State of New South Wales v Lett (Final)

[2019] NSWSC 1210

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Lett (Final) [2019] NSWSC 1210
Hearing dates:	29 August 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The State shall bring in short minutes of order reflecting this judgment by 4pm on 13 September 2019.
Catchwords:	CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious violence offence – serious sex offences – application for extended supervision order – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 5 years – conditions imposed – directions
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (High Risk Offenders) Amendment Act 2017 (NSW)
Cases Cited:	R v Lett (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Sully and Levine JJ, 27 March 1995) State of New South Wales v Ceissman [2018] NSWSC 508 State of New South Wales v Dillon (Final) [2018] NSWSC 1626 State of New South Wales v Farringdon [2018] NSWSC 874 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Lett [2019] NSWSC 593 State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thurston [2018] NSWSC 421 State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Phillip Wayne Lett (Defendant)
Representation:	Counsel: D New (Plaintiff) A Hughes (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Sawaya Solicitors (Defendant)
File Number(s):	2019/58351

Judgment

1. HIS HONOUR: By a further amended summons filed in Court on 29 August 2019 (“the application”), the State of New South Wales (“the State”) sought, by way of final relief, an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that Phillip Wayne Lett (“the defendant”) be the subject of an extended supervision order for a period of 5 years from the date of the order upon conditions set out in a Schedule to the application entitled “Schedule of Conditions of Supervision Philip Wayne Lett”.

2. By an earlier amended summons the State sought interim relief. Interim orders were made following a preliminary hearing by Wilson J on 21 May 2019: State of New South Wales v Lett [2019] NSWSC 593 (“Lett No 1”). Those interim orders included an interim supervision order for a period of 28 days, commencing on 23 June 2019. The interim supervision order has been renewed on two subsequent occasions, by consent, for a further 28 days on 21 July and 18 August 2019, respectively.

3. Her Honour appointed a psychiatrist and psychologist to assess the defendant’s risk of reoffending and to furnish reports. Those experts and the reports furnished were as follows:

1. Dr Kerri Eagle, consultant forensic psychiatrist, was appointed and furnished her report to the Court dated 19 July 2019; and

2. Jenny Howell, forensic psychologist, was appointed and furnished her report to the Court dated 17 July 2019.

4. Dr Eagle has experience in the assessment, diagnosis and treatment of patients with problematic sexual behaviours involving young people and paedophilic disorders in public and private practice. She was required for cross-examination.

The Application

5. There was, properly, no issue that the application conformed with the requirements of the Act for the bringing of these proceedings. The application was made within the last 9 months of the defendant’s custody and was supported by documentation that addressed the factors in s 9(3) of the Act, including a risk assessment report. A Risk Assessment Report was prepared by Ms Rachel Terry, psychologist, dated 30 November 2018 (“the RAR”). It may also be noted that a Risk Management Report was prepared by Marc Corcoran, Community Corrections Officer, dated 23 December 2018 (“the RMR”).

The “Serious Offences” of the Defendant

The Murder in 1992

6. On 22 December 1992 the defendant had been drinking beer, smoking marijuana and had taken Valium. At about 7.30pm that evening he drove past a park in Penrith where he spoke to the victim, Damien, a 6 year old boy, and invited Damien into his car. At the time, Damien was playing with his younger brothers in the park opposite his home.

7. The defendant drove the victim to the carpark of Penrith Railway Station. The following morning, in that carpark, Damien was found dead. Damien was naked (apart from wearing shoes) with the boys’ underpants tied around his neck and on top of them Damien’s board shorts knotted and tied around his neck.

8. The cause of death was strangulation and inhalation of blood caused from facial injuries Damien sustained. The facial (and other) injuries Damien sustained were caused by the defendant driving his car more than once over Damien’s body, after the defendant tossed Damien’s body from the car. Damien’s body had been dragged under the defendant’s car.

9. During the police interview, initially the defendant denied any knowledge of the offence but when confronted with the fact that police enquiries showed he picked up Damien and had driven off with him, the defendant admitted his involvement. Those admissions included:

1. that he picked up Damien and his motivation was a sexual one;

2. that he tied Damien’s clothes around the victim tightly;

3. that when he threw Damien out of his car, the victim was limp; and

4. that he knew he drove his over Damien’s body twice but did not concede it was done intentionally.

10. On 31 January 1994, the defendant was indicted and, in this Court, pleaded not guilty to the murder of Damien. The defendant accepted he had caused the death of Damien and did so intentionally but argued that the partial defence of diminished responsibility applied (and, therefore, amounted to manslaughter).

11. The basis of that defence was that the defendant was also a victim of sexual assault when he was 8 years old. He was abused by a Sunday school teacher and later by his brother for approximately four years. The defendant claimed that, at the time, he had Damien in his vehicle and was going to sexually assault Damien, the defendant relived his own experiences. The psychiatric basis asserted by the defendant was that this amounted to an abnormality of the mind which substantially impaired his ability to control his actions and caused the defendant to strangle Damien.

12. The defence failed and the jury returned a guilty verdict for murder.

13. On 4 March 1994, Ireland J sentenced the defendant to 26 years’ imprisonment (19 years and 6 months non-parole). His Honour made the following findings of fact:

1. the abduction of Damien was sexually motivated;

2. the defendant deliberately drove his car over the victim to kill the boy to avoid being incriminated for the sexual assault;

3. as there was no evidence of interference with Damien’s genitalia or penetration to the victim’s anus, any sexual assault “was not of a gross physically harmful or penetrative nature”; and

4. at the time Damien was run over by the defendant’s vehicle, Damien was alive but unconscious.

14. His Honour’s remarks on sentencing included:

1. the facts of the murder “are appalling and… it falls as to be characterised as within the worst class of case”;

2. the defendant exhibited genuine remorse at sentence;

3. alcohol was a “pervading” factor at the time of the offence; and

4. the defendant had some prospects of rehabilitation as Ireland J found no evidence which supported premeditation.

15. The defendant appealed his sentence to the Court of Criminal Appeal. That appeal was dismissed: R v Lett (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Sully and Levine JJ, 27 March 1995). Hunt CJ at CL (with whom Sully and Levine JJ agreed), concurred with the trial judge’s findings and further found that the defendant removed Damien’s clothes and it was when Damien was attempting to escape from the defendant that the defendant decided to kill Damien.

16. This Court and the Court of Criminal Appeal described this murder as one of the worst cases of its kind which warranted a lengthy period of imprisonment commensurate to that crime. Hunt CJ at CL stated that the sentencing judge was entitled to conclude that the “objective circumstances were appalling”. The objective gravity of the murder was found to be high. His Honour did not find the defendant’s history of being sexually abused as a child mitigated the murder and that the murder was committed to cover up the sexual behaviour. The defendant intended sexual assault. Alcoholism was not a mitigating factor.

17. Hunt CJ at CL also observed (at 7):

… It is submitted that there was no evidence to suggest that he was likely to be a danger to the community in the future. This is not the subject of any finding by the judge, and there was no specific evidence directed to that issue. The circumstances of the offence itself, however, suggest the possibility that he is likely to commit or attempt to commit further offences against young boys and that, if he is intoxicated, he may well kill in order to prevent his victim from reporting him. No positive finding could be made against the [defendant] upon the evidence, but neither could any finding be made that there is no likelihood of danger to the community despite the prospects of rehabilitation: cf Regina v Andrew Peter Garforth (CCA, 23 May 1994, unreported) at 12-13.

18. The Court of Criminal Appeal considered that the defendant required a period of supervision to assist his rehabilitation back into the community but that the statutory ratio at that time (which produced a period of parole of six and a half years) was “ample”.

19. This is relevant in the present context given the defendant has refused parole and not spent any period in the community under supervision.

20. The murder of Damian was a serious violence offence pursuant to s 5A(1)(a) of the Act (“the serious violence offence”). An indecent assault is a “serious sex offence”.

The Serious Sex Offences

21. Between November 1988 and 1992 the defendant had anal and oral intercourse repeatedly with the victim (“V2”), when V2 was between 8 and 12 years old. V2 was a friend of the defendant’s de facto partner’s children and would visit the defendant’s home regularly. When opportunities were presented where the defendant was alone with V2, the defendant sexually assaulted V2.

22. On 26 January 1994, V2 reported the matter to Police after learning that the defendant was charged for the murder of Damien. On 5 July 1995, the defendant was interviewed by Police and admitted to the allegations V2 reported. The defendant claimed he was a heavy drinker of alcohol at the time.

23. On 5 July 1995, the defendant was arrested and charged with 8 counts of intercourse when V2 was under 10 years old and when the victim was over 10 but under 18 years of age.

24. On 16 November 1995, in East Maitland District Court, the defendant was indicted with two representative counts of homosexual intercourse relating to when V2 was under 10 years of age (8 or 9 years old, being count 1) and when V2 was between and 10 and 18 years old (12 years old, being count 2). He pleaded guilty to both counts that day.

25. These are serious sex offences pursuant to ss 5(1)(c) and 5(1)(a)(i) of the Act (“the serious sex offences”).

26. The defendant is 58 years of age. He has served 26 years and 6 months imprisonment. He refused parole. Except for the interim orders made by Wilson J, the defendant has had no supervision in the community.

FURTHER FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN SECTION 9(3)

27. The State relied upon the following evidence given by affidavit:

1. Two affidavits of Mr David Stevens sworn 22 February 2019, including the material exhibited to that affidavit (which included the RAR and RMR), and 11 April 2019, respectively; and

2. Two affidavits of Ms Kelli Grabham sworn 11 April 2019 and 2 August 2019, respectively.

28. The defendant relied upon the evidence of Ms Margaret Sweeney given by an affidavit sworn 29 August 2019.

Risk Assessment and Risk Management

29. Wilson J gave a comprehensive summary of the RAR and RMR in Lett No 1 (at [54]-[80]), which, with respect, I adopt, as follows:

[54] In consideration of commencing these proceedings a Risk Assessment Report was prepared on 30 November 2011 by psychologist Rachel Terry.

[55] Ms Terry met and assessed the defendant on 22 November 2018. She had available to her the voluminous documentary record which has accumulated over the course of the criminal proceedings against the defendant and his subsequent incarceration.

[56] At the time of the interview the defendant was aged 58 year. He presented as relaxed, and without symptoms of any disorder of thought or perception, or psychosis. His concentration and attention throughout the assessment procedure was considered to be adequate, as was his capacity to communicate.

[57] The defendant gave a history to Ms Terry of being the fourth of six children born to his parents. His parents’ marriage dissolved when he was aged about 4 years, and the family broke up, with the defendant and two of his siblings moving to live with his father and paternal grandparents. The defendant said his grandmother had been physically and emotionally abusive towards him, whilst his father had been distant. When he was able to leave the home, at age 15 years, he did so, thereafter staying with friends. He maintains a relationship with a sister, but no other family member.

[58] Between the ages of 7 and 10 years the defendant repeated his account of having been sexually abused by a Sunday School teacher and, at age 9-10, by a family member. The latter assaults were described as aggressive and violent.

[59] He struggled at school, exhibiting behavioural and learning difficulties that resulted in him being bullied. He left school in Year 8 with poor literacy skills. He has been able to improve these skills since incarcerated.

[60] Before being gaoled the defendant had worked consistently in various unskilled jobs, the longest period with a single employer being employment as a spray painter for ten years.

[61] The defendant said he was heterosexual, having had a number of relationships throughout adolescence and early adulthood, although he characterised them as turbulent and abusive, and “for sex”. He has a son with whom he had no contact, and another two children from a later relationship, one that had lasted for a decade. He has not had contact with either of these children, now aged in their thirties, but expressed a wish to initiate contact.

[62] When discussing the murder of D the defendant said that, at that time, he had been ruminating over his own experience of child sexual abuse, and feeling anger and a wish to exact violent revenge on one of the persons responsible. He had been abusing alcohol and cannabis.

[63] On the day of the murder the defendant said he had been drinking, and had consumed cannabis and Valium, and had lost all of his money gambling. After an argument with his partner he left his home and “came across” the victim in a park. He noticed some similarities between the boy and his childhood self. The defendant told Ms Terry that, in his car with the victim, he again began to ruminate on his own childhood abuse, becoming angry, and even angrier when D complied with his demands. This reminded him of his own compliant behaviour to his abusers, and he became enraged and strangled the boy. The anger he gave vent to he believed to be the anger he felt towards his own abusers. [This account is not consistent with the account given by the defendant contemporaneously.]

[64] Of the homosexual intercourse offences, the defendant said that he had identified with his victim, who reminded him of himself as a boy. He thought the boy felt unwanted and unloved, and initiated the sexual abuse to make him “feel better”. At the time of the first assault, he had been arguing with his partner, and the relationship between them was strained. He had also been using alcohol and cannabis. He acknowledged anal and oral intercourse on that first occasion, but denied anal intercourse thereafter [contrary to the facts that were before the sentencing court, and the statement of the complainant].

[65] Noting the content of the Custody Based Intensive Treatment (“CUBIT”) Programme report, Ms Terry said that the defendant was regarded as having developed insight into his pattern of offending, having identified a number of factors related to his offending conduct, including intrusive memories of abuse as a child, revenge fantasies against his abusers, impulsivity, using alcohol and sex as coping strategies, low self-esteem, difficulties with intimate relationships, and feelings of abandonment and hopelessness. The defendant had acknowledged barriers to victim empathy, including his deviant sexual interest, attitude of approval to sex with children, and the abuse of drugs and alcohol.

[66] To Ms Terry, the defendant described feelings of self-hatred and guilt related to the offences, and a strong sense of remorse. He was able to articulate the likely impact of his crimes on those affected, and expressed the view that he did not deserve to be released from prison until his total sentence had expired.

[67] Ms Terry recorded the defendant’s psychiatric history, noting earlier diagnoses of chronic Dysthymic Disorder, Major Depression, and PTSD. Differential diagnoses of Borderline Personality Disorder and Dependent Personality Disorder have also been referred to. The defendant reported a chronic history of self-harm commencing in early adolescence, and related to feelings of self-hatred from historical trauma.

[68] As to intellectual functioning, Ms Terry noted that the defendant has been assessed on a number of occasions during the course of his incarceration. He has generally been placed in the upper borderline range of intellectual functioning. He has additionally been found to have deficits in concentration, immediate short term memory, learning ability, and executive function. Possible neurological impairment may be indicative of alcohol related brain damage.

[69] The defendant reported longstanding alcohol abuse, commencing at about age 12 years. At the same age he was introduced to cannabis and heroin, becoming a regular user of the former. When intoxicated the defendant said he tended to ruminate on earlier abuse, becoming angry as a consequence. In the months leading up to the murder of Daniel, the defendant said he was intoxicated most days. The defendant also told Ms Terry he had been a problematic gambler.

[70] In custody the defendant’s conduct has ordinarily been satisfactory, with Ms Terry reporting that, apart from eight institutional misconduct charges, the most recent of which is from 2002, the defendant has been consistently compliant with gaol rules and routine, and is regarded as polite and civil in his dealings with staff. He has worked throughout his years in custody, and is considered as having a good work ethic. The defendant has also undertaken a number of educational courses, remaining engaged with educative programmes throughout his incarceration. His literacy and numeracy skills have improved, and he has completed a number of trade courses. Most recently he has undertaken a traineeship in Transport and Logistics – Warehousing Operations Certificate II.

[71] The defendant completed the CUBIT programme between September 2013 and April 2015. This is an unusually lengthy period over which to complete the programme. It was necessary both because the defendant struggled intellectually with some concepts, but also because some of the course content triggered symptoms of PTSD, adversely affecting his ability to participate in the course. The defendant undertook custody-based maintenance after completing CUBIT, and was regarded as strongly motivated to engage with the programme. As at January 2017 staff involved with the programme considered that the defendant had met all goals, with nothing further to achieve through it. Community based maintenance was regarded as necessary on release, to practice and develop the skills acquired in a community setting.

[72] It was also recommended that the defendant receive intervention to help him to address the trauma associated with childhood abuse.

[73] The defendant has completed other courses, including the Life Management Programme (in 2000), the Personal Effectiveness Programme (2000), and the Positive Lifestyles Programme (2000), and a number of courses directed to substance abuse. These include a Basic Drug Education course (1995), Relapse Prevention course (1999), a Drug and Alcohol Workshop (1999), and The Medical Model of Chemical Dependency (2000). More recently, the defendant completed the Getting SMART programme (2009 – 2010).

[74] The defendant seems to have been quite isolated in custody. Until 1998 he received visits from his former de facto partner, thereafter receiving one or two visits per year until 2007, thence no visits at all until 2013. He has received occasional visits since then. The defendant has identified his sister and two married couples as his main sources of support.

[75] Since about mid 2017 the defendant has had day and weekend leave, and reportedly managed leave well, interacting with others politely and without incident. About half of the day leave taken by the defendant has been accompanied, by a Corrective Services Chaplain, with the other half taken in the company of a community sponsor, a childhood friend.

[76] The defendant has never been supervised in the community, because he has never been subject to parole, or any community based sentencing order.

[77] Ms Terry undertook a risk assessment relevant to the defendant. Noting that it is not scientifically possible to accurately predict whether an individual will offend, she reviewed earlier assessments, and administered tests afresh herself.

[78] In 2014 the Level of Service Inventory – revised (“LSI-R”) assessed the defendant as presenting a low-medium risk. A year later, the defendant was assessed by reference to the Static Risk factors (Actuarial Assessment – Sex Offending) tool (“STATIC-99R”), and placed in the low to medium risk range for sexual offending. More modern terminology would rate the defendant’s risk as “average”. A different test, the Violence Risk Scale, administered by Ms Terry in November 2018, placed the defendant within the low risk range for violent offending.

[79] Assessment by Ms Terry in November 2018 of the defendant’s risk of sexually reoffending by reference to dynamic factors, using an actuarial tool known as the STABLE-2007, suggested a moderate density of criminogenic needs. The most significant concern for the defendant was his assessed deviant sexual preference.

[80] Ms Terry has concluded that, taking all of the evidence together, the defendant falls into the average risk category for sexual offending, and the low risk category for violent offending. She regarded the following risk factors as relevant or potentially relevant to the defendant:

1. Difficulties in effectively managing emotions, including anger and frustration. In the past this has led to alcohol and drug abuse, and outbursts of anger and aggression. Low self-esteem, rumination on childhood trauma, and negative emotional states contribute to the inability to regulate emotion. Ms Terry noted that, whilst the defendant had learned some coping strategies whilst in custody, including compliance with medication, his skills had not been demonstrated “in high risk situations – namely within the community”. Many of his strategies to deal with this problem relied upon help from others.

2. Sexual deviancy is a second area of concern and risk. Ms Terry observed that, whilst currently sexual deviancy is not a significant risk factor, and the defendant had demonstrated a lengthy period of stability of approximately 18 years, his “ability to manage these risk factors in a less controlled environment, namely in the community upon his release” was not able to be predicted.

3. Similarly, impulsivity, poor problem solving skills, hostility towards women and “negative emotionality” have not posed real problems in some years in a custodial environment, but could re-emerge in the community.

4. Sexual Preoccupation and the use of sex as a means of coping were highlighted as risk factors prior to the defendant’s completion of CUBIT. Although the defendant has reported a lessening in libido over the last two decades, he was reluctant to discuss the issue with Ms Terry.

30. I interpose to note that Ms Terry also observed, with respect to emotional control, that the defendant has a history of difficulty managing his emotions. Triggers to poor emotional control include mental health decline, feelings of rejection or low self-esteem and rumination of his childhood experiences. Ms Terry commented that Custody-based Intensive Treatment (“CUBIT”) has shown that the defendant has the skills to talk through his problems and regulate his emotions. However, she reported in the RAR:

Whilst this change is positive and relatively consistent over time, it has not been demonstrated in high risk situations – namely within the community. Once released he will be required to have greater responsibility regarding medication, compliance, increased access to alcohol and illicit substances and also face more challenges in respect of developing and maintaining interpersonal relationships including friendships and intimate relationships

31. I continue with the extract from the judgment of Wilson J in Lett No 1 (at [81]-[83]):

[81] Ms Terry regarded the defendant as having some protective factors that could decrease risk factors in the community. These include a small group of prosocial supporters who will assist the defendant upon his release, his asserted willingness to reside in Community Offender Support Programme (“COSP”) accommodation on release, and long term with his sister, his participation in CUBIT and custody-based maintenance, the defendant’s willingness to undertake drug and alcohol counselling, and the positive goals he has set for himself in the community, such as learning guitar and joining a bushwalking group.

[82] In summary, Ms Terry observed that the defendant is a man with a deviant sexual preference for pre-pubescent boys, with offending precipitated by periods of emotional instability, declining mental health, and increased substance abuse. Whilst his first years in prison were dominated by instability of mental health and behaviour, consistent improvement has been noted since about 2000. His participation in educational and rehabilitative programmes has been positive, and there have been positive treatment gains, including development of a good understanding of offences, risk factors, and self-management plans. Risk assessment reflects the defendant’s treatment engagement and documented stability over the last 18 years.

[83] Risk management strategies considered by Ms Terry as potentially useful in the event that the defendant is released to the community include:

1. Community-based maintenance programme conducted by the Forensic Psychology Service;

2. Counselling to assist the defendant to address childhood trauma;

3. Monitoring of compliance with medication to treat his mental health issues;

4. Scrutiny of social contacts, particularly as to any age inappropriate relationships;

5. Unannounced drug and alcohol testing; and

6. Electronic monitoring.

32. The RMR proposed a plan that addressed the defendant’s criminogenic needs identified in the RAR including monitoring his potential for a return to substance abuse, supporting his reintegration, holding to mind his level of institutionalisation and encouraging the defendant’s planned prosocial lifestyle.

33. The RMR proposed to have the defendant attend Forensic Psychology Services to address his sexual deviance and trauma history. The Offender Integrated Management System (“OIMS”) case note of 14 July 2019 shows the defendant had consented to the referral.

34. The RMR also proposed to monitor the defendant’s mental health and his compliance with medication.

35. The measures proposed while on the extended supervision order would be protective and directly monitor and reduce with rehabilitation the re-emergence of acute high risk scenarios.

Treatment or Rehabilitation Programs (s 9(3)(e))

36. In its written submissions, the State contended:

11. The defendant, to his significant credit, has finished all custody based programs relevant to him and shown commitment to them. The defendant has also shown remorse and contrition for his offending. His lack of institutional misconduct charges is exemplary:

a. The defendant has completed the CUBIT program (11 September 2013 to 13 April 2015) and attended all 53 further sessions the Custody-Based CUBIT Maintenance program (27 May 2015 to 18 October 2017); and

b. The defendant has had eight institutional misconduct charges from 1993 to 2002 but none since then.

37. That contention, which may be accepted, should be the subject of some elaboration (which also expands upon the summary of the RAR provided by Wilson J).

CUBIT program – 11 September 2013 to 13 April 2015

38. The defendant commenced and completed the CUBIT program from 11 September 2013 to 13 April 2015. The CUBIT completion report dated 17 April 2015 reported that the defendant participated positively and addressed most of his dynamic risk factors.

39. The report noted that the defendant showed insight into the pathways to his offending and learnt and displayed empathy towards the victims of his offending.

40. The author of the CUBIT report noted that the defendant had addressed dynamic risk factors but further commented that there was no evidence of the defendant managing these risks in an unrestricted environment so the risk of them re-emerging remains. Those dynamic risk factors were as follows:

1. intimacy deficits;

2. hostility towards women;

3. loneliness;

4. emotional identification with children;

5. impulsivity;

6. poor problem solving; and

7. his sexual deviance.

41. Areas of concern, noted in the CUBIT report as requiring further treatment, included the following:

1. the need for trauma counselling to address his childhood trauma which appears to be the source of his Post Traumatic Stress Disorder (“PTSD”) and negative emotionality; and

2. sexual self-regulation, noting that the defendant appeared confused and lacked insight regarding his sexual interests and functioning.

42. The CUBIT report concluded:

[The defendant] has developed an understanding of the factors that may increase his risk of recidivism and developed viable plans which will assist him in managing his risk… [The defendant] has demonstrated that he is capable of and willing to co-operate with supervision and appears to have a pro-social support network who are committed to assisting him in reintegrating into society and managing his risk. An area of continued concern include [the defendant’s] unresolved childhood trauma which is a source of distress and anger but also arousal for him. How [the defendant] will function sexually in the community is unclear. At present he indicated infrequent sexual thoughts and behaviour but this might change significantly in the community.

Custody-based maintenance program – 27 May 2015 to 18 October 2017

43. The defendant participated in further custody-based maintenance programs from 27 May 2015 to 18 October 2017 and reliably attended all 53 sessions. At the completion of the program, a report entitled “Custody-Based Maintenance Participation Summary/Review” (“the participation summary”) dated 22 January 2018 was produced by Ms Victoria Cohn, Psychologist, and Ms Aimee Press, Senior Psychologist. The participation summary noted the focus of the sessions was to solidify and practice learnt treatment strategies, which was described as the defendant’s “identified goals” and included, inter alia, the following:

1. emotional regulation strategies, which the defendant demonstrated he had learnt and could utilise; and

2. assertive communication skills, which gave the defendant tools to resolve conflict and develop healthy adult attachments.

44. The participation summary concluded that the defendant demonstrated insight into core treatment concepts and increased in his ability to apply emotion regulation strategies, developed his assertive communication skills and develop healthy adult attachments. Having achieved his identified goals for custody-based maintenance, it was recommended that the defendant would benefit from community-based maintenance programs upon release to continue to develop those skills and practice them in a community setting (another evidentiary reason corroborating the need for an extended supervision order).

Overview Criminal History, Custodial record and CUBIT

45. A useful chronological overview of the defendant’s offending, custodial record and CUBIT participation was provided by the State in tabular form, which I extract below:

Date	Event
1988 to 1992	Committed the serious sex offences on [V2]
22 December 1992	Murdered Damien
24 December 1992	Arrested for the murder of Damien
26 January 1994	[V2] reports to Police serious sex offences committed by the offender
31 January 1994	The offender is arraigned for the murder of Damien
February 1994	Trial for the murder of Damien
10 February 1994	Jury returned guilty verdict for murder
4 March 1994	Justice Ireland sentenced the offender for the murder of Damien to 26 years in prison (19 years 6 months non-parole period)
27 March 1995	CCA Severity appeal – sentence confirmed and appeal dismissed
5 July 1995	The offender is arrested for the serious sex offences committed on [V2]
16 November 1995	The offender pleads guilty to the serious sex offences
12 April 1996	Judge Gallen sentenced the offender to 7 years imprisonment for the serious sex offences
6 July 2002	Last institutional misconduct charge (had 7 prior to this one from 1993 to 2000)
11 September 2013	The offender commenced CUBIT
23 June 2014	First eligible for parole: parole not recommended to allow offender to complete CUBIT
13 April 2015	Completed CUBIT
27 May 2015	Commences custody maintenance programs
4 May 2017	Approved for escorted day leaves
22 January 2018	Completed 53 sessions with custody maintenance program
27 April 2018	Latest parole hearing: offender refused release to parole

Results of Other Expert Assessments (s 9(3)(c))

46. I adopt, with respect, the summary provided by Wilson J in Lett No 1 (at [29]-[53]) as to assessments made by experts other than the independent court appointed experts:

[29] During the course of the criminal proceedings, and particularly in support of the partial defence of diminished responsibility advanced at his trial for murder, the defendant was seen and assessed by a number of psychiatrists. He was also assessed from time to time during the course of his sentence.

[30] Dr Pauline Langeluddecke, a psychologist, completed a neuropsychological assessment of the defendant on 25 July 1993 at Long Bay Gaol.

[31] Dr Langeluddecke assessed the offender to be quietly spoken and polite, with an open and genuine manner. He was cooperative with her testing and was oriented as to the time and place of his assessment. His rote mental operation was “reasonably rapid and accurate” and his immediate auditory recall span was within average range. She noted his attention capacity was poor and that he appeared anxious. Test results also indicated his “digit reversal, tracking, serial counting and digit copying tasks” was well below average for his age.

[32] Dr Langeluddecke took a history from the offender which was similar to those given to other health professionals over the years. The defendant told Dr Langeluddecke that his childhood had been characterised by “a lot of tension” and that he did not have a connection with any of his family members. He said that he did not perform well at school and that he still had difficulty with reading and writing. He detailed his employment in semi-skilled roles after leaving school at age 15.

[33] The defendant reported daily abuse of alcohol since the age of 14, consuming at least 24 cans of beer per day. He believed alcohol allowed him to escape negativity and help him relax and sleep. Dr Langeluddecke noted that the defendant’s alcohol abuse severely compromised his relationships and “rendered him prone to impulsive, irresponsible behaviour”. Gambling was also noted to be problematic.

[34] The defendant referred to the de facto relationship in which he had been involved prior to his incarceration, and to his two children to the relationship.

[35] In discussing the defendant’s history of mental ill health, Dr Langeluddecke noted his longstanding history of depression, which had worsened in the six month period before the murder of D. He described feelings of sadness, anger, troubled sleep, and his irritable and irrational personality. During this time, substance abuse worsened, with the defendant abusing both alcohol and medication prescribed to his girlfriend.

[36] Dr Langeluddecke used a range of testing to assess the defendant’s functioning, namely the Revised Wechsler Adult Intelligence Scale (WAIS-R), the Beck Depression Inventory test, and the Spielberger Inventory test. This testing placed his intellectual capacity at the upper borderline level, with his verbal and visuospatial skills well below average for his age. Dr Langeluddecke’s testing also indicated the defendant’s concentration, immediate to short term memory, and learning abilities were limited. His psychomotor speed, higher level problem solving, sequencing, and attention to detail were poor, indicating possible impairment of non-verbal abilities due to a neurological or psychiatric syndrome. His executive function was poor and his scholastic skills at early primary school level.

[37] Using the Beck Depression Inventory test, Dr Langeluddecke concluded that the defendant suffered moderate to severe depression; the Spielberger Inventory test indicated that he had high levels of general and situational anxiety. There was an unconfirmed possibility of neurological damage due to alcohol abuse.

[38] Dr Bruce Westmore, forensic psychiatrist, assessed the defendant on 22 January 1994 at Long Bay prison. When he saw the defendant, the defendant displayed deep lacerations to his forearms from self-harm.

[39] Dr Westmore began by noting that the offender did not suffer from a mental illness at the time of the assessment, or at the time of the 1992 offence. He recorded an account of the murder given to him by the defendant, including that the defendant recalled thinking that the victim represented himself. He recollected his feelings of self-loathing and self-hatred and his impulse to kill. The defendant said that panic had set in when he picked up the child: “’everything flashed in my mind…it was all flashing in front of me, my life….I started to panic and cry and I strangled him”. He said to Dr Westmore, “I couldn’t handle what I’d done, I couldn’t believe it”. He admitted that “he thinks about his victim often…regrets his actions…feels sorry for the boy and his parents and…for his own wife and children”. Dr Westmore suggested that the offender showed good insight into the seriousness of his offence.

[40] Dr Westmore recorded details, similar to those documented in more recent reports, of the sexual offences against the defendant by his Sunday School teacher and a family member.

[41] Dr Westmore suggested that the offender’s tendency to seek death as a child, not wanting to touch children, his detached relationships as a child, the drug and alcohol abuse and self-mutilation, all pointed to a diagnosis of personality disorder.

[42] Dr Leonard Lambeth, psychiatrist, assessed the defendant in January and again in March 1996. After the January 1996 assessment, the doctor concluded that the defendant had Post Traumatic Stress Disorder (“PTSD”) after an assault in gaol, and major depression.

[43] In his March 1996 report, Dr Lambeth recorded a detailed history obtained from the defendant of the sexual abuse of him by his Sunday School Teacher, from age 9. The abuse involved threats of dismemberment if the defendant told anyone. After a family member also began to sexually abuse him, the defendant recalled feelings of anger and confusion, recollecting that he “didn’t care if he was dead”.

[44] Dr Lambeth concluded that the defendant was suffering from substance abuse, borderline personality disorder, dependent personality disorder, PTSD, and chronic severe depression, namely chronic Dysthymic Disorder, at the time of D’s murder.

[45] Psychiatrist Dr Scott Clark assessed the defendant in early 2013 at the request of the Serious Offenders Review Council, and prepared a report for it.

[46] Dr Clark obtained a history from the defendant, consistent with that given to other practitioners. The defendant said that he had seen a psychologist at Goulburn and Long Bay gaols during his time in custody.

[47] In his report, Dr Clark noted that the defendant did not display symptoms of psychotic illness, auditory hallucinations, paranoia or delusions. He denied any suicidal thoughts. Despite having cut and stabbed himself years prior to the interview, the defendant denied ever trying to kill himself. This appeared to contradict a medical entry in 1992 referred to by Dr Clark, which recorded that the defendant had a history of four suicide attempts prior to entering custody. A further assessment by a psychiatrist in 1992 noted the problematic relationship that the defendant had with his wife, his ongoing alcohol abuse and his depressive symptoms. Medical notes from 1993 recorded continued instances of self-harm.

[48] Dr Clark referred to a psychiatric assessment by Dr Darcy in 1994 noting the defendant’s history of sexual abuse between the age of 7 and 12 years. The assessment also referred to a childhood spent with the defendant’s grandmother, the death of his father at the age of 15, his feelings of guilt and desire to die as a child, and his dependence on substances, namely alcohol, cannabis, and benzodiazepines. Dr Darcy’s assessment also recorded the defendant’s problematic relationship with his wife, his gambling addiction, and anger issues. Dr Darcy recommended taking Mr Lett off his prescribed antidepressants and antipsychotic medication and replacing it with psychotherapy.

[49] Dr Clark also referred to the 2011 psychiatric report of forensic psychiatrist Dr Andrew Furst, who noted the defendant’s 12 year history of self-harm and need for counselling. He described similar symptoms to those the defendant had reported in the past, namely, stress, insomnia, and an inability to tolerate the closeness of others. Dr Furst observed evidence of personality dysfunction and chronic mood disorder. He recommended continuation of an antidepressant drug, Cipramil, which at that time had recently been increased in dosage.

[50] Dr Clark assessed the defendant’s state of mind. The defendant described his mood as “’up and down’”; however, Dr Clark observed that, at the time of the assessment, he did not appear anxious and displayed no symptoms of thought disorder. The doctor regarded the defendant as rational, oriented, relevant, and coherent, and noted no psychotic symptoms, or suicidal or homicidal thought during the assessment. Dr Clark did not test the defendant’s cognitive functioning.

[51] Dr Clark referred to the defendant’s history of chronic depression, with adjustment difficulties, his former suicidal thoughts and behaviour, his symptoms of anxiety, his physiological symptoms, and his feelings of claustrophobia. The doctor also noted the defendant’s obsessive habits and compulsive behavioural patterns. He attributed this to mixed anxiety disorder. Dr Clark also noted the defendant’s borderline and dependent personality disorders, and PTSD. He said that he may suffer from increased symptoms of depression and anxiety in the future.

[52] The defendant told Dr Clark that he did not want to leave custody, as he feels safe there from drugs, alcohol, and his anger. He said custody is where he “‘feel[s] free’”. Dr Clark noted that the defendant did not ask for parole during his time in custody because he “‘[didn’t] deserve it for what [he] did’”. Dr Clark observed that the defendant appeared anxious about the end of his sentence.

[53] He concluded by noting the defendant’s understanding of his drug and alcohol problems and his acknowledgment that he needs external controls to become, and remain, abstinent. He was however of the opinion that the defendant needed antidepressant medication, with a small dose of quetiapine. He pointed out that the defendant’s confidence and self-esteem were extremely low and recommended a formal cognitive behavioural approach in psychotherapy to address the defendant’s anxiety and mood disorders in order to assist his return to the community.

Reports of Court Appointed Experts (s 9(3)(b))

Report of Ms Howell

47. The report of Ms Howell was the subject of uncontentious summary in the written submissions of the State, from which I draw in the following summary.

48. Ms Howell interviewed the defendant face-to-face for 150 minutes on 5 July 2019 as well as considering the material sent to her (detailed at page 3 of her report). Ms Howell also noted the defendant’s childhood sexual abuse experiences.

49. Ms Howell diagnosed the defendant with PTSD, bipolar disorder, anxiety and depression.

50. Ms Howell considered the PTSD was not just related to his childhood sexual abuse but that his loss of relationship with his mother, and observed that the defendant’s distant and abusive relationships with his father and paternal grandmother may also underpin his PTSD.

51. Ms Howell diagnosed the defendant with bipolar disorder, anxiety and depression because of the defendant’s fluctuating moods and his heightened anxiety with his current circumstances.

52. When discussing the murder and the serious sex offences with the defendant, and in considering the defendant’s motivation for them, Ms Howell observed that:

1. the offences occurred when the defendant’s relationship with his partner deteriorated; and

2. the murder occurred while the defendant was using drugs and alcohol and had a gambling problem.

53. Ms Howell utilised statistical assessment tools and professional judgment tools to categorise the defendant in the average overall risk category for sexual reoffending.

54. Ms Howell found that the defendant’s scores on the Static-99R placed him in the “Average” range of a further serious sex offence. The risk of recidivism with that score is estimated to be around 1.4 times higher than that of a typical such offender. On the other hand, using the Violence Risk Scale, the risk of the offender reoffending is in the low range.

55. Ms Howell opined that the defendant’s risk of recidivism may escalate in the event he returns to alcohol abuse on release, or his current mental health is compromised or his supportive relationships breakdown.

56. Ms Howell commented on the benefit of an extended supervision order. In particular, that:

…participation with FPS in conjunction with a psychologist to provide a cognitive behaviours treatment with regard to his own childhood trauma, and a psychiatrist to monitor medicated compliance, would offer [the defendant] immediate support if he was to commence the use of alcohol and drugs, experience feelings of loneliness and isolation… and there was deterioration of his mental health.

Report of Dr Eagle

57. As mentioned Dr Eagle was the subject of cross-examination. She also gave evidence led in chief. I will commence with a summary of her report as elaborated upon in evidence-in-chief.

58. Dr Eagle interviewed the defendant face-to-face for 120 minutes on 10 July 2019 as well as considered the material sent to her (detailed at para 8 of her report).

59. Dr Eagle observed that the defendant had a childhood trauma history of sexual abuse, having been abused by his Sunday School teacher when he was 7 years old until he was 12 years old, and that the defendant’s brother also sexually abused the defendant when the defendant was around 9 years old until 12 years old.

60. At the time of the interview Dr Eagle noted the following about the defendant’s current circumstances:

1. he is living at Nunyara Community Offender Support Program (“COSP”) in Malabar;

2. he is unemployed and not wanting employment as yet;

3. he is trying to adjust to life in the community including how to catch a bus and use a phone;

4. he is on antipsychotic and mood stabilising medication (quetiapine) and antidepressants (ciprimil); and

5. the defendant stated he still hears inner voices of his Sunday School teacher (who sexually abused him for 5 years as a child).

61. Dr Eagle opined:

13. Mr Lett said he had previously experienced hearing the inner voices of “my Sunday school teacher and brother.” He said these voices still occurred on occasion. He said they usually occurred when he was by himself at night. He said he “tries to tell them what it did to me.” He noted “my brother was supposed to protect his little brother.” He referred to it as his “imagination.” He said that he had discussed the experiences with his psychologists.

62. In her account of the “first sexual offences”, Dr Eagle recorded:

52. Mr Lett said that the first sexual offences started when he was at home alone with the young boy, “little [name omitted]” one night. He said Glenda, his partner, was at work. He said it was not the first time he had felt sexual attraction to a child but he had never acted on it. He said “my Sunday school teacher said he loved me” and he similarly rationalised his conduct towards the victim. He said he sexually abused the victim about a “dozen times.” He said he felt guilt after the first time but repeated it. He said he kept telling himself “he loves me.” He said the victim had problems at school. He said “maybe I wanted him to love me.” He said he had known the victim for about three years before the offending started. He said he had thought about it but never acted on it. He said “I didn’t think I was going to. Maybe I wanted to feel loved.”

53. Mr Lett was asked why he thought the offending started when it did. He said he was having arguments with Glenda and their relationship was deteriorating. He said he had sexual thoughts about the victim. He said he had sexual thoughts about other children and had sometimes masturbated to the fantasies. He said “I knew I could perform with women.”

54. Mr Lett was asked if he thought the sexual abuse would have impacted on the victim and he said “of course it would.” He said “I probably destroyed his life.” He said he stopped abusing the victim for a period of time prior to the Index Offence. When asked why, he said “I didn’t want to be there anymore.” He said that the victim would have been about 10 years old at the time and 14 years old when he came to gaol.

63. Further, under the heading “Psychosexual History”, Dr Eagle stated:

75. Mr Lett recalled first feeling sexually attracted to a child when he was 18 years old. He maintained that he was not sexually attracted to a specific child but only thoughts of a child. He said he had thoughts and fantasies about children in the 8-9 year old age group. He said he would masturbate to these thoughts or would have the fantasies during sexual contact with an adult female. He said the thoughts were always about boys of a similar age to his age when he was sexually abused.

64. Dr Eagle emphasised that, even apart from the defendant’s offending behaviour, he had been attracted to children with occupying thoughts and fantasies from when he was 18 years of age regarding children in the 8 to 9 year old range and had masturbated to those. This was taken into account in the diagnosis of the defendant regarding paedophilia.

65. Under the heading “Mental State Examination”, Dr Eagle observed:

85. Mr Lett was keen to describe his remorse for his offending behaviour. He appeared to volunteer his regret whenever he was asked difficult questions regarding the nature of his offending. He had an intellectual insight into his offending behaviour, for instance citing the use drugs and his experience of sexual abuse as contributing factors. He found it more difficult to show an understanding of his psychological processes (arising from his abuse) that lead to his offending. He minimised his need to address his history of deviant sexual arousal, denying any ongoing problems with deviant sexual arousal. He was also unrealistically optimistic about his ability to address his previous substance use difficulties.

66. The understanding of psychological processes referred to by Dr Eagle concerned the defendant addressing his deviant sexual arousal patterns and his psychological vulnerabilities and an emotional dysregulation, problems with intimacy and impulsivity. Those vulnerabilities are risk factors.

67. Dr Eagle distinguished “sexual deviance” from “paedophilia”, the former being any pattern of sexual arousal that is atypical and the latter being a pattern of sexual arousal that involves pre-pubescent children.

68. Dr Eagle considered that Ms Terry had identified, as a psychologist, sexual deviant disorder in the case of the defendant. Her emphasis was upon risk assessment instruments which referred, in the case of STABLE-2007, to sexual deviancy.

69. Dr Eagle commented on the RAR and the observations by Ms Terry as to Mr Green which it was said included the following:

86. … Mr Green was noted to have received diagnoses of Bipolar Disorder and PTSD in addition to be assessed as having intellectual functioning in the borderline range. He was assessed as falling within a category of offenders at an average risk of future sexual offending and a low risk of future violent offending. He was noted to present with deviant sexual preference in pre-pubescent males giving rise to a sexually motivated murder and a history of contact sexual offending.

70. Dr Eagle provided a number of diagnoses of the defendant.

71. The defendant was diagnosed with PTSD whereby the defendant continued to experience with flashbacks and voices of his Sunday School Teacher triggered by certain noises. Dr Eagle opined:

99. Mr Lett has previously been diagnosed with post traumatic stress disorder (PTSD). PTSD is a disorder that arises when a person is exposed to actual or threatened death, serious injury or sexual violence and as a result has intrusion symptoms (ie. flashbacks); avoidance of stimuli associated with the traumatic events; negative changes in cognition and mood associated with the traumatic event; and marked alterations in arousal and reactivity for a period of time. Mr Lett has a history of exposure to sexual violence in childhood. He has also experienced a serious assault in prison. He has reported experiencing intrusion symptoms. In particular, he said he continued to have “flashbacks” of the sexual abuse he experienced from his brother and Sunday school teacher on occasion and that these were triggered by certain noises (such as tapping). He did not experience ongoing associated physiological symptoms of anxiety and said he was unable to avoid the noises.

72. The defendant was diagnosed with paedophilia because the defendant has described recurrent sexually arousing fantasies with pre-pubescent boys. Dr Eagle considered this the “strongest risk factor which does not appear to have been adequately addressed in [the defendant’s management and rehabilitation”.

73. Dr Eagle opined:

100. Mr Lett has a paedophilic disorder, nonexclusive type, sexually attracted to males. He has described recurrent sexually arousing fantasies, urges and behaviours involving sexual activity with a child under 13 years old. He has acted on these fantasies. He has described them as only occurring in relation to male children. He has reported sexual attraction to adult women. He has reported no ongoing sexual fantasies involving children since his release from custody.

74. This opinion was based upon the defendant having sexual fantasies in relation to children between 8 and 12 years of age. The defendant had acted on those fantasies with pre-pubescent children.

75. Further, in answering the question, “Does the defendant pose a risk of committing a further serious offence?”, Dr Eagle further opined:

121.3.1 … The strongest risk factor is his paraphilia disorder involving pre-pubertal children which, in my view, does not appear to have been adequately addressed in his management and rehabilitation. In addition, [the defendant] is socially isolated; has no demonstrated capacity for stable relationships; has previously engaged in impulsive behaviours in the community; and has reasonably unrealistic or poorly developed plans and goals for the future with evidence of poor problem solving skills. His ability to tolerate a less restrictive environment, after 26 years, where he will be exposed to young children; have access to substances (such as alcohol and drugs); be susceptible to stressful situations; and have unpredictable interpersonal interactions, is untested. His long period of institutionalisation will potentially have also reduced his capacity to navigate life in the modern community without substantial support, increasing the risk of exposure to stress.

76. Dr Eagle opined that the defendant’s goals were superficial in the sense that he simply intended to avoid thoughts of sexual arousal towards children. Whilst the defendant had various objectives, such as developing a genuine relationship with a woman, he had “no real strategies or steps or building blocks to demonstrate how he was going to achieve those goals”. He did not have an adequate strategy to deal with triggers such as exposure to children including adequate coping mechanisms after a lengthy period of incarceration.

77. Dr Eagle also provided the following diagnoses:

1. Severe substance use disorder, in remission but in the context of a highly controlled environment. Dr Eagle considered the defendant is “highly susceptible to relapse… as he reintegrates into the community, is exposed to stressors and has access to substances”.

2. Borderline personality disorder which manifests with traits such as severe affective instability; a pattern of unstable interpersonal relationships; a markedly unstable self-image; recurrent suicidal gestures; impulsivity and inappropriate, intense anger.

78. When discussing the murder and the serious sex offence with the defendant and considering the defendant’s motivation for the offences, Dr Eagle observed that:

1. the murder and the serious sex offences occurred when the defendant’s relationship with his partner at the time deteriorated;

2. the murder occurred while the defendant was intoxicated (cannabis, alcohol and Valium);

3. the defendant explained to her that at the time of the murder he was having flashbacks of his Sunday School teacher and was angry at his Sunday School teacher; and

4. the defendant exhibited cognitive distortions at the time of the offences that enabled him to justify his behaviours, such as identifying with the victims and wanting love from them.

79. Dr Eagle commented that the primary motivation for the murder and the serious sex offences was sexual arousal.

80. In relation to the risk of sexual reoffending, Dr Eagle applied the Static-99R and found, as Ms Howell did, that the defendant fell into the category considered an average risk of reoffending.

81. As to the defendant’s scoring, Dr Eagle also opined:

108. Mr Lett would fall into the category of high risk/need group. The average 5 year sexual recidivism rate for a person in that group with a score of 3 is between 13.5% and 18.3%. This means that out of 100 sexual offenders with similar characteristics, between 13 and 18 would be charged or convicted of a new sexual offence after 5 years in the community. Conversely between 87 and 82 would not be charged or convicted of a new sexual offence during that time period.

82. As to the structural professional judgment tool, “Stable 2007”, Dr Eagle opined:

109. The Stable 2007 is a structured professional judgment tool for the assessment of sexual offenders by using empirically based risk factors to assist with the formulation of risk scenarios and to identify treatment or supervision targets in the development of a risk management plan. This tool can be used in combination with the Static 99R to place an offender within an overall risk category of offenders who share certain characteristics.

110. Mr Lett displayed some dynamic risk factors associated with sexual reoffending including the propensity for impulsive behaviour in various settings (for instance, gambling and being unfaithful); poor problem solving skills (plans for the future are unrealistic and superficial with few, if any, alternatives); and deviant sexual preferences. He has no demonstrated capacity for relationship stability (no current relationship and a prior unstable relationship); potential identification with children (speaking of wanting to be loved by his victims); and some negative emotionality. He has limited or superficial social connections to others (no friends or close relationships) and his identified social supports are mostly professional or known through his sister. There is evidence of using sex as coping in relation to his offending (the Index Offence followed an argument) and his reports no problem with sexual preoccupation, despite significant sexual preoccupation previously.

111. Overall, I am of the view that Mr Lett scored in the high range (12) on the Stable 2007. His ability to reintegrate into the community after a lengthy period of incarceration is unknown. His risk factors may increase, or decrease, once he has had a period of time in the community subject to the success of his reintegration. He would benefit from reassessment of his dynamic risk factors following a period of time (six to twelve months) in the community.

112. The Stable 2007 can be considered with the Static 99R. The combined category of risk is moderate to high. The overall sexual recidivism rates (including sexual breaches) for offenders in the moderate-high risk category on the combined instruments is between 9.7% and 23.9%.

83. Dr Eagle utilised statistical assessment tools and professional judgment tools to categorise the defendant in the moderate overall risk category for sexual reoffending. The risk of recidivism being between 9.7% and 23.9% over a five year period.

84. Assessing the defendant’s risk of violence, Dr Eagle found the defendant had:

1. several historical risk factors empirically linked to risk of violent reoffending including history of violence, substance use, relationships and personality disorder;

2. clinical risk factors associated with violent reoffending including problems with insight; and

3. potential future risk factors in the absence of an extended supervision order:

118. … [I]t is unclear whether [the defendant] would access appropriate professional services and plans or a stable living situation [without an extended supervision order]. He has some personal support, but he has not had the opportunity to develop genuine attachments to others in the community. He has not coped well with stress previously and his lack of coping skills will require psychological intervention and monitoring as he reintegrates into the community.

85. Dr Eagle observed that the defendant has “consistently explained his offending behaviour in the context of memories of the childhood sexual abuse”. Appreciating that the defendant’s childhood trauma has caused severe psychological vulnerabilities Dr Eagle caveats that:

120. … [The defendant’s] explanation [that his offending is explained by his childhood sexual abuse] is presented as a rationalisation which in itself appears to be a cognitive distortion… [The defendant’s] sexual deviant disorder appears to have been given less than proper weight as a contributing factor to his offending and in my view reflects a problematic impairment in [the defendant’s] level of insight.

86. Dr Eagle considered that the defendant’s risk factors empirically linked to a risk of serious offending could be reduced if he secured employment, established stable accommodation and social supports, tolerated stressors without resorting to substance use or inappropriate sexual behaviour and recognised his paraphilia.

87. As to the management of risks in the community under an extended supervision order, Dr Eagle opined:

121.5.1. Mr Lett appears to have demonstrated an initial capacity to comply with an interim supervision order including a scheduling component, despite some anxiety regarding this. Ultimately, in order to progress in his rehabilitation and address some of his dynamic risk factors, he needs to be able to reintegrate into the community.

121.5.2. The most significant risk factor associated with Mr Lett’s risk of reoffending, in my view, is his deviant sexual disorder or paraphilia. This requires specific monitoring and may require treatment with an antilibidinal.

88. In cross-examination, Dr Eagle repeated that the defendant, whilst having an intellectual insight into his offending, lacked a true insight or a genuine understanding of some of the factors associated with his offending.

89. Dr Eagle distinguished between a deviant sexual interest and a paedophilic disorder, describing the latter as a clinical diagnosis, rather than a description. The defendant was diagnosed with a paedophilic disorder not only because he had engaged in repeated sexual offences with a child under 13 but because those acts amounted to sexual arousal with respect to a child, an inclination the defendant has accepted he possessed. He had identified to Dr Eagle that he had sexual arousal with respect to pre-pubescent children and masturbated in respect of the same.

90. Dr Eagle accepted that earlier psychiatric or psychological reports had not diagnosed paedophilia although she stated that Ms Terry’s report had referred to sexually deviant behaviour in the context of a preference for pre-pubescent males which, in substance, amounted to the diagnosis of a paedophilic disorder.

91. However, some earlier psychiatric reports were given in circumstances where the author was not aware of the defendant’s sexual offending with respect to a pre-pubescent male child. That observation applies to Dr Westmore (to whom the defendant had made dishonest denials) and Dr Clark (he had no legal information regarding the charges, court proceedings or sentencing of the defendant and did not do a sexual history). Dr Lambeth did make a reference to paraphilia or paedophilia but did not refer to the defendant repeating his experience as a child and found his offending as sexually motivated.

92. As to the appropriateness of supervision, Dr Eagle opined:

12.6.1. … Mr Lett has been incarcerated for a lengthy period of times. The community has changed significantly since he was initially placed into custody. His capacity to tolerate the stress associated with reintegration into the community is untested. In addition, he has not been exposed to children for an extended period of time. It is unclear how easily or effectively he will be able to develop the lifestyle needed to avoided sexually reoffending. Given the seriousness of the Index Offence, a cautious approach to reintegration would be advisable to ensure Mr Lett is able to tolerate the reintegration process without reoffending and can access the support he requires. The conditions in the Schedule provide an initial broad and comprehensive approach to supervision that would manage Mr Lett’s risk of reoffending in the initial stages of reintegration. His conditions should allow for a gradual lessening of restrictions as Mr Lett demonstrates the ability to tolerate increased independence.

93. The conditions of the extended supervision order sought by the State aim to arm the defendant with these protective factors. The defendant needs a psychologist who can assess his thoughts, monitor his sexual arousal patterns, discuss risk scenarios and manage behaviours that might be of concern.

Level of Defendant’s Compliance with Obligations under Previous Orders (s 9(3)(f))

94. The latest OIMS notes suggest the defendant is compliant with the conditions of the interim supervision order to date. There is no evidence to suggest the defendant would not comply with conditions of the extended supervision order.

95. However, there have been incidents at Nunyara COSP, with the schedules required for clients causing the defendant some stress. There has been an assurance by the Nunyara COSP staff that the schedules are there to assist the defendant to become more confident in the community.

96. Prior to the interim supervision order, the defendant had been compliant in custody and shown he posed no issue with escorted day leave. I agree with the submissions for the State that this suggests he is capable of being supervised on an extended supervision order and would be unlikely to deliberately evade conditions of an extended supervision order.

97. The pre-release report of Corrective Services NSW dated 18 April 2018 noted that the defendant had completed six excursions and two day leaves without incident or issue.

STATUTORY SCHEME

Objects

98. The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

Preconditions

99. Section 5B of the Act is in the following terms:

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

100. I accept that the first three preconditions (s 5B(a)-(c) above) were met in the present matter. The defendant is over 18 years old, has been sentenced to imprisonment for two “serious offences” and when the application was filed the defendant was a “supervised offender” as he was in custody for a serious sex offence.

CONSIDERATION

Section 5B(d): Principles

101. The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk violent offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60]).

102. As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[54])). By way of emphasis or elaboration, some further observations may be made.

103. First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

104. Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 (“Pacey”) and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

[127] In considering the question of whether the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision, I give the words “unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of “unacceptable risk” in State of New South Wales v Pacey at [43] as follows:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

[128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

105. Reference may also be made to the discussion of the test under s 5B(d) in State of New South Wales v Ceissman [2018] NSWSC 508 at [26] as follows:

[26] It is further necessary for the Court to deal with the construction of the term, “unacceptable risk”, within the context of the HRO Act. Ordinarily, a risk is the possibility, chance or likelihood of “harm, hazard or loss”. In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.

106. Thirdly, the requisite finding under s 5B(d) may be made, in an appropriate case involving a single serious offence. In Kamm, Harrison J observed (at [44]):

[44] Finally, while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.

107. Finally, I refer to the judgment of Harrison J in Pacey (at [53]):

[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.

108. The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”.

Unacceptable Risk

109. It is true that the offending which constituted a serious violence offence and serious sex offences occurred a considerable time ago. The earliest offending occurred over 30 years ago. I also acknowledge the efforts of the defendant in engaging with programs such as CUBIT and the custody-based maintenance program to ameliorate risks and that his efforts demonstrate remorse and contrition as to his offending. I also note his exceptional record in custody.

110. Nonetheless, I consider that there remains dynamic risk factors which are exacerbated by the defendant’s untreated childhood trauma and PTSD, institutionalisation and other factors discussed below. Those factors combine to provide satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

111. The professional judgment tools and statistical assessment tools categorised the defendant in the moderate or average category for the risk of sexually reoffending and the low category of violence recidivism.

112. I accept the diagnosis of a paedophilic disorder by Dr Eagle, which is the principal and significant risk factor.

113. As Dr Eagle pointed out, the defendant admitted sexual arousal to pre-pubescent children and had acted upon that urge by masturbation and later offending.

114. As Dr Eagle opined, the defendant has developed an intellectual understanding of his sexually deviant behaviours but not a true insight into the psychological processes which link to his offending or the means of managing those behaviours.

115. Dr Eagle’s evidence was not diminished in cross-examination. It was a cogent assessment based on historical contemporary records including demographic information, histories of previous illness, psychiatric history, clinical custody records, a substance abuse history, accounts of the index offence, the defendant’s “forensic history” including the serious sex offences, personal history, psychosexual history and a mental state examination. Dr Eagle also undertook a clinical assessment. Her expert evidence may be distinguished, in this respect, from many earlier psychiatric and psychological reports in which a paedophilic disorder was not diagnosed because their authors did not have the full relevant history available. I also accept Dr Eagle’s assessment that, in substance, Ms Terry’s assessment as to sexual deviancy does not significantly depart from her diagnosis of paedophilic disorder.

116. I also note the CUBIT report pointed to a continued concern over the defendant’s unresolved childhood trauma which is a source of not only distress and anger but arousal. It was explained that it was unclear how the defendant will function in the community with infrequent sexual thoughts and behaviour potentially changing in a significant way.

117. As mentioned, this diagnosis is a very strong factor indicating a risk of recidivism.

118. I accept the submission advanced by Ms D New of counsel for the State that this dynamic factor is compounded, in terms of risk, by the institutionalisation of the defendant, his historical and high vulnerability to the use of drugs and alcohol as a coping mechanism and his impaired educational functioning skills. (Ms Howell did not diagnose a paedophilic disorder but did identify the risk associated with a return to alcohol abuse and compromise to his mental health upon release from custody).

119. Those concerns incorporate the defendant’s unresolved childhood trauma and the diagnosis of PTSD stemming from that childhood sexual abuse. The symptoms associated with the defendant’s trauma history require further treatment (the PTSD was not addressed in the custody based programs) and remains untreated. Flashbacks are current (Ms Howell also diagnosed the defendant with PTSD).

120. The defendant is highly vulnerable to dynamic risk factors, especially because of his institutionalisation. Risks are elevated in this context because of the high degree of probability the defendant will find it difficult to cope with the stress of returning to the community. There is a prospect of a decline in his mental health and he may seek connection with children with whom he identifies. He may revert to sex to cope. He needs psychiatric and psychological treatment to manage his PTSD and sexual deviance.

109. I accept the proposed support by Ms Sweeney and the defendant’s sister is pro-social but it is not sufficient to manage the risks arising in this respect, particularly as the experts opined the defendant needs structural support, rehabilitation and treatment. That pro-social support needs to be balanced against the protection of the community.

110. The defendant committed the serious violence offence and serious sex offences when he was abusing illicit drugs and alcohol, was feeling lonely, his mental health declined and he was unable to control his emotions.

111. By way of illustration, the serious sex offending occurred when the defendant had an attraction to a boy between the ages of 8 and 12 years, was drinking heavily, had relationship instability and had the opportunity to offend by access to the boy through a friend and, particularly, given he identified with children. Hence, sexual deviance, stress and the use of drugs and alcohol were prevalent during the serious sex offences. There is a risk that, if the defendant offends again, he may violently offend against a young boy he sexually assaults.

112. There is a further consideration bearing upon my judgment as to the existence of unacceptable risk. If the risk factors re-emerge or elevate, the gravity of the offending presented and the consequence for the victim are grave; as Wilson J observed in Lett No 1 – “too terrible to ignore” (at [104]).

Extended Supervision Order

125. Having regard to the factual background of this matter, the various factors discussed under s 9(3) of the Act and the aforementioned conclusion reached under s 5B(d), an extended supervision order should be made.

126. There is a clear basis on the evidence for the Court to make an extended supervision order. The making of such an order will, on the evidence, provide for the monitoring and management of the potential re-emergence of the dynamic risk factors I have described above.

127. Supervision will, in my view, reduce the risk of reoffending and both protect the community and encourage rehabilitation. The circumstances of the defendant’s offending and the possible drastic consequences of the same warrant orders for the safety of the community.

128. I note that I have had regard to the victim impact statement of Bridget Coen generally, in this respect, but not as to the proof of matters of fact raised in the statement particularly paras 5 and 7 thereof.

Conditions and Duration

129. The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). The purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

130. Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake”    rehabilitative steps (at [49]).

131. The Court of Appeal further held at [53]-[54]:

[53] …Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

132. In State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”), the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

133. In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).

134. His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):

[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.

[Original emphasis.]

135. With respect, I accept Button J’s statement of principles in Farringdon.

136. There was no dispute as to the conditions proposed save as to proposed conditions 5 to 8. The defendant submitted that, if his objection to conditions 5 to 8 was not accepted by the Court, then he would seek amendment to condition 7A. Proposed condition 7A is in the following terms:

If within the first 12 months of when the ESO commences the defendant is not issued a warning for a breach of condition 7 nor charged for a breach of condition 7 the defendant will no longer be subject to a schedule of movements and conditions 5 to 7 will cease to apply.

137. The defendant proposed the provision operate with respect to “any 12 month period” during the operation of an extended supervision order.

138. In my view, conditions 5 to 8 should be incorporated in the conditions operating under the extended supervision order.

139. I acknowledge that the defendant does feel anxious when met with scheduling requirements, even feeling overwhelmed at times, and, as the defendant submitted, the defendant will struggle with scheduling given his limited executive functioning and period in custody. However, I accept Dr Eagle’s evidence that the scheduling conditions do not elevate the risk of reoffending but are rather therapeutic in that they will assist the defendant in developing coping strategies. I note Ms Howell did refer to scheduling being stressful for the defendant and that such stress may impact his mental health and his risk of offending. However, Ms Howell did not refer to parts of the OIMS notes which detail the defendant’s actual experience in scheduling to date. That evidence suggests that, with reasonable assistance, the defendant was able to adapt to the scheduling requirements.

140. In my view, these conditions should be understood in the light of the Departmental Supervising Officer (“DSO”) adopting a practical, common sense approach to the scheduling requirements and providing a reasonable opportunity for the defendant to adjust to such arrangements particularly if he moves to independent accommodation. I do not consider, as the defendant submitted, the scheduling arrangement would be set up for the defendant to fail. Rather I consider them rehabilitative.

141. The addition of condition 7A, as proposed by the State, is reasonable in the light of the opinion expressed by Dr Eagle and offers an incentive to comply with condition 7. It is consistent with a rehabilitative approach. I do not consider the variation proposed by the defendant to be appropriate in the circumstances.

142. Dr Eagle and Ms Howell consider the duration proposed is appropriate to address risk and that the suite of conditions proposed is appropriate from a clinical perspective.

143. There was no dispute as to the duration proposed by the State and I consider it appropriate having regard to the opinion of the independent experts.

CONCLUSION

144. In the circumstances, I consider the requirements of s 5B of the Act have been satisfied and pursuant to s 9(1)(a) an extended supervision order should be made effective from 13 September 2019 for a period of 5 years. Further, I consider that pursuant to s 11 of the Act, the conditions set out in the Schedule to the further amended summons should apply and the defendant should be directed to comply with those conditions.

145. The State shall bring in short minutes of order reflecting this judgment by 4pm on 13 September 2019.

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Decision last updated: 13 September 2019