State of New South Wales v Cheney

[2020] NSWSC 1231

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Cheney [2020] NSWSC 1231

Hearing dates:

19 August 2020

Date of orders:

08 September 2020

Decision date:

10 September 2020

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that Roger David Cheney be subject to an extended Supervision Order for a period of five years.

(2) Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 that Roger David Cheney for the period of the Extended Supervision Order to comply with the conditions set out in the Schedule to the Amended Summons filed 19 August 2020.

(3) Order that access to the file of the Supreme Court shall not be granted to a non-party without the leave of a Judge of the Court.

(4) Order that prior to any access being granted to a non-party, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to such access application.

(5) Amended Summons filed 19 August 2020 otherwise dismissed.

Catchwords:

HIGH RISK OFFENDERS — Continuing detention orders — Application – whether a continuing detention order or an extended supervision order is appropriate in the circumstances – serious sexual offender – whether the offender poses an unacceptable risk of committing another serious offence if not kept in detention - s5C(d) Crimes (High Risk Offenders) Act 2006

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

State of New South Wales (P)
Roger David Cheney (D)

Representation:

Counsel:
C McGorey (P)
S Hall (D)

Solicitors:
Crown Solicitors (P)
Legal Aid Commission of NSW (D)

File Number(s):

2020/112847

Publication restriction:

Orders made restricting access to the Court’s file.

Judgment

1. The State of New South Wales (“the State”), by its Amended Summons dated 19 August 2020, seeks an order that Roger Cheney (“the defendant”), be the subject of a Continuing Detention Order (“CDO”) for a period of two years pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (“the Act”). At the conclusion of the proceedings, the State maintained its prayer for this relief.

2. In the alternative, the State sought an order pursuant to s 17(1)(a) of the Act that the defendant be subject to an Extended Supervision Order (“ESO”) for a period of five years, and that he comply with the specified conditions.

3. The defendant opposed the CDO, but consented to the ESO being made with respect to him on the conditions sought and for the period of five years.

4. It was not in dispute between the parties, both of whom appeared by counsel, that all pre-conditions to the making of either a CDO or an ESO have been met other than one.

5. I accept these concessions, having regard to the evidence which has been filed.

Extent of Dispute

6. The defendant puts in issue the satisfaction of this Court of the legislative requirement set out in s 5C(d) of the Act as following, namely whether:

“The Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.”

7. Once this threshold requirement is established by the State, the issue between the parties is whether, as provided for by s 17 of the Act, the Court should exercise its discretion to grant the application made by the State for a CDO. If it does not, then there is no dispute that the ESO as sought by the State should be made for the period nominated and on the conditions specified.

Legislative Provisions

8. The relevant part of s 5(d) of the Act has been set out above. Section 17 of the Act is the other relevant legislative provision. It is in the following terms:

“17   Determination of application for continuing detention order

(1)    The Supreme Court may determine an application under this Part for a continuing detention order:

(a) by making an extended supervision order, or

(b) by making a continuing detention order, or

(c) by dismissing the application.

(2)    In determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(3), (3A) (Repealed)

(4)    In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a) (Repealed)

(b) the reports received from the persons appointed under section 15(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1) if the offender is kept in custody or is in the community (whether or not under supervision)—any options available that might reduce the likelihood of the offender re-offending over time,

(e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or … ,

(g) … ,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence,

(j) … ,

(k) … .

(4A) To avoid doubt, section 11 (2) applies to an extended supervision order made under this section.

(4B)    (Repealed)

(5)    In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences."

Factual Background

9. The defendant was born in September 1985.

10. He has a significant criminal history. In the period between June 1976 and August 1986, the defendant spent four and a half years in custody with respect to three separate instances of offending. The offences were essentially various counts of break, enter, stealing and robbery. These instances of early offending have no direct relevance to the issues presently to be considered.

11. In July 1988, the defendant was arrested and charged in the Australian Capital Territory (“ACT”) with one count of assault with intent to have sexual intercourse, and four counts of sexual intercourse without consent, alleged to have been committed by him against an unknown adult female in the middle of the day in a nature reserve in Canberra.

12. At trial, the defendant did not put in dispute the fact that the victim had been assaulted and raped. His defence was that he had been wrongly identified as the offender, and that he did not commit the offences at all.

13. The defendant was convicted after a jury trial. It is unclear what the precise sentence was that he received. However, the defendant appealed his conviction to the Federal Court of Australia. That appeal took placed over five days in November 1990 and on 18 February 1991, a Full Court of the Federal Court delivered a judgment which allowed his appeal and quashed the convictions. A re-trial was ordered.

14. The basis for the convictions being quashed was that the defendant had not had a fair trial because of the way in which the prosecution had adduced evidence from one of the witnesses. As well, the defendant contended that there was fresh evidence which pointed strongly to his being innocent of the charges and that he was not the perpetrator.

15. On 27 March 1991, the Deputy Director of Public Prosecutions for the ACT filed a Notice in the Supreme Court of the ACT declining to proceed further with the prosecution of the five counts.

16. The State submitted that although this instance cannot fall to be considered under the defendant’s criminal history, because there has been no conviction, nevertheless it constitutes information that the Court must have regard to, in accordance with s 17(4)(i) – being “any other information that is available as to the likelihood that the offender will commit a further serious offence”.

17. I do not accept that proposition which carries implicitly within it, that the defendant committed these offences. The evidence does not permit any assessment to be made of the defendant’s alleged conduct on this occasion. Further, the principal issue at trial was identification. That is to say, it was the defendant’s case that he did not engage in the conduct alleged at all, and that the identification of him as the perpetrator was erroneous. There is no material available which would allow me on the hearing of these proceedings to make any evaluation as to whether the perpetrator of that sexual offence was the defendant, nor of the nature of the offence. Therefore it is not possible to draw any conclusion as to how that conduct may impact upon the likelihood of commission of a further serious offence if the defendant is released into the community.

18. This episode must be put to one side for the purpose of the determination of the State’s application.

19. In the time between being arrested for the ACT sexual assaults, and having his convictions quashed, the defendant was sentenced to further terms of imprisonment for various property offences and fraud offences. For these he served terms of imprisonment with the consequence that he was released from custody on 26 April 1991.

20. One week after being released from custody, namely on 3 May 1991, the defendant was arrested, charged and later convicted after a judge alone trial of two offences. The first being maliciously inflicting actual bodily harm on an adult female victim with intent to have sexual intercourse with her, and also that he assaulted a police officer – occasioning actual bodily harm.

21. The trial Judge described the first count as being a particularly serious one. He described the assault as being violent and that there was a strong circumstantial case that the defendant had sexually attacked that victim - although, as he pointed out, the defendant was not actually convicted of having sexual intercourse with the victim without consent. A sentence of 8 years imprisonment with a minimum non-parole period of 6 years was imposed and, having regard to the fact that the defendant had been on bail for various periods pending the trial, the sentence was backdated to commence on 8 December 1993. The defendant received a fixed term of imprisonment of 1 year for the charge of assaulting the police officer.

22. Whilst on bail for these offences which I have just described, the defendant travelled to the Port Macquarie area with his then girlfriend.

23. He was charged with five counts relating to an underage victim, “M”, which occurred on 21 November 1993. The counts arose from the fact that he entered the home, and then the bedroom, of “M”. He carried her outside and laid her on the ground. He touched her vaginal area and forced her to perform fellatio on him. He gave her a false name, told her not to tell anyone what had happened, and took her back into her bed.

24. He returned on the evening of 27 November 1993, and again entered the house and bedroom of “M”. He attempted to remove her clothing – which she resisted. She screamed and ran into her parents’ bedroom. The police were called. The defendant had disappeared by the time they arrived.

25. On 7 December 1993, the defendant committed two further offences in the Port Macquarie area, near where he was then living. On that evening, he entered a home unit and stole items. When he was seen and followed from the scene, he pointed a silver coloured revolver at the person following him and evaded being detained.

26. On the following day, he committed five offences against a victim “A”. “A” was eight years old. The defendant was convicted of one count of taking and holding “A” for his advantage, three counts of sexual intercourse with “A” (who was under 10 years old) and one count of indecent assault.

27. In the early hours of 8 December 1993, the defendant entered the bedroom of “A” and carried her from her house to a nearby grassed area. He indecently assaulted “A”, performed cunnilingus on her, forced her to perform fellatio on him and then had penile/vaginal sex with her, causing her actual injury.

28. After the offences, he pushed “A” back through her bedroom window and told her to return to bed. “A” reported what had occurred to her parents.

29. On 8 December 1993, after the assault on “A”, the defendant was seen by a police officer and a civilian running from the scene. During his attempted escape, he assaulted two male civilians. He was convicted of assault occasioning actual bodily harm with respect to each of those people.

30. The defendant was sentenced by Kirkham DCJ on 22 June 1995. His Honour described the offences in this way:

“Objectively, the offences against ‘A’ and ‘M’ are extremely serious, ‘A’ more than ‘M’ because of the nature and number of offences committed upon ‘A’ during her time under your control and the nature of her injuries which I find beyond reasonable doubt does amount to a substantial injury within the meaning of the Act.”

31. Kirkham DCJ went on to say:

“You are a very resourceful criminal, but you are more than that, you have committed evil crimes against these children and that aspect of your character combined with your resourcefulness makes you a person who might objectively be described as a very dangerous criminal. There seems to be no end of the types of crime that you will commit, which seem to be escalating in order of seriousness as time passes.

…

For your crimes, you are totally unrepentant, totally without remorse, and at the moment, now, aged nearly 40 and further denying your guilt of these offences, without any prospect of rehabilitation. You are a true menace to the community, inflicting pain and anguish and fear upon your many victims both young and old.”

32. Kirkham DCJ imposed individual sentences for each of the counts upon which the defendant was convicted.

33. On 7 October 1999, the Court of Criminal Appeal overturned the jury’s conviction on one of the counts related to the entry into a dwelling house with intent to commit a felony. As well, it upheld an appeal against a sentence imposed by Kirkham DCJ for the count of taking “A” with intent to hold her for advantage.

34. The Court of Criminal Appeal resentenced the defendant by imposing a head sentence of 25 years imprisonment commencing on 22 June 1995 and expiring on 21 June 2020 with an effective non-parole period of 17 years commencing at the same time and expiring on 21 June 2012.

35. The defendant has remained in custody since that time.

36. For many years whilst in custody, the defendant declined to participate in any jail-based rehabilitation programs. On a number of occasions after 2012, consideration was given by various bodies to the defendant’s release on parole. He has never received a grant of parole.

37. It seems that, by about 2016, the defendant’s attitude to undertaking courses shifted. In August 2016, the defendant indicated his willingness to undertake the EQUIPS addiction program when a place became available. In April 2017, the defendant indicated his willingness to be assessed for a sex offender program. In August 2017, the defendant participated in the EQUIPS addiction program and completed it satisfactorily. He was placed on the wait list for the “Deniers Program”, although he has never undertaken that program.

38. On 7 March 2018, the defendant commenced having individual sessions with Dr Richard Parker, a psychologist from the Serious Offender Assessment Unit. By September 2019, the defendant had participated in 29 such sessions. He has continued to engage in these sessions with Dr Parker regularly since then.

39. In July 2019, both the Serious Offenders Review Counsel (“SORC”) and Community Corrections recommended that the defendant be released to parole. However, a supplementary report of SORC dated 22 October 2019 contains this advice to the State Parole Authority:

“However, we are particularly concerned about the intelligence report of 19 August 2019 which seems to contradict the success of the intervention. We have sought further details of what is recorded, particularly any time-frames, when what is recorded occurred. We will also seek NSW Police advice about any suspected offences involving him around Mosman High School. Until we can be satisfied there is no possibility of sexual deviancy or past suspected offences around Mosman High School, or future planned offences, we cannot be satisfied that he does not present as a risk to the public.”

40. It is necessary to note that whilst this supplementary report of SORC has been placed before the Court, the underlying material to which the extract immediately above refers forms no part of the evidence before this Court, and the State does not rely on any such material as being relevant to the consideration of this application.

Opinion of Dr Richard Parker

41. Dr Parker is a senior specialist psychologist employed by Corrective Services NSW. In his present role he is responsible for preparing risk assessments for use in applications to this Court under the Act. He also provides direct psychological services to a small number of both violent and sex offenders who are in custody.

42. Dr Parker, in an affidavit of 12 May 2020, records that since 27 September 2009, he had conducted 37 sessions with the defendant. Dr Parker first set out his views and conclusions in a report dated 27 September 2019. He noted in his affidavit that his views had not changed since that time. He is of the view that the defendant had made good therapeutic gains but that, as is obvious, those gains could only ultimately be tested in the community.

43. Dr Parker did not regard the failure of the defendant to participate in and complete the Denier’s Program as being of any relevance. That was because he did not see any additional benefit to the defendant in completing that program.

44. Dr Parker described the programme in which he had engaged with the defendant as being one of Cognitive Self-Change. Of it, he said this:

“The … program I have used with [the defendant] examines his thinking in situations where he has broken rules. This individualised process makes no assumptions about the types of thinking which led to sexual offending. While neither intervention challenges his denial (as it is not criminogenic and attempting to change denial is unproductive) CSE examines the thinking across both past and current events and places the onus on the participant to make connections between their thinking and their behaviour. A person’s progress is entirely dependent upon his ability to convince me that he has gained the relevant skills.

Human beings use a relatively small number of rules to navigate their way through life. Consequently, the rules used by [the defendant] in his sexual offences are likely to be similar to the ones he uses in analogous situations in life. CSE conceptualises these situations as ‘rule breaking’.”

45. Dr Parker concludes his affidavit with this:

“Through the CSE program, it is my view that [the defendant] has developed new patterns of thinking – namely ‘New Roger’ and ‘Law Abiding Citizen’ which he has professed he is keen to implement in the community. The work he has done with me is excellent, and it appears credible [that] he could use this new thinking to follow all of the rules of society. However, and this is true for all custodial therapy, his ability to do this in the community has not been tested. Consequently, I believe the next logical step is for the defendant to be supervised in the community so this can be tested.”

46. Dr Parker prepared a Risk Assessment Report which was dated 27 September 2019. It was prepared in anticipation of an application being made by the State pursuant to the Act.

47. Dr Parker’s Report of the risk assessment process is an attempt to assess the risk posed by the defendant. He used a series of commonly used instruments. Dr Parker summarised the instruments saying:

“The actuarial instruments used in this report place [the defendant] at an above-average risk of sexual offending. Instruments using broader definitions of recidivism placed him in the second highest categories of risk.”

48. Dr Parker expressed the following conclusions:

“93.   For reasons unknown, in his early thirties he began committing sexual crimes with two convictions against adult women (one of which was overturned on appeal) who were unknown to him, followed by the serious sexual offences against two girls, breaking into their homes, while they slept, and carrying them outside.

94.   He denies committing any of the sexual offences, and lodged multiple appeals against all convictions, but only one of these appeals was successful. It is hypothesised that this denial may be motivated by shame.

95.   Consistent with his pattern of denial, [the defendant] has refused to engage in CSNSW’s sex offender programs, but did eventually complete the EQUIPS Addiction program and has been engaged with me in individual work to address his criminogenic needs since 7 March 2018.

96.   He is assessed as being at above average risk of committing further sexual offences and falls into the second highest risk bands on instruments assessing general and sexual/violent recidivism.

97.   He has made excellent progress in the individual treatment with me, but needs an opportunity to practice the skills he has learned, in a community setting, before he can be considered to have completed treatment.

98.   In the event that the defendant is subject to an Extended Supervision Order (ESO), he would receive intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities. This would also enable him to continue treatment with me.

99.   [The defendant] has not been in the community for over twenty years and is untested in community settings. His expressed attitudes indicate he would comply with the conditions of an ESO, but he has not had any opportunity to demonstrate whether he would comply community supervisions.

100.   If the Court is not satisfied that an ESO is capable of containing the risk sufficiently, it may consider impose a CDO. However, it is unlikely the treatment I am providing can progress much further without [the defendant] being able to practice his new skills in the community, so such an order would only provide containment, not further rehabilitation.

101.   In the event that no further order is imposed, [the defendant’s] sentence will expire on 21 June 2020. If he were released without any supervision, I think he would try to live a law-abiding lifestyle. Whether he could maintain this is unknown. Whether the potential risk of [the defendant] being left unsupervised in the community would be considered ‘unacceptable’ is a matter to be determined by the Court.”

49. Dr Parker was called to give oral evidence. He adhered to his report, notwithstanding the two other expert reports and opinions from Ms Dewson and Dr Furst.

50. Dr Parker expressed the view that whilst he could not exclude sexual deviancy as being the underlying motivation for the offences in which the defendant engaged, he did not consider it a likely motivation.

51. Dr Parker’s view, which was challenged by the State, was that it was likely that the defendant would abide by the laws and obligations upon release.

52. He said this:

“Q.   How much confidence can the Court take from him now stating a wish that he wants to abide by the law as distinct from mismanagement?

A.    Yes, the issue is not just that he has that wish. But the issue is clearly that he incorporates that into everyday life. The problem with [the defendant], and some other offenders, is that their prison behaviour is not problematic. They know how to follow rules in prison. So it is hard to test that while in custody. In contrast, some offenders break rules in custody all the time. …

In [the defendant]'s case, and in the case of a considerable number of offenders, if their prison behaviour is good, they have already learnt how to do that and it is very hard to think that the alternative thinking will also involve following the rules in society.

The answer is we don't know. But in terms of the treatment I have gone through, the treatment involves a reverse of onus of proof. He has to convenience me that he was improving…

That is the situation we are at. [The defendant] has thinking that appears to me would work. If he chooses to use it in the community, that thinking I believe would work. What the people don't know is who is in the community. That is an issue of practice. It is like any other skill in life; if you don't practice it, you won't use it. It is important to monitor that he has supervision and continues to work with those skills and, in any event, he practises those skills in the community.”

53. One matter of importance to both Ms Dewson and Dr Furst was what they described as the persistent and pathological denial by the defendant of his guilt of the offences of which he had been convicted, and for which he was serving the lengthy terms of imprisonment.

54. Dr Parker gave this evidence:

“Q.   The second part was the persistent pathological denial?

A.    Again, so an alternative hypothesis is that of shame, which is extremely common among child sex offenders…A significant proportion of child sex offenders I have worked with deny all or some of their offending. It is a really common issue with child sexual offences and shame explains a lot of it this case. Whether it is shame or something else is a matter of hypothesis. I suppose my point is that it is a credible hypothesis as well. So, it is not necessarily evidence of deviancy. It may be evidence of shame.”

55. Dr Furst expressed the view that there was a high likelihood of breaches of supervision and monitoring provisions based upon the defendant’s past failure to adequately comply with conditions of supervised liberty in the community whether on bail or parole.

56. Dr Parker expressed the view that that was a matter upon which he had focussed in his sessions with the defendant and went on to say:

“This is something we've focused on with a future focus for how he would comply with supervision, and the thinking he has developed is credible in terms of allowing him to abide by supervision and feeling good about it. Again we don't know what he would actually do if he was released but we have no way of actually knowing that without releasing him.”

57. Dr Parker was also asked whether there was any benefit for those observing and treating the defendant to monitor his performance whilst he participated in the Denier’s Program. Dr Parker remained unconvinced that there was anything to be identified in the course of such monitoring which would add to the store of knowledge about the defendant which had been gathered over the past 25 years or so that he had been in custody.

58. In the course of giving a very long answer on a related topic, Dr Parker described his work with the defendant in these terms:

“What I've done with [the defendant] and what I do with my other people is, I drill them on their thinking on a whole range of situations, I drill them in a whole range of situations in the past where they've broken rules, I drill them on situations recently where they've thought about breaking rules, and I've drilled them on situations right now in the here and now, so particularly if someone is breaking a rule in my presence or not interested in doing the work, I will focus on my thinking behind that.

So the issue in this process is that [the defendant] has to convince me that he has the skill of paying attention to his own thinking so that he, and he's able to do that for a whole range of situations including times when he would have been drinking so that while I'm assuming that he has that level of insight into his cognitive processes at the time of his sexual offending, I'm doing it on the basis that he's already shown me insight into his cognitive process when he breaks other laws in the past when he thinks about breaking rules in custody so that he has the skill of reporting that, so it would be quite unusual for him to be able to use that skill on other rule breaking behaviours but not on his sexual offending.”

59. Dr Parker made the point that he had been and was continuing in his treatment of the defendant to teach him the skill of “self-change”.

60. Dr Parker emphasised that in his sessions with the defendant he was teaching him how to examine his thinking and how to do his own cognitive restructuring process so that he is given the skills to deal with any situation which might arise and resolving it in accordance with appropriate rules.

Ms Chelsey Dewson

61. Ms Dewson was appointed by this Court to examine the defendant. Her report is dated 17 July 2020.

62. Her report was based upon a single interview with the defendant which occupied a little under two and a half hours.

63. After reviewing the defendant’s criminal history and his time in custody, Ms Dewson expressed the view that he had outstanding treatment needs which had not been addressed by Dr Parker’s individual treatment. She was concerned that the defendant had yet to address sexual self-regulation, engaging in social skill development to form pro-social peer relationships and to develop plans on how to maintain a health and future-focussed life. Ms Dewson concluded that in the absence of treatment which addressed those needs, the defendant could not be considered yet as a “treated offender”.

64. Ms Dewson discussed with the defendant his views as to how he might maintain or facilitate a healthy sex life whilst in the community. She concluded that his present strategy of intending to remain abstinent in the community until such time as he entered a committed adult relationship was both ineffective and unhealthy, although it is not clear why Ms Dewson arrived at that conclusion. However, she noted that the defendant would likely benefit from professional support to understand the importance of meeting his sexual wants appropriately.

65. She suggested that he should develop management plans, with assistance, so that he could successfully meet any sexual wants or needs which he had in the future.

66. Ms Dewson undertook a risk assessment using tools similar to those which Dr Parker had used. She arrived at generally consistent results with respect to the assessment of his risk of committing future offences.

67. Ms Dewson concluded that, on the basis of the information that she had, the defendant likely “… experienced deviant sexual arousal prior to his offending episode”.

68. Ms Dewson went on:

“Given his history of sexual offending against adult strangers, and his history of consensual sexual relationships with partners, it is unlikely that he has experienced a deviant sexual preference for children. Rather, his apparent arousal to inappropriate persons (both adult and children) suggests the presence of deviant sexual interests. Whilst this conclusion is inferred from behaviour, it is associated with the behavioural pattern and therefore more likely to be accurate than if based on an isolated act.”

69. Ms Dewson noted that prior to entering his current period of custody, the defendant had a poor history of compliance with supervision in the community. She noted that he appeared to be compliant with supervision within custody although, as is clear, that is a contained environment.

70. Ms Dewson expressed this conclusion:

“In considering the progress the defendant has made towards risk mitigation, whilst reflecting the predicted risk levels associated with his history [of] offending, it is my opinion that [the defendant] falls into the high range for sexual re-offending. The primary factors relating to his risk of recidivism include alcohol abuse; entitlement (including sexual entitlement); criminal attitudes; antisocial peer relationships; intimacy deficits; impulsivity; and, likely, episodic deviant sexual arousal (potentially the result of his entitlement). Although it is hopeful that the defendant remains offence-free, given his offending history, any sexual violence in the future may meet the threshold of a ‘serious offence’ … .”

71. Ms Dewson accepted that there was scope for the defendant to reduce his risk by mitigating and managing identified dynamic risk factors. She noted that he was currently open to engaging in individual-based intervention. Ms Dewson then expressed this conclusion:

“In the scenario that he remains in custody under a CDO, [the defendant] would likely have the opportunity to address these outstanding treatment needs prior to being ‘at risk’ in the community. Alternatively, it is possible that he may access this treatment within the community, although there are inherent risks associated with this, in that he has not yet met the required ‘dosage’ of treatment to meet his level of risk, needs and responsivity.”

72. Ms Dewson did not think that the defendant ought be at large in the community without some form of supervision.

73. Ms Dewson said that she was not familiar with the cognitive self-change program that Dr Parker had engaged in, and said that having looked at the matter, she thought that it shared some features of similarity with the Denier’s Program.

74. Ms Dewson was asked to express a view as to whether any risk arising from the defendant’s behaviour could be managed in the community under an ESO. She said:

“In the case that [the defendant] is able to participate in the EQUIPS Foundations soon after release, can continue to engage in psychological intervention in which he addresses sexual self-regulation and is gradually exposed to the community through restrictive conditions under an ESO, his risk can likely be managed within the community. In the absence of these supports, however, [the defendant’s] risk would likely be better managed within custody where he is able to complete the Denier’s Program and engage in graduated day release.”

75. In her oral evidence, Ms Dewson placed significance on the defendant completing the EQUIPS Foundation program. She said that if it was not available in the community, and his treatment needs remained outstanding, then the only foreseeable option would be for him to have those treatment needs met in custody.

76. Ms Dewson expressed a concern that there was a lot of information which was unknown in the defendant’s case particularly with respect to his sexual interest impulses and behaviours. This was largely because he denied engaging in the conduct in the Index offences. Hence, she suggested that he would benefit from treatment to discuss how he would meet his sexual impulses appropriately in the future. She described the nature of treatment which he needed in the following terms:

“In terms of how to meet his sexual wants, what consent looks like, for example [what] are [the] indications that someone might not be consenting, appropriate locations to have sexual engagements, just some psycho-education around what is healthy sex and how he can ensure that any sexual activities in the future can comply with those kinds of guidelines.”

77. Ms Dewson was specifically asked about, and she agreed with, Dr Furst’s opinion that there was a high likelihood of breaches of supervision and monitoring if the defendant was released into the community under supervision. She said that she did not share the same confidence in terms of the preface “high”. That was because the defendant had engaged in treatment during which he had been challenged about his anti-authority attitudes. She thought that whilst his past behaviour suggested that he was still at risk of breaching supervision orders, she was not prepared to say that it would be highly likely.

78. She could not give a definitive answer as to what the likelihood was, if any, of future breaches of supervision. However, she confirmed that her view was that there was still a likelihood, but that given the fact that the defendant had engaged in treatment known to be of assistance to him to reduce the risk of those breaches, she could not express any concluded view.

Expert Opinion of Dr Furst

79. Dr Furst concluded that the crimes in which the defendant had engaged in 1991 and 1995 were most likely sexually motivated, had features of sadism which may well have had a significant degree of sexual deviance or offence‑related cognitive distortion.

80. Dr Furst accepted, as is plain, that the defendant’s risk factors in relation to sexual offending are mostly historical, although he noted that static risk factors do not generally change over time. However, he did accept that where a person has turned 60, there is a slight risk in static re-offending factors. He thought that there were four particular dynamic risk factors which would exist if the defendant was released into the community. They were:

1. a possibility of ongoing sexual deviance and/or events-related cognitive distortions which might lead to future sexual offending;

2. access to victims, by which he included the potential of any female adult or child in the community, whether known to the defendant or not;

3. the high likelihood of breaches of supervision and monitoring provisions based on previous behaviour under community supervision; and

4. use of alcohol and/or other drugs.

81. Dr Furst was of the firm view that the defendant’s risk of committing further serious offences was not a risk which could be managed in the community under an ESO. His answer included these features:

“The defendant has a consistent pattern of breaching supervision, including reoffending on 3 May 1991 in a sexual manner only one week after being released from custody in the ACT, and committing the 1993 offences at Port Macquarie in November and December – only two and a half weeks after appearing in court for warrants, breached his bail for the 1991 offending …

Therefore, there is no reasonable basis to expect that the defendant would abide by any future supervision provisions, parole, bail, ESO or otherwise, regardless of what he says about having changed and become law-abiding or any other apparent progress he or Dr Parker believe he has made in therapy over the last two years.”

82. In a different part of his report, Dr Furst expressed his view this way:

“There are obvious concerns in relation to The defendant’s previous offending, denial, lack of remorse, antisocial attitude/behaviour and the likelihood of him breaching supervision, should he be released [into] the community on [an] ESO. In my opinion, he is far from rehabilitated.”

83. However, Dr Furst did go on to say that his view was that the available scientific evidence did not support the likely success of any of the programs on offer in custody as being likely to directly improve the defendant’s risk factors. However, he thought that such programs may provide an opportunity for clinicians and agencies charged with The defendant’s care to:

“…better understand The defendant’s individual risk factors, attitudes and motivations in relation to his past offending and/or to provide The defendant with other secondary benefits from such therapy, including better social adjustment into the community after almost 27 years in custody.”

84. In his oral evidence, Dr Furst adhered to his view and it became clear he placed significant reliance upon the fact that the defendant denied his involvement in any of the offences. He also made it clear that he did not think that the passage of time since the defendant had been incarcerated, and his maturing years, had any mitigating affect upon his risk profile. He said this:

“So I have no confidence of him in terms of rehabilitation or incarceration moderating those risks. Sure, he is saying the right thinks in therapy. People say the right things all the time in therapy, but the evidence shows the more psychopathic someone is, the less they respond to treatment. I’m not saying he is a psychopath, I am saying the more antisocial they become and the more entrenched denials of those attitudes are, the less confidence you can have in the words expressed in therapy.”

85. The further oral evidence of Dr Furst made it plain that he gave considerable weight to the fact that the defendant continued to deny his offences. It appeared from two further answers. They were:

“I have no doubt that the defendant has engaged well with Dr Parker. He engaged well with me as well. He is a superficially likeable person who can talk well and reflect well, and he was talking about the old Cheney, the new Cheney and being law abiding. But, I must say, if he was really law abiding, he would accept he has offended in the past and broken the law in the past, but he doesn’t do so. And it counters all the positive assertions he makes in therapy and to myself, Dr Dewson and Dr Parker.

…

I would say the benefit would be of having more insight potentially into what the defendant’s motivations were and focussing on this offending, which is the elephant in the room. We have talked about him being a better person and making better choices, but he really hasn’t addressed the sex offending whatsoever, or the impact on victims.”

Victim Statement

86. Pursuant to s 21A of the Act, a statement was provided by a victim of one of the defendant’s offences. The victim did not consent to the statement being disclosed to the defendant. Having regard to the contents of it, it was not possible for me to disclose to the defendant the substance of the statement because, in my view, that would have led to the identification of the victim as the person who made the statement: s 21A(7)(b) of the Act. Accordingly, I did not do so.

87. I have had regard to the statement as part of the overall evidence relied upon by the State. However, it seems to me that it is of little weight. That is because of the length of time which has passed since the defendant committed the offences, the absence of any contact at all between the defendant and this or any other victim, the lack of knowledge of the particular victim who made the statement of the range of matters which have been discussed by the experts, and the fact that the victim would not permit the defendant to see the statement.

Discernment

88. I must first consider whether the State has established each of the four matters set out in s 5C of the Act.

89. As earlier remarked, the defendant concedes that the State has established the first three of those pre-conditions and they do not need to be further considered. I am satisfied that the evidence establishes those matters.

90. The final matter to be established before considering whether or not the Court can make a CDO is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention.

91. Here, there is material which satisfies that criteria. I do not understand the defendant to contend that the available material does not establish this.

92. The following matters, which are clearly established, support a conclusion of the kind set out in s 5C(d) of the Act. First, the defendant’s previous criminal conduct; secondly, the lack of any testing of such treatment as the defendant has had whilst in custody so as to assess its effectiveness if the defendant is released having regard to his background of failing to comply with supervision obligations; and, finally, the static risk assessment and dynamic risk assessments undertaken by each of the three experts – Dr Parker, Ms Dewson and Dr Furst.

93. I do not have to be satisfied that it is more likely than not that the defendant will commit a further serious offence. The evaluation exercise necessary for s 5C(d) can reach a state of satisfaction of the high degree of probability of posing an unacceptable risk where, even though the risk is small, the possibility of significant harm exists.

94. Having regard to the defendant’s past history and the fact that he has not been released on parole and therefore has had no time in the community, I am satisfied that he poses an unacceptable risk of committing another serious offence if he is not kept in detention. I am satisfied of that to a high degree of probability.

95. However, this does not mean that a CDO must be ordered. It is now necessary to turn to a second evaluation, namely, to take into account all of those mandatory matters to which s 17 refers, and any other relevant matters in order to determine, in the exercise of my discretion as engaged by s17(1) of the Act what course should be followed..

96. In the exercise of this discretion, I keep in mind that the safety of the community is the paramount consideration for any decision of the kind with which I am confronted: s 17(2) of the Act.

97. I have taken into account and considered all of the matters set out in s 17(4) of the Act. To the extent that any of them are of significance in my evaluation, I have referred to them.

98. One of the matters to which the plaintiff pointed as supporting a conclusion that a CDO ought be ordered was that the defendant had not completed a Denier’s Program. According to the affidavit of Ms Daniele Matsuo, the Director of State-wide programs in Corrective Services, a Denier’s Program takes about six months to complete – with an individual participating for about five hours per week. The sessions for the participants are done in a group, which is intended to remain of the same composition throughout the whole program. Ms Matsuo says that on current indications, the next Denier’s Program is not likely to commence until late 2021 “… or later depending upon the number of individuals on the wait list”. There needs to be 10 to 12 individuals on the wait list before a program will be made available.

99. I have no confidence that a Denier’s Program would be available to the defendant if a CDO was made, as sought, for a period of two years. As well, the effectiveness of such a program is, on the evidence before me not demonstrated. The possible availability of this program which may or may not be effective is not a reason to impose a CDO thereby making it available to the defendant.

100. Ms Matsuo, who does not seem to have met or interviewed the defendant, nevertheless, identifies what she says are a number of outstanding treatment needs for the defendant. She says that these needs could be assisted by participation in two programs, one of which is only available in custody and the other of which is available both in custody and within the community.

101. Ms Ahern, who is the Chief Psychologist of Intensive Therapeutic Programs, in her affidavit, explains the two programs referred to by Ms Matsuo. She notes that each of the two programs would take about 10 weeks to complete. Ms Ahern also notes that if the defendant was released into the community, he might be able to attend the Forensic Psychology Service and engage in one-on-one risk management sessions with a psychologist. As with all programs, this is contingent upon resource constraints.

102. The Risk Management Report was prepared with respect to the defendant by a community corrections officer in November 2019. It was prepared for the purposes of this Act, and any application made under it.

103. It is unnecessary to record all that is there noted. However, it seems clear that there are readily available strategies and resources to manage the defendant adequately in the community.

104. The evidence led on behalf of the plaintiff does not establish that a CDO for the period sought (two years) would mean that there would be an identified program of treatment in custody for the defendant which the Court could have confidence would be available and which the Court could have confidence would be likely to mitigate the risks with which the defendant currently presents. Simply keeping the defendant in custody for another two years without an adequate assurance of a firm program of future treatment is not likely to address the risks with which the defendant presents.

105. Whilst, in the short term, during his custodial period, that order would protect the community, it ultimately will not achieve that as a lasting result.

106. As well, there remain issues with the defendant being required to complete the suggested programs in custody as a condition prior to release: one of the three programs suggested has unproven efficacy; one of the programs suggested is also available in the community; and the third program consists of 20 hours of treatment dealing with a disparate range of subjects. In regards to this third program, it seems to me the one-on-one treatment which the defendant has received from Dr Parker is of a similar nature, and this is the kind of treatment which the defendant could receive (although in a different way) when living in the community from the Forensic Psychology Service.

107. It is regrettable that the Court is presented with an application for a CDO or alternatively an ESO in circumstances where the defendant has not had an opportunity to be released into the community on parole and to be observed with respect to his conduct whilst on parole. It is inappropriate for me to comment upon whether the denial of parole to the defendant was or was not appropriate. However, the fact that the defendant has not had parole, and therefore has not been tested in the community, is not a matter which ought, without more, tell against the exercise of the discretion by this Court. The Court is called upon to consider the way in which, as a matter of discretion, the risks posed by the defendant can be managed so as to promote the paramount consideration of the Act.

108. I am unpersuaded by the State that a CDO ought be made. The defendant has been in custody for a very long period of time. He has been a model prisoner. To the extent that there are any custodial incidents recorded, they are of a minor nature and they are many years old. They do not tell against his capacity to comply with conditions on an ESO.

109. The paramount consideration of community protection is not always, and only, capable of being addressed by imposing a CDO. On the contrary, the object of protection of the community can be addressed by an ESO which is capable of managing the risks posed by a defendant upon release, thereby ensuring that he is capable of resuming an offence free life.

110. I prefer the expert opinion of Dr Parker to those of Ms Dewson and Dr Furst. I found Dr Furst’s wholehearted reliance on the behaviour of the defendant before he was brought into custody over 25 years ago to be unpersuasive. I am of the view, as Dr Parker indicated, that the defendant has on the probabilities come to realise how he can behave in the community without committing any further offences, through maturation, the effects of incarceration and the benefits provided by Dr Parker’s interventions. I find Ms Dewson’s concentration on the need for the defendant to participate in the Denier’s Program, and her adherence to the view that it was appropriate because even if it did not provide him with any benefit, it might assist others in understanding the defendant’s behaviour, to be an unsatisfactory way of considering the matter.

111. As well, it seems to me that the defendant’s denial of his criminal conduct, whilst constant and long-standing, is nevertheless unlikely to indicate that he will not change his behaviour.

112. In all of the circumstances, and having regard to all of the evidence, I am not prepared to order a CDO as a matter of discretion. This is a case in which it seems to me the defendant is entitled to be released into the community and this ought be done under supervision which is best imposed pursuant to an ESO, which is not opposed.

Orders

113. I make the following orders:

1. Order pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that Roger David Cheney be subject to an Extended Supervision Order for a period of five years.

2. Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 that Roger David Cheney for the period of the Extended Supervision Order to comply with the conditions set out in the Schedule to the Amended Summons filed 19 August 2020.

3. Order that access to the file of the Supreme Court shall not be granted to a non-party without the leave of a Judge of the Court.

4. Order that prior to any access being granted to a non-party, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to such access application.

5. Amended Summons filed 19 August 2020 otherwise dismissed.

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Decision last updated: 10 September 2020