State of New South Wales v Cheney

1. [1]

   The State of New South Wales (“the State”), by its Amended Summons dated 19 August 2020, seeks an order that Roger Cheney (“the defendant”), be the subject of a Continuing Detention Order (“CDO”) for a period of two years pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (“the Act”). At the conclusion of the proceedings, the State maintained its prayer for this relief.

2. [2]

   In the alternative, the State sought an order pursuant to s 17(1)(a) of the Act that the defendant be subject to an Extended Supervision Order (“ESO”) for a period of five years, and that he comply with the specified conditions.

3. [3]

   The defendant opposed the CDO, but consented to the ESO being made with respect to him on the conditions sought and for the period of five years.

4. [4]

   It was not in dispute between the parties, both of whom appeared by counsel, that all pre-conditions to the making of either a CDO or an ESO have been met other than one.

5. [5]

   I accept these concessions, having regard to the evidence which has been filed.

Extent of Dispute

1. [6]

   The defendant puts in issue the satisfaction of this Court of the legislative requirement set out in s 5C(d) of the Act as following, namely whether:

2. [7]

   Once this threshold requirement is established by the State, the issue between the parties is whether, as provided for by s 17 of the Act, the Court should exercise its discretion to grant the application made by the State for a CDO. If it does not, then there is no dispute that the ESO as sought by the State should be made for the period nominated and on the conditions specified.

Legislative Provisions

1. [8]

   The relevant part of s 5(d) of the Act has been set out above. Section 17 of the Act is the other relevant legislative provision. It is in the following terms:

Factual Background

1. [9]

   The defendant was born in September 1985.

2. [10]

   He has a significant criminal history. In the period between June 1976 and August 1986, the defendant spent four and a half years in custody with respect to three separate instances of offending. The offences were essentially various counts of break, enter, stealing and robbery. These instances of early offending have no direct relevance to the issues presently to be considered.

3. [11]

   In July 1988, the defendant was arrested and charged in the Australian Capital Territory (“ACT”) with one count of assault with intent to have sexual intercourse, and four counts of sexual intercourse without consent, alleged to have been committed by him against an unknown adult female in the middle of the day in a nature reserve in Canberra.

4. [12]

   At trial, the defendant did not put in dispute the fact that the victim had been assaulted and raped. His defence was that he had been wrongly identified as the offender, and that he did not commit the offences at all.

5. [13]

   The defendant was convicted after a jury trial. It is unclear what the precise sentence was that he received. However, the defendant appealed his conviction to the Federal Court of Australia. That appeal took placed over five days in November 1990 and on 18 February 1991, a Full Court of the Federal Court delivered a judgment which allowed his appeal and quashed the convictions. A re-trial was ordered.

6. [14]

   The basis for the convictions being quashed was that the defendant had not had a fair trial because of the way in which the prosecution had adduced evidence from one of the witnesses. As well, the defendant contended that there was fresh evidence which pointed strongly to his being innocent of the charges and that he was not the perpetrator.

7. [15]

   On 27 March 1991, the Deputy Director of Public Prosecutions for the ACT filed a Notice in the Supreme Court of the ACT declining to proceed further with the prosecution of the five counts.

8. [16]

   The State submitted that although this instance cannot fall to be considered under the defendant’s criminal history, because there has been no conviction, nevertheless it constitutes information that the Court must have regard to, in accordance with s 17(4)(i) – being “any other information that is available as to the likelihood that the offender will commit a further serious offence”.

9. [17]

   I do not accept that proposition which carries implicitly within it, that the defendant committed these offences. The evidence does not permit any assessment to be made of the defendant’s alleged conduct on this occasion. Further, the principal issue at trial was identification. That is to say, it was the defendant’s case that he did not engage in the conduct alleged at all, and that the identification of him as the perpetrator was erroneous. There is no material available which would allow me on the hearing of these proceedings to make any evaluation as to whether the perpetrator of that sexual offence was the defendant, nor of the nature of the offence. Therefore it is not possible to draw any conclusion as to how that conduct may impact upon the likelihood of commission of a further serious offence if the defendant is released into the community.

10. [18]

    This episode must be put to one side for the purpose of the determination of the State’s application.

11. [19]

    In the time between being arrested for the ACT sexual assaults, and having his convictions quashed, the defendant was sentenced to further terms of imprisonment for various property offences and fraud offences. For these he served terms of imprisonment with the consequence that he was released from custody on 26 April 1991.

12. [20]

    One week after being released from custody, namely on 3 May 1991, the defendant was arrested, charged and later convicted after a judge alone trial of two offences. The first being maliciously inflicting actual bodily harm on an adult female victim with intent to have sexual intercourse with her, and also that he assaulted a police officer – occasioning actual bodily harm.

13. [21]

    The trial Judge described the first count as being a particularly serious one. He described the assault as being violent and that there was a strong circumstantial case that the defendant had sexually attacked that victim - although, as he pointed out, the defendant was not actually convicted of having sexual intercourse with the victim without consent. A sentence of 8 years imprisonment with a minimum non-parole period of 6 years was imposed and, having regard to the fact that the defendant had been on bail for various periods pending the trial, the sentence was backdated to commence on 8 December 1993. The defendant received a fixed term of imprisonment of 1 year for the charge of assaulting the police officer.

14. [22]

    Whilst on bail for these offences which I have just described, the defendant travelled to the Port Macquarie area with his then girlfriend.

15. [23]

    He was charged with five counts relating to an underage victim, “M”, which occurred on 21 November 1993. The counts arose from the fact that he entered the home, and then the bedroom, of “M”. He carried her outside and laid her on the ground. He touched her vaginal area and forced her to perform fellatio on him. He gave her a false name, told her not to tell anyone what had happened, and took her back into her bed.

16. [24]

    He returned on the evening of 27 November 1993, and again entered the house and bedroom of “M”. He attempted to remove her clothing – which she resisted. She screamed and ran into her parents’ bedroom. The police were called. The defendant had disappeared by the time they arrived.

17. [25]

    On 7 December 1993, the defendant committed two further offences in the Port Macquarie area, near where he was then living. On that evening, he entered a home unit and stole items. When he was seen and followed from the scene, he pointed a silver coloured revolver at the person following him and evaded being detained.

18. [26]

    On the following day, he committed five offences against a victim “A”. “A” was eight years old. The defendant was convicted of one count of taking and holding “A” for his advantage, three counts of sexual intercourse with “A” (who was under 10 years old) and one count of indecent assault.

19. [27]

    In the early hours of 8 December 1993, the defendant entered the bedroom of “A” and carried her from her house to a nearby grassed area. He indecently assaulted “A”, performed cunnilingus on her, forced her to perform fellatio on him and then had penile/vaginal sex with her, causing her actual injury.

20. [28]

    After the offences, he pushed “A” back through her bedroom window and told her to return to bed. “A” reported what had occurred to her parents.

21. [29]

    On 8 December 1993, after the assault on “A”, the defendant was seen by a police officer and a civilian running from the scene. During his attempted escape, he assaulted two male civilians. He was convicted of assault occasioning actual bodily harm with respect to each of those people.

22. [30]

    The defendant was sentenced by Kirkham DCJ on 22 June 1995. His Honour described the offences in this way:

23. [31]

    Kirkham DCJ went on to say:

24. [32]

    Kirkham DCJ imposed individual sentences for each of the counts upon which the defendant was convicted.

25. [33]

    On 7 October 1999, the Court of Criminal Appeal overturned the jury’s conviction on one of the counts related to the entry into a dwelling house with intent to commit a felony. As well, it upheld an appeal against a sentence imposed by Kirkham DCJ for the count of taking “A” with intent to hold her for advantage.

26. [34]

    The Court of Criminal Appeal resentenced the defendant by imposing a head sentence of 25 years imprisonment commencing on 22 June 1995 and expiring on 21 June 2020 with an effective non-parole period of 17 years commencing at the same time and expiring on 21 June 2012.

27. [35]

    The defendant has remained in custody since that time.

28. [36]

    For many years whilst in custody, the defendant declined to participate in any jail-based rehabilitation programs. On a number of occasions after 2012, consideration was given by various bodies to the defendant’s release on parole. He has never received a grant of parole.

29. [37]

    It seems that, by about 2016, the defendant’s attitude to undertaking courses shifted. In August 2016, the defendant indicated his willingness to undertake the EQUIPS addiction program when a place became available. In April 2017, the defendant indicated his willingness to be assessed for a sex offender program. In August 2017, the defendant participated in the EQUIPS addiction program and completed it satisfactorily. He was placed on the wait list for the “Deniers Program”, although he has never undertaken that program.

30. [38]

    On 7 March 2018, the defendant commenced having individual sessions with Dr Richard Parker, a psychologist from the Serious Offender Assessment Unit. By September 2019, the defendant had participated in 29 such sessions. He has continued to engage in these sessions with Dr Parker regularly since then.

31. [39]

    In July 2019, both the Serious Offenders Review Counsel (“SORC”) and Community Corrections recommended that the defendant be released to parole. However, a supplementary report of SORC dated 22 October 2019 contains this advice to the State Parole Authority:

32. [40]

    It is necessary to note that whilst this supplementary report of SORC has been placed before the Court, the underlying material to which the extract immediately above refers forms no part of the evidence before this Court, and the State does not rely on any such material as being relevant to the consideration of this application.

Opinion of Dr Richard Parker

1. [41]

   Dr Parker is a senior specialist psychologist employed by Corrective Services NSW. In his present role he is responsible for preparing risk assessments for use in applications to this Court under the Act. He also provides direct psychological services to a small number of both violent and sex offenders who are in custody.

2. [42]

   Dr Parker, in an affidavit of 12 May 2020, records that since 27 September 2009, he had conducted 37 sessions with the defendant. Dr Parker first set out his views and conclusions in a report dated 27 September 2019. He noted in his affidavit that his views had not changed since that time. He is of the view that the defendant had made good therapeutic gains but that, as is obvious, those gains could only ultimately be tested in the community.

3. [43]

   Dr Parker did not regard the failure of the defendant to participate in and complete the Denier’s Program as being of any relevance. That was because he did not see any additional benefit to the defendant in completing that program.

4. [44]

   Dr Parker described the programme in which he had engaged with the defendant as being one of Cognitive Self-Change. Of it, he said this:

5. [45]

   Dr Parker concludes his affidavit with this:

6. [46]

   Dr Parker prepared a Risk Assessment Report which was dated 27 September 2019. It was prepared in anticipation of an application being made by the State pursuant to the Act.

7. [47]

   Dr Parker’s Report of the risk assessment process is an attempt to assess the risk posed by the defendant. He used a series of commonly used instruments. Dr Parker summarised the instruments saying:

8. [48]

   Dr Parker expressed the following conclusions:

9. [49]

   Dr Parker was called to give oral evidence. He adhered to his report, notwithstanding the two other expert reports and opinions from Ms Dewson and Dr Furst.

10. [50]

    Dr Parker expressed the view that whilst he could not exclude sexual deviancy as being the underlying motivation for the offences in which the defendant engaged, he did not consider it a likely motivation.

11. [51]

    Dr Parker’s view, which was challenged by the State, was that it was likely that the defendant would abide by the laws and obligations upon release.

12. [52]

    He said this:

13. [53]

    One matter of importance to both Ms Dewson and Dr Furst was what they described as the persistent and pathological denial by the defendant of his guilt of the offences of which he had been convicted, and for which he was serving the lengthy terms of imprisonment.

14. [54]

    Dr Parker gave this evidence:

15. [55]

    Dr Furst expressed the view that there was a high likelihood of breaches of supervision and monitoring provisions based upon the defendant’s past failure to adequately comply with conditions of supervised liberty in the community whether on bail or parole.

16. [56]

    Dr Parker expressed the view that that was a matter upon which he had focussed in his sessions with the defendant and went on to say:

17. [57]

    Dr Parker was also asked whether there was any benefit for those observing and treating the defendant to monitor his performance whilst he participated in the Denier’s Program. Dr Parker remained unconvinced that there was anything to be identified in the course of such monitoring which would add to the store of knowledge about the defendant which had been gathered over the past 25 years or so that he had been in custody.

18. [58]

    In the course of giving a very long answer on a related topic, Dr Parker described his work with the defendant in these terms:

19. [59]

    Dr Parker made the point that he had been and was continuing in his treatment of the defendant to teach him the skill of “self-change”.

20. [60]

    Dr Parker emphasised that in his sessions with the defendant he was teaching him how to examine his thinking and how to do his own cognitive restructuring process so that he is given the skills to deal with any situation which might arise and resolving it in accordance with appropriate rules.

Ms Chelsey Dewson

1. [61]

   Ms Dewson was appointed by this Court to examine the defendant. Her report is dated 17 July 2020.

2. [62]

   Her report was based upon a single interview with the defendant which occupied a little under two and a half hours.

3. [63]

   After reviewing the defendant’s criminal history and his time in custody, Ms Dewson expressed the view that he had outstanding treatment needs which had not been addressed by Dr Parker’s individual treatment. She was concerned that the defendant had yet to address sexual self-regulation, engaging in social skill development to form pro-social peer relationships and to develop plans on how to maintain a health and future-focussed life. Ms Dewson concluded that in the absence of treatment which addressed those needs, the defendant could not be considered yet as a “treated offender”.

4. [64]

   Ms Dewson discussed with the defendant his views as to how he might maintain or facilitate a healthy sex life whilst in the community. She concluded that his present strategy of intending to remain abstinent in the community until such time as he entered a committed adult relationship was both ineffective and unhealthy, although it is not clear why Ms Dewson arrived at that conclusion. However, she noted that the defendant would likely benefit from professional support to understand the importance of meeting his sexual wants appropriately.

5. [65]

   She suggested that he should develop management plans, with assistance, so that he could successfully meet any sexual wants or needs which he had in the future.

6. [66]

   Ms Dewson undertook a risk assessment using tools similar to those which Dr Parker had used. She arrived at generally consistent results with respect to the assessment of his risk of committing future offences.

7. [67]

   Ms Dewson concluded that, on the basis of the information that she had, the defendant likely “… experienced deviant sexual arousal prior to his offending episode”.

8. [68]

   Ms Dewson went on:

9. [69]

   Ms Dewson noted that prior to entering his current period of custody, the defendant had a poor history of compliance with supervision in the community. She noted that he appeared to be compliant with supervision within custody although, as is clear, that is a contained environment.

10. [70]

    Ms Dewson expressed this conclusion:

11. [71]

    Ms Dewson accepted that there was scope for the defendant to reduce his risk by mitigating and managing identified dynamic risk factors. She noted that he was currently open to engaging in individual-based intervention. Ms Dewson then expressed this conclusion:

12. [72]

    Ms Dewson did not think that the defendant ought be at large in the community without some form of supervision.

13. [73]

    Ms Dewson said that she was not familiar with the cognitive self-change program that Dr Parker had engaged in, and said that having looked at the matter, she thought that it shared some features of similarity with the Denier’s Program.

14. [74]

    Ms Dewson was asked to express a view as to whether any risk arising from the defendant’s behaviour could be managed in the community under an ESO. She said:

15. [75]

    In her oral evidence, Ms Dewson placed significance on the defendant completing the EQUIPS Foundation program. She said that if it was not available in the community, and his treatment needs remained outstanding, then the only foreseeable option would be for him to have those treatment needs met in custody.

16. [76]

    Ms Dewson expressed a concern that there was a lot of information which was unknown in the defendant’s case particularly with respect to his sexual interest impulses and behaviours. This was largely because he denied engaging in the conduct in the Index offences. Hence, she suggested that he would benefit from treatment to discuss how he would meet his sexual impulses appropriately in the future. She described the nature of treatment which he needed in the following terms:

17. [77]

    Ms Dewson was specifically asked about, and she agreed with, Dr Furst’s opinion that there was a high likelihood of breaches of supervision and monitoring if the defendant was released into the community under supervision. She said that she did not share the same confidence in terms of the preface “high”. That was because the defendant had engaged in treatment during which he had been challenged about his anti-authority attitudes. She thought that whilst his past behaviour suggested that he was still at risk of breaching supervision orders, she was not prepared to say that it would be highly likely.

18. [78]

    She could not give a definitive answer as to what the likelihood was, if any, of future breaches of supervision. However, she confirmed that her view was that there was still a likelihood, but that given the fact that the defendant had engaged in treatment known to be of assistance to him to reduce the risk of those breaches, she could not express any concluded view.

Expert Opinion of Dr Furst

1. [79]

   Dr Furst concluded that the crimes in which the defendant had engaged in 1991 and 1995 were most likely sexually motivated, had features of sadism which may well have had a significant degree of sexual deviance or offence‑related cognitive distortion.

2. [80]

   Dr Furst accepted, as is plain, that the defendant’s risk factors in relation to sexual offending are mostly historical, although he noted that static risk factors do not generally change over time. However, he did accept that where a person has turned 60, there is a slight risk in static re-offending factors. He thought that there were four particular dynamic risk factors which would exist if the defendant was released into the community. They were:

3. [81]

   Dr Furst was of the firm view that the defendant’s risk of committing further serious offences was not a risk which could be managed in the community under an ESO. His answer included these features:

4. [82]

   In a different part of his report, Dr Furst expressed his view this way:

5. [83]

   However, Dr Furst did go on to say that his view was that the available scientific evidence did not support the likely success of any of the programs on offer in custody as being likely to directly improve the defendant’s risk factors. However, he thought that such programs may provide an opportunity for clinicians and agencies charged with The defendant’s care to:

6. [84]

   In his oral evidence, Dr Furst adhered to his view and it became clear he placed significant reliance upon the fact that the defendant denied his involvement in any of the offences. He also made it clear that he did not think that the passage of time since the defendant had been incarcerated, and his maturing years, had any mitigating affect upon his risk profile. He said this:

7. [85]

   The further oral evidence of Dr Furst made it plain that he gave considerable weight to the fact that the defendant continued to deny his offences. It appeared from two further answers. They were:

Victim Statement

1. [86]

   Pursuant to s 21A of the Act, a statement was provided by a victim of one of the defendant’s offences. The victim did not consent to the statement being disclosed to the defendant. Having regard to the contents of it, it was not possible for me to disclose to the defendant the substance of the statement because, in my view, that would have led to the identification of the victim as the person who made the statement: s 21A(7)(b) of the Act. Accordingly, I did not do so.

2. [87]

   I have had regard to the statement as part of the overall evidence relied upon by the State. However, it seems to me that it is of little weight. That is because of the length of time which has passed since the defendant committed the offences, the absence of any contact at all between the defendant and this or any other victim, the lack of knowledge of the particular victim who made the statement of the range of matters which have been discussed by the experts, and the fact that the victim would not permit the defendant to see the statement.

Discernment

1. [88]

   I must first consider whether the State has established each of the four matters set out in s 5C of the Act.

2. [89]

   As earlier remarked, the defendant concedes that the State has established the first three of those pre-conditions and they do not need to be further considered. I am satisfied that the evidence establishes those matters.

3. [90]

   The final matter to be established before considering whether or not the Court can make a CDO is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention.

4. [91]

   Here, there is material which satisfies that criteria. I do not understand the defendant to contend that the available material does not establish this.

5. [92]

   The following matters, which are clearly established, support a conclusion of the kind set out in s 5C(d) of the Act. First, the defendant’s previous criminal conduct; secondly, the lack of any testing of such treatment as the defendant has had whilst in custody so as to assess its effectiveness if the defendant is released having regard to his background of failing to comply with supervision obligations; and, finally, the static risk assessment and dynamic risk assessments undertaken by each of the three experts – Dr Parker, Ms Dewson and Dr Furst.

6. [93]

   I do not have to be satisfied that it is more likely than not that the defendant will commit a further serious offence. The evaluation exercise necessary for s 5C(d) can reach a state of satisfaction of the high degree of probability of posing an unacceptable risk where, even though the risk is small, the possibility of significant harm exists.

7. [94]

   Having regard to the defendant’s past history and the fact that he has not been released on parole and therefore has had no time in the community, I am satisfied that he poses an unacceptable risk of committing another serious offence if he is not kept in detention. I am satisfied of that to a high degree of probability.

8. [95]

   However, this does not mean that a CDO must be ordered. It is now necessary to turn to a second evaluation, namely, to take into account all of those mandatory matters to which s 17 refers, and any other relevant matters in order to determine, in the exercise of my discretion as engaged by s17(1) of the Act what course should be followed..

9. [96]

   In the exercise of this discretion, I keep in mind that the safety of the community is the paramount consideration for any decision of the kind with which I am confronted: s 17(2) of the Act.

10. [97]

    I have taken into account and considered all of the matters set out in s 17(4) of the Act. To the extent that any of them are of significance in my evaluation, I have referred to them.

11. [98]

    One of the matters to which the plaintiff pointed as supporting a conclusion that a CDO ought be ordered was that the defendant had not completed a Denier’s Program. According to the affidavit of Ms Daniele Matsuo, the Director of State-wide programs in Corrective Services, a Denier’s Program takes about six months to complete – with an individual participating for about five hours per week. The sessions for the participants are done in a group, which is intended to remain of the same composition throughout the whole program. Ms Matsuo says that on current indications, the next Denier’s Program is not likely to commence until late 2021 “… or later depending upon the number of individuals on the wait list”. There needs to be 10 to 12 individuals on the wait list before a program will be made available.

12. [99]

    I have no confidence that a Denier’s Program would be available to the defendant if a CDO was made, as sought, for a period of two years. As well, the effectiveness of such a program is, on the evidence before me not demonstrated. The possible availability of this program which may or may not be effective is not a reason to impose a CDO thereby making it available to the defendant.

13. [100]

    Ms Matsuo, who does not seem to have met or interviewed the defendant, nevertheless, identifies what she says are a number of outstanding treatment needs for the defendant. She says that these needs could be assisted by participation in two programs, one of which is only available in custody and the other of which is available both in custody and within the community.

14. [101]

    Ms Ahern, who is the Chief Psychologist of Intensive Therapeutic Programs, in her affidavit, explains the two programs referred to by Ms Matsuo. She notes that each of the two programs would take about 10 weeks to complete. Ms Ahern also notes that if the defendant was released into the community, he might be able to attend the Forensic Psychology Service and engage in one-on-one risk management sessions with a psychologist. As with all programs, this is contingent upon resource constraints.

15. [102]

    The Risk Management Report was prepared with respect to the defendant by a community corrections officer in November 2019. It was prepared for the purposes of this Act, and any application made under it.

16. [103]

    It is unnecessary to record all that is there noted. However, it seems clear that there are readily available strategies and resources to manage the defendant adequately in the community.

17. [104]

    The evidence led on behalf of the plaintiff does not establish that a CDO for the period sought (two years) would mean that there would be an identified program of treatment in custody for the defendant which the Court could have confidence would be available and which the Court could have confidence would be likely to mitigate the risks with which the defendant currently presents. Simply keeping the defendant in custody for another two years without an adequate assurance of a firm program of future treatment is not likely to address the risks with which the defendant presents.

18. [105]

    Whilst, in the short term, during his custodial period, that order would protect the community, it ultimately will not achieve that as a lasting result.

19. [106]

    As well, there remain issues with the defendant being required to complete the suggested programs in custody as a condition prior to release: one of the three programs suggested has unproven efficacy; one of the programs suggested is also available in the community; and the third program consists of 20 hours of treatment dealing with a disparate range of subjects. In regards to this third program, it seems to me the one-on-one treatment which the defendant has received from Dr Parker is of a similar nature, and this is the kind of treatment which the defendant could receive (although in a different way) when living in the community from the Forensic Psychology Service.

20. [107]

    It is regrettable that the Court is presented with an application for a CDO or alternatively an ESO in circumstances where the defendant has not had an opportunity to be released into the community on parole and to be observed with respect to his conduct whilst on parole. It is inappropriate for me to comment upon whether the denial of parole to the defendant was or was not appropriate. However, the fact that the defendant has not had parole, and therefore has not been tested in the community, is not a matter which ought, without more, tell against the exercise of the discretion by this Court. The Court is called upon to consider the way in which, as a matter of discretion, the risks posed by the defendant can be managed so as to promote the paramount consideration of the Act.

21. [108]

    I am unpersuaded by the State that a CDO ought be made. The defendant has been in custody for a very long period of time. He has been a model prisoner. To the extent that there are any custodial incidents recorded, they are of a minor nature and they are many years old. They do not tell against his capacity to comply with conditions on an ESO.

22. [109]

    The paramount consideration of community protection is not always, and only, capable of being addressed by imposing a CDO. On the contrary, the object of protection of the community can be addressed by an ESO which is capable of managing the risks posed by a defendant upon release, thereby ensuring that he is capable of resuming an offence free life.

23. [110]

    I prefer the expert opinion of Dr Parker to those of Ms Dewson and Dr Furst. I found Dr Furst’s wholehearted reliance on the behaviour of the defendant before he was brought into custody over 25 years ago to be unpersuasive. I am of the view, as Dr Parker indicated, that the defendant has on the probabilities come to realise how he can behave in the community without committing any further offences, through maturation, the effects of incarceration and the benefits provided by Dr Parker’s interventions. I find Ms Dewson’s concentration on the need for the defendant to participate in the Denier’s Program, and her adherence to the view that it was appropriate because even if it did not provide him with any benefit, it might assist others in understanding the defendant’s behaviour, to be an unsatisfactory way of considering the matter.

24. [111]

    As well, it seems to me that the defendant’s denial of his criminal conduct, whilst constant and long-standing, is nevertheless unlikely to indicate that he will not change his behaviour.

25. [112]

    In all of the circumstances, and having regard to all of the evidence, I am not prepared to order a CDO as a matter of discretion. This is a case in which it seems to me the defendant is entitled to be released into the community and this ought be done under supervision which is best imposed pursuant to an ESO, which is not opposed.

Orders

1. [113]

   I make the following orders:

   1. (1)

      Order pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that Roger David Cheney be subject to an Extended Supervision Order for a period of five years.

   2. (2)

      Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 that Roger David Cheney for the period of the Extended Supervision Order to comply with the conditions set out in the Schedule to the Amended Summons filed 19 August 2020.

   3. (3)

      Order that access to the file of the Supreme Court shall not be granted to a non-party without the leave of a Judge of the Court.

   4. (4)

      Order that prior to any access being granted to a non-party, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to such access application.

   5. (5)

      Amended Summons filed 19 August 2020 otherwise dismissed.