State of NSW v Roach - [2010] NSWSC 184

No judgment structure available for this case.

CITATION: State of NSW v Roach [2010] NSWSC 184

HEARING DATE(S): 4 March 2010

JUDGMENT DATE :
18 March 2010

JUDGMENT OF: James J

DECISION: I make an order pursuant to s 9(1)(a) of the Act that, for a period of five years from the date of the order, the defendant be subject to an extended supervision order by complying with the conditions contained in the attached Schedule.

CATCHWORDS: Crimes (Serious Sex Offenders) Act 2006 — extended supervision order

LEGISLATION CITED: Child Protection (Offenders Prohibition Orders) Act 2004
Child Protection (Offenders Registration) Act 2000
Crimes (Serious Sex Offenders) Act 2006

CASES CITED: Cornwall v Attorney-General (NSW) [2007] NSWCA 374
State of New South Wales v Thomas [2008] NSWSC 1340
The State of New South Wales v Fisk [2009] NSWSC 778
Tillman v Attorney- General (NSW) (2007) 70 NSWLR 448

PARTIES: The State of New South Wales - Plaintiff
Frederick Francis Roach - Defendant

FILE NUMBER(S): SC 2009/296991

COUNSEL: D Buchanan SC / S Callan - Plaintiff
D Thiering - Defendant

SOLICITORS: IV Knight, Crown Solicitor for the State of New South Wales

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY 18 MARCH 2010

2009/296991 THE STATE OF NEW SOUTH WALES v FREDERICK FRANCIS ROACH
JUDGMENT

1 HIS HONOUR: This is an application by the State of New South Wales pursuant to the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) that the defendant be subject to an extended supervision order for a period of five years from the date of the order, on the conditions set out in the schedule to the amended summons.

2 The defendant, who was in court during the hearing of the application and who was represented by counsel, did not object to the making of an extended supervision order or to the order being for a term of five years or to any of the conditions in the schedule to the amended summons. A document setting out the conditions in the schedule to the amended summons, which had been signed by the defendant, was handed up to the court during the hearing. Although there was no opposition to any part of the order sought by the plaintiff, it is still necessary for the court to determine whether such an order should be made.

The Act

3 It is convent to refer at this stage to some of the provisions of the Act.

4 Section 3 provides:-

5 Various terms are defined in s 4 of the Act. The expression “serious sex offence” is defined in s 5.

6 Section 6 provides:-

(b) pursuant to an existing extended supervision order or continuing detention order,

referred to in this Part as his or her current custody or supervision .

(2) An application may not be made until the last 6 months of the offender’s current custody or supervision.

7 Section 7 provides for pre-trial procedures, including the holding of a preliminary hearing. Section 7(4) provides, so far as is relevant:-

8 Section 8 provides:-

the Supreme Court may make an order for the interim supervision of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

9 Section 9 provides:-

Child Protection (Offenders Registration) Act 2000

Child Protection (Offenders Prohibition Orders) Act 2004

10 Section 10 provides inter alia that an extended supervision order expires at the end of such period (not exceeding five years from the date on which it commences) as is specified in the order.

11 Section 11 provides:-

Interpretation of s 9(2) of the Act

12 The interpretation of the expression “likely” in s 9(2) and a similar statutory provision in Victoria has been the subject of controversy. The matter was discussed by Howie J in The State of New South Wales v Fisk [2009] NSWSC 778 at [14] to [27].

13 In Fisk Howie J held that he was bound to apply the interpretation placed on the word “likely” in s 17(2) of the Act, which is in the same terms as s 9(2), by the majority of the Court of Appeal in Tillman v Attorney- General (NSW) (2007) 70 NSWLR 448 at 461 [89], that “the word ‘likely’… denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent”. This interpretation was followed by the Court of Appeal in the subsequent case of Cornwall v Attorney-General (NSW) [2007] NSWCA 374 at [20]. The competing interpretation had been that the word “likely” in ss 9 and 17 of the Act means “more likely than not”, that is more than 50 per cent.

14 On this application it was common ground that I, like Howie J, should follow Tillman and Cornwall and apply the interpretation given to “likely” in those cases. I will adopt that course.

15 In Cornwall the Court of Appeal said at [21]:-

“The expression “a high degree of probability” indicates something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely”…”

History of the proceedings

16 The proceedings were commenced on 5 November 2009.

17 A preliminary hearing was held on 2 December 2009 before Harrison J of this Court. The same counsel appeared before Harrison J as appeared before me at the final hearing. On 2 December 2009 counsel for the defendant did not oppose the making of the orders sought by counsel for the plaintiff. Harrison J made an interim supervision order for a period of 28 days from 31 December 2009 (the anticipated date of the defendant’s release from custody) and pursuant to s 15(4) of the Act appointed two psychiatrists, Dr O’Dea and Dr Allnutt, to conduct separate psychiatric examinations of the defendant and to furnish reports to the court.

18 Subsequently the interim supervision order was extended to 24 March 2010.

Evidence

19 The evidence on the application, which was quite voluminous, included affidavits by Mr Brett Thomson, a solicitor in the Crown Solicitor’s Office, to which many documents were annexed or exhibited; reports by Dr O’Dea and Dr Allnutt; an affidavit by Mr Patrick Sheehan, a psychologist with the New South Wales Department of Justice and the Attorney-General, who had also made a report; an affidavit by Eva Banozic relating to electronic monitoring equipment; an affidavit by a psychologist Katherine Elizabeth Sahm, who is a forensic psychologist with the Sex Offenders Program within Corrective Services NSW; and an affidavit by Gavin David Rowan, an officer of Corrective Services who oversees the supervision of serious sex offenders.

20 None of the witnesses for the plaintiff were cross-examined and there was no evidence from the defendant.

The defendant’s criminal history

21 The defendant has been convicted of three sets of sexual offences, each set having been committed against a single victim. It is convenient to summarise these offences in the order in which they were dealt with by the courts, rather than in the order in which the offences were committed.

22 On 1 February 1994 a jury found the defendant guilty of two offences of homosexual intercourse with a male person under the age of 10 years, being a boy aged 7. The defendant was sentenced to two concurrent terms of imprisonment consisting of a minimum term of 10 years and an additional term of three years four months. On an appeal to the Court of Criminal Appeal the sentences were reduced to a minimum term of eight and a half years and an additional term of two years ten months.

23 In his remarks on sentence the sentencing judge summarised the facts of the offences. The defendant had been residing for some months at the home of the victim’s parents. On 25 November 1989 the defendant drove the victim’s parents to a function and then drove the victim and the victim’s siblings back to their home. The sentencing judge continued:-

“After returning to the victim’s home, the prisoner induced him to enter a bedroom on the promise of an ice cream. Thereupon he removed the victim’s pants and committed an act of penile-anal intercourse. The resulting pain caused the victim to scream. After this initial act of anal intercourse, the prisoner applied Vaseline to his penis and again inserted his penis into the child’s anus causing the boy to scream a second time. The prisoner responded to the boy’s screams by placing his hand over the child’s mouth and continuing his awful act.”

24 While the defendant was in prison serving the sentences for the 1989 offences, offences the defendant had committed in the 1970s first came to light, apparently because the victim had been referred for psychiatric treatment. Criminal proceedings for these offences were not commenced until 2001 or 2002.

25 On 29 August 2002 the defendant pleaded guilty to

26 All of the offences were committed against the same victim, a boy who was 10 years old at the time of the first offence, who was known to the defendant. On occasions the defendant stayed overnight at the victim’s home.

27 In his remarks on sentence the sentencing judge summarised the facts of the various offences.

28 Charge 1 – the defendant got into the victim’s bed, fondled the victim’s genitals and himself ejaculated over the victim. The defendant threatened the victim with violence to the victim’s brother, who was asleep in the same room, if the victim did not keep quiet.

29 Charge 2 – the defendant again got into the victim’s bed, fondled the victim’s genitals, forced the victim to fellate him and ejaculated into the victim’s mouth.

30 Charge 3 – the defendant entered the victim’s bedroom and shut the door. The defendant told the victim to smear vaseline on the defendant’s penis and masturbate him. The victim complied. The defendant told the victim to roll on his stomach on the bed, which the victim did. The defendant put vaseline between the victim’s buttocks and penetrated the victim’s anus with his penis. The defendant pushed the victim’s face into a pillow to muffle the sounds of the victim crying and groaning.

31 Charge 4 – the defendant and the victim drove to the home of the defendant’s parents. The defendant took the victim to a bedroom. In the bedroom the defendant forced the victim onto his stomach, smeared Vaseline on his buttocks and penetrated the victim’s anus with his penis.

32 The sentencing judge described the offences of indecent assault which were to be taken into account as following a similar pattern to the offences which had been charged.

33 The sentencing judge imposed on each of charges 1 and 2 a fixed term of imprisonment of two years commencing 1 January 1998, on charge 4 a fixed term of imprisonment of four years also commencing on 1 January 1998 and on charge 3 a sentence of imprisonment of seven years with a minimum term of four years commencing on 31 December 2000.

34 On 7 December 2007 the defendant was sentenced for an offence of buggery to which he had pleaded guilty, which had been committed between 1 January 1980 and 31 December 1980. The victim of this offence was a nephew of the defendant, who was 12 or 13 years old at the time of the offence. In sentencing the defendant the sentencing judge took into account two offences of indecent assault against the same victim.

35 In his remarks on sentence the sentencing judge summarised the facts of the offences.

36 As to the offence of buggery, the defendant, while under the influence of alcohol, got into the victim’s bed, pulled down the victim’s pants and put his penis between the victim’s legs. After the victim had pushed the defendant away, the defendant forced his penis into the victim’s anus.

37 As to the first offence to be taken into account, the defendant, while the victim was lying on the floor sleeping, lay down behind the victim, told him to be quiet, fondled the victim’s penis, put his own penis between the victim’s thighs, moved his penis backwards and forwards and ejaculated.

38 As to the second offence to be taken into account, while the victim was sleeping on a stretcher, the defendant played with the victim’s penis and kissed the victim and procured the victim to fellate him.

39 The defendant was sentenced to a term of imprisonment of six years, with a non-parole period of four years commencing on 1 January 2004. In determining the length of the total sentence, the length of the non-parole period and the date on which the sentence should commence, the sentencing judge took into account the staleness of the offences, the delay in charging the defendant and the lengthy sentences the defendant had already served.

40 The defendant completed serving the last sentence imposed on him on 31 December 2009. He had then spent nearly 16 years continuously in custody from 1 February 1994 to 31 December 2009. Since being released the defendant has been a resident at a Department of Corrective Services Community Offenders Support Programs (COSP) facility, pursuant to the interim supervision order.

41 Apart from the sexual offences, the defendant has a comparatively minor criminal history, consisting mainly of stealing and traffic offences. All of the offences were committed many years ago and for none of them was he sentenced to a term of imprisonment to be immediately served.

42 Some of the sexual offences the defendant committed between 1974 and 1978 and between 1978 and 1980 were breaches of the conditions of bonds to be of good behaviour into which the defendant had entered as a result of his non-sexual offences.

Application of the Act

43 It is apparent from my summary of the criminal history of the defendant that the defendant is a sex offender within the definition in s 4 of the Act, who at the time when the present application was made on 5 November 2009 was in custody while serving a sentence of imprisonment for a serious sex offence and that the application was made within the last six months of the defendant’s custody. I am satisfied that the application is supported by the required documentation. It is now necessary to turn to the matters in s 9(3) of the Act (apart from the defendant’s criminal history which I have already considered).

Section 9(3)(a) — the safety of the community

44 This is a general factor which can only be considered in the light of the more specific factors dealt with in the succeeding paragraphs of s 9(3).

Section 9(3)(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

45 As I have already noted, Dr O’Dea and Dr Allnutt were appointed to conduct examinations of the defendant and reports were received from each of them. Both Dr O’Dea and Dr Allnutt are highly qualified psychiatrists.

Dr O’Dea’s report

46 Dr O’Dea interviewed the defendant at a Correctional Centre and at his rooms for a total of approximately three hours.

47 The defendant reported to Dr O’Dea an extensive history of alcohol and cannabis abuse from his early teenage years until his going into custody on 1 February 1994. The defendant related his sex offending to his history of alcohol abuse.

48 In par29 of his report Dr O’Dea summarised the defendant’s sexual offending as follows:-

“I note from the information made available to me that the sex offences involved repeated coercive sexual behaviour, including anal sexual intercourse with the male children in families known to Mr Roach and that the male children were aged between 7 and 14 at the time of the offences. I also note that some of the sex offences occurred whilst Mr Roach was serving bonds for other matters.”

49 Dr O’Dea described the defendant as “adamant that he was not aware of any sexual attraction to children, in particular male children”. The defendant had had a number of heterosexual relationships with females of a similar age to himself. The defendant had been married and there had been a daughter of the marriage. The defendant was divorced in about 2000. Before being divorced, he had told his wife to stop visiting him in prison.

50 Dr O’Dea referred to psychological assessments and treatment the defendant had received or had declined to receive while he was in custody. The defendant had been twice assessed under the STATIC-99 Actuarial Risk Assessment, he had been tested for intellectual functioning, he had engaged in a PREP course, that is a preparatory course for sex offenders to enter sex offender programs while in custody, he had declined to attend a Sex Offender Redirection Training (SORT) course and he had declined to participate (or to continue to participate) in a Custodial Based Intensive Treatment (CUBIT) course as a result of being discouraged by other inmates.

51 Under the heading “Presentation at Interviews” Dr O’Dea wrote in his report:-

“51. Mr Roach presented as a reasonably physically fit and healthy man of his stated age, with rugged features and poor dentition, He sat quietly through the Interviews and did not appear unduly anxious or agitated. He was generally co-operative with the Interview but gave vague and circumstantial answers to many of my questions, often in a dismissive manner and without evidently thinking more carefully about the answers.

52. He tended to deny the sex offences and his involvement in them, at times apparently blaming the victim. He did not convey a sense of remorse for his sex offending behaviours or a sense of empathy for the victims of the sex offences.

52 In a part of his report headed “Opinion” Dr O’Dea said:-

“55. I did not diagnose Mr Roach as suffering from a major psychiatric illness.

56. However, he gave an extensive history of alcohol and cannabis abuse and dependence from an early age and related his history of sex offending to at least his alcohol abuse.

57. I also note his history and presentation with limited intellectual functioning with his intellectual functioning measured in the borderline range.

58. I also note Mr Roach's history of having lived a somewhat itinerant lifestyle, but also of being engaged in regular employment and of having a stable relationship with his wife, at least for some period of time. His history of mood disturbance and self-harm behaviour In 2007 in the context of the stressor of the third set of charges may be best understood as evidence of a limited repertoire of coping skills under stress, in the context of a vulnerable and antisocial personality, rather than as evidence of a major psychiatric disorder, such as a major mood disorder.

59. I note that Mr Roach denied significant aspects of the index sex offences and denied awareness of a specific or significant sexual attraction to male children or of any other deviant sexual urges or fantasies. However, his repeated sex offending against 3 separate male children over extended periods of time, may point to such a specific and significant sexual attraction, and together with the potential for further alcohol and cannabis abuse, may result in Mr Roach being considered to have a significant risk of engaging in further sex offending behaviours, Including of committing a further serious sex offence, in the community in the long term, that may benefit from active management in the community.

60. I note that as judged by actuarial risk assessment instruments (i.e. the STATIC-99 in which Mr Roach has been scored at 3/12 and 4/12, with modification when taking into consideration his age), that Mr Roach would be considered as having a “moderate-low” to “medium-high” risk of engaging in further sex offending behaviours on his release into the community in the long term. However, as detailed before, limitations in the use of the STATIC-99 are widely discussed, including by the authors of the instrument. As implied in the name, the instrument measures static and therefore for the most part unchangeable parameters. The margins of error for risk estimates using this test, particularly in endeavouring to make risk predications for an individual with an individual score, are such as to significantly reduce the appropriateness of relying on this score alone to make decisions about release into the community. Of relevance as well is the fact that the STATIC-99 measures the risk of an Individual engaging in a further sexual offence rather than a further serious sex offence as defined In the New South Wales Crimes (Serious Sex Offenders) Act 2006.

61. However, the potential for a specific and significant sexual attraction to male children and Mr Roach's history of alcohol and cannabis abuse and dependence, in the context of his history of sex offending, are more relevant so-called dynamic risk factors that with successful management in the community may more adequately and appropriately manage his risk of engaging in further sex offending behaviours in the community in the long term) and thereby manage his risk of committing a further serious sex offence.

62. Therefore, it would seem appropriate that Mr Roach have the opportunity to access a suitably qualified and experienced forensic psychiatrist and forensic psychologist on a regular long term basis in the community, in order to explore his sexuality in general and his sexual offending behaviour in particular, specifically but not exclusively aimed at exploring the potential for awareness of a specific and significant attraction to male children and options of how to manage any such identified or presumed attraction. Attention should also be given in these sessions to, amongst other things, enhancing his general self and sexual esteem and his social and interpersonal skills. However, his level of Intellectual functioning is likely to limit the impact of such psychotherapeutic initiatives on their own.

63. In addition, it would seem reasonable to assume that Mr Roach will require to remain abstinent from alcohol and cannabis use in the community in the long term in order to manage and minimise his risk of engaging In further sex offending behaviours in the long term, and that specific alcohol and other drug counselling should be undertaken as a crucial part of the overall psychotherapeutic program.

64. If a specific and significant sexual attraction to male children were to be identified or could be inferred In Mr Roach's case, then the judicious use of testosterone lowering medication (such as Cyproterone Acetate, Androcur®) in the community may prove a useful and effective component of an overall community management plan to assist Mr Roach to manage and minimise his risk of engaging In further sex offending behaviours in the community in the long term, and of managing his risk of committing a further serious sex offence. I did not identify any contra-indications from a medical perspective to Mr Roach being prescribed this medication.

65.1 note that Mr Roach has been prescribed antidepressant medication (Mirtazapine,Avanza®) in the past. Whilst I do not consider that antidepressant or other psychiatric medication is indicated for treatment of any major psychiatric Illness for Mr Roach at the present time, alternative antidepressant medication (such as a Selective Serotonin Re-Uptake inhibitor, SSR1) may prove useful In assisting Mr Roach to control his sexual deviance if testosterone lowering medication was not considered appropriate or was not tolerated.

66.1 note Mr Roach's limited involvement in psychological programs for sex offenders in custody, his apparent denial of at least significant components of the index sex offences, and his limited description of his sexuality and sex offending behaviours through our interviews. However, in the context of his limited intellectual functioning and apparent personality and cognitive style, psychological programs alone are likely to have limited potential benefit by themselves in managing and minimising his risk of committing a further serious sex offence in the community in the long term. As such, further periods of time in custody to complete psychological programs in custody are unlikely to significantly impact upon his risk of committing a further serious sex offence on his release Into the community.

67. However, the community psychiatric and psychological treatment components outlined in the proposed supervision conditions could provide an adequate community treatment program as set out above.

53 Dr Allnutt interviewed the defendant on 12 December 2009 at a Correctional Centre. Dr Allnutt had previously interviewed the defendant and prepared a report for the purpose of the sentencing of the defendant in 2007.

54 As regards the defendant’s use of drugs and alcohol, Dr Allnutt said in his report:-

“He first used drugs when he used cannabis at age 10 or 11 and continued to use cannabis through most of his life; he had experimented with speed; he had used alcohol from age 14; he was a heavy drinker associated with his fishing and drinking affected his relationships and work causing him to be arrested; he had continued t use substances during his incarceration; he had in the past had withdrawal tremors; he had had drug and alcohol counselling in gaol.”

55 In his report Dr Allnutt said that the defendant “accepted that he had a problem” but was reluctant to accept that it was a sexual problem; he believed that he had offended because he “was stupid”, he attributed his offending to “too much grog”.

56 Under the heading “Mental Status Examination” Dr Allnutt said:-

“He presented as slightly built, somewhat anxious man; he was a difficult historian; he maintained good eye contact; he spoke in a soft and monotonous voice; he did not endorse any significant neurovegetative features of depression, mania or hypomania; he endorsed a normal mood; his affect showed range; he gave a recent history of some unusual perceptual phenomena and referential thoughts; on cognitive testing he was orientated to time, place and person and performed reasonably well although he had some mild constructional difficulties; his capacity for insight and judgment appeared to be adequate.”

57 Under the heading “Opinion – Re Psychiatric Illness” Dr Allnutt said that the defendant did not manifest any significant symptoms of a mood disorder; Dr Allnutt would continue to regard him as suffering from a social phobia. Dr Allnutt did not diagnose any personality disorder.

58 As to the defendant’s memory, Dr Allnutt commented:-

“He reports some mild short-term memory problems and did manifest some difficulties with memory in recalling details; he had no recollection of the alleged offending which he attributes to persistent substance abuse however I believe this to be somewhat implausible given the numerous times that he offended and evidence of at least some recall during earlier police interviews, I would expect him to have a better memory than he presents with; on this basis it is likely that he is currently engaging in denial and I would not attribute memory problems to any cognitive impairment that he might or might not be suffering.

59 Under the heading “Opinion – Re Risk” Dr Allnutt said that he had chosen both a clinical and an actuarial approach. Dr Allnutt said that “in providing an opinion on risk of recidivism it is important for the court to be aware that the quality of expert opinion in this regard is limited, as the scientific foundation has limitations”.

60 Dr Allnutt then dealt with a clinical assessment, identifying factors associated with increased risk for sexual recidivism which were present, including the defendant’s previous sex offending, his substance use, the evidence of threats and actual harm to the victims and the defendant’s minimisation and denial of the offences.

61 Dr Allnutt then identified factors that were “ambiguous” in the defendant’s case, including:-

“Because he is not prepared to discuss the sexual offending in any great detail it is difficult to provide a reliable opinion on his attitudes towards his offending and the degree of insight that he has towards his offending behaviour; his attitude towards treatment is somewhat vexing; while he voices a positive attitude towards treatment, it appears that his anxiety about engaging in treatment in group situations is provided to him as an excuse for not pursuing treatment however at the same time he has also been motivated to avoid treatment because of his perception that he would not be able to earn money if he did so.”

62 Dr Allnutt identified factors with increased risk for recidivism, which were absent in the defendant’s case, pointing to the absence of any significant personality disorder, the defendant’s apparent capacity to pursue inter-personal relationships and the defendant’s history of employment.

63 Dr Allnutt then dealt with an actuarial assessment of the defendant, in which he was guided by the defendant’s performance on STATIC-99.

64 Dr Allnutt then formulated a synthesis of his clinical and actuarial approaches as follows:-

“Overall, considering actuarial and clinical assessment I would regard him as falling into a group of individuals at moderate risk for future sexual recidivism as compared to other sex offenders; in the event that he begins abusing substances and becomes socially isolated, there is a risk of sexual offending if in a situation where a male child, particularly of prepubescent age, is accessible.”

65 Dr Allnutt recommended the following risk management plan:-

Treatment

1. He has not yet undergone a full medical examination to rule out underlying medical conditions that might contra-indicate that the prescription of anti-androgen medication; he does however voice motivation to pursue such treatment and presents as an individual who is competent to consent to such treatment should he wish to do so; that he has a paraphilia means that he would be eligible for such medication if it is medically safe and he consents.

2. Given his underlying social phobia and the suggestion that previously Avanza has been beneficial to him I believe he should continue to take Avanza; in particular should he wish to pursue any further treatment programs either in custody or in the community (depending on the Court's determination) he has ongoing social anxiety which appears to interfere to some degree in his participation in such programs.

3. He might benefit from cognitive behavioural therapy in regard to his social anxiety, to assist him to find strategies to deal with it within the treatment context.

4. I believe he should continue to pursue drug and alcohol rehabilitation; if in the community consideration could be given to attending Alcoholics Anonymous meetings or another form of drug and alcohol counselling.

5. It would be beneficial for him to pursue further social skills counselling; he presents as an individual who is limited in his social skills.

6. Should he remain in custody he should be encouraged to enter the CUBIT program or another community programme.

Placement

7. Within prison he should be placed in a therapeutic prison environment where he would have access to both medical, psychological and psychiatric services; in the community he should be placed in an environment where he would have available to him medical, psychiatric and psychological services; care should be taken about placing him within the vicinity of facilities or institutions that house children.

Restrictions

8. In this case restrictions are within the domain of Corrective Services and I would refer the Court to them.

Monitoring

9. He should be referred to a neurologist for investigation of possible petit mal seizures; given his short term memory problems and his long history of alcohol abuse I believe he would benefit from neuropsychological testing in order to assess whether or not he has suffered any alcohol related brain damage.

10. He requires referral to a mental health worker with expertise in the treatment of sex offences.

11. Should he wish to or consent to take Androcur he requires referral to a psychiatrist, I note that the Community Mental Health Services is suggested to be the service responsible for his psychiatric care - it is important for the Court to note that I am aware that Justice Health has reached capacity and would be unable to provide this service.”

66 In a brief supplementary report Dr Allnutt said:-

“In my opinion, he falls into a group of individuals at moderate risk of future serious sexual recidivism as compared to other sex offenders and on this basis he would be regarded as manifesting a moderate likelihood to commit a further serious sex offence if he is not kept under supervision.”

Section 9(3)(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.

67 Counsel for the plaintiff pointed to a report by a psychologist Mr Champion and the report by Mr Sheehan of 25 September 2009.

68 The report by Mr Champion was prepared at the request of the defendant’s solicitors for the sentence hearing in 2007. At par 20 of his report Mr Champion said:-

“Mr Roach denied that he had been particularly sexually drawn to children at any time, despite the nature of his offences; he indicating that he did not have a paedophilic orientation, and had never for instance been interested in or involved in pornography involving children (or any pornography at all he claimed). The difficulty is that one has a series of offences of some severity, with a number of male children, and if his interest is not paedophilic then his sexual offending was presumably opportunistic and anti-social in form; that is availability rather than a specific interest in male children may have been one of the drivers of the offending, together with a severe level of substance abuse. I would not exclude the possibility that Mr Roach is simply being defensive in his reporting, however I could not draw him beyond what is reported. Nor would I exclude the possibility that social and sexual ineptitude may have contributed to him approaching younger and less sophisticated victims, he speaking of having been embarrassed to approach male age peers (noting that he grew up in the 50s and 60s), and had always had problems communicating personal things to others.”

69 On the question of a prognosis for the defendant Mr Champion referred to risk factors which he considered to be present, risk factors “where the evidence is equivocal” and risk factors which did not appear to be present. Mr Champion concluded:-

“In sum the combination of risk factors which are present suggest that the prognosis is negative, certainly in terms of his likely post-release general adjustment.

The difficulty in terms of the risk of sexual offending is that there is no recent history of Mr Roach being in the community, and hence the ability to judge whether he was able to avoid such offending, and avoid the substance abuse which seems to have been associated with it. The concern is that when he is released he will have few if any forms of family support, few connections in the community, and he will be suffering from the impact of institutionalisation, and thus the risk of his returning to substance abuse if not anything else would seem significant. The risk of further sexual offending is harder to judge, however in the absence of treatment, one does not think that incarceration in and of itself would necessarily have led to a moderation in attitudes and drives, and thus one must presume at this point until there is contrary evidence that a risk remains, even though Mr Roach claimed that he had stopped committing these forms of offences well prior to him being charged.”

70 In par 45 of his report Mr Champion said:-

“Some careful consideration will have to be given to the nature of Mr Roach's eventual release, given that he has already been in prison for a long time and seems to have few if any supports in the community. A staged and monitored release program will be needed, ideally co-ordinated by a sex-offenders program. Monitoring in terms of his AOD status and mental health will be required in the community.”

71 The report by Mr Sheehan was prepared at the request of the Commissioner of Corrective Services so as to comply with s 6(3)(b) of the Act.

72 For the purposes of preparing the report Mr Sheehan had an interview with the defendant on 17 September 2009 lasting approximately 5 hours.

73 Under the heading “Presentation” Mr Sheehan said in his report:-

“Mr Roach is a 58 year old man. On the occasions of interview on the 17/9/09, Mr Roach was dressed neatly and his hygiene appeared adequate. He was approachable, openly cooperative and willing to engage verbally. He appeared physically fit and energetic. He made appropriate eye contact and was friendly. He spoke largely in a colloquial vernacular. Mr Roach showed reasonable ability to concentrate over an extended period of time. He recognised this writer from a meeting ten years previously. He did not report any perceptual disturbance. His outlook was generally pessimistic but did not appear to be associated with low mood. When questioned regarding emotionally challenging themes, such as sexual functioning and offence history, Mr Roach appeared flustered, his face and neck becoming clearly flushed and he appeared basically unable to explore these issues in any detail at all. Mr Roach exhibited no observable signs of Axis 1 mental illness as identified in the Diagnostic & Statistical Manual of Mental Disorders – Fourth Edition – Text Revision (DSM-IV-TR).”

74 In his report Mr Sheehan said that he agreed that the defendant’s history supported the diagnosis of “paedophilia of a homosexual inclusive type”, which Dr Allnutt had made in 2007.

75 Mr Sheehan commented that the defendant has a significant history of poly-substance abuse. Mr Sheehan added:-

“During interview (17/9/09), Mr Roach asserted an unequivocal commitment to remaining completely alcohol abstinent in the community. He acknowledged that this would be difficult given that he has no experience in socialising in the community in contexts not associated with alcohol consumption.”

76 Under the heading “Attitude to Risk” Mr Sheehan said:-

“An offender's acknowledgement of risk and the identification of relevant risk factors can be a protective factor (i.e., reduce the risk of reoffending) as it allows the individual to reduce the likely occurrence of risk factors in the future, Self-Management Plans (previously known as relapse prevention plans) are predicated on the acknowledgement that reoffending is possible under certain conditions and provide a plan of how an individual can reduce the likelihood of exposing themselves to risk factors as well as providing them with strategies to manage their risk factors should they arise.

77 Mr Sheehan assessed the defendant’s risk of sexual re-offending, using STATIC-99. Mr Sheehan said that the defendant’s score on the assessment “indicates a moderate-low presumptive risk level relative to other adult male sexual offenders”.

78 In his report Mr Sheehan raised the question of the offender’s age. He said:-

79 In his report Mr Sheehan considered dynamic risk factors, that is “those factors…related to sexual recidivism and…amenable to change”. Mr Sheehan identified as dynamic risk factors in the defendant’s case intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation.

80 As to intimacy deficits, Mr Sheehan noted:-

“Intimacy refers to the general capacity to make friends and feel close to others…Mr Roach has had no personal visits in custody since 1998. He has stated that he does not want visitors and wants to be left alone…Phone records reveal that Mr Roach has had little social contact outside of custody.”

81 As to social influences, Mr Sheehan said:-

“The nature of an offender's social network is one of the most well established predictors of criminal behaviour.”

82 Mr Sheehan added:-

“Mr Roach has spent over 14 years in custody and has largely distanced himself from social influences outside of gaol. As such, it would be unreasonable to expect that he would have a solid range of positive social influences in the community. It is unclear whether his former social network could be described as positive.

When released, Mr Roach will be in the position of having to develop a social network from virtually nothing. This will be a difficult task for him and he would benefit from support in this regard. He may be tempted to establish social contact in alcohol-related situations, which would do little to provide a positive social influence.”

83 As to distorted attitudes, Mr Sheehan said that the defendant’s score on an attitude inventory “did reveal a small number of distorted beliefs but none could be described as condoning sexual contact with children”.

84 As to general self-regulation, Mr Sheehan said:-

“Mr Roach may be described as having deficits in his general self-regulation. He has a restricted range of coping strategies which appear to be limited to consuming alcohol and avoidance. As noted in a previous psychological report, Mr Roach has an ongoing tendency to “cut off from his feelings” which is a poor way of managing emotional states. Mr Roach's failure to undertake CUBIT and complete lack of investment in release planning are indicative of ongoing avoidant coping. He has the ability to insulate himself by distraction, which also inhibits his ability to reflect on himself, to think before acting and to problem solve effectively.”

85 As to sexual self-regulation, Mr Sheehan said:-

“Inevitably, Mr Roach's history of sexual offending suggests difficulties with sexual self-regulation, particularly deviant sexual interest. I note that Mr Roach has met the criteria for a diagnosis of Paedophilia. Given Mr Roach's inability to provide an open account of his sexual attraction towards boys, even in the instances where he has sexually offended against them, he could not be considered a reliable source of information regarding this dimension of his sexual interest.”

86 Mr Sheehan referred to what he described “acute dynamic risk factors” namely substance abuse, victim access, emotional stress, collapse of social supports and rejection of supervision. Mr Sheehan suggested a scenario for the defendant in which these risk factors would operate:-

“If Mr Roach were residing in the community and returned to previous living habits, such as living a marginalised life, with only superficial relationships based around drinking and working, were he to continue to cope with subjective stress by emotional withdrawal, avoidance and excessive alcohol consumption; were he to come into contact with a young male and experience sexual attraction towards him; were he to fail to acknowledge this openly to himself or any supervising staff, and by ignoring this do nothing to remove himself from the situation. In a scenario such as this, Mr Roach would be at elevated risk of sexually offending.”

87 Under the heading “Conclusions and Recommendations” Mr Sheehan said in part:-

“Mr Roach is a 58 year old man who has three clusters of convictions for sexual assault against young males across a 25 (semble 15) year period. All convictions have been for historical offences.

Mr Roach's risk of sexually reoffending is estimated to be in the moderate risk category relative to other men who have sexually offended.

Despite many episodes of encouragement, he has not utilised the opportunity to participate in departmental sex offender treatment programs that may have gone some way to assist him to manage his risk and to enjoy an otherwise more adaptive community life.”

88 In an affidavit of 4 February 2010 Mr Sheehan said that further information he had received and further reports he had read since preparing his report had not caused him to alter the opinions he had formed and expressed in his report.

Section 9(3)(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

89 I have referred earlier in this judgment to STATIC-99. The defendant has been assessed twice using STATIC-99. STATIC-99 was first administered to him in June 2002 by a Departmental psychologist. The defendant received a score of 4, which placed him in the medium-high risk category of re-offending.

90 In September 2009 STATIC-99 was administered to the defendant by Mr Sheehan. The defendant received a score of 3, which placed him in the moderate-low risk of re-offending. In his report of 25 September 2009 Mr Sheehan said that STATIC-99 has “moderate predictive accuracy”.

91 After Mr Sheehan made his report, adjustments were made to STATIC-99 to take into account an offender’s age. There is a correlation between an offender’s age and recidivism, with older offenders being less likely to re-offend. After adjustments for his age were taken into account, the defendant’s STATIC-99 score was reduced to 2. Notwithstanding this relatively low adjusted score, Mr Sheehan said in his affidavit of 4 February 2010:-

“In terms of the impact of this change to Mr Roach’s STATIC-99 on the overall conclusions in my view, Mr Roach’s advancing age and the corresponding lowering of Mr Roach’s STATIC-99 would have only a minimal impact on attenuating risk due largely to the fact that the STATIC-99 does not claim to denote any specific individual’s risk; consideration of the persistence of Mr Roach’s sexual offending over time; and the opening influence of background dynamic risk factors, including lack of preparedness for community life.

For this reason, his updated STATIC-99 score does not alter my overall conclusion that Mr Roach represents a moderate risk of sexual offending relative to other male sexual offenders.”

92 In par 37 of his report Dr O’Dea referred to the STATIC-99 assessments of the Departmental psychologist and Mr Sheehan. In par 60 of his report which I have already quoted but which I will now repeat, Dr O’Dea said:-

New South Wales Crimes (Serious Sex Offenders) Act

93 In his report Dr Allnutt said that the defendant’s STATIC-99 score would put the defendant in a group of individuals at moderate-low risk of future sexual recidivism, as compared to average sex offenders. Dr Allnutt said generally about STATIC-99:-

“Utilising an actuarial tool, I am guided by the Static 99, which is an instrument designated for the prediction of sexual recidivism in sex offenders. It was developed in Canada and the United Kingdom. It produces estimates of future risk based on the number of risk factors present in any one individual. The probability estimates provided by the Static 99 are reconviction rates. Any recidivism estimates provided by the Static 99 are group estimates and cannot be applied to the individual; such estimates can only act as a guide. Most particularly, these group estimates were derived from sexual offender follow up in Canada and the United Kingdom and therefore are more applicable to that population than an Australian population. Official recidivism rates, particularly reconviction rates, probably vary from jurisdiction to jurisdiction and can be influenced by a number of factors including the capacity of the jurisdiction's ability to detect sexual offending, report accurately on the rates of sexual offending. It is also influenced by the legal process that operations of that jurisdiction that result in conviction. It would be appropriate for me to note that there is current argument in the empirical literature about the accuracy of actuarial instruments and concern about the use of actuarial instruments. There is also evidence that supports the view that these instruments, while acknowledging their limitation, have greater accuracy in correctly predicting recidivism in the longer term than clinical assessment but few studies that have compared the two methods in sexual offender groups. Overall the Static 99 as an actuarial instrument can act as a guide but should be cautiously and judiciously applied to the individual.”

94 In State of New South Wales v Thomas [2008] NSWSC 1340 at [28] Adams J discussed the limitations of STATIC-99 as an assessment instrument. In Fisk Howie J held at [176] that he did not find STATIC-99 a very reliable tool for the prediction of future re-offending and at [179] that, in the circumstances of the case before him, he did not believe that Static 99 was very helpful.

Section 9(3)(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

95 Earlier in this judgment and particularly in discussing Dr O’Dea’s report, I noted that while in custody the defendant undertook some treatment or rehabilitation programs and did not participate in others.

96 In May 1999 the defendant completed a Sex Offender Psycho-Education (SOPE) Program of 16 sessions. In 2008-2009 the defendant took part in 14 sessions of a preparatory (PREP) program, which was designed to prepare offenders for participation in sex offender programs. In his report Dr Allnutt said that the defendant had told him that, while participating in the PREP program, he had found standing up and talking in front of people difficult and that it had caused him to feel nervous and scared and to experience palpitations.

97 While he was in custody the defendant did not undertake the Custodial Based Intensive Treatment (CUBIT) Program. CUBIT was described in Mr Sheehan’s report of 25 September 2009 as follows:-

“CUBIT is a residential therapy programme for men who have sexually abused adults and/or children. The programme is designed to help participants work on changing the thinking, attitudes and feelings which led to their offending behaviour. The high risk/high need intensity program offered by the NSW Department of Corrective Services CUBIT program runs in a therapeutic community setting and offenders can expect to remain in treatment for approximately 8 to 10 months, with three, two and a half hour, group therapy sessions per week. This level of intensity is commensurate with international best practice standards.”

98 Mr Sheehan continued in his report:-

“Mr Roach has not undertaken the CUBIT program. Whilst he has at times flatly refused to do CUBIT (“Doesn't wish to do CUBIT”- Miles, 15/5/02), his tendency has to been to avoid the program without actually declining to do it…”

99 The defendant told Mr Champion that he had begun a CUBIT program in about 1998 but had been discouraged from continuing to participate by other sex offender prisoners. The defendant told Dr O’Dea that in the early 2000s he had been discouraged from participating in the CUBIT program by other inmates who said “they brainwash you”. The defendant told Dr O’Dea that he now regretted his decision not to participate.

100 The defendant told Dr Allnutt that he did not undertake the CUBIT program, because he did not wish to be in a group of persons talking about himself. He had not continued the CUBIT program he had commenced because other inmates had told him not to.

101 The defendant has not undertaken any treatment or rehabilitation programs since he was released from custody on 31 December 2009.

Section 9(3)(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

102 As mentioned earlier, the defendant would appear to have been on good behaviour bonds for non-sexual offences, when he committed some of the offences for which he was sentenced in 2001 and 2007. Of course, these offences were committed more than 30 years ago and the defendant was not, strictly speaking, on parole.

Section 9(3)(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

103 There were no submissions, and it would seem no evidence, addressed to this matter.

Section 9(3)(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

104 I have already dealt with this matter earlier in this judgment.

Section 9(3)(i) — any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature

105 The only additional matter referred to in the plaintiff’s submissions was the defendant’s age.

106 The defendant is now 58 years old. It is clear that increasing age is a matter which tends to reduce the risk of re-offending. Some of the reasons for this were discussed by Howie J in Fisk at [180] to [185] and include decline in libido, likely increased self-control and reduced impulsivity and likely reduced opportunities for offending.

107 It was submitted on behalf of the plaintiff that all of Mr Sheehan, Dr O’Dea and Dr Allnutt were conscious of the defendant’s age and took his age into account in reaching their opinions.

Decision

108 I have to determine whether in accordance with s 9(2) of the Act I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. In making this determination I must regard to the matters listed in s 9(3) and any other relevant matters and I have to apply the interpretations of “likely” and “high degree of probability” laid down by the Court of Appeal in Tillman and Cornwall.

109 Neither of the two psychiatrists Dr O’Dea and Dr Allnutt expressed an opinion in the terms of the statutory test. Dr O’Dea expressed the opinion in par 59 of his report that the various factors which he identified might result in the defendant being considered to have a significant risk of engaging in further sexual offending behaviour. Dr Allnutt in his supplementary report expressed the opinion that the defendant would be regarded as manifesting a moderate likelihood to commit a further serious sex offence if not kept under supervision.

110 When a STATIC-99 assessment of the defendant was conducted by Mr Sheehan in September 2009, the defendant had a score of 3, placing him in the moderate-low risk of re-offending. This score is reduced, if it is adjusted for the defendant’s age.

111 The defendant is now 58 years old. Some of his sexual offences were committed more than 30 years ago and the most recent sexual offences were committed more than 20 years ago.

112 Notwithstanding the matters I have just referred to, I have concluded that I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence, if, having been released from prison, he is not kept under supervision. I will state my principal reasons for this conclusion.

113 The defendant’s criminal history of sex offences consists of three lots, each of a number of offences, committed against three separate victims. Physical force was used by the defendant in committing a number of the offences.

114 In interviews with the psychiatrists and psychologists the defendant has demonstrated a lack of insight into his offending, a tendency to deny or minimise his offences and an inability to identify precursors to his offending. All of these matters increase the likelihood of his re-offending.

115 There is evidence that the defendant’s offending has been associated with substance abuse. The defendant has a long history of substance abuse. According to Dr Allnutt’s evidence, the defendant continued to use drugs while in prison.

116 The defendant undertook few rehabilitation programs while in prison. In particular, he did not complete the CUBIT program. In such programs as he undertook the anxiety the defendant experienced in talking in groups militated against any benefit he might otherwise have received from the programs.

117 The defendant was continuously in prison for nearly 16 years. He became thoroughly institutionalised. When he was released, he had no social supports in the community such as would assist him not to re-offend.

118 I consider that the scenario outlined by Mr Sheehan in his report, in the event of the defendant not receiving supervision, is quite likely to happen, namely that the defendant would become stressed in the community and resort to alcohol and in these circumstances he would be likely to re-offend if he became attracted to a prepubescent male.

119 As regards the opinion of the psychiatrists, I take into account Dr Allnutt’s caution that the court should be aware that the value of expert opinion on the risk of recidivism is limited.

120 As to the defendant’s STATIC-99 score, I take into account the limitations of STATIC-99 as a tool for predicting sexual recidivism and the presence in the defendant’s case of dynamic risk factors which are not taken into account in STATIC-99.

121 I consider that the extended supervision order should be for the term of five years. Such a term is supported by par 68 of Dr O’Dea’s report.

122 The conditions in the schedule to the amended summons are divided into groups, dealing with directions (including directions by Departmental officers which the defendant would be obliged to comply with); treatment which the defendant would be required to undertake; association (mainly dealing with classes of persons the defendant would be prohibited from associating with); electronic monitoring; residence movement and appearance; employment; consumption (mainly directed to prohibiting the use of alcohol and drugs); and review.

123 Many of the conditions are in accordance with the recommendations in the reports of Dr O’Dea and Dr Allnutt.

124 I have concluded that all of the conditions are appropriate.

125 I make an order in accordance with par 3 of the amended summons of 4 March 2010.

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Citations

State of NSW v Roach [2010] NSWSC 184

Most Recent Citation

Content removed [2017] NSWSC 516

Cases Citing This Decision

1

State of New South Wales v Williams [2017] NSWSC 516

Cases Cited

4

Statutory Material Cited

3

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

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22

CITATION:	State of NSW v Roach [2010] NSWSC 184
HEARING DATE(S):	4 March 2010
JUDGMENT DATE :	18 March 2010
JUDGMENT OF:	James J
DECISION:	I make an order pursuant to s 9(1)(a) of the Act that, for a period of five years from the date of the order, the defendant be subject to an extended supervision order by complying with the conditions contained in the attached Schedule.
CATCHWORDS:	Crimes (Serious Sex Offenders) Act 2006 — extended supervision order
LEGISLATION CITED:	Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 Crimes (Serious Sex Offenders) Act 2006
CASES CITED:	Cornwall v Attorney-General (NSW) [2007] NSWCA 374 State of New South Wales v Thomas [2008] NSWSC 1340 The State of New South Wales v Fisk [2009] NSWSC 778 Tillman v Attorney- General (NSW) (2007) 70 NSWLR 448
PARTIES:	The State of New South Wales - Plaintiff Frederick Francis Roach - Defendant
FILE NUMBER(S):	SC 2009/296991
COUNSEL:	D Buchanan SC / S Callan - Plaintiff D Thiering - Defendant
SOLICITORS:	IV Knight, Crown Solicitor for the State of New South Wales