State of New South Wales v Thomas (Final)
[2009] NSWSC 1410
•17 December 2009
CITATION: State of New South Wales v Thomas (Final) [2009] NSWSC 1410 HEARING DATE(S): 14 December 2009
JUDGMENT DATE :
17 December 2009JUDGMENT OF: R A Hulme J DECISION: Continuing detention order for 18 months. CATCHWORDS: CRIMINAL LAW - serious sex offender - aged offender but still assessed as high risk of re-offending. LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006
Crimes Act 1900CATEGORY: Principal judgment CASES CITED: Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249
Cornwall v Attorney General (NSW) [2007] NSWCA 374
RJE v Secretary To The Department Of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opportunity Commission [2008] VSCA 265
State of New South Wales v Thomas [2008] NSWSC 1340
State of New South Wales v Thomas (Interim) [2009] NSWSC 1119
The State of NSW v Fisk [2009] NSWSC 778
Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448
TSL v Secretary to the Department of Justice [2006] VR 109PARTIES: The State of New South Wales (Plaintiff)
Bruce Malcolm THOMAS (Defendant)FILE NUMBER(S): SC 14697/09 COUNSEL: Mr D Staehli SC with Ms S Callan (Plaintiff)
Mr M Dennis (Defendant)SOLICITORS: I V Knight (Crown Solicitor)
Peter Murphy
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONR A Hulme J
17 December 2009
JUDGMENT2009/14697 The State of New South Wales v Bruce Malcolm THOMAS (Final)
1 HIS HONOUR: The State of New South Wales (the State), by further amended summons filed on 14 December 2009, applies for a continuing detention order in respect of the defendant pursuant to s 14A of the Crimes (Serious Sex Offenders) Act 2006 (“the Act”). The matter was initiated by the filing of the first summons on 6 October 2009. I have earlier made an interim detention order: State of New South Wales v Thomas (Interim) [2009] NSWSC 1119 (“the interim judgment”).
2 Mr Thomas is a sex offender within the meaning of s 4 of the Act as he has in the past been sentenced to imprisonment following conviction for a “serious sex offence” as defined in s 5(1)(a), being aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900.
3 The application is brought under s 14A which permits the State to apply for a continuing detention order against a person who is found guilty of an offence under s 12, being an offence of failing to comply with an interim or extended supervision order. The offender was made the subject of an extended supervision order in proceedings determined by Adams J last year: State of New South Wales v Thomas [2008] NSWSC 1340. The order was made on 8 October 2008 and was for a period of 12 months. On 17 July 2009 at the Waverley Local Court the defendant was convicted and sentenced to imprisonment for 12 months, with a non-parole period of 9 months, in respect of 3 offences of failing to comply with that order. The sentences were each specified to have commenced on 22 January 2009. The defendant’s parole expired on 21 October 2009. He has remained in custody since that time pursuant to the interim detention order that I made on 20 October 2009 and which I renewed on 16 November 2009 and further renewed at the conclusion of the hearing before me on 14 December 2009.
Issues for determination
4 The Court may determine an application under Part 3 of the Act, which this application is, by making an extended supervision order or a continuing detention order, or by dismissing the application: s 17(1).
5 An extended supervision order may only be made if the Court is satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision: s 17(2). It may make a continuing detention order only if it is satisfied of that matter and further, that there is a high degree of probability that adequate supervision will not be provided by an extended supervision order: s 17(3). In determining whether to make either of those orders the Court must have regard to the matters listed in s 17(4) in addition to any other matter it considers relevant. In this case there is the additional requirement that the Court have regard to the nature of the failure to comply with the requirements of the extended supervision order made by Adams J and the likelihood of further failures to comply: s 17(4A).
6 As I mentioned in the interim judgment (at [10]), the “high degree of probability that the offender is likely to commit a further serious sex offence” requirement is not without difficulty. Authority which I must follow has held that “likely in s 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50%”: Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448 at [89], followed in Cornwall v Attorney General (NSW) [2007] NSWCA 374. Whether that is to remain the accepted construction of the word in this context remains to be seen: The State of NSW v Fisk [2009] NSWSC 778 per Howie J at [24]. The alternative construction discussed in the authorities is that of McClellan CJ at CL in Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 at [50] where his Honour held that “likely” in this context meant “more likely than not”. That is now the construction applied in Victoria: RJE V Secretary To The Department Of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opportunity Commission [2008] VSCA 265, in contrast to the construction in TSL v Secretary to the Department of Justice [2006] VR 109 which was followed only for reasons of comity in Tillman v Attorney General (NSW).
7 As to the term “high degree of probability”, and the standard it requires in comparison with “likely”, the Court of Appeal said in Cornwall v Attorney General (NSW):
[21] The expression “a high degree of probability” indicates something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely” as explained in TSL .
8 As to the second element of s 17(3), the Court in Cornwall v Attorney General (NSW) explained:
[22] On that approach, when one comes to the second element of s.17(3), what is required is satisfaction to a high degree of probability (that is, beyond a mere balance of probabilities) that adequate supervision will not be provided by an extended supervision order; that is, that even if there is an extended supervision order, the offender will nevertheless still be likely to commit a further serious sex offence.
9 This requires a consideration of the nature of the proposed supervision and the controls and restrictions that would operate under it in order to determine its adequacy to meet the risk
10 In considering these issues the primary object of the Act should be borne in mind. It is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community: s 3(1). Another object of the Act is to encourage serious sex offenders to undertake rehabilitation: s 3(2).
Stance taken by plaintiff and defendant
11 On behalf of the plaintiff it was submitted that I should make a continuing detention order for five years but if not persuaded that this was appropriate I should make an extended supervision order for five years.
12 On behalf of the defendant it was submitted that I would not be satisfied to a high degree of probability that he is a person who is likely to commit a further serious sex offence. Alternatively, it was submitted that if I was so satisfied, then I should make an extended supervision order for up to five years.
The defendant’s offending history
13 It is convenient to repeat the summary of the defendant’s offending history that I set out in the interim judgment:
[14] The details of the earlier offences are sparse. The first offence [1968] involved the defendant kissing a 17 year old acquaintance and then, he said, “I got carried away and went too far”. He conceded that the complainant’s allegations of violence “could be right”. What he actually did is unknown. The next offence [1969] involved him dragging the 23 year old victim into his house, hitting her and then having forceful anal intercourse. The third offence [1978] arose from circumstances in which he and another man were travelling in a car and picked up the 16 or 17 year old victim, her 17 year old male friend and her 13 year old sister. They were driven into bushland against their wishes where the defendant dragged the victim into the bush, threatened her with a gun he claimed to have, and digitally penetrated her before having forced vaginal intercourse. The next offence [1981] occurred when the defendant was working as a bouncer at a disco. He met the 23 year old victim and bought her some drinks before she went home. He followed her home but on the way grabbed her and had forcible vaginal intercourse. A little over a year after being released on parole [1985] he met a woman at a social security office, left and travelled on the same bus with her and managed to persuade her to allow him to enter her home on being requested to provide him with a cup of tea. He grabbed her and fondled her breasts, threatening to “break every bone in (her) body” if she told the police. Fortunately he took heed of her distressed demands for him to leave the house. A month after a subsequent release on parole [1996] he committed perhaps the most serious of this catalogue of offences. He turned up unannounced at the home of the girlfriend of a former cellmate and persuaded her to invite him in for a cup of tea. He quickly produced a large carving knife and proceeded to commit a succession of sexual assaults over a period of about three hours, sometimes in the presence of the victim’s three year old son.[13] The defendant has a long history of committing criminal offences, particularly sexual assault offences. The sexual assault offending commenced with the assault of a 17 year old female on 21 December 1968 when the defendant was 21 years of age. 6 weeks after a good behaviour bond was imposed for that offence he committed an offence of buggery against a 23 year old female. He was sentenced to imprisonment for 7 years with a non-parole period of 5 years. He was released from custody in 1975 but in January 1978 committed an offence of rape against a 16 or 17 year old female for which he received a sentence of 8 years with a non-parole period of 3 years. He was released on parole in July 1981 but in November of that year committed an offence of sexual intercourse without consent. For that offence he was sentenced to 4 years 10 months with a non-parole period of 2 years 2 months. He was released on parole in August 1984. In November 1985 he committed an offence of indecent assault and was sentenced to imprisonment for 9 months. After his release in respect of that sentence he received other sentences, most notably a sentence of 15 years with a non-parole period of 11 years which was later quashed by the Court of Criminal Appeal when his appeal against conviction was allowed. Nevertheless, whilst he was on parole in respect of that sentence he committed an offence of aggravated sexual intercourse without consent for which he was sentenced to 12 years with a non-parole period of 9 years. The sentence commenced on 12 July 1996. He was not granted parole and served the full-term of that sentence.
14 These offences are all quite serious. They involve victims who were women aged in their late teens to early twenties who were strangers or not well known to the defendant. They were assaulted in secluded or private locations and there was either actual or threatened violence over and above the sexual assault itself. They were generally opportunistic offences with little indication of any detailed planning with the possible exception of the 1996 offence during the course of which the defendant told the victim that he had been stalking her.
15 In sentencing the defendant for the last matter in 1996 his Honour Judge Phelan said that the defendant “cannot be ruled out as a future danger to society”. He referred to the need for a long term program for there to be any prospect of rehabilitation. He also made the following remarks:
I consider that I am dealing with a person who might well be able to manipulate many doctors, many psychiatrists and many of those who, in the past, have tried to assist him. ... I have certain reservations with a great deal of the conclusions that are expressed [in the doctors’ reports] because I think I am dealing with a highly manipulative man who is able to present what he wants to present in order to get the best interests out of it for himself.
16 Another notable feature of the defendant’s offending history is the number of times that he has reoffended soon after being released into the community under a form of conditional liberty, whether by way of good behaviour bond or parole.
Extended supervision order imposed in 2008
17 In the interim judgment I made brief reference to the nature of some of the evidence that was before Adams J and the reasoning which led to his Honour making an extended supervision order as opposed to the continuing detention order sought by the State:
[15] The defendant has now spent close to 35 of the last 40 years in custody and there is material suggesting he is institutionalised.
[17] The defendant has been assessed as being at high risk of re-offending. His credibility was found wanting by Adams J who said at least twice in his judgment that he did not believe him. In considering whether to release him under supervision or to make a continuing detention order, his Honour remarked that the fear of a return to prison if he did not fully comply with the conditions of a supervision order was powerful consideration in favour of making a supervision order, notwithstanding the defendant’s commission of serious offences in the past in breach of parole undertakings. He noted that the level of supervision and control to which the defendant could now be subjected was far greater than was possible in the past. He noted that the commission of any criminal offence, not just a serious sex offence, would result in the defendant being returned to prison. So too would the failure to comply with other stringent requirements of a supervision order. As a result, his Honour said that he was satisfied that, “supervision in accordance with the order and whilst he is resident in COSP accommodation is adequate to ensure that it is not likely that he will commit a further sex offence whilst under supervision”: State of NSW v Thomas (supra at [71]). The reference to “COSP” was to the Community Offender Support Program centre at Malabar.[16] The material before me is largely the same as was before Adams J last year. I do not propose to set it out in any detail. I am grateful for the summary that appears in his Honour’s judgment. At the risk of doing a disservice to his Honour’s analysis, the situation may be briefly summarised. The defendant has an antisocial personality disorder and has exhibited behaviours as a manifestation of that disorder since his early teenage years. He has committed sexual offences, some of the utmost gravity with violence or threats of violence, on six occasions between 1969 and 1996. Offences have been committed whilst in the community on conditional liberty by way of good behaviour bond and parole. The most serious offence was the last which was committed only a month after parole release.
Events after release on extended supervision order
18 Given the requirement of s 17(4A) it is appropriate to also refer to the summary of the events which occurred following the release of the defendant on the extended supervision order made by Adams J:
[18] There were 29 conditions of the extended supervision order (ESO). They included that he accept the supervision and guidance of the Probation and Parole Service (which included the Community Compliance Group of the Department of Corrective Services), that he comply with any reasonable direction given by supervising officers, that he give advance notice of his proposed movements and obtain prior approval for any proposed change, and that he not possess or consume any illicit drugs.
[19] He was released from custody on 8 October 2008 and proceeded to the COSP centre. He disclosed in an induction interview that he had used cannabis the night before. He told the interviewing staff member that he needed to obtain some strong pain relief “so will not smoke pot” . He signed a document headed “Core Rules” which set out the rules that residents of COSP must comply with. They included that there was to be no smoking on the premises except in designated areas and not to bring on to the premises or have in possession any illegal drugs or drug paraphernalia.
[20] On 10 October 2008 the defendant acknowledged a number of requirements by signing a “formal written direction” . It included that he was “not to be in possession and or use …(a) prohibited drug or substance”. He acknowledged that breach of any of the directions in this document would be considered a breach of the ESO and could result in being returned to prison.
[21] A drug analysis test on 10 October 2008 was clear.
[22] In an Offender Intake Data Form completed on 29 October 2008 the defendant’s history included that he had smoked cannabis since the age of 9 and had been using that drug whilst in the prison at the rate of 16 grams per week. This document includes that in relation to his latest sexual offence he said that he had pleaded guilty but he was in fact not guilty. He alleged that he was “framed (set up by victim)”.
[23] On 22 November 2008 the defendant was abusive, argumentative and threatening towards an accommodation support worker over an issue of when he would complete some chores that had been assigned to him.
[24] The following day the same accommodation support worker recorded that the defendant had been argumentative about a request that he be permitted to leave the premises in order to visit a sick family friend at Woy Woy. He was told he would not be permitted to leave without prior approval of his schedule. He became abusive and threatened to kick the gate in if it was not opened for him. The author also noted that the defendant had been playing games and pushing boundaries. He had constantly been spoken to about sexualised comments to female staff, smoking within the buildings and failure to do chores properly.
[25] The Senior Compliance and Monitoring Officer of the Campbelltown Community Compliance Group (CCG) reported the defendant on 29 November 2008 for being in breach of his ESO. He had been found to be in possession of cannabis and implements used for ingesting the same. He admitted that he had been using cannabis away from the centre. The report also mentioned the defiant behaviour I have referred to above. It was recommended that the ESO be revoked. THC was detected in a drug test performed on 29 November 2008. On the evening of 29 November 2008 the offender was arrested and charged with failure comply with his ESO. He remained in custody until released on bail on 2 December 2008.
[26] Before returning to the COSP centre on the evening of 2 December 2008 the defendant was seen at the Westfield Eastgardens shopping centre asking members of the public for directions to Anzac Parade. He told a number of people that “he had just been released from jail for rape, and it was worth every minute of being in jail for the enjoyment he got out of what he had done”.
[27] Back at the COSP centre the defendant was searched. A small quantity of green matter was found which was subsequently surrendered by staff to the police. Four days later, on 6 December 2008 the defendant was again found to be in possession of a small quantity of green vegetable matter which was also surrendered to the police. On 8 December 2008 the defendant was arrested and charged in respect of his possession of 0.3 grams of cannabis leaf and also with failure to comply with the ESO. He was released on bail after appearing at Waverley Local Court on 9 December 2008.
[29] On 21 January 2009 the defendant wrote a “Statement of Request” which was said to be for “the right to live in peace for what life I have left”. Reference was made to him “trying to (do) my best to follow your unlawful laws”. It concluded:[28] On 13 January 2009 the defendant was found to be in possession of items of clothing that were suspected of having been stolen. He was charged with an offence of goods in custody. The items of clothing comprised four T-shirts and five pairs of socks. He was also charged with failure to comply with the ESO.
I would like to bring to your notice that you are wasting my short life and your sanity by trying to force me into anything unlawful. If these reasonable requests cannot be met could you please return my case to court ASAP. (Spelling errors corrected).
[30] On 19 January 2009 the offender acknowledged by signing a “formal written direction” requirements that he not to go into any retail store without prior approval and that he fulfil the daily reporting condition of his bail undertaking by leaving the centre at 8.00am and return to the COSP centre no later than 9.30am. This had been preceded by a verbal direction to that effect on 15 January 2009. On 16 January 2009 he returned to the centre at 10.20am and he was in possession of items purchased at a retail store that had not been approved. On 19 January he returned at 10.09am. On 20 January he returned at 9.45am. On 21 January he was approved to attend an office of the Department of Housing at Maroubra between 1.00pm and 3.30pm. He returned at 4.20pm. He explained that he had been to Broadway to see Prisoners Aid in relation to obtaining a birth certificate. He did not have approval for this. His satellite tracking unit was not operational and appeared to have gone flat. It is said that this can be caused by incorrect or insufficient charging by the offender. On 22 January the offender reported to Maroubra police as required at 9.07am. Rather than returning to the centre he proceeded to go to the Sydney CBD where he was located at various locations. He returned to the centre at 3.25pm. These matters all constituted breaches of conditions of the ESO (conditions 1, 3 and 4) that he accept supervision and guidance for the term of the order, that he comply with any reasonable direction, and that he inform his supervising officer of movements in advance on a weekly basis and obtain prior approval for any proposed change.
[31] On 21 January 2009 the defendant’s tracking device was located in the grass in front of his room in the rain. Apparently a tracking device left in the rain has a likelihood of malfunctioning. This was a breach of a condition of the ESO (condition 8) that he comply with all instructions in relation to the operation of the equipment and must not tamper with or remove such equipment. For this, and the other breaches referred to earlier, it was recommended on 23 January 2009 that the ESO be revoked immediately.
[32] On 22 January 2009 he was charged with failure to comply with his ESO on 16 January 2009. Bail was refused. He has been in custody since that date. After he was taken into custody he was found to be in possession of some items of jewellery. A charge of goods in custody was preferred.
[33] On 12 May 2009 the offences of goods in custody and failure to comply with the ESO of 13 January 2009 came before Waverley Local Court. The latter offence was dismissed but for the former the defendant was sentenced to 1 month imprisonment from 22 January 2009.
[35] All of the other outstanding charges were determined at Waverley Local Court on 17 July 2009. He was convicted of the offences of failing to comply with the ESO on 29 November, 6 December 2008 and 16 January 2009 and sentenced in each case to imprisonment for 12 months with a non-parole period of 9 months with all sentences specified to commence on 22 January 2009. For the offence of possessing a prohibited drug on 6 December 2008 there was a sentence of 3 months commencing on the same date.[34] On 23 June 2009 the offence of goods in custody in relation to the jewellery was dealt with at Central Local Court and a 2 month term of imprisonment dating from 22 January 2009 was imposed.
Participation in treatment or rehabilitation programs
19 The defendant has only participated to conclusion in one sex offender treatment program, being the nine week Introductory Sex Offender Redirection Training program in 2001. He is reported to have experienced difficulties in engaging with the program, primarily because of his claimed inability to recall events and his unwillingness to accept responsibility for his offending behaviour. The report included that he had no concept of victim empathy and, rather, projected a great deal of disparaging comment towards the victim. He was regarded as a “high risk, most dangerous individual”.
20 When subject to an interim detention order last year the defendant undertook the Pre Treatment Program in response to a suggestion by Adams J. This is described as a motivational and psycho-educational program aimed at increasing an offender’s motivation and readiness to participate in a sex offender treatment program. He participated in five of six sessions between 13 August and 21 September 2008. He is reported to have been involved in group discussions and to have made a positive, if superficial, contribution. It was concluded that the program was beneficial to the defendant although he obviously did not receive the full benefit of the program because he was released before he had reached the stage of discussing his own offending behaviour.
21 The defendant also engaged in six individual treatment sessions with a specialist psychologist during the same period. He was reported to have engaged in the process and developed some insight, although his denial of some offences and claimed non-recollection of others was said to have been a barrier to a fuller understanding of his offending.
22 The Custodial Based Intensive Treatment (“CUBIT”) program is an 8 to 10 month program with a level of intensity said to be commensurate with international best practice. It has been available since 1999. The defendant has persistently refused to undertake this program because, he has claimed, he does not want to mix with paedophiles. The general consensus amongst the experts in the 2008 proceedings and now (except for one expert, Dr Jeremy O’Dea, who did not address the issue) is to the effect that there is no physical or mental impediment to the defendant engaging in the CUBIT program. The only impediment seems to be his willingness to do so.
Risk Assessment Report by Patrick Sheehan, psychologist
23 Mr Patrick Sheehan, Senior Specialist Psychologist in the Serious Sex Offenders Review Group of Corrective Services NSW has provided a Risk Assessment Report. He made an extensive review of the defendant’s conduct following his release last year and concluded that the extended supervision order was not a success in assisting the defendant to make a controlled adjustment to community life. In his view the defendant displayed an ambivalent attitude to his performance under supervision, stating, “I fucked it. I threw it away” and “I believe I reoffended because I wanted to come back to gaol”. That said, it is also notable that the defendant did not take any responsibility for the conduct which constituted breaches of the order, either denying the events, claiming to have been set up, or attributing them to an innocent misunderstandings.
24 Mr Sheehan observed that it was difficult to accurately gauge the defendant’s attitude to his risk of sexual recidivism, given his denial and minimisation of offending. He did not consider the denial to be directly relevant to the defendant’s risk of reoffending but considered that it inhibited the capacity of supervising and support personnel to manage his risk. The defendant offered the assurance that “I will never rape anyone again, I know that for a fact” but that is of little comfort because of his inability to articulate an understanding of factors that give rise to the risk of reoffending.
25 Mr Sheehan noted the limited treatment that the defendant has undertaken and considered that such programs that he had completed would not have had the intensity and duration required to meet his criminogenic needs. He considered that the defendant’s ongoing difficulties in self-regulating his behaviour when under supervision tended to show that the treatment interventions have not successfully facilitated enduring change.
26 The defendant is now 62 years old and his health is rather poor and so it might be thought that these factors would ameliorate the risk of reoffending. However, Mr Sheehan noted the defendant’s ongoing expression of antisocial behaviour into later life which is at odds with his age.
27 The Static-99 instrument was applied by Mr Sheehan and it yielded a score of 7. This was later downgraded to 4 after recent research established that older offenders tend to re-offend less over time, leading to the development of Static-99R. A score of 7 under Static-99 indicated a “high presumptive risk level relative to other adult male sexual offenders”. In the sample population, sexual offenders with a score of 7 showed 3.44 times the recidivism rate of a “typical sexual offender”. However, reducing the score to 4 under Static-99R still places the defendant in the “moderate to high” risk range. The Static-99 and Static-99R instruments are of limited utility as a recidivism predictive tool and, as pointed out by Dr Jeremy O’Dea in a report I refer to below, it measures the risk of an individual engaging in a further sexual offence rather than a further “serious sex offence” as defined in the Act. I propose to take into account the assessments made with the use of this statistical tool, indeed I am required to by s 17(4)((d), but I propose to give them significantly less weight than I will give to assessments made by consideration of the individual circumstances of Mr Thomas’ case.
28 In a review of various dynamic risk factors Mr Sheehan noted that the defendant has exhibited lifelong deficits in his ability to self regulate in the community, demonstrated most recently by the period of supervision 12 months ago. He considered that with ongoing support and concerted effort the defendant could improve his self regulation, but without such support he was likely to continue to approach life challenges with the same repertoire of behaviours.
29 The history of sexual offending was thought to be suggestive of difficulties in sexual self regulation. Mr Sheehan noted that the episodes of sexual offending occurred in the context of an antisocial personality disorder and he thought that the defendant would be more at risk when experiencing difficulties copying, including when he experiences acute anxiety, ongoing feelings of depression and/or low self worth, leading to maladaptive coping strategies such as drinking alcohol, aggressive behaviour and/or egocentric thinking and behavioural style, including feelings of sexual entitlement. Some of these features were exhibited during the recent period of supervision. This constellation of factors may, in Mr Sheehan’s view, predispose the defendant to high risk scenarios, increasing the risk of eventually acting out sexually and reducing his chance of fulfilling his stated desire of living responsibly. Mr Sheehan is of the opinion that “the overall totality of evidence suggests that Mr Thomas remains in the high risk category of sexual offending relative to other adult male sexual offenders”.
30 It is Mr Sheehan’s opinion that little appears to have changed regarding the defendant since the previous application determined by Adams J. He stated that the prospect of effectively managing the defendant’s risk of sexually offending in the future poses some difficult challenges.
31 If a continuing detention order is made, Mr Sheehan regards the best possible outcome being for the defendant to complete the CUBIT program. However he felt that it was unclear whether the defendant would consent to this, given his history of avoiding that program.
32 If an extended supervision order is made with similar conditions to the previous order, Mr Sheehan considers it may be unlikely that the defendant would successfully complete it. He regards requiring the defendant to reside in a COSP home and being subject to standard monitoring and other restrictions as an effective way of managing risk in the immediate term but questions this as a long term strategy given the likelihood of the defendant failing to comply and being returned to custody. Mr Sheehan’s report includes discussion of the possibility of designing an order in such a way that the defendant is not breached and returned to custody for the minor infractions he is likely to make. He also suggests that residing somewhere other than a COSP residence may result in less reactive defiance which is a feature of the defendant’s antisocial personality disorder. As to this, Mr Sheehan writes:
Whilst such measures may adversely affect risk in the short term by reducing intensity of supervision, it may increase Mr Thomas’ ability to work towards some positive goals without being preoccupied with authority-based conflict. I note that such recommendations are made from a psychological perspective and do not account for the legal or policy-based realities involved in managing offenders in the community.
33 Mr Sheehan recommends that any management plan be minimally restrictive but rather supportive and encouraging of a balanced and responsible lifestyle. He adds in relation to this that the level of restriction and autonomy afforded to the defendant should remain dynamic, reflecting changes in his own ability to manage his risk behaviour as evidenced by his behaviour over time.
Report by Professor Greenberg
34 Professor David Greenberg was one of two psychiatrists appointed by the Court on 20 October 2009 to interview the defendant and provide a report. Professor Greenberg interviewed the defendant on 2 and 15 October, presumably in anticipation of being appointed. He was one of the Court appointed psychiatrists in respect of the proceedings before Adams J last year.
35 In his 2008 report Professor Greenberg made a diagnosis of Antisocial Personality Disorder with borderline traits as well as Panic Disorder. He did not diagnose the defendant with a sexual disorder and found that his primary motive for sexual offending was sexual gratification. He said that the defendant “believes that he has the right to have sex with women”. He found that the defendant was in the “high risk” category for further sexual offending. It was his view that the defendant’s prognosis was “generally guarded at this time without significant changes to his pattern of maladaptive behaviours”. Whilst he foresaw a partial reduction in the risk of re-offending if there was successful treatment, he was still of the view that the defendant would remain “a relatively high risk for re-offending in the short term”.
36 Professor Greenberg asked the defendant in his recent interviews about his performance under the supervision order and the various breaches of its conditions. As he did with Mr Sheehan, the defendant had either an excuse, a denial, or an explanation that there had been misunderstandings. However, when he asked the defendant generally about the difficulties he had complying with the various conditions the response was that he offended in order to come back to prison. He said that he felt safe whilst in custody. He did not see being sent back to prison as a punishment but, rather, punishment was being sent out into the community - “Gaol is me world. The outside world scares the shits out of me”. Somewhat paradoxically, he also said that if he was sent back to a COSP residence he would abide by the rules in the future and claimed that if he were to be kept in custody for a further detention period he would feel he is being punished for something he has not done.
37 Professor Greenberg explored the defendant’s attitude to treatment. He told the professor that he could not undergo the CUBIT program because “there was no two-out system”. He claimed that he needed to be in a shared cell because he had a tendency to collapse and potentially have a heart attack. Another potential hurdle to undergoing the CUBIT program is that participants are required to acknowledge their guilt for their offences. The defendant told Professor Greenberg that he would admit to being guilty for his offences although he was unwilling, or unable, to give details of the individual offences. Then, again somewhat paradoxically, the defendant is reported to have said that he “wanted to be released and was sick and tired of doing time for crimes he’s never done”.
38 The defendant told Professor Greenberg that he was of no risk of sexual reoffending. He claimed to have no sex drive. The professor had to push the defendant to articulate the factors which contributed to his past sexual offending and he ultimately stated, “stupidity, alcohol and nothing else”.
39 On the prospect of complying with a further supervision order the defendant told Professor Greenberg that, “I’ll pull me head in and abide (by) rules and regulations and live a normal life”. However, he also stated that he had a problem with authority and did not like people telling him what to do. The defendant sought to assure the professor that he would not reoffend, sexually or otherwise. However, Professor Greenberg reports that the defendant’s “insight remained poor with regard to his severe personality problems and associated risks for reoffending both sexually and in general terms”.
40 Professor Greenberg offered the following diagnoses:
Axis III: Physical
Axis II: Antisocial Personality Disorder with Borderline TraitsAxis I: 1. Polysubstance Abuse (historical)(Cannabis Abuse current)
2. Panic Disorder, query agoraphobia
1. Cardiomyopathy with mitral valve regurgitation
2. Chronic Obstructive airways disease (emphysema)
3. Gastric Reflux
4. Hepatitis CAxis V: Global assessment of functioning - deferAxis IV: Stressors – defer
41 He concluded that the defendant’s psychiatric and physical status remained largely unchanged from the assessment made in 2008. He offered the opinion that the defendant breached the conditions of the earlier extended supervision order for four reasons:
1. His Antisocial Personality Disorder, where there is an enduring persistent chronic pattern of maladaptive behaviour which is by nature chronic and difficult to change.
2. Mr Thomas has become institutionalized and has significant fears about living in the community. He reports that he prefers prison as it is a safe haven for him and the community placement was frightening for him.
4. Mr Thomas’ motivation for changes to his patterns of maladaptive behaviour is in my view questionable.3. Mr Thomas probably has a psychological dependence on cannabis which he claims he uses for pain relief but he is probably using it for his stress-related symptoms (anxiety) and for recreational pleasurable purposes.
42 Professor Greenberg reports that the defendant’s enduring patterns of maladaptive behaviours likely persisted throughout his most recent 12 year gaol term and more recent placement at a COSP home and there is nothing to suggest there has been any significant change. Whilst it might be expected that there would be a decline of these maladaptive behaviours with the aging process and deteriorating physical health, there was thus far nothing to indicate that this was anything more than minimal.
43 Professor Greenberg’s opinion is that “very little has changed since my last psychiatric interview and the likelihood of Mr Thomas committing a further ‘serious sex offence’ relative to other sex offenders, if released into the community and not kept under supervision, remains in the high risk category”. The defendant’s primary diagnostic motivation for sexual offending is his antisocial personality disorder. The professor reported that such personality disorders are extremely difficult to treat as their maladaptive behaviours are enduring, chronic and persistent. He also indicated that there are no known community based sex offenders treatment programs suitable for the defendant at this time.
44 It was noted that anti-libidinal medication is not an option for the defendant because his physical ill-health has features which would provide an unacceptable risk of adverse effects.
45 If an extended supervision order is made, Professor Greenberg recommends that the conditions be the same as those imposed by Adams J with the only alteration being that the term be for a period of several years rather than one year. One year, in his opinion, was insufficient for there to be meaningful changes to the defendant’s personality structure or patterns of maladaptive behaviour. However, Professor Greenberg also reports that in his view the likelihood of further failures to comply with an extended supervision order would be “very high” because of three factors, the defendant’s severe personality disorder, his stated wish to remain in custody, and his psychological addiction to cannabis. Later in his report he stated:
(S)hould Mr Thomas be placed on an “Extended Supervision Order”, I have already stated that I am of the view that it should be for a period of several years up to the maximum of a five-year period because of the entrenched pervasive pattern of maladaptive behaviours. Any treatment program attempting to decrease his risk for sexual re-offending would need to be considered as a longer-term treatment plan. I am therefore of the view that a period closer to five year maximum period would not be unreasonable in Mr Thomas’ situation given his past repeated failures with Probation and Parole and other Court Orders. Should he be placed on an “Extended Supervision Order”, he will require assistance with regard to life skills and coping skills to assist him with his de-institutionalization. There would be in my view significant challenges with his anti-authoritarian traits and his current questionable motivations to make meaningful changes to his personality structure. Although his prognosis is guarded at this time, Mr Thomas has had very little if not negligible interventions to address his psychiatric and psychological problems to date. Further efforts are therefore required to assist him with his re-integration back into the community.
46 Professor Greenberg offers that if the defendant is to be made the subject of a continuing detention order then in order that he undertake various programs and that he obtain assistance with social, coping and life skills, the duration of the order should be of a sufficient period for him to undertake such programs. He alludes to the possibility that the defendant may need to undertake a further preparatory program before he attempted to undertake the ten month CUBIT program.
Report by Dr Jeremy O’Dea
47 Dr Jeremy O’Dea was the other Court appointed psychiatrist. He had also provided reports for the proceedings before Adams J last year and interviewed the defendant again on 29 October 2009. He expressed the opinion last year that the defendant had a “significantly high risk of engaging in further sex offending behaviours on his release into the community in the long term”. He noted, however, that risk assessment was not sufficiently accurate to predict with sufficient precision the defendant’s likelihood of sexually reoffending.
48 Dr O’Dea received an account from the defendant concerning the various breaches of conditions of his extended supervision order which was similar to what he had told Mr Sheehan and Professor Greenberg. That is, the defendant made a series of excuses or denials.
49 Also consistent with what he had told Professor Greenberg, the defendant told Dr O’Dea that he regarded it as punishment to place him in the community, not in gaol, but he then also said that he wanted to leave the prison system because he had had enough. He indicated that he wanted to go to the Campbelltown COSP residence rather than to the one at Malabar and indicated that he would abide by all the rules and regulations. He said, “If I don’t do it I will never get out of this joint ... I will have to go through this bullshit year after year ... it’s just their rules and regulations that go against the grain”.
50 Dr O’Dea found no significant shift in the defendant’s clinical presentation between his interview in October 2009 and those in June and July 2008. He continues to consider that the defendant’s primary psychiatric problems relate to his personality that remains best understood as an antisocial personality disorder characterised by a history of repetitive antisocial behaviours from at least his early teenage years with ongoing problems with lack of remorse and lack of insight and engagement in his management problem. He found that the defendant’s antisocial personality traits do not appear to have become attenuated to an adequate degree with his increasing age.
51 Dr O’Dea considered the defendant’s alcohol and cannabis abuse issues, his complaints of experiencing anxiety and depression, and his general medical condition and then said, “I do not consider that Mr Thomas’ full clinical psychiatric risk assessment and attendant risk management considerations have substantially or significantly changed since my report (of) 10 July 2008”. In that report he found:
From a full clinical psychiatric risk assessment and risk management perspective, and as judged by actuarial risk assessment instruments (such as Static-99 in which Mr Thomas was scored at 8/12), Mr Thomas would be considered as having a significantly high risk of engaging in further sex offending behaviours on his release into the community in the long term.
52 Dr O’Dea proceeded to make some observations about the limited utility of Static-99 before then stating:
Overall, I do not consider that the current evidence regarding the assessment of risk in these matters is sufficiently accurate to predict with sufficient precision Mr Thomas’ likelihood of engaging in further sex offending behaviours on release into the community.
53 In his current report, Dr O’Dea maintained that on actuarial risk assessment instruments the defendant is considered as having a “significantly high risk of engaging in further sex offending behaviours on his release into the community in the long term”. However, he once again referred to the shortcomings of the Static-99 instrument including, as I mentioned earlier, that it measures the risk of further sexual offending rather than the risk of committing a further “serious sex offence”. Dr O’Dea noted the relatively recent recognition in Static-99R that the risk of re-offending reduces with age but added that all of the shortcomings still apply. So, whilst the assessment of the defendant at a score that indicated he fell in the “moderate-high risk group”, Dr O’Dea opined that “it is his general physical health in addition to his age that is likely to more significantly modulate his risk of committing a further serious sex offence on his release into the community”.
54 It seems that Dr O’Dea’s preference is, rather than placing too much reliance upon actuarial risk assessments, that the “focus should remain on the appropriate and adequate management of specific dynamic risk factors in a structured and supervised management program on Mr Thomas’ release into the community”. These risk factors are said to include the potential for the defendant to experience sexually deviant urges or fantasies in the future, his alcohol and cannabis use, his personality, and his attitude to women and sexuality as evidenced by his interpersonal functioning and sexual relations.
55 Compelling the defendant to participate in the CUBIT program or detaining him for a further period in custody were not thought likely, in and of themselves, to be measures that would significantly reduce the risk of the defendant engaging in further sex offending behaviours on release into the community.
56 Dr O’Dea regards it as appropriate that upon release into the community the defendant should have regular and long term consultations with a suitably qualified forensic psychiatrist or psychologist to explore his sexuality in general and his sexual offending behaviour in particular as well as focussing upon other dynamic risk factors. Dr O’Dea indicates that he is aware of a number of professionals who would be able to offer such a service and who would be prepared to work in conjunction with the corrective services personnel. Accordingly, he concludes that a community based treatment program, in conjunction with supervision and monitoring, is the most appropriate intervention to manage and minimise the risk of the defendant engaging in further sex offending behaviours in the community in the long term.
57 Dr O’Dea identifies a significant risk of further problems with cannabis use but feels that the likely impact of substance use on the defendant’s risk of reoffending could be minimised with a structured and supervised treatment and monitoring program in place.
58 Dr O’Dea’s report concludes:
Dependent on his advancing age and the progress of his general medical condition, Mr Thomas’ current risk factors requiring specific management are likely to be longer term issues and of at least 5 years duration. That being said, regular review of his general medical status and so called dynamic risk factors at least every 6 to 12 months is likely to enable more adequate and appropriate interventions as time progresses.
Other assessments as to the likelihood of a further serious sex offence
59 Ms Suzanne Dumasia, a departmental psychologist, assessed the defendant in January 2008 and concluded that he was in the high risk category for sexually reoffending relative to other adult males. She raised a question, however, as to whether his medical condition “may reduce or increase his future risk of either violent reoffending or sexual abuse”. A report was then obtained by the State from Professor David Richards, cardiologist, who confirmed that the defendant remained capable of sexually assaulting a woman and using violence to do so.
60 Mr Jayson Ware, psychologist stated in his affidavit of 14 July 2008 that research showed that antisocial orientation is one of the two strongest predictors of sexual recidivism. As indicated in the reports of Professor Greenberg and Dr O’Dea, the defendant has been diagnosed with an antisocial personality disorder. Mr Ware also identified the defendant’s anxiety as an acute dynamic risk factor and he noted the fact that he experienced anxiety in the weeks and months leading up to the 1996 sexual assault. He said this is “evidence of his increased risk should he experience anxiety or other mood difficulties”.
Other relevant matters
61 The first of other matters that are relevant to the issues for determination is the defendant’s physical health. As noted earlier, he has cardiomyopathy. He was fitted with a pacemaker in January 2005. He has emphysema. Despite these conditions Professor Greenberg noted no shortness of breath or distress in his 2008 assessment and in his recent interviews he noted no observable shortness of breath. The defendant has also been diagnosed with hepatitis in the past but liver function testing has yielded results within the normal range. He claimed to have fallen twice whilst living at the COSP residence but testing that followed did not reveal anything of significance.
62 There have been regular claims made by the defendant over the years to having experienced memory loss following brain injury and multiple strokes. He told Ms Dumasia, Professor Greenberg and Dr O’Dea that he could remember nothing of his sex offences. In the course of committing the sexual assault in 1996 he told the victim that he could manipulate the authorities by claiming that he had amnesia. When he was subsequently interviewed by police he denied the offence, said he did not know the victim and claimed to have amnesia.
63 Testing by a number of professionals, including psychiatrists, psychologists, a neurologist and a neuro-psychologist has found no objective evidence to support the claims of memory loss. There is reasonable cause to suspect that these claims have been feigned. The defendant claimed to have been assaulted in prison in 1991 by being hit with an iron bar and sustained a fractured skull but there is no record of any such assault having taken place. He told Professor Greenberg that he was unconscious for several days following the incident. Medical records do show that in 1991 he had a fall in a prison yard and bruised his forehead. He was hospitalised and diagnosed with a fractured temporal bone but according to the records there was no unconsciousness following admission, nor did he have seizures. Dr Wayne Reid, a clinical neuropsychologist reported in 1995 that the defendant’s brain functioning had been assessed as normal following his 1991 admission to hospital. He also found that he suffered no memory deficits or problems in retaining verbal or visual information. Dr Paul Spira, a consultant neurologist examined the defendant last year and concluded that he was a “cognitively intact man who is able to follow complex reasoning”. At one point in his interview with Professor Greenberg last year the defendant said that he did not want to remember his past.
64 Medical assessments in 2005 and 2006 resulted in poor prognoses in terms of life expectancy, particularly because of the heart condition. A much better assessment was made following a cardiological assessment in 2008. The earlier assessments indicated a significant likelihood of a life expectancy of one to two years but Dr Richards’ opinion following the 2008 assessment was of a life expectancy of about ten years. Moreover, as indicated earlier, Dr Richards found that the defendant was still physically capable of sexually offending, of holding a knife and threatening a woman and that he was capable of arousal and of obtaining an erection. Professor Greenberg concluded in 2008 that “Mr Thomas’ physical status is therefore considered currently reasonably stabilised, although he generally remains in poor physical health. I am of the view that his current physical status would not preclude him from future sex offending behaviour”.
65 The defendant’s mental state is a relevant matter to consider. I have previously referred to the opinions of Professor Greenberg and Dr O’Dea as to the defendant having an antisocial personality disorder. At a superficial level the defendant’s age might be thought to be a factor tending to attenuate the risk of reoffending. This has been recognised recently in scoring under Static-99R actuarial tool. However, Mr Sheehan, Professor Greenberg and Dr O’Dea all found this to be of little significance in the defendant’s case because of the ongoing presence of the antisocial personality disorder. The discussion of this aspect by Howie J in the State of New South Wales v Fisk, supra, at [180] – [183], the defendant in that case being 61 years of age, is illustrative of the point that advancing age does not necessarily mean there is a reduced risk of reoffending in a particular case.
66 Cannabis use has been an enduring feature of the defendant’s life. There is material to the effect that he has used this drug since the age of 9 and whilst in prison prior to his last release he was using 16 grams per week. I indicated earlier that Professor Greenberg made the Axis I diagnosis of polysubstance abuse. Cannabis use has been associated with previous sexual offending. In discussing the 1978 bushland rape of a 16 or 17 year old woman, the defendant told Dr Reid, psychiatrist, that he could remember nothing because he had been drinking alcohol and smoking opium and “pot”.
67 Professor Greenberg was of the view that the use of alcohol and cannabis would probably have a disinhibiting affect upon the defendant’s maladaptive behaviours and increase his risk of committing a further serious sex offence when considered in conjunction with other risk factors (antisocial personality disorder, problems with general self regulation, negative social attitudes, intimacy deficits, depressed mood and low self-esteem).
68 I note that there is material suggesting that the defendant has not consumed alcohol for many years. He has, after all, been in custody for a long time. He claimed to Dr O’Dea that he did not consume any alcohol during his release into the community last year. I am unable to determine whether that is true.
69 There is a marked contrast in what the offender said to Professor Greenberg and Dr O’Dea about recent cannabis use. Dr O’Dea has reported that the defendant “was adamant to me that he had not smoked cannabis since his release from custody, neither at the COSP centre nor in the community, and that he had not smoked cannabis since his return to custody, with his most recent use of cannabis being on 8 October 2008” (emphasis added). The positive drug test, he being found in possession of both cannabis and implements for smoking it, and his admission to having used the drug away from the COSP home all indicate that the former was untrue. Professor Greenberg asked the defendant whether he continued to smoke cannabis whilst in custody and he reports that “he claimed that he is smoking half a gram per day”.
70 Dr O’Dea concluded that there was a “significant risk of further problems with cannabis use in the future” but also concluded that the likely impact of substance use on the risk of engaging in further sex offending behaviours, or of committing a further serious sex offence, could be minimised with a structured and supervised treatment, supervision and monitoring program in place.
Safety of the community
71 The safety of the community is the first of the factors listed in s 17(4) and, having regard to the primary object of the Act in s 3(1) (ensuring the safety and protection of the community), must be regarded as the most important.
72 I have referred in detail to the reports of Professor Greenberg, Dr O’Dea and Mr Sheehan but there are some other expert opinions to which reference should be made.
73 Dr Bruce Westmore, forensic psychiatrist, observed in the 1996 sentence proceedings:
Dangerousness is very difficult to predict, as you know. The best predictor of future violence is previous violence, so on that parameter alone, as you say, his prognosis is not particularly good. The other disturbing factor, I guess, is his age. He is 49, I think, and if he has an anti-social personality disorder one would have anticipated a degree of settling of his aggression with advancing years. … So there is a possible favourable prognostic sign, the process of ageing. In terms of personality maturation I don’t think we can put much store by that occurring without assistance … In view of the fact that this man has such severe institutionalisation, if his reoffending risk is to be reduced he requires, I think, quite an extensive rehabilitation program.
Recidivist sex offenders can be rehabilitated. A lot depends, really, on the nature of the offending behaviour … Where you have people who engage in repeated acts of rape, male against female, the prognosis is, generally, not good. Without that person receiving very extensive psychological treatment because it suggests that their value of other people, particularly women, is low.…
74 Dr Hugh Jolly, psychologist, reported in 1984:
He is one of those men who rather believes that sex is there as his right, and for his taking. … I wonder really whether Thomas has the capacity to change. … It seems to me that the man will pose some danger to the community – in a way – for the rest of his life.
75 Dr Arnaud Reid, consultant psychiatrist, stated in a 1978 report that the defendant had an “impulsive, aggressive personality”.
76 Dr Westmore mentioned the need for the defendant to undergo “an extensive rehabilitation program”. Regrettably the defendant has not engaged in any program of that description.
77 The defendant’s repeated sexual offending whilst in the community on conditional liberty raises significant cause for concern about the safety of the community if he is to again be released, even under some form of supervision. One of the issues for determination is whether adequate supervision can be provided to sufficiently reduce the risk. Performance by the defendant under the previous extended supervision order was poor in terms of compliance with conditions. It must be noted, however, that there is no evidence of any actual threat to the safety of any member of the public. The breach which concerns me the most was the occasion when the defendant travelled to and around the Sydney CBD without permission. That he was prepared to commit a breach of this nature raises a question about the adequacy of a supervision order. No matter the strictness of the conditions he was still prepared to go where he chose and when he chose.
78 Adams J was satisfied that there was “undoubtedly a risk of reoffending” but the following reasoning seems to have persuaded him to make an extended supervision order:
I am quite sure that he is most anxious to be released from gaol and not to return. The fear of such a return if he does not fully comply with the conditions of a supervision order is, to my mind, a powerful one in his case although I appreciate that in the past he repeatedly committed serious offences in breach of his parole undertakings. The level of supervision and control to which he can now be subjected, however, is far greater than was possible then. Breach of a supervision order does not involve the commission of any serious sex offence. The commission of any criminal offence or, for that matter, a failure to comply with the other stringent requirements of the supervision order will, as the defendant understands, result in his return to prison. In this regard, the supervision order which I made is a world apart from the regime to which he was subjected on parole. I was therefore satisfied that supervision in accordance with the order and whilst he is resident in COSP accommodation is adequate to ensure that it is not likely that he will commit a further sex offence whilst under supervision.
Summary of findings
79 The defendant’s history shows that he has been a dangerous and violent sex offender.
80 He is now aged 62 and his physical health is not the best. However, the degree to which these factors might attenuate the risk of reoffending is relatively minimal.
81 The defendant has not completed any significant rehabilitation programs. He has persistently avoided doing so. There is the barest glimmer of hope that he may be willing to undertake the CUBIT program but this is with stated reluctance. If he were to undertake that program, there is little cause for optimism that he would successfully complete it. He has thus far unremittingly refused to make an appropriate acknowledgement of his past offending behaviour.
82 The defendant has not expressed any real insight into the causes of his offending behaviour and there is no evidence of him having a genuine desire to explore and confront the underlying issues.
83 The defendant is an unreliable historian. This is apparent from the judgment of Adams J and I have referred to some examples of his inconsistent responses in the course of this judgment. As a consequence, assurances that he has given about no longer being a risk, no longer having a sex drive, and the like, must be assessed with considerable scepticism.
84 Expert appraisals by Professor Greenberg and Mr Sheehan have led to opinions being expressed that the defendant remains in the high risk category for committing a further serious sex offence if released into the community relative to other sex offenders. Dr O’Dea was less precise in his assessment of the risk of reoffending, although it can at least be said that he acknowledged that there was a risk.
85 The stringent conditions of the extended supervision order made by Adams J did not have the effect of enforcing the defendant’s compliance through the risk of being returned to custody. His breaches of that order were so many, so frequent, and so soon after being released, that one can have no confidence that he would be completely compliant with the terms of any future order.
Conclusions
86 On the basis of these findings I have reached the following conclusions.
87 I am satisfied that there is a high degree of probability that the defendant is likely (on either of the constructions of that word discussed earlier) to commit a further serious sex offence if he is not kept under supervision.
88 I am also satisfied that adequate supervision will not be provided by an extended supervision order. Putting that another way in order to ensure my conclusion is clear, I am satisfied that there will still be a high degree of probability that the defendant is likely to commit a further serious sex offence even if he is made the subject of an extended supervision order.
89 I propose to make a continuing detention order.
90 The maximum term of such an order is five years. I am not persuaded that there is cause to make an order for that length of time. I have alluded to a possibility that the defendant may be willing to engage in treatment programs in custody. That is not a reason to make a continuing detention order and I stress that it is not a factor I have taken into account in determining to make such an order. However, given there is a prospect of him doing so, and accepting the suggestion of Professor Greenberg, I have concluded that the appropriate length of such an order is one commensurate with the time that will be required for that purpose.
Order
91 I make the following orders:
2. An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in the previous order.1. An order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 that the defendant be subject to a continuing detention order for 18 months from the date of this order.
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