State of New South Wales v Tillman

[2008] NSWSC 1293

CITATION:	State of New South Wales v Tillman [2008] NSWSC 1293
HEARING DATE(S):	1 December 2008
JUDGMENT DATE :	5 December 2008
JUDGMENT OF:	Johnson J at 1
DECISION:	An extended supervision order is made for a period of five years subject to 36 conditions set out in paragraph 107 of the judgment.
CATCHWORDS:	SERIOUS SEX OFFENDER - application for extended supervision order - Defendant subject to continuing detention order between June 2007 and October 2008 - Defendant completed CUBIT program - extended supervision order made - factors relevant to fixing duration of order - factors relevant to setting conditions requiring wearing of electronic monitoring equipment and a curfew - public interest in fair and balanced reporting of proceedings under Crimes (Serious Sex Offenders) Act 2006
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Serious Sex Offenders Monitoring Act 2005 (Vic) Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	State of New South Wales v Tillman [2008] NSWSC 1229 Tillman v Attorney-General for NSW (2007) 178 A Crim R 133; [2007] NSWCA 327 Cornwall v Attorney-General for NSW [2007] NSWCA 374 Attorney-General for NSW v Tillman [2007] NSWSC 605 Attorney-General for NSW v Tillman [2007] NSWCA 119 State of NSW v Quinn [2008] NSWSC 1080 Attorney-General for NSW v Gallagher [2006] NSWSC 340 Attorney-General for NSW v Hadson [2008] NSWSC 140 Rich v Australian Securities and Investments Commission [2004] 220 CLR 129 State of NSW v Brookes [2008] NSWSC 473 TSL v Secretary of the Department of Justice (2006) 14 VR 109 R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 Kerr v R [2008] NSWCCA 201 Mitchell v The Queen (1995-1996) 184 CLR 333 Winters v Attorney-General for NSW [2008] NSWCA 33 R v Tillman [2008] NSWSC 1227 R v Whyte (2002) 55 NSWLR 252 Attorney General (Qld) v Fardon [2003] QCA 416
TEXTS CITED:	McSherry, “Indefinite and Preventive Detention Legislation: From Caution to an Open Door” (2005) 29 Crim LJ 94 Douglas, “Post-Sentence Preventive Detention: Dangerous and Risky” (2008) Crim LR 854 McAlinden, “The Shaming of Sexual Offenders: Risk, Retribution and Reintegration”, Hart Publishing, 2007 “Victoria’s Serious Sex Offenders Monitoring Act 2005: Implications for the Accuracy of Sex Offender Risk Assessment” (2006) Psychiatry, Psychology and Law, Volume 13, No. 2, page 182
PARTIES:	State of New South Wales (Plaintiff) Kenneth Davidson Tillman (Defendant)
FILE NUMBER(S):	SC 15375/08
COUNSEL:	Mr L Babb SC (Plaintiff) Mr MJ Johnston (Defendant)
SOLICITORS:	Crown Solicitor's Office (Plaintiff) Nyman Gibson Stewart (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

5 December 2008

15375/08 State of New South Wales v Kenneth Davidson Tillman

JUDGMENT

1 JOHNSON J: The Plaintiff, State of New South Wales, seeks an extended supervision order in relation to the Defendant, Kenneth Davidson Tillman, under s.9 Crimes (Serious Sex Offenders) Act 2006 (“the Act”).

2 Following a preliminary hearing on 27 October 2008, I made an interim supervision order in respect of the Defendant under s.8(1) of the Act, together with an order under s.7(4) for his examination by two court-appointed psychiatrists accompanied by a direction that the Defendant attend those examinations: State of New South Wales v Tillman [2008] NSWSC 1229. On 20 November 2008, I renewed the interim detention order under s.8(3) of the Act pending the final hearing of the matter.

The Final Hearing

3 Mr Babb SC, for the Plaintiff, read the affidavit of Emma Bayley affirmed 13 October 2008 and tendered, as Exhibit EB1, a bundle of documents concerning the Defendant. This material had been relied upon by the Plaintiff at the preliminary hearing.

4 In addition, the Plaintiff tendered the reports of the court-appointed psychiatrists, Professor David Greenberg (dated 24 November 2008) and Dr Stephen Allnutt (dated 26 November 2008). The Plaintiff read an affidavit affirmed 26 November 2008 of Jayson Barry Ware, the Acting Director Sex and Violent Offender Therapeutic Programs in the Department of Corrective Services, and an affidavit affirmed 25 November 2008 of Darelle Williams, Senior Compliance and Monitoring Officer, Community Compliance Group in the Department of Corrective Services. Finally, the Plaintiff tendered a report dated 20 October 2008 of Anna Hoy, Forensic Psychologist, relating to the Defendant’s completion in 2008 of the CUBIT (Custody-Based Intensive Treatment) program.

5 Mr Ware gave short oral evidence at the hearing.

6 Mr Johnston, counsel for the Defendant, tendered reports dated 5 February 2008 and 27 November 2008 from Rev Dr Peter Powell, Psychologist.

7 On behalf of the Defendant, Mr Johnston accepted that, after reviewing the material in support of the Summons, the Court was likely to make an extended supervision order under s.9 of the Act. The Defendant did not make submissions in opposition to the making of an order. However, submissions were made with respect to the length of the order and concerning a number of conditions sought by the Plaintiff.

Should an Extended Supervision Order Be Made?

8 The Court is not relieved of the obligation to determine whether an extended supervision order ought be made as a result of the Defendant’s stance at the final hearing. However, as there is not litigated controversy concerning the basis for an order being made, the issue may be dealt with relatively briefly in this judgment.

9 An extended supervision order may be made if, and only 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.9(2). In determining whether to make an extended supervision order, the Court must have regard to the matters listed in s.9(3) of the Act, in addition to any other matter it considers relevant. The word “likely” in s.9(2) does not require a degree of probability exceeding 50%: Tillman v Attorney-General for NSW (2007) 178 A Crim R 133 at 147; [2007] NSWCA 327 at [88]-[90], [92]. The word “likely” may be taken to mean a “sufficiently substantial probability”: Cornwall v Attorney-General for NSW [2007] NSWCA 374 at [21].

10 Between 18 June 2007 and 31 October 2008, the Defendant was subject to civil detention by way of a continuing detention order under the Act. The history of earlier proceedings concerning the Defendant may be found in the judgment of Bell J (as her Honour then was) in Attorney-General for NSW v Tillman [2007] NSWSC 605, and in two judgments of the Court of Appeal - Attorney-General for NSW v Tillman [2007] NSWCA 119 and Tillman v Attorney-General for NSW (2007) 178 A Crim R 133; [2007] NSWCA 327.

11 On 18 June 2007, Bell J made a continuing detention order for 12 months following a finding that her Honour was satisfied to a high degree of probability that the Defendant was likely to commit a further serious sex offence if he was not kept under supervision, and that adequate supervision would not be provided by an extended supervision order (s.17(3)). On 26 November 2007, the Court of Appeal dismissed an appeal by the Defendant against the making of the continuing detention order.

12 On 11 April 2008, Hoeben J extended the continuing detention order until 31 October 2008. The Defendant consented to this extension, which provided the opportunity for him to complete the CUBIT program whilst in detention.

13 The Plaintiff now makes application for an extended supervision order. The Plaintiff acknowledges the progress made by the Defendant which contributed to the Plaintiff’s decision to confine the application to one for an extended supervision order, and not a continuing detention order.

Consideration of s.9(3) Criteria

14 In determining whether or not to make an extended supervision order, the Court is required to have regard to the statutory factors contained in s.9(3) of the Act. The Court may take as a starting point the findings made by Bell J in June 2007. Those findings warranted the making of a continuing detention order for 12 months. It is not necessary to repeat the factual matters disclosed in her Honour’s detailed findings. Rather, I will concentrate on the evidence concerning events since June 2007.

15 Reference will be made to the s.9(3) factors out of their statutory order, but in a sequence which assists an understanding of the issues.

16 Section 9(3)(h) requires the Court to have regard to the Defendant’s criminal history and any pattern of offending behaviour disclosed by that history. The Defendant’s criminal record contains sexual offences for which he was sentenced in 1977, 1984, 1985, 1990 and 1998. That history, and the nature of his offences, was summarised in the judgment of Bell J at [38]-[54]. It is not necessary to elaborate upon these matters for the purpose of determining the present application. A report dated 24 September 2008 of Dr Anthony Samuels, Psychiatrist, observes that the Defendant’s record of sex offences demonstrates a versatility in his offending in terms of the range of victims and the range of offending behaviour.

17 Section 9(3)(d) requires the Court to have regard to the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the Defendant committing a further serious sex offence. In a report dated 23 May 2008, Kate Harle, a Psychologist with the Department of Corrective Services, recorded a score of eight out of 10 for the Defendant on the Static-99 actuarial risk assessment instrument. That score places the Defendant in the high-risk category relative to other adult male sexual offenders.

18 Section 9(3)(b) requires the Court to have regard to reports received from the psychiatrists appointed under s.7(4) to conduct examinations of the Defendant, and the level of the Defendant’s participation in such examinations.

19 Professor David Greenberg prepared a report dated 13 May 2007 which was before Bell J at the 2007 hearing (see [106]-[116] of Bell J’s judgment). Her Honour, at [179]-[180], placed particular weight on the opinion of Professor Greenberg that there was no treatment available in the community at that time that was suitable to address the Defendant’s long-standing sexual offending behaviour. Bell J concluded at [193]:

“In light of the defendant’s history and taking into account Professor Greenberg’s evidence that I have set out at [180] above, I am satisfied to a high degree of probability not only that the defendant is likely to commit a further serious sex offence if he is not kept under supervision, but also that adequate supervision will not be provided by an extended supervision order.”

20 With respect to the duration of the continuing detention order to be set on 18 June 2007, Bell J said at [195]:

“A continuing detention order has dire consequences for the defendant. It is made because of the need to protect the community. The defendant’s unwillingness to undertake the CUBIT program has been for reasons which include, on the estimate of each of the independent psychiatrists, include some measure of anticipated psychological discomfort arising out of his own assault in custody many years ago. It may be that this can be overcome and that he is able to undertake the CUBIT program with appropriate support from staff within the DCS. In this event, his continued detention after completion of the program may not be justified. It is troubling that at the present time no suitable treatment is available in the community. Given that the defendant is willing to engage in some form of treatment, his detention pursuant to the Act should not extend beyond 12 months without further order of the Court.”

21 On 11 April 2008, the Defendant consented to an order extending the continuing detention order for a period of four-and-a-half months until 31 October 2008. The extension of the order permitted the Defendant to complete the CUBIT program whilst in detention.

22 In his report of 24 November 2008, Professor Greenberg recounted the Defendant’s progress since the continuing detention order was made in June 2007, including his completion of the CUBIT program and the PREP program. By reference to the Static-99 actuarial risk assessment instrument, Professor Greenberg observed that the Defendant remained in the high-risk category group (page 9). With regard to dynamic risk factors which are amenable to change in a therapeutic process, Professor Greenberg observed that the Defendant appeared to have made some gains (page 9). With regard to the Defendant’s acute dynamic factors, Professor Greenberg observed that he seemed more aware of the role of alcohol and illicit substances in his offending behaviour and seemed accepting of supervision with regard to future placement in the community (page 9).

23 Professor Greenberg considered that the Defendant had some awareness of the cognitive dynamic risk factors with regard to future recidivism however it remained “uncertain at this time whether he can actually act accordingly whilst living in the community” and the “question of whether he can use this improved cognitive knowledge to change his past pattern of ingrained and persistent offending behaviour remains uncertain at this time” (page 9).

24 Professor Greenberg expressed the opinion that the Defendant’s primary diagnosis was that of anti-social personality disorder associated with polysubstance abuse/dependence. He observed that the literature suggests that it is extremely difficult for individuals with a severe anti-social personality disorder to change behaviour because, by the very nature of the disorder, these patterns are ingrained and maladaptive and form an entrenched pattern of behaviour (page 10).

25 Professor Greenberg referred to a progression from conduct disorder in the Defendant’s childhood to anti-social behaviour in his adulthood, which had led to a pattern of anti-social behaviour which had “became ingrained into his psyche”. According to Professor Greenberg, the Defendant’s participation in the custodial psychological intervention program over the past 12 months should be seen as an initial stage in his progression of a therapeutic process. He considered that the Defendant’s progress should be seen as a medium-to-long term, rather than a short-term process. Professor Greenberg observed (page 10):

“His prognosis remains guarded at this time, but with the passage of time, this prognosis could be reviewed provided he abstain from drugs and alcohol, abide by all his intervention and management conditions, develop further insights into his maladaptive behaviours and develop new ways of acting appropriately based on this new improved level of insight.”

26 Professor Greenberg concluded that the Defendant remains in the higher-risk category group with regard to future sexual offending behaviour. He expressed the view that, without supervision, care and treatment whilst the Defendant is living in the community, his risk of re-offending would be significantly heightened.

27 By reference to the statutory formula in s.9(2) of the Act, Professor Greenberg expressed the view that the Defendant is likely to commit a further serious sex offence if released into the community and not kept under supervision (page 11).

28 With respect to duration of an extended supervision order, Professor Greenberg concluded (page 11):

“Should the court grant an extension of the supervision order, I am of the view that, the order should be of medium to long term duration given his primary diagnosis of Antisocial Personality Disorder. I am of the view that a term of up to 5 years would not be an excessive period of time in order to monitor Mr Tillman’s progress with his therapeutic program, compliance with supervision, rehabilitation and integration back into the general community, and for his prognosis to be re-evaluated.”

29 Dr Stephen Allnutt provided a report for the purpose of the 2007 hearing and his evidence was referred to in the judgment of Bell J. Pursuant to the order under s.7(4) of the Act, Dr Allnutt furnished a further report dated 26 November 2008 (Exhibit B). He observed that there had been changes in the Defendant’s clinical and dynamic risk profile (page 9). There appeared to have been improved motivation to pursue a treatment program with the Defendant completing CUBIT, there was no evidence of rule violation since the Defendant had been involved in the treatment program and there appears to have been amelioration in attitudes and values that might justify sexual offending (page 9). The Defendant appears to be more accepting of responsibility for his offending and more capable of discussing the factors surrounding his offending. He acknowledges that the use of alcohol as a coping mechanism is inadvisable.

30 Dr Allnutt noted that the Defendant appears to have overcome his reluctance to engage in a treatment program and had completed CUBIT and he had expressed motivation to pursue a further treatment program which is “positive and promising” (page 10).

31 Dr Allnutt observed that the Defendant continues to fall into the high-risk group compared to other sex offenders by reference to the Static-99 actuarial instrument. Dr Allnutt noted that there appears to have been an apparent reduction in the Defendant’s dynamic risk profile so that there is evidence that he manifests, at this stage, better potential to manage his high static risk and that his shorter-term risk is potentially reduced. However, as the Defendant had only recently been released from 10 years’ incarceration, he has not yet been exposed to triggers that might result in deterioration in his behaviour (page 10).

32 With respect to the duration of any order, Dr Allnutt said (page 10):

“I understand that an order for 5 years is currently being considered. His history of offending and current risk profile suggests that his risk for future sexual offending remains high in the longer rather than shorter term, if not kept under a supervision order. It is difficult to predict the duration that supervision would be required because there are many unpredictable contingencies that can intervene that might impact on his risk profile; and predictably this would also depend on how well he integrates into the community and provides evidence for improved internal capacity to manage his own risk, in the absence [of] external restriction. Thus it would be prudent to set the duration at 5 years (I believe he has the option of making earlier application).”

33 Section 9(3)(c) requires the Court to consider the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing a further serious sex offence, the willingness of the Defendant to participate in any such assessment and the level of his participation in any such assessment. A number of reports prepared by psychiatrists and psychologists concerning the Defendant have assessed such matters.

34 For present purposes, it is sufficient to note that previous reports have recorded conclusions that the Defendant is likely to commit a further serious sex offence if he is not provided with adequate ongoing maintenance, support, supervision and treatment, including ongoing psychological treatment. Dr Samuels expressed the view that, bearing in mind that the Defendant’s history of offending indicates that he is an opportunistic offender, the key to managing him in the community is to minimise wherever possible such opportunities and to minimise the likelihood of relapse of substance misuse. In a report dated 11 April 2008, Mr Rodriguez and Dr Ellis considered that the Defendant would benefit from ongoing treatment of his post-traumatic stress disorder symptoms, which would include anti-depressant medication and traditional psychological-based treatment.

35 A report of the Rev Dr Peter Powell, Psychologist, dated 27 November 2008, which was tendered by the Defendant, agrees with the assessment of Professor Greenberg in the report of 24 November 2008.

36 Section 9(3)(e) requires the Court to consider any treatment or rehabilitation programs in which the Defendant has had an opportunity to participate, the Defendant’s willingness to participate in such programs and the level of his participation in such programs. The Defendant agreed to an extension of the continuing detention order under the Act to allow him to complete the CUBIT program whilst in custody. In a memorandum dated 10 October 2008, Ms Joanne Senior, Specialist Psychologist with CUBIT, noted that the Defendant had been participating satisfactorily in the program, with good general motivation and involvement in group sessions.

37 A report dated 20 October 2008 of Ms Anna Hoy, Forensic Psychologist, provides a detailed assessment of the Defendant’s progress in the CUBIT program, which he undertook between 30 January 2008 and 17 October 2008.

38 Ms Hoy records that, following implementation of the continuing detention order on 18 June 2007, the Defendant took positive steps towards receiving treatment. He attended regular meetings with a psychologist and maintained contact with the Department of Corrective Services Aboriginal Special Projects Officer. He also attended the PREP Pre-Treatment Program for about three months before entering the CUBIT program in January 2008.

39 In addition to the CUBIT program, the Defendant completed the Getting SMART Recovery Program (self-management and recovery training), a program to assist individuals in gaining independence from any addictive behaviour, substances or activities.

40 Section 9(3)(f) requires the Court to consider the level of the Defendant’s compliance with any obligations to which he has been subject whilst on release on parole or whilst subject to an earlier extended supervision order. Bell J, at [182], described the Defendant’s past record of compliance with parole as poor.

41 There has been no suggestion of non-compliance with any obligations to which the Defendant has been subject since his release on an interim supervision order on 31 October 2008.

42 Section 9(3)(a) requires the Court to have regard to the safety of the community. All of the matters to which reference has already been made bear upon the safety of the community.

Finding under s.9(2) of the Act

43 The evidence which satisfied Bell J in June 2007 that a continuing detention order ought be made forms part of the evidence before me on this application. In addition, however, is the substantial body of evidence disclosing progress on the Defendant’s part since June 2007, including his completion of the CUBIT program and the PREP program.

44 Professor Greenberg and Dr Allnutt expressed the opinion that the Defendant is likely to commit a further serious sex offence if he is not kept under supervision in the community.

45 Having regard to the totality of the evidence, including the Defendant’s offending history and the large body of psychiatric and psychological evidence, I am 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. Accordingly, I propose to make an extended supervision order under s.9(1) of the Act.

Term of Extended Supervision Order

46 An extended supervision order may not exceed a period of five years: s.10(1). However, the Court may make a second or subsequent supervision order against the same offender: s.10(3).

Submissions

47 Mr Babb SC submits that the extended supervision order ought operate for a period of five years. He points to the evidence of Professor Greenberg and Dr Allnutt concerning duration of any order (see [28]-[32] above). The Plaintiff submits that the Defendant has only recently been released following a lengthy period of incarceration, and that the progress identified in the evidence will be tested by aspects of life in the general community away from a custodial setting. Having regard to the Defendant’s history, and the analysis and reasoning appearing in the psychiatric and psychological evidence, the Plaintiff submits that an order of five years’ duration is appropriate to the circumstances of this case.

48 Mr Johnston points to the significant steps of the Defendant towards rehabilitation, including his completion of the CUBIT program and his consent in April 2008 to an extension of the continuing detention order to enable him to complete his custody-based sex offender treatment. He submits that this willingness to undertake rehabilitation should be reflected in the length of any order to encourage further rehabilitation.

49 Mr Johnston refers to the observations of Hidden J in State of NSW v Quinn [2008] NSWSC 1080 at [10] that the defendant had “worked in good faith to achieve the purposes of the Act” and had made progress towards rehabilitation and that, in his Honour’s view, “that rehabilitation would be fostered by his seeing some light at the end of a tunnel”. Mr Johnston submits that the length of supervision and nature of any order should be framed to avoid the possibility of a lengthy order having a crushing impact on the rehabilitation of the Defendant.

50 Mr Johnston submits that, in fixing the term of an extended supervision order, the Court should have regard to the period which the Defendant has served between April 2007 and October 2008 by way of continuing detention order. If a supervision order is made for five years, Mr Johnston submits that the Defendant will be subject to the Act for over six-and-a-half years on top of his term of 10 years’ imprisonment. He submits that the totality of this overall period of imprisonment, civil detention and supervision should be taken into account in assessing the length of a supervision order to prevent it having a crushing impact on the Defendant’s rehabilitation.

51 Mr Johnston submits that the Act is extraordinary legislation, and that the protective purposes of the Act have had an undeniable punitive impact on the Defendant. He submits that the assessments of Professor Greenberg and Dr Allnutt have an element of uncertainty about them and that the Court should not adopt, as a type of default approach, the fixing of the maximum period provided by the legislation.

52 In all the circumstances, Mr Johnston submits that an extended supervision order should be made for three years and, if this period is insufficient, the Plaintiff can make an application to vary the order under s.13(1) of the Act or may make a fresh application (as permitted by s.10(3)) under s.6 of the Act.

Decision

53 Having determined to make an extended supervision order under s.9(1) of the Act, it is necessary for the Court to consider the term of such an order for the purpose of s.10(1). The Court should fix a term having regard to the circumstances of the case.

54 Both Professor Greenberg and Dr Allnutt express the opinion that a long-term process is required to work towards the treatment and rehabilitation of the Defendant in the community. Having regard to the Defendant’s history, and the evidence and findings recorded in Bell J’s 2007 judgment, these opinions are entirely understandable.

55 Progress has been made by the Defendant between June 2007 and October 2008 in a detention setting. The evidence recognises this progress, but emphasises the reality that the Defendant’s progress will only be tested following his release on an interim supervision order on 31 October 2008. Before then, the Defendant had been serving sentences of imprisonment or undergoing detention under the Act for a decade.

56 The primary object of the Act 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).

57 Proceedings under the Act are civil proceedings: s.21. The legislative purpose addresses both protection and rehabilitation, and is not punitive: Attorney-General for NSW v Gallagher [2006] NSWSC 340 at [21]; Attorney-General for NSW v Tillman [2007] NSWCA 119 at [5]; Attorney-General for NSW v Hadson [2008] NSWSC 140 at [9]. The Act provides for a form of preventive detention and supervised or controlled liberty for protective and rehabilitative purposes.

58 In Rich v Australian Securities and Investments Commission [2004] 220 CLR 129 at 145 [32], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ observed that the supposed distinction between “punitive” and “protective” proceedings or orders suffers the same difficulties as attempting to classify all proceedings as either civil or criminal and that, at best, the distinction between “punitive” and “protective” is elusive. Their Honours observed (at 146 [35]) that a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted.

59 The express objects of the Act are protective and rehabilitative. However, as Grove J observed in State of NSW v Brookes [2008] NSWSC 473 at [1], where a detention order is made under the Act, a person will be detained in a correctional centre, and it would not appear that the detainee’s custody is distinguishable from that of a prisoner serving a sentence for a crime. In TSL v Secretary of the Department of Justice (2006) 14 VR 109, Callaway AP (Buchanan JA and Coldrey AJA agreeing) observed, at 113 [10] and 116 [20], that a person subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (Vic) is “a prisoner in all but name” with restrictions imposed under an order affecting the person’s liberty.

60 The Court should not be blind to the practical effect of orders made under the Act. When making decisions under the Act, it is appropriate to keep in mind the restrictions upon the liberty of a person which may result. This extends from loss of liberty involving confinement in a prison (a detention order) to conditional and supervised liberty (a supervision order) where a failure to comply with the requirements of a supervision order is a criminal offence under s.12 of the Act.

61 I do not consider that principles which apply to setting a term of imprisonment have application to fixing the term of an extended supervision order under the Act. The imposition of sentence for criminal conduct requires, amongst other things, application of the purposes of sentencing under s.3A Crimes (Sentencing Procedure) Act 1999. Although these purposes include protection of the community (s.3A(c)) and promoting the rehabilitation of the offender (s.3A(d)), other purposes include the imposition of adequate punishment for the offence (s.3A(a)), specific and general deterrence (s.3A(b)), making the offender accountable for his actions (s.3A(e)), denunciation of the criminal conduct (s.3A(f)) and recognition of the harm done to the victim and to the community (s.3A(g)). The sentence must reflect the objective seriousness of the crime and there ought to be reasonable proportionality between a sentence and the circumstances of the crime: R v Whyte (2002) 55 NSWLR 252 at 277 [152]-[158].

62 In fixing the term of an extended supervision order, the Court is guided by the objects in s.3 of the Act to ensure the safety and protection of the community and to encourage serious sex offenders to undertake rehabilitation. Unlike a sentence of imprisonment, an extended supervision order may be varied or revoked under s.13 or a second or subsequent supervision order may be made against the same person: s.10(3). This reflects the different objects of the Act and the measures which the Act allows to achieve those objects.

63 I do not think it is helpful to draw upon analogies from the area of sentencing law such as the concept of a “crushing sentence”. The totality principle is designed to avoid a Court imposing a “crushing sentence” in the sense that “it will induce a feeling of hopelessness and destroy any expectation of a useful life after release”: R v MAK (2006) 167 A Crim R 159 at 164; [2006] NSWCCA 381 at [17]; Kerr v R [2008] NSWCCA 201 at [27].

64 The conditions of the extended supervision order which I propose to make in this case will themselves contain an element of flexibility. The Act provides incentive or encouragement for a person to maintain progress towards rehabilitation. The conditions of the order will provide a framework in which an objective measurement of rehabilitation may be made. At the same time, the terms of the order will serve to protect the community. All of this will occur, in this case, in the context of a person released from a decade in custody facing a range of challenges which will test the progress he has made, and allow him to demonstrate progress in a non-custodial, but nevertheless supervised context. This will be a long-term project.

65 In the circumstances of this case, I am satisfied that an extended supervision order should be made for a period of five years. I do not consider that such a term will have a negative impact on the Defendant’s prospects of rehabilitation.

66 As Fullerton J observed in Attorney-General for NSW v Hadson at [32], much will depend on how the Defendant responds to the current program and whether any variation to the risk-management strategy is called for as assessed by those who manage him and monitor his progress.

Conditions of Extended Supervision Order

67 Section 11 of the Act is in the following terms:

“11 Conditions that may be imposed on supervision order

An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender:

(a) to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(b) to make periodic reports to a corrective services officer, or

(c) to notify a corrective services officer of any change in his or her address, or

(d) to participate in treatment and rehabilitation programs, or

(e) to wear electronic monitoring equipment, or

(ea) to reside at an address approved by the Commissioner of Corrective Services, or

(f) not to reside in or resort to specified locations or classes of locations, or

(g) not to associate or make contact with specified persons or classes of persons, or

(h) not to engage in specified conduct or classes of conduct, or

(i) not to engage in specified employment or classes of employment, or

(j) not to change his or her name.”

68 Section 11 gives the Court a discretion, as part of an extended supervision order, to set conditions as the Court considers appropriate. The phrase “considers appropriate” indicates the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: Mitchell v The Queen (1995-1996) 184 CLR 333 at 346. The Court’s power to impose particular conditions depends in turn upon the scope of the Act, s.11 in particular: Winters v Attorney-General for NSW [2008] NSWCA 33 at 19 (per Mason P). A non-exhaustive list of conditions is contained in the provision.

69 There is no controversy between the Plaintiff and the Defendant with respect to nearly all of the 36 conditions sought by the Plaintiff. A number of issues were touched upon during submissions at the final hearing leading to the fine tuning of several proposed conditions (Conditions 10, 25, 26, 28 and 30). The alterations to these conditions which were accepted by the Plaintiff and the Defendant were, in my view, reasonable and appropriate. The discussion giving rise to these amendments will be apparent from the transcript of the final hearing on 1 December 2008 and need not be repeated in this judgment.

70 Two areas of controversy were debated before me and require resolution, being proposed conditions concerning the wearing of electronic monitoring equipment and compliance with a curfew.

Electronic Monitoring Equipment

71 Condition 15 as proposed by the Plaintiff is in the following terms:

“The Defendant must wear electronic monitoring equipment if and as directed by the Departmental Supervising Officer and comply with all instructions given by a Corrective Services Officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.”

Submissions

72 Mr Babb SC submits that such a condition ought be fixed. He relies upon the affidavit of Darelle Williams, the Departmental Supervising Officer for the Defendant. Ms Williams observes (at paragraphs 17-25) that the use of electronic monitoring is an important tool in the supervision and management of high-risk offenders. It can assist in ensuring adherence by an offender to his case plan and provide a deterrent to a person who might not otherwise comply with particular conditions of supervision. An important component of electronic monitoring for sex offenders is the creation of particular exclusion zones around certain locations, such as schools, day-care centres and other locations where children may congregate. Where an offender enters an exclusion zone, the GPS electronic monitoring system will warn the offender and the monitoring station that he has done so and the person will then be required to leave the exclusion zone and confirm that he has done so or further alarms will be triggered and response action taken. Ms Williams states that the requirement (in proposed Condition 10) to notify movements in advance is an important component of supervision and goes hand-in-hand with electronic monitoring.

73 Mr Babb SC points to the requirement in proposed Condition 15 to wear electronic monitoring equipment “if and as directed” as providing a degree of flexibility so as to permit discretionary scope for removal of the equipment if considered appropriate.

74 Mr Babb SC points to the guarded view of Professor Greenberg with respect to the Defendant’s response now that he has been released into the community (see [23] above]) and he submits that this provides a strong foundation for proposed Condition 15. The Plaintiff relies upon the following statement of Dr Allnutt with respect to monitoring generally (page 12):

“Monitoring should proceed from a point of being relatively intense and frequent to less intense and frequent depending on clinical and risk needs over time.
There should be ongoing monitoring for early warning signs, which might include suggestions of poor engagement, negative attitudes towards others, poor adherence to treatment, minor breaches that bring him into closer contact with children or vulnerable women, alcohol or other substance abuse, fluctuations in his mood and evidence for increased pre-occupation with deviant sexual ideation.”

75 Mr Johnston accepts that initially the Defendant ought be required to wear electronic monitoring equipment, but submits that an upper time frame for discontinuation of a requirement to wear such equipment should be specified. He submits that the equipment is uncomfortable to wear and will have a significant impact on the capacity of the Defendant to obtain work. Mr Johnston acknowledges that it is not proposed that electronic monitoring equipment would be worn for the entirety of the extended supervision order. However, he submits that an upper limit ought be fixed by the Court in accordance with the approach adopted in State of NSW v Quinn at [16] where the requirement for such equipment was limited to the first 12 months of a three-year extended supervision order.

Decision

76 The Act acknowledges that an available condition of an extended supervision order may involve the wearing of electronic monitoring equipment: s.11(e). Whether such a condition should be fixed depends upon the circumstances of the particular case.

77 The evidence which bears upon the fixing of the term of an extended supervision order is relevant, as well, to the duration of a condition requiring the wearing of electronic monitoring equipment. I am satisfied that the wearing of such equipment is an integral part of the supervision order proposed for the Defendant. Likewise, I am satisfied that the condition ought permit a long-term requirement for wearing such equipment. However, the condition ought allow some discretionary room to move in light of the Defendant’s progress under the extended supervision order. In my view, proposed Condition 15 provides an appropriate level of flexibility in this respect.

78 I observe that the Court of Appeal (Mason P, Giles and Hodgson JJA) took a “cautious approach” with respect to imposition of a condition requiring the wearing of electronic monitoring equipment in Cornwall v Attorney-General for NSW at [36]-[38]. Their Honours observed at [36] that it was appropriate to give weight to the consideration of the safety of the community in determining what conditions to impose and that should the supervising officer “consider that the device is not necessary or counter-productive, then the order should give the flexibility of dispensation with the requirement”. In my view, a similar approach is appropriate in the circumstances of the present case with respect to the condition requiring the wearing of electronic monitoring equipment.

79 I bear in mind that it is open to either the Plaintiff or the Defendant to make application to the Court under s.13 of the Act to vary or revoke an extended supervision order. In the event that there was significant progress on the Defendant’s part, and (contrary to the evidence) an unwillingness on the part of the Departmental Supervising Officer to adopt a flexible approach with respect to the wearing of electronic monitoring equipment, it would be open to the Defendant to approach the Court to vary the condition. However, given the features of the present case, it is appropriate that a condition in the form of proposed Condition 15 be set without an arbitrary sunset clause being fixed. The existence of the proposed Condition 15 will operate as an incentive to the Defendant to comply with the conditions of the extended supervision order which, in turn, will encourage rehabilitation.

Curfew

80 The Plaintiff seeks Conditions 1 and 2 as follows with respect to the Defendant’s accommodation and a curfew:

“1) For the duration of the order, the Defendant must reside at accommodation approved in advance by the Departmental Supervising Officer.

2) If directed by the Departmental Supervising Officer, the Defendant must be at his approved address between 9 pm and 6 am unless his presence at another place during those hours has been approved in advance by his Departmental Supervising Officer.”

81 The Defendant is residing at Departmental housing at an undisclosed location. The Commissioner of Corrective Services has approved of the location as suitable to house sex offenders who have been released from custody under supervision orders. The evidence of the Departmental Supervising Officer indicates that there may be a change in accommodation for the Defendant as part of the supervision order.

Submissions

82 In support of the curfew condition, Mr Babb SC referred to paragraphs 13-16 of Ms Williams’ affidavit where she observed that a curfew is an important tool in the supervision and management of offenders. The offender can be the subject of unscheduled home visits (where he is expected to be home) and, importantly, unscheduled urine testing for drugs and/or alcohol. Ms Williams observed that Professor Greenberg had referred to the desirability of unscheduled testing for drug and alcohol in the Defendant’s case. Ms Williams observed that curfews are typically moulded to meet the circumstances of the particular offender and are designed not to interfere with employment. Further, she states that the curfew would operate flexibly so that permission would be given for the Defendant to attend nominated events during the curfew period. Ms Williams states that the curfew would be reviewed from time to time and, if the Defendant is progressing satisfactorily and is shown to be residing at the address and meeting requirements (such as drug testing), the nominated curfew can be removed.

83 The Plaintiff refers as well to the reports of Professor Greenberg and Dr Allnutt concerning appropriate systems for supervision of the Defendant whilst he is at large in the community.

84 Mr Johnston submits that a sliding scale should be fixed whereby the curfew is gradually reduced over time and then removed, in the manner applied in State of NSW v Quinn at [17]-[19]. He submits that Hidden J took such a course in that case to encourage the Defendant’s compliance in pursuit of his rehabilitation and that such reasoning ought apply to the present Defendant.

Decision

85 I am satisfied that a curfew ought be fixed as a condition of the extended supervision order. The specific evidence of Ms Williams, taken with that of Professor Greenberg and Dr Allnutt, demonstrates the appropriateness of such a condition. The Defendant is in the early days of his release back into the community. There have been signs of progress which provide a foundation for an ongoing rehabilitative process in a supervised and controlled context in the community.

86 I do not consider that it is appropriate at this time to set an arbitrary sliding scale and sunset clause with respect to the curfew. The evidence of Ms Williams points to the fact that this condition will be applied flexibly and with an element of common sense. What may be required in this respect will depend considerably upon the long-term response of the Defendant. I note that the Court of Appeal in Cornwall v Attorney General for NSW at [36]-[38] took a cautious approach to the imposition of a curfew condition, having regard to the safety of the community. I am satisfied that a curfew condition in the form of proposed Condition 2 ought be set.

Reporting the Proceedings - Some Public Interest Issues

87 Before concluding this judgment, there are some additional observations which are pertinent to this case. There are two proceedings presently on foot concerning the Defendant - the present application for an extended supervision order under the Act and separate criminal proceedings: R v Tillman [2008] NSWSC 1227.

88 In the course of proceedings on 20 November 2008, I said (T5-6):

“It seems to me that these proceedings -- and by that I mean both of them -- pose some challenges for those involved, including those … responsible for reporting proceedings in this State. There is a most unusual combination here of a serious sex offender application before this Court, and current criminal proceedings that in the ordinary course would see a jury trial at a country venue sometime next year.

I take it that members of the press who are here today will well understand their responsibilities with respect to the sub judice rule, because of the combination of events now presenting themselves in circumstances where this prosecution has been delayed considerably because of the delay in charging Mr Tillman and, thus the coincidence of these proceedings.”

89 Neither the Plaintiff nor the Defendant submitted that the current criminal proceedings are relevant to the present application under the Act. The criminal proceedings concern alleged events in 1995 in relation to which the Defendant was charged in 1997 and discharged at committal proceedings in 1998. The matter was revived in April 2007 although it took until June 2008 for the relevant authorities to decide to again charge the Defendant: R v Tillman at [4]-[5], [20]-[21]; State of NSW v Tillman at [13]-[14].

90 These circumstances present challenges for the media in providing a fair and balanced report of the present proceedings without damaging the public interest in a fair trial of the Defendant on the criminal charges.

91 There is a further matter extending beyond the particular circumstances of this case. The objects of the Act are to ensure the safety and protection of the community and to encourage serious sex offenders to undertake rehabilitation. These objects are intended to serve the public interest. To this end, persons may be detained under the Act or be subject to conditional liberty in the community by way of extended supervision order which will restrict the freedom and movement of the person concerned. Officers within the Community Compliance Group of the Department of Corrective Services work closely with supervised persons to ensure that the objects of the Act are met. An examination of the 36 conditions to be fixed in this case will demonstrate the far-reaching nature of the order, and the level of interaction required between a number of public authorities and persons and the Defendant to allow the plan to work.

92 It will be apparent that the administration of extended supervision orders under the Act poses challenges to those involved and to the community. The public interest is served by a calm, rational and objective understanding by the community of the goals of the legislation and its application to particular cases. This poses a further challenge as persons who will be subject to the Act will almost inevitably be unpopular with the community and the media who can be expected to take considerable interest in orders sought under the Act: Attorney-General (Qld) v Fardon [2003] QCA 416 at [91] (per McMurdo P); Fardon v Attorney-General (Qld) [2004] 223 CLR 575 at 623 [126] (per Kirby J).

93 Legislation of this type is controversial: see, for example, McSherry, “Indefinite and Preventive Detention Legislation: From Caution to an Open Door” (2005) 29 Crim LJ 94; Douglas, “Post-Sentence Preventive Detention: Dangerous and Risky” (2008) Crim LR 854.

94 In years to come, an assessment will be possible of the effectiveness of the Act in ensuring the safety and protection of the community and encouraging rehabilitation of offenders.

95 A review is required under s.32(1) of the Act to determine whether its policy objectives remain valid and whether the terms of the Act remain appropriate for securing those objectives. The review is to be undertaken as soon as possible after the period of three years from the date of assent of the Act on 3 April 2006: s.32(3).

96 Reference was made earlier to the Serious Sex Offenders Monitoring Act 2005 (Vic) which provides for the making of extended supervision orders, but not continuing detention orders. In an article entitled “Victoria’s Serious Sex Offenders Monitoring Act 2005: Implications for the Accuracy of Sex Offender Risk Assessment” (2006) Psychiatry, Psychology and Law, Volume 13, No. 2, page 182, Melisa Wood and James Ogloff consider issues raised by such legislation. With respect to the empirical base for extended supervision, the authors state (at 194):

“The advantage to (and indeed, reasoning behind) extended supervision laws appears to be that the most high-risk sex offenders may receive treatment and assistance in the community that they require, albeit, at the expense of a number of personal freedoms.”

97 Later, the authors say (at 194-195):

“The good news is that a growing evidence base for sex offender treatment and community supervision indicates that the extended supervision scheme suggested by the Act may be of some usefulness in preventing recidivism, despite the significant number of issues in risk prediction the Act failed to consider. Few sex offenders commit new sexual offences while receiving after-care services, and significantly fewer supervised offenders re-offend at all, compared to those without aftercare. Furthermore, the longer an individual receives after-care services, the less likely they are to sexually re-offend (McGrath, 2003). On the other hand however, Berlin (2003) has argued based on his previous work that prior to the enactment of community notification and other sex-offender legislation in the United States, many men who received community treatment in the past found success in the community because they were able to get a fresh start, without feeling disenfranchised or socially stigmatised, were accepted by their neighbours, and were able to gain meaningful employment by keeping their criminal histories anonymous. Berlin argues that their ability to succeed in treatment had all these factors not been present is uncertain, and further points out that these types of laws have not been implemented on the basis of empirical evidence that they will, in fact, enhance community safety.”

98 I observe that Mr Ware’s affidavit (paragraphs 16-18) makes the same point as Ms Wood and Professor Ogloff in the first part of this quotation concerning empirical research which offers strong support for the use of community-based maintenance programs.

99 The Act in New South Wales has created a rigorous scheme which provides for the making of extended supervision orders which may serve purposes referred to in the first part of the quotation at [97]. However, one aspect referred to in the second part of the quotation would seem to foster and enhance the object mentioned in the first part. The scheme for extended supervision orders, and their proper administration in the community by relevant authorities, will be assisted by supervisees not being “socially stigmatised”.

100 In “The Shaming of Sexual Offenders: Risk, Retribution and Reintegration”, Hart Publishing, 2007, Anne-Marie McAlinden said at page 188:

“One of the greatest challenges facing statutory and voluntary agencies is low public awareness and understanding of the various issues surrounding ‘risk’ and the management of sex offenders. Myths and misconceptions about sexual offending shape and colour public attitudes, impeding meaningful discussion of policies and programmes.
This underlines the necessity of a rigorous public education and awareness programme, driven by government, designed to provide accurate information and dispel the popular misconceptions about sexual offending (Grubin, 1998; Silverman and Wilson, 2002: 54-59).”

101 This sentiment is pertinent to public awareness concerning the operation of the Act in New South Wales.

102 The Supreme Court has been entrusted with an important responsibility under the Act. Every proper opportunity should be given for the orders of the Court to operate to achieve the objects of the Act.

103 The community will be assisted in its understanding of the legislation by calm, objective and serious commentary upon it. It might be thought that the stigmatisation of persons who are subject to the Act may serve to discourage, and not encourage, rehabilitation on their part.

104 Fair and balanced reporting of proceedings under the Act will serve the objects of the Act (and, thus, the public interest) whilst sensational reporting which aims to stigmatise those involved will tend to undermine those objects.

Conclusion and Orders

105 I have determined to make an extended supervision order for a term of five years. The order will be subject to 36 conditions, including conditions with respect to the wearing of electronic monitoring equipment and a curfew as sought by the Plaintiff.

106 Pursuant to s.9(1) of the Act, I order that the Defendant be subject to an extended supervision order for a period of five years from today by complying with the conditions set out hereunder. The interim supervision order made by me on 20 November 2008 will terminate at 5.00 pm today when the extended supervision order takes effect.

Conditions of Extended Supervision Order

Oversight

107 The Defendant is directed to comply with the following conditions, oversight of which is to be administered by an appointed representative (“the Departmental Supervising Officer”) within the Department of Corrective Services (“the Department”), which includes the Community Compliance Group (“CCG”):

Accommodation

(1) For the duration of the order, the Defendant must reside at accommodation approved in advance by the Departmental Supervising Officer.

(2) If directed by the Departmental Supervising Officer, the Defendant must be at his approved address between 9.00 pm and 6.00 am unless his presence at another place during those hours has been approved in advance by his Departmental Supervising Officer.

Reporting and monitoring obligations

(3) The Defendant must not possess or consume any alcohol or illicit drugs.

(4) The Defendant must not abuse prescription medication or other forms of medication.

(5) The Defendant must submit to drug and alcohol testing as directed by the Departmental Supervising Officer.

(6) The Defendant must accept the supervision and guidance of the Probation and Parole Service (which includes the CCG) for as long as necessary, as determined by the Department.

(7) The Defendant must report personally once a week to the responsible Departmental Supervising Officer and otherwise as directed by that officer.

(8) The Defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other Departmental officer (including from the CCG) who may from time to time be involved in supervision of the Defendant.

(9) The Defendant must be of good behaviour and must not, for the period of the supervision order, commit any offence.

(10) The Defendant must inform the Departmental Supervising Officer of his movements at least 48 hours in advance (or as otherwise directed by the Departmental Supervising Officer) and must obtain prior approval from the Departmental Supervising Officer for any proposed change.

(11) The Defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other Departmental officer.

(12) The Defendant may undertake employment, provided that has been approved by the Departmental Supervising Officer.

(13) The Defendant must not leave the area defined by the borders marked on the map attached to this schedule without the written permission of the Departmental Supervising Officer.

(14) The Defendant must not go to any licensed premises, including but not limited to hotels, bars, licensed clubs and racecourses without the prior approval of the Departmental Supervising Officer.

(15) The Defendant must wear electronic monitoring equipment if and as directed by the Departmental Supervising Officer and comply with all instructions given by a Corrective Services Officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.

(16) Without limiting the immediately preceding condition, the Defendant must not associate with any persons specified by the Departmental Supervising Officer.

(17) The Defendant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools, pre-schools, amusement parlours, Police-Citizen Youth Clubs ("PCYCs"), day-care centres, youth centres and such places as the Departmental Supervising Officer may direct, unless accompanied by a responsible adult (being a person previously approved by the Departmental Supervising Officer, as being a responsible adult for the purpose of this condition and the other conditions below which make reference to an “appropriate adult” ).

(18) The Defendant must not attend any such other public places as the Departmental Supervising Officer may direct unless accompanied by an appropriate adult.

(19) The Defendant must not associate or make contact with children under the age of 16 years, including his grandchildren unless in the presence of an appropriate adult.

(20) Should the Defendant propose to enter into a relationship with another person, he must notify the Departmental Supervising Officer of the identity and contact details of that person. The Departmental Supervising Officer may disclose the Defendant’s offence history to such other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person.

(21) The Defendant must notify the Departmental Supervising Officer of the identity and contact details of any person with whom he is in regular social contact in the community, including family members. The Departmental Supervising Officer may disclose the Defendant’s offence history to such person.

(22) The Defendant must not change his name from Kenneth Davidson Tillman, or use any other name, without the prior approval of the Departmental Supervising Officer.

(23) The Defendant must not, without the approval of the Departmental Supervising Officer, change his facial appearance (including facial hair) or the colour of his hair and must not alter the length of his hair to the extent that he cannot be easily recognised.

(24) If the Defendant’s proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental Supervising Officer.

Treatment obligations

(25) The Defendant must participate in treatment and rehabilitation as directed by the Departmental Supervising Officer, including treatment and rehabilitation directed at his potential for alcohol and/or drug abuse. This does not extend to alcohol avoidance medication unless it is prescribed with the informed consent of the Defendant or by order of the Court.

(26) The Defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him from time to time, including attendance at and engagement in community maintenance programs for sex offenders. The Department may approve counselling by psychologists other than psychologists employed by the Department.

(27) The Defendant must accept a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted by the Community Forensic Mental Health Service (“CFMHS”) or the Area Mental Health Service (“AMHS”), to determine what is required for treatment, including control, of the Defendant’s potential for alcohol and/or drug abuse and potential for sex offending.

(28) The Defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service, in consultation with (or by) the CFMHS, including counselling, psychological therapy and any medication as indicated. The Department may approve treatment from the Aboriginal Medical Service.

(29) The Defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service in consultation with CFMHS.

(30) The Defendant must attend consultations with the Area Health Service or CFMHS or the Aboriginal Medical Service (if approved), at such a frequency, venue and time as directed by his treating clinicians.

(31) The Defendant must engage a general practitioner, he must notify the Departmental Supervising Officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental Supervising Officer.

(32) The Defendant must disclose to his Departmental Supervising Officer the identity of any other medical or mental health practitioner that he consults.

Disclosure of information

(33) The Defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors (including any specialist) and any psychologist, with the exception of information relating to the outstanding criminal charges relating to 1995 or the circumstances surrounding these charges (“the exception”).

(34) The Defendant consents to the Departmental Supervising Officer and other responsible Departmental officers (including officers from the CCG) accessing all relevant information regarding his progress, which may include confidential medical information disclosed in the course of his treatment, subject to the exception noted in (33) above.

(35) The Defendant agrees to the sharing of all information between the Departmental Supervising Officer, the Department (including the CCG), the Defendant’s employer, CFMHS, any treating AMHS, the Defendant’s general practitioner and any treating psychologist or psychiatrist, subject to the exception noted in (33) above.

Review obligation

(36) The Defendant must attend a six-monthly meeting with all agencies/parties in attendance if required by the Departmental Supervising Officer at which point the Management Plan contained in these conditions may be reviewed and adjusted if considered appropriate.

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