New South Wales Supreme Court CITATION : The State of New South Wales v Manners [2008] NSWSC 1376 HEARING DATE(S) : 17 December 2008 JUDGMENT DATE : 19 December 2008 JUDGMENT OF : Hulme AJ DECISION : The defendant be subject to extended supervision for a period of 5 years CATCHWORDS : SERIOUS SEX OFFENDER - application for extended supervision order - defendant completed CUBIT and other programs - issue as to term of order - paedophile with high risk of re-offending - conditions of order - appropriateness of ban on alcohol consumption - notification of schedule of proposed movements - appropriateness of requiring the taking of antilibidinal medication Crimes (Serious Sex Offenders) Act 2006 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Child Protection (Offenders Registration) Act 2000 Crimes Act 1900 CATEGORY : Principal judgment R v Manners [2004] NSWCCA 181 Attorney-General for NSW v Tillman [2007] NSWSC 605 Attorney-General for NSW v Quinn [2007] NSWSC 873 State of NSW v Manners [2008] NSWSC 1242 CASES CITED : State of NSW v Thomas [2008] NSWSC 1340 Tillman v Attorney General for the State of NSW (2007) 178 A Crim R 133, [2007] NSWCA 327 Cornwall v Attorney General for NSW [2007] NSWCA 374 Attorney General for the State of NSW v Hadson [2008] NSWSC 140 State of NSW v Tillman [2008] NSWSC 1293 NSW v Quinn [2008] NSWSC 1080 PARTIES : State of New South Wales (Plaintiff) Andrew Robert Manners (Defendant) FILE NUMBER(S) : SC 2008/15216 COUNSEL : Ms C Adamson SC; Ms S Callan (Plaintiff) Mr M Johnston (Defendant) JUDGMENT Introduction 1 HULME AJ: The State of New South Wales applies by Amended Summons for an order pursuant to s.9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (the Act) that for a period of 5 years, the Defendant, Mr Andrew Robert Manners, be subject to extended supervision. 2 The Defendant does not oppose the making of an order but has taken issue with the length of the term of the order and with some of the conditions sought by the Plaintiff. Non-publication 3 Both parties sought an order that no evidence in these proceedings be published that would identify the defendant's address, the address of any member of his family, or the name and address of his employer. That seems a sensible and appropriate order to make. History of offending, imprisonment and response to rehabilitation programs 4 The defendant was born in May 1975. 5 In 1994 he was visiting a family in North Queensland for two weeks around Christmas. On Boxing Day he indecently assaulted a female child of the family who was aged about 8 by touching her vagina. 6 In the period December 1996 to February 1997 he indecently assaulted two daughters, aged 6 and 7, of a family he met through his mother's Scottish dancing school. The offences involved forcibly rubbing the victims against his body and performing oral sex upon them. One of the victims was assaulted at her sixth birthday party where he was providing entertainment as a clown. 7 There were two further victims, sisters aged 9 and 11, in this period of offending. Their family lived in a flat at the rear of a house he was living in at the time. He used to baby-sit them and, in January 1997 he moved in, sharing a bedroom with one of the victims. In this context he indecently assaulted the two girls in a variety of ways, including performing oral sex upon them and having one of them masturbate and perform oral sex on him. 8 In the period May 1996 to February 1997 the defendant committed offences against a 3 year old girl. The details are scant but the remarks of the sentencing judge included that the offences were "very serious", they were committed over a period of some 9 months, and that the defendant had been in a position of trust. In a record of a police interview the defendant admitted engaging in oral sex with this 3 year old girl who was left in his care on a regular basis. 9 These offences resulted in sentences being imposed in Queensland on 23 January 1998 and 8 December 1998. On the first occasion he was sentenced to imprisonment for 16 months with a non-parole period of 5 months commencing on 23 January 1998. On the second occasion he was sentenced to imprisonment for 4 years with a non-parole period of 9 months commencing on 8 December 1998. 10 Whilst serving these sentences the defendant completed a Cognitive Skills Core Program (twice) and a Sex Offenders Intervention Program. In an application to be released on parole to New South Wales dated 15 November 1999 he stated that completion of both of these programs had been "extremely valuable". Through the Sex Offenders Intervention Program he said he had been able to tailor a relapse prevention plan to his own needs: "I was able to identify my cues and triggers that led to my deviant thinking and eventual acting out. I was able to formulate Adaptive Coping Responses (ACR's) which are necessary for me in the event that I approach or enter a High Risk Factor/Situation (HRF/S) in the future. I was able to achieve in depth understanding in my many cycles I have in my life". 11 He was later to describe the Sex Offenders Intervention Program as "the best course I have ever undertaken as well as being the most painful". 12 An Exit Report for this program of 20 December 1999 described a successful completion of the program by the defendant. This included achieving the final objective of development of a relevant Relapse Prevention Plan. He was considered to be a suitable candidate for community based release. It was considered that his future needs and risks associated with his sexual offending behaviour could be adequately met via participation in the very types of programs and supervisory regimes that were in fact ultimately provided to him. 13 On 14 February 2000 the defendant was released on parole and returned to New South Wales. He commenced attending the sex offender program run by the Forensic Psychology Services unit (FPS) of the Department of Corrective Services on 21 February 2000. He attended 22 out of 33 individual maintenance sessions until 11 October 2000. The missed sessions were usually because of work commitments. He commenced group maintenance sessions on 18 October 2000 which required weekly attendance. In a Probation and Parole "Progress Parole Report" of 8 March 2001 it was stated that his attendance had been satisfactory. His group co-ordinator had reported that his participation was good and that he appeared to have a sound understanding of the psychological factors underlying his offending behaviour. 14 Whilst it is said that his attendance had been satisfactory, he in fact missed 6 sessions and on 19 November 2000 the facilitator noted in relation to a request by the defendant to change the day of the group sessions in order to accommodate his own needs that he "Displays elements of … manipulative and coercive behaviours". 15 From April 2001 until October 2002 the defendant's involvement with FPS was limited to monthly telephone calls to his therapist. 16 A review report of 26 April 2002 included that he had fulfilled the requirements of FPS throughout the time of his involvement and that he had demonstrated a good understanding of his risk factors and had shown that he could effectively implement strategies to manage those risks. 17 On the surface, therefore, it appeared that the defendant had been fulfilling all that was required of him and that he had benefited from the programs and courses that he had been involved with. 18 On 22 October 2002 concerns were raised with the NSW Probation and Parole Service about the defendant. They indicate that his parents had gone away recently and that he had been taking his mother's dance teaching classes with the Scottish Dancing Association. It was said that he was conducting classes involving pre-adolescent girls both in his home and in the children's homes. Members of the association had become concerned about his "quasi sexual behaviour". They were unaware that he was on parole, his mother having said that he had been in Queensland working. Police were alerted and the defendant was arrested on 23 October. He was charged with having remained in a child related employment position, namely highland dancing instructor teaching children aged 6 to 12 years old at his home address unsupervised, an offence against the Child Protection (Prohibited Employment) Act 1998, and with having failed to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000. At Liverpool Local Court on 25 October 2002 he was sentenced for each offence to imprisonment for a fixed term of 3 months to date from 24 October 2002. 19 The Facts Sheet tendered to the Court indicated that the defendant had been teaching Scottish Highland Dance to children at a dance studio owned and run by his mother. The studio operated from the home at which he and his parents resided. The defendant did not disclose this work because he believed he would be told to stop teaching children and highland dance was his passion. It is said that he taught 8 different children, aged between 6 and 12, over a 2 year period. In July 2002 his parents commenced a nationwide tour and left him to run the dance studio on his own. Accordingly, he was totally unsupervised during his lesson times with children which would last between 1 and 2 hours. On an occasion in August 2002 he took two 12 year old girls to the Central Coast on an overnight stay for a highland dance competition. They were all billeted at the home of another 12 year old competitor. 20 On 24 October 2002 the defendant's parole was revoked. He was required to serve the entirety of the balance of his parole. On the day he was due for release, 8 February 2003, he was interviewed by police and made admissions in relation to his sexual misconduct towards a pupil of his mother's dance school between 1 January 2002 and 23 October 2002. He subsequently pleaded guilty to a charge of Persistent sexual abuse of a child, an offence pursuant to s. 66EA Crimes Act 1900. 21 The Facts Sheet that was tendered in the sentence proceedings indicates that the defendant met the victim, who was aged 8, as a student at the dance school. He was the only adult, with the students being all female ranging in age from about 5 to 17. He befriended the victim's parents and often travelled in their family car to dance competitions. He formed a strong relationship with the victim after a few months. He was very attentive and affectionate towards her and on occasions purchased her gifts. He gave her dance lessons at her house free of charge. 22 In March 2002, when the victim was 9, she travelled with her family to Tasmania to attend a dancing competition. The defendant also attended with his mother. He spent time with the victim whilst there. He took photographs of her to give to her as a gift for her impending 10th birthday. Whilst he was alone in her company he kissed her and indecently touched her. 23 On 5 May 2002 he was in the back seat of a car with the victim when they, the victim's mother and another dance student were returning from a dancing competition in Wagga Wagga. In this position he kissed the victim on the lips and cheeks and put his hand down the back of her pants onto her buttocks. 24 On 21 July 2002 he attended the victim's home. He went to the victim's bedroom where he did some warm up dance stretches with her. He then moved her pants to one side and touched her vagina. He also took some photographs of her vagina. He later loaded these images onto his laptop computer and showed them to her. He was to later tell police that he did this for personal gratification but that he deleted them at her request. 25 On an occasion between May and October 2002 he was sitting in his car with the victim when he kissed her on the lips and cheeks and then put his hand down the back of her pants and rubbed her buttocks until she told him to stop. On another occasion in this period they were again in his car when he kissed her and then put his hand down the front of her pants and touched her vagina, persisting even after she told him to stop. On yet still another occasion in this period he came over to her home after she had returned from school to retrieve a DVD he had leant her. When in her bedroom he put his hand down her shorts and touched her vagina until she told him to stop. 26 In the interview of 8 February 2003 the defendant made full admissions to having indecently assaulted the victim. He could not recall each particular occasion but said it was definitely more than 6 times. He admitted touching her vagina and buttocks, sometimes penetrating her genitalia. On occasions he derived sexual gratification and experienced an erection. He said the reason he developed a relationship with the victim's family was in order to give him better access to assault her. He said he told her not to tell anyone what he was doing because he knew it was wrong and he feared going back to gaol. 27 He wrote a letter on 17 April 2003 to the parents of the victim apologising for his behaviour and detailing his "long and complex story" of sex offending "to give you an insight into how it came about that I abused [the victim]". He acknowledged that he knew about the restrictions placed upon him as a registrable person, but wanted to dance so as to "be successful at something in his life". He stated "I thought I'd be ok so long as I took precautions". 28 He wrote a letter to the victim herself on 22 April 2003 in which he said that he was sorry, expressed his love for her, and said that "I know that you loved me very much too, and you know that I loved you, but I was wrong to love you in the way that I did. I loved you too much. I loved you in a way that two people around the same age should only love each other." 29 In a Pre Sentence Report of 22 August 2003, it is stated: "He said that the offences were committed in the context of his passion for dancing, when he became close to the victim, who he said was one of his dance students. He added that he did not comprehend his behaviour other than to speculate that he believes that he does not have the ability to form a normal adult relationship, as he does not trust adults. He expressed a desire to understand his behaviour and to accept further intervention to address his aberrant tendency. He failed to disclose to his then supervising officer his involvement with children as he was fearful of jeopardising his participation in his dancing activities. He said that he regrets any harm that he may have caused to the victim and her family, "hates what he has done", and said he was aware of his abuse of trust." 30 A psychological report tendered in the sentence proceedings includes that the defendant was ashamed of his offences and was willing to accept whatever was the appropriate penalty. He is said to have acknowledged that he required more treatment, that he represented a continuing risk, and that he would continue to require supervision around children. 31 In sentencing the defendant, Nield DCJ rejected a submission on his behalf that he was not likely to re-offend and that he had good prospects of rehabilitation. He found that the letter the defendant had written to the victim was not an act of remorse but the "act of a very manipulative man". He also found that the defendant's "conduct following his release from prison until his arrest shows that he is not prepared to accept the restrictions placed upon him as a child sex offender". He concluded that the defendant was likely to re-offend because the offences were committed whilst he was on parole for earlier child sex offences and because of the similarity between the circumstances of the index offence and the earlier offences. The defendant's stated good intentions outlined in an exit report for the Sex Offender Intervention Program he had completed, and in a Pre-Release Assessment, "were either quickly forgotten or quickly rejected by him following his release from prison". Nield DCJ concluded that both general and personal deterrence were important factors in the assessment of sentence. An 8 year starting point was reduced by 25% for the offender's early plea of guilty, resulting in the imposition of a 6 year sentence with a non-parole period of 4 years 3 months. A Crown appeal against the asserted inadequacy of the sentence was dismissed: Regina v Andrew Robert Manners [2004] NSWCCA 181. 32 After dealing with the details of the defendant's criminal history, the plaintiff's written submissions include this: "The matters set out above indicate that the defendant, when confronted with allegations of sexual offending, is apparently prepared to make frank, and detailed, admissions and to plead guilty to the offences with which he is charged. The ability of an offender to be forthcoming about his wrongdoing and to acknowledge guilt is generally seen as a positive indication of contrition and potential for rehabilitation. However, in the instant case, such conduct, far from being a positive indication, ought properly be seen as a manifestation of his ability to dissemble and manipulate. Furthermore, the defendant's conduct is such that his victims are highly unlikely to alert their parents or carers to his wrongdoing. He is expert at creating an environment of privacy and guilt such that his victims feel uncomfortable about disclosing what has occurred to those who would be likely to take action. Indeed, the offences were typically discovered when there was a coincidental change in routine which meant that a parent, who would not normally be at home at a particular time, found the defendant to be with the victim. This feature of the defendant's methods means that the prospect of any recidivism being quickly discovered is remote. It also makes him more dangerous than an offender whose victims are strangers, since such conduct is more likely to be reported than where the offender is a trusted family friend." 33 I agree with that assessment. 34 On 16 January 2004 the defendant signed a "Consent to Sex Offender Programmes Referral". He signed another such form on 25 August 2004. His stated reason for wanting to participate in such a program was – "to gain an understanding of my offence cycle and my lifestyle patterns so I can learn how to cope in my life when I am released so that I can remain offence free". On 19 May 2005 the offender was notified that his application for treatment had been assessed and he had been found suitable for CUBIT (Custody - based Intensive Treatment for Sexual Offenders) and had been placed on a waiting list. 35 The offender underwent the CUBIT program from 14 November 2005 until 24 January 2007. 36 Only 2 days after having commenced the program he was described as being "overly polite and very manipulative". 37 On 22 January 2006 he was found to have in his cell three pictures of small children wearing very little clothing. He was reprimanded and cautioned. He subsequently explained that at this time he was not coping in CUBIT and found that having these pictures helped him manage the stressful time. 38 In June 2006 the defendant reported ongoing deviant sexual fantasies that he was unable to intervene in and control. He was assessed by Dr Olav Nielssen who reported that the defendant had expressed an interest in treatment with libido lowering medication to reduce the intensity of deviant sexual thoughts. Dr Nielssen found him to be suitable for such treatment. 39 On 19 July 2006 a search of the defendant's cell revealed his possession of 4 pages of sexually explicit material. His punishment was confinement to his cell for 24 hours. He subsequently offered the explanation that the material had been "inadvertently given to him by another CUBIT inmate who had since been released on parole". 40 On 15 July 2006 the defendant was observed by a correctional officer to approach another inmate in the visits area and then spend several minutes with that inmate and his visitors which included a number of small children. 41 On 26 July 2006 a conversation between some inmates was overheard by a correctional officer about the defendant hanging around the visits area when his visitors had left and going and sitting with other families, some of which included young children. 42 On 29 July 2006 there was another observation by a correctional officer of the defendant joining the family visitors of another inmate in the visits area. He was seen in their company for 3 hours. He was seen playing chess with a boy of about 12 and had an 8 year old girl sitting on the table in front of him. At one point he was left alone with the children. 43 A case conference was conducted on 31 July 2006. The defendant described to those present the behaviours he had been engaging in and how they related to his offending behaviour – that is, making friends with people with children; gaining trust; grooming the children by "appropriate" touching and making presents for them; being left alone with them; and both their families becoming friends. Although the defendant said that he could see that his behaviour was concerning, he also said that he was not concerned about it as he regarded it as "spending time with a close friend and his family". He said it had been going on for 5 months and he had not told anyone about it. The defendant also said that he was not doing anything wrong as he was not thinking deviant thoughts about the children. 44 The defendant was suspended from the CUBIT program. In the "Suspension Summary", concern was expressed about the similarity of the defendant's behaviour with his offending behaviour, the ongoing deception that he had engaged in whilst in treatment, and the frequency with which he had been violating rules. 45 A record of a further case conference on 8 August 2006 includes that the defendant had "told us what we wanted to hear" in the homework he had completed while suspended. On the issue of what disadvantages he saw in not completing his treatment, it is said that he saw "external disadvantages" (not getting parole and disappointing his parents further). No "internal disadvantages" were reported. The record of this conference concludes as follows: "It currently remains unclear as to Mr Manners' intentions/motivations in respect to his recent rule violations and offending behaviour. It appears that Mr Manners has either very limited insight into his pattern of offending behaviour, that he is failing to disclose his real thoughts and feelings and intentions in respect to his behaviour with the Law's family, or that he currently is not motivated to cease engaging in his offending behaviour as he enjoys it. Mr Manners continues to break the rules, showing no thought of other people affected by his behaviour and no thought for the consequences of being caught. Furthermore, Mr Manners has acknowledged in engaging in impression management behaviour with therapeutic style despite repeatedly been encouraged to be open and honest. There does appear to be a non-sexual element to these behaviours, that is, Mr Manners appears to be trying to meet pro-social needs related to intimacy and support." 46 It was decided that his suspension should continue for a further week. 47 A further case conference was held on 16 August 2006. It was considered from homework that the defendant had completed in the past week that he appeared "possibly for the first time since he commenced treatment" to have provided a more honest account of his thinking process. These included discussing his deliberate attempt to deceive therapeutic staff by "telling them what they want to hear", manipulation of staff to gain things that he wanted, and patterns of thinking and behaviour that suggested that he believed that rules did not apply to him and that he deserved special treatment. It was decided to lift the suspension. He was told that he would be closely monitored and any further engagement in these behaviours would possibly result in his removal from the program or a longer suspension. 48 A case note of 17 August 2006 records that the defendant had requested to remain on the antilibidinal medication because he was experiencing ongoing intrusive deviant thoughts. Dr Nielssen ordered blood tests to assess his testosterone level. 49 The defendant completed the CUBIT program on 24 January 2007. 50 A Probation and Parole Service "Pre Release Report" of 20 February 2007 recommended against parole being granted until such time as the defendant had completed a period of custodial maintenance. 51 The report of the defendant's participation in the CUBIT program, dated 5 March 2007, generally describes a successful completion but is hedged with quite a number of concerns about the sincerity of his response. The antepenultimate paragraph is noteworthy: "Mr Manners is able to present well in treatment. This has been evident throughout his participation in programs where he has received positive reports and at the same time has either been offending or engaging in risky behaviours (e.g., receiving unauthorised child visits whilst in CUBIT; re-offending whilst in community based maintenance). As a result of this, it is recommended that Mr Manners' behaviours be monitored closely at all times, especially following release on parole, and that all discrepancies or concerns be addressed with him immediately. Collateral information collected from independent sources should be relied on to corroborate or refute Mr Manners' version of events. Particular care should be used when relying on information received from Mr Manners' parents due to their history of making decisions to allow Mr Manners unsupervised access to children despite knowledge of his previous offence history and his conditions of parole." 52 It was recommended that the defendant not be alone with children and that he be reviewed regularly by a psychiatrist experienced in the pharmacological treatment of sexual offenders, both whilst in custody and on parole. 53 An adverse view has often been taken of the re-offending risks of an offender who has not completed the types of programs that the defendant has completed. On occasions it has been a factor in the making of detention orders: see, for example, Attorney-General for NSW v Tillman [2007] NSWSC 605 and Attorney-General for NSW v Quinn [2007] NSWSC 873. It is submitted on behalf of the plaintiff that the fact that the defendant in this case has completed therapeutic programs should not prevent the making of an extended supervision order. The basis of this submission is that "the defendant's personality is such that he is more than able to pass or complete courses, including CUBIT, without there being any reasonable grounds to conclude that he is less dangerous or less prone to re-offend having completed the course than he was before he undertook it". There is some force in this. However, it must also be acknowledged that the defendant is in a better position for having completed CUBIT and other programs than if he had not. 54 Having completed the CUBIT program the defendant was then placed on a Custodial Maintenance program. He was released on parole on 7 May 2008. Conditions of parole included that he submit to electronic monitoring; not be in the company of anyone under the age of 16 years unless accompanied by a responsible adult (it being specifically noted that his parents and brother were not regarded as fitting this description); comply with a 7.00pm to 7.00am curfew; not travel more than 50km from his residence without permission; not attend public places regularly frequented by children without permission; not change his appearance without permission; and not change his name without permission. 55 On 7 June 2008 during a visit to the defendant's home there was a discussion about the defendant having made an unauthorised visit to his brother's home, travelling by train during a peak time for children. He was told this was not to happen again and he indicated he understood. 56 On 12 June 2008 the defendant attended Liverpool police station and registered on the Child Protection Register. 57 A Probation and Parole Progress Report of 25 July 2008 records that the defendant had been meeting his obligations in relation to weekly attendance at the Forensic Psychological Services Maintenance Group and the Child Protection Register. However it was noted that he appeared to have been only superficially compliant with electronic monitoring and supervision. Reviews of his movements had revealed a number of unscheduled, unapproved periods over a number of weeks. On one occasion he walked the length of the Sydney CBD during periods when school children may be present without informing his case managers or placing this information on his electronic monitoring schedule. He was warned in relation to this. The Report concludes with an expression of concern about the defendant's secretive behaviour and his attitude towards supervision which appeared to alternate between apparent compliance and resistance. 58 On 21 August 2008 the defendant was warned about failing to ask for approval about a change to his schedule. He had been approved to walk but said he had been driven by his parents which had taken him through an exclusion zone. 59 On 5 October 2008 the defendant asked to be permitted to go to his brother's home for dinner before attending church. It was explained to him that this was not on his schedule and it was not approved. The officer told the defendant that "we have had this conversation before". 60 On 19 October 2008 there was an exercise of visual observations made of the defendant to check upon his compliance with the schedule of activity that had been approved for him that day. He was supposed to go to a shopping centre and then to a gym before going to his brother's place. He was seen to by-pass the shopping centre and was not seen at the gym. He was eventually located arriving at his brother's home. When he was challenged as to this he said, "Yes, you're right. But coming to my brother's is part of the schedule, I didn't think it is a big deal". As he was found to have deviated from his schedule on the first occasion of checking on his movements this was regarded as a matter of concern by the officer having primary responsibility for his supervision. She said in her evidence, however, that it had been confirmed that the defendant had not gone to any place that was excluded, he had simply skipped two places that he was supposed to attend and gone directly to the third. The Act 61 The objects of the Act are set out in s.3: 3 (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation. 62 In its original version, s.3 put these two matters on equal footing but it is notable that in its current form, produced by way of amendment on 21 December 2007, the ensuring of the safety and protection of the community is now expressed in terms of being the dominant object. 63 Section 6 makes provision for applications for extended supervision orders: 6(1) The State of New South Wales may apply to the Supreme Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision: (a) while serving a sentence of imprisonment: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, whether the sentence is being served by way of full-time, periodic or home detention and whether the offender is in custody or on release on parole, or (b) pursuant to an existing extended supervision order or continuing detention order, referred to in this Part as his or her current custody or supervision . (2) An application may not be made until the last 6 months of the offender's current custody or supervision. (3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence. (4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. 64 An "extended supervision order" is defined in s.4 as an order made under s.9 or s.17. It is s.9 that is relevant in this case. 65 A "sex offender" is defined in s.4 as "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". 66 A "serious sex offence" is any of the enumerated offences set out in s.5(1). They include an offence under Division 10 of Part 3 of the Crimes Act 1900 where the offence is against a child and is punishable by imprisonment for 7 years or more. There is no dispute that the Defendant was convicted on 18 December 2003 of an offence of Persistent sexual abuse of a person under 16 years. This is an offence against s.66EA which is within Division 10 of Part 3 of the Crimes Act and it is punishable by imprisonment for 25 years. Consequently, I am satisfied that the Defendant is a "sex offender" for the purposes of the Act. 67 The Defendant has served the non-parole period of the sentence he received for the last of the offences referred to earlier. He was released on parole on 7 May 2008. He is on supervised parole until 7 February 2009. 68 I am satisfied that all of the component provisions of s.6(1) are satisfied and thus the Plaintiff has standing to bring the application. 69 The application was initiated by the filing of a Summons on 2 October 2008 which has been superseded by an Amended Summons filed on 16 December 2008. The application has thus been brought within the time specified in s.6(2). 70 There is no issue about the documentation that has been filed in support of the application. Clearly it complies with the provisions in s.6(3). 71 There was a preliminary hearing before Johnson J on 7 November 2008 at which time his Honour made orders, inter alia, pursuant to s.7(4) for the appointment of two qualified psychiatrists to conduct separate psychiatric examinations of the Defendant and to furnish reports to the Court on the results: State of New South Wales v Manners [2008] NSWSC 1242. Those reports, by Dr Robert Lewin of 28 November 2008 and Dr Jeremy O'Dea of 8 December 2008, have been tendered before me. 72 Section 9 of the Act deals with the determination of an application of this type. S.9(1) provides that the Court may either make an extended supervision order or dismiss the application. 73 S. 9(2) provides: "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". 74 The same test appears in s.17(2). S. 17 is concerned with the determination of applications for a continuing detention order. One possible manner of determining such an application is to make an extended supervision order in lieu of the detention order sought. S. 17(2) expresses the test for making an extended supervision order in that context. 75 The terms "high degree of probability" and "likely to commit a further serious sex offence" have been the subject of some controversy as to their construction: see, for example, the discussion by Adams J in State of New South Wales v Thomas [2008] NSWSC 1340 at [10] – [20]. 76 The authority that is binding upon me is the joint judgment of Giles and Ipp JJA in Tillman v Attorney General for the State of New South Wales (2007) 178 A Crim R 133, [2007] NSWCA 327, at [88] – 92]. There it was held that "likely" (in ss. 17(2) and (3), ergo, s.9(3)) means "probable" and "denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50 per cent". It does not mean "more probable than not". 77 That decision was followed in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 where the Court went on to consider the expression "high degree of probability": 21 The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely" as explained in TSL v Secretary to the Department of Justice (2006) 14 VR 109. 78 S. 9(3) sets out a number of factors to which the Court must have regard, in addition to any other matter considered relevant, when determining whether or not to make an extended supervision order. 79 Having regard to the stance taken by the Defendant in not opposing the making of an order, it is unnecessary for me to set out those factors and the material before me that is relevant to each of them. It suffices to say that, having considered these matters, I am satisfied of the statutory test that to a high degree of probability the offender is likely to commit a further serious sex offence if he is not kept under supervision. The term of the order 80 I turn now to the matters that were put in issue. First as to the length of the term of the order. Section 10 is relevant here: 10 Term of extended supervision order (1) An extended supervision order: (a) commences when it is made, or when the offender's current custody or supervision expires, whichever is the later, and (b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law, but that suspension does not affect the expiry date of the order. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender. 81 As can be seen, there is nothing in this section to indicate how the length of the term of the order is to be determined. 82 It is reasonable to conclude that the length of the term of the order should be determined by reference to the objects of the Act set out in s. 3. Thus, I should determine this issue with reference to what is appropriate to "ensure the safety and protection of the community" as the primary consideration but also bearing in mind the secondary consideration of encouraging the defendant to undertake rehabilitation. 83 It was submitted by Mr Johnston, counsel for the defendant, that the period of supervision should be set at the minimum required to achieve the objects of the Act. He reminded me of the provisions in s.10(3) for a second or subsequent extended supervision order to be made, and in s.13 for an application to be made to vary an extended supervision order, and submitted that these could be availed of if the initial order was ultimately found to be inadequate to meet the objects of the Act. Mr Johnston submitted that the defendant had made significant steps towards rehabilitation, having completed the CUBIT program and undertaken maintenance programs both in custody and since parole release 7 months ago. He submitted that the defendant was in a unique position for a person the subject of proceedings under this legislation by the fact that he was living in the community and in full-time employment. Thus, it was submitted that the defendant's willingness to undertake rehabilitation should be reflected in the length of any order so as to encourage further rehabilitation. He sought to draw a comparison with the defendant in NSW v Quinn [2008] NSWSC 1080 with respect to whom Hidden J said (at [10]), "Some progress has been made towards his rehabilitation and, in my view, that rehabilitation would be fostered by his seeing some light at the end of a tunnel". It was submitted by Mr Johnston that making an order for 5 years would send a signal to the defendant, and to others, "that the significant efforts made to date were of no importance to the Court". 84 Mr Johnston also submitted that I should take into account the period in which the defendant had been on parole and that the conditions of that parole are similar to those sought in these proceedings. Whilst he allowed for the protective purpose of the conditions sought, he submitted that there is a punitive component, tantamount to home detention, and that this reinforced his earlier submission that the length of the order should be for the minimum period required to achieve the objects of the Act. 85 Ms Adamson SC, with Ms Callan, for the plaintiff pointed to the evidence of both Dr O'Dea and Dr Lewin who both consider that the defendant has a "high" or "significant" risk of further sex offending and that he requires treatment over a prolonged period of time. Dr O'Dea concludes his report: "As Mr Manners' risk is long term, I would recommend that this treatment program be continued long term with regular reviews. Therefore, my expectation is that the treatment program is likely to be appropriate for at least 5 years". 86 Dr Lewin did not mention any particular number of years in his report but when this passage of Dr O'Dea's report was read to him he said that he wholeheartedly agreed and that it was entirely consistent with his views. 87 Ms Adamson took me to the judgment of Fullerton J in Attorney General for the State of New South Wales v Hadson [2008] NSWSC 140 at [31] – [32] where her Honour held that the question of "reasonableness" was not the appropriate test to apply in determining the term of an order. In relation to the submission that I should take into account the time that the defendant has and will be on parole in setting the term of the order, Ms Adamson referred to the judgment of Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [61] where his Honour said that he did not consider that principles which apply to setting a term of imprisonment have application to fixing the term of an extended supervision order under the Act. His Honour also said, at [63], that he did not regard it as helpful to draw upon analogies from the area of sentencing law such as the concept of a "crushing sentence". 88 Ms Adamson submitted that a consideration of what "signal" might be sent by fixing a 5 year term of the order was an irrelevant consideration. She submitted that there was ample scope for "incentive" for the defendant to pursue his progress with rehabilitation within a 5 year order. In respect of the assertion that the defendant had already made "significant progress" in rehabilitation, it was submitted that this was a moot point and that one should look more to substance than form. 89 Ms Adamson also submitted that it would be inappropriate to set a shorter term of the order on the basis that the State had the option of applying for an extension if necessary. She submitted that if a 5 year order is regarded as appropriate then that is the term that should be set. 90 Whilst obviously one must bear firmly in mind the stated objects of the Act, it is not an irrelevant matter to bear in mind the practical effect of orders made pursuant to it. They involve restrictions on the subject's liberty, either by way of detention or by way of limitations of freedoms within the community. (See Johnson J in Tillman at [60]). 91 The many references in the evidence to manipulative and deceptive behaviour by the defendant in the past complicates any prediction of how the defendant will respond to an extended supervision order. He has on occasions given the appearance of complying with the requirements of rehabilitation programs and responding well, only for it to be later established that his participation was at a superficial level. He has been assessed as having a reasonable level of intelligence and he has a capacity to say things to therapists that he thinks they want to hear. Indeed, on one occasion he admitted that this is what he had been doing in the CUBIT program. 92 It is the opinion of Dr Lewin that the defendant has the diagnosis of Paedophilic Disorder, the characteristics of which are high levels of recidivism. He also refers to other matters in the defendant's history, including an Anxiety Disorder and evidence of manipulative behaviour which he regards as other factors which heighten the degree of concern. 93 Dr Lewin was asked about the significance of the defendant having completed the CUBIT program and having participated in pre and post release maintenance programs. He said it was of some value but it did not assist to a great extent in terms of predicting recidivism. He said the critical time is not in the period soon after release but three to five years later once the person has forgotten, to some extent, the painful experience of imprisonment. 94 Dr O'Dea's opinion was that the defendant met the psychiatric diagnostic criteria for Paraphilia (Pedophilia, Sexually attracted to females, Not limited to incest, Exclusive type). He reported: "However, in Mr Manners' case, it would appear that his specific and strong sexual attraction to female children and his apparently limited evident interest in adult female relationships are his primary risk factors in him engaging in further sex offending behaviours in the community in the long term and would place him at a significant risk of engaging in further sex offending behaviours in the community in the long term, particularly if his heterosexual paedophilia is not effectively treated". 95 In my view the evidence of Dr O'Dea and Dr Lewin as to the high level of risk of the offender engaging in further sex offending is the most significant consideration in the determination of the appropriate term of the order. Their agreement of the need for the defendant to engage in appropriate treatment programs on a long term basis, at least for 5 years, militates in favour of making an order of that length. 96 The types of restrictions that will be placed upon the defendant will be quite significant but it must be borne in mind that provided that he makes appropriate positive responses there will be some relaxation of conditions as time goes on. Indeed, that is regarded by the experts as an important component of his supervision. Mr Sheehan, psychologist, referred to the experience to date under the defendant's parole supervision. He said that initially the defendant was overwhelmed by the limitations of the restrictions placed upon him but when he settled and started responding there was then some relaxation. For example, he was initially required to attend weekly sessions of his community based maintenance program but this has since been reduced to fortnightly. In the future he foresaw this being further reduced to monthly attendance, provided there is an appropriate level of response by the defendant. He has also been permitted to go to a cinema and a gymnasium. Both Dr O'Dea and Dr Lewin accepted that a relaxation of restrictions over time was an important measure in furthering the defendant's rehabilitation. Dr Lewin said that, generally speaking, it was preferable to have longer term support and risk management with gradually decreasing intensity than a short sharp intervention. 97 Having regard to these opinions I do not accept the submission on behalf of the defendant that a period of 2 years should be the term of the order and that 5 years would operate as a disincentive to pursue his rehabilitation. 98 I also do not accept the submission to the effect that I should reduce the period of the order by the time the defendant has been subject to parole. That the defendant has been the subject of considerable restrictions on his freedom in the community is not irrelevant but it cannot be equated to the discounting or back-dating of a sentence of imprisonment because of pre-sentence custody. What I am required to do is to consider what the term of the order should be having regard to the objects to be served by it. 99 I have concluded that in all of the circumstances of this case a period of 5 years is appropriate to meet the objects of the Act. Conditions of the order 100 Of the nineteen conditions proposed by the plaintiff as set out in a schedule to the amended summons, only a few were the subject of argument. 101 Condition "p" is in these terms: "The defendant must not consume alcohol or illicit drugs or abuse prescription medication". 102 It must first be said that there is no evidence that any of the offences committed by the defendant were as a result of his consumption of alcohol. The evidence is that the defendant does consume alcohol but on an infrequent and quite modest basis. That evidence derives from him and is not independently verified. 103 Dr Lewin supported the absolute prohibition of the consumption of alcohol, not because there was any evidence of alcohol abuse by the defendant, or evidence of a link between alcohol consumption and commission of offences, but because, as he said, "the risk with alcohol is a risk of disinhibition, a risk of unmasking patterns of behaviour (that) are fairly close to the surface in a case of this nature". 104 Dr O'Dea also found in the material made available to him "no significant identifiable connection" between offending behaviour and alcohol or drug use. He was of the view that a prohibition on the consumption of alcohol was unnecessary. 105 The plaintiff accepted that there was no link between alcohol and offending behaviour but pressed for inclusion of alcohol in condition "p" because of the general concerns expressed by Dr Lewin. 106 Mr Johnston's submission was that the alcohol prohibition was unnecessary. 107 There is in the evidence material that suggests that one matter the defendant needs to work on is his ability to develop more appropriate socialisation among adults. In the substantial history that is before me as to the suggested causes of his offending there is included references to the defendant finding interaction with adults to be difficult and, as a consequence, he developed a preference for the company of children. If he is to endeavour to develop a social life with appropriate adults it is likely that this will occur on occasions in situations in which alcohol is consumed. Given that it seems alcohol itself is not a problem in his life and, that there is no known link with his previous offences, I have come to the view that a blanket prohibition on alcohol consumption is not required and may, for the reason I have just mentioned, be counter productive. I take some comfort in coming to this conclusion with the general condition "a" that is proposed that "the defendant must comply with any reasonable direction given by a Probation and Parole officer or an officer of the Community Compliance Group". If experience shows that alcohol does become a problem then I am sure that appropriate directions can be given to the defendant to meet it. 108 A consequential amendment will be necessary to proposed condition "q" by deleting reference to the defendant submitting to alcohol testing. 109 Proposed condition "e" is in these terms: "The defendant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools, amusement parlours, dancing academies, dance schools, dance studios, dance competitions, and any other such places as a parole officer or CCG officer may direct". 110 Mr Johnston submitted that this condition was "vague and unworkable". Examples were cited of the defendant travelling on trains, attending shopping centres, going to the movies and attending a gymnasium. He was concerned that these currently permitted activities would offend the proposed condition. 111 The plaintiff pressed for condition "e" to remain in the terms proposed. Ms Adamson, however, suggested an alternative if I was not minded to accept the condition in its present form and that was by adding the words "without the prior permission of a parole officer or CCG officer". 112 Mr Johnston indicated on behalf of the defendant that there would be no opposition to proposed condition "e" if the additional words suggested by Ms Adamson were included. 113 I am of the view that the condition is an appropriate one but that it is necessary to add the words suggested. Doing so will ensure there is some flexibility that is desirable for an order that will be in place for the length of time I propose. My consideration of this condition has been in conjunction with the preceding proposed condition (d) that will require that the defendant "must not associate or make contact with children aged 16 years and under". 114 Annexure B to the affidavit of Ms Darelle Williams, Team Senior, Community Compliance Group Case Management Team in the Department of Corrective Services is the Risk Management Plan that is proposed to be implemented if an extended supervision order is made. There was debate in the proceedings as to the appropriateness of point 4 of this plan that proposed that the defendant must inform his Departmental Supervising Officer of his movements in advance on a weekly basis and must obtain prior approval at approximately 24 hours for any proposed change. Mr Johnston submitted that yhis was too onerous and suggested that prior notice of 48 hours was sufficient. Ms Williams was asked about this in her evidence and she said there were some people being supervised who had sought and obtained a 48 hour notification period but they had all found that to be overly burdensome, having to submit their schedules on such a frequent basis. She said that all of these people by choice had sought and been given permission to submit on a weekly basis. Mr Johnston, however, pressed for the 48 hour period. The plaintiff did not oppose this. It was agreed that this should become a condition that I impose, rather than being left as a matter in the Risk Management Plan. I propose to include an order to this effect. 115 Point 27 in the Risk Management Plan would require the defendant to accept "sex drive reduction medical treatment, if prescribed by a medical practitioner … such as anti-libidinal treatment and or other like medication". Mr Johnston submitted that it is inappropriate for the defendant to be required to take such medication against his will. 116 Dr Lewin said in evidence that there were potential benefits in the defendant taking such medication. However he would oppose it being a mandatory requirement (a) because it was unethical and (b) because the defendant had expressed concerns to him about the side effects he experienced when he took such medication for a relatively short trial period when in custody. Dr O'Dea was of a similar view. 117 Mr Johnston suggested a condition be added to the supervision order to clarify that the defendant would not be in breach of proposed condition "c" ("the defendant must participate in treatment and rehabilitation as directed by a parole officer or CCG officer") if he did not co-operate in taking medication that was prescribed without his informed consent. Ms Adamson indicated that she did not have instructions to consent to such a condition and submitted it was unnecessary given the ethical obligations referred to by the doctors. Nevertheless, for the sake of certainty, I propose to include a note to cover this aspect. ORDERS 118 I order that no evidence in these proceedings be published that would identify the address of the defendant or any member of his family, or the name and address of his employer 119 I order that the defendant be subject to extended supervision pursuant to s.9(1) of the Crimes (Serious Sex Offenders) Act 2006 for a period of 5 years commencing on 7 February 2009 and ending on 6 February 2014. During that period he is to comply with the following orders: Directions (a) the defendant must comply with any reasonable direction given by a Probation and Parole officer ("parole officer") or any officer of the Community Compliance Group ("CCG officer"); (b) the defendant must report to a parole officer or CCG officer as directed by that officer; Treatment (c) the defendant must participate in treatment and rehabilitation as directed by a parole officer or CCG officer; Association with Children (d) the defendant must not associate or make contact with children aged 16 years and under; (e) the defendant must not, without the prior permission of a parole officer or CCG officer, attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools, amusement parlours, dancing academies, dance schools, dance studios, dance competitions, and any other such places as a parole officer or CCG officer may direct; Electronic Monitoring (f) the defendant must wear electronic monitoring equipment if directed by a parole officer or CCG officer; (g) the defendant must comply with all instructions given by a parole officer or CCG officer in relation to the operation of the electronic monitoring equipment; Residence, Movement, Appearances (h) the defendant must reside at an address approved by a parole officer or CCG officer and must not change address without the permission of a parole officer or CCG officer; (i) the defendant shall not change his place of residence without prior approval of a parole officer or CCG officer; (j) the defendant must accept home visits, including unannounced home visits by a parole officer or CCG officer; (k) the defendant must not travel in excess of 50km from his residence without the permission of a parole officer or CCG officer; (l) the defendant must not change his appearance without the approval of a parole officer or CCG officer, and, in the event that the change of appearance is approved, must be photographed; (m) the defendant must not change his name; Employment (n) the defendant is to notify a parole officer or CCG officer of any employment that he proposes to undertake; (o) the defendant is to notify a parole officer or CCG officer of any intention to change his employment before any such change occurs; Licensed premises / drug use (p) the defendant must not consume any illicit drugs or abuse prescription medication; (q) the defendant shall submit to drug testing as directed by a parole officer or CCG officer; (r) the defendant must not be present at any licensed premises, including but not limited to hotels, bars and race courses without prior approval of a parole officer or CCG officer; Internet Use (s) the defendant must not use a computer for the purpose of accessing the world wide web to download child pornography, must comply with any reasonable direction given by a parole officer or CCG officer about his use of the internet and must permit any reasonable request by a parole officer or CCG officer to access and inspect any computer used by the defendant; Notification of movements (t) the defendant must inform the officer appointed by the Department of Corrective Services as his supervising officer of his movements in advance on at least a 48 hourly basis and must obtain prior approval for any proposed change in his movements at least 24 hours in advance, or such shorter period as may be agreed by the supervising officer. Note re condition (c) In relation to condition (c) it is noted that participation in treatment does not require the defendant to take any medication that may be prescribed without his informed consent. ********** 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.