Attorney-General (NT) v Harrison - [2018] NTSC 33

CITATION:Attorney-General (NT) v Harrison [2018] NTSC 33
PARTIES:ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

v
HARRISON, Nathan

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:No 30 of 2016 (21620083)
DELIVERED:  18 May 2018
HEARING DATES:  29 November 2016 and 16 May 2018
JUDGMENT OF:  Grant CJ
CATCHWORDS:

ADMINISTRATIVE LAW – PREVENTATIVE DETENTION LEGISLATION
Application pursuant to the Serious Sex Offenders Act (NT) on basis respondent a “serious danger to the community” – onus of satisfying the Court rested upon the applicant – paramount consideration need to protect victims or potential victims, their families and members of the community generally – secondary consideration desirability of providing rehabilitation, care and treatment for the person subject to the order – respondent remained a serious danger to the community –protection of the community could longer be met by making a supervision order subject to appropriate conditions – supervision order made.
Serious Sex Offenders Act (NT) s 6, s 9, s 14, s 17, s 22, s 23, s 24, s 25, s 27, s 30, s 31, s 36, s 38, s 58, s 65, s 88, s 90, s 92.
Attorney-General (NT) v JD [2015] NTSC 28, EE v Attorney-General (NT) [2017] NTCA 2, considered.
REPRESENTATION:
Counsel:
Applicant T Anderson
Respondent P Bellach
Solicitors:
Applicant Solicitor for the Northern Territory
Respondent Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  GRA1814
Number of pages:  36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Attorney-General (NT) v Harrison [2018] NTSC 33
No. 21620083
BETWEEN:

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Applicant

AND:

NATHAN HARRISON

Respondent

CORAM: GRANT CJ
REASONS FOR DECISION
(Delivered 18 May 2018)

The Attorney-General has made application under s 23 of the Serious Sex Offenders Act (NT) (“SSO Act”) for a final continuing detention order or, in the alternative, a final supervision order in relation to the respondent. The application is made on the basis that the respondent presents a serious danger to the community.
The respondent’s history of offending
The respondent is now 45 years of age. Between February 1987 and September 1998 he was convicted of 38 offences, primarily involving unlawful entry, stealing, sexual assault, common assault, criminal damage and unlawful use of motor vehicles.
The respondent was first convicted of sexual offending at the age of 16. The circumstances of that offending were as follows. On 2 July 1988, the respondent entered a house occupied by five adults and two children. He entered a room in which the female victim was sleeping. He penetrated the victim’s vagina with his penis while she was still asleep. The victim and a male person in the house woke up and detained the respondent until police arrived. The respondent was convicted on 20 December 1988 and sentenced to two years in detention for aggravated unlawful entry and four years’ imprisonment for aggravated sexual assault with a non-parole period of two years.
The respondent’s second conviction for a sexual offence was recorded on 16 February 1998 in relation to events which took place on 21 February 1996. He was 23 years of age at the time of that offending. The circumstances of that offending were as follows. On the night in question the respondent entered a dwelling house occupied by a 58 year old woman who was asleep at the time. The respondent placed a knife against the victim’s throat and threatened to kill her if she made any sound. He then proceeded to have sexual intercourse without her consent over a period of approximately two hours. The respondent was convicted of sexual intercourse without consent and sentenced to imprisonment for 14 years with a non-parole period of nine years and 10 months.
The respondent’s third sexual offence was committed while he was on bail for the offence committed on 21 February 1996, but before he had been tried and found guilty for the earlier offence. That offending took place on 12 September 1997 when the respondent was 25 years of age. The circumstances of that offending were as follows. The respondent entered a room in a traveller’s hostel occupied by a 23-year-old woman who was asleep at the time. The respondent placed his hand over the victim’s mouth and had sexual intercourse without her consent. The victim attempted to escape but the respondent forced her to the ground, hit her in the mouth, and placed his hand around her neck before continuing to have sexual intercourse with her until he ejaculated. The respondent then demanded money from the victim, before sodomising her for approximately 10 minutes with a pillow placed over the victim’s face. The respondent was convicted on 16 September 1998 of three counts of sexual intercourse without consent, unlawful entry and stealing. He was sentenced to imprisonment for 12 years for that offending, which was to commence after he had served eight years of the 14 year term to which he had been sentenced on 16 February 1998.
At the time this application was made under the SSO Act, the respondent was serving a total head sentence of 20 years with a non-parole period of 13 years in respect of the second and third episodes of sexual offending. During the course of his incarceration the respondent was assessed in 2007 and 2011 as presenting a high risk of further sexual offending. In January 2016, the correctional authorities engaged a forensic psychologist to assess the respondent’s risk of serious sexual offending. The respondent declined to participate in the process.
The scheme of the legislation
The essential purpose and objects of the SSO Act were described by Mildren AJ in Attorney-General (NT) v JD[1] in the following terms:
[3] The Act seeks to remedy a concern that those prisoners who have committed very serious sexual offences are released back into the community in circumstances where there is an unacceptable risk that, upon their release, they will commit another serious sex offence. The Act represents a very important shift in the administration of justice because it impacts upon the fundamental principle that a person’s liberty is not to be affected except upon proof of a criminal offence, and then only for so long as the sentence of the court in respect of that offence allows, and no longer. The scheme of the Act permits this Court in the exercise of its civil jurisdiction to make an order for continued detention or supervision beyond expiration of the Court’s sentence imposed in relation to a criminal sentence even though no further offence has been committed, albeit only in very limited circumstances.
[4] The objects of the Act are expressed in s 3:
3Objects of Act
(1)The primary object of this Act is to enhance the protection and safety of victims of serious sex offences and the community generally by allowing for the control, by continued detention or supervised release, of offenders who have committed serious sex offences and pose a serious danger to the community.
(2)The secondary object of this Act is to provide for the continuing rehabilitation, care and treatment of those offenders.
[5] The words “serious sex offence” are defined by s 4 of the Act to mean any of the offences listed in Schedule 1 of the Act (including an offence that was in Schedule 1 at the time it was committed), an offence which substantially corresponds to such an offence which has since been repealed or is a law from another jurisdiction, or an attempt, a conspiracy or incitement to commit such an offence. The offences listed in Schedule 1 include sexual intercourse and gross indecency without consent including a range of other sexual offences where the maximum penalty is seven years or longer.
[6] The expression “serious danger to the community” is defined by s 6(1) of the Act if there is an “unacceptable risk” that the person “will commit a serious sex offence unless he or she is in custody or subject to a supervision order”. [2]
The essential operation of the SSO Act was described by the Court of Appeal in EE v Attorney-General (NT)[3]. For ease of reference, I will largely repeat that summary here.
So far as is relevant for present purposes, the SSO Act empowers the Attorney-General to apply to the Supreme Court for a final continuing detention order or a final supervision order in relation to a “qualifying offender”.[4] A qualifying offender is a person who has been convicted of a “serious sex offence” as defined.[5] Upon application, the matter is set for a preliminary hearing to determine whether the matters alleged, if proved, would satisfy the Court that the qualifying offender is a serious danger to the community.[6] In the event of a finding that the Court would be so satisfied the matter is set for hearing, and medical assessments of the offender ordered from two medical experts.[7]
Once a date has been set for the hearing of the application, the Commissioner of Correctional Services is required to prepare a supervision report in relation to the offender.[8] The supervision report must set out the Commissioner’s opinion as to whether, if a supervision order were made, it would be reasonably practicable for the Commissioner to ensure that the person is appropriately managed and supervised having regard to the considerations of protection and rehabilitation.[9] In the meantime, the Court may make an interim continuing detention order or an interim supervision order pending determination of the application.[10]
On the hearing of the application the Court may make a final continuing detention order or a final supervision order.[11] As the name suggests, a continuing detention order requires the offender to be detained in custody. A final continuing detention order remains in force until it is revoked. Provision is made for the periodic review of final continuing detention orders no less frequently than every two years.[12] A final supervision order, again as the name suggests, requires that the offender be supervised under the terms of the order for a specified period of at least five years,[13] which may be extended upon application to the Court.[14] Either form of order may be revoked by the Court on application by the Attorney-General or the detainee/supervisee.[15]
In determining whether to make, amend or revoke a continuing detention order or a supervision order the Court must regard as the paramount consideration the need to protect victims of serious sex offences that have been committed or are likely to be committed by the offender, the victims’ families, and members of the community generally.[16] A secondary consideration is the desirability of providing rehabilitation, care and treatment for the offender.[17]
When determining whether to make, amend or revoke a supervision order, the Court, in considering the need for protection, must also have regard to the likelihood of the offender committing another serious sex offence; whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the offender is appropriately managed; and whether adequate protection could only reasonably be provided by making a continuing detention order in relation to the person.[18]
It is an offence for a supervised person to engage in conduct that results in a contravention of the terms of the order.[19] In addition, any contravention may come before the Supreme Court for civil purposes, and if the Court is satisfied the contravention occurred it must revoke the supervision order and impose a final continuing detention order.[20] The Court also has the power to make no order in appropriate circumstances. Section 58 of the SSO Act provides that the Court is “not required to make the orders … if satisfied it would not be appropriate to do so”. The onus in this regard rests upon the “supervisee”. Further, the Court has the power to amend the supervision order in response to a contravention as it considers appropriate.[21]
The history of the proceedings
The application was filed on 26 April 2016. A preliminary hearing was conducted on 2 June 2016, following which the Court determined that the matters alleged, if proved, would satisfy the Court that the respondent is a serious danger to the community. In consequence of that finding, the Court ordered that the respondent submit to medical examination by two examiners agreed between counsel for the parties.
The application was originally listed for hearing in October 2016, but the matter did not proceed on that time and was relisted for hearing on 29 November 2016. During the course of the hearing conducted on that day, the Court received into evidence a report dated 9 November 2016 and viva voce testimony from the Commissioner for Correctional Services; a report dated 28 August 2016 and viva voce testimony from Dr Danny Sullivan, a consultant psychiatrist; and two reports prepared by Dr Lester Walton, a consultant psychiatrist, dated 1 June 2016 and 31 August 2016 respectively.
On 7 December 2016, the Court made an interim supervision order pursuant to s 30 of the SSO Act pending determination of the application, and to allow some further investigation to be made of the living arrangements which might possibly be available to the respondent if a final supervision order was to be made. Under the terms of that interim order, the respondent was required, amongst other conditions, to reside in and remain at a location specified by a probation and parole officer and not leave the premises without first obtaining permission. The accommodation initially specified for that purpose was a visitors’ cottage situated within the grounds of the Darwin Correctional Centre, but standing outside the custodial correctional institution.
On 3 March 2017, the matter came back on for further mention and review. At that time, counsel for the applicant advised the Court that the Department of Correctional Services was looking at options which would enable the transition of the respondent to accommodations within the community. The respondent had returned negative results to alcohol and drug testing. Counsel for the respondent identified a number of possible options and indicated those matters were being explored. The interim supervision order was continued, an updated Compliance Report was ordered, and the matter was adjourned to 13 June 2017.
On 13 April 2017, the Local Court issued a summons for the respondent to appear before the Supreme Court to consider an alleged contravention of a requirement of the interim supervision order. The application was made by a probation and parole officer in pursuance of s 48 of the SSO Act. It was a term of the interim supervision order that the respondent was not permitted to possess, purchase, obtain, use or acquire by any means any device with internet capabilities. The circumstances of the alleged breach were that on or about 8 April 2017 the respondent’s sister had purchased a mobile phone with internet capability and provided it to the respondent. When asked about the matter, the respondent denied he was in possession of a phone of that type. Community Corrections officers then conducted a search of the residence and located a Telstra smart phone concealed in the sofa.
On the resumption date of 13 June 2017, the respondent admitted the breach alleged by information dated 13 April 2017. The Court found that the respondent had contravened the interim supervision order in the manner described in the information and accompanying affidavit material, and determined to take no further action in relation to that contravention.
Counsel for the applicant indicated at that time that his client would still be pressing for a final supervision order in the same terms as the interim supervision order. Counsel for the respondent advised that his client preferred the continuation of the interim supervision order to enable further exploration of accommodation options. Counsel for the respondent also noted that no behavioural issues had been identified since the contravention on 8 April 2017, and that the respondent was unlikely to benefit from further treatment and support in a closely supervised environment. The interim supervision order was continued, an updated Compliance Report was ordered, and the matter was adjourned to 14 November 2017.
The matter resumed on 14 November 2017, at which time the updated Compliance Report provided that the applicant had been travelling unaccompanied in the community, but subject to electronic monitoring. He had ventured into prohibited bush areas on two occasions, but there had otherwise been no inappropriate behaviours observed. All breath tests which had been administered had returned negative results. The respondent still required assistance in managing his monies. He was still accommodated at the visitors’ cottages, and it had been ascertained that there was a four year waiting list for priority public housing.
The accommodation of the respondent at his mother’s residence in Katherine had been excluded as a suitable option due to the free availability of alcohol at those premises (discussed further below). The accommodation of the respondent at his sister’s residence in Palmerston had been excluded as a potential option. A cousin’s house which had previously been identified as a potentially suitable residence had been determined to be unsuitable due to anti-social behaviours on the premises. Accommodation at the Weemol outstation, which had also been considered as a possible option, was not available. There were too many children resident in the respondent’s grandfather’s house at the outstation, and the single men’s house was occupied to capacity. In addition to those matters, the closest community of Bulman does not have a permanent police presence, and no electronic monitoring was possible from the location.
The interim supervision order was continued, an updated Compliance Report was ordered, and the matter was adjourned to 15 May 2018.
On 2 February 2018, the Local Court issued a summons for the respondent to appear before the Supreme Court to consider a further alleged contravention of a requirement of the interim supervision order. The application had been made by a probation and parole officer in pursuance of s 48 of the SSO Act. It was a term of the interim supervision order that the respondent must comply with directions made by a probation and parole officer, reside at premises as directed by a probation and parole officer, and not leave those premises without permission.
Two breaches were alleged. The circumstances of the alleged breaches were that on 8 January 2018 the respondent was provided with a supervision schedule for the period 8 January to 21 January 2018. That schedule included places the respondent was permitted to attend unsupervised during specified periods, and a daily curfew. The respondent was advised that if he had any difficulty complying with the curfew he was required to contact Community Corrections immediately.
The schedule provided that on 21 January 2018 the respondent was approved to attend Palmerston but was required to return to his residence by 1600 hours. The respondent travelled to Palmerston on that day at approximately 0900 hours. At about 1600 hours he was in proximity to his residence, but then travelled in a motor vehicle to the rural area of Darwin and did not return to his residence until approximately 1805 hours that evening. He made no contact with Community Corrections to advise that he may be in breach of curfew. He did not answer his phone when contacted by Community Corrections during the unauthorised absence. When initially confronted about the matter, the respondent stated that he had remained in his residence for the whole day. When advised that his movements could be tracked through electronic monitoring, he admitted that he travelled to the rural area. Urinalysis and breath testing conducted the following day returned negative results to illicit drugs and alcohol.

Then, on 23 January 2018, the respondent was advised of his supervision schedule for the period 22 January to 4 February 2018. On 25 January 2018, a probation and parole officer gave the respondent permission to travel to Palmerston between 0900 hours and 1600 hours on 26 January 2018. The respondent had not returned to his residence by 1635 hours and had to be contacted by a probation and parole officer and directed to return. The respondent returned to his residence at approximately 1645 hours.
On 14 February 2018, the Local Court issued a further summons on application for the respondent to appear before the Supreme Court to consider an alleged contravention of a requirement of the interim supervision order. It was a term of the interim supervision order that the respondent must comply with directions made by a probation and parole officer, must not possess any device with internet capabilities, and must not possess or view pornography.
The circumstances of the alleged breach were that on 9 February 2018 a handwritten list of pornographic internet sites had been found hidden under the mattress in the respondent’s bedroom. When the respondent was questioned about those matters he denied any knowledge of the matter, he denied any access to the internet, and he denied viewing pornographic material. On 10 April 2017, additional lists of internet sites, internet user names, phone numbers and bank account details were found during a search of the respondent’s residence. The respondent subsequently admitted that he had compiled those lists, and that he had accessed pornographic sites on the internet on a number of occasions since January 2017 using phones belonging to his sister and girlfriend.
The summonses for the alleged contraventions came before the Court on 15 February 2018. At that time, counsel for the applicant advised the Court that he was not instructed to seek revocation of the interim supervision order at that stage on the basis that the matter was set down for final determination in May 2018. Further consideration of the alleged contraventions was stood over until that time.
Then, on 4 April 2018, the Local Court issued a warrant for the respondent’s arrest on application by a probation and parole officer. That application was made on the basis of an alleged contravention of a requirement of the interim supervision order. It was a term of the interim supervision order that the respondent must comply with directions made by a probation and parole officer, must reside and remain at a location specified by a probation and parole officer and not leave those premises without permission, must wear a monitoring device as directed by a probation and parole officer, and must comply with the rules for electronic monitoring.
The circumstances of the alleged breach were that on the morning of 3 April 2018 the respondent contacted Community Corrections and requested permission to walk to the Howard Springs service station to purchase cigarettes. The respondent was advised that his designated probation and parole officer would make contact in approximately one hour to discuss the request. The respondent rang the Community Corrections office 50 minutes later and made the same request. He was told to wait until his probation and parole officer made contact, and was reminded of the obligation to remain at the residence until given permission to leave. The respondent stated that he was going to leave anyway.
The respondent left his residence approximately 30 minutes later. Approximately 30 minutes after that, the Electronic Monitoring Centre advised that the respondent’s monitoring device had been subject to tampering. Attempts to call the respondent on his phone were unsuccessful. Attempts to locate the respondent were unsuccessful. The electronic monitoring device was found under the Palmerston Water Tower at 2345 hours that night. The respondent was subsequently arrested by police pursuant to the warrant.
The matter came before the court on 5 April 2018, at which time an interim continuing detention order was made pursuant to s 52 of the SSO Act. Consideration of the alleged contravention was also stood over until the determination of the substantive application on 16 May 2018. The respondent has been held in detention since that time.
Serious danger to the community
It is not in dispute that the respondent was a “qualifying offender” within the meaning of s 22 of the SSO Act at the time the application was made, in that he had been convicted of a serious sex offence and he was under a sentence of imprisonment for that offence.
The first question for determination is whether the respondent presents a “serious danger to the community” within the meaning of s 6 of the SSO Act. A qualifying person presents such a danger if there is an unacceptable risk that he or she will commit a “serious sex offence” unless he or she is in custody or subject to a supervision order. Schedule 1 to the Act lists the offences prescribed as “serious sex offences” for the purpose of the legislation. That listing includes sexual intercourse without consent, aggravated indecent assault, sexual offences against children under the age of 16 years, and a raft of less common offences with a sexual element.
In deciding whether the respondent is a serious danger to the community, the Court must have regard to the likelihood that he will commit another serious sex offence; the impact of the serious sex offences committed, or likely to be committed, by the respondent on the victims and the community; and the need to protect people from those impacts. A statutory formulation of the Briginshaw standard applies to that assessment and the applicant bears the onus.[22]
Dr Walton’s initial report dated 1 June 2016 makes the following observations. The respondent showed no evidence of alcohol-related brain injury on a background of normal intelligence. There was no suggestion of psychosis. The respondent has been repeatedly assessed by psychologists as presenting a high risk of sexual reoffending. The respondent has participated in the Sex Offenders Treatment Program, which he completed in 2007. The respondent had acknowledged during the course of that treatment that excessive drinking and viewing pornographic material were risk factors for reoffending.
Against that background, Dr Walton expressed the following opinions. There was no convincing evidence that the respondent suffered from a psychosexual disorder, but he is prone to poor judgement in that respect when disinhibited by alcohol. The respondent will remain at an elevated risk of reoffending for the indefinite future on the basis of his past history, although the level of risk will diminish with the passage of time. Additional adverse risk factors include his general antisocial behaviour and the risk of relapse into alcohol abuse. The psychological immaturity which may have contributed to the respondent’s previous offending will have diminished with age.
Dr Walton’s subsequent report dated 31 August 2016 contains the following additional opinions. It was of some concern that the respondent does not appear to have fully retained the insights from his previous sex offender treatment. It is difficult to quantify the risk of sexual reoffending. Alcohol misuse is a relevant factor and the respondent remains at risk of relapse in that respect. The respondent would need to be accommodated in a situation where the temptation to resume alcohol use is minimised. There is no necessity for actual psychiatric supervision or treatment. The respondent demonstrates minimal expression of remorse and seeks to minimise his culpability for the prior offending. Having regard to those matters, the respondent is a “moderate risk of committing a further serious sexual offence”. While the safest option would be to retain the respondent in a custodial environment, lengthy incarceration would compromise his ability to ever properly assimilate back into the community.
In his report dated 28 August 2016, Dr Sullivan sets out a record of the respondent’s personal history, medical history, psychiatric history, substance abuse history, and psychosexual and offending history. The report noted that following the respondent’s Sex Offender Treatment Program in 2007 there remained concerns of inappropriate sexual arousal and concerns that his relapse prevention strategies were shallow. In August 2011 it was reported that the respondent experienced deviant sexual fantasies in the months prior to his offending. In January 2014 it was reported that the respondent had been discovered in possession of a pornographic DVD in November 2012, and that he did not appear to have retained any information or learning from his two previous periods of treatment.
Dr Sullivan then expressed the following opinions. The respondent has an established history of alcohol dependence, but no history of other mental disorder, psychosis or gross personality disorder. There is no overt evidence of cognitive impairment. There is no clear history of sexual disorder. The prior offending is strongly associated with intoxication, but was likely premeditated to some degree. There are a number of risk assessment instruments that can be used. On STATIC-99 the respondent scores in the high risk category. Approximately half the people scoring in that category commit further sexual offences in the 15 years following release. The RSVP index suggests a number of risk factors across all domains, mainly in the areas of Social Adjustment and Manageability. Combining the results from those two indices, the respondent is assessed as at high risk of future sexual reoffending.
In Dr Sullivan’s further opinion, alcohol use is a potent disinhibitor and intoxication is likely to escalate dynamic risk acutely given its association with past offending. On the other hand, ageing as a protective factor and will be likely to reduce the risk significantly. The respondent would benefit from stable accommodation with case management or staff monitoring on a regular basis – ideally daily in the initial stages at least – in order to maintain oversight of any reintegration into the community. Community safety would be enhanced by the imposition of a curfew. Dr Sullivan’s ultimate conclusion in the report is that the respondent would be at high risk of committing another serious sex offence if not detained in custody or subject to a supervision order.
As is discussed further below, Dr Sullivan gave oral evidence at the hearing of the matter. That evidence was directed largely to the conditions of supervision, and did not change the opinions expressed in the report.
Having regard to the opinions of Dr Walton and Dr Sullivan, I find that the respondent presents a serious danger to the community on the basis that there is an unacceptable risk he will commit a “serious sex offence” unless he is in custody or subject to a supervision order. Counsel for the respondent did not actively contend otherwise. The evidence and submissions received during the course of the application have proceeded largely on the basis that the primary issue for determination is whether the respondent should be subject to a continuing detention order or a supervision order; and, if the latter, on what terms.
Continuing detention order or supervision order
Section 31 of the SSO Act provides that on the hearing of an application the Court “may make a final continuing detention order or final supervision order in relation to the qualifying offender if satisfied that the qualifying offender is a serious danger to the community”. Again, the applicant has the onus of satisfying the Court that it is appropriate to make a final continuing detention order or final supervision order.
Section 9 of the SSO Act provides that in deciding whether to make a continuing detention order the Court must have regard to the paramount consideration already described (ie the need to protect victims and members of the community), and to the secondary consideration of rehabilitation, care and treatment for the respondent. In the consideration of those matters, the Court must have regard to the likelihood that the respondent will commit another serious sex offence and “whether adequate protection could reasonably be provided by making a supervision order in relation to the person”.
It necessarily follows from that provision that a continuing detention order should not be made if adequate protection could be afforded to victims and the community by making a supervision order. Section 14 of the SSO Act provides that in deciding whether to make a supervision order the Court must have regard to the same paramount and secondary considerations. In considering the need to protect victims and the community, the Court must have regard to: (a) the likelihood of the respondent committing another serious sex offence; (b) whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the respondent is appropriately managed and supervised; and (c) whether adequate protection could only reasonably be provided by making a continuing detention order.
Section 18 of the SSO Act then sets out a catalogue of “compulsory requirements” which the Court must include in any supervision order. Section 19 of the SSO Act expressly empowers the Court making a supervision order to include in it any other requirements the Court considers appropriate, which are described in the heading to the section as “optional requirements”.
During the initial hearing of the application on 29 November 2016, the Court received a report from the Commissioner of Correctional Services dated 9 November 2016 which expressed the opinion that suitable accommodation could be made available for the respondent at the visitors’ cottages already described above, and that it would be reasonably practicable for the respondent to be appropriately managed and supervised under a supervision order which was subject to certain conditions.
That being the position adopted by the Commissioner of Correctional Services, the principal point of contention in this matter was whether the supervision order should provide that the respondent reside and remain at a location specified by a probation and parole officer, or whether it should provide for the respondent’s accommodation in the community. The concern expressed by counsel for the respondent was that an order in the former terms, and the proposed accommodation at the visitors’ cottages within the general correctional precinct, would amount to a de facto incarceration in a custodial environment and compromise the respondent’s reintegration into the community. During the initial hearing of the application, counsel for the respondent urged an order in terms which would permit the respondent to live with his mother in Katherine.
The Commissioner of Correctional Services gave the following oral evidence during the hearing of the matter. In his opinion, the proposed accommodation with the respondent’s mother in Katherine would not permit the respondent to be supervised safely in the community. While the ultimate goal was the respondent’s reintegration into the community, alcohol management, supervision and monitoring were essential components of a successful reintegration.
The respondent’s mother lives in a block of seven units situated on a relatively small parcel of land. Each unit is occupied by families, including children. The units receive a significant number of visitors and there our problems with alcohol management. The unit occupied by the respondent’s mother had been visited on 22 occasions for alcohol-related complaints, and drinking was a common and prevalent activity in the area of the units generally.
The accommodation of the respondent in that unit would also present difficulties with electronic monitoring. The monitoring system uses GPS to locate an individual. There is some drift in the location, which would make it impossible to determine whether the respondent was in his mother’s unit or another unit in the complex, or even whether the respondent remained within the parcel of land on which the units were situated. It would also be difficult for correctional services staff to provide treatment in that location.
The Commissioner also queried whether the proposed residential arrangement with the respondent’s mother would be suitable in other ways. Correctional services staff had identified that the mother has a history of alcohol abuse, and that she does not believe her son committed the sexual offences for which he was imprisoned.
Against that background, the Commissioner said that the plan for the respondent’s supervision would be to ensure that he abstained from alcohol, to allow him to form appropriate relationships with family and others, to facilitate both supervised and unsupervised visits to the community, and ultimately to move him to suitable accommodation in the general community. As part of that plan, it would be possible for family members to visit the respondent and stay with him at the visitors’ cottage during the time he was accommodated there. While there was no guarantee of financial assistance for family to travel from Katherine to Darwin for the purpose of visiting the respondent, there were a number of programs by which assistance might be provided on application.
The Commissioner conceded that the cottages were within the physical boundaries of the prison property, and that there was nobody else living in the cottages at that particular point in time. As the cottages are located on prison property, they are somewhat isolated from public transport and smoking is not permitted on the grounds. While there would be opportunities for contact with prisoners on pre-release work programs, there would be no unsupervised contact of that nature. The risk of social isolation would be addressed by graduated visits to the community, including unsupervised visits if the respondent demonstrated compliance with permission and curfew requirements. (As is apparent from the above discussion concerning the history of these proceedings, there have subsequently been a number of instances of non-compliance with the conditions of the interim supervision order.)
The Commissioner said that the general plan for the 12 months following the making of any supervision order would be for the respondent to reside at the visitors’ cottages, with permission to leave on an unsupervised basis for the purposes of shopping and attending medical appointments. Again, the frequency and duration of those outings would be extended on a graduated basis subject to abstinence from alcohol and compliance with permission and curfew requirements. The electronic monitoring boundary would be extended for recreational and exercise purposes to cover a large part of the grounds.
The Commissioner accepted that the respondent had demonstrated a high degree of compliance over the period of his imprisonment. That gave the correctional authorities some confidence that he would comply with the supervisory regime which was proposed. The Commissioner accepted that residence at the visitors’ cottages might be characterised as quasi-custodial or in the nature of home detention. At that point in time, however, he considered this was preferable to accommodating the respondent at his mother’s residence given the risks presented by alcohol and communal living, and the reduced capacity for management and treatment to be provided to the respondent.
Dr Sullivan also gave oral evidence during the course of the initial hearing on 29 November 2016. He acknowledged that a final supervision order had the potential to give rise to social isolation and retard the respondent’s rehabilitation if that supervision did not allow adequate re-engagement with the community. He was of the view that the conditions of supervision should ideally allow the respondent to take public transport to go shopping and engage in other activities without supervision. (As has been seen, that recommendation was put into practice subject to permission and curfew requirements.) He confirmed that intoxication by alcohol was a significant risk factor, but was unable to quantify the likelihood of sexual reoffending if the respondent remained abstinent from alcohol.

Dr Sullivan said that prognostication concerning the risk of sexual reoffending becomes increasingly difficult the greater the temporal distance between the assessment of risk and the last episode of sexual offending. It was also the case that the respondent did not display the behaviours one would ordinarily expect in a hypersexual offender. However, he did say that it could not be assumed the respondent would remain abstinent from alcohol misuse. The risk presented by a relapse into alcohol misuse was best addressed by therapeutic intervention, medication and monitoring by electronic means. It was also necessary that the respondent himself be at least partially motivated to remain abstinent.
Dr Sullivan acknowledged that while accommodation in relative isolation reduced the risk of sexual reoffending in the immediate term, addressing that risk in the long-term would require a greater level of reintegration into the community. He expressed the view that the proposed accommodation in Katherine with the respondent’s mother might offer some social benefit but was attended by significant risk factors, particularly in relation to the misuse of alcohol. So far as contact with children was concerned, Dr Sullivan was of the view that it was a matter of striking a balance. Conditions which absolutely precluded the respondent from having contact with children would not be helpful, and he would prefer a model in which the supervisory authorities had discretion to permit the respondent to have access to children when it was considered safe.
Ultimately, Dr Sullivan advocated a model which provided for a graduated reintegration into the community allowing a flexible and proportionate degree of support and supervision, which could be reduced over time.
It was against the background of that evidence that an interim supervision order was made on 7 December 2016. Some aspects of the respondent’s progress since that time have been described above in the history of the proceedings. When the hearing of the application resumed on 16 May 2018, the Court received a Supervision Report by the Commissioner pursuant to s 88 of the SSO Act. The ultimate conclusion of that report was that it remained reasonably practicable for the Commissioner to ensure that the respondent was appropriately managed and supervised as required by s 63 of the SSO Act if the final supervision order was subject to conditions similar to those in the interim supervision order. That conclusion was reached having regard to the various contraventions of the interim supervision order by the respondent which have been described above.
The Supervision Report also describes the respondent’s general progress under supervision, and the measures taken to identify suitable accommodation in the community and to assist the respondent with his reintegration back into the community. By way of summary, the respondent has been undertaking the day-to-day tasks required to live independently, albeit with some assistance. These tasks included shopping, banking, dealing with various government agencies, medical appointments, driving lessons and visiting family members. The respondent was also allowed unsupervised free time, but subject to electronic monitoring. He is able to meet family and friends, and to spend time with his girlfriend.
The Supervision Report also discloses that during the course of his supervision the respondent has been breath tested for the purpose of detecting the presence of alcohol on 193 occasions, with all results being recorded as negative. Community Corrections has to this point in time been unable to make arrangements for the respondent to visit family at Weemol outstation. Arrangements had been made for the respondent to visit in December 2017, but shortly before that arranged visit the liaison person advised that the members of the community would be attending a funeral in Barunga at the appointed time. The visit was cancelled as a result. Further contact with the community was made in January 2018, but at that point most of the respondent’s relatives remained in Barunga. Subsequent attempts to make arrangements have met with access problems due to weather conditions.
Counsel for the respondent submitted that it was essential to facilitate visits by the respondent to Weemol outstation to provide him cultural contact and comfort in order to facilitate his rehabilitation. It would appear that Community Corrections is attempting to make those arrangements, but has yet to achieve success in that respect. It is important that any supervision order made does not preclude that contact, and further, that the contact should be arranged as soon as possible. Despite that lack of success concerning a visit to the outstation, Community Corrections has assisted the respondent to spend time with various family members, and to visit family and friends receiving treatment at the Royal Darwin Hospital.
Efforts to identify suitable alternative accommodation arrangements have not been successful to this point in time. The respondent does not meet the entry criteria for various hostels that might otherwise be available for that purpose. As already described, residence with the respondent’s sister is not available unless and until she is successful in securing public housing. The respondent has made application for public housing, subject to the waiting list already described. In the opinion of the Commissioner, the visitors’ cottages remain the only suitable accommodation for the respondent at this point in his supervision. The respondent has apparently expressed a willingness to reside at those cottages until a suitable alternative can be identified. Community Corrections has also been assisting the respondent with painting activity.
At the resumption of the hearing on 16 May 2018, the Court also received further reports from Dr Sullivan dated 29 April 2018 and 14 May 2018. He notes that the respondent has been largely unmotivated to participate in offence-specific treatment, and that he continues to show limited insight and appreciation of the risk factors associated with his offending. He considers that the respondent should be assessed for the prescription of SSRI medication, as the evidence base suggests that medication reduces sexual preoccupation and enhances well-being. Dr Sullivan considers that the respondent has properly managed substance abuse while subject to supervision, but that his collation of a list of pornography sites was concerning. His focus on forming a relationship also suggests an ongoing sexual interest which has not declined with age.
In Dr Sullivan’s view, the respondent remains at high risk of committing another serious sex offence if not detained in custody or subject to a supervision order. He considered that the risk could be addressed by a supervision order as the respondent has, in the main, been compliant with the terms of the interim supervision order and appears motivated not to offend. The contraventions of the interim supervision order have not been associated with an acutely elevated risk of sexual offending. Without that supervision, however, there would be a significant likelihood that the respondent would be tempted into substance use and that risk factors for offending would rapidly escalate.
Having regard to that body of evidence, and in the circumstances, I find that it would be appropriate to make a final supervision order in relation to the respondent given my satisfaction that he is a serious danger to the community in the relevant sense. Having regard to the risk of reoffending which the respondent presents, and the conclusions drawn in the Supervision Report, I find that it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the respondent is appropriately managed and supervised under a supervision order subject to appropriate conditions, and that it is unnecessary to make a continuing detention order at this point.
Disposition
I make the following orders.
1.Pursuant to s 31 of the Serious Sex Offenders Act (NT) (“the Act”), the respondent is subject to a final supervision order for a period of five years, which order is to be subject to the following requirements:-.
2.Pursuant to s 18 (compulsory requirements) of the Act:
(a)     the respondent must not commit:
(i)a serious sex offence; or
(ii)an offence of a sexual nature;
(b)     the respondent must report to a probation and parole officer as directed by a probation and parole officer;
(c)     the respondent must receive visits and accept communications from a probation and parole officer as directed by a probation and parole officer;
(d)     the respondent must give to a probation and parole officer information about his place of residence and place of employment or education as directed;
(e)     the respondent must not leave, or stay out of, the Territory without the permission of a probation and parole officer; and
(f) the respondent must comply with any directions that a probation and parole officer gives him (pursuant to s 20 of the Act), as part of this supervision order.
3.Pursuant to s 18(2) of the Act, there are no matters about which a probation and parole officer cannot give directions to the respondent pursuant to section 20 of the Act.
4.Pursuant to s 19 (optional requirements) of the Act:
(a)     the respondent must reside and remain at a location specified by a probation and parole officer and not leave the premises at any time of the day or night without first obtaining permission from a probation and parole officer, except in the case of a personal medical emergency;
(b)     the respondent must not purchase, possess or consume alcohol or remain in the presence of any person consuming alcohol and must submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of alcohol;
(c)     the respondent must not purchase, possess or consume any dangerous drug or remain in the presence of any person consuming a dangerous drug and must submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of any such dangerous drug;
(d)     the respondent must have attached and wear any monitoring device as directed by a probation and parole officer;
(e)     the respondent must allow the placing and installation of anything necessary for the effective operation of any monitoring device he is required to wear;
(f)   the respondent must comply with the Rules for Electronic Monitoring (which are to be attached to these orders when authenticated);
(g)     the respondent must comply with any direction given by a probation and parole officer to participate in any specified rehabilitation, care or treatment;
(h)     the respondent must have no contact with children under the age of 18 years, (except in the course of a normal business transaction and/or except in the presence of an adult who has been approved for the purposes of this order by a probation and parole officer);
(i)   the respondent must not possess, purchase, obtain, use or acquire by any means any device with internet capabilities, other than with the written approval and subject to the conditions imposed in such approval by a probation and parole officer;
(j)   the respondent must not possess or view any form of pornography;
(k)     the respondent must permit a probation and parole officer to access his place of residence for the purposes of ensuring compliance with the terms of his supervision order and to search for and seize anything he is not permitted to possess;
(l)   the respondent must not have possession or control of a firearm;
(m)   the respondent must disclose to a probation and parole officer the details of any person who he enters into a relationship with, including the full name of the person;
(n)     the respondent must not permit visitors to attend at his place of residence without the prior approval of a probation and parole officer, or to reside at his place of residence without the prior written approval of a probation and parole officer; and
(o)     the respondent must not, without lawful reason, enter any private premises.

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[1] [2015] NTSC 28.

[2] Attorney-General (NT) v JD [2015] NTSC 28 at [3]-[6].

[3] [2017] NTCA 2.

[4] Serious Sex Offenders Act, s 23.

[5] Serious Sex Offenders Act, s 22.

[6] Serious Sex Offenders Act, s 24.

[7] Serious Sex Offenders Act, s 25.

[8] Serious Sex Offenders Act, s 27.

[9] Serious Sex Offenders Act, s 88.

[10]Serious Sex Offenders Act, s 30.

[11] Serious Sex Offenders Act, s 31.

[12] Serious Sex Offenders Act, s 65.

[13] Serious Sex Offenders Act, s 17.

[14] Serious Sex Offenders Act, s 38.

[15] Serious Sex Offenders Act, Part 7.

[16] Serious Sex Offenders Act, ss 9, 14.

[17] Serious Sex Offenders Act, ss 9, 14.

[18]Serious Sex Offenders Act, s 14.

[19]Serious Sex Offenders Act, s 36.

[20] Serious Sex Offenders Act, s 58. In circumstances where the contravention is of an interim supervision order, the Court must revoke the interim supervision order and impose an interim continuing detention order.

[21] Serious Sex Offenders Act, s 58.

[22] Serious Sex Offenders Act, s 27.