State of New South Wales v Wilmot (Final)

[2019] NSWSC 1276

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Wilmot (Final) [2019] NSWSC 1276
Hearing dates:	4, 5 and 6 September 2019
Date of orders:	24 September 2019
Decision date:	24 September 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 2 years commencing on 24 September 2019 and expiring on 23 September 2021. (2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to issue for the committal of the defendant to a correctional centre for the purpose of Order (1).
Catchwords:	HIGH RISK OFFENDER – final hearing – application for continuing detention order and/or extended supervision order – history of disturbing pattern of violence and violent sexual offending against unaccompanied young women – s 21A victim statements provided – court satisfied to a high degree of probability that defendant poses an unacceptable risk of committing another serious offence if not kept in detention – continuing detention order made – community safety paramount concern
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5C, 5D, 9, 13B, 17, 18, 20, 21A
Cases Cited:	Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Barrie (Final) [2018] NSWSC 1005 State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Jones [2018] NSWSC 459 State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Wayne Wilmot (Defendant)
Representation:	Counsel: D Kell SC/E Sullivan (Plaintiff) T McDonald SC/S Climo (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/97095
Publication restriction:	Nil

Judgment

1. The defendant is currently 46 years old and is subject to an interim detention order (IDO) that commenced on 24 June 2019 and was subsequently renewed on 19 July 2019 (from 24 July 2019), and on 15 August 2019 (from 21 August 2019). The last of those orders expired on 17 September 2019 but was renewed pursuant to s 18C(2) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) to expire at midnight on 25 September 2019.

2. Since he was 14 years old, the defendant has spent almost his whole life in custody because of his criminal offending.

3. The defendant’s history of offending is set out in paragraphs [34]-[53] of my reasons in State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776:

“[34] The defendant has a history of committing sexual offences against adult women and, [REDACTED], adult males. The defendant has also committed other offences of violence against women. Key aspects of the defendant’s offending history are set out below, in chronological order.

Sexual intercourse without consent and related offences: 20 January 1987

[35] The defendant committed his first recorded sexual offence at just 13 years of age.

[36] On 20 January 1987, the defendant approached the adult female victim, RB, from behind as she walked through Minto Park at about 3:30 pm. He threw her to the ground and made threats to kill her and covered her mouth. He removed her clothing. During the attack the defendant touched the victim’s vagina, performed cunnilingus, attempted to engage in penile-vaginal intercourse, and attempted to place his penis in the victim’s mouth. [1] He was apprehended at the scene, where he stated ‘I’ve…got a problem’ and ‘this is not the first time I’ve done this’. [2]

1. RB WS 20.1.1987: EW-1 tab 37.

2. SB WS 20.1.1987 [4]: EW-1 tab 39 p.349-50.

[37] The defendant was subject to a control order, imposed by the Children’s Court when he committed the offences. He later entered pleas of guilty to offences of sexual intercourse without consent,[3] attempted sexual assault,[4] assault with intent to commit felony, namely sexual assault,[5] and indecent assault. [6] On 26 March 1987, he was dealt with by Campbelltown Children’s Court and committed to an institution.

3. Crimes Act 1900, s 61D(1) (as then in force).

4. Crimes Act 1900, s 61F (as then in force).

5. Crimes Act 1900, s 58 (as then in force).

6. Crimes Act 1900, s 61E(1).

Obscene exposure and related offences: 19 July 1987

[38] On 19 July 1987 the defendant assaulted and robbed a female victim, CR, of her handbag in a public street in Campbelltown. Before assaulting the victim, the defendant pulled down his tracksuit pants and exposed his penis to her. The defendant was charged with offences of common assault, robbery and wilful and obscene exposure. He was later dealt with by Campbelltown Children’s Court, on 30 July 1987 (assault and robbery) and 25 February 1988 (obscene exposure) and a control order for two years with conditions imposed for the assault and robbery, and a two-year probation order imposed for the wilful and obscene exposure.

Indecent assault: 20 July 1987

[39] On 20 July 1987, the defendant, then aged 14 years old, followed the adult female victim, HS, as she pushed her 18-month old son in a pram. As the victim entered an oval near Campbelltown Shopping Centre at about 2 pm, the defendant approached her from behind. He threw the victim to the ground and threatened to kill her when she screamed that she was pregnant. He placed his hand over her mouth and struck her in the face (causing a bloody nose). He touched her vagina over the top of her pants and attempted to pull her pants down. The victim’s infant son, who was in his pram, cried. The victim kept screaming and the defendant desisted and ran away. [7] He was charged with indecent assault and pleaded guilty. On 25 February 1998, Campbelltown Children’s Court ordered that he be subject to two years’ probation, to be supervised by the Department of Youth and Community Services.

7. HS WS 20.7.1987: EW-1 tab 30.

Detain with intent to gain advantage, robbery in company, sexual intercourse without consent (4 counts), receiving and obtaining financial advantage by deception: 8 September 1988

[40] On 8 September 1988, the defendant, then aged 15 years old, travelled to Sutherland Railway Station with a female co-offender and male co-offenders. A plan was formed beforehand to randomly abduct a woman to sexually assault her.

[41] In the early evening the victim, Janine Balding, exited the station and was walking to her car. Male co-offenders abducted her at knife point and forced her into the backseat of her car. The defendant drove the car whilst the victim was sexually assaulted in the back seat.

[42] The defendant drove to an isolated spot off the F4 Freeway, where the victim was removed from the car and sexually assaulted further times by the male co-offenders. The victim was then bound, gagged and thrown over a fence. She was then dragged screaming for about 100 metres and held under water in a dam until she drowned. Her naked body was left in the dam. This was done by the male co-offenders without the defendant’s involvement (he remained in the car). Some of the victim’s personal items were shared and her ATM card used to withdraw money later that same day. The defendant was on bail. He was taken into custody on 10 September 1998 [8] .

8. Indictment and statement of facts: EW-1 tabs 24-25.

[43] On 22 March 1990, Justice Wood sentenced the defendant to a total term of imprisonment of 9 years and 4 months, with a 7 year non-parole period (NPP). The defendant was released to parole on 16 October 1996 [9] .

9. Wood J ROS 22.03.90: EW-1 tab 27.

Robbery: 14 August 1997

[44] On 14 August 1997, the adult female victim,V4, was walking along a street at night in Ashfield. [10] The defendant, then aged 24 years old, ran at the victim from about seven metres away, pushed her down to the concrete paving and stole her handbag. [11] He was on parole when. he committed the offence. He later pleaded guilty to robbery. On 9 June 2000, Judge Graham sentenced the defendant to a term of imprisonment for three years for this offence. His Honour also sentenced the defendant for other offences.

10. Graham DCJ ROS 9.6.2000: EW-1 tab 14 p.182-83.

11. In her statement to police the victim alleged the defendant had used a knife which he held to her throat during the robbery (EW-2 tab 21 [5]-[6], p.162-63) but this was not part of the facts agreed to for conviction/sentence

Common assault: 2 October 1997

[45] On 2 October 1997, the defendant approached the adult female victim, DV, in a park in Ashfield as she walked her dog. He walked and spoke with her for a short time. He attempted to kiss her and pushed her shoulders causing her to fall to the ground. She got up and they left the park and went their separate ways. [12] When interviewed by police, the defendant stated that as he and the victim walked “she was just talking, like just being so close and…like eyes kept wandering on to me…we just laughing…she tried to grab me hand sort of thing”. [13] He later admitted his guilt for this offence – and it was dealt with as part of a Form 1 when Judge Graham sentenced him for other offences on 9 June 2000.

12. Statement of facts: EW-1 tab 16 (it is noted the defendant was initially charged with indecent assault – DV alleged in her statement to police that the defendant pinned her on the ground and attempted to undo her top and pants: DV WS 2.10.1997: EW-1 tab 17).

13. The Defendant ROI 06.10.97 A23: EW-2 vol 1 tab 23 pp195-96.

[46] The defendant was released to bail after being charged with the offences committed on 14 August and 2 October 1997. His parole was not revoked because of the charged offences.

Detain with intent to gain advantage, sexual intercourse without consent (3 counts): 2 June 1998

[47] On 2 June 1998 the defendant, then 25 years old, was sitting at Leightonfield railway station in Villawood at about 6:00am when the 19 year old female victim, SM, a railway employee, arrived at the station for work. As the victim unlocked the station office to enter the defendant rushed from behind striking her to the face. He forced her inside and made her lie on her stomach, tied her hands behind her back and blindfolded her. He removed the victim’s clothing and indecently touched her breast area, forcibly performed cunnilingus on her and forced his penis into her mouth. He ejaculated on her face, and then rubbed and smeared his semen over her lips and face. He left her tied up on the floor in the office. [14] The defendant was not charged with this offending until 2004 when a DNA match was identified. He was on bail for the 1997 offences at the time of offending. His parole had expired on 10 January 1998.

[48] On 27 February 2006, Judge Marien sentenced the defendant for offences of detaining and three counts of sexual intercourse without consent following pleas of guilty being entered. Judge Marien sentenced the defendant to a total term of imprisonment of 12 years, with 9 year NPP. Judge Marien remarked that there were “chilling similarities in the nature of his offending … against defenceless women”. [15] Judge Marien said that he was satisfied, beyond reasonable doubt, there was a high risk the defendant would re-offend upon release from custody.

[49] On 1 March 2007, the Court of Criminal Appeal (Sully, Bell and Buddin JJ) dismissed an appeal against the sentence imposed by Judge Marien. [16]

Malicious wounding and detain with intent to gain advantage: 29 June 1998

[50] On 29 June 1998 the defendant, whilst still on bail, drove to Glenfield railway station (alone) and pulled his car up beside the 20-year old female victim, V3, who was about to exit her parked car to enter the train station. When the victim opened her driver’s side door he lunged at her, pushing her into the front passenger seat and thrusting himself into the driver’s seat. A struggle ensued. The defendant had a knife and suffered cuts to his face in the struggle. As the defendant looked for the ignition keys, V3 opened the passenger side door and fled the car. The defendant fled the scene and was apprehended later that day (and has remained in custody since then). He denied committing the offence. [17]

[51] On 9 June 2000, Judge Graham sentenced the defendant for offences including the detaining of the victim near Glenfield railway station and the malicious wounding of her, and for the robbery committed on 14 August 1997. For the offence of detain for advantage the defendant was sentenced to a term of imprisonment of 6 years, with four years NPP. For the offence of malicious wounding, the defendant was sentenced to imprisonment for four years. Judge Graham imposed an effective total term of imprisonment of 9 years, with a 7 year NPP.

Sexual intercourse without consent and indecent assault: [REDACTED]

[52] [REDACTED]

[53] The defendant denied the offences and was found guilty after trial. [18] On 27 November 2015, Judge Townsden sentenced to a total term of imprisonment of 5 years, with 3 years and a 9 month NPP. He is serving the sentence imprisonment imposed for the sexual intercourse without consent (Crimes Act, s 61I) – which is a term of imprisonment of four years (commencing on 27 June 2015 and expiring on 26 June 2019), [19] with two years and a 9 month NPP (which expired on 26 March 2018).”

14. Judge Marien ROS 27.2.2006: EW-1 tab 11.

15. Judge Marien ROS 27.2.2006: EW-1 tab 11 p 158.

16. Wilmot v R [2007] NSWCCA 30.

17. Judge Graham ROS 09.06.00: EW-1 tab 14.

18. Judge Townsden judgment: EW-1 tab 7.

19. Judge Townsden ROS 27.11.15: EW-2 tab 5.

4. On release to parole in October 1996 the defendant breached his parole by committing further offences. He robbed a female victim in August 1997 and assaulted another female victim in October 1997. When released on bail for that offending, he carried out two other very serious violent and sexual attacks on two young women just weeks apart in June 1998, leading to further sentences of imprisonment.

5. [REDACTED].

6. It is against that background that the hearing for final relief pursuant to s 5C and s 17(1)(b) of the Act proceeded before me on 4, 5 and 6 September 2019.

7. The plaintiff’s primary contention is that a two year CDO should be made, followed by five years of extended supervision pursuant to s 5B and s 9(1)(a) of the Act.

8. Alternatively the plaintiff argues, I should at the least make a five year extended supervision order (ESO) from the date of the expiration of the most recent IDO. There was no issue taken by the plaintiff that it was also open to me, at this stage to make the two year CDO sought, without determining whether the five year ESO should follow.

9. It was not contested by the defendant that the evidence available at final hearing supports an ESO, and no submission was made that it should be less than 5 years, although some specific proposed conditions remained the subject of objection and debate.

10. The defendant’s position was that I would not be satisfied that the defendant poses an unacceptable risk of committing a serious offence if not kept in detention.

Legislative scheme

11. The Act commenced on 3 April 2006. The primary object of the Act is to provide for the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community: s 3(1). Another object is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation: s 3(2).

12. The Court’s power to make a CDO is discretionary. Section 5C of the Act provides that the Court may make a CDO if four preconditions are made out. The first three preconditions are that the person must be an offender who is serving or who has served a sentence of imprisonment for a serious offence either in custody or under supervision in the community (s 5C(a)), he must be a detained offender or supervised offender within the meaning of s 13B of the Act (s 5C(b)), and the application must be made in accordance with s 13B of the Act (s 5C(c)).

13. The fourth condition under s 5C which comprises the substantive test for consideration before this Court provides that in order to make a CDO, the Court must be “satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order”: s 5C(d). Section 5D of the Act provides that the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence.

14. It is common ground that in this matter ss 5C(a), 5C(b) and 5C(c) are all satisfied. The determination of this matter turns on whether s 5C(d) is satisfied.

15. Section 17(1) of the Act which is in Part 3, Division 2 and is headed “Determination of application for continuing detention order” indicates that the Supreme Court can determine an application under this Part by making an extended supervision order or by making a continuing detention order or by dismissing the application.

16. Section 17(2) provides that in determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. This provision serves to emphasise the primacy of the requirement of this Court to exercise its powers under this Act so as to ensure the safety and protection of the community.

17. Section 17(4) provides a suitable structure and framework to assess those factors that I must have regard to as set out in ss 17(4)(b) to (i) (relevantly to this application), in addition to any other matter I consider relevant. Section 17(4) provides:

17 Determination of application for continuing detention order

…

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

(a)    (Repealed)

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

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

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

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

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

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

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

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

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

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

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

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

…

18. I will not address consideration s 17(4)(g) because there is no offending relating to children and thus no obligations resting with the defendant under the Child Protection (Offenders Registration) Act 2000 (NSW).

19. Senior counsel for the plaintiff submitted that the structure of the Act would appear to require that the Court first undertake a determination as to whether an offender poses the relevant unacceptable risk having regard to the relevant standard, that is, whether it could impose a CDO or an ESO prior to considering whether or not it should make a CDO or an ESO, having regard to the factors in ss 17(4) and 9(3) for a CDO or an ESO respectively (PWS [26]).

20. This appears to raise the question dealt with by N Adams J in State of New South Wales v Barrie (Final) [2018] NSWSC 1005 in paragraphs [23] to [32] of that judgment. For the reasons set out by her Honour, I am of the view that the proper test for making of a CDO following the recent amendments in 2017 is one step rather than a two-step process and, like her Honour, I propose to approach this application by determining whether s 5C(d) is satisfied, having regard to ss 17(2) and 17(4) of the Act, noting the identical corresponding provisions in ss 9(2) and 9(3) of the Act in respect of the making of an ESO.

The evidence

21. In addition to the very substantial amount of documentation tendered on the preliminary hearing, extensive further affidavit evidence was tendered. The most significant parts of that new material are:

1. The High Intensity Sex Offender Program (HISOP) treatment report of Janelle Holden dated 26 July 2019;

2. The affidavit of Kelli Grabham dated 3 September 2019 and her evidence which addressed accommodation options;

3. The updated Offender Case Note Reports; and

4. The reports of the court appointed experts, Dr Kerri Eagle, forensic psychiatrist, dated 9 August 2019 (and her oral evidence on 4 and 5 September 2019) and Jenny Howell, forensic psychologist, dated 9 August 2019 (and her evidence on 4 September 2019).

22. A separate folder of material extracted from historical records was tendered at the request of the defendant and was said to provide relevant background in particular informing s 17(4)(h1), and the personal factors the sentencing judge(s) took into account regarding the defendant’s background.

Section 17(4) considerations

Expert reports of persons appointed by the Court to conduct examinations of the offender: sections (9)(3)(b) and 17(4)(b)

23. Dr Eagle conducted a two hour clinical psychiatric assessment of the defendant on 25 July 2019 [20] and a cross-sectional psychiatric assessment based on “an extensive amount of collateral information” provided to her. Dr Eagle prepared a detailed 39 page report.

    20. Report of Dr Kerri Eagle dated 9 August 2019, at [4], [117], [206.1.1].

24. Dr Eagle set out the defendant’s current presentation [21] and, amongst other matters, provided a detailed overview of his offending history, including his own account of offences, contrasted with court and other official records. [22] Dr Eagle also sets out the defendant’s other forensic history (including arson in 1988 and escape incidents in 1990 and 1994), [23] institutional misconduct, [24] past psychiatric history and substance use history, [25] personal history [26] (including education and employment, [27] relationships [28] and childhood behaviour)[29] psychosexual history[30] and goals. [31]

    21. Ibid at [13]–[18].

    22. Ibid at [19]–[24], [42]–[80].

    23. Ibid at [81]–[87].

    24. Ibid at [88]–[94].

    25. Ibid at [37]–[41.

    26. Ibid at [95]–[99].

    27. Ibid at [100]–[103].

    28. Ibid at [104]–[106].

    29. Ibid at [107].

    30. Ibid at [108]–[111].

    31. Ibid at [112]–[116].

25. Under the heading, ‘Mental State Examination’, Dr Eagle noted that the defendant was cooperative and appeared euthymic (non-depressed reasonably positive mood). [32] Dr Eagle noted significantly to my mind that he “exhibited cognitive distortions, such as an attributional bias and an external locus of control”,[33] stating:

“Mr Wilmot accepted no responsibility for his offending conduct. He had poor insight into the factors that might have resulted in his incarceration. He tended to attribute responsibility for all problematic behaviours to external factors. He had unrealistic expectations of his ability to reintegrate into the community and his plans were not goal directed. He did not appear capable of appreciating the seriousness of his situation and made demands “you’ve got to work with me” for his release.”[34]

32. Ibid at [118].

33. Ibid at [119].

34. Ibid at [120].

26. Under the heading ‘Treatment Reports’, reference was made to reports concerning the defendant’s participation in sex offender programs, including the use of post program testing using BRS (Burt Rape Scale) in the ‘ESO Program October 2000’ and subsequently for CUBIT in May 2018. Importantly, the report of testing in 2012 indicated that his understanding and insight had not developed:

“Testing using the BRS (Burt Rape Scale) amongst other tests are noted. Mr Wilmot undertook the BRS on 22 June 2012 and demonstrated the same cognitive distortions present in 2000, including “if a woman gets drunk at a party, it is really her own fault if someone takes advantage of her sexually” [strongly agree]; “when women wear tight clothes, short skirts, and no bra or underwear, they are asking for sex” [agree]; “if a woman lets a man kiss her mouth and touch her sexually, she should be willing to go all the way” [strongly agree]; “most women are sluts and get what they deserve” [agree].”[35]

35. Ibid at [163], [169].

27. Under the heading ‘Diagnosis’, Dr Eagle stated her opinion that the defendant did not show any signs or symptoms of a major mental disorder at the time of interview. [36] The defendant‘s cognitive function appeared to be in the low average range. [37] Dr Eagle concluded:

“Mr Wilmot has a poly substance use disorder, in remission in a controlled environment. He has been reported to have engaged in the use of illicit substances since 8 years old. Substances have included alcohol, cannabis, amphetamine and sedatives (benzodiazepines). He has previously sought prescribed and unprescribed medications to cope with emotional distress. He is vulnerable to a relapse of his substance use disorder in a less restrictive environment in the context of increased stress.

Mr Wilmot has a severe personality disorder characterised predominantly by emotional instability. He would satisfy criteria for an antisocial personality disorder and borderline personality disorder. …

Mr Wilmot has been reported to demonstrate a number of more severe personality characteristics consistent with psychopathy, for instance deception, callousness and manipulation. On an assessment using the Psychopathy Checklist Revised (PCLR), Mr Wilmot displayed a number of psychopathic traits including a need for stimulation/proneness to boredom; pathological lying; conning/manipulation; lack of remorse or guilt; shallow affect; callous/lack of empathy; parasitic lifestyle; poor behavioural controls; promiscuous sexual behaviour; early behavioural problems; lack of realistic long term goals; impulsivity; irresponsibility; failure to accept responsibility for his own actions; juvenile delinquency; revocation of conditional release; and criminal versatility. Many Short-Term Marital Relationships was omitted from the assessment because Mr Wilmot has spent a consider-able majority of his life in correctional or institutional settings. Mr Wilmot scored 32 out of a possible 38. When the score is prorated due to the omission of one item, Mr Wilmot scored 33.7.

The PCL-R was not designed to predict criminal behaviour or assess risk of violence. However, the PCL-R has been found to be a robust predictor of criminal behaviour including violence and sexual violence. The PCL-R provides a dimensional score that represents the extent to which an individual is considered to represent the “prototypical psychopath.” The higher the score, the closer the match. An arbitrary “cut score” of 30 has been identified to classify male offenders as psychopaths. A score above 30 has been rewarded as a high PCL-R group. The higher the score, the more strongly associated with criminal recidivism including violent recidivism.

It is not clear whether Mr Wilmot has a paraphilia. The nature of his previous offending suggests that he may experience sexual arousal in response to the physical or psychological suffering of others consistent with a sexual sadism disorder. His poor insight, denial of his sexual offending and lack of engagement in psychological programs limits an assessment of his sexual arousal patterns and behaviours. His sexual offending appears to largely occur in the context of a combination of callousness, distorted attitudes towards victims (such as women [REDACTED]) and the willingness to use violence to meet his needs (sexual or otherwise). It is not clear that Mr Wilmot’s sexual offending is driven by intense sexual urges or deviant sexual fantasies (such as sadistic sexual arousal).” [38]

36. Ibid at [176].

37. Ibid at [177]–[178].

38. Ibid at [179], [180], [181], [182], [183].

28. Under the heading ‘Risk Assessment’, Dr Eagle noted that there are “inherent limitations” in any process of risk assessment, and that “the best evidence supports a structured professional judgment approach”. [39]

    39. Ibid at [184].

29. Using the Static 99R, an actuarial risk assessment tool, the defendant scored 9 on assessment, which placed him into a category of high risk/high need offenders. It was noted by Dr Eagle that “the average 5 year sexual recidivism rate for a person in that group with a score of 9 is between 32.6% and 52.5%, 9 times out of 10. The overall predicted recidivism rate is 42.2%.”[40]

    40. Report of Dr Eagle dated 9 August 2019, at [188].

30. Using the Stable 2007, another risk assessment tool, the following results are noted:

“Mr Wilmot demonstrated a number of dynamic risk factors for sexual reoffending based on this tool with a score of at least 20. He falls within the highest risk category of offenders. In particular, he has displayed the following dynamic risk factors: problems with significant social influences (no established positive influences and potential negative influences); lack of capacity for relationship stability (no current or previous stable intimate relationships); hostility towards women (persistent cognitive distortions in relation to females); general social rejection (no meaningful social contacts or supports, perceived rejection); lack of concern for others; impulsivity; poor problem solving skills (unrealistic goals and poor decision making); negative emotionality (grievances regarding perceived injustices and unfair treatment); unrealistic expressed intention to avoid sexual activity; high number of sexual offence victims (at least 7) indicating potential deviant sexual disorder; and problems cooperating with supervision.” [41]

41. As above, at [190], p 27.

31. Dr Eagle concluded that when the Static 99R score of 9 is combined with the Stable 2007 score of 20, the defendant is placed in the “very high” risk category. The average 5 year sexual recidivism rate for a person in that group is between 24.6% and 57.7%, 9 times out of 10. [42]

    42. Dr Eagle’s report states that this means that out of a group of 100 sexual offenders with similar characteristics, between 24 and 57 would be charged or convicted of a new sexual offence after 5 years in the community. Conversely, between 76 and 43 would not be charged or convicted of a new sexual offence during that time period, at [191].

32. Under the heading, ‘Violent Re-offending’, Dr Eagle noted that the defendant has a substantial loading of historical risk factors associated with violent reoffending including a history of problems with violence, other antisocial behaviour, substance use, relationships (intimate and family), employment, major mental disorder (cognitive disorder and mood disturbance), personality disorder, traumatic experiences, violent attitudes and treatment or supervision response. [43]

    43. Report of Dr Eagle dated 9 August 2019, at [193].

33. Dr Eagle also noted that over the last six months, the defendant had demonstrated “a number of persistent clinical factors that have been found to be associated with violent offending including problems with insight into his behaviour and offending history; persistent cognitive, behavioural and emotional instability; and problems accepting and tolerating supervision.”[44] Dr Eagle then noted that future problems with risk management factors have been associated with an increased risk of future violence, expanded as follows in terms of the defendant:[45]

“Mr Wilmot has a number of potential future problems with risk management based on his current plans for release. Professional services and plans: he requires assertive psychological monitoring and support to ensure his transition into the community but he has refused to engage with a corrective services (CS) retained psychologist following release. A private psychologist would be less able to provide the necessary communication and collaboration with Mr Wilmot’s CS supervision team to ensure effective risk management. Living situation: due to Mr Wilmot’s extended period of incarceration and his continued difficulty tolerating rules and restrictions, he will require the highest level of supported accommodation following his release. He has expressed concern regarding the restrictiveness of a COSP following release and this may indicate potential problems tolerating that living environment. However, independent living will not provide a sufficient level of monitoring or support for effective risk management in Mr Wilmot’s case. Personal support: Mr Wilmot has few, if any, personal or family supports in the community. Treatment or supervision response: Mr Wilmot has never demonstrated the ability to tolerate supervision without reoffending or breaches in the community. It is highly likely that he will continue to experience difficulties tolerating supervision. His attitude towards supervision remains problematic and demonstrates a tendency to externalise responsibility for his behaviour. Stress and coping: Mr Wilmot’s pervasive difficulties with emotional regulation combined with a lengthy period of institutionalisation suggest that he will have significant difficulties coping with the anticipated challenges of reintegrating into the community. [46]

44. Ibid at [195].

45. Ibid at [197].

46. Ibid at [197].

34. In terms of a ‘Risk Formulation’, Dr Eagle referred to the defendant having engaged in repeated sexual and violent offending from adolescence,[47] that he has displayed a pervasive disregard for social rules and laws from an early age[48] and appears to have repeatedly used violence to achieve his needs. It is noted that: “[i]t is unclear what specifically drives his sexual offending although the nature of his offending suggests that he may experience sexual arousal in response to the pain or suffering of others.”[49] Additionally and significantly, Dr Eagle stated:

“Mr Wilmot has consistently denied responsibility for and/or minimised his involvement in his sexual offences. He has routinely attributed responsibility for his behaviour to external events or persons. He has displayed no genuine capacity for internal reflection and has not been able to demonstrate benefit from psychological or rehabilitation programs.”[50]

47. Ibid at [198].

48. Ibid at [199].

49. Ibid at [200].

50. Ibid at [201].

35. Dr Eagle also stated that as a result of his traumatic and dysfunctional childhood, the defendant has “never developed a stable self-identity or awareness and has low self-esteem. He has poor coping skills resulting in emotional instability and has used a variety of substances to cope with stress and emotional dysregulation”. Dr Eagle stated:

“Mr Wilmot appears to have developed severe maladaptive personality traits including callousness, deceptiveness and manipulative behaviours. Unfortunately, these personality traits are difficult to manage or modify and they are likely to contribute significantly to his ongoing reoffending risk. His lengthy incarceration in an institution has further exposed him to an environment where he has associated with antisocial peers and survival is perceived as largely dependent on isolating himself or dominating others using aggression, deception and/or manipulation.

Mr Wilmot’s capacity to change a lifetime of problematic attitudes, traits and behaviours as he reintegrates into the community is uncertain. Any attempt at reintegration will need to be undertaken with the highest level of monitoring and support available in order to reduce his risk of reoffending.”[51]

51. Ibid at [204]–[205].

36. In addressing specific questions raised in the qualifying letter from the Crown Solicitor’s Office, Dr Eagle provided the following opinions:

1. As to whether the defendant meets the diagnostic criteria for any psychiatric or psychological condition:

“Mr Wilmot has a complex presentation and has attracted a number of different diagnoses, including schizophrenia. On the information available Mr Wilmot does not appear to satisfy a diagnosis of schizophrenia. However, it would be of benefit that he be reassessed by a psychiatrist in future if he appeared to display signs or symptoms of psychosis, including odd behaviours, illogical thought processes, auditory hallucinations or delusions.

The available information suggests that Mr Wilmot has a low average level of cognitive function, a severe personality disorder and a substance use disorder in remission in a controlled environment.

Mr Wilmot’s personality traits are primarily characterised by emotional instability with prominent irritability and aggressiveness; interpersonal and relationship deficits; irresponsibility; callousness; a reckless disregard for the safety of others; deceitfulness; and a disregard for social norms or lawful behaviours. He has displayed features of a more severe personality disorder, psychopathy, discussed further above, reflecting a high number of behavioural and affective traits associated with a psychopathic personality style.

Cognitive function and personality disorders are pervasive and enduring by nature. It is unlikely that Mr Wilmot’s personality traits would change or modify in response to psychosocial interventions, particularly given his poor response to previous psychological programs or treatment.”[52]

52. Ibid at [206.2.1]–[206.2.4], p 30.

2. As to whether the defendant poses a risk of committing a further serious sex offence (as defined in s 5 of the Act), Dr Eagle stated:

“Mr Wilmot is, in my view, at a substantially elevated risk of committing a further serious sex offence based on a structured risk assessment utilising tools developed on the basis of the available research.” [53] (Emphasis added).

53. Ibid at [206.3], p 30.

The level of risk and factors contributing it are described as follows:

“Mr Wilmot is in a group of offenders with shared characteristics who are at the highest risk of sexually reoffending. The factors contributing to that risk include static factors such as Mr Wilmot’s previous pattern of sexual offending; and dynamic factors such as his attitudes and cognitive distortions regarding women; a lack of concern for others; his negative emotionality (perceived injustices); a lack of capacity for relationship stability; poor problem solving skills; impulsivity; absence of positive social supports and susceptibility to negative influences; and his attitude to supervision.”[54] (Emphasis added).

54. Ibid at [206.3.1], p 31.

3. As to risk factors that might change or fluctuate over time and how such factors could be influenced, Dr Eagle noted that:

“Mr Wilmot’s risk factors have been stable for a long time and arise primarily as a result of a severe personality disorder and psychological vulnerabilities originating from his childhood and early adult experiences. His static risk factors (such as his pattern of offending) will not change and represent a baseline level of risk. However, his dynamic risk factors may increase or reduce in certain circumstances.”[55]

4. The results of the Static 99R and Stable 2007 place the defendant in the “very high” risk category. [56]

   55. Ibid at [206.3.2], p 31.

   56. Ibid at [206.4]–[206.4.2], pp 31-32.

37. Whilst it is no longer part of the requirement before making a CDO to assess whether the defendant’s risk could be managed by an ESO, observations by Dr Eagle as to her assessed rationale for difficulties in that regard are relevant to inform the unacceptable risk test under s 5C(d), the key issue in this case. In this regard Dr Eagle stated:

“Mr Wilmot’s personality traits and persistent attitudes to supervision will make it difficult to effectively manage his risk in the community, even with the comprehensive supervision regime and restrictions available under an ESO. Mr Wilmot has continued to refuse to accept any responsibility for his offending behaviours. He has denied, minimised or justified his offending conduct. He has continued to express a callous disregard for the welfare of victims. He has made statements indicating a lack of acceptance of supervision, for instance “there is no point putting a tight leash on me.” He has displayed no insight into his psychological problems or behaviours.

Even comprehensive supervision and monitoring regimes, such as provided under an ESO, rely on voluntary cooperation and participation (whether due to genuine motivation, deterrence or otherwise) to some extent in order to effectively manage risk. GPS monitoring will not prevent reoffending. It has been felt to reduce recidivism by providing a deterrent effect and/or assist with compliance monitoring. Extensive coordinated and individualised supervision may be able to identify early warning signs; at risk behaviours or an at risk mental state/cognitions. Unfortunately, Mr Wilmot has persistent problematic cognitions, behaviours and other dynamic risk factors in custody that give rise to a significantly elevated risk of reoffending combined with a reluctance to address those cognitions and behaviours. In view of Mr Wilmot’s personality traits and lack of insight, deterrence is not likely to be sufficient to overcome his dynamic risk factors and reduce his reoffending risk.” [57] (Emphasis added).

57. Ibid at [206.5.1]–[206.5.2], p 32.

38. As to whether anti-libidinal medication is recommended as a means of managing any risk of re-offending, Dr Eagle stated that it is not clear whether the defendant has a paraphilia, and that on the available information, she was “… unable to form a reliable opinion as to whether prescription of an anti-libidinal medication was likely to reduce Mr Wilmot’s risk of reoffending or problematic sexual behaviours.”[58] In any event the defendant also indicated that he would not be willing to take anti-libidinal medication at this stage. [59]

    58. Ibid at [206.6]. See also [206.6.1] and [206.6.2] (pp 32-33) as to the issues relating to anti-libidinal medication, including the Dr Eagle’s opinion that the defendant would need a comprehensive assessment and ongoing monitoring by a forensic psychiatrist with experience in the prescription of anti-libidinal medication to access the treatment, as well as baseline investigations to ensure he did not have any medical contra-indications.

    59. Ibid at [206.6.3], p 33.

39. On the question of duration of a CDO, although clearly a matter for the Court, not for Dr Eagle, Dr Eagle raised some matters that may be thought to point away from the Court imposing a CDO:

“There is limited accepted benefit from a psychiatric and psychological perspective for the ongoing detention of Mr Wilmot. Psychological interventions in prison have been shown to have limited benefit in reducing recidivism in sexual offenders. Cognitive behavioural and multi-systemic treatments in the community have demonstrated some reduction in recidivism. Individualised approaches to treatment have been found to be more effective. Mr Wilmot has not successfully engaged in previous psychological interventions or programs.” [60]

“If Mr Wilmot were to remain incarcerated, it is recommended that he receive individualised psychological interventions in an attempt to engage him and develop a tailored and individualised risk management plan for his release. It may be of benefit for individual psychological sessions to be conducted by a psychologist who would continue to work with Mr Wilmot following his release to help facilitate the development of a therapeutic relationship and continuity of care. Prior to release, Mr Wilmot would benefit from a trial of day leave once he has demonstrated a period of more effective emotional and behavioural control. This would enable a more gradual transition into the community and enable an assessment of Mr Wilmot’s capacity to tolerate a less restrictive environment and exposure to the community.” [61]

60. Ibid at [206.7], p 34.

61. Ibid at [206.7], p 34.

40. The evidence now available suggests that this part of Dr Eagle’s opinion has been recently actioned. There is evidence that the defendant has attended three one-on-one sessions in July 2019 with a staff psychologist with a view to that continuing.

41. Ultimately, Dr Eagle concludes:

“As indicated, I have concerns about Mr Wilmot’s ability, at this stage, to comply with an ESO and address factors associated with his reoffending risk in the community. It is acknowledged that continued incarceration would incapacitate Mr Wilmot in terms of his reoffending risk. I am unable to provide any opinion or recommendation as to the appropriateness of a CDO or the duration of any ongoing detention.” [62]

62. Ibid at [206.7], p 34.

42. Dr Eagle explained the reason for these remarks:

“Q. You indicated on the last and you referred to various things there and you stated in the last sentence,

“I am unable to provide any opinion or recommendation as to the appropriateness of a CDO or the duration of any ongoing CDO."

Are you able to tell the Court as to why you are unable to provide such an opinion?

A. Yes, I am an psychiatrist and, from a psychiatric or psychological point of view, custodial settings are not optimal settings for rehabilitation. Rehabilitation programs in custody don't have evidence for significant effectiveness in terms of reducing re offending; and there are other roles for incarceration obviously, incapacitation and the protection of the community, but it's not appropriate professionally or ethically, in my view, for me to comment on the appropriateness or otherwise of a community treatment order in that respect.” [63]

63. T47.34-49.

…

“A. But the professional body that regulates the code of conduct and the behaviour of psychiatrists indicates that we should remain impartial when it comes to decisions that are largely considered political or legal, and we should be focusing on interventions or treatments that are relevant to optimising a patient's rehabilitation treatment capacity function. So this decision per se would not be something that would be consistent with what the role and objectives of a psychiatrist from the College's view.

Q. Yes?

A. That is my interpretation anyway.

Q. In declining or indicating that you are unable to provide any opinion or recommendation, is it the position that you feel constrained by that ethical consideration to which you have referred?

A. Yes.

Q. Rather than saying that the answer is one way or the other?

A. Yes, I don't have an answer one way or the other in relation to that, yes.

Q. As you said, it is a matter for the Court?

A. It is a matter for the Court.” [64]

64. T48.6-26.

43. Dr Eagle explained the relevance to the issue of the risk posed by the defendant of his denial and minimisation of his past offending this way:

“A. It is extremely relevant to risk management, so it is a risk factor in terms of the risk of re‑offending, but it is also relevant to risk management. If someone denies or refuses to accept responsibility for their behaviour then they have no starting point from which they can change their behaviour, they are not prepared to even discuss what might have given rise to the behaviour, they won't engage in interventions or strategies that reduce the risk of that behaviour occurring in future, and at the extreme end there is nothing that stops them from engaging in that behaviour again because they are actually refusing to accept responsibility for the behaviour in the first place. So there are no internal barriers or inhibitions placed on them re‑engaging in that behaviour.” [65] (Emphasis added).

65. T50.47-T51.7.

44. I found Dr Eagle’s evidence to be focused, relevant, carefully considered and of great assistance to the Court.

45. Ms Howell, forensic psychologist, assessed the defendant on 29 July 2019. She described the limitations inherent in the statistical assessment tools such as Static-99R and dynamic risk factor testing such as Stable-2007. [66] She assessed the defendant as being in the highest category for future charging or conviction of a further sexual offence and at a level perceptibly higher than the risk associated with a typical offender. On the Stable-2007, Ms Howell found the defendant at a high level of dynamic needs relative to other male sex offenders. [67] He was also in the highest level of risk of committing a further violent offence on the VRAG-R. [68]

    66. Report of Ms Howell dated 9 August 2019, at p 11.

    67. Ibid, at p 11.

    68. Ibid, at p 12.

46. Ms Howell was asked to assess whether the defendant poses a risk of committing a further serious sex offence. In addition to the reference to the Stable-2007 and Static-99R assessments, which placed him in the well above average risk level for committing a further serious offence, Ms Howell made reference to certain factors identified by the Risk for Sexual Violence Protocol (RSVP). She described these as:

“…identified dynamic risk needs including deviancy; minimal meaningful relationships; social isolation; trauma history; past problems with substance abuse and alcohol consumption; and current institutionalisation. Mr Wilmot’s sexual offending history is chronic in terms of frequency, persistence and diversity and includes offences committed in the community and in custody.” [69]

69. Ibid, at p 14.

47. Ms Howell also made reference to the defendant being:

“…vulnerable to life stressors, particularly in relation to intimate relationships and close family relationships, and while they are not specifically associated with the risk of sexual violence, they are considered risk markers and may have had a causal role in Mr Wilmot offending behaviour.

Risk is dynamic and prone to fluctuation in response to personal and environmental factors. Mr Wilmot’s risk may abate over time as he ages and maintains a stable community life. Alternatively, his risk may escalate in the event that he is unable to assimilate into the community and achieve his goals of independent community housing and full-time employment; and he returns to alcohol and substance abuse on release.” [70]

70. Ibid, at p 14.

48. Ms Howell offered the view that the defendant’s risk of recidivism can be managed effectively in the community under an ESO. Some weight seems to have been placed by her upon the defendant’s statement to her that he does not want to return to custody and is willing to abide by the conditions of an ESO in order to remain in the community. [71]

    71. Ibid, at p 16.

49. Although maintaining her view that the defendant’s risk can be managed on an ESO, in answer to a question as to the appropriate duration of a CDO, noting that the statutory maximum of the duration of a CDO cannot exceed five years, Ms Howell said this in her report:

“However, if it were determined that his risk of committing a serious sex offence could not be managed in the community it is my view the appropriate duration of a CDO should not be less than two years. This would allow Mr Wilmot time to re-engage in and complete the HISOP program to a satisfactory level which is protective.

A salient risk factors for further offending is incomplete treatment. It is concerning that Mr Wilmot was assessed as unwilling to participate in the custody based treatment program and there remains a level of distrust regarding his motivation to change.” [72]

72. Ibid, at pp 16-17.

50. There were some puzzling aspects in Ms Howell’s evidence. She was asked about what she meant on page 14 of her report where, in the context of factors identified by the RSVP test, Ms Howell wrote:

“Mr Wilmot’s sexual offending history is chronic in terms of frequency, persistence and diversity and includes offences committed in the community and in custody” [73]

73. Ibid, at p 14.

In her evidence in chief Ms Howell answered as follows:

“Q. At paragraph 96 of your report, so at page 14, at about the middle of the page you make reference to the RSVP?

A. Yes.

Q. And then in the second sentence you describe Mr Wilmot's sexual offending history as chronic?

A. Yes.

Q. In terms of frequency?

A. Yes.

Q. And that's a reference to the number of offences that he has committed?

A. Yes.

Q. Over many years?

A. Yes.

Q. Persistence?

A. Yes.

Q. And is that a reference to the fact that he has continued to keep offending, as a matter of history, after he has been subject to responses by the criminal law?

A. Yes, it is.

Q. And that he has committed offences under parole and on bail?

A. Yes.

Q. And then you refer to diversity?

A. Yes.

Q. What's that a reference to?

A. It is in relation to the ages of victims and the sex of victims.

Q. And by reason of that he is characterised as a diverse offender, is he?

A. Yes.

Q. And that's by reason of the age of offences and what was the other matter that you referred to?

A. The fact that his victims were female and male.” [74] (Emphasis added).

74. T65.50-T66.39.

51. However when cross-examined about this by counsel for the defendant there was this exchange:

“Q. And you also agreed that there was diversity with offenders. Now, obviously I'm sorry, diversity of victims of the offences?

A. Yes.

Q. And it was put to you that that included it was women and also men?

A. Yes.

Q. It was also put to you diversity because of the ages of the victims. Was there much disparity in the ages of the victims?

OBJECTION

HER HONOUR: I would reject that question. The witness volunteered ages. She volunteered that. It wasn't put to her that that was an aspect of the diversity. She was asked what the diversity, what she meant by that, and age was volunteered.

McDONALD

Q. When you volunteered that, what difference in ages were you referring to?

A. To some extent the diversity in age is also his age. He was a young man, through 20s and then 30s, he is now in his 40s. The diversity of age is not just anything, it's in relation to his behaviour.

Q. So that was the reference to the age of Mr Wilmot?

A. Yes, across the offending period of time, yes.” [75] (Emphasis added).

75. T72.34-T73.9

52. At a number of points in her evidence, Ms Howell focused on “having had a conversation” with the defendant about certain matters. [76] These answers suggested to me that Ms Howell had seen her role as a therapist for the defendant, rather then somebody who needed to critically evaluate what he was saying.

    76. T75.43-45; T70.16-18

53. Ms Howell noted however that the defendant “did not appear to have difficulty recalling events, although he was unwilling to discuss in any detail past offences.” [77]

    77. Report of Ms Howell dated 9 August 2019, at p 12.

54. To my mind this yet is another form of denial and minimisation. The way Ms Howell dealt with cross-examination on this point was rather elusive and seemed to me to demonstrate that Ms Howell approached her task directed towards focus on the need for this Court to “capture the possibility of him [the defendant] being able to manage the ESO”, [78] rather than how safe the community would be (or not) if the defendant was not kept in detention:

    78. T70.8-9.

“Q. And has minimised particular conduct?

A. That's very interesting. I certainly understood that from the documents. When I spoke to him, I believe he minimised things to me as well, but he also spoke at some length about his experience of offending over time and I took that as a, in terms of a therapist working with people I took that as a positive sign. It doesn't always happen. It doesn't mean that change has occurred. What it means though is someone is able to talk about the need for change.

Q. Yes, but

A. I see that just mitigating I guess is what I'm saying. There is always, am yes, I'm aware of his past history, I read all the documents and I spoke with him. I'm just saying there are certain aspects of that that is not as black and white or clear cut that he will only do one particular behaviour.

Q. But minimisation of some of his offending conduct is one of the factors, at least on a reasonable view, would point towards Mr Wilmot not being able to be managed effectively in the community under an ESO, as one of those factors?

A. I do understand what you are saying. I guess I have an issue with giving a categorical answer to that question.

Q. Why do you have that difficulty?

A. Because I don't think that it is an absolute. I think that we are aware of what treatment he has undergone; we are aware of that as well. It has some impact on his decision making. He's, I mean, there's a whole bunch of history which is already there and sitting on the table and of course all of that looks like high risk factors, but I think we are not capturing the possibility of him being able to manage the ESO, and I guess that's all I am saying. I am not making any decision one way or the other, I'm not offering an opinion absolutely one way or the other but I am saying I don't think it's as categorical as past risk factors remain absolutely high all the time.” [79]

79. T69.32-70.12.

55. Ultimately Ms Howell accepted that an alternative view from that which she had provided was reasonably available. [80]

Other psychiatric, psychological or medical assessments: sections s 9(3)(c) and 17(4)(c), and statistical or other assessments: sections s 9(3)(d) and 17(4)(d)

80. T71.29-31.

56. Pre-2019 assessments were set out in detail in State of New South Wales v Wilmot (Preliminary) at [75]-[103]. The assessments range from Dr Milton in 1999 to Dr Parker in February 2019.

Report from Corrective Services NSW: sections 9(3)(d1) and 17(4)(d1)

57. This was dealt with at [104]–[107] of the judgment on the preliminary hearing.

Sex offender treatment or rehabilitation programs: sections 9(3)(e) and 17(4)(e)

58. This was dealt with in the preliminary judgment based on the available evidence up to June 2019 at [63]-[74].

59. The position was updated at the final hearing by the HISOP report of Ms Holden dated 26 July 2019. Ms Holden noted that the defendant was unwilling to discuss most of his criminal offending. [81] Ms Holden noted however that he was able to demonstrate significant improvements in his engagement and emotional regulation, when compared to his past behaviour. [82]

    81. Report of Ms Holden dated 26 July 2019, at [23] and [61].

    82. Ibid, at [61].

60. Ms Holden assessed the defendant as within the highest category of risk of re-offending (Level IVb). [83] There is no plan for the defendant to engage further with HISOP:

“In his most recent attempt at treatment, Mr Wilmot was removed from the treatment wing prior to fulfilling all program requirements. He was discharged due to: ongoing difficulties managing aggressive behaviour; poor insight and resistance to planning for the future; limited willingness to discuss sexual offending; and concerns about his ability to control his behaviour in the context of increasing agitation and aggression. Whilst Mr Wilmot has not completed all aspects of the program it was also noted that he had likely achieved as much as he would at this time and that he would not gain anything further from re-entering HISOP at this time.”[84]

83. Ibid, at [62].

84. Ibid, at [6].

Options for reducing likelihood of reoffending: sections 9(3)(e1) and 17(4)(e1)

61. This was dealt with in State of New South Wales v Wilmot (Preliminary) at [108].

Likelihood of compliance with ESO: sections 9(3)(e2) and 17(4)(e2)

62. Some preliminary findings on this question were set out in State of New South Wales v Wilmot (Preliminary) at [109]-[110].

63. Dr Eagle indicated that in her view there would likely be difficulties (see paragraph [37] of this judgment). Her opinion was expanded upon in her oral evidence:

“A. That's correct. So Mr Wilmot needs the highest level of supervision and monitoring available but, even then I think, given his attitudes to supervision, even in the custodial environment he may well find it difficult to respond to significant restrictions placed on him and supervision may not be able to be effective.” [85]

…

“A. There are a number of factors, but in particular Mr Wilmot has displayed pervasive difficulty regulating his emotional responses, he has persistently minimised or denied any of the problematic behaviours that he has engaged in, including some of his offending behaviours, he has not been able to participate in any rehabilitation programs in custody to date satisfactorily; and that sort of indicates that he is unable to reflect on his behaviours or learn from his behaviours or engage in programs that might modify his behaviours.” [86]

…

“A. He has attitude that indicates a resistance to restrictions and supervisions, and supervision regimes that would get in the way of the effectiveness of the supervision regime which has to some degree to rely on a level of voluntary co‑operation.” [87]

85. T47.3-7.

86. T47.11-17.

87. T47.20-23.

64. Ms Howell however was of the view that the defendant’s risk of recidivism can be effectively managed in the community under an ESO. [88]

Compliance with parole and supervision obligations: sections 9(3)(f) and 17(4)(f), and any other information available as to the likelihood the offender will commit a further serious offence: sections 9(3)(i) and 17(4)(i)

88. Report of Ms Howell dated 9 August 2019, at p 15.

65. Obviously compliance has been a problem for the defendant on previous releases in 1987, 1997 and 1998, as set out in [60] and [61] of the preliminary judgment. The defendant breached bail and parole by further sexual and violent offending.

Prior criminal history and pattern of offending – sections 9(3)(h) and 17(4)(h)

66. I have outlined the defendant’s prior criminal history and pattern of offending at paragraph [3] of this judgment. I additionally note the following from the preliminary judgment:

“[54] The defendant has also incurred proven disciplinary offences on about 20 separate occasions during his period of incarceration. The offences include damage property, fighting, possession or creation of prohibited goods and intimidation. [89] He incurred an institutional charge on 19 January 2018 for the possession of a gaol-made weapon.”

Views of sentencing court: sections 9(3)(h1) and 17(4)(h1), and any other information available as to the likelihood the offender will commit a further serious offence: sections 9(3)(i) and 17(4)(i)

89. Inmate Profile Document: EW-1 tab 2.

67. These were relevantly extracted in the preliminary judgment at [55]-[59].

Submissions

Plaintiff’s submissions

68. The Crown submitted that there were 12 persuasive factors borne out by the evidence, that amply supported a conclusion that the defendant, if not detained, posed an unacceptable risk of committing another serious offence.

69. The first was the need to give due weight to the primacy in the legislation (s 3 and s 17(2)) of the safety of the community.

70. Second was the nature and extent of the defendant’s criminal history, which could rightly be described as sexual and violent offending since childhood of an horrendous nature which was grave, frequent, persistent and involved diverse victims. The history demonstrated a propensity to commit serious sexual or serious violent or serious violent sexual offences upon women who are alone and vulnerable, or against vulnerable men. The offending would happen rapidly without warning. In the words of Dr Parker, who conducted a full risk assessment in February 2019, a risk scenario would appear to be “any opportunity where a potential victim is alone and [the defendant] is unsupervised.”

71. Third was the denial and minimisation, a continuing position taken by the defendant as recently as July 2019 in his assessment with Dr Eagle, despite an awareness that the report was being prepared for these proceedings. This denial and minimisation of offending for which he was tried and convicted is a repeated theme. In respect of the index offending, the defendant told Dr Eagle that it was “just a finger in the anus”, it was “not sexual”. [90] He told Dr Parker that it hadn’t occurred at all. [91] To Ms O’Neill in March and April 2018, the defendant denied the offending and minimised it by saying that it was “just blokes being blokes”.

    90. Report of Dr Kerri Eagle dated 9 August 2019, at [153].

    91. Report of Dr Parker dated 8 February 2019, at [50].

72. In respect of the offending in August 1990 when he ran at a woman and pushed her to the ground and stole her handbag, the defendant told Dr Parker that he had “pleaded guilty for somebody else”.

73. In respect of the offending in October 1990 when he attacked a young woman walking her dog, he told Dr Parker that he tripped over the dog lead. He gave a similar story to Dr Eagle.

74. In respect of the offending with the young vulnerable woman at Leightonfield railway station, he described the attack on her as consensual – “one thing led to another”[92] – and that he had pleaded guilty despite it being a consensual encounter, but in court he realised he had pleaded guilty to the wrong thing as the woman in court was not the woman he had had sex with. To Ms O’Neill on 2018 [93] and to Dr Eagle in 2019, the defendant said that he had met this woman at the railway station, the encounter was consensual, and when asked by Dr Eagle why he pleaded guilty to the charges that had been laid against him, he said that he had had sex with her and that he did not trust court proceedings. He denied that he had hit her, suggesting she could have put the bruises on herself and when asked why she would make up such a story the defendant said “Can’t say. Money?”.

    92. Ibid, at [48].

    93. Report of Ms O’Neill, at page 5.

75. The plaintiff submitted – appropriately in my view – that this is a deeply disturbing and distorted account of the defendant’s conduct. It is notable that even in these proceedings, with the scrutiny they bring to his attitude to offending and rehabilitation potential, the defendant continues with this denial and minimisation

76. Dr Eagle gave persuasive evidence regarding the relevance of this kind of behaviour to the defendant’s risk, explaining, in short, that the refusal to acknowledge or inability to recognise his behaviour, means that there is nothing stopping him from doing it again, because he is not accepting any responsibility for it.

77. Fourth, he was categorised at the highest level of risk both on the static and dynamic factors by each practitioner who carried out that assessment namely Ms Holden, Ms O’Neill, Dr Parker, Dr Eagle and Ms Howell.

78. Fifth, the defendant has a severe personality disorder (borderline personality disorder) according to Dr Eagle, as well as emotional instability. Both Dr Eagle and Dr Parker thought psychopathy was present, with Dr Eagle describing this as problematic, because of the features of deception, callousness and manipulation and that personality disorders are hard to modify and thus comprise an ongoing risk because personality features are “pervasive and enduring.”

79. Sixth, there was his removal from the HISOP program due to his behaviour and thus limited treatment gains obtained.

80. Seventh, there is the ongoing presence of cognitive distortion. Dr Eagle described this as persistent cognitive distortion in relation to his offending. [94] Ms O’Neill also referred to this issue.

    94. Report of Dr Kerri Eagle dated 9 August 2019, at [190].

81. Eighth was the defendant’s history of failing to comply with parole and bail supervision. The offending in July 1987 was whilst he was on parole. The offending in September 1998 was whilst he was on bail. The offending in August 1997 was whilst he was on parole. The offending in October 1997 was whilst he was on parole. Both attacks on young women in June 1998 were made whilst he was on release on bail. What this demonstrates is an inability to comply with bail or parole in the worst possible way – that is by committing other violent or sexual offending.

82. There is no positive evolution of attitude. The current attitude indicates ongoing problems. To say to Dr Eagle in this context “You’ve got to work with me” indicates a potential lack of acceptance of supervision. Similarly his comment to other therapists that there is “no point putting a tight leash on me”.

83. Ninth, he has been institutionalised, having had 22 years in custody. Because of his attitude and behaviour there has been no pre-release leave, so it is difficult to assess how he will behave on release. The safety of the community is paramount. There has been no “stepdown”, partly because of the defendant’s own attitude and failure to engage in appropriate behaviour in and out of programs

84. Tenth, there is limited prosocial networks and support.

85. Eleventh, there have been some problems with recent behaviour in custody including displaying rage and fury in July 2019 directed at an administration building where psychology staff are located and in that context, complaining about treatment reports describing staff as “cunts”, leading to the need to secure the wing early rather than trying to secure the defendant individually given how heated he was. There is also a note that the defendant had been terminated from working in the recycling area due to very aggressive behaviour towards other inmates who stated that they were scared of him (26 July 2019). There are also multiple references to the defendant having been discharged from the HISOP program in June 2019 because of concerns about his inability to regulate his behaviour, having demonstrated escalation in intimidating and threatening behaviour over some weeks that had required staff and other offenders to intervene to assist in managing his behaviour.

86. Twelfth, there are problems with available accommodation if released on an ESO. Dr Eagle gave evidence that he would require the highest level of supported accommodation. The evidence indicated that Community Offender Support Program (COSP) was not available to him and that the only two options that were available were crisis accommodation with no clarity as to whether either place would accept the applicant, because there were currently no vacancies and no suitability assessment had yet been done.

Defendant’s submissions

87. An overarching submission made on behalf of the defendant in his written submissions (“DWS”) was that the expert opinion favours the imposition of an ESO as the most appropriate order.

88. I will dispatch that argument at the outset. Whilst that argument may have been perhaps open to make on the reports of Dr Eagle and Ms Howell, it was definitely laid to rest by the evidence of Dr Eagle – see paragraph [42] of this judgment – where she made it clear that for ethical and other reasons, she considered the determination of a CDO or an ESO to be entirely a matter for the Court. Dr Eagle was asked to address ESO conditions and the practicality of an ESO, but in no way did Dr Eagle “favour” an ESO over a CDO. In any event, that decision is entirely a matter for my determination as to whether the criteria have been met and whether I consider a CDO should be made.

89. Senior counsel for the defendant submitted first that the Court should bear in mind that rehabilitation of offenders is a way to secure the safety of the public. Rehabilitation of offenders is also an aim of the legislation. There is ample evidence, particularly from Dr Eagle, that the dynamic risk factors of the defendant require testing in the community and the strategies he has been given cannot be tested if he is not released.

90. Second, lack of cooperation with authorities was historical. The defendant is now 48 and has shown some insight into his offending

91. Third, there was no offending between 1998 [REDACTED].

92. Fourth, his exchange with Dr Eagle in reference to “baby steps” and having made plans regarding things he wants to do on release indicates an improved and positive attitude.

93. Fifth, the Court should take into account the social and emotional background of the defendant set out in the historical documents in Exhibit X pursuant to s 17(4)(h1) of the Act, as they informed the sentencing court and should inform this Court.

94. Sixth, the Court must bear in mind that the risk that the defendant may commit an offence if released on an ESO or breach his ESO conditions is not the issue; it must be the risk that he will commit a serious offence. Further, the fact that there is some risk is not enough to justify a CDO. Attention was appropriately drawn to Fagan J’s comments in State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161 in this regard, where his Honour said:

“[60] For reasons touched on in the passage quoted from State of New South Wales v Lynn at [28] above, where any degree of risk of further serious offending is present, the Court could only “ensure” (in the strict sense of the word) protection of the community by ordering continuing detention for the maximum permissible duration in every application under the Act. That clearly has not been provided for. The Act expressly envisages in s 5C(d) that some level of risk may be regarded by the Court as acceptable and that only in cases of “unacceptable” risk should a continuing detention order be made.”

95. Seventh, in light of the accommodation availability issues revealed in the evidence, the defendant is prepared to accede to a CDO for three months and then to be subject to an ESO on conditions.

96. Eighth, in the DWS it was suggested that the comments of Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [120] and [129] support a conclusion that the least restrictive form of control is a matter that this Court should take into account in its determination:

“[120] Thirdly, as it is clear that the Court should impose no more intrusive constraints than appears reasonably appropriate to effect the protective purpose, it is appropriate to ask why that is so. The applicant’s answer must be that it is so, because it is necessary to balance the restrictions in contemplation against the freedom of movement and lawful conduct and his right to privacy, which he would otherwise be entitled to enjoy in full measure.

…

[129] The second step, not reached until the court is comfortably satisfied that the offender presents a heightened risk of further offending, absent supervision, involves a determination of what conditions may be imposed with the purpose of diminishing the risk to an acceptable level. It is self-evident that this will involve a “balancing” exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective. If the evidence suggested that effective supervision (described as “adequate supervision” in s 5G(1)) would not be provided by an extended supervision order, the State might consider an application for a continuing detention order: none was sought in the present case.”

97. This last submission can be quickly dispatched. It is clear that Basten JA’s comments, when read in context, clearly were directed towards the consideration of appropriate conditions once a decision has been made to release an offender on an ESO, and have no bearing on the decision as to whether the Court should determine that a CDO should be granted.

Section 21A statements

98. Two victims’ statements provided pursuant to s 21A of the Act were admitted into evidence.

99. Senior counsel for the defendant submitted that whilst the statements could be received, little weight should be placed upon their contents. I was taken to the Second Reading Speech which was submitted to provide a background understanding of the role of s 21A as follows:

“The source was a recommendation by the New South Wales Sentencing Council which considered there might be merit in allowing the victim's views to be considered. This is what we would emphasise: "particularly in circumstances where they might be aware of events not known to the authorities of relevance to any ongoing danger to themselves or other members of the community".” [95]

95. T142.32-36.

100. The submission was made that to the extent that the writers express opinions about whether this Court should impose either a CDO or an ESO, given the authors of the statements are not experts, their opinions on those matters should be given no weight or limited weight. There was also no clarity as to what material had been provided to the statement makers about the defendant and so the bases of their opinions remained to an extent opaque.

101. In respect of the parts of the statements that dealt with matters similar to a victim impact statement such as would have been tendered on sentencing proceedings, senior counsel for the defendant (correctly) emphasised that proceedings under the Act are not a “re-punishing” for past offending. Accordingly that part of the statements must have limited weight.

102. Countering that position, senior counsel for the plaintiff submitted that I should take the content of the statements into account on the question of “unacceptable risk”, given the requirement, in properly addressing that matter, to look at the probability of the event occurring as well as the gravity of the consequences. What the statements do, he submitted, is give some indication of the effect of offending on those persons, rather than offering any opinions. As a result, this is material, along with a lot of other material that assists in an understanding of the potential gravity of future offending.

103. Section 21A provides:

21A   Victim statements

(1)  As soon as practicable after an application for an order under this Act is made in respect of an offender, the person acting on behalf of the State for the purposes of the application must take such steps as are reasonable (or, if the application concerned is for an emergency detention order, as are practicable in the circumstances) to ensure that written notice of the application is given to:

(a)  each victim of the offender, or

(b)  if any such victim is under 18 years of age or lacks legal capacity—that victim’s parent or guardian.

(2)  The notice must inform the person that the person may make a statement orally before the Supreme Court, or provide a statement in writing, about:

(a)  the person’s views about the order and any conditions to which the order may be subject, and

(b)  any other matters prescribed by the regulations.

(3)  It is sufficient for the notice to be sent to the person at the person’s last known address as recorded in the Victims Register.

(3A)  A statement in writing must be provided before the date specified in the notice.

(4)  Any statement in writing received before the final hearing date in respect of the application may be placed before the Supreme Court for consideration in respect of the application.

(4A)  An oral statement may be made at such time during the proceedings on the application before the Supreme Court makes its decision on the application as the Supreme Court determines.

(4B)  The Supreme Court is to hear an oral statement in the absence of the offender unless the person giving the statement consents to the offender being present.

(4C)  The Supreme Court may arrange for an oral statement to be made by way of closed circuit television.

(5)  A person who makes a statement may amend or withdraw the statement.

(6)  The Supreme Court and the State must not disclose a statement (other than one given in the presence of the offender in accordance with subsection 4B) to the offender to which the application relates unless the person who made the statement consents to the disclosure.

(7)  If consent is not provided the Supreme Court may:

(a)  reduce the weight given to the statement, and

(b)  take reasonable steps to disclose to the offender, or the offender’s legal representative, the substance of the statement but only if the Court is satisfied that those steps could not reasonably be expected to lead to the identification of the victim or the person who made the statement.

(8)  In this section:

victim of an offender means a victim who is recorded on the Victims Register in respect of the offender for the purposes of section 256 (2) (b) of the Crimes (Administration of Sentences) Act 1999.

Victims Register has the same meaning it has in the Crimes (Administration of Sentences) Act 1999.

104. The terms of s 21A contain a number of mandatory aspects. There is a requirement to notify each victim of the State’s application and a requirement to inform each person that they may make a statement orally or in writing before the Supreme Court. This indicates with clarity the statutory intention that victims must be told about the application and must be told they can write or be heard. It would not be giving due effect to that clearly stated intention to then refuse to give any weight to statements so obtained.

105. Subsection (4) says that any statement in writing received may be placed before the Supreme Court for consideration in respect of the application (emphasis added).

106. It seems to me that the submission by senior counsel for the plaintiff is reflective of this provision.

107. The authors of the statements did not consent to disclosure of their statements to the defendant himself, although each consented to the defendant’s legal representatives reading the statements. Subsections (4), (5) and (6) of s 21A clearly envisage the overwhelming and difficult effects on victims of sexual and violent offending facing and articulating the effects of the offending upon their life and facing and articulating their concerns about the offender’s release.

108. Subsection (7) provides the Court with a discretion to reduce the weight given to the statements in circumstances where consent to disclose to the offender the contents of the statement was not provided and to take reasonable steps to disclose to the offender – or, relevantly to the circumstances here, to the offender’s legal representative – the substance of the statements.

109. Here the defendant’s legal representatives were given the statements and whilst they were unable to be shared with the defendant, the general nature of them was disclosed to him. Most importantly, the defendant’s counsel were able to make informed submissions about what parts of the statements may stray into areas of debate as to weight.

110. My attention was drawn to the approach of Walton J in State ofNew South Wales v French (Final) [2017] NSWSC 1475 at [84]-[85]. However in that case, as clearly set out by Walton J, the State made certain concessions regarding the effect and operation of s 21A which are not concessions made here. His Honour concluded that “very little weight may be attached” to the statement in the context of submissions made in that case by the State.

111. In my opinion, subsection (7) clearly provides a discretion to reduce the weight given to such a statement, not an obligation to do so.

112. I am of the opinion that I can and ought to take into account those aspects of the statements that provide a human face to the serious lifelong effect that the violent and sexual offending engaged in by the defendant has had on these victims. This material is important and helpful to my statutory task. I do not consider it to be a matter of little weight. I consider it to be a matter that assists me in understanding the gravity of the offending and this in turn, informs the question of unacceptable risk.

113. In respect of the parts of the statements that express a view about whether I should grant a CDO or an ESO or not, and what the conditions should be, I accept the submissions of senior counsel for the defendant that I must be circumspect about placing weight on those opinions given they are first, not expert opinions, second, the extent of the material upon which the views were based is not clear, and third, and perhaps most significantly, this question is one for the Court to determine based on all the evidence.

114. In reaching this view I hasten to add that I am in no way being critical of those views being offered. Section 21A(2) in its terms provides that the authors of statements may address their views about “the order or any conditions to which the order may be subject”. In some cases, victims who are in, for example, a small town, or a family, or are easily identifiable, or victims of very recent offending would have views that would be of significant weight in fashioning conditions such as residence or may have particular practical concerns to raise.

115. This is not such a case, but I am indebted to the two authors of the statements for having the courage to articulate what they have, in the way they have, which is of assistance to the Court.

Consideration

116. Section 5C(d) of the Act provides as follows:

5C   Making of continuing detention orders—unacceptable risk

The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if:

…

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

117. In State of New South Wales v Jones [2018] NSWSC 459, N Adams J observed:

“[210] The phrase “unacceptable risk” is not defined in the Act. It was considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in the Act is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]). In addition, s 5D of the Act provides that this court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

[211]   In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed:

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

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

118. In my opinion, Mr Wilmot poses an unacceptable risk of committing a serious offence if he is not kept in detention. I am satisfied that he does so to a high degree of probability. My reasons for coming to that conclusion are as follows.

119. Mr Wilmot has a criminal history of repeated violent and violent sexual offending upon young women who are alone and thus vulnerable to attack, and, [REDACTED] vulnerable men. The offending seems often to be impulsive and sudden – although in one case there is a suggestion that there may have been some pre-planning in noting his victim would likely be alone at the same time the next day.

120. I have set out at some considerable length the opinions and conclusions of the psychiatrists and psychologists who have examined Mr Wilmot. I have placed particular emphasis on the more recent assessments, although the earlier ones are certainly not irrelevant.

121. It is evident that Mr Wilmot shows no insight into his offending. He has not even acknowledged – in the main – that the offending occurred at all despite trials resulting in convictions and one unsuccessful appeal. He continues to deny and minimise the offending. He victim blames in a shamelessly callous way. He has not properly engaged with even the first step to rehabilitation: acknowledgement of what he has done. He is manipulative. He perseveres with a significantly warped view of social interaction with women and his imagined right to take, with force, whatever he decides he wants or to respond with aggression to whatever he does not like.

122. All assessments of the static and dynamic risk factors reached the same result: he in the highest category of risk of reoffending in a violent, sexual or sexually violent way. The psychiatric and psychological assessments explain why this is so and what other aspects of the defendant’s presentation underpin that risk.

123. The defendant has submitted that the criteria for imposition of a CDO have not been established on the evidence to the requisite standard. Dealing first with the submissions made on behalf of the defendant about the benefit to the community in the defendant being rehabilitated, the primary object is safety of the public. The defendant’s rehabilitation and opportunity to pursue that in the community is not an object of the legislation. The “other object” set out in s 3 is to “encourage the offender to undertake rehabilitation”, not to facilitate it and in doing so to create risk to the safety of the community.

124. Whilst there has been some improvement in attitude in the HISOP as set out by Ms Holden in her report, these improvements came from a very low base. In critical ways the defendant did not cooperate. He would not discuss the offending other than to deny and minimise it. It is correct that his participation in the HISOP is complete, but that is because there is nothing more to be gained from his involvement in it, not because he has constructively approached his rehabilitation.

125. Whilst it is true that available programs to reduce risk within a custodial setting are limited (DWS at [94](v)), it is not correct to say that Dr Eagle concluded that “psychological counselling within a custodial setting is not effective at reducing recidivism”. Dr Eagle said that it “has been shown to have limited benefits”. This is quite a significant difference.

126. It was submitted (DWS at [94](iv)) that the defendant was “at risk of becoming further institutionalised thus impeding his ultimate rehabilitation” however Dr Eagle gave evidence that institutionalisation occurs by about the fifth year. There is no evidence before me that a further period of detention will make any difference to the defendant’s institutionalisation.

127. In terms of the hiatus in offending, the defendant was in custody from 1998 to [REDACTED] so this can hardly be regarded as an illustration of safety for the community. [REDACTED].

128. [REDACTED]. It does not, given his overall attitude to his offending, provide a basis for concluding that the defendant no longer presents as an unacceptable risk of committing further serious offending on release.

129. In terms of planning post release, as identified by Dr Eagle, the expressed aims are quite childish – walking on a beach, looking at an airbus – with no real plan revealed about necessary matters such as work and household planning. The HISOP report refers to the defendant’s refusal to plan for the future and the difficulties that his refusal created for comprehensive participation by him in the potential benefits of that program.

130. Whilst the defendant’s psychiatric and social background are most unfortunate and not irrelevant, what they illustrate is some of the reasons why the defendant is likely to seriously re-offend and how difficult these matters are now to manage and treat, particularly when there is limited cooperation by the defendant and no insight.

131. I remain very mindful that the risk of breaching ESO conditions, or a risk of minor offending is not a reason to make a CDO. However the focus of the evidence tendered leads me inexorably to the conclusion that there is a high degree of probability that the defendant will commit another serious offence if not kept in detention, and that risk is an unacceptable one given the opportunistic, serious, violent, versatile and unpredictable nature of his past, largely unaddressed, offending.

132. I find each of the twelve submissions made by the senior counsel for the plaintiff ultimately persuasive and well-founded on the evidence.

133. For these reasons I make orders 6 and 7 sought in the Summons.

134. I decline to make an additional order for extended supervision to follow the expiration of the two year period of continuing detention. I am unable to predict with any clarity what progress the defendant will make with his rehabilitation given the recently commenced approach with the allocated psychologist, or what accommodation and other options will be suitable and available to him in two years’ time. It may be that progress with his rehabilitation and or insight into his past offending has reached a stage where the package of proposed conditions for release will be different to those currently proposed.

Orders

135. The Court orders:

1. Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 2 years commencing on 24 September 2019 and expiring on 23 September 2021.

2. Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to issue for the committal of the defendant to a correctional centre for the purpose of Order (1).

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Endnotes

Decision last updated: 25 September 2019