New South Wales Supreme Court CITATION : Attorney General for the State of New South Wales v Hayter [2007] NSWSC 1146 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 25-28 September 2007 JUDGMENT DATE : 16 October 2007 JURISDICTION : Common Law Division JUDGMENT OF : Hislop J DECISION : (1) I order that Warren Graeme Hayter be detained in a correctional centre for six months from today. (2) Pursuant to s 20(1) of the Act, I issue a warrant for the committal of Warren Graeme Hayter to a correctional centre for the duration of the continuing detention order in order 1 above. LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 Crimes Act Attorney General for the State of New South Wales v Tillman [2207] NSWSC 605 CASES CITED : Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071 Attorney General for the State of New South Wales v Cornwall [2007] NSWSC 1082 TSL v The Secretary of the Department of Justice [2006] VSCA 199 PARTIES : Attorney General for the State of New South Wales (Plaintiff) Warren Graeme Hayter (Defendant) FILE NUMBER(S) : SC 14210/07 COUNSEL : P. Menzies QC/D. Kell (Plaintiff) C. Loukas (Defendant) SOLICITORS : Crown Solicitors Officer (Plaintiff) Catherine Hunter (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HISLOP J Tuesday 16 October 2007 14210/07 ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v WARREN GRAEME HAYTER JUDGMENT Introduction 1 The plaintiff has applied, by summons, for an order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act") that the defendant be detained in a correctional centre for one year from the date of the order or, in the alternative, an order pursuant to s 17(1)(a) of the Act that the defendant be subject to extended supervision for a period of five years. 2 Section 14(1) of the Act provides: "The Attorney General may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre: (a) whilst serving a sentence of imprisonment by way of full time detention: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or pursuant to an existing continuing detention order…" 3 The defendant was in custody at the time the application was made, serving a sentence of three years three months imprisonment by way of full time detention for an offence under s 61M(1) of the Crimes Act 1900. The offence is a serious sex offence (s 5(1) of the Act) and the defendant is a "sex offender" as defined in s 4 of the Act. The sentence was pronounced on 4 February 2005. The head sentence expired on 28 September 2007 and the non parole period of two years on 28 June 2006. 4 On 26 September 2007 I made an interim detention order under s 16(1) of the Act, by consent, for a period of 28 days effective on and from 28 September 2007 or until the determination of the plaintiff's claims for relief. 5 Section 17(1)-(3) of the Act provides: "(1) The Supreme Court may determine an application for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order." 6 Section 17(4) provides that the Supreme Court, in determining whether to make a continuing detention order, must have regard to certain listed matters in addition to any other matter it considers relevant. 7 The objects of the Act are stated in s 3 in the following terms: "The objects of this Act are to provide for the extended supervision and continuing detention of serious sex offenders so as: (a) to ensure the safety and protection of the community, and (b) to facilitate the rehabilitation of serious sex offenders." 8 Section 21 of the Act provides: "Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings." See also s 25(3) of the Act as to the admissibility of certain documents. The evidence The defendant and his record 9 The defendant is a single man, born on 29 October 1963. He was adopted when three weeks old. He completed year 12 at high school. He allegedly suffered sexual abuse as a child. His working career has been interrupted by significant periods of imprisonment. At an early age he married. The marriage failed after a few years. There were apparently children of the marriage but the defendant has no contact with them or his ex-wife. 10 The chronology of the defendant's offences, convictions and custody is as follows: DATE EVENT 17 March 1981 Convicted of trespass. Oberon Court of Petty Sessions. Sentenced to $40 fine or 48 hours hard labour. 21 September 1982 Convicted of malicious kill cattle (shoot goat). Oberon Court of Petty Sessions. Sentenced to $200 fine or 8 days hard labour. 6 May 1984 Date of sex offence for which defendant was convicted on 1 November 1985 in District Court at Bathurst. Victim was an 8 year old boy. (Defendant subsequently called up for sentencing for this offence on 27 February 1986, following breach of recognizance.) 17 July 1984 Date of two of the sex offences for which defendant was convicted on 5 November 1984 in Bathurst Court of Petty Sessions (victims were a 7 year old boy and an 8 year old boy) 18 July 1984 Date of third sex offence for which defendant was convicted on 5 November 1984 in Bathurst Court of Petty Sessions (victim was an 11 year old boy). Convicted of: 1. Attempt to commit act of gross indecency on male (7 year old boy) 2. Attempt to commit act of gross indecency on male (8 year old boy) 3. Attempt to commit act of gross indecency on male (11 year old boy) 5 November 1984 Bathurst Court of Petty Sessions (Webster SM). Convicted. Sentences: 1. Sentence deferred on entering recognizance self $300 and to be of good behaviour 2 years (to expire 5.11.86), supervision Probation & Parole Service, s 558 recognizance entered. 2. Fine $250 or 10 days hard labour. 3. Sentenced to the rising of the court. 21 May 1985 Convicted of receiving. Oberon Local Court. Fined $150 or 6 days hard labour. 1 November 1985 Convicted of commit act of indecency with person under 16 years old. Bathurst District Court (Judge Shillington). Sentence deferred upon defendant entering in self recognizance $300 to be of good behaviour for 3 years, accept supervision by Probation and Parole, obey all reasonable directions and continue with treatment under Dr Jolly and see him on a regular basis as Dr Jolly requires. 6 November 1985 Date of sex offence for which defendant was convicted and sentenced at Parramatta Local Court (victim was an 11 year old boy) 2 December 1985 Convicted of receiving. Oberon Local Court (Magistrate Forsyth). Fined $250. 17 December 1985 Convicted of attempt to procure male person under 18 years of age. Parramatta Local Court (Magistrate Fitzpatrick). Sentenced to imprisonment for 4 months (commencing 8.11.85 and concluding 7.3.86) Defendant called up for sentencing for offence for which convicted on 1 November 1985. Breach of recognizance entered into on 1 November 1985 (by reason of the conviction at Parramatta Local Court of further sex offence committed on 6 November 1985). Defendant called up for sentencing before Judge Shillington. 27 February 1986 Sentenced to imprisonment for 3 years on first offence (commencing from 27.2.86) with a non parole period of 18 months. Subsequently, with remissions, released to probation on 18.3.87. Breach of recognizance Bathurst Local Court (Magistrate Webster). 3 March 1986 Sentenced to imprisonment for 2 years (commencing 3.3.86 and concluding 2.3.88; non parole period 18 months concluding on 2.9.87) Convicted of assault (s 495). Sentenced to imprisonment for 6 months. 18 March 1987 Defendant released to probation (after remissions) and subject to a probation order with supervision to expire on 26 February 1989. 19 September 1987 Date of first sex offence in respect of which defendant convicted on 19 November 1987 in District Court at Forbes - 12 year old boy. Offence committed while defendant on probation after release on parole in March 1987. 21 September 1987 Date of second sex offence in respect of which defendant convicted on 19 November 1987 in District Court at Forbes - same 12 year old boy. Offence committed while defendant on probation after release on parole in March 1987. 25 September 1987 Defendant received back into custody - bail refused. Convicted of: 1. Commit act of indecency on person under the age of 16 years; 2. Commit an act of indecency on person under the age of 16 years (Crimes Act, s 61E(2)) Offences committed on 19.9.87 and 21.9.87 (victim was a 12 year old boy; same victim for both offences) 19 November 1987 Defendant pleaded guilty. Forbes District Court (Judge Freeman). Sentenced to: 1. Imprisonment for 2 years re first offence (commencing 25.9.87 and to expire on 24.9.89) 2. Imprisonment for 2 years re second offence (commencing 25.9.89 and to expire on 24.9.91) (ie sentences cumulative and 4 years in total). Judge declined to set a non parole period. Convicted of: 1. Attempt to escape; 2. Assault; 3. Malicious damage. 19 May 1989 Wollongong District Court (Judge Badgery-Parker). Sentenced to: 1. Imprisonment for 6 months (cumulative), non parole period 3 years 5 months commencing 19.5.89 concluding 18.10.92; 2. Imprisonment for 18 months (concurrent); 3. Imprisonment for 6 months (concurrent with 1 and 2) Convicted of: 1. Wilfully expose a child under the age of 16 years to an indecent act (2 charges); 2. Indecent dealing with a child under 16 years; 3. Wilfully expose a child under the age of 16 years to an indecent photograph (2 charges); 4. Indecent dealing with a child under 16 years (2 charges); 5. Indecent assault with circumstances of aggravation (between 1 & 30.11.92); 6. Permit himself to be indecently dealt with by a child under the age of 16 years (between 1 & 30.11.92); 7. Wilfully expose a child under age of 16 years to an indecent video tape (on 13.12.92); 8. Attempt to procure child under the age of 12 years to commit an indecent act (between 1, 2 & 30.9.92); 9. Wilfully expose a child under the age of 12 years to an indecent act (between 1, 2 & 30.9.92); 10. Wilfully expose a child under the age of 12 years to an indecent video tape (5 charges); 11. Indecent dealing with a child under 12 years (6 charges). 24 February 1993 Brisbane District Court, Queensland (Judge Hoath). Sentenced to: 1. Imprisonment for 3 years on each charge; 2. Imprisonment for 3 years; 3. Imprisonment for 2 years on each charge; 4. Imprisonment for 3 years on each charge; 5. Imprisonment for 5 years; 6. Imprisonment for 3 years; 7. Imprisonment for 2 years; 8. Imprisonment for 5 years; 9. Imprisonment for 5 years; 10. Imprisonment for 2 years on each charge; 11. Imprisonment for 5 years on each charge. All sentences to be served concurrently. Terms of imprisonment to commence from 14.12.92. To be considered for parole after 2 years. 25 February 1993 Convicted of possession of nunchuka without lawful excuse. Brisbane Magistrates Court. Fined $250. Convicted of: 1. Stealing (2 charges) 2. False pretences (2 charges) Date of offences 8 and 12 December 1992. 10 March 1993 Brisbane Magistrates Court. Sentenced to: 1. Imprisonment for 6 months on each charge (1st charge cumulative on term of existing term of imprisonment for 5 years); 2. Imprisonment for 6 months on each charge (concurrent). Appeal dismissed by Qld Court of Appeal but non parole period of three months set and to be added to the non parole recommendation in respect of the sentences imposed on 24.2.93 for the sex offences - and thus total non parole period of 2 years 3 months (ie 13.3.94). 9 February 1996 Convicted of escape legal custody (on 19.1.96). Townsville Magistrates Court. Sentenced to imprisonment for 9 months (cumulative). 23 June 1999 Convicted of unregistered vehicle. Elizabeth Magistrates Court, South Australia. Fined $174. 17 October 1999 Date of sex offence for which defendant convicted by District Court of South Australia on 20 February 2001. 21 October 1999 Convicted of larceny. Adelaide Magistrates Court. Fined $324. 7 April 2000 Warrant of apprehension issued in South Australian Magistrates Court (Deputy Registrar Haig) 23 May 2000 Defendant arrested in NSW in respect of South Australian sex offence on first instance warrant - remanded in custody and extradited to South Australia. 20 February 2001 Convicted of unlawful sexual intercourse. Victim a 14 year old boy. District Court of South Australia at Adelaide (Judge Anderson). Pleaded guilty. Sentenced to imprisonment for 3 years (commencing 23.5.00 and expiring 22.5.03) with an 18 month non parole period (expiring 22.11.01) 22 November 2001 Defendant released on parole from Port Lincoln Prison in South Australia. Upon release defendant is arrested by South Australia Police on first instance warrants and placed before a Justice of the Peace at Port Lincoln - and then remanded in custody until 26 November 2001 for extradition proceedings before a magistrate at the Adelaide Magistrates Court. On 26 November 2001 defendant was released into the custody of NSW Police - and then remanded to appear at Central Local Court on 27 November 2001. 26 November 2001 Defendant released (by SA authorities) into the custody of NSW Police - and then arrested and remanded to appear at Central Local Court on 27 November 2001 28 November 2001 Defendant recorded as being in custody in NSW 10 April 2002 Defendant in Parklea Correctional Centre 21 May 2002 Defendant released from NSW gaol custody (where had been on remand since 26.11.01 - NSW charges in relation to same victim as subject of the SA conviction not proceeded with) 10 July 2002 Defendant living in Wagga Wagga 17 July 2002 Defendant registers at Albury under the Child Protection (Offenders Registration) Act 2000. 29 July 2002 South Australia Parole Board issues extradition warrant to be brought back to South Australia to appear before the Parole Board. 14 March 2003 Defendant arrested by NSW Police on warrants and charged (kept in custody - period to be specified) 28 February 2004 Defendant released from NSW gaol custody. 21 June 2004 Date of index offence (at Ollie Web Reserve, Parramatta) 29 June 2004 Defendant arrested in respect of index offence - remained in custody from this date. 4 February 2005 Convicted of aggravated indecent assault on a victim under the age of 16 years (s 61M(1), Crimes Act 1900). Victim a 12 year old boy. Parramatta District Court (Judge Delaney). Defendant pleaded guilty. Sentenced to imprisonment for 3 years 3 months with a non parole period with conditions of 2 years (commencing 29.6.04 and non parole period concluding 28.6.06; head sentence to expire on 28.9.07) 27 April 2006 NSW State Parole Authority indicates intention to refuse parole for defendant. 28 June 2006 Non parole period for current offence expires. 30 March 2006 Defendant transferred from Junee Correctional Centre to Goulburn Correctional Centre. 19 January 2007 Defendant commences CUBIT programme. 26 April 2007 NSW State Parole Authority indicates intention to refuse parole for defendant. 25 May 2007 Defendant refused parole. 28 September 2007 Full term of defendant's current sentence due to expire. Nature of the offences 11 Details of the recorded offences were contained in documents before the Court. It is unnecessary to detail each of the offences, suffice it to say that Dr Allnut concluded "given his history of offending and relatively stable modus operandi it would be reasonable to be of the view he falls into a group of sex offenders who [are] at risk of attracting another conviction within six months to a year after release for a further sexual offence; in that the sexual offences would likely involve some form of grooming behaviour with vulnerable males between the age of 11 and 15 involving oral sex, touching, anal sex or masturbation with them." Additional offences by the defendant 12 There was uncontradicted evidence that the defendant had acknowledged committing further sexual offences for which he had not been charged or convicted. This was consistent with the evidence of Dr Samuels that past offending, by record, generally underestimates the amount of offences committed. The defendant's compliance with previous court orders 13 The defendant has a history of non-compliance with parole, bail and supervision orders as follows: revocation of bail for breach of conditions in 1984; the defendant entered into a recognizance under s 558 of the Crimes Act in respect of the offences for which he was convicted on 5 November 1984. He committed a serious sexual offence during the period of the recognizance. The breach of recognizance was admitted on the court file; in November 1985 the defendant failed to comply with the direction of the Probation and Parole Service to remain in the Bathurst/Oberon area (and instead travelled to Sydney and committed an offence at Parramatta). The bond that the defendant had entered into had, relevantly, required him to accept the supervision and guidance of the Probation and Parole Service and obey all reasonable directions; on 1 November 1985 the defendant entered into a District Court recognizance at Bathurst to be of good behaviour for three years. Five days later and in breach of the recognizance, the defendant committed a further sex offence at Parramatta. The defendant was called up for sentencing for breach of recognizance and breach of the recognizance was admitted; on 18 March 1987 the defendant was released from Cooma gaol on parole and subject to a parole order with supervision that was to expire on 26 February 1989. Notwithstanding that he was subject to the parole order until 26 February 1989, on 19 and 21 September 1987 the defendant committed sex offences for which he was subsequently convicted and sentenced; a number of the sex offences for which the defendant was convicted and sentenced on 24 February 1993 in Queensland occurred after the defendant had been arrested and released on bail in respect of other sex offences; after his release from gaol in South Australia, the defendant moved to New South Wales in circumstances that involved a failure to comply with a South Australian parole order. Level of defendant's compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 14 For significant periods of time during which these Acts have been in force, the defendant has been in custody, either serving a sentence of imprisonment or on remand. However, in respect of such period of time as the Acts could relevantly apply to the defendant, documentary material raises an issue as to non-compliance on the part of the defendant despite being on notice of reporting obligations under the statute. The defendant's rehabilitation (excluding CUBIT) 15 The plaintiff participated in sex offender treatment from a psychiatrist in 1984 and 1985. In 1986 he participated in a group based sex offenders' programme at Cooma Correctional Centre and a sex offenders' treatment programme whilst in a Queensland gaol. In 2001 he was assessed to participate in a community based sex offenders' treatment programme in South Australia but left that State before commencing the programme. The CUBIT programme 16 The CUBIT (Custody-based Intensive Treatment) programme is a high intensity prison based therapeutic programme for male sexual offenders that is designed to minimise the risk of such persons reoffending when they are released from prison. The programme has operated in New South Wales since 1999. 17 The CUBIT programme requires the offender to reside full time in a therapeutic environment and involves group based therapy sessions in addition to ongoing homework tasks and input from specially trained custodial staff who provide supervision and ongoing support. This high intensity group based treatment is limited to high risk sex offenders and is presently available only within a custodial environment. The Department of Corrective Services is not funded to provide one-on-one psychological treatment for offenders either in custody or in the community. The offenders admitted to the programme are accommodated in a special self contained 40 bed unit located in the Metropolitan Special Programmes Centre at the Long Bay Correctional Centre. The setting is designed to help offenders work intensively at changing the thinking, attitudes and feelings which led to their offending behaviour. The desired outcome is the reduction of sexual reoffending. Studies have found a small but nonetheless significant treatment effect of the programme. A critical component of the process is the identification of high risk areas and self management strategies as the offender learns to identify when he is in his offence pathway and can take precautions and preventative measures to avoid being in that offence pathway and can learn to take action to get out of the offence pathway in future. 18 The precise length of the course depends upon the progress of the individual participant. On average the course takes about eight to ten months to complete. The defendant's participation in the CUBIT programme 19 On 4 February 2002 the defendant sought referral to the CUBIT programme whilst on remand for charges that were later withdrawn. 20 He subsequently sought admission since his arrest in mid 2004 and his application for referral was reactivated when he was sentenced. The sentencing judge recommended that the defendant enter the CUBIT programme once he could be reclassified. The defendant's classification at that time as a prior escapee prevented his referral to the programme. 21 The defendant was appropriately reclassified in December 2006 and entered the CUBIT programme on 19 January 2007. He was, and apparently remains, willing to complete the programme. 22 In June 2007 a sheet consisting of pictures of young boys was found inside a magazine in the defendant's cell. The defendant denied responsibility for possession of the material and the contrary was not established. 23 On about 1 August 2007 inappropriate material was found in the defendant's possession. The material included a list containing the names, descriptions and schools of school children taking part in a television programme. Initially the defendant attempted to deny the real purpose of the document but subsequently acknowledged that he had used the information written down to fantasise over the children. Ultimately, on 19 September 2007, the following conversation took place between the defendant and Joanne Senior, a psychologist working with him: "What was the aim of the material found in your cell? Why did you keep track of names and school locations? Defendant: I think it was probably about victims of the future. Senior: So you were recording names and details of children from the TV show to target potential future victims? Defendant: Yes." A group member then asked the defendant whether, based on that material: "Were you planning to offend when released from custody?" The defendant responded by saying "Yes". This evidence has not been contradicted by the defendant. 24 At that time the defendant was found to have telephone numbers for organisations which treated erectile dysfunction. This created a suspicion that he may have intended to obtain exogenous products to counter anti-libidinal medication. There was medical evidence from Dr Samuels that anti-libidinal medication could be subverted, either by not taking the medication or by taking exogenous products to bring the testosterone level back to normal. 25 The defendant was suspended from the CUBIT programme on 11 August 2007 as a result of the discovery of the inappropriate material. He was later able to return to the CUBIT facility on 9 September 2007, and he has since remained on the programme at the present time. Anti-libidinal medication 26 The defendant has not been treated with anti-libidinal medication. He has indicated he is willing to take anti-libidinal medication and he has been referred to Justice Health for consideration of his suitability for such medication. 27 The defendant has a high testosterone level and initial indications were that he may benefit from such medication. The possibility of a contraindication to the use of anti-libidinal medication exists and the defendant needs to undergo further tests by an endocrinologist and a neurologist. These have been arranged. There are well known contraindications to the use of such medications, as well as unpleasant side effects in some cases. 28 The perceived benefit of such medication is to reduce the recipient's sex drive and interest in sex. It also, by reducing the recipient's preoccupation with sexual matters, may allow the recipient to concentrate more on the CUBIT programme with better results. The evidence of the psychologists Mr Bright 29 Mr Bright is a registered psychologist. He is the therapeutic manager of CUBIT programmes at the New South Wales Department of Corrective Services, which position he has held since June 2003. He has worked with sex offenders in connection with the CUBIT programme since about 1998. He was the defendant's primary therapist for four months when the defendant first participated in CUBIT and thereafter was involved in overseeing his progress within CUBIT. 30 He gave evidence, inter alia, that: (a) The defendant has been assessed by the Department of Corrective Services as a high risk sex offender and presents a high risk of sexual recidivism if released into the community. His risk of reoffending on release from custody (prior to completion of the CUBIT programme) remains high as, in large part, he is not yet equipped with the skills necessary to manage his risk of reoffending and has not yet been able to address his attitudes and beliefs that are supportive of his offending behaviour. (b) Although some positive gains have been made to date, the defendant's progress in treatment has, overall, not been satisfactory and he is yet to receive the necessary benefits of treatment. In particular he has not to date demonstrated sufficient commitment to change and has not demonstrated the capacity to effectively manage his high risk of offending. There is a need to revisit aspects of treatment that have been covered so far. (c) In his opinion, with further intervention, the defendant will be able to benefit from and be able to complete the CUBIT programme; it would be highly undesirable for him not to complete that programme and "having regard to his treatment progress, my best present estimate is that [the defendant] would need about a further six months of treatment within CUBIT" (d) If the defendant was released into the community without having completed the CUBIT programme, the range and seemingly entrenched nature of his offending behaviour is such as would make it difficult to impose conditions on his release that would, in practical terms, be likely to be effective in preventing him from reoffending. He had offended on a number of occasions previously whilst subject to supervision orders such as while on release on parole, which raises significant concerns as to his compliance with conditions upon release. (e) He agreed that the system provided that once somebody has completed CUBIT within a custodial framework there is adequate maintenance of the programme in the community and that it was very important to see if somebody was really rehabilitated to test them in the community. (f) He gave evidence that prior to the defendant attending community based maintenance, his view was that the defendant should do a period of time in the custodial maintenance programme. The period was not specified. In his affidavit, Mr Bright stated that the undertaking of such a period of maintenance in custody "may also be desirable." In the case of persons still serving their sentence, he regarded it as "ideal" that they participate in custodial maintenance. Ms Senior 31 Ms Senior is a registered psychologist employed by the New South Wales Department of Corrective Services. She is the primary therapist working with the defendant on the CUBIT programme. She had commenced to work with the defendant in May 2007. 32 Ms Senior confirmed the need for the defendant to undertake further work in various aspects of the CUBIT programme. She also deposed in her affidavit to the conversation with the defendant, which is set out at [23] hereof. Ms Sutton 33 Ms Sutton is a registered psychologist employed by the New South Wales Department of Corrective Services. She gave evidence shortly confirming that the Forensic Psychology Services branch of the Department was not funded to and did not provide individual treatment for sex offenders. Mr Sheehan 34 Mr Sheehan is a registered psychologist employed by the New South Wales Department of Corrective Services. He provided a risk assessment report drawn from information provided in documents and from discussions with the defendant and CUBIT psychologists. 35 He assessed the defendant's static risk of sexual reoffending in an actual risk assessment, the Static - 99. He reported the defendant scored nine on this instrument and that any score of six or over was within the high range. Mr Sheehan acknowledged that the recidivism estimates provided by the Static 99 (39 percent reoffend over 5 years, 45 percent over 10 years and 52 percent over 15 years) were group estimates upon reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The Static 99 score is a useful tool but does have limitations. Mr Sheehan also recorded that the defendant acknowledged his risk of sexually reoffending, estimating himself at a "medium to high" risk of sexually reoffending in the community. 36 He concluded that the defendant presented with a significant history of sexual disregulation, including sexual preoccupation, sexual impulsivity, sex as a coping strategy and deviant sexual interests. There was reason to believe that these factors continue to assert a negative influence on his current functioning. He may benefit from the use of anti-androgen therapy which may assist in the reduction of the abovementioned sexual features. The evidence of psychiatrists 37 The evidence of three psychiatrists, Dr Samuels, Professor Greenberg and Dr Allnut, was received in report and oral form by the Court. Dr Samuels and Professor Greenberg were appointed by the court pursuant to the requirements of s 15(4) of the Act. Dr Allnut was retained by the plaintiff. It was not submitted that the level of the defendant's participation in the examinations by Dr Sheehan and Professor Greenberg was unsatisfactory, nor do the reports of the doctors suggest such was the case. Similarly, the defendant consented to and participated in the preparation of other assessments for this application. Dr Samuels 38 Dr Samuels' evidence in essence was that The defendant's risk of further sexual offending remained high. He required further treatment. The most effective treatments for patients with sexual offending is a combination approach, including both cognitive therapy and anti-libidinal medication. It would take around three to six months to stabilise the defendant on anti-libidinal medication. Trialling the medication could commence once it was clear medical investigations did not reveal any of the contraindications which existed to the taking of the medication. The defendant would need at least three to six months of initiation treatment in a structured environment. Once the defendant has been on anti-libidinal treatment for a period and there was assessment from a number of sources that his risk has been minimised to some degree, it would be more practicable to implement an extended supervision programme. He considered the defendant could be managed in the community if one was reasonably confident that he was reasonably stabilised on some kind of anti-libidinal medication and that the fantasisation and preoccupation with children had diminished to some degree. If the risk was thus lowered then one could implement an appropriate risk management plan in the community which would not necessarily be absolutely failsafe, because there is no failsafe plan, but that would give one more confidence. He agreed that it would be a reasonable approach at this stage to allow six months to trial the medication and complete CUBIT and then, all being well, a supervision plan could be implemented. The medication would be a corner stone in managing the risk. Dr Samuels, in assessing the defendant, relied upon clinical methods, the Static 99 actuarial instrument as well as other statistical indicators. The doctor indicated that inferences based on the offender's past history provided most important information. Professor Greenberg 39 Professor Greenberg's evidence was essentially that the defendant should complete the CUBIT programme and that in addition he required anti-libidinal medication in the long term to assist him with his paraphilic sexual urges and drives as "the psychological method of treatment in itself was not sufficient to treat his paedophilia and his hebephilia…[as], during the CUBIT programme, after seven months, he was still preoccupied and collecting material about children, while he is doing the programme" Without the anti-libidinal medication, the defendant's chances of a fairly rapid relapse were very, very high. 40 He was of the opinion the medication should not be given in isolation but should be given in conjunction with supervision and psychological counselling. The medication would be the mainstay or anchor of the treatment programme. 41 In Professor Greenberg's opinion, the defendant would probably be stabilised on the medication to a point where he could go onto maintenance therapy. However, in his opinion the defendant should finish the CUBIT programme, as that provides internal controls and psychological controls. He agreed that once those two programmes had been suitably completed, from a clinical perspective the issue really becomes community supervision and a management plan in the community. 42 Professor Greenberg accepted the proposition that once the defendant was stabilised on anti-libidinal medication within about three months and once CUBIT was completed, within six months, there was "really no point in keeping Mr Hayter in custody beyond six months". Dr Allnut 43 Dr Allnut gave evidence essentially that in his opinion the defendant falls into a high risk group for offending. He has recently engaged in quite inappropriate sexual behaviour related to the possession of inappropriate material which evidences a treatment failure. There is a real cause for concern at this stage and he requires further treatment. 44 The defendant should continue the CUBIT programme. Additionally, the use of anti-libidinal medication may assist. In most people, a reduction in sex drive and sexual interest would be expected from such medication leading to less interest in offending and a greater capacity to control behaviour. Such medication probably impacts favourably on sexual recidivism and should lead to a more positive response to the CUBIT programme because the offender would be less preoccupied and less sexually driven. 45 The defendant's high testosterone count may indicate an endocrinological or neurological problem which would prevent the use of anti-libidinal medication. This requires investigation but assuming a favourable result to the investigations, the administration of anti-libidinal medication could be commenced forthwith. 46 The amount of further time required in the CUBIT programme is probably best determined by the CUBIT providers who recommend a further six months. During that time anti-libidinal medication can commence, if not contraindicated. 47 The minimum term under a continuing detention order would be six months, possibly more. The defendant would need to demonstrate a track record, that is he would need to demonstrate evidence that he is reliable in his self report and demonstrates that he has incorporated the cognitive behavioural techniques and relapse prevention techniques that he would learn in CUBIT and that he can apply them. At the end of the day, it depends on the individual and their motivation. 48 Dr Allnut did not regard it as feasible to safely manage the defendant in the community without almost continual supervision. The evidence on behalf of the defendant 49 The defendant did not give evidence. The only evidence tendered on his behalf was a joint report, dated 24 July 2007, from a psychologist (Mr Rodriguez) and a psychiatrist (Dr Ellis) of the Community Forensic Mental Health Service. The report concluded that the defendant's static 99 score, which was in excess of nine, placed him in the high risk category relative to other adult male sexual offenders. That score was an accurate reflection of his risk, given his offending history and clinical needs. 50 Despite multiple statements outlining his gains in treatment, the defendant presented as superficial and appeared to have rehearsed his answers to questions posed many times before by different clinicians. 51 The defendant will continue to require psychological treatment, specifically looking at his relapse prevention, as he is a high static risk for reoffending against male children and adolescents. 52 The defendant would benefit from anti-libidinal treatment which can be prescribed and monitored either in custody or in the community. He will require a number of investigations prior to starting anti-libidinal medication to determine that such treatment is not contraindicated. 53 The defendant requires considerable supervision and monitoring as well as psychiatric, psychological and biological treatment for his homosexual paedophilia. His disorder is clearly chronic and requires a multidisciplinary, interagency and comprehensive approach. His paedophilia is well entrenched and is likely to be problematic in the future without the involvement of existing services if he is live successfully in the community without the risk of sexually reoffending. The defendant's submissions 54 The defendant submitted that an extended supervision order of two years was appropriate in the circumstances of this case - in the alternative, a continuing detention order of no more than six months. Consideration 55 Three issues arise for determination in respect of the plaintiff's primary application. Those issues are considered hereunder. (a) Whether the Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. 56 An issue was joined between the parties as to the meaning of "likely" in this context. The plaintiff submitted that the meaning of the word "likely" adopted by Bell J in Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 was appropriate, namely the word "conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence." The defendant, relying upon the Victorian decision of TSL v The Secretary of the Department of Justice [2006] VSCA 199, submitted that "likely" means "a high degree of probability". 57 The issue has been recently considered by McClellan CJ at CL in Attorney General for the State of New South Wales v Winter [2007] NSWSC 1071. His Honour inferred that Bell J in Tillman accepted that "likely" meant "more probable than not". His Honour, after a detailed analysis of relevant authorities, concluded that "likely" means "more likely than not" and that, for relevant purposes, the court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence. I note that the issue is also the subject of a reserved judgment by the Court of Appeal in an appeal from the decision of Bell J in Tillman. 58 In my opinion, the application of either meaning of the word "likely" would lead to the same conclusion in this case. However, I would, as a matter of comity, follow the decision in Winters in preference to TSL. 59 The defendant has a record, extending over many years, of committing serious sex offences when unsupervised. Treatment thus far has been unsuccessful in obviating or reducing the risk of a continuation of conduct of this type. The experts whose evidence was before the Court confirmed that at the present time the defendant is highly likely to commit a serious sex offence or offences if he is not kept under supervision. There is uncontradicted evidence that the defendant acknowledged his risk of reoffending was in the medium to high range. He told staff in September 2007 that he had been planning to offend when released from custody. That the defendant is likely to commit a further serious sex offence is tacitly accepted by the submission on his behalf that an extended supervision order of two years is appropriate. 60 I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. (b) Whether the court is satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order 61 The plaintiff has submitted that adequate supervision cannot be provided by an extended supervision order, the defendant has made the contrary submission. 62 There is some uncertainty as to the meaning of "adequate supervision": see: (a) In Tillman, Bell J apparently accepted the submission that "adequate supervision" means supervision adequate to eliminate, or at the very least, substantially reduce, the likelihood that the defendant will reoffend. (b) In Winters (at [112]), McClellan CJ at CL accepted a submission that "adequate supervision" should be understood as supervision which reduces the risk below either a high degree of likelihood of reoffending or making it "less probable than not". (c) In Attorney General for the State of New South Wales v Raymond Barry Cornwall [2007] NSWSC 1082 Hall J (at [139]) concluded that "the terms of an extended supervision order must be such as to provide supervision that is 'commensurate in fitness, sufficient or satisfactory', to the assessed risk in terms of the first limb of s 17(3). In this respect 'adequate supervision' would, in my opinion, require such 'supervision' as will be adequate, in the above sense, to reduce the risk of the defendant committing a further serious sex crime so that, by reason of such supervision, it is less likely than not that he will reoffend in that regard." However, it is unnecessary to determine which meaning is to be preferred. 63 I am unable to accept the defendant's submission. The defendant has a history of opportunistic offences against young boys, who very often are unknown to him. The offences frequently occur in public places. The expert evidence before me is unanimous that the defendant requires treatment, both psychological (the CUBIT programme) and by way of anti-libidinal medication. The CUBIT programme is only available in custody and whilst the medication can be prescribed and monitored either in custody or in the community, there are identifiable benefits in commencing the medication in a controlled, presumably custodial, environment. In the absence of such treatment, it is highly likely the defendant, if released into the community, would pose a significant threat to the safety of the community by reason of his high risk of reoffending. 64 The conditions attaching to an extended supervision order, in order to be effective, require compliance by the offender. There is no evidence that the defendant intends to comply with such conditions if imposed upon him and the defendant's history suggests that compliance may not be forthcoming, particularly as he has stated an intention to reoffend when released from custody. 65 It is very difficult, if not impossible, to protect the community from crimes of the nature here in issue short of having the defendant under full time physical surveillance. 66 Whilst electronic and GPS monitoring of the defendant's whereabouts is available, this does not allow for immediate and rapid response and provides little protection if a person is intent on committing an offence. 67 The defendant submitted that in considering whether an extended supervision order should be made in preference to a detention order, regard should be had by the Court to the fact that the government had not provided funding for a CUBIT programme in the community. Even if this be a relevant discretionary consideration, it would not, in the circumstances of this case, cause me to conclude that a detention order should not be made in circumstances where clearly supervision is required and could not be adequately provided by an extended supervision order. 68 I am satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order. (c) Whether the detention order should be for a period of 12 months or less 69 The plaintiff submitted that the period of continuing detention should be one year as "on any view of the psychiatric and psychological evidence, a period of six months would seem to be a minimum; the starting point for any further detention is stabilisation of Mr Hayter on anti-libidinal medication. Then the continuation of the period in CUBIT until such time as the people who conduct CUBIT are satisfied that he is indeed focussing on what CUBIT is all about and then some period of observation after that to ensure that the anti-libidinal medication is having the effect that is desired and that the gains in his outlook that CUBIT hopefully will provide are indeed sustained. It may be that that can all be achieved in less than a year, it would seem it could not be achieved on less than six months on any view of it, but if one is to err on the side of caution, then the appropriate course would be to take a longer period so that the therapist can be satisfied that all those matters have been satisfied." 70 The plaintiff submitted that "supervision will be sufficient and indeed would seem to be necessary, but not until the anti-libidinal medication has achieved what it can achieve and the CUBIT programme has been successfully completed. Until those things occur, supervision in the community will not be sufficient… [Supervision] will become sufficient once CUBIT has been completed successfully and once the anti-libidinal medication has done what it does." 71 The plaintiff also submitted that if the detention order was limited to what was termed the absolute minimum term of six months, this would lead to a fresh application by the plaintiff which would have to be commenced before the expiry of a six month detention order and would be likely to disadvantage the defendant as there was a real possibility that attending to the application would interfere with his treatment programme and distract him from the primary task of his rehabilitation. 72 The defendant submitted that if a period of continuing detention was ordered by the Court, the period of such detention should be no more than six months as that was the appropriate period having regard to the thrust of the evidence and the requirements of s 17(3) of the Act. Reliance was placed upon the evidence that six months should be adequate to complete the CUBIT course and to stabilise the defendant on anti-libidinal medication and that thereafter, from a clinical point of view, the defendant could be maintained in the community, there being adequate maintenance programmes available in the community once the CUBIT programme was completed and the medication could be administered and monitored in the community. 73 Additionally, it was submitted, that as the Department of Corrective Services had failed to ensure that the defendant was given the opportunity to commence the CUBIT programme well before the expiry of his sentence, any detention order should be no longer than six months. However, I do not rely upon this submission in reaching my conclusion. 74 In my opinion, the period of detention should be six months from today. The best estimate of the psychiatrists at the present time is essentially that the CUBIT programme should be completed in six months and the defendant stabilised on anti-libidinal medication within 3-6 months, assuming no contraindication to such medication. Thereafter, from the clinical perspective, the defendant should be in the community, albeit possibly subject to a continuing supervision order. 75 The evidence of the psychologists is generally to similar effect. I do not accept that the period of detention should be extended to permit participation in a custodial maintenance programme after the completion of the CUBIT programme particularly in the light of the psychiatric evidence, the fact the defendant has completed his sentence and where the manager of the CUBIT programme does not say such participation is necessary but merely "may be desirable". 76 Of course, it may be the defendant does not apply himself adequately to the CUBIT programme or a longer period is required for other reasons and that the use of anti-libidinal medication may be contraindicated or does not have the desired effect. These are matters which, no doubt, will be monitored during the forthcoming six months. If there is a failure to achieve what is intended within that period, the plaintiff presumably will take steps to obtain appropriate orders from the court. It is also possible that the defendant's progress, aided by the use of medication, may be more rapid than foreseen. 77 The submission that the defendant may be disadvantaged by the plaintiff bringing a further application to the court is noted. However, I do not regard this as an appropriate reason to extend the period of detention in circumstances where the defendant's submission is that any detention should be no more than six months and where his sentence has already been served. Orders 78 1. I order that Warren Graeme Hayter be detained in a correctional centre for six months from today. 2. Pursuant to s 20(1) of the Act, I issue a warrant for the committal of Warren Graeme Hayter to a correctional centre for the duration of the continuing detention order in order 1 above. ********** 16/10/2007 - Correct section of the Act: s 20(1) not s 21. - Paragraph(s) 78 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.