ATTORNEY GENERAL FOR NEW SOUTH WALES v TILLMAN [2007] NSWCA 119 (24 May 2007)

Last Updated: 25 May 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: ATTORNEY GENERAL FOR NEW SOUTH WALES v TILLMAN [2007] NSWCA 119


FILE NUMBER(S):
40244/2007

HEARING DATE(S): 3 May 2007

JUDGMENT DATE: 24 May 2007

PARTIES:
ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES
Kenneth Davidson TILLMAN

JUDGMENT OF: Mason P Santow JA Tobias JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 11830/2007

LOWER COURT JUDICIAL OFFICER: Hoeben J

LOWER COURT DATE OF DECISION: 17 April 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 356

COUNSEL:
Appellant: L Babb/ A Mitchelmore
Respondent: A P Cook

SOLICITORS:
Appellant: I V Knight Crown Solicitor's Office
Respondent: Aboriginal Legal Service (NSW/ACT) Limited

CATCHWORDS:
CRIMINAL LAW – Probation, parole, release on licence and remissions – interim detention order – interim supervision order – where respondent has served sentence – where respondent has extensive criminal history for serious offences of rape and sexual assault – where evidence of high risk of recidivism
STATUTES – Act of parliament – interpretation – rules of construction – reading statute as a whole – particular words – “may” – whether “may” means “must” – whether it imports a true discretion – Crimes (Serious Sexual Offenders) Act 2006, ss 8, 16
STATUTES – Act of parliament – interpretation – rules of construction – particular rules – presumption against restricting rights – deprivation of liberty – where objects of legislation are protective, not punitive
STATUTES – Act of parliament – interpretation – whether discretion involved – location of discretion in section – where section merely enlivened on the satisfaction of elements – relevance of discretionary matters – not relevant when determining whether power is enlivened – Crimes (Serious Sex Offenders Act) 2006, s 16(1)(a) and 16(1)(b)
APPEAL AND NEW TRIAL – interference with discretion of court below – wrong principle – proper exercise of discretion – whether to order interim detention or supervision order – where refusal to order interim detention order – incorrect regard had to likely final order – incorrect regard had to lateness of application for order – fairness to accused – where other avenues open for redress – significance of attitude to rehabilitation – inadequacy of supervision orders – Crimes (Serious Sex Offenders Act) 2006, ss 16, 17(4)(e)
APPEAL AND NEW TRIAL – interference with discretion of court below – interference with judge’s finding of fact – proof and evidence – where evidence of risk all one way – Crimes (Serious Sex Offenders Act) 2006, ss 16, 17(4)
APPEAL AND NEW TRIAL – interference with discretion of court below – interference with judge’s finding of fact – error of fact – where trial judge held there was no history of attacks against random individuals

LEGISLATION CITED:
Crimes (Serious Sex Offenders) Act 2006
Supreme Court Act 1970

CASES CITED:
Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 356
Attorney-General v Gallagher [2006] NSWSC 340
Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51
Ex parte Gleeson [1907] VLR 368
Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106
Leach v R (2007) 232 ALR 325, [2007] HCA 3
Mitchell v The Queen (1996) 184 CLR 333

DECISION:
Appeal upheld.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40244/07

MASON P

SANTOW JA

TOBIAS JA

Thursday 24 May 2007

ATTORNEY GENERAL FOR NEW SOUTH WALES

v Kenneth Davidson TILLMAN

JUDGMENT

1 THE COURT: At the conclusion of the expedited hearing, on 3 May, the Court made a brief statement of reasons and pronounced the following orders:

1. Grant leave to appeal.

2. Direct appellant to file and serve notice of appeal within 3 days.

3. Appeal upheld.

4. Set aside the order made in para 61(1) of the judgment of Hoeben J dated 17 April 2007.

5. In lieu, order pursuant to s16(1) of the Crimes (Serious Sex Offenders) Act 2006, that the respondent be detained at a correctional centre on an interim basis for a period of 28 days from today.

6. Order pursuant to s20(1) of the Act that a warrant issue for the committal of the respondent to a correctional centre for the period specified in order 5.

7. No order as to costs.
8. Direct that these orders be entered forthwith and an appropriate warrant issued.

2 We now provide a fuller statement of our reasons.

Overview of the Act

3 The Crimes (Serious Sex Offenders) Act 2006 states (s3) that its objects are:

to provide for the extended supervision and continuing detention of serious sex offenders so as:

(a) to ensure the safety and protection of the community, and

(b) to facilitate the rehabilitation of serious sex offenders.

4 The Act empowers the Supreme Court, on the application of the Attorney General, to make a range of orders having the effect of extending the period of control over serious sex offenders beyond the term of a sentence of imprisonment imposed in consequence of conviction for sex offences.

5 The stated objects reveal that the legislation is protective rather than punitive in its intent. Proceedings under it are civil proceedings that must be brought in the Supreme Court. However, when considering whether or not certain final orders should be made, the Court is required to be “satisfied to a high degree of probability” of certain pre-conditions (see ss9(2), 17(2)-(3)). There are also procedural thresholds relating to court-ordered psychiatric examinations of the offender (ss7(4), 15(4)).

6 Part 2 of the Act (ss6-13) deals with extended supervision orders and interim supervision orders. Part 3 (ss14-20) deals with continuing detention orders and interim detention orders.

7 Detention orders have the effect of committing the offender to a correctional centre or extending his or her detention beyond the current custody arrangements.

8 Supervision orders effectively permit the offender to be released upon the expiry of his or her current custody or supervision, subject to a range of conditions determined by the Court as appropriate for the “adequate supervision” (s17(3)) of the offender. The failure to comply with the requirements of a supervision order is an offence with a maximum penalty of 100 penalty units or imprisonment for two years, or both (s12).

“Final” orders

9 The Act authorises the Attorney General to apply for two types of final orders: an “extended supervision order” (s6) and a “continuing detention order” (s14). (The expression “final” does not appear in the Act, although other types of orders are labelled “interim” (see below).) Each type of final order may be varied or revoked on the application of the Attorney General or the offender (ss13, 19).

10 The distinction between a supervision order and a detention order is of some importance. A supervision order, as the name implies, involves no detention but permits a variety of conditions “as the Supreme Court considers appropriate”, but including those specified in s11. Those conditions can impose constraint as well as positive obligations. Most from their subject matter, appear directed to the capacity to supervise such a person. However they can extend to ordering mandatory participation in treatment and rehabilitation programs. A detention order, as the name implies imposes continued custodial detention. A continuing detention order, moreover, “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.” In determining whether or not to make a continuing detention order or extended supervision order the Supreme Court must have regard to the matters specified in s17(4) “in addition to any other matter it considers relevant”. Generally speaking, those matters go to “the safety of the community”, and include a number of specific matters, bearing both on the above and on “the likelihood that the offender will in future commit offences of a sexual nature”.

11 Applications for the two categories of order may only be made with respect to a “sex offender”, a term defined in s4 to mean a person who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence, other than an offence committed while the person was a child. “Serious sex offence” is itself defined in s5.

12 For an extended supervision order, s6(1) requires the application to be made at a time when the offender is in custody or under supervision:

(a) while serving a sentence of imprisonment:

(i) for a serious sex offence, or

(ii) for an offence of sexual nature,

whether the sentence is being served by way of full-time, periodic or home detention and whether the offender is in custody or on release on parole, or

(b) pursuant to an existing extended supervision order or continuing detention order,

referred to in this Part as his or her current custody or supervision.

13 For a continuing detention order, the application must be made at a time when the offender is in custody in a correctional centre (s14(1)):

(a) while serving a sentence of imprisonment:

(i) for a serious sex offence, or

(ii) for an offence of a sexual nature, or

(b) pursuant to an existing continuing detention order,

referred to in this Part as his or her current custody.

14 The application may not be made “until the last 6 months of the offender’s current custody or supervision,” in the case of an extended supervision order (see 6(2)); or “until the last 6 months of the offender’s current custody”, in the case of a continuing detention order (see s14(2)). In each instance, the application must be supported by documentation that addresses various matters and that includes an expert report that assesses the likelihood of the offender committing a further serious sex offence (ss6(3), 14(3)).

15 An application for a continuing detention order may be determined by making such an order, by making an extended supervision order or by dismissing the application (s17(1)).

16 For each category of final order, the Act provides pre-trial procedures (ss7, 15). These include conducting a preliminary hearing that requires the Court to consider whether the matters alleged in the supporting documentation would justify the making of a final order. If it would, psychiatric examinations must be arranged. If it would not, the substantive application must be dismissed (ss7(4), (5), 15(4), (5)).

17 Five years is the maximum permitted for either category of final order, with time running from the date the order is made, or when the offender’s current custody expires, whichever is the later. The Act allows the Court to specify a lesser period and the Attorney General to seek a second or subsequent order against the same offender (ss10, 18).
18 The standard of proof is high for the making of final orders. Section 17(2) and (3) (see also s9(2) that duplicates s17(2)) provides:

(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.

Interim orders

19 The Act also authorises the making of interim orders.

20 Interim supervision orders are addressed in s8, which provides:

(1) If, in proceedings on an application for an extended supervision order, it appears to the Supreme Court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order,

the Supreme Court may make an order for the interim supervision of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(3) An order under this section may be renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months.

21 Conditions may be imposed on an interim supervision order (s11) and it is a criminal offence to fail to comply with them (s12).

22 Interim detention orders are addressed in s16, which provides:

(1) If, in proceedings on an application for a continuing detention order, it appears to the Supreme Court:

(a) that the offender’s current custody will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order,

the Supreme Court may make an order for the interim detention of the offender.

(2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order.

(3) An order under this section may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

23 Each category of interim order may be varied or revoked on the application of the Attorney General or the offender (ss13, 19).

The scope of ss8 and 16: powers in the nature of duties or discretionary powers?

24 By placing ss8(1) and 16(1) side by side, it can be seen that the power in s8(1) is enlivened if the proceedings include a claim for an extended supervision order and that the power in s16(1) is enlivened if the proceedings include a claim for a continuing detention order. Since each form of final relief was sought in the present case, it was open to the Court to grant either form of interim relief if the circumstances permitted it, as they were found to do.

25 For each provision, the power to make the respective interim order is enlivened if it “appears” to the Court that the conditions in (a) and (b) are satisfied.

26 There was never a question about condition (a) in the instant case.

27 The terms of condition (b) make it plain that the Court’s function under the respective provisions is to examine the “supporting documentation” (as to which see ss6(3) and 14(3)) to determine what is “alleged” in that documentation; and to decide whether it “would, if proved, justify” the making of the stipulated final order.

28 As regards interim supervision orders, it need only appear that the matters alleged would justify the making of an extended supervision order (s8(1)(b)).

29 As regards interim detention orders, the power is enlivened if the matters would justify the making of either type of final order (s16(1)(b)). The word “or” in s16(1)(b) indicates that an interim detention order is capable of being made even if the matters alleged would only justify the making of an extended supervision order, so long as the substantive proceedings contain a claim for a continuing detention order. See also s17(1).

30 There was debate before us as to whether the subsections contain a power in the nature of a duty or a discretionary power. It had been common ground below that a true discretion was involved, and Hoeben J accepted this proposition (J15). (See also Attorney-General v Gallagher [2006] NSWSC 340 at [36] (McClellan CJ at CL)). This also was the initial position of the appellant on appeal although, responding to questions from the Bench, the appellant advanced some arguments in favour of construing the “may” as a “must”.

31 The principles indicating the interpretation of the word “may” in such circumstances have recently been expounded by the High Court (Leach v R (2007) 232 ALR 325, [2007] HCA 3).

32 In our view, the powers under the respective provisions entail a discretion, enabling the Court to refuse to make an order in a proper case even if conditions (a) and (b) are satisfied. It is sufficient to explain why this is so in the context of s16(1), the presently relevant provision.

33 The joint judgment of Gummow, Hayne, Heydon and Crennan JJ in Leach recognised (at [38]) that a provision stating that a court or body “may” do something if satisfied of certain matters did not necessarily show that the court had a discretion to exercise. In some situations, for example as discussed in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 and Mitchell v The Queen (1996) 184 CLR 333, the word “may” will be found to confer a power which is to be exercised upon the court being satisfied of the matters described in the provision. Leach involved such a provision.

34 The onus lies on those who assert that the word “may” has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning (Ex parte Gleeson [1907] VLR 368 at 373 per Cussen J). The issue must be determined in the particular statutory context.

35 Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, (2006), Chatswood, state (at [11.3]) that where the purpose or object of the Act would be defeated if a task were not carried out the court will rule that the provision is obligatory and the possessor of the power has no discretion to refuse to exercise it.

36 In some situations there may appear to be no reason to infer a discretion once the repository of the power is satisfied that the circumstances entitle the recipient to a favourable exercise of it (see, eg Finance Facilities (involving a taxation rebate), Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557 (involving the right to postal and telegraphic services) and Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 (involving a refund of overpaid tax)).

37 By contrast, the present legislation is restrictive of liberty and could not be seen as an enactment for the benefit of the offender. The stated objects of the Act do not require the provisions in question to be interpreted as involving no element of discretion.

38 Mitchell involved a power to order that a prisoner was not eligible for parole if that was considered “appropriate”. The power was conditional upon a balance being struck, but once this occurred there was really nothing further to weigh. By contrast, s16(1) confers a power to order interim detention by reference only to it appearing that conditions (a) and (b) were satisfied. The terms of condition (b) address the documentation supporting the claim for final relief upon the assumption that the matters alleged are proved. They do not indicate criteria that require to be fulfilled for a favourable exercise of the power to make an interim order.

39 Section 27 states that the Act does not affect the right of any party to proceedings under the Act to call witnesses and give evidence, or to cross-examine witnesses. One would have thought such a provision unnecessary as regards the making of final orders. And the powers to make interim orders are capable of exercise from time to time, obviously, in light of the situation then prevailing. Accordingly, for s27 to have effective work to do, it would appear to be directed at the situation of an offender seeking to resist the making of an interim order where otherwise paras (a) and (b) of ss8 and 16 are formally satisfied. There is no reason why, for instance, an offender could not seek to establish that the matters alleged in the supporting documentation were incapable of proof. At the very least the provision reinforces the conclusion that “may” imports a judicial discretion.

40 A further indicator that the power is not in the nature of a duty stems from the fact that, if it were a duty, ss8 and 16 would present the Court with incompatible statutory commands in a case like the present where each category of final relief is sought and where the supporting documentation discloses that either final order would be justified.

41 The Act draws certain distinctions that are, in our view, relevant to the issue at hand. The first relates to the documentary information that “must” accompany the application for a continuing detention order (see s14(3)) and that which “may” be indicated in the application (see s14(4)). The second distinction is between the “documentation” required to support the application when it is filed (s14(3)) or which must be disclosed (s15(2)), on the one hand, and the “evidence” upon which the application will ultimately be determined by the Supreme Court, on the other (see s17(4)). That “evidence” will obviously include relevant material tendered by the offender in opposition to the application. Furthermore, there is nothing to prohibit the Attorney General from supplementing the original “documentation” by proffering additional evidence, including for example, evidence arising out of the psychiatric examinations of the offender that will take place if and when ordered in accordance with the pre-trial procedure stipulated in s15(4).

42 Accordingly, a true judicial discretion is involved.

The interim nature of orders under ss8 and 16

43 The learned judge approached the application on the basis that the lesser of the two interim orders should be made unless he was persuaded that interim detention was warranted in order to provide adequate protection to the community (see Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 356 at J56-57, 60). References hereafter to particular paragraphs of these reasons are indicated J1, J2 etc).

44 There is a strong presumption against construing a statute so that it trenches upon a fundamental right such as the liberty of the subject. However, that presumption is weakened in the present context and would not prevail over the clear and explicit language of the statute with its clearly stated protective and rehabilitating objects. Thus s16 applies where the offender is already in custody and where the claim for final relief is for a continuing detention order. In the instant case, the “supporting documentation” demonstrated that, if proved, the making of a continuing detention order would be justified. Moreover s16(2) and (3) sets the outer limits for the period of any interim detention order and any renewals, namely 28 days maximum for any individual order and no more than 3 months in total with any renewed orders.

45 The statutory objects in this extraordinary legislation are directed at “ensuring” the safety and protection of the community and “facilitating” rehabilitation of serious sex offenders. They also weigh against any strong presumption in favour of liberty prevailing, at least at the interim stage. A final hearing can be brought on with expedition.

46 We see no basis for discounting unchallenged evidence in a particular case that points strongly in the direction of risk-avoidance at the interim stage. However, we do not suggest that there is a general presumption in favour of maintaining the custodial status quo when interim relief is in question.
47 We now address the facts of this particular case.

Commencement of proceedings

48 On 11 April 2007 the Attorney General filed a summons claiming a continuing detention order that the respondent be detained in a correctional centre for five years from the date of the order. In the alternative, the Attorney claimed an extended supervision order for a period of five years from the date of the order, with a set of conditions proposed in the summons.

49 The Act had commenced on the date of assent, 3 April 2006. The respondent was on notice of the possibility that an application might be made from as early as 5 September 2006, but he received no confirmation until 11 April 2007 when served with the summons.

50 The Crown Solicitor had first received instructions to advise the appellant on a possible application on 5 April 2007.

51 When served with process, the respondent was imprisoned at the Long Bay Correctional Centre serving the final week of a lengthy sentence of full time imprisonment for serious sex offences. The sentence was to expire on Wednesday 18 April 2007 and he was due to be released from custody on that day.

52 The Attorney General signalled his intention to seek one or other category of interim order in paras 1 - 3 of the summons. A notice of motion was also filed on 11 April and an order made ex parte that day standing the proceedings on the motion over to Monday 16 April. The motion, which was directed to be served by 6pm on 11 April, sought to have the application for interim relief heard and determined on an urgent basis on or before 17 April 2007; and the hearing of the other claims for relief in the summons to be expedited.
53 Four bulky affidavits were filed on Friday 13 April 2007. There was an offer to serve them on counsel for the respondent that day, but in the upshot they were not served until Monday 16 April. The reports attached to some of the affidavits had previously been made available to the respondent.

54 The preliminary hearing and the motion came on for hearing on 16 April before Hoeben J.

55 The summons was filed and served within the statutory time-frames, but its lateness as regards the imminent release of the respondent put the offender and the Court at considerable disadvantage. The exigencies of the situation left Hoeben J with a very short opportunity to address a complex legal and factual situation. The delay on the part of the Attorney General was unexplained and is to be regretted.

56 The Act requires a preliminary hearing into the application to be conducted by the Supreme Court within 28 days after the application is filed or within such further time as the Supreme Court may allow (s15(3)). If, following the preliminary hearing the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a final order, the Court must make certain orders for the psychiatric examination of the offender (s15(4)). Such orders were made by Hoeben J on 17 April and are not challenged in this appeal.

57 The application for substantive relief is yet to be heard in the Supreme Court.

Orders challenged

58 This appeal related to the orders made by Hoeben J on 17 April 2007 in response to the notice of motion.

59 Hoeben J rejected the Attorney General’s application for an interim detention order under s16(1) of the Act. This was the order under appeal.

60 Instead, his Honour made a 28 day interim supervision order under s8(1) subject to conditions (a) – (i) set out at par 116 below.

61 His Honour’s reasons refer in detail to the respondent’s background and the evidentiary and discretionary matters upon which the decision was based. Our reasons should be read subject to the fuller statement of factual material provided in the judgment of Hoeben J. The matters to which the appellant has directed critical attention will of course be addressed specifically.

62 The case on appeal was stated as follows in the Claimant’s Summary of Argument:

2. The primary contention of the Attorney General is that Hoeben J erred in making an interim supervision order, rather than an interim detention order under s16(1) of the Act. His Honour’s conclusion that an interim supervision order should be made was the product of a misconstruction of the task with which his Honour was charged under s16.

3. In particular, in reaching the conclusion that an interim detention order should not be made, the Attorney submits that his Honour:

(a) erred in his categorisation of the Opponent’s sexual offences; and

(b) erred in taking into account the Opponent’s refusal to attend the custodial treatment program for sex offenders as a reason for refusing to make an interim detention order, rather than a factor relevant to assessing the risk of the Opponent re-offending.

4. Further, the Attorney submits that Hoeben J erred in considering that the delay in making the application prejudiced the ability of the Opponent to put on evidence, and that this perceived prejudice was a factor relevant to the exercise of discretion to make an interim detention order. Although this consideration was not determinative, his Honour’s opinion that this was a relevant consideration is at odds with the approach to preliminary applications under the Act adopted by McClelland CJ at CL in Attorney General for New South Wales v Gallagher [2007] NSWSC 420.

63 The reasons why, as a matter of discretion, the claim was rejected are found in J53-60 which will be set out and addressed below.

The factual strength of the appellant’s claims for an interim detention order

64 Some factual background is required in order to address the appellant’s challenges and to lay the groundwork for explaining the order we made upon a re-exercise of the judicial discretion consequent upon finding appealable error.

65 As indicated, the discretion to make either category of interim order was engaged because of the claims for final relief that were made in the alternative in the summons and because the supporting documentation demonstrated that if the matters alleged were proved to the necessary standard on a final hearing the Court would be justified in granting either category of final relief.

66 Not only did the “documentation” support this proposition. The four unchallenged affidavits also did double duty as presenting compelling evidence for the exercise of the discretion in favour of the Attorney General’s preferred interim solution.

67 Four affidavits dated 13 April 2007 that had been served that day were read and their exhibits were tendered. One of the affidavits contained detailed information about the offender’s criminal record. The other three were from psychologists.

68 The affidavit of Ms Callan, a solicitor, provided details of the respondent’s extensive history of offences of a sexual nature, most of them being “serious sex offences” within s5 of the Act. There were other offences, not of a sexual nature, for which the respondent has been convicted and sentenced to terms of imprisonment (see J21).

69 This evidence also demonstrated that imprisonment and the threat of imprisonment had had little or no deterrent impact upon the respondent.

70 The respondent was born on 25 January 1962 and is 45 years old. His criminal record in relation to sexual offences is as follows:

Date of Conviction	Conviction	Details of sentence
23 February 1977	Rape of 22 year old woman and larceny in a dwelling	8 years imprisonment with a 3 year non-parole period (sentenced 8 September 1977)
10 October 1984	Sexual intercourse with a minor (victim 13 year old female)	6 years imprisonment, with a non-parole period of 3 years (sentenced 9 November 1984)
17 September 1985	Committing an act of indecency on a 15 year old girl	Deferred sentence upon payment of a $500 bond (sentenced 17 September 1985
7 November 1990	Two counts of sexual intercourse with a person under 16 and assault with an act of indecency on a person under 16 (victim 10 year old female)	6 years imprisonment with a non-parole period of 4 years and 6 months in respect of the first count of sexual intercourse; 2 years imprisonment in respect of the remaining two offences (sentenced 7 November 1990)
6 March 1998	Two counts of sexual intercourse with a person under 10, and one count of attempted sexual intercourse (victim 9 year old female); common assault.	10 years imprisonment to date from 19 April 1997 with a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months to expire on 18 April 2007. Sentence of 3 months imprisonment for assault to be served concurrently.

71 The offence of sexual intercourse with a 13 year old female victim for which the respondent was convicted on 10 October 1984 had occurred on 7 August 1982 in breach of parole related to the 1977 rape conviction.

72 The offences of sexual intercourse with a 10 year old female victim, for which the respondent was convicted on 7 November 1990 and sentenced to six years imprisonment, occurred in August 1989, five months after the respondent had been released from custody when imprisoned for a driving offence. The respondent served the entire term of imprisonment for these sexual offences, being released from custody on 9 August 1995.

73 The offences involving a nine year old female victim for which the respondent was convicted on 6 March 1998 occurred in July 1996, within 12 months of his release from previous custody. Following his conviction on 6 March 1998, the respondent served the entirety of the 10 year term of imprisonment that was imposed (dating from 19 April 1997) because the Parole Authority determined to refuse parole.

74 Victoria Bel is a specialist psychologist with the Department of Corrective Services at Long Bay Correctional Centre. She has extensive experience in risk assessment of sex offenders. She has interviewed the respondent on numerous occasions and has often tried to encourage him to participate in the Custody Based Intensive Treatment Sex Offender Program (CUBIT). The respondent has consistently refused to participate in that program. He told Ms Bel that “CUBIT is not appropriate for Aboriginal inmates like me” as well as offering other explanations.

75 Ms Bel’s affidavit concluded with the following summary:

Mr Tillman’s history of sexual offending indicates victims across a broad age spectrum, and offending behaviour which includes predatory behaviour on victims who are strangers to him, whom he met in relatively public places. The range of offending behaviour would, in my opinion, make it extremely difficult to impose conditions on his release which would meet every group of victim against whom Mr Tillman poses a risk of re-offending, and every area in which he might do so. For example, while it might be possible to place some restrictions on with whom Mr Tillman can live, and interact with on a day to day basis, it will not be possible to restrict him completely from everyday activities, such as going to the supermarket.

76 Dr Lennings is a registered psychologist whose report is based on a review of general literature as to the risk of recidivism and the documentation relating to the respondent’s history of sexual offences and ensuing custody. His report cites various “dynamic risk variables” applicable to the respondent, noting that “past supervision failure” was “definitely present” and that “denial or minimisation” was “definite”. He referred to a history of failure to co-operate when being supervised.

77 Dr Lennings’ conclusion was:

43. I have undertaken a review of the documents as sent to me. I have incorporated into my review of pertinent documents a literature review setting out the grounds upon which the various comments, opinions and scores reported in the file can be interpreted. A constant theme in the various psychologists and probation officer reports is that Mr Tillman is a high risk sexual offender. Risk is defined in relation to opportunity to offend. Were he to be in the community, high risk means high risk of recidivism and a further sexual offence. It is also the case that assessment of his risk has highlighted the features that make him a high risk recidivating offender. These include his high level of risk on actuarial devices, the persistence of high levels of deviant sexual interest, reluctance or inability to achieve insight into his offending, lack of cooperation with supervision and treatment, high levels of self-absorption and lack of empathy, significant anti-social behaviour, lack of viable harm minimisation plans and strategies, and the continuation of offending from an early age until current. It is unlikely he will be responsive to treatment due to his failure in the past to engage with treatment, his self serving comments in relation to it, and the absence of viable and suitably intensive community based programs for him if he were released. It is probable that the most effective treatment for him, if he is to be released, might be biochemical, although medical opinion should be sought about that. Although some risk factors, such as denial and lack of remorse have little relationship to recidivism, they create a psychological environment in which seeking help if he experiences urges to offend, is unlikely to occur. However, it seems to me that it would have been preferable to have had an appropriate assessment of psychopathy to complement the risk assessment.

44. On the basis of my review it seems that Mr Tillman shares many characteristics in common with those serious offenders who are known to be chronic recidivist offenders. The literature sets out the statistical arguments to this, as it does the reason why certain key dynamic variables are so influential in the decision about recidivism. Whilst approximately 12% of sexual offenders fall into the high risk group, not all will necessarily be high risk offenders. However, the presence of high levels of risk on both actuarial and dynamic risk factors makes it more likely than not that he will be a high risk recidivating sexual offender. There appears to be little in the way of community options that could mitigate the potential he has. In terms of conventional risk assessment methodologies, the likelihood of a sexual offence is high and more likely than not to occur, and the arm attached to such an offence is also likely to be high and enduring given his targets appear more likely to be children than any other age group.

78 Mr Bright is a registered psychologist who has held the position of Therapeutic Manager of CUBIT sex offender programs at the New South Wales Department of Corrective Services since June 2003.

79 In September 2006 Mr Bright interviewed the respondent concerning his attitude to the CUBIT program. His report is also based upon departmental files relating to the respondent and reports by psychologists, including psychological assessment reports by Ms Bel. When interviewed in September 2006 the respondent indicated his awareness of the new legislation and his wish not to be kept in gaol after the end of his sentence. He nevertheless again declined to participate in the CUBIT program.

80 Mr Bright prepared a report dated 1 February 2007 expressing the following conclusions:

Mr Tillman has been assessed as a high risk sexual offender (V. Bel, 15.11.05). It appears that he has expressed denial in respect to all of his sexual offending behaviour. Mr Tillman has been consistently resistant to engaging in the group-based treatment programme run by Corrective Services, which is the most suitable programme given his risk level. There are no programmes in the community which can offer the combination of high treatment intensity and community safety, which are provided by the custody based CUBIT programme.

It is possible that Mr Tillman’s reluctance to enter CUBIT may be based on shame and embarrassment at having to disclose and acknowledge his range of sexual offending behaviours. Alternatively, he may be unwilling to give up his sexual offending behaviour and therefore not wish to do treatment. The rationale he has provided for not engaging in CUBIT may be simply convenient justifications or excuses which are being used by him to avoid treatment. I have not had the benefit of a comprehensive interview with Mr Tillman, so have thus far been unable to test these hypotheses with him.

81 In the affidavit to which this report was annexed Mr Bright expressed the following conclusions:

69. In my Report I note the conclusion of Ms Bel in her report of 15 November 2006 that Mr Tillman has been assessed as a high risk untreated sexual offender. On the basis of my own scoring of the STATIC-99, and my reading of Ms Bel’s report, in my opinion, Mr Tillman remains a high risk of sexual recidivism.

70. It appears that Mr Tillman has expressly denied his sexual offending behaviour and has been consistently resistant to engaging in group based treatment program run by the Department.

71. I believe that CUBIT is the only treatment program that is suitable to address these risks because its high risk intensity is commensurate with those risks. I do not believe that treatment of a sufficiently intensive level to address Mr Tillman’s needs is available in the community.

72. In relation to the reasons given by Mr Tillman as to his reluctance to enter CUBIT, in my view he may be assisted by attending a Preparatory Program for sexual offenders. This may assist to motivate him to become prepared to enter the CUBIT program.

The appellant’s submissions

82 It is now convenient to address the challenges to the exercise of the discretion in the instant case.

(i) The lateness of the application

83 The applications for final orders were not defective by reason of having been filed only seven days before the respondent was due to be released from custody upon the expiry of a lengthy sentence of imprisonment. Service was effected within the narrow time-frame imposed by ss7(1) and 15(1).

84 The Act contemplates a preliminary hearing conducted by the Supreme Court within 28 days after the application is filed or within such further time as the Supreme Court may allow (ss7(3), 15(3)). This occurred in the proceedings before Hoeben J on 16 April.

85 There is, however, no temporal mandate as to when the Court should hear and determine an application for an interim order, including a renewed application, other than that this will take place in the pending proceedings for “final” relief.

86 At the hearing on Monday 16 April 2007, senior counsel for the respondent, Mr Haesler SC, submitted that the application for interim relief was opposed and that the Crown had “left it too late”. Nevertheless, he did not seek an adjournment nor the opportunity to cross-examine the witnesses who had verified the “documentation” that had accompanied the summons; nor was any evidence sought to be led on behalf of the respondent referable to the exercise of the Court’s discretion. Indeed, Mr Haesler SC stated that:

Given the nature of the application, the Attorney simply has to show that this material, if proved, would satisfy the tests under the legislation.
...

Our hands are tied. Perhaps I should put on the record that that creates a fundamental unfairness. The parliament have, it appears, allowed legislation for that unfairness. Whether that is fundamental in the sense of jurisdiction of this Court may have to be determined at another time.

87 It is not disputed that the four affidavits read on the motion included documentation that satisfied both ss6(3) and s14(3). This means that, as regards the presently relevant dispute concerning an interim detention order, the application for a continuing detention order was (s14(3)):

supported by documentation:

(a) that addresses each of the matters referred to in section 17(4) and

(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.

88 In the portion of his reasons headed Decision, Hoeben J referred to the matter of delay as follows:

53 I am concerned by the fact that the plaintiff’s application has been brought so late, ie seven days before the defendant’s proposed release date. This, in my opinion, gives rise to a fundamental unfairness insofar as the defendant is concerned which must influence my exercise of the discretion granted to me under the Act. No explanation was offered by the plaintiff to explain this delay.
54 The late nature of these proceedings has prevented the defendant from being in a position to adduce any evidence to enable him to oppose the application. While such evidence (if available) would not have assisted him as to the merits of the claim (s16(1)(b)), it may well have assisted him on the question of what treatment was most appropriate for him and as to whether an extended supervision order, rather than a continuing detention order, was more appropriate in his case. Such evidence might also have assisted in determining what conditions ought be attached to any extended supervision order made against the defendant. The lateness of the proceedings has precluded the defendant from adducing any evidence on those issues. Accordingly, even if I were persuaded to the necessary standard that an interim continuing detention order ought be made against the defendant, I would not make such an order.

89 We have already concluded that s16(1) conferred a discretion, enabling the Court in a proper case to decline to make an order for interim detention even if it appeared that conditions (a) and (b) of subs(1) were satisfied. The second sentence in J54 shows that the judge recognised that condition (b) was satisfied. According to the appellant, we should read the reasons as indicating that the Court would have been justified in making either of the alternative orders referred to in (b). We agree.

90 It follows that since the documentation would, if proved, justify the making of either category of final order, then the discretionary power to order interim detention was enlivened for this offender.

91 Nevertheless, his Honour erred, in our respectful view, when in the passage set out he indicated in effect that the lateness of the application was an independent principal ground for refusing an interim detention order.

92 Given that no adjournment was sought and that nothing was led in contradiction of the unchallenged evidence read on behalf of the Attorney General, the delay factor ought not to have been a basis for refusing whatever relief was appropriate. In our view, the evidence summarised above demonstrated convincingly that this was a proper case for an interim detention order effectively continuing the incarceration of the respondent on a temporary basis at this stage in the proceedings. We shall further explain this conclusion below.

93 Nothing was said on behalf of the respondent before Hoeben J to indicate that he intended to adduce evidence going to the making of an interim order of either sort. (For what it is worth, no such evidence was proffered to this Court either, even though this is an appeal by way of rehearing in an interlocutory matter (see Supreme Court Act 1970, s75A(7)-(9)). If the protection of the public called for one or both types of interim order then the Attorney General’s delay (even if unjustifiable) was not a factor that should have carried any weight in the exercise of the discretion. His Honour therefore erred in taking into account an irrelevant consideration.

(ii) Inappropriate regard to likely final relief

94 Early in his reasons, Hoeben J said that to enliven the exercise of the Court’s discretion under s16(1) it must appear (among other things) that the evidence demonstrates that adequate supervision will not be provided by an extended supervision order (J17(d)).

95 His Honour’s reasoning as to lateness ([88] above) also treated as significant the strength of the material supporting a final order in the nature of continuing detention as significant in deciding which type of interim order ought to be made.

96 In our opinion this led his Honour into error, because the statutory task was to determine what interim relief was appropriate in a situation where paras (a) and (b) of s16(1) were undoubtedly satisfied and where the evidence going to the appropriateness of interim relief in the nature of continuing detention was all one way.

97 This challenge can be further understood from the following portion of the reasons for Decision:

55 From material placed before me, and in accordance with the statutory regime, I am persuaded to the necessary standard that the defendant is likely to commit a further serious sex offence if he is not kept under appropriate supervision. His history of sexual offending, the statistical and psychological evidence all indicate that the defendant presents a high risk of re-offending. It follows that the supporting documentation if it is proved would justify the making of an order under the Act. The only question is the nature of that order, ie a continuing detention order or an extended supervision order.

56 The plaintiff strongly urged that an interim detention order was the only appropriate order. It was submitted that an extended supervision order, even with the conditions set out in the summons, would not provide adequate protection to the community. I am not so persuaded.

...

60 For the reasons indicated it seems to me that the objects of the Act are adequately fulfilled if an interim extended supervision order is made against the defendant rather than a continuing detention order. I wish to make it clear that this decision relates purely to this interim application and to the preliminary hearing. This decision will play no part in the ultimate resolution of the plaintiff’s application for final orders.

98 The task assigned by s16(1)(b) is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General’s supporting documentation.

99 Since s16(1)(b) is satisfied if either category of final order would be justified if the matters alleged in the documentation are proved, the Court is not required, at the stage of considering whether the discretionary power to make an interim detention order is engaged, to assess which category of final order is likely to be made at the end of the day. Because the word "may" in the closing portion of s16(1) imports a true discretion, it is open for the Court to refuse to make an interim detention order even if conditions (a) and (b) are satisfied. But it would not be a proper exercise of that discretion, in our opinion, for the Court to make an interim supervision order instead of interim detention order simply because the probabilities suggested that an extended supervision order was the more likely (final) candidate. That would involve reading words into the subsection that are not there. If (unlike the present case) there was only a claim for a continuing detention order, then the only options available to the Court under s16(1) would be to make an interim detention order or to dismiss the claim for interim relief.

100 On our reading of J55-6, 60 (set out above) his Honour appears to have approached the s16(1) discretion by forming the view that a (final) continuing detention order will probably not be made if matters stand as they do at present, because "adequate supervision" will be able to be provided by an extended supervision order (s17 (3)). Such a reading is drawn primarily from the last sentence of J55 and the reference to "an extended supervision order" in J56. In so doing, the judge erred, in our respectful view.

101 It is possible that we have misread this portion of the judge’s reasons. Indeed, the thrust of the opening sentence of J60 suggests that the judge was at that stage weighing the respective merits of an interim detention order and an interim supervision order. If that is all that was occurring in the extended passage of reasons at J55-60, then we would still not agree with the (interim) bottom line, because of our conclusions on the specific matters addressed below and our assessment of the present situation on a re-exercise of the discretion required as a consequence of the error referred to in [93] above.

(iii) Factual error in J56

102 In the portion of J56 quoted above his Honour indicated that he rejected the plaintiff’s strong urging that an interim detention order was the only appropriate order and that he was not persuaded that an extended supervision order (with the conditions set out in the summons) would not provide adequate protection to the community.

103 We have already sought to demonstrate why it would appear that the wrong question was posed at this interim stage of the proceedings. Be that as it may, we would in any event disagree with the judge’s response because it was influenced by a factual error of some materiality.

104 In rejecting the application for an interim detention order his Honour said (J56):

As indicated, the offences of November 1990 and March 1998 both involved female children in his household and substantially under his care. Except for his first offence in 1977, there has been no suggestion in his offending behaviour of him randomly seeking victims in the public arena. The offending situations have arisen when circumstances have brought young victims into close proximity to the defendant.

105 It was an error of fact to state that there had been no suggestion that the respondent’s offending behaviour involved him randomly seeking victims in the public arena (with the exception of his first offence in 1977). On the contrary, the offence committed on 7 August 1982 for which the respondent was convicted on 10 October 1984 and sentenced to six years imprisonment was also of this nature. The offence involved the respondent engaging a 13 year old girl and her young boyfriend in conversation, ascertaining that they had run away from home, and offering to put them up for the night at the respondent’s home. The young couple were taken to Windsor by the respondent and another man. The vehicle stopped at South Windsor. The girl, her boyfriend and the respondent alighted and the vehicle was driven away. The respondent then persuaded the young boy to wait behind. He then took the young girl into a bush area where he had sexual intercourse with her against her will.

106 This ground is established.

(iv) Significance of respondent’s present attitude to treatment or rehabilitation programs

107 One of the matters that the Court will need to consider closely when it comes to decide what, if any, final order should be made is stated in s17(4)(e) as:

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...

108 Hoeben J addressed this issue in the following terms:

38 In relation to s17(4)(e) – treatment or rehabilitation programs – I have already indicated the defendant’s refusal to participate in the CUBIT Program and his reasons for adopting this stance. The defendant told Ms Bel that he had read research suggesting that the CUBIT Program was not effective, he was concerned about its lack of confidentiality and he was afraid because the CUBIT Program was located in the building which was the scene of his sexual assault as an adolescent some 28 years before. Ms Bel noted that the defendant was not receptive to information that this building had been extensively renovated and would bear little resemblance to how it looked at the time of his assault, nor would the defendant agree to participate in a systematic desensitisation process as a preparation to entering the CUBIT Program. It was Ms Bel’s opinion that it was unlikely that any form of community treatment would offer the level of intensity of the CUBIT Program.

39 The defendant’s refusal to attend the CUBIT Program has emerged as a significant issue. It is therefore necessary to say something about that program. The first intake was in 1999. It is designed for sex offenders with a moderate to high risk of re-offending. This is because of its high intensity nature. The program is conducted in a residential unit. Offenders admitted to the program are accommodated in a special self-contained, forty bed unit located in the Metropolitan Special Program Centre at Long Bay Correctional Centre. The setting is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour.

40 The CUBIT facility is run as a “therapeutic community” in which offenders practise newly acquired skills, behaviours and attitudes on a daily basis with advice and feedback from specially trained psychologists and custodial officers. The unit is self-contained and is intended to provide a safe context for the practice and exercise of more pro-social attitudes and behaviours. Since August 2005 groups have been run three mornings per week for approximately 2.5 hours each morning. Between sessions, participants are expected to complete written homework tasks, practise new skills, consider and process the specific issues they are currently working on and provide support and encouragement to other offenders in the community. Weekly community meetings and other community activities underscore the importance of community involvement for all participants and assist with the attainment of treatment goals.

41 During the program participants are expected to take responsibility for their offending behaviour, examine victim issues, identify their offence cycle and develop a detailed relapse prevention program. The CUBIT Program runs for approximately eight – ten months. Because it is a residential program, it is intended that even when participants are not in a group they are in a custom built environment and are working on the new skills they are learning for the whole time. Once an offender has successfully completed the CUBIT Program, the offender must participate in a maintenance program one morning per week.

42. Mr Bright has been actively involved in the CUBIT Program. In his affidavit he noted that group therapy such as the CUBIT Program is “almost universally recognised as the treatment modality of choice with sexual offenders”. Having said that, Mr Bright also referred to research that “despite sound theoretical rationales for employing group therapy rather than individual therapy, and despite the preference for group therapy among the majority of sexual offender treatment providers, there is little evidence of differential treatment efficacy with adult sexual offenders”. (Affidavit, para 39.) It seems that group treatment for sexual offenders is more time and cost efficient than individual therapy and this may well explain its preference as treatment in correctional institutions.

109 In explaining why he was not persuaded that an interim detention order was the only appropriate order, Hoeben J said (J58-60):

58 The other matter urged upon me by the plaintiff relates to the rehabilitation objectives of the Act. It was submitted that the defendant should be kept in prison because it was only in prison that he would be able to complete the CUBIT Program with its residential requirements and necessary level of intensity. Informal one on one counselling outside the prison system would not be sufficient.

59 Implicit in that submission is the unstated premise that the defendant must participate in the CUBIT Program or he should not be released. Since the defendant has (to his very real detriment) consistently refused to participate in the CUBIT Program whilst serving his sentence of imprisonment, I do not see why his attitude would change if he were to be further detained in the prison system. In the circumstances of this case I do not see it to be appropriate for the court to assist in a process which forces a person to unwillingly undergo medical treatment as a condition of obtaining that person’s liberty.

60 For the reasons indicated it seems to me that the objects of the Act are adequately fulfilled if an interim extended supervision order is made against the defendant rather than a continuing detention order. I wish to make it clear that this decision relates purely to this interim application and to the preliminary hearing. This decision will play no part in the ultimate resolution of the plaintiff’s application for final orders.

110 The respondent’s attitude to rehabilitation, as indicated in the documentation consisting of the reports of the three psychologists, well and truly satisfied the statutory threshold referable to s17(4)(e) as it was to be applied at the interim stage of the proceedings.

111 We have already indicated why the legislative scheme did not require the judge to weigh up the impact of this material beyond satisfying himself that it was part of the supporting documentation which would, if proved, justify the making of either category of final order.

112 Since, however, there remained a judicial discretion to refuse either category of interim relief being sought or both, it was appropriate for his Honour to have regard to the evidence on this topic relevant to the granting of interim relief.

113 This said, it is not easy to see the materiality of the CUBIT evidence to the exercise at hand, namely determining which of two available courses of interim action ought to be made. Since, however, the primary judge had regard to this material, we should indicate that we draw from it the opposite conclusion to that reached by his Honour.

114 The presently unchallenged evidence shows that the respondent has consistently spurned the CUBIT program offered to him while serving his latest term of imprisonment. The effectiveness of the program for the respondent and his reasons for refusing to embark upon it may call to be examined at a later stage of the proceedings. But, at this stage, the evidence suggests that the CUBIT program is a significant tool of rehabilitation. Its outright and repeated rejection by the respondent leaves unanswered concerns going to a heightened risk of recidivism.

115 We do not share his Honour’s view that the appellant’s case carries the unstated premise that the respondent must participate in the CUBIT program or he should not be released (J59). It is too early in the proceedings to draw any such inference or to weigh the submission that it lies upon the Attorney General to offer some equivalent program in the context of half-way houses for recently released offenders (cf Gallagher at [77]). But equally it is too early to draw a counter-inference, unsupported by evidence or compelling argument, that the respondent’s attitude would be both justified and an answer to the particular inquiry that will be initiated by s17(4)(e) at the final hearing.

116 The evidence concerning the respondent’s attitude to CUBIT coupled with the absence, at this stage, of any material showing that the respondent is prepared to acknowledge that he has a continuing problem needing to be addressed, create a strong factor in favour of continuing detention on an interim basis, having regard to the statutory objects.

(v) Inadequacy of conditions of interim supervision

117 Hoeben J made an interim supervision order subject to the following conditions:

(a) The defendant reside at an address approved by a Corrective Services Officer.

(b) The defendant accept home visits by a Corrective Services Officer as directed by that officer.

(c) The defendant report to a Corrective Services Officer as directed by that officer.

(d) The defendant not to change his place of residence without prior approval of a Corrective Services Officer.

(e) The defendant not to associate or make contact with children aged 16 years and under unless the child is accompanied by a parent or by a Corrective Services Officer.

(f) The defendant is not to attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours, and such places as a Corrective Services Officer may direct.

(g) The defendant is to wear electronic monitoring equipment as directed by a Corrective Services Officer.

(h) The defendant is not to change his name from Kenneth Davidson Tillman.

(i) The defendant is to participate in treatment and rehabilitation as directed by a Corrective Services Officer, save that such treatment and rehabilitation shall not include the CUBIT Program or a group based program.

118 With two modifications, these were the conditions proposed in the summons as the basis for a final order by way of extended supervision in the event that the Court rejected the Attorney General’s preferred claim for an extended detention order. The modifications were the addition to condition (e) of the words “unless the child is accompanied by a parent or by a Corrective Services Officer” and the portion of condition (i) commencing with the word “save” (see J51).

119 Once again, we have considerable sympathy for the plight in which the judge was placed given the lateness of the application.

120 However, the conditions proposed do not satisfy us as providing adequate provision on an interim basis to tilt the scales in favour of interim supervision rather than interim detention. We therefore respectfully disagree with his Honour’s conclusion in this regard and have, exercising the judicial discretion afresh consequent upon our earlier conclusions, arrived at a different conclusion.
121 The presently unchallenged evidence points strongly towards a significant risk of reoffending. An electronic monitoring device will certainly assist in tracking the respondent’s movements as well as deter him from risking committing the offence of breach of conditions of a supervision order. But it will scarcely trigger a preventative police response in sufficient time for effective intervention. Ms Bel’s evidence (at [75] above) supports this view. The respondent’s history of failure to co-operate when being supervised referred to in [77] above does not support his Honour’s conclusion that he can be effectively supervised such as to provide adequate protection to the community.

122 In Attorney-General v Gallagher, the Chief Judge at Common Law, ordered interim detention and declined to order interim supervision. He said (at [83[-[85]):

83 Having regard to the defendant’s previous pattern of offending, I am not presently persuaded that electronic monitoring, in any form, would presently provide sufficient protection from the prospect of him re-offending. The evidence before me indicates that at best the available devices may, if functioning appropriately, alert the authorities to the fact that he has either left a designated location or has intruded into an area from which he has been prohibited, but it could be hours before he was subsequently located.

84 Given the pattern of his previous offences, and the fact that he, upon release, would not appear to presently have the prospect of a permanent home, the defendant would, in my opinion, have the opportunity to re-offend before he could be located.

85 The defendant’s past behaviour does not suggest that he will accept the obligations as to his movements which might be imposed if he was released under supervision. Having regard to his antecedents, and the present state of the evidence, I am not satisfied that adequate supervision could be provided by an extended supervision order. The defendant, when last in the community, failed to report in accordance with the Child Protection (Offenders) Registration) Act 2000 (NSW) and has expressed a wish to disappear when released from custody. In my opinion a supervision order is not appropriate and, at this stage, an interim detention order must be made. However, I stress again that the findings which I have expressed are made having regard to the evidence which is presently available, all of which would require reconsideration at a final hearing where substantive orders are under consideration.

123 The situation of the present respondent is not apparently as pessimistic as that of Mr Gallagher. Clearly there are points of distinction. But the basic reservation concerning the efficacy of monitoring devices stated by McClellan CJ at CL at [83] is one that we share and would apply to this respondent in light of the evidence. Once again, we emphasise that this is but an interim application and that our expression of opinion is not intended to foreclose a contrary view being reached at a later interim application or at the final hearing in the context of the evidence and fuller arguments than available to us. The Act does not require the avoidance of every conceivable risk.

Postscript

124 The concerns that moved his Honour were capable of redress in a proper case. If the offender had sought an adjournment of the hearing of the motion then it would have been open to the Court to have granted it on normal principles. The late filing of the “documentation” relied upon might have generated grounds for an adjournment of the motion had it been sought. A decision on that putative application would have required investigation as to whether the offender had any, and if so, what, prior notice of the documentation contained in the four affidavits of 13 April, especially the documentation relied upon as compliant with s14(3). It is true that s16(1)(b), standing alone, does not entail any opportunity to challenge the accuracy of the “supporting documentation” but s17(4) spreads over a wide range and in the present case the supporting documentation was bulky. A defendant ought to have a sufficient opportunity to consider it to see if it addresses all of the s17(4) matters, as well as a proper opportunity to examine and respond to any evidence relied upon as grounding interim relief.

125 We would urge the Attorney General and the Legal Aid Commission, which presumably will be providing representation for offenders in similar applications in the future, to endeavour to formulate some protocol whereby advance notice may be provided to the relevant offender and to the Court where an application, including an application for interim relief, is on the cards.

LAST UPDATED: 24 May 2007