Cornwall v Attorney General for New South Wales

[2007] NSWCA 374

New South Wales

Court of Appeal

CITATION:	Cornwall v. Attorney General for New South Wales [2007] NSWCA 374
HEARING DATE(S):	13 December 2007
JUDGMENT DATE:	19 December 2007
JUDGMENT OF:	Mason P at 1; Giles JA at 1; Hodgson JA at 1
DECISION:	1. Appeal allowed with costs. 2. Set aside the orders made by the Court on 27 September 2007 and in lieu thereof, order: That pursuant to s.17(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 the appellant be directed, for a period of 5 years from the date of this order, to comply with the following orders, oversight of which is to be administered by an appointed representative of the Department of Corrective Services (the Department) in consultation with an appointed representative of the Community Forensic Mental Health Service (CFMHS): (for conditions see par.[39] of judgment).
CATCHWORDS:	CRIMINAL LAW - Serious sex offender - Application for continuing detention order - Requirements of s.17(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) - Requirement that the Court be satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order - Onus of proof.
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Law Enforcement & Other Legislation Amendment Act 2007
CASES CITED:	Attorney-General for the State of New South Wales v. Winters [2007] NSWSC 1071 Tillman v. Attorney-General for the State of New South Wales [2007] NSWCA 327 TSL v. Secretary to the Department of Justice (2006) 14 VR 109 Veen v. The Queen (1979) 143 CLR 458 Veen v. The Queen (No.2) (1988) 164 CLR 465
PARTIES:	Raymond Barry Cornwall - appellant The Attorney General for New South Wales - respondent
FILE NUMBER(S):	CA 40729/07
COUNSEL:	Mr. Andrew Haesler SC with Ms. D. Yehia for appellant Mr. L. Babb SC with Ms. A. Mitchelmore for respondent
SOLICITORS:	Legal Aid Commission, Sydney for appellant I.V. Knight, Crown Solicitor for respondent
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC13126/07
LOWER COURT JUDICIAL OFFICER:	Hall J
LOWER COURT DATE OF DECISION:	28 September 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 1082

CA 40729/07
SC 13126/07

MASON P
GILES JA
HODGSON JA

Wednesday 19 December 2007

CORNWALL V. ATTORNEY-GENERAL OF NEW SOUTH WALES

Judgment

1 THE COURT: On 27 September 2007, Hall J made the following orders:

1 Pursuant to s.17(1) of the Crimes (Serious Sex Offenders) Act 2006, Raymond Barry Cornwall is to be detained in a correctional centre for a period of eight months from the date of this order (27 September 2007).
2 Pursuant to s.20(1) of that Act, I issue a warrant for the committal of Raymond Barry Cornwall to a correctional centre for the duration of the continuing detention order referred to in order [1] above.


The appellant appeals from those orders.

STATUTORY PROVISIONS

2 The appeal raises questions concerning the interpretation and application of the Crimes (Serious Sex Offenders) Act 2006 (the Act). Relevant sections are s.3, the definition of “sex offender and offender” in s.4, s.5, ss.10-14, ss.17-20, and ss.21-22.

3 Prior to an amendment made on the day of the hearing of the appeal, the relevant parts of those sections were as follows:

3 Objects of Act
The objects of this Act are to provide for the extended supervision and continuing detention of serious sex offenders so as:
(a) to ensure the safety and protection of the community, and
(b) to facilitate the rehabilitation of serious sex offenders.

sex offender and offender mean a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child.

5 Definitions of “serious sex offence” and “offence of a sexual nature”
(1) For the purposes of this Act, a serious sex offence means any of the following offences:
(a) an offence under Division 10 of Part 3 of the Crimes Act 1900 , where:
(i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and
(ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

…
10 Term of extended supervision order
(1) An extended supervision order:
(a) commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later, and
(b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.
(2) An offender’s obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law, but that suspension does not affect the expiry date of the order.
(3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.

11 Conditions that may be imposed on supervision order
An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender:
(a) to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or
(b) to make periodic reports to a corrective services officer, or
(c) to notify a corrective services officer of any change in his or her address, or
(d) to participate in treatment and rehabilitation programs, or
(e) to wear electronic monitoring equipment, or
(f) not to reside in or resort to specified locations or classes of locations, or
(g) not to associate or make contact with specified persons or classes of persons, or
(h) not to engage in specified conduct or classes of conduct, or
(i) not to engage in specified employment or classes of employment, or
(j) not to change his or her name.

12 Breach of supervision order
A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence.

13 Supervision order may be varied or revoked
(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the Attorney General or the offender.
(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

14 Application for continuing detention order
(1) The Attorney General may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre:
(a) while serving a sentence of imprisonment by way of full-time detention:
(i) for a serious sex offence, or
(ii) for an offence of a sexual nature, or

(b) pursuant to an existing continuing detention order,
referred to in this Part as his or her current custody .
(2) An application may not be made until the last 6 months of the offender’s current custody.
(3) An application must be supported by documentation:
(a) that addresses each of the matters referred to in section 17 (4), and
(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.
(4) An application may indicate the kinds of conditions that the Attorney General would consider appropriate for inclusion under section 11 in the event that an extended supervision order is made.

…
17 Determination of application for continuing detention order
(1) The Supreme Court may determine an application for a continuing detention order:
(a) by making an extended supervision order, or
(b) by making a continuing detention order, or
(c) by dismissing the application.
(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.
(3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.
(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:
(a) the safety of the community,
(b) the reports received from the psychiatrists appointed under section 15 (4) to conduct psychiatric examinations of the offender, and the level of the offender’s participation in any such examination,
(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,
(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence,
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,
(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,
(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 ,
(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,
(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.
(5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9.

18 Term of continuing detention order
(1) A continuing detention order:
(a) commences when it is made, or when the offender’s current custody expires, whichever is the later, and
(b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.
(2) An offender’s custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order.
(3) Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender.

19 Detention order may be varied or revoked
(1) The Supreme Court may at any time vary or revoke a continuing detention order or interim detention order on the application of the Attorney General or the offender.
(2) For the purpose of ascertaining whether to make such an application in relation to a continuing detention order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

20 Warrant of committal
(1) As soon as practicable after making a continuing detention order or interim detention order against an offender, the Supreme Court must issue a warrant for the committal of the offender to a correctional centre for the period specified in the order.
(2) A warrant under this section is sufficient authority:
(a) for any police officer to convey the offender to the correctional centre identified in the warrant, and
(b) for the governor of the correctional centre to keep the offender in his or her custody in accordance with the terms of the warrant.

21 Nature of proceedings
Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.

22 Right of appeal
(1) An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order or continuing detention order.
(2) An appeal may be on a question of law, a question of fact or a question of mixed law and fact.
(3) An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow.
(4) The making of an appeal does not stay the operation of an extended supervision order or continuing detention order.
(5) This section does not limit any right of appeal that may exist apart from this Act.

4 The Law Enforcement and Other Legislation Amendment Act 2007, passed on 13 December 2007 and (we are informed) to commence on 21 December 2007, made amendments which would not, in any event, affect the result of this appeal.

CIRCUMSTANCES

5 The criminal history of the appellant is summarised as follows in pars.[10]-[16] of the judgment of the primary judge [2007] NSWSC 1082:

10 The defendant is presently aged 52 years (date of birth, 13 May 1955). He has a criminal history in relation to sexual and non-sexual offences, and has served a total period of sentence imposed upon him in the District Court of New South Wales on 6 December 1993 of 14 years. The sentences of imprisonment imposed with respect to the seven counts to which the defendant pleaded guilty commenced on 8 July 1993 and were to expire on 7 July 2007.
11 The defendant had one conviction in 1975 when he was 23 years of age for an offence of indecent exposure.
12 The offences for which the defendant was sentenced included:-
• Aggravated sexual assault without consent (x 4) armed
with intent to commit indictable offence.
• Sexual intercourse without consent.
• Stealing.
13 The defendant was, accordingly, sentenced to a total period of 14 years with a non-parole period of 10 years, expiring on 7 July 2003. The defendant served the sentences imposed by way of imprisonment, parole having been refused.
14 The index offences to which he pleaded guilty, involved, in all, seven offences that occurred on five occasions over a period of two years (between June 1991 and July 1993). The offences consisted of sexual attacks on young women and adolescent girls aged between the age of 13 to 23 years.
15 In relation to the last-mentioned offences, the defendant approach unknown victims with a knife and exerted physical force and threatened his victims in order to coerce them to undress and perform various sexual acts. The abovementioned stealing offence related to the taking of a handbag from one of his first victims.
16 A full history of the defendant’s offending was set out in the plaintiff’s written submissions, the accuracy of which was not disputed, and which I reproduce below:-
Serious sex offences

Victim	Date	Offence
1 (24 years old)	13 June 1991	Aggravated sexual assault (s.61J); Stealing (s.496)
2 (14 years old)	20 October 1991	Aggravated sexual assault (s.61J)
3 (14 years old)	20 October 1991	Aggravated sexual assault (s.61J)
4 (15 years old)	26 January 1992	Armed with intent to commit an indictable offence (s.114(1)(a))
5 (13 years old)	3 March 1992	Aggravated sexual assault (s.61J)
6 (18 years old)	1 July 1993	Sexual intercourse without consent (s.61J)

Other offences

Date	Conviction	Sentence details
23 October 1972	Stealing (x 2) Break, enter and steal (x 2) One charge of illegally use motor vehicle	Released on probation for 12 months to be of good behaviour
16 September 1974	PCA	Fined $150, licence disqualified for 12 months
13 January 1975	PCA Drive whilst disqualified Fail to stop	PCA: three months hard labour and licence disqualified for three years; Drive whilst disqualified: three months hard labour and licence disqualified for six months Fail to stop: $100 or 20 days hard labour
16 January 1978	Indecent exposure Drive whilst disqualified	Indecent exposure: fined $75 Drive whilst disqualified: recognisance of $500 on good behaviour for five years, also fined $400 and licence disqualified for five years
14 March 1978	Drive whilst disqualified Fail to stop after accident Drive contrary to notice	Drive whilst disqualified: fined $400 and licence disqualified for six months Other two charges: on each charge, fined $200 (breach of recognisance submitted)
12 January 1979	Drive whilst disqualified	Six months hard labour; all licences disqualified for six months (breach of recognisance submitted)
9 January 1980	Drive whilst disqualified	Six months hard labour, licence disqualified six months (directed no action on recognisance)
23 June 1986	High range PCA	Recognisance $1,000 on good behaviour for three years; also fined $1,000 and licence disqualified for three years

6 On 21 June 2007, the Attorney-General filed a summons seeking interim orders under s.8 or s.16 of the Act, an order for psychiatric examinations of the appellant, and the following orders:

5. An order pursuant to s.17(1)(b) of the Act that the defendant be detained in a correctional centre for 5 years from the date of the order.
6. An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in paragraph 5 above.
7. In the alternative to paragraphs 5 and 6 above, an order pursuant to s.17(1)(a) of the Act that the defendant be subject to extended supervision for a period of 5 years from the date of the order by complying with the following conditions:
a. the defendant reside at an address approved by Probation and Parole, and not change his address without permission of a Probation and Parole officer;
b. the defendant must be at his address between the hours of 9pm and 6am unless his presence at another place during those hours has been approved by Probation and Parole;
c. the defendant must not leave the State of New South Wales without the written permission of Probation and Parole;
d. the defendant must accept home visits, including unannounced visits, by any Probation and Parole officer as directed by that officer;
e. the defendant must report to a Probation and Parole officer as directed by that officer;
f. the defendant must comply with any reasonable direction given by a Probation and Parole officer;
g. the defendant must not associate or make contact with children aged 16 years and under without the presence of a responsible adult approved by the Probation and Parole Service;
h. the defendant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours, and such places as a Probation and Parole officer may direct;

i. the defendant must wear electronic monitoring device(s) as directed by a Probation and Parole officer, and not tamper with or remove the electronic device(s);
j. the defendant must not consume alcohol or illicit drugs or abuse prescription medication;
k. the defendant shall submit to drug and alcohol testing as directed by the Probation and Parole Service;
l. the defendant must not be present at any licensed premises, including but not limited to hotels, bars and race courses;
m. the defendant must not change his name from Raymond Barry Cornwall or Raymond Barry Cornwell;
n. the defendant must not change his appearance without the approval of Probation and Parole, and in the event that the change of appearance is approved, must be photographed;
o. the defendant must participate in treatment and rehabilitation as directed by a Probation and Parole officer; and
p. such other conditions as the Court considers appropriate.
8. In the alternative to paragraphs 5 to 7 above, an order pursuant to s.9(1) of the Act that the defendant be subject to extended supervision for a period of 5 years from the date of the order by complying with the conditions set out in paragraph 7 above.

7 Interim orders were granted, and the application for final orders was heard by the primary judge over seven days in August and September 2007.

DECISION OF THE PRIMARY JUDGE

8 At pars.[18]-[31], [46]-[58] and [63]-[115] of the judgment, the primary judge carefully reviewed evidence, including evidence by Mr. Rendell, senior psychologist, Sex Offenders Program; by Ms. Fahs, co-ordinator of the Special Visitation Group within the Department of Corrective Services; by four psychiatrists; by a psychologist Ms. Howell; and by a relative of the appellant. We adopt this review as an accurate and comprehensive account of this evidence.

9 The primary judge referred to the requirements of s.17(3) at par.[43]:

43 Section 17(3) is a key provision. As Mr Arnott, SC, who appeared on behalf of the plaintiff, with respect, correctly submitted, the burden is on the plaintiff to satisfy the Court “… to a high degree of probability …” that (Plaintiff’s Outline of Submissions, paragraph 37):-
(a) the offender is likely to commit a further serious sex offence if he or she is not kept under supervision; and
(b) adequate supervision will not be provided by an extended supervision order.

10 He noted at par.[60]-[62] that s.17(3) requires the Court to consider two elements; and he found that the medical evidence established the first of them, namely that there was a high risk that the appellant was likely to commit a further serious sexual offence if not kept under supervision. The primary judge stated that the critical question was whether adequate supervision will or will not be provided by an extended supervision order made under the Act.

11 The primary judge accepted that the test under s.17(3) was as stated by McClellan CJ at CL in Attorney-General for the State of New South Wales v. Winters [2007] NSWSC 1071 at [50] as follows:

… As the authorities show, the meaning of the word ‘likely’ can vary significantly depending on its context. However, having regard to the purpose and effect of the legislation, notwithstanding my tentative view in Gallagher , in my judgment, in the Act, ‘likely’ means ‘more likely than not’ and it is that test which must be applied in s.9 and s.17. For relevant purposes, the Court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence. It follows that the defendant’s argument that the chance of re-offending must be significantly higher than 50% must also be rejected.

12 The primary judge then gave the following reasons for making the orders he did:

133 Dr Nielssen also observed that he considered that an appropriate community treatment plan implemented as a condition of a supervision order would reduce his risk of offending to an acceptable level “bearing in mind that the prediction of behaviour is an inexact science” .
134 The question as to whether or not the plaintiff has established the second limb of s.17(3) is, as already indicated, fundamental to the determination required to be made. In doing so, of course, the Court is required to have regard to the matters set forth in s.17(4) (which includes “(a) the safety of the community” ) and to any other matter that the Court considers relevant.
135 I have had particular regard in relation to the issues concerning the second limb of s.17(3) both to the terms of the proposed risk management plan (Exhibit 2) and to the evidence given, in particular, by Dr Ellis, Mr Rendell and Ms Howell in relation to the adequacy of that proposed plan.
136 The terms of the proposed extended supervision order as set out in Exhibit 2 contain separate provisions dealing with the following subject matters:-
(a) Monitoring, communication and accessing information in relation to the defendant’s progress under an extended supervision order.
(b) Provisions concerning proposed treatment of the defendant.
(c) Restrictions in terms of accommodation and other matters.
137 Although the provisions of s.17(3) do not employ the terms “risk” or “risk management” , plainly the section is directed towards an assessment being made by the Court as to the risk of an offender committing a further serious sex offence in terms, as McClellan CJ at CL in Winters (supra) stated, namely, whether it is more likely than not that an offender would commit such a further offence. In determining what constitutes “adequate supervision” under a proposed extended supervision order, the Court is required to have regard to the nature of the supervision and of the controls and restrictions that would operate under it in order to determine its adequacy to meet the risk referred to in the first limb of s.17(3).
138 In Attorney-General for the State of New South Wales vQuinn [2007] NSWSC 456 at [30], I referred to the ordinary meaning of the word “adequate” as including “commensurate in fitness, sufficient, satisfactory” : Shorter Oxford English Dictionary, Fifth Edition.
139 It is clear that the terms of an extended supervision order must be such as to provide supervision that is “commensurate in fitness, sufficient or satisfactory” , to the assessed risk in terms of the first limb of s.17(3). In this respect, “adequate supervision” would, in my opinion, require such “supervision” as will be adequate, in the above sense, to reduce the risk of the defendant committing a further serious sex offence so that, by reason of such supervision, it is less likely than not that he will re-offend in that regard.
140 Accordingly, s.17(3) in the present proceedings requires close attention be given to the proposed risk management plan and to the opinions that have been expressed by the expert witnesses to whom I have already referred.
141 The subject of risk management is, of course, one that operates in a large number of areas of human activity. The risk in many situations (eg, industrial environments) is the risk of careless or inadvertent or negligent conduct that can give rise to or cause damage or harm.
142 In the context of the Act, the risk is a risk of an offender wilfully or deliberately engaging in activities that would constitute a “serious sex offence” . The proposed management plan in Exhibit 2, when analysed, can be said to provide three levels of defence in the nature of what might be termed as “defence barriers” , namely:-
(a) The first defence barrier
• Supervision by the Probation and Parole Service.
• Communication with officers of that Service and other relevant personnel.
• Monitoring of the defendant’s activities and conduct.
(b) The second defence barrier
• Restrictions as to accommodation.
• Restriction upon specific activities and movement.
(c) The third defence barrier
• Specialist medical (psychiatric) treatment (including the administration of anti-depressant medication and potentially at a future point in time, anti-libidinal medication).
• Psychological counselling, treatment and support.
143 It is evidence that each of the controls to be provided by the proposed Risk Management Plan is crucial. Given that, if released, the defendant would be working for limited hours early in the morning of each day, there would be many hours in which he is otherwise not specifically engaged in programmed work. The control to be provided by medical treatment, in particular, medication (what I have termed the “third defence barrier” ), I consider, in the light of the evidence concerning the nature of the defendant’s disorders and the factors underlying them, to be fundamental to the other proposed controls. In the event that prescribed medication is trialled and is established as producing beneficial effects in line with the evidence of Dr Ellis (including, in particular, the suppression of sexual drive), then the level of risk to the community would, of course, be commensurately reduced. Similarly, treatment by way of psychiatric and psychological counselling directed to enhancing what Dr Allnutt has described as the defendant’s “limited repertoire of coping when it came to dealing with stress” , in conjunction with the medical treatment, hopefully will also operate to reduce the risk or likelihood of re-offending by increasing the defendant’s insight, capacity and coping skills.
144 Accordingly the objective is that a combination of psychiatric and psychological treatment and support will, at some point, result in self-regulated control, given, particularly, Dr Allnutt’s statement that as at the time of his examination on 12 July 2007, his opinion was that he did not believe “… at this stage, he has developed adequate mechanisms of coping with dysphoric moods in a more constructive manner …” . The significance of his dysphoric moods to past offending has been discussed above.
145 The evidence, in my opinion, plainly establishes that, in the event that Dr Ellis and Ms Howell at a future point in time are in a position to have monitored and assessed the effect on the defendant of both medical (psychiatric) and psychological treatment as having adequately addressed the factors subjacent to the defendant’s personality disorder, then the treatment regime, together with what I have referred to as the first and second lines or barriers of defence, may well be seen to be adequate to bring the risk or likelihood of re-offending down to a level that would enable supervision under an extended supervision order to be considered “adequate supervision” .
146 The position that presently operates, on the evidence, is that, whilst treatment by medication is, as I have earlier stated, fundamental to the proposed plan, it has not, by reason of a series of circumstances, been trialled for a sufficiently long period of time to enable Dr Ellis to determine what effect it will have upon the defendant, and whether there is a need for an adjustment or change in medical treatment. Similarly, Ms Howell has only recently commenced treatment and has not as yet had the opportunity of developing treatment to a level whereby she is in a position to assess the nature and extent of any beneficial effects which she considers likely to result form such treatment.
147 In written and oral submissions, it was contended on behalf of the defendant that, in all the circumstances, adequate supervision is available upon the release of the defendant. In his written submissions, Mr Dalton SC, for the defendant, addressed the issues concerning the management of the defendant’s level of risk (paragraphs 22 to 25). He submitted that “adequate supervision” should be interpreted as adequate available supervision to reduce the risk below a high degree of probability of likelihood to re-offend. I have earlier indicated that adequate supervision, in my opinion, must be such that in the case of a high risk serious sex offender, an extended supervision order is required to be such that it would no longer be “likely” (as interpreted by McClellan CJ at CL in Winters (supra)) that the defendant would commit a further serious sex offence. Mr Dalton relied upon the evidence of Dr Allnutt, Dr O’Dea and Mr Rendell as well as Dr Ellis in contending that “the overwhelming balance of the evidence is that the proposed management plan for a period of five years is adequate to appropriately manage his level of risk in the context of s.17(3) …” (paragraph 22(a) of the defendant’s written submission).
148 Mr Dalton also emphasised the support, which the defendant’s family would provide and the fact that the defendant had no history of breach of parole orders or extended supervision orders.
149 Whilst Dr Ellis, Mr Rendell and Ms Howell have given evidence, as set out earlier in this judgment (see paragraphs [91], [92], [95] and [111]) that they consider the proposed plan to be adequate to manage the defendant in the community, it would be wrong to treat the answers they gave as to the adequacy of the proposed program divorced or separated from their underlying analyses and diagnoses made of paraphilia and personality disorder, or of the need for specific medical and psychological treatment to be implemented and taken to a stage that will provide the defendant with the necessary capacity and coping skills. The evidence is that it will take some time before the effects of the medication are capable of being assessed and reviewed and, as necessary, modified or adjusted to produce the necessary outcome of reducing the assessed likelihood of the defendant committing a further serious sex offence.
150 Dr Ellis’ evidence was to the effect that he has not yet been able to make such an assessment and, as stated above, Ms Howell has only recently embarked upon a treatment program. It will require time for her to exercise her professional expertise in order to develop those matters considered necessary for the defendant to develop the required self-regulation.
151 The difficult matter of risk prediction, emphasised by the expert witnesses, is one that requires an assessment of all the evidence, taking into account the practical operation of an extended supervision order having regard to the particular offender. That practical approach must require some regard to the fact that, although the defendant has not displayed sexually deviant behaviour whilst in prison, the more stimulating environment of the general community for the defendant, who presently lacks the capacity for self-regulation, if released, is a factor to be brought into account in the assessment to be made under s.17(3).
152 Mr Dalton referred to the fact that Mr Arnott did not put to the experts that they were incorrect in the specific opinions they expressed as to the adequacy of the proposed plan. It is to be remembered that, in this Court, determining an application under the Act, it is required to examine all the evidence (including the opinions expressed by the expert witnesses to which I have specifically referred above). Ultimately, it is for the Court to determine what evidence it ought to accept. A trial judge is not bound to accept expert opinion evidence, particularly where it is evidence on an ultimate issue: Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at [89] per Heydon JA, as his Honour then was.
153 In the course of his submissions, Mr Dalton adverted to the judgment of McClellan CJ at CL in Winters (supra). The Chief Judge, in that case, referred to the evidence, in particular, of Mr Rendell and expressed confidence in the proposed management plan. His Honour also referred (paragraph 143) to the strict conditions proposed including conditions for monitoring, counselling and the “continuing administration of anti-libidinal medication will, based on past experience, significantly reduce his sex drive. Of course, his continuing ability to accept this form of medication remains uncertain” .
154 In the judgment (at 144), McClellan CJ at CL also observed:-
“But for two matters, I would have been satisfied that adequate supervision could be provided by an extended supervision order. In the words of the statute, the consequence of the two problems is that I cannot be satisfied that adequate supervision could be provided by an extended supervision order.”
155 It is important to note that his Honour’s observations are to be construed in light of the evidence adduced in Winters . The Chief Judge recorded (paragraph 51) that, whereas on occasions the defendant in that case had exhibited behaviour consistent with a continuing tendency to commit sexual offences, “… he was, for a time, administered anti-libidinal medication during which there were no reports of unsatisfactory conduct. He chose not to continue with the medication because of side effects …” .
156 Accordingly, in Winters , there had been a trial of anti-libidinal medication from which it was possible to assess that the defendant’s tendency in that case to commit sexual offences had been attenuated. In the present case, there has, of course, been no trialling of either anti-depressant or anti-libidinal medication. Whether they are suitable medications for the defendant remains to be seen. It is, of course, hoped that they will be suitable and that other treatment over time will enhance the defendant’s capacity.
Determining the duration of a continuing detention order
157 The maximum period of a continuing detention order is five years: s.18(1)(b ). In determining in a particular case the appropriate period for such an order, the Court, in my opinion, should seek to identify those facts or matters that should guide its determination.
158 In the present case, the defendant will, at least in the short term, require both medical and psychological treatment and potentially may benefit from participation in the CUBIT program which he has stated to Dr Ellis he is prepared to do. That program can take approximately eight months to complete. I take those matters into account in determining the period which I consider to be appropriate for the continuing detention order which I propose to make. The question of the need for ongoing treatment and support beyond the release date will obviously be a matter for future determination.

GROUNDS OF APPEAL

13 The appellant relies on the following grounds of appeal:

1. His Honour erred in his interpretation of s.17 Crimes (Serious Sex Offenders) Act , 2006.
2. His Honour erred in his application of s.17 Crimes (Serious Sex Offenders) Act, 2006, particularly in his finding that adequate supervision would not be provided by an extended supervision order.
3. His Honour erred in both fact and law in that whatever arguable interpretation is placed on s.17 the only reasonable option available was an extended supervision order in accordance with the proposed Risk Management Plan.

14 To the extent that the grounds challenged the primary judge’s finding in relation to the first element in s.17(3), the appellant did not press these grounds, having regard to the decision in Tillman v. Attorney-General for the State of New South Wales [2007] NSWCA 327. Accordingly, argument in the case proceeded in relation to satisfaction of the second element of s.17(3).

SUBMISSIONS

15 The essence of the submissions made by Mr. Haesler SC for the appellant was that the primary judge did not address the question posed by the second element of s.17(3) of the Act, namely whether the Court “was satisfied to a high degree of probability … that adequate supervision will not be provided by an extended supervision order”; that he made no finding to that effect; and that his reasons in substance showed that he made a continuing detention order rather than an extended supervision order because he was not satisfied that adequate supervision would be provided by an extended supervision order (that is, that he reversed the onus of proof).

16 Mr. Haesler submitted that, on the basis of the primary judge’s findings and reasons, it was clear that the Court would not be satisfied, to a high degree of probability, that adequate supervision would not be provided; and that this Court should allow the appeal, set aside the continuing detention order, and make an extended supervision order.

17 Mr. Babb SC for the respondent submitted that the primary judge did state the test correctly at par.[43] and [133] of his judgment, carefully examined the risk-management plan, and at par.[143] found the third defence barrier was “fundamental”. He submitted that the effect of the judge’s reasons at par.[143]-[156] was that he was appropriately satisfied that an extended supervision order giving effect to the management plan would not reduce the risk to the extent that the appellant would not be likely to commit a further serious sex offence. If the Court considered that the primary judge had not addressed the correct question and/or made the correct finding, or that the more particular findings of the primary judge did not support a correct finding, the Court should send the matter back for a further first instance hearing.

PRINCIPLES

18 It is a fundamental principle of criminal law that a person convicted of a crime must be given punishment appropriate to that crime and no more: Veen v. The Queen (1979) 143 CLR 458, Veen v. The Queen (No.2) (1988) 164 CLR 465. Another fundamental principle of criminal law is that, subject to the possibility of appeal, the appropriate punishment is determined once and for all when the person is sentenced for the crime: this is one aspect of a wider principle requiring finality in litigation. Of course, the sentence may, for example by leaving open the possibility for parole, allow for some variation in how it operates, depending on future circumstances. But the appropriateness of the sentence itself cannot later be challenged.

19 Thus if, in addition to appropriate punishment for crimes they have committed, persons are to have their liberty further restricted because of what they might do in the future, this requires justification outside the ordinary principles of criminal law, and outside the ordinary principle that interference with liberty is generally restricted to interference that is deserved by reason of actual criminal conduct. In passing the Act, the New South Wales legislature has determined that, for the protection of the public, there should in specific cases be restrictions of liberty on that basis. In the second reading speech when the Bill for the Act was before the New South Wales parliament, the Honourable Tony Kelly, Minister for Justice, said this:

One particular concern, that is dealt with by this scheme, relates to a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison. These offenders make up a very small percentage of the prison population, yet their behaviour poses a very real threat to the public. These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised.

The proposed legislation will address this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody.

The Department of Corrective Services has advised that only a small number of offenders would fall into this very high-risk category.

20 In Tillman v. Attorney-General for the State of New South Wales [2007] NSWCA 327, the majority of the New South Wales Court of Appeal (Giles and Ipp JJA, Mason P dissenting) held that the word “likely” in s.17(3) of the Act did not require a degree of probability exceeding 50%. In this respect, they applied a Victorian decision on similarly worded legislation, namely TSL v. Secretary to the Department of Justice (2006) 14 VR 109. In par.[85]-[89] of their judgment in Tillman, Giles and Ipp JJA said this:

85 Firstly, s.17(3) uses the expressions “high degree of probability” and “likely” in close proximity. There is, therefore, a strong inference that Parliament intended to distinguish between the meanings conveyed by the two expressions. Applying their natural meanings, “high degree of probability” denotes a higher degree of probability than “likely”. Linguistically, one would more readily attribute a meaning of “beyond more probable than not” to a “high degree of probability” than to “likely”.
86 Secondly, giving “likely” the meaning of “high degree of probability” (in ss 17(2) and (3)) creates an oddity of language. One would be left with a section reading something like “a continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that it is highly probable that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision”. It would have been far easier for Parliament, had such a meaning been intended, to provide, “an extended supervision order may be made if and only if the Supreme Court is satisfied that there is a high probability of the offender committing a further serious sex offence if he or she is not kept under supervision”. The repetition of the notion of “a high degree of probability” involved in the construction for which the claimant contends, militates – linguistically - against that construction.
87 Thirdly, the repeated use of the word “likelihood” in ss 17(4)(c), 17(4)(d) and 17(4)(i) (and the omission, in these sections, of the expression “high probability”) supports the inference that the notion of “likely” and “likelihood” is intended to have a meaning different to “a high degree of probability”.
88 In our view, there is much to be said for the view expressed by McClellan CJ at CL in Winters , namely, that “likely” is used in the section as meaning more probable than not. On the other hand, it is a respectable view that the legislature recognised the infringement of personal liberty by requiring satisfaction to a high degree of probability, so that it would be wrong to impose in the shade of meaning adopted for “likely” a further strict requirement of likelihood in the sense of more probable than not. There is ambiguity in the word “likely”, and if unconstrained we would tend towards his Honour’s view. Nevertheless, the view expressed in TSL is reasonably open and we are not persuaded that it is clearly wrong. In the light of what has emanated from the High Court in regard to the respect that an intermediate appellate court of one Australian jurisdiction should give to a decision of an intermediate appellate court of another Australian jurisdiction on issues that are substantially the same, we would follow and adopt the approach of Callaway AP in TSL .
89 Accordingly, we would hold that the word “likely” in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent. The remarks Bell J made when articulating the test she intended to apply are to be understood in this sense. Her Honour said (at [29]):
“I have approached the determination in this case upon the basis that ‘likely’ in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence.”

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

22 On that approach, when one comes to the second element of s.17(3), what is required is satisfaction to a high degree of probability (that is, beyond a mere balance of probabilities) that adequate supervision will not be provided by an extended supervision order; that is, that even if there is an extended supervision order, the offender will nevertheless still be likely to commit a further serious sex offence.

APPLICATION

23 In our opinion, there is no clear finding by the primary judge to the effect that the second element of s.17(3) is satisfied in this case; and the general impression given by the crucial paragraphs of the judgment, namely pars.[134]-[156], is that it was not established that the extended supervision order would obviate the likelihood that the offender would commit a further serious sex offence. Such a view would not satisfy the requirement of s.17(3), which is, as we have said, that the Court must be satisfied to a high degree of probability that an extended supervision order would not obviate such a likelihood.

24 In substance, Mr. Babb’s submission was that the primary judge was so satisfied, because the risk that the extended supervision order would not be effective meant that, despite the extended supervision order, the appellant would still be likely to commit a further serious sexual offence. The closest the judgment comes to supporting this is in the last sentence of par.[149] of the primary judge’s judgment:

The evidence is that it will take some time before the effects of the medication are capable of being assessed and reviewed and, as necessary, modified or adjusted to produce the necessary outcome of reducing the assessed likelihood of the defendant committing a further serious sex offence.

25 However, in our opinion, neither this sentence nor any other part of the judgment adequately addresses the crucial question: is the possibility that the medication regime under the extended supervision order will not work (because it has not yet been tested) such as to satisfy the Court to a high degree of probability, that (even with the extended supervision order in place) it is still likely that the offender will commit a further serious sexual offence? In our opinion, the primary judge did not squarely address and answer that question.

26 In those circumstances, this Court has the alternative of either deciding the question itself, or sending the matter back for a further first instance hearing. In our opinion, this Court should decide the question itself if it is able to do so without detriment to the parties, and can do so on the basis of the appeal documents and the primary judge’s primary findings of fact.

27 In doing so, we should have regard to the matters set out in s.17(4), so far as they are relevant to the second element of s.17(3). The matter in s.17(4)(a), “the safety of the community”, is only indirectly relevant to this question, to the extent that it informs the correct approach to the understanding of the expressions “likely to commit a further serious sex offence” and “adequate supervision”. That matter is directly relevant to the question of the Court’s discretion, which however arises only after the two elements of s.17(3) have both been satisfied.

28 It is to be noted that the appellant is not a person who has not made any attempt to rehabilitate while in prison, and in that respect is not within the class of persons referred to in the second reading speech as the persons for whom the Act was intended. He participated in two Sex Offender Psycho-Education (SOPE) courses between 1997 and 2000. He did not participate in the Custody Based Intensive Treatment Program (CUBIT) run by the Department, in circumstances where prior to 2005 participants had to acknowledge all elements recorded in police and court documents about their offending. The appellant admitted to the substance of the sexual assaults, but denied some of the allegations.

29 It was noted by Mr. Rendell that he saw no documentation indicating that the appellant had any institutional convictions or punishments. He also noted that the appellant had been well-behaved during his imprisonment and had received no adverse case management reports in respect of his work or conduct.

30 It is true that the consensus of expert opinion was that the appellant was in the high-risk category relative to other adult male sex offenders, on the basis of both static and dynamic risk factors. However, subject to the considerations referred to by the primary judge in the paragraphs set out above, the consensus was that adequate supervision could be provided by an extended supervision order.

31 In our opinion, the circumstance that it is not possible to determine, one way or the other, whether medication will be effective, cannot justify a conclusion, to a high degree of probability, that even if the offender is subject to an extended supervision order, he will still be likely to commit a further serious sex offence. Such a conclusion would, in our opinion, require it to be shown positively that the risk that the medication would not be successful was so substantial that, even with an extended supervision order in place, there was a high degree of probability that the appellant would still be likely so to offend.

32 The primary judge was correct to say he was not bound to accept expert evidence, particularly on the ultimate issue. However, there was no expert evidence to the effect that adequate supervision would not be provided by an extended supervision order, or to the effect that, even with such an order in place, the appellant would still be likely to commit a further serious sex offence. In circumstances where the consensus of expert evidence was to the effect that adequate supervision would be provided by an extended supervision order, in our opinion the evidence and the particular findings of the primary judge did not justify a conclusion that adequate supervision would not be provided.

33 Accordingly, in our opinion the second element of s.17(3) is not satisfied in this case; and the Court has no discretion to make a continuing detention order.

34 For these reasons, the appeal should be allowed, the continuing detention order set aside, and an extended supervision order made.

TERMS OF ORDER

35 There was no substantial contest below that, if an extended supervision order was made, it should be for five years. We think this is appropriate. The terms of the order were substantially agreed, but subject to the following matters.

36 One issue as to the terms of the order was whether there should be a requirement that the appellant wear an electronic monitoring device. In our opinion, it is appropriate to give weight to the consideration of the safety of the community in determining what conditions to impose, and to take a cautious approach. Should the Probation and Parole Service at any time consider that the device is not necessary or counter-productive, then the order should give the flexibility of dispensation with the requirement. Accordingly, it should be a condition of the order that the appellant wear such a device, if and as directed by a Probation and Parole Officer.

37 Another issue was whether the appellant must inform the officer in charge of monitoring his movements of his movements on a daily basis. In our opinion, it is sufficient that he inform that officer of his proposed daily movements on a weekly basis, and inform that officer immediately of any change.

38 The final issue as to the terms of the order was whether there should be a requirement that the appellant be at his address between the hours of 9pm and 6am unless his presence at another place during those hours has been approved by Probation and Parole. In our opinion, again taking a cautious approach, there should be such a requirement.

39 The Court makes the following orders. In the published version of the judgment, there should not be identification of the relatives mentioned in Conditions 19 and 20, and in Note (iii).

1. Appeal allowed with costs.
2. Set aside the orders made by the Court on 27 September 2007 and in lieu thereof, order:
That pursuant to s.17(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 the appellant be directed, for a period of 5 years from the date of this order, to comply with the following orders, oversight of which is to be administered by an appointed representative of the Department of Corrective Services (the Department) in consultation with an appointed representative of the Community Forensic Mental Health Service (CFMHS):


Reporting and monitoring obligations
1. The appellant must accept the supervision and guidance of the Probation and Parole Service (which includes the Community Compliance Group) for as long as necessary, as determined by the Probation and Parole Service.
2. The appellant must report personally once a week to the responsible probation and parole officer and otherwise as directed by that officer.
3. The appellant must comply with any reasonable direction given by a probation and parole officer.
4. The appellant must wear electronic monitoring device(s) if and as directed by a Probation and Parole officer, and not tamper with or remove the electronic device(s).
5. The appellant must inform the officer in charge of monitoring his movements of his proposed daily movements on a weekly basis, and immediately of any change, with that officer to contact the appointed representative of the Department and/or the responsible probation and parole officer once a week.
6. The appellant must accept home visits, including unannounced visits, by any Probation and Parole officer as directed by that officer.

Accommodation and Employment obligations
7. The appellant must reside at a furnished residence not known to the media, as directed or approved by the Commissioner of Corrective Services.
8. The appellant must be at his address between the hours of 9pm and 6am unless his presence at another place during those hours has been approved by Probation and Parole.
9. The appellant must not leave the State of New South Wales without the written permission of the appointed representative of the Department.
10. The appellant may undertake employment provided that has been approved by the Department.

Treatment obligations
11. The appellant must accept psychiatric treatment to be provided by CFMHS, including anti-libidinal and antidepressant or other psychiatric medication as indicated.
12. The appellant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the CFMHS.
13. The appellant must attend consultations with the CFMHS, at such a frequency as specified by the CFMHS, at a venue and time to be directed.
14. The appellant must undertake at his own expense psychological treatment with Jenny Howell (or a substitute therapist if Ms Howell is unavailable) at a frequency and of a nature deemed appropriate by Ms Howell in consultation with CFMHS, immediately upon release.
15. The appellant must engage a General Practitioner and consent to the disclosure of medical information as between the General Practitioner, the CFMHS and his treating psychologist.

Disclosure of information
16. The appellant must waive his right to the confidentiality of all information disclosed by him during treatment by his treating doctors and psychologist.
17. The appellant must allow the appointed representative of the Department and the responsible probation and parole officers under that representative's supervision to access all relevant information regarding his progress, including confidential information disclosed in the course of his treatment.
18. The appellant must agree to the sharing of all information between the Department, his employers, the CFMHS, his General Practitioner and his psychologist for the purposes of the Notes referred to below and for the purposes of the review referred to in Order 19 below.

Review obligation
19. The appellant must attend a six-monthly meeting with all agencies/parties including [relatives] in attendance if required by the appointed representative of the Department and/or the relevant probation and parole officer, at which point the Risk Management Plan should be reviewed and adjusted commensurate with the risk as it is determined by all the parties at that point.

General obligations
20. The appellant must not associate or be in contact with children less than 18 years old unless that contact is approved and supervised by the Probation and Parole Service (except for family functions, when he must be supervised at all times by [a relative]).
21. The appellant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours, and such places as a Probation and Parole officer may direct.
22. The appellant must not consume any alcohol or illicit drugs or abuse prescription medication, and must submit to drug and alcohol testing as directed by the Probation and Parole Service.
23. The appellant must not frequent any licensed premises, including but not limited to hotels, bars and race courses.
24. The defendant must not change his name from Raymond Barry Cornwall or Raymond Barry Cornwell.
25. The appellant must not change his appearance unless approved by the Department.
26. If the appellant's proposed change of appearance is approved, he must allow himself to be photographed.

Further, the Court NOTES that:
(i) All agencies/parties involved in the appellant's supervision order are to communicate any significant concerns regarding risk to the appointed representative of the Department and/or the responsible probation and parole officers immediately.
(ii) Whoever is overseeing the appellant's living arrangements is to phone once a week and meet once a month with the relevant probation and parole officer (the frequency of this contact can be varied at the direction of the appointed representative of the Department and/or the responsible probation and parole officer under his or her direction).
(iii) The appellant's employers, […], will contact the appointed representative of the Department and/or the relevant probation and parole officer in accordance with (ii) above.
(iv) The appointed psychologist and psychiatrist will report to the appointed representative of the Department and/or the relevant probation and parole officer from time to time as they consider appropriate and will be available for case management issues when required.

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