State of New South Wales v Brookes

[2008] NSWSC 150

CITATION:	State of New South Wales v Brookes [2008] NSWSC 150
HEARING DATE(S):	13 February 2008
JUDGMENT DATE :	19 February 2008
JUDGMENT OF:	Fullerton J
DECISION:	(1) Pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act, the defendant is to be detained at a correctional centre on an interim basis for a period of 28 days from 21 February 2008. (2) Pursuant to s 20(1) of the Crimes (Serious Sex Offenders) Act, I order that a warrant issue for the committal of Alexandria George Brookes to a correctional centre for the period specified in order (1) above.
CATCHWORDS:	Serious sex offender - Continuing detention order - Extended supervision order
LEGISLATION CITED:	Child Protection (Offenders Registration) Act 2000 Crimes (Serious Sex Offenders) Act 2006
CASES CITED:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Tillman v Attorney General for New South Wales [2007] NSWCA 327
PARTIES:	State of New South Wales (Plaintiff) Alexandria George Brookes (Defendant)
FILE NUMBER(S):	SC 2008/10456
COUNSEL:	L Babb SC/N Sharp (Plaintiff) M Johnston (Defendant)
SOLICITORS:	Crown Solicitor of New South Wales (Plaintiff) Catherine Hunter (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

FULLERTON J

19 FEBRUARY 2008

2008/10456 STATE OF NEW SOUTH WALES v ALEXANDRIA BROOKES

JUDGMENT

HER HONOUR:

1 On 20 January 2008 the plaintiff, the Attorney General for the State of New South Wales, brought an application under the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) by summons seeking final relief in respect of the defendant in the form of a continuing detention order for a period of five years pursuant to Part 3 of the Act, or in the alternative, an extended supervision order for the same length of time pursuant to Part 2 of the Act.

2 Section 9(2) of the Act provides that 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 not kept under supervision. Section 17(3) provides that 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 not kept under supervision, and that adequate supervision will not be provided by an extended supervision order. Section 17(1) allows for the making of an extended supervision order where application is made for a continuing detention order.

3 Section 6 of the Act, provides that the State of New South Wales may only make an application for orders for continued detention or extended supervision, whether on a final or interim basis, in respect of a person who is:

(a) a “sex offender”; and
(b) either serving a sentence of imprisonment for a “serious sex offence” or an “offence of a sexual nature”.

4 Mr Brookes is currently imprisoned at the Long Bay Correctional Complex, serving a sentence of 12 months imprisonment following his conviction for failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (“the Offenders Registration Act”). That sentence expires on 21 February 2008. He is due to be released from custody on that day.

5 By operation of s 5(2) of the Act, a contravention of the Offenders Registration Act is deemed to be an “offence of a sexual nature” thereby meeting the requirements of s 6(1)(b) of the Act. The reporting obligations under the Offenders Registration Act were imposed upon Mr Brookes as a consequence of his conviction on 20 September 2001 in respect of one count of aggravated indecent assault upon a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900. He was sentenced to a term of imprisonment following conviction. For this reason, he meets the statutory definition of a “sex offender” as provided for in s 6(1)(a) of the Act. Accordingly, and despite the fact that he is not presently serving a term of imprisonment for a serious sex offence, Mr Brookes is a person who is susceptible to the orders the plaintiff seeks.

6 Because of his imminent release from prison as at the date of filing the summons, the plaintiff sought an expedited hearing of that part of the application that seeks interim relief in the form of an interim detention order for a period of 28 days to date from 21 February 2008 as provided in s 16(1) of the Act or, alternatively, an interim supervision order of the same duration as provided for in s 8(1) of the Act (the “interim orders”). Section 16 provides as follows:

“(1) If, in proceedings on an application under this Part for a continuing detention order, it appears to the Supreme Court:
(a) that the offender’s current custody (if any) will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order,
the Supreme Court may make an order for the interim detention of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.
(3) An order under this section may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months” (emphasis added).

Section 8 is in relevantly similar terms.

7 On 30 January 2008, Johnson J granted expedition. The matter was listed before me for hearing on 13 February 2008.

8 On behalf of the plaintiff, Mr Babb SC submitted that by reference to the supporting documentation, the jurisdiction to make an interim detention order under s 16 of the Act is made out on either of the alternate bases in s 16(1)(b) and further, that at this time an order for the maximum statutory period of 28 days is the only appropriate order.

9 On the defendant’s behalf, Mr Johnston of counsel submitted that no case for the making of an interim detention order had been made out and, notwithstanding the fact that the supporting documentation would justify making an extended supervision order, thus enlivening the jurisdiction to make an order for interim detention as provided for in s 16(1)(b), I should nevertheless refuse to make that order in the exercise of my residual discretion. Without conceding that final orders ought be made, he conceded on his client’s behalf that an interim supervision order, in the terms proposed by the plaintiff, were acceptable.

10 The plaintiff’s application was supported by affidavit evidence from Mr Patrick Sheehan and Dr Christopher J Lennings, both psychologists, Ms Sue Knight, the Acting Superintendent of the Community Compliance Group (the “CCG”), Ms Sarah Brennan of the Probation and Parole Service and an affidavit from Mr Denes Blazer, solicitor, which had exhibited to it seven lever arch folders of material comprising material organised as follows:

EXHIBIT DMB-1: Documents relating to Mr Brookes’ convictions (including his antecedents, facts sheets, charges, indictments, witness statements and sentencing remarks);
EXHIBIT DMB-2: Psychology and psychiatric reports relating to Mr Brookes, including test scoresheets;
EXHIBIT DMB-3: Extracts from Mr Brookes’ Probation and Parole file;
EXHIBIT DMB-4 (VOL. 1): The first volume of Mr Brookes’ Justice Health file;
EXHIBIT DMB-4 (VOL. 2): The second volume of Mr Brookes’ Justice Health file;
EXHIBIT DMB-5: Extracts from the Department’s Case Management file in respect of Mr Brookes;

EXHIBIT DMB-6: The orders under s 25 of the Act issued to date.

11 This material (“the supporting documentation”) is ultimately directed to whether the plaintiff is able to satisfy this Court on a final hearing that the statutory preconditions for making a continuing detention order for a given period are established by reference to the matters set out in s 17(4) of the Act or, in the alternative, an extended supervision order having regard to the matters set out in s 9(3) of the Act. In each case, that requires the Court to be satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if not kept under supervision and, in the case of a continuing detention order, a high degree of probability that adequate supervision will not be provided by an extended supervision order.

12 The proceedings before me were not listed for final orders. The hearing before me was limited to whether the plaintiff had made out a case to extend the defendant’s custody beyond his release date for a period of 28 days (or to require him to be subject to supervision beyond his release date for a similar period) effectively so as to enable the case for final relief to be heard and determined in circumstances where his release is imminent. The supporting documentation is, however, also relevant to the determination of that question since, by operation of s 8(1)(b) and s 16(1)(b) of the Act (provisions concerned only with the power to make interim orders for detention or supervision), I am required to consider that material to see whether it would, if proved, justify the making of final orders. As I am only required to review the material for that purpose, it does not fall to me to determine the evidential weight of the supporting documentation or to predict whether the final orders will or ought be made based upon that documentation (see Attorney General for New South Wales v Tillman [2007] NSWCA 119). Rather, I am to proceed on the basis that the power to grant interim orders is enlivened where, after considering the supporting documentation I am satisfied that if it were proved it would justify the making of either category of final order. While I am mindful of the elevated standard of proof provided for in s 17(2) and s 17(3) of the Act (see Tillman v Attorney General for New South Wales [2007] NSWCA 327), it is not for me to decide whether the matters alleged in the supporting documentation would in fact satisfy the further test in s 17(3).

13 The test for determining whether the jurisdiction to make interim orders has been enlivened has been likened to the prima facie test in committal proceedings. Approached in this way, if I come to the view that a prima facie case exists for the final relief sought, the jurisdictional test for making interim orders is satisfied. It then falls to me to consider whether an interim order for continued detention should be made as matter of discretion as provided for in s 16(1) of the Act.

14 Even at the interim stage, however, it is appropriate that I take into account the dual objectives of the Act, namely to ensure the safety and protection of the community and to facilitate the rehabilitation of serious sex offenders. In considering interim orders, it is also appropriate to give weight to risk avoidance.

15 Mr Brookes gave evidence before me and was cross-examined. The determination of the threshold question, namely, whether the power to grant an interim order for detention or supervision is enlivened, must be considered without taking that evidence into account. For that reason, those aspects of Mr Brookes’ evidence that addressed, inter alia, his past offending and his current attitude to it, and the reasons why he would not participate in the Custody Based Intensive Treatment (“CUBIT”) program, were not available to cast doubt upon, or to qualify the detailed review and historical analysis of those matters in the supporting documentation (see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]). Accordingly, Mr Brookes’ evidence was only capable of bearing upon the residual discretion as to whether to make an interim detention order where the requirements of s 16 are otherwise satisfied. To the extent that I refer to his evidence, it is for that limited purpose.

16 In recognition of the way I am to approach the matter, I have not been invited by either the plaintiff or the defendant to read in detail through the vast body of material that is tendered in support of the application. The chronology of relevant events prepared by the plaintiff is cross-referenced to what would appear to be the primary documents within the seven lever arch folders exhibited to Mr Denes Blazer’s affidavit. I have considered that material.

17 I have also given close attention to the affidavit of Mr Sheehan and, in particular, the risk assessment report dated 19 December 2007 annexed to that affidavit. I note that Mr Sheehan has prepared earlier reports, in particular a Psychological Pre-sentence Assessment in May 2007. While this report was expressly for the purpose of sentence proceedings in respect of the term of imprisonment that Mr Brookes is currently serving, it also addresses the related issues of risk assessment and risk minimisation. By contrast, the December report addresses the risk of Mr Brookes re-offending by reference to the matters referred to in s 17(4) of the Act, matters I am required to have regard to in accordance with the principles to which I have already referred. I will refer in some detail to those matters in due course. In addition, by reason of Mr Sheehan’s review of earlier risk assessment reports, together with his review of the reports of other health care providers, forensic physiatrists and reports from services with whom Mr Brookes has had contact over many years, his evidence has given me considerable insight into Mr Brookes’ current mental health and psychosocial functioning from an historical perspective.

The defendant’s background and criminal history

18 Mr Brookes was born on 13 September 1964 and is currently 43 years old. It would appear that he had a fractured family life with various of his siblings being placed in foster care from an early age. It also appears that he was the victim of sexual abuse as a child and that deviant sexual behaviour and other anti-social behaviour was first displayed in his early to mid childhood. As a consequence, he had a strained relationship with his immediate family in his formative years and has had no contact with them for some time. His father is deceased and his mother resides in a nursing home.

19 His first encounter with the criminal justice system was at age 13 and his first conviction against the general criminal law was at age 15 when he was convicted of arson and sentenced to a period of detention at Mount Penang Juvenile Detention Centre. On his release from detention, he was initially placed in a community facility with a view to ultimately being returned to the care of his natural parents. Whilst this was initially acceptable to his parents, within a very short period of time they informed the District Officer associated with their son’s probation that they were no longer willing to care for him. It appears that from this time he lived a largely itinerant life involving frequent encounters with the criminal justice system and the probation and parole service. Such employment as he was able to secure was unskilled and for the most part it would seem he was either in receipt of sickness benefits or unemployment benefits.

20 In August 1986, at age 21, he enticed a two year old child to leave its mother at a suburban railway station thereby attracting the provisions of s 91 of the Crimes Act 1900 (since repealed). He was stopped by a member of the public as he endeavoured to take the child into a public lavatory. Following his commitment for trial to the District Court in February 1987 he was sentenced to imprisonment for a period of two years. A non-parole period of 12 months was fixed.

21 In July 1987, Mr Brookes was released to parole. Whilst in custody he formed a relationship of a sexual nature with a cellmate. The two men conspired to abduct three children aged six, seven and eight years respectively and, within weeks of their release, the three children were taken from their home in Sydney to Brisbane by the two men whereupon each of the children was sexually abused on multiple occasions. Both men were charged with offences against the Queensland Criminal Code, attracting, in Mr Brookes’ case, a total sentence of 11 years imprisonment. These offences were committed whilst Mr Brookes was on parole for the earlier offence of abduction. In his evidence before me, Mr Brookes did not seek in any way to challenge the conviction. He gave evidence that he was motivated to breach the law in this way as revenge against what he perceived to be his own unfair treatment by society and in retaliation to the sexual abuse he had suffered as a child.

22 During the course of his 11 years in custody in Queensland, Mr Brookes was offered a place in a sex offender treatment program. I will turn to consider the extent of his participation in that program in due course, it being one matter to which I must refer under s 17(4)(e) of the Act.

23 In January 1999, Mr Brookes was released from custody in Queensland at the expiration of his head sentence. It would appear that for this reason he was not subject to any post-release supervision. He gave evidence that, notwithstanding his period of time in custody in Queensland and his participation in the sex offender treatment program at that time, he believed that upon his release there was some likelihood that he would re-offend as his anger and feelings of revenge had not dissipated.

24 Between January 1999 and February 2000, Mr Brookes had three encounters with the Queensland criminal justice system for minor matters none of which attracted custodial sentences. However, one year later, he again misconducted himself in relation to a child in New South Wales when he indecently assaulted a boy aged nine by luring him into a lavatory at a church gathering. He was charged with aggravated indecent assault upon a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 and, on 20 September 2001, following a plea of guilty, he was sentenced in the District Court to imprisonment for three years and six months with a non-parole period of 18 months. The court directed that Mr Brookes be released to parole at the expiration of the non-parole period in April 2003, however it would appear that he was not released to parole, in part at least, by reason of his conduct in prison.

25 He gave evidence that the January 2001 offence, committed two years after his release following the completion of the 11 year sentence in Queensland, was again motivated by anger and revenge against his parents and against a society which in his perception did not afford him protection as a child. Within three months of his sentence commencing in New South Wales, he was admitted to the CUBIT program. The significance of his marked lack of progress as a participant in that program is also a matter I am required to consider pursuant to s 17(4)(e) of the Act.

26 On 20 July 2004, Mr Brookes was released following the expiration of the head sentence imposed in September 2001. He was, however, from that time subject to reporting obligations under the Offenders Registration Act. He has since failed to comply with his reporting obligations on multiple occasions. This is a matter to which section 17(4)(g) of the Act refers as a matter bearing upon whether a continuing detention order ought be made.

27 In January 2005, Mr Brookes entered a plea of guilty to two counts of failing to comply with his reporting obligations and was sentenced to eight months imprisonment commencing from 20 December 2004 with a non-parole period of one month. This offence related to his failure to formally register information with the New South Wales police and his failure to notify them of a change of address. On that occasion the court directed that he be released to parole on the expiration of the non-parole period, that is, on 19 January 2005. On 18 January 2005, the parole board revoked that order. Accordingly, he served the balance of the head sentence of nine months being released again without supervision on 19 August 2005.

28 In September 2005, he was served with a form again notifying him of his reporting obligations under the Offenders Registration Act. His registered residence at that time was 10/28 Eastern Avenue, Revesby, New South Wales.

29 In December 2006, 16 months later, he again breached his reporting obligations by changing his place of residence to Queensland without notifying New South Wales police.

30 In February 2007, on his return to New South Wales, Mr Brookes was arrested and taken into custody. He remained in custody, bail refused, until 23 May 2007 when, following a plea of guilty, he was convicted of one count of failing to comply with his reporting obligations. This attracted a sentence of 12 months imprisonment to commence on 22 February 2007.

31 It is that sentence that is due to expire on 21 February 2008.

32 In summary, since the offence relating to the abduction of the children in August 1986, Mr Brookes has spent long periods in custody. He has only been at his liberty for the following periods:

(a) from 7 July 1987 to 16 July 1987 (nine days);

(b) from 5 January 1999 to 21 January 2001 (just over two years);

(c) from 20 July 2004 to 20 December 2004 (five months); and

(d) 19 August 2005 to 22 February 2007 (18 months).

Current psychological functioning/results of the psychological assessments: s 17(4)(c) of the Crimes (Serious Sex Offenders) Act

33 Both Mr Sheehan and Dr Lennings express the opinion that Mr Brookes presents a high risk of committing a further sex offence. This is an opinion based on the results of both an actuarial and a dynamic risk assessment. The actuarial assessment is drawn from static factors, principally Mr Brookes’ past criminal history, while the dynamic risk assessment takes into account variable factors personal to Mr Brookes and which are, or might be, amenable to treatment. Although Mr Brookes participated in the pre-sentence assessment undertaken by Mr Sheehan in May 2001, he did not consent to the assessments being made for the purpose of these proceedings and therefore was not interviewed by either Mr Sheehan or Dr Lennings. Mr Sheehan was able to draw on direct contact with Mr Brookes in May 2007 while Dr Lennings based his conclusions on a review of Departmental files.

34 Mr Brookes scored nine on the static risk assessment. In the normative sample 39 per cent of individuals with the same characteristics as Mr Brookes, on average, re-offended over five years and 45 per cent over ten years. This rating places Mr Brookes’ score within the category of high risk relative to other male sex offenders. Given that a score of six is sufficient to reach the high risk category, Mr Brookes’ score of nine satisfied Mr Sheehan that he was well within the high risk category.

35 The dynamic risk factors most germane to the risk assessment undertaken by Mr Sheehan were as follows:

(a) Sexual impulsivity, sexual preoccupation and poor sexual boundaries;
(b) A limited ability to effectively make and maintain secure interpersonal relationships which both impacts negatively on his potential to draw on support from others and which may generate high levels of conflict and antipathy to those around him;
(c) Although Mr Brookes did not characterise his mental state as depressed or otherwise mentally ill when he spoke with Mr Sheehan, he did describe rapidly fluctuating moods which remained buoyant whilst he was engaging with others but when left alone he became almost instantly despondent and desperately empty.
In Mr Sheehan’s view these were clear indicators of ongoing personality dysfunction.

36 Mr Sheehan also reported that Mr Brookes has a fluctuating ability to self-manage his mood and behaviour and that this is as much influenced by environmental factors and other external stressors as by the complexities of his psychiatric profile and his physiological condition. He said:

“The experience of intense negative affect is likely to remain an acute risk factor for Mr Brookes in the community. His intolerance to feelings of anger, frustration, sadness or hopelessness may accompany a sense of desperation and lack of consequential thinking when he experiences these emotions, which in turn may make an offence or other poor decision more likely.”

37 This is a matter of some significance on this application since it seems clear that the risk of Mr Brookes re-offending is exacerbated by the extent to which he feels angry and vengeful towards others or the world at large. This is a negative affect which is persistent and which in Mr Sheehan’s view is likely to remain an acute risk factor for Mr Brookes in the community unless satisfactorily addressed. I should note that in his evidence before me, Mr Brookes said that he was often depressed and angry.

38 In summary Mr Sheehan concluded that:

“The main dynamic features that have acted as catalysts of risk for Mr Brookes pertain to his psychological state and life circumstances. Of particular concern have been Mr Brookes’ limited abilities in: intimate attachments to others, sexual self-regulation, emotional self-regulation, and general self-regulation. These features are intertwined with his personality pathology and paraphilic sexual interest (pedophilia).”

39 In reviewing the literature as it relates to sex offenders, Dr Lenning identified the most common variable associated with sexual recidivism as deviant sexual interests. He observed that the unanimity of views between the various psychological and psychiatric assessors over many years is that Mr Brookes suffers from a “deeply entrenched and pervasive sexually deviant fantasy associated with young (prepubescent) children”. In Dr Lennings’ view, the dynamic risk factors that were identified in Mr Brookes’ profile served to confirm the actuarial assessment of high risk. He placed emphasis on Mr Brookes’ poor response and/or his reluctance to engage in treatment whilst in custody as militating against any diminution in risk at this time.

40 I pause to note that the same high risk assessment as both Mr Sheehan and Dr Lenning arrived at for the purpose of these proceedings was reached in 2001, and again in May 2007, and, save for breaches of the reporting regime provided for in the Offenders Registration Act, Mr Brookes has not committed any offence with a sexual dimension to it since 2001. I also note that while he was in custody for discrete periods since September 2001, he was also at his liberty for a total period of 24 months during which time he showed himself as capable of managing in the community at least to the extent that he did not come to the attention of the authorities other than for breaches of his reporting obligations. Not unimportantly, he managed without any structured supervision. There were periods when he required short term institutionalised psychiatric care or other psychiatric intervention but this was exclusively as a result of self-reporting.

41 In his most recent report, Mr Sheehan was unable to say whether this pattern was the result of a measurable and sustainable shift in attitude, with an accompanying acknowledgement of responsibility on Mr Brookes’ part for his sexual misconduct, or the result of a phenomena known as ‘burnout’ where antisocial people exhibit a reduction in openly antisocial behaviour as they approach middle age.

Current state of physical health

42 Mr Brookes is currently being medically assessed in reference to epilepsy and a possible hormone secreting adenoma in his abdominal region. The significance of these health issues to the question of whether I should make orders for his detention beyond his release date is itself twofold.

43 The first is that medications or other treatments that may be prescribed to treat one or both conditions may interfere with his suitability for treatment with the anti-libidinal medication, Androcur. That medication has the effect of reducing testosterone levels such that libidinous thoughts are suppressed and a person’s sex drive reduced. It is the view of both Mr Sheehan and Dr Lennings that Mr Brookes should, if possible, be commenced on this regime under strict supervision as a component of a long-term plan to address his risk of re-offending. Mr Sheehan is also of the view that his general health requires some stabilisation to maximise his effective participation in a sex offender program. Whatever might be the effectiveness of these programs to diminish the risk of recidivism (a matter that does not warrant commentary in this judgment) his participation in these programs is, in Mr Sheehan’s view, not simply desirable but his lack of progress to date is a matter that adds to the persistence of his assessment in a high risk category of re-offending.

44 Although there are symptoms consistent with Mr Brookes being an epileptic, there has been no formal diagnosis of that condition. Whilst Mr Brookes is currently prescribed anti-convulsant medications (which it would appear he takes intermittently), Dr Ellis, a Consultant Forensic Psychiatrist, is of the view that a formal diagnosis will enable Justice Health to provide effective medication and treatment for his condition. To this end an electroencephalogram, brain scan and neurological appointment have been sought with some suggestion of availability in April 2008. While these assessments are designed to establish a definitive diagnosis as to whether Mr Brookes is epileptic or not, it is irrelevant to his capacity to take anti-libidinal medication.

45 The other health issue pertains to an abdominal mass identified by ultrasound in September 2007 after Mr Brooks complained of abdominal pain. This has been more recently identified as potentially sourcing from a functional (hormone secreting) adenoma requiring further investigation. To this end, blood and urine tests are currently being undertaken. If the tumour is ‘functional’ then he will require specialist endocrinological and surgical assessment. It is Dr Ellis’s view that while these investigations are ongoing, treatment with anti-libidinal medications should be delayed.

46 It is Mr Sheehan’s view that Mr Brookes’ current health issues, in combination with concerns about compliance in a community-based setting, means that Mr Brookes’ current receptivity to anti-libidinal treatment is unknown.

Participation in treatment or rehabilitation programs: s 17(4)(e) of the Crimes (Serious Sex Offenders) Act

47 A post-treatment psychological report prepared in September 1995 indicates that Mr Brookes participated in a custodial sex offenders program whilst serving a sentence in Morton Correctional Centre in Queensland. His progress was judged as unsatisfactory. He reapplied on a number of occasions throughout the course of his custody in Queensland, however, the overall description of Mr Brookes’ participation in the various treatment modules suggest only modest treatment gains. The program sought to address: offence related thinking (cognitive distortions); skill development (effective relationships); empathy development (victims issues); and matching of prosocial coping strategies with identified risk factors (relapse prevention).

48 During the custodial sentence in New South Wales in 2001, Mr Brookes undertook the CUBIT program for men convicted of sexual offences. He was discharged before completing the program. While it would appear that the number of problematic behaviours towards others in the program led to Mr Brookes’ premature discharge as distinct from any negative attitude towards the program itself, I am satisfied on all the evidence, that Mr Brookes has no faith in the capacity of the program to reform and that he does not wish to participate in the CUBIT program. While his suitability for participation in a community-based treatment program has not been the subject of specific mention, I cannot ignore his lack of receptivity to treatment programs in custodial settings in the past.

49 Of Mr Brookes’ poor response to, and persistently negative attitude to treatment, Dr Lennings had this to say:

“In general treatment failure is regarded as a significant risk factor, but refusal to engage in treatment is not necessarily the same as treatment failure. [Mr Brookes’] poor response to supervision, and significant minimisation and failure to take responsibility for his offending, do raise concerns. The documentation also reveals poor self-regulation and a general perseverance of anti-social attitudes as indicative of poor psychological function and increased dynamic risk… Although dynamic factors can be mediated by time and treatment exposure, despite the many opportunities available to Mr Brookes, moderation of these dynamic risk factors do not appear to have occurred.”

Compliance with reporting obligations under s 17(4)(g) of the Crimes (Serious Sex Offenders) Act

50 I do not regard Mr Brookes’ failure to comply with the reporting obligations under the Offenders Registration Act as evidencing his resistance per se to being supervised under an extended supervision order. I note that the Act does not provide a regime of supervision, and it does not require treatment, counselling or contact with parole officers on a regular basis. The registrable person must however report annually, notify a change of relevant personal information (including address), notify any intention to leave New South Wales for 14 or more consecutive days, and change of travel plans while outside New South Wales. That said, the fact that Mr Brookes has repeatedly breached his obligations under the Act does not engender confidence in his capacity at this time to sustain the levels of compliance and commitment that are fundamental to the community-based management plan inherent in the proposed extended supervision order.

Current issues

51 During the course of the current period of imprisonment, Mr Brookes has had difficulties associating with both prisoners and prison staff. This would seem to be explained in part by his poor interpersonal skills and the underlying psychological dysfunction and behavioural disorders from which he suffers. I do not discount the fact that the harsh realities of prison life present added pressures for those inmates who suffer mental illness. In Mr Brookes’ case, his particular personality pathology has been intensified by the fact that large periods of his adult life have been spent in prison. It is difficult to assess whether Mr Brookes is currently at a low ebb of his ability to manage because of his frustration at being the subject of these proceedings or because of deteriorating mental health compounded by other health issues or both. That said, while it would appear that he has experienced some periods of relatively stable institutional behaviour, his psychiatric profile in combination with behavioural issues means that he is currently a difficult prisoner to manage. Tragically and ironically, this state of affairs factors against him presenting in a way that would commend him as a candidate for community-based supervision which, by definition, requires predictable levels of cooperation and complicity. Again, I restate Mr Sheehan’s view that his participation in the CUBIT program may provide an opportunity to make some headway in a group/community dynamic.

52 I also note that on occasions in the last year Mr Brookes has presented to the risk intervention team in prison reporting himself as at risk of causing harm both to himself and others. He has also, from time to time, been under the care of psychiatric staff at Justice Health. On his most recent admission, he was prescribed anti-psychotic medication although it is unclear whether this was to address psychotic phenomena or to sedate him. On one occasion late last year he stated that he feared that he would sexually harm others. This is not the subject of any further elaboration in the supporting documentation. The fact that Mr Brookes denied making the report in those terms is irrelevant to the application for interim orders. I do not regard it as matter I can or should ignore.

Current relationship status

53 When Mr Brookes presented for risk assessment in May 2007 he was fixated in his intention to return to Queensland and resume what is described as a serious intimate relationship with a physically and intellectually disabled woman who resides in that State. This is consistent with his stated intentions late last year to make his way immediately to the airport to catch an aeroplane to Queensland to be with her upon leaving prison. While I accept that this was said by him prior to being made aware of the orders the plaintiff now seeks, I have little confidence that Mr Brookes would be able to resist an impulse to travel to Queensland if he perceived that this was in his interests or that of his partner, even if in a calmer frame of mind he might see this as putting his liberty at risk. The system of electronic monitoring to which Mr Brookes might be subject were he released under supervision in the community cannot, as a matter or practical reality, guard against that risk at this time and in these circumstances.

54 There are currently no plans for his partner to travel to New South Wales and to take up residence with Mr Brookes in either rented or community housing. Given her disabilities and the fact that her care is to some extent subject to the supervision of the Guardianship Board in Queensland, I think it improbable that she will at any time in the near future take up residence in this State. I also note that when Mr Brookes was spoken to by Mr Sheehan on 4 December 2007 for the purpose of obtaining his consent to updating the risk assessment report (which consent was refused), he stated that it was his intention to immigrate to the United Kingdom on his release. While it may be that Mr Brookes was either overstating or deliberating misstating his intentions to Mr Sheehan in frustration and fury at being subject of an application by the Attorney General for his continued detention, I am unable to regard his relationship with his partner as a stabilising influence on his life. Mr Sheehan’s assessment of the relationship in May 2007 is instructive:

“During interview, Mr Brookes indicated that he is currently involved in a serious intimate relationship with a physically and intellectually disabled woman who resides in Queensland. He explained that he came into recent contact with her when he accepted the role of primary carer in early January 2007, after which the relationship became rapidly romantic in nature. Given that he reported only spending 2 weeks in Queensland before returning to NSW and being arrested, his level of conviction regarding the solidity of his relationship is questionable. He appeared preoccupied by thoughts of this person and totally consumed by the prospect of getting back to Queensland to care for her. Mr Brookes stated that his belief that everything will be fine and his future positive once he can get back to his partner. Whilst it may be seen as positive that Mr Brookes has a figure of attachment in his life, the instantaneous and overwhelming intensity of this attachment style is reminiscent of Borderline and Dependant Personality Disorder. As such, this may not represent the sign of stability and intimate support that we would hope for Mr Brookes.”

Summary

55 In summary, since his release from prison in July 2004 for the serious sex offence committed in January 2001, Mr Brookes has not committed a “serious sex offence” (as defined) or any “offence of a sexual nature” (as defined) where that offence involves a sexual act or conduct with a sexual dimension to it. This is so despite being assessed as being at high risk of re-offending throughout this period. He has, however, been imprisoned twice since his release in 2001 for breaching his obligations under the Offenders Registration Act. This conduct is fairly described by Mr Sheehan as constituting offences of omission rather than commission. By contrast with other prisoners the subject of an application by the Attorney General for an extended supervision order or continuing detention order since the passage of the Act, it is this conduct alone in the context of past convictions for “serious sex offences” that renders him “a serious sex offender” such as to entitle the plaintiff to seek the orders it does.

56 Mr Johnston has urged me to view this state of affairs as exceptional, necessitating that I view most carefully the plaintiff’s supporting documents before finding, even at a prime facie level, that they would justify the making of a continuing detention order as provided for in s 17(3) of the Act. Mr Johnston does not seek to persuade me that they do not justify the making of an extended supervision order under s 9(3) of the Act.

57 While the context of Mr Brookes’ current incarceration and his general mental health is a matter of concern, particularly in circumstances were the Attorney General seeks final orders for his continued detention for a period of five years, the only question that arises at this stage in the proceedings is whether the Attorney General has persuaded me that there is a proper and adequate basis for Mr Brookes to be detained on an interim basis, namely for 28 days from 21 February 2008.

58 Having regard to the objectives to which the statutory scheme are directed and the matters to which I have referred, I am satisfied there are sound reasons for me to make the continuing detention order the plaintiff seeks on an interim basis.

59 I am not persuaded that there are countervailing discretionary considerations such as would entitle me to refuse to make that order and to order extended supervision on an interim basis in substitution for continued detention. In particular, I am acutely conscious that the anti-libidinal medication cannot at this time be safely prescribed and that as a result Mr Brookes’ response to it is untested. In addition, Mr Brookes, who has no current community placement in New South Wales, has expressed a stated desire to be in Queensland or to go to that State if his partner should need him even if that would entail a breach of the supervision orders I am asked to make. While I accept that Mr Brookes is angry and frustrated (for what might even be viewed as understandable reasons since he claims to have appreciated the full dimensions of his sexual offending, is determined not to re-offend and wishes to begin a new life), I am unable to place any reliance on his evidence in this regard when he has persistently refused to participate in a treatment program where his confidence and determination to take a new life direction might be susceptible to objective analysis and testing.

60 It was Mr Sheehan’s considered view, expressed in the report to the sentencing Court and in the report prepared for this Court, that Mr Brookes’ best possible step to making significant and enduring changes to his life is his participation in the sex offender treatment program:

“If the current application results in Mr Brookes being subject to further detention, the best possible step is for him to undertake assessment of suitability for sex offender treatment programs. These programs have recently increased flexibility in managing offender responsivity issues such as those that have inhibited Mr Brookes’ ability to effectively participate in treatment thus far. Mr Brookes is likely to be a disruptive and challenging participant to treat. However, given the high levels of support and attention provided in that program, involvement in a supportive therapeutic community such as CUBIT may increase Mr Brookes’ likelihood of making and significant and enduring positive change to the way he manages his life. Regardless of his therapeutic advances with the CUBIT treatment targets, the prospect of Mr Brookes withstanding the treatment process over a period of months would represent a true step forward in his stability…”

Orders

61 At the conclusion of the proceedings, it was agreed that I should give immediate consideration to the appointment of two psychiatrists who would be required to furnish reports as provided for in s 15(4) of the Act with a view to advancing the progress of the hearing for final relief. Since I was satisfied at that time that I would make orders for Mr Brookes’ continued detention or extended supervision on an interim basis, without expressing any settled view as to the form the interim orders would take, I made those orders (see State of New South Wales v Alexandria George Brookes, Supreme Court of New South Wales, Fullerton J, 13 February 2008, unreported).

62 The remaining orders I make are as follows:

(1) Pursuant to s 16(1) of the Crimes (Serious Sex Offenders) Act , the defendant Alexandria Brookes is to be detained at a correctional centre on an interim basis for a period of 28 days from 21 February 2008.
(2) Pursuant to s 20(1) of the Crimes (Serious Sex Offenders) Act , an order that a warrant issue for the committal of Alexandria George Brookes to a correctional centre for the period specified in order (1) above.