State of New South Wales v Wilmot (Final)

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

   [REDACTED].

6. [6]

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

7. [7]

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

8. [8]

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

9. [9]

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

10. [10]

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

Legislative scheme

1. [11]

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

2. [12]

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

3. [13]

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

4. [14]

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

5. [15]

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

6. [16]

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

7. [17]

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

8. [18]

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

9. [19]

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

10. [20]

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

The evidence

1. [21]

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

   1. (1)

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

   2. (2)

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

   3. (3)

      The updated Offender Case Note Reports; and

   4. (4)

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

2. [22]

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

Section 17(4) considerations

1. [23]

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

2. [24]

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

3. [25]

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

4. [26]

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

5. [27]

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

6. [28]

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

7. [29]

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

8. [30]

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

9. [31]

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

10. [32]

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

11. [33]

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

12. [34]

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

13. [35]

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

14. [36]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

15. [37]

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

16. [38]

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

17. [39]

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

18. [40]

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

19. [41]

    Ultimately, Dr Eagle concludes:

20. [42]

    Dr Eagle explained the reason for these remarks:

21. [43]

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

22. [44]

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

23. [45]

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

24. [46]

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

25. [47]

    Ms Howell also made reference to the defendant being:

26. [48]

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

27. [49]

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

28. [50]

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

29. [51]

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

30. [52]

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

31. [53]

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

32. [54]

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

33. [55]

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

34. [56]

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

35. [57]

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

36. [58]

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

37. [59]

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

38. [60]

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

39. [61]

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

40. [62]

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

41. [63]

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

42. [64]

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

43. [65]

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

44. [66]

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

45. [67]

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

Submissions

1. [68]

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

2. [69]

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

3. [70]

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

4. [71]

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

5. [72]

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

6. [73]

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

7. [74]

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

8. [75]

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

9. [76]

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

10. [77]

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

11. [78]

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

12. [79]

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

13. [80]

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

14. [81]

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

15. [82]

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

16. [83]

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

17. [84]

    Tenth, there is limited prosocial networks and support.

18. [85]

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

19. [86]

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

20. [87]

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

21. [88]

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

22. [89]

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

23. [90]

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

24. [91]

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

25. [92]

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

26. [93]

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

27. [94]

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

28. [95]

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

29. [96]

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

30. [97]

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

Section 21A statements

1. [98]

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

2. [99]

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

3. [100]

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

4. [101]

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

5. [102]

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

6. [103]

   Section 21A provides:

7. [104]

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

8. [105]

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

9. [106]

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

10. [107]

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

11. [108]

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

12. [109]

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

13. [110]

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

14. [111]

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

15. [112]

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

16. [113]

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

17. [114]

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

18. [115]

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

Consideration

1. [116]

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

2. [117]

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

3. [118]

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

4. [119]

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

5. [120]

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

6. [121]

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

7. [122]

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

8. [123]

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

9. [124]

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

10. [125]

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

11. [126]

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

12. [127]

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

13. [128]

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

14. [129]

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

15. [130]

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

16. [131]

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

17. [132]

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

18. [133]

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

19. [134]

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

Orders

1. [135]

   The Court orders:

   1. (1)

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

   2. (2)

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