State of NSW v Hayter

[2009] NSWSC 611

CITATION:	State of NSW v Hayter [2009] NSWSC 611
HEARING DATE(S):	01/07/2009
JUDGMENT DATE :	1 July 2009
JUDGMENT OF:	Buddin J
DECISION:	1. Pursuant to s 13(1) of the Crimes (Serious Sex Offenders) Act 2006 the interim supervision order which I made on 24 April 2009, and renewed by further orders made on 28 May 2009 and 25 June 2009, is revoked with effect on and from 4 pm on 1 July 2009. 2. Pursuant to s 9(1)(a) of the Act, I order that the defendant be subject to an extended supervision order for a period of five years to commence on and from 4 pm on 1 July 2009, and pursuant to s 11 of the Act, I direct that the defendant comply with the conditions set out in the Schedule which is attached to these Orders. I note that the defendant and a representative of the Attorney-General’s Department have signed each page of the Schedule.
CATCHWORDS:	Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto - only issue as to duration of order
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Principal judgment
CASES CITED:	Cornwall v Attorney-General for NSW [2007] NSWCA 31 State of New South Wales v Hayter [2009] NSWSC 318 State of New South Wales v Tillman [2008] NSWSC 1293 Tillman v Attorney-General for NSW (2007) 178 A Crim R 133
PARTIES:	The State of New South Wales (Plaintiff) Warren Graeme Hayter (Defendant)
FILE NUMBER(S):	SC 2009/11634
COUNSEL:	P Menzies QC/D Kell (Plaintiff) A Haesler SC (Defendant)
SOLICITORS:	IV Knight (Crown Solicitor for State of NSW) (Plaintiff) S O'Connor (Solicitor for Legal Aid) (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 1 JULY 2009

2009/11634 – STATE OF NEW SOUTH WALES v WARREN GRAEME HAYTER

JUDGMENT

1 BUDDIN J: By summons filed on 25 March 2009 the plaintiff seeks an order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act2006 (the Act) that the defendant be subject to an extended supervision order and that, pursuant to s 11 of the Act, he be directed to comply with the conditions set out in the Schedule to the Summons.

2 On 24 April 2009 I conducted a preliminary hearing into the matter. At the conclusion of that hearing I ordered that the defendant was to be subject to an interim supervision order with effect from 5 May 2009 (the date on which he was due to be released from custody) for a period of 28 days and that he was to comply with the conditions set out in the schedule to the summons. I also ordered that two qualified psychiatrists, Dr Anthony Samuels and Professor David Greenberg, examine the defendant and furnish reports to the court on the results of those examinations. Those, and various ancillary orders, were made without opposition: see State of New South Wales v Hayter [2009] NSWSC 318 [the preliminary judgment]. At that time I set out the background to the proceedings, the effect of which was that the defendant had been made the subject of successive orders for his continued detention for a period which in total amounted to 18 months in custody. [See paras 5-10 of the preliminary judgment].

3 I have twice subsequently, without objection, renewed that order. The consequence is that the order is presently in effect for a period of 28 days from 25 June 2009.

4 The matter came on for final hearing today. The defendant does not oppose the making of the order and nor is any objection raised as to any of the conditions which are sought. I should indicate that the defendant initially raised concerns about a limited number of conditions but I was informed that those concerns had been addressed by the parties simply agreeing to add conditions which provide for the on-going review of certain aspects of the regime which is in place and which is designed to ensure that the defendant is properly supervised. However an issue has arisen as to the duration of the order.

The evidence

5 A large body of material has been placed before the court. In considering the present application, I have had regard to the evidence that was tendered in support of the application for an interim supervision order, which consisted of two affidavits of Carmela Tassone, affirmed on 7 April 2009 and 20 April 2009 respectively, together with two folders of supporting documents. There was also an affidavit of Patrick Sheehan, affirmed on 9 April 2009 annexed to which there was a folder of documents. Mr Sheehan is the Senior Specialist Psychologist attached to the Serious Sex Offenders Group within the Department of Corrective Services. He also prepared a risk assessment report in respect of the defendant. There was finally an affidavit from Gavin David Rowan, affirmed 17 April 2009. Mr Rowan is the group leader of the Community Compliance Group of the department, and as such, has responsibility for the defendant’s supervision.

6 The additional material which is now before the court consists of the reports of Dr Samuels, dated 13 May 2009, and of Dr Greenberg, dated 26 May 2009, who examined the defendant in accordance with the orders which were made on 24 April 2009. Professor Greenberg also provided a supplementary report dated 22 June 2009. It is pertinent to observe that both psychiatrists had previously prepared reports in respect of the defendant in accordance with court orders made at earlier stages of these proceedings. The only material upon which the defendant relied was his own affidavit, sworn on 22 June 2009.

7 It is now convenient to refer to the additional material, commencing with the psychiatric material. Dr Samuels provide the following answers to the various questions which he was asked to address in his report:

1. Based on your examination of Mr Hayter and your review of the enclosed documentation, and with reference to the Act’s definition of ‘serious sex offence’, whether Mr Hayter is likely to commit a further serious sex offence if released into the community and not kept under supervision
Mr Hayter has a very significant history of sexual offending dating back to at least 1984. Most of these offences have occurred with young males under the age of 16, a number of his victims being in the 7-12 age group. I can find no evidence that any of his offences have attracted sentences of greater than 7 years but they certainly have occurred in situations of aggravation and have involved young children. Even in custody Mr Hayter has continued to exhibit a pattern of sexual deviance while participating in a custody-based sex offenders program.
With reference to actuarial tools, structured risk assessment and clinical evaluation as well as taking into account the definition of ‘serious sex offence’ I think Mr Hayter is “likely to commit a further serious sex offence if released into the community and not kept under supervision”.
2. Any comments additional to your earlier reports regarding the extent to which anti-libidinal medication might or might not reduce the risk of further offences of the kind committed by Mr Hayter
I think it is very positive that Mr Hayter is on anti-libidinal medication, particularly in depot form so we are fairly certain he is receiving the medication. It is difficult to evaluate Mr Hayter’s self reports as he does have some antisocial personality features and is not always a reliable or consistent historian. He states that he has not had any sexual thoughts about children since August 2008 but I do have some concerns about the veracity of his self report. He also claimed that he no longer has erections on this medication, but then later told me that in fact in the months before his release he was involved in an adult homosexual relationship with another inmate and that he was the active partner. He was able to achieve penetrative anal intercourse although he acknowledged that at times he did “lose” his erection. He also went on to tell me that Dr Ellis had assured him that he would be able to have a “good sexual relationship with an appropriate partner”.
There is evidence in the literature that anti-libidinal medication is likely to reduce deviant sexual thinking and the likelihood of committing further sexual offences. It is generally not given at the dose that sexual functioning is completely eliminated so the fact that Mr Hayter is able to achieve an erection with another adult male is not necessarily a cause for concern or suggestion that the dose is too low. What is concerning however is the fact that he is often unreliable and untruthful in his self disclosure and it is difficult to ascertain exactly what impact this medication is having upon him.
The fact that his hormone levels have dropped substantially is objective evidence that the medication is having an effect and it is likely that with his testosterone lowered to a third of normal his risk of offending is reduced.
It is worth noting that many sex offenders commit offences for motives other than sexual gratification and reducing the libido does not necessarily guarantee the offending behaviour will cease.
3. Any comments you are able to make regarding the suitability of the present dosage of depot Provera for Mr Hayter
It seems clear that Mr Hayter is in fact achieving an erection and is capable of engaging in anal penetrative intercourse with another male. He does report some sexual dysfunction at times. It certainly is not the purpose of treatment with anti-androgens to completely eliminate sexual functioning. The major purpose is in fact to eliminate deviant arousal and to replace it with a more appropriate pattern of sexual arousal. As already indicated in the paragraph above, I have some concerns however about Mr Hayter’s reliability and particularly the self reports he gives in relation to the effects of this medication. It really is difficult to know exactly what dose of medication he should be on. The general guideline is to aim to reduce the testosterone levels to about a third of what they were but in some case it may become necessary to increase the dose of medication to the point that erections are completely eliminated, hormone levels re-evaluated and then for the dose to be increased to a level where some sexual functioning is possible. Any such dose manipulations would of course need to be monitored by the use of hormone assays and obviously medical side effects or complications would need to be taken into account as well.
4. The likely period of time for which Mr Hayter would need to continue taking the anti-libidinal medication to assist him in managing his risk of sexual recidivism
It is difficult to give a definitive answer in this regard. Certainly the longterm consequences of taking these medications are not well known. There is some evidence that even after cessation of anti-androgen medication the effects of this medication can persist for a prolonged period, particularly in the case of medroxprogesterone acetate (depot Provera). I would regard Mr Hayter as being at high risk of further sexual offending and it may be necessary for him to remain on anti- anderogen medication for a prolonged period which may include the full length of the extended supervision order.
There will however need to be a judgment made by his treating clinicians in response to any medical complications or side effects he is experiencing. It may be possible to cease the medication after a year or so and to monitor whether or not a return to deviant arousal is occurring. The difficulty is that Mr Hayter’s self reporting is not entirely reliable and if he stated after the cessation of anti-androgen medication that he was no longer having deviant thoughts, it would be difficult to know if this was in fact true.
5. Your view as to any conditions that would be appropriate, including any necessary and desirable components of any management plan that should be put in place in respect of Mr Hayter, if the Court were to make an extended supervision order
I would see the elements of the order made in the interim summons as being entirely appropriate .
The only additional monitoring approach that I would suggest that consideration be given to would be the use of urine drug screening. I have no particular concerns that Mr Hayter is at risk of using illicit substances, however given his history there certainly is a possibility that he might use medications to aid erectile functioning and whilst I am not entirely sure whether urine drug screens have the capacity to detect the presence of substances like sildenafil (Viagra), vardenafil (Levitra) and tadalafil (Cialis) this certainly would be an issue worth exploring.
It is worth noting that there are other preparations on the market that could aid erectile dysfunction, including papaverine hydrochloride injection. It would be important for Mr Hayter to be restricted to a single general practitioner and conditions of these orders should very explicitly state that he is not to attempt to access any medications that could override the effects of his anti-androgen medication.
6. Your view as to the suitability of the length of the proposed extended supervision order (namely, five years). In this respect, please note that the maximum duration permitted by the Act for an extended supervision order is five years (although the order can be renewed for up to a further five years before the expiry of the order).
There are strong suggestions from Mr Hayter’s history and his period in custody that he remains a high risk sex offender. I would see his risk as continuing for a prolonged period and I would have concerns that without very close supervision and monitoring he would be at risk of committing further sexual offences. In my view, it would be appropriate for consideration to be given to retaining him under supervision for the maximal possible period . (emphasis added)

8 Professor Greenberg provided the following opinion in relation to the issues raised by those questions:

1. Based on my examination of Mr Hayter and my review of the documentation provided to me and with reference to the definition of a serious sex offence in the Crimes (Serious Sex Offences) Act 2006, I am of the view that Mr Hayter is likely to commit a further serious sex offence if released into the community and not kept under supervision.
I based this opinion on diagnosis of Mr Hayter having a severe Pedophilic and Hebephilic Disorder associated with his significant personality difficulties. These paraphilic disorders are chronic and life-long and there is no known cure fur these disorders. At this present time without ongoing psychological and psychiatric treatment and management I am of the view that it is highly likely that Mr Hayter will again relapse and potentially sexually re-offend. His response to various therapeutic supervision and monitoring interventions will need to be reviewed over time. Obviously by definition, the longer his period of non-offending behaviour and maintenance of adaptive behaviours, the better the prognosis with his paraphilic disorders.
By definition his STATIC risk factors are unchangeable and he remains in the high risk category score for sexual re-offending relative to other adult male sexual offenders. Although there have been some treatment gains over the past twelve months or more, there is still considerable concern with regard to his previous engrained personality patterns of maladaptive behaviour. I was somewhat concerned that Mr Hayter expressed the view that he would like to discontinue his anti-libidinal medication in the near future in order that he could rest his internal psychological controls using the various psychological tools he has learnt during his attendance at the CUBIT Program. In my view, Mr Hayter has poor insight into the ingrained chronicity of his Pedophilic and Hebephilic disorder. I was concerned that he is of the view that there is no potential for sexual re-offending which would contradict the view of all the professionals who have seen him over the past two years .
2. I am of the view that at this time Mr Hayter’s anti-libidinal medication provides the key cornerstone to any successful treatment outcome for Mr Hayter. In view of the chronicity of his lifelong pattern of maladaptive behaviours with regard to his sexual offending and offending behaviours, at this point in time his ability to apply his own internal controls to his sexual deviancy and without medication remains in question. Anti libidinal medication dampens his sexual fantasies, sexual urges and sexual activity in general. It dampens both sexual deviant and non-sexual deviant (adult male) arousal. Previously I expressed concerns with regard to his sub therapeutic dose of Androcur in my previous psychiatric report. I submitted several of my published articles on the topic of anti-libidinal medication for sex offenders. I note Mr Hayter is currently taking 150mg of Depo Provera (Medroxyprogesterone) per week. This again is a relatively low dose of medication for this severity of disorder. The usual dose reported in the literature is usually between 300 to 600mg of Depo Provera intramuscularly per week. This relatively low dose would explain how Mr Hayter is still able to attain erections and have sexual activity with an adult male partner. Mr Hayter is therefore currently not completely sexually suppressed using these relatively low doses of Depo Provera.
Should Mr Hayter increase the Depo Provera dose to 600mg per week, he would likely not be able to obtain erections or be able to engage in sexual intercourse with an adult male partner. However the higher dose may also increased his risk of having adverse effects from this medication. On the other hand, at a relatively low dose, it is still likely in my view that he has a degree of Pedophilic and Hebephilic fantasies, urges and possibly arousal although at a much lower level than without the medication. Using relatively low doses of Depo Provera would dampen his sexually deviant arousal but not completely eliminate it.
On questioning Mr Hayter adamantly maintains that he has no sexual fantasies or sexual urges or sexual activity such as masturbating to Pedophilic or Hebephilic fantasies or pictures whilst on this low dose of Medoxy-progesterone (Depo Provera). Based on my clinical experience, it is likely that he still likely has a degree, although a somewhat smaller one, of having these sexual fantasies or sexual urges towards children. The titration of the actual dose needed by the patient will need to be determined by his ability to control his Pedophilia and hebephilia using adjunct methods of control such as psychological methods which he has learnt during his attendance at the CUBIT Program. However, there may be times where he will need to have this dose increased in order to prevent relapse of his Pedophilic and Hebenphilic symptoms. The difficulty is that this would require Mr Hayter to be completely truthful about his Pedophilic symptoms. As noted in my previous psychiatric reports, there has been a previous history of deceptive maladaptive behaviours involving Pedophilic or Hebephilic symptoms.
In summary therefore I am of the view that the anti-libidinal medication would reduce his risk for further sexual re-offences, however with relatively low doses of Depo Provera there is still a risk of sexually re-offending. Therapeutic doses of 300 to 600mg intramuscular by injection per day would provide a reduced risk but there would still be a risk of potential recidivism. Given that he is taking a sub-therapeutic dose of the anti-libidinal medication, his risk is slightly increased but this is not a contra-indication to prescribing such relatively low doses provided he continues to receive adequate monitoring, supervision and ongoing treatment and care provided by both the Forensic Psychological Services and the Justice Health Forensic Community Service.

3. I have already addressed the issue in the above paragraph with regard to his current dosage of Depo Provera.
4. As stated in my previous psychiatric report, I am of the view that Mr Hayter will need to take this anti-libidinal medication for many years, probably decades. As he ages the dosage of the medication may be reduced but this is a long-term goal and in my view he will need to take this medication at a reasonable dosage in order to remain offence free and live in the community in the medium term. I discussed this issue with Mr Hayter during my psychiatric interview, and he was agreeable to possibly increasing the dosage in conjunction with the advice from his treating psychiatrist Dr Ellis. Over the next five years or more he will need to be consistently monitored by a psychiatrist with expertise in treating sex offenders and the dosage titrated according to the severity of his Pedophilic and Hebophilic symptoms. I personally have treated pedophiles and hebephiles with this medication for periods of more than a decade in these patients they have had no significant complications.
5. I reviewed the various conditions as laid out in the Summons submitted by Carmilla Tassone for the Crown Solicitor of NSW to the Supreme Court on 8 April 2009. I have discussed all these conditions with Mr Hayter and he is of the view that although it does place some restrictions on his rights and freedoms, he is currently fully agreeable to these conditions. I am of the view that these conditions are reasonable and adequate at this time for the medium term in providing assistance to Mr Hayter and assisting him in avoiding relapse of his sexual re-offending behaviour. The writer therefore is of the view that these are suitable conditions for a man such as Mr Hayter with a severe pedophilic and hebephilic disorder and associated with significant personality difficulties .
6. With regard to the suitability of the length of the proposed extended Supervision Order, namely five years, I am of the opinion that a five-year period would not be unreasonable in this severe case. I base my opinion on Mr Hayter’s severity of his sexually deviant disorder, his history of breaching previous Court conditions and his history of maladaptive personality difficulties. Although Mr Hayter has made some progress, it still remains in question as to his ability to control his sexually deviant fantasies, urges and activities in the long term. Without such conditions to assist him in his management and treatment of his sexually deviant disorder, I am of the view that he will likely relapse in the short term. I base this probability on his past twenty-year history of offending as well as his twenty to thirty year history of having a Pedophilic and Hebephilic symptoms . (emphasis added)

9 Professor Greenberg also recorded that the defendant acknowledged that there had been 30 victims of his sexual offending although he had only been prosecuted in respect of 17 victims. At an earlier time he had told Professor Greenberg that the only victims were the ones in respect of whom he had been prosecuted.

10 In his supplementary report Professor Greenberg expressed the following responses to the matters raised by Dr Samuels in his report:

1. Based on my examination of Mr Hayter and my review of the enclosed documentation, and with reference to the Act’s definition of a serious sex offence, whether Mr Hayter is likely to commit a further serious sex offence if released to the Community and not kept under supervision.
The writer concurs with Dr Samuels that Mr Hayter is likely to commit a further serious sexual offence if released to the Community and not kept under supervision. Dr Samuels does not specifically mention the diagnoses of paedophilia or haebophilia in his report dated 13 ^th May 2009. I am of the view, however, that Dr Samuels would not disagree with the diagnosis or the severity of the diagnosis. Dr Samuel’s report emphasises that Mr Hayter has a preference towards young male children and a lesser sexual preference towards adult males.
In addition the writer stressed that paedophilia tends to be chronic and lifelong and that, by definition, sexual fantasies and sexual urges associated with Paedophilia Disorder, are recurrent. There is no known cure for this sexual disorder.
In addition the writer also draws the reader’s attention to Mr Hayter’s significant personality difficulties on Axis II of DSM IV-TR classification. The writer stressed that, although there had been some treatment gains over the past 12 months or more, there is still considerable concern with regard to his previous ingrained personality patterns of maladaptive behaviour. I note in my report that Mr Hayter expressed the view that he would like to discontinue his antilibidinal medication in the near future in order that he could test his internal psychological controls, by using the various psychological tools he has learned during his attendance at the CUBIT Program. I therefore stated that Mr Hayter has poor insight into the ingrained chronicity of his paedophilic and haebophilic disorder and express some concern about Mr Hayter’s view that he has no potential for sexual re-offending.
2. Any comments additional to your earlier reports regarding the extent to which antilibidinal medication might, or might not, reduce the risk for further offences of this kind committed by Mr Hayter.
I note that Dr Samuels expressed the view that the antilibidinal medication is likely to have a positive effect on Mr Hayter’s risk for further sexual offending being reduced. However, he noted that Mr Hayter is not always a reliable or consistent historian, and there were concerns about the veracity of his self report. Dr Samuels stresses the contradiction in Mr Hayter’s self report, in that he stated that he could not achieve any erections, but later reported that whilst in custody and on antilibidinal treatment, he engaged in an adult homosexual relationship with penetrative anal intercourse. Dr Samuels expressed the view that antilibidinal medication is likely to reduce his deviant sexual thinking and the likelihood of him committing further sexual offences. He was also of the view that, because Mr Hayter is unreliable and untruthful regarding self disclosure in the past, it is difficult to assert exactly what impact the medication is having upon him.
The writer concurs with these comments. I expressed a similar view, stating that antilibidinal medication provides the key cornerstone to any successful treatment outcome for Mr Hayter. Like Dr Samuels, the writer also noted that Mr Hayter disclosed that he could attain an erection, and although he had some delayed ejaculation, he could have penetrative anal sexual intercourse with an adult male. This would seem to suggest that the dosage of Depot Provera medication reduces his sexual urges and sexual performance, but has not completely eliminated his sexual capacity. I expressed the view that a dose of 150mg, intramuscularly, every fortnight is a relatively low dose. I based my opinion on the current international literature on the topic of effective dosage of Depot Provera. The antilibidinal medication works both on deviant and non-deviant sexual fantasies, sexual urges and sexual activity. From a theoretical perspective, the writer expressed the view that, although Mr Hayer denied having sexual fantasies, sexual urges or sexual activity, such as masturbation with paedophilic or haebophilic stimuli, it is likely that he possibly does have such symptoms, although at a much reduced level.
The writer expressed the opinion that in Mr Hayter taking these sub-therapeutic dose of antilibidinal medication would likely reduce his risk for sexual re-offending. Should he take a higher dose his risk for sexual offending would likely be further reduced because he would have less sexual fantasies, sexual urges and masturbation associated with both deviant and non-deviant stimuli. However with higher doses, he would be unlikely to engage to be (sic) capable of non-deviant consensual sexual activities with potential adult male partners. The writer expressed the view that, although he is taking a relatively low dose of antilibidinal medication, this would not be a contraindication of prescribing such a relatively low dose, providing the person continues to receive adequate monitoring, supervision and ongoing psychological treatment and there symptoms are contained with this approach.
Both the writer and Dr Samuels comment that the titration of his dosage of Depot Provera is difficult because it relies, to a large degree, on his self report. Given that he had a history of being an unreliable historian, the treating psychiatrist will need to provide more conservative advice to Mr Hayter with regard to medication dosage.
3. Any comments you are able to make regarding the suitability of present dosage of Depot Provera for Mr Hayter
I note that Dr Samuels notes that Mr Hayter has reported erections with an adult male consensual sexual partner and is able to perform adequately although he does have some sexual dysfunction at times (delayed ejaculation). Dr Samuels laments that it is difficult to know exactly what dose of medication he should be taking. He also expressed a view that a general guideline is to aim to reduce the Testosterone levels to about one third of what they were originally prior to treatment, but Dr Samuels further stated that in some cases it may be necessary to increase the dose of the medication to the point that erections are completely eliminated. I would concur with such comments; however suppression of testosterone levels is a good measure of compliance with medication. It is not a good measure of clinical effectiveness of treatment or reduced risk of recidivism. The writer has expressed similar views in my paragraph under number 2 of page 15 and 16 of my psychiatric report dated 26 May 2009. As stated in my previous paragraph, the writer is of the view that Mr Hayter is taking a relatively low dose of antilibidinal medication and is not completely sexually suppressed. He reported he has sexual fantasies, sexual urges and sexual activity with an adult male consensual partner. Theoretically it is therefore likely that he has a degree of similar sexual fantasies, sexual urges and sexual activity towards paedophilic and haebophilic stimuli as this is his stronger sexual preference. His dosage would therefore need to be increased only if he is unable to control his sexual fantasies, sexual urges and sexual activity towards under aged children. Provided he is able to utilise his internal psychological controls, which he has learned from the CUBIT Program, his current relatively low dose of Depot Provera medication may be of sufficient quantity. However, if he is unable to control his sexual urges, fantasies and masturbatory activity directed towards under aged children, the dosage should be increased. Given that Mr Hayter is an unreliable historian and has previously acted in an inappropriate sexual manner, while in a highly structured monitored CUBIT Program and even whilst taking antilibidinal medication, the writer tends to lean towards a more conservative therapeutic dosage level.
Overall the writer would therefore tend to favour a more conservative approach with regard to medication advice to Mr Hayter. During my interview, the writer advised Mr Hayter that he would probably function better with less symptoms of his paedophilia on a higher dosage of Depot Provera. Over a period of 12-24 months or more, his medication could then be re­adjusted when he is able to demonstrate that he can utilise his internal psychological controls over his deviant symptoms associated with his paedophiiic (sic) and haebophilic disorder.
4. The likely period of time for which Mr Hayter would need to continue taking antilibidinal medication to assist him in managing his risk for sexual recidivism .
I note that Dr Samuels expressed the view that he regarded Mr Hayter as being at high risk for further sexual re-offending and it may be necessary for him to remain on antiandrogen medication for a prolonged period, which may include the full length of the Extended Supervision Order. He then draws attention to Mr Hayter as an unreliable historian. Dr Samuels then stated, "It may be possible to cease medication after a year or so and to monitor whether or not a return of deviant arousal is occurring”.
On this issue I am of the contrary opinion to Dr Samuels. Based on the chronicity and severity of Mr Hayter's paedophilic and haebophilic disorder, I am of the view that he should not cease medication within a 12-month period. I am of the view that Mr Hayter will require antilibidinal medication for many years, probably decades. As stated in my previous psychiatric report, his compliance with such medication would depend on whether he has any adverse effects, any health problems, and whether there has been improvement in his internal psychological controls, and overall stability in his lifestyle. It is essential that he give informed consent to the dosage and medication.
Mr Hayter is now 45 years old and his maladaptive behaviours have been lifelong during his adult years; he has spent considerable periods in custody; and has ingrained personality difficulties. It is well known in the literature that it is difficult for these individuals in the short term to change such patterns of behaviour. The writer therefore, is of the view that it is unlikely that within a 12-month period, Mr Hayter would have demonstrated significant improvement in his deviant sexual disorder. I am of the view that he is likely to require more long-term treatment with an antilibidinal medication, and although the dosage could be titrated over an extended period of time, the writer would not recommend ceasing this medication in the short term.
5. Your view as to any conditions, which would be appropriate, including any necessary and desirable components of any management plan, which should be put in place in respect of Mr Hayter, if the Court were to make an Extended Supervision Order.
On tis(sic) issue, I concur fully with Dr Samuels' comments on page 15 of his report, dated 13 ^th May 2009. Dr Samuels, however, asked for the additional condition of a urine drug screen in the event that it might be possible to detect levels of other medications such as Viagra, Levitra and Cialis. To the best of the writer's knowledge, these treatments for impotence are not routinely detected in the urine by commercially available pathology laboratories. Theoretically, it may be possible to override the effects of antilibidinal medication. However, this would be potentially medically dangerous and would be difficult to attain on higher doses of antilibidinal medication. These erectile dysfunction medications work on a completely different mechanism. They may assist an individual attain an erection but if he is taking therapeutic dosages of antilibidinal medication he would likely have a significantly reduced sex drive, reduced interest in sexual activity, reduced sexual fantasies and sexual urges to both deviant and non-deviant sexual targets or partners.
6. Your view as to the suitability of the length of the proposed Extended Supervision Order (namely 5 years). In this respect, please note that the maximum duration permitted by the Act for an Extended Supervision Order is 5 years (although he order can be renewed for up to a further 5 years before expiry of the order).

Again, the writer fully concurs with Dr Samuels' view, where he expressed an opinion that, it would be appropriate for consideration to be given to Mr Hayter being retained under supervision for the "maximum possible period ". The writer concurs with this view of Dr Samuels, as expressed in my psychiatric report dated 26 ^th May 2009. (emphasis added)

11 The relevant parts of the defendant’s affidavit are set out below:

I accept that an extended supervision order will be made against me and do not oppose the making of that order.
I will accept and abide by any conditions that the Court determines are appropriate.
It is my intention to stay away from trouble, find suitable accommodation, a job and keep a low profile. I want to live an honest and good life. …
I have been abiding by the interim conditions since my release.
The proposed conditions are very onerous but I will abide by them. I would like the opportunity of having them fully reviewed as soon as practicable. To wait five years for a chance of a full review of the conditions seems too long. I ask for an earlier opportunity of proving myself to myself and to the Court.

12 The defendant also referred to various other concerns but, as I have said, they have now been addressed.

The legal requirements

13 It is common ground that the application is authorised by s 6 of the Act [see para 6 of the preliminary judgment]. The court’s power to make an extended supervision order derives from s 9(1)(a) of the Act whilst s 9(2) identifies the test which the court is to apply: see Tillman v Attorney-General for NSW (2007) 178 A Crim R 133 at 147; Cornwall v Attorney-General for NSW [2007] NSWCA 31 [at 21]. Section 9(3) sets out a list of factors which the court must have regard to, in addition to any other matter which is considered relevant, in determining whether or not to make an extended supervision order.

14 For the purposes of the preliminary hearing, I analysed at some length each of the factors identified in s 9(3) of the Act which were relevant to the application for an interim supervision order. [See paras 19-38 of the preliminary judgment].

15 In conclusion I made the following observations:

Ensuring the safety of the community is the primary object of the Act. All of the matters to which reference has been made are relevant to that issue but the following matters are worthy of repetition in the present context:

(i) the defendant's criminal history, including his commission of sexual offences over a number of decades against young boys, and his seeming inability to alter his predatory behaviour over time;
(ii) the increasing sophistication of the defendant’s offending behaviour;
(iii) the defendant's history of non-compliance with parole and supervision orders;
(iv) the evaluation of the defendant's static and dynamic risk factors;
(v) the assessment of the defendant as presenting a high risk of sexual re­offending if released into the community.


In my view, there is compelling evidence that the safety of the community would be put at risk if the defendant were to be released without supervision.

In the light of the material which has been placed before the court, I am satisfied that the matters alleged in it would, if proved, justify the making of the orders which are sought. Nor are there any countervailing factors which would justify the court in refusing to make them. In my view the need to protect the community, as well as the need to facilitate the defendant’s rehabilitation, require that the defendant be subject to conditions upon his release from custody. [see paras 39-41 of the preliminary judgment]

16 Section 10(1)(b) of the Act provides that an extended supervision order may be made for a period not exceeding 5 years. A second or subsequent order of that character can be made: s10(3) of the Act. Section 13 provides that such an order can be varied or revoked on application by either the State of New South Wales or the offender.

17 As I have indicated, I must now also have regard, pursuant to s 9(3)(b) of the Act, to the reports of Dr Samuels and Professor Greenberg. The opinions expressed by the two psychiatrists reinforce my view that it is highly probable that the defendant is likely to commit further serious sex offences if not kept under supervision. In other words I am satisfied that the requirements of s 9(2) of the Act have been established by the plaintiff. In arriving at that conclusion I have applied the test as it is described in the authorities to which I referred earlier. I am of course aware that the test has a different application at this, the final stage of the proceedings. It is apparent that both of the psychiatric experts are also of the view that the proposed conditions are necessary in order that the process of supervising the defendant can be facilitated. I am fortified in the conclusion which I reached about this aspect of the matter by the fact that the defendant does not oppose the orders being made.

18 As I said at the outset an issue has however arisen as to the duration of the order, a matter which is referred to in the defendant’s affidavit. Mr Haesler SC, who appeared on behalf of the defendant, raised the following considerations in written submissions upon the issue:

6. The conditions sought to be imposed and accepted are particularly onerous. Accepting the community interests as paramount, it is in the community interest that the conditions of supervision be specifically geared, not just to meet the pre-release assessment of risk potentially posed by the defendant but to properly reflect his position in the community, having regard to his compliance, accommodation, work history, medical history and treatment history.
7. The dynamic factors relating to risk assessment are the most critical, given his static factors are unlikely to change. These dynamic factors will change. They will change significantly over the next five years.
8. It is important, if not critical, that the Court have the opportunity of reviewing these conditions to ensure they are comprehensively appropriate. Five years is too long to wait for such a comprehensive review, particularly given the significant interference with the liberty of the defendant that they will undoubtedly cause.

19 He briefly amplified those submissions in oral argument.

20 In State of New South Wales v Tillman [2008] NSWSC 1293, Johnson J observed:

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

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

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

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

As Fullerton J observed in Attorney-General for NSW v Hadson at [32], much will depend on how the Defendant responds to the current program and whether any variation to the risk-management strategy is called for as assessed by those who manage him and monitor his progress. (paras 62-66)

21 His Honour’s remarks are apposite to the present case. I accept that making an order in the terms sought by the plaintiff will impact significantly upon the defendant in a number of respects and that the conditions which are proposed are onerous. However, upon the only issue which remains in contention the psychiatric evidence, as well as the other evidence led on behalf of the plaintiff, is all one way. Moreover, the conditions themselves contain an element of flexibility about them and in any event provide a mechanism for at least some measure of internal review. Importantly, the defendant can avail himself of the remedy provided for in s 13 of the Act to apply at any time to vary or revoke the order. Finally, of course I must keep firmly in mind the objects of the Act.

22 For all those reasons I have reached the conclusion, after having considered the entirety of the material which has been led on this application as well as the submissions advanced on behalf of the parties, that it is appropriate to grant the relief sought by the plaintiff.

Orders

23 I make the following orders:

1. Pursuant to s 13(1) of the Crimes (Serious Sex Offenders) Act 2006 the interim supervision order which I made on 24 April 2009, and renewed by further orders made on 28 May 2009 and 25 June 2009, is revoked with effect on and from 4 pm on 1 July 2009.

2. Pursuant to s 9(1)(a) of the Act, I order that the defendant be subject to an extended supervision order for a period of five years to commence on and from 4 pm on 1 July 2009, and pursuant to s 11 of the Act, I direct that the defendant comply with the conditions set out in the Schedule which is attached to these Orders. I note that the defendant and a representative of the Attorney-General’s Department have signed each page of the Schedule.

**********

Schedule

EXTENDED SUPERVISION ORDER:
CONDITIONS APPLICABLE TO WARREN GRAEME HAYTER

Oversight

The defendant be directed to comply with the following orders, oversight of which is to be administered by a Departmental supervising officer of the Department of Corrective Services ("the Department") being appointed by the Department to manage his supervision.

1. The defendant must accept the supervision of the Probation and Parole Service (which includes the Community Compliance Group ("CCG")) for the duration of the supervision order.

2. The defendant must report personally once a week to the responsible Departmental supervising officer or otherwise as directed by that officer.

3. The defendant must comply with any reasonable direction given by the Departmental supervising officer or any Departmental officer who may from time to time be allocated to the defendant's case.

4. The defendant must not commit any offence punishable by a period of imprisonment.

5. The defendant must wear electronic monitoring equipment if directed by the Departmental supervising officer and comply with all instructions given by a Corrective Services Officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.

6. If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements 48 hours in advance by providing a schedule in writing (or as otherwise directed by the Departmental supervising officer) and must obtain prior approval from the Departmental supervising officer for any proposed change.

7. The defendant must accept visits at his approved accommodation, including visits without prior notice, by any Departmental supervising officer.

8. The defendant must not attend public places mainly frequented by children including schools, pre-schools, day care centres, amusement parlours and parks,

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and any other public place as the Departmental officer may direct, unless accompanied by a responsible adult (being a person previously approved by the Departmental supervising officer for the purpose of this condition).

9. The defendant must not associate or make contact with children under the age of 18 years unless in the presence of an appropriate adult (being a person previously approved by the Departmental supervising officer for the purpose of this condition).

10. The defendant must not undertake employment other than that which has been approved by the Departmental supervising officer.

11. The defendant must not leave the State of New South Wales without the written permission of the Commissioner.

12. (a) Unless otherwise approved by the Departmental supervising officer, the defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits);

(b) The defendant must not abuse prescription medication or other forms of medication;

(c) The defendant must not possess or consume any illicit drugs; and
(d) The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer.

13. The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer.

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

15. The defendant must not change his name from Warren Graeme HAYTER without the prior approval of the Departmental supervising officer.

16. The defendant must not, without the approval of the Departmental supervising officer, change his facial appearance (including facial hair) or the colour of his hair and must not alter the length of his hair to the extent that he cannot be easily recognised.

17. If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer.

18. Should the defendant propose to enter into a relationship with another person, he must notify his Departmental supervisor officer of their relationship at the earliest

opportunity and the other party of his offences. The Departmental supervising officer may disclose the defendant's offence history to such other person.

19. For the duration of the order the defendant must reside at accommodation

approved by the Departmental supervising officer. Note
It is envisaged that the defendant will reside at a Community Offenders Support Program (COSP) centre for a period of up to six months.

20. If directed by his Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified) unless his presence at another place during those hours has been approved by his Departmental supervising officer.

Treatment obligations

21. The defendant must accept a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted by the Community Forensic Mental Health Service (CFMHS) or the Area Mental Health Service (AMHS), to determine what is required for treatment, including control, of the defendant's psychiatric condition, and potential for sex offending.

22. The defendant must accept psychological and psychiatric treatment as may be provided by an AMHS (or CFMHS or Justice Health), including counselling, psychological therapy and any anti-psychotic or other psychiatric medication as indicated.

23. Without limiting paragraph 22 above, the defendant must accept sex drive reduction medical treatment or any other therapy, including anti-libidinal treatment, if prescribed by a medical practitioner, as may be provided by CFMHS, Justice Health, an AMHS or any medical practitioner, and must not unreasonably refuse his consent to the administering of such prescribed drug or therapy.

24. The defendant must not take any medication or substance which may affect any anti-libidinal medication (including SSRIs) being taken by the defendant unless the defendant's Justice Health treating psychiatrist prescribes such medication.

25. The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service, CFMHS or Justice Health.

26. The defendant must attend consultations with the Area Health Service or CFMHS, at such a frequency, venue and time as directed by his treating clinicians.

27. If directed by his Departmental supervising officer, the defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him, including the maintenance program provided by the Forensic Psychology Services and must participate in all such rehabilitation treatment and programs as may be directed by the Departmental supervising officer.

28. The defendant must engage a general practitioner and 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.

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

Disclosure of information
30. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors (including any specialist) and any psychologist.
31. The defendant must consent to his Departmental supervising officer and other responsible officers (including from the CCG) accessing all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment.
32. The defendant must agree to the sharing of all information between his Departmental supervising officer, other Departmental officers (including from the CCG), officers from Justice Health/CFMHS, the defendant's general practitioner and any treating psychologist or psychiatrist.
33. The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may provide to any prospective or actual employer of the defendant information relating to the

defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and of the terms of the order.

34. The defendant must not use a computer for the purpose of accessing the World Wide Web to view or to download child pornography.

35. The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to or use of the World Wide Web and the internet by him and without limitation the Departmental Supervising Officer may direct the defendant to use any computer with a parental lock or other device or software that may restrict access to or permit access only to certain websites.

36. The defendant must not attend any internet cafe or internet kiosk without the prior approval of the Departmental Supervising Officer.

37. If and as directed by the Departmental Supervising Officer, the defendant must:

(a) permit the Departmental Supervising Officer and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental Supervising Officer to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection;

(b) take all available steps to permit the Departmental Supervising Officer and the computer technician to have access to and inspect any computer used by but not owned by the defendant;

(c) provide the Departmental Supervising Officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords;

(d) permit the Departmental Supervising Officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending.

Review

38. At the expiration of 6 months from 1 July 2009 (and at the end of each six monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear the electronic monitoring equipment will be reviewed by the Departmental supervising officer and, for this purpose, the
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departmental supervising officer may consult with (either jointly or separately) the defendant's Justice Health treating psychiatrist, the defendant's Forensic Psychology Services (FPS) maintenance program psychologist and the defendant.

39. At the expiration of 12 months from 1 July 2009 (and at the end of each 12 month period thereafter), the conditions the subject of the defendant's risk management plan, as contained within the schedule to the orders made by the Court on 1 July 2009, will be reviewed by the Department of Corrective Services with a view to possible adjustment of such plan and/or consideration by the Department of an application to the court to vary the conditions if considered appropriate. For this purpose, the Department may consult with (either jointly or separately) the defendant's Justice Health treating psychiatrist, the defendant's FPS maintenance program psychologist and the defendant.