State of NSW v Colin John Fisk - [2009] NSWSC 778

No judgment structure available for this case.

CITATION: The State of NSW v Colin John Fisk [2009] NSWSC 778
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27/07/2009, 28/07/2009, 29/07/2009, 31/07/2009

JUDGMENT DATE :
11 August 2009

JUDGMENT OF: Howie J at 1

DECISION: See paragraphs 220, 221, 222.

CATCHWORDS: Criminal Law - Serious sex offender - Application for extended supervision order - Requirements of s 9(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) - standard of proof - meaning of "likely" - Expert Evidence - whether prediction of further offending can be made to the degree of probablities - whether order should be made - what conditions should be made as to residence of defendant.

LEGISLATION CITED: Crimes (Serious Sex Offenders) Act 2006 - ss 3, 5(1), 9, 10, 11, 17.

CATEGORY: Principal judgment

CASES CITED: Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249
Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448; 178 A Crim R 133
TSL v Secretary to the Department of Justice (2006) 14 VR 109
Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071; 176 A Crim R 249
Cornwall v Attorney General (NSW) [2007] NSWCA 374
RJE v Secretary To The Department of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opprotunity Commission [2008] VSCA 265
B and B (1993) FLC 92
Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575
John Fairfax Publications v Disrict Courrt of NSW (2004) 61 NSWLR 344

PARTIES: The State of New South Wales v Colin John Fisk

FILE NUMBER(S): SC 011970/09

COUNSEL: C E Adamson SC/S G Callan - Plaintiff
P S Strickland SC - Defendant

SOLICITORS: J Murray - Plaintiff
C Hunter - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

TUESDAY 11 AUGUST 2009

011970/09 THE STATE OF NSW v COLIN JOHN FISK

JUDGMENT

There is a non-publication order in relation to (a) the present place of residence and the approved place of residence of the defendant under the conditions of the extended supervision order made by the Court and (b) any material that would tend to identify the person with whom the defendant intends to reside as permitted under the conditions of the extended supervision order and (c) the name by which the defendant was known when on witness protection. The non-publication order does not apply to any officer of the Department of Justice and Attorney General and the NSW Police Force insofar as the disclosure is reasonably necessary in implementing the extended supervision order nor to the defendant and the person with whom he proposes to reside.
Introduction

1 HIS HONOUR: The defendant is notorious as a sexual offender who for many years was involved with other similar offenders and dishonest police in living a lifestyle that centred on the moral corruption and sexual degradation of under-aged males. He gained significant publicity when he gave evidence before the Royal Commission into Police Corruption (“the Wood Royal Commission”). He was released from prison on 12 May 2009 having served 12 years imprisonment for a large number of serious sexual assault offences against young males. He had a number of victims and they were as young as 13 years. The offences were committed over various periods of time between 1971 and 1988.

2 The defendant has completed his sentences and would be free to resume a normal life in the community apart from these proceedings that seek an order from the Court imposing restrictions upon his liberty in order to safeguard the community against further offending by the defendant of a similar kind. The proceedings require the Court, in effect, to make a prediction as to the likelihood of the defendant re-offending over the next five years by committing further serious sexual offences against young males.

3 There is presently in place an interim order made by this Court that imposes a number of restrictions upon the defendant including as to his place of residence, his supervision and treatment, his ingestion of alcohol and drugs, his use of the Internet and his associates. This order expires on 11 August 2009 and cannot be renewed.

4 By summons filed on 15 April 2009 the State of New South Wales (‘the State”) seeks an order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) that for a period of 5 years the defendant be subject to extended supervision. The Court may make such an order if satisfied to the necessary degree that the defendant is likely to commit a serious sex offence in the future.

5 The issues before the Court was whether an order should be made, and, if so, what the residential condition of that order should be. The defendant’s submission was that the evidence was insufficient for the Court to reach the necessary satisfaction as to the likelihood of the commission of a serious sexual offence in the next five years. Alternatively the defendant argued that, if an order were to be made, the defendant should be permitted to reside at his residence of choice (the “country property”).

The legislation

6 The objects of the Act are provided in s 3 which states:

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community.

7 A "serious sex offence" is defined in s 5(1) of the Act as follows:

serious sex offence

(a1) an offence under section 61K or 66EA of the Crimes Act 1900,

(c) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and

8 Section 7 of the Act provides for a preliminary hearing as follows:

7 Pre-trial procedures
(1) An application for an extended supervision order must be served on the sex offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and

(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(b) directing the offender to attend those examinations.

9 In the present matter Price J heard the preliminary hearing. On 30 April 2009 his Honour determined that there should be a hearing of the present application, and as a consequence made an interim supervision order. He further ordered that two psychiatrists examine the defendant and furnish reports to the Court.

10 Section 9 of the Act is as follows:

9 Determination of application for extended supervision order

(a) by making an extended supervision order, or

(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.

(a) the safety of the community,

(b) the reports received from the persons appointed under section 7(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 sex 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 sex offence,

(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,

(f) 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 earlier 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,

11 The order commences on the day that it is made and may be for a period not exceeding 5 years: see s 10 of the Act.

12 The conditions that can be attached to such an order are set out, but not limited to the type of directions, specified in s 11 of the Act. They are directions requiring the offender to do or not to do any of the following:

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

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

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

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

(e) to wear electronic monitoring equipment, or

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

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

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

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

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

13 The Court can vary or revoke an order that is made and can at the expiration of the order make a second or subsequent order.

The s 9(2) test

14 The meaning of s 9(2) of the Act, that is insofar as it specifies the precondition for the Court making an extended supervision order, is not without some controversy. The issue is the meaning of the phrase “satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence”.

15 In the Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 McClellan CJ at CL, having referred to numerous decisions in which the word “likely” had been considered and the policy behind the Act, stated (my underlining):

[50]

Khoury v Government Insurance Office (NSW)

Victims Compensation Fund Corporation v Brown & Ors

Gallagher

For relevant purposes the court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence.

16 The construction of s 17(3) of the Act was considered by the Court of Appeal in Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448; 178 A Crim R 133. Section 17 is concerned with the making of a “continued detention order” but the test to be applied by the Court before making such an order is the same as in s 9(2) in respect of an extended supervision order. The Court considered the appropriateness of the interpretation placed on the words in the section by McClellan CJ at CL in Winters in the light of the decision of the Court of Appeal of Victoria in TSL v Secretary to the Department of Justice (2006) 14 VR 109. In that case the Court held in relation to somewhat similar legislation in Victoria that the word “likely” should be construed as meaning "probable" in the sense of "a high degree of probability", but not necessarily involving a degree of probability of more than 50 percent.

17 The majority of the Court in Tillman, Giles and Ipp JJA, stated:

[88] In our view, there is much to be said for the view expressed by McClellan CJ at CL in Winters , namely, that "likely" is used in the section as meaning more probable than not. On the other hand, it is a respectable view that the legislature recognised the infringement of personal liberty by requiring satisfaction to a high degree of probability, so that it would be wrong to impose in the shade of meaning adopted for "likely" a further strict requirement of likelihood in the sense of more probable than not. There is ambiguity in the word "likely", and if unconstrained we would tend towards his Honour's view. Nevertheless, the view expressed in TSL is reasonably open and we are not persuaded that it is clearly wrong. In the light of what has emanated from the High Court in regard to the respect that an intermediate appellate court of one Australian jurisdiction should give to a decision of an intermediate appellate court of another Australian jurisdiction on issues that are substantially the same, we would follow and adopt the approach of Callaway AP in TSL.

[89]

18 And later:

[92]

19 The third member in Tillman, Mason P, dissented from the majority on this issue and stated:

[7] The universal requirement to construe words in context becomes even more pressing for chameleon-like words such as "likely". Dictionaries and decisions of the High Court inform us that this word may sometimes mean "probable" in the sense of more probable than not (see the review by McClellan CJ at CL in Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071 at [33]-[47]).

[8] Here one is dealing with a predictive inquiry referable to the particular offender that implicitly addresses the time frame within which the Court's order can operate. Is reoffending within this time frame likely unless detention or at least supervision is ordered? The likelihood of a single reoffending of the requisite nature will suffice to engage the various powers.

[9] This understanding of the individualised nature of the inquiry indicates to me that the Court is required to address a cascading set of predictions. At each step the ultimate question is whether or not the Court is highly satisfied that a single event of reoffending is likely.

[10]

20 In Cornwall v Attorney General (NSW) [2007] NSWCA 374 the Court of Appeal followed the majority view in Tillman.

21 It should be noted that although the majority in Tillman favoured the interpretation given to “likely” by McClellan CJ at CL in Winters they felt constrained by reasons of comity to follow TSL. However, that decision has been reconsidered by the Victorian Court of Appeal in RJE V Secretary To The Department Of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opportunity Commission [2008] VSCA 265.

22 In RJE Maxwell P and Weinberg JA in a joint judgment rejected the interpretation adopted in TSL. It is unnecessary for present purposes to detail the arguments that persuaded their Honours that the decision in TSL, so far as it concerned the meaning of the word “likely” in the relevant legislation, was clearly wrong. They referred to the issue of comity so far as the decision in Tillman was concerned and stated (footnotes not included):

[50] Comity between intermediate appellate courts is a matter of great importance, as the High Court recently restated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd . 6 Tillman and Cornwall v Attorney General for New South Wales having now been decided as they were, it would be facile to construe the Monitoring Act as if it were unique to Victoria and the problem of its construction were of merely parochial concern.

[51]

Tillman

Australian Securities Commission v Marlborough Gold Mines Ltd

... [T]he judge of an intermediate appellate court determining an appeal remains bound by the judicial oath to do justice according to law. In a proper case, that duty will require departure from non-binding precedents if the judge discerns that legal principles of higher authority require such departure. Each individual judge is obliged to pursue justice, not prudence, even though it may turn out that his or her views do not obtain the assent of appellate colleagues or are overturned upon appeal to the High Court.

[52]

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority

Marshall v Director-General, Department of Transport

But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.

[53]

TSL

Tillman

TSL

Tillman

23 The third member of the Court in RJE, Nettle JA, preferred the construction of “likely” as being “at least more likely than not” but for comity reasons, thought that the Court should follow the majority in Tillman. His Honour stated:

[104] …….

Tillman

Cornwall

TSL

Tillman

24 The situation is then that the majority in Tillman, although preferring the construction of the word “likely” given by McClellan CJ at CL in Winters, followed the interpretation taken in TSL for reasons of comity, yet that interpretation has now been rejected by the Court of Appeal of Victoria in favour of the construction applied in Winters. In light of this history it is highly unlikely, so it seems to me, that the Court of Appeal in this State would continue to follow the majority in Tillman.

25 One of the articles tendered by the defendant in these proceedings was by criminologist David Biles entitled “Sentence and Release Options for High-risk Sexual Offenders” in the Australia Journal of Forensic Sciences 2006 Vol 1 No 38. This contained a review of legislation in Australia, and including the Act with which these proceedings are concerned, in order to advise the ACT government. The article states:

26 I consider myself bound to follow Tillman and Cornwall. The parties before me agreed that I was. Yet if I apply the test in Tillman, I believe that I will be overturned on appeal. The State argues that on either interpretation of the word “likely” I should make the order. The defendant submits that I could not be satisfied of the likelihood of further offending on whatever meaning I apply.

27 Whatever interpretation of the word “likely” is to be given to the section, he seems to me that the prediction is concerned with the period in respect of which the Court can make an order, that is a period of 5 years. Although the State submitted that the prediction was not so confined, I cannot see how the section otherwise operates. That seems to have been the view of the section that Mason P took in Tillman.

The evidence

The defendant’s criminal record

28 The defendant has a criminal record that dates from 1962 but matters before 1989 can be disregarded as being irrelevant to the present proceedings. In 1989 he was sentenced in the Parramatta District Court for offences of supply and conspiracy to supply prohibited drugs. On each offence he was sentenced to imprisonment for 5 years with a non-parole period of 3 years to commence from 31 March 1989.

29 These offences involved a police officer and a person who also became notorious for his sexual offences against young males, Robert Joseph (Dolly) Dunne. The defendant was aged 41 at the time of the offences. The drug at the centre of the charges was amphetamine belonging to an associate of Dunne who had been arrested by police. The arresting police were unaware of the existence of the drug that was then supplied by the defendant and his co-offenders. The defendant was sentenced on the basis that he was to give evidence against the police officer. In respect of those sentencing proceedings a report was obtained from a psychiatrist, Dr Dent. I shall refer to his reports on the defendant later.

30 In December 1991 the defendant was sentenced for a number of sexual assault offences in Victoria. The offences were committed between March and June 1973 on a male aged 13 to 14 years at the time of the offences. The defendant was aged 24. He met the boy through the boy’s sister. The offences were acts of indecency and anal intercourse. The defendant had fled Victoria and there was a warrant in existence in that State for his arrest. Prior to sentencing the defendant had given evidence of police corruption in New South Wales and had been placed on witness protection.

31 In sentencing the defendant, Justice Byrne stated:

The offences to which you pleaded guilty are very serious and indicated a breach of trust towards your victim. You had obtained the confidence of his father and, as a result, were given an opportunity to act as a teacher for him and as an older friend. In these circumstances, and to that extent, you breached his father's confidence in you and you also took advantage of your victim. According to him, he is still emotionally affected by your conduct.

………………..

The offences to which you had pleaded guilty are serious. Your conduct indicates a breach of trust. The father of your victim allowed you to see his son and believed that a friendly and innocent relationship existed between you.

32 The effective sentence imposed upon the defendant was 2½ years with a non-parole period of 15 months.

33 In 1998 Judge Shillington in the District Court sentenced the defendant for 24 sexual offences. There were three male victims. The first was aged 14 years when the offences began and 19 when they ceased. In respect of that complainant there was one charge of indecent assault and 8 charges of buggery said to have been representative of “some hundreds” of sexual acts against that victim. These offences were committed between March 1974 and August 1978. In respect of this victim the Judge stated:

34 The second complainant was aged 13. In respect of him here were charges of sexual intercourse without consent of a person under age of 16, homosexual intercourse and indecent assaults. In the sexual assault offences the child was plied with alcohol and asleep when the defendant committed the offences, including digital penetration of his anus. These offences were committed over the period 1986 to 1988. In respect of this victim the Judge said:

35 The third complainant was aged 14 or 15. There were 7 offences committed against him of chiefly sexual intercourse and indecent assaults. One offence involved digit penetration of the complainant’s anus. These were representative of over a thousand similar offences committed between January and July 1988. The Judge said about this victim:

36 As to the effects of the offences on the victims the Judge stated:

One has to look at the effect of these offences upon the boys. I refer to the boys’ statements. The first in his statement says that his present situation is that he is greatly affected in his relationship with women. He finds it difficult to show affection. He has bad relations with his father who condoned your conduct with the boy. He has serious physical problems consequent upon numerous acts of anal intercourse. He has problems in relating to young children.

The second boy, his present state of mind is that he feels ashamed of his conduct. He says at the time of these events he had no one to turn to. His parents were alienated and he felt separated and scared of you. He had thoughts of suicide and also had thoughts that he wished to kill you. He said he described his feelings about himself as "I feel like a piece of shit". He was given marijuana and alcohol and he is now, according to his estimates, an alcoholic.

37 The Judge said the following about the offences for which he was sentencing the defendant:

It may be said that with respect to the first boy, you took advantage of the situation between him and his parents and that was also the situation in respect of the second.

These offences committed against these three complainants indicate sexual abuse of young boys. They were committed during their early to late teens. The boys came from dysfunctional homes with limited supervision and separated parents. Alcohol and drugs were used on occasions and were used to induce compliance [with] your wishes.

The complainants’ statements indicate they have suffered psychologically and in one case physically in a permanent way. It will be hard to exaggerate potential ill-effects on young impressionable boys of this type of physical abuse. Certainly in the case of the first and second boys, I am satisfied that their lives have been profoundly changed and degraded by your conduct.

Your counsel, Mr Molomby, made a number of detailed submissions which I feel I should deal with not in an exhaustive fashion but in general terms. It is your claim that these relationships were, as he describes them, monogamous in contrast to haphazard promiscuous conduct. It is somewhat difficult to reconcile that with your statement when you were interviewed on the Current Affair program in November of 1993. This is a program which I will refer to later. You are asked by Mike Munro on that occasion, " So how many young boys do you think passed through your life and the lives of other pederasts during those years that you are protected by the police?" and your answer was, "200 to 300". It is also to be noted that the offences with regard to the third boy occurred when you, as I understand it, were in what is described as a monogamous relationship with the second. But in the event it is hard to see, if this was the true situation, how it assists you.

…………….

It is further your claim that you had the implicit consent of the parents to what was taking place. In my view, this only makes the matter worse; the fact that you took advantage of lax parental control and lack of interest on the part of the parents. It is further suggested that they, the complainants themselves, have revised their view of the relationship with you. It is suggested they were willing parties at the time of these events, but it is to be noted that these were boys, certainly in respect of the first and second, from a dysfunctional family. You provided them with accommodation, you provided them with money and certainly in one case gave them alcohol and drugs. You flattered the boys and treated them as equals. That is evident from the BBQ video which I was invited to look at.

38 Judge Shillington sentenced the defendant to a total term of imprisonment of 12 years and it was from this sentence that he was released in May of this year. It is obvious that the defendant was not granted parole.

39 An appeal against the severity of this sentence to the Court of Criminal Appeal was dismissed on 21 July 1998. Sully J delivered the principal judgment of the Court and stated:

The applicant did not make any secret of the fact that the twenty-four particular matters charged against him, and to which he pleaded and stood for sentence, were manifestations of a lifestyle in which he had regularly indulged a period of years before 1989. It is necessary to bear carefully in mind, of course, that the applicant is not to be punished for offences for which he has not been tried, and of which he has not been convicted. By the same token, it is proper to take account of the fact, and it is undoubtedly admitted fact, that none of the particular twenty-four matters of present concern can be seen as isolated aberrant acts, but rather as representative of the pre-1989 lifestyle of the applicant.

40 In a reference to the part of the sentencing remarks concerned with the nature of the relationship of the defendant with the victims, Sully J stated:

41 In proposing that the appeal be dismissed, Sully J stated

42 On 13 October 1999 Blanch CJ sentenced the defendant in the District Court for three counts of buggery. Two offences were committed between June and September 1971 upon a complainant who was aged 15 at the time. The other offence was committed between March 1972 and March 1973 upon a complainant aged 14 years. The defendant asked the court to take into account five offences on a Form 1. Blanch CJ noted that the offences were of a similar kind to those dealt with by Judge Shillington. His Honour concluded that it was appropriate in the circumstances to impose a fixed term sentence of 4 years to date from the date the sentence was imposed. The sentences were thus served concurrently with the sentences imposed by Judge Shillington.

Psychiatric and psychological evidence

43 There was a deal of material placed before the Court by way of reports by psychiatrists and psychologists. A number of these witnesses were cross-examined on behalf of the defendant. Ultimately there was a uniformity of opinion that the defendant fell into a group of persons who were at high risk of further offending but there was disagreement as to what could be said about the risk of the defendant himself committing a further serious sexual offence.

Dr Dent

44 Dr Dent prepared a report dated 17 July 1989 for the sentencing proceedings before Judge Court for the drug offences. The defendant told the psychiatrist that he had been “easily manipulated” by Dunn and that the police officer involved had a “powerful grip on him through aspects of his [the defendant’s] sexual preference”. According to the report the defendant told the psychiatrist:

…….. that he was very afraid of losing Dunn as a friend, he told Dunn that he didn't believe Dunn had the right to put him in this situation, that he (your client) had a lot to lose.

45 In order to explain to the psychiatrist how he came to be “entrapped” by police in committing the drug offences, he told Dr Dent the following:

…….. he belonged to a "very harassed group who share mutual interests and affections", saying that his was "a group one feels safe in", stating that because of the harassment (indicating it had to do with his sexual preference) then these people "tend therefore to have a strong sense of mutual support and identity".

46 Later Dr Dent wrote (the underlining is the author’s):

What is also apparent from his background, is that there was affection given on condition that he obeyed the family's norms and attitudes, if he did not do so he would often have a guilty reaction. Indeed the point from this is that if he did not conform then he was deprived of affection and often threatened with this, it being of considerable importance to note his separation from the family as [an] uncontrollable child when 15.

it has been very important to him not to lose affection again

47 The "ward" referred to in these parts of the report was in fact one of the defendant’s victims of sexual abuse. Of course up until this time the defendant had been involved with Dunn and others in the repeated sexual abuse of under-aged males using alcohol and drugs to undermine any resistance by the victims and protected by corrupt police. However, Dr Dent wrote:

48 Dr Dent made a further report on the defendant dated 15 January 1992. The report commences:

Mr Fisk has been obliged to face a plea in Melbourne I believe on the 20th of January as a result of alleged offences when aged 24 years, that is in the very early seventies the circumstances involved a homosexual relationship with a 14 year old youth. Mr Fisk informs me that this was a mutual sexual and emotional friendship which lasted some six months.

I further understand he has never been charged with these offences or any similar offences in 1973 or since that time.

I am also aware that the emotional and psychological effects of all those circumstances in 1973 regarding the then 14 year old youth and his welfare prompted Mr Fisk at that time to contact the family on two occasions.

I understand this took place first in 1974 when he spoke to the boy and affirmed that he was well and believed that the events were best forgotten.

49 This account should be compared with what Judge Byrne stated in his sentencing remarks as follows:

I have already set out from the sentencing remarks the facts as recounted by the Judge and the way he viewed the offending. It is inconsistent with the account given to Dr Dent by the defendant.

Mr Joblin

50 A psychologist, Ian Joblin prepared a report dated 6 December 1991 for use in the Victorian sentencing proceedings. The report contains the following:

[The defendant] reported that when he was at school boarding in the Christian College, he became aware of his attraction towards males of a similar age. It seems that he was fixated at that level of sexuality. For a time after he left school he had considerable conflict in accepting his homosexuality, versus any heterosexuality. He had had relationships with females but they were not as gratifying as relationships with other young men. It is interesting to note at this time he apparently auditioned with the Australian Opera and was looking forward to a career as a professional tenor, but because of his confusion in relation to his sexuality he felt he could not continue. In his late adolescence and early 20s he began to accept his sexuality. When he left Melbourne after being charged with these offences he found other homosexual men of a similar orientation in relation to their partners and (the defendant) from that point has settled into accepting that he is a homosexual and that his partners of preference are youths. I am of the opinion that it is inappropriate to label this man as a paedophile. Indeed by definition he does not come into that category, even in relation to these offences.

CUBIT Treatment report

51 The defendant was involved in the CUBIT treatment programme for sexual offenders in custody from 13 September 2006 to 21 September 2007. There was in evidence a treatment report dated 19 October 2007. As to his overall participation in the programme the report states:

52 However, the report is generally favourable and the defendant successfully completed the programme. Under the heading “Life Time Patterns” the following is stated:

53 Early in his treatment the defendant demonstrated absence of empathy for the victims of his sexual offending behaviour, reporting that they had consented to the abuse and that he “romanticised the abuse as loving and intimate sexual relationships". He also suggested that the victims had not been harmed and disclosed the abuse for their financial gain. However as treatment continued he was able to develop "a rudimentary understanding of victim issues both for victims of sexual abuse in general and the victims of his offences”. The authors of the report thought the defendant would benefit from ongoing support in developing his empathy skills.

54 Under the heading of “Sexual self-regulation” the following is reported:

55 Under the heading " Acute dynamic risk factors" the following is stated:

Mr Fisk may be considered at imminent risk of reoffending when severe emotional disturbance is evident as this may impair his judgment and impact on his self-control. Historically, Mr Fisk has reacted to severe emotional stress by engaging in avoidant coping strategies such as ruminating, isolating himself, abusing drugs and alcohol and gambling. He has also engaged in aggressive behaviour towards others when experiencing stress or under the influence of alcohol and he indicated that he sometimes used sex as a means of coping when stressed. Mr Fisk has been diagnosed with depression in the past and is currently prescribed medication to manage these symptoms. Any of these behaviours or indicators that he is experiencing emotional stress would indicate to others an increasing risk of recidivism.

Additionally, loss of social supports through termination of relationships or perceive rejection may also be signs [of] Mr Fisk's increasing risk of reoffending. Similarly expressions of hostility, angry ruminations or general defiance and recklessness may also indicate an increasing risk, as would associating with pro-criminal others or seeking out child victims.

56 The report concluded with the following recommendation:

Mr Sheehan

57 Mr Sheehan is a psychologist employed with the Department of Corrective Services (“the Department) as Senior Specialist Psychologist, Serious Sex Offenders Review Group. He prepared a Risk Assessment Report dated 31 March 2009. This was based upon interviews with the defendant on 19 and 24 March 2009 and 14 April 2009.

58 In his affidavit of 21 April 2009 he stated:

Overall Risk

59 In his report at page 20 under the heading “Overall Risk” Mr Sheehan wrote:

The management of one's risk involves improving their level of functioning in the afore-mentioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors their ability to manage their overall risk improves.

Conclusions and recommendations

60 Later in his report under the heading "Conclusions and Recommendations" he wrote:

Mr Fisk's risk of sexually reoffending is estimated to be in the high-risk category relative to other men who have sexually offended. He has been afforded participation in an appropriate intensity of psychological intervention that is specific to offence-related behaviours and he has generated what appears to be a realistic and insightful plan for addressing the factors associated with risk. At this stage, there remains an obvious discrepancy between his behaviour plans and his actual behaviour. Given the high valency risk factor that Mr Fisk's only sectional interest is towards males of adolescent physical appearance, he would have to work consistently and comprehensively to manage all aspects of risk before confidence could be had in his ability to independently manage his risk over time. Ongoing supervision may assist Mr Fisk by forcing that he does not engage in high risk behaviours at times when his own self-management is inadequate. Mr Fisk would benefit from ongoing therapeutic assistance to generalise treatment gains and alternative coping strategies, should he be amenable to such intervention. Assessment of suitability for antilibidinal medications may also be a prudent step in adding a physiological dimension to risk management.

In the event that Mr Fisk receives an extended supervision order, it is likely that he would be supervised by the Community Compliance Group. In terms of accommodation, my understanding is that Mr Fisk has been approved for the Community Offender Support Program (COSP) centre. The COSP is a residential facility operated by the Department of Corrective Services, designed to facilitate the temporary accommodation needs of offenders released from custody whilst subject supervision. The COSP can offer Mr Fisk a comprehensive level of support and supervision, assisting him to organise the logistic details required by offenders when they returned to community life.

Static-99

61 In the body of his report Mr Sheehan refers to what he refers to as “static risk factors”. This risk of reoffending was assessed using an actuarial risk assessment, the Static-99. This assessment is described by Mr Sheehan as follows:

……….. the Static-99 consists of 10 items and produces estimates of future risk based on a number of risk factors present in any one individual. The risk factors included in the assessment are the presence of prior sexual offences, having committed a current non-sexual violence offence, having a history of non-sexual violent offence, the number of previous sentencing dates, age less than 25 years old, having male victims, having never lived with a lover for two continuous years, having a history of non-contact sexual offences, having unrelated victims, and having stranger victims. This actuarial tool has moderate predictive accuracy.

62 As a result of the use of this assessment, the defendant was placed in the "high risk category relative to other adult male sexual offenders". Mr Sheehan wrote:

In cross–examination Mr Sheehan accepted that recidivism for the purpose of this assessment included reconviction of any type of sexual offending whether serious or not.

Relevance of age

63 Mr Sheehan commented on the relevance of the age of the defendant, who was 61 years at the date of the hearing. He wrote:

Research into the effect of age on sexual recidivism is a relatively new and developing area. A number of studies suggest that for extra-familial child molesters the high-risk period is from the late 20s to the mid-40s, followed by a decline thereafter (Craig, 2008). Factors that may contribute to this decline include a reduction in sexual drive with age, increased self control, and fewer opportunities for developing relationships with children (Hanson, 2002). This reasoning implies that it is not age itself, but age related issues of lifestyle and physiological changes that may contribute to any proposed reduction in risk. The evidence from current research is limited to the extent that it is not possible to make any unqualified empirically-based statements about the influence of age-at-release on the risk of sexual reoffending for high-risk offenders at age-of-release 60 years or older, particularly when attempting to apply statistical trends to an individual (Doren, 2006).

Dynamic risk factors

64 Mr Sheehan referred to "dynamic risk factors" being those factors that are related to sexual recidivism and amenable to change. In his affidavit he states:

65 In his report Mr Sheehan wrote:

66 The dynamic risk factors considered by Mr Sheehan were intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. He points out that these factors were addressed within the CUBIT program.

67 In relation to "social influences" Mr Sheehan wrote:

68 In relation to "sexual self-regulation" Dr Sheehan wrote:

In my experience, many offenders who offend against young persons are also capable of sexual attraction towards adults. This allows them to focus their sexual energies towards cultivating peer-aged sexual relationship should they choose to desist from sexual offending. In many cases this becomes a goal of treatment during and beyond psychotherapy. The problem with Mr Fisk's narrow bandwidth of sexual interest, is that it leaves him little scope for adaptive sexual expression. The strategy described by Mr Fisk is to either abstain from all sexual contact or to seek young-adult partners who have an immature physical appearance.

…………

Post release requirements

69 In his affidavit Mr Sheehan addressed the need for supervision and support of the defendant when released from custody and stated

42. In my view when Mr Fisk is released from custody, supervisory conditions and monitoring would increase the likelihood of Mr Fisk being able successfully to manage his risk of sexual recidivism. Conversely, in my view supervisory conditions and monitoring would decrease the risk of Mr Fisk recidivating

43. Without intending to be exhaustive, recommended conditions would include conditions requiring Mr Fisk to accept ongoing psychological therapy (in terms of the community-based maintenance programme, discussed below), anti-libidinal medication if prescribed, as well as conditions providing for the support, monitoring and supervision of Mr Fisk.

……..

45. It would also be recommended that, at least in the initial stages of any supervision period, Mr Fisk remains abstinent from alcohol. It would also be recommended that he not use illicit drugs. Both alcohol and illicit drugs are known as disinhibitors of inappropriate behaviour and can affect judgment, [and] as such, are problematic in the case of Mr Fisk.

……….

Cross-examination

70 In cross-examination, Mr Sheehan accepted that the defendant had been using an anti-depressant medication for at least 12 years and that he had reported low libido. However, he though that diminished libido was not uncommon for offenders who are under stress, for example while going to court or while undertaking treatment. He accepted that the defendant might be less likely to be aroused now than when he was offending.

71 He was taken to studies concerned with the rate of recidivism over age and agreed that generally they showed a decline in re-offending with an increase in age in the oldest aged groups. However he was not prepared on the present learning to make an actuarial assessment of reoffending according to the age of the defendant. He stood by what he had written in his report and that has been quoted above. He did accept that persons who have been subject to a treatment programme are statistically less likely to reoffend.

72 He was asked about the defendant’s plans to live in the country and he thought that this had the potential to be beneficial in the long term. He accepted that living in that situation would “represent less of a risk scenario than the lifestyle he was living in the 80’s”.

Dr Samuels

73 Dr Samuels was one of the two Court appointed psychiatrists. He made a report dated 13 May 2009. Amongst the material he considered was the affidavit of Mr Sheehan and his risk assessment report.

Offending behaviour

74 In his report Dr Samuels took a history from the defendant including an account of the time that he was living with another notorious sex offender, Phillip Bell, at Whale Beach. He said that at the time money was no object and they could do what they could not do at home. Dr Samuels went on:

He made an interesting comment about Philip Bell, saying that he became very angry with Philip Bell because he felt that he "destroyed his boys". He gave the example that Philip Bell took one of "his boys" to Switzerland to finish his education (with the boy's parents’ permission). He said the boy then returned to Australia and was put into Sydney Grammar and shortly after that died of a heroin overdose. He went on to say that Philip Bell tried some sort of "Pygmalion act" with this young man.

At this point I asked him if he thought any of his sexual encounters with the "boys" had had adverse consequences. It was clear that he found this very difficult to answer but eventually said, "Yes, yes, yes". I asked him to expand on this and all he could really tell me was that these encounters might have "led to confusion about their sexual identity".

Medical history

75 Under the heading "Past Medical History" Dr Samuels wrote:

Sexual offending treatments

76 Under the heading "History of Sexual Offending Treatment" Dr Samuels wrote:

He tells me that he has completed the CUBIT programme and the maintenance programme and he feels he has benefited. He said after the events in 1989 he made a decision never to "reoffend with a young person again". He acknowledged that at the time these offences were happening he saw it as part of a "lifestyle". He did not see any particular adverse consequences to the young man involved. He said, "I thought it was a normality of life".

Dynamic risk factors

77 Dr Samuels was asked to assess the defendant's risk of re-offending. He noted the Static-99 score and its interpretation in percentage terms. He then went on to consider the defendant’s dynamic risk factors. In his evidence he indicated that these were “a checklist of most of the factors that are known to be associated with sexual offending”. He described it as a “structured assessment”; the more risk factors the greater the risk. He stated in his report:

In terms of social influences, Mr Fisk made it clear that he has severed all contact with the group of people who supported what he describes as his "lifestyle". He states that his involvement with the police and the Woods Royal Commission has also ousted him from this group. He made it clear that he will not be mixing with anyone who has had involvement in such activities and I would see this as being positive.

78 Later he wrote:

In terms of substance abuse, he acknowledges that in the past he did his alcohol to cope and abused marijuana. He states he has no desire to use the alcohol or marijuana. He says he has not used any substances for 12 years and he does not see himself as being at risk. He says if he was feeling at risk he would know how to access supports in the community.

79 Further he stated:

Risk of reoffending

80 Dr Samuels was asked to state his overall opinion as to his assessment of the defendant's level of risk of reoffending. He wrote:

He has a substantial and longstanding history of sexual offending against a circumscribed group of young adolescent males. Infrastructure that supported his offending behaviour has been largely disbanded and many of the other protagonists are no longer alive. Mr Fisk has been involved in a number of events that may have changed some of his views relation to these issues. He has also spent 12 years in custody and has been through a treatment programme. His case is somewhat notorious and he will be subject to greater scrutiny in the community. He states he has found religion and has the ability to self regulate his sexual thoughts and feelings. He states that he is no longer reliant on alcohol and marijuana which may have been a factor in his offending in the past. He has however been in custody for the last 12 years and has not had the opportunity to access victims or to use substances.

Despite going to a program of therapy there are still some suggestions from his presentation that he has a level of denial about the consequences of his offending behaviour. He sees “hebephilic” behaviour as being somewhat different from "paedophilic" behaviour. I also get the impression that he sees his role in these events as perhaps being less significant than the parts played by others.

He does have some personality strengths and he does seem to have some genuine support in the community and is not without intellectual resources.

He has a high actuarial risk profile and although the Static-99 reflects a cohort of offenders and does not really give any information about individual offenders, I would see his score as being in keeping with his overall presentation.

Using a structured risk approach, the RSVP, a number of risk factors are highlighted which include chronic sexual violence, psychological coercion,………….., attitudes condoning sexual violence, problems with stress and coping, sexual abuse as a child, substance misuse, depression and anxiety, problems with intimacy, employment difficulties, non-sexual criminality, problems with treatment and supervision.

Therefore taking all these factors into account I think there is "a sufficiently substantial probability" that in the absence of appropriate supervision in the context of his support structures failing, mood instability, substance misuse and opportunity, he could commit a further serious sexual offence.

I have not particularly addressed the other static risk factor of age because this is a controversial entity and Mr Fisk continues to present as a fairly fit, healthy looking man.

81 Later in his report Dr Samuels stated:

As I have already outlined, Mr Fisk sees his offending behaviour over 20 years or so as being part of "a lifestyle" which was perpetuated and maintained by the circle of friends that he was involved with. He sees this network as having now disbanded through the Woods Royal commission, the deaths of the various participants and exposure of the corruption in the NSW police force. He sees himself to some extent as having championed the Woods Royal Commission and being responsible in some way for its outcomes. He sees himself as being a pariah within the community of offenders and perhaps in the gay community as well. He indicated that he has changed in his thinking and simply states that he will not engage in sexual relationship with underage males and he believes he has enough supports and structures in place to prevent this happening. I continue to be left with the feeling that he employs a lot of intellectualisation, rationalisation and minimisation strategies in terms of his thinking. This was clearly a very well entrenched pattern of behaviour. He states that he enjoyed "grooming" can mean more than having sexual relationships with them.

Cross-examination

82 In cross-examination he was asked about the statement in his report that the defendant had “some personality strengths”. He was asked what the strengths were to which he referred. He answered:

83 He was asked whether these were positive factors in terms of determining whether the defendant was likely to commit a further serious sex offence and he replied:

169 With respect I believe this view underestimates the ability of experienced judges to make predictions about future offending based not only upon the expertise of others, such as psychologists, probation officers, and psychologists but also the judge’s own expertise developed through the experience of human behaviour derived from sitting in the criminal jurisdiction. As their Honour’s acknowledge, the criminal courts frequently and routinely make decisions about future offending, sometimes with the result that a person will be deprived of liberty, in bail and sentencing decisions. Expertise as a witness is derived not only from learning and study but also experience in a particular area of practice. I see no reason why it should be different for the expertise of a judge in determining facts of a particular kind.

170 In any event, with due humility and not unaware of the difficulty and unreliability of the task at hand, I have to make the decision as best I can even in the face of the view of the majority in RJE as to my lack of expertise and the opinion of Dr Ellis that science lacks the ability to make a prediction of the kind that the Act requires. Although I have the utmost respect for the view of Dr Ellis, I cannot be bound by it so as to hold that, simply because science lacks that ability, the Court must similarly lack it. If it were so it is difficult to see any case in which the Court could carry out Parliament’s will even though I should accept that it was aware of the unreliability of the prediction of future dangerousness.

Risk of reoffending

171 Unaided by scientific or expert opinion I would be of the opinion that in some, if not many cases, the best predictor of future conduct is past conduct. That is chiefly how such findings are made in bail and sentencing hearings. Of course due allowance has to be made for a variety of factors including the nature and extent of the past behaviour, its proximity to the decision about future conduct, changes in circumstances of the offender and whether there is evidence that suggests reformation of the person or a lack of prospects of reform.

172 Dr Samuels stated that “the past is the best predictor of the future” when commenting upon the likelihood of the defendant using alcohol when he was under stress.

Section 9(3)(h) The defendant’s record

173 It is unnecessary to examine the defendant’s criminal record since 1989 again in any detail. The outstanding feature of it is that it related to sexual offences committed over a period of almost two decades against exclusively under-aged males involving a variety of sexual acts including penetration of the victims with acts of violence. The acts of sexual abuse were estimated as up to a thousand. They were planned offences in which the defendant enticed the chosen victims by the use of alcohol and drugs and objects that would be attractive to male youths, such as cars and boats. At times he insinuated himself into the family of the victims to get close to his prey and betrayed their trust in him which he had built up just for that purpose. The offences were not simply part of the lifestyle he was living with other sexual predators they were an essential aspect of his identity. He admitted to psychiatrists that it was not so much the sexual acts that gave his fulfilment but rather the grooming of the young men to submit to his sexual abuse. The targets of his criminal conduct were often vulnerable youths from disadvantaged backgrounds. A very significant part of the defendant’s offences was his manipulation of his victims and their families.

174 I find it difficult to dismiss from my mind when considering all the psychiatric and psychological evidence, the fact that the defendant’s sexual offending was integral to his personality and identity for a very significant period of his life and was attended by a seemingly entrenched belief system as to the appropriateness of this type of behaviour. I believe that in the circumstances of this particular case the defendant’s criminal history of offending is a very highly significant factor in any prediction of future re-offending.

175 It was considered relevant by Dr Ellis that the defendant’s sexual interest has been almost exclusively in under-age males.

Section 9(3)(d) Static-99

176 I do not find this a very reliable tool for the prediction of future re-offending. This was the view adopted by both parties although that unreliability was seen as having different consequences.

177 The defendant stressed, first the low risk of the defendant re-offending by application of the tool, 22.3 percent to 38.2 percent for reoffending in the next 5 years but secondly notes the fact that the risk of reoffending using the tool relates to reoffending of any sexual offences however trivial and thirdly argues that it is indiscriminate when it comes to the age of the offender; the test scores only whether the person is under the age of 25 years, yet studies suggest that the risk of reoffending declines with advancing age. Fourthly the defendant points out the lack of power of the tool to predict; it is not much more successful than chance. The defendant in effect argues that these deficiencies in the tool indicate that the risk of the defendant committing a further serious sexual offence are markedly less than the indicated by the application of Static-99.

178 I have already referred to the State’s reasons in support of its submission that the tool is of limited utility.

179 Although I am required to take it into account I do not believe that it is a very helpful tool, at least in this case and having regard to the nature and extent of the defendant’s offending in the past. It is but one of the factors that I take into account but one having little weight in this particular case.

Section 9(3)(i) Age of the defendant

180 I have little doubt that as a general proposition the likelihood of re-offending diminishes with age. There are many reasons for this as discussed by the experts who gave evidence before me. However I believe that the defendant has been overly critical of the attitude of the experts on this issue. While they accept it as a relevant factor, they were not prepared on current knowledge to use it to make an actuarial reduction in the risk of re-offending even though there is some support for such a reduction in the literature.

181 I accept that it is a relevant factor that the defendant is aged 61 and hence falls into a range of persons where, in general, the risk of re-offending is reduced. But the difficulty is applying that general proposition to the particular individual. I believe that this was the view expressed by the experts. The cause of a reduction in the risk of reoffending may be due to a variety of factors any one or more of which may be present in any particular case to a different degree or might be absent in a particular individual.

182 One of the reasons for the correlation between advancing age and reduced risk of reoffending may be a decline in libido due to age. The difficulty is in knowing what effect, if any, age has on a person’s libido in a particular case. Here one has only the statements of the defendant as to his reduced libido, and I give them no credit for reasons I shall give shortly.

183 Another factor may be that opportunities for re-offending decline with age. This is particularly so in cases of intra-familial offending, as in incest-type cases, or rape, where advanced age takes away the ability to commit the crime. But the defendant’s offending did not necessarily require any significant physically exertion on his part and was not dependent upon the presence of available victims. He was a predator who used his charm and other social skills to engage with the persons to whom he was sexually attracted. He has not lost those attributes whatever might be his medical condition.

184 I do accept that the “infrastructure” surrounding his offending has ceased to exist. That infrastructure was part of his offending in that it allowed him to offend more safely because of the lack of police interference and he received both moral and material support in carrying out his offending behaviour by his friendship with other offenders who are now dead. But the infrastructure was not essential to his offending and I believe its absence has less significance in this case. I do not believe that the fact that by reason of his evidence at the Wood Royal Commission that his opportunity for offending has been particularly diminished.

185 Age also may lead to self-control and a lack of impulsivity but a significant part of the defendant’s offending was not derived from a lack of his ability to control himself in a given set of circumstances. He chose the circumstances of his offending by grooming suitable victims and insinuating himself into situations where he could make unsupervised contact with his victims.

186 True it is that Dr Ellis thought that the defendant’s personality traits that contributed to his offending might have attenuated with age. Testing of the defendant indicates that there may be a decrease in impulsive and unregulated behaviour. But in my opinion that has little to do with the nature of the defendant’s offending in the past and does not significantly indicate a lack of offending in the future.

Section 9(3)(i) The defendant’s physical condition

187 To the extent that an assessment of the defendant’s current physical state depends upon self-reporting, I do not accept it. His back problems seem to me to be of little relevance, seeing that it is reliably controlled by an analgesic and on its face would not affect his capacity to reoffend given the nature of his offending in the past.

188 Nor would his emphysema. It is relieved by medication and apparently will not interfere with him carrying out physical activities on the country property. I accept that his use of anti-depressant medication may reduce his arousal but I do not have any objective evidence of the degree to which it alone suppresses arousal in his case. Each of the experts thought that the defendant should take antilibidinal medication but he is not prepared to do so.

189 The defendant’s testicular problem is an old one and would have been present to some degree at the time of his offending. I do not accept that it causes him such pain that it interferes with him obtaining an erection or sexual gratification. If it were as significant as he states, I do not understand why he would not have mentioned that fact to Dr Samuels at some stage during their interview. The defendant appeared to me to be inconsistent in giving accounts as to his present level of arousal. He told Dr Ellis that he masturbated about once a fortnight despite saying that it was painful. The evidence of the defendant before me was that he was aroused once a month when watching movies or in relation to past experiences but the pain reduced the length of his arousal. His evidence as to his sexual arousal was designed in my opinion to suggest that he no longer became physically aroused by such stimuli and certainly not to the extent of masturbation.

Section 9(3)(e) Treatment or rehabilitation programmes

190 The defendant voluntarily entered into the CUBIT programme and the maintenance programme with some apparent measure of success. I accept that involvement in such programmes may diminish the risk of re-offending generally speaking. However treatment effectiveness in reducing sexual re-offending is open to some question, see Craig et al “Treatment and Sexual Offence Recidivism”, 2003 Trauma, Violence & Abuse Vol 4 No 1.

191 Mr Sheehan noted that the course seemed “arduous” for the defendant because of the time he took to complete it. He stated that “it may be because treatment sought to challenge an entrenched belief structure and coping style upheld by Mr Fisk for many years”.

192 The defendant is in my view highly manipulative. This opinion is based largely upon the nature of his past offending but even the owner of the country premises accepted that this was so, even though she thought, for reasons that I did not understand, that it was no longer the case, at least so far as she was aware. There was nothing in his evidence in these proceedings or in the accounts of his treatment to suggest that this was no longer a present trait of his personality. I believe he attempted to manipulate me in his evidence. He admitted so much in relation to his future use of alcohol.

193 Dr Samuels noted that a person such as the defendant, being articulate, glib, intelligent, and charming was easily able to lead persons who conduct treatment programmes or therapy groups to believe erroneously that he is performing well. The defendant’s personality in this regard could be a risk factor. I appreciate that this is somewhat of a “no win” situation for the defendant: if he appears not to be succeeding that counts against him, but if does seem to be successful that is only because he is manipulating the therapist. But I cannot help but be sceptical of the assertion by the defendant that he has changed his attitude to the offending and his victims.

194 I do not believe that he has any true victim empathy, a factor seen as highly significant in cognitive behavioural therapy such as the defendant has been exposed to. I have earlier referred to the letter written by the defendant to the Victim’s Compensation Tribunal in 2000 supposedly after he had reached a decision to give up his offending because of his understanding of its effects on his victims. I have also noted my opinion that his evidence in explanation of that letter was untrue.

195 He had difficulty in showing any empathy for his victims to Dr Samuels and could only say, after some hesitation, that it might have “led to confusion about their sexual identity”. Dr Samuels believed that the defendant still had some “distorted attitudes in relation to his sexual offending behaviour and his victims”. He also has “some intellectualisations and rationalisations about his previous offending behaviour and at some level still feels that his actions were justified and not particularly damaging” and that these raised concerns.

196 Senior counsel who appeared for the defendant conceded that there would be doubts about his client’s insight into his conduct or its effect upon his victims, but argued that one insight he would have is that further offending would result in harm to him by further punishment. But his offending behaviour has been such a part of his character and identity that I believe there is a substantial risk he may be unable to resist falling into the pattern of behaviour without monitoring and compulsory treatment programmes.

Section 9(3)(b) Reports from Court appointed experts

197 Dr Samuels was criticised by the defendant in that his prediction was based upon “the absence of appropriate supervision and in the context of his support structures failing, mood instability, substance misuse and opportunity”. It was submitted that there was no evidence that these preconditions to a return to re-offending were likely to occur or that there is any empirical studies indicating that these were factors leading to re-offending.

198 I do not believe that this criticism is justified. There is in my view a real risk of any one or more of these circumstances occurring.

199 There is a real question to my mind about the defendant’s commitment to alcohol abstention or at least his ability to abstain from alcohol. Even accepting that he has abstained from alcohol and drugs over the past 12 years, he has refused to engage in counselling in that regard notwithstanding that it has been available to him and he has had ample opportunity at least while at COSP to take advantage of it. This is because he believes that alcohol is no longer a problem. This is an example of his lack of insight and his unpreparedness to address risk attendant behaviour when it does not suit him.

200 Dr Ellis thought that the defendant needed monitoring of substance use and assistance in maintaining abstinence. He noted that he had not undertaken treatment programmes notwithstanding his previous heavy use. He wrote, “[the defendant] was not able to articulate strategies to avoid use other than to say that substance use is not a problem for him now”.

201 Mr Sheehan was concerned that the defendant might find “abstinence more challenging when faced with contextual situations traditionally associated with drinking

202 The defendant’s evidence in these proceedings on this topic showed how fluid his views are about his future use of alcohol and how willing he was to take a stance that he thought might be advantageous to him.

203 There is little evidence before the Court as to the defendant’s support structures in the community if he were not reliant on COSP. Apart from the owner of the property who is prepared to allow him to reside there and assist him in fulfilling his obligations, the only evidence is that he has friends in the community and a brother who has some interest in his welfare. If something were to occur to take away the support for him by the owner of the property or the availability of that residence, it is difficult to see how the defendant would cope after his extended period in custody. Dr Samuels believed that in that case there was a risk “that he could psychologically decompensate and become very depressed and anxious which might increase the likelihood of his reoffending”.

Section 9(3)(c) Other reports

204 The opinion of Dr Samuels as to the risk of the defendant further offending seem to me to be supported by Mr Sheehan although he does not purport to quantify the risk. Because the defendant’s only sexual interest is toward males who would fall into a group of potential victims to his reoffending, Mr Sheehan believed the defendant “would have to work consistently and comprehensively to manage all aspects of risk before confidence could be had in his ability to independently manage his risk over time”.

205 Like the other experts Mr Sheehan thought that antilibidinal medication would be “a prudent step in adding a physiological dimension to risk management”. However the defendant is resistant to taking such medication notwithstanding that, according to him, he is no longer significantly sexually aroused by images of young males as, for example, seen on movies. Yet the purpose of the medication in preventing arousal was one of the effects that he found unacceptable.

Conclusion

206 I am persuaded to a high degree of probability that the defendant is likely to commit a further serious sexual offence if he is not kept under supervision. I would reach that conclusion even if the word “likely” meant more probable than not. As the law stands in this State it is unnecessary for me to reach that level of persuasion. Therefore I intend to make an order for the extended supervision of the defendant.

207 The only significant dispute as to the conditions if an order were to be made is that of residence. I believe that the defendant should be placed under the control of the Department in that regard for the next 9 months but, thereafter, he should, if he wishes to do so and it is available to him, be able to reside on the country property.

208 In my opinion the defendant should be closely monitored and supervised for a period of 9 months from his release, that is further 6 months from today. I believe that the evidence supporting that condition is overwhelming. It seems to me that it is a necessary part of his reintegration into the community after a lengthy period in custody and gives him the chance to be involved in necessary treatment programmes as and when required. I am far from satisfied that in such a period the defendant’s prospects of rehabilitation will be deleteriously affected by remaining in COSP or some other accommodation chosen by the Department. It also means that the defendant can go to the country property after the Christmas holidays.

209 However, after a further period of close supervision and continued treatment the defendant’s risk of reoffending should have attenuated to some degree. I believe it is a proper balance between the benefits of further close supervision and monitoring initially both for the safety of the public and the defendant’s welfare on the one hand and a chance for the defendant to be in an environment more conducive to his rehabilitation on the other.

210 That period of time will give the Department the opportunity of organising its recourses to be able to monitor and supervise the defendant at the country property. I am far from satisfied that this cannot be achieved in a further period of 6 months. There was a dispute in the evidence as to how long it took to get from the property to relevant places and I am not convinced that adequate treatment and supervision cannot be achieved at that property. A deadline seems to me to be no bad thing in that regard. But if it truly cannot be achieved or if after the defendant moves to the country property his treatment is being significantly interfered with, or adequate monitoring and supervision cannot be provided, or if real risks of further offending arise, then the matter can be dealt with by an application brought by the State to vary the condition at relatively short notice.

211 I am concerned that the onus should be on the State to seek a variation by positive evidence that the residence at the country property is not appropriate. Although I am satisfied it is not appropriate at the present time and will not be over the next 6 months, I am not persuaded that it should be denied to the defendant after that period of time.

212 I believe that ultimately it is in the interest of the defendant and hence the public generally that he be able to go to the country property. I consider that overall he will have less opportunity to re-offend there than he will have in the greater metropolitan of Sydney even with more intensive monitoring and supervision.

213 As to the period of the order the State submitted it should be 5 years. The defendant submits it should be no more than 12 months relying upon the evidence of Dr Samuels. I believe that it should be for a further period of 3 years once the defendant has moved from the residence controlled by the Department. I believed that the risk is sufficiently highly probable for that period. Within that period the defendant can seek a variation or revocation of the order and should have the onus. Thereafter the State can seek a further order and should have the onus to show that it is required for the protection of the public.

Non-publication order

214 The parties have agreed that, if I make an order sought by the plaintiff, I should make an order preventing publication of certain information: the current and future residences of the defendant, a name used by him while on witness protection and the name of the person providing alternative accommodation to that provided by the Department.

215 I recognise the very limited use that the Court should make of its power to prevent publication of material because of the fundamental requirement of our system of justice that hearings be open and evidence be available for circulation to the public generally. However, there is no doubt that in a truly exceptional case and where “it is really necessary to secure the proper administration of justice in the proceedings before it” the Court can make such an order: see John Fairfax Publications v District Court of NSW (2004) 61 NSWLR 344. The order should be clear in its terms and do no more than is necessary to achieve the due administration of justice.

216 These proceedings were brought by the State for the purpose of placing the defendant’s liberty in the community under conditions including where he could reside. The purpose of these proceedings according to the Act under which they were brought is both the protection of the public and the rehabilitation of the offender. Of course these two purposes are not inconsistent. One means of protecting the public from an individual is to rehabilitate him.

217 In order to achieve the rehabilitation of the defendant it is necessary in my view to restrict the persons who know where he is to reside. While I understand that members of the public would reasonably have an interest in knowing that information in what they consider to be the protection of adolescent males in the community generally or certain individuals in particular, the protection of those persons is placed in the hands of officers of the Department and the police and secured by restrictions upon the defendant’s conduct including restrictions upon where he might go in the area in which he is residing. That purpose of the Act is adequately maintained by the restrictions imposed upon the defendant including his place of residence.

218 In my opinion the order made by the Court as sought by the State would be frustrated in its objective if the public at large were made aware of the residence of the defendant or any material that might disclose that location. The owner of the property where the defendant seeks to reside, once he has been permitted to do so, has indicated in uncontested evidence that, were the residence revealed publicly and hence her sense of security and privacy be unreasonably invaded, she would be unable to provide the accommodation to the defendant. In my opinion the provision of that accommodation on the evidence presently before me is an integral part of the eventual rehabilitation of the defendant. Clearly the place where the defendant will reside in the short term under the management of the Department should not be disclosed otherwise the Department may be unable to provide the defendant with the accommodation and resources that it believes essential for the proper management and supervision of the defendant and hence the reason for the making of the order.

219 I order that there be no publication of (a) the present place of residence of the defendant (b) the approved place of future residence of the defendant while under the conditions of the extended supervision order made by the Court and (c) any material that would tend to identify the person with whom the defendant intends to reside as permitted under the conditions of the extended supervision order and (d) the name by which the defendant was known when on witness protection The non-publication order does not apply to any officer of the Department of Justice and Attorney General and the NSW Police Force insofar as the disclosure is reasonably necessary in implementing the extended supervision order nor to the defendant and the person with whom he proposes to reside.

Order

220 Pursuant to section 9(1)(a) of the Act I order that the defendant be subject to an extended supervision order to operate for a period of 3 years 6 months from 11 August 2009 and pursuant to section 11 of the Act, direct that, for the period of the extended supervision order, the defendant comply with the following conditions.

221 There is liberty to apply on 24 hour’s notice in respect of condition 23.

222 Directions:

1. The defendant must accept the supervision and guidance of the Department of Corrective Services, including the Probation and Parole Service and the Community Compliance Group, for the duration of the Order.

2. The defendant must comply with any reasonable direction given by a Probation and Parole officer (“parole officer”), an officer of the Community Compliance Group (“CCG officer”) or supervising officer from the Department of Corrective Services (“Departmental supervising officer”);

3. The defendant must report to a parole officer or CCG officer or Departmental supervising officer as directed by that officer.

4. The defendant must not commit any further sexual or drug and alcohol related criminal offences for the period of the Order.

5. The defendant must comply with all conditions of the NSW Police Service Child Protection Register.

6. The defendant must not access the internet for the purposes of viewing child pornography. The defendant must allow a parole officer or CCG officer or Departmental supervising officer access to any computer he may from time to time utilise, for the purposes of examining and investigating his internet activity.

Treatment:

7. The defendant must participate in sex offender and drug and alcohol treatment and rehabilitation as reasonably directed by a parole officer or CCG officer or Departmental supervising officer;

8. The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service, in consultation with the Community Forensic Mental Health Service (“CFMHS”), including counselling, psychological therapy and any anti-psychotic or other psychiatric medication as indicated.

9. Without limiting paragraph 8 above, the defendant must accept assessment by an Area Health Service, in consultation with (or by) the CFMHS, to determine suitability of sex drive reduction treatment/medication.

10. The defendant must accept such psychological intervention by psychologists employed by the Department of Corrective Services as may be offered to him.

11. The defendant must attend if reasonably required/directed, regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service in consultation with CFMHS in so far as it relates to assessment for suitability of sex drive reduction treatment/medication.

12. The defendant must attend if reasonably required/directed consultations with the Area Health Service or CFMHS, at such a frequency, venue and time as directed by his treating clinicians in so far as it relates to assessment for suitability of sex drive reduction treatment/medication.

13. The defendant must engage a general practitioner; he must notify the Departmental supervising officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer.

14. The defendant must disclose to the Department supervising officer the identity of any other medical or mental health practitioner that he consults.

15. The defendant must participate in treatment, including maintenance provided by the Forensic Psychology Services and rehabilitation as is directed by the Departmental supervising officer, including attendance and engagement in community maintenance programs for sex offenders.

Association

16. The defendant must not associate or make contact with males aged 16 years and under unless in the company of a responsible adult (previously approved by a parole officer or CCG officer or the Departmental supervising officer);

17. The defendant must not attend schools, amusement parlours, dancing academies, dance schools, dance studios, dance competitions, and any other such places as a parole officer or CCG officer may reasonably direct;

18. The defendant must not associate with any persons specified by the Departmental supervising officer.

19. Should the defendant propose to befriend another person whom he knows to be the parent or guardian (or otherwise a person with care and control eg teacher) of a male under the age of 16 years or whom he knows to be a sibling of a male under that age he must notify the Departmental Supervising Officer as soon as reasonably possible.

Electronic Monitoring

20. The defendant must wear electronic monitoring equipment if directed by a parole officer or CCG officer and must not tamper with or remove such equipment;

21. The defendant must comply with all instructions given by a parole officer or CCG officer or Departmental supervising officer in relation to the operation of the electronic monitoring equipment;

22. The defendant must inform the Departmental supervising officer of his movements 48 hours in advance and must obtain prior approval for any proposed schedule change.

Residence, Movement, Appearance

23. Subject to the exception stated the defendant must from the date of this order reside at an address approved by a parole officer or CCG officer or the Departmental supervising officer and must not change address without the permission of a parole officer or CCG officer or the Departmental supervising officer. Except that after a period of 6 months from the date of the order the defendant is permitted to reside at the country property for so long as the owner is willing and able to provide accommodation to the defendant at those premises.

24. The defendant must accept home visits, including unannounced home visits by a parole officer or CCG officer or the Departmental supervising officer;

25. The defendant must be at his approved residence between 11pm and 5am unless otherwise pre-approved by a parole officer or CCG officer or the Departmental supervising officer.

26. The defendant must not leave the state of NSW without the approval of the Departmental supervising officer

27. The defendant must not obtain or apply to obtain a passport without the prior approval of the Commissioner of Corrective Services.

28. The defendant must not change his appearance without the approval of a parole officer or CCG officer or the Departmental supervising officer, and, in the event that the change of appearance is approved, must allow himself to be photographed;

29. The defendant must not use another name other than that by which he was known during his period on witness protection;

Employment

30. The defendant is to seek approval from a parole officer or CCG officer or the Departmental supervising officer for any employment that he proposes to undertake;

31. The defendant is to notify a parole officer or CCG officer or the Departmental supervising officer of any intention to change his employment before any such change occurs;

32. The defendant must allow the Departmental supervising officer to contact his employer and must inform the Employer of his offending history if the type of employment is assessed by the Departmental supervising officer as potentially bringing him into contact with children under the age of sixteen.

33. The defendant is prohibited from:

(b) undertaking child-related employment (as defined in the Commission and Young Children Act), or
(c) remaining in child-related employment (as defined in the Commission and Young Children Act).

Consumption

34. The defendant must not consume alcohol or illicit drugs or abuse prescription medication;

35. The defendant shall submit to drug and alcohol testing as directed by a parole officer or CCG officer or Departmental supervising officer;

36. The defendant must not be present at any licensed premises, including but not limited to hotels, bars and racecourses with the exception of restaurants and cafes without the prior approval of a parole officer or CCG officer or the Departmental supervising officer.

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11/08/2009 - Error - Paragraph(s) File number on cover sheet and judgment

14/08/2009 - Error - Paragraph(s) 216

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Citations

State of NSW v Colin John Fisk [2009] NSWSC 778

Most Recent Citation

State of New South Wales v Thomas (Interim) [2009] NSWSC 1119

Cases Citing This Decision

10

State of New South Wales v Elmir (Final) [2019] NSWSC 1867

State of New South Wales v Williamson (No. 2) [2019] NSWSC 936

State of New South Wales v Wilmot [2019] NSWSC 1002

Cases Cited

9

Statutory Material Cited

1

Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071

Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071

CITATION:	The State of NSW v Colin John Fisk [2009] NSWSC 778 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27/07/2009, 28/07/2009, 29/07/2009, 31/07/2009
JUDGMENT DATE :	11 August 2009
JUDGMENT OF:	Howie J at 1
DECISION:	See paragraphs 220, 221, 222.
CATCHWORDS:	Criminal Law - Serious sex offender - Application for extended supervision order - Requirements of s 9(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) - standard of proof - meaning of "likely" - Expert Evidence - whether prediction of further offending can be made to the degree of probablities - whether order should be made - what conditions should be made as to residence of defendant.
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 - ss 3, 5(1), 9, 10, 11, 17.
CATEGORY:	Principal judgment
CASES CITED:	Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448; 178 A Crim R 133 TSL v Secretary to the Department of Justice (2006) 14 VR 109 Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071; 176 A Crim R 249 Cornwall v Attorney General (NSW) [2007] NSWCA 374 RJE v Secretary To The Department of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opprotunity Commission [2008] VSCA 265 B and B (1993) FLC 92 Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 John Fairfax Publications v Disrict Courrt of NSW (2004) 61 NSWLR 344
PARTIES:	The State of New South Wales v Colin John Fisk
FILE NUMBER(S):	SC 011970/09
COUNSEL:	C E Adamson SC/S G Callan - Plaintiff P S Strickland SC - Defendant
SOLICITORS:	J Murray - Plaintiff C Hunter - Defendant