New South Wales Supreme Court CITATION : The State of NSW v Colin John Fisk [2009] NSWSC 778 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 27/07/2009, 28/07/2009, 29/07/2009, 31/07/2009 JUDGMENT DATE : 11 August 2009 JUDGMENT OF : Howie J at 1 DECISION : See paragraphs 220, 221, 222. CATCHWORDS : Criminal Law - Serious sex offender - Application for extended supervision order - Requirements of s 9(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) - standard of proof - meaning of "likely" - Expert Evidence - whether prediction of further offending can be made to the degree of probablities - whether order should be made - what conditions should be made as to residence of defendant. LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 - ss 3, 5(1), 9, 10, 11, 17. CATEGORY : Principal judgment Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448; 178 A Crim R 133 TSL v Secretary to the Department of Justice (2006) 14 VR 109 Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071; 176 A Crim R 249 CASES CITED : Cornwall v Attorney General (NSW) [2007] NSWCA 374 RJE v Secretary To The Department of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opprotunity Commission [2008] VSCA 265 B and B (1993) FLC 92 Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 John Fairfax Publications v Disrict Courrt of NSW (2004) 61 NSWLR 344 PARTIES : The State of New South Wales v Colin John Fisk FILE NUMBER(S) : SC 011970/09 COUNSEL : C E Adamson SC/S G Callan - Plaintiff P S Strickland SC - Defendant SOLICITORS : J Murray - Plaintiff C Hunter - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J TUESDAY 11 AUGUST 2009 011970/09 THE STATE OF NSW v COLIN JOHN FISK JUDGMENT There is a non-publication order in relation to (a) the present place of residence and the approved place of residence of the defendant under the conditions of the extended supervision order made by the Court and (b) any material that would tend to identify the person with whom the defendant intends to reside as permitted under the conditions of the extended supervision order and (c) the name by which the defendant was known when on witness protection. The non-publication order does not apply to any officer of the Department of Justice and Attorney General and the NSW Police Force insofar as the disclosure is reasonably necessary in implementing the extended supervision order nor to the defendant and the person with whom he proposes to reside. Introduction 1 HIS HONOUR: The defendant is notorious as a sexual offender who for many years was involved with other similar offenders and dishonest police in living a lifestyle that centred on the moral corruption and sexual degradation of under-aged males. He gained significant publicity when he gave evidence before the Royal Commission into Police Corruption ("the Wood Royal Commission"). He was released from prison on 12 May 2009 having served 12 years imprisonment for a large number of serious sexual assault offences against young males. He had a number of victims and they were as young as 13 years. The offences were committed over various periods of time between 1971 and 1988. 2 The defendant has completed his sentences and would be free to resume a normal life in the community apart from these proceedings that seek an order from the Court imposing restrictions upon his liberty in order to safeguard the community against further offending by the defendant of a similar kind. The proceedings require the Court, in effect, to make a prediction as to the likelihood of the defendant re-offending over the next five years by committing further serious sexual offences against young males. 3 There is presently in place an interim order made by this Court that imposes a number of restrictions upon the defendant including as to his place of residence, his supervision and treatment, his ingestion of alcohol and drugs, his use of the Internet and his associates. This order expires on 11 August 2009 and cannot be renewed. 4 By summons filed on 15 April 2009 the State of New South Wales ('the State") seeks 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 be subject to extended supervision. The Court may make such an order if satisfied to the necessary degree that the defendant is likely to commit a serious sex offence in the future. 5 The issues before the Court was whether an order should be made, and, if so, what the residential condition of that order should be. The defendant's submission was that the evidence was insufficient for the Court to reach the necessary satisfaction as to the likelihood of the commission of a serious sexual offence in the next five years. Alternatively the defendant argued that, if an order were to be made, the defendant should be permitted to reside at his residence of choice (the "country property"). The legislation 6 The objects of the Act are provided in s 3 which states: (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. 7 A "serious sex offence" is defined in s 5(1) of the Act as follows: (1) For the purposes of this Act, a " serious sex offence " 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 7 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), (a1) an offence under section 61K or 66EA of the Crimes Act 1900, (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 7 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. 8 Section 7 of the Act provides for a preliminary hearing as follows: 7 Pre-trial procedures (1) An application for an extended supervision order must be served on the sex offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) The State of New South Wales must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence): (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. 9 In the present matter Price J heard the preliminary hearing. On 30 April 2009 his Honour determined that there should be a hearing of the present application, and as a consequence made an interim supervision order. He further ordered that two psychiatrists examine the defendant and furnish reports to the Court. 10 Section 9 of the Act is as follows: 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) 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) In determining whether or not to make an 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 persons appointed under section 7(4) to conduct 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. 11 The order commences on the day that it is made and may be for a period not exceeding 5 years: see s 10 of the Act. 12 The conditions that can be attached to such an order are set out, but not limited to the type of directions, specified in s 11 of the Act. They are directions requiring the offender to do or not to do any of the following: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name. 13 The Court can vary or revoke an order that is made and can at the expiration of the order make a second or subsequent order. The s 9(2) test 14 The meaning of s 9(2) of the Act, that is insofar as it specifies the precondition for the Court making an extended supervision order, is not without some controversy. The issue is the meaning of the phrase "satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence". 15 In the Attorney General (NSW) v Winters [2007] NSWSC 1071; 176 A Crim R 249 McClellan CJ at CL, having referred to numerous decisions in which the word "likely" had been considered and the policy behind the Act, stated (my underlining): [50] When construing legislation a court must be careful to apply the words of the legislature without imposing an impermissible gloss Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 and Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260 at [33]. However, where the word used by the Parliament has shades of meaning which may alter its impact it is important to identify the meaning which was intended. As the authorities show the meaning of the word "likely" can vary significantly depending on its context. However, having regard to the purpose and effect of the legislation, notwithstanding my tentative view in Gallagher , in my judgment, in the Act, "likely" means "more likely than not" and it is that test which must be applied in ss 9 and 17. For relevant purposes the court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence. It follows that the defendant's argument that the chance of reoffending must be significantly higher than 50% must also be rejected. 16 The construction of s 17(3) of the Act was considered by the Court of Appeal in Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448; 178 A Crim R 133. Section 17 is concerned with the making of a "continued detention order" but the test to be applied by the Court before making such an order is the same as in s 9(2) in respect of an extended supervision order. The Court considered the appropriateness of the interpretation placed on the words in the section by McClellan CJ at CL in Winters in the light of the decision of the Court of Appeal of Victoria in TSL v Secretary to the Department of Justice (2006) 14 VR 109. In that case the Court held in relation to somewhat similar legislation in Victoria that the word "likely" should be construed as meaning "probable" in the sense of "a high degree of probability", but not necessarily involving a degree of probability of more than 50 percent. 17 The majority of the Court in Tillman, Giles and Ipp JJA, stated: [88] In our view, there is much to be said for the view expressed by McClellan CJ at CL in Winters , namely, that "likely" is used in the section as meaning more probable than not. On the other hand, it is a respectable view that the legislature recognised the infringement of personal liberty by requiring satisfaction to a high degree of probability, so that it would be wrong to impose in the shade of meaning adopted for "likely" a further strict requirement of likelihood in the sense of more probable than not. There is ambiguity in the word "likely", and if unconstrained we would tend towards his Honour's view. Nevertheless, the view expressed in TSL is reasonably open and we are not persuaded that it is clearly wrong. In the light of what has emanated from the High Court in regard to the respect that an intermediate appellate court of one Australian jurisdiction should give to a decision of an intermediate appellate court of another Australian jurisdiction on issues that are substantially the same, we would follow and adopt the approach of Callaway AP in TSL. [89] Accordingly, we would hold that the word "likely" in ss 17(2) and (3) denotes a degree of probability at the upper end of the scale, but not necessarily exceeding 50%……………… 18 And later: [92] The difference between likelihood in the sense of a high probability but not necessarily more probable than not, and likelihood as something more probable than not, may not be great. Expressed as percentages, which is incorrect because it suggests a mathematical precision which is unattainable and is an unhelpful approach, transition from 49% to 51% is not the key to application of ss 17(2) and (3). 19 The third member in Tillman, Mason P, dissented from the majority on this issue and stated: [7] The universal requirement to construe words in context becomes even more pressing for chameleon-like words such as "likely". Dictionaries and decisions of the High Court inform us that this word may sometimes mean "probable" in the sense of more probable than not (see the review by McClellan CJ at CL in Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071 at [33]-[47]). [8] Here one is dealing with a predictive inquiry referable to the particular offender that implicitly addresses the time frame within which the Court's order can operate. Is reoffending within this time frame likely unless detention or at least supervision is ordered? The likelihood of a single reoffending of the requisite nature will suffice to engage the various powers. [9] This understanding of the individualised nature of the inquiry indicates to me that the Court is required to address a cascading set of predictions. At each step the ultimate question is whether or not the Court is highly satisfied that a single event of reoffending is likely. [10] To my mind this suggests a preferred meaning for "likely" of more probable that not. 20 In Cornwall v Attorney General (NSW) [2007] NSWCA 374 the Court of Appeal followed the majority view in Tillman. 21 It should be noted that although the majority in Tillman favoured the interpretation given to "likely" by McClellan CJ at CL in Winters they felt constrained by reasons of comity to follow TSL. However, that decision has been reconsidered by the Victorian Court of Appeal in RJE V Secretary To The Department Of Justice, Attorney-General For Victoria And Victorian Human Rights & Equal Opportunity Commission [2008] VSCA 265. 22 In RJE Maxwell P and Weinberg JA in a joint judgment rejected the interpretation adopted in TSL. It is unnecessary for present purposes to detail the arguments that persuaded their Honours that the decision in TSL, so far as it concerned the meaning of the word "likely" in the relevant legislation, was clearly wrong. They referred to the issue of comity so far as the decision in Tillman was concerned and stated (footnotes not included): [50] Comity between intermediate appellate courts is a matter of great importance, as the High Court recently restated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd . 6 Tillman and Cornwall v Attorney General for New South Wales having now been decided as they were, it would be facile to construe the Monitoring Act as if it were unique to Victoria and the problem of its construction were of merely parochial concern. [51] As against that, however, as Mason P pointed out in his dissent in Tillman , the decisions presently under review do not concern Commonwealth law or any uniform national scheme of legislation of the kind under consideration in Australian Securities Commission v Marlborough Gold Mines Ltd nor do they deal with any question of property, commercial law or tort law having national significance. If we may respectfully say so, therefore, there is much to be said for the view of Mason P that: ... [T]he judge of an intermediate appellate court determining an appeal remains bound by the judicial oath to do justice according to law. In a proper case, that duty will require departure from non-binding precedents if the judge discerns that legal principles of higher authority require such departure. Each individual judge is obliged to pursue justice, not prudence, even though it may turn out that his or her views do not obtain the assent of appellate colleagues or are overturned upon appeal to the High Court. [52] We would add that the question of comity on issues of interpretation under State law was recently addressed by the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority . The Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) cited with approval the following statement by McHugh J in Marshall v Director-General, Department of Transport But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation. [53] We have already concluded that we should not follow the decision in TSL on the meaning of the word 'likely'. Given that the majority judgment in Tillman was itself based on the decision in TSL , and was contrary to the expressed preference of all three judges in that case, we likewise decline to follow Tillman . We conclude, therefore, that on ordinary principles of interpretation the meaning of the word 'likely' in s 11(1) of the Monitoring Act is 'more likely than not'. 23 The third member of the Court in RJE, Nettle JA, preferred the construction of "likely" as being "at least more likely than not" but for comity reasons, thought that the Court should follow the majority in Tillman. His Honour stated: [104] ……. Tillman and Cornwall having now been decided as they were, it would be facile to construe the Act as if it were unique to Victoria and the problem of its construction were of merely parochial concern. Given that Victoria and New South Wales have each enacted legislation in similar terms, and that the New South Wales Court of Appeal has in comity twice followed the interpretation attributed by this court to one of the essential provisions of the legislation, I consider that we should not depart from that interpretation without a compelling reason to do so. Since the President's and Weinberg JA's criticisms of TSL were in one way or another all considered in Tillman , I am not persuaded that they are a compelling reason to do so. 24 The situation is then that the majority in Tillman, although preferring the construction of the word "likely" given by McClellan CJ at CL in Winters, followed the interpretation taken in TSL for reasons of comity, yet that interpretation has now been rejected by the Court of Appeal of Victoria in favour of the construction applied in Winters. In light of this history it is highly unlikely, so it seems to me, that the Court of Appeal in this State would continue to follow the majority in Tillman. 25 One of the articles tendered by the defendant in these proceedings was by criminologist David Biles entitled "Sentence and Release Options for High-risk Sexual Offenders" in the Australia Journal of Forensic Sciences 2006 Vol 1 No 38. This contained a review of legislation in Australia, and including the Act with which these proceedings are concerned, in order to advise the ACT government. The article states: ………. It is suggested that the level of probabilities that would justify intervention should be no less than "more likely than not" or (the less precise but more demanding) "high level of probability", and it is suggested that type of expertise required which include at least one psychiatrist and one psychologist, both with extensive experience in treating sex offenders, making an assessment independently of each other. 26 I consider myself bound to follow Tillman and Cornwall. The parties before me agreed that I was. Yet if I apply the test in Tillman, I believe that I will be overturned on appeal. The State argues that on either interpretation of the word "likely" I should make the order. The defendant submits that I could not be satisfied of the likelihood of further offending on whatever meaning I apply. 27 Whatever interpretation of the word "likely" is to be given to the section, he seems to me that the prediction is concerned with the period in respect of which the Court can make an order, that is a period of 5 years. Although the State submitted that the prediction was not so confined, I cannot see how the section otherwise operates. That seems to have been the view of the section that Mason P took in Tillman. The evidence The defendant's criminal record 28 The defendant has a criminal record that dates from 1962 but matters before 1989 can be disregarded as being irrelevant to the present proceedings. In 1989 he was sentenced in the Parramatta District Court for offences of supply and conspiracy to supply prohibited drugs. On each offence he was sentenced to imprisonment for 5 years with a non-parole period of 3 years to commence from 31 March 1989. 29 These offences involved a police officer and a person who also became notorious for his sexual offences against young males, Robert Joseph (Dolly) Dunne. The defendant was aged 41 at the time of the offences. The drug at the centre of the charges was amphetamine belonging to an associate of Dunne who had been arrested by police. The arresting police were unaware of the existence of the drug that was then supplied by the defendant and his co-offenders. The defendant was sentenced on the basis that he was to give evidence against the police officer. In respect of those sentencing proceedings a report was obtained from a psychiatrist, Dr Dent. I shall refer to his reports on the defendant later. 30 In December 1991 the defendant was sentenced for a number of sexual assault offences in Victoria. The offences were committed between March and June 1973 on a male aged 13 to 14 years at the time of the offences. The defendant was aged 24. He met the boy through the boy's sister. The offences were acts of indecency and anal intercourse. The defendant had fled Victoria and there was a warrant in existence in that State for his arrest. Prior to sentencing the defendant had given evidence of police corruption in New South Wales and had been placed on witness protection. 31 In sentencing the defendant, Justice Byrne stated: The offences to which you pleaded guilty are very serious and indicated a breach of trust towards your victim. You had obtained the confidence of his father and, as a result, were given an opportunity to act as a teacher for him and as an older friend. In these circumstances, and to that extent, you breached his father's confidence in you and you also took advantage of your victim. According to him, he is still emotionally affected by your conduct. ……………….. The offences to which you had pleaded guilty are serious. Your conduct indicates a breach of trust. The father of your victim allowed you to see his son and believed that a friendly and innocent relationship existed between you. What you did to the boy, when your ages were so different, constituted serious misconduct on your part. In normal circumstances such conduct would warrant a lengthy custodial sentence. 32 The effective sentence imposed upon the defendant was 2½ years with a non-parole period of 15 months. 33 In 1998 Judge Shillington in the District Court sentenced the defendant for 24 sexual offences. There were three male victims. The first was aged 14 years when the offences began and 19 when they ceased. In respect of that complainant there was one charge of indecent assault and 8 charges of buggery said to have been representative of "some hundreds" of sexual acts against that victim. These offences were committed between March 1974 and August 1978. In respect of this victim the Judge stated: The first victim was introduced to you by another and you and he lived together at Rose Bay, Collaroy and Manly. The victim's parents had separated and he was having family problems, not attending school and running away. You became a friend of the family and took the boy away on holidays. You further discouraged the boy from seeing his family and that relationship between you and he extended between the ages of 14 and 19 years of age. 34 The second complainant was aged 13. In respect of him here were charges of sexual intercourse without consent of a person under age of 16, homosexual intercourse and indecent assaults. In the sexual assault offences the child was plied with alcohol and asleep when the defendant committed the offences, including digital penetration of his anus. These offences were committed over the period 1986 to 1988. In respect of this victim the Judge said: You met the second victim at Blackheath and he was then 13 years of age. You met him outside a hotel. He was invited in for chips and drinks. His parents had separated when the boy was two years of age. In mid 1986, acts of sexual abuse commenced between you and him. He commenced to stay overnight at your premises and later moved in with his father. As a result of that, which was encouraged by you, you obtained greater access to the boy. In 1987 he ran away from home and lived with you between July 1987 and March of 1989. The boy himself suffers from deafness, having but 20% of normal hearing. Alcohol and marijuana were used by you to obtain your desires. The boy, as I have said, was between the age of 13 and 15 during the periods of these offences. 35 The third complainant was aged 14 or 15. There were 7 offences committed against him of chiefly sexual intercourse and indecent assaults. One offence involved digit penetration of the complainant's anus. These were representative of over a thousand similar offences committed between January and July 1988. The Judge said about this victim: The third victim was a friend of the second boy. He was invited to your home at Helensburgh and the offences numbered 18 to 22 in the list of charges on the indictment, were committed whilst he was intoxicated by alcohol and marijuana. He has no personal recollection of what happened. As I have said, the last two offences occurred and comprised masturbation and penetration of his anus by your finger. 36 As to the effects of the offences on the victims the Judge stated: One has to look at the effect of these offences upon the boys. I refer to the boys' statements. The first in his statement says that his present situation is that he is greatly affected in his relationship with women. He finds it difficult to show affection. He has bad relations with his father who condoned your conduct with the boy. He has serious physical problems consequent upon numerous acts of anal intercourse. He has problems in relating to young children. The second boy, his present state of mind is that he feels ashamed of his conduct. He says at the time of these events he had no one to turn to. His parents were alienated and he felt separated and scared of you. He had thoughts of suicide and also had thoughts that he wished to kill you. He said he described his feelings about himself as "I feel like a piece of shit". He was given marijuana and alcohol and he is now, according to his estimates, an alcoholic. A third boy, as I have said, met you through the second victim. To obtain your desires, he was given alcohol and marijuana. He said that when you assaulted him he had no prior sexual experience. He felt angry at himself and at you for what had happened. 37 The Judge said the following about the offences for which he was sentencing the defendant: It may be said that with respect to the first boy, you took advantage of the situation between him and his parents and that was also the situation in respect of the second. These offences committed against these three complainants indicate sexual abuse of young boys. They were committed during their early to late teens. The boys came from dysfunctional homes with limited supervision and separated parents. Alcohol and drugs were used on occasions and were used to induce compliance [with] your wishes. The complainants' statements indicate they have suffered psychologically and in one case physically in a permanent way. It will be hard to exaggerate potential ill-effects on young impressionable boys of this type of physical abuse. Certainly in the case of the first and second boys, I am satisfied that their lives have been profoundly changed and degraded by your conduct. Your counsel, Mr Molomby, made a number of detailed submissions which I feel I should deal with not in an exhaustive fashion but in general terms. It is your claim that these relationships were, as he describes them, monogamous in contrast to haphazard promiscuous conduct. It is somewhat difficult to reconcile that with your statement when you were interviewed on the Current Affair program in November of 1993. This is a program which I will refer to later. You are asked by Mike Munro on that occasion, " So how many young boys do you think passed through your life and the lives of other pederasts during those years that you are protected by the police?" and your answer was, "200 to 300". It is also to be noted that the offences with regard to the third boy occurred when you, as I understand it, were in what is described as a monogamous relationship with the second. But in the event it is hard to see, if this was the true situation, how it assists you. ……………. It is further your claim that you had the implicit consent of the parents to what was taking place. In my view, this only makes the matter worse; the fact that you took advantage of lax parental control and lack of interest on the part of the parents. It is further suggested that they, the complainants themselves, have revised their view of the relationship with you. It is suggested they were willing parties at the time of these events, but it is to be noted that these were boys, certainly in respect of the first and second, from a dysfunctional family. You provided them with accommodation, you provided them with money and certainly in one case gave them alcohol and drugs. You flattered the boys and treated them as equals. That is evident from the BBQ video which I was invited to look at. Whatever these complainants' attitudes might have been at the time, and I do not accept that they were willing participants, there is no doubt that their present attitude what happened to them in the present psychological and physical state are quite different and certainly quite genuine. 38 Judge Shillington sentenced the defendant to a total term of imprisonment of 12 years and it was from this sentence that he was released in May of this year. It is obvious that the defendant was not granted parole. 39 An appeal against the severity of this sentence to the Court of Criminal Appeal was dismissed on 21 July 1998. Sully J delivered the principal judgment of the Court and stated: The applicant did not make any secret of the fact that the twenty-four particular matters charged against him, and to which he pleaded and stood for sentence, were manifestations of a lifestyle in which he had regularly indulged a period of years before 1989. It is necessary to bear carefully in mind, of course, that the applicant is not to be punished for offences for which he has not been tried, and of which he has not been convicted. By the same token, it is proper to take account of the fact, and it is undoubtedly admitted fact, that none of the particular twenty-four matters of present concern can be seen as isolated aberrant acts, but rather as representative of the pre-1989 lifestyle of the applicant. It must surely go without saying that the offences of the character that I have described are, on their objective facts, of the most serious imaginable kind. 40 In a reference to the part of the sentencing remarks concerned with the nature of the relationship of the defendant with the victims, Sully J stated: I take the reference in the submission to "monogamous relationships" to posit that the applicant pursued a number of discrete, individual relationships rather than a wide-ranging promiscuous paedophilic lifestyle. As to that, I think, for my own part, that it is sufficient to say that it cannot possibly be correct to suppose that it is somehow less reprehensible for an adult to debauch young boys in separate and successive, rather than in separate and concurrent, relationships. I do not think that there is any advantage to the present applicant from the point. 41 In proposing that the appeal be dismissed, Sully J stated It is not necessary, I think, to dilate any further and I have earlier done upon the details of conduct of the applicant. But it is, I think, worth stressing, yet again, that such behaviour constituted a course of appalling sexual abuse on vulnerable young boys over a lengthy period of time. It cannot be disputed, it seems to me, that public opinion,- and I mean by that reasonable, intelligent and properly informed public opinion, - would find utterly abhorrent that course of conduct, and would think that any significant interference with the practical effect of the sentences imposed in the Court below was not conducive to the maintenance of proper level of public confidence in the administration of justice according to law. 42 On 13 October 1999 Blanch CJ sentenced the defendant in the District Court for three counts of buggery. Two offences were committed between June and September 1971 upon a complainant who was aged 15 at the time. The other offence was committed between March 1972 and March 1973 upon a complainant aged 14 years. The defendant asked the court to take into account five offences on a Form 1. Blanch CJ noted that the offences were of a similar kind to those dealt with by Judge Shillington. His Honour concluded that it was appropriate in the circumstances to impose a fixed term sentence of 4 years to date from the date the sentence was imposed. The sentences were thus served concurrently with the sentences imposed by Judge Shillington. Psychiatric and psychological evidence 43 There was a deal of material placed before the Court by way of reports by psychiatrists and psychologists. A number of these witnesses were cross-examined on behalf of the defendant. Ultimately there was a uniformity of opinion that the defendant fell into a group of persons who were at high risk of further offending but there was disagreement as to what could be said about the risk of the defendant himself committing a further serious sexual offence. Dr Dent 44 Dr Dent prepared a report dated 17 July 1989 for the sentencing proceedings before Judge Court for the drug offences. The defendant told the psychiatrist that he had been "easily manipulated" by Dunn and that the police officer involved had a "powerful grip on him through aspects of his [the defendant's] sexual preference". According to the report the defendant told the psychiatrist: …….. that he was very afraid of losing Dunn as a friend, he told Dunn that he didn't believe Dunn had the right to put him in this situation, that he (your client) had a lot to lose. Indeed, he had moved to Helensburgh to get away from the powerful manipulation of Churchill and other aspects round his life, your client told me he had found a new meaning in life in Helensburgh with his business going well and also having the responsibility of a 15 and a half to 16 year old male who had been his ward for two years, the son of a friend of your client. 45 In order to explain to the psychiatrist how he came to be "entrapped" by police in committing the drug offences, he told Dr Dent the following: …….. he belonged to a "very harassed group who share mutual interests and affections", saying that his was "a group one feels safe in", stating that because of the harassment (indicating it had to do with his sexual preference) then these people "tend therefore to have a strong sense of mutual support and identity". He said many of his acquaintances have left him and the group over the years, "the core group of mutual support and affection became smaller and tighter", hence the potential loss of risk of friendship from such a small group brings with it a greater threat of sense of emotional loss, a sense that it's important to belong to the group and to maintain a sense of loyalty to that group to avoid such loss. 46 Later Dr Dent wrote (the underlining is the author's): What is also apparent from his background, is that there was affection given on condition that he obeyed the family's norms and attitudes, if he did not do so he would often have a guilty reaction. Indeed the point from this is that if he did not conform then he was deprived of affection and often threatened with this, it being of considerable importance to note his separation from the family as [an] uncontrollable child when 15. That is, it has been very important to him not to lose affection again , I think it also explains why he has a ward aged 15 years, Raphael, and why he has spent so much of his time in his work running under-18 discos. One refers to his background again in this area of not wishing to lose, one can understand why he would have such a strong emotional involvement in that situation with Dunn and others where he would agree to cooperate against his normal judgment and social competence rather than risk losing affection and support, having had such a painful loss of affection in his early life. 47 The "ward" referred to in these parts of the report was in fact one of the defendant's victims of sexual abuse. Of course up until this time the defendant had been involved with Dunn and others in the repeated sexual abuse of under-aged males using alcohol and drugs to undermine any resistance by the victims and protected by corrupt police. However, Dr Dent wrote: He has not abused drugs, his use of alcohol has been social only, he has not really abused alcohol though one notes the abuse of alcohol in the weeks leading up to the events. There is no use of any other illicit drugs except occasional use of marijuana from time to time in the past. 48 Dr Dent made a further report on the defendant dated 15 January 1992. The report commences: Mr Fisk has been obliged to face a plea in Melbourne I believe on the 20th of January as a result of alleged offences when aged 24 years, that is in the very early seventies the circumstances involved a homosexual relationship with a 14 year old youth. Mr Fisk informs me that this was a mutual sexual and emotional friendship which lasted some six months. I further understand he has never been charged with these offences or any similar offences in 1973 or since that time. I am also aware that the emotional and psychological effects of all those circumstances in 1973 regarding the then 14 year old youth and his welfare prompted Mr Fisk at that time to contact the family on two occasions. I understand this took place first in 1974 when he spoke to the boy and affirmed that he was well and believed that the events were best forgotten. I understand he also contacted the family some 10 years later when he spoke to the father at some length regarding the boy who had then reached adulthood of course, was informed that the young man was now well adjusted, about to marry and to join the army. 49 This account should be compared with what Judge Byrne stated in his sentencing remarks as follows: I also heard from your victim of these counts, who is now 32 years of age. He was born on 6 April 1959. He said that for the first four to five years after these incidents he felt dirty, humiliated and angry. He said he still feels hurt and suffers flashbacks from what happened in the past. Before me, he appeared emotional and was unable to control his emotions - I have only briefly set out the facts of this case. I have already set out from the sentencing remarks the facts as recounted by the Judge and the way he viewed the offending. It is inconsistent with the account given to Dr Dent by the defendant. Mr Joblin 50 A psychologist, Ian Joblin prepared a report dated 6 December 1991 for use in the Victorian sentencing proceedings. The report contains the following: [The defendant] reported that when he was at school boarding in the Christian College, he became aware of his attraction towards males of a similar age. It seems that he was fixated at that level of sexuality. For a time after he left school he had considerable conflict in accepting his homosexuality, versus any heterosexuality. He had had relationships with females but they were not as gratifying as relationships with other young men. It is interesting to note at this time he apparently auditioned with the Australian Opera and was looking forward to a career as a professional tenor, but because of his confusion in relation to his sexuality he felt he could not continue. In his late adolescence and early 20s he began to accept his sexuality. When he left Melbourne after being charged with these offences he found other homosexual men of a similar orientation in relation to their partners and (the defendant) from that point has settled into accepting that he is a homosexual and that his partners of preference are youths. I am of the opinion that it is inappropriate to label this man as a paedophile. Indeed by definition he does not come into that category, even in relation to these offences. Paedophilia, by definition, involves special sexual fantasies with pre-pubertal children being the persistently preferred or exclusive method of achieving sexual excitement. I have discussed this matter at length with [the defendant] and he denies ever having any type of sexual fantasies or any type of sexual behaviour with such young children. I feel it is more appropriate to label this man as a hebephile (Hebe being the Greek goddess of youth). It seems that a group of men, many of whom are professionals in New South Wales had been involved with relationships with adolescent youths for some time and [the defendant], being a member of this group, feels totally at one and reconciled in his sexuality. CUBIT Treatment report 51 The defendant was involved in the CUBIT treatment programme for sexual offenders in custody from 13 September 2006 to 21 September 2007. There was in evidence a treatment report dated 19 October 2007. As to his overall participation in the programme the report states: Upon entry into the CUBIT programme, Mr Fisk appeared unmotivated to address his offending behaviour. He appeared dismissive of treatment and was disengaged in group processes, arguing that his attitudes and "lifestyle" were not problematic, rather "this society has different views". As treatment progressed Mr Fisk appeared to shift from this position and he reported that he was motivated to discuss his offending and make changes that would positively impact on his life and his ability to remain offence free. Despite this shift, Mr Fisk's participation in treatment overall was varied. At times, Mr Fisk was able to make insightful connections in his own and other's patterns of behaviour. He participated well in group, was receptive to feedback and demonstrated an ability to provide supportive and constructive feedback to other group members. At other times, Mr Fisk seemed to engage in a number of tactics to avoid addressing issues in a comprehensive manner. For example, he would be defensive and resistant towards feedback, collude with other group members, make self focused remarks, engage in secrecy and avoid discussion of issues. Additionally Mr Fisk occasionally behaved aggressively towards group members, using sarcasm and belittling or patronising comments to cause harm. Mr Fisk also engaged in labelling and appeared to present himself as superior to those around him. 52 However, the report is generally favourable and the defendant successfully completed the programme. Under the heading "Life Time Patterns" the following is stated: During his time in treatment Mr Fisk developed a comprehensive understanding of his patterns of thinking and behaviour that negatively impacted on his life and his relationship with others. At times, Mr Fisk appeared to make a concerted effort to address these treatment issues and demonstrated some change in a number of target areas e.g., challenging distorted attitudes toward children and sex, and developing a healthy view of himself and his sexuality. However, Mr Fisk still demonstrated some difficulty developing and maintaining intimacy in relationships and he often reverted to old patterns of coping when he was experiencing feelings of vulnerability, worthlessness and rejection (e.g., dismissing feedback and blaming others for his problems). Additionally, Mr Fisk appeared to maintain some distorted and stereotypical attitudes towards homosexuality and homosexual relationships and he continued to use poor coping strategies (e.g., self-deprecating humour) to deal with others' inappropriate remarks towards him. Mr Fisk would benefit from continued support in developing his coping strategies, improving his relationships, and implementing changes in his behaviour on a daily basis. 53 Early in his treatment the defendant demonstrated absence of empathy for the victims of his sexual offending behaviour, reporting that they had consented to the abuse and that he "romanticised the abuse as loving and intimate sexual relationships". He also suggested that the victims had not been harmed and disclosed the abuse for their financial gain. However as treatment continued he was able to develop "a rudimentary understanding of victim issues both for victims of sexual abuse in general and the victims of his offences". The authors of the report thought the defendant would benefit from ongoing support in developing his empathy skills. 54 Under the heading of "Sexual self-regulation" the following is reported: Early in treatment Mr Fisk acknowledged ongoing deviant sexual fantasies about adolescent males and a tendency to sexualise young adults. He reported that he believed this was a habit and did not appear concerned about this behaviour. Mr Fisk was provided with feedback about the risk of engaging deviant sexual fantasies and was provided with cognitive-behavioural intervention strategies should he care to utilise them. As over the course of treatment Mr Fisk appeared to gain some insight into the risks associated with engaging in deviant sexual fantasies and he made some comments towards the end of treatment, highlighting his tendency to choose to watch certain television programmes (e.g., late-night SBS movies). Mr Fisk appeared ambivalent about this issue and may benefit from further discussion about this in maintenance groups. 55 Under the heading " Acute dynamic risk factors" the following is stated: Mr Fisk may be considered at imminent risk of reoffending when severe emotional disturbance is evident as this may impair his judgment and impact on his self-control. Historically, Mr Fisk has reacted to severe emotional stress by engaging in avoidant coping strategies such as ruminating, isolating himself, abusing drugs and alcohol and gambling. He has also engaged in aggressive behaviour towards others when experiencing stress or under the influence of alcohol and he indicated that he sometimes used sex as a means of coping when stressed. Mr Fisk has been diagnosed with depression in the past and is currently prescribed medication to manage these symptoms. Any of these behaviours or indicators that he is experiencing emotional stress would indicate to others an increasing risk of recidivism. Additionally, loss of social supports through termination of relationships or perceive rejection may also be signs [of] Mr Fisk's increasing risk of reoffending. Similarly expressions of hostility, angry ruminations or general defiance and recklessness may also indicate an increasing risk, as would associating with pro-criminal others or seeking out child victims. In order for Mr Fisk to effectively manage his risk of recidivism he will need to continue to address the dynamic risk factors outlined above and maintain the changes that he has made whilst in CUBIT. The custody-based maintenance group may afford him an opportunity to explore these issues and practice implementing his self management plans. Further, any changes noted in the aforementioned dynamic factors should alert Mr Fisk, his support network, and other professionals to his immediate increased risk of sexual recidivism and the need for immediate intervention. 56 The report concluded with the following recommendation: Based on Mr Fisk's progress and outstanding treatment issues, it is recommended that he participate in a substantial period of custody-based maintenance in MSPC, Long Bay Correctional Centre. This will afford him the opportunity to address outstanding issues and offer him support in making further changes. It is envisaged that Mr Fisk would also benefit from community-based maintenance to assist reintegration into the community. If community-based maintenance is not available to Mr Fisk in his planned place of residence, it is recommended that he access a psychologist in his area with experience in working with individuals who have committed sexual offences. Mr Fisk may also find contact with a support group for homosexual men useful and he should access support groups for gambling, drug and alcohol abuse, and relationship counselling on a needs basis. Mr Sheehan 57 Mr Sheehan is a psychologist employed with the Department of Corrective Services ("the Department) as Senior Specialist Psychologist, Serious Sex Offenders Review Group. He prepared a Risk Assessment Report dated 31 March 2009. This was based upon interviews with the defendant on 19 and 24 March 2009 and 14 April 2009. 58 In his affidavit of 21 April 2009 he stated: Having regard to both actuarial assessment using the STATIC-99 and dynamic risk assessment, I access Mr Fisk as presenting a high risk of sexually re-offending relative to other adult male sexual offenders. I refer to this assessment in my report at page 20. Overall Risk 59 In his report at page 20 under the heading "Overall Risk" Mr Sheehan wrote: The management of one's risk involves improving their level of functioning in the afore-mentioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors their ability to manage their overall risk improves. Mr Fisk is undergoing a process of change. He has changed his position in order to agree to participate in CUBIT, during which he also demonstrated some ability to engage in analysis and change of elements of his beliefs and behaviours. He generated a list of risk factors and interventions to address those risk factors. Mr Fisk's ability to live by this plan outside of the CUBIT therapeutic community has been inconsistent and he has regressed in some areas. On balance, the totality of evidence suggests that Mr Fisk remains in the high risk category of sexual offending relative to other adult male sexual offenders. Conclusions and recommendations 60 Later in his report under the heading "Conclusions and Recommendations" he wrote: Mr Fisk's risk of sexually reoffending is estimated to be in the high-risk category relative to other men who have sexually offended. He has been afforded participation in an appropriate intensity of psychological intervention that is specific to offence-related behaviours and he has generated what appears to be a realistic and insightful plan for addressing the factors associated with risk. At this stage, there remains an obvious discrepancy between his behaviour plans and his actual behaviour. Given the high valency risk factor that Mr Fisk's only sectional interest is towards males of adolescent physical appearance, he would have to work consistently and comprehensively to manage all aspects of risk before confidence could be had in his ability to independently manage his risk over time. Ongoing supervision may assist Mr Fisk by forcing that he does not engage in high risk behaviours at times when his own self-management is inadequate. Mr Fisk would benefit from ongoing therapeutic assistance to generalise treatment gains and alternative coping strategies, should he be amenable to such intervention. Assessment of suitability for antilibidinal medications may also be a prudent step in adding a physiological dimension to risk management. In the event that Mr Fisk receives an extended supervision order, it is likely that he would be supervised by the Community Compliance Group. In terms of accommodation, my understanding is that Mr Fisk has been approved for the Community Offender Support Program (COSP) centre. The COSP is a residential facility operated by the Department of Corrective Services, designed to facilitate the temporary accommodation needs of offenders released from custody whilst subject supervision. The COSP can offer Mr Fisk a comprehensive level of support and supervision, assisting him to organise the logistic details required by offenders when they returned to community life. It is recommended that any management plan be designed to be minimally restrictive, but rather to be supportive of and to encourage the establishment of a balanced and responsible lifestyle as reflected in Mr Fisk's Self Management Plan. The level of restriction and autonomy afforded to Mr Fisk should remain dynamic, reflecting changes in his own ability to manage his risk behaviour as evidenced by his behaviour over time. The Community Maintenance Program as offered in the Department of Corrective Services Sex Offender Programmes would be available to provide Mr Fisk with ongoing therapeutic assistance. Static-99 61 In the body of his report Mr Sheehan refers to what he refers to as "static risk factors". This risk of reoffending was assessed using an actuarial risk assessment, the Static-99. This assessment is described by Mr Sheehan as follows: ……….. the Static-99 consists of 10 items and produces estimates of future risk based on a number of risk factors present in any one individual. The risk factors included in the assessment are the presence of prior sexual offences, having committed a current non-sexual violence offence, having a history of non-sexual violent offence, the number of previous sentencing dates, age less than 25 years old, having male victims, having never lived with a lover for two continuous years, having a history of non-contact sexual offences, having unrelated victims, and having stranger victims. This actuarial tool has moderate predictive accuracy. The recidivism estimates provided by the Static-99 are group estimates based upon reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender's risk may be higher or lower than the probabilities estimated in the Static-99 depending on the other risk factors not measured by this instrument 62 As a result of the use of this assessment, the defendant was placed in the "high risk category relative to other adult male sexual offenders". Mr Sheehan wrote: Mr Fisk scored an 8 on this instrument. Any score of 6 or over is within the high range. In the updated normative sample, the group sharing Mr Fisk's characteristics, the rate of sexual recidivism ranged between 22.3 to 38.2 percent over five years, and between 30.8 to 48.5 percent over 10 years. The rate of violent recidivism for scores of "8" in the new sample ranged between 43.4 to 56.6 percent over five years, and between 55.1 to 62.9 percent over 10 years. In cross–examination Mr Sheehan accepted that recidivism for the purpose of this assessment included reconviction of any type of sexual offending whether serious or not. Relevance of age 63 Mr Sheehan commented on the relevance of the age of the defendant, who was 61 years at the date of the hearing. He wrote: Research into the effect of age on sexual recidivism is a relatively new and developing area. A number of studies suggest that for extra-familial child molesters the high-risk period is from the late 20s to the mid-40s, followed by a decline thereafter (Craig, 2008). Factors that may contribute to this decline include a reduction in sexual drive with age, increased self control, and fewer opportunities for developing relationships with children (Hanson, 2002). This reasoning implies that it is not age itself, but age related issues of lifestyle and physiological changes that may contribute to any proposed reduction in risk. The evidence from current research is limited to the extent that it is not possible to make any unqualified empirically-based statements about the influence of age-at-release on the risk of sexual reoffending for high-risk offenders at age-of-release 60 years or older, particularly when attempting to apply statistical trends to an individual (Doren, 2006). Mr Fisk has reached the age of 60 years. In my opinion, I would be willing to consider an age-related adjustment of risk with Mr Fisk contingent on his sexual behaviour and general lifestyle as observed in the community after his release over a stable period of time. Dynamic risk factors 64 Mr Sheehan referred to "dynamic risk factors" being those factors that are related to sexual recidivism and amenable to change. In his affidavit he states: Dynamic risk factors as those that relate to the offender's current psychological state and life circumstances. They can be considered "live risk" and can change over time and are therefore subject to intervention. 65 In his report Mr Sheehan wrote: ………. dynamic risk factors provide specific information about the risk of the particular individual being assessed. Although actuarial assessment provides information about how similar a given individual is to a group of offenders who did reoffend, it does not provide any indications about whether the individual will be in the group of men who will reoffend or the group of men who will not reoffend. A greater number and severity of dynamic risk factors can indicate heightened active risk in that individual and would indicate the requirement for increased intensity in supervision and management. 66 The dynamic risk factors considered by Mr Sheehan were intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. He points out that these factors were addressed within the CUBIT program. 67 In relation to "social influences" Mr Sheehan wrote: In contrast to his post release plan during CUBIT, Mr Fisk no longer plans to reside in Tasmania. He plans to reside in NSW whilst subject to supervision, and then relocate to Thailand in the long term. Whilst in NSW, Mr Fisk will have access to family and friends. From his description, his family and a few friends who have remained supportive over his years in prison, could be described as positive influences in that they are not known to have criminal histories and do not condone his offending. He explained that those who do consume alcohol are aware of his intention to abstain and have committed to support him in this regard. Should Mr Fisk focus on developing the social contacts after his release, he may build a social network associated with a more prosocial and law-abiding theme than his previous antisocial network. 68 In relation to "sexual self-regulation" Dr Sheehan wrote: In my experience, many offenders who offend against young persons are also capable of sexual attraction towards adults. This allows them to focus their sexual energies towards cultivating peer-aged sexual relationship should they choose to desist from sexual offending. In many cases this becomes a goal of treatment during and beyond psychotherapy. The problem with Mr Fisk's narrow bandwidth of sexual interest, is that it leaves him little scope for adaptive sexual expression. The strategy described by Mr Fisk is to either abstain from all sexual contact or to seek young-adult partners who have an immature physical appearance. ………… During interview, Mr Fisk described historical and recent situations when he declined the opportunity to have sexual contact with young males, both in prison and the community. From his description, there are times when he has a strong resolve in this regard. He has also described a recent platonic relationship with a youthful inmate in prison. He stated that although he felt confident that it was within his power to seduce this person, he fought the desire, reminding himself that he "should not corrupt" this person's innocence. He also reasoned that he believed he could not match such young person in sexual stamina. His description of this encounter gave some insight into the process by which Mr Fisk has traditionally become sexually involved with his partners. He described quickly developing an intense idealised infatuation with this person, "I adored him, still do". Maintaining the platonic boundaries caused inner turmoil for Mr Fisk. The inmate in question has since left custody and Mr Fisk inquired whether he might be permitted to have contact with him after release. This example may indicate that Mr Fisk has developed some internal resistance to engaging in sexual encounters that are not in his or others' best interests. This may be protective, but it also points to Mr Fisk's ongoing vulnerability to developing potent romantic and idealised sexual attractions to young males (albeit of a legal age). Post release requirements 69 In his affidavit Mr Sheehan addressed the need for supervision and support of the defendant when released from custody and stated 42. In my view when Mr Fisk is released from custody, supervisory conditions and monitoring would increase the likelihood of Mr Fisk being able successfully to manage his risk of sexual recidivism. Conversely, in my view supervisory conditions and monitoring would decrease the risk of Mr Fisk recidivating 43. Without intending to be exhaustive, recommended conditions would include conditions requiring Mr Fisk to accept ongoing psychological therapy (in terms of the community-based maintenance programme, discussed below), anti-libidinal medication if prescribed, as well as conditions providing for the support, monitoring and supervision of Mr Fisk. …….. 45. It would also be recommended that, at least in the initial stages of any supervision period, Mr Fisk remains abstinent from alcohol. It would also be recommended that he not use illicit drugs. Both alcohol and illicit drugs are known as disinhibitors of inappropriate behaviour and can affect judgment, [and] as such, are problematic in the case of Mr Fisk. ………. 55. In my view it would be important for Mr Fisk to continue to receive ongoing therapeutic assistance through the Forensic Psychology Services maintenance programme in order to assist him in managing his risk of re-offending and protect the community. Cross-examination 70 In cross-examination, Mr Sheehan accepted that the defendant had been using an anti-depressant medication for at least 12 years and that he had reported low libido. However, he though that diminished libido was not uncommon for offenders who are under stress, for example while going to court or while undertaking treatment. He accepted that the defendant might be less likely to be aroused now than when he was offending. 71 He was taken to studies concerned with the rate of recidivism over age and agreed that generally they showed a decline in re-offending with an increase in age in the oldest aged groups. However he was not prepared on the present learning to make an actuarial assessment of reoffending according to the age of the defendant. He stood by what he had written in his report and that has been quoted above. He did accept that persons who have been subject to a treatment programme are statistically less likely to reoffend. 72 He was asked about the defendant's plans to live in the country and he thought that this had the potential to be beneficial in the long term. He accepted that living in that situation would "represent less of a risk scenario than the lifestyle he was living in the 80's". Dr Samuels 73 Dr Samuels was one of the two Court appointed psychiatrists. He made a report dated 13 May 2009. Amongst the material he considered was the affidavit of Mr Sheehan and his risk assessment report. Offending behaviour 74 In his report Dr Samuels took a history from the defendant including an account of the time that he was living with another notorious sex offender, Phillip Bell, at Whale Beach. He said that at the time money was no object and they could do what they could not do at home. Dr Samuels went on: He went on to say that the adolescent boys were "part of our lives". There was "integration with the boys, we took them everywhere". He went on to say, "There was no pressure, it just happened, it became a normality". And later: He made an interesting comment about Philip Bell, saying that he became very angry with Philip Bell because he felt that he "destroyed his boys". He gave the example that Philip Bell took one of "his boys" to Switzerland to finish his education (with the boy's parents' permission). He said the boy then returned to Australia and was put into Sydney Grammar and shortly after that died of a heroin overdose. He went on to say that Philip Bell tried some sort of "Pygmalion act" with this young man. At this point I asked him if he thought any of his sexual encounters with the "boys" had had adverse consequences. It was clear that he found this very difficult to answer but eventually said, "Yes, yes, yes". I asked him to expand on this and all he could really tell me was that these encounters might have "led to confusion about their sexual identity". He told me that he was "never out of control with my sexuality". He expanded on this by saying that he had never "lunged at anybody". He told me that all his sexual offending was planned. He said the biggest thrill was in "grooming". He said the sexual part had a short life. Medical history 75 Under the heading "Past Medical History" Dr Samuels wrote: He denies any medical problems although he thinks that he has emphysema because of his heavy smoking. Sexual offending treatments 76 Under the heading "History of Sexual Offending Treatment" Dr Samuels wrote: He tells me that he has completed the CUBIT programme and the maintenance programme and he feels he has benefited. He said after the events in 1989 he made a decision never to "reoffend with a young person again". He acknowledged that at the time these offences were happening he saw it as part of a "lifestyle". He did not see any particular adverse consequences to the young man involved. He said, "I thought it was a normality of life". He told me that he was put on Androcur by Dr Olaf Neilssen. He said that he volunteered for this treatment because he wanted to feel what it was like. He said the combination of cyproterone acetate and his SSRI antidepressant Zoloft made him "feel drained" with "no sexuality at all". He said he was not able to get an erection. He said he felt "no spark". For these reasons he ceased the treatment and he does not feel there is any need for him to be on such treatment at this time. Dynamic risk factors 77 Dr Samuels was asked to assess the defendant's risk of re-offending. He noted the Static-99 score and its interpretation in percentage terms. He then went on to consider the defendant's dynamic risk factors. In his evidence he indicated that these were "a checklist of most of the factors that are known to be associated with sexual offending". He described it as a "structured assessment"; the more risk factors the greater the risk. He stated in his report: In terms of social influences, Mr Fisk made it clear that he has severed all contact with the group of people who supported what he describes as his "lifestyle". He states that his involvement with the police and the Woods Royal Commission has also ousted him from this group. He made it clear that he will not be mixing with anyone who has had involvement in such activities and I would see this as being positive. I do believe that he still has some distorted attitudes and some intellectualisations and rationalisations about his previous offending behaviour and at some level still feels that his actions were justified and not particularly damaging. This raises some concerns. 78 Later he wrote: In terms of substance abuse, he acknowledges that in the past he did his alcohol to cope and abused marijuana. He states he has no desire to use the alcohol or marijuana. He says he has not used any substances for 12 years and he does not see himself as being at risk. He says if he was feeling at risk he would know how to access supports in the community. Victim access I would see has been a significant issue and despite what Mr Fisk said, if he were placed unsupervised in a situation in which he had access to a young male in the age range with the physical characteristics that attract him I would have some concerns that he would not be able to exert the level of control that he states he has 79 Further he stated: Mr Fisk certainly presents as being a charming and articulate man who has a history of possible conduct disturbance in childhood and apart from his sexual offending, some adult antisocial behaviour. There certainly are strong suggestions from his presentation that he may have some antisocial personality traits. He presents very well and he will have the capacity to convince family members, friends and some professionals that things are going well and this in fact may not be the case. He has been in custody for 12 years and has not had the opportunity to offend sexually or perhaps to use substances and it is only when he is back in the wider community that he will be subjected to these temptations and seem to me quite likely that he is underestimating his level of risk. Risk of reoffending 80 Dr Samuels was asked to state his overall opinion as to his assessment of the defendant's level of risk of reoffending. He wrote: He has a substantial and longstanding history of sexual offending against a circumscribed group of young adolescent males. Infrastructure that supported his offending behaviour has been largely disbanded and many of the other protagonists are no longer alive. Mr Fisk has been involved in a number of events that may have changed some of his views relation to these issues. He has also spent 12 years in custody and has been through a treatment programme. His case is somewhat notorious and he will be subject to greater scrutiny in the community. He states he has found religion and has the ability to self regulate his sexual thoughts and feelings. He states that he is no longer reliant on alcohol and marijuana which may have been a factor in his offending in the past. He has however been in custody for the last 12 years and has not had the opportunity to access victims or to use substances. Despite going to a program of therapy there are still some suggestions from his presentation that he has a level of denial about the consequences of his offending behaviour. He sees "hebephilic" behaviour as being somewhat different from "paedophilic" behaviour. I also get the impression that he sees his role in these events as perhaps being less significant than the parts played by others. He does have some personality strengths and he does seem to have some genuine support in the community and is not without intellectual resources. He has a high actuarial risk profile and although the Static-99 reflects a cohort of offenders and does not really give any information about individual offenders, I would see his score as being in keeping with his overall presentation. Using a structured risk approach, the RSVP, a number of risk factors are highlighted which include chronic sexual violence, psychological coercion,………….., attitudes condoning sexual violence, problems with stress and coping, sexual abuse as a child, substance misuse, depression and anxiety, problems with intimacy, employment difficulties, non-sexual criminality, problems with treatment and supervision. Therefore taking all these factors into account I think there is "a sufficiently substantial probability" that in the absence of appropriate supervision in the context of his support structures failing, mood instability, substance misuse and opportunity, he could commit a further serious sexual offence. I have not particularly addressed the other static risk factor of age because this is a controversial entity and Mr Fisk continues to present as a fairly fit, healthy looking man. As I have already noted, Mr Fisk is not keen to take anti-libidinal medication. I certainly would see the taking of such medication as being a highly protective factor and one that would substantially lower his risk of offending. 81 Later in his report Dr Samuels stated: As I have already outlined, Mr Fisk sees his offending behaviour over 20 years or so as being part of "a lifestyle" which was perpetuated and maintained by the circle of friends that he was involved with. He sees this network as having now disbanded through the Woods Royal commission, the deaths of the various participants and exposure of the corruption in the NSW police force. He sees himself to some extent as having championed the Woods Royal Commission and being responsible in some way for its outcomes. He sees himself as being a pariah within the community of offenders and perhaps in the gay community as well. He indicated that he has changed in his thinking and simply states that he will not engage in sexual relationship with underage males and he believes he has enough supports and structures in place to prevent this happening. I continue to be left with the feeling that he employs a lot of intellectualisation, rationalisation and minimisation strategies in terms of his thinking. This was clearly a very well entrenched pattern of behaviour. He states that he enjoyed "grooming" can mean more than having sexual relationships with them. I am left with some concerns that even in the context of the dissolution of his offending network and his increasing age, post release he could slip back into a very well entrenched pattern of behaviour which was not only part and parcel of his "lifestyle" but his identity as well. Cross-examination 82 In cross-examination he was asked about the statement in his report that the defendant had "some personality strengths". He was asked what the strengths were to which he referred. He answered: He does have some interpersonal skills. He certainly has some social skills. He appears to have a capacity to get along with people. He obviously has maintained a relationship with [ ]. He presented in a very pleasant manner. When I challenged him in the course of my interview, even when I asked him questions that were reasonably confronting, he didn't seem to get perturbed or rattled by those questions. He obviously is intelligent. He has a record in the past of doing quite well in the various enterprises that he undertook. So that's really what I meant. 83 He was asked whether these were positive factors in terms of determining whether the defendant was likely to commit a further serious sex offence and he replied: ……… one of the problems about when you do any kind of risk assessment and you put all these factors in the mix, every factor has an upside and downside, and as much as interpersonal strengths like a good social skills, being articulate, having some charm, etc, etc, can be a positive attribute, it can equally be a negative attribute……. sex offenders who are particularly articulate, glib, charming, can appear to do very well in therapy, get on well with people who are running therapy groups, and it can itself be a risk factor. So the short answer is yes and no. Relevance of age 84 He was asked about the effect of aging and accepted that aging does have a deleterious effect on sexual functioning, sexual arousal and sexual performance. But he was not prepared to make any general statements about the effects of aging on the risk of re-offending. Although he accepted that there was a correlation between age and reoffending, he thought that there were too many factors involved to be able to make any actuarial prediction about it. He said: So in general terms I think we can say that ageing seems to be a factor that reduces risk, but how to scientifically apply that in terms of any actuarial measure we don't know, and certainly can be incorporated into clinical judgments. And then I think you have to move to the next factor which is if you know, if you have somebody who is older, and very medically unwell, immobile or in a wheelchair, those are all factors that you would think would reduce risk intuitively. If you have somebody who is in their 60s and fairly fit and healthy, one could say yes, it's likely that sexual functioning would be reduced compared to how they were when they were forty, but exactly how you put that into the mix is more difficult to determine from a scientific perspective. 85 Dr Samuels accepted as a general proposition that people mature and personally factors become less prominent with age and self-control increases. He was not so sure that opportunities to re-offend diminish with age. The effect of treatment 86 He believed that the effect of treatment on recidivism was "modestly positive" but there was not a great difference between offenders who were treated and those who were not. In relation to the effect of treatment he said: …………… I think the issue that probably separates our high risk offenders from the rest is actually that identification because once you have identified someone who is a high risk offender a whole lot of variables come into play and yes, they may have been through a cognitive behavioural programme and I am sure it doesn't do any harm. The question is whether it does any real good and whether it has any sustained effect. But I think when you are identified as a high risk offender there are a lot of interventions that are put in place and any and all and probably the cumulative effect of all of those interventions does make a difference and reduce the likelihood of offending, but it is hard to say that because you went through CUBIT you wouldn't reoffend. It is a factor. 87 As to the fact that the defendant was apparently doing well in his current programme, Dr Samuels stated: ……… Mr Fisk is the kind of patient who will appear to do well in these sort of group programmes because he is articulate, he is personable, he gets on well with people and he will do well with the group process………some people really struggle with CUBIT because they have such poor social skills, they have low IQ, they don't know what is expected of them. People particularly with antisocial type personality features can do extremely well in these groups and make people believe that they really understand and know and have reformed their ways and understand, have victim empathy and know what to do in the context of relapse prevention, the but that may actually be a risk factor in itself because there is a false sense that they are doing very well. Static-99 88 In relation to assessment tools such as the Static-99 Dr Samuels said: …… the problem with Static-99, and all of these measures, is they do not talk of Mr Fisk. They talk about a cohort of offenders, and its very difficult to make out a basis on an individual prediction, what it does show is that the risk, even though over 15 years it doesn't go away, that some people offend very late in the piece and, you know, we can take away all of these sophisticated measures and actuarial tools, it really comes down to one thing: that past behaviour is the best predictor of future behaviour. We can get very scientific about it but we know that Mr Fisk, before he was convicted, probably perpetrated many, many offences, and that's why he scores a higher score on the actuarial tool, because it's based on the past. It is difficult to predict the future. 89 When questioned about the value of Static-99 as a predictor of defendant's risk of reoffending, Dr Samuels said: I do think that the most pertinent issue in terms of Mr Fisk's previous offending behaviour is the number of offences committed. The nature of the offences, I do think the minimisation of the offences is important. I think there's some protective factors, as I've said, he's been through CUBIT, he has had some support in the community, there may be health factors which are relevant. We don't really know at this point, but on balance I believe that without appropriate supervision, and the other issue is that Mr Fisk, I think there are other risk factors in terms of his - he is an articulate, presentable, educated man who has the ability to get on with people. I believe that without some form of supervision there is a high chance of him finding a potential victim, grooming the victim and getting involved in some kind of sexual activity with a victim who may be at a disadvantage…….. I think there is a high chance, based on his previous behaviour……… I would put it as being more likely than not, as over 50 percent. 90 The following questions and answers occurred in cross examination: Q. .……… I'm saying that you your opinion, that he has a sufficiently substantial probability of committing a further serious sex offence if he is not supervised depends on your belief that either his support structures will fail or he will misuse a substance which I assume is alcohol or drugs and have the opportunity to do so? A. You are right. I mean that's the point, isn't it. That's why we do risk assessment. Again, I'm not a crystal ball gazer, I can't predict risk. We assess risk, and the reason why we assess risk is to put structures in place to manage the risk, and I'm saying that I've identified a risk and that risk that may or may not eventuate. It may eventuate in four years, it may only eventuate in five years. Q. Or never eventuate? A. Or will never eventuate, that's right, but the chances, the way of ameliorating the risks that you've identified is to put a risk management strategy in place, and I think it would be foolhardy not to put a risk management structure in place. Dr Ellis 91 Dr Ellis was the other Court appointed psychiatrist who reported on the defendant. His report is dated 20 May 2009 and was based on a consideration of a large amount of material including the affidavit and report of Mr Sheehan and a two-hour interview with the defendant. Medical history 92 Under the heading "Medical History" Dr Ellis reported: He has elevated cholesterol and takes medication for this. He believes that he had been diagnosed with emphysema and this is the cause of his breathlessness. He has been diagnosed with sleep apnoea and has been given a continuous positive airway pressure machine to use at night, however he does not avail himself of this. He is unaware if he has high blood pressure and does not have diabetes. He has a history of surgical repair for a hernia. He is being investigated for a testicular mass. There is no history of epilepsy, no serious loss of consciousness or cranial infection. There is no history of cerebrovascular disease of cardiovascular disease. He has no known allergies. Offending conduct 93 Under the heading "Account Of Offending Behaviour" Dr Ellis wrote: He gives an account of the offences consistent with that described in the fact sheets and victim statements. He reports that the victims to him represented some form of emotional security and he believes that he needed them in order to remain emotionally stable. He admits to sexual arousal to the young male victims. He reports that over time the "sexual thing" faded for him. He can see that others would view this differently and admits that he sought out encounters with vulnerable young men in order to seek sexual gratification. He reports that he saw himself caring for these young males during adolescence and that this was a heavy burden of responsibility that he would not wish to repeat. Of note in the offences there is similarity between the offences over a number of years. Of note is the use of simultaneous enticements such as boats, motorcycles and lifestyle to encourage young males in sexual activity as well as threats of violence and actual violence in order to secure complicity. Also of note is the use of alcohol and cannabis in order to intoxicate young males and the co-opting and coercion of parental complicity. Since completing the CUBIT programme Mr Fisk identifies that he is better able to empathise with others and no longer sees sex with young boys as a "divine right" that he is entitled to. He reports that he feels less entitled about most areas of his life now. He reports he no longer believes it is acceptable to have sexual romantic relationships with adolescent males. He reports that he used the excuse that they were pubescent to make it acceptable to him. He reports that the kind of activity that he engaged in can significantly damage other people psychologically. Risk of reoffending 94 Under the heading "Re: Risk of Commission of Further Sexual Offence" Dr Ellis wrote: With current risk assessment technologies in behavioural science it is not possible to determine whether an individual person will reoffend with a sexual offence. Actuarial measures such as the Static-99 are able to allocate individuals with particulars characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons within the group has reoffending. This particular scale has been replicated in different populations in Europe, Western Australia and North America. The difficulty with the use of this sort of instrument is that it does not discriminate between those in the particular risk group who do reoffend than those who do not. There are 10 items on the scale, scored according to a manual. Corrective Services reports rate Mr Fisk as 8 on the scale placing him in the "high risk" group. I am in agreement with a total score obtained by Corrective Services filed reports. Scores above 6 on this scale are considered high risk…………… ………….. Clinical considerations in regard to risk of reoffending include sexual deviance, personality factors, substance dependence and access to criminal networks and resources. Deviant sexual arousal is consistently identified as a risk factor for sexual reoffence. Mr Fisk reports a history of sexual arousal to stimuli directly linked to offending behaviour. He would meet diagnostic criteria for paraphilia. This has likely been attenuated by age, physical poor health and use of SSRI medication. It would be advisable that he continue with medication in the order to attenuate any deviant arousal he experiences. Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is diagnosed with the personality disorder with predominantly narcissistic and borderline traits……………….. there is therefore need to continually address personality function as part of the ongoing treatment process, which can occur from group and individual interventions, as well as attenuate overtime. Substance abuse disorders unless consistently related to sexual reoffending, however appear to be related in this case insofar as disinhibiting behaviour in both Mr Fisk and his victims. He will require ongoing monitoring of substance use and assistance in maintaining abstinence. Ongoing substance use impairs the potential impact of therapeutic interventions. Whilst abstinent from a significant period in prison, he has not undertaken substance use treatment programs, despite previous heavy use. This may indicate poor insight into previous use. He was not able to articulate strategies to avoid use other than to say that substance use is not a problem for him now. Mr Fisk's offending relied to some extent on connection with criminal networks and access to material goods in order to attract victims and coopt the complicity of parents. If he no longer has access to these resources his ability to perpetrate similar offences would be more limited. His age has been suggested as an ameliorating factor in regards to recidivism. The research in this area is limited. Studies available show very low rates of reoffending in persons over 60 in general, however absolute numbers are low in the way these findings can be generalised is limited. Specific factors in his case related to age had been noted in terms of deviant arousal and personality function. Overall in considering actuarial and clinical parameters Mr Fisk would be considered in a group of persons at high risk of sexual re-offence. It is a matter for the courts to determine if this is structured clinical appraisal meets the legal threshold of "likely" as defined in the available case law. 95 In relation to the medication that the defendant has taken or presently does take, Dr Ellis reported: In regard to SSRI medication (sertraline) Mr Fisk describes that he has lowered libido although not completely gone as when taking cyproterone. He does not experience erections in the morning. He reports that he masturbates about once a fortnight and experiences painful masturbation and testicular pain possibly due to a hydrocele (testicular lump) which requires further investigation. Post release conditions 96 Under the heading "Re: Proposed Conditions if Released on Extended Supervision" Dr Ellis wrote: ……… my clinical recommendations are that he should attend on a group based sex offender treatment group, have regular psychiatric review and medication for depression and/or antilibidinal medication as he consents to. Assessment should be undertaken for suitability for individual psychological interventions aimed at mood management and personality function. He should attend on substance use education and counselling, and take anticraving medication as agreed to by him and his doctors. He should undergo regular and random drug testing and breathalyser examinations. He should engage a GP and allow communication between his GP, psychiatrist and therapists. Cross-examination 97 During cross-examination Dr Ellis was asked whether he was able to say if it were more probable than not that the defendant would commit a further serious sexual offence within the next five years. He answered: I think that for a psychiatrist or any other scientist to reliably predict human behaviour is beyond the scope of the science that is available. What we are looking at is what is called a dichotomous variorum where you have got one outcome or another outcome. We can predict with reasonable certainty how many persons in a group will offend in a particular timeframe. Predicting whether an individual falls into one variable or another is beyond the scope of what I could predict, but I could determine which group of persons fit into and the percentage chance or the number of people in that group which would reoffend…………. and in this case, the updated references for the Static-99 indicate that the group that Mr Fisk falls into have a re-offending rate between 22 percent and 38 per cent but that data has not been subject to the full peer review that the old data for the Static-99 was, so there are still questions about that data that are yet to be answered. So I think that probably the only correct answer from the scientific point of view that I could give you is that, no, I can't really predict which way or the other. I can come at it by another version look at a group of people with similar characteristics and see how many of them would re-offend within a particular timeframe. Relevance of age 98 He was asked why he was of the opinion that the defendant's age attenuated his sexual deviance risk factor. He replied: I think in your previous cross examination you identified some evidence in a scientific literature that there's fairly low documented cases of persons over the age of 60 re-offending in a sexual manner and there's a number of theories as to why that is. One is that there is a decrease in the general levels of sexual arousal. One is that there is a decrease in impulsivity and better regulation of emotional states as people get older and there may be some learning effects as people get older. So there's biological factors, there's factors within a person's psychological make-up and there are socially learnt factors that contribute order postulated to contribute to that observation that the rate of sexual recidivist offending in older people is very low………… Dr Ellis also thought that the defendant's personality disorder may have decreased in intensity over time. Relevance of treatment 99 He was asked about the relevance of the fact that the defendant had been involved in CUBIT and on a maintenance programme. Dr Ellis answered: ….. what the evidence shows is that people who complete a sex offender treatment programme like CUBIT have lower rates of offending than people who don't. Now, that doesn't necessarily mean that it is the treatment that is the important variable in the difference between the two. It could well be that it is the type of person that completes the program and that's what, although literature has, there are a number of meta analyses showing that there is a difference between the treated group and the untreated group, a large criticism in the literature is that it doesn't, untreated group includes a lot of people who may well have risk factors different to the treated group and the sort of example is that if I had a treatment to prevent heart attacks but never gave that treatment to smokers and diabetics I would show very low rate of heart attacks in the treatment group. So having completed the treatment programme is a marker of being a lower risk. Whether it actually reduces the risk from what was already existent I think is the big question. Ms Youssef 100 A report was tendered on behalf of the defendant from Carollyne Youssef, a forensic psychologist who works with the Department. The report was dated 24 July 2009 and concerned the maintenance programme in which the defendant had been participating since 17 June 2009. The purpose of the programme is set out in the report as being "to promote the successful generalisation of skills learned in treatment to the community by providing follow-up sexual offender services to offenders who have completed a sex offender treatment program (i.e. CUBIT)". The programme involves group sessions of two hours duration led by a psychologist employed by the Department. 101 The defendant had been attending the group on a weekly basis and had not missed any sessions. At the time of the making of the report he had participated in five sessions. The report states that the defendant "participates and engages well in group and appears forthcoming with information". He had indicated that he was finding the group useful in "supporting him and providing him with coping strategies as well as reinforcing the knowledge and skills learned in CUBIT". 102 The report contains the following two paragraphs: Mr Fisk has also discussed issues pertaining to his inappropriate sexual interest in young males and this is an issue being addressed in group, as this is deemed an important issue for the purpose of maintenance. Mr Fisk appears to be attempting to appropriately manage these feelings and thoughts. In addition, Mr Fisk has mentioned concerns regarding his residence at the Community Offender Support Program (COSP) Centre. Given the purpose of maintenance however, the focus is redirected to Mr Fisk's coping strategies in dealing with such stressful states. Mr Fisk was also advised to report some of his concerns to the COSP psychologist. Although Mr Fisk reported that his sleep has been disrupted (due to noise) and reported a strong desire to reside at the [ ] property, he reported that he is managing his stress by using a variety of coping strategies (i.e. relaxation, positive thinking, talking to others). He also did not report a risk of harm to himself or to others. In summary, Mr Fisk has expressed feeling "stressed" and "frustrated" about being in the COSP, however he appears to be managing these stressors well and appeared receptive to feedback and advice from others. He has indicated that he is future-focused and is going to work towards his goals. I have not performed any specific assessments to assess potential issues such as anxiety and/or depression for Mr Fisk as I did not deem this to be necessary given that he appeared to be managing the stressors appropriately. Further to this, as stated above, my role as the maintenance psychologist is to maintain treatment gains, by helping the men generalise the skills learned in custody to the community and support reintegration into the community, with a particular focus on issues related to risk of sexual reoffending. This is the focus of the maintenance groups, bearing in mind that it is a two hour group with 10-12 men at any one time. Future Residence 103 There was a considerable amount of evidence concerning the present residence of the defendant under the conditions of the interim supervision order and his future residence if the Court were satisfied that it should make an extended supervision order. 104 The defendant is currently residing in premises under the control of the Community Compliance Group ("the CCG") of the Department. He has resided there since his release in May under the conditions specified in the interim supervision order. 105 The CCG is responsible for monitoring the compliance of persons who are subject to community-based orders, such as orders made under the Act and certain parolees, and assists in the case management of such persons. Officers in the group conduct compliance checks of these persons including visual and electronic surveillance, unscheduled attendances and random drug and alcohol testing. They are also involved in case management. 106 The State submits that the defendant's residence should remain effectively under the control of the Department by making it subject to approval by a Departmental officer, such as a parole officer or an officer of the CCG. This is on the basis that the community can only be sufficiently protected by both the further rehabilitation of the defendant through the ready availability of treatment programmes and control of the defendant by the opportunity to monitor the defendant's behaviour wherever and whenever the Departmental officers think it appropriate. 107 The defendant is presently housed at a COSP centre. This is a type of halfway house where persons are required to reside while under some form of conditional liberty, such as bail, probation or parole. It is designed to provide accommodation for 3 to 6 months before other accommodation that is considered suitable to the particular offender can be provided. Mr Rowan 108 The person in charge of the centre on a day-to-day basis is Gavin Rowan. He gave evidence in these proceedings. In his first affidavit dated 4 May 2009 he expressed the opinion that, subject to any developments, the defendant would reside at the COSP centre for a period of about 6 months. He stated: I would regard it as very important that, were he to be released on a supervision order, Mr Fisk reside at the COSP in the initial stages of his reintegration into the community in order to try to assist with a structured transition from life in custody to life in the community. It should be noted, however, that COSP centres are not operated by prison officers and there would be no physical restraints to prevent Mr Fisk from leaving the COSP centre if he decided to do so. 109 Mr Rowan opposed the defendant residing at the country property because he was concerned that the property was too far away to permit appropriate supervision of the defendant by the CCG, was too distant from available treatment options, that the property was isolated and that having regard to its access road there would be difficulties in accessing the property in wet weather. 110 This Rowan stated in this affidavit: I expect that the CCG will conduct a comprehensive review after about six months. This will involve discussions with the various officers responsible for his day to day supervision and electronic monitoring (if that is ordered), with Mr Fisk's treating psychologist in the community based maintenance programme, and any other relevant treating therapists. The purpose of this review will be to determine how Mr Fisk has responded to treatment and is compliance with existing supervision arrangements, and identifying any additional risk factors. 111 In his affidavit dated 1 July 2009 Mr Rowan set out the difficulties he envisaged in the nearest CCG centre to the property where the defendant proposes to reside being able sufficiently to monitor and supervise the defendant due to present numbers of staff at that centre. He believed that the earliest date by which adequate staffing could be achieved at this centre would be September of this year. Further the additional staff would require training for between 2-3 months after commencing employment. Mr Rowan believed that, if the defendant were permitted to reside at the country property, he would be a "considerable drain" on the resources of the available CCG centre and would divert staff from supervision and monitoring of other offenders and programmes for which they are responsible. 112 I am prepared to accept his evidence and I do not underestimate the impact of the defendant's residence at the country property. But it is only one of the factors to be considered in determining what condition, if any, is to be made, upon the place of residence of the defendant. There are in my view countervailing considerations that favour the defendant residing at his preferred location that I will consider shortly. Ms Williams 113 Some investigation has been made of the appropriateness of the defendant's preferred residence and Darelle Williams gave evidence of it. She has visited the property and formed concerns about its suitability for the proper monitoring of the defendant's behaviour. She believed that access to the property would hinder unannounced spot checks upon the defendant. She was also of the opinion that the closest CCG centre did not presently have the capacity to supervise and monitor the defendant if he resided at those premises. 114 Ms Williams had attended the property on one occasion and spoke with the owner, the person with whom the defendant wishes to reside. Following this inspection of the property she remained of the view that it was unsuitable. However, the evidence is that the defendant can be subject to electronic monitoring on the property and he has been permitted to go there on some weekends since his release from prison. The property owner 115 I received evidence from the owner of the property where the defendant would propose to live if he were permitted to do so. She is an apparently responsible person who is aware of the defendant's criminal history although not of its detail. She has read parts of the report of Dr Ellis. She will not charge the defendant rent but he will assist her in tasks on the property. She is prepared to physically assist the defendant fulfil the requirements of any conditions imposed upon him which would require him to leave the property to attend treatment programmes and the like at least until the defendant obtains his driving licence. She has undertaken to report any breaches of the conditions of an order. She does not believe that there will be any difficulty for officers of the Department accessing the property. There is both a landline and mobile phone reception on the property. The Defendant 116 The defendant gave evidence before me. He is presently aged 61. He made an affidavit dated 3 June 2009. That affidavit contains the following paragraphs: 3. I have no intention of committing any further sexual offence. I no longer desire to mix with sex offenders. I no longer have any desire to mix with, associate with or have sex with adolescent males. 4. I no longer believe it is acceptable to have sexual or romantic relationships with adolescent boys. I no longer believe it is acceptable to groom adolescent males for such relationships. 117 The balance of the affidavit is in effect a commentary by the defendant upon the likely conditions of a supervision order most of which he would be prepared to comply with. He notes that he is taking an anti-depressant drug. Although he voluntarily took an anti-libidinal medication for a period, under medical supervision, he believed that it resulted in exaggerated feelings of depression and hopelessness. He also stated: I have had a testicular problem for many years. I only have one testicle. My left testicle is inflamed and I often experience significant pain. That is another reason why I have a low libido. I experience significant pain upon arousal. Electric monitoring 118 In respect of conditions in relation to the wearing of electronic monitoring equipment the defendant indicated he was willing to comply with these conditions if they were imposed but asked that they be imposed for the minimum possible period and for no longer than 12 months. He stated: The reasons I do not agree with the imposition of these conditions are as follows. Firstly I have worn the electronic anklet bracelet and a monitor since I left jail on 12 May 2009. I find that the electronic bracelet is uncomfortable to wear, particularly when I am sleeping and I try to turnover. Secondly, the electronic monitoring equipment often malfunctions. The signal on the equipment sometimes states "current location not identified" because the equipment cannot receive the proper signal. The malfunctions occur when I am in shopping centres malls (sic), or certain buildings. Thirdly, wearing the electronic monitoring equipment makes me feel like I am still in jail. I feel harnessed to the equipment. I feel that the authorities do not trust me. It diminishes my self esteem. Future residence 119 In relation to a condition requiring him to reside at an address approved by officers of the Department the defendant stated that he "strongly desire(s)" to reside at his preferred place of residence. In relation to his present accommodation he stated: In my opinion, residing at those premises hinders my ability to adapt back into the community. I am living with other men who have committed sexual offences. A number of residents continue to have a sexual interest in adolescent men, which I do not share. It is unhealthy being around such people. I have previously decided that I do not want to associate with other sex offenders and yet I am now required to do so. I do not have a friendship with any of the people with whom I live. There are a number of mentally ill residents whom I find intimidating. I was told by a fellow resident "to watch my back". I am unable to isolate myself from those persons. I was better able to isolate myself when I was in jail. Also, I am unable to relax and there is continuous noise. He stated that since being at this residence his mental health has declined, he felt anxious and has lost weight. He claims it interfered with his sleeping patterns and he suffers from fatigue 120 Further he stated: I found it demoralising, demeaning, we're treated like children by the staff, we're not trusted at all. Medication is dispensed to us through a shatterproof window, where the staff spend a great deal of the day. And the tension in general is very high. In cross-examination he said that he saw COSP "as an extension of prison". Alcohol and drugs 121 In relation to a condition requiring that the defendant not consume alcohol or illicit drugs, the defendant stated: I agree not to consume illicit drugs or abuse prescription medication however I wish to be able to have a glass or two of wine with a meal occasionally without drinking to excess. I undertake not to become intoxicated. 122 In evidence he said that he has not consumed alcohol or illicit drugs since being in custody. He said he had no longer any desire to drink alcohol notwithstanding what he had said in his affidavit about wishing to drink with a meal. He was asked about this in cross-examination as follows: Q. In your affidavit, you said that you wished to be able to have a glass or two of wine with a meal occasionally, without drinking to excess? A. Yes. Q. But you now tell, you told his Honour this morning that you won't do that? A. No. Q. What occurred, between the time you swore the affidavit on 3 June 2009 and today, to change your mind about whether it would be a good idea to drink a couple of glasses of wine? A. Having a couple of glasses of wine, to be civilized over dinner, is not enough reason as to why I should have it. HIS HONOUR Q. What you are being asked is, how did you change your mind? Why did you come to a different view now than you apparently did when you made your affidavit? A. Yes, your Honour. I don't want you to think that I have an alcohol problem. I am not alcohol reliant. Q. So this is something that you decided might influence me? A. Mm mm. I can well go without alcohol, your Honour. I have not craved for it, ever. It was binge drinking and it was the society I was involved with. He said that he did not believe that he had a problem with alcohol and this is the reason he has chosen not to undertake any counselling about it at COSP. Medical condition 123 He gave oral evidence about his medical condition. He has sciatica pain in his left leg that is treated with painkillers. He suffers from emphysema that leaves him short of breath when doing physical work. He also has testicular pain particularly when he is aroused such that he has to lie down. He stated that he was "very rarely" aroused and it might be once a month when he is watching a movie or reminiscing on past sexual experiences. Because of his difficulties sleeping at the COSP establishment he was taking a very mild sedative. 124 He was questioned in cross-examination about his failure to mention to Dr Samuels that he suffered from testicular pain. He said: Your Honour, one thing I noticed about the interview with Dr Samuels, and I don't think he wanted to be there, I mean it was - it was conducted in such a way that I was not forthcoming with a lot of things because he didn't ask me a lot of questions. 125 I do not believe this answer. Although it was put to Dr Samuels in cross-examination that he had interviewed the defendant for a very short period and hence did not obtain all the information he might have, it was never suggested that in some way he was not interested in interviewing the defendant or did so under sufferance. Such a suggestion would have been nonsense. I believe that the defendant was attempting to use this implicit criticism made of Dr Samuels in cross-examination to his advantage in answering this question. Cross-examination 126 He was cross-examined about a statement he allegedly made to Mr Rowan that he had been advised that he only needed to go for maintenance sessions once a month because he was doing so well. He denied that he had suggested that attendance at the sessions was to be reduced because he was doing well but because of where he was intending to live. 127 I do not believe this answer. I do not accept that Mr Rowan would have been mistaken in this regard. 128 He was asked about whether he had told Ms Youseff that the person he hoped to live with worked with victims of sexual abuse. He did not deny saying that although he sought to explain it on the basis that he was mistaken. The following questions and answers were given: Q. So it wasn't the case that you suggested to a CCG officer that [ ] worked with victims of sexual abuse in the hope that it might give them some confidence that her supervision of you would be over and above what one would expect of a layperson? A. It could be seen that way, yes. Q. And I suggest to you that that's why you said that to the CCG officer? A. I may have. I can't recall what the intention was then. 129 He was asked about his evidence that he became sexually aroused when watching movies. The questions and answers were as follows: Q. And what sort of movies are they? A. Normally SBS movies. Q. And what is depicted on the movies which tends to make you sexually aroused? A. I might add here - before I answer that, if I may - it is never any excessive arousal, it is a partial arousal. I'm not-- Q. Sorry, I don't understand the distinction? A. There is a distinction. Q. What do you mean by a "partial arousal"? A. It is maybe habit forming. It is a flippant arousal, I don't know what you like to call it. It is not a passionate arousal, which I knew in my youth. It is - how can I say it - it is of no real meaning to me now. I just do it. A habit, maybe. Q. When you answered his Honour's question saying you became sexually aroused when watching a movie, did you mean by that that you have an erection when you watch a movie? A. No, no. I didn't mean that at all. Q. What do you mean by sexual arousal when watching a movie? A. It was not so much physical, it was mental arousal, the appreciation of the beauty. I'm not one hundred percent sure, but it certainly wasn't sexual. Q. Are there any physical manifestations of what you mean by sexual arousal, say, when you are watching a movie? A. Yes, there is the artistic form of the individual. Q. Sorry, I meant physical manifestations in you as distinct from the object of your viewing? A. No, it's more of the mind. Q. Do you ever get an erection when you are sexually aroused? A. Occasionally, but seldom, because it leads to pain. 130 He was asked about his views as to the effects of his offences on the victims. He said: I believe that they would have been profound, the effects would have been profound, would certainly have confused their sexuality and with some effects that are felt now, adverse effects. 131 He was asked when he came to this opinion and he stated in 1989 when he moved away from his former associates and went "out of Sydney with a young friend of mine". He then admitted that this "young friend" was the person he had described as a "ward", but was in reality one of his victims. He was referred to a letter he had written in late 2000 to a person at the Victims Compensation Tribunal. The letter is full of abuse towards both the Tribunal and the complainants. For example it refers to the payment of "blood money" to the "falsely aggrieved". He described them as "low lives" and that he had no choice but to plead guilty because it was impossible to get a fair trial. He said that notwithstanding that he believed great harm had been done to the victims his "bitterness and anger at the monetary aspect of this is what motivated me to write this letter". 132 The following questions and answers followed: Q. It goes a little further than that, doesn't it? I mean, it is not a letter just simply sounding off about the awarding of compensation, it goes deeper than that? A. Yes, your Honour it goes deeper than that, it goes to the solicitation by the police. Q. No, more than that? A. And I applied to a level of who was a victim and who was not a victim in life, that's what I had looked at at the time and how I felt the money could have been better spent with my own victims in Cambodia, which I haven't mentioned yet. Q. This is part of Buddhist belief is it, this letter? A. I was looking at belief, in a worldly situation, who are victims and who are not victims. Q. Well, that doesn't come across here, does it? A. Mm. Q. Where is that? A. I thought I put something in here with that, sorry your Honour. Q. It is here about you going into your Buddhist monastic life in Asia. A. Yes. Q. Where is there anything in this letter that indicates that what you were concerned about is the fact these people have been paid, rather than the poor Cambodians? A. My concern was, the money could have been better spent elsewhere. Q. Where is that in this letter? A. I thought I put it in there, I obviously didn't. Q. You read the letter, don't let me lead you into accepting statements that are not correct. You read the letter. A. Alright, your Honour (defendant appeared to read letter). No, you are right, I didn't put it in there. 133 This evidence was clearly to my mind untrue. State's Submissions The making of an order 134 The State relied upon the opinion of Dr Samuels that there was a high risk of the defendant re-offending if unsupervised and that he was prepared to state the risk as being greater than 50 percent. It was his opinion that the best predictor of future conduct was past behaviour. The State noted that Dr Samuels had been appointed as one of the Court's independent experts and submitted that there was no reason to diminish the validity of his opinion simply because he happened to have given opinions in other cases that the particular person had a high risk of re-offending. 135 The State referred to Dr Ellis' evidence that the defendant was in a group of persons at high risk of re-offending, even though he was not prepared to make an assessment of the likelihood of the risk. It was submitted that his evidence was of limited value to the Court. 136 It was noted that the Static-99 had limitations as a predictor in that: (a) it relates to groups rather than individuals; (b) does not adequately differentiate between the number of offences committed; (c) it purports to measure the chance of re-convictions rather than offending acts; (d) it covers sexual offences generally without discriminating between their seriousness; (e) It covers a range of deviant behaviour including rape and incest as well as paedophilia; and (f) it has modest predictive power. It was submitted that there was little weight to be given to the percentage of re-offending in five years determined under the instrument, 22.8 per cent to 38.2 per cent. It was submitted that it should be treated as simply one of the factors to be considered by the Court. 137 The State pointed to the fact that, although studies had shown a negative correlation between age and risk of re-offending, the effect of age on sexual recidivism is unclear. Neither Dr Ellis nor Mr Sheehan were prepared to make an actuarial allowance or adjustment for age. However Dr Samuels was prepared to consider it as a factor. 138 It was submitted that the Court should have little regard to the health of the defendant as indicative of a lower risk of re-offending as they were of little relevance. The State points to the fact that in the defendant's case it was not so much the sexual acts from which he derived the most pleasure, but it was the grooming of the victims and his state of health would not inhibit this behaviour. 139 The State submitted that the fact that the defendant had undergone treatment should be treated with some caution particularly insofar as it relies upon victim empathy as an indicator of changed attitude, and referred to the evidence relating to the letter written in 2000 to the Victims Compensation Tribunal. 140 The State argued that the Court would not accept the defendant as a credible witness in light of his evidence given in these proceedings. Place of residence 141 The State submits that the residence of the defendant should be under the control of the Department for the period of the order. It points to the fact that this has been the condition imposed in other supervision orders. It argues that it is the only suitable way to properly monitor and control the defendant and ensure the safety of the public. 142 In effect it argues that the country property is too remote and does not sufficiently provide for the principal objective of the act that is the protection of the public through supervision. It points to the fact that Dr Ellis' preference for the country property is as a treating psychiatrist for the benefit of the defendant but this Court has a wider concern which may or may not intersect with what is best for the defendant or his preference. It is submitted that the property is too distant for the defendant to be able to attend the maintenance program. 143 The State submits that the defendant's complaints about the COSP accommodation are really matters of his comfort and should be given little weight having regard to the importance of that residence for controlling him even if it should pose a risk, albeit a slight one, of interference with his rehabilitation for a short period. This is particularly so having regard to the fact that the defendant had been in custody for the last 12 years. 144 The State relies upon the evidence of Mr Rowan and Ms Williams as to the lack of available staff at the CCG centre nearest the country property and that the residence of the defendant at that property would divert those present staff members from their function in regard to other offenders. 145 It reminded the Court of what Mason P said in Winters v Attorney General (NSW) (2008) 182 A Crim R 107 at [123] that the availability of resources is a matter to be taken into consideration in determining whether to make an order for continuing detention. His honour stated: The Act does not state that the Government must fund any and every condition of an extended supervision order devised with a view to provision of adequate supervision. Courts should not make orders knowing that they are likely to be futile. 146 The State is concerned that the location of the country property may provide the opportunity to the defendant to come into contact with young males because it is relatively close to a place that is a popular holiday destination. 147 It is submitted that the owner of the property is an unsuitable person to supervise the defendant. There will be periods when he will be alone at the property. It is argued that the owner has insufficient knowledge of the way that the defendant has offended and, therefore, cannot be sufficiently aware of suspicious conduct. Although she acknowledged that he has been manipulative in the past and has lied, she believes that this is not now the situation and that he will not reoffend. It is put that, because of her reliance upon the defendant if he lives with her, the Court could not accept her undertaking to report any breaches, as she would not be dispassionate or independent. Reference was made to the comments of the Full Court of the Family Court in B and B (1993) FLC 92-357 made in relation to supervision of access. 148 It was submitted that the Court could not be satisfied that the high risk of the defendant reoffending could be adequately managed if the defendant was permitted to reside at the country property. The defendant's submissions The making of an order 149 The defendant tendered a number of journal articles in relation to the prediction of the risk of re-offending. These were discussed with the experts during cross-examination and the subject of submissions on behalf of the defendant. 150 The defendant submits that the Court could not be satisfied on any test of the likelihood of further reoffending by the defendant. He relies upon the opinion of Dr Ellis that risk assessment does not allow such a prediction and Dr Samuels' evidence of the difficulties in nominating when any reoffending might occur. He refers to the very modest predictive power of Static-99. 151 It was argued that the Court should accept and act upon the evidence of Dr Ellis because of his expertise in the area and yet he was unable to conclude that there was sufficient probability that the defendant would commit a relevant offence in the next five years. He relied upon the evidence set out in [93] above that he thought prediction of human behaviour was beyond the scope of present science. 152 In support of the stance taken by Dr Ellis the defendant relied upon an article by Smallbone and Ransley entitled "Legal and Psychological Controversies in Preventive Incapacitation of Sexual Offenders" (2005) 28(1) UNSWLJ 299. The authors considered the limits on reliable predictions of reoffending in relation to "preventative incapacitation pollicies" such as behind the Act under which the current proceedings have been brought. They state: ……….Recent sexual offender recidivism and risk prediction research indicates that: · average sexual recidivism rates are lower than is popularly assumed; · sexual offenders are a very heterogeneous population, within which wide variations in recidivism patterns have been observed; and · current risk prediction methods are associated with high rates of force-positive and false-negative predictions. 153 The authors considered the criteria for the making of orders in relation to legislation in Queensland similar to the Act and the high threshold set by those provisions before an order could be made. They stated that by setting such a high threshold the legislation: …….. may inadvertently rely on the ability of professionals to provide advice that is currently beyond the level of knowledge and expertise. Actuarial risk prediction scales may contribute important information to psychological and psychiatric risk assessments, but the limitations must be better understood by courts, and more openly acknowledged. 154 In the article by Biles to which I earlier referred, the author states: Two issues of central relevance in this study are the overall probability of sex offenders reoffending and the evidence of the effectiveness of sex offender treatment. In general serious sex offenders have a relatively low probability of re-offending, perhaps around 15 per cent, but the challenge is to identify which ones are likely to re-offender and which are not. As far as the effectiveness of sex offender treatment is concerned, there are still some debate among experts as to what if anything works……… 155 In relation to the Static-99 score, the defendant submitted that it should be adjusted downwards because of the defendant's age and the fact that he has been taking anti-depressant medication for at least 12 years. There should also be factored into any assessment of risk the defendant's decreased libido and his medical condition because he presents with a less significant risk of reoffending than persons younger than he. 156 The defendant relies upon studies of the correlation of age and reoffending so that there is a dramatic reduction in risk in the oldest categories of offenders into which the defendant falls. 157 Assessments of the defendant by Dr Ellis indicate that two of the clinical features of the defendant's reoffending, his paraphilia and his personality disorder are attenuated by his age and physical condition. There has been a decrease in his impulsive unregulated behaviour. 158 The defendant argues that his involvement in CUBIT and the maintenance programme diminishes his risk of reoffending. Further his criminal networks, or the "infrastructure" that was present at the time of his offending no longer exists. This was seen as of significance by each of Dr Ellis, Dr Samuels, and Mr Sheehan. As well his reliance upon alcohol and drugs that was a part of the lifestyle that surrounded the offending no longer exists and the defendant recognises their significance. He has abstained for the last 12 years while in custody. 159 It is submitted that the evidence of Dr Samuels was not reliable. First his prediction was inconsistent with the unreliability generally predicting human behaviour that he acknowledged. Secondly, his prediction was predicated on certain events even though there was no empirical evidence to support their relevance and he lacked knowledge of the facts relevant to those events. Thirdly, he underestimated the significance of the defendant's age. Fourthly, he misunderstood the empirical evidence of reoffending. Fifthly, it was submitted that his opinion was "driven by a genuine and real concern that the defendant should not (sic) be supervised". Future Residence 160 It was submitted that a condition vesting "unfettered discretion" in the Department to determine the defendant's future residence was inappropriate, "because the [the State] has failed in this case to establish that [officers of the Department] can exercise their discretion responsibly either in the interests of protecting the community or encouraging the defendant to undertake rehabilitation". 161 It was submitted that COSP was not a suitable place for the defendant because he has found suitable accommodation and work on the country property and, therefore, the stated purpose of COSP to assist "offenders who are unable to attain or maintain suitable accommodation and/or access to community support services and programs" does not apply to him. 162 It was pointed out that Mr Rowan had taken no steps to find the defendant alternative accommodation as at the date of the hearing. It was argued that there is no need for COSP to find the defendant work because he is on a disability pension and the owner of the property will provide him with useful work that he is prepared to perform. There is no need for the CCG to maintain the defendant's compliance with medication and he otherwise has complied with prison regulations. There has been no relapse into alcohol or drugs notwithstanding that it has been available to him at the COSP centre. Electric monitoring is available from the property. The defendant will attend for treatment as required. 163 The defendant tended records maintained by the Department as "incident details" and "case note reports" relating to behaviour of residents at the COSP centre where the defendant had been residing since his release. These relate to relatively minor incidents that had occurred involving abuse and allegations of assaults both on other residents and members of staff. The defendant relied upon these to demonstrate the unsuitability of COSP in circumstances where the defendant had other accommodation at which he could reside and which would be more conducive to his rehabilitation free from anxiety-provoking behaviour by other residents. It was not submitted that the defendant was at any particular risk to his person while residing at COSP. Decision Principles 164 In Cornwall the Court of Appeal stated: [18] It is a fundamental principle of criminal law that a person convicted of a crime must be given punishment appropriate to that crime and no more: Veen v R (1979) 143 CLR 458; Veen v R (No 2) (1988) 164 CLR 465. Another fundamental principle of criminal law is that, subject to the possibility of appeal, the appropriate punishment is determined once and for all when the person is sentenced for the crime: this is one aspect of a wider principle requiring finality in litigation. Of course, the sentence may, for example by leaving open the possibility for parole, allow for some variation in how it operates, depending on future circumstances. But the appropriateness of the sentence itself cannot later be challenged. [19] Thus if, in addition to appropriate punishment for crimes they have committed, persons are to have their liberty further restricted because of what they might do in the future, this requires justification outside the ordinary principles of criminal law, and outside the ordinary principle that interference with liberty is generally restricted to interference that is deserved by reason of actual criminal conduct. In passing the Act, the New South Wales legislature has determined that, for the protection of the public, there should in specific cases be restrictions of liberty on that basis. In the second reading speech when the Bill for the Act was before the New South Wales parliament, the Honourable Tony Kelly, Minister for Justice, said this: One particular concern, that is dealt with by this scheme, relates to a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison. These offenders make up a very small percentage of the prison population, yet their behaviour poses a very real threat to the public. These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised. The proposed legislation will address this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody. The Department of Corrective Services has advised that only a small number of offenders would fall into this very high-risk category. 165 I suppose that "a small number of offenders" referred to by the Minister is relative especially if the Department had in mind all the sexual offenders in the State. But there is becoming a significant jurisprudence in this area of the law because of the number of applications being made to this Court. I was given two folders of decisions by judges of this Court or the Court of Appeal determining applications under the Act. 166 This is notwithstanding that the courts appreciate the difficulty in making predictions of human behaviour, particularly where such predictions impact adversely upon the liberty of an individual. In, Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at 622-4 Kirby J wrote (footnotes omitted): [123] The appellant points out that the sentences of imprisonment imposed on him in 1989 have been served in their entirety. Nevertheless, pursuant to orders made under the Act, the appellant has remained a prisoner, incarcerated in the Townsville Correctional Centre after the date of the expiry of his sentences. This has occurred without allegation, still less proof, of any further offence by him, or breach of the law. He complains that, effectively, his judicial punishment has been extended by orders made under the Act, a supervening law: because opinions have been formed, probably on material which would not be admissible in a legal proceeding and on a standard other than beyond reasonable doubt, that [he] will commit a serious sexual offence as defined if released from custody, or at least unsupervised custody, after completing [his] sentenced terms of imprisonment. [124] Experts in law, psychology and criminology have long recognised the unreliability of predictions of criminal dangerousness. In a recent comment, Professor Kate Warner remarked: [A]n obstacle to preventive detention is the difficulty of prediction. Psychiatrists notoriously overpredict. Predictions of dangerousness have been shown to have only a one-third to 50% success rate. While actuarial predictions have been shown to be better than clinical predictions — an interesting point as psychiatric or clinical predictions are central to continuing detention orders — neither are accurate. [125] Judges of this Court have referred to such unreliability. Even with the procedures and criteria adopted, the Act ultimately deprives people such as the appellant of personal liberty, a most fundamental human right, on a prediction of dangerousness, based largely on the opinions of psychiatrists which can only be, at best, an educated or informed "guess"……….. 167 However Parliament has determined that this Court should attempt to make such a prediction even if on the probabilities to a sufficiently high degree. And, if it does make such a prediction, it should make orders either depriving a person of liberty or restricting a person's liberty to a very substantial degree for the protection of the public. 168 The terms of the Act require the Court to make the determination of the probability of re-offending even though aided by such expert evidence as is available. In RJE the majority of the Victorian Court of Appeal believed that judges lacked the expertise to make such a determination. They stated: [16] Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult. The Monitoring Act recognises that the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion. As the report in the present case illustrates, the making of such a prediction in a particular case requires expertise in observation and assessment of those who commit offences of the particular type, and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of an individual and the ability to utilise the available quantitative risk assessment instruments. [17] One thing is clear. Judges, including experienced criminal judges, have no such expertise. Neither the conduct of criminal trials nor the sentencing of offenders requires judges to have, or equips them with, the ability to assess the likelihood that an offender will re-offend. We express this view fully recognising that a sentencing judge has to consider the need for specific deterrence and the prospects for rehabilitation; that bail decisions often involve predictive considerations; and that assessing dangerousness is the basis of decisions under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to impose or vary supervision orders in respect of persons found not guilty of criminal offending by reason of mental impairment. 169 With respect I believe this view underestimates the ability of experienced judges to make predictions about future offending based not only upon the expertise of others, such as psychologists, probation officers, and psychologists but also the judge's own expertise developed through the experience of human behaviour derived from sitting in the criminal jurisdiction. As their Honour's acknowledge, the criminal courts frequently and routinely make decisions about future offending, sometimes with the result that a person will be deprived of liberty, in bail and sentencing decisions. Expertise as a witness is derived not only from learning and study but also experience in a particular area of practice. I see no reason why it should be different for the expertise of a judge in determining facts of a particular kind. 170 In any event, with due humility and not unaware of the difficulty and unreliability of the task at hand, I have to make the decision as best I can even in the face of the view of the majority in RJE as to my lack of expertise and the opinion of Dr Ellis that science lacks the ability to make a prediction of the kind that the Act requires. Although I have the utmost respect for the view of Dr Ellis, I cannot be bound by it so as to hold that, simply because science lacks that ability, the Court must similarly lack it. If it were so it is difficult to see any case in which the Court could carry out Parliament's will even though I should accept that it was aware of the unreliability of the prediction of future dangerousness. Risk of reoffending 171 Unaided by scientific or expert opinion I would be of the opinion that in some, if not many cases, the best predictor of future conduct is past conduct. That is chiefly how such findings are made in bail and sentencing hearings. Of course due allowance has to be made for a variety of factors including the nature and extent of the past behaviour, its proximity to the decision about future conduct, changes in circumstances of the offender and whether there is evidence that suggests reformation of the person or a lack of prospects of reform. 172 Dr Samuels stated that "the past is the best predictor of the future" when commenting upon the likelihood of the defendant using alcohol when he was under stress. Section 9(3)(h) The defendant's record 173 It is unnecessary to examine the defendant's criminal record since 1989 again in any detail. The outstanding feature of it is that it related to sexual offences committed over a period of almost two decades against exclusively under-aged males involving a variety of sexual acts including penetration of the victims with acts of violence. The acts of sexual abuse were estimated as up to a thousand. They were planned offences in which the defendant enticed the chosen victims by the use of alcohol and drugs and objects that would be attractive to male youths, such as cars and boats. At times he insinuated himself into the family of the victims to get close to his prey and betrayed their trust in him which he had built up just for that purpose. The offences were not simply part of the lifestyle he was living with other sexual predators they were an essential aspect of his identity. He admitted to psychiatrists that it was not so much the sexual acts that gave his fulfilment but rather the grooming of the young men to submit to his sexual abuse. The targets of his criminal conduct were often vulnerable youths from disadvantaged backgrounds. A very significant part of the defendant's offences was his manipulation of his victims and their families. 174 I find it difficult to dismiss from my mind when considering all the psychiatric and psychological evidence, the fact that the defendant's sexual offending was integral to his personality and identity for a very significant period of his life and was attended by a seemingly entrenched belief system as to the appropriateness of this type of behaviour. I believe that in the circumstances of this particular case the defendant's criminal history of offending is a very highly significant factor in any prediction of future re-offending. 175 It was considered relevant by Dr Ellis that the defendant's sexual interest has been almost exclusively in under-age males. Section 9(3)(d) Static-99 176 I do not find this a very reliable tool for the prediction of future re-offending. This was the view adopted by both parties although that unreliability was seen as having different consequences. 177 The defendant stressed, first the low risk of the defendant re-offending by application of the tool, 22.3 percent to 38.2 percent for reoffending in the next 5 years but secondly notes the fact that the risk of reoffending using the tool relates to reoffending of any sexual offences however trivial and thirdly argues that it is indiscriminate when it comes to the age of the offender; the test scores only whether the person is under the age of 25 years, yet studies suggest that the risk of reoffending declines with advancing age. Fourthly the defendant points out the lack of power of the tool to predict; it is not much more successful than chance. The defendant in effect argues that these deficiencies in the tool indicate that the risk of the defendant committing a further serious sexual offence are markedly less than the indicated by the application of Static-99. 178 I have already referred to the State's reasons in support of its submission that the tool is of limited utility. 179 Although I am required to take it into account I do not believe that it is a very helpful tool, at least in this case and having regard to the nature and extent of the defendant's offending in the past. It is but one of the factors that I take into account but one having little weight in this particular case. Section 9(3)(i) Age of the defendant 180 I have little doubt that as a general proposition the likelihood of re-offending diminishes with age. There are many reasons for this as discussed by the experts who gave evidence before me. However I believe that the defendant has been overly critical of the attitude of the experts on this issue. While they accept it as a relevant factor, they were not prepared on current knowledge to use it to make an actuarial reduction in the risk of re-offending even though there is some support for such a reduction in the literature. 181 I accept that it is a relevant factor that the defendant is aged 61 and hence falls into a range of persons where, in general, the risk of re-offending is reduced. But the difficulty is applying that general proposition to the particular individual. I believe that this was the view expressed by the experts. The cause of a reduction in the risk of reoffending may be due to a variety of factors any one or more of which may be present in any particular case to a different degree or might be absent in a particular individual. 182 One of the reasons for the correlation between advancing age and reduced risk of reoffending may be a decline in libido due to age. The difficulty is in knowing what effect, if any, age has on a person's libido in a particular case. Here one has only the statements of the defendant as to his reduced libido, and I give them no credit for reasons I shall give shortly. 183 Another factor may be that opportunities for re-offending decline with age. This is particularly so in cases of intra-familial offending, as in incest-type cases, or rape, where advanced age takes away the ability to commit the crime. But the defendant's offending did not necessarily require any significant physically exertion on his part and was not dependent upon the presence of available victims. He was a predator who used his charm and other social skills to engage with the persons to whom he was sexually attracted. He has not lost those attributes whatever might be his medical condition. 184 I do accept that the "infrastructure" surrounding his offending has ceased to exist. That infrastructure was part of his offending in that it allowed him to offend more safely because of the lack of police interference and he received both moral and material support in carrying out his offending behaviour by his friendship with other offenders who are now dead. But the infrastructure was not essential to his offending and I believe its absence has less significance in this case. I do not believe that the fact that by reason of his evidence at the Wood Royal Commission that his opportunity for offending has been particularly diminished. 185 Age also may lead to self-control and a lack of impulsivity but a significant part of the defendant's offending was not derived from a lack of his ability to control himself in a given set of circumstances. He chose the circumstances of his offending by grooming suitable victims and insinuating himself into situations where he could make unsupervised contact with his victims. 186 True it is that Dr Ellis thought that the defendant's personality traits that contributed to his offending might have attenuated with age. Testing of the defendant indicates that there may be a decrease in impulsive and unregulated behaviour. But in my opinion that has little to do with the nature of the defendant's offending in the past and does not significantly indicate a lack of offending in the future. Section 9(3)(i) The defendant's physical condition 187 To the extent that an assessment of the defendant's current physical state depends upon self-reporting, I do not accept it. His back problems seem to me to be of little relevance, seeing that it is reliably controlled by an analgesic and on its face would not affect his capacity to reoffend given the nature of his offending in the past. 188 Nor would his emphysema. It is relieved by medication and apparently will not interfere with him carrying out physical activities on the country property. I accept that his use of anti-depressant medication may reduce his arousal but I do not have any objective evidence of the degree to which it alone suppresses arousal in his case. Each of the experts thought that the defendant should take antilibidinal medication but he is not prepared to do so. 189 The defendant's testicular problem is an old one and would have been present to some degree at the time of his offending. I do not accept that it causes him such pain that it interferes with him obtaining an erection or sexual gratification. If it were as significant as he states, I do not understand why he would not have mentioned that fact to Dr Samuels at some stage during their interview. The defendant appeared to me to be inconsistent in giving accounts as to his present level of arousal. He told Dr Ellis that he masturbated about once a fortnight despite saying that it was painful. The evidence of the defendant before me was that he was aroused once a month when watching movies or in relation to past experiences but the pain reduced the length of his arousal. His evidence as to his sexual arousal was designed in my opinion to suggest that he no longer became physically aroused by such stimuli and certainly not to the extent of masturbation. Section 9(3)(e) Treatment or rehabilitation programmes 190 The defendant voluntarily entered into the CUBIT programme and the maintenance programme with some apparent measure of success. I accept that involvement in such programmes may diminish the risk of re-offending generally speaking. However treatment effectiveness in reducing sexual re-offending is open to some question, see Craig et al "Treatment and Sexual Offence Recidivism", 2003 Trauma, Violence & Abuse Vol 4 No 1. 191 Mr Sheehan noted that the course seemed "arduous" for the defendant because of the time he took to complete it. He stated that "it may be because treatment sought to challenge an entrenched belief structure and coping style upheld by Mr Fisk for many years". 192 The defendant is in my view highly manipulative. This opinion is based largely upon the nature of his past offending but even the owner of the country premises accepted that this was so, even though she thought, for reasons that I did not understand, that it was no longer the case, at least so far as she was aware. There was nothing in his evidence in these proceedings or in the accounts of his treatment to suggest that this was no longer a present trait of his personality. I believe he attempted to manipulate me in his evidence. He admitted so much in relation to his future use of alcohol. 193 Dr Samuels noted that a person such as the defendant, being articulate, glib, intelligent, and charming was easily able to lead persons who conduct treatment programmes or therapy groups to believe erroneously that he is performing well. The defendant's personality in this regard could be a risk factor. I appreciate that this is somewhat of a "no win" situation for the defendant: if he appears not to be succeeding that counts against him, but if does seem to be successful that is only because he is manipulating the therapist. But I cannot help but be sceptical of the assertion by the defendant that he has changed his attitude to the offending and his victims. 194 I do not believe that he has any true victim empathy, a factor seen as highly significant in cognitive behavioural therapy such as the defendant has been exposed to. I have earlier referred to the letter written by the defendant to the Victim's Compensation Tribunal in 2000 supposedly after he had reached a decision to give up his offending because of his understanding of its effects on his victims. I have also noted my opinion that his evidence in explanation of that letter was untrue. 195 He had difficulty in showing any empathy for his victims to Dr Samuels and could only say, after some hesitation, that it might have "led to confusion about their sexual identity". Dr Samuels believed that the defendant still had some "distorted attitudes in relation to his sexual offending behaviour and his victims". He also has "some intellectualisations and rationalisations about his previous offending behaviour and at some level still feels that his actions were justified and not particularly damaging" and that these raised concerns. 196 Senior counsel who appeared for the defendant conceded that there would be doubts about his client's insight into his conduct or its effect upon his victims, but argued that one insight he would have is that further offending would result in harm to him by further punishment. But his offending behaviour has been such a part of his character and identity that I believe there is a substantial risk he may be unable to resist falling into the pattern of behaviour without monitoring and compulsory treatment programmes. Section 9(3)(b) Reports from Court appointed experts 197 Dr Samuels was criticised by the defendant in that his prediction was based upon "the absence of appropriate supervision and in the context of his support structures failing, mood instability, substance misuse and opportunity". It was submitted that there was no evidence that these preconditions to a return to re-offending were likely to occur or that there is any empirical studies indicating that these were factors leading to re-offending. 198 I do not believe that this criticism is justified. There is in my view a real risk of any one or more of these circumstances occurring. 199 There is a real question to my mind about the defendant's commitment to alcohol abstention or at least his ability to abstain from alcohol. Even accepting that he has abstained from alcohol and drugs over the past 12 years, he has refused to engage in counselling in that regard notwithstanding that it has been available to him and he has had ample opportunity at least while at COSP to take advantage of it. This is because he believes that alcohol is no longer a problem. This is an example of his lack of insight and his unpreparedness to address risk attendant behaviour when it does not suit him. 200 Dr Ellis thought that the defendant needed monitoring of substance use and assistance in maintaining abstinence. He noted that he had not undertaken treatment programmes notwithstanding his previous heavy use. He wrote, "[the defendant] was not able to articulate strategies to avoid use other than to say that substance use is not a problem for him now". 201 Mr Sheehan was concerned that the defendant might find "abstinence more challenging when faced with contextual situations traditionally associated with drinking 202 The defendant's evidence in these proceedings on this topic showed how fluid his views are about his future use of alcohol and how willing he was to take a stance that he thought might be advantageous to him. 203 There is little evidence before the Court as to the defendant's support structures in the community if he were not reliant on COSP. Apart from the owner of the property who is prepared to allow him to reside there and assist him in fulfilling his obligations, the only evidence is that he has friends in the community and a brother who has some interest in his welfare. If something were to occur to take away the support for him by the owner of the property or the availability of that residence, it is difficult to see how the defendant would cope after his extended period in custody. Dr Samuels believed that in that case there was a risk "that he could psychologically decompensate and become very depressed and anxious which might increase the likelihood of his reoffending". Section 9(3)(c) Other reports 204 The opinion of Dr Samuels as to the risk of the defendant further offending seem to me to be supported by Mr Sheehan although he does not purport to quantify the risk. Because the defendant's only sexual interest is toward males who would fall into a group of potential victims to his reoffending, Mr Sheehan believed the defendant "would have to work consistently and comprehensively to manage all aspects of risk before confidence could be had in his ability to independently manage his risk over time". 205 Like the other experts Mr Sheehan thought that antilibidinal medication would be "a prudent step in adding a physiological dimension to risk management". However the defendant is resistant to taking such medication notwithstanding that, according to him, he is no longer significantly sexually aroused by images of young males as, for example, seen on movies. Yet the purpose of the medication in preventing arousal was one of the effects that he found unacceptable. Conclusion 206 I am persuaded to a high degree of probability that the defendant is likely to commit a further serious sexual offence if he is not kept under supervision. I would reach that conclusion even if the word "likely" meant more probable than not. As the law stands in this State it is unnecessary for me to reach that level of persuasion. Therefore I intend to make an order for the extended supervision of the defendant. 207 The only significant dispute as to the conditions if an order were to be made is that of residence. I believe that the defendant should be placed under the control of the Department in that regard for the next 9 months but, thereafter, he should, if he wishes to do so and it is available to him, be able to reside on the country property. 208 In my opinion the defendant should be closely monitored and supervised for a period of 9 months from his release, that is further 6 months from today. I believe that the evidence supporting that condition is overwhelming. It seems to me that it is a necessary part of his reintegration into the community after a lengthy period in custody and gives him the chance to be involved in necessary treatment programmes as and when required. I am far from satisfied that in such a period the defendant's prospects of rehabilitation will be deleteriously affected by remaining in COSP or some other accommodation chosen by the Department. It also means that the defendant can go to the country property after the Christmas holidays. 209 However, after a further period of close supervision and continued treatment the defendant's risk of reoffending should have attenuated to some degree. I believe it is a proper balance between the benefits of further close supervision and monitoring initially both for the safety of the public and the defendant's welfare on the one hand and a chance for the defendant to be in an environment more conducive to his rehabilitation on the other. 210 That period of time will give the Department the opportunity of organising its recourses to be able to monitor and supervise the defendant at the country property. I am far from satisfied that this cannot be achieved in a further period of 6 months. There was a dispute in the evidence as to how long it took to get from the property to relevant places and I am not convinced that adequate treatment and supervision cannot be achieved at that property. A deadline seems to me to be no bad thing in that regard. But if it truly cannot be achieved or if after the defendant moves to the country property his treatment is being significantly interfered with, or adequate monitoring and supervision cannot be provided, or if real risks of further offending arise, then the matter can be dealt with by an application brought by the State to vary the condition at relatively short notice. 211 I am concerned that the onus should be on the State to seek a variation by positive evidence that the residence at the country property is not appropriate. Although I am satisfied it is not appropriate at the present time and will not be over the next 6 months, I am not persuaded that it should be denied to the defendant after that period of time. 212 I believe that ultimately it is in the interest of the defendant and hence the public generally that he be able to go to the country property. I consider that overall he will have less opportunity to re-offend there than he will have in the greater metropolitan of Sydney even with more intensive monitoring and supervision. 213 As to the period of the order the State submitted it should be 5 years. The defendant submits it should be no more than 12 months relying upon the evidence of Dr Samuels. I believe that it should be for a further period of 3 years once the defendant has moved from the residence controlled by the Department. I believed that the risk is sufficiently highly probable for that period. Within that period the defendant can seek a variation or revocation of the order and should have the onus. Thereafter the State can seek a further order and should have the onus to show that it is required for the protection of the public. Non-publication order 214 The parties have agreed that, if I make an order sought by the plaintiff, I should make an order preventing publication of certain information: the current and future residences of the defendant, a name used by him while on witness protection and the name of the person providing alternative accommodation to that provided by the Department. 215 I recognise the very limited use that the Court should make of its power to prevent publication of material because of the fundamental requirement of our system of justice that hearings be open and evidence be available for circulation to the public generally. However, there is no doubt that in a truly exceptional case and where "it is really necessary to secure the proper administration of justice in the proceedings before it" the Court can make such an order: see John Fairfax Publications v District Court of NSW (2004) 61 NSWLR 344. The order should be clear in its terms and do no more than is necessary to achieve the due administration of justice. 216 These proceedings were brought by the State for the purpose of placing the defendant's liberty in the community under conditions including where he could reside. The purpose of these proceedings according to the Act under which they were brought is both the protection of the public and the rehabilitation of the offender. Of course these two purposes are not inconsistent. One means of protecting the public from an individual is to rehabilitate him. 217 In order to achieve the rehabilitation of the defendant it is necessary in my view to restrict the persons who know where he is to reside. While I understand that members of the public would reasonably have an interest in knowing that information in what they consider to be the protection of adolescent males in the community generally or certain individuals in particular, the protection of those persons is placed in the hands of officers of the Department and the police and secured by restrictions upon the defendant's conduct including restrictions upon where he might go in the area in which he is residing. That purpose of the Act is adequately maintained by the restrictions imposed upon the defendant including his place of residence. 218 In my opinion the order made by the Court as sought by the State would be frustrated in its objective if the public at large were made aware of the residence of the defendant or any material that might disclose that location. The owner of the property where the defendant seeks to reside, once he has been permitted to do so, has indicated in uncontested evidence that, were the residence revealed publicly and hence her sense of security and privacy be unreasonably invaded, she would be unable to provide the accommodation to the defendant. In my opinion the provision of that accommodation on the evidence presently before me is an integral part of the eventual rehabilitation of the defendant. Clearly the place where the defendant will reside in the short term under the management of the Department should not be disclosed otherwise the Department may be unable to provide the defendant with the accommodation and resources that it believes essential for the proper management and supervision of the defendant and hence the reason for the making of the order. 219 I order that there be no publication of (a) the present place of residence of the defendant (b) the approved place of future residence of the defendant while under the conditions of the extended supervision order made by the Court and (c) any material that would tend to identify the person with whom the defendant intends to reside as permitted under the conditions of the extended supervision order and (d) the name by which the defendant was known when on witness protection The non-publication order does not apply to any officer of the Department of Justice and Attorney General and the NSW Police Force insofar as the disclosure is reasonably necessary in implementing the extended supervision order nor to the defendant and the person with whom he proposes to reside. Order 220 Pursuant to section 9(1)(a) of the Act I order that the defendant be subject to an extended supervision order to operate for a period of 3 years 6 months from 11 August 2009 and pursuant to section 11 of the Act, direct that, for the period of the extended supervision order, the defendant comply with the following conditions. 221 There is liberty to apply on 24 hour's notice in respect of condition 23. 222 Directions: 1. The defendant must accept the supervision and guidance of the Department of Corrective Services, including the Probation and Parole Service and the Community Compliance Group, for the duration of the Order. 2. The defendant must comply with any reasonable direction given by a Probation and Parole officer ("parole officer"), an officer of the Community Compliance Group ("CCG officer") or supervising officer from the Department of Corrective Services ("Departmental supervising officer"); 3. The defendant must report to a parole officer or CCG officer or Departmental supervising officer as directed by that officer. 4. The defendant must not commit any further sexual or drug and alcohol related criminal offences for the period of the Order. 5. The defendant must comply with all conditions of the NSW Police Service Child Protection Register. 6. The defendant must not access the internet for the purposes of viewing child pornography. The defendant must allow a parole officer or CCG officer or Departmental supervising officer access to any computer he may from time to time utilise, for the purposes of examining and investigating his internet activity. Treatment: 7. The defendant must participate in sex offender and drug and alcohol treatment and rehabilitation as reasonably directed by a parole officer or CCG officer or Departmental supervising officer; 8. The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service, in consultation with the Community Forensic Mental Health Service ("CFMHS"), including counselling, psychological therapy and any anti-psychotic or other psychiatric medication as indicated. 9. Without limiting paragraph 8 above, the defendant must accept assessment by an Area Health Service, in consultation with (or by) the CFMHS, to determine suitability of sex drive reduction treatment/medication. 10. The defendant must accept such psychological intervention by psychologists employed by the Department of Corrective Services as may be offered to him. 11. The defendant must attend if reasonably required/directed, regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service in consultation with CFMHS in so far as it relates to assessment for suitability of sex drive reduction treatment/medication. 12. The defendant must attend if reasonably required/directed consultations with the Area Health Service or CFMHS, at such a frequency, venue and time as directed by his treating clinicians in so far as it relates to assessment for suitability of sex drive reduction treatment/medication. 13. The defendant must engage a general practitioner; he must notify the Departmental supervising officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer. 14. The defendant must disclose to the Department supervising officer the identity of any other medical or mental health practitioner that he consults. 15. The defendant must participate in treatment, including maintenance provided by the Forensic Psychology Services and rehabilitation as is directed by the Departmental supervising officer, including attendance and engagement in community maintenance programs for sex offenders. Association 16. The defendant must not associate or make contact with males aged 16 years and under unless in the company of a responsible adult (previously approved by a parole officer or CCG officer or the Departmental supervising officer); 17. The defendant must not attend schools, amusement parlours, dancing academies, dance schools, dance studios, dance competitions, and any other such places as a parole officer or CCG officer may reasonably direct; 18. The defendant must not associate with any persons specified by the Departmental supervising officer. 19. Should the defendant propose to befriend another person whom he knows to be the parent or guardian (or otherwise a person with care and control eg teacher) of a male under the age of 16 years or whom he knows to be a sibling of a male under that age he must notify the Departmental Supervising Officer as soon as reasonably possible. Electronic Monitoring 20. The defendant must wear electronic monitoring equipment if directed by a parole officer or CCG officer and must not tamper with or remove such equipment; 21. The defendant must comply with all instructions given by a parole officer or CCG officer or Departmental supervising officer in relation to the operation of the electronic monitoring equipment; 22. The defendant must inform the Departmental supervising officer of his movements 48 hours in advance and must obtain prior approval for any proposed schedule change. Residence, Movement, Appearance 23. Subject to the exception stated the defendant must from the date of this order reside at an address approved by a parole officer or CCG officer or the Departmental supervising officer and must not change address without the permission of a parole officer or CCG officer or the Departmental supervising officer. Except that after a period of 6 months from the date of the order the defendant is permitted to reside at the country property for so long as the owner is willing and able to provide accommodation to the defendant at those premises. 24. The defendant must accept home visits, including unannounced home visits by a parole officer or CCG officer or the Departmental supervising officer; 25. The defendant must be at his approved residence between 11pm and 5am unless otherwise pre-approved by a parole officer or CCG officer or the Departmental supervising officer. 26. The defendant must not leave the state of NSW without the approval of the Departmental supervising officer 27. The defendant must not obtain or apply to obtain a passport without the prior approval of the Commissioner of Corrective Services. 28. The defendant must not change his appearance without the approval of a parole officer or CCG officer or the Departmental supervising officer, and, in the event that the change of appearance is approved, must allow himself to be photographed; 29. The defendant must not use another name other than that by which he was known during his period on witness protection; Employment 30. The defendant is to seek approval from a parole officer or CCG officer or the Departmental supervising officer for any employment that he proposes to undertake; 31. The defendant is to notify a parole officer or CCG officer or the Departmental supervising officer of any intention to change his employment before any such change occurs; 32. The defendant must allow the Departmental supervising officer to contact his employer and must inform the Employer of his offending history if the type of employment is assessed by the Departmental supervising officer as potentially bringing him into contact with children under the age of sixteen. 33. The defendant is prohibited from: (a) applying for, or otherwise attempting to obtain, child-related employment (as defined in the Commission and Young Children Act), or (b) undertaking child-related employment (as defined in the Commission and Young Children Act), or (c) remaining in child-related employment (as defined in the Commission and Young Children Act). Consumption 34. The defendant must not consume alcohol or illicit drugs or abuse prescription medication; 35. The defendant shall submit to drug and alcohol testing as directed by a parole officer or CCG officer or Departmental supervising officer; 36. The defendant must not be present at any licensed premises, including but not limited to hotels, bars and racecourses with the exception of restaurants and cafes without the prior approval of a parole officer or CCG officer or the Departmental supervising officer. ********** 11/08/2009 - Error - Paragraph(s) File number on cover sheet and judgment 14/08/2009 - Error - Paragraph(s) 216 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.