Attorney-General (NT) v PA - [2022] NTSC 32

CITATION:Attorney-General (NT) v PA [2022] NTSC 32
PARTIES:ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

v
PA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:1 of 2021 (22129619)
DELIVERED:  21 April 2022
HEARING DATE:  15 March 2022
JUDGMENT OF:  Brownhill J
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 be met by making a supervision order subject to appropriate conditions – Supervision order made.
Attorney-General (NT) v Harrison [2018] NTSC 33, Attorney-General (NT) v JD [2015] NTSC 28, Briginshaw v Briginshaw (1938) 60 CLR 336, Director of Public Prosecutions (WA) v GTR (2008) 38 WAR 307, EE v Attorney-General (NT) [2017] NTCA 2, JD v Attorney-General (NT) [2020] NTCA 11, considered.
Correctional Services Act 2014 (NT)
Serious Sex Offenders Act (NT) ss 3, 4, 6, 8, 9, 13, 14, 18, 19, 20, 22, 23, 25, 27, 31, 38, 44, 63, 65, 77, 79, 82, 83, 84, 85, 86, 88, 89, sch 1.

REPRESENTATION:
Counsel:
Applicant:T Anderson
Respondent:  J Stirk
Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent:  Povey Stirk
Judgment category classification:    B
Judgment ID Number:  Bro2203
Number of pages:  35

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Attorney-General (NT) v PA [2022] NTSC 32

No. 1 of 2021 (22129619)
BETWEEN:

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Applicant

AND:

PA
Respondent

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 21 April 2022)

The applicant applied 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 was made on the basis that the Respondent presents a serious danger to the community.
The respondent is now 36 years old. Between January 2000 and February 2018, he was convicted or found guilty of ninety five offences, primarily involving aggravated assault, sexual intercourse without consent, indecent assault, stealing, burglary, unlawful entry, property damage, driving and motor vehicle offences, weapons offences and breaches of conditions of bail and supervised sentences.
The respondent was first convicted of sexual offending on 13 February 2002, committed on 28 October 2001, when he was 16 years old. The incident occurred in Western Australia. The only known information about the circumstances of the offending is that the respondent asked the victim for sex and touched her buttocks.[1] He was sentenced to an intensive youth supervision order.
The respondent’s second conviction for a sexual offence was recorded on 15 January 2003 for offending which occurred on 16 April 2002. He was about to turn 17 years old at the time of that offending. The circumstances of that offending were that the respondent attended the victim’s home at the nurses quarters in Warburton community in Western Australia. It was night time, he rang the call bell and the victim came out of the house to investigate. There was a tall fence between them. The respondent stepped into her view and they briefly spoke. He then removed his erect penis from his pants and began to stroke it. He said his penis hurt and he wanted her to come out the gate and look at it. He continued to stroke his penis while the victim told him to come back in the morning and see a male nurse. He repeated his request, still stroking his penis. He then walked away. The respondent was convicted of committing an indecent act in public. He was sentenced to imprisonment for three months.
The respondent’s third conviction for a sexual offence was recorded on 28 March 2012 for offending which occurred on 9 October 2010. He was then 25 years old. The circumstances of that offending were that the respondent and the victim were not known to each other. He had consumed alcohol and drugs. He went to her house at 2.30am and opened her gate, entering her front yard. She heard the sound and went to the front door, where she saw the gate open. She walked outside to close the gate and then saw the respondent standing near the garden tap in her front yard. He asked her if he could have a drink from her garden hose and she agreed. She went inside to get a padlock to put on her gate. When she thought the respondent had left, she went outside and padlocked the gate. She then saw him standing inside the yard. He again asked if he could drink from the hose and she said he could. He then asked for a cup to drink the water from. She went inside to get a cup and he followed her. She told him he need not come inside, but he pushed in behind her as she went in, unsuccessfully trying to lock the screen door behind her. The respondent waited in the lounge area. The victim offered him a glass of water. The respondent was holding a pair of scissors, which the victim initially thought was a knife. She grabbed his arm, which was holding the weapon, to try and lead him out of the house. She asked him to leave and tried to disarm him. He overpowered her and forced her into her bedroom, closed the bedroom door, turned off the light and television, and pushed her onto the bed. He held her on the bed and told her not to struggle or he would hurt her. He held the scissors in his hand above his head, pointing the blades at the victim. He repeatedly made threats with the scissors, which she still believed was a knife. He took off his clothing, made her touch his penis, pushed her onto her back and tried to force his erect penis into her vagina, only penetrating a ‘small amount’. He again tried to do so, with the same result. He then got up, dressed, took the bedding and told her not to tell anyone. He was convicted of aggravated unlawful entry, stealing and sexual intercourse without consent. He was sentenced to a total of 10 years imprisonment, with a non-parole period of seven years. The sentence was backdated to commence on 31 December 2010.
On 11 May 2012, the respondent was sentenced, for unlawfully causing serious harm to his then domestic partner, to imprisonment for two years, which was to be served concurrently as to one year with the sentence imposed earlier in 2012 for the sexual offending as described in par [5] above. The new total effective period of imprisonment was 11 years, commencing on 31 December 2010, with a non-parole period of seven years.
The respondent also has convictions for aggravated assault on females committed on 23 February 2008, 30 November 2008, 22 December 2009, 30 April 2010, 14 November 2010 and 30 November 2010, and a conviction for aggravated assault committed on 13 January 2018 whilst in custody.
At the time this application was made under the SSO Act, the respondent was serving the sentence in respect of the third episode of sexual offending committed in 2010, as effectively extended in 2012. His sentence expired on 30 December 2021.

The history of the proceedings

The application was filed on 1 October 2021. A preliminary hearing was conducted on 3 November 2021, 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. Pursuant to s 25(2)(b) of the SSO Act, the Court made a medical assessment order within s 79 of the SSO Act, which authorised two psychiatrists to examine the respondent and prepare reports about him.
Because the respondent’s sentence was to expire prior to the hearing of the application, the Court made an interim continuing detention order within s 8(2)(b) of the SSO Act. On 10 February 2022, by consent, the Court made an interim supervision order within s 13(2)(b) of the SSO Act, providing for the respondent’s release from custody on 14 February 2022.
The application was heard on 15 March 2022. During that hearing the Court received into evidence the following:
(a)pursuant to s 82 of the SSO Act, reports:
(i) dated 8 January 2022 from Dr Danny Sullivan, a Consultant Forensic Psychiatrist; and
(ii) dated 7 January 2022 from Dr Andrew Aboud, a Consultant Forensic Psychiatrist;
(b)pursuant to s 89 of the SSO Act, a supervision report prepared pursuant to s 88 of the SSO Act dated 4 February 2022 from the Acting Commissioner for Correctional Services and a memorandum from a probation and parole officer to Louise Ogden, the General Manager of Community Corrections within Northern Territory Correctional Services, regarding the respondent’s management since his release on the interim supervision order on 14 February 2022;
(c)an affidavit made by the respondent as to his belief that he is not a serious danger to the community and his wish to return to Warburton in Western Australia to live with his extended family; and
(d)pursuant to s 85 of the SSO Act, a victim submission from the victim of the offending described in par [5], prepared pursuant to s 84 of the SSO Act. Pursuant to s 86 of the SSO Act, I disclosed the substance of the victim submission to the respondent and his counsel by stating that substance in court. I was satisfied that doing so could not reasonably be expected to lead to the identification of the victim. I will give that submission the weight I consider appropriate on the basis that its substance was so disclosed and no submission was made about its content by the respondent’s counsel.
Both Dr Sullivan and Dr Aboud gave oral evidence. In examination-in-chief, they adopted their reports, and they were cross-examined by the respondent’s counsel. Ms Ogden was also cross-examined. The respondent gave brief oral evidence and was cross-examined by counsel for the applicant.
At the close of the hearing on 15 March 2022, I continued the interim supervision order pending my determination of the matter.

The scheme of the legislation

It has been observed[2] that the SSO Act seeks to remedy a concern that there is an unacceptable risk prisoners who have committed very serious sex offences will commit another serious sex offence when they return to the community upon their release, and that the SSO Act represents an important shift in the administration of justice because it impacts 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 SSO Act permits this Court, in the exercise of its civil jurisdiction, to make an order for continued detention or supervision beyond the expiration of the sentence imposed in relation to a criminal offence, even though no further offence has been committed, albeit in very limited circumstances.[3]
The primary object of the SSO Act is to enhance the protection and safety of victims of serious sex offences and the community generally by allowing for the control, through continued detention or supervised release, of offenders who have committed serious sex offences and pose a serious danger to the community (s 3(1)). The secondary object of the SSO Act is to provide for the continuing rehabilitation, care and treatment of those offenders (s 3(2)).
The term ‘serious sex offence’ is defined to mean any of the offences listed in Schedule 1 of the SSO Act, an offence which substantially corresponds to such an offence, or an attempt, conspiracy or incitement to commit such an offence (s 4). The offences listed in Schedule 1 include sexual intercourse without consent, aggravated indecent assault, sexual offences against children under the age of 16 years, and a range of less common offences with a sexual element.
The SSO Act provides that a person is a ‘serious danger to the community’ if there is an unacceptable risk that a person will commit a serious sex offence unless they are in custody or subject to a supervision order (s 6(1)).
The essential operation of the SSO Act has been described elsewhere[4] and need not be repeated here.

Qualifying offender

As set out in paragraph [5] above, the respondent was convicted of, and sentenced for, three offences, one of which was sexual intercourse without consent, which comprises a ‘serious sex offence’ (s 4, Sch 1). The first limb of s 22(1) is therefore satisfied.
The total term of imprisonment for that offending was, by the sentence delivered in March 2012, 11 years. The sentence commenced on 31 December 2010. It comprised a sentence of six years imprisonment for an offence of unlawful entry, one year imprisonment concurrent with that sentence for an offence of stealing, seven years imprisonment for the serious sex offence, to commence after serving three years on the first sentence, and a concurrent sentence for earlier offending after breach of a suspended sentence. The sentence for the serious sex offence therefore commenced on 31 December 2013. The later sentence for unlawfully causing serious harm, handed down in May 2012, was for two years imprisonment, concurrent as to one year with the March 2012 sentence. The total sentence period therefore ended on 30 December 2021. The effect is that the respondent was, when the application was made, under sentence of imprisonment for the serious sex offence within the first part of the second limb of s 22(1) (i.e. s 22(1)(b)(i)).
It follows that the respondent is a qualifying offender within s 22 of the SSO Act.

Serious danger to the community

The first question for determination is whether the respondent presents a ‘serious danger to the community’ within the meaning 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.
In deciding whether the respondent is a serious danger to the community, the Court must have regard to the likelihood that he or she 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[5] applies to that assessment and the applicant bears the onus (s 27).[6]
To assess whether there is an ‘unacceptable risk’, the Court must undertake a balancing exercise, requiring the Court to have regard, amongst other things, to the nature of the risk (commission of a serious sex offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender on the other, if an order is made.[7] What is being referred to is not any risk that the respondent may commit a further serious sex offence, because some risks can be acceptable consistently with the adequate protection of the community.[8]
Dr Sullivan’s opinions
Dr Sullivan’s report sets out a record of the respondent’s personal history, medical history, psychiatric history, substance abuse history, and psychosexual and offending history. The report refers to a psychological assessment of the respondent prepared in 2011, a neuropsychological assessment prepared in 2012, and an assessment report for the Serious Sex Offenders Referral Committee from May 2021. The latter included assessments under the STATIC-99R and Risk for Sexual Violence Protocol (‘RSVP’) assessment tools. That report stated that the respondent’s risk was considered chronic and he fell into the ‘high risk/needs category for sexual offending’ with a ‘moderate to high risk of future sexual offending involving serious or life-threatening harm’. Dr Sullivan’s report notes that the respondent had been involved in 26 recorded incidents during the current prison sentence, but none in 2021 and only two involving fighting in 2020.
Dr Sullivan’s report notes that the respondent had commenced the Sex Offender Treatment Program (‘SOTP’) in 2014, but was discharged from it after he threatened to stab another prisoner. The respondent had completed the SOTP in 2016. The exit report dated 7 June 2016 opined that the respondent was not responsive to the SOTP content and not fully accepting that he required treatment to address his sexual offending behaviour. He was said to use cognitive distortions and failed to accept responsibility for the offending. The respondent was considered to have made limited progress towards addressing his offending behaviour and had limited interest in treatment, his engagement was superficial and he demonstrated very little genuine intention or planning to modify his lifestyle in the future. Other reports were referred to in Dr Sullivan’s report, including one noting the respondent’s participation in the Family Violence Program.
Dr Sullivan’s report opines that the respondent accepted wrongdoing, but his account of the offences was minimising and his plans for the future were uncertain and lacking in detail.
Dr Sullivan’s report then makes the following observations or opinions. The respondent has tenuous associations with extended family and does not appear to have a functional community support network or established and current links with communities. There is no evidence of significant mental illness in the past or in recent years and no evidence of overt mood disorder, significant anxiety, psychotic symptoms or bipolar disorder. Cognitive assessments demonstrate some mild impairment but there is no overt evidence of a significant acquired brain injury, despite some risk factors for this, and there is no suggestion of gross cognitive problems. He satisfies a diagnosis of severe substance use disorder involving alcohol and cannabis, abstinent whilst in a controlled environment. There is no overt indication of paraphilia or sexual deviance. Previous sexual offending appears associated with substance use, and offending has occurred while he was engaged in acquisitive offending to obtain funds for substance use. There is a history of violent offending against women whilst intoxicated, which he minimises as to sexual motivation, intoxication and harm caused. The respondent satisfies a diagnosis of antisocial personality disorder. His participation in offence-specific programs has been limited so he does not have a significant or sophisticated understanding of his offending which would assist him to prevent recurrence, and has not engaged in development of strategies to reduce the likelihood of further offending. There is a significant link of offending with intoxication which is associated with sexual arousal. The sexual offending has been associated with a degree of confrontation and threat, and he has taken measures to avoid detection. His insight into the offending appears limited. He has continued to offend despite criminal sanctions and has a history of breaching court imposed conditions.
Dr Sullivan undertook risk assessment of sexual reoffending by structured professional judgement which involves formal and structured assessment combining static and dynamic predictor variables, with the resultant risk categorisation modified by clinical judgement incorporating individual and counterfactual factors.
Dr Sullivan’s report opines that the respondent:
(a)demonstrates significant reoffending risk factors on a model of prediction based on the risk factors of unrealistic long-term goals, poorly developed release plans and poor coping skills;
(b)scores in the high risk category of reoffending risk assessed on the STATIC-99 instrument, indicating he is far more likely than the average man convicted of a sexual offence to be convicted of a further sexual offence over the long term; and
(c)has a significant range of past risk factors in all domains under the RSVP model of assessment.

Dr Sullivan’s report ultimately opines that the respondent is at high risk of committing another serious sex offence if not detained in custody or subject to a supervision order. According to Dr Sullivan, scenario planning suggests that, were it to occur, future offending might involve an opportunistic attempt to engage in penetrative intercourse on an adult female stranger in their home, while intoxicated with alcohol or cannabis, and using weapons, physical force or the threat of violence to control the victim.
Dr Aboud’s opinions
Dr Aboud’s report sets out a record of the respondent’s criminal history, institutional conduct, participation in sexual offender treatment programs, neuropsychological assessments and the respondent’s account of his circumstances, including his personal history, alcohol and substance use history, and offending.
Dr Aboud’s report makes the following observations or opinions. The respondent has the following psychiatric conditions: antisocial personality disorder, some features of psychopathy, and polysubstance dependence (currently abstinent in a protected environment). These serve as the underpinnings of his offending drive. There is no robust evidence for a diagnosis of paraphilia (noting the respondent’s apparent lack of full disclosure which might prevent such diagnosis), and no evidence for a diagnosis of mental retardation or mental illness.
Dr Aboud’s report opines that the respondent:
(a)scores in the well above average (formerly known as ‘high’) risk category of reoffending risk assessed on the STATIC-99R instrument;
(b)places in the ‘very high risk of reoffending’ category of the Risk Matrix 2000/S instrument and the Risk Matrix 2000/V instrument;
(c)has a noteworthy score, although below the cut-off point for diagnosing psychopathy, in the Psychopathy Checklist (PCL-R);
(d)places in the moderate-high risk category in the HCR-20 instrument, with a relatively high score in the risk management items, suggesting significant pre-release planning and engagement, close support and supervision and enforced lifestyle structure would be required if released; and
(e)has a relatively high number of relevant risk factors under the RSVP model of assessment.
Dr Aboud’s report notes the respondent’s preference ‘to deny rather than admit’ and that the respondent withheld information from Dr Aboud ‘whenever he felt he was able to’.
Ultimately, Dr Aboud’s report opines that the respondent poses a high risk of committing a serious sex offence if released to the community without a supervision order. Dr Aboud’s formulation of risk and scenarios of reoffending were similar to Dr Sullivan’s.
Nothing said by either Dr Sullivan or Dr Aboud in cross-examination reduced the weight or force of their opinions, or gave rise to any doubts about their methodologies, processes, reasoning or conclusions.
Dr Sullivan’s report acknowledged that prediction of re-offending risk is imprecise, with a significant rate of false positive and false negative results. In cross-examination, Dr Sullivan rejected the proposition that, after 11 years in custody, assessing the respondent’s risk of re-offending was essentially ‘crystal ball gazing’. Dr Sullivan said that risk assessment is necessarily imprecise, and there is an error margin, but overall it has been found to be robust in longitudinal studies assessing recidivism for people previously convicted of sexual offences. He said while it might be described as ‘prognosticating’, it is not ‘crystal ball gazing’.
Of course, as counsel for the respondent submitted, the assessment of the risk that a person who has committed a serious sex offence in the past might commit a serious sex offence in the future is accompanied by a significant level of uncertainty. It is not an exact science. It is an attempt to identify how a person might behave in the future, when human behaviour is influenced by a myriad of variables, which are either internal or external to them, and which are either static or dynamic over time. However, the risk assessment tools and professional judgement of expert forensic psychiatrists are the means prescribed by the legislature to assist the Court in that assessment, and the inherent uncertainties in the process of risk assessment are not a reason for the Court to reject those opinions or reduce their weight.
Victim’s submission
I take into account the substance of the victim’s submission, which was that the effect on her is ongoing, and she does not leave the house at night-time, always locks her doors, cannot sleep and is concerned the respondent may seek her out if released.
Respondent’s evidence
I note the respondent’s evidence that he does not believe he is a serious danger to the community. I give that evidence virtually no weight, because it is a self-serving statement and a conclusion. I also take into account the observations of Dr Sullivan and Dr Aboud that the respondent lacked insight into and had a tendency to minimise or withhold information about his offending behaviour and his motivations for it.
The respondent gave evidence of his wish to return to Warburton in Western Australia to live with his extended family. In determining what is an acceptable risk, the Court must balance the likelihood and magnitude of the risk of the respondent committing a further serious sex offence against the serious consequences for the respondent of being subject to a continuing detention or supervision order. Those consequences include that the respondent would effectively be precluded, for the duration of any order, from living where he wishes and where he has access to support from his extended family. Both Drs Sullivan and Aboud were of the view that, without the extensive interventions and supports referred to below, the respondent was at high risk of committing another serious sex offence, and with those interventions and supports, the respondent’s risk was significantly less. In the absence of a continuing detention or supervision order, the protective effects of such interventions and supports would not be provided to the respondent in Western Australia and I consider it highly unlikely that he would independently seek out, obtain and avail himself of them. While family support is a generally recognised protective factor, there was no evidence before the Court as to the specifics, suitability or likely effectiveness of any such support available to the respondent to address the risk of reoffending. There was evidence before the Court, primarily from Ms Ogden, that the respondent’s management under a supervision order could include, in time, supervised visits to his family in Warburton. That could occur after the respondent has demonstrated, over a significant period of time, compliance with the requirements and conditions of a supervision order. That potential does go some way to addressing this serious consequence to the respondent resulting from the Court’s assessment of risk.
Counsel for the respondent submitted that a final continuing detention order operates indefinitely (ss 8(2)(a), 10(2)) and a final supervision order has a minimum duration of five years (ss 13(2)(a), 16(3)(b)). Again, the duration of such orders is an aspect of the serious consequences for the respondent which the Court must consider. Final supervision orders may be extended (s 38) and amended (s 44) and final detention orders must be reviewed within at least two years from their making (s 65). Both kinds of orders may be revoked if the Court is satisfied that the grounds for making the order no longer exist (s 77). Counsel for the respondent argued that the risk assessment of the respondent is highly unlikely to change, making the possibility of variation or revocation highly unlikely, given the heavy weighting on static factors in the risk assessment process. In cross-examination, Dr Sullivan emphasised the dynamic factors taken into account in the assessment process and the structured professional judgement involved, which would take into account the interventions and supports which the respondent had accessed in the intervening period, and the respondent’s behaviour in custody or in the community under an order. On the basis of that evidence, I consider that there is scope for a variation or revocation of any order in the future, with the prospects dependent upon the respondent’s access to and utilisation of interventions and supports, and his behaviour under and compliance with the terms of any order made.
Conclusion
Having regard to the opinions of Dr Sullivan and Dr Aboud, and taking into account the considerable adverse impacts of the serious sex offences committed, and at risk of being committed, by the respondent on the victims and the community and the need to protect people from those impacts, as well as the serious consequences for the respondent, I find that the respondent does present a serious danger to the community. This is 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.

Continuing detention order or supervision order

On the hearing of an application, the Court may make a final continuing detention order or final supervision order if satisfied that the qualifying offender is a serious danger to the community (s 31). The applicant has the onus of satisfying the Court that it is appropriate to make a final continuing detention order or final supervision order.
In deciding whether to make a continuing detention order, the Court must have regard to the paramount consideration (i.e. the need to protect victims and members of the community), and to the secondary consideration (i.e. rehabilitation, care and treatment for the respondent) (s 9). 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 (s 9).
It necessarily follows 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.[9] In deciding whether to make a supervision order, the Court must have regard to the same paramount and secondary considerations (s 14). In doing so, the Court must have regard to the likelihood of the respondent committing another serious sex offence, whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the respondent is appropriately managed and supervised in the community and whether adequate protection could only reasonably be provided by making a continuing detention order (s 14).
Section 18 sets out a list of ‘compulsory requirements’ which the Court must include in any supervision order, but the Court is expressly empowered to include any other requirements the Court considers appropriate, which are described as ‘optional requirements’ (s 19).
Dr Sullivan’s opinions
Dr Sullivan’s report opines that the respondent’s risk could be managed sufficiently in the community with an appropriate level of support, supervision and monitoring, with conditions as to residence, location monitoring and monitoring for substance use. Dr Sullivan’s report opines that the respondent is capable of complying with these conditions and could be managed on a supervision order.
In particular, Dr Sullivan’s report opines that the respondent requires the following interventions and social supports to assist him to manage his risk of further sexual offending: (a) stable accommodation; (b) engagement in prosocial activity, which will require skill development and the capacity to engage in and sustain meaningful occupation such as employment; (c) collaborative planning with Community Corrections and offender treatment services to develop concrete strategies to reduce the likelihood of reoffending, including offence-specific psychological intervention; (d) ongoing drug and alcohol counselling, abstinence conditions and testing; (e) development of self-monitoring and skills to deploy when his mental state is negative, and possibly psychological intervention and/or medications to reduce negative emotions; and (f) specific interventions should the respondent enter an intimate relationship.
Dr Aboud’s opinions
Dr Aboud’s report opines that, if released on a supervision order, the respondent’s risk of committing a serious sex offence would be reduced from high to moderate. This would require a robust external structure of risk management, including monitoring for abstinence from alcohol and drugs, disclosure of associations with females, close co-operation with community corrections staff, long term psychological therapy directed to addressing various matters, ongoing motivational employment and accommodation in an easily monitored residence with a curfew, at least initially.
Supervision report
The supervision report records the respondent’s history whilst serving his current term of imprisonment, including his security classification history (‘low restricted’ since August 2020), treatment program history, and reportable incident history. It notes that there are 25 reportable incidents, of which 23 were breaches of the prison’s rules, including a number which involved aggressive, violent or dishonest behaviour. The most recent incident involving violence was on 4 November 2020, comprising a physical altercation with other prisoners.
The supervision report states that Correctional Services have prepared a transition plan for the respondent and had begun managing him under it. The purpose of the transition plan is to provide a suitable and structured transition to the community while managing safety and security risks. The transition plan has four stages, being ‘support to obtain internal employment’, ‘identification and recreation’, ‘reconnection’ and ‘day leave’.
The supervision report makes detailed reference to the reports, particularly the management recommendations of Drs Sullivan and Aboud. It states that Correctional Services will arrange for offence-specific treatment for the respondent to address the intervention targets identified by Drs Sullivan and Aboud, and that access to such specialised treatment can be made available in the Alice Springs area. In particular, a psychologist based in Alice Springs is able to provide offence-specific treatment to the respondent, which they said was to be in conjunction with a psychiatrist who could provide medication management. The respondent is not prepared to take medication so the psychological treatment options were being further explored.
The supervision report states that supervision and reporting requirements were discussed with the respondent and he is willing to engage with Community Corrections under supervision and reporting requirements. He indicated he understood the consequences of failing to comply with such requirements. The report notes the respondent’s prior poor history of compliance with court imposed conditions. It notes that Community Corrections can provide compliance officers to assist and escort the respondent in the community (such as attending appointments and tasks such as grocery shopping), but they would not have any power to restrain him and would respond to non-compliant behaviour by calling police.
The report notes the respondent’s ongoing wish to return to Warburton in Western Australia and his lack of prosocial supports in the Northern Territory, and expresses concerns the respondent may try to return to Western Australia at the earliest opportunity.
The supervision report states that a case plan has been developed with the respondent which identifies the respondent’s goals of employment, accommodation and treatment, and identifies interventions, strategies and supports to address the respondent’s criminogenic risks. The report states the respondent demonstrated a good level of understanding and motivation to achieve his goals. The case plan includes an example supervision schedule (attached to the report) which indicates a possible structured week of activities for the respondent once his routine stabilises. On a weekly basis, Community Corrections could work with the respondent to create and update such schedules.
The supervision report states that the respondent is willing to comply with any alcohol or drug abstinence conditions and testing conditions. He also indicated a willingness to participate in alcohol and drug counselling if directed to do so.
The supervision report refers to the respondent’s relationships with family or other persons who might support him in the community. Family members in Warburton were contacted, who supported a return to Warburton and identified some family located near Alice Springs who could provide support, but the report states the latter are not likely to be prosocial supports.
The supervision report considers various options for accommodation for the respondent in Alice Springs, which are either effectively unavailable or likely to be unavailable for some time. The report opines that there is a high likelihood of the respondent coming into contact with antisocial associates in Alice Springs and refers to the risk he may seek to return to Warburton.
The supervision report states that Correctional Services has been unable to identify suitable private or public accommodation within the community to which the respondent could be released on supervision. However, the respondent has been identified as suitable to reside at a purpose developed demountable within the Alice Springs Correctional Centre precinct. The respondent is agreeable to residing there and to complying with the conditions of residence. The report opines that that accommodation is the only viable accommodation option at present and that if the respondent is accommodated there, Correctional Services can appropriately implement and manage the required conditions of supervision to address the respondent’s high risk of re-offending.
The supervision report states that Correctional Services can support the respondent to engage with community-based employment and job seeking services.
The supervision report states that electronic monitoring would enhance the ability of staff to monitor and manage movement conditions and curfew conditions, and thereby reduce the respondent’s risk of re-offending. The respondent is willing to comply with the rules of electronic monitoring. He has also been given the opportunity to try out a device and demonstrated an understanding and ability to charge the device.
The supervision report concludes that it would be reasonably practicable for the Director of Correctional Services to ensure that the respondent was appropriately managed and supervised as required by s 63 of the SSO Act.
On 14 February 2022, the respondent was released from custody on the interim supervision order. The interim supervision order sets out numerous conditions relating to his management. He has been residing at the demountable accommodation referred to in the supervision report. The evidence before the Court shows that he has completed 30 hours of work under a community work order to pay outstanding fines, engaged weekly with staff from an Aboriginal integrated support program, commenced weekly appointments with a psychologist, done weekly shopping trips, met with a social worker from an alcohol and drug rehabilitation service with a view to obtaining counselling, had four negative tests for drugs and alcohol, participated with his probation and parole officer in case planning, been subject to electronic monitoring, been supported to set up a bank account and Centrelink payments, and undertaken various reintegration activities. The evidence indicates there have been no issues regarding the respondent’s compliance with the conditions of the interim supervision order.
The respondent gave oral evidence to the effect that he felt that the assistance and supports he had been provided by Community Corrections were helping him to stay out of trouble and he agreed that it would be good to continue doing those things (such as seeing the psychologist, having alcohol and drug counselling, and working on the community work crew) before he returns to Warburton.

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, with conditions for supervision and management consistent with those recommended in the supervision report and contained in the interim supervision order, 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 properly 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.
In that circumstance, the parties were effectively agreed as to the terms of the continuing supervision order. A draft order was provided to the Court, which largely replicates the terms of the interim supervision order, but adds conditions so as to comply with the requirements of s 18 of the SSO Act. The only point of contention between the parties related to one aspect of the draft final supervision order.
Paragraph 3 of the draft order provides that, pursuant to s 18(2) of the SSO Act, there are no matters about which a probation and parole officer cannot give directions to the respondent pursuant to s 20 of the SSO Act. Counsel for the respondent sought the inclusion of an exception to the effect that a probation and parole officer cannot give directions to the respondent compelling him to take medications. Dr Sullivan’s report makes some suggestions as to medications that might assist the respondent, but the respondent is opposed to taking any such medications. Presumably, given there is a proposed condition that the respondent must comply with any direction given by a probation and parole officer to participate in any specified rehabilitation, care or treatment, there was a concern that a probation and parole officer might direct the respondent to take certain medications.
The right of a competent adult patient to consent to treatment, together with the associated right to refuse medical treatment, is recognised and protected by the common law, including, for example, the law of trespass to the person. That right may be supplemented or diminished by statute. There is no express power in the SSO Act or the Correctional Services Act 2014 enabling Community Corrections to compel a person to take medication. The existence of an implied power to do so in either statute is highly unlikely, but I need not consider the question of power any further, for the additional reasons referred to below.
Whether or not a person has access to prescription medication is a matter for their health professional in the exercise of their professional relationship with their patient. A direction of the kind under consideration would purport to compel the respondent to obtain the medication and that is not something within the respondent’s power.
I was informed by the solicitor for the applicant that it is the position of Community Corrections that a probation and parole officer does not have the power to give a direction to a person under their supervision and management to take medication.
In my view, there is no prospect of a probation and parole officer making any such direction in relation to the respondent. That makes the respondent’s counsel’s apparent concerns about paragraph 3 of the draft final supervision order unfounded and the proposed change to that paragraph unnecessary.

Disposition

A final supervision order is made in the following terms.
1.Pursuant to s 31 of the Serious Sex Offenders Act (NT) (“the Act”), the respondent is subject to a final supervision order from the date of this decision 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 by a probation and parole officer.
(e)     The respondent must not leave, or stay out of, the Territory without the permission of a probation and parole officer.
(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 s 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 dangerous drug.
(d)     The respondent must not remain in the company of any person or persons who are at the time under the influence of an intoxicating substance.
(e)     The respondent must have attached and wear any monitoring device as directed by a probation and parole officer.
(f)   The respondent must allow the placing and installation of anything necessary for the effective operation of any monitoring device he is required to wear.
(g)     The respondent must comply with the Rules for Electronic Monitoring.
(h)     The respondent must comply with any direction given by a probation and parole officer to participate in any specified rehabilitation, care or treatment.
(i)   The respondent must permit a probation and parole officer to access his place of residence at all times for the purposes of ensuring compliance with the terms of this supervision order and to search for and seize any electronic item or any other thing he is not permitted to possess.
(j)   The respondent must not have possession or control of a firearm or a controlled weapon within the meaning of the Weapons Control Act 2001 (NT).
(k)     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.
(l)   The respondent, while residing at the Alice Springs Correctional Centre Precinct, must not permit visitors to attend or reside at his place of residence without the prior approval of a probation and parole officer.
(m)   The respondent must not, without lawful reason, enter any private premises.
(n)     The respondent must not contact or approach the victim.

-------------------------------------

[1] See Sex Offender Treatment Program Exit Report dated 7 June 2016, which is Annexure LNH-6 to the Affidavit of Long Nam Ha made on 1 October 2021 (‘Ha Affidavit’).

[2] Attorney-General (NT) v JD [2015] NTSC 28 at [3] per Mildren AJ, cited in Attorney-General (NT) v Harrison [2018] NTSC 33 at [7] per Grant CJ.

[3] Ibid.

[4]See EE v Attorney-General (NT) [2017] NTCA 2, which description was summarised in Attorney-General (NT) v Harrison [2018] NTSC 33 at [8]-[14] per Grant CJ.

[5] Briginshaw v Briginshaw (1938) 60 CLR 336.

[6] Attorney-General (NT) v Harrison [2018] NTSC 33 at [38] per Grant CJ.

[7]JD v Attorney-General (NT) [2020] NTCA 11 at [60], citing Director of Public Prosecutions (WA) v GTR (2008) 38 WAR 307 at [27].

[8] Ibid at [61].

[9] Attorney-General (NT) v Harrison [2018] NTSC 33 at [49] per Grant CJ.