R v Laurence Edward O'Shea No. SCCRM 96/163 Judgment No. 5917 Number of Pages 22 Criminal Law

[1996] SASC 5917

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law - jurisdiction, practice and procedure - judgment and punishment - miscellaneous matters - sex offenders incapable of controlling sexual instincts - application seeking order to discharge order of indeterminate detention (S23(11) Criminal Law (Sentencing) 1988 (CLSA)). Alternative applications seeking an order for the release of applicant on licence. Applicant contended that the CLSA was not applicable as the initial order for detention was made in 1977 under S77A of the Criminal Law Consolidation Act - S80 of the Statutes Amendment and Repeal (Sentencing) Act 1988 applied to all existing periods of indeterminate detention and ensured S23 and S24 would be applicable to persons serving indeterminate sentenses under repealed provisions - nature of onus borne by an applicant pursuant to CLSA Sections 23 and 24 - lists to be applied to applications under these sections - evidence of applicant's previous history and expert opinions indicated that the applicant had not discharged the onus upon him - both applications refused. Criminal Law Sentencing Act 1988; Criminal LawConsolidation Act 1935, Statutes Amendment and Repeal (Sentencing) Act
1988 referred to. The Queen v Di Maria Hudson and Pehlivarides, (1996) 67 SASR 466 ; Dickson v Minister of Pensions 1953 1 QB 228, applied. Kable v Director of Public Prosecutions (NSW) (High Court, 12 September 1996, unreported, available on SCALEplus) ; The Queen v Ryrie 1993 64 A Crim R 332, distinguished. The Queen v O'Shea 1982 31 SASR 129, discussed. CFN

HRNG ADELAIDE, 8-13 November 1996 (hearing), 11 December 1996 (decision) #DATE 11:12:1996 #ADD 28:1:1997

Counsel for applicant:     Mr G Mancini

Solicitors for applicant:    Mancini &; Co

Counsel for respondent:     Ms W Abraham

Solicitors for respondent: DPP (SA)

ORDER
Applications refused.

JUDGE1 OLSSON J

1. In these proceedings the applicant seeks alternative forms of relief. His primary claim, as expressed in his amended application, is for an order, pursuant to section 23 (11) of the Criminal Law(Sentencing) Act, 1988 ("CLSA"), "discharging the order of indeterminate detention made on the 28th day of February 1978 with respect to the applicant."

2. The alternative application is said to be presented pursuant to section 24 (1) of the CLSA. It seeks an order "authorising the release of the applicant on licence."

3. At the hearing, the proceedings took what can only be described as a somewhat extraordinary course.

4. In the early stages Mr Mancini, of counsel for the applicant, appeared to be developing his argument on the basis of the alternative application being his primary thrust, with the section 23 application being something of a 'fall back' position.

5. However, as the hearing progressed, and following the leading of oral evidence, Mr Mancini, for the first time, then, in effect, sought to impugn the very jurisdiction on which his applications were based - by contending that the provisions of the CLSA had no relevance to his client's situation. As I understood his primary contention at this point it was that the transitional provisions relating to the bringing into being of the current sections 23 and 24 of the CLSA, in terms, had no bearing on the relevant order committing the applicant to indeterminate detention. He appeared to go so far as seeking to contend that the applicant was now unlawfully being detained - an issue which could scarcely be resolved within the ambit of the present proceedings, at least as to any consequential relief, if that was the situation.

6. Having made that point, he, nevertheless, sought to rely on sections 23 and 24, in the event that his fundamental preliminary point failed.

7. Although this would seem to be a somewhat classic illustration of approbation and reprobation it is convenient to deal with the key submissions made.

8. Prior to doing so it is necessary to embark on a resume of the relevant factual background, including my findings in relation to the oral and documentary material placed before me on the hearing of present application.

9. Much of the relevant history is recited, in extenso, in The Queen v O'Shea (1982) 31 SASR 129. However, it is important to attempt at least a precis of it to render these reasons intelligible. I proceed to do so.
    - The applicant is a divorced man now aged 58 years.

- On 4 October, 1960, he was charged with indecent assault on a
    nine year old girl. He was convicted and imprisoned until 20
    February, 1962.

- In July 1967 he was convicted on three counts of indecent assault
    on a male person and asked that other offences also be taken into
    consideration. Pursuant to the then provisions of section 77a of
    the Criminal Law Consolidation Act, 1935 ("CLCA") he was ordered to
    be detained in an institution for a period of three years and
    required to enter into a bond to be of good behaviour for a period
    of five years from the date of his release.

- On 19 December, 1977 the applicant pleaded guilty, before Jacobs
    J, to two counts of indecent assault on young children. At that
    time, he requested the court to take into account four like
    offences, not charged, committed on four other young children.

- Having regard to a substantial volume of psychiatric and other
    material placed before him, Jacobs J accepted the unanimous
    opinions of three psychiatrists to the effect that the applicant
    was incapable of exercising proper control over his sexual
    instincts.

- At the time, subsection (3) of section 77a of the CLCA was
    couched in these terms -
    "(3) If the medical practitioners report to the court or judge that
    the offender is incapable of exercising proper control over his
    sexual instincts the court or judge may, either in addition to, or
    in lieu of imposing any other sentence, declare that the offender
    is so incapable and direct that he be detained in an institution
    during His Majesty's pleasure: Provided that the offender shall be
    entitled to call evidence in rebuttal of such report, and no such
    order shall be made unless the court or judge shall consider the
    matters reported to be proved.

Every offender in respect of whom such a direction is given -
    (a) shall be detained in such institution as the Governor directs,
    and until the Governor gives a direction as to such institution, in
    any gaol:
    (b) shall not be released unless -
     (i) the Governor is satisfied, on the recommendation of the
     Parole Board, that he is fit to be at liberty
    or
     (ii) the Governor releases him upon licence in pursuance of this
     section."

- Having regard to that subsection, Jacobs J ordered as follows -
    "in lieu of imposing any sentence on either count in the
    information, I direct that the prisoner be detained at an
    Institution during Her Majesty's pleasure."

- On 15 December 1980, following receipt of a recommendation of the
    Parole Board in that regard, Executive Council approved the release
    of the applicant on licence. However, that licence was revoked on
    or about 27 January, 1981, when it appeared to the Parole Board
    that, contrary to its conditions, he had been associating with
    young children. He was returned to custody.

- On 27 September 1983 the applicant was again released on licence.
    Once again his period of freedom was short lived. It appeared
    that, in early 1985, the applicant was advertising (if not actually
    running) a camp for disabled children. (There is a dispute as to
    whether it was established that he actually ran such a camp or not.
    Mr Mancini denies the accuracy of the Parole Board Report in that
    regard, but he addressed no evidence to establish that assertion.)
    Furthermore, it was ascertained that he was doing so under an
    assumed name 'Michael Harrison'. The Parole Board revoked the
    licence and the appellant was once more returned to custody.

- There he remained until 1986, when, after favourable psychiatric
    and psychological reports, the Parole Board recommended the
    applicant's release to Executive Council. That body declined to
    act on the recommendation. It further declined a like
    recommendation proffered by the Parole Board in October 1986.

- The refusals of the Executive Council were challenged by the
    applicant in proceedings which went on appeal to the High Court.
    That court, in effect, rejected the applicant's claim to relief.

- On 1 December, 1987, the Parole Board once more recommended a
    release on licence. This was agreed to, subject to quite strict
    terms. Those terms, inter alia, stipulated that -
     - the applicant was not to join or become involved in any
     organisation which either directed children's activities, raised
     money for or on behalf of children's charities or was in any way
     involved with children whatsoever.
     - he was not to associate with any child under the age of 16
     years (other than children of his marriage) except in the
     presence of another adult, without first obtaining the prior
     written permission of his parole officer.

- Upon release the applicant secured accommodation with a Mr
    Johnson, who conducted a school bus service for children in the
    Adelaide Hills. Mr Johnson became concerned at some of the
    activities of the applicant and passed over to his parole officer
    envelopes and letters which suggested that the applicant was in
    receipt of correspondence from computing companies to which he was
    representing himself under false names - mail having been addressed
    to post office boxes in the eastern suburbs. It also appeared that
    the applicant was compiling lists of children who travelled on the
    School Buses, other than for the purposes of the business.

- The applicant proffered innocent explanations for the above
    situations and it does not appear that the Parole Board pursued the
    matter further at the time. On 17 March, 1989, he moved to live at
    Marden, and continued to see his parole officer weekly and a
    psychologist (Mr Geoff Pope) fortnightly.

- In mid 1989 the Parole Board agreed that the applicant could
    share his considerable computing skills with elderly people at the
    Koster Neighbourhood Centre in Trinity Gardens. However, in July
    1990, the probation officer reported that the applicant had been
    seen giving computer lessons to young children at the Centre. When
    questioned he admitted this conduct and conceded that he was in
    breach of the conditions of his licence. The Board warned the
    applicant, by letter, against any repetition of such a breach.

- In June 1991 the Board became aware that the applicant was
    representing himself as chairman of a group that taught computer
    classes to children and was advertising such classes. He was
    thereupon interviewed and also warned against such activities.

- In July 1991 the Board was made aware of an association between
    the applicant and a ten year old boy H.M., albeit with the
    concurrence of the boy's mother, in relation to teaching computer
    skills.

- The Board conducted an inquiry into the matter, particularly in
    light of allegations of sexual abuse of the child. It appears to
    have looked into a variety of aspects of the applicant's
    association with H.M. It concluded that he had breached his
    licence conditions and ordered him back into custody.

- It is to be noted that, on 30 April, 1993, the applicant was
    convicted of two sexual offences in relation to H.M., but that
    these were later quashed on appeal. On the other hand it was
    established that the applicant introduced H.M. to one Humphries, a
    paedophile. Humphries subsequently seduced H.M. into homosexual
    activities and took him interstate.

- In 1994 the applicant applied to this court for an order,
    pursuant to section 24 of the CLSA, that he again be released on
    licence. That application came before Mohr J. Having considered
    psychiatric reports from Professor Goldney and Dr Clayer, a report
    from the then Chief Clinical Psychologist of the Sexual Offenders
    Treatment and Assessment Programme (SOTAP) (Mr Fugler) and other
    material, Mohr J made an order, dated 24 June, 1994, that the
    applicant be released on licence.

- The Parole Board accordingly directed his release on licence,
    subject to quite stringent conditions.

- It is fair to say that, in making the order, Mohr J seems to have
    been influenced by no means unanimous views of the professional
    experts, at the time, to the effect that the applicant should be
    released on such a basis. One of them went no further than saying
    that the applicant could be given the benefit of the doubt
    concerning his assurance about future sexual behaviour. In his
    report of 11 May, 1994 Mr Fugler seems to have been cautiously
    optimistic that some benefit might accrue to the applicant as a
    consequence of involvement in the treatment phase of the SOTAP
    activities.

- In the event the Parole Board imposed no less than 26 specific
    licence conditions on the applicant. These were expressed in the
    following terms -
    "1. That you shall not commit any offence.
    2. That you shall not possess any offensive weapon unless you have
    first obtained the permission of the Parole Board to do so and
    comply with the terms and conditions of that permission.
    3. That you are under the supervision of a Parole Officer, and that
    you shall obey the reasonable directions of that Parole Officer,
    which includes (shall include but are not limited to) the
    following:
    4. That you are of good behaviour, keep peace towards persons, and
    do not commit any breach of the law.
    5. That you carry out faithfully all instructions and requirements
    of the Parole Officer under whose supervision you have from time to
    time been placed (in this document referred to as "your Parole
    Officer").
    6. That immediately upon your release you report to your Parole
    Officer.
    7. That you report as and when required by your Parole Officer.
    8. That you report in person, on three separate occasions each
    week, to the Parole Officer under whose supervision you have from
    time to time been placed and this is not to be varied without
    Parole Board approval.
    9. That you do not leave or attempt to leave the State of South
    Australia without the prior written permission of the Parole Board.
    10. That you obey the directions of your parole officer with regard
    to your employment and accommodation.
    11. That you do not change your place of residence without the
    prior written permission of the Parole Board.
    12. That you attend for counselling at the Sexual Offenders
    Treatment Assessment Program as directed by the Parole Board.
    13. That you undergo such psychiatric or psychological or medical
    or other treatment and or counselling as your Parole Officer shall
    from time to time direct.
    14. That you not remain on any premises occupied by you if any
    person under the age of 16 years enters those premises.
    15. That you not associate with, or attempt to associate with, any
    person under the age of 16 years whether or not that person is in
    the company of another adult.
    16. That you not directly or indirectly communicate with, or
    attempt to communicate with, any person under the age of 16 years
    whether by written correspondence, telephone or any other
    electronic means, including facsimile and computer.
    17. That you not be involved in, or be linked to, any computer
    network through the telephone system or other electronic means.
    18. That you do not join or become involved in any organisation
    which either directs children's activities, raises money for, or on
    behalf of children's charities, or is in any way involved with
    children whatsoever.
    19. That you do not record, collate, retain or collect names,
    addresses or any other information relating to children.
    20. That you do not place, attempt to place, or arrange to place by
    advertisement or notice in any newspaper, magazine or other written
    publication, any advertisement without the contents of such
    advertisement or notice having first been approved by your Parole
    Officer.
    21. That you do not use a false name or undertake any activity
    under a false name.
    22. That you do not change or attempt to change your name without
    the prior written permission of the Parole Board.
    23. That you follow your Parole Officer's direction in relation to
    the people with whom you associate.
    24. That you maintain a written diary of your daily activities
    including where you go, who you meet and who visits you and produce
    that record to your Parole Officer when directed to do so.
    25. That you do not make any statement or give any interview to the
    print or electronic media.
    26. That you not receive any payment from the print or electronic
    media."

- The applicant commenced the SOTAP program on 10 October 1994 and
    he was the subject of six monthly reviews by the Board. His parole
    officer was requested to provide quarterly progress reports and
    SOTAP was also asked to make periodic reports.

- The evidence of the witness Glanville (who is the Director of an
    organisation known as Prison Fellowship of Australia and has
    provided personal support to the applicant since his release on
    licence in 1994) is to the effect that he obtained a Housing Trust
    flat at Henley Beach, where he resided whilst living on licence in
    the community. Glanville assisted him to procure certain basic
    furniture and chattels which he required for day to day living
    purposes, as well as a second hand computer.

- It emerged from Glanville's evidence that the applicant sustained
    personal injury as a consequence of a motor vehicle accident which
    occurred on 1 September 1995. At the time the applicant was a
    passenger in a car driven by Glanville. Both sustained injury, but
    it was said that the applicant was admitted to hospital and
    suffered injuries more serious that those sustained by Glanville.
    The significance of this situation was that the sequelae of the
    injuries is said to have prevented the applicant from participating
    in the SOTAP programme at the time - although his bona fides in
    that regard seem to be challenged by SOTAP.

- In January 1995 the Parole Board became aware that the applicant
    was leasing a post office box at Kensington Park, a very
    considerable distance from his place of residence. (Mr Mancini
    asserted from the bar table and Glanville said that the applicant
    told him that this was a post office box which his client had
    leased over a very long time.) The applicant informed the Board
    that he had held this box for a lengthy period prior to the
    previous cancellation of his licence and desired to keep it. The
    Board agreed to this request on the basis that the parole officer
    was given access to it and would collect mail on a random basis to
    check its nature.

- In late June 1995 the Board became aware that, in breach of his
    licence conditions, the applicant had been writing letters to the
    media under Glanville's name, with Glanville's active cooperation.
    He was cautioned against a continuance of that activity.

- On 7 September 1995 (i.e. a few days after the motor vehicle
    accident) SOTAP reported about the applicant in these terms -
    "While Laurie has demonstrated a level of intellectualised
    understanding of victim impact issues, there has been no consistent
    demonstration of emotional congruence in relation to this. His
    primary emphasis appears to be self-focused regarding his own
    victimisation and the consequences he has experienced further to
    his own sexual offending history. When he does address issues of
    victim impact, this tends to be in a generalised and

    intellectualised manner. He is yet to demonstrate an emotionally
    congruent and personalised acceptance of responsibility for the
    likely consequences of his offending behaviour upon his specific
    victims.
    With respect to his offending behaviour, Laurie is considered to
    have demonstrated only a superficial level of responsibility. He
    continues to present his offending in a sanitised and minimised
    fashion. Considerable concern is expressed regarding his limited
    levels of honesty and openness in his presentation of his offence
    history. Material that he has presented in group therapy sessions
    has differed considerably from material that is on record. There
    has been no consistent demonstration on Laurie's behalf that he has
    abandoned the use of defence mechanisms, including such processes
    as rationalisation, minimisation, and other forms of denial. He
    continues to present with a pronounced victim-stance.
    Attempts to address the above issues have been an ongoing focus
    regarding Laurie's involvement in the treatment programme. These
    attempts have met with limited success only. Laurie continues to
    demonstrate patterns of evasiveness, superficial compliance, and
    hostility. To avoid addressing these issues, he has actively
    stated that he gains little from the SOTAP process, and has, on a
    number of occasions, appeared to attempt to undermine the processes
    of the treatment programme. Concern is also expressed regarding
    significant tendencies on Laurie's behalf to collude with other
    group members in attempting to avoid addressing the salient issues.
    At this stage, SOTAP is very concerned about Laurie's lack of
    progress. It is SOTAP's opinion that Laurie continues to present
    an ongoing serious concern in terms of his potential risk for re
    -offence."

- Arrangements were made to transfer the applicant to a different
    group but, as I understand the situation, he did not ever attend
    the SOTAP programme again after his accident.

- On 30 January 1996, at its direction, the applicant attended
    before the Board for interview, consequent upon receipt of a police
    report that he had used a false name to obtain computer material.
    The hearing was adjourned several times, both at the request of the
    applicant's solicitor and so that the Board could obtain additional
    information.

10. As a result of investigations made it emerged that -
    - unbeknown to the Board and the applicant's parole officer, he had
    leased and was receiving mail at a post office box at Kent Town.

- Police inquiries had been initiated into the receipt, by a
    variety of politicians, of an anonymous letter which accused Ms
    Francine Pinnock of SOTAP and Ms Janice Mears of the Department of
    Correctional Services of assisting paedophiles in their abusive
    actions. On interview, the applicant admitted that he was the
    author and that his intention had been to cause trouble for the
    persons named.

- on searching his flat the police seized a series of computer
    discs and transcribed certain contents of them. Inter alia, these
    revealed that, in late 1995, the applicant had been
    corresponding under three false names, holding himself out as the
    Secretary of an organisation known as "Compucare" and the Public
    Relations Officer of "Computers in Community Action". In essence
    he was soliciting the donation, by commercial organisations in the
    industry, of computer software and some items of hardware to teach
    children, or enable children's programmes to be pursued.

11. In the course of its report to the court the Parole Board commented about the foregoing situation to this effect.
    "Whilst the use of the false names, Mark Vincent and Lawrie Halton
    in itself constituted a breach of his conditions the Board was
    particularly concerned that the requests related to assisting
    troubled, disabled and lonely children. It seemed like an initial
    step into forming some sort of computer club which would be
    accessible to children and which would ultimately bring Mr O'Shea
    into contact with children. In the view of the Board this was a
    pattern of behaviour very similar to patterns of behaviour before
    which had led to Mr O'Shea sexually assaulting children. The fact
    that he kept it secret reinforced the Board's view that there was
    no innocent explanation for it. There was no explanation from Mr
    O'Shea, he declined to answer questions on the topic to the Board.
    In the context of the pattern of behaviour and the reports from
    SOTAP which suggested that he continued to present an ongoing
    serious concern in terms of his potential risk for re-offence, the
    Board considered that it was proper and appropriate to cancel his
    licence."

12. Accordingly, the licence was cancelled and the applicant returned to custody, where he has remained until the present time.

13. In her report to the Parole Board dated 16 May, 1996, the Director of SOTAP made these important points:-
    "As you are aware Mr O'Shea was transferred into the Tuesday
    evening group, of which I was co-ordinator. He was to commence his
    attendance on Tuesdays from 5 September, 1995. He had been
    disruptive in the Monday group: avoiding taking responsibility for
    discussing his offending behaviour wherever possible. He did this
    by criticising the group process and its facilitators in an attempt
    to deflect the focus from himself. He described the facilitators
    as "skilled, trained manipulators" and was continually
    disrespectful of the group process. He made a particular point of
    stating that he has gone through therapy over a period of many
    years and that he has worked through his problems and no longer
    requires help. He maintained, and still maintains, a strong
    victim-stance with respect to his offending behaviours and
    circumstances ...

By 24 January SOTAP was planning to suspend Mr O'Shea from the
    Programme because of his lack of participation and our awareness
    that he was continuing to engage in pro-offender thinking and
    behaviours. He continued to lobby people to support his extreme
    views about sexual offender treatment and he established a
    relationship with at least one other long term offender in
    treatment at SOTAP, who was also a major concern of ours with
    respect to his potential to reoffend. ...

It is my assessment that Mr O'Shea remains at the same high risk of
    reoffending as he was prior to undertaking any treatment. He has
    actively argues against treatment and his need for it. He
    maintains a lifestyle that places him in a high risk for
    reoffending and it is my assessment that he is very unlikely to
    alter his current behaviours. He is completely
    unresponsive to any attempts to treat or counsel him with respect
    to his offender thinking and behaviours.

It is my assessment also that Mr O'Shea would not benefit from
    treatment in future because of his fixated views and hostile
    attitude.

The comments made in September, 1995 by Ms Ahrens to Mr Bailey
    concerning Mr O'Shea still apply:
    - he is self-focused and considers himself to be the victim of
    other people's abusive behaviour;
    - he has no appreciable understanding of the impact of his
    behaviours on his victims and no empathy for them;
    - he intellectualises and fails to demonstrate any congruence
    between thoughts and feelings;
    - his admissions of responsibility are at best, superficial;
    - he continually minimises his offending behaviour,
    - his account is at variance with material on record. There is
    also considerable variance between his stated poor health and
    presentation;
    - he is still denying the nature, impact, extent, significance of
    and responsibility for his offending."

14. On the hearing of the present application a somewhat remarkable situation developed. Mr Mancini sought to tender an affidavit of the applicant, said to traverse his version of factual events relevant to the historical background and generally in support of his application. When challenged as to the legal basis on which he was seeking to do so, Mr Mancini, argued that the application was of the nature of a civil, rather than a criminal, proceeding and that the Supreme Court Rules relating to civil procedure were applicable. He referred to SCR 83, which refers generally to the form of affidavits, where these may properly be used and the power of the court to order that a deponent attend for cross examination on his affidavit, on application of the other party.

15. Upon it being pointed out to Mr Mancini that, even if his assertion as to the generic nature of the proceedings was correct, affidavits are, generally, restricted in their use to interlocutory proceedings, and that the normal requirement, on a trial in open court, is for evidence to be by way of oral testimony (See SCR 78.01), he sought to invoke some general inherent power, for which he proffered no authority, other than to refer to articles written by Young J and published in 66 ALJ, 63 and 298 respectively - neither of which provide any basis of support for Mr Mancini's application.

16. Mr Mancini then sought to draw comfort from section 25 of the CLSA, which stipulates that -
    "Court may obtain reports
    25. (1) A court may, for the purpose of obtaining assistance in
    making a determination under this Division, require the Parole
    Board, the Training Centre Review Board or any other body or person
    to furnish the court with a report on any matter.

(2) A copy of any report furnished to a court under subsection (1)
    must be given to each party to the proceedings or to counsel for
    those parties."

17. He sought to contend that an affidavit was, in effect, a report from "any other person".

18. That submission was summarily rejected as untenable. Quite apart from the fact that the affidavit was, patently, not a 'report', it was not a document required by the court to be furnished, as contemplated by the section.

19. It must be said that, in proffering his submissions, Mr Mancini clearly signalled that, if the proposed affidavit was admitted, he would strongly resist any application that Mr O'Shea be cross-examined on it. In other words he sought to have his client make a variety of factual assertions and not be tested in relation to them.

20. Having declined to receive the affidavit over Ms Abraham's objection, I pointed out that the appropriate method of placing his version of the relevant facts before me was for the applicant to enter the witness box, give oral evidence and be cross-examined on it. Mr Mancini declined that invitation and elected not to call his client.

21. I have recited that situation at some length, because it speaks volumes as to Mr O'Shea's bona fides in this matter and his reluctance to be exposed to any investigation of his activities. It follows a somewhat similar stance adopted by him before the Parole Board in declining to answer certain questions, albeit that due regard had to be made to his right to silence in relation to any possible offences committed by him. His attitude is, however, quite significant in that he has rendered it quite impossible to explore the criticisms advanced by SOTAP and noted by the Parole Board.

22. I find it unnecessary to discuss in detail whether or not these proceedings are civil proceedings in nature.

23. The application seeks, inter alia, to invoke sections 23 and 24 of the CLSA and, procedurally, is one which is heard and determined in the criminal jurisdiction of the court. Certainly there is nothing in The Queen v Ryrie (1993) 64 A Crim R 332, relied up by Mr Mancini, to support his proposition.

24. He also made reference to the case of Kable v Director of Public Prosecutions (NSW) (High Court, 12 September 1996, unreported), but, once again, I am unable to perceive in it any support for the concept propounded by Mr Mancini. Indeed, in the course of his judgment, Toohey J refers to the fact that it is curious that the relevant statute, there under consideration, actually stipulated that the proceedings pursuant to it were 'civil proceedings' which attracted the civil onus of proof. He was obviously of the view that, in reality, they were criminal in nature.

25. True it is that the former case bears on issues of onus of proof under the relevant Victorian legislation, but I shall shortly return to it in a different context.

26. Mr Mancini called two witnesses to give evidence, Glanville and Ms Noelene Brown, a Senior Psychologist on the staff of Elizabeth Community Corrections.

27. I have already adverted to some aspects of Mr Glanville's evidence. Essentially, it touched on the personal support which he had already rendered to the applicant and the fact that, if the latter was again released on licence, he would be prepared to give him further substantial personal support and assistance. It was his thesis that, if the applicant was released, a small, multi discipline support group ought to be established to assist the rehabilitation of the applicant.

28. I do not doubt Mr Glanville's sincerity, or his genuine desire and willingness to assist the applicant in the future. On the other hand it must remain an open question as to the extent to which the latter has manipulated him in the past.

29. An assessment of the evidence of Ms Brown presents rather greater difficulty.

30. Before I embark upon that exercise it is necessary that I refer to the psychiatric reports made to the court by Professor Goldney and Dr Clayer, pursuant to an order made by me, pursuant to the CLSA, that such reports be compiled. I also had before me the update report by SOTAP, to which reference has already been made.

31. Both of these highly experienced and reputable psychiatrists had, as earlier indicated, previously seen the applicant in 1994, for the purpose of preparing the reports to which I have already made reference. They were able to utilise those reports as benchmarks. In addition to having personal update interviews with the applicant, they were also supplied with a substantial body of written material, which fleshed out the history above summarised.

32. The two reports did not express views which were completely identical, but both of them were couched in somewhat pessimistic terms.

33. In his report of 22 June 1996, Professor Goldney recited a case history given him by the applicant, including a series of explanations of activities during the period in which he had last been on licence. The Professor concluded his report as follows:-
    "From the general clinical psychiatric point of view, Mr O'Shea
    does not have a psychiatric illness which would cause him to be
    more likely than others to offend. However, using the broad term
    "mental condition", one must state that he is deficient in the
    capacity to exercise proper control. That has been demonstrated
    well by what has occurred recently in regard to him breaching the
    conditions of his parole.

Finally, it is pertinent to make comment on the additional
    treatment Mr O'Shea has had in this last two years. As indicated
    in my previous reports, I consider that treatment is not likely to
    effect a change in Mr O'Shea. Presumably persons attending the
    Sexual Offenders Treatment and Programme (SOTAP) do so with the
    view of pursuing therapy. I consider that that is not appropriate
    for Mr O'Shea. Occasional supportive visits with a supervising
    person with a view to ensuring that he adheres to his conditions of
    release would be the optimum management for him. I accept that Ms
    Brown appears to believe that there have been gains from her
    contact with Mr O'Shea. I have referred to my views of such
    optimism on page 7 of my earlier report, where I stated that "I
    consider that the helping professions run a risk of appearing to be
    somewhat na•ve in continuing to offer hope in terms of treatment".
    My views in that regard have not changed.

To summarise my views:

1. I consider that Mr O'Shea's psychiatric condition is unchanged
    and that he does not have a treatable psychiatric disorder.

2. Using the broad legally defined term "mental condition" I
    consider that Mr O'Shea has demonstrated that he can not exercise
    "proper control". I make this comment without any further
    exploration of the issue as to whether or not this is his choice or
    whether he is inevitably led to it by his psychopathology. From
    the practical point of view the issue is immaterial.

3. One cannot necessarily be dogmatic that Mr O'Shea would lose
    "proper control" of his sexual impulses, just as he has lost
    "proper control" of adhering to the conditions of his release.
    However, it would be na•ve to assert anything other than that if he
    loses control in the area as documented, there is every likelihood
    that he would similarly lose control with his other impulses.

4. I consider that it is inappropriate to pursue treatment in the
    sense of treatment effecting change for Mr O'Shea's condition. As
    noted before (page 7 of report 11/3/94), Mr O'Shea may gain some
    comfort when he feels generally distressed in speaking with "some
    form of counsellor or supervisor, but in terms of there being any
    hopes of effecting change in his basic personality I am
    pessimistic".

5. Should release for Mr O'Shea be considered appropriate, I have
    no further suggestions other than those made in regard to the
    previous conditions."

34. By way of contrast, Dr Clayer made these points:-
    "Before his most recent release on licence, I expressed the opinion
    that Mr O'Shea was able to control his sexual instincts but chose
    not to do so.

However, Mr O'Shea has repeatedly and determinedly expressed, often
    most plausibly, his wish to lead a useful and non-dyssocial
    existence. So plausible and convincing is he in this that several
    psychologists have come to his support, the most recent of these
    being Ms Noeline Brown.

His repeated re-offending, despite those assertions, is compatible
    with the diagnosis of Psychopathic Personality Disorder and
    suggests that his re-offending is part of that disorder. His
    previous release on licence in 1988 was terminated after Mr O'Shea
    began a Computer Club and, despite explicit instructions from the
    Parole Board, tried to extend this to children and made use of it
    to establish a relationship with a Mrs Mattsschous and her son
    Harlan, later introducing Harlan to a homosexual pederast Humphries
    who later absconded with Harlan.

...

As usual, Mr O'Shea had a somewhat complex explanation of these
    events, exonerating himself of any active aberrant behaviour.

On the second of my two most recent visits to Mr O'Shea (25/10/96),
    I asked him specifically about his repeated self-defeating anti
    social behaviour each time he has been released from prison,
    occurring at a time when he has been under close scrutiny. He said
    that he and Ms Brown have recognised that he has a 'self defeat'
    button that he presses every time he is released. Their hope is,
    he said, that they might eventually learn how to control this self
    defeat button.

I am forced to conclude, in the light of Mr O'Shea's continued
    self-defeating, dyssocial behaviour at a time he was under close
    scrutiny, and having lost his freedom so frequently before and
    recently, that as a result of his condition he lacks the capacity
    to make rational judgements and decisions about how to act,
    including how to act sexually. Whether or not that places him
    under the restrictions of Section 23 (12), will, of course, be
    decided by the Court."

35. In his report Dr Clayer re-iterates that he has always been of opinion that the applicant has a Psychopathic Personality Disorder, as defined in the relevant medical literature - a conclusion which Ms Brown seeks to challenge.

36. Whatever may be the rights and wrongs of that debate, it is to be noted that both psychiatrists are of the view that the applicant displays at least some of the recorded symptoms of that condition and Professor Goldney positively agrees that the applicant is certainly "deficient in the capacity to exercise proper control".

37. I, momentarily, digress to say that, as a matter of plain commonsense, that situation clearly emerges on a testing of the narrative facts against the diagnostic criteria set out in Dr Clayer's report.

38. I must confess to some difficulty with Ms Brown as a witness. It seemed to me that, eventually, she shifted ground, to some extent, under cross-examination. Moreover, I was left with the impression that the warning sounded by Professor Goldney was timely. There can be no doubt that the applicant is a highly intelligent and manipulative personality and that there has been a realised danger of persons in the helping professions becoming somewhat na•ve. I take Dr Clayer also to share such a view and, with all due respect, I have the very uneasy feeling that Ms Brown has, to some extent at least (and like others before her), fallen victim to the na•vety postulated - despite her fervent assertions that, in effect, she has brooked no nonsense from the applicant and has maintained a totally clinical and objective overview of him and his situation. I view her reports and evidence with some caution, although I do not question her integrity or sincerity.

39. She conducted a series of seven or eight counselling sessions, which commenced on 5 October 1995 and continued up to February 1996. She also saw him 3-4 times after he had been taken into custody and has communicated with him by telephone weekly or fortnightly since.

40. As I understand her thesis, Ms Brown contends both that the accused cannot properly be diagnosed in the manner propounded by Dr Clayer and also that - contrary to the pessimistic views expressed by other professionals, he can be assisted by ongoing psychological treatment and does not necessarily present a significant risk to the community, if released on licence.

41. I digress to mention that her quarrel with Dr Clayer's diagnosis, in large measure stems from her contention that it is an essential pre curser to such a diagnosis that the person concerned has, prior to the age of 15, manifested a persistent problem of inappropriate, stipulated types of behaviour, and that this is a history not demonstrated in the applicant. The problem with this is that there is a dearth of material before me on this aspect and the applicant certainly did not enlighten me as to his early history. What is recorded is that he had a very traumatic early childhood history, which involved sexual abuse and physical ill treatment by his father. Indeed a written report by the Ms Brown tends to infer that this may have provoked early adverse behaviour patterns by him.

42. She commented in her report of 16 May 1996 -
    "Mr O'Shea is unlikely to receive any psychological or therapeutic
    treatment if he remains in prison. I have continued to be involved
    with him to this point because of the particular nature of this
    case, and my professional opinion that he needed the ongoing
    support for his emotional and psychological well-being. I am
    concerned as to the effect on his mental health of a prolonged stay
    in prison. His concerns for his physical safety in prison also
    contribute to his mental and emotional state.

During the course of our therapeutic relationship Mr O'Shea has
    expressed a growing trust in me and has begun to address issues of
    guilt, anger and victimisation. He has asked to continue sessions
    with me upon his release to deal with these unresolved
    psychological issues. I believe some progress has been made
    already while being mindful of the judgements, evaluation and often
    poor prognosis predicted by other professionals who have been
    involved with Mr O'Shea in the past.

Mr O'Shea has proposed that he undergo chemical treatment with the
    drug Andracour. This is to satisfy the Parole Board and the
    community that he is sincere in his resolve not to re-offend.
    Whether Andracour is used or not I would be willing to continue
    working with Mr O'Shea. My intention would be to design a program
    together with Mr O'Shea to systematically work through agreed
    issues using a Schema-focused Cognitive Therapy approach. Issues
    of victimisation and anger would be of particular focus.

I am also willing to provide at least a consultative role if the
    support/monitoring group, as proposed by Mr Glanville should
    eventuate. I do believe that ongoing support with accepting people
    is crucial if Mr O'Shea is ever going to be able to re-construct
    his life in any meaningful way."

43. As to her other evidence generally, these factors must be noted -

- I am by no means satisfied that, in giving evidence, Ms Brown had
    a full appreciation of all relevant aspects of the applicant's past
    conduct and activities.

- Her assessment that the applicant is extremely remorseful and,
    seemingly, has no interest in being involved with children is
    difficult to reconcile with the very reasons for his recall to
    custody; and seems to me to exhibit a somewhat na•ve approach,
    which does not adequately allow for the manipulative facets of the
    applicant's character.

- A very strong plank in her contentions, is that, as she expressed
    it - " ... if he is going to be integrated back into the community,
    he has to be allowed to be a part of the community, however
    restricted that is ..." Having said that, she accepted that - given
    her quarrel with Dr Clayer's diagnosis - the applicant does exhibit
    a behavioural problem; although she does not consider that this
    indicates any inability to control his sexual instincts.

- She considers that there are, to her observation, signs that the
    applicant may, at last, be developing some insight into his past
    and present conduct in a meaningful and constructive manner and
    that, in a community environment and with proper help, positive
    rehabilitation may be a realistic possibility. She is impressed by
    what she sees as his expressed motivation in that regard.

- Ms Brown argues that, to date, she alone has been able to develop
    a trusting relationship with the applicant and that the adverse
    SOTAP report merely represents both the inappropriateness of its
    programme for the applicant's needs and the fact that no trust
    relationship was established.

- It is her assessment that, if the applicant remains in custody
    she will be unable to do much to assist him (as she would be
    willing and able to do if he was released) and that the future
    prognosis as to rehabilitation will be poor. He requires
    meaningful objectives in his life, which he will not be able to
    develop in prison. His prolific writing is, she argues, an attempt
    to develop some meaningful focus.

- Ms Brown decries the stress placed on the use by the applicant of
    false names. She contends that this simply reflects the fact that
    his real name is so notorious and reviled in the community that to
    resort to a false name is understandable. In this regard it is of
    interest that she conceded that, despite the trust which had,
    ostensibly, generated, the applicant did not volunteer to her that
    he had been corresponding under false names. She, however, argued
    that the applicant had, nevertheless, ceased his letter writing
    shortly after she commenced counselling him.

- In her cross examination she placed great stress on an assessment
    by her that other professionals appear not to have given adequate
    consideration to a very real possibility that the applicant may be
    suffering a post traumatic stress syndrome arising from his early
    childhood abuse, which could explain his continuing patterns of
    behaviour. It seems to be her present predominant view that this
    needs investigation and that treatment addressed to it may well be
    an essential first step which could well have beneficial results.
    She appears to consider that the very experienced psychiatrists who
    have reviewed the applicant over a considerable period of time have
    essentially overlooked such a possibility and have, like SOTAP,
    placed him in what she describes as "the too hard basket".

- As to this it must be commented that there has been no attempt by
    Mr Mancini to require the psychiatrists to attend for cross-
    examination on their reports, nor has the applicant sought to
    rebut their conclusions with other psychiatric opinion or
    professional evidence apart from that of Ms Brown. Moreover, on a
    careful appraisal of her evidence, which seems to desire to ignore
    the long, repetitive pattern of the applicant's behaviour, her
    present predominant thesis seems to be of very recent origin and
    does not find expression - or at least definitive expression - in
    her detailed written report prepared as recently as 16 May, 1996.
    It is a theory which seems to have crystallised in the course of
    her present evidence and firmed up when pressed in cross-
    examination.

44. I am, frankly, not impressed by it and remain very sceptical as to the reality of the basis of Ms Brown's optimism.

45. Against the foregoing background I now turn to the major issues arising for determination.

46. I must, immediately, say that I do not consider that there is any substance in the contention of Mr Mancini that sections 23 and 24 of the CLSA have no application to the situation of the applicant. Such a contention flies in the face of the clear intention of the legislation.

47. The CLSA was proclaimed to come into operation on 12 May, 1988, at which time related amendments were proclaimed to come into affect in relation to a variety of other statutes, by virtue of the enactment of Act 51 of 1988 (the Statutes Amendment and Repeal (Sentencing) Act, 1988) ("the SAR Act").

48. Prior to that time the CLCA stipulated that incarceration of indeterminate duration could arise in any one of three separate situations, namely:-
    - by reason of a declaration, pursuant to section 77, that a person
    convicted of specified sexual offences was suffering from a
    venereal disease.

- by reason of a declaration, pursuant to section 77a, that a
    person convicted of specified sexual offences was incapable of
    exercising proper control over his sexual instincts.

- by reason of a declaration, pursuant to section 319, that a
    person, having fallen within the category of persons prescribed by
    the section, was an habitual criminal.

49. The intention of the CLSA, as its name implied, was to gather together in the one statute and promulgate a regime of sentencing principles and provisions, to be applied generally. This modified and modernised former approaches found in a series of other statutes, including the CLCA.

50. In the result sections 77, 77a and 319 of the CLCA were repealed and, to the extent desired by Parliament, the topics covered by them were dealt with in the then new CLSA.

51. So it was that the statutory regime related to offenders incapable of controlling sexual instincts found expression in sections 23-26 inclusive of the latter enactment.

52. It is to be noted that, in section 3 of the CLSA, the expression 'sentence of indeterminate duration' is defined as "detention in custody until further order". That expression was not employed in the CLCA (in the form in which it stood April to 12th May, 1988). It was, however, found in section 4 of the Correctional Services Act 1982, in which it attracted a definition of that phrase as meaning "detention during Her Majesty's pleasure, or the Governor's pleasure".

53. The SAR Act did not contain such a definition for its purposes. However, by section 14, it directed that, the then existing definition, to be found in the Correctional Services Act, was amended to read that the phrase "means detention in custody until further order of a court".

54. It is to be noted that the phrase in question treats detention in custody as being of the nature of a sentence, however it came about. It is not, in terms, limited to detention by virtue of a sentence of imprisonment. It is to be remembered that, under the sections to which I have referred, none of the provisions for detention formed portion of any relevant sentences. They operated independently and in addition to any sentence imposed.

55. In the transitional provision contained in section 80, the SAR Act (inter alia) provided that -
    "80. (1) Subject to this section, nothing in this Act affects -
    (a) the validity of a sentence of indeterminate duration
    (detention at Her Majesty's or the Governor's pleasure) being
    served, or to be served, by a person pursuant to an order of a
    court made before the commencement of this Act under a provision
    repealed by this Act;
    or
    (b) the validity of the release on licence by the Governor of such
    a person before the commencement of this Act.

(2) On the commencement of this Act -
    (a) a sentence of indeterminate duration referred to in subsection
    (1) will, subject to subsection (3), be taken to be a sentence of
    indeterminate duration imposed under the Criminal Law (Sentencing)
    Act, 1988;
    and
    (b) a release on licence referred to in subsection (1) will be
    taken to be a release on licence under that Act by the Parole Board
    or the training Centre Review Board, as the case may require, on
    the authority of the Supreme Court.

..."

56. It must be stressed that, at the time of the operation of the transitional provision, the only periods of detention in custody until further order upon which they could possibly attract were periods of detention arising under sections 77, 77a or 319 of the CLCA, all of which were, as subsection (1) contemplates, detention at Her Majesty's or the Governor's pleasure. There were simply no other provisions arising under State law to which the expression could apply.

57. As was pointed out in The Queen v Di Maria, Hudson and Pehlivanides (Court of Criminal Apeal, (1996) 67 SASR 466) it is appropriate to adopt a purposive approach to interpretation which reflects that espoused by section 22(1) of the Acts Interpretation Act, 1915 (SA).

58. Despite the insistent argument of Mr Mancini to the contrary, the inevitable conclusion must be that, in enacting section 80, the legislation intended it to apply to all the existing periods of detention. If it were otherwise there would be no work for the transitional provisions to do. Manifestly, the intention of the legislation was to update the provisions related to custody of indeterminate duration (being 'detention at Her Majesty's or the Governor's pleasure'), incorporate them in the new CLSA and ensure that the new sections 23 and 24 of that statute would, inter alia, be applicable to persons then currently being detained under provisions such as the repealed section 77a of the CLCA. Parliament would scarcely have intended to leave such persons in some form of limbo and proceeded to solemnly enact section 80 without intending it to be applicable to the actual situation which existed at the time.

59. I therefore reject Mr Mancini's argument on that score.

60. Next, Mr Mancini asserted that, in bringing his application, the applicant bore no onus at all. As earlier indicated, he based that contention substantially on what fell from the Court of Criminal Appeal in The Queen v Ryrie.

61. It seems to me that the reasoning in that case is simply not relevant to the present situation. The Court was there reviewing a statute related to a situation in which a person sentenced to death for murder in 1966 had had his sentence commuted by the Governor to life imprisonment, with a minimum term of 40 years before being eligible for parole.

62. Having served 26 years, he applied for an order, pursuant to section 132(2) of the Sentencing Act (Vic), to fix a non parole period. The judgments of the three members the Court are not easy to reconcile as to their processes of reasoning. However, the ratio of the case appears to be that, because, under the terms of the statute, the intention of the legislature was that the Court should fix a non parole period unless the nature of the offending or the past history of the offender rendered that inappropriate, an applicant bore no particular onus of proof.

63. That is a far cry from the situation currently before me, in which there is no presumption at all in favour of release from custody. The applicant is presently subject to detention for an indeterminate period. He is to remain in custody until the court is persuaded either that it is proper to discharge the order for detention pursuant to section 23 or, alternatively, that it is appropriate to release him on license in accordance with section 24.

64. It is to be observed that section 23 specifically stipulates that -
    "(12) The Supreme Court may not discharge an order for detention
    under this section unless -
    (a) it has first obtained and considered the report of at least two
    legally qualified medical practitioners each of whom has
    independently examined the person; and
    (b) having taken into account both the interests of the person and
    of the community, it is of the opinion that the order for detention
    should be discharged."

65. By way of contrast, section 24 merely provides that the court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.

66. Curiously, section 24 does not stipulate any test to be applied in considering such an application. Mr Mancini argued that the absence of such a stipulation negated considerations of the nature of section 23
(12)(b), although he seems to have accepted that the predominant test to be applied was whether or not there is, at the present time what he termed as a "serious and substantial risk" to the community of re- offending sexual behaviour on the part of the applicant - as to which, he said, the applicant bore no burden of proof at all.

67. I am not sure that, in de facto terms, the test to be applied under the two sections is significantly different. What is involved, in both situations, is essentially a balancing exercise, in which what is best in the interests of the applicant must be weighed against the risk to the community if the applicant is released. Clearly any substantial risk to the community of recidivist behaviour on the part of the applicant must be a matter of great moment.

68. In my opinion, on making an application under either section, the applicant plainly bears an onus of establishing that, notwithstanding he is subject to a period of indeterminate detention, the circumstances are such that it is proper that he be released into the community; and that there is no substantial risk of recidivist behaviour if he is so released.

69. It is a tenet of first principle that the person who comes to the court seeking relief from it generally bears the legal burden of proving that the circumstances are such that there is an entitlement to that relief (cf the reasoning in Dickinson v Minister of Pensions [1953] 1 QB 228 at 232). That person must, as a matter of common sense, discharge the burden of establishing the existence of all facts and circumstances essential to satisfy the legal basis for the relief sought. (Cross on Evidence 3rd Australian Edn (1986) at 177). In the instant case the burden falls on the applicant of demonstrating that, on the balance of probabilities, the factual circumstances warrant one of the forms of relief sought.

70. In doing so the question to be posed is not that which Mr Mancini propounded. I took him to assert that the applicant, having adequately been punished, by a recall to custody for a period of time, for his breach of licence conditions, the slate was now clean and, prima face, he ought again to be released. This is, I consider, not a relevant method of assessing the merits of the application at all.

71. The real issue is not one of proper punishment for former breaches of licence, and of proportionality of punishment in relation to these breaches, but one of whether, at this point in time, the applicant has demonstrated that the court may, with confidence, authorise his release into the community without serious potential risk of recidivism, in terms of sexual offending, on his part.

72. As to this the following matters seem to me to be of particular importance -
    (1) Previous flushes of optimism as to the likely behavioural
    improvement of the applicant have all been proven to be ill
    founded. Not only has he repeatedly breached licence conditions,
    but there is a disturbing pattern of similarity in the nature of
    those breaches. He has, apparently, learnt little or nothing from
    past recalls into custody.

(2) The real gravamen of his conduct is not so much his flaunting
    of authority and the breaches of agreed conditions per se, as the
    insight which those breaches give into his mental processes. It
    matters not whether the professionals are able accurately to place
    some specific diagnostic label on his condition of the mind. The
    plain fact is that, for whatever reason, the inevitable conclusion
    is that expressed by Dr Clayer - that the mental state of the
    applicant is such that he lacks the capacity to make rational
    judgments and decisions about how to act, including how to act
    sexually.

(3) I take Professor Goldney, in effect, to share that view and
    the views of both psychiatrists to be that, if the applicant is
    released into the community, there is every likelihood that, sooner
    or later, he would lose control of his sexual impulses unless some
    regime could be devised to detect and prevent such a possibility.
    On this occasion there is far more unanimity between the
    psychiatrists and between them and SOTAP, than there was in
    relation to the application before Mohr J in 1994. Dr Clayer and
    Professor Goldney have obviously taken careful account of the
    applicant's conduct since then.

(4) Such is the intellectual capacity, manipulative conduct and
    deviousness of the applicant that even the most stringent licence
    conditions have failed to prevent him from a clandestine resort to
    strategies designed to circumvent those conditions; and which all
    have some flavour relating to potential or actual activities with
    young children.

(5) Despite the impression which he has managed to make on Ms
    Brown, the evidence strongly indicates that "the leopard has not
    changed its spots." Despite his assertions of remorse to her and
    her feeling that he has gained a better insight of himself and the
    impact of his activities on his victims, it is very significant
    that the applicant has treated the SOTAP programme almost with
    disdain; and has been completely unresponsive to its counselling
    endeavours. It is fair to say that the SOTAP assessment is at
    total odds with that of Ms Brown and is merely reflective of the
    applicant's almost constant disregard of his licence conditions.
    The evidence strongly points to the accuracy of the ominous
    assessments that the applicant is -
    - self focused
    - has no appreciable appreciation of the impact of his behaviour
    on his victims and no empathy for them.
    - minimises his behaviour and expresses admissions of
    responsibility that are superficial.

(6) I conclude that Ms Brown has been the victim of the applicant's
    manipulative behaviour and that Professor Goldney is quite correct
    in his assessment that, although the applicant has aged two years
    since 1994, his presentation indicates that there has not been any
    change in his manner of thinking, or his degree of control.

73. In net terms the situation has been arrived at in which, despite a series of attempts to rehabilitate him and the affording him a number of attempts to demonstrate his capacity for rehabilitation, the applicant, cannot, to put it bluntly, be trusted to do the right thing. Whilst it is true that he has not in recent times, actually engaged in direct sexual impropriety, that is scarcely the point at issue. His conduct is indicative of an inability, or unwillingness, to control his impulses in a manner which the professional experts fairly conclude indicates that sexual misconduct is an ever present risk. His failure to give evidence re-inforces my doubts as to his sincerity in relation to his interaction with Ms Brown, although I by no means found my decision substantially on that aspect.

74. It is my conclusion that the applicant has not discharged his onus of demonstrating that it is proper to accede to either of his applications. To do so would be to place the community at unacceptable risk, without resort to community resources to police his conduct which are utterly disproportionate to any likely progress towards rehabilitation.

75. In so saying I do not suggest that all attempts towards rehabilitation ought to be abandoned. On the contrary, I consider that all reasonable steps ought to be taken to provide the means of achieving this; and to afford the applicant an opportunity of demonstrating, if he can, that he is genuinely motivated to participate, in a constructive manner, in appropriate psychological counselling and therapy. It is surely not impossible for the correctional authorities to arrange for this whilst the applicant is in custody. After all, Ms Brown, for example, is employed by the Department for Correctional Services and could, presumably be made available, if that was felt appropriate. No doubt SOTAP could assist, if the applicant demonstrated a genuine change of attitude and preparedness to co-operate. If need be, special leave, or attendance under escort, could be granted to enable the applicant to attend appropriate therapy sessions.

76. However, until a marked and sustained change in attitude is manifest I see little prospect of the making of an order under either section 23 or 24 of the CLSA.

77. Both applications are refused.