Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 Hearing dates: 2-4 March 2011 Decision date: 03 June 2011 Before: Davies J Decision: Parties to bring in Short Minutes of Order Catchwords: CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - paranoid schizophrenic with Anti-Social Personality Disorder, and alcohol and cannabis dependence - unacceptable risk of committing a serious sex offence if not supervised - whether custodial programs suitable - extended supervision order. Legislation Cited: Crimes (Sentencing Procedure) Amendment Act 2010 Crimes (Serious Sex Offenders) Act 2006 Crimes (Serious Sex Offenders) Amendment Act 2010 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Mental Health Act 2007 Cases Cited: Attorney-General v Fisher [2007] QSC 341 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Director of Public Prosecutions (WA) v GTR (2008) 198 A Crim R 149 Director of Public Prosecutions (WA) v Williams (2007) 176 A Crim R 111 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 In re G (A minor) [1987] 1 WLR 1461 M v M (1988) 166 CLR 69 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327 TSL v Secretary to the Department of Justice (2006) 14 VR 109 Category: Principal judgment Parties: The State of New South Wales (Plaintiff) Craig Darryl Richardson (Defendant) Representation: Counsel P Menzies QC & D Kell (Plaintiff) J Watts (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) C M Hunter (Defendant) File Number(s): 2010/410845 Judgment 1The Defendant Craig Darryl Richardson stood trial in relation to 4 offences being (1) assault with an offensive weapon with intent to rob, (2) two counts of aggravated sexual assault, and (3) attempted murder. The offences all took place on 19 December 1994 on and near the beach at Byron Bay from about 10:05pm. They are referred to herein as the index offences. 2After the complainant had given her evidence and had been cross-examined the Defendant changed his plea to guilty in relation to the 4 offences charged. 3On 24 November 1995 he was sentenced by Newman J as follows: (1) For the offence of assault with an offensive weapon with intent to rob a fixed term of 6 years commencing 20 December 1994 and expiring 19 December 2000; (2) For the first offence of aggravated sexual assault a fixed term of 10 years commencing 20 December 1994 and expiring 19 December 2004; (3) For the second offence of aggravated sexual assault a fixed term of 10 years commencing 20 December 1994 and expiring 19 December 2004; (4) For the offence of attempted murder a minimum term of 10 years commencing 20 December 1994 and expiring 19 December 2004 with an additional term of 6 years commencing 20 December 2004 and expiring 19 December 2010. 4Although the Defendant was eligible for parole on 19 December 2004 he was not released and he served out the balance of the additional term. 5On 10 December 2010 the State of New South Wales applied under the Crimes (Serious Sex Offenders) Act 2006 for a continuing detention order pursuant to s 17(1) of the Act, alternatively, for an extended supervision order pursuant to s 9(1) of the Act and, until the proceedings were heard, an interim detention order under s 16 of the Act. 6The application for an interim detention order came before me when I was sitting as Duty Judge on 17 December 2010. I made an interim detention order which expired on 15 January 2011. Subsequently, further interim orders have been made by other judges of the Court. The last such order expired on 18 March 2011 by virtue of s 16(3) of the Act. 7Section 6(3) of the Act provided that the application could not be made until the last 6 months of the offender's then current custody or supervision. The present application was not able to be brought earlier than it was because the amendments made by the Crimes (Sentencing Procedure) Amendment Act 2010 (which made an application possible in the present case) only came into force on 7 December 2010. That Act widened the circumstances in which an application could be made, by enabling it to be made where another offence was being served concurrently or consecutively with a serious sex offence or an offence of a sexual nature. 8On the first day of the hearing of the application for the final order I was informed that the Defendant had been scheduled under the Mental Health Act 2007, and that despite the imminence of 18 March his treatment was likely to be extensive while scheduled, the result being that he would not be released into the community for some period of time. The Defendant's background 9The Defendant was born on 31 July 1967 in Victoria. He was the eldest of 6 children. 10He attended primary school to Year 4 but he did not fit in well with his family or at school. When he was in Year 4 he and another boy broke into the primary school and reportedly "trashed it". As a result he was sent to the Travancore Developmental Centre (a boys home) when he was approximately 9 or 10 years old. Both during his time there and subsequently he continued to have difficulties including learning difficulties as well as involvement with the law. During his late childhood and adolescence he spent time at the Tallyho Village (Boys Home), Turana Youth Detention Centre and the Malmsbury Youth Detention Centre. 11From the age of 18 he was in and out of jobs and spent some time travelling around North Queensland performing work from time to time. 12His criminal record commenced shortly before his eleventh birthday when he was convicted of malicious damage. His subsequent criminal history consisted largely of property and traffic offences except for a conviction on 11 May 1988 (when the Defendant was almost 21) for intentionally causing injury. For that offence he was sentenced to 3 months imprisonment. 13Thereafter, and prior to the index offences, he was convicted of burglary and theft in June 1990 and of using threatening words in a public place, hindering police and being drunk in a public place in November 1993. The index offences 14In his remarks on sentence Newman J recorded that the Defendant's victim was walking to her home in Massinger Street, Byron Bay at about 10.05pm, having left her place of employment . After she had walked past the Byron Bay Surf Club building she was accosted by the Defendant who had run up behind her carrying a knife with its blade exposed. He demanded that she give him money but told her not to turn around. He placed the point of his knife on the right hand side of her spine and forced her to enter the dune area. 15Once there, he continued to demand that she give him money, and forced her to sit down, although she initially resisted that demand. He then pulled her bag off her shoulder and went through its contents. He found, as she had told him, that she had no money. H e then began to make sexual demands on her, first demanding that she expose her breasts. Although she protested he persisted with his demands, emphasizing them by touching her chest with his knife and mouthing threats. 16Newman J then recorded the following regarding the sexual assaults: Eventually, having pulled down her brassiere to look at her breasts, the prisoner, again crudely, announced his intention to have sexual intercourse. Thereupon, he utilised his knife to cut her brassiere and take it off her. He then commenced to suck her right breast. He demanded that this unfortunate woman kiss him. His efforts to do so revealed to his victim that he had been drinking alcohol. This revelation led to a conversation in which the prisoner stated that he had been drinking Tequila and port. He continued his sexual demands, accompanying them by pressing his knife to the victim's throat. Having been told by the victim that intercourse was out of the question because she was menstruating, the prisoner's response was to tell her that she thus had the choice of either vaginal or anal penetration. Ultimately, he forced her to remove her sanitary pad. During the course of conversation the victim realised that the prisoner was going to rape her and she, perhaps one might think remarkably, persuaded him to use a condom. Prior to penetrating her the prisoner used his knife to cut her panties at her hips. When he commenced to penetrate her, he again pressed his knife to her throat to force her to cooperate in the commission of the sexual act. Its performance, which involved the complainant adopting several positions as a result of the force applied by the prisoner, was physically painful. While this was taking place, the prisoner forced her to remain silent by placing the knife against her lip and threatening to cut her tongue out. At some stage during the commission of the sexual act, the prisoner had placed the knife on the ground. His victim, in an endeavour to make him retreat, managed to pick it up and began slashing at him with it, kicking him at the same time. Unfortunately her efforts, which I find to be both courageous and reasonable, were to no avail. To retrieve the knife, the prisoner closed the blade on her fingers, thus cutting a number of her fingers. I shall turn to the detail of this and other injuries suffered by the victim later in these remarks. Having regained possession of the knife, the prisoner stabbed her in the stomach. Thereafter he continued to stab at her chest and stomach. To protect herself the victim attempted to deflect the knife blows with her right hand, again resulting in her suffering wounds. A recess in the activity then occurred during which time the prisoner removed the condom and made vile remarks of a sexual nature to her. She, at this time, was lying on the ground while the prisoner was sitting up. Suddenly he attacked her by stabbing her on the right arm and the right side of her chest. Again a cessation of activity occurred during which break the victim told the prisoner she was passing in and out of consciousness and requested him to call an ambulance. He said he would once she was unconscious. She then feigned unconsciousness. The prisoner then proceeded to eat an orange which had been in the complainant's bag. While it is difficult to determine where the events concerning the first act of aggravated sexual assault ended, and the circumstances giving rise to the second such charge started, it seems to me that the circumstances surrounding the first charge concluded when the prisoner commenced to eat the orange. Again, standing alone, the objective facts surrounding the first charge of aggravated sexual assault are such as to call for the imposition of a substantial term of penal servitude. Indeed, standing alone, those facts could well cause a court to conclude that this sexual assault falls within the category of the worst kind of case, but this charge does not, like the first, stand alone. As I have said, the complainant was feigning unconsciousness as the prisoner was eating the orange. Hoping he had gone she opened one eye to see if he had departed. He had not. Enraged, he accused her of feigning unconsciousness so that he would leave enabling her to call the police. He then picked her up by the hair, stating that he would kill her, and ripped the knife across her throat. He began dragging her towards the beach, during which passage he stabbed her again in the throat. At some stage during this activity the prisoner made an inquiry about the arithmetic involved in determining what his age would be, should he be given twelve years' imprisonment for attempting to murder the complainant. The importance of this enquiry is that it demonstrates that whatever the prisoner's mental deficiencies might be, and whatever his state of intoxication at the time, he clearly appreciated the seriousness of his actions and the fact that retribution for them, if he were apprehended, would be severe. In due course the prisoner and his victim reached a point some three metres from where the first sexual assault took place. Here the ground cover was sand. The prisoner rolled the complainant over on to her stomach and penilely penetrated her vagina. Once more this was a physically painful happening for the complainant involving, as it did, the presence of sand in her vagina. Following the completion of intercourse the prisoner stated callously "You felt that one, didn't you" and then stood up. 17Thereafter the Defendant trussed his victim by tying her hands behind her back and pinioned her legs with his belt. He jumped on her back and commenced to shovel handfuls of sand into her mouth and across her nose. 18She managed to get her hands free and ultimately struggled with the Defendant which eventually caused him to desist his attack. She then left the Defendant, walked up to the road and met some people who took her to the police station. The whole episode from the time she was initially accosted until she left the beach lasted approximately 3 hours. 19Newman J regarded the criminal responsibility of the Defendant at the highest level and said that the case was very close to, if not within, the category of the worst type of case. Legislation 20Section 17 of the Act provides: 17 Determination of application for continuing detention order (1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order. (3A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 15 (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, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (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 interim supervision order or an 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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. ... (5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9. 21Part 2 of the Act deals with extended supervision orders. Section 10 enables the making of an extended supervision order for up to 5 years. Section 11 sets out conditions that may be imposed on a supervision order. These include, but are not limited to, directions requiring the offender: (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 (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, 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. 22Sub-sections (2) and (3) of s 17 were amended to their present form, and sub-s (3A) was inserted, by the Crimes (Serious Sex Offenders) Amendment Act 2010. Previously, sub-ss (2) and (3) read: (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order. 23In Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327 the Court of Appeal considered that earlier form of sub-ss (2) and (3). The majority (Giles and Ipp JJA) followed the Victorian Court of Appeal in TSL v Secretary to the Department of Justice (2006) 14 VR 109, and said: [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 per cent. The remarks Bell J made when articulating the test she intended to apply are to be understood in this sense. Her Honour said (at [29]): "I have approached the determination in this case upon the basis that 'likely' in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence." 24In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court said: [21] The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely" as explained in TSL . 25They went on then to say, in respect of s 17(3): [22] On that approach, when one comes to the second element of s 17(3), what is required is satisfaction to a high degree of probability (that is, beyond a mere balance of probabilities) that adequate supervision will not be provided by an extended supervision order; that is, that even if there is an extended supervision order, the offender will nevertheless still be likely to commit a further serious sex offence. 26The reasons for the changes made in the 2010 Amendment Act were set out in the Second Reading Speech in relation to that Amendment Act as follows: There has been considerable case law on the meaning of the word "likely" in this State and in Victoria, which used the same test in relation to a similar piece of legislation, the Victorian Serious Sex Offenders Monitoring Act 2005. The interpretation that is currently applied in New South Wales courts is 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 that is more than 50 percent. The authority for this interpretation is Tillman v Attorney General (New South Wales) [2007] New South Wales Court of Appeal 327, reported also at 70 New South Wales Law Reports 448 and 178 Australian Criminal Reports 133. Subsequent legislative activity in Victoria, including the repeal of the Serious Sex Offenders Monitoring Act 2005 and the introduction of the Serious Sex Offenders (Detention and Supervision) Act 2009, has resulted in the introduction of an unacceptable risk test. In the second reading speech to the Serious Sex Offenders (Detention and Supervision) Act 2009 the Victorian Minister for Corrections, the Hon. Bob Cameron, noted that the new test invites courts to consider not only the risk of sexual reoffending of the particular offender but also the nature and gravity of the offences the offender may commit in the future. As part of the statutory review of the Crimes (Serious Sex Offenders) Act 2006, many stakeholders acknowledged difficulties with the word "likely" and called for clarification. The statutory review also noted that recent decisions of the Supreme Court of New South Wales confirm that there is a need to clarify the use of the word "likely", and accordingly the requisite degree to which a court must be satisfied of risk before making an order. The statutory review recommended that one way of achieving this clarity was not to simply define the word "likely" but also to clarify the test that is being met, that is, to adopt the unacceptable risk test adopted in Victoria. It is noted that the equivalent Queensland piece of legislation, the Dangerous Prisoners (Sexual Offenders) Act 2003, contains a similar test and was upheld by the High Court in Fardon v Attorney-General for the State of Queensland [2004] High Court of Australia 46. The statutory review of the New South Wales Act found that the arguments that preceded the change in Victoria were equally applicable to New South Wales. In addition, it was acknowledged that there was merit in the test in the Crimes (Serious Sex Offenders) Act 2006 being consistent with the tests used in Victoria and Queensland given that the schemes set up by each of the three States are similar in nature and designed to achieve the same aim, that is, the protection of the community through the management of serious sex offenders. There are also advantages in having a cross-jurisdictional body of case law being developed. As such, item [5] amends the test [ie s.9(3) and s.17(2) and (3)] to require the court to be satisfied that there is an unacceptable risk replacing the likelihood test with a test of unacceptable risk of the offender committing a serious sex offence if he or she is not kept under supervision. 27The expression "unacceptable risk" in the corresponding Queensland legislation was referred to by the High Court in Fardon v Attorney-General (Qld) (2004) 223 CLR 575. The judges made reference to Family Court cases where the expression had been used in relation to denying a parent access to a child: M v M ( 1988) 166 CLR 69 at 78 and In re G (A minor) [1987] 1 WLR 1461 at 1469. The Judges quoted from the passage in M v M where the following appears: In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse: Gummow CJ at [60], Callinan and Heydon JJ at [225], and see also McHugh J at [22]. 28In Director of Public Prosecutions (WA) v Williams (2007) 176 A Crim R 111 the Western Australian Court of Appeal said this of the same expression, where it appeared in legislation corresponding to that under consideration here, at [63]: In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. 29A similar approach was adopted by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR (2008) 198 A Crim R 149 at [27]: The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case.' 30The matter has recently been considered in the context of the NSW legislation by RA Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118. Although RA Hulme J was considering s 9(2) the wording is identical. He said this: [13] The formulation, "poses an unacceptable risk of committing a serious sex offence" is a new one introduced into the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010 which took effect from 7 December 2010. The previous formulation which has been considered in a number of decisions of this Court both in the Common Law Division and the Court of Appeal was "is likely to commit a further serious sex offence". [14] The first part of the test in s 9(2), that is the need for satisfaction "to a high degree of probability", remains unchanged and has been the subject of previous consideration, both as to its appearance in s 9(2) and in the use of the same expression of the level of satisfaction in s 17(2) (which relates to the determination of applications for continuing detentions orders). It has been held that it constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard: see, for example, Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 per Bell J at [27]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. [15] A seemingly important matter in considering the new "unacceptable risk" test is the simultaneous insertion in s 9 of sub-s 2A. It is in the following terms: (2A) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. [16] That provision, to my mind, is an indication by the legislature that the risk of the person committing a serious sex offence does not need to be more likely than not before it can be regarded as an unacceptable risk. Put another way, the risk may be less likely than not but still be an unacceptable risk. ... [19] One matter that should be borne in mind in considering the new "unacceptable risk" test is the objects of the Act set out in s 3 of the Act. That section is in the following terms: (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. [20] Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. The Defendant's time in prison 31The Defendant has been managed in Maximum Security for his entire sentence. He has been managed at High Risk Management Correctional Centre (HRMCC) at Goulburn since 27 September 2001. 32During his time in custody he has been sanctioned for 22 breaches of prison discipline as follows: Date Breach Sanction 18-May-2004 Possess/create prohibited goods (namely two pieces of metal) 14 days off amenities 12-Mar-1999 Assault 3 days in cells 9 March 1999 Threatening behaviour 3 days in cells 16-Feb-1999 Drugs in urine and fail or refuse to provide sample 42 days off contact visits 8 April 1998 Abusive language 1 day in cells 16-Jan-1998 Unauthorised property 3 days in cells 18-Oct-1997 Unauthorised property 3 days in cells 8-Oct-1997 Damage property $50 compensation 10-Sep-1997 Fighting - Mr Richardson was involved in an altercation with another inmate; when approach he was noticed to be attempting to stab the inmate with a piece of wire. He refused to cease when instructed and became very abusive towards staff, threatening them with the knife, should they approach him. 3 days in cells 26-Jun-1997 Possess a drug implement 2 days in cells 10-Mar-1997 Stealing 1 day SUP 8-Mar-1997 Unauthorised property 7 days SUP 12-Nov-1995 Assault 1 day SUP 27-Sep-1995 1. Abusive language 1. 3 days SUP 2. Threatening language 2. 3 days SUP 3. Insulting language 3. 3 days SUP 4. Threatening language 4. 3 days SUP 5. Insulting language 5. 3 days SUP 6. Abusive language 6. 3 days SUP 6-Aug-1995 Abusive language 7 days SUP 5-Aug-1995 Abusive language 7 days SUP 4-Feb-1995 Assault 2 days SUP 33In addition, the Defendant has been involved in 7 other events between April and September 2001 as follows: a. 30 April 2001: Mr Richardson barricaded his cell door and set fire to his cell in a self-harm attempt. Mr Richardson was armed with a gaol made knife. He was unconscious when staff breached the barricade and removed him from the cell. b. 1 May 2001: Corrective Services staff used force to restrain Mr Richardson after he picked up a plastic chair and raised it above his head threatening staff during a Risk Intervention Team meeting. c. 5 May 2001: Mr Richardson attempted to self-harm by tying two socks together and hanging himself. d. 28 May 2001: Mr Richardson scaled an internal fence and when approached by staff became aggressive and force was used to restrain him and remove him from the area. e. 6 June 2001: Mr Richardson picked up a plastic packing tub used for inmate property and hit an officer on the side of the head with the tub. Force was used to restrain Mr Richardson. f. 13 June 2001: Corrective Services staff used force to restrain Mr Richardson after he refused to hand over contraband prior to an escort. g. 24 June 2001: Corrective Services staff used force to restrain Mr Richardson after he abused and threatened staff and failed to comply with a reasonable direction. It was these events that contributed to his placement in HRMCC. 34Apart from the breach of discipline of 18 May 2004 (the first matter in the above table), the more controlled environment of HRMCC appears to have led to a modification of his behaviour towards other people, and he has had no other breaches of prison discipline. 35Whilst in prison the Defendant undertook a number of courses to deal with his problems. These included Positive Lifestyle (2005-2007), Anger Management (2007-2008) and Life Changes When We Change (2008 to the present). He did not complete the last of these because he was transferred from HRMCC. He took a long time to complete the other 2 programs - 22 months to complete the 10 sessions for Positive Lifestyle and 11 months to complete Anger Management. 36Although the Defendant expressed an interest in participating in a sex offender treatment program in late 2002 he did not ultimately consent to a referral to any of the available sex offender treatment programs. In fact, he signed a non-consent form in relation to the CUBIT (Custody-Based Intensive Treatment) program on 13 May 2003. 37There was an issue in the proceedings about why the Defendant had not undertaken a sex offender treatment program. The Plaintiff maintained that it was because he simply refused to undertake the programs. The Defendant, on the other hand, maintained that some at least of the programs were not available to him at HRMCC. Other evidence suggested that he declined to participate either because he said he did not commit the offences for which he was convicted or that he had no memory of doing so. Another reason offered was that he did not desire to revisit that part of his life where he had committed the offences because it raised confusing and negative feelings about himself. Expert assessments of the Defendant 38The Defendant was assessed by Professor James Ogloff, a clinical and forensic psychologist who has a speciality in the area of adult offenders including sexual offenders. Professor Ogloff saw the Defendant on 6 August 2010 for the purposes of an assessment of the likelihood of the Defendant committing a further serious sexual offence under the terms of the Act. 39Professor Ogloff provided a very detailed and comprehensive report which included a review of a number of files pertaining to the Defendant, and he took a detailed history from the Defendant. It is important to set out that section of Professor Ogloff's report concerning the Defendant's sexual history and behaviour. Despite the fact that Mr. Richardson has been convicted of two counts of aggravated sexual intercourse without consent and one count of attempted murder related to these offences, very little is known about his sexual history and behaviour. I reviewed this history with him in some detail using the Sone Sexual History Background Form. Mr. Richardson was generally not forthcoming in providing information related to his sexual history and behaviour. Mr. Richardson reported to me that he obtained most of his sexual information as a child from school. He said that sex was not discussed in his home with his parents or siblings. Mr. Richardson reported to me that he first began to understand about sex when he was approximately 10 years old. He recalled engaging in mutual kissing and touching with a girl when he was 10 years old. He stated that he was never caught or punished for sexual activities as a child. Mr. Richardson reported that he was sexually abused by two people on three occasions when he was nine years old. He said a school teacher and nurse abused him and filmed the abuse. They told him to do sexual things which they filmed. In my reading of his file material, Mr. Richardson had reported other incidents of sexual abuse at the hands of his mother's best friend when he was a child; however, he did not mention that experience on this occasion. Similarly, the abuse he reported at interview does not seem to have been recorded elsewhere in his file. He recalled that his first experience with masturbation occurred when he was 12 years old and was in custody. He reported having his first experience with intercourse when he was approximately 14.5 years old and the girl was 15 years old. His memory of the experience is positive. Mr. Richardson reports being strictly heterosexual. He recalled that he has had sexual relationships with approximately eight females; four before age 18 years and four after. He denied ever having had sex with prostitutes. Mr. Richardson reported that he and his partners have found their sexual experiences pleasurable. Although Mr. Richardson reported masturbating approximately three times per week, he became angry when asked about the kinds of fantasies he had, stating that the question was "too personal." While this is understandable, it is unfortunate since a central part of treatment for sexual offenders is to be able to discuss such matters with treatment providers in order to determine whether there is any sexual deviance present and to assist them in learning to control any deviant sexual arousal. Mr. Richardson denies engaging in any sexual behaviour with other prisoners noting that he is strictly heterosexual. 40Professor Ogloff was unable to obtain any detailed information from the Defendant about the index offences because the Defendant claimed not to have any memory of the event. He said only that he remembered meeting the victim and believed that she looked older than 18 years. He also told Professor Ogloff that at the time of the offence, he had taken approximately 30 Valium tablets, as well as LSD and cannabis. 41Professor Ogloff went through matters in the judge's Remarks on Sentence. The Defendant's response was "now I believe I would have caused her a great deal of pain". He said that he could not believe he actually did what the judge recorded since the behaviour described "disgusts me" and was out of character. 42Professor Ogloff set out 4 detailed reasons why he believed that the Defendant's claimed memory loss for the index offences was most likely feigned. These reasons included the fact that he gave an account of events to the Police the following day, his responses on psychometric testing and the fact that he claimed not to have certain recall but total memory loss. 43Professor Ogloff then turned to consider the risk of sexual re-offending and did so with reference to 2 instruments known as Static 99 and Risk for Sexual Violence Protocol (RSVP). Before doing so he sounded this caution: It is important to note that whilst the category of risk can be identified with some accuracy, we are still not at the stage where it is possible to determine with a high degree of accuracy precisely what an individual's likelihood of being violent or reoffending sexually is. Moreover, the risk assessment schemes that have been developed and validated have been done so overseas and relatively little is known about exactly how valid the instruments are in the Australian context. Taken together, the following information will provide a general indication of the category of risk for sexual offending in which Mr. Richardson is likely to fall. 44Static 99 is an instrument that was developed using a purely actuarial approach. It was initially developed in 1999 based on follow up studies from Canada and the United Kingdom. Subsequently there have been 2 additional measures of Static 99 being Static 2002 and more recently Static 99-R. 45The instrument consists of 10 items and produces estimates of future risk based upon the number of risk factors present in any one individual. The risk factors are these: (1) young; (2) ever lived with intimate partner for 2 years; (3) index non-sexual violence; (4) prior non-sexual violence - any convictions; (5) prior sex offences; (6) prior sentencing dates; (7) any convictions for non-contact sex offences; (8) any unrelated victims; (9) any stranger victims; and (10) any male victims. 46In respect of these items the Defendant scored having non-sexual violence as part of the index conviction, having prior non-sexual violence convictions, having more than 4 prior sentencing dates, never having lived with a partner continuously for at least 2 years, having unrelated victims, and having stranger victims. Although under Static 99 the Defendant would have scored for his age Static 99-R reduces that score because the Defendant is now aged between 40 and 60 years. The end result is that the Defendant's category of risk is in the moderate to high range. 47Professor Ogloff said that the result obtained by the Defendant's category of risk is in the moderate to high range. Professor Ogloff said that the results obtained by the Defendant indicate that his level of risk for re-offending is approximately twice the base rate for sexual offending in the samples upon which Static 99 was validated. He belongs to a group with an average sexual recidivism rate of 33% over 5 years in the population studied, 38% over 10 years, and 40% over 15 years. Professor Ogloff acknowledged that limited validation data are available in Australia but, because Static 99 demonstrates consistent results in Canada, the United Kingdom, New Zealand and other countries, one can have confidence that the results would at least be similar in New South Wales. 48Professor Ogloff noted that Static 99 was developed to identify the static or historical factors that have been found to relate to a risk of re-offending. The instrument is limited in scope to past risk factors and does not take into account changes to risk that may occur over time. The measure cannot assess dynamic or changeable factors. 49In his oral evidence Professor Ogloff said that in follow-up studies of people who had scored equally to the Defendant, about 60% had not re-offended sexually after 15 years. 50Because of the limitations of Static 99 Professor Ogloff considered an additional, more comprehensive evaluation of the Defendant's level of risk for sexual offending - the protocol known as RSVP. 51RSVP is a structured professional judgment instrument that includes both static and dynamic factors that have been associated with the risk of future sexual violence. It consists of 5 categories of risk factors: (A) sexual violence history, (B) psychological adjustment, (C) mental disorder, (D) social adjustment, and (E) manageability. 52The items are considered from three perspectives, past, present and future. Professor Ogloff said it was difficult to evaluate the Defendant on the RSVP since the instrument requires considerable information from the past and more recently regarding an individual's thoughts and behaviours pertaining to sexual offending. Because the Defendant claimed no memory for the offence, he could not enlighten Professor Ogloff about some of the matters in the RSVP. Further, because he refused to discuss the nature of his sexual fantasies assessment was made more difficult. Nevertheless, Professor Ogloff thought that most of the information required for completion of RSVP was available to him. 53Professor Ogloff assessed the Defendant as follows: A. Sexual violence history The Defendant presented risk factors consistent with 2 of 5 items on this part of the Protocol - he used both physical and psychological coercion in effecting his sexual offence. In his favour, his sexual violent offending had not been chronic over time, he had not engaged in a diversity of sexually violent behaviours, and there was no evidence that his sexual offending escalated over time. B. Psychological adjustment The Defendant possessed 3 of the 5 of the risk factors in this section, being problems with self awareness, problems with stress or coping, and problems resulting from child abuse. In his favour he did not appear to hold attitudes that supported or condoned sexual violence and, although he claimed no memory for what he did, he did not minimise or deny the degree of sexual violence. C. Mental disorder The Defendant exhibited 4 of the 5 risk factors from this section. He had a major mental illness being schizophrenia. He also suffered from a psychopathic personality disorder. He had problems with substance abuse, and he experienced violent and suicidal ideation on many occasions. I shall discuss in greater detail below the diagnoses of these mental disorders. Professor Ogloff said it was impossible to ascertain information about the fifth factor in this section of the Protocol, that being whether the Defendant had a sexual deviation. This was because of his claimed lack of memory for the offences and his refusal to discuss his sexual fantasies. I shall return to a discussion of this later in the judgment. D. Social adjustment This area includes 4 risk factors, all of which are relevant to the Defendant. They are problems with intimate relationships, problems with non-intimate relationships, problems with employment, and non-sexual criminality. E. Manageability Again, the Defendant demonstrated difficulties with all 3 risk factors in this area both prior to and during his incarceration. They are problems with planning, problems with treatment, and problems with supervision. In relation to planning Professor Ogloff noted that he is still occasionally driven by impulse, that he had difficulty internalising and benefiting from treatment programs, and had not participated in intensive programs aimed toward reducing his risk of sexual offending. 54Professor Ogloff's conclusion from the risk factors on the RSVP suggested to him that the Defendant had a moderate to high level of risk for sexual re-offending with many risk factors of each of the 5 sub-categories being present. Given the extreme nature of his offending and the lack of effort to reduce the risk factors, Professor Ogloff had great concern about his likelihood of sexual reoffending. That was particularly so without careful supervision. 55In his oral evidence Professor Ogloff said that the research shows there is no positive relationship between the presence of schizophrenia and sexual offending per se. He said further that the majority of people with Antisocial Personality Disorders and even psychopathy do not offend sexually, and that most sex offenders did not have those disorders. However, there is a modest correlation between those behaviours of around .2 to .25 indicating that individuals with those personality features and behaviours do have a higher risk. 56When considering section (C) of the Protocol Professor Ogloff had concluded that the Defendant suffered from a Psychopathic Personality Disorder. Professor Ogloff said that such a diagnosis, taken alone, was not particularly informative or helpful in determining a person's level of risk for future violence. For that reason, he administered the Psychopathy Checklist Revised (PCL-R) to the Defendant. 57Unlike Antisocial Personality Disorder Professor Ogloff said that the construct of psychopathy consists of 2 separate factors. The first assesses personality characteristics of psychopathy (interpersonal features and affective or expressed emotion features) and the second assesses the behavioural components of psychopathy, and is more akin to Antisocial Personality Disorder. Generally speaking, he said, higher scores on the PCL-R are predictive of future offending and sexual offending. 58Professor Ogloff found that the Defendant's overall score on the PCL-R fell at the lower end of the high range, indicating that he demonstrated most of the personality traits and behaviours associated with psychopathy. Such a finding indicated that all other things being equal the Defendant's level of risk for re-offending violently and sexually was greater than would be the case for someone with lower scores on the PCL-R. That is because individuals with characteristics of psychopathy such as those which the Defendant possesses do not have the capacity to inhibit their behaviour with the normal personality features that inhibit others (e.g., remorse, empathy and compassion). 59Professor Ogloff also used a Protocol known as HCR-20 to determine the Defendant's overall level of risk for violent offending. Professor Ogloff said that HCR-20 indicated that the Defendant was at a high level of risk for re-offending violently in the future. Other evidence in the proceedings might tend to support Professor Ogloff's conclusions in that regard and I shall mention them later. 60Professor Ogloff's conclusions were these: 1. It is my opinion that Mr. Richardson presents a moderate-high risk for reoffending sexually in the future if he is not made subject to an order under the Crimes (Serious Sex Offenders) Act, 2006. 2. Given Mr. Richardson's level of instability and lack of treatment, it is my opinion further that his level of risk could not be adequately managed by an extended supervision order at this time. 3. Based on his pattern of offending and related factors, it is my opinion that Mr. Richardson also presents a high risk of reoffending violently. 4. Mr. Richardson requires a trial of intensive treatment for violence and sexual offending to determine how he will respond to such treatment. The treatment should be tailored to his individual situation and needs. In particular, it must be behaviourally oriented and gradual in nature. 5. Mr. Richardson requires continuing psychiatric care to assist him with his psychotic illness. 6. If Mr. Richardson is ever to have a reasonable hope of being released to the community, very careful attention will be required in the provision of treatment, supervision and planning over time. This would best be done by a multidisciplinary team with expertise in the psychological and psychiatric management of this man, in addition to the security precautions required. 7. Mr. Richardson could also benefit from treatment around his potential substance use, although he appears to have been able to control substances over the many years during which he has been incarcerated. Psychiatric matters 61Pursuant to orders that I made on 17 December 2010 the Defendant was examined by 2 psychiatrists, Dr Andrew Ellis and Dr Samson Roberts. Both psychiatrists diagnosed the Defendant as suffering from paranoid schizophrenia, antisocial personality disorder, and alcohol and cannabis dependence. In addition, Dr Samson diagnosed him with Benzodiazepine d ependence. 62In relation to the diagnosis of paranoid schizophrenia, this was first diagnosed by psychiatrists from Justice Health from about 2004. However, prior to that time he had been admitted to the D Ward of Long Bay Prison Hospital in January 1995 where he had been diagnosed with personality disorder with antisocial and schizotypal traits and depression. Further, in 2001 he was admitted because of a psychotic episode where he described an angel talking to him. 63Dr Ellis also noted that symptoms of delusions, hallucinations and functional impairment appear to have preceded the formal diagnosis of schizophrenia . In that regard he noted that there were records of references to voices and demons going back to parole records from Victoria. 64The Defendant appears first to have been seen by a psychiatrist, Dr Saunders when he was at Travancore in July 1982. In his remarks on sentence Newman J noted that Dr Saunders found him at that stage to be of average intellectual potential but to be functioning in the dull normal range with marked learning disorders. His academic skills were rudimentary. Dr Saunders observed that his personality assessment indicated repression and denial as defences of a psychoneurotic disorder, tending to disassociate into a borderline state under severe stress. There were features of depression present. 65Newman J also referred to the Defendant having seen a psychiatrist Dr Jurek in October and November 1995. She took a history of the Defendant using Valium, up to thirty tablets in a day. The Defendant also told Dr Jurek of spirits speaking to him. Dr Jurek had a guarded view about that history. She said his internal voices could possibly be seen as adaptive because he was a very isolated individual. H er alternative view was that the voices might be symptomatic of an underlying psychosis. She diagnosed him as having a personality disorder with underlying and borderline psychotic features and noted that he had chronic substance abuse involving alcohol and other drugs. 66The oral evidence of Drs Ellis and Roberts (who gave their evidence concurrently) suggested that they both accepted that the Defendant had an undiagnosed schizophrenia in his late teenage years and certainly into his twenties. 67As far as substance abuse was concerned Dr Ellis noted that the Defendant commenced drinking alcohol from the age of 14. He described his heaviest use between the ages of 17 and 21 when he would binge drink on a weekly basis and consume two bottles of spirits in a sitting. He frequently described "blackouts" where he could recall events while he had been drinking. 68He also told Dr Ellis that he started smoking cannabis at the age of 12 and reported that his heaviest use was between the ages of 15 and 18 where he would consume 12 cones of marijuana each day. He said that the cannabis had no deleterious effects on him, but relaxed him and gave him a "heightened awareness". By contrast, he told Dr Roberts that he used to consume thirty to forty cones per day although he also described a heightened sense of awareness from doing so. 69He also reported to having consumed magic mushrooms on 4 occasions and that when he had done this it made him paranoid. Significantly, he reported that he took LSD for the first time on the night of the index offences. 70As he had told Dr Jurek in 1995, he also told Dr Ellis and Dr Roberts that he was taking 30 tablets of Valium a day for a 5- year period prior to being sentenced for the index offences. 71Dr Ellis reported the following about the Defendant's psychosexual history: He describes learning about sex from education classes at school and from talking with school friends. He reports that he stole his father's pornographic magazines and looked at them. He reports that his parents never spoke to him about sex. He reports that as a teenager he would masturbate 2-3 times each week, often to the images in the magazines which were all naked adult women. He reported his first sexual intercourse was at the age of 14 . He estimates that he has had 40 different sexual partners who have all been women. He identifies as exclusively heterosexual. He expressed offence when the possibility of sexual encounters with men was suggested. He estimates the age range of his partners as between 16 and 37. He denies ever experiencing sexual dysfunction, and described that he did not usually have sex when intoxicated with alcohol. He has not contracted a sexually transmitted disease. He denied any behaviour, desire or fantasy consistent with a paraphilia. He denied ever viewing or masturbating to pornography as an adult. 72In relation to the index offences the Defendant said he was drinking with some associates in the park. They were drinking tequila and port. He had taken 30 Valium tablets that day, and one of the associates offered him LSD which he took. He claimed not to have any accessible memory after walking away from the people with whom he was drinking. I note that this is to be contrasted with what he told Professor Ogloff (see para 40 above). 73In relation to the victim statement he said he "can't believe it's me" and "I have never done anything like it before in my life". Dr Roberts reported similar sentiments being expressed by the Defendant. 74In relation to Dr Ellis's diagnosis of Antisocial Personality Disorder, he thought that the personality problems emerged prior to the onset of psychotic symptoms. He said that the personality style was pervasive and chronic but it might ameliorate over decades with maturity, and possibly with learning improved communication skills and emotional control. He noted that the Defendant had difficulty expressing remorse, and accepting responsibility for his actions, and that he had historically displayed impulsive aggression. 75Although Dr Ellis did not diagnose a psychopathic personality disorder he assessed the Defendant using the PCL-R that had been used by Professor Ogloff. Dr Ellis said although psychopathy is not a psychiatric diagnosis there is considerable overlap between psychopathy and Antisocial Personality Disorder. High scores on this Check List are associated with general and violent recidivism and are modestly correlated with sexual recidivism. The Defendant scored 25 which is considerably higher than the general population. However, it is only scores of over 25 for UK samples and scores over 30 for North American samples that are considered to be associated with a psychopathic personality. 76Similarly, in this regard, Dr Roberts diagnosed Antisocial Personality Disorder including narcissistic traits but said i t was not possible to conclude upon a formal diagnosis of Narcissistic Personality Disorder in accordance with DSM-IV criteria. Although he mentioned that the Defendant spoke of violence towards others without compunction and noted that he had engaged in such violence with apparent disregard for consequences, Dr Roberts did not discuss or determine a diagnosis of Psychopathic Personality Disorder. Regrettably, nothing was directed in cross-examination to these expert witnesses, including Professor Ogloff, about that difference in diagnoses and whether it was significant. 77Dr Ellis, like Professor Ogloff, assessed the Defendant under Static 99 instrument. He expressed qualifications about reliance on it in some similar terms to Professor Ogloff as well as for some additional reasons. Like Professor Ogloff he said that it was an a ctuarial measure which was able to allocate individuals with particular characteristics to risk groups that have been identified as possessing greater or lesser numbers of persons within the group as re-offending. The difficulty, he said, was t hat it does not discriminate between those in a particular risk group who do re-offend and those who do not. 78The additional matters that he referred to were these. He said that the original sample used to form recidivism rates with the Static 99 was collected at a time when general crime rates, including sexual offending rates, were higher than at present. He said the confidence intervals for the moderate high-risk group on the old sample group crossed that of the moderate- low risk group. 79He made reference to Static 99-R which has been updated with new populations that may better reflect current re-offending patterns. However, data regarding confidence intervals for this new sample has yet to be published, and 15-year recidivism data are not available. The characteristics of the "high risk" group are yet to be defined in detail, and he said that it maybe the Defendant was closer in characteristics to that group. He said m ore peer-reviewed publication was required on the new sample before the group characteristics could be reliably applied to individuals. 80Dr Ellis's scoring differed from that of Professor Ogloff in relation to one item. The history that Dr Ellis obtained both at interview, and in a parole report for the Defendant in 1998 indicated that the Defendant had lived with the same partner (Ms Peters) for more than 2 years. If that was correct it would decrease the score by one point although it did not change his risk category of moderate-high. It did change the statistical group for the purpose of relative risk and confidence intervals. 81Dr Ellis then went on to discuss clinical considerations in regard to risk of re-offending. Those included sexual deviance, personality factors, substance dependence, mental illness and treatment setting. He noted that d eviant sexual arousal was consistently identified as a risk factor for sexual re-offence. He said that the Defendant did not describe a history consistent with d eviant sexual arousal, but his assessment at interview was marked by suspicion and evasiveness. There was, however, no notation in the extensive records Dr Ellis saw to suggest behaviour or statements made that indicated deviant arousal or paraphilia. 82He told Dr Roberts that he was heterosexual with no homosexual or paedophilic tendencies. He said he had never engaged in violence or bondage within consensual relationships and had not used pornography. When Dr Roberts asked him regarding sexual fantasies the Defendant said he was disgusted at being asked such a question but said that violence did not form a part of his fantasies. 83Dr Ellis said that antisocial personality orientation was another factor consistently identified with sexual re-offence. It was in the context of discussing the relationship between personality disorders and re-offending that Dr Ellis made reference to the PCL-R. 84He said substance use disorders were less consistently related to sexual re-offending but he thought in the Defendant's case they were related as disinhibiting behaviour. Although he had been abstinent for a significant period in prison, he had not undertaken substance use treatment programs despite previous heavy use and he displayed poor insight into previous use. 85Dr Ellis said that Psychotic disorders such as schizophrenia were less consistently related to repeat sexual offending although the symptoms of the disorder could contribute to disinhibition. Untreated psychosis might predispose to substance use relapse, furthering impulsive and aggressive decision-making. Dr Ellis noted that the index offences occurred in the context of untreated mental illness and intoxication and that their description indicated a lack of planning but impulsive, aggressive and disorganized behaviour. 86In considering actuarial and clinical parameters in the absence of any treatment or supervision Dr Ellis concluded that the Defendant would fall into a group of persons with a risk of offending that was moderately high and greater than a theoretical average offender. 87Dr Ellis thought that the Defendant would be found to be a "mentally ill person". If he was detained under the Mental Health Act 2007 in a secure forensic hospital his risk of commission of a further serous sexual offence would be low because he would be in a controlled environment with access to potential victims limited. 88Dr Roberts listed 9 factors which he considered relevant to the Defendant's risk of committing further serious sex offences. These were: 1. Treatment Resistant Paranoid Schizophrenia. 2. A Psychopathic Personality Construct as stipulated in Professor Ogloff's report or a DSM-IV TR classification of Antisocial Personality Disorder and Narcissistic Personality traits. 3. Substance Abuse and Substance Dependence. 4. Insightlessness into the conditions stated above or the need for treatment. 5. An unrealistically optimistic outlook on the future. 6. Absence of any supports in the community. 7. A broad history of criminal behaviour including violent offending and an index offence including repeated sexual assault and attempted murder. 8. A propensity to externalize responsibility before the offending behaviour. 9. An apparent absence of motivation to access support or seek therapeutic intervention aimed at addressing all the issues listed above. 89Dr Roberts' conclusion was that by reason of the combination of those factors and, having regard for the actuarial assessments in the material he had seen, he considered it apparent that the Defendant represented an extremely high risk of general re-offending and violent re-offending and a high risk of a further opportunistic sexual offence or a violent offence taking on a sexual component. He said that the available information did not permit the diagnosis of a Paraphilia - namely that the Defendant did not fulfil criteria suggesting he had an aberrant sex drive. Dr Roberts said that the available information indicates that the offence was opportunistic in nature. Is there an "unacceptable risk"? 90Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk. 91Two things appear to me to emerge fairly clearly from the evidence of the psychiatrists and Professor Ogloff. The first is that the likelihood of re-offending by the Defendant derives from his personality disorder rather than the other conditions or disorders from which he suffers including his schizophrenia and substance abuse. The second thing is that whilst a good deal of the material points to likelihood of further violent offending, it only points to further sexual offending in an opportunistic way as the development from an offence of violence. This appears to be the precise course of events in relation to the index offences. 92On the whole of the evidence, but particularly having regard to the opinions of Professor Ogloff, Dr Ellis and Dr Roberts, I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. On both of the Instruments that provide a statistical basis for the risk of re-offending, the Defendant scores in the moderate to high level of risk of re-offending. Further, all of the experts were agreed that there is a high risk of further violent offending. Support for that is also to be found in statements that have been made by the Defendant to various witnesses who assessed him within the prison system. The Defendant demonstrated grudges against those whom he perceived were responsible for his treatment and things that had happened to him within the prison system. 93Of course, the legislation is not directed to supervising persons who are likely to commit further violent offences. The relevance of that threat of further violence by the Defendant is, according to the experts, the risk of a further sexual offence that is committed in an opportunistic way associated with a further offence of violence in a similar manner to the sex offences that formed part of the index offences. Those similar offences were so violent and so gratuitous that, in accepting the relationship between violence and sex offences expressed by the experts, I find that the Defendant poses an unacceptable risk in that way of committing a serious sex offence if he is not kept under supervision. The experts point to a number of things to justify the conclusion of a risk of opportunistic sexual offending including lack of impulsivity control and lack of empathy to his victims. 94I do not find that it is more likely than that that he will commit a further serious sex offence, but sub-s (3A) makes it unnecessary to find that it is more likely than not that he will do so before conclusion can be reached that he poses an unacceptable risk. Indeed, for reasons I will discuss, I think the likelihood of the Defendant committing a further serious sex offence is low but that the risk remains unacceptable: Thomas at [16]. What order should be made? 95A good deal of time in the case was taken up with issues concerning programs that might be undertaken by the Defendant if he was subject to a continuing detention order. Some of this evidence was directed to exploring why the Defendant had not undertaken sex offender programs whilst in prison. The reasons for his not doing so seem to me to be of secondary relevance. The fact is that he did not complete them either because he was not prepared to do so or because, in any event, he never progressed beyond Level 3.3 in the Behaviour Management Levels that would have enabled him to move from the HRMCC where it was not possible to participate in such programs. 96Whilst s 3(2) of the Act has as one of its objects the encouragement of serious sex offenders to undertake rehabilitation, I agree with what is implicit in RA Hulme J's analysis of the objects in Thomas that that is the secondary object and that the primary purpose of the Act is to ensure the safety and protection of the community. 97In the first instance, it seems to me, the Defendant declined to participate in the programs because he did not see himself as a sex offender. That appears, in particular, from responses he made to the experts who examined him where he said that he could not believe that he had done the things about which he was found guilty. However, it also appears to be the case that even if he had been willing to participate he would not have been able to do so because of his classification and location within the prison system. His unwillingness to participate is a matter I have taken into account in reaching the conclusion that he poses an unacceptable risk of committing a further serious sex offence. 98The other significant issue in relation to the various sex offender programs concerns the suitability of the Defendant to participate in those programs bearing in mind the various diagnoses of psychiatric illness that the experts are agreed upon, and the claimed lack of memory about the index offences. 99When asked to consider the suitability of the CUBIT program Dr Roberts said this: Even if you assumed that the psychosis is well treated, it would not be considered best practice for that mode of treatment to be used with him, although it would have some utility, but it would not be primarily used if you were directing the treatment approach. Dr Ellis said this: Can I add to that. It would generally be considered that to engage in therapy around an event, even in general terms, Mr Richardson aside, but to suggest that someone should embark on a course of therapy, to address an issue that the person cannot even recall - to be polite - would be an act of futility. It would be really quite ridiculous, but to someone to embark on therapy to counsel someone on an issue that they cannot recall, is a pointless exercise. 100Professor Ogloff also agreed that a significant aspect of programs like PREP, CORE AND CUBIT includes modules dealing with victim empathy, and that because individuals like the Defendant lack empathy and remorse in a way that seems intractable, those modules would be less effective for somebody like the Defendant. Professor Ogloff also agreed that if a person could not remember the circumstances of the offences then certain elements of the treatment were futile. He thought his psychotic illness would have to be stabilised before he would receive any benefit from the treatment programs. He thought the likelihood of getting him into the CUBIT program was very slim, and his view was that he would not put him in a group setting to treat him. 101Evidence was also given by Jayson Ware, a registered psychologist who was the Acting Executive Director of the Offender Services and Programs for the Department of Corrective Services. He agreed that it would be necessary to stabilise the Defendant in terms of his schizophrenia before he could be put in the CUBIT Program. He agreed with Dr Ellis that one would not recommend a group program for someone who had schizophrenia unless they were in a very stable stage of it. 102Mr Ware also highlighted the individualised intervention (as he described it) of the Corrective Services programs including CUBIT which he said continued throughout the entire treatment plan. Although I found Mr Ware to be an impressive witness who clearly understood the various programs and the benefits they could offer, he volunteered, when disagreeing with some evidence from Dr Ellis, that he had not personally assessed the Defendant. For that reason, I did not find his evidence to be as useful as the evidence provided by Dr Ellis, Dr Roberts, and Professor Ogloff. 103Evidence was also given by Naomi Prince, a registered psychologist, who is the Acting Team Leader of the Personality and Behavioural Disorders Unit (PBDU) with Corrective Services. She, like Mr Ware, had not assessed the Defendant. She explained in her affidavit about the PBDU, and that it had been requested to develop an intervention plan to assist the Defendant to progress through the correctional system with the goal of entering CUBIT. She thought that a period of 9 to 15 months would be necessary before he would be able to enter CUBIT. This would involve the reclassification of the Defendant to enable him to move from the HRMCC. That in turn was said to be a stepwise progression based on the combined approach of ongoing psychiatric care and behavioural interventions. I note in this regard that the Defendant had not managed to achieve the appropriate classification to enable a move from HMRCC in the 9 years that he was there. 104Ms Prince accepted in cross-examination that until the Mental Health Team decided that the Defendant was able to work with Ms Prince's team she would not be able to proceed with what she proposed. 105Dr Roberts was asked when preparing his report to outline from a psychiatric perspective the merit or otherwise of the plan outlined by Ms Prince and Mr Ware. Dr Roberts said that the prospect of successful rehabilitation during the period of ongoing incarceration, where attempts over the past 16 years of engaging the Defendant in treatment had failed, appears bleak. He said that psychological intervention was likely to prove futile. This was because the Defendant lacked insight into his need for treatment and coerced psychological treatment was unlikely to yield a positive outcome. He did say, however, that a further period of incarceration would facilitate definitive treatment of the Defendant's psychotic illness. That cannot be a proper basis, of itself, for incarcerating the Defendant further. 106This evidence concerning the programs offered by the Department of Corrective Services was particularly significant when considering the issue of whether the result of my finding that the Defendant poses an unacceptable risk of committing a further serious sex offence should be a continuing detention order or an extended supervision order. I am not persuaded on the balance of probabilities that if the Defendant was required to participate in these programs whilst detained in custody the programs would be likely to be successful in reducing the risk that the Defendant poses in terms of the commission of a further serious sex offence. Dr Ellis stressed that it was the personality disorder that would most likely have contributed to the sexual offences as it occurred in the index offences, and that the timeline for dealing with the personality disorder (the impulsivity, the lack of empathy etc) would be in the order of a decade. Dr Roberts seemed to have a similar view. Like Dr Ellis, he considered that the psychotic illness had to be treated first, but he did not think that the success of treatment of the personality disorder could be reasonably predicted. 107Mr Hans Ellfeldt, a clinical advisor for the Violent Offender Programs with Corrective Services, and also a registered psychologist, also considered that there was a great deal of uncertainty about whether the Defendant could participate in general inmate joint therapeutic programs of an intensive nature. Given the doubts expressed by the psychiatrists and psychologists, it is doubtful if the other object of the Act referred to in s 3(2) (to encourage serious sex offenders to undertake rehabilitation) would be achieved by making a continuing detention order. 108There are other matters which need to be balanced in terms of what was said by Steytler P and Buss JA in GTR about the unacceptable nature of the risk to determine the appropriate order. First, the only sex offences with which the Defendant has been charged or convicted were the sex offences in the index offences. Secondly, his criminal record only contains one other offence of violence some 6 years before the index offences when he was convicted and sentenced to 3 months imprisonment for intentionally causing injury. Both the charge itself and the sentence he received suggest that the offence could be regarded as one of low level. 109Thirdly, it now seems clear that, although there was only that offence and the index offences which make up his record of violence and sexual offences, he was at the time suffering from the personality disorders, he had an undiagnosed schizophrenia, and he was abusing alcohol and other substances to a marked extent. One might reasonably have expected other sexual offences and, certainly, more offences of violence throughout that time, particularly when he was in his late teens and early twenties. That provides some basis for thinking that if there is further offending of any sort it will be rare. 110Fourthly, the Defendant does not appear to exhibit any symptoms of an identifiable Paraphilia or sexual deviancy. I accept that those who examined him could not reach a final view about that matter because of the reluctance of the Defendant to speak freely about matters concerning his sexual life and fantasies. Nevertheless, there is almost nothing in any of the material from the Department of Corrective Services or Justice Health that indicates any particular interest in sexual matters by the Defendant. The Crown was able to identify only one entry in the prison records of a reference to sex by the Defendant. This appeared in the progress notes of Vicky Walcott, a counsellor at the HRMCC. On 13 August 2002 the Defendant was telling her about a male voice that he hears in his head, and he told her that it made him think thoughts he had not wanted to think about for many years. She recorded: Craig said "They made me think of sexual assault things and sex". Craig had a half- smile on his face when he said the word sex. 111On the other hand, the Defendant freely expressed thoughts of violence to those who dealt with him within the prison system, and in some cases identified the persons against whom he wished to perpetrate that violence. That provides some basis for the view that the Defendant made almost no mention of sexual matters not because he was deliberately suppressing those thoughts from those he dealt with, but because he, in fact, has no Paraphilia or sexual deviance. 112Professor Ogloff makes the point, which I accept, that most men who offend against adults by rape or other sexual assaulting behaviour do not have a Paraphilia of sadism or a sexual deviance. Nevertheless, where such matters are predictors of further sexual offending, and where the Defendant has expressed violent thoughts but not sexually violent thoughts, the absence of Paraphilia and a sexual deviance is a matter to be taken into account, and one which assists the view that the likelihood of further offending is low even though he presents an unacceptable risk. 113To keep somebody incarcerated because they might commit another offence at some time in the future is a very serious matter. Although it can be accepted that the legislation under consideration was designed particularly for repeat offenders and, in particular, for repeat offenders who could be regarded as paedophiles, the legislation is clearly capable of applying to somebody in the position of the Defendant. Because it is such a serious matter to incarcerate someone against the possibility of committing a future offence, the level of satisfaction before that can be done must be to a high degree of probability. 114The Plaintiff argues that adequate supervision would not be provided by an extended supervision order. It points to 3 matters in particular, in addition to the matters referred to in s 17(4), which have been considered earlier in this judgment. 115The first is the statement of Professor Ogloff that "Given Mr. Richardson's level of instability and lack of treatment ... his level of risk could not be adequately managed by an extended supervision order at this time." Whilst his opinion is entitled to great respect, that opinion is one of a number of factors which I am required to weigh in the balance concerning the appropriate order which should be made. In any event, I would need to be satisfied to a high degree of probability that adequate supervision could not be provided by an extended supervision order. In my view, the "adequate supervision" which is referred in the second part of s 17(3) is not supervision that will eliminate the risk of a further serious sex offence but supervision that is reasonably likely to reduce the risk of any further offence. 116Secondly, the Plaintiff relies on various breaches of parole and other orders to suggest that the Defendant is unlikely to comply with conditions attached to any supervision order. Whilst it can be accepted that the Defendant has breached a number of orders of that type these breaches took place between 1986 and 1990. The last breach was more than 20 years ago. This is a matter to be given minimal weight. 117Thirdly, the Plaintiff points to concerns of both Dr Ellis and Gavin Rowan, the Senior Compliance and Monitoring Officer with the Community Compliance and Monitoring Group within Corrective Services. In his report of 28 January 2011 Dr Ellis discusses how he believes the Defendant should be treated to address long-term risks. He considers that the Defendant should be treated in a high security forensic hospital without any leave for a 2 year period. He then says that he should be kept for a further 2 years in a medium security forensic hospital where some escorted and then unescorted leave could be given. Only after that period would Dr Ellis recommend a period in the community under supervision. 118Dr Ellis's reasons for this can be found in the last paragraph of his report as follows: He has a history of non-compliance with community parole supervision including non-attendance, drug and alcohol use, itinerancy and attitudes expressed which do not support supervision. He has little practiced [sic] skills to live independently. Without a robust treatment approach beforehand, supervision in the community would likely be fraught with non-compliance with orders, little scope for individual treatment engagement and breaches resulting in return to custody. 119If the legislation enabled people to be incarcerated beyond a prison term based on risks of further criminal behaviour generally, or further violent behaviour, or further anti-social behaviour, Dr Ellis's views in this regard might have more force. The legislation is concerned only with the unacceptable risk that an offender will commit a further serious sex offence. 120It seems clear from other portions of Dr Ellis's report that the treatment plan that he details is also concerned with the violent tendencies of the Defendant and his "repeated threats and history of actual assaults, even within a supervised environment" (Dr Ellis at p 14). Although I must have regard to the extent to which the offender can reasonably and practicably be managed in the community the issue is whether an extended supervision order will provide adequate supervision against the unacceptable risk of the commission of a further serious sex offence. 121Mr Rowan raises a number of legitimate concerns based on the material he has seen. Mr Rowan has not met the Defendant but I do not think that his opinions are in any way diminished by that fact. It would be fair to say that, for the most part, the concerns which he expressed in a briefing note to an officer of the Department of Justice and Attorney-General derive from the Defendant's violence issues. Those issues are overlaid by his mental health issues. 122Mr Rowan expresses a number of concerns about the Defendant accommodating himself to life outside prison and, in particular, outside the high-security prison in which he has lived for a number of years. He identifies the significant problem that, unlike a number of long-term prisoners, the Defendant has not received lower security classifications to ease his return to the community. Those are valid concerns but cannot in themselves provide a reason for continuing to incarcerate the Defendant rather than releasing him on an extended supervision regime. 123Mr Rowan appeared to assume that the reason particular programs in prison were not undertaken by the Defendant were not undertaken by his choice. He also seemed to assume that the Defendant has not undertaken any therapeutic programs within the custodial setting. He holds the view that if the Defendant does not complete the CUBIT program in custody his risk is considered too high for participation in community sex offender group treatment programs. 124I have no confidence, based on the evidence of the experts, that the programs which are available within the prison system would be particularly suitable for the Defendant, nor that he would be likely to emerge from the prison system in a state any, or much, different from the state he is now in. Moreover, I have concerns arising from the fact that he never obtained a suitable level of classification whilst in the prison system that enabled him to participate in the programs. If he were put back in the HRMCC the proposed courses would not be available to him. I do not consider that the object of the Act to to encourage serious sex offenders to undertake rehabilitation would be achieved by making a continuing detention order. 125I do not seek to minimise the concerns that Mr Rowan has expressed and I accept that those concerns go to the issue of whether adequate supervision will be provided by an extended supervision order. However, I note that Mr Rowan says that CCMG officers are trained to deal with high-risk offenders who are subject to supervision in the community, that they assist offenders to reintegrate into the community with the aim of reducing the risk of recidivism, that they assist an offender in areas of health and education and in exploring employment and rehabilitation opportunities, and that they are available 24 hours a day, 7 days a week with a psychologist on the staff. I note further that the Community Offender Support Program has 2 centres within the Sydney metropolitan area which provides a communal living environment similar to that of a routine gaol wing, and that these centres are staffed by welfare and support staff. 126Further, although Mr Rowan's primary opinion is that the Defendant should not yet be released into the community in any form, he puts forward a number of highly appropriate conditions that should be attached to the Defendant in the event that he is at some time released. 127Whilst I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision, I am not satisfied to a high degree of probability that adequate supervision will not be provided by an extended supervision order, particularly bearing in mind the matters I have referred to in paras [108]-[112] above. 128Whilst bearing in mind the drawbacks of comparing the outcome of cases based on a similarity of some of the facts in each case, I note that in Attorney-General v Fisher [2007] QSC 341 the Defendant was also a person who had been convicted of one serious sexual offence (within the meaning of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)), although he had also been convicted of an offence of indecent assault which fell outside the definition. He had other convictions for violence, and the psychiatrist thought that further violent offending was likely because of his Anti-Social Personality Disorder and rating on the psychopathy scale. Further, the psychiatrist believed he would only be likely to offend sexually in an opportunistic way arising from the violence. He was a young person with limited insight into his offending and problems. He was rated by the psychiatrists using Static 99 as well as other instruments that assessed dynamic elements in a similar fashion to the RSVP. MacKenzie J considered that in all the circumstances a continuing detention order was not required but that an extended supervision order should be made with a large number of conditions attached to it. 129It does not seem to me to be without relevance that the Defendant is now 16 years older than he was when he was admitted to prison, being now aged almost 44 years, and recently suffered such a severe heart attack that he was in an induced coma for some days and it was thought he would not survive. Even before that occurred, and for what it is worth, I note that for the 2 days the Defendant attended Court during the hearing of this matter his behaviour could not be faulted. I accept that part of the reason for that may be that he was then compliant with his medication, but I mention it because I do not have any concerns based on the Defendant's behaviour during the hearing. 130Dr Ellis appeared to accept that scheduling under the Mental Health Act may be the appropriate care for the Defendant at least in the first instance after he is released. I have already mentioned the fact that the Defendant is currently held under the Mental Health Act 2007. The order detaining him has been extended for a 3 month period until September 2011. To the extent that Mr Rowan's concerns include self-harm by the Defendant, and a real threat of harm to others, the provisions of the Mental Health Act are available to detain the Defendant until those issues are stabilised to the satisfaction of the treating psychiatrist. Conclusion 131For the reasons I have given I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I am not satisfied that adequate supervision will not be provided by an extended supervision order. Because the psychiatrists and the psychologists stressed the length of time it would take to assist the Defendant I consider that the extended supervision order should be for a period of 5 years. 132The parties should give consideration to the conditions of the extended supervision order and bring in Short Minutes to that effect. I can indicate to the parties that the conditions set out by Mr Rowan in his briefing note annexed to his affidavit of 17 February 2011 should be given serious consideration in this regard. I also draw attention to the conditions imposed in Fisher at [41] without necessarily suggesting that all those conditions would be necessary. ********** 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. Decision last updated: 03 June 2011