State of New South Wales v Anderson (No 4)

1. [1]

   By Summons filed on 6 October 2015 the State of New South Wales (“the State”) seeks orders against the defendant, Ronald James Anderson, under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The orders sought are for the defendant’s continuing detention and thereafter his extended supervision or, alternatively, for his extended supervision. The orders sought are set out at [5] to [9] of the Summons.

2. [2]

   The principal order sought is a continuing detention order (“CDO”) for a period of 12 months pursuant to s 17(1)(b) of the Act, followed by an extended supervision order (“ESO”) pursuant to s 17(1)(a). In the alternative, an ESO is sought for a period of 5 years.

3. [3]

   At the time the State initiated proceedings the defendant was in custody serving a sentence of imprisonment for offences of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW).

4. [4]

   The sentence for that offence expired on 17 October 2015. The defendant served the whole of its term due to the refusal of the State Parole Authority to order his release to parole.

5. [5]

   The matter came before Hamill J on 12 October 2015 so that the question of interim orders could be determined. In a judgment delivered on 15 October 2015 his Honour made an order under s 15(4) of the Act appointing Doctors Andrew Ellis and Jeremy O'Dea to conduct separate examinations of the defendant and prepare psychiatric reports for the Court. Justice Hamill declined the State’s application to make an interim detention order, but granted the alternative prayer, and made orders subjecting the defendant to an interim supervision order (“ISO”) pursuant to s 10A of the Act, to commence from 17 October 2015: State of New South Wales v Anderson [2015] NSWSC 1515.

6. [6]

   On 11 November 2015 Adams J made an order under s 10C(2) of the Act renewing the ISO until 10 December 2015: State of New South Wales v Anderson (No 2) [2015] NSWSC 1679. On 8 December 2015 Schmidt J made a further order renewing the ISO until 6pm on 6 January 2016: State of New South Wales v Anderson (No 3) [2015] NSWSC 1871

7. [7]

   At the hearing of the application for final orders before me, the State tendered and relied upon extensive documentary evidence setting out the defendant’s history and circumstances as relevant to the risk it contends the defendant poses to the safety of the community. In addition, oral evidence was called from three forensic psychiatrists who have examined the defendant recently for the purposes of making an assessment of the risk he poses or may pose to the community. Each of Dr Ellis, Dr O’Dea, and Dr Richard Furst gave evidence before the Court on 14 December 2015.

The Statutory Framework and Threshold Criteria

1. [8]

   It is important when considering an application made pursuant to the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) to have regard to the purpose and objective of the legislation, and the reasons for its enactment by the Parliament.

2. [9]

   The legislation was enacted in 2006 as a means by which the community could be protected against what were referred to by the Minister in the second reading speech in the Legislative Assembly on 29 March 2006 as “a handful of high risk, hard-core offenders” who had done nothing towards rehabilitation whilst in custody serving a sentence.

3. [10]

   Initially, the legislation was confined to serious sex offenders, but it was later extended to apply additionally to violent offenders: Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW).

4. [11]

   Section 3 of the Act sets out its objectives:

5. [12]

   The principal concern of the Act is with ensuring the safety and protection of the community; a secondary purpose, subordinate to that of the protection of the community, is in encouraging high risk offenders to engage in rehabilitation.

6. [13]

   The Act comprehends the fact that offenders who are serving or have served any sentence imposed by a court, may be detained in custody beyond the expiration of the sentence, or subject to supervision by the State, with the consequence that an individual’s ordinary right to liberty is restrained.

7. [14]

   Part 1A of the Act provides for the supervision of high risk offenders, be it high risk sex offenders as defined in s 5B of the Act, or high risk violent offenders as defined by s 5E. Division 2 of Part 2 deals with the determination by the Court of an application for an extended supervision order, whilst Division 2 of Part 3 contains the corollary provisions with respect to an application for a continuing detention order. Sub-sections (3)(a) to (3)(i) of s 9 and ss (4)(a) to (4)(k) of s 17 provide for a number of matters which the Court must have regard to when determining applications under the Act. The first of the mandatory considerations (s 9(3)(a); s 17(4)(a)) is the safety of the community.

8. [15]

   The State may apply for an extended supervision order or a continuing detention order against any person to whom the definitions of sex offender or violent offender in s 4 apply: s 5H; s 13A.

9. [16]

   The defendant is a person to whom the definition of sex offender applies, in that he is a person over the age of 18 years who has been sentenced to imprisonment following his conviction of a serious sex offence. The serious sex offence is an offence contrary to s 61J of the Crimes Act 1900 (NSW) in respect of which the defendant was imprisoned until 17 October 2015.

10. [17]

    A "serious sex offence" is defined in s 5(1) to include an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for 7 years or more. Division 10 deals with “offences in the nature of rape, offences relating to other acts of sexual assault etc” and includes offences contrary to s 61J, to which a maximum sentence of 20 years imprisonment attaches.

11. [18]

    Pursuant to s 13B of the Act the State’s principal application, for a continuing detention order against the defendant, can only be made in respect of a detained sex offender or a supervised sex offender. That criteria is met, in that at the time the Summons was filed on 6 October 2015 the defendant was a "detained sex offender", being in custody in a correctional centre serving a sentence of imprisonment for a serious sex offence: s 13B(2)(a)(i).

12. [19]

    The time limits imposed upon an application of this nature by s 13B(3) are also satisfied.

13. [20]

    The State’s application specifies that the continuing detention order sought is a high risk sex offender continuing detention order, and provides relevant supporting documentation. Accordingly, the requirements of s 14 of the Act have been met.

14. [21]

    An extended supervision order may be made if the defendant is a "high risk sex offender": s 5C(1). A continuing detention order may be made if the defendant is a "high risk sex offender" and the Court "is satisfied that adequate supervision will not be provided by an extended supervision order": s 5D(1).

15. [22]

    The Court must determine whether the defendant meets the criteria for characterisation as a "high risk sex offender" as set out by s 5B of the Act:

16. [23]

    The Act provides no definition of what is meant by “an unacceptable risk” but, having regard to the object of the Act (s 3), the language used in s 5B(2), and the ordinary meaning of the words, the legislature must have intended the statutory test to be satisfied where the evidence establishes that there is a risk that the defendant will commit a serious sex offence which is sufficiently high that the making of an order is necessary to protect the community and ensure its safety: State of New South Wales v Thomas (Preliminary) [2009] NSWSC 1119; State of New South Wales v Thomas (Final) [2011] NSWSC 307, both being decisions of R A Hulme J; as applied in State of New South Wales v Graeme Allan Reed (Preliminary) [2011] NSWSC 625; and Attorney General for New South Wales v McGuire [2015] NSWSC 152. The question is whether the safety and protection of the community cannot be ensured unless an order is made.

17. [24]

    In Director of Public Prosecutions WA v Williams [2007] WASCA 206; (2007) 176 A Crim R 110 at [63], Wheeler JA, with the agreement of Le Miere AJA, said of comparable legislation in Western Australia:

18. [25]

    There is no real dispute that the defendant is a high risk sex offender, and I am satisfied of that to the high standard specified by s 5B(2) of the Act.

19. [26]

    The question is whether a continuing detention order is necessary for the safety and protection of the community, as the State contends, or whether, as the defendant submits, the Court should find that an extended supervision order will provide adequate supervision of the defendant, and ensure the community’s protection.

The Defendant’s Circumstances and History of Criminal Offending

1. [27]

   The defendant is currently aged 50 years, having been born in February 1965. He has three adult children to two previous relationships. He currently has very limited family contact, and has had minimal contact with his family over the past many years.

2. [28]

   The defendant has an horrendous criminal history that has led to him spending much of the last 30 years of his life in custody, serving sentences for various offences and, significantly, for offences of extreme violence, including the index offences of aggravated sexual assault.

3. [29]

   The defendant left school at the beginning of year 8 and found employment for a time. He commenced his long involvement with the criminal law in 1982 with convictions for assault and possession of drugs, dealt with in the Local Court. The assault was committed against a 16 year old boy whom the defendant believed had informed against him to police for a larceny offence. The boy was punched twice in the face and once in the stomach. On arrest, the defendant told police, "He asked for it and got what he deserves”.

4. [30]

   In 1983, at age 18 or 19, the defendant was convicted of offences of goods in custody and three break, enter and steal matters, again dealt with in the Local Court. The latter offences were apparently committed to obtain money for drugs, although the defendant told Dr Furst that he engaged in them to spite his father.

5. [31]

   In 1984, there were further convictions for break, enter and steal, driving without a licence, failure to appear and a breach of recognisance. Custodial sentences were imposed.

6. [32]

   In 1985, the defendant was again before the criminal courts, and was sentenced for further drug offences and a further false pretences offence. Two years later, in 1987, when the defendant was 22 years old, he was convicted of assaulting a female and released on a two year recognisance. The woman concerned was the defendant’s then partner, whom the defendant pushed to the ground and punched with sufficient force as to cause a wound to her eye that required sutures.

7. [33]

   Later in that same year, and in breach of the two year recognisance he was subject to, he was convicted in the District Court of the offences of supplying a prohibited drug and cultivating prohibited plants. Another period of imprisonment was imposed.

8. [34]

   The defendant was also convicted in 1987 of a number of offences of stealing, break, enter and steal, failing to appear and possessing a prohibited drug. He was sentenced to a number of terms of imprisonment, served concurrently with the longer term of imprisonment imposed by the District Court for the drugs offences.

9. [35]

   On release from custody in 1990, the defendant was convicted of offences of unlawful entry, failure to appear, assault occasioning actual bodily harm (“AOABH”), four counts of break, enter and steal, and seven counts of false pretences. He received various prison sentences. The AOABH offence was committed against a five year old boy, the son of the defendant’s then partner. The defendant lost his temper with the child and “kneed” him in the torso. The child sustained a broken rib and bruising. There was also facial bruising although the defendant denied injuring the boy’s face.

10. [36]

    In 1992, the defendant was convicted of an offence of escaping lawful custody and sentenced to a short period of imprisonment.

11. [37]

    In 1994, he was convicted of two offences of maliciously inflicting grievous bodily harm with intent and, on each count, was sentenced to a minimum term of seven years and six months and an additional term of two years and six months. These sentences reflected very grave offences of violence involving the use of two knives with which the defendant armed himself against two individuals known to him. The defendant himself described the offences as "nearly killing two people", and that was an accurate description for what were vicious crimes. After having stabbed the first man, the second victim pleaded with the defendant to calm down. Having done no more than that, he was then stabbed by the defendant, who told him, “Die you little cunt”. At the time of these offences the defendant was subject to both parole and bail.

12. [38]

    The sentencing judge (Ducker QC DCJ) in his remarks on sentence described these crimes as “a serious outbreak of violence” which the defendant himself initiated.

13. [39]

    An appeal against the purported severity of the sentences imposed for these offences was later dismissed by the Court of Criminal Appeal: R v Anderson (Court of Criminal Appeal (NSW), James and Finlay JJ, 19 October 1994, unrep).

14. [40]

    The defendant was serving the sentences imposed by Ducker QC DCJ when he escaped from custody and committed the index offences and other serious crimes.

15. [41]

    There appear to have been other, unrecorded incidents of serious violence by the defendant.

16. [42]

    In an undated self-report the defendant gave, as recorded in a document entitled “Violence Prevention Programme, Malabar Special Programmes Centre” (Tab 109 of Volume Two of Exhibit EW-1), he described other, uncharged acts, including cutting a friend with a razor and taking the friend’s money, tying a victim to a four-wheel drive and dragging him from the vehicle in a dispute over cannabis, and assaulting a friend with a baseball bat.

17. [43]

    The facts of the offences committed by the defendant following his escape from custody make for chilling reading. They are indeed terrible crimes. I do not intend to set out the facts here in all of their graphic and unsettling detail; they can be found in the remarks of the sentencing judge, Bellear DCJ, of 14 December 2001, and in the judgment of the NSW Court of Criminal Appeal which later heard and upheld a Crown appeal against the leniency of the sentences imposed at first instance: R v Anderson [2002] NSWCCA 304.

18. [44]

    In brief, the facts are as follows.

19. [45]

    At some stage on the night of 28 February 2001 or the morning of 1 March 2001, the defendant and a fellow prisoner escaped from Grafton Correctional Centre. The following day they travelled to Sawtell Beach. The defendant and the co-offender observed the victim, a 50 year old woman, walking towards her car. She was a stranger to them. The defendant and his co-offender attacked the victim as she was walking along a track and dragged her into the bushes. She was assaulted and her mouth was covered by tape to stop her from screaming for help. Her hands were bound with a cord and a piece of rope.

20. [46]

    She was carried to the car the offenders had stolen and put into the rear seat. The victim’s terror was understandably extreme; she believed that she would be killed or tortured.

21. [47]

    She was taken to an isolated area in a State Forest and pulled from the car. Her clothes were forcibly removed and, naked, she was pushed onto the boot of the car. There the defendant and his companion took turns in forcing penile-vaginal intercourse upon the victim. She was threatened with being stabbed with a pair of scissors, and told that the offenders would "fill [her] full of holes" and that "we could slit your throat."

22. [48]

    The victim was also forced to have oral sex with the defendant before she was returned to the back seat of the car. Whilst the co-offender drove at speed through the bush, the defendant forced further acts of penile-vaginal intercourse upon her.

23. [49]

    Troublingly, the defendant and the co-offender told the victim that they had broken out of jail and had “fucked up” their lives. They told her that there was no hope for them and they may as well “enjoy” the night.

24. [50]

    The victim was then driven to another location where the defendant again forced penile-vaginal intercourse upon her in the car. She was removed from the car and subjected to further sexual indignities by the co-offender, whilst the defendant kept a look-out.

25. [51]

    The victim was also robbed of her purse, and was forced to assist the offenders by using her bank card to withdraw a sum of money from her bank account.

26. [52]

    After an extended ordeal, the offenders left their victim in a town. She was subsequently taken to Coffs Harbour District Hospital. Setting aside the psychological damage, which is likely to have been both significant and long lasting, the victim was found to have numerous abrasions and extensive bruising to her arms, back, neck, wrists and face.

27. [53]

    On 14 December 2001 in the Sydney District Court the defendant was convicted of escape lawful custody, together with a number of offences arising from the events at Sawtell, being:

    1. (1)

       steal motor vehicle;

    2. (2)

       aggravated sexual assault (in company);

    3. (3)

       detain for advantage and cause injury to victim;

    4. (4)

       aggravated sexual assault (inflict actual bodily harm); and

    5. (5)

       aggravated robbery (infliction of actual bodily harm and deprivation of liberty).

28. [54]

    As is plain from the facts of the offences that I have set out, these offences were, at least in relation to the sexual crimes, representative to a degree, in that not all of the multiple acts of intercourse were reflected by a specific charge.

29. [55]

    Part of the material before the sentencing judge was a report of 8 September 2001 from a psychologist, Ms Robilliard, whose findings included that the defendant had a "deeply disturbed personality construct", and a "markedly antisocial aggressive disposition and a lack of emotional and interpersonal sensitivity." The psychologist also concluded that the defendant’s "presentation and personality profile and his record of offences implies that he is dangerous, and he is strangely aware of that himself."

30. [56]

    In its judgment following the Crown’s appeal against the sentences imposed by Judge Bellear, the NSW Court of Criminal Appeal said this:

31. [57]

    The Court also gave some prominence to evidence before the sentencing Court from Ms Robilliard, in her September 2001 report. In the judgment, Spigelman CJ said (at [39]):

32. [58]

    The sentences imposed at first instance which, in respect of the two offences of aggravated sexual assault, were terms of imprisonment of six years and 11 years respectively, were held by the Court of Criminal Appeal to be manifestly inadequate. In coming to that conclusion the Court was cognizant of the defendant’s criminal history:

33. [59]

    The Court ultimately quashed the sentences imposed at first instance in relation to the two s 61J offences (with other sentences confirmed), and re-sentenced the defendant as follows:

    1. (1)

       For the offence of aggravated sexual intercourse in the motor vehicle whilst it was being driven along a bush track at speed, sentence the Respondent to a fixed term of six years imprisonment to commence on 18 October 2002 and expiring on 17 October 2008.

    2. (2)

       For the offence of aggravated sexual intercourse on the boot of the car, sentence the Respondent to a head sentence of eleven years commencing on 18 October 2004 and expiring on 17 October 2015 and fix a non-parole period of six years to commence on 18 October 2004 and expiring on 17 October 2010.

    3. (3)

       For the offence of escape from lawful custody, a fixed term of two years commencing on 18 October 2010 and expiring on 17 October 2012.

34. [60]

    The variation to the sentences was in the degree of accumulation imposed by the Court of Criminal Appeal. The overall sentence was one of 13 years, with a non-parole period of 10 years specified.

35. [61]

    It is noted that the principle of double jeopardy applied to these proceedings. Chief Justice Spigelman noted the applicability of the principle, commenting at one point that a starting point of something of the order of eighteen years would have been appropriate (at [47]).

36. [62]

    The finding of Bellear DCJ that special circumstances existed pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) such that the usual statutory ratio of sentence was varied in the defendant’s favour was undisturbed on appeal.

37. [63]

    As it happens, because of the defendant’s conduct in custody and, in particular, his unwillingness to meaningfully and consistently engage with rehabilitative programmes directed at his violent and sexual offending, the defendant served what was intended to be an extended period of supervision in custody, being released only at the expiration of the total sentence on 17 October 2015.

38. [64]

    Over the years the defendant has spent in custody he has accumulated over 30 institutional misconduct charges, together with a number of criminal convictions (for possessing drugs in custody). His custodial history from the Department of Corrective Services (dated 12 June 2015) is less than encouraging, and is suggestive of a continuing attitude of defiance to authority.

39. [65]

    The most recent reported incident was for obstructing a correctional officer on 24 October 2014, for which the defendant received a reprimand and a caution. He has a number of entries for failing a urine test or having drugs in urine, the most recent being from March 2014. There are entries for fighting, possessing weapons, using abusive or insulting language, damaging property, refusing a urine test, and a number of other offences.

40. [66]

    The entries for fighting appear to reflect some serious incidents. The defendant confessed to Dr Ellis (who noted it in his report of 20 November 2015) that he would “belt blokes who committed sex offences, and would hurt them bad”.

41. [67]

    Not noted on the list of institutional misconducts but significant nonetheless is the defendant’s acknowledged possession and consumption of a prohibited drug in October 2015, a drug he used after the State’s application for an interim order was heard before Hamill J, but before his Honour gave his judgment. The defendant’s use of Buprenorphine, of which his Honour was unaware, was detected by urinalysis conducted just after the defendant was released from custody.

42. [68]

    Whilst the defendant pleaded guilty to the index offences and, in that sense, has taken responsibility for them, he does not seem to have accepted that he is a sexual offender.

43. [69]

    Although the defendant has not always or consistently been forthcoming about his motivation for the commission of these offences, he has explained it previously as anger and a desire for revenge. One could add to that the fatalistic idea expressed to the victim of the index offences that, since he would be further imprisoned for escaping from Grafton Gaol, he may as well “enjoy” his time out of prison, albeit at the expense of another person.

44. [70]

    A Custody Based Treatment Programme (“CUBIT”) treatment report of 6 April 2011 records the defendant’s explanation of his escape and the subsequent offences as connected to his belief that his then partner was or had been unfaithful to him. He experienced feelings of intense anger and wanted revenge against both his partner and the man with whom she was involved. This led to the sexual offences, with the defendant displacing the aggression he wished to visit upon his partner to the victim, a complete stranger.

45. [71]

    To senior psychologist Kristy Murphy in an interview in January 2015, the defendant reported that he did not know why he committed the index sexual offences (Risk Assessment Report of 28 January 2015). Ms Murphy nevertheless concluded (at [47]) that “It appears likely that Mr Anderson's high level of anger and possible threat to his sense of self is strongly related to his sexual offending."

46. [72]

    In his report of 3 August 2015 Dr Furst recorded (at p.10) that the defendant found it difficult to articulate the reasons for his sexual offending in 2001. He told the doctor:

47. [73]

    The defendant also said: "I'm [at] a loss to explain why it happened, why I allowed it."

48. [74]

    More recently, to Dr O'Dea, the defendant said (as recorded by the doctor, with his ellipses, at [46] of his report of 27 November 2015):

49. [75]

    The defendant also told Dr O'Dea that he had been “in a bad place” at the time, having had a relationship break down, and had resorted to using “a lot of gear”. He referred to the victim of the sexual assaults as “an easy victim”, someone to take his anger out on.

50. [76]

    Notwithstanding those apparent partial insights, the defendant has not responded entirely positively to treatment programmes offered to him whilst in custody.

51. [77]

    The defendant does not seem to understand or accept that he is an individual who poses a risk of sexually reoffending. In an interview with Ms Murphy, whose Risk Assessment report of 28 January 2015 is in evidence, the defendant said he would not offend in the same way again and questioned the “moderate – high” risk assessment made of him following his participation in the CUBIT programme. He regarded his sexual offences as an anomaly ([46] of Ms Murphy’s report). The defendant told Dr Furst there was “no risk” of him sexually offending in the future (p.12, report of 3 August 2015).

52. [78]

    Ms Murphy concluded that:

53. [79]

    The limited insight Ms Murphy referred to is perhaps reflected by the defendant’s initial unwillingness to engage in sex offender treatment programmes whilst in custody. It was initially necessary for psychologists at Goulburn Correctional Centre to engage in therapy with the defendant that was directed to improving his motivation to participate in such programmes.

54. [80]

    Thereafter, in June 2009 the defendant agreed to enter relevant programmes, but he refused a placement in CUBIT offered to him later that year.

55. [81]

    The following year he agreed to participate in a preparatory programme, taking part between 3 June 2010 and 29 July 2010. His participation was described as excellent, and motivated by his realisation that he had to engage with treatment initiatives to be considered for release to parole ([52] of Ms Murphy’s report).

56. [82]

    Subsequently, the defendant took part in CUBIT, between 13 August 2010 and 4 April 2011. The results were somewhat mixed. His level of engagement was said to be high, and he developed some insight, but the defendant had difficulty in exploring aspects of his sexual offending, and he was on occasion hostile and intimidating to those involved (CUBIT Treatment Report of 4 January 2011; [53] – [55] of the report of Ms Murphy).

57. [83]

    It was noted that the defendant had some cognisance of “triggers” leading to violent or other problematic behaviour, but was not able to implement strategies to divert such behaviour quickly enough, or at all in relation to his drug use.

58. [84]

    At later monthly maintenance group meetings the defendant was regarded as hostile, uncommunicative, self-focused, and “entitled”. Despite being advised that participation in maintenance programmes would be advantageous when being considered for release to parole, the defendant attended only four meetings, refusing thereafter to engage at all in maintenance therapy.

59. [85]

    It is noted that Dr Furst regards full participation in a maintenance programme as an essential preliminary step to the defendant’s re-entry into the community (p. 3 of report of 3 August 2015).

60. [86]

    Ms Murphy noted the defendant’s comments to her about regarding therapy of this nature as no more than a “hoop” that he had to be seen to jump through if he was to achieve his liberty. She characterised the defendant’s understanding of the risk he poses, and his awareness of risk management strategies, as “only intellectual and somewhat superficial” (at [57] of the report of Ms Murphy).

61. [87]

    The defendant’s apparent ability to express sentiments or demonstrate conduct perceived by him as necessary to gain his liberty is a feature in the evidence that is frequently repeated and noted. It is a matter of some concern to me and I will return to it.

62. [88]

    Although illicit drug use has been identified as a clear risk factor for the defendant in engaging in serious criminal conduct, there is a weight of objective evidence that suggests that this is not an area that the defendant has successfully tackled. As previously noted, he returned a positive test for prohibited drugs on 17 October 2015, the day of his release from custody. On his own account, the defendant had taken eight or nine “points” of Buprenorphine, or “bup”, in the days prior to his release. He has not returned a positive test result since 17 October 2015.

63. [89]

    Ms Murphy has identified the possible consequences of substance abuse by the defendant as including disengagement with supervision, reduced capacity to regulate his emotions, an increased risk of problematic behaviour, and thoughts of entitlement. All of these factors in turn add to the risk of a return to serious sexual and other offending.

The Defendant’s Response to the ISO

1. [90]

   On 17 October 2015 upon his discharge from custody the defendant was taken by Corrective Services staff to the Nunyara Community Operated Support Programme Centre (“COSP”) where accommodation had been arranged for him. In accordance with the orders made by Hamill J the defendant was fitted with an electronic monitoring device. A drug test administered that day revealed the presence of Buprenorphine, as noted above.

2. [91]

   The defendant was introduced to staff whose role was to support and supervise him. He presented as fit and well and motivated to obtain employment. He expressed a desire to move away from Sydney in the long term, settle in a regional area, and obtain work on a rural property

3. [92]

   During his weeks at the COSP the defendant was an enthusiastic cook, cooking meals for other residents, and enjoying that role. The defendant was subsequently given full time work as a gardener at the Centre and spoke with his mother about suitable plants for the garden.

4. [93]

   Steps were taken to establish the defendant with Medicare, Centrelink, and other agencies and service providers. He obtained a telephone and an opal card for public transport. He attended to personal shopping and other ordinary day-to-day activities.

5. [94]

   His progress at the COSP was generally satisfactory. There was an incident when a drug detection dog indicated a scent on the defendant’s clothes, but nothing can be drawn from such a vague occurrence in my view. A number of searches of the defendant’s room and person, conducted at random during his residence at the COSP, found nothing of any concern.

6. [95]

   Apart from an expression of some anxiety about coping in the community made by the defendant to one of the psychiatrists, his time spent at the COSP was exemplary.

7. [96]

   On 18 November 2015 the defendant moved from the COSP to a granny flat in the western suburbs of Sydney operated by Providential Homes. His progress was sound. He rapidly became involved in work with Providential Homes, working in the kitchen and supervising others in the preparation of large numbers of meals. He made a commitment to work in the kitchens on an unpaid basis until Christmas. His work and input was well received and valued, although there was some level of disharmony between the defendant and a female worker, which the defendant felt he resolved.

8. [97]

   The defendant made contact with family members, including his mother, sister and an aunt. Some tentative plans were made for the accused to travel to the north of the State to spend Christmas with his family, although their plans were deferred when the defendant became anxious about it. He additionally had the commitment to Providential Homes.

9. [98]

   The defendant had a meeting with an aunt which he felt had been awkward and uncomfortable.

10. [99]

    The defendant expressed the wish to meet his children, but also felt considerable anxiety concerning the prospect of engaging with them.

11. [100]

    Throughout his time in the community the defendant attended meetings of Narcotics Anonymous, and regular counselling sessions with psychologists. His engagement was positively received.

The Psychiatric Evidence

1. [101]

   The Court had the benefit of reports from three forensic psychiatrists who have assessed the defendant, Doctors Furst, Ellis and O’Dea, supplemented by oral evidence from each. Each of the doctors were provided with the same comprehensive documentary evidence as was tendered to the Court in support of the State’s application.

2. [102]

   There is broad agreement amongst the doctors that the defendant is someone who attracts diagnoses of an Anti-Social Personality Disorder (“ASPD”) and a Substance Abuse Disorder.

3. [103]

   Dr Furst saw the defendant on two occasions, 26 June 2015 and 17 July 2015. He obtained a full history from the defendant, which is summarised in his report of 3 August 2015.

4. [104]

   Dr Furst characterised the defendant as co-operative with assessment but somewhat abrupt, as lacking emotional depth, and shallow in affect.

5. [105]

   Having reviewed the information concerning the defendant’s history of criminal conduct Dr Furst noted that his offending behaviour had commenced at an early age (15 years) and the defendant’s conduct over the years was indicative of anti-social attitudes, poor control over behaviour, poor emotional control, attitudes of aggression to others generally, and substance dependence.

6. [106]

   At p.15, Dr Furst concluded that:

7. [107]

   The doctor also referred to traits other than the antisocial personality disorder, such as being “somewhat self-entitled or mistrusting as a personality style” (T49: 37-38). Anger or a feeling of being slighted was a trigger for violence:

8. [108]

   No diagnosis of paraphilia was made.

9. [109]

   Dr Furst regarded the defendant’s substance abuse disorder as a continuing difficulty, demonstrated by the defendant’s recent resort to a prohibited drug, buprenorphine. As to that recent lapse, the doctor said,

10. [110]

    The doctor regards the defendant’s substance abuse disorder and his recent resort to buprenorphine as a risk:

11. [111]

    The defendant has not repeated drug use since his release to the community on 17 October 2015, and Dr Furst regarded that, together with his compliance with supervision more generally, as a positive first step. However, he cautioned that the eight or so weeks the defendant has spent in the community without incident has to be viewed in the context of his history of anti-social conduct, lengthy incarceration, and institutionalisation. He expressed the view that eight weeks in the community was too short a time to draw any firm conclusions.

12. [112]

    Whilst the defendant’s positive response to supervision since 17 October 2015 caused Dr Furst to reconsider his opinion as to the length of time over which the defendant should be detained subject to a CDO, it did not cause him to view supervision in the community as sufficient to ensure that the defendant did not reoffend.

13. [113]

    He continues in the view that, even with supervision, the defendant belongs to a group of offenders at high risk of committing a further a sexual offence:

14. [114]

    Dr Furst concluded that there was real advantage in the defendant being detained for a year pursuant to a CDO, identifying the benefits as providing an opportunity for the defendant to undertake the maintenance programme he had refused to complete, and to experience a more gradual transition to community life, through undertaking a programme of day release from custody.

15. [115]

    He expressed significant concerns that, even if supervised under the proposed conditions of an ESO, the defendant probably posed an unacceptable risk to the community:

16. [116]

    Dr Ellis saw the defendant at interview on 26 October 2015, that is, some nine days after his release from custody. At the time of interview, the defendant was residing at the Nunyara COSP and subject to the interim supervision order imposed by Hamill J.

17. [117]

    Dr Ellis also took a thorough history from the defendant, recorded in his report of 20 November 2015. The defendant presented as co-operative although frequently resorted to profanity. He answered the doctor’s questions and expressed some remorse for his past actions, although Dr Ellis noted that the defendant’s expressions of remorse were qualified. The defendant expressed his willingness to be subject to an ESO, commenting that it would be a “good thing” (p.11 of the report).

18. [118]

    Like Dr Furst, Dr Ellis concluded that the defendant has an ASPD and a substance abuse disorder. As to the former the doctor noted,

19. [119]

    Features of an antisocial personality include impulsivity, failure to plan ahead, aggressiveness, violence, disregarding the rights of others, and a failure to conform to social norms.

20. [120]

    The doctor further commented upon the consistent correspondence of anti-social personality orientation with sexual re-offence, noting that an anti-social “pattern of interpersonal function has been entrenched across his [the defendant’s] adult life” (p.14). Because the defendant had not yet demonstrated “sustained maturation of his interactional style” Dr Ellis concluded that the defendant needed on going treatment to continually address personality function.

21. [121]

    As to the substance abuse disorder, Dr Ellis commented that such disorders are “chronic, relapsing conditions” (p.12). The acquisition of drugs was regarded as a strong motivator for the defendant’s behaviour, with the use of such substances increasing impulsivity, emotional dysregulation, and anger, and impacting negatively upon the defendant’s maladaptive cognitive processes and his underlying ASPD.

22. [122]

    In terms of the defendant’s engagement with treatment and other rehabilitative programmes, Dr Ellis noted that the defendant’s participation appeared to have been mixed. Consistent with the observations of other clinicians and forensic psychiatrists, Dr Ellis observed that:

23. [123]

    Dr Ellis regarded the defendant as having the capacity to pronounce those sentiments of most benefit to him, albeit without genuinely adopting them. He warned,

24. [124]

    The doctor considered the history of the defendant’s interaction with psychologists and clinicians, and noted earlier expressions of remorse and a wish to rehabilitate from the defendant that turned out to be illusory.

25. [125]

    From a psychological report of March 1988 from C Drayden-Thompson (at tab 106 of Volume 2 of Exhibit EW-1):

26. [126]

    In 1999 the defendant attended counselling sessions and acted as a facilitator in a mentoring programme (Tab 108 of Volume 2 of Exhibit EW-1). His contribution was positively received:

27. [127]

    In another report of a similar nature, made in February 2000, only very shortly before the savagery of the index offences, the defendant was referred to thus:

28. [128]

    Dr Ellis commented that the defendant:

29. [129]

    Dr. Ellis concluded that the defendant:

30. [130]

    The defendant’s performance in the community since release and whilst subject to the ISO was regarded as a positive first step, although too short in duration to be a clear predictor of future conduct, particularly when set against the defendant’s lengthy history of dysfunctional and violent conduct.

31. [131]

    Dr Ellis regarded the key factor for the defendant’s conduct as his anti-social personality disorder, intertwined with his history of sexual and other violent offending. These were noted to be the factors most associated with future sexual offending (T4:31), with anger as a causal feature of both violent and sexual offending. Dr Ellis opined that “there would be a similar risk of a serious violent offence as to a serious sexual offence” (at T5:41), and a “moderate to high risk of committing a serious sexual offence” (at T5:45).

32. [132]

    The doctor saw some benefit to a CDO, being the capacity to attend a psychological programme directed at violent offenders, and the ability to undertake sex offender therapy maintenance, together with supervised leave in the community, but he noted that there is no evidence that lengthier incarceration has a positive impact on rehabilitation, or recidivism.

33. [133]

    Overall, although Dr Ellis conceded that minds could reasonably differ, he thought that close supervision in the community could reduce the risk of sexual and violent reoffending. He agreed however, that there remains a prospect that the defendant could, regardless of the level of supervision in the community, commit a serious sexual offence that could occur rapidly, and with catastrophic result.

34. [134]

    Like Dr Ellis, Dr O’Dea saw the defendant after his release from custody, on 28 October 2015. Similarly briefed to Drs Furst and Ellis, he took a history from the defendant and assessed him relevant to risk of the commission of serious sexual offending. He too noted the defendant’s capacity to portray himself in a positive light when he perceived it as advantageous to him to do so (at [67] of his report of 27 November 2015), specifically referring to the defendant’s attempt in interview with him to convey empathy, contrition and remorse in relation to the index offences, which Dr O’Dea regarded as “somewhat superficial” (at [77] of his report).

35. [135]

    At interview, the defendant was co-operative, although Dr O’Dea noted “flashes of anger” (at [77] of his report) at times. Having interviewed the defendant and considered the voluminous documentary record, Dr O’Dea concluded that the defendant has a Substance Use Disorder and a Personality Disorder with anti-social and psychopathic traits.

36. [136]

    He noted the defendant’s lack of empathy and callousness, and observed that his repeated history of offending was despite sanctions, incarceration, and supervision in the community. The doctor opined that the defendant’s pattern of substance abuse is one that is resistant to change, as is the nature of his dysfunctional interpersonal relationships, which are characterised by violent interactions with others.

37. [137]

    Commenting (as each of the forensic psychiatrists did) that the best predictor of future sexual offending is past sexual offending, Dr O’Dea thought that there was a significant risk that the defendant would engage in further sexual offending long term in the community without close supervision.

38. [138]

    He described the defendant as a man with very poor emotional and sexual controls and noted that, if he was placed in an opportunistic circumstance, he could readily “act on his sex drive without bringing into play important social and interpersonal constraints” (T45:21-22).

39. [139]

    Critical to preventing further offences in the doctor’s opinion was total abstinence from prohibited drugs and alcohol and close supervision in the community. Like Dr Ellis, Dr O’Dea thought that further time in custody was unlikely to alter the defendant’s risk profile, or appropriate risk management requirements.

40. [140]

    Dr O’Dea made the same observations as did Drs Furst and Ellis as to the defendant’s capacity to project an appropriate image of himself when it was of use to him to do so. When asked in evidence about the defendant’s expressions of remorse he said:

41. [141]

    He referred at (T38) to the defendant as “rehearsing the talk”, without meaningfully understanding the sentiments, or genuinely experiencing them.

42. [142]

    As to the prospect of supervision in the community adequately managing the risk posed by the defendant, Dr. O’Dea opined that a risk management plan could potentially provide for adequate and appropriate management of the defendant. He said:

Is Supervision Enough?

1. [143]

   The principal question for the Court to determine is whether adequate supervision will not be provided by an extended supervision order, such that a CDO should be made, as sought by the State. There is no issue that the defendant meets the threshold criteria in the Act and is a "high risk sex offender": s 5C(1). The issue that is in dispute is whether that risk can be managed in the community, formally, the question posed by s 5D(1).

2. [144]

   Having carefully, indeed anxiously, considered all of the evidence, I am not satisfied that supervision in the community pursuant to an ESO is adequate.

3. [145]

   The defendant has a lengthy history of significant offences of violence. That history alone, coupled with his failure over the years to respond to any form of restraint and supervision imposed upon him by the courts (such as bail, bonds, and parole) suggests that he poses a significant risk of serious sexual and other violent re-offending.

4. [146]

   The assessment undertaken of that risk assesses the defendant as presenting a moderate to high risk of sexual recidivism by reference to both static and dynamic risk factors. Whilst such assessments can hardly be a precise science, the weight of the evidence here suggests that the assessment is entirely justified.

5. [147]

   The weight of the psychiatric evidence is that his history in that regard derives to a great extent from his anti-social personality disorder, compounded by his substance abuse disorder. All of the psychiatric experts who gave evidence agreed that ASPD is a disorder which is treatment resistant and enduring. Whilst maturation may ameliorate the severity of the manifestation of the disorder, that is not necessarily so. At age 50, the defendant may have gained a degree of maturity, however there is no real way to judge that at the present time, particularly in light of his relapse into drug use as recently as mid-October 2015.

6. [148]

   A substance abuse disorder is also a chronic condition, with sufferers prone to relapse, as the defendant so recently did. Relapse in the defendant’s case could lead to catastrophic results.

7. [149]

   Although the forensic psychiatrists do not necessarily accept that insight is critical to rehabilitation – perhaps contrary to the perception of the criminal courts - it is accepted by them that the defendant has limited insight into his sexual offending. Such a lack of insight must at least have some impact on the defendant’s capacity to judge risk for himself, and thus to have recourse to protective behaviours.

8. [150]

   Additionally, his lack of insight is likely to contribute to his demonstrated unwillingness to undertake treatment programmes.

9. [151]

   Because of his refusal to fully engage in rehabilitative programmes whilst in custody the defendant has not had the full potential benefit that complete engagement offered; certainly Dr Furst believes that it is important that the defendant completes custody based maintenance programmes. His failure to undertake such programmes both adds to the risk posed by the defendant, and points to his continuing non-compliance.

10. [152]

    The defendant’s lack of compliance had another outcome not envisaged when the defendant was sentenced by the primary judge and resentenced by the Court of Criminal Appeal, that being the absence of a period of transition to parole, and then extended parole. Both courts structured the sentences imposed upon the defendant in such a way that it was anticipated he would have access to an extended period of supervised parole, with the usually precedent day release programmes a corollary, to aid him in the transition from institutional life to life in the community. That did not occur, and there is a very real possibility that the transition is too stressful for the defendant to cope without resort to drug use or other unproductive and risky behaviour.

11. [153]

    Since the evidence is that the defendant's sexual offending is probably linked to his high level of anger and violent response to any perceived threat to his sense of self, there must be a danger of the defendant becoming angry in the community as a result of the many minor slights and small injuries that can be experienced in daily life. Without the skills to mitigate such feelings, there is a clear and continuing risk of sexual recidivism.

12. [154]

    That the defendant used illicit drugs as recently as mid-October 2015, when judgment regarding the State’s application for an interim detention order was reserved, indicates clearly his continuing inability to comply with prohibitions on drug use, and remain drug-free. Any relapse into illicit drug use renders the defendant vulnerable to anti-social behaviour, and the community vulnerable to the consequences, consequences which, on the defendant’s history, can be severe.

13. [155]

    The defendant’s compliance with the ISO is a positive feature of his case which he relies upon to argue that an ESO will provide adequate supervision for him and adequate protection for the community. Whilst I do not dismiss his positive conduct lightly, and am concerned at possibly halting or adversely affecting the defendant’s rehabilitation, I have viewed his period of compliant conduct and positive work history in light of three factors. They are, the longstanding and apparently deeply entrenched nature of the defendant’s anti-social conduct; the treatment resistant nature of the disorders from which he suffers; and the defendant’s well documented capacity to present an acceptable, if completely superficial, self-image to others when he thinks there is benefit to him. I am very troubled by the likelihood that the defendant’s recent compliance is no more than a manifestation of his desire to remain out of custody, and would evaporate as soon as that end had been achieved by this Court making an ESO.

14. [156]

    I have given consideration to the fact that community based rehabilitation would or may benefit the defendant to a greater extent than custodial treatment, and to the potentially negative consequences to the defendant’s rehabilitation should he be returned to custody.

15. [157]

    Although the evidence is that individuals ordinarily respond better to community based treatment programmes, the differential, on the evidence, is very small. That potential benefit to the defendant’s rehabilitation is outweighed in my view by the risk he poses to the community. Whilst I accept that continuing detention may have no rehabilitative effect, nor will it have any adverse effect on the defendant’s rehabilitation (Dr Furst at (T59), it will however, serve to fully protect the community. The legislation mandates the primacy of the safety of the community.

16. [158]

    The defendant has demonstrated a capacity to sexually offend in a most serious way, without regard to legal restraint or the restraints of common humanity, with disastrous and likely life-long consequences for his victim.

17. [159]

    The gravity of the consequences of the risk posed by the defendant manifesting is very high indeed. Even if the risk of the defendant committing a serious sexual offence may be low, it has been recognised that a defendant may nevertheless pose an unacceptable risk pursuant to the statutory test: State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [94]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [16].

18. [160]

    The test in s 5B(2) is satisfied if there is a risk that the defendant will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order for the defendant’s continuing detention is made: State of New South Wales v Thomas (Preliminary) at [20]; State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [56]-[58]; State of New South Wales v Conway [2011] NSWSC 588 at [30]; State of New South Wales v KAS [2012] NSWSC 1139 at [6].

19. [161]

    Whilst his eight weeks of liberty gives some indication that the risk posed by the defendant may not manifest, there is a solid body of evidence of much more deeply entrenched and long lasting anti-social behaviour that suggests the contrary conclusion.

20. [162]

    Having considered the evidence before the Court, and having had regard to the matters referred to in s 17(4) of the Act, I am satisfied that adequate supervision will not be provided by an extended supervision order.

21. [163]

    Accordingly, I intend to make the orders sought by the State.

22. [164]

    I order that:

    1. (1)

       Pursuant to s 17(1)(b) of the Act the defendant be the subject of a high risk sex offender continuing detention order for a period of 12 months from the date of the order.

    2. (2)

       Pursuant to s 20(1) of the Act that a warrant issue forthwith for the committal of the defendant to a correctional centre for the period specified in Order (1) above.

    3. (3)

       Pursuant to ss 5C and 9(1)(a) of the Act the defendant, for a period of 5 years from the date of the expiry of the continuing detention order, be subject to an extended supervision order and, pursuant to section 11 of the Act direct that, for the period of the extended supervision order, the defendant comply with the conditions set out below in the Schedule to these Orders.

    4. (4)

       Any reports prepared for the purposes of Order 1 to be provided to any Corrective Services New South Wales officers involved in assessing, managing or supervising the defendant and any psychiatrist, psychologist and/or other health care practitioner involved in assessing, treating and/or counselling the defendant.