New South Wales Supreme Court CITATION : Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 31/5/07, 1/6/07,4/6/07, 5/6/07, 6/6/07 JUDGMENT DATE : 18 June 2007 JUDGMENT OF : Bell J at 1 DECISION : 1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act 2006 Kenneth Davidson Tillman is to be detained in a correctional centre for one year from today; 2. Pursuant to s 20(1) of the Act issue a warrant for the committal of Kenneth Davidson Tillman to a correctional centre for the duration of the continuing detention order referred to in order 1 above. CATCHWORDS : Sex offender - continuing detention order - standard of proof of high probability - likely to commit further serious sex offence - treatment programs - adequacy of extended supervision order LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 Serious Sex Offenders Monitoring Act 2005 (Vic) Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for New South Wales v Tillman [2007] NSWCA 119 CASES CITED : Boughey v The Queen (1986) 161 CLR 10 Lyons v The Queen [1987] 2 SCR 309 R v S L D [2003] NSWCCA 310; 58 NSWLR 589 TSL v The Secretary to the Department of Justice [2006] VSCA 199 PARTIES : ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES (Plaintiff) Kenneth Davidson TILLMAN (Defendant) FILE NUMBER(S) : SC 11830/07 COUNSEL : L. Babb / A Mitchelmore (Plaintiff) A P Cook (Defendant) SOLICITORS : I V Knight Crown Solicitor's Office (Plaintiff) Aboriginal Legal Service (NSW/ACT) Limited (Respondent) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Monday 18 June 2007 11830/07 Attorney General for the State of New South Wales v Kenneth Davidson Tillman JUDGMENT 1 BELL J: By amended summons the plaintiff, the Attorney General for the State of New South Wales, applies for an order under s 17(1)(b) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that the defendant, Kenneth Davidson Tillman, be detained in a correctional centre for five years from the date of the order. In the alternative, an order is sought pursuant to s 17(1)(a) of the Act, that the defendant be subject to extended supervision for a period of five years from the date of the order. 2 On 18 April 2007 the defendant completed a sentence of 10 years' imprisonment that had been imposed on him following his conviction for a serious sexual offence committed against the nine-year-old daughter of his then de facto wife. 3 One week prior to the defendant's release from custody the plaintiff applied for the present order. The defendant was released subject to an interim supervision order on 18 April 2007. He was at liberty until 3 May 2007, when the Court of Appeal ordered that he be detained in a correctional centre on an interim basis for a period of 28 days from 3 May: Attorney General for New South Wales v Tillman [2007] NSWCA 119. 4 On 29 May 2007 the interim detention order was renewed for a further 28 days from 30 May, or until final orders were made, whichever period was the shorter. The scheme of the Act 5 The Act commenced on 3 April 2006. The present application appears to be the first determination of a claim for final orders under Part 3, which provides for detention orders. 6 The objects of the 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. 7 A serious sex offender is a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child. 8 A serious sex offence is defined in s 5(1) of the Act and means any of the following offences: (a) An offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) In the case of an offence against an adult or a child, the offence is punishable by imprisonment for seven years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), (b) An offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for seven years or more, and includes: (c) An offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and (d) any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act. 9 The defendant is a serious sex offender within the meaning of the Act. 10 The Act empowers the court on the application of the Attorney General to make an extended supervision order (for which provision is made in Part 2) or a continuing detention order (for which provision is made in Part 3). Each order operates to extend the period of control over a serious sex offender beyond the term of the sentence of imprisonment imposed in consequence of conviction for his or her sex offence. 11 Section 17 provides: 17 Determination of application for continuing detention order (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. (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the psychiatrists appointed under section 15 (4) to conduct psychiatric examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. (5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9. 12 A continuing detention order expires at the end of such period (not exceeding five years from the date on which it commences) as is specified in the order (s 18(1)(b)). There is no bar to the court making a second or subsequent continuing detention order against the same offender (s 18(3)). 13 The court may at any time vary or revoke a continuing detention order on the application of the Attorney General or the offender (s 19). 14 In determining an application for a continuing detention order the court may make an extended supervision order. Conditions may be imposed on an extended supervision order including those set out in s 11. A person who fails to comply with the requirements of an extended supervision order is guilty of an offence. 15 An offender who breaches an extended supervision order may be charged with an offence under s 12 of the Act and on conviction sentenced to a term of imprisonment not exceeding two years. He or she may be made the subject of a continuing detention order or a further extended supervision order at the completion of such a sentence. The test under s 17(3) of the Act 16 The first question for determination concerns the test provided by s 17(3). The plaintiff submitted that subsection (3) provides a standard of proof, satisfaction to a high degree of probability, a standard that is lower than the criminal standard of proof beyond reasonable doubt and higher than the civil standard of proof upon the balance of probabilities. There are two matters that the plaintiff is required to prove upon this standard: (i) the defendant is likely to commit a further serious sex offence if he is not kept under supervision, and (ii) adequate supervision will not be provided by an extended supervision order. 17 In the plaintiff's submission, "adequate" supervision means supervision adequate to eliminate, or at the very least, substantially reduce, the likelihood that the defendant will re-offend. 18 In the plaintiff's submission, "likely" is used in what is said to be its ordinary sense and means "substantial – a real and not remote chance regardless or whether it is more or less than 50 per cent": Boughey v R (1986) 161 CLR 10 per Mason, Wilson and Deane JJ at 21. 19 The plaintiff's submissions are consistent with the approach adopted by McClellan CJ at CL in determining a claim for interim orders at a preliminary hearing in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 (at [34]): The meaning of those words has not been fully argued on this application. However, for the present purposes I accept that before an order can be made I must be satisfied of the likelihood that the defendant will re-offend to a high degree of probability. It presently seems to me that the Act imposes a standard of proof higher than the ordinary civil standard but less than the criminal standard beyond reasonable doubt. The caution that an order can only be made "if and only if" the court is relevantly satisfied emphasises the care with which the court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty. One potential difficulty with the subsection is the conjunction of that requirement i.e. that the court be satisfied to a "high degree of probability", with the question of whether the offender is "likely to commit a further serious sex offence". The word "likely" presently appears to me to be used in its ordinary meaning which, as the High Court pointed out in Boughey v The Queen (1986) 161 CLR at 10 conveys the notion of "substantial - a real and not remote – chance regardless of whether it is less or more than 50 percent": see also R v SLD (2003) 58 NSWLR 589 at 32; Teremoana (1990) 49 A Crim R 207 at 217; Dowling v Dalgety Australia Limited (1992) 34 FCR 109 at 136. [35] However, it will be necessary to give careful consideration to the context in which the word "likely" is used in the present legislation upon the final determination of this matter. 20 The plaintiff submitted that the difficulty to which McClellan CJ at CL referred in the concluding passage in [34] above is to be resolved in this way: The standard of high degree of probability is directed to the quality and strength of the evidence of the facts present and past, which taken with the expert opinion based on those facts, provides the basis for a finding of present likelihood of future conduct. In this respect counsel for the plaintiff referred to the judgment of Handley JA (with whose judgment the other members of the Court concurred) in R v SLD [2003] NSWCCA 310; 58 NSWLR 589 at 595-597 [34] – [40]. SLD was an appeal against the severity of sentence. The primary judge made findings, including that the applicant posed "a significant level of future dangerous" and there was a "substantial risk" of him "re-offending in both violent and sexual ways. Handley JA cited the judgment of the Supreme Court of Canada in Lyons v The Queen [1987] 2 SCR 309 at 363-365; (1987) 44 DLR (4th) 193 at 238-239: The appellant submits … that s 688, in requiring proof that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons, or that there is a likelihood of the offender causing injury, pain or other evil to other persons … is fundamentally unfair in that the standard of proof required of the Crown is lower than that traditionally required in the criminal law … I do not believe that [this submission] is valid. First, it is important to recognise exactly what is and what is not required to be proved on such an application. Paragraphs (a) and (b) of s 688 both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty of harm. The appellant asserts that a "likelihood" is ipso facto not susceptible of proof beyond a reasonable doubt … The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring … Moreover I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established … Logically it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the Court to assert an ability to predict the future. I do not find it illogical for a Court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J in R v Knight (1975) 27 CCC (2d) 343 at p356 ((Ont) HC): I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future – this, in the nature of things would be impossible in practically every case – but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct. (Emphasis supplied) 21 Handley JA held that the primary judge had made findings on the criminal onus that were open to him on the evidence about what was "presently known" and on this basis findings had been made concerning the risk to the community. His Honour noted that the primary judge had not presumed to assess the risk of future serious criminality on the basis of satisfaction that the offender would re-offend (at [39]). 22 Mr Cook, who appeared on behalf of the defendant, submitted that s 17(3) of the Act should be construed consistently with the construction placed on a similarly worded provision of the Serious Sex Offenders Monitoring Act 2005 (Vic) by the Court of Appeal of Victoria in TSL v The Secretary to the Department of Justice [2006] VSCA 199 per Calloway AP (with whom Buchanan JA and Coldrey AJA agreed) at [6] to [12]: [6] The language of the application reflects the language of s 11 of the Act, the first three sub-sections of which provide: (1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order. (2) The Secretary has the onus of proving the existence of the likelihood referred to in subsection (1). (3) In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the court must, subject to subsection (5), have regard to — (a) any assessment report filed in court, whether by or on behalf of the Secretary or the offender; and (b) any other report made, or evidence given, by a medical expert — and may have regard to anything else that it considers appropriate. (Emphasis added). … [7] Parliament could have provided that the court must be satisfied, to a high degree of probability, that the offender would be a serious danger to the community if released and not made subject to an extended supervision order, but the legislature chose to be more precise. Instead of a serious danger to the community, there is the more specific test whether the offender is likely to commit a relevant offence. Having regard to the main purpose of the Monitoring Act, the fact that the offender is likely to commit a relevant offence is a surrogate, or prima facie or presumptive surrogate, for his or her being a serious danger to the community. That it is only a prima facie or presumptive surrogate is suggested by the fact that the court retains a discretion not to make an order. The court "may", not "must", make an extended supervision order if it is satisfied that the offender is likely to commit a relevant offence. [8] There are broadly two ways in which the words in s 11(1) that I have italicised in [6] may be read. On either view, the issue to be decided is whether the offender is likely to commit a relevant offence. That is the fact of which the court must be satisfied. The first way in which the words may be read is that "high degree of probability" performs a function similar to the expressions "balance of probabilities" and "beyond reasonable doubt", so that the court must be satisfied to that standard that the offender is likely to commit a relevant offence. In order to express the point simply, let us use "being reasonably sure" as shorthand for satisfaction to a high degree of probability. On the first reading of the words, they would mean that the court must be reasonably sure that the offender is likely to commit a relevant offence. [9] The other reading of the italicised words in [6] takes as its starting point the fact that the meaning of "likely" varies according to the context in which it is used. Because it was concerned with the future, Parliament could not require the court to be satisfied that the offender will commit a relevant offence. All that the court could be satisfied of is that the offender is likely to do so or that there is a risk that the offender will do so. The ordinary meaning of likely, as explained by Mason, Wilson and Deane JJ in Boughey v R , is "a substantial — a 'real and not remote' — chance". Not surprisingly, Parliament considered that threshold to be too low. The expression "to a high degree of probability" was included to show that, in this context, "likely" connotes a high degree of probability. On this second reading of the italicised words, the court must be satisfied that there is a high degree of probability that the offender will commit a relevant offence. [10] In my opinion, the second meaning is to be preferred. It is understandable that Parliamentary counsel would have chosen the word "likely" in relation to a future state of affairs but almost inconceivable that Parliament would have intended that word to bear its ordinary meaning. All too many offenders are likely, in that sense, to commit a relevant offence. A person subject to an extended supervision order is a prisoner in all but name. The threshold would be far too low, in a free society, if a court had a discretion to make an extended supervision order simply because it was satisfied that there was "a substantial — a 'real and not remote' — chance" of his or her re-offending. That is why the word "likely" in s 11(1) is used in the sense of a high degree of probability. [11] I desire to guard against misunderstanding. To say that "likely" is used in that sense does not mean that the Secretary must prove that it is more likely than not that a person will commit a relevant offence. Likelihood, in the ordinary sense of that word identified in Boughey v R , includes a low degree of probability. What the legislature requires the court to be satisfied of is a high degree of probability. There is no reason to think that it must be more than 50%. With experience, it may be possible to be more precise, but we should always return to the words the legislature has chosen and the context in which they appear. [12] The conclusion that the word "likely" in s 11(1) is used in the sense of a high degree of probability accords with the main purpose of the Monitoring Act as stated in s 1. The Act is concerned with offenders who are a serious danger to the community. It also accords with the second reading speeches, which explained that the legislation was aimed at high risk offenders and offenders assessed as being at high risk of re-offending. It is also the construction that the learned judge was invited to adopt. Mr Grace appeared for the Secretary below. He submitted, correctly, "[T]here is a degree of probability that [TSL] will commit a relevant offence if not subject to supervision or to an extended supervision order. The question is whether it is a high degree." I readily assume that her Honour directed herself in the same way. Her decision cannot be impugned on the basis that she asked the wrong question. (Footnotes omitted) 23 Counsel for the plaintiff submitted that the Victorian Court had adopted a contextual approach to the construction of s 11(1) of the Monitoring Act and noted the scheme of that Act differs in significant respects from the scheme of the Act. While the similarity in the wording between s 11(1) and s 17(3) was acknowledged, it was noted that s 11(2) of the Monitoring Act has no counterpart in the Act. It is not clear that the differences between the schemes of the two Acts provide a basis for rejecting the approach that the Court took on contextual grounds. The reasons which led their Honours to conclude that it was "almost inconceivable" that Parliament would have intended "likely" to bear its ordinary meaning might be thought to have greater force in the context of a scheme which makes provision for continuing detention orders. 24 In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that "The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation." (footnote [15].) In this respect it seems to me that the plaintiff's submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force. 25 It was not necessary for the Court of Appeal to consider the construction of s 17(3) in Tillman. The decision does not refer to TSL. The views concerning the construction of the subsection expressed by McClellan CJ at CL in Gallagher were provisional (at [34]). His Honour's decision was delivered before the decision in TSL. 26 The Court of Appeal in Tillman seems to me to have proceeded upon a view that ss 9(2) and 17(2)-(3) import a statutory standard of proof by the use of the words "satisfied to a high degree of probability": at [5] and [18]. 27 I propose to adopt the approach favoured by McClellan CJ at CL in Gallagher, namely, to take the words "is satisfied to a high degree of probability" in s 17(3) as the statement of a statutory standard of proof, which is higher than the civil standard, but lower than the criminal standard. I take into account his Honour's observation that the inclusion of the words "if and only if" emphases "the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty": (at [33]). 28 McClellan CJ at CL observed that it would be necessary to give careful consideration to the context in which "likely" is used in s 17(3) on a final hearing. In Boughey v The Queen (1986) 161 CLR 10 the High Court was concerned with the directions given by the primary judge as to the mental element of the crime of murder under the Criminal Code (Tas), which required proof that the accused knew or ought to have known that his unlawful act was likely to cause death. Gibbs CJ in separate reasons and Mason, Wilson and Deane JJ in their joint reasons noted that the word "likely" is liable to vary according to its statutory context. Their Honours in the joint reasons considered that "likely" in its ordinary meaning conveys "a substantial, a 'real and not remote chance'"(at 21). Their Honours made clear that "likely" in this context was not to be construed by reference to whether the chance was greater or less than 50 per cent. Gibbs CJ considered the ordinary meaning of "likely" to be "probable" (at 15). 29 Boughey was concerned with the directions concerning proof of a fact albeit a state of mind involving advertence to a state of affairs. The Act requires the Court to be satisfied of the likelihood of future offending. In this context it is not clear that likelihood is to be equated with "a real chance", which I take to be a prediction falling well short of probability albeit one that is more than a mere possibility. I have approached the determination in this case upon the basis that "likely" in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence. 30 The plaintiff must establish to a high degree of probability that (i) the defendant is likely to commit a further serious sex offence if he is not kept under supervision, and (ii) that adequate supervision will not be provided by an extended supervision order. If the plaintiff establishes both the Court may make a detention order. In the event the plaintiff establishes (i) but does not establish (ii) the Court may make an extended supervision order. The Court retains a discretion not to make either order. 31 In determining whether to make either a continuing detention or an extended supervision order the Court is required to have regard to the matters set out in s 17(4)(a) – (i) together with any other matter that it considers to be relevant. 32 Section 17(4) provides: 17(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the psychiatrists appointed under section 15 (4) to conduct psychiatric examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 , (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. 33 The defendant is aged 45 years. He is an Aboriginal man who was raised in a dysfunctional and abusive family environment. His father was alcoholic and subjected the defendant and the defendant's mother to physical abuse. When he was eight years old the defendant watched his grandfather beating his grandmother to death. The defendant's mother was alcoholic and she had many sexual partners. The defendant spent time living with her and with various relatives and in children's homes. He experienced sexual abuse in an institutional setting and at home. He first came before the Children's Court when he was 9 years old. He was found to be a neglected child and he was released on probation. He was made a ward of the Minister when he was 14 years old. 34 The defendant has been continuously in custody for the past 10 years. He last committed a sexual offence when he was aged 34 years. In the time that he has been in custody serving the present sentences he has undertaken a Bachelor of Social Science in Aboriginal Health and completed the academic requirements for the degree, save for the practical component. 35 The defendant has three children, two adult daughters and an 11 year-old son. His daughters are the product of his relationship with his former de facto partner, Kerry. He was convicted of sexually assaulting Kerry's older daughter and this caused the breakdown of the relationship. In recent times he has resumed contact with Kerry, with whom he now has friendly relations. He has contact with his daughters, who appear to be reasonably well disposed towards him. He has three grandchildren; one of his daughters has two young girls and his other daughter has a young boy. Each of the daughters is in a relationship with a male partner who is aware of the defendant's history of sexual offending. The defendant wishes to have contact with his daughters and grandchildren on his release from custody. 36 The defendant's 11 year-old son is the product of his de facto relationship with a woman named Karen. The defendant has been convicted of the sexual assault of Karen's nine year-old daughter. There is no contact between the defendant and Karen and she has been resistant to him having any contact with their son. 37 One way in which the plaintiff seeks to establish that the defendant is likely to commit a further serious sex offence if he is not kept under supervision involves an examination of his criminal history, which spans 20 years and which includes repeated serious sexual offending. 38 The defendant's first sexual offence was committed when he was aged 15 years. He raped a young married woman who was 22 years old. He followed her in daylight from Redfern Railway Station to her residence in Waterloo. He knocked on the front door of her flat and managed to gain entry by claiming that he needed to telephone his mother. Once inside he menaced the victim by holding a knife to her neck, forcing her into the bedroom where he raped her. At the time he had a minor record for offences of dishonesty. His fingerprints were found on the knife and the police arrested him at his home shortly after the offence. He admitted to committing the offence. On 23 February 1977 he was sentenced to a term of eight years' penal servitude. A non-parole period of three years was specified. He was released on parole on 3 November 1980. 39 On 17 November 1980 while he was on parole the defendant was convicted of larceny for this offence he was sentenced to four months' imprisonment. 40 On 6 February 1981 the defendant was convicted of the offences of (i) break, enter and steal; (ii) receiving; (iii) resist arrest; (iv) assault police; and (v) stealing a motor vehicle. He was sentenced for these offences to an overall term of 12 months' imprisonment with a non-parole period of 6 months. 41 On 7 August 1982 while he was still on parole the defendant committed a serious sex offence; sexual intercourse with MJW without consent knowing MJW was not consenting she being a person under the age of 16 years. MJW was aged 13 years. She and her boyfriend had run away from home. They met up with the defendant and a group of people who were drinking around a fire on the bank of the Nepean river. MJW told the defendant that she and her boyfriend were run-aways. He offered to put them up at his home overnight. Later he told the boy to wait by a tree while he took MJW away under the pretext of checking with the other householders whether it was alright for them to stay. He took MJW to a secluded area where he had sexual intercourse with her without her consent. After this he took her and her boyfriend to the house at which he was staying and told them that they could sleep in his car. After a time they left and raised the alarm. The police identified the defendant and he voluntarily attended at the police station. 42 The defendant pleaded guilty to the offence against MJW before Hodgson J. A police officer gave evidence at the sentence hearing that the defendant appeared to have a drinking problem and that he had told the police that he tended to get into trouble when drinking. The defendant was sentenced by Hodgson J to a term of six years' imprisonment to date from 26 July 1984. His Honour specified a non-parole period of three years. 43 The defendant was on bail for the offence against MJW until 26 July 1984. On 23 July 1983 while he was at liberty on bail he committed an indecent assault on a girl, MK, who was 15 years old. The offence occurred at premises at which the defendant and others were drinking. MK had gone into the kitchen to make a cup of tea. The defendant followed her and persuaded her to go outside with him. When they were in an isolated spot he made advances to her, putting his hand over her shoulders and around her neck. When she tried to push him away he told her to, "keep your big mouth shut". He put his hand over her mouth very tightly and said, "let me fuck you". MK refused and the defendant said, "well suck me off then". When she again refused he threatened her saying, "if you don't keep your big mouth shut, I'll bash you here and now". He penetrated her vagina with his fingers. At this point someone called out to MK and this brought the assault to an end. 44 The defendant appeared before the District Court at Penrith in 1985 charged with the indecent assault of MK. He was placed on a recognizance for this offence. 45 The defendant as released on parole on 23 September 1986. His parole order was conditioned that he accept such assistance as his parole officer may advise with respect to his consumption of alcohol. The parole order was revoked with effect from 27 February 1987. On 8 May 1987 the Parole Board rescinded the revocation order. Subsequently, the defendant failed to report to his probation officer on a number of occasions. On 17 June 1988 the defendant's parole order was again revoked. 46 On 31 July 1988 the defendant was convicted of the offence of receiving and a number of driving offences. He was sentenced for these offences to an overall sentence of 12 months' imprisonment with a six-month non-parole period. 47 On 2 March 1989 the defendant was released from custody. He was living with Kerry. Kerry had a daughter, SW, from a previous relationship who was 10 years old. On 7 and 8 August 1989 the defendant sexually assaulted SW. He was arrested for these offences on 10 August 1989 and he was returned to custody. 48 On 6 June 1990 the defendant was convicted following trial of two counts of sexual intercourse with a person under 16 years who was under his authority and with one count of indecent assault arising out of the allegations made by SW. He was sentenced for these offences by Gibson DCJ on 7 November 1990. SW's evidence was that the three incidents were taken from a number of such incidents that had occurred during the period that the family was living at Macquarie Fields. Judge Gibson took into account the contents of a drug and alcohol report, which stated that the defendant was making efforts to rehabilitate himself. He was sentenced to imprisonment for four and a half years to date from 10 August 1989 and to expire on 9 February 1994 on the counts involving sexual intercourse with SW. An additional term of 18 months expiring on 9 August 1995 was specified. The defendant served the whole of the term of this sentence. 49 Following his release from custody on 9 August 1995 the defendant went to Queensland. In October 1995 while he was in Queensland he commenced a relationship with Karen. Karen was the mother of two girls; MAL, aged nine years and an infant. Karen became pregnant and in July 1996 she was admitted to hospital for the birth of the baby. During her stay in hospital the defendant sexually abused MAL. 50 On 18 March 1997 the defendant was taken into custody in connection with the offences against MAL. On 8 April he was released on bail. On 19 April he assaulted a 15-year-old girl. 51 The defendant denied that he had sexually assaulted MAL. He stood trial at the Lismore District Court before Ducker DCJ and a jury. He was convicted of two counts of sexual intercourse with a person aged under 10 years. Each count involved an allegation that he had forced MAL to perform fellatio on him. He was convicted of a third count involving attempted sexual intercourse with MAL (attempted penile penetration). 52 The defendant was sentenced for the offences against MAL on 6 March 1998. On this occasion he pleaded guilty before Ducker DCJ to the common assault of the 15-year-old girl, which he had committed on 19 April 1997. His Honour described the facts of this offence as being "somewhat unusual". He said that the defendant had managed to persuade a 15-year-old girl who had been sitting waiting for a friend at the K-Mart store, Lismore, to accompany him to a derelict house. He had blocked her path with one of his hands and grabbed the back of her neck when she endeavoured to leave the house. Thereafter he had loosened his grip and allowed the girl to leave. 53 The offences against MAL are described by the mental health professionals as the defendant's "index offences"; being the offences for which he was serving his sentence of imprisonment at the time the various assessments of him were carried out. 54 Ducker DCJ sentenced the defendant to concurrent terms of 10 years' imprisonment to date from 19 April 1997 with a minimum term of seven years' and six months' imprisonment. 55 The defendant became eligible for parole on 18 October 2004. He was refused parole on this occasion and at subsequent reviews that were held in December 2005 and September 2006. He has consistently denied that he committed the index offences. In reports prepared for the State Parole Authority concerns were expressed arising out of the defendant's maintenance of his innocence and his refusal to participate in the Custody-Based Intensive Treatment program (CUBIT), a group treatment program run by the Department of Corrective Services (the DCS) for sex offenders. 56 The plaintiff relied on a considerable body of expert evidence. This included the evidence of Victoria Bel a psychologist employed by the Department of Corrective Services who has specialised in the assessment of sex offenders since 1999. Ms Bel interviewed the defendant in November 2006 and conducted an assessment of his risk of sexual re-offending. David Bright, a psychologist, who is the Manager of the CUBIT program also interviewed the defendant and carried out an assessment of his risk of re-offending. Dr Christopher Lennings, an independent psychologist with experience in the treatment of sexual offending, gave evidence of his assessment of the defendant's risk of re-offending based on actuarial and other assessment instruments. 57 Two psychiatrists, Dr Allnutt and Professor Greenberg, provided reports to the Court pursuant to orders made by Hoeben J. Each expressed his opinion of the defendant's risk of re-offending by reference to actuarial and other assessment tools and by reference to clinical assessment formed as the result of interviewing the defendant and reviewing reports and other materials contained in DCS' files. 58 Each of the psychologists considers the defendant to be a high risk of sexual re-offending. Dr Allnutt assesses him as being a high risk of sexual re-offending and Professor Greenberg assesses him as a moderate to high-risk of re-offending. 59 One focus of the expert evidence was on the defendant's refusal to undergo the CUBIT program and, more generally, on the effectiveness of this program and other forms of treatment in reducing the risk of sexual re-offending. Jayson Ware, a psychologist, with a background in the assessment and treatment of sex offenders, is the DCS's Clinical Co-ordinator of Sex Offenders Programs. He gave evidence directed principally to these issues. 60 The defendant gave evidence of his willingness to be supervised in the community and to accept onerous conditions. Dr Daniels, the Director of the Aboriginal Medical Service (the AMS), gave evidence on the defendant's behalf of the assistance that the AMS is willing to provide to the defendant to ameliorate the risk of him re-offending. Sister Evelyn Crotty, of the Sisters of Mercy, gave evidence of her contact with the defendant and of the support which she would be able to offer to him on his release into the community. 61 No exert evidence was led on the defendant's behalf relating to his risk of committing further serious sex offences. 62 Mr Cook submitted that the plaintiff had failed to establish that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. At the heart of Mr Cook's submissions were two contentions: to the extent that the experts based their assessment of risk on the STATIC-99 instrument, it did not provide a sound basis for a conclusion of likelihood that this defendant would re-offend and to the extent that their assessment was based on a consideration of factors personal to the defendant insufficient weight was given to the fact that he had spent 10 years in custody and was now a man aged 45 years. I will review the expert evidence and return to these contentions. The Static-99 instrument 63 Section 17(4)(d) requires the court to have regard to the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious sex offence. Each of the expert witnesses gave evidence that, in part, related to the defendant's score on the STATIC-99 instrument. 64 The Static-99 is an actuarial risk prediction instrument that is designed to estimate the probability of sexual (and violent) reconviction for adult males who have been charged with, or convicted of, at least one sexual offence against a child or a non-consenting adult. 65 The Coding rules for the Static-99 requires the assessor to allocate one point (or not) as the case may be, for each of the following 10 risk factors: i. Youth (defined as 18 to 24.99 years); ii. Never lived with a lover for two years; iii. Index non-sexual violence convictions; iv. Prior non-sexual violence convictions; v. Prior sex offences; vi. Prior sentencing dates (four or more separate sentencing dates prior to the index offence); vii. Convictions for non-contact sex offences (exhibitionism, possession of obscene material, obscene telephone calls, voyeurism, exposure, illicit use of the Internet, sexual harassment); viii. Any unrelated victims; ix. Any stranger victims (a person whom the offender did not know 24 hours before the offence); x. Any male victims. 66 The defendant is assessed under the Coding rules of the Static-99 as scoring eight out of a possible 10 points. This places him in the high-risk category relative to other male sex offenders. A score of six and above is in the high-risk category. A score of eight does not necessarily mean that an offender has a greater level of risk than an offender with a score of six. There is increased confidence that an offender who scores above six is a member of the high-risk group 67 Persons with a score of six or above have a 39 per cent rate of sexual recidivism within 5 years; a 44.9 per cent rate of sexual recidivism within 10 years and a 52.1 per cent rate of sexual recidivism within 15 years. A sample of 100 sex offenders with a score of six or above would be expected to include 39 who were convicted of a further sexual offence within 5 years while 61 would not re-offend within this period. 68 One aspect of the challenge made by Mr Cook to the acceptance of STATIC-99 as a useful predictive tool is that some of the 10 factors appear to be so undiscriminating as to be incapable of providing a meaningful basis for comparison. Thus, the defendant scores one point out of a possible 10 on the STATIC-99 instrument for a past conviction for a non-sexual offence of violence. This is his 1981 conviction for assault police. Another offender convicted, say, of maliciously inflicting grievous bodily harm with intent would be given the same score under the coding rules for this factor. 69 The STATIC-99 instrument awards a score of one point for an offence against a victim who is unrelated to the offender and for an offence in which the victim is a stranger. The defendant scores two points for the same offence committed against a stranger to whom he was not related. The instrument was developed from two prior actuarial measures of sexual recidivism and this may explain the inclusion of two categories that appear to overlap. David Bright acknowledged that the sample size of the population in the STATIC-99 study was not large. He considered it to be a reliable tool because the results obtained with the use of it had been reproduced in a number of countries on a number of occasions. STATIC-99 has a moderate level of predictive validity. As Mr Bright explained it, tossing a coin has a predictive validity of 50 percent. STATIC-99 has been shown to have a predictive validity of about 70 percent. 70 Mr Bright was asked to prepare a risk assessment of the defendant. He sought the defendant's consent to an assessment interview in November 2006. The defendant responded: I won't be interviewed. I've been interviewed enough times already. 71 Dr Lennings discusses the research on sex offender recidivism rates in his report. He describes the STATIC-99 instrument as having achieved almost "gold standard" status in the field of predicting sexual offence recidivism. It is an instrument that has been investigated among populations of sexual offenders in a number of countries and has almost invariably been found to be a valid indicator of recidivism. In his opinion it has effectiveness as an actuarial assessment tool. He observes that there has been much criticism of the use of actuarial approaches to the assessment of risk. Dr Lennings emphasises that risk predictions based on actuarial measures do not apply to individuals but to groups. He draws an analogy with cardiac patients to make this point: whilst a number of patients may fall within a high risk group for heart disease, they will not all have the same risk factors and many will not go onto have a heart attack, despite belonging to the high risk group. It is for this reason that an actuarial instrument such as the STATIC-99 needs to be used in conjunction with consideration of the factors that are individual to the subject. 72 Dr Allnutt notes that there is argument in the empirical literature about the accuracy of actuarial instruments and concern about their use. He comments that there is also evidence that supports the view that these instruments, while acknowledging their limitation, have greater accuracy in correctly predicting recidivism in the longer term than clinical assessment. He counsels that the STATIC-99 can act as a guide but that it should be cautiously and judicially applied to the individual. He observes that the scientific foundation for the prediction of recidivism has limitations. He approached the assessment of the defendant by using a clinical and actuarial approach. He observes that any opinion as to the risk of recidivism is more professional than scientific. 73 Professor Greenberg expresses similar caution. He points out that the severe limitation with actuarial scales, such as the STATIC-99, lies in the fact they inform about a risk group of sex offenders relative to other sex offenders in the same category and do not identify which offender will re-offend and which offender will not re-offend within the same category. All that can be deduced from the scales is that in a group of sex offenders with similar scores a percentage will re-offend within a 15 year or longer period while the remaining group will not re-offend based on re-arrest rates. 74 Professor Greenberg comments on a further limitation in the value of STATIC-99 which is that the scales have not previously been fully validated on an Australian population. He has conducted a validation study involving a Western Australian sex offender population and found the STATIC-99 to have an acceptable level of validity. He agrees with the characterisation of the instrument as having a moderate accuracy in the prediction of sexual re-offending behaviour. It is better than chance in its prediction, but it should be used in conjunction with a clinically guided risk assessment. 75 Professor Greenberg also comments on another measure of sexual recidivism, the Sex Offender Need Assessment Rating (SONAR) scale, which identifies a number of variables that are thought to relate to sexual recidivism. SONAR addresses five dynamic (changeable over time) risk factors: intimacy deficits; negative social influences; attitudes to sexual offending; sexual self-regulation; general self-regulation and four acute dynamic factors, substance abuse; negative mood; anger and victim access. According to Professor Greenberg, the limitation of this scale is that dynamic risk factors have not consistently been shown to have any influence on the eventual risk outcome, namely reduction in sexual recidivism. 76 The defendant is in the high-risk category of offenders in the STATIC-99 scale. This does not establish to the high standard that s 17(3) requires that he is likely to commit a further serious sex offence. It has been shown to be a predictive tool of moderate value and I have regard to the defendant's high score on it in conjunction with the assessment made of him by the various health professionals based upon a consideration of factors that are specific to him. The results of the assessment of the defendant 77 I turn now to the results of the assessments made by the psychologists and the two psychiatrists appointed by the Court. 78 Victoria Bel carries out risk assessments by using the STATIC-99 and by considering the offender's dynamic risk factors. The latter are determined by reference to information including the answers given by the offender at a structured clinical interview. At such an interview Ms Bel works through a set of questions covering the offender's relationship history; sexual history; social influences; alcohol and other drug history; sexual offence history and attitude to offending. In cases in which an offender does not consent to being interviewed, Ms Bel assesses the dynamic risk factors by reviewing the information contained in various DCS' files. 79 Ms Bel was asked to prepare a psychological assessment of the defendant for the State Parole Authority. She interviewed the defendant on 3 November 2005. He did not agree to a structured clinical assessment, however, he did speak with Ms Bel for over an hour. In the course of this less formal interview he discussed his childhood, history of offending and attitude to treatment. He presented as intelligent and articulate. Ms Bel considered that he used his intellect as a defence against pursuing "uncomfortable options". In Ms Bel's opinion: "[T]he defendant appeared to be very focused on his own history of victimisation rather than his extensive history of sexual offending. He was very resistant to the recommended program pathway i.e. the Custody Based Intensive Treatment program. He disclosed that he is very distrustful and described himself as 'emotionally fragile'" (Victoria Bel, report 15 November 2005, part of exhibit N). 80 Ms Bel identified the defendant's dynamic risk factors as being: · Intimacy deficits – the defendant's relationship history suggested an inability to meet his emotional and sexual intimacy needs in the context of an appropriate sexual relationship; · social influences/supports – Ms Bel noted that it is unclear what social supports the defendant would have in the community and how effective such supports could be in managing his risk of sexual offending; · emotional self-regulation – the defendant had described himself as "emotionally fragile" and as still suffering the traumatic effects of his own childhood sexual abuse; · attitudes – the comments in a letter by Dr John Howard, and in other reports, together with things that the defendant said during the interview were suggestive of him taking little responsibility for his sexual offending. Ms Bel commented that he appeared to perceive himself as a victim of childhood abuse, of vindictive partners, and of "the system" and that he was unwilling to participate in appropriate treatment; · sexual self-regulation – the defendant's criminal history suggested a wide range of deviant sexual interest and difficulties in sexual self-regulation; · general self-regulation – the defendant's criminal history was suggestive of significant antisocial attitudes and behaviour. 81 In Ms Bel's opinion, the defendant's dynamic risk factors suggest that without appropriate treatment he poses a concerning level of risk of sexual re-offending. 82 David Bright assessed the defendant by reference to the STATIC-99 and he read Ms Bel's report and agreed with her conclusion. Mr Bright was not aware that the defendant had completed the coursework requirements for a degree while in custody. He was asked whether the defendant's achievement in this respect is a factor that is relevant to assessing his potential for sexual re-offending. Mr Bright said that there is no evidence that educational achievements are related to risk. He considered that it is positive that the defendant has been able to apply himself at a university level and that this is probably consistent with him being now better able to manage his life. However, Mr Bright observed that educational attainments do not bear on an individual's capacity to deal with emotional stress and that this is a significant factor in assessing the risk of sexual re-offending. 83 Dr Lennings expresses an opinion concerning the likelihood of the defendant re-offending based on the STATIC-99 and on other assessment tools designed to predict risk of sexual recidivism. Dr Lennings has not interviewed the defendant. His assessment is based on his review of the defendant's criminal history and the contents of DCS' files. 84 Dr Lennings notes that the defendant presents as an offender who has moved from targeting adults to teenagers and eventually to pre-pubescent children. He considered that a provisional diagnosis of paedophilic interests might apply, but that the reluctance of the defendant to submit to psychological investigation made it hard to establish a diagnosis. The defendant's refusal to undertake appropriate psychological interviews or treatment left Dr Lennings with no way of knowing whether he has much understanding of what introduces risk into his behaviour or why he offends. 85 Dr Lennings identifies three key variables; (i) the defendant's poor response or reluctance to engage in treatment and supervision, (ii) minimisation, and (iii) deviant sexual interests. Dr Lennings says that in general treatment failure is regarded as a significant risk factor, but he goes on to note that refusal to engage in treatment is not necessarily the same as treatment failure. Dr Lennings considered that the defendant's record of poor response to supervision and minimisation of his offending behaviour and failure to take responsibility for it are matters that raised concerns. 86 Dr Lennings noted the content of reports prepared by Dr Howard, a psychologist with whom the defendant has had contact since he was a child. Dr Lennings considered Dr Howard's report is suggestive of the defendant taking some responsibility for his offending. He comments that the special relationship between Dr Howard and the defendant appears to have allowed him to make comments to Dr Howard that are not reflected in any other source of information. 87 Dr Lennings says that denial is not a significant direct predictor of recidivism. A recent study of released sex offenders in England found that contrary to expectations prisoners who had staunchly denied their involvement in the offence despite a conviction for so doing (and because of this denial were denied an opportunity to attend rehabilitation and thus shorten their sentences) were in fact much less likely to re-offend over a four year follow-up than their convicted counterparts who admitted the offence. Dr Lennings also states that research suggests that remorse does not appear to have much role in preventing recidivism. He comments that just as denial does not necessarily imply recidivism, expressions of remorse do not imply a reduction in risk of offending. 88 Dr Lennings concluded his report commenting that it is unlikely that the defendant will be responsive to treatment due to his failure in the past to engage with treatment, his self-serving comments in relation to it, and the absence of viable and suitably intensive community based programs for him if released. Dr Lennings considered that the most effective treatment of the defendant if released might be biochemical. 89 Dr Lennings concluded: On the basis of my review it seems that Mr Tillman shares many characteristics in common with those serious offenders who are known to be chronic recidivist offenders. The literature sets out the statistical arguments to this, as it does the reason why key dynamic variables are so influential in the decision about recidivism. Whilst approximately 12 per cent of sexual offenders fall into the high-risk group, not all will necessarily be high-risk offenders. However, the presence of high levels of risk on both actuarial and dynamic risk factors makes it more likely than not that he will be a high-risk recidivating sexual offender. There appears to be little in the way of community options that could mitigate the potential he has. In terms of conventional risk assessment methodologies, the likelihood of a sexual offence is high and more likely than not to occur, and the harm attached to such an offence is also likely to be high and enduring given his targets appear to be more likely to be children than any other age group. 90 Dr Allnutt saw the defendant at his rooms on 24 April during the period that the defendant was at liberty in the community subject to an interim supervision order. Dr Allnutt carried out a further examination of the defendant at the Long Bay complex on 10 May 2007. 91 At the time Dr Allnutt first assessed the defendant he was living in a hostel. He was wearing an electronic bracelet. He had been at liberty for six days, having completed a sentence of imprisonment of 10 years. He told Dr Allnutt that he was not happy with the life that he had lived, having spent more than half of it in prison and homes. He was being treated with an antidepressant medication, Efexor. He had been commenced on this medication about two years prior to his release from custody. Before that he had been treated with Zoloft, another form of antidepressant medication. He said that Zoloft had helped to calm him, but that he had felt better following the change to Efexor. He described experiencing reduced sexual interest, which he attributed to the effects of Efexor. 92 The defendant was unable to explain his offences or to offer an explanation for what had motivated him to offend in his interviews with Dr Allnutt. He said that he was disgusted with his offending. At his initial interview the defendant said that he was planning to get some treatment and he was waiting for an authorisation from the authorities in this respect. He said that he needed to "put me life back together". 93 Dr Allnutt obtained a history of the defendant's sexual offences. The defendant acknowledged the rape of the young woman when he was aged 15 years. This offence occurred during the daytime and does not appear to have been associated with the ingestion of alcohol or other drugs. 94 The defendant told Dr Allnutt that he had been out of gaol for about two years and was living with his partner, who later became the mother of his children, at the time of the offence against MJW. He said that he had a poor recall of the details of this offence. He believed that he had been drinking and possibly smoking cannabis at the time. 95 The defendant gave an account of drinking "a fair bit" of alcohol on a daily basis at the time of the sexual offences involving SW. He said that the offending occurred over a period of months. He said that he had first become sexually aroused with SW when the offence happened. Dr Allnutt found it difficult to get a detailed account from the defendant of these offences. It was unclear whether the defendant had a poor memory or was merely reluctant to talk about them. 96 At the time of the index offences the defendant told Dr Allnutt that he had been consuming between six and 12 cans of alcohol a day and smoking around one gram of cannabis a day. He denied the commission of the offences. He told Dr Allnutt that he had been charged with common assault against a 15 year-old girl at this time. He said he did not have much recollection of this offence because he had been intoxicated at the time. 97 Dr Allnutt noted that the defendant's sexual offending has spanned a lengthy period of about 19 years. Dr Allnutt observed: His choice of victim has changed over time and, as noted by other clinicians, he has gradually seen to move down in age, starting with adult age to pubescent and more recently pre-pubescent victims. In my view, this is cause for concern and does suggest an "escalation" in his sexual offending, in that there is an escalation in the choice of more vulnerable victims. His sexual offending could be regarded as recurrent. 98 Dr Allnutt considered that the two sets of offences involving children which occurred with a greater than six-month interval between them was consistent with a diagnosis of paedophilia. 99 Dr Allnutt stated: Although difficult to assess, I have concerns that he maintains attitudes, and values that might justify his sexual offending. I formed this view because of the difficulty in obtaining information from him in this regard; while had made superficial comments about the offending being unacceptable I did not get the impression that he fully appreciated this. He has difficulty in accepting responsibility for the most recent offence and attributes the offence to the victim and the victim's mother pursuing secondary roles. If I accept that the offence has been correctly proven, this would suggest to me that he has not yet reached the stage in his rehabilitation where he appreciates the concern about his sexual behaviour and the need for it to be addressed. 100 Dr Allnutt considered it a concern that the defendant was not able to articulate his motives for sexual offending and that he was thus unlikely to have a capacity to be aware of triggers to sexual offending. Of concern was the history of coping with stressors by the abuse of alcohol. Dr Allnutt considers it positive that the defendant has pursued a therapeutic relationship with the psychologist, Dr Howard. However, he notes that it iss not clear that the therapists with whom the defendant has had dealings in the past were trained in the treatment of sexual offending. In Dr Allnutt's opinion, the defendant requires specialist treatment with mental health professionals experienced in the treatment and rehabilitation of recidivist sexual offenders. 101 Dr Allnutt considers that the defendant meets the criteria for the diagnosis of antisocial personality disorder. He comments on the defendant's history of failure under supervision, and expresses concern about his capacity to comply with any supervision order that may be imposed. 102 Dr Allnutt says that the defendant's reported reduction in sex drive is consistent with the side effects of Efexor. This and similar medications are known to reduce sexual interest and sexual performance and are used in the treatment of sexual offenders. 103 Dr Allnutt assessed the defendant by reference to actuarial measures and by use of the Sexual Violence Risk 20, a tool that provides a framework to guide clinical assessment of risk. He concludes: Overall with regard to the clinical assessment and actuarial measures, the evidence supports the conclusion that he falls into a group of sex offenders who are at a high risk for sexual recidivism at the time of release. There is convergence between the clinical and actuarial assessments, which supports this conclusion. Whether or not he, as an individual will or will not in fact re-offend cannot be stated with reasonable medical certainty. This is because the term "high-risk" denotes a probability and not a certainty. Being a member of a "high-risk group" means that the person belongs to a group of individuals of whom a relatively higher number will re-offend and a relatively smaller number will not. It is difficult to determine if a particular individual within that group will be one of those that in fact offends or one of the others in the same group who in fact do not offend. He will require intense supervision, treatment and monitoring when in the community. The Court should be aware that at this stage there are no comprehensive community based sex offender treatment programs for high-risk offenders that are provided by Probation and Parole. Thus he would enter a community program that might not have the resources or capacities to manage his risk. Whether or not the Forensic Psychology Services could provide more intense follow-up, monitoring and supervision in his particular case would need to be addressed by them. The Community Forensic Mental Health Service, under Justice Health, could assist the Forensic Psychology Services and in conjunction with them provide psychiatric oversight of his depression and supervision of his Efexor or other sex drive suppressant medication should he consent. Private practitioners conduct most of the management of high-risk sex offenders but as far as I am aware they do not offer a comprehensive programme relapse prevention programme. 104 In cross-examination Dr Allnutt said that he had not formed a conclusion about the defendant's risk of sexual re-offending as an individual. 105 Dr Allnutt gave evidence of the adverse side effects of anti-libidinal medication. These include an increased risk of blood clotting; disruption in glucose metabolism with an increased risk of developing diabetes; weight gain; feminisation syndrome which involves features including testicular atrophy, redistribution of body hair; redistribution of body fat, the development of breasts. The medication may also have an impact on bone density with producing a greater risk of osteoporosis. 106 Professor Greenberg obtained a more detailed history of the defendant's sexual offending than the other health professionals whose reports are in evidence. The defendant told Professor Greenberg that he had been drinking alcohol in 1983 at the time of the indecent assault on MK, but that he was not intoxicated. He said that he could give no explanation for his behaviour and that, "I feel repulsed by things I have done in my life. One who experiences things [sexual abuse] in my life, then I go and put someone else through it". 107 In his discussion with Professor Greenberg the defendant admitted to sexually abusing SW on at least 10 or more occasions. He said that at the time he had been abusing cannabis, amphetamines and alcohol, but that he had sexually molested the child at times when he was sober. 108 The defendant maintained his denial of the sexual abuse of MAL. 109 The defendant told Professor Greenberg that he had thoughts of raping the 15-year-old girl in 1997, whom he had taken to the derelict house. 110 Professor Greenberg obtained a detailed history of the defendant's sexual abuse as a child. He said that he had nightmares about the abuse, but that these had abated in his adulthood. He had experienced flashbacks of it. He said, "I feel dirty, it wasn't my fault. I found it hard to be in the sex offender programs because I was surrounded by sex offenders". 111 Professor Greenberg asked the defendant why he could not control his sexual urges to which the defendant responded, "what I done only worse than was done to me". The defendant disputed that he was a high risk of sexual re-offending, stating that he was at a stage in his life where he felt he did not want to go back to gaol and that "I've had enough". In his discussion with Professor Greenberg the defendant asserted that he had not refused the CUBIT program, rather he had refused to go to the area in the Long Bay facility where he had been raped as a teenager. 112 Professor Greenberg considers that the defendant probably has a diagnosis of post-traumatic stress disorder with a mild depressive disorder. 113 Professor Greenberg notes that the defendant's behaviour appears to indicate that he has a sexual preference for both pre-pubertal and pubertal female victims as well as adult female victims. Diagnostically he probably qualifies as at the very least having paedophilic and hebophiliac as well as rape-prone tendencies towards adult victims. 114 The defendant reported a low sex drive at the time of his interview with Professor Greenberg, which he attributed to the effect of Efexor. 115 In his report Professor Greenberg comments that the defendant's acute risk factors include substance abuse. Professor Greenberg, like Dr Allnutt, comments on victim access as another dynamic risk variable. 116 Professor Greenberg concludes: In my view, the likelihood of Mr Tillman committing further sexual offences would be significantly improved should he receive adequate sex offender treatment and adequate sex offender maintenance therapy whilst being released back into the community. Mr Tillman's personality disorder would however be more difficult to treat because of the inherent nature of this chronic maladaptive behaviour. Mr Tillman's risk for sexual, violent or general criminality recidivism, should currently in my view be regarded as high over an extended period of time should he remain in the community. Risk prediction is not an absolute prediction with hundred per cent certainty and there is always a chance, although smaller than that of offending, that he will not re-offend. Without psychiatric and psychological interventions it is likely that his current risk for sexual re-offending should be regarded as moderate – high over the next 10 to 15 years should he remain at large in the community. This prediction of Mr Tillman is based on the actuarial scales, namely the STATIC-99, which has moderate predictive accuracy, the SONAR and my guided clinical psychiatric assessment. His risk would possibly be decreased, although the degree is uncertain at this time, with improved supports in the community, strict supervision, treatment, motivation, compliance, improved insight into his offending behaviour, abstinence from alcohol and elicit substances, removal from negative peer groups, improved attitudes to therapeutic members, amongst other factors mentioned in this report. The CUBIT program 117 A considerable focus at the hearing was on the defendant's refusal to undergo the CUBIT program. 118 The relevance of the evidence concerning the CUBIT program to the first issue for determination involves consideration whether the assessment of the defendant's risk of serious sex offence recidivism is meaningfully affected by the fact that he is an "untreated sex offender". The defendant's refusal to undergo the CUBIT program is a factor that may of itself bear on the question of whether he is likely to re-offend by the commission of a serious sex offence. 119 The CUBIT program is a treatment program for sex offenders assessed as being of moderate to high risk of re-offending. It is a high intensity program conducted in a 40 bed residential unit in the Metropolitan Special Programs Centre at the Long Bay Correctional Centre. 120 The CUBIT program operates on the model of a therapeutic community in which the inmates are expected to practice their newly acquired skills throughout the day with advice and feedback from psychologists and custodial officers who have been specially trained in the treatment of sex offenders. Between group treatment sessions inmates are expected to complete written homework and to provide support and encouragement to other inmates. There are weekly community meetings and other community activities designed to underscore the importance of community involvement for all the participants. Group sessions are conducted five days per week. The program runs for eight to 10 months. Following successful completion of the program the offender moves on to a maintenance program, attending sessions with a psychologist once a week. 121 There was evidence that one advantage of group treatment is that members of the group can provide insights into the problems of other members on the basis of personal experience. Group members may challenge the behaviour and attitudes of peers more effectively than a therapist on some occasions. 122 The CUBIT program has been operating for just over eight years. Mr Bright said that there have been some 150 to 200 graduates of the program. A pilot evaluation of the program involving a comparison of the rates of re-incarceration of graduates of the program against the STATIC-99 predictions has been undertaken. The results of the pilot evaluation are contained in a report that is annexed to Mr Bright's affidavit (part of exhibit G). The study looked at a sample of 104 treated sexual offenders. This group included offenders who had completed the CUBIT or the CORE program in the period November 1999 to September 2005. CORE is a less intensive treatment program for offenders assessed as a low risk of recidivism. The 104 individuals in the pilot study had been at liberty in the community between six months and six years. The average time in the community was 3.36 years. The results of the pilot study point to the CUBIT program as having some impact in reducing sexual re-offending: High-risk sexual offenders were re-incarcerated at lower levels than predicted by the STATIC-99. 123 Mr Bright acknowledged that the pilot study had limitations, including that it was based on re-incarceration rates and not re-conviction rates (STATIC-99 measures the latter). The number of high-risk offenders in the pilot study was small. The pilot study did not involve a cohort who had been in the community for five years, whereas the predicted rates under the STATIC-99 start with the rate of re-conviction over a period of five years. 124 Mr Ware acknowledged that it was difficult to assess the effectiveness of the CUBIT program in light of the absence of the results of studies carried out on a sufficiently large number of individuals over a sufficient length of time. He said that the program was designed in accordance with best practice as described in the literature relating to treatment programs around the world. He referred to a recent study by the Prison Service in the United Kingdom, which showed that high-risk sex offenders who had received 180 hours of face-to-face contact re-offended at similar rates to untreated high-risk sex offenders. The same study showed a reduction in sexual re-offending for offenders who had undergone a high intensity treatment program involving up to 300 hours of face-to-face contact. The CUBIT program provides of the order of 300 hours face-to-face treatment. 125 Dr Allnutt was asked to comment on whether a person who has been through a treatment program, and who is able to give a plausible account of the reason for his or her offending, is less likely to re-offend. He said this was difficult to say. He observed that at least an articulated understanding is better than no understanding at all. He went on to say: However an articulated understanding in and of itself does not necessarily mean that the risk is necessarily reduced. It could be something that's just very well learnt and referred to by rote. So just a mere articulated understanding is not enough to make one feel safer. 126 Professor Greenberg considers that the CUBIT program may have some flaws but that, "all in all it's probably a good program" (T 107.57). He agreed that there is no really solid evidence that the CUBIT style of program is more effective than other forms of treatment including individual counselling. He explained that it is difficult to carry out studies on the effectiveness of treatment for sexual offending. He pointed out that one needs to look at some 10 or 20 years of data to determine the rate at which people re-offend. There is the further problem that to carry out randomised studies would require that some sex offenders be assigned to treatment and others to no treatment. Professor Greenberg considers that, while research does not currently indicate that there is a clear treatment effect with sex offender programs, there is some "softer" evidence in the literature that sex offender treatment programs do assist in reducing recidivism. 127 The defendant has refused to undergo the CUBIT program. He has given a number of reasons for this. They include that over the years he was not assessed as suitable for CUBIT because he denied the commission of his index offences. Ultimately he acknowledged in evidence that he had been told he would be allowed to undertake the program despite his denial of the index offences. Other reasons included that he doubted the effectiveness of the program and he was concerned that disclosures made in group sessions were not treated confidentially. Another reason is that CUBIT is housed in One Wing of what was the old Central Industrial Prison and the defendant was anally raped in One Wing as a fifteen year old inmate in 1977. 128 Mr Bright interviewed the defendant at the Metropolitan Special Programs Centre, Area 5, in September 2006. The purpose of the interview was to seek the defendant's consent to referral to the CUBIT program. The defendant told him: I have never refused to do treatment, but I have concerns about doing CUBIT. I was sexually assaulted in One Wing when I was 15. I will be re-traumatised if I have to go back there. 129 Mr Bright recorded that on this occasion the defendant also said words to this effect: I don't want to talk in a group. I'm pissed off that I tried to get help before when I was in gaol, but now I'm being asked to do treatment right at the end of my sentence. 130 Mr Bright spoke with the defendant again on 18 September 2006, on which occasion he offered the defendant the opportunity to enter the CUBIT program. The defendant reiterated his view that going back to One Wing would be re-traumatising for him. The interview concluded with the defendant refusing to do the CUBIT program. 131 In a report prepared on 1 February 2007 Mr Bright reviewed DCS' records, noting that the defendant had been housed in One Wing from time to time over the years and that there was no notation or correspondence from the defendant suggesting that he had been uncomfortable with his placement on these occasions. 132 Ms Bel said that in her discussion with the defendant concerning his reluctance to be housed in the CUBIT program he told her that he had previously been housed in accommodation adjacent to One Wing and that he had experienced traumatic symptoms. She said that he might have described flashbacks. He had certainly indicated the experience of symptoms of trauma by being in that vicinity. 133 Dr Allnutt observed that: He has manifested persistent reluctance to engage in a treatment program. While poor motivation at intake is not associated with increased risk for recidivism; his long-term reluctance despite recidivistic behaviour is cause for concern. He bases his current reluctance on anticipatory anxiety about returning to the site of his abuse, which given the nature of the abuse, would be reasonable; however at the same time he appears to be reluctant to pursue any other options, even if the options involved changing the venue to suit him, other than those options on his own terms. His options do not appear to include a specialist sex offender treatment program or follow-up with professionals expert in the area of sexual offending. 134 Dr Allnutt did not rule out that the defendant would suffer distress being housed in One Wing in which the CUBIT program is housed. He commented that the defendant had been exposed to a significant stressor in that wing at the age of 15 and that this was a vulnerable age and one might expect the experience to have been a quite significant and stressful one. 135 In his discussion with Dr Allnutt the defendant was adamant that he would not undertake the CUBIT program: "I am not going to do this for them now, for seven years they have said no, they have showed no thought about it in the last seven years". 136 Professor Greenberg did not dismiss the defendant's anticipated anxiety about being housed in the CUBIT program. He noted that the defendant had offered a number of reasons for not wishing to undertake the CUBIT program but he went on to say: I gave some credibility to the PTSD. I think he is a man who comes from a very abusive background. Both his parents were alcoholics. His father was violent. He himself was sexually abused as a young child as so he's got a lot of trauma in his past and, of course, his allegations that he was raped in prison. I gave some credibility to that, that there might be, certainly there's some elements that could be true. All the same, he has some PTSD symptoms and placing a person in such a situation he may have some anxiety type of symptoms, because he's re-experiencing that. The defendant's attitude to treatment generally 137 The defendant gave an account to Dr Allnutt that the impact of his offending on others had never really "hit home" until one of his daughters told him in 2005 that she had been abused and that this was "when the penny dropped". He told Dr Allnutt that he realised he needed to get help. He told Professor Greenberg that he wanted sexual treatment for his sexual offending behaviour. 138 Dr Allnutt discussed anti-libidinal medication, such as Androcur, with the defendant. The defendant did not want to take this medication because of its side effects. I have already referred to the evidence concerning the side effects of this medication. The defendant's refusal to take it is not unreasonable. 139 Dr Allnutt said that he had difficulty in obtaining detailed information about aspects of the defendant's offending. His overall view was that the defendant was uncomfortable talking about it. He assessed the defendant's level of participation in the examination as overall being adequate. He said there had been a deficient in the amount of information concerning the offending itself, but there did not appear to be resistance to being evaluated. 140 The defendant appears to have been forthcoming in his interview with Professor Greenberg. 141 Narcisa Sutton is a psychologist employed by the DCS as the Therapeutic Manager of the Forensic Psychology Services Branch (FPS). This Branch provides treatment for sex offenders in the community. Following the defendant's release on an interim supervision order Ms Sutton was appointed to conduct therapeutic treatment sessions with him. She met him on four occasions. Ms Sutton says that at the first meeting she explained that she would provide feedback to the Department in relation to the meetings. He asked how much of the meetings would be confidential and she explained to him that because the meetings were made as the result of orders made by the Court she was not able to guarantee confidentiality. The defendant responded, "Alright. I will talk to you about the sexual offences I have committed, but I will not talk to you about the sexual assault where I was the victim". Ms Sutton considered that the defendant was interested and engaged during their meetings. He discussed his offences with her, with the exception of the index offences, in respect of which he maintained that he was not guilty. In relation to the common assault of the 15 year-old girl, the defendant volunteered information that he had lured the girl into the derelict house in order to have sex with her, by force if necessary. He told Ms Sutton he had changed his mind when he saw the girl's fear. He offered this as evidence that he had already, at this stage, made the commitment not to sexually re-offend. 142 Each of Ms Sutton's therapeutic sessions with the defendant lasted around 90 minutes. She reported that: In contrast to the denial and minimisation described above, Mr Tillman appears to hold some remorse for the damage he has caused and states that he wants to know how he could have allowed himself to commit the sexual offences, given his own sexual victimisation as a child, to ensure that he does not re-offend. He has expressed a willingness to participate in treatment, as long as it is one on one. On the basis of the two meetings we have had it is difficult to assess how genuine Mr Tillman is in his desire to change. However, after the some initial posing early in the first session where he aired his grievances against the Department, his behaviour suggested he was engaged in the process and he has been willing to discuss issues relevant to future treatment. I cannot comment whether this reflects commitment to treatment or compliance with the restraints imposed on him by the Court. 143 Dr Daniels first met the defendant in 2000 in his role as a visiting medical practitioner attending the Long Bay correctional complex on behalf of the AMS. He had contact with the defendant through these AMS visits until 2003. The defendant attended all appointments with Dr Daniels at the Long Bay complex. During his brief period of liberty subject to the interim supervision order the defendant attended an appointment with Dr Daniels at the AMS in Redfern. The purpose of the appointment was to review the defendant's prescribed psychiatric medication and to obtain a referral to a consultant psychiatrist. Dr Daniels re-prescribed Efexor. He arranged a referral to the AMS' consultant psychiatrist, Dr Nicholas Burns. 144 Dr Daniels considers that he has established a productive and therapeutic relationship with the defendant and there are very good grounds to believe that the defendant would comply with his future treatment and referral directions and those of any specialist psychiatrist to whom Dr Daniels may refer him. 145 Dr Daniels is not himself expert in the management of sex offenders, nor is Dr Burns. The AMS would arrange for the defendant to have follow up with an appropriately qualified counsellor as recommended by Dr Burns. The evidence disclosed that there are at present few persons with training in the treatment of high risk sex offenders in practice in the community. 146 Dr Daniels did not form any assessment of the defendant's risk of re-offending. 147 The defendant said that he had got on well with Narcisa Sutton. He was willing to continue to see her and to see a psychiatrist recommended by the AMS. He intends to have ongoing contact with Sister Crotty and with Dr Howard of the Ted Noffs Foundation. He said of Dr Howard that, "he is my childhood psychiatrist and has known me since the age of eight. I want to solve my issues concerning my childhood issues and keep them separate from my sex offending issues" (T 158.33-36). 148 The plaintiff's counsel took up with the defendant his desire to keep separate any treatment in relation to his own history of sexual abuse from that of his sexual offending. It was put to him that he had refused to discuss the offences committed against himself in his talks with Narcisa Sutton. He acknowledged this, saying, "I hadn't got to that stage yet where I trusted someone enough to open up. I mean I only had four meetings with her" (T 167.11-13). He said that if he received advice that there was a link between the issues of his sexual offending and his history of abuse he would be willing to deal with the issues together. 149 In evidence the defendant did not acknowledge certain of the admissions that he had made to Professor Greenberg, although he did admit that he had intended to rape the 15 year-old victim of the 1997 common assault. He was asked whether he had a memory of this offence at the time he spoke with Dr Allnutt (who had obtained a history that he had little recall of the offence). He said he had been more comfortable in speaking with Professor Greenberg. He went on to say, "you expect me to just go and see someone, one-off, and just open up? It doesn't work that way" (T 163.44-45). The defendant's evidence concerning his offending was less frank than the history that he gave to Professor Greenberg and he did not acknowledge certain matters that he had disclosed to Dr Allnutt. In assessing his evidence I take into account that this proceeding involved exposure in the public setting of a courtroom of intimate aspects of his sexual functioning, which would be confronting for any person (T 117.44 – 118.58; T 166.25-29). I accepted the defendant's evidence of his willingness to undergo treatment with Narcisa Sutton and with any specialist to whom he was referred by Dr Burns. The likelihood of committing a further serious sex offence 150 I turn now to a consideration of whether the plaintiff has established to the high standard that the Act requires that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. I have noted Mr Cook's principal submission, which is that this defendant, an articulate and intelligent man who is now 45 years of age and who has undertaken tertiary studies during his last period incarceration, cannot be assessed as likely to commit a further serious sex offence. The circumstance that the defendant's last offence was committed when he was 34 years of age and that he is now in middle age was prominent to Mr Cook's submission. 151 Dr Allnutt agreed that from about age 45 sexual recidivism for the sorts of offences of which the defendant has been convicted is on the decline. He was asked what, if any, impact the fact that the defendant had spent the last 10 years of his life in prison had on the prospects of him re-offending on release. He said that in answering this question it was necessary to fall back on his own subjective view because he was not aware of research on duration of incarceration as a factor associated with sexual recidivism. He went on to say this: I think it is probably best to fall back on age there. Age does seem to be a factor that does correlate with reducing recidivism risk over time. I think one could say that as one ages while one is incarcerated, the older one is at the time of release, that might relate to a reduction of future risk, especially over 40 or 45. I'd say over 45 onwards, from then on (T 98.24-30). 152 While Dr Allnutt provided support for the view that the defendant is now at an age where the likelihood of him committing sexual offences is reduced, I do not consider on the whole of the evidence that any significant discounting of his risk is to be made on this account. 153 Dr Lennings says that, as a general rule, offenders mature out of offending. He referred to studies which show that a person after entering his or her thirties tends to reduce their offending. He went on to explain that the research suggests that age is relevant although only gradually. Recidivism drops off faster for sex offenders who assault adults than it does for sex offenders who assault children (extra-familial and incest offenders). Extra-familial offenders show little effect for reduction in offending until after the 50th year. 154 Dr Lennings concluded that the defendant, who has a history of child and adult sexual targets in his offending pattern, is to be given little beneficial effect for his age at the present time. Dr Lennings' opinion is based on a review of the studies whereas Dr Allnutt said that he was not aware of the research in this area. 155 Professor Greenberg resisted the proposition that the risk of sexual recidivism from 45 onwards is likely to decline. He said it is likely to significantly decline after about 60 or 65. He described the process as a gradual lowering of risk. Professor Greenberg considered the risk to be still significant up until about 60-65 years. 156 The STATIC-99 scoring rules are based, among other things, on research which is said to show that sexual recidivism is more likely in an offender's early adult years than in an offender's later adult years. A graph depicting the age distribution of sexual recidivism in sexual offenders forms part of the coding rules (exhibit G). That graph suggests that the risk of the commission of rape offences starts to drop for sex offenders from age 45 onwards. There is a statistical increase in the risk of incest offences from age 45 to around the mid-50's. Incest offences appear, for the purpose of this graph, to be distinguished from extra familial child molestation offences. The defendant has not committed an incest offence as defined for the purposes of the criminal law, but he has committed sexual offences against children who formed part of his family at the time the offence was committed. The statistical evidence to which I have referred does not seem to me to be a basis for discounting Professor Greenberg's evidence that the benefit of age in reduction of recidivism for sexual offences is more likely to cut in at around age 60 to 65. 157 In assessing whether the defendant is likely to commit a further serious sex offence if he is not under supervision it is necessary to take into account his history of repeated sexual offences, particularly in the context of alcohol abuse. If the defendant is returned to the community without supervision the probability is that he will abuse alcohol. He has a history of very poor self-regulation in sexual matters. 158 The evidence is unclear as to whether the defendant is a paedophile. Some of the experts have commented on the fact that his victims have become younger over the years and that the two last offences were against children. It is to be borne in mind that the last offence in point of time was the assault of the 15 year-old girl, which appears on his criminal record as a non-sexual offence of violence and yet which plainly had a sexual motivation behind it. 159 It may be that the defendant is not a paedophile, but that he is a more versatile sexual offender who has a pattern of forcing sexual attention on any female who is at hand, particularly when he is intoxicated. He has a pattern of committing sexual offences within a relatively short period after his release from custody. 160 I accept that at an early stage in his present sentence the defendant was given to understand that he was not suitable for sex offender treatment programs because he maintained his denial of the index offences. There is material in a report prepared by Mr Bright, which is annexed to his affidavit (exhibit G), which provides support for this conclusion. 161 The defendant's belief that his denial of his index offences precluded him from any treatment program was one that he understood had consequences for him, including that he was not likely to be released on parole and his classification remained at a higher level than if he undertook a program (this at least is the tenor of a case note dated March 2004). Nonetheless, not later than November 2005 the defendant had been given to understand that he could undertake the CUBIT program while maintaining his innocence of the index offences. 162 The defendant's refusal to undertake the CUBIT program appears to be the result of a combination of factors. By November 2005 he had been refused parole and was facing the likelihood of completing his sentence full term or very close to it even if he undertook the CUBIT program. His exchange with David Bright, that I have set out above, suggests that he was somewhat hostile and resentful of the stance taken by the DCS with respect to sex offender treatment programs. 163 The defendant has not been recalcitrant in relation to rehabilitative programs generally. He has been an effective participant in drug and alcohol rehabilitation group sessions. His stated reason for not wishing to be housed in One Wing on the face of things does not sit well with the material in Mr Bright's report. Nonetheless, neither of the independent psychiatrists discounted that his reluctance to attend the CUBIT program may be associated with the trauma of the earlier assault. 164 The defendant has not been unwilling to undergo any form of treatment for his sexual offending. He has indicated a willingness to undergo one on one treatment. Narcisa Sutton assessed him favourably in this respect. There was evidence that offenders may resist treatment which they find confronting and seek out treatment options which are less challenging. This is likely to be true of the defendant. While I do not consider that the defendant is intransigent in his opposition to treatment for his admitted history of sexual offending it remains that at the present time the expert evidence points to the absence of treatment as a factor that makes him unlikely to identify triggers to sexual re-offending. 165 Taking into account the expert evidence, particularly the opinions of Dr Allnutt and Professor Greenberg and looking at the inferences to be drawn from the defendant's pattern of past offending, upon the standard of proof of high probability, I consider the plaintiff has established that it is likely that the defendant will commit a further serious sex offence if he is not kept under supervision. In this respect, I note Professor Greenberg's opinion set out at paragraph [116], which is that in the absence of treatment over an extended period of time the defendant's risk of re-offending is greater that the chance of not re-offending. The adequacy of supervision under an extended supervision order 166 A continuing detention order may be made if and only if the court is satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order. 167 In considering this second limb of the test posed by s 17(3) of the Act it is, again, necessary to take into account the matters set out in subsection (4). The plaintiff points to the safety of the community and to the body of evidence that high-risk sex offenders require to be treated by a program featuring a high level of intensity in a custodial setting. The plaintiff also pointed to the defendant's poor response to supervision while on parole as suggestive that he would not be compliant with the conditions of an extended supervision order. 168 Each of the psychologists in the employ of the DCS considers that the only treatment program that is suitable given the defendant's high risk is the CUBIT program. 169 Mr Bright said that the FPS would not provide treatment to the defendant because he has been evaluated as a high risk and the Department does not provide treatment programs for high-risk offenders in the community. 170 Mr Bright also said that it would be difficult to provide treatment of the same level of intensity as the CUBIT program in the community. This is because it is important to the operation of the CUBIT program that the inmates live together and have recourse to trained psychologists for as many as 10 hours per day. Mr Bright agreed that there was no reason why the DCS could not provide a regime like the CUBIT program in the community, but he pointed out it would involve a policy shift and the provision of additional resources. 171 Mr Bright agreed that it was possible that over time and with intensive treatment a regime could be designed outside custody which would lessen the risk posed by the defendant. In re-examination he explained what he meant in this respect: Well, what I meant was that it takes time to make the sufficient changes for an offender, that he can start to manage his risk of re-offending and that does not happen overnight or in two weeks or in three weeks. That it does take some time. And it goes partly to what I suggested previously, about why we do high-risk and high intensive treatment in custody rather than in the community; because by the time they finish the treatment in custody they have hopefully learnt some of the skills that they will need to be able to manage their risk (T 43.29-38). 172 Jayson Ware's overall responsibility within the DCS includes management of the CUBIT and CORE programs and the FPS. Mr Ware is a psychologist with a background in the treatment of sexual offenders. 173 Mr Ware set out in his affidavit a program that would made available to the defendant should he be subjected to a continuing detention order. The Department could offer the defendant priority entry into the PREP (Pre-treatment) readiness program. The objective of this program is to increase offender motivation and reduce resistance towards treatment. It is not a treatment program in itself, but it is designed to prepare an offender for entry into the CUBIT or CORE programs. Mr Ware considers that a number of the defendant's reasons for refusing to complete treatment in the CUBIT program could be addressed in the motivational context of the PREP program. He notes that the Department has an Aboriginal Special Projects Officer attached to the sex offender programs. He says that this officer could work with the defendant to lessen his cultural concerns about the CUBIT program. 174 In Mr Ware's opinion a number of treatment options would be unsuitable for the defendant. Individual sex offender treatment delivered by a psychologist employed with the Department's sex offender program in his opinion is not a suitable option. 175 According to Mr Ware best practice standards are that high-intensity treatment programs for sex offenders should provide up to 300 hours of face-to-face therapeutic contact. The same standard suggests that there are significant advantages to group-based treatment which are not met by individual treatment. 176 Mr Ware said that there is very limited research available to suggest that individual treatment for sex offenders assessed to be a high-risk of re-offending is effective. 177 In this connection I note that Mr Bright in his affidavit states (at [39]): However, it should be noted that despite sound theoretical rationales for employing group therapy rather than individual than individual therapy, and despite the preference for group therapy among the majority of sexual offender treatment providers, there is little evidence of differential treatment efficacy with adult sexual offenders. DiFazio, Abracam, and Looman (2001) reported a comparison of two groups of comparable high-risk sexual offenders who underwent either a combination of group and individual treatment or individual treatment alone. There is no significant difference in the rate of recidivism of the two groups. 178 Mr Ware said that it was the policy of the DCS to only provide treatment for low to moderate sex offenders in the community. In line with what he understood to be the recommendations made by the Royal Commission into the New South Wales Police Service in its Paedophile Inquiry, the DCS developed high-risk sex offender treatment programs in custodial centres so that the community was safe from offenders assessed as being high risk. Needless to say, any recommendation made in the Report of the Royal Commissioner, which was delivered in 1997, was made before legislation permitting the detention of persons in custody beyond the term of their sentences (including in cases in which adequate supervision is not provided in the community) was contemplated. As McClellan CJ at CL observed in Gallagher at [77] it may be that with the enactment of this legislation thought needs to be given to the provision of community based treatment programs with an appropriate level of supervision. I note that Narcisa Sutton says that the policy is under review. 179 The evidence is that at the present time there is no treatment available in the community that is suitable to address the defendant's long-standing sexual offending behaviour. In coming to this conclusion I have, again, placed particular weight on the opinion of Professor Greenberg. 180 Professor Greenberg said: What I'm saying is that, in practical terms, it really would depend on what the courts decide but it would be difficult to provide treatment in the community. Not impossible but I would say very difficult, because he would need to find both a psychiatrist to look after him as well as provide a fairly high intense program which would address the factors of which could reduce recidivism, so not impossible but difficult, very difficult in the current structure. (T 107.45-54.) It was put to him: Q. But there's no evidence to show that it has benefits over and above one-to-one counselling. Do you agree with that? A. I will agree to it provided that the one-to-one treatment was equivalent in terms of what was provided to the group format. In other words, just seeing a person by generally psychologist or psychiatrist would not be equivalent to a sex offender program. It needs to be a person who could provide specific sexual offending therapy. Q. Yes? A. To address that sexual offending behaviour. Q. Yes? A. The problem is that the degree of input from the therapist would have to be very frequent. Q. Well, is it? A. The answer to your question is are they equivalent? Q. Yes. A. It could be equivalent. It's possible but there's no study which clearly shows either way. Q. Alright. And is that partly because Corrective Services doesn't provide such treatment to persons in custody, that is, individual consultations with an appropriately qualified professional? Is that why we have no good basis of comparison? A. It's not only Corrective Services. It's the way the programs are run, you know, in the western world. People who have a high risk, who are a risk to the community tend to be in custody, and that's where high-intensity treatment is provided and that's clearly universal in the western world. Q. Yes? A. Yes. People of low risk, or people who had treatment and then being released in the community, attend programs which are called maintenance, perhaps, or low intensity programs, because they have benefited, hopefully, from the treatment. In other words, their risk has been reduced from the high to a lower risk and then when released in the community they don't require that intensity so, I mean, there have been people who were high-risk who have been in the community and, yes, they are treated in the community because there's no option. I mean, if they're in the community better treat them than provide nothing, because the risk to the community is obviously much higher if they don't go into a therapeutic program. Q. Yes, it is conceivable that it is possible to conceive of a regime for Mr Tillman, were he released on a supervision order, which would be a combination of monitoring, reporting, and intensive counselling, which would be likely to reduce his level of risk do you agree with that? A. Well, I'm not sure. Well, I'm not sure what is possible or what is not possible because it really depends … Q. From a resources point of view? A. Yes. Q. Right. Forget about that for the moment, but it would not be difficulty for you, as a professional specialising in that area, to conceive of a regime which would reduce whatever risk he may pose to the public? A. Well, it would only be reduced after he has benefited from treatment, so during the initial stages he would remain high risk. Obviously, if he engaged and is motivated and complied with treatment, after a period of six, 12 months, the benefits of that treatment hopefully would kick in and that would reduce his risk. Q. Yes. So, obviously until that reduction comes into play he would require a higher level of monitoring and supervision by Corrective Services personal to contain that risk, or at least to reduce it? A. Yes he would. I mean, from a practical point of view what you're suggesting would be very difficult. I am not sure what resources they have or what is possible but it would have to be structure of the whole programme, I presume. That's because that's not really how things are delivered. They're most certainly not currently delivered that way. 181 Dr Allnutt identified a number of suggestions for appropriate conditions, were the defendant to be released under an extended supervision order. He considered that if these conditions were abided by the defendant's risk would be reduced. Dr Allnutt observed that "alcohol and access are two significant risk factors". Dr Allnutt considered random and alcohol and drug screening would be a useful risk management tool. He was less impressed by the suggestion of placing the defendant on a curfew. As he observed, people do not just offend at certain times. 182 It is necessary to consider the defendant's history of compliance with obligations to which he has been subject while on release on parole in considering whether adequate supervision cannot be provided by an extended supervision order. His record of compliance is poor. 183 It is true that his last failure on parole was many years ago and that he is now in middle age and that he has shown some signs of self discipline most notably by the completion of the academic requirements of the degree course. 184 The defendant was at liberty following the expiration of his sentence of imprisonment between 18 April and his arrest on 3 May pursuant to the order of the Court of Appeal. During this period he was closely monitored by the Probation and Parole service. He attended interviews with Dr Allnutt and Professor Greenberg. He attended four counselling sessions with Narcisa Sutton. He was visited at the hostel by his probation officer. He had regular telephone contact with Mr Fahs of the DCS' Special Visitation Service (the SVS). 185 It is not suggested that the defendant breached the terms of the orders imposed by Hoeben J. Nonetheless, the plaintiff submits that his compliance with supervision demonstrated that he was selective in his disclosures to the SVS. This is because on 21 April 2007 he had been instructed by Ms Fahs not to go near the Westfield shopping centre at Parramatta. This advice was renewed in the course of the telephone discussion between Ms Fahs and the defendant on 22 April. However, on that day he was followed into the Westfield complex by a member of the surveillance team. 186 A surveillance operative stated that he had seen the defendant walk from the hostel in company with another male resident of the hostel and enter a shoe shop situated in Church Street, Parramatta. Later, he saw the defendant enter the Parramatta Railway Station via the stairs on Darcy Street, still in the company of the other male resident. He walked into a newsagency located inside the Parramatta Westfield shopping centre, where he purchased a newspaper. He left the newsagency and walked along a concourse inside Westfield, towards the food court. Before reaching the food court he turned left and exited through a fire exit door. In evidence, the defendant was cross-examined about the suggestion that he had gone to the Westfield shopping centre. He said that if he had gone into the Westfield shopping centre it was a mistake. He thought the Westfield shopping centre was located on the other side of the road and he did not recall going into it. I accepted him. 187 There were two other incidents which the plaintiff relied on in support of the submission as to the defendant's asserted relatively poor level of cooperation with supervision. I do not propose to detail them. In my view neither is a matter of great moment. I consider that the evidence establishes that over the short interval that he was at liberty on the supervision order the defendant complied with it in a satisfactory manner. However, the period of his release under supervision was too short to draw any meaningful conclusion concerning the future. 188 The Act provides that a detention order may be made if and only if the Court is satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order. 189 Dr Allnutt's evidence is that the prominent risk factors for this defendant are alcohol and access [to victims]. Stringent conditions could be placed on the defendant including that he not consume alcohol and that he submit to random breath and urine analysis. These may lessen the risk of re-offending in the context of alcohol abuse. 190 The defendant's sexual abuse of children has occurred in a domestic context. Conditions of an extended supervision order could be framed to ensure that he does not reside in premises with a child under the age of sixteen years. 191 It remains that the defendant has in the past targeted teenage girls; the run-away girl who sought his protection, the 15-year-old girl at the social function in 1983 and the 15-year-old girl whom he encouraged to accompany him to the derelict house. He was on bail charged with the sexual offences against his nine year-old stepdaughter at the time of this last offence. It occurred in daylight hours. He struck up an acquaintance with the victim in a shopping centre. 192 The evidence points to the defendant having long-standing deviant sexual behaviours. I am satisfied that treatment requires the defendant to undergo an intensive program involving regular prolonged contact with a therapist trained in the treatment of sexual offenders and that there is no suitable program available in the community. 193 In light of the defendant's history and taking into account Professor Greenberg's evidence that I have set out at [180] above, I am satisfied to a high degree of probability not only that the defendant is likely to commit a further serious sex offence if he is not kept under supervision, but also that adequate supervision will not be provided by an extended supervision order. 194 In the plaintiff's submission, the appropriate course is to make a detention order for the maximum length that the Act allows and to leave open that the defendant may apply under s 19(1) of the Act to vary or revoke the order in the event that his circumstances change. I am not persuaded that is the approach to be taken. 195 A continuing detention order has dire consequences for the defendant. It is made because of the need to protect the community. The defendant's unwillingness to undertake the CUBIT program has been for reasons which include, on the estimate of each of the independent psychiatrists, include some measure of anticipated psychological discomfort arising out of his own assault in custody many years ago. It may be that this can be overcome and that he is able to undertake the CUBIT program with appropriate support from staff within the DCS. In this event, his continued detention after completion of the program may not be justified. It is troubling that at the present time no suitable treatment is available in the community. Given that the defendant is willing to engage in some form of treatment, his detention pursuant to the Act should not extend beyond 12 months without further order of the Court. ORDERS 1. Pursuant to s 17(1) of the Crimes (Serious Sex Offenders) Act 2006 Kenneth Davidson Tillman is to be detained in a correctional centre for one year from today; 2. Pursuant to s 20(1) of the Act issue a warrant for the committal of Kenneth Davidson Tillman to a correctional centre for the duration of the continuing detention order referred to in order 1 above. ******* 18/06/2007 - Grammatical corrections - Paragraph(s) [23], [129], [137] [182], [183], 18/06/2007 - grammatical error - Paragraph(s) [103] 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.