State of New South Wales v Brookes (Final)

1. [1]

   By summons filed on 14 October 2016, the State of the New South Wales seeks that the defendant, Alexandria George Brookes, be subject to a high risk sex offender extended supervision order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   The defendant is a 52-year-old man who has been diagnosed with a chronic paedophilic disorder and a personality disorder with anti-social and borderline traits, as well as a range of physical health problems. He has been under supervision orders, and at one stage a detention order, under the Act and its predecessor since 15 May 2008. He has been subject to an interim supervision order (“ISO”), which was imposed by RA Hulme J on 10 November 2016, since 11 December 2016: State of New South Wales v Brookes (Preliminary) [2016] NSWSC 1593. That ISO was extended by Fagan J on 6 January 2017, by Beech-Jones J on 2 February 2017 and again by me on 10 February 2017. The current ISO will expire on 10 March 2017.

3. [3]

   The plaintiff seeks an ESO for a period of five years from the date of this judgment, which is the maximum period for which the legislation allows. The defendant does not oppose the making of an ESO for a period of three years but resists the imposition of an ESO for a period of five years. Thus, the only matter upon which the parties joined issue was the appropriate length of the ESO. I am nonetheless required to satisfy myself that the defendant is a sex offender, that he would present an unacceptable risk of committing further sex offenders if not supervised, and that the making of an ESO is appropriate: Attorney General (NSW) v Hayter [2007] NSWSC 983 at [4]; NSW v Manners [2008] NSWSC 1242 at [4]. State of New South Wales v Fisk [2013] NSWSC 364 at [7].

Relevant law

1. [4]

   The Act relevantly permits the making of an ESO for a “high risk sex offender” whose custodial sentence has otherwise expired. The primary object of the Act is set out in s 3 and, relevantly, is to provide for the extended supervision and continuing detention of high risk sex offenders so as to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders “to undertake rehabilitation”.

2. [5]

   Section 5H of the Act provides that the State may apply to the Supreme Court for an ESO against an offender, but only if as at the time of filing the application the offender is a “supervised sex offender”: s 5I(1) of the Act. “Sex offender” is defined in s 4 of the Act as meaning a person over the age of 18 years who has at any time been sentenced to imprisonment following conviction for a “serious sex offence”. A “supervised sex offender” is a person who, when the application for an ESO is made, is in custody (whether serving a sentence or pursuant to a continuing detention order) or under supervision pursuant to an existing ESO: s 5I(2) of the Act.

3. [6]

   Section 5(1) of the Act defines “serious sex offence” as meaning, inter alia, an offence against a child under Division 10 of Part 3 of the Crimes Act 1900 (NSW) that is punishable by imprisonment for seven years or more: s 5(1)(a)(i). The definition also extends to an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence the purposes of the Act: s 5(1)(c).

4. [7]

   The defendant has convictions in both Queensland and New South Wales. In 2001 he was convicted and sentenced for the offence of indecent assault on a child under 10 years pursuant to the now repealed version of s 61M(2) of the Crimes Act, which carried a maximum penalty of 10 years’ imprisonment. It is an offence that falls within Division 10 of Part 3 of the Crimes Act. Accordingly it is not necessary to rely upon the Queensland convictions in order for me to be satisfied that the defendant is a serious sex offender.

5. [8]

   The formal requirements for an application for an ESO are set out in s 6 of the Act. The originating summons must specify the nature of the application: s 6(1) of the Act. In this matter the application was specified as being for a high risk sex offender ESO. The plaintiff in this matter also complied with the requirement in s 6(2) of the Act that the summons be filed within six months prior to the expiration of an offender's current supervision.

6. [9]

   Section 6(3) of the Act provides that an application such as this must be supported by specified documentation that addresses the matters to which s 9(3) of the Act refers and that includes a “report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further “serious sex offence.” I shall refer to the documentation that satisfies this requirement further below.

7. [10]

   Section 5B(1) of the Act provides that an offender can be made the subject of a “high risk sex offender ESO if, and only if, the offender is a “high risk sex offender”. Section 5C of the Act provides that this Court may make an order for the supervision of an offender if the offender is a high risk sex offender.

8. [11]

   Section 5B(2) of the Act defines a “high risk sex offender” as being an offender who is a “sex offender” and whom a judge of this Court is satisfied to a high degree of probability poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

9. [12]

   The phrase “unacceptable risk” is not defined in the Act. It was recently considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 (“Lynn”) where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in s 5B(2) is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]).

10. [13]

    President Beazley went on to observe at [59] - [61]:

11. [14]

    Section 9(3) of the Act provides a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO. Those matters are as follows:

    1. (1)

       the safety of the community (s 9(3)(a));

    2. (2)

       the reports received from the persons appointed under s 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination (s 9(3)(b));

    3. (3)

       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 relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment (s 9(3)(c));

    4. (4)

       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 relevant offence (s 9(3)(d));

    5. (5)

       any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1));

    6. (6)

       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 (s 9(3)(e));

    7. (7)

       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 (s 9(3)(f));

    8. (8)

       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 (s 9(3)(g));

    9. (9)

       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 (s 9(3)(h));

    10. (10)

        the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1); and

    11. (11)

        any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order) (s 9(3)(i)).

12. [15]

    As Beazley P further observed in Lynn, the mandatory considerations in s 9(3) of the Act are applicable in the exercise of the statutory power to make an ESO and not to the anterior determination of whether an offender poses an unacceptable risk: at [48]. Despite this, the criteria in s 9(3) are still relevant to the question of whether a person poses an “unacceptable risk” of committing a serious sex offence if not kept under supervision: per Beech-Jones J in State of New South Wales v Fisk at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [48].

13. [16]

    In Lynn, Basten JA described the Court’s role at [124] as follows:

14. [17]

    Section 10(3) of the Act provides that the Court is not prevented from making a second or subsequent ESO in respect of the same person.

15. [18]

    Section 11 of the Act confers on this Court a power to impose conditions that it considers appropriate. Examples of the types of conditions that the Court may impose are set out in that section.

The material in support of the application

1. [19]

   A number of affidavits were filed on the application annexing and exhibiting a great deal of material. These were the affidavits of Claudia Pendlebury affirmed 14 October 2016 (and exhibit CP-1) and 31 October 2016 (with annexures), an affidavit of Shane Jakupec affirmed 2 November 2016, an affidavit of Azam Bulbulia affirmed 2 December 2016 (with annexures), an affidavit of Paul Yeomans affirmed 24 January 2017, and an affidavit of Dr Richard Parker sworn 24 January 2017 with an annexure.

2. [20]

   In addition, RA Hulme J ordered two psychiatric reports in respect of the defendant on 10 November 2016 under s 7(4) of the Act. These were the report of Dr Andrew Ellis, psychiatrist, dated 20 January 2017, and the report of Dr Stephen Allnutt, psychiatrist, dated 18 January 2017. Dr Ellis gave evidence and was cross-examined at the hearing before me on 10 February 2017.

Background and history of offending

1. [21]

   I note at the outset that there are some significant discrepancies in what the defendant has reported to various psychiatrists, psychologists and support workers as to his family background over the years. Helpfully, forensic psychologist Dr Richard Parker attempted to “draw the various histories into a coherent whole” in his Risk Management Report of 8 March 2016. I agree with the observation of Grove J that there is ample material supporting the conclusion that the defendant is an “unreliable and deceptive historian” and that any account of his background that is derived from his self-report must be approached with significant caution: State of New South Wales v Brookes [2008] NSWSC 473 at [6] – [7]. Notwithstanding this, certain of the defendant’s circumstances are a matter of public record by reason of his contact in early life with what was then called Youth and Community Services (“YACS”) and later with the criminal law in New South Wales and Queensland.

2. [22]

   The defendant was born on 13 September 1964 in Sydney and is now 52 years of age. He was apparently the second of six children born to his parents and he had a number of half-siblings. He reported to Dr Gluckstern, psychiatrist, in 1986 and Ms Anita Duffy, psychologist, in 1987 that he was removed from the care of his parents at the age of two and placed with foster parents because of sexual abuse at the hands of his natural mother. However, contemporaneous reports indicate that he was not removed from his family of origin until he was committed to the care of the Minister in September 1978 at the age of 14, following a breach of probation, because his conduct was too difficult for his parents to manage. In 2001 he reported to Dr Rosalie Wilcox, psychiatrist, that he was unable to say whether there had been abuse in his family and that he had no memories of abuse. In 2007 he claimed to Dr Andrew Ellis and Mr Marcelo Rodriguez, psychologist, that he was sexually abused by a man from the age of five and by his grandmother from the ages of 6 to 11.

3. [23]

   The defendant was convicted of a number of non-sexual offences as a juvenile and young adult. His first contact with the criminal law was in July 1977, was he was before Minda Children’s Court on a charge of being an “uncontrollable child”. In March 1980, he was convicted of arson and committed to an institution for 12 months. In July 1981, he was convicted of stealing at Cobham Children’s Court. He was again convicted of stealing in October 1981. In May 1983, he was convicted of an offence of break, enter and steal at Blacktown Petty Sessions. In December 1984, he was convicted of negligent driving and illegal use of a conveyance.

4. [24]

   He has told various report writers that he was married and divorced as a young man and that the relationship produced two children. He told Dr Hugh Jolly, psychiatrist, in 1987 and Mr Philip Andrews, psychologist, in 1995 that he subsequently began a relationship with a 16-year-old victim of incest who became pregnant. It is not possible to verify any of these claims.

5. [25]

   During his wardship and early adulthood, the defendant reported on a number of occasions a long-term ambition to “work with children”. As a teenager he unsuccessfully attempted to obtain work as a babysitter and later claimed to Dr Fischer, psychiatrist in 1987 and Dr Wilcox in 2001 that he had worked with children as a volunteer. A report from the placement officer of a boys’ home in which the defendant lived as a young person, dated October 1978, stated that he involved himself in “experimental sex play” with young boys. The co-ordinator of a youth crisis centre wrote to YACS in 1982 that the defendant, at the age of 17, “…seemed to be over-interested in the ten, eight and younger guests and girls.” In 1995 he reported having sexually abused his 3 or 4-year-old young niece from the age of 8 or 9 years to Mr Andrews. That abuse continued until he was 15 or 16 years old.

6. [26]

   The defendant’s first offence involving a child (of which he was convicted) occurred in 1987, when he was 22 years old. He led a girl aged two away from her mother at Central Station, apparently towards the male toilets. He claimed that the offence was not sexually motivated, but rather done out of spite towards the child’s mother with whom he was in a relationship. The mother of the child told police that the defendant was a stranger. The plaintiff submits that, in light of the defendant’s subsequent offending, the Court would consider that the defendant had a sexual motive. He was convicted of taking a child with intent to deprive and sentenced to imprisonment for two years with a “non-probation” period of 12 months to date from 9 October 1986. He was released from custody on 7 July 1987.

7. [27]

   While in custody for the offence of taking a child with intent to deprive, the defendant shared a cell with the paedophile Dennis Ferguson. Almost immediately upon release from prison, the defendant and Ferguson abducted two young boys and a girl, the children of another inmate, and took them to Queensland. There, the defendant and Ferguson sexually and indecently assaulted the children in a motel over a period of days and engaged in sexual intercourse with each other in their presence. The defendant was arrested on 16 July 1987. As Grove J observed, this represents “…the most serious by far of any offences which have been committed by the defendant”: State of New South Wales v Brookes [2008] at [10].

8. [28]

   The defendant was tried and convicted in Queensland of fraudulently taking a child under the age of 14 years with intent to deprive; indecent dealing with a girl under 14 years; carnal knowledge of a girl under 12 years of age; two counts of indecent dealing with a boy under 14 years; three charges of carnal knowledge against the order of nature; permitting carnal knowledge against the order of nature; and gross indecency. A total effective sentence of imprisonment for 11 years was imposed.

9. [29]

   On 5 January 1999 the defendant was released from custody in Queensland, apparently unexpectedly (due to the system of remissions then in place in that State) and while mid-way through completing a sex offenders’ treatment program. He was not subject to parole. The defendant’s next offence occurred in Sydney on 20 September 2001, when he lured a nine-year-old boy to the toilets at church gathering and indecently assaulted him in a toilet cubicle. The boy made immediate complaint and the defendant was arrested and charged with indecent assault. On 20 September 2001, O’Reilly DCJ sentenced him at the District Court at Penrith to imprisonment for three years and six months with a non-parole period of 18 months.

10. [30]

    The defendant was released unconditionally on 20 July 2004. On 25 August 2004, he was charged with an offence involving non-compliance with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). On 12 January 2005, he was sentenced to imprisonment for eight months with a non-parole period of one month. On 23 May 2007, he was again convicted of failing to comply with his reporting obligations and sentenced to a fixed term of imprisonment for 12 months.

11. [31]

    The defendant had multiple admissions to psychiatric hospitals during these periods at liberty in the community. He is also said to have formed a sexual relationship with a physically and intellectually disabled woman, MP, during a brief stay in Queensland: New South Wales v Brookes [2010] NSWSC 728 per Kirby J at [55]-[60]. Following the imposition of an ESO by Grove J on 15 May 2008, the defendant’s department service officer (“DSO”) directed that the defendant have no contact with MP. He breached the order by contacting MP through a third party on 27 May 2008.

12. [32]

    The defendant self-reported having committed around 50 offences against children in the course of his lifetime to Dr Ellis and Mr Rodriguez in 2007 and to Professor Greenberg in 2008.

History of detention and supervision

1. [33]

   The defendant has been subject to restrictions upon his liberty under the Act and its predecessor (the Crimes (Serious Sex Offenders) Act 2006) since his release from custody in 2008. On 15 May 2008, Grove J granted the plaintiff’s application for an ESO in relation to the defendant for a period of five years, but refused the application for a continuing detention order (“CDO”): New South Wales v Brookes [2008]. On 4 September 2008, the Court of Appeal (Ipp and Bell JJA and McClellan CJ at CL) dismissed the plaintiff’s appeal from the decision of Grove J to impose an ESO, rather than a CDO: State of New South Wales v Brookes [2008] NSWCA 212.

2. [34]

   The defendant was very difficult to supervise upon his release and engaged in a number of problematic behaviours, including threatening one of his housemates with a knife. He was shortly returned to custody and convicted of three breaches of the conditions of his ESO, including entering an exclusion zone containing a childcare centre, contacting MP, and hoarding his medication. He spent 20 out of the 23 months between the imposition of the ESO on 16 May 2008 and the imposition of an interim detention order (“IDO”) in custody: State of New South Wales v Brookes [2010] at per Kirby J at [42].

3. [35]

   On 9 July 2010, Kirby J made an order that the defendant be subject to a CDO for 14 months and 2 weeks pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act: State of New South Wales v Brookes [2010]. The plaintiff’s purpose in seeking that the defendant be made subject to a CDO was to allow him to complete a modified version of the custody-based intensive treatment (“CUBIT”) program in custody. His Honour noted at [36] that his previous engagement with therapeutic programs in custody, both in New South Wales and Queensland, had been considered unsatisfactory. His Honour observed that Professor David Greenberg, psychiatrist, and Ms Jenny Howell, psychologist, had previously opined that the defendant’s personality disorder and intellectual difficulties made it difficult for him to engage in group therapy: at [36]. Department of Corrective Services psychologists took the view that he remained untreated: at [70].

4. [36]

   Justice Kirby stated at [43], having outlined the defendant’s breaches of the ESO:

5. [37]

   The defendant was detained pursuant to the CDO imposed by Kirby J until 22 September 2011, whereupon he was made subject to an ISO. On 12 December 2011, Hidden J made an ESO for a period of five years in respect of the defendant. His Honour stated:

6. [38]

   His Honour quoted germane passages from the reports of court-appointed psychiatrists Dr Stephen Allnutt and Dr Sampson Roberts, each of whom considered that the defendant had demonstrated progress but that he continued to present a high risk of re-offending in the absence of strict supervision.

7. [39]

   Although the defendant has not breached the ESO imposed by Hidden J, his supervision has been punctuated by medication non-compliance and frequent hospitalisations due to suicidal ideation. It appears that certain stressors, particularly the anniversary of the death of his parents, lead to a decline in the defendant’s mental health such that he stops tending to self-care activities, including eating and maintaining hygiene, and adhering to medication regimes. Those declines culminate in admission to psychiatric in-patient units. The defendant also had significant difficulties moving into independent accommodation from the community offender support program (“COSP”). He remained at the COSP for three years. I note that he seems to have settled in well at his current community housing, albeit with a great deal of support from caseworkers to maintain good hygiene and nutrition.

8. [40]

   The material before me shows that the defendant’s sexual preoccupation with children has continued, consistent with his diagnosis of a chronic paedophilic disorder. A Prince of Wales Hospital discharge summary dated 17 August 2012 records that the defendant reported “…suicidal ideation and a desire to sexually assault children.” Before me is a file note from a member of the community mental health team with which the defendant is engaged to the effect that he began a conversation with an eleven-year-old girl at a hairdresser on 9 June 2016, asking her the age of a baby in a nearby pram. On 2 June 2016, he had reported to his psychologist that he masturbated two to three times each week despite being on anti-libidinal medication. On 26 November 2016, a caseworker reported that the defendant was seen staring at children.

Risk Assessment and Risk Management Reports

1. [41]

   Section 6(3)(b) of the Act relevantly requires an application for a high risk sex offender ESO to be supported by a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a further serious sex offence.

2. [42]

   Forensic psychologist Dr Richard Parker prepared a Risk Assessment Report (“RAR”) dated 8 March 2016 in relation to the defendant. The defendant acknowledged to Dr Parker that the ESO then in place was “…there for the protection of the community and me” and said that it was “…easier to go along with it than fight it.” Dr Parker recited the defendant’s family background, psychosocial history, background of sexual and non-sexual offending, past treatment, and response to supervision in the community. He noted that the defendant’s sexual offending appears to be “…motivated by a sexual attraction to children and facilitated by a lack of moral inhibitions against such actions.”

3. [43]

   Dr Parker administered a number of risk assessment instruments with respect to the defendant in order to assess his risk of re-offending. He noted that the defendant’s score on the actuarial risk instrument the Level of Service Inventory-Revised (“LSI-R”), completed in 2015, and placed him in the “medium” category. The defendant’s total score on the STATIC-99, which Dr Parker administered on 25 February 2016, was 8. Dr Parker noted that this score places the defendant in the high-risk category relative to other male sexual offenders. It is in the 99th percentile, meaning that roughly 98% of sexual offenders scored lower than the defendant. The defendant’s total score on the STABLE-2007, an actuarial tool that that assists in identifying stable dynamic risk factors for sexual offending, was between 11 and 15. The lower score of 11, which is at the top of the moderate range, is taking into account the defendant’s use of anti-androgen medication. The higher score of 15 falls within the high-risk category.

4. [44]

   Dr Parker noted that combining the STATIC-99 and the STABLE-2007 in the defendant’s case yields a high to very high overall risk level. He stated that this risk assessment is “…anchored by static, unchangeable factors, but backed up by the identification of a number of criminogenic needs,” namely sexual deviancy, intimacy deficits, sexual attitudes and self-regulation. Dr Parker posited a risk scenario in which, having given up his stated goal of becoming a responsible person, the defendant experiences negative affect and becomes non-compliant with his medication and other restrictions placed on him. An offence could happen very quickly, the defendant having demonstrated in the past that he does not require an extended period of grooming in order to abuse a child.

5. [45]

   A Risk Management Report under the hand of Community Corrections Officer Allison Roberts dated 14 September 2016 was also before the Court in this matter. In that report, Ms Roberts proposes a risk management plan in response to the criminogenic needs identified by Dr Parker in his report of 8 March 2016. The strategies proposed include weekly interviews with the defendant, field visits (including surveillance), contacting third parties involved with the management of the defendant, electronic monitoring, schedules and curfews, attendance at Forensic Psychology Services, continued attendance at psychiatric appointments, prohibition on contact with children, non-association and place restrictions, and searches of mobile phones and other devices.

Reports under s 7(4) of the Act

1. [46]

   Dr Ellis examined the defendant on 12 December 2016 and provided a report dated 20 January 2017. He stated that the defendant receives support six days a week from a non-government mental health support service. That service assists the defendant with transport, shopping, cooking, cleaning, washing and leisure activities. He requires considerable prompting and assistance with respect to those activities of daily life. He has a private psychiatrist, a case manager, a general practitioner and a forensic psychologist. He takes anti-libidinal medication, among other prescribed drugs.

2. [47]

   In respect of the defendant’s account of his offending behaviour, Dr Ellis stated:

3. [48]

   Dr Ellis identified the diagnosis “of primary concern” as the paraphilic disorder paedophilia, with attraction to both male and female children. He considered that the disorder had its onset in the defendant’s early teenage years and has had a chronic course since then. Paedophilia is typically a chronic, relapsing condition. Dr Ellis also stated that the defendant meets criteria for anti-social and borderline personality disorder, having regard to the defendant’s history of conduct disorder during childhood and participation in a diverse range of criminal behaviour in adulthood. This is consistent with his history of childhood abuse and institutional care. Dr Ellis considered that the defendant’s combination of mood instability, impulsivity, intermittent psychotic symptoms and cognitive impairments is consistent with a mild neurocognitive disorder and a psychotic disorder due to a general medication condition (namely epilepsy and cerebral atrophy).

4. [49]

   Dr Ellis identified a number of features associated with a greater risk of re-offending, including the defendant’s anti-social and borderline personality style, deviant sexual arousal, offending against both male and female children and mental disorders (if untreated). He considered that the defendant is at a high risk of re-offending:

5. [50]

   Dr Ellis stated in his report that a diagnosis of paraphilia is the main indication for anti-libidinal medication. As the defendant’s personality style and cognitive deficits limit his ability to benefit from psychological intervention, continued treatment with such medication is recommended.

6. [51]

   With respect to the duration of an ESO, Dr Ellis stated the following:

7. [52]

   Dr Ellis gave oral evidence at the hearing and was cross-examined. In relation to the assertion in his report that “…a stable pattern of behaviour has only begun to emerge,” he said:

8. [53]

   Dr Ellis noted that the defendant has been hospitalised at least five times since his release from custody. He stated that, although mental disorders are uncommonly directly related to sexual offending, the highest risk period for people with serious mental disorders who commit serious sexual offences is when they are not compliant with medication regimes. That is so even when the symptoms experienced are not related to offending conduct. Dr Ellis stated that non-compliance with medication tends to coincide with dropping out of other forms of treatment, such as psychosocial support. Similarly, the withdrawal of intensive support (such as that which he is currently receiving from a non-government mental health organisation) could lead to a rapid decline in the defendant’s mental and physical health, which, combined with medication non-compliance, may produce a relapse into substance abuse and paedophilic thinking.

9. [54]

   Dr Ellis agreed that the defendant requires long-term supervision. With respect to the period of time that he recommended, being three years, Dr Ellis stated:

10. [55]

    He agreed that his recommendation of a period of three years was in the nature of a clinical judgment as to the minimum period of time within which the defendant’s stability and response to supervision could be monitored before further review.

11. [56]

    Dr Ellis agreed that the defendant would be suitable for indefinite use of anti-libidinal medication, subject to ongoing testing to monitor potential side-effects. Those investigations include blood tests, bone density scanning and physical examinations. The specialist input of an endocrinologist may be useful should abnormalities in the defendant’s presentation be detected.

12. [57]

    Dr Allnutt examined the defendant on 7 December 2016 and provided a report dated 18 January 2017. The following passages of Dr Allnutt’s report are significant:

13. [58]

    Also significantly, the defendant told Dr Allnutt that he considered staring at children for no reason and wanting to engage with them in conversation to be “warning signs” of increased risk.

14. [59]

    Dr Allnutt opined that the defendant has a paedophilic disorder and noted that he has been diagnosed with an ongoing mixed personality disorder with anti-social and borderline traits. He considered that the defendant has limited intellectual capacity. He noted that the defendant has previously been diagnosed with schizoaffective disorder, which is currently in remission secondary to medication, and temporal lobe epilepsy. It was noted that, given the defendant’s history of panic attacks, he likely has an associated anxiety disorder.

15. [60]

    Based on clinical and actuarial assessment, Dr Allnutt stated that the defendant falls into a group of sex offenders at high risk of sexual recidivism as compared with other sex offenders. He considered that, in the absence of significant psychosocial support, there is a “relatively high likelihood” that the gains that the defendant has made will diminish, with the emergence of risk factors including non-adherence to medication and psychological treatment, the emergence of psychotic and mood symptoms, association with anti-social peers, relapse into substance abuse, and aggravation of paedophilic fantasies and urges.

16. [61]

    Dr Allnutt recommended the ongoing administration of anti-libidinal medication as long as it is medically safe to do so, with “constant and regular review” by the defendant’s general practitioner and psychiatrist and an endocrinologist. The defendant reported to him that he could only recall being administered one set of blood tests since commencing on Depo-Provera in 2011. He could not recall any bone scans or consultations with an endocrinologist. He told Dr Allnutt that the only side effects that he experienced were tiredness and an inability to achieve an erection. He reported that he had had six admissions to the Kiloh Centre at Price of Wales Hospital since 2011, usually for depression and suicidal ideation. The latest of those was in July 2016, when he reported hearing voices saying “kill, kill, kill” and believed that his food was being poisoned.

17. [62]

    Dr Allnutt declined to give an opinion as to the appropriate duration of any ESO, taking the view that this was a legal rather than a medical question.

Consideration

1. [63]

   Having regard to the defendant’s admitted sexual attraction to children, his diagnoses of paedophilia and a personality disorder with anti-social and borderline traits, his history of sexual offending against children, his lack of social supports, and his level of risk as assessed by Dr Parker, Dr Ellis and Dr Allnutt, I am satisfied to a high degree of probability that the defendant presents an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Although the defendant committed his last offence of a sexual nature over 15 years ago, I accept the submission made on behalf of the plaintiff that this is likely due to the defendant’s either being in custody or subject to a high-level of supervision.

2. [64]

   Accordingly, I am satisfied that Mr Brookes is a high risk sex offender within the meaning of s 5B(2) of the Act. The defendant conceded that the statutory requirements for making an ESO were satisfied in this matter. I am also satisfied that in the exercise of my discretion I should make the ESO sought. In so finding I have had regard to the mandatory considerations set out in s 9(3) as follows.

3. [65]

   I have had regard to community safety in my consideration of this matter and am satisfied that the safety of the community warrants the making of an ESO having regard to the material before me.

4. [66]

   I have had regard to the reports of both Dr Ellis and Dr Allnutt, the contents of which I have summarised above at [46] – [62]. Dr Ellis noted that the defendant falls into a group of persons with a risk for serious sexual offending that is statistically high in frequency and shows diversity in victim gender, which is associated with worse outcomes than those who offend against females alone. Dr Allnutt noted that the defendant does not accept he has paedophilia. Of concern is that in August 2016 he heard voices saying “kill, kill, kill”. Dr Allnutt described Mr Brookes as having a chronic paedophilic disorder, likely anxiety disorder and ongoing mixed personality disorder with antisocial traits.

5. [67]

   I have had regard to the other reports before me. The defendant has been examined by a number of experts over the years and his diagnosis and poor prognosis remain largely unchanged.

6. [68]

   I have had particular regard to the report of Dr Richard Parker. His conclusions regarding risk assessment are summarised above at [41] – [44]. He concluded that, on clinical and actuarial assessment, the defendant falls into a group of sex offenders with a high risk of sexual recidivism.

7. [69]

   I have referred above to the Risk Management Report of Community Corrections Officer Allison Roberts dated 14 September 2016. She set out some of the matters that might affect the ability of service providers to manage risk in relation to the defendant. She noted his difficulties with medication compliance and adequate nutritional intake. She opined that it was doubtful that he could obtain a satisfactory quality of life without intensive support. She described a long history of having difficulty with him relaying the truth of any particular situation to her. She also noted his lack of employment history. She suggested that electronic monitoring offers some mitigation of risk but, given possible opportunistic offending, the risk cannot be totally ameliorated even with that measure in place.

8. [70]

   The defendant was discharged from the CUBIT program in 2002 but later completed it in custody in 2011. It could not be said, on the material before me, that completion of that program has reduced the risk of the defendant’s re-offending to any significant degree.

9. [71]

   The defendant committed the Queensland child sexual assault offences while he was on parole for the child abduction conviction in 1986. The Queensland offences were committed shortly after his release to parole. When he was released from custody in 2001 he was not subject to a parole order. His subsequent offences in 2004 and 2007 related to breaches of the requirements of the Child Protection Register. He also breached his original ESO in 2008 and 2009. Although there have been no breaches since 2008, I am nonetheless satisfied that the defendant requires ongoing supervision.

10. [72]

    The defendant has a pattern of offending behaviour that dates back to 1986. Although there have been no recent offences, I am satisfied that that is likely as a result of the high level of supervision under which he has lived in recent years.

11. [73]

    The last time that the defendant was sentenced was in 2001. Judge O’Reilly noted that the defendant appeared to downplay his involvement in the Queensland offending at that time. Although his Honour found that the physical aspect of the indecent assault was “relatively slight”, he noted that there was an increased need for specific deterrence in the defendant’s case.

12. [74]

    There was affidavit material before me showing that the community mental health service that has provided significant support to the defendant since October 2013 is only able to provide that support if the Court makes an ESO. Were the Court not to impose an ESO, the service would need to conduct an organisational risk assessment in order to ascertain whether the level of risk posed by the defendant in the absence of 24-hour supervision would be acceptable to it.

13. [75]

    I note that each of Dr Parker, Dr Ellis and Dr Allnutt opined that the psychosocial assistance and support provided by that organisation play a significant role in moderating the risk posed by the defendant. It seems to me that it is a relevant matter to be taken account that the support provided by that organisation is in some respects dependent on the existence of an ESO, which includes conditions such as constant electronic monitoring.

14. [76]

    The question that remains is the appropriate duration of the ESO. Mr Aitken of counsel on behalf of the plaintiff submitted that the fixing of the length of the ESO is a legal question, the scope of which is broader than the psychiatric approach to risk. He submitted that, while the reports of Dr Ellis and Dr Allnutt would inform the exercise of my discretion, I would not look only to expert psychiatric opinion in determining the length of the order to which the defendant will be made subject. The correct approach, having found that the defendant is a high risk sex offender, would be to determine the appropriate period for the safety and protection of the community. In so doing, I would also have regard to the rehabilitation of the defendant.

15. [77]

    Mr Skinner of counsel on behalf of the defendant submitted that there was no direct expert support for the making of an ESO for a period of five years. To the contrary, Dr Ellis considered that the appropriate period, in order to improve the defendant’s function in the community and to “refine appraisal of risk”, was three years. (Dr Ellis agreed in his evidence-in-chief that this period was in the nature of a “minimum”). Similarly, Dr Parker stated that it is important, as far as the management of the risk posed by the defendant is concerned, that he find a way to “feel good about himself and feel part of society, rather than being an outcast”. Dr Parker considered that an increase in the defendant’s engagement in society would necessarily involve a gradual reduction in the level of restraint to which he is subject.

16. [78]

    In State of New South Wales v Manners [2008] NSWSC 1376, there was a dispute as to the appropriate length of the proposed ESO. After setting out the terms of s 10 of the Act, (at [79]), RA Hulme J observed the following at [81]-[82]:

17. [79]

    His Honour went on to consider the submissions of the parties at [83] – [89], before observing at [90]:

18. [80]

    His Honour went on to consider the expert evidence before him as to the risk of re-offending and then concluded at [95]:

19. [81]

    Justice Fullerton considered the question of the duration of an ESO in State of New South Wales v Darrego [2011] NSWSC 1449 and observed at [87]:

20. [82]

    In State of New South Wales v Conway [2011] NSWSC 925, Hidden J made an ESO for a period of three years when the plaintiff had sought an order for five years. The expert evidence supported the making of an order for five years. His Honour observed at [28]:

21. [83]

    Similarly, in State of New South Wales v De La Torre [2011] NSWSC 1263, the dispute between the parties was confined to the length of the proposed ESO. The court appointed experts both agreed that an ESO for five years was appropriate and that was the order ultimately made by Garling J.

22. [84]

    In Attorney General for the State of New South Wales v Steadman [’2013] NSWSC 17, Button J reviewed the authorities dealing with the consideration of the appropriate length of an ESO, including some of the above, at [75] –[80]. His Honour concluded that an order for three years was appropriate in that matter.

23. [85]

    I am satisfied based on the above authorities and the language of the Act that the question of the appropriate duration of an ESO is a legal one, albeit to be determined with the assistance of expert psychiatric and psychological opinion. It seems to me that the most important consideration guiding the exercise of the Court’s discretion with respect to the duration of an ESO is the safety and protection of the community. That approach accords with the primary object of the legislation. The rehabilitation of the defendant is a secondary object; necessarily it will yield to the safety and protection of the community in cases where those two objects conflict.

24. [86]

    The argument in favour of imposing a shorter order of three years’ duration was that it would make the defendant feel better about himself, which would in turn assist in his rehabilitation. Although the material before the Court on this application suggests that the defendant has made some progress towards independent living in the last five years, nothing in the expert evidence, save for the reduction in sexual drive and preoccupation induced by the intramuscular administration of the anti-libidinal medication Depo-Provera, indicates that the risk posed by the defendant to children has declined over that period of time. He has expressed an ambivalent attitude towards Depo-Provera to Dr Allnutt, the relevant portions of whose report are extracted above at [57]. His sexual preoccupation with children continues and his mental and physical health is precarious.

25. [87]

    Although it may be appropriate to review the defendant clinically in three years, I do not consider that the defendant will cease to present an unacceptable risk of committing a serious sexual offence in the medium to long term.

26. [88]

    I have had regard to the fact that, although it would be open to the defendant to approach the Court with an application to vary the term of the ESO before the expiration of five years, as a matter of practical reality he does not have the personal resources to do so. Mr Skinner submitted on his behalf that I would be satisfied that the defendant’s cognitive impairments and physical and mental health problems mean he is incapable of approaching Legal Aid himself in order to seek assistance with such an application to this Court.

27. [89]

    I accept that should the question of either party approaching the Court for a variation of an ESO arise, as is permitted under s 13(1) of the Act, it is more likely that the plaintiff rather than the defendant would have the resources to do so. However, that is not a reason to limit the order to three years if I am otherwise satisfied that the safety and protection of the community require that an order of five years be made.

28. [90]

    For these reasons, and having regard to all of the material before me, I am satisfied that the appropriate length of the order is five years.

Conditions

1. [91]

   I have given consideration to the proposed conditions set out in Schedule A to the plaintiff’s amended summons. At the hearing of this application on 10 February 2017, the plaintiff indicated that it did not press conditions 6, 7 and 8. I did not include those conditions when I extended the ISO on that day. I am satisfied that it is appropriate to make the ESO subject to the conditions set out in the schedule to this judgment; the level of supervision is high, but I am satisfied that it is necessary. I propose to impose an ESO on the defendant for a period of five years subject to those conditions.

2. [92]

   I make the following orders:

   1. (1)

      Order pursuant to ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a high risk violent offender extended supervision order for a period of five years from the date of this order.

   2. (2)

      Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) directing that the defendant, for the period of the high risk sex offender extended supervision order, comply with the conditions set out below in the schedule to this judgment.