offender” within the meaning of s 4 of the Act and is amenable to an application for an order under it.

8 The defendant was sentenced by Payne DCJ on 18 March 1999. Her Honour gave an account of the offences in the following terms:

“Count 1, between 26 April 1998 and 10 June 1998 the complainant in this matter, … nine years old, visited the home of the prisoner at 17 Dennis Crescent, Wagga Wagga. Whilst in the house the complainant climbed into the roof cavity to retrieve a tennis ball. As he did this, the prisoner pulled the complainant's pants down and squeezed his penis.

The prisoner then sucked. the complainant's penis.

On four other occasions during this period of time the prisoner indecently assaulted and committed acts of indecency upon this complainant. The prisoner allowed the complainant to play on his computer in return for taking his lower clothing off, fondled the complainant's penis and showed the complainant his own penis.

Count 3, between 1 February 1998 and 18 June 1998 , the complainant in this matter, … aged ten years, visited the prisoner at his home. The prisoner asked the complainant to suck his penis but the complainant refused. The prisoner then sucked the complainant's penis whilst the complainant was playing on the computer, causing it to become erect.

Count 4 , also between 1 February 1998 and 18 June 1998 , the complainant … visited the prisoner at his home. The complainant was playing on the prisoner's computer when the prisoner said, ‘I've got a surprise in my pocket.’ The complainant put his hand into the prisoner's jeans pocket and found there was a hole in the bottom of the pocket. The prisoner was not wearing underwear and the complainant's hand touched the prisoner's penis.

During the same period, the prisoner on two other occasions sucked the complainant's penis whilst he was, playing on the computer at the prisoner's home.

Count 5, between 1 January 1997 and 31 January 1997 , the complainant in this matter, … nine years of age, visited the prisoner at his home. The complainant was watching television with the prisoner when the prisoner lay down on his back. The prisoner then pulled the complainant on top of him so he was lying face to face and then rubbed the complainant's lower body up and down on his genital area. The prisoner and the complainant were both clothed at the time.

Count 6, between 1 April 1997 and 10 April 1998 , the complainant in this matter, … eight years of age, visited the prisoner at his home. The prisoner pulled down the complainant's lower clothing exposing the complainant's genitals.

The same thing happened a number of times whilst the complainant was visiting the prisoner over this period of time.

Count 7, on 13 June 1998 the complainant in this matter, … nine years of age, visited the prisoner at his home with some friends. The prisoner told the complainant and his friends to climb into the roof cavity through the manhole and watch the prisoner whilst he showered. The complainant did this, watching the prisoner masturbating in the shower through a hole in the ceiling over the shower recess.

Count 8 , between 1 January 1997 and 18 June 1998 this complainant, … was at the prisoner's home when the prisoner 'dacked him'. This involved the prisoner pulling the complainant's lower clothing down and exposing his genitals.

During the same period of time there were other occasions when the prisoner pulled the complainant's lower clothing down. The prisoner also took his own clothes off and "jumped all over us and lays on us, and that".

Count 9, between 1 September 1997 and 31 December 1997 the complainant in this matter, … thirteen years of age, visited the prisoner’s home. The complainant was in the lounge room playing on the prisoner’s computer when the prisoner came into the room, naked from the waist down with his penis in full view. The prisoner walked up to the complainant and said, ‘Suck my dick, suck my dick.’ The complainant declined and the prisoner then went and put some pants on.

On two other occasions during this period the prisoner asked this complainant to suck his penis and once fondled the complainant’s penis through his clothing.

Count 10, between 1 September 1997 and 31 December 1997, the complainant in this matter, … eleven years of age, visited the home of the prisoner. The complainant was playing on the prisoner’s computer when the prisoner exposed his penis and said to the complainant, ‘Suck on this.’ The complainant ignored the prisoner and did not do as he was asked.

On one other occasion during this period whilst the complainant was visiting the prisoner’s home, the prisoner exposed his penis and again asked the complainant to suck it. Again the complainant refused.

Count 11, between 1 January 1998 and 30 April 1998, the complainant in this matter, … nine years of age, visited the prisoner’s home. The prisoner ‘dacked’ the complainant, pulling down his lower clothing and squeezed the complainant’s penis.

Count 12, also between 1 January 1998 and 30 April 1998 the same complainant, … was at the prisoner’s home when the prisoner tied the complainant to a bed in a spare bedroom with rope. Whilst the complainant was tied on his back to the bed, the prisoner pulled the complainant’s lower clothing down and poked his penis with his hand. The prisoner also sucked the complainant’s penis whilst he was tied up.

Count 13, between 1 April 1998 and 30 April 1998, the complainant in this matter, … nine years of age, visited the prisoner at his home. The complainant was playing on the prisoner’s computer when the prisoner pulled the complainant’s lower clothing down and then sucked his penis.

On other occasions the prisoner ‘dacked’ the complainant, pulling his clothing down, exposing his genitals. The prisoner also on one occasion tied this complainant to a bed naked and left him there. The complainant was eventually able to free himself and escaped from the house through the roof.”

9 Her Honour described the offences as serious, the most serious being counts 2 and 13. Her Honour found there was no suggestion of force in relation to any of the counts in the indictment. However, the Crown challenged this finding in these proceedings having regard to the fact that one complainant was tied up. Her Honour also found that none of the offences involved a breach of trust. The defendant took advantage of the vulnerability of young boys and gained their interest and attendance at his house by allowing them to use his computer and on an occasion by giving a boy cigarettes.

10 The defendant admitted most of his serious criminal acts although he did not accept all of the allegations. The Crown conceded that although he was reticent in an earlier interview when later interviewed he gave a frank account of various matters.

11 When the offences were committed the defendant was aged between 30 and 32. He was taken into custody on 18 June 1998. The sentencing judge found that his prior record is not one which disentitled him to some leniency. He had never previously been ordered to serve a community service order or a sentence of periodic detention or full time custody. Until the offences for which he had been sentenced his record was free of any entry since September 1990.

12 Her Honour determined that there were special circumstances in the defendant’s case. Those circumstances required a longer than usual additional term. The special circumstances which the sentencing judge identified were that this was the defendant’s first full-time custodial sentence, the nature of the offences and the need for on-going counselling and rehabilitation to assist him to reintegrate back into the community. This need was greater because of the mental disability which it was identified affected the defendant. As it happens her Honour’s intention that there be a supervised re-entry into the community has been entirely lost.

The legislative regime

13 The objects of the Act are provided in s 3 which states:

“The objects of this Act are to provide for the extended supervision and continuing detention of serious sex offenders so as:

14 A “serious sex offence” is defined in s 5(1) of the Act and means any one of the following:

(i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for seven years or more, and

(ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

(b) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for seven years or more,

and includes:

(c) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and

15 The Act provides that the court may make an extended supervision order or a continuing detention order. Section 17 of the Act provides:

17 Determination of application for continuing detention order

(1) The Supreme Court may determine an application for a continuing detention order:

(a) by making an extended supervision order, or

(b) by making a continuing detention order, or
(c) by dismissing the application.

(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.

(3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.

(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

16 Both an extended supervision order and a continuing detention order may be made for a period not exceeding five years. Further orders may be made which would extend the effective period of supervision or detention beyond five years (s 10 and s 18).

17 The court may at any time vary or revoke an order (s 13 and s 19).

18 A person who is released under an extended supervision order and fails to comply with the requirements of the order is guilty of an offence and liable to imprisonment for a maximum of two years (s 12). Further orders may be made in relation to that person which would have the effect of continuing their detention or release under supervision at the completion of the sentence imposed for any breach.

The nature of the legislation and some problems

19 When the legislation was introduced into the Parliament the Minister identified the problem which the Bill was intended to address in these terms:

“One particular concern that is dealt with by this 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 bill addresses 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. The Department of Corrective Services has advised that only a small number of offenders would fall into this very high-risk category.”

20 Later the Minister said:

“Clauses 8 and 16 enable the Supreme Court to make interim supervision or detention orders so that an offender can be kept under supervision or in detention pending determination of an application. This power is important in cases where it appears that the offender’s period of custody or supervision will expire before the proceedings are determined. It allows the offender to be detained for up to 28 days, but upon renewal of the order the total period for which an offender can be kept under interim supervision is three months. This limit will ensure that people are not held on rolling orders, and will encourage expeditious determination of these matters. Clause 9 provides that the Supreme Court may make an extended supervision order only if it 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. The test for making a continuing detention order is contained in clause 17. Before making a continuing detention order the Supreme Court must decide that a supervision order would not be sufficient to deal with the risk of a prisoner reoffending. It may make a continuing detention order only if it 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 in custody.”

21 With respect to the matters listed for consideration in clauses 9(3) and 17(4) the Minister said:

“Clauses 9(3) and 17(4) contain a non-exhaustive list of matters the court must consider before making an order, including reports from psychiatrists and the results of any assessment prepared in relation to determining the likelihood of the offender committing a further serious sex offence. The indicia are meant to guide the court in distinguishing the small number of high-risk offenders who have not made any attempt to rehabilitate whilst in prison. Clauses 10 and 18 provide that the maximum term for either order is five years, but nothing prevents the Attorney General from making further applications so long as the principal test continues to be satisfied. Clause 7 specifies the kind of conditions that can be imposed on a supervision order, which are similar to those that a person on parole may be placed on. Clause 12 makes it an offence punishable by a fine of 100 penalty units or imprisoned for two years, or both, for a person to fail to comply with the requirements of a supervision order.”

22 The Minister recognised that after an order has been made the circumstances of an offender may change. He said that, if that occurred clauses 13 and 19 provide a power in this Court to deal with any change in circumstances. Although the Act as legislated contains the acknowledged power to vary or revoke a supervision or detention order in the event that a supervision order is breached or proves impossible to implement it contains no power to require the offender to be returned to custody. Revocation of a supervision order would have the consequence that the person remains at large without supervision or an obligation to comply with any conditions. Given, as this case demonstrates, that there may be conditions which the court imposes which later turn out to be incapable of being complied with by the offender, for example, an identified place of residence or program of continuing treatment, it may be that it is in the interests of the offender and the community that the person be returned to custody. As I understand the legislation this can only presently occur in relation to an offender who has been released under a supervision order if that person fails to comply with the requirements of the order in circumstances where an offence against s 12 of the Act is committed. This seems to me to be a crude and potentially impractical arrangement. There may be many circumstances where the requirements of an order cannot be complied with although the offender may not be guilty of an offence. It may be that although required to take anti-libidinal medication the side effects are such that the physical or psychological health of the offender is endangered and the prescribing doctor can no longer provide the treatment. It does not seem appropriate that the only mechanism to control this situation is to identify a breach of s 12 or, more significantly await the commission of a further offence before considering whether the offender should be returned to custody.

23 There are other issues. The Minister indicated in the Parliament that the concern of the legislation was the “handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whist in prison.” The concerns were said to be compounded “where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised.” This problem was said to be addressed “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.”

24 There will be cases, of which Mr Winters on past experience may be one, where prison based treatment has not been possible or cannot be completed. Mr Winters was removed from treatment when he attempted suicide. Where a person has not been treated, but is contemplated as suitable for release under supervision, counselling will almost certainly be a condition of the release. Ongoing counselling is provided by the State when treated prisoners are released to parole. The evidence before me also indicates that it has been provided to untreated prisoners after release, but who were released before the legislation came into force. If, as was suggested in this case, such counselling is not to be offered by the State or funded by government the consequence may be that few, if any, untreated high risk offenders could ever be released under a supervision order. This would be an inhumane consequence of legislation intended for the rehabilitation of the offender and the safety of the community. Similar problems have been identified and commented on in Western Australia: see Director of Public Prosecutions for Western Australia v Williams (2007) WASC 95 esp at [53] and [55].

The test under s 17(2) and s 17(3) of the Act

25 The proper construction of the test provided by s 17(2) and (3) has been considered on previous occasions and was debated in these proceedings. Neither party accepted that Bell J in Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 identified the correct test.

26 Both s 17(2) and s 17(3) provide that a relevant 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.” In Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 I said at [34]:

Boughey v The Queen

R v SLD

Teremoana

Dowling v Dalgety Australia Limited

27 After my decision in Gallagher the Court of Appeal in Victoria considered the relevant provisions of the Serious Sex Offenders Monitoring Act 2005 (VIC) in TSL v The Secretary to the Department of Justice [2006] VSCA. Under s 11 of the Victorian Act the court may only make an extended supervision order “if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence.”

28 Callaway AP noted that the Legislature had provided a test of considerable precision. Instead of providing that an order could be made in circumstances where the court was satisfied that a person was a serious danger to the community the Act provided that the court had to be satisfied that the offender “is likely to commit a relevant offence.” The Court held that the test in Boughey (2006) 14 VR 109; (2006) 166 A Crim R 69 that likely meant a “substantial – a “real and not remote” – chance” adopted by Mason, Wilson and Deane JJ placed the threshold too low. Callaway AP concluded that:

“The expression “to a high degree of probability” was included to show that, in this context, “likely” connotes a high degree of probability. On this second reading of the italicised words, the court must be satisfied that there is a high degree of probability that the offender will commit a relevant offence.” (at 113 [9])

29 In Tillman Bell J considered my tentative view together with the views of the Court of Appeal of Victoria in TSL. Her Honour was not persuaded to follow the Victorian decision and, leaving aside matters of comity, I would not favour the construction adopted in TSL. Although the standard of proof requires a high degree of probability this does not inform that which must be proved. Requiring proof to a high degree of probability that someone actually did a particular act is different from requiring proof to a high degree of probability that it is possible that the person did that act. Her Honour was of the view that likely meant “probable” as distinct from “possible.” Although she did not state whether she accepted that it meant “more probable than not,” I infer that this was the meaning which her Honour accepted to be appropriate.

30 In the present case the Attorney General originally accepted the approach favoured by Bell J in Tillman. Furthermore, the Attorney initially accepted that her Honour had understood the expression to mean “more probable than not.” However, this submission was later withdrawn and the Attorney General submitted that “likely” meant “could well happen.”

31 On behalf of Mr Winters it was submitted that, having regard to the context, the section requires that the relevant fact must be established to a high degree of probability. It was submitted that “likely” should be qualified by the words “if and only if” and “high degree of probability.” Accordingly, it was submitted that a proper interpretation of the test requires the court to be satisfied that the prospect of the defendant committing a further serious sex offence is at a higher degree than “more probable than not” or significantly higher than “above 50%” although less than beyond reasonable doubt.

32 I indicated in Gallagher that there had not been full argument with respect to these issues. That argument has now occurred. As the High Court pointed out in Boughey the meaning to be given to the word “likely” may vary depending on its context. The present Act operates to potentially constrain the liberty of an offender who has completed the entire sentence for the offence for which he or she was convicted. The Parliament was of the view that this may be necessary “to ensure the safety and protection of the community” and “facilitate the rehabilitation of serious sex offenders.”

33 Both the Macquarie Dictionary and the Shorter Oxford Dictionary treat “likely” and “probable” as synonymous. However, this may not be entirely helpful. Given the range of possible meanings of “probable”, “likely” will have a similar capacity to alter its meaning depending on the context. The most recent discussion of these problems, but in relation to the meaning of the word “probable” is found in Darkan v The Queen (2005) 227 CLR 373 where the High Court confirmed that probability can denote a variety of degree of confidence depending upon the nature and purpose of the statute in which it is found (at [23]). A probability of success may not mean more “probable than not” (at [27]).

34 In R v Hallett [1969] SASR 141 the appellant complained about the manner of the use of the word “likely” in directions given to the jury by the trial judge on the issue of malice. The direction was as follows:

“The states of mind which are sufficient to constitute malice … may consist of knowledge that the act which causes death is likely to cause death.”

35 In Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1976) 14 SASR 303 the Supreme Court of South Australia considered the effect of s 139B of the Post and Telegraph Act 1901 (Cth) which provided that a person doing any work was liable to pay compensation to the Commission for damage to its property where that person had “reasonable cause to believe that the doing of the work is likely to interfere with or damage property of” the Commission. Bray CJ said, in some contexts, “probable” may be regarded as stronger than “likely” and in other contexts “likely” may be stronger than “probable” (at 311). He explained at 312-3:

Re Bayer Products Ltd’s Application

Dowling v South Canterbury Electric Power Board

Transport Ministry v Simmonds

…I think that is the meaning which should be attached to the word “likely” in subs (1)(a). It is the natural and ordinary meaning and there is nothing to show that another meaning was intended. Like the learned special magistrate, therefore, I think that “likely” in the subsections means “probable” and I think that that means that there is a more than fifty per cent of the thing happening.”

36 In Tillmanns Butcheries v AMIEU (1970) 27 ALR 367 the Federal Court considered whether conduct constituted a secondary boycott within the meaning of s 45D of the Trade Practices Act 1974 (Cth). The question was whether there was a “likelihood” of substantial damage arising from the union’s conduct. Bowen CJ with whom Evatt J agreed, thought that the word “likely” had shades of meaning that varied, including “more probably than not” “some possibility, more than a remote or bare chance” or that “the conduct is inherently of such a character that it would ordinarily cause the effect specified.” Deane J at 383 doubted the efficacy of the more or less than 50 per cent chance test, favouring the view in relation to s 45D, that “likely” was not synonymous with “more likely than not” but meant that there was a “real chance or possibility” that the conduct would cause the loss and damage.

37 In Sheen v Fields Pty Ltd (1984) 58 ALJR 93 the High Court considered the interpretation of r 1, CL21 of the rules made under the Factories and Shops Act 1960 (Qld) requiring an employer to provide eye protection where there was a “likelihood of injury to the eyes of an employee.” Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, said at pp 95-96: “Likelihood” meant “a real or not remote” chance or possibility “regardless of whether it was less or more than 50 per cent” and applied the approach of Deane J in Tillmanns Butcheries.

38 In Global Sportsman Pty Ltd v Mirror Newspapers (1984) 55 ALR 25 the Federal Court considered whether the publication of statements, including statements of opinion made in the ordinary course of the publication of news in those parts of a newspaper which were not advertising material, constituted conduct which was misleading or deceptive or “likely to mislead or deceive” within the meaning of s 52 of the Trade Practices Act 1974 (Cth). Bowen CJ, Lockhart and Fitzgerald JJ at 30 said:

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union

Sheen v Fields Pty Ltd

39 In Department of Agriculture and Rural Affairs v Binnie (1980) VR 836, the Victorian Supreme Court considered the meaning of “likely” in the context of s 31(1)(e) of the Freedom of Information Act 1982 which provides that:

“…a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to – (e) endanger the lives or physical safety of persons engaged in or connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.”

40 The Court held that the qualifying adverb “reasonably” in the expression “reasonably likely”, as used in s 31(1)(e), requires the word “likely” to be given a meaning less definite than “probable.” The expression speaks of a chance of an event occurring or not occurring which is real, not fanciful or remote. It does not refer to a chance which is more likely than not to occur.

41 In Jabarula v Poore (1989) 42 A Crim R 479 the Northern Territory Supreme Court considered the meaning of the word “likely” in s 34(1)(e) of the Criminal Code: A person is excused from criminal responsibility for an act or its event if the act was committed because of provocation upon the person … provided (e) the act was not intended and was not such as was likely to cause death or grievous harm; …” Kearney J followed the majority in Boughey and concluded that “likely” in that context “conveys the notion of a substantial or real chance as distinct from a mere possibility (at 482-3).

42 In R v Hind (1985) 80 A Crim R 105 – the court considered whether an alleged act was regarded as being “likely” to endanger human life to satisfy s 302(1)(b) of the Queensland Criminal Code. Pincus JA said (at 141) that “likely” in s 302(1)(b) of the Code conveyed “the idea that the act in question created a substantial or real chance of danger to human life, regardless of whether that chance was more or less than 50 per cent.”

43 In Re Bullivant’s Natural Health Products Pty Ltd & Minister for Health and Family Services (1996) 43 ALD 305 the Administrative Appeal Tribunal considered the meaning of the word “likely” in the context of Therapeutic Goods Regulations (Cth) reg 6A which provides that:

“any labelling, packaging or presentation of therapeutic goods that is likely to result in those goods being mistaken for or confused with confectionary or toys is an unacceptable presentation of the goods.”

44 The tribunal said at [64] that the provisions concerned were not penal provisions but part of the Act’s overall scheme to establish standards of manufacturing, production and distribution of therapeutic goods in a manner which ensures that they are of a certain quality, safe, efficacious and available in a timely fashion. In light of this, the tribunal said:

Tillmanns Butcheries

Boughey’s

Kreig’s

45 In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665, Chief Justice Spigelman, after citing the statement from the joint judgment in Boughey held that the word “likely” in the expression “likely to be needed” for an essential public purpose in the Aboriginal Land Rights Act 1982 “is not used in the sense of more probable than not but is used in the sense … of a “real or not remote chance.” (at 674)

46 Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) [2003] FCA 1229, concerned a proposal by AGL to acquire shares in a company as part of a scheme to acquire an interest in a power station and coal mine. The issue was whether the acquisition would have the likely effect of substantially lessening competition in a market, in contravention of s 50 of the Trade Practices Act 1974 (Cth).

47 French J discussed the interpretation of the word “likely” explaining that:

“The meaning of ‘likely’ reflecting a ‘real chance or possibility’ does not encompass a mere possibility. The word can offer no quantitative guidance but requires a qualitative judgment about the effects of an acquisition or proposed acquisition. The judgment it requires must not set the bar so high as effectively to expose acquiring corporations to a finding of contravention simply on the basis of possibilities, however plausible they may seem, generated by economic theory alone. On the other hand it must not set the bar so low as effectively to allow all acquisitions to proceed save those with the most obvious, direct and dramatic effects upon competition … at [41].”

Macartney v The Queen

Attorney General v David

Poighand v NZI Securities Australia Ltd

R v Sheppard

R v Wills

Attorney-General v Greater Manchester Newspapers Ltd

48 Legislation which provides for the incarceration of an individual because of a concern that they may commit an offence in the future is at least unusual. It is at odds with the assumption that the penalty imposed by a sentencing judge, within the parameters of the legislation which provides for the offence, will adequately punish and also provide appropriately for the offender’s rehabilitation. The evidence before me, which I discuss below, unequivocally indicates that for any person classified as a “serious sex offender”, even with treatment said to be of “world’s best practice” and whether or not subject to supervision, is at risk of reoffending when released. Whatever the level of that risk may actually be, and this may be debated, it is a real and not fanciful risk. Accordingly, if the meaning of “likely” preferred by the majority in Boughey and contended for by the Attorney General was adopted for the present legislation the consequence would be that, even if treated, any person who has been previously convicted of a serious sex offence would always come within the jurisdictional test provided in s 17(2) and s 17(3). There would always remain the real chance that they will reoffend.

49 If the legislation was to be applied in this manner the Court would not be called upon to make a decision as to the likelihood of an offender reoffending. Every relevant offender would be likely to reoffend. This could not have been intended by the Parliament.

50 When construing legislation a court must be careful to apply the words of the legislature without imposing an impermissible gloss Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 and Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260 at [33]. However, where the word used by the Parliament has shades of meaning which may alter its impact it is important to identify the meaning which was intended. As the authorities show the meaning of the word “likely” can vary significantly depending on its context. However, having regard to the purpose and effect of the legislation, notwithstanding my tentative view in Gallagher, in my judgment, in the Act, “likely” means “more likely than not” and it is that test which must be applied in s 9 and 17. For relevant purposes the court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence. It follows that the defendant’s argument that the chance of reoffending must be significantly higher than 50% must also be rejected.

Matters relating to the defendant’s time in custody

51 The defendant has been in custody since his arrest in relation to the various offences. In the course of his incarceration he has on occasions exhibited behaviour consistent with a continuing tendency to commit sexual offences. However, he was, for a time, administered anti-libidinal medication during which there were no reports of unsatisfactory conduct. He chose not to continue with the medication because of side effects, including breast enlargement, which caused him embarrassment in the prison environment.

52 Mr Winters was admitted to the custody based intensive treatment (CUBIT) program. However, he was a reluctant participant and was concerned that his intellectual disability and problems with reading and writing may make the program difficult. He was also concerned that the program mixed rapists with paedophiles which would cause conflict. Notwithstanding his reluctance he was admitted to the program but was withdrawn when he attempted to commit suicide by climbing over a high balcony during a therapy session. The reason for his suicide attempt was an apparent inability to come to terms with his offending. The defendant remains effectively untreated. He has expressed views critical of the program and of the people responsible for running it.

53 The defendant rejected contact with the Parole Board and on an occasion in 2004 expressed the view that upon release he would reoffend. I shall return to that matter later.

The evidence of the psychiatrists

Dr O’Dea

54 Dr Jeremy O’Dea was one of the forensic psychiatrists appointed by the court. In his written report Dr O’Dea records that the defendant now identifies himself as of exclusive adult homosexual orientation. He reported this orientation notwithstanding the fact that before being taken into custody he had lived, although at times intermittently, with a de facto female partner for a period of 3 to 4 years. Dr O’Dea recorded the defendant’s psychosexual history in the following terms:

“Mr Winters told me that he now identified himself as of exclusive adult homosexual orientation. He told me that , ‘… I always thought I was straight [of adult heterosexual orientation] … I though I may be bi[sexual] … but then I came jail …’. He told me that he was currently in a relationship with a fellow male inmate whom he told me had a further 2 years to serve in custody related to sex offences.

Mr Winters did not report an awareness of sexual attraction to children, either male children or female children. However, he went on to state, ‘… what’s on television … with shows such as Home and Away … there is some attraction to young adults … aged 14/15/16/17 …’, but he told me that this attraction was not of a sexual nature. He also stated that, ‘it’s the touching that gets me into trouble.’

used to suck my penis ... on a regular

basically every weekend ... down the

I enjoyed it ... I thought everyone did it ... ".

to grab me to

if I had an erection ... if I didn't I soon would have ... ".

Mr Winters told me that around the same time, a maternal uncle in his twenties, " ... used to think it was hilarious to pull my pants down and apply a docking ring [a rubber band used to castrate lambs] to my genitals ... ", in front of his other siblings. He told me that his maternal uncle did not do this to his other siblings, " ... as far as I can recall it was all focused on me ... my mother was there and she thought it was funny too ... ".

... ".

"raped"

cut through a park ... he asked me to suck his penis and grabbed hold of my hair and forced me to suck his penis ... I thought it

I got up ... but I was pulled to the ground ... my shorts

pulled down ... and then I was anally raped".

'[the alleged offender] got another kid younger than me the following night".

He said that after the alleged sexual assault, " ... I didn't like anyone touching me or coming anywhere near me ... I wouldn't allow myself to get close to anyone or for anyone to get close to me". He told me that from the age of 17 to his late twenties, " ... there was nothing [sexual] ... I wouldn't let anyone get anywhere near me ... then I met [my ex-de facto]

... ".

".

Mr Winters did not report awareness of any specific sexually deviant urges or fantasies, nor problems with gender. He told " ... [exhibitionism] ... that really pisses me off ... when I was with [his ex-de facto], for some reason she loved to talk to me whilst I'm on the throne and I didn't like that ... ". He went on to say, " ... I find "S and M" [sadism and masochism] quite stimulating ... once or twice [I have] had it done to me ... [I] haven't actually done it [myself] ... ". He then went on to say, " ... a person here has rubbed his whiskers across my body ... I like that ... ".

He told me that, " ... in my younger days I used to get older friends to get triple rated porn videos for me ... [I] haven't seen that many ... they don't interest me any more ... ". He told me that the content of the pornographic videos was mainly of female homosexual activity. He told me that he did not remember viewing pornographic videos of male homosexual activity.”

55 Dr O’Dea recorded Mr Winters’ psychiatric history in the following terms:

“I note that Mr Winters was admitted to Wagga Base Hospital in 1988 for 8 days with diagnoses of " ... Suicide attempt ... Overdose ... Personality Disorder - borderline, avoidant ... the main immediate pressure was another court appearance ... ". He told me that during that time he was treated by a Canberra based psychiatrist Dr Tym, "for a couple of months". I note that at the time he was being treated with antidepressant medication for a major depressive illness, and had a history of alcohol abuse and dependence and dysthymia. He told me that, " ... I used to drink to forget ... that's the way I handled anything ... my father's death ... the rape ... the incidents with my [mothers siblings] .... ". He told me that he had not received psychiatric treatment from that time until his incarceration in 1988.”

56 Dr O’Dea concluded that Mr Winters is not suffering from a major psychiatric illness. However, he has a history of border-line intellectual functioning, alcohol abuse and dependence, and cannabis use. The doctor said that:

“He also has a history of a personality disorder with anti-social, border line and avoidant traits, and on-going difficulties in coping with stress and interpersonal relations.”

57 Dr O’Dea concluded that Mr Winters has a specific sexual attraction to pre-pubertal children, in particular, a specific sexual attraction to pre-pubertal male children. He accordingly described his sexual disorder (or paraphilia) as being paedophilia, focused predominantly on male children. He concluded that his difficulty in controlling his sexual urges was related “at least in part to his level of intellectual functioning, his personality, and his social and interpersonal skills.” The doctor utilised both clinical assessment and an actuarial assessment known as Static-99. The actuarial assessment process is explained by Dr Allnutt and I have included his discussion below. Dr O’Dea said:

“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 Winters would be considered as having a significantly high risk of engaging in further sex offending behaviour in the longer term.

Although Mr Winters 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 Winters’ precise likelihood of engaging in further sex offending behaviours on release into the community. His score on the Static-99 of 7/12 places him in the group of individuals with a high risk of engaging in further sex offending in the long term. Limitations in the use of this tool are widely discussed, including by the authors of the instrument. As implied in the name, the instrument measures static and therefore for the most part unchangeable parameters. The margins of error for risk estimates using this test, particularly in endeavouring to make risk predications for an individual with an individual score, are so high as to significantly reduce the appropriateness of relying on this score alone to make decisions about release into the community.

Focus from a psychiatric perspective should more appropriately be on management and minimisation of the risk of Mr Winters engaging in further sex offending behaviours. I note the documented and reported problems Mr Winters has experienced to date in participating in psychological treatment alone for his sex offending. His level of intellectual functioning, his apparent denial and minimisation of his ex offending behaviours, and his personality problems characterised by a limited repertoire of apparently maladaptive and inappropriate coping skills under stress, are likely to limit the efficacy of psychological treatment programs alone, in helping him to manage and minimise his risk of engaging in further sex offending behaviours in the long term.

With these limitations in mind, and on the basis that Mr Winters does have specific sexual focus on male children, and apparent ongoing problems managing his sexuality in custody, it would seem reasonable to conclude that recommencement of testosterone lowering medication is likely to prove the most successful intervention in managing and minimising his risk of engaging in further sex offending behaviours in the long term. It is of note that Mr Winters has agreed to receive such medication in the community.

I would recommend that testosterone lowering medication be part of a structured and supervised management program on Mr Winters release into the community. This program should involve alcohol and other drug counselling aimed at helping Mr Winters remain abstinent from alcohol and other drug use in the long term. Attention should also be given to helping him cope better with stress and helping him enhance his sexual and social skills. Housing, employment and educational support would also be important components of such a program.”

Dr Stephen Allnutt

58 Dr Allnutt was also appointed by the court. He is a forensic psychiatrist who conducted a clinical evaluation of Mr Winters for approximately 3½ hours. He provided the following account of the report by Mr Winters of his offending:

“Mr Winters explained that in 1987 he was aged 21, single and unemployed. He was living with his parents. He was not taking any medication. He was not seeing a mental health worker and he had no recent contacts with psychiatric services, or admissions to psychiatric hospitals. He was using alcohol. He had been drinking heavily since age 12/13. By the time of the offence in 1987 he was drinking, he estimated, several litres of Bacardi a day. He tended to drink all day, every day, except for weekends and when he didn’t drink he would experience tremulousness and cravings. He noted an increases tolerance for alcohol over time, in order to achieve the same effect.

He said he drank to forget what had happened to him between the ages of 7 and 11 – he explained that two aunts and one uncle had sexually abused him. He said at age 17 he had also been raped by a person he went to school with. After these experiences he had become distant from others, he felt less trusting of other people. He never reported the rape because at the time he was drunk and he thought he might be charged for underage drinking. He said also the person knew where he lived and so for years he had slept with a carving knife under his pillow. He used to have nightmares reliving this experience. He avoided talking about the incident as much as possible. He described being hypervigilant, startling easily after this. He noticed that these symptoms continued for about the next ten years and gradually receded in that time. His alcohol consumption helped him feel better, in regard to these symptoms. He became less caring about his self-image he said and that this tended to remain with him.

He explained that in 1987 his victim was a four year old stranger and that the offence occurred around midnight. He had been drinking all day and had consumed about three litres throughout the day and night. He had vague memories of leaving the pub to go home. He recalled walking home. He recalled the next day he was arrested. He said from the time that he walked home, until the time that he woke up, he had no recollection of the offence.

He appeared before a Magistrate, who gave him bail. His conditions were to report to the Police and not drink alcohol. In that time he continued to drink, but he continued to report, although at times he was late, but not breached for this.

Two weeks after the first offence, in about December 1987, under similar circumstances as the first offence, he said that he was charged with offences against two boys aged seven years and five years, both strangers. Again he said he had no recollection of the offending, but recalls being questioned about the offending.

He said he was arrested a few days after the time that the offences allegedly occurred. He again appeared in front of a Magistrate. He was incarcerated for a period and then granted bail, with additional conditions.

In 1988 he was admitted to Wagga Base Hospital for a psychiatric assessment at Gissing House. He remained there for several weeks. He thought that a diagnosis of Borderline Personality Disorder was made during this admission.

In about July 1988 a Dr Tym prescribed him antidepressant medications. He had been referred by the hospital to Dr Tym for treatment. He said he saw Dr Tym for about two to three months, every fortnight to monthly. At the time that he saw Dr Tym he was depressed. He ended up taking an overdose of antidepressant medication. At the time that he took the overdose, he said he felt harassed by local Police. He was subsequently admitted to Wagga Base Hospital ICU and then transferred to Gissing House for a further several weeks. He was discharged, but on this occasion said that no follow up was arranged. He never saw Dr Tym again.

After discharge he continued to live at his parents' house and remained on bail, with no breaches of bail. He stopped drinking alcohol as part of his bail conditions. He did not commence the use of any drugs. He had no contact with mental health workers. He continued to work casually on occasions. He was not involved in any relationships and he did not take any medication.

In 1989 the Court case occurred. He thought he might have been given a four-year good behaviour bond, with three hours community service and a $1,500 fine. Both offences were dealt with on this occasion. He had to attend AA, which he did for several months; then he attended drug and alcohol counselling. He said he continued to remain abstinent of alcohol until 1996, age 30.

Between 1989 and 1996 he studied, doing his Year 10 Certificate, he remained unemployed. In 1994 he engaged in a defacto relationship, which lasted 3½ years. His partner was nine years his senior. They had a sexual relationship. He found the relationship sexually unsatisfactory. At the time he said the problem was that he thought he was heterosexual. He said his sex drive was less than hers. Otherwise, they were comfortable with each other's personalities. Their relationship broke up because he thought that she was having affairs. In the later stages of the relationship he recommenced using alcohol again, which he described as a "trusty friend the bottle". There were no other significant events during that period of time and he still had no contact with mental health workers and there were no medical problems.

In 1996 he was aged 30, at that time he was still in his defacto relationship. He was not working. He was not seeing a mental health worker. He was not taking any medication. He had had no further admissions to psychiatric hospitals, following his second admission to Gissing Hospital. He was drinking, "on and off', once to twice a week, he was brewing his own beer, a few bottles at a time. There were no significant stressors. His relationship with his defacto was deteriorating; they were having frequent fights.

He was unsure of the dates when the next cluster of offending occurred. He believed that the Facts had stated that it had occurred some time between 1996 and 1997. A victim used to visit with his younger brother and other friends; they used to come to his home and watch pay television and visit his defacto. They started visiting more frequently. He was told that the offending involved D, M, J, S but that the only offending that he could recall engaging in was pulling their pants down (dacking). In regard to T and V’s charges, that he had tied them up and sucked their penises, he had no recollection of this. He said, "It never happened by me". He denied that he had tied them up. He said that the children would come around to watch TV and talk to his defacto; this was the nature of his contact with them. He went on to explain that at one stage they had asked him to show them his penis. He refused. He said this involved J, S, T and V. He said they were all around eight years of age. They wanted to know what a man's penis looked like. He thought that this event had occurred in the lounge room. After they had made this request he declined. He said as a consequence they climbed into the roof, through a cavity, stating that there was a manhole in the bathroom ceiling that they had crawled through and that they had then watched him in the shower. He said he had known this because he could hear their giggling. He thought he had left the shower immediately when this happened. He denied that he had ever masturbated. He denied that he had ever had an erection. He also denied that he ever told them to go into the ceiling to watch him. He said that the boys had spied him on numerous occasions, over a period of one to two months, between 1997 and March to June 1998. He said he told his defacto about it. He recalled them having a fight. I asked him why he never closed the hole, he answered, "Good question, I never thought of it". I asked him why he never told their parents, he answered, "I was thinking along the lines, but would they believe me?" I asked him why he had allowed them to come back to his house after this. He told me that in the early part of 1997 they stopped coming because he decided to put his foot down. Over a number of months he didn't see them, then near the end of 1997 "D’s older cousins" came around to the house. They wanted a place to smoke cannabis, he recalled having" a cone" with them.

.

He said he was arrested in June 1999 and had been in gaol since then. Other than the "dacking" he denied all other offences.”

59 Dr Allnutt expressed the following opinion:

“Re: Psychiatric Illness

In my opinion, at the time that I saw Mr Winters, he was not manifesting significant symptoms of a major mood or psychotic disorder. He did, however, endorse some difficulties with sleep, fluctuating concentration, variable motivation, variable decision making and intermittent suicidal thoughts, but not to the extent that I believe that they impacted significantly on his functioning, although at times anxiety might have reduced his motivation to engage in his occupation in the gaol. As a consequence, Mr Winters manifests some symptoms of an Adjustment Disorder, related to his current circumstances. He described some symptoms of post-traumatic stress disorder emerging as a result of having been sexually abused (age 7 to 11) from which he recovered over a period of about 10 years There was evidence that in the past he has experienced episodes of depression, requiring admission to psychiatric hospital, with suicidal ideation and previously he has been treated with antidepressant medication. He describes feeling somewhat anxious in group situations, particularly when he feels judged by others and on occasions experiences panic attacks in group situations. He also describes episodes of panic, characterised by shortness of breath, palpitations, tightness in his chest - similar to episodes of asthma, during times that he is in situations of conflict. These symptoms could be consistent with a mild to moderate Social Phobia, in that he manifests avoidant behaviours, triggered by social situations, and with associated somatic symptoms and cognitive distortions that people are judging him.

He has a history of Alcohol Abuse, and in my view Dependence, that occurred with significant abuse between the age of 15 and 22, but ongoing use commencing at aged 30. There was no significant Substance Abuse, although he did use cannabis for a period of time.

He describes coming from a relatively difficult developmental background, having lost his father at age seven, in unfortunate circumstances, at a vulnerable age, feeling to a degree responsible for his father's death as a consequence of an interaction that he had had with his father the night before. He, however, did obtain ongoing support from a stepfather. There appears to have been a period where is mother suffered a depression which might have impacted on her relationship with him. He had difficulties during his school years and manifested problems with authority figures, although There was insufficient evidence to conclude significant behavioural disturbances, suggestive of Conduct Disorder in childhood. He has manifested, in my view, a capacity to pursue gainful employment, in the absence of alcohol abuse; however, his Alcohol Dependence Disorder has marred his employability. He also has manifested capacity to pursue long-term committed relationships, however, these are likely made more difficult as a consequence of probable underlying ambivalence about his sexual preference and orientation, causing some conflict for him. I note that in the past he has been diagnosed with a Borderline Personality Disorder. In interview with me he describes a volatile mood and has in the past manifested some self harm behaviour; and difficulties with identity. Avoidant personality disorder had been considered by other clinicians. It is difficult to distinguish between avoidant personality disorder and social phobias. It is likely that he manifests avoidant, antisocial and borderline personality traits.

He suffers from gout, osteoarthritis, stomach ulcers and reflux, asthma and psoriasis. There was no significant evidence of liver disease, thromboembolic disease, or metabolic conditions in the past. He has had a CT scan and an EEG and is unaware of the results of this; I would assume that they were negative if this was the case.

He is currently exposed to the significant stressor of evaluation under the Serious Sex Offender legislation.

His functioning, in my view, remains adequate.”

60 Dr Allnutt addressed the question of the risk of Mr Winters reoffending. He used both a clinical and actuarial approach.

Mr Winters has manifested sexually offending behaviour over a period of 11 years between 1987 and 1998, which occurred between the age of 21 and 32. The offences have involved children of both male and female sex; between the age of seven and about nine years of age. Some of the victims have been strangers; other victims have been acquaintances; no victims have been members of his family. There have been three clusters of sexual offending, resulting in convictions of peep and pry; two convictions of sexual intercourse with a person under age ten; one conviction of sexual intercourse with a person between age ten and 14; four convictions of aggravated indecent assault with a person under age ten; three convictions of aggravated act of indecency against a person under age ten; three convictions of an act of indecency against a person a person under age 16. Overall, in my view, the conclusion can be drawn that the sexual offending has been of a chronic nature given the period of time over which this occurred; to a degree it is diverse in that he has crossed sexual boundaries and has been charged with a variety of sexual offences.

There was evidence of the use of physical restraint in at least some of the offences, involving deliberate physical coercion of his victims. In addition to this, it would be reasonable to be of the view, that given the age of his victims, there was psychological coercion.

Mr Winters reports he has no recollection of much of the offending, particularly his first two offending clusters. He describes that at the time he was intoxicated on alcohol. He has in past however had recollection of the second cluster of offences even though he now denies memory for this. However, with regard to the third group of offences, the evidence suggests that at the time he was probably not intoxicated, yet he continues to deny the offences to a significant degree (I assume that the offences have been properly proven). He has also reportedly endorsed more offences than he has been convicted for only to retract this at a later date. In light of this, I think it would be reasonable to be of the view that, he is currently engaging in a process of extreme denial and minimisation.

He denies recollection of his offending in the first and second cluster of offences and is denying much of the third group of offences. I am unable therefore to assess his understanding and awareness of the motivations, triggers and circumstances that might lead him to offend in the future, based on his understanding of his past offending.

Mr Winters states that he does, at times, have difficulty coping with stress and is unable to identify any specific stress management strategies, other than smoking cigarettes and drinking alcohol. In the past alcohol abuse has been the most significant way that he has utilised to manage his stress. He does, however, identify that speaking to people is helpful for him.

He, himself, has been a victim of child sexual abuse and physical abuse. He described the sexual abuse has being experienced by him as an expression of love. It is likely that his childhood experiences gave him some justification for his own offending.

His offending behaviour has occurred over a reasonably lengthy period of time. He has been convicted of inappropriate sexual behaviour with children. There was evidence for sexually arousing behaviours involving male and female children, not related to him under the age of 13; his sexual expression not exclusive to children. Based on this, I believe that a diagnosis of Paedophilia bisexual type, extra-familial and inclusive is applicable. He reported masochistic sexual behaviour in the past.

139 Accordingly, it is necessary for me to determine whether adequate supervision can be provided by an extended supervision order. If it cannot, I must consider whether a continuing detention order should be made (see Gallagher NSWCA [38]). I have already discussed the standard by which the adequacy of the supervision must be assessed. In Tillman Bell J accepted that the supervision should, at the least, substantially reduce the likelihood that the defendant will reoffend. Mr Winters argues for a lower threshold.

140 Whatever be the appropriate test, whether or not adequate supervision can be provided under an extended supervision order depends on the likely effectiveness in this case of the draft Risk Management Plan and whether Mr Winters will both comply with it and respond to the contemplated treatment.

141 I have previously related the essential evidence of each of the experts on the effectiveness of the proposed plan if Mr Winters is released. Dr O’Dea and Dr Nielssen were satisfied that the plan was appropriate. Dr Allnutt had some reservations.

142 I place particular confidence in the evidence of Mr Rendell. He has had very considerable experience with sexual offenders, both inside and outside the prison system. He does not, as do the other psychologists, presently have a professional involvement with the CUBIT program in the way which they have. However, he has had the opportunity, over many years, to consult with, supervise and observe the behaviour of, sexual offenders, particularly when released from the prison system. His confidence that the plan would provide appropriate management of the defendant’s risk of reoffending, in my view, should be given very considerable weight. To my mind, it is of greater significance than any reservations of the psychologists involved with the CUBIT program. It must be remembered that, although there is evidence that the CUBIT program does have positive outcomes, that evidence is limited, and whether it has any significant benefit for high risk offenders is still uncertain.

143 The conditions proposed, if Mr Winters was released, are strict. Although his movements could not be completely controlled, and an opportunity for reoffending entirely excluded, those conditions can be monitored and, if his behaviour suggests a risk of reoffending, action could be taken to bring him to counselling. The continuing administration of anti-libidinal medication will, based on past experience, significantly reduce his sex drive. Of course, his continuing ability to accept this form of medication remains uncertain.

144 But for two matters, I would have been satisfied that adequate supervision could be provided by an extended supervision order. In the words of the statute, the consequence of the two problems is that I cannot be satisfied that adequate supervision could be provided by an extended supervision order.

145 The conditions of such an order would generally follow those in the draft plan presented by Mr Winters. Although the detail would require further consideration, the plan contemplates a program of intensive one-on-one treatment with Ms Howell, or another appropriate psychologist. Ms Howell is available to provide that treatment, and she is confident that it would be effective. She has very considerable experience in treating sex offenders, and I have complete confidence in her judgment.

146 However, the capacity to fund Ms Howell’s services has proved an ultimate stumbling block in this case. I have been told that no funds are available from the Government to provide for her fees, with the consequence that the contemplated treatment would not be available.

147 The practical effect is that legislation has been put in place which provides for the retention of persons such as Mr Winters in prison beyond the completion of their sentence who, if appropriate community resources were provided, could be released. It is not difficult to envisage, having regard to the evidence in this case, a circumstance where the effect may be that a person is incarcerated indefinitely. It could only be in the most extreme of cases that the legislature intended that an offender who had served his sentence would never again be released.

148 These problems have been confronted in other States: see The State of Western Australia v Alvisse (2007) WASC 129 in which Murray J records the fact that the need for suitable community based treatment has been identified and is being addressed [47].

149 However, the need for an attempt to be made at effective treatment in Mr Winters’ case is confirmed by the evidence of Mr Dentrinos. As I have already indicated he said that Mr Winters has said that he intends to reoffend when released. Whether this statement was made with intent, or merely designed to cause alarm, I cannot assess. Mr Winters did not give evidence. However, that statement, together with the lack of available treatment, persuades me that, whatever be the relevant standard, and in any event even to the threshold contended for by the defendant, adequate supervision of Mr Winters cannot be provided by an extended supervision order.

150 Without intensive psychological counselling, Mr Winters’ risk of reoffending would remain largely undiminished, particularly when his ability to continue anti-libidinal medication has not been confirmed.

151 In these circumstances, I have come to the view that a continuing detention order should be made.

152 The Attorney General asks for an order for a period of five years. To my mind this is not appropriate. As I have indicated, if I was confident that the management plan could be implemented and carried out, I would have made an extended supervision order.

153 The psychologists who gave evidence before me believe that Mr Winters should be treated in the CUBIT program before his release. They also believe that he should now be able to complete that program which may enable his release, pursuant to an extended supervision order with conditions which can be adequately resourced. The CUBIT program takes a minimum of eight months and can be completed within twelve months. In these circumstances, an order which provides for Mr Winters to be detained for twelve months from today’s date is appropriate. This will enable Mr Winters to undergo the CUBIT program and receive appropriate medication with an opportunity to determine the effectiveness of the treatment regime. It will require the Attorney General to make an application within the twelve months period if he seeks to continue Mr Winters’ detention or facilitate his release under supervision.

Abuse of Process

154 As I have indicated Mr Winters filed a Motion in which he sought the following order:

“to temporarily stay proceedings until such time as government funding is made available or services otherwise provided for the psychological treatment the defendant should receive pursuant to the post release plan recommended upon the evidence.”

155 The defendant submitted that the Attorney General’s conduct in instituting the proceedings constitutes an abuse of process, which justifies an order for a stay. The foundation for that submission is the identified lack of funding for intensive psychological counselling for Mr Winters within the community.

156 This Court has inherent jurisdiction to stay proceedings as an abuse of process (Williams v Spautz (1992) 174 CLR 509 at 518). The power to stay proceedings is confirmed by s 67 of the Civil Procedure Act 2005. Pursuant to Uniform Civil Procedure Rules 2005 r 13.4, the court may order that the proceedings be dismissed, if it appears that the proceedings are an abuse of the process of the court.

157 The circumstances which may constitute an abuse of process vary and the categories are not closed. (Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [9] per Gleeson CJ, Gummow J, Hayne J and Crennan J). Proceedings that are: (i) instituted for an improper or illegitimate purpose; (ii) seriously and unfairly burdensome, prejudicial or damaging or ‘productive of serious and unjustified trouble and harassment’ such as unreasonable delay (at [14]); (iii) are frivolous, vexatious or oppressive, especially if they raise anew a res judicata; (iv) foredoomed to fail; (v) instituted in an inappropriate forum; or (vi) liable to bring the administration of justice into disrepute may all be an abuse of process (see Batistatos at [14]-[15]; Williams v Spautz (1992) 174 CLR 509)

158 There are two policy considerations of particular relevance in criminal proceedings but which to my mind are relevant to proceedings under the legislation invoked by the Attorney General in the present proceedings:

Batistatos

159 The defendant submitted that the Attorney General maintained these proceedings in the full knowledge that his office will not pay for or organise the intensive one-on-one psychological treatment for Mr Winters contemplated in the draft Risk Management Plan, and furthermore in the knowledge that no other government agency will fund or provide the necessary treatment. Because the proposed psychological treatment cannot be provided it was submitted that the court’s capacity to make an extended supervision order was entirely removed.

160 The defendant emphasised that Ms Howell had given evidence that she was privately treating two high risk serious sex offenders, one of whom had not completed the CUBIT program, and that funding for this treatment was provided through the Probation and Parole Service. In these circumstances, the defendant submitted that the application was “unfair, oppressive and constitutes an abuse of process”. Counsel relied on an analogy with Dietrich v The Queen (1992) 177 CLR 292. In that case, an indigent accused charged with a serious offence was denied legal aid funding for his representation. The High Court held that as a result he was denied a fair trial. His lack of legal representation denied him a real chance of acquittal. Likewise, on behalf of Mr Winters it was submitted that through no fault of his own (as he does not have any private funds) but because no government funding is available, he could not receive the psychological treatment which was agreed to be required if he was released.

161 In these circumstances the defendant submitted that:

162 The plaintiff emphasised that the Attorney General’s Department does not fund the provision of private psychological counselling services to individuals. The responsibility of providing psychological treatment for offenders rests with the Department of Corrective Services, which operates its own programs such as CUBIT, which are group-based programs. No one-on-one or community-based treatment programs are provided. The plaintiff submitted that the evidence confirms that although Ms Howell has been paid when treating two high-risk serious sex offenders the circumstances were exceptional. I accept this submission. It was further submitted that the unavailability of funding by the plaintiff for the one-on-one private psychological treatment of the defendant in the community was not a matter of unfair discrimination. Funding for such an arrangement is simply not available from any potential source, be it government or charitable. It was submitted that decisions as to whether or not to provide funding were policy questions to be determined by government and it was a legitimate exercise of the discretion to deny funding for one-on-one counselling.

163 The plaintiff submitted that the lack of one-on-one counselling in the community does not frustrate the purposes of the Act. CUBIT, with its group therapy approach and 24 hours support of participants in a therapeutic community, provides for the rehabilitation for persons such as the defendant and protection of the safety of the community. It was submitted that in these proceedings, the Court is “being asked to do no more than apply the terms of the Act to the circumstances of the Defendant on the evidence as presented”. There is no evidence of improper purpose on the part of the Attorney General or any attempt to have the court act as an instrument of government policy.

164 The plaintiff submitted that the defendant’s complaint was properly characterised as one concerning the fairness of the outcome of the application under the Act rather than the fairness of the hearing or process. It was submitted that the defendant’s reliance upon Dietrich was misplaced, given that the decision in that case was about the right to a fair trial and not the outcome of that trial. Any unfairness of the outcome following the proper application of the legislation was a matter for the Parliament.

165 Finally, the plaintiff submitted that these proceedings are not manifestly unfair and would not otherwise bring the administration of justice into disrepute among right-thinking people, simply because of the unavailability of an essential feature of a risk management plan. There can be any number of reasons outside the control of the defendant and the Attorney General or any other government agency, which might prevent a critical feature from being available to a particular defendant.

166 In my judgment the Attorney General’s submission must be accepted. The plaintiff does not complain, and nor could he, that the proceedings in this Court were unfair. Both Mr Winters and the Attorney General have been provided with extensive opportunities to place evidence before the court and make relevant submissions.

167 Mr Winters’ application for a stay was made in anticipation that I would find that in the absence of intensive one-on-one counselling in the community, in the exercise of my discretion Mr Winters should not be released. This outcome became increasingly likely as the concurrent evidence sessions occurred. As it happens the lack of community based treatment is material to my decision to make a detention order. However, the fact that it is not available to Mr Winters is as a result of two factors. Firstly, as a matter of policy the government has presently determined that it will not support one-on-one counselling in the community other than in extraordinary circumstances. Secondly, Mr Winters’ personal impecuniosity means that he cannot meet the cost of treatment from his own resources.

168 Whether Mr Winters’ failure to complete the CUBIT program during his prison term was due in any degree to his own choice or was entirely a product of his psychological difficulties I could not determine. The Attorney-General places substantial responsibility on Mr Winters. The desirability of Mr Winters completing a treatment program is not questioned. Whether he can now do so in group session has yet to be determined. During the course of the next twelve months Mr Winters’ response to group treatment will become apparent. If it happens that he remains unable to complete a group based program I would expect that the responsible authorities will endeavour to ensure that alternative treatment is available.

169 The confined treatment regime which is presently available is a result of decisions taken by government on the advice of the experts who are available to it. However, the evidence before me, leaving aside the question of the required financial resources, suggests that there are significant questions as to whether group therapy within a penal institution is the only appropriate treatment for some offenders. There are also questions as to the effectiveness of group treatment in reducing the likelihood of recidivism amongst a person classified as a high risk sex offender. If the evidence justified a conclusion that treatment would be of no benefit to any individual the discretion given to the court by the legislation would have to be exercised with this fact in mind. It would only be in the most extreme case that a person would never be released although the stringency of any conditions controlling their activities in the community would require careful consideration.

170 In the present case the need for Mr Winters to receive counselling is not doubted. If, which is not the case, no counselling of any form was available, the court would nevertheless have to consider whether Mr Winters should be released. Given that, because of the cost, treatment is only available within the prison system I have been required in the exercise of my discretion to determine whether release under supervision would be appropriate.

171 The fact that the policy decisions of government confine the range of treatment options which are available does not mean that by bringing the present proceedings and arguing that a form of treatment is essential if Mr Winters is to be released the proceedings are an abuse of process. If the Attorney General argued that treatment was essential, but no treatment regime was available at all, to my mind the proceedings would not be an abuse. The proceedings would be brought in accordance with the legislation enacted by the Parliament. However, in these circumstances, the exercise of the discretion would be informed by the fact that facilities which the Attorney General said were essential were simply not available.

172 In my judgment Mr Winters’ submission that the position is analogous to that in Dietrich is not correct. Abuse of process is essentially concerned with the conduct of the proceedings. A fair hearing entails fairness of the process. Perceptions of the fairness of the outcome is another matter.

173 In Dietrich, the denial (through no fault of the indigent accused) of legal aid and legal representation directly affected the accused’s right to a fair trial. In the present case, the lack of funding to provide one-on-one psychological treatment for the defendant does not affect, directly or indirectly, the fairness of the hearing although it is relevant to the decision which must be made.

174 It may be that the decision which a court will make in the exercise of its discretion will be judged by the Attorney General or the offender to be unfair. In that event the decision can be reviewed, in accordance with the relevant principles by the Court of Appeal. However, if it is the situation that the court’s decision is a result of the legislative policy, reflected in the Act when applied to the circumstances of a particular individual, the court would never be justified in refusing to exercise jurisdiction (see Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 at [23]).

175 The constitutional validity of the Act cannot now be doubted (see Fardon). Under the Act this Court exercises the discretion provided by s 17 having regard to the evidence before it and independently of any instruction, advice or wish of the legislative or executive branches of government. No policy is imposed on the Court, in a manner analogous to an administrative decision-maker acting under dictation.

176 For those reasons I made the following orders:

ANNEXURE A

THE RISK MANAGEMENT PLAN PROPOSED ON BEHALF OF THE DEFENDANT SHOULD THE COURT MAKE AN EXTENDED SUPERVISON ORDER

The terms of the extended supervised order are proposed as follows:

(a) Vivian Fahs and the responsible probation and parole officers under her supervision will have access to all relevant information regarding Mr Winters’ progress in the community.

(b) All agencies/parties involved in Mr Winters’ supervision order are to communicate all significant concerns regarding risk to Vivian Fahs and/or the responsible probation and parole officers immediately.

(i) Mr Winters is required to report personally once a week to the responsible probation and parole officer;

(ii) Whoever is overseeing Mr Winters’ living arrangements is to contact by phone once a week and personally once a month the relevant probation and parole officer (the frequency of this contact can be varied at the direction of Vivian Fahs and/or the responsible probation and parole officer under her direction);

(iii) Similarly Mr Winters’ employers should he find employment are to contact Vivian Fahs and/or the relevant probation and parole officer in accordance with (ii) above;

(iv) The appointed psychologist and psychiatrist report to Vivian Fahs and/or the relevant probation and parole officer from time to time as they deem appropriate; and they are to be available for case management issues when they arise – Mr Winters is required to waive his rights of confidentiality in this regard;

(v) The officer in charge of monitoring Mr Winters’ movements is to contact Vivian Fahs and/or the relevant probation and parole officer once a week;

(vi) There is to be a six monthly meeting with all agencies/parties including Mr Winters if his attendance is required by Vivian Fahs and/or the relevant probation and parole officer, at which point the Risk Management Plan should be reviewed and adjusted commensurate with the risk as it then presents.

2. Accommodation;

Accommodation is to be provided by the Department of Corrective Services at a furnished residence not known to the media where Mr Winters can live with the assistance and supervision of the Special Visitation Group. Initially the SVU will take Mr Winters to his appointments for treatment. There will be a psychologist available for non-specialised counselling 24 hours, 7 days a week.

3. Treatment:

(i) Mr Winter is to accept psychiatric treatment including anti-libidinal and anti-depressant medication as indicated, to be supervised by Dr Olav Nielssen, the injection to be administered by a GP,

(ii) Mr Winters agrees to regular medical consultations, investigations and blood tests as directed by Dr Nielssen.

(iii) Mr Winters accepts a frequency of consultation as directed by Dr Nielssen, at a venue and time specific by Dr Nielssen.

(iv) Mr Winters is to accept psychological treatment from Jenny Howell (or a substitute psychologist if she is away) at a frequency and of a nature as she considers appropriate immediately, and immediately upon release from custody.

4. Further restrictions as required by the Department of Corrective Services :

(i) Should Mr Winters wish to move accommodation then to reside in accommodation approved by the Department of Corrective Services.

(ii) Accept the guidance and supervision of the Special Visitation Group for as long as necessary as determined by the Probation and Parole Service.

(iii) Not to be in contact with children less than 18 years unless approved and supervised by the Special Visitation Group.

(iv) Not to use any alcohol or drugs and agree to be subject to drug and alcohol testing.

(v) To have drug and alcohol counselling and treatment if indicated.

(vi) Not to change appearance unless approved by the Department of Corrective Services.

ANNEXURE B

PLAINTIFF’S RESPONSE TO THE FORM OF THE RISK MANAGEMENT PLAN PROPOSED ON BEHALF OF THE DEFENDANT SHOULD THE COURT MAKE AN EXTENDED SUPERVISION ORDER

I. Oversight

The defendant will accept the oversight of the management plan by the co-ordinator of the Special Visitation Group ("SVG") of the Department of Corrective Services (or such other person as the Commissioner of Corrective Services may thereafter from time to time appoint).

a. The defendant accepts the co-ordinator of the SVG, the SVG and the responsible Probation and Parole Officers under the co-ordinator's supervision having access to all relevant information regarding the defendant while under the extended supervision order, and the defendant will provide or facilitate the provision of any such information as may be requested;

b. The defendant accepts that all agencies/parties involved in his supervision order will immediately communicate to the co-ordinator of the SVG and/or the responsible Probation and Parole Officers any and all information and concerns regarding risk or potential risk posed by the defendant;

c. Otherwise regarding monitoring:

(i) The defendant must report personally once a week to the responsible Probation and Parole Officer (or as otherwise as may be specified by such officer);

(ii) The defendant accepts that whoever is overseeing his living arrangements will report on those arrangements and any risk posed by him to the relevant Probation and Parole Officer by telephone once a week and personally once a month (the frequency of this contact can be varied at the direction of the co-ordinator of the SVG and/or the responsible Probation and Parole Officer under her direction);

(iii) The defendant accepts that, should he find employment, his employers will, from time to time, report to the co-ordinator of the SVG and/or the relevant Probation and Parole Officer on that employment and on any issues relating to risk posed by the defendant in accordance with (ii) above;

(iv) The defendant accepts that the appointed psychologist and psychiatrist and the treating general practitioner (and any substitutes thereof), will report to the co-ordinator of the SVG and/or the relevant Probation and Parole Officer after each consultation, orally or in writing as required by the co-ordinator of the SVG, and the defendant will waive his rights of confidentiality in this regard;

(v) The defendant accepts that the officer in charge of monitoring his movements will contact the co-ordinator of the SVG and/or the relevant Probation and Parole Officer at least once a week;

(vi) The Court notes that there is to be a six-monthly meeting with all agencies/parties including the defendant if his attendance is required by the co-ordinator of the SVG and/or the relevant Probation and Parole Officer (and the defendant will attend any such meeting as may be requested of him).

3. Accommodation

The defendant is to accept such accommodation as may be provided by the Department of Corrective Services from time to time (noting that it is contemplated that the defendant will reside initially at a furnished residence where he can live with the assistance and supervision of the SVG and with a psychologist available for non-specialised counselling 24 hours, 7 days per week) and will reside at such address at all times, unless otherwise approved by the SVG.

a. The defendant consents to the administration of such anti-libidinal (by injection) and anti-depressant medication by Dr Olav Nielssen or a general practitioner (or, if Dr Nielssen or the general practitioner becomes unavailable, such other treating psychiatrist or general practitioner as is thereafter notified to and approved by SVG) as may be required with the treatment goal of the defendant being able to effectively manage his risk of sexually reoffending;

b. The defendant will attend and undergo all such medical consultations, investigations and blood tests as may from time to time be directed by Dr Nielssen or a general practitioner (or, if Dr Nielssen or the general practitioner becomes unavailable, such other treating psychiatrist as thereafter notified to and approved by SVG);

c. The defendant will attend such locations as may be required for the administering of anti-libidinal and anti-depressant medication to be administered by Dr Nielssen or a general practitioner (or, if Dr Nielssen or the general practitioner becomes unavailable, such other treating psychiatrist or general practitioner as is thereafter notified to and approved by SVG);

d. The defendant will accept the SVG and/or a Corrective Services Officer attending with the defendant at any such of the medical or psychological appointments of the defendant as SVG and/or a Corrective Services Officer may desire to attend;

e. The defendant must engage in psychological treatment of at least three sessions per week (with each session of at least one hour's duration) with Jenny Howell (or a substitute psychologist if she is away, or such other psychologist as may thereafter be notified to the defendant by SVG) immediately upon release, with the treatment goal of the defendant being able effectively to manage his risk of sexually reoffending, and with the frequency of visits thereafter to be modified as the treating psychologist in consultation with SVG considers appropriate;

f. The defendant must, to the satisfaction of the treating psychologist, engage and actively participate in any and all such psychological treatment as the psychologist requires;
g. The defendant consents to the provision of any or all medical and other records and information of and from any treating doctor or therapist of the defendant being provided to SVG (for consideration and/or circulation as SVG considers appropriate) and other treating doctors or therapists as may be requested from time to time by SVG and/or any treating doctor or therapist.

5. Further conditions

Without in any way limiting any of the preceding paragraphs (and without in any way limiting the terms of any other condition), the further conditions imposed on the defendant for the term of the supervision order are as follows:

a. The defendant must comply with all lawful directions of SVG and/or a Corrective Services Officer and/or Probation and Parole Officer;

b. The defendant must accept the guidance and supervision of the SVG and/or the Probation and Parole Service for as long as necessary as determined by the Probation and Parole Service;

c. The defendant must not be in contact with children less than 18 years old unless approved and supervised by the SVG;

d. The defendant must not approach any place frequented by children under the age of 18 years (without limitation, including school, playground, park, reserve, youth centre, place of entertainment frequented by children, drop-in zones) and such other places as SVG and/or a Corrective Services Officer or Probation and Parole Officer may direct, unless accompanied by a responsible adult (being a person previously approved by SVG or a Corrective Services or Probation and Parole Officer as being a responsible adult for the purpose of this condition);

e. The defendant must not to use any alcohol or drugs and agree to be subject to drug and alcohol testing;

f. The defendant must undertake such drug and alcohol counselling or treatment as directed by a responsible Probation and Parole Officer and must do so to the satisfaction of the person supervising that counselling or treatment;

g. The defendant must accept such electronic monitoring as may be provided by the SVG and/or a Corrective Services Officer and the defendant must wear such electronic monitoring equipment as directed by the SVG and/or a Corrective Services Officer and comply with all instructions given by SVG and/or a Corrective Services Officer in relation to the handling and operation of such equipment;

h. The Defendant must not to change appearance unless approved beforehand by the Department of Corrective Services;

i. The defendant agrees to be photographed by the SVG on such occasions as SVG considers appropriate;

j. The defendant must not leave his place of residence for any stay of one or more nights at any other location, and must not leave the State of New South Wales or Australia for any purpose, without the prior approval of SVG and/or a Probation and Parole Officer;

k. The defendant must accept home visits (including unscheduled visits) at any time by SVG and/or a Corrective Services Officer on such occasions as SVG or such Corrective Services Officer considers appropriate and the defendant must not refuse entry to any such officer conducting a home visit;

l. The defendant must not associate with any person or persons specified by SVG and/or a Corrective Services Officer;

m. The defendant must enter into and remain in such employment as is arranged or agreed to by SVG and/or a Corrective Services or Probation and Parole Officer;

n. The defendant is to notify SVG and/or his responsible Probation and Parole Officer of any intention to change his employment before such change occurs or (if this cannot be done beforehand) as soon as possible thereafter;

o. The defendant must forthwith make available for full inspection (including removal for forensic examination if so requested) any computer or other electronic equipment owned or used by the defendant) at any time as required by SVG and/or a Corrective Services Officer;
p. The defendant must notify SVG of any breach or possible breach by the defendant of any of the conditions imposed by the Court as part of this Risk Management Plan as soon as possible after such breach or possible breach occurs and to provide SVG with full particulars of such breach or possible breach, including a signed statement in writing.

10/03/2008 - his Honour changed to her Honour - Paragraph(s) 8, 9, 12

Citations

Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071

Most Recent Citation

Cases Citing This Decision

74

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

Cases Cited

20

Statutory Material Cited

1

Director of Public Prosecutions for Western Australia v Williams [2007] WASC 95

Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605

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

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CITATION:	Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17-19 July 2007 ; 26 July 2007; 9 August 2007; 24 August 2007; 28-31 August 2007; 4 September 2007; 14 September 2007
JUDGMENT DATE :	26 September 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. Notice of Motion filed by the defendant on 14 September 2007 is dismissed; 2. I order that Christopher Paul Winters be detained in a correctional centre for one year from today; 3. Pursuant to s 21 of the Act, I issue a warrant for the committal of Christopher Paul Winters to a correctional centre for the duration of the continuing detention order in order 2 above.
CATCHWORDS:	Serious sex offender – Custody Based Intensive Treatment program not completed by offender – application for extended supervision order or continuing detention order – STATUTORY INTERPRETATION – meaning of the word “likely” – standard of proof – high degree of probability – whether offender likely to commit a further serious sex offence – whether adequate supervision would be provided by an extended supervision order – EXPERT EVIDENCE – whether possible to predict risk of re-offending – actuarial assessment – dynamic risk factors – whether proposed management plan adequate – availability of funding to implement management plan – ABUSE OF PROCESS – motion to stay proceedings until funding available for treatment – whether the Court’s discretionary option was frustrated – whether defendant received a fair hearing – unfairness in outcome or in the hearing process
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006
CASES CITED:	Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 Attorney General v David [1992] VR 46 Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney-General v Greater Manchester Newspapers Ltd [2001] All ER 32 Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) [2003] FCA 1229, Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1976) 14 SASR 303 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 Darkan v The Queen (2005) 227 CLR 373 Department of Agriculture and Rural Affairs v Binnie (1980) VR 836 Dietrich v The Queen (1992) 177 CLR 292 Director of Public Prosecutions for Western Australia v Williams (2007) WASC 95 Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 Global Sportsman Pty Ltd v Mirror Newspapers (1984) 55 ALR 25 Jabarula v Poore (1989) 42 A Crim R 479 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 Macartney v The Queen (2006) 31 WAR 416 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665, Poighand v NZI Securities Australia Ltd (1992) FCR 363; 109 ALR 213 R v Hallett [1969] SASR 141 R v Hind (1985) 80 A Crim R 105 R v Sheppard [1981] AC 394 R v Wills [1990] 2 Crim LR 714 Re Bullivant’s Natural Health Products Pty Ltd & Minister for Health and Family Services (1996) 43 ALD 305 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 The State of Western Australia v Alvisse (2007) WASC 129 Tillmanns Butcheries v AMIEU (1970) 27 ALR 367 TSL v The Secretary to the Department of Justice [2006] VSCA Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260 Williams v Spautz (1992) 174 CLR 509 at 518
PARTIES:	Attorney-General for NSW (Pltf) Christopher Paul Winters (Def)
FILE NUMBER(S):	SC 12483/07
COUNSEL:	D A Buchanan SC/D T Kell (Pltf) D Dalton SC (Def)
SOLICITORS:	Crown Solicitor of NSW (Pltf) Legal Aid Commission of NSW (Def)