Winters v Attorney General of New South Wales [2008] NSWCA 33 (18 March 2008)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Winters v Attorney General of New South Wales [2008] NSWCA 33

FILE NUMBER(S):
40730/07

HEARING DATE(S):
13 December 2007

JUDGMENT DATE:
18 March 2008

PARTIES:
Christopher Paul WINTERS (Appellant)
THE ATTORNEY GENERAL OF NEW SOUTH WALES (Respondent)

JUDGMENT OF:
Mason P Giles JA Hodgson JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 12483/07

LOWER COURT JUDICIAL OFFICER:
McClellan CJ at CL

LOWER COURT DATE OF DECISION:
26 Setpember 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 1071

COUNSEL:
A C HAESLER SC/ Ms D YEHIA (Appellant)
L BABB SC/ D T KELL (Respondent)

SOLICITORS:
Steve O’Connor, Legal Aid Commission of NSW (Appellant)
I V Knight, Crown Solicitor’s Office (Respondent)

CATCHWORDS:
CRIMINAL LAW – Serious sex offender – Application for continuing detention order – Requirements of s 17(3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW) – Whether primary judge erred in finding that adequate supervision could not be provided – Supervision required individual counselling sessions – Whether evidence that the State would not fund these sessions was admissible – Whether primary judge erred in finding that the State would not fund these sessions – Whether the proceedings were an abuse of process.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes (Serious Sex Offenders) Act 2006 (NSW) ss 3-5, 10-14, 17-20, 21-22
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Law Enforcement and Other Legislation Amendment Act 2007

CATEGORY:
Principal judgment

CASES CITED:
Attorney General for the State of Queensland v Francis at first instance [2005] QSC 381; and on appeal [2006] QCA 324, [2007] 1 QdR 396
Cornwall v Attorney General for NSW [2007] NSWCA 374
DPP (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
Director of Public Prosecutions (WA) v Williams [2007] WASC 95
Fardon v State of Queensland [2004] HCA 46, (2004) 223 CLR 575
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1997) 189 CLR 51
New South Wales v The Commonwealth (No 1) [1932] HCA 7; (1932) 46 CLR 155
New South Wales v Bardolph [1934] HCA 74; (1933) 52 CLR 455
Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

TEXTS CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

1 MASON P: I have had the benefit of reading in draft the reasons of Giles JA and Hodgson JA. I adopt Hodgson JA’s summary of the evidence and the issues.

2 In Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327, the Court was divided as to the meaning of the words “satisfied to a high degree of probability” in s17(2) and (3) of the Crimes (Serious Sex Offenders) Act 2006 (the Act). I am bound by the majority decision and, on that basis, agree with the reasons of Giles JA referable to the first ground of this appeal.

3 The second ground relates to the relevance and weight of the evidence about the State’s policy not to fund the treatment regime involving Ms Howell or a substitute psychologist that had been proposed by the State itself in condition 4(e) as a term of an extended supervision order, should the Court be minded to make such an order.

4 I agree with my colleagues that the announcement of reliance upon this policy did not, on the particular facts of this case, render the instant proceedings an abuse of process. Nor did it justify the Court withholding relief altogether in the exercise of the limited discretion conferred in terms by s17 of the Act.

5 The harder question is whether the evidence on this funding matter led by the Attorney-General (a) was relevant to and (b) carried weight in the ultimate decision of the Court that it was not satisfied to the requisite standard that “adequate supervision will not be provided by an extended supervision order”.

6 I agree that what I will loosely call the funding issue was determinative in the reasoning of the primary judge. It was determinative because his Honour described the capacity to fund Ms Howell’s services as “an ultimate stumbling block in this case” (at [146]).

7 Equally determinative at first instance was the unchallenged evidence of Mr Dentrinos to the effect that the appellant told him that he intends to re-offend when released. Were this Court satisfied as to error in relation to the funding issue there would still be little prospect of an order for the immediate release of the appellant. At best, there would need to be inquiry as to the separate impacts of the adverse finding on the Dentrinos issue.

8 The evidence analysed in Hodgson JA’s reasons shows that the State’s unwillingness to fund the provision of Ms Howell’s services was proved as a fact.

9 So too was its consequence for this appellant. That evidence shows to the requisite standard (reversing the statutory onus for ease of explanation) that Ms Howell’s professional services would be likely to be effective in reducing the risk of reoffending to the requisite degree – subject of course to compliance with the long list of non-contentious conditions and overcoming the issues stemming from the Dentrinos evidence.

10 Ms Howell’s services are, nevertheless, unavailable to the appellant because, and only because, he lacks the resources to pay for them. Medicare funding does not extend to this type of professional assistance and there is presently no prospect of charitable or familial subvention.

11 I have, of course, omitted the possibility of payment by the State, the matter at issue in this part of the appeal. I use “the State” advisedly, because it is the Executive arm of the State of New South Wales that is moving the Court for relief in these proceedings. Recent amendments to the Act show that it is now “The State of New South Wales” that applies for orders (see ss6, 14, 14A), not that the Executive’s role was any different when the moving party was the Attorney-General.

12 The question whether this expenditure falls within an existing Parliamentary appropriation has been left entirely unexplored. Proving a negative is never easy, but here the State has made no attempt to establish the absence of an existing appropriation somewhere within the current budget that could be applied to meet the cost of complying with any order that the Court might make under the Act.

13 This absence of evidence about Parliamentary appropriation is nevertheless entirely understandable, because it is not the concern of the courts to address questions of appropriation. If a court has jurisdiction to declare and enforce a liability that has fiscal consequences for the State then the court should attend to its business and make whatever order is called for, leaving the appropriation of necessary funds up to Parliament (see New South Wales v The Commonwealth (No 1) [1932] HCA 7; (1932) 46 CLR 155 at 177; New South Wales v Bardolph [1934] HCA 74; (1933) 52 CLR 455 at 506-7). In the unlikely event that the necessary appropriation has not already occurred, then it is a matter for the Parliament to attend to it later. A court should not hold its hand on this account.

14 These high constitutional principles apply where a court is imposing a direct obligation upon the Executive, as with entering judgment against the State in tort or contract. They also apply when a court is directing or authorising conduct that will involve expenditure in the ordinary course, as with the issuance of a warrant, an order committing to gaol or an order revoking bail. Many statutes empower courts to make orders that have fiscal impacts upon the State or Commonwealth that are simply taken for granted, and properly so. An obvious example is where a judge pronounces judgment in a civil action between private parties, knowing and expecting that the Legislative, Executive and Judicial branches of government have provided an entire apparatus for the entry and execution of such judgments.

15 But there are obvious limits. A court could not impose an obligation upon the State (or anyone else) unless there was both jurisdiction and power to do so. The question of power turns upon the application of an established cause of action or statutory authority.

16 The State has established that it does not intend to break the financial impasse by agreeing to pay Ms Howell’s reasonable fees with the consequence that the program that she would otherwise be prepared to offer is simply unavailable to the appellant. It would therefore be a futility to direct the appellant to attend such a program. However, whether the proposed expenditure is presently within or outside the “budget” of one department or another is neither here nor there, except perhaps as a pointer to the State’s present unwillingness to pay that is otherwise well established on the evidence.

17 The constitutional validity of legislation similar to the Act in its general operation has been upheld by the High Court on the basis that it vests jurisdiction in a State Supreme Court to determine defined issues in accordance with statutory criteria. In Fardon v Attorney General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was found not to have imposed upon the Supreme Court of Queensland functions repugnant to its institutional integrity so as to bring incompatibility with its constitutional function as a potential repository of federal judicial power. As Giles JA points out, the High Court’s reasons included that the Supreme Court was not to “act as a mere instrument of government policy” (per Gleeson CJ at [19]), could not be seen as “acting in conjunction with, and not independently of, the Queensland legislature or executive government” or other than “an impartial tribunal free of governmental or legislative influence” (per McHugh J at [34], [35]), and was performing its function “independently of an instruction, advice or wish of the legislative or executive branch of government” (per Gummow J at [116]).

18 These limitations may be traced to passages in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1997) 189 CLR 51 and may be taken as the constitutional framework against which the Act is to be construed.

19 It is therefore significant that s11 of the Act speaks of the conditions of the supervision order being “such conditions as the Supreme Court considers appropriate”. But the Court’s power to impose particular conditions depends in turn upon the scope of the Act, s11 in particular.

20 State policies that offered or withheld funding for private treatment programs on irrational or discriminatory bases could conceivably intrude impermissibly upon the Court’s proper role to decide for itself what conditions are appropriate for a particular offender. If this occurred, there could be grounds for a stay or a discretionary withholding of relief. The evidence about the willingness of the New South Wales Probation and Parole Service to fund treatment for two serious sex offenders that it has deemed worthy to receive such treatment has not been shown to present this difficulty, although I remain troubled about the reasons why funding was offered in those cases and has been withheld in the present case.

21 The critical question, as I see it, is whether the Court, in considering whether it is appropriate to require an offender to participate in a particular treatment or rehabilitation program could assume that the cost of providing that program will be met by the State in accordance with the constitutional principles referred to above. This is ultimately a matter of interpretation of s11(d) which relevantly provides:

22 I shall return to the exegesis of s11(d). At this stage I would point out that it does not in terms contemplate an order being made against the State. On the contrary, the exclusive focus is upon the offender.

23 Section 17(4)(e) includes in the matters relevant to the Court’s determining whether or not to make a continuing detention order or extended supervision order “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”.

24 Read with s11(d), this provision arms the Court with power to determine whether or not a particular program is likely to have utility for the particular offender as part of the judicial task of determining whether or not to make one of the two classes of final orders contemplated by the Act.

25 The offender’s willingness to participate in such programs as the Court determines is expressly relevant and there have already been cases in which the earlier refusal to cooperate with the intra-mural CUBIT program has been decisive in the making of continuing detention orders against particular offenders. The offender’s capacity to contribute to the cost of such intramural treatment has not been an issue because the Department of Corrections has been prepared to fund it.

26 When s17(4)(c) speaks of programs “in which the offender has had an opportunity to participate” (emphasis added), it suggests that practical matters such as accessibility need to be taken into account at least in the retrospective inquiry mandated by the requirement to have regard to programs in which the offender “has had an opportunity to participate”.

27 If a particular program was unavailable because there was no one to provide it generally or in the part of the State where the offender was living then that program could not be described in normal parlance as one in which the offender “has had an opportunity to participate” (s17(4)(e)). This part of s17(4)(e) does not assist the appellant’s case, but perhaps it does not harm it either, because its main if not exclusive focus is upon the past (“has had an opportunity”).

28 I return to the language of s11(d). It clearly addresses programs in which the offender may be required to participate in the future. The opening words of s11 describe the conditions determined by the Court as conditions with which the offender may be directed to comply with and as directions requiring the offender to do various things. Failure to comply with the requirements of the order is an offence (s12). These matters show why it would be unjust to make a direction that the appellant attend upon Ms Howell unless the Court were satisfied that the State was itself intending or required to take the necessary steps to enable performance to take place, ie agree to the funding.

29 In the recent case of Cornwall v Attorney General for NSW [2007] NSWCA 374 this Court was asked to impose a condition that the appellant wear an electronic monitoring device (cf s11(e)). The State had indicated, implicitly, that it was prepared to pay the cost of providing and supervising this form of supervision. It was therefore “available” to the Court to be made a condition of an extended supervision order.

30 By contrast, Ms Howell’s professional services are not available in the present circumstances. The Court cannot impose any requirement upon her. The appellant is unable to afford her services. And I conclude that there is no authority under the Act for the Court to direct the State to pay for her services.

31 I have concluded that the Act does not empower the Court to make a direction about participation in a particular treatment or rehabilitation program unless it is one that is available to the offender. It is not available if the program does not exist, if no one is able to provide it or if the offender resides in a part of the State where attendance could not reasonably be required. And I have reluctantly concluded that it is unavailable if it is offered by a private practitioner at rates that are beyond the means of the particular offender.

32 It follows that the Court should not impose a condition that the appellant participate in the treatment that Ms Howell is otherwise in a position to offer. Such a requirement would be both an injustice and a futility.

33 If the program is unavailable to the Court and the offender then it is simply to be disregarded in the judicial determination. The unavailability of Ms Howell’s program is critical for the reasons already stated.

34 I do not think that it is a question of whether or not it is unreasonable for the State to decline to pay for it. The reasonableness of the State’s conduct is a matter on which minds might differ, but it is not the question presented to the Court in the exercise of its jurisdiction under the Act.

36 There is a concerning anomaly about the principle established in this case. It is that the legislative scheme as presently administered has a practical effect of discriminating on the basis of means. Serious sex offenders who have been incarcerated for a lengthy period are unlikely, one would think, to have many assets upon their release. But for those who do, or who have family or friends willing to assist them financially, the prospects of obtaining earlier release from custody are increased. For those who lack means to obtain access to extra-mural programs like those offered by Ms Howell, the prospects of rehabilitation are at least deferred, contrary to the object stated in s3(2) of the Act, with the resulting increase in the likelihood of continued detention.

37 GILES JA: The facts and the relevant legislation are set out in the reasons of Hodgson JA. I draw upon his Honour’s reasons, without undue repetition, in explaining why I agree that the appeal should be dismissed.

38 For convenience, I reproduce the key subss (2) and (3) of s 17 of the Crimes (Serious Sex Offenders) Act 2006 (“the Act”) -

39 The trial judge was satisfied to a high degree of probability that the appellant was likely to commit a further serious sex offence if he was not kept under supervision: at [138]. He could make a continuing detention order, rather than an extended supervision order, if and only if he was also satisfied to a high degree of probability that adequate supervision would not be provided by an extended supervision order.

40 The reference to adequate supervision in s 17(3) poses the question: adequate for what?

41 The adequacy must be related to the likelihood that the offender will commit a further serious sex offence if not kept under supervision. The trial judge held at [50] that “likely” in s 17(2) and the first limb of s 17(3) meant “more likely than not”. In the later decision of this Court in Tillman v Attorney-General for the State of New Wales [2007] NSWCA 327 the majority held at [89] that “likely” described “a degree of probability at the upper end of the scale” but did not require that re-offending be more probable than not.

43 Later in his reasons the trial judge said (at [139]) that he had already discussed the standard by which the adequacy of the supervision must be assessed, and that -

44 The trial judge did not come to a concluded view. It was not necessary for his Honour to do so, since he held at [149] that “whatever be the relevant standard, and in any event even to the threshold contended for by the defendant, adequate supervision of Mr Winters cannot be provided by an extended supervision order.”

45 In Attorney-General for New South Wales v Tillman at [17] Bell J was noting the plaintiff’s submission, and it is not clear that her Honour accepted it. Any tentative acceptance by the trial judge that adequate supervision means making the risk less probable than not must now be modified in the light of the decision of this Court in Tillman v Attorney-General for the State of New South Wales. Had the standard for adequacy mattered for his Honour’s decision, the standard of making the risk of re-offending less probable than not would have been unduly favourable to the appellant.

46 However, the standard for adequacy did not matter for the trial judge’s decision. Since he found that adequate supervision could not be provided by an extended supervision order whatever be the relevant standard, there was no error in the interpretation and application of s 17 of the Act material to his decision. This ground of appeal fails.

47 As is evident, there are different possible standards for adequacy, for example elimination of the likelihood of re-offending; substantial reduction of the likelihood of re-offending; or reduction of the likelihood of re-offending below the degree of probability at the upper end of the scale. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, decided after judgment was reserved in the present case, the Court spoke at [23] of the requirement of s 17(3) that the Court be satisfied to a high degree of probability than an extended supervision order “would not obviate” the likelihood that the offender would commit a further serious sex offence. The point was not the standard of adequacy, but that the Court had to be satisfied that an order would not obviate the likelihood rather than that it would do so. The decision does not stand as a determination of the standard of adequacy. It is not necessary in disposing of the appeal to determine the standard to be applied.

Ground 2: error in having regard to, or giving too much weight to, evidence that there was a policy not to provide or fund treatment for offenders in the community

48 The appellant proposed an extended supervision order. The respondent proposed a more extensive extended supervision order. The appellant’s conditions included that he was to “accept psychological treatment from Jenny Howell (or a substitute psychologist if she is away) at a frequency and of a nature as she considers appropriate immediately, and immediately upon release from custody”. The respondent’s conditions included that the appellant must engage in psychological treatment of at least three sessions per week, with each session of at least one hour’s duration, with Ms Howell or a substitute psychologist immediately upon release, with elaboration of the purpose of the treatment.

49 The trial judge said that “but for two matters” he would have been satisfied that adequate supervision could be provided by an extended supervision order, but that “the consequence of the two problems” was that he could not be satisfied that adequate supervision could be provided by an extended supervision order: at [144]. This did not specifically refer to satisfaction to a high degree of probability, and in its terms reversed the question for his Honour – it was necessary that he be satisfied that adequate supervision would not be provided by an extended supervision order. It is apparent, however, that his Honour had in mind and answered the correct question, since his conclusion at [149] was that he was persuaded that adequate supervision of the appellant could not be provided by an extended supervision order.

50 The two matters were that Ms Howell’s services could not be funded and that the appellant had said to Mr Dentrinos that he intended to re-offend when released. As to the former, the trial judge said -

51 I do not think, that as the respondent submitted, the trial judge regarded each of the two matters as providing an independent basis for his satisfaction that adequate supervision would not be provided by an extended supervision order. The satisfaction came from the two matters in combination. The trial judge said at [149] that the need for an attempt to be made at effective treatment was confirmed by the evidence of Mr Dentrinos, and specifically that he was persuaded by the statement made to Mr Dentrinos “together with the lack of available treatment”. The reasoning was that the statement to Mr Dentrinos pointed to the necessity for the intensive one-on-one treatment with Ms Howell or another appropriate psychologist, but the treatment was not available, and so adequate supervision would not be provided. Accordingly, if there were error in the regard paid to the first matter, it was material to the trial judge’s decision.

52 It was common ground, as I understand it, that unless funds were provided by the Government the one-on-one treatment by Ms Howell would not be undertaken. The appellant submitted that the evidence did not make out that funds would not be provided by the Government. He said that although Government policy did not extend to payment for such treatment, the Government had money which it could provide and may well provide if an extended supervision order involving treatment by Ms Howell was made.

53 There was considerable evidence as to sexual offender treatment programmes funded by the Department of Corrective Services. There were both custody and community based programmes for low risk sex offenders, and a custody based programme for moderate to high risk sexual offenders. A community based maintenance programme was available for offenders who had completed the lastmentioned custody based programme. The programmes were group programmes, regarded as the treatment of choice with sexual offenders, and one-on-one treatment was not provided; there was evidence to the effect that the Department was unwilling to divert scarce public resources to one-on-one treatment because of the limited data suggesting it was beneficial. Ministerial consideration might be given to development of a community based group programme for high risk sexual offenders, but no decision had been made.

54 Hodgson JA has referred to the submissions made to the trial judge, which give more details of the evidence. In my opinion, it was well open to the trial judge to accept that no funds were available from the Government to pay Ms Howell’s fees, plainly enough meaning that funds would not be provided for the intensive one-on-one treatment by Ms Howell or a substitute psychologist if an extended supervision order involving that treatment was made.

55 The central issue in the appeal was posed by the appellant’s submission that, in considering the adequacy of supervision under an extended supervision order involving the treatment by Ms Howell or a substitute psychologist, it should have been presumed that the Government would provide the necessary funds. According to the submission, the trial judge should have proceeded on the basis that the executive would respect and implement the working of the Act and the Court’s order; so he should not have had regard to the evidence that the treatment would not be funded by the Government, which it was submitted was irrelevant, or if he had regard to it should have given it little weight.

56 An extended supervision order is addressed to the offender, directing the offender to comply with the conditions stated in the order. The conditions may be, but are not limited to, those stated in s 11 of the Act. The order is not addressed to third parties. Of immediate relevance, para (d) of s 11 gives a condition “to participate in treatment and rehabilitation programs”, but an order with such a condition is not addressed to a psychologist directing the psychologist to provide treatment to the offender. Nor are the conditions such as that in para (b), “to make periodic reports to a corrections services officer”, addressed to the executive arm of government.

57 In assessing whether adequate supervision will not be provided by an extended supervision order, consideration must be given to whether, if the order is made, the offender will comply with its conditions and the likelihood of further offending if the offender does comply.

58 The adequacy of supervision is not determined in a vacuum. There is no order to begin with. There must be postulated conditions of an extended supervision order, or a range of conditions of an extended supervision order, with assessment of the adequacy of the supervision according to the appropriate standard for adequacy. Any postulated extended supervision order is devised in the light of matters such as medical knowledge concerning anti-libidinal treatment, psychological knowledge concerning effective counselling, and the availability of physical supervision whether by Government-provided officers or by family of the offender. An extended supervision order is above all a practical tool with a view to reduction of the likelihood of re-offending.

59 It would be foolish in devising the practical tool and assessing its adequacy either to ignore available contributors to adequate supervision, or to assume the availability of contributors which are not in fact available. If suitable physical supervision by a family member is available in the case of one offender, and is regarded as effective, there is no reason to put it out of consideration as a contributor to adequacy of supervision because other offenders do not have the same family support. If a wealthy supportive family is willing to pay for expensive anti-libidinal medication which the offender is willing to take, and could take without unacceptable side effects, that would be a valuable contributor to the practical tool, and could be important in precluding satisfaction that adequate supervision would not be provided by the order. Conversely, if the offender has no means to pay for the expensive anti-libidinal medication, that is one of the facts around which the postulated order must be devised and, if it includes that the medication shall be taken, on which the adequacy of the supervision must be assessed. If the medication will not be taken, that impacts on adequacy of supervision. These are but illustrations, out of many which could be suggested, of the necessity to consider adequacy in fact, not adequacy on a presumption.

60 It is no different, in my opinion, if the contributor to adequate supervision depends on availability from the Government. If the anti-libidinal medication is Government subsidised and so available at a cost the offender can afford, a condition that it be taken can readily enough be included in the order; but if it be that it is not Government subsidised and is beyond the offender’s means, that cannot be ignored. The appellant’s submission would appear to require that it be presumed that the Government will pay for it. If psychological treatment is available through Medicare at no cost to the offender, it can readily enough be made a condition of an extended supervision order and contribute to adequacy of supervision; but the fact that it is not available through Medicare cannot be ignored. Again, many other illustrations could be suggested. An extended supervision order could not sensibly require that an offender who was to live in Sydney should report daily to a police officer at Broken Hill, and if a postulated order did so require its adequacy so far as turning on the reporting would be nil. Equally, an extended supervision order would not be made with a condition that the offender report daily to the police at Smithville, in the face of evidence that no police were stationed at Smithville but on the presumption that the Government would provide a police station at Smithville.

61 I do not find helpful the appellant’s argument that a court should not be deterred from ordering that an offender be sentenced to a term of imprisonment by the possibility that the correctional centres are full, which was then translated to an obligation on the executive to build another correctional centre in order to give effect to the court’s order; so also, according to the argument, there was an obligation to provide funding for psychological treatment if the court made it a condition of an extended supervision order. Correctional centres are provided by the Government, which has taken up the responsibility to provide sufficient accommodation for prisoners. Community based one-on-one treatment for sexual offenders is not provided by the Government.

62 The Act does not state that the Government must fund any and every condition of an extended supervision order devised with a view to provision of adequate supervision. Courts should not make orders knowing that they are likely to be futile, nor should they seek to compel indirectly what can not be compelled by a direct order. Where a third party must do something to make the order effective, whether the third party will do it cannot be ignored, and no less when the third party is the Government. The appellant did not submit that an obligation in law is imposed on the Government, and presuming that the Government will provide funding invites the remark of Brennan J in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 323 in relation to funding for a postulated entitlement to legal aid, that “to declare such an entitlement without power to compel its satisfaction amounts to an unwarranted intrusion into legislative and executive functions”. His Honour was in dissent in the result, but I do not think that affects the force of his remark.

63 In my opinion, there was no error in the trial judge receiving evidence in relation to the funding for Ms Howell’s services and acting upon his finding that funds would not be available to pay for her services.

64 This conclusion is supported by regard to the consequences of an offender’s failure to comply with the requirements of an extended supervision order. The offender is guilty of an offence (s 12). It would be most odd if by proceeding on the presumption, contrary to the fact, that psychological treatment would be funded and so would be provided, the court forced the offender to commit an offence when it was not. Further, prior to the amendments to the Act by the Law Enforcement and Other Legislation Act 2007, an extended supervision order could be varied or revoked (s 13), but there was no power to substitute a continuing detention order. It would have been most odd if, upon it becoming apparent that psychological treatment considered essential to adequacy of supervision was not being provided, the court could not revisit making a continuing detention order. The new s 14A of the Act now permits this to be done.

65 The appellant’s submission started with conditions of an extended supervision order by which adequate supervision would be provided, and then presumed that the Government would provide the wherewithal for the conditions to be fulfilled. This distorts the process. As a practical matter it may be necessary to start with conditions or a range of conditions of a postulated extended supervision order, it resting ultimately on the Attorney-General to put forward the postulated order in order to persuade the court that adequate supervision will not be provided. But the postulated extended supervision order is not a given, since the court must be satisfied that adequate supervision will not be provided by an extended supervision order. This means an order which can be put into effect, and the assessment of adequacy of supervision must be in relation to an order which can be put into effect. Whether the conditions can be fulfilled comes at the beginning, in arriving at an extended supervision order which can then be assessed for adequacy of supervision.

66 The central issue in the appeal is resolved on the construction of the Act. I should, however, consider cases concerning similar legislation to which we were referred.

67 In Fardon v Attorney General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 the High Court upheld the constitutional validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). It was held, Kirby J dissenting, that the legislation did not impose on the Supreme Court of Queensland a function repugnant to its institutional integrity so as to bring incompatibility with its constitutional function as a potential repository of federal judicial power. The reasons included that the Supreme Court was not to “act as a mere instrument of government policy” (per Gleeson CJ at [19]), could not be seen as “acting in conjunction with, and not independently of, the Queensland legislature or executive government” or other than “an impartial tribunal free of governmental or legislative influence” (per McHugh J at [34], [35]), and was performing its function “independently of any instruction, advice or wish of the legislative or executive branch of government” (per Gummow J at [116]).

68 Referring to Fardon v Attorney General for the State of Queensland, the appellant submitted to the effect that in proceeding on the basis that the Government would not fund the treatment by Ms Howell or another psychologist the trial judge was deferring to the executive and, by consequently making a continuing detention order, acting as an instrument of the executive. The submission was not that the Act was invalid, but that in order that the trial judge not act incompatibly with the Court’s position as the judicial arm of government he should pay no regard to evidence that the Government would not fund the treatment.

69 However, I see no such incompatibility in paying regard to the executive’s decision that the resources of government, upon which many claims are made, should be disposed of by treatment programmes which did not extend to community based one-on-one treatment of sexual offenders. This was not shown to be an unreasonable decision. There was nothing to suggest that it was arrived at in aid of keeping offenders such as the appellant in custody pursuant to continuing detention orders. It may be that refusal to provide funds for psychological treatment of a particular offender, contrary to general provision of funds for treatment of like offenders, would attract different considerations, perhaps abuse of process in the application for orders under the Act. That is not this case.

70 The Queensland legislation provided for annual review of a continuing detention order, one outcome under its s 30(2) being maintenance of the order. In Fardon v Attorney General for the State of Queensland Gummow J said at [113] -

71 His Honour’s language of “an order for treatment of the prisoner” may have stemmed from the description of a continuing detention order in s 13(5) as an order that the prisoner “be detained in custody for an indefinite term for control, care or treatment”. There is no equivalent in the Act.

72 In Attorney-General for the State of Queensland v Francis [2006] QCA 324; (2007) 1 Qd R 396 the treatment plan contemplated when the continuing detention order was made had not been implemented. This was the subject of complaint upon the annual review, although the Court (Keane and Holmes JJA and Dutney J) did not find the legal basis for the complaint clear and in the result the complaint led nowhere. Their Honours said at [24] that there might be cases where departmental recalcitrance in relation to the rehabilitative treatment of a prisoner in continuing detention “will give rise to a question on subsequent review ... as to whether the continual detention of the appellant is justified under the Act”. They suggested at [30] that failure to provide treatment might be relevant to answering “the factual question” about further effective treatment while in detention, and continued -

73 These observations were in the context of legislation under which a continuing detention order was an order made “for control, care or treatment”. Their Honours had noted at [29] that “the basis for an order” might be the treatment of an offender with a view to rehabilitation. Even if there is no obligation on the executive government to provide treatment, failure to provide treatment to an offender ordered to remain in detention can be material to continuance of the detention for treatment, and their Honours did not suggest an obligation. Assessment of the adequacy of supervision provided by an extended supervision order, for the purposes of s 17(3) of the Act, is very different. Assuming that there is a discretion under the Act to make no order at all although satisfied that adequate supervision will not be provided by an extended supervision order (as to which I express no view), I do not think that in the present case the discretion could properly be so exercised on the ground that no funds were available from the Government to pay Ms Howell’s fees.

74 In Attorney-General for the State of Queensland v Francis the trial judge was not persuaded that adequate protection to the community could be achieved by the equivalent to an extended supervision order. One matter leading to that conclusion was that an arrangement to live in private accommodation “would only work, from an enforcement point of view, if there was sufficiently intensive commitment of resources by the Department to monitoring compliance”: (Attorney-General for the State of Queensland v Francis (2005) QSC 381 at [131]). On appeal, their Honours said -

75 The point of these observations was not that evidence of the availability of Departmental supervision was irrelevant. The mandatory s 16(2)(f) is not matched in the Act, s 11 of which describes conditions which the order “may” direct an offender to comply with, but their Honours accepted that the assumption found in s 16(2)(f) could be negated by evidence. The point of the observations was that no evidence did so. In the present case there was evidence, and Attorney-General for the State of Queensland v Francis in this respect is against the appellant’s submission.

76 The appellant relied particularly on observations by Wheeler JA in Director of Public Prosecutions v Williams [2007] WASCA 206, an appeal from refusal of an application under the Dangerous Sexual Offenders Act 2006 (WA). Some understanding of the first instance decision is necessary.

77 In Director of Public Prosecutions v Williams [2007] WASC 95 McKechnie J found (at [43]) that there was “an unacceptable risk that if [the offender] is not subject to some form of order he will commit a serious sexual offence”, but declined to make any order because -

78 His Honour then considered a supervision programme suggested in the offender’s case, involving that the offender not be permitted to be in the company of children unless within the direct line of sight supervision of an adult who knew of his offending and of the terms of the order. He doubted his ability to make such an order, in any event considered it unsuitable to protect the community, and added -

79 In the appeal it was held that the judge was in error in declining to make any order. So far as presently relevant Wheeler JA, with whom LeMiere AJA agreed at [79], said that no work had been done to assess the offender’s suitability for any particular programme or formulate any particular conditions which might be appropriate, and that before McKechnie J there was “simply a range of possibilities raised with an indication that there were funding difficulties of some kind, and no indication of how appropriate programmes might be made available to, and what conditions should be imposed upon, the respondent. Her Honour continued -

80 McKechnie J’s lament was that lack of funding meant that the possibility of a supervision order within the community had not been investigated, with the consequence that he could not decide one way or the other whether a supervision order was appropriate. His remarks were not directed to funding for implementation of a supervision order. The observations of Wheeler JA went further, and suggested that since Parliament had “made provision for” orders requiring that offenders undertake assessments or programmes “the court must assume they will be available”.

81 I respectfully question why the possibility of an order that an offender undertake a programme means that the court must assume that it will be available; if it did, equally the possibility of an order that the offender submit to the supervision of an accompanying adult would mean that the court must assume that an accompanying adult will be available, but that was not accepted. In any event, it is not clear that the assumption will stand in the face of evidence to the contrary: earlier in the passage set out above her Honour said that the court “can assume”, which leaves open that it will not. Her Honour said that funding difficulty was not a matter with which the judge had to be concerned. But I do not think that negates concern with evidence that the programme will not be available, where the unavailability is due to lack of funding just as much as where it is for some other reason. I am not swayed by her Honour’s observations from my conclusion earlier expressed.

82 It remains that the standard of adequacy does not matter. The ground of appeal fails.

84 HODGSON JA: On 26 September 2007, McClellan CJ at CL dismissed an application brought by the appellant for a stay of proceedings, and made the following additional orders:

2. I order that Christopher Paul Winters be detained in a correctional centre for one year from today.

3. Pursuant to s21 of the Act, I issue a warrant for the committal of Christopher Paul Winters to a correctional centre for the duration of the continuing detention order in order 2 above.

Statutory Provisions
86 The appeal raises questions concerning the interpretation and application of the Crimes (Serious Sex Offenders) Act 2006 (the Act). Relevant sections are s 3, the definition of “sex offender and offender” in s 4, s 5, ss 10–14, ss 17–20, and ss 21–22.
87 Prior to an amendment made on the day of the hearing of the appeal, the relevant parts of those sections were as follows:

(i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and

(ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

(a) commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later, and

(b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.

(2) An offender’s obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law, but that suspension does not affect the expiry date of the order.

(3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.

(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

(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

(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the Attorney General or the offender.

(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

(1) The Attorney General may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre:

(2) An application may not be made until the last 6 months of the offender’s current custody.

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

(4) An application may indicate the kinds of conditions that the Attorney General would consider appropriate for inclusion under section 11 in the event that an extended supervision order is made.

(1) The Supreme Court may determine an application for a continuing detention order:

(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.

(3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.

(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(b) the reports received from the psychiatrists appointed under section 15 (4) to conduct psychiatric examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature.

(5) Part 2 applies to an extended supervision order made under this section in the same way as it applies to an extended supervision order made under section 9.

(a) commences when it is made, or when the offender’s current custody expires, whichever is the later, and

(b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.

(2) An offender’s custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order.

(3) Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender.

(1) The Supreme Court may at any time vary or revoke a continuing detention order or interim detention order on the application of the Attorney General or the offender.

(2) For the purpose of ascertaining whether to make such an application in relation to a continuing detention order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

(1) As soon as practicable after making a continuing detention order or interim detention order against an offender, the Supreme Court must issue a warrant for the committal of the offender to a correctional centre for the period specified in the order.

(a) for any police officer to convey the offender to the correctional centre identified in the warrant, and

(b) for the governor of the correctional centre to keep the offender in his or her custody in accordance with the terms of the warrant.

(1) An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order or continuing detention order.

(2) An appeal may be on a question of law, a question of fact or a question of mixed law and fact.

(3) An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow.

(4) The making of an appeal does not stay the operation of an extended supervision order or continuing detention order.

(5) This section does not limit any right of appeal that may exist apart from this Act.

88 The Law Enforcement and Other Legislation Amendment Act 2007 was passed on 13 December 2007 and commenced on 21 December 2007. Relevantly, it substituted a new s 3 into the Act and added a new subsection (4A) to s 17 and a new s 14A:

(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.

(4A) In addition to the matters in subsection (4), in determining an application made under section 14A, the Supreme Court must have regard to the nature of the failure to comply with the requirements of the extended supervision order or interim supervision order and the likelihood of further failures to comply.

14A Application for continuing detention order on breach of extended supervision order or interim supervision order

(1) The State of New South Wales may apply to the Supreme Court for a continuing detention order against a person who is found guilty of an offence under section 12.

(3) An application must be supported by documentation that addresses each of the matters referred to in section 17 (4A).

(4) An application may be made for an order against a person under this section whether or not the person is in custody.

(5) If a person who is found guilty of an offence under section 12 is serving a sentence of imprisonment by way of full-time detention, an application may not be made until the last 6 months of the person’s current custody.

Circumstances
89 The primary judge summarised the relevant history of the appellant as follows:

[5] Mr Winters was born on 27 May 1966 and is 41 years old. During his childhood he lived with his family in Cootamundra. He was subject to both physical and sexual abuse as a child. In around 1996 he moved to Wagga Wagga where he was a student.

[6] At the time the present application was made he was serving 2 sentences of imprisonment of 9 years with non-parole periods of 5 years and 5 months following conviction for various offences of sexual intercourse with children of varying ages. He was previously convicted of other offences. A complete chronology of his offences and convictions is set out below:

Date	Event
14 April 1983	Admonished and discharged re offence of negligent driving (per s 83(3) of Child Welfare Act 1939) — Cootamundra Children’s Court
8 August 1983	Admonished and discharged re offence of supplying Indian Hemp — Cootamundra Children’s Court
3 December 1984	Convicted of stealing — Magistrate’s Court, Southport (Qld) (O’Connell SM) — placed on probation for 18 months
18 December 1987	Date of offences of: 1. peep and pry [s 547C of the Crimes Act]; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a fly screen) [s 247 (since repealed) of the Crimes Act] (offences occurred at 18 Warren St, Cootamundra at the property owned by Mr Frances Moss)
22 December 1987	Date of arrest re offences on 18 December 1987 (Mr Winters granted conditional bail)
28 February 1988	Date of (further) offences of: 1. peep and pry; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a window frame) (offences occurred at 80 Berthong St, Cootamundra at the property owned by Mr Alan Moston)
7 March 1989	Convicted in Cootamundra Local Court of 18 Dec 87 offences of: 1. peep and pry; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a fly screen) [s 247 (since repealed) of the Crimes Act] • on first offence: fined $200; • on second offence: recognizance (good behaviour) for 4 years (ie to 6.3.93); • on third offence: fined $100 [see ex JS-8 at 4267–4269]; • on fourth offence: sentenced to 150 hours community service and pay $35 compensation within 7 days On same day, convicted of 28 Feb 88 offences of: 1. peep and pry; 2. possess housebreaking implements (screwdriver); 3. unlawfully enter enclosed lands; and 4. malicious injury to property (a window frame). • on first offence: fined $200; • on second offence: recognizance (good behaviour) for 4 years (ie 6.3.93); • on third offence: fined $100; • on fourth offence: sentenced to 150 hours community service and pay $75 compensation within 7 days
3 September 1990	Convicted of offensive language. Fined $150
1 January 1997 to 18 June 1998	Dates over which offences occurred for which Winters convicted on 18 March 1999 (Payne DCJ also noting that the incidents occurred as part of a wider pattern of conduct)
18 March 1999	Convicted of 13 sex offences committed against 9 male children over the period between from 1 January 1997 to 18 June 1998: Convicted of the following: • two offences of sexual intercourse with a person under the age of 10 years (s 66A Crimes Act 1900); • one offence of sexual intercourse with a person between the age of 10 and 14 years (s 66C(1)); • four offences of aggravated indecent assault with a person under the age of 10 years (s 61M(2)); • three offences of aggravated act of indecency against a person under the age of 10 years (s 61O(2)); and • three offences of act of indecency against a person under the age of 16 years (s 61N(1)). Sentenced to overall sentence of imprisonment for 9 years, commencing on 18 June 1998, with a non-parole period of 5 years and 3 months expiring on 17 Sept 03

[7] The 13 sex offences against children, over the period between January 1997 and June 1998, which led to Mr Winters’ imprisonment involved 9 male victims aged between 8 and 15 years old. By reason of the fact that Mr Winters has been sentenced to imprisonment following his conviction for “serious sex offences” within the meaning of the Act, he is a “sex offender” within the meaning of s 4 of the Act and is amenable to an application for an order under it.

[8] The defendant was sentenced by Payne DCJ on 18 March 1999. Her Honour gave an account of the offences in the following terms:

[9] Her Honour described the offences as serious, the most serious being counts 2 and 13. His Honour found there was no suggestion of force in relation to any of the counts in the indictment. However, the Crown challenged this finding in these proceedings having regard to the fact that one complainant was tied up. Her Honour also found that none of the offences involved a breach of trust. The defendant took advantage of the vulnerability of young boys and gained their interest and attendance at his house by allowing them to use his computer and on an occasion by giving a boy cigarettes.

[10] The defendant admitted most of his serious criminal acts although he did not accept all of the allegations. The Crown conceded that although he was reticent in an earlier interview when later interviewed he gave a frank account of various matters.

[11] When the offences were committed the defendant was aged between 30 and 32. He was taken into custody on 18 June 1998. The sentencing judge found that his prior record is not one which disentitled him to some leniency. He had never previously been ordered to serve a community service order or a sentence of periodic detention or full time custody. Until the offences for which he had been sentenced his record was free of any entry since September 1990.

[12] Her Honour determined that there were special circumstances in the defendant’s case. Those circumstances required a longer than usual additional term. The special circumstances which the sentencing judge identified were that this was the defendant’s first full-time custodial sentence, the nature of the offences and the need for on-going counselling and rehabilitation to assist him to reintegrate back into the community. This need was greater because of the mental disability which it was identified affected the defendant. As it happens his Honour’s intention that there be a supervised re-entry into the community has been entirely lost.

90 The proceedings before the primary judge were commenced by a summons by the Attorney General seeking interim orders, an order for the psychiatric examination of the appellant, and the following additional orders:

4. Orders pursuant to s15(4) of the Act or, further or alternatively, s7(4) of the Act:

a. appointing 2 qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 29 June 2007; and

5. An order pursuant to s17(1)(b) of the Act that the defendant be detained in a correctional centre for 5 years from the date of the order.

6. An order pursuant to s20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the continuing detention order referred to in paragraph 5 above.

7. In the alternative to paragraphs 5 and 6 above, an order pursuant to s17(1)(a) of the Act that the defendant be subject to extended supervision for a period of 5 years from the date. of the order by complying with the following conditions:

a. the defendant must reside at an address approved by a Corrective Services Officer or Probation and Parole Officer;

b. the defendant must not change his place of residence without prior approval of a Corrective Services Officer or Probation and Parole Officer;

c. the defendant must accept home visits by a Corrective Services Officer or Probation and Parole Officer as directed by that Officer, including unannounced home visits;

d. the defendant must report to a Corrective Services Officer or Probation and Parole Officer as directed by that Officer, and must accepted the supervision and comply with any direction of any such Officer;

e. the defendant must not associate or make contact with children aged 16 years and under without the presence of a responsible adult;

f. the defendant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools, pre-schools, amusement parlours, day care centres, youth centres, drop-in centres and Police-Citizens Youth Clubs (PCYCs), and such places as a Corrective Services Officer or Probation and Parole Officer may direct;

g. the defendant must not attend any such other public places as a Corrective Services Officer or Probation and Parole Officer may direct;

h. the defendant must wear electronic monitoring equipment as directed by a Corrective Services Officer or Probation and Parole Officer, and must not tamper or interfere with or remove any such device;

i. the defendant must not change his name from Christopher Paul Winters, use, or be known by any other name;

j. the defendant must not change his appearance without approval from a Corrective Services Officer or Probation and Parole Officer and, if approved by such Officer, the defendant must agree to be photographed depicting his original and changed appearance;

k. the defendant must participate in treatment and rehabilitation as directed by a Corrective Services Officer or Probation and Parole Officer;

I. without limiting condition (k), the defendant must submit to the administration of such medication, including by injection, as is prescribed by a qualified psychiatrist nominated by a Corrective Services Officer or Probation and Parole Officer;

m. the defendant shall not consume any alcohol or illicit drugs or abuse prescription medication;

n. the defendant shall submit to drug and alcohol testing as directed by a Corrective Services Officer or Probation and Parole Officer;

o. the defendant shall not be present at any licensed premises, including but not limited to hotels, bars and race courses;

8. In the alternative to paragraphs 5 to 7 above, an order pursuant to s9(1) of the Act that the defendant be subject to extended supervision for a period of 5 years from the date of the order by complying with the conditions set out in paragraph 7 above.

Decision of Primary Judge
91 After referring to what was said by the Minister when introducing the relevant legislation into the Parliament, the primary judge commented:

[24] There will be cases, of which Mr Winters on past experience may be one, where prison based treatment has not been possible or cannot be completed. Mr Winters was removed from treatment when he attempted suicide. Where a person has not been treated, but is contemplated as suitable for release under supervision, counselling will almost certainly be a condition of the release. Ongoing counselling is provided by the State when treated prisoners are released to parole. The evidence before me also indicates that it has been provided to untreated prisoners after release, but who were released before the legislation came into force. If, as was suggested in this case, such counselling is not to be offered by the State or funded by government the consequence may be that few, if any, untreated high risk offenders could ever be released under a supervision order. This would be an inhumane consequence of legislation intended for the rehabilitation of the offender and the safety of the community. Similar problems have been identified and commented on in Western Australia: see Director of Public Prosecutions for Western Australia v Williams (2007) WASC 95 esp at [53] and [55].

92 He then discussed the interpretation of the test under s 17 of the Act, and reached a view which has now been superseded by the decision of the Court of Appeal in Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327.

93 He then referred to the following matters concerning the appellant’s time in custody:

[51] The defendant has been in custody since his arrest in relation to the various offences. In the course of his incarceration he has on occasions exhibited behaviour consistent with a continuing tendency to commit sexual offences. However, he was, for a time, administered anti-libidinal medication during which there were no reports of unsatisfactory conduct. He chose not to continue with the medication because of side effects, including breast enlargement, which caused him embarrassment in the prison environment.

[52] Mr Winters was admitted to the custody based intensive treatment (CUBIT) program. However, he was a reluctant participant and was concerned that his intellectual disability and problems with reading and writing may make the program difficult. He was also concerned that the program mixed rapists with paedophiles which would cause conflict. Notwithstanding his reluctance he was admitted to the program but was withdrawn when he attempted to commit suicide by climbing over a high balcony during a therapy session. The reason for his suicide attempt was an apparent inability to come to terms with his offending. The defendant remains effectively untreated. He has expressed views critical of the program and of the people responsible for running it.

[53] The defendant rejected contact with the Parole Board and on an occasion in 2004 expressed the view that upon release he would reoffend. I shall return to that matter later.

94 He then carefully reviewed evidence given by three psychiatrists and four psychologists, by Mr Ware, the Statewide Clinical Co-ordinator of sex offender programs within the Department of Corrective Services, and by Ms Fahs, employed by the Commissioner of Corrective Services as Co-ordinator of the Special Visitation Group.

95 He referred to the following evidence from a Correction Officer who interviewed the appellant in March 2004:

[102] Mr Theodore Dentrinos is a corrections officer based at Junee Correctional Centre. His evidence is of considerable significance in the resolution of this matter. In March 2004 Mr Winters was an inmate at Junee Centre. Mr Dentrinos interviewed him. He said in an affidavit that Mr Winters displayed a negative attitude during the interview. He described him as “smug and dismissive in respect to the crimes of which he had been convicted.” He said that Mr Winters told him that he was expecting to do his full sentence and did not intend to undertake treatment programs.

[103] Mr Dentrinos said he asked Mr Winters whether he intended to reoffend when released. He said that Mr Winters said “Yes” and grinned when he said this. Mr Dentrinos said that he took Mr Winters seriously and believed that what he was saying was his genuinely held intention. He did not “regard him as joking or trying to wind me up in any way.”

96 He also referred to evidence concerning the availability and utility of electronic monitoring of offenders.

97 After discussing the risk of the appellant re-offending, and the management plan proposed in case an extended supervision order was made, the primary judge reached the following conclusions:

[138] The decision which I am required to make has two steps. Section 17(2) requires the Court to determine whether an offender is likely to commit a further serious sex offence if not kept under supervision. That question must be answered having regard to my understanding of the correct approach to the statutory test. The evidence of each of the psychologists and psychiatrists reveals considerable uncertainty with respect to this question. However, the stated intention of Mr Winters is to reoffend. No evidence was called from Mr Winters or any one else to deny this intention. For that reason I am relevantly satisfied. Mr Winters does not oppose the making of an extended supervision order.

[139] Accordingly, it is necessary for me to determine whether adequate supervision can be provided by an extended supervision order. If it cannot, I must consider whether a continuing detention order should be made (see Gallagher NSWCA [38]). I have already discussed the standard by which the adequacy of the supervision must be assessed. In Tillman Bell J accepted that the supervision should, at the least, substantially reduce the likelihood that the defendant will reoffend. Mr Winters argues for a lower threshold.

[140] Whatever be the appropriate test, whether or not adequate supervision can be provided under an extended supervision order depends on the likely effectiveness in this case of the draft Risk Management Plan and whether Mr Winters will both comply with it and respond to the contemplated treatment.

[141] I have previously related the essential evidence of each of the experts on the effectiveness of the proposed plan if Mr Winters is released. Dr O’Dea and Dr Nielssen were satisfied that the plan was appropriate. Dr Allnutt had some reservations.

[142] I place particular confidence in the evidence of Mr Rendell. He has had very considerable experience with sexual offenders, both inside and outside the prison system. He does not, as do the other psychologists, presently have a professional involvement with the CUBIT program in the way which they have. However, he has had the opportunity, over many years, to consult with, supervise and observe the behaviour of, sexual offenders, particularly when released from the prison system. His confidence that the plan would provide appropriate management of the defendant’s risk of reoffending, in my view, should be given very considerable weight. To my mind, it is of greater significance than any reservations of the psychologists involved with the CUBIT program. It must be remembered that, although there is evidence that the CUBIT program does have positive outcomes, that evidence is limited, and whether it has any significant benefit for high risk offenders is still uncertain.

[143] The conditions proposed, if Mr Winters was released, are strict. Although his movements could not be completely controlled, and an opportunity for reoffending entirely excluded, those conditions can be monitored and, if his behaviour suggests a risk of reoffending, action could be taken to bring him to counselling. The continuing administration of anti-libidinal medication will, based on past experience, significantly reduce his sex drive. Of course, his continuing ability to accept this form of medication remains uncertain.

[144] But for two matters, I would have been satisfied that adequate supervision could be provided by an extended supervision order. In the words of the statute, the consequence of the two problems is that I cannot be satisfied that adequate supervision could be provided by an extended supervision order.

[145] The conditions of such an order would generally follow those in the draft plan presented by Mr Winters. Although the detail would require further consideration, the plan contemplates a program of intensive one-on-one treatment with Ms Howell, or another appropriate psychologist. Ms Howell is available to provide that treatment, and she is confident that it would be effective. She has very considerable experience in treating sex offenders, and I have complete confidence in her judgment.

[146] However, the capacity to fund Ms Howell’s services has proved an ultimate stumbling block in this case. I have been told that no funds are available from the Government to provide for her fees, with the consequence that the contemplated treatment would not be available.

[147] The practical effect is that legislation has been put in place which provides for the retention of persons such as Mr Winters in prison beyond the completion of their sentence who, if appropriate community resources were provided, could be released. It is not difficult to envisage, having regard to the evidence in this case, a circumstance where the effect may be that a person is incarcerated indefinitely. It could only be in the most extreme of cases that the legislature intended that an offender who had served his sentence would never again be released.

[148] These problems have been confronted in other States: see The State of Western Australia v Alvisse (2007) WASC 129 in which Murray J records the fact that the need for suitable community based treatment has been identified and is being addressed [47].

[149] However, the need for an attempt to be made at effective treatment in Mr Winters’ case is confirmed by the evidence of Mr Dentrinos. As I have already indicated he said that Mr Winters has said that he intends to reoffend when released. Whether this statement was made with intent, or merely designed to cause alarm, I cannot assess. Mr Winters did not give evidence. However, that statement, together with the lack of available treatment, persuades me that, whatever be the relevant standard, and in any event even to the threshold contended for by the defendant, adequate supervision of Mr Winters cannot be provided by an extended supervision order.

[150] Without intensive psychological counselling, Mr Winters’ risk of reoffending would remain largely undiminished, particularly when his ability to continue anti-libidinal medication has not been confirmed.

[151] In these circumstances, I have come to the view that a continuing detention order should be made.

[152] The Attorney General asks for an order for a period of five years. To my mind this is not appropriate. As I have indicated, if I was confident that the management plan could be implemented and carried out, I would have made an extended supervision order.

[153] The psychologists who gave evidence before me believe that Mr Winters should be treated in the CUBIT program before his release. They also believe that he should now be able to complete that program which may enable his release, pursuant to an extended supervision order with conditions which can be adequately resourced. The CUBIT program takes a minimum of eight months and can be completed within twelve months. In these circumstances, an order which provides for Mr Winters to be detained for twelve months from today’s date is appropriate. This will enable Mr Winters to undergo the CUBIT program and receive appropriate medication with an opportunity to determine the effectiveness of the treatment regime. It will require the Attorney General to make an application within the twelve months period if he seeks to continue Mr Winters’ detention or facilitate his release under supervision.

[154] As I have indicated Mr Winters filed a Motion in which he sought the following order:

[155] The defendant submitted that the Attorney General’s conduct in instituting the proceedings constitutes an abuse of process, which justifies an order for a stay. The foundation for that submission is the identified lack of funding for intensive psychological counselling for Mr Winters within the community.

[156] This Court has inherent jurisdiction to stay proceedings as an abuse of process (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 518). The power to stay proceedings is confirmed by s 67 of the Civil Procedure Act 2005. Pursuant to Uniform Civil Procedure Rules 2005 r 13.4, the court may order that the proceedings be dismissed, if it appears that the proceedings are an abuse of the process of the court.

[157] The circumstances which may constitute an abuse of process vary and the categories are not closed. (Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [9] per Gleeson CJ, Gummow J, Hayne J and Crennan J). Proceedings that are: (i) instituted for an improper or illegitimate purpose; (ii) seriously and unfairly burdensome, prejudicial or damaging or ‘productive of serious and unjustified trouble and harassment’ such as unreasonable delay (at [14]); (iii) are frivolous, vexatious or oppressive, especially if they raise anew a res judicata; (iv) foredoomed to fail; (v) instituted in an inappropriate forum; or (vi) liable to bring the administration of justice into disrepute may all be an abuse of process (see Batistatos at [14]–[15]; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509)

[158] There are two policy considerations of particular relevance in criminal proceedings but which to my mind are relevant to proceedings under the legislation invoked by the Attorney General in the present proceedings:

[159] The defendant submitted that the Attorney General maintained these proceedings in the full knowledge that his office will not pay for or organise the intensive one-on-one psychological treatment for Mr Winters contemplated in the draft Risk Management Plan, and furthermore in the knowledge that no other government agency will fund or provide the necessary treatment. Because the proposed psychological treatment cannot be provided it was submitted that the court’s capacity to make an extended supervision order was entirely removed.

[160] The defendant emphasised that Ms Howell had given evidence that she was privately treating two high risk serious sex offenders, one of whom had not completed the CUBIT program, and that funding for this treatment was provided through the Probation and Parole Service. In these circumstances, the defendant submitted that the application was “unfair, oppressive and constitutes an abuse of process”. Counsel relied on an analogy with Dietrich v R [1992] HCA 57; (1992) 177 CLR 292. In that case, an indigent accused charged with a serious offence was denied legal aid funding for his representation. The High Court held that as a result he was denied a fair trial. His lack of legal representation denied him a real chance of acquittal. Likewise, on behalf of Mr Winters it was submitted that through no fault of his own (as he does not have any private funds) but because no government funding is available, he could not receive the psychological treatment which was agreed to be required if he was released.

(i) one of the court’s available discretionary options was frustrated or effectively removed, with the full knowledge of the plaintiff;

(ii) the application was an attempt to manipulate this Court into a position where it will be forced to grant a continuing detention order and act as a “mere instrument of government policy”;

(iv) these proceedings constitute “an affront to the community’s sense of confidence in the public administration of justice”.

[162] The plaintiff emphasised that the Attorney General’s Department does not fund the provision of private psychological counselling services to individuals. The responsibility of providing psychological treatment for offenders rests with the Department of Corrective Services, which operates its own programs such as CUBIT, which are group-based programs. No one-on-one or community-based treatment programs are provided. The plaintiff submitted that the evidence confirms that although Ms Howell has been paid when treating two high-risk serious sex offenders the circumstances were exceptional. I accept this submission. It was further submitted that the unavailability of funding by the plaintiff for the one-on-one private psychological treatment of the defendant in the community was not a matter of unfair discrimination. Funding for such an arrangement is simply not available from any potential source, be it government or charitable. It was submitted that decisions as to whether or not to provide funding were policy questions to be determined by government and it was a legitimate exercise of the discretion to deny funding for one-on-one counselling.

[163] The plaintiff submitted that the lack of one-on-one counselling in the community does not frustrate the purposes of the Act. CUBIT, with its group therapy approach and 24 hours support of participants in a therapeutic community, provides for the rehabilitation for persons such as the defendant and protection of the safety of the community. It was submitted that in these proceedings, the Court is “being asked to do no more than apply the terms of the Act to the circumstances of the Defendant on the evidence as presented”. There is no evidence of improper purpose on the part of the Attorney General or any attempt to have the court act as an instrument of government policy.

[164] The plaintiff submitted that the defendant’s complaint was properly characterised as one concerning the fairness of the outcome of the application under the Act rather than the fairness of the hearing or process. It was submitted that the defendant’s reliance upon Dietrich was misplaced, given that the decision in that case was about the right to a fair trial and not the outcome of that trial. Any unfairness of the outcome following the proper application of the legislation was a matter for the Parliament.

[165] Finally, the plaintiff submitted that these proceedings are not manifestly unfair and would not otherwise bring the administration of justice into disrepute among right-thinking people, simply because of the unavailability of an essential feature of a risk management plan. There can be any number of reasons outside the control of the defendant and the Attorney General or any other government agency, which might prevent a critical feature from being available to a particular defendant.

[166] In my judgment the Attorney General’s submission must be accepted. The plaintiff does not complain, and nor could he, that the proceedings in this Court were unfair. Both Mr Winters and the Attorney General have been provided with extensive opportunities to place evidence before the court and make relevant submissions.

[167] Mr Winters’ application for a stay was made in anticipation that I would find that in the absence of intensive one-on-one counselling in the community, in the exercise of my discretion Mr Winters should not be released. This outcome became increasingly likely as the concurrent evidence sessions occurred. As it happens the lack of community based treatment is material to my decision to make a detention order. However, the fact that it is not available to Mr Winters is as a result of two factors. Firstly, as a matter of policy the government has presently determined that it will not support one-on-one counselling in the community other than in extraordinary circumstances. Secondly, Mr Winters’ personal impecuniosity means that he cannot meet the cost of treatment from his own resources.

[168] Whether Mr Winters’ failure to complete the CUBIT program during his prison term was due in any degree to his own choice or was entirely a product of his psychological difficulties I could not determine. The Attorney-General places substantial responsibility on Mr Winters. The desirability of Mr Winters completing a treatment program is not questioned. Whether he can now do so in group session has yet to be determined. During the course of the next twelve months Mr Winters’ response to group treatment will become apparent. If it happens that he remains unable to complete a group based program I would expect that the responsible authorities will endeavour to ensure that alternative treatment is available.

[169] The confined treatment regime which is presently available is a result of decisions taken by government on the advice of the experts who are available to it. However, the evidence before me, leaving aside the question of the required financial resources, suggests that there are significant questions as to whether group therapy within a penal institution is the only appropriate treatment for some offenders. There are also questions as to the effectiveness of group treatment in reducing the likelihood of recidivism amongst a person classified as a high risk sex offender. If the evidence justified a conclusion that treatment would be of no benefit to any individual the discretion given to the court by the legislation would have to be exercised with this fact in mind. It would only be in the most extreme case that a person would never be released although the stringency of any conditions controlling their activities in the community would require careful consideration.

[170] In the present case the need for Mr Winters to receive counselling is not doubted. If, which is not the case, no counselling of any form was available, the court would nevertheless have to consider whether Mr Winters should be released. Given that, because of the cost, treatment is only available within the prison system I have been required in the exercise of my discretion to determine whether release under supervision would be appropriate.

[171] The fact that the policy decisions of government confine the range of treatment options which are available does not mean that by bringing the present proceedings and arguing that a form of treatment is essential if Mr Winters is to be released the proceedings are an abuse of process. If the Attorney General argued that treatment was essential, but no treatment regime was available at all, to my mind the proceedings would not be an abuse. The proceedings would be brought in accordance with the legislation enacted by the Parliament. However, in these circumstances, the exercise of the discretion would be informed by the fact that facilities which the Attorney General said were essential were simply not available.

[172] In my judgment Mr Winters’ submission that the position is analogous to that in Dietrich is not correct. Abuse of process is essentially concerned with the conduct of the proceedings. A fair hearing entails fairness of the process. Perceptions of the fairness of the outcome is another matter.

[173] In Dietrich, the denial (through no fault of the indigent accused) of legal aid and legal representation directly affected the accused’s right to a fair trial. In the present case, the lack of funding to provide one-on-one psychological treatment for the defendant does not affect, directly or indirectly, the fairness of the hearing although it is relevant to the decision which must be made.

[174] It may be that the decision which a court will make in the exercise of its discretion will be judged by the Attorney General or the offender to be unfair. In that event the decision can be reviewed, in accordance with the relevant principles by the Court of Appeal. However, if it is the situation that the court’s decision is a result of the legislative policy, reflected in the Act when applied to the circumstances of a particular individual, the court would never be justified in refusing to exercise jurisdiction (see Fardon v Attorney General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [23]).

[175] The constitutional validity of the Act cannot now be doubted (see Fardon). Under the Act this Court exercises the discretion provided by s 17 having regard to the evidence before it and independently of any instruction, advice or wish of the legislative or executive branches of government. No policy is imposed on the Court, in a manner analogous to an administrative decision-maker acting under dictation.

2. His Honour erred by having regard to, or giving too much weight to, evidence that there was a policy not to provide or fund treatment for offenders in the community.

100 Having regard to the decision in Tillman, ground 1 was not seriously pressed, independently of ground 2.

Submissions
101 It is to be noted that before the primary judge the Attorney General proposed that, should the Court make an extended supervision order, the terms of the order should include the following condition 4(e):

e. The defendant must engage in psychological treatment of at least three sessions per week (with each session of at least one hour's duration) with Jenny Howell (or a substitute psychologist if she is away, or such other psychologist as may thereafter be notified to the defendant by SVG) immediately upon release, with the treatment goal of the defendant being able effectively to manage his risk of sexually re-offending, and with the frequency of visits thereafter to be modified as the treating psychologist in consultation with SVG considers appropriate;

102 Mr Haesler SC for the appellant submitted that the primary judge erred in finding to the effect that, even if the Court made an extended supervision order in the terms sought by the Attorney General, including condition 4(e), the State Government would not provide funding for the sessions with Ms Howell and that accordingly this aspect of the management plan would not be put into effect. Mr Haesler submitted both that the evidence actually led did not justify that conclusion, and also that in any event the primary judge should have presumed that the Executive would respect the will of Parliament by ensuring that the conditions imposed by the Court pursuant to s 11(d) of the Act were not frustrated because the Executive did not give effect to them.

103 In this regard, Mr Haesler referred to Attorney General for the State of Queensland v Francis at first instance [2005] QSC 381 at [33]; and on appeal [2006] QCA 324, [2007] 1 QdR 396, at [31]; and to DPP (WA) v Mangolamara [2007] WASC 71, (2007) 169 A Crim R 379, at [178]-[184]. He submitted that, for the Court not to impose appropriate conditions because the Executive would not give effect to them, would make the Court an instrument of Government policy, which would be inconsistent with the Court’s judicial character: cf Fardon v State of Queensland [2004] HCA 46, (2004) 223 CLR 575 at [19]- [23].

104 Mr Haesler noted that the primary judge also relied on a statement attributed to the appellant that he would offend if released; but he submitted that the primary judge relied on it only in combination with the lack of funding for the sessions with Ms Howell. He submitted that, if the condition concerning sessions with Ms Howell could be put into effect, the appellant’s statement that he would offend would not of itself justify a conclusion, to a high degree of probability, that adequate supervision would not be provided.

105 Mr Haesler also submitted that the primary judge erred in taking into account, in support of the conclusion that adequate supervision would not be provided, a perceived problem with the legislation; that problem being that the power to vary an extended supervision order under s13 does not authorise a return to custody if conditions are breached or become impossible to meet, unless there is first a conviction for an offence or an arrest and refusal of bail.

Decision
106 Dealing first with the last point, I note that the problem has to some extent been addressed by the new s 14A, inserted into the Act in December last year. In any event, although the primary judge did comment on the matter, in my opinion he did not take it into account in any way which affected the manner in which he addressed the questions raised by s 17 of the Act.

107 One other preliminary matter is that I note that, at paragraph [144] of his judgment, the primary judge stated that he could not be satisfied that adequate supervision could be provided by an extended supervision order. That finding would not justify a continuing detention order, because such an order could not be made unless the Court was satisfied, to a high degree of probability, that adequate supervision would not be provided by an extended supervision order. However, in the final sentence of paragraph [149], the primary judge said he was persuaded, whatever be the relevant standard, that adequate supervision could not be provided; and that finding reflected a correct view of the onus of proof, and was one which would justify a continuing detention order.

108 Turning to the principal point in the appeal, the matter of funding the sessions with Ms Howell, there are in my opinion two questions to be considered:

109 In relation to the first question, the matter has been the subject of consideration in courts in other States, where there is legislation to somewhat similar effect, though not identical with the Act.

110 In the Queensland case of Francis, McKenzie J at first instance ([2005] QSC 381) had made an order that the respondent be held in custody. On appeal, the Queensland Court of Appeal (Keane and Holmes JJA and Dutney J) said this, at [2006] QCA 324, paragraph [31]:

[31] It is possible, too, that the view taken by Gummow J in Fardon v Attorney-General for Queensland [[2004] HCA 46; (2004) 78 ALJR 1519 at 1541 [113]] supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive. The character of the detention authorised by the Act is, as was explained in the reasons of the High Court in Fardon v Attorney-General for Queensland [[2004] HCA 46; (2004) 78 ALJR 1519 at 1520 [2], 1524 [19], 1526–1527 [33]–[34], 1534–1536 [72]–[81], 1540–1541 [107]–[113], 1557 [196], 1561–1564 [214]–[233]], not punitive but preventive.

111 The court then set out some passages from the first instance judgment, and it continued:

[36] It appears from the penultimate paragraph in the passage cited that his Honour was of the view that the conditions necessary to the supervised release of the appellant could be sufficiently enforced to ensure adequate protection of the community only if "there was sufficiently intensive commitment of resources by the department to monitoring compliance". It is implicit in the paragraph which follows in his Honour's reasons that he had come to the view that the department would not provide a sufficiently intensive commitment of resources "to provide effective supervision of the [appellant] to ensure compliance with the conditions essential to supervised release".

[37] There was no evidence, however, that the resources required of the department to provide effective monitoring of the appellant's compliance with the conditions of supervised release would be so extensive that it would be unreasonable to expect them to be provided, or that the effective provision of such resources would be impracticable. It must be borne in mind that any supervision order made by the court under the Act must contain, by virtue of s 16(2)(f), a condition for supervision of the prisoner while on supervised release. The Act thus assumes that supervision will be available. The court should not conclude either that it will not be made available or will not be made sufficiently available in the absence of clear evidence to that effect and an explanation as to why its provision is regarded as unreasonable or impracticable. There was no reason to conclude that any necessary supervision by the department could not, or would not, be made available.

[38] In this regard, it is necessary to focus upon the particular nature of the risk which the appellant poses to the community. Those women at risk are those with whom the appellant is in an intimate relationship, and the risk arises when he has engaged in alcohol or drug abuse. Monitoring by the department with the assistance of information from BBA would be likely to prevent the concatenation of circumstances which makes the appellant dangerous. Examples of such monitoring were adverted to in the extract from the learned primary judge's reasons above.

[39] Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be "watertight"; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.

[40] Accordingly, we respectfully consider that his Honour's reasoning reveals an error of law in his approach to the question whether the protection of the community could adequately be ensured by an order for supervised release.

112 However, the court did not order release of the appellant, but stood the matter over for further evidence.

113 In the Western Australian case of Director of Public Prosecutions (WA) v Williams [2007] WASCA 206, the primary judge had found that the respondent was a serious danger to the community and that there was an unacceptable risk that if he was not subject to some form of order he would commit a serious sexual offence; but he was not satisfied that a detention order should be made rather than a supervision order; and because the Director of Public Prosecutions had not established what supervision order would be appropriate, the primary judge refused to make any order at all.

114 The Western Australian Court of Appeal allowed an appeal from that decision, holding that the primary judge should have adjourned the case to enable evidence to be led which would enable determination of what order would be appropriate. The leading judgment by Wheeler JA (with whom Le Miere AJA agreed) said this, at paragraphs [79] to [86]:

[79] In oral argument before us, counsel for the appellant recognised that Parliament must have intended that the DPP would bear the responsibility for providing the court with relevant evidence concerning what forms of supervision might be available, so as to enable the court to make a choice between the making of a supervision order and the making of a detention order. It was conceded that it would not be open to the DPP simply to adduce no evidence in relation to any possible supervision mechanisms and then to rely upon that lack of evidence to found a submission that supervision had not been shown to be capable of protecting the community. Further, it was accepted before us that the least restrictive alternative compatible with the protection of the public, would be the order which it would be appropriate to make. However, it was submitted that his Honour was in error in the present case because, having found that "the evidence falls well short of establishing what order should be made ... to ensure the protection of the community", he dismissed the application (at [66]–[67]). It was submitted that in those circumstances what he should have done was to have made a detention order, that being the only order which was capable of ensuring the protection of the community.

[80] I accept that his Honour was in error in dismissing the application without making any order at all. However, the difficulty which his Honour faced was more complex than is suggested by the appellant's submissions. Summarised broadly, it appears to me that his Honour was satisfied that there was some evidence before him which suggested that a supervision order of some kind might possibly be adequate to ensure the protection of the community. However, no work had been done to assess the respondent's suitability for any particular programme, or to formulate any particular conditions which might be appropriate. It is plain that work of that kind can be done. In the case of The State of Western Australia v Alvisse [2006] WASC 279, Murray J referred at [34]–[35] to a detailed set of conditions which had been proposed, including provision of a case worker to co-ordinate that offender's programme with relevant agencies, a paid mentor, psychiatric management and treatment, antilibidinal medication and substance abuse counselling and urinalysis. By contrast, before McKechnie J, there was simply a range of possibilities raised with an indication that there were funding difficulties of some kind, and no indication of how appropriate programmes might be made available to, and what conditions should be imposed upon, the respondent.

[81] There are a number of issues raised by the situation in which his Honour found himself. One, which was touched upon during the course of argument before us, was the question of funding difficulties. In my view, they were not matters with which his Honour had to be concerned. The Act provides in s 4 that its objects are, inter alia, to provide for continuing "control, care, or treatment" of persons of a particular class. If those persons require control, care or treatment in order to protect the community, the court can assume that, if an order is made, the executive will perform its function of protecting the community by the provision of appropriate assessment and resources. There is an analogy with the making of orders such as intensive supervision orders to which offenders may be sentenced. Those orders may require offenders to undergo certain forms of assessment or programmes. Since Parliament has made provision for them, the court must assume they will be available. These observations of course apply only to the provision of services which can be provided in one way or another by the executive. There is nothing in the Act to suggest that the Parliament intended to impose obligations on members of the public at large, and McKechnie J was correct in rejecting that possibility (at [60]) of his Honour's reasons.

[82] Another issue raised by the difficulties faced by his Honour in this case, is the question of inadequacy of information or the offender's failure to cooperate. There are a number of assumptions in the Act about the course of these hearings, but events will not necessarily unfold as Parliament has assumed. It is, for example, assumed that the court will have sufficiently detailed information about the offender to enable it to make an assessment of the likelihood of the offender's reoffending. However, as Parliament recognised in s 37(4), not all offenders will wish to cooperate by providing relevant information about themselves. Some may not be able to do so, as a result of mental incapacity, or language difficulties. Where that is the case, it would, in my view, be open to the court to consider whether the inadequacy of information stems from a desire on the part of the offender not to cooperate with authorities and, if that is the case, to draw from that lack of cooperation an adverse inference about the progress of the offender's rehabilitation. If, however, the information is inadequate for other reasons, the onus in s 7(2) will not be satisfied.

[83] Similarly, it may be, on occasion, that the court forms the view that the responsible authorities have simply not troubled adequately to consider what conditions might be imposed, as part of the terms of the supervision order, in order to protect the public. The court may, in some circumstances, infer that this is because the relevant authorities are confident that they can, with more or less difficulty, put in place adequate supervisory measures if required to do so. It might in such a case be appropriate for the court simply to make a supervision order containing the standard terms required by s 18(1) and to impose an additional term along the lines of a requirement that the offender comply with the directions of the community corrections officer with respect to specified matters, such as psychiatric treatment or substance abuse treatment or urinalysis or the like, leaving those directions to be made after appropriate assessment.

[84] However, it may also be the case that the inadequacy of information before the court stems from other causes. For example, it appears before McKechnie J that the psychiatrists who reported pursuant to s 37 did not see it as their role to attempt to suggest what the terms of any supervision order might be, while other witnesses called by the DPP took the view that it was more appropriate for them to respond to concrete proposals made by the respondent or by others, rather than themselves suggesting appropriate programmes or conditions.

[85] It is not clear, in the present case, why counsel for the DPP before McKechnie J did not seek to have the proceedings adjourned, so that further evidence could be adduced, when the inadequacy of the material before his Honour became apparent. However, even in the absence of an application for adjournment, where the court forms the view that the DPP has established that the person is a serious danger to the community, but that the evidence before the court is inadequate to enable an appropriate choice of order to be made, then in my view it would be appropriate for the court to indicate that preliminary view, and to direct, pursuant to s 43, that within a specified period the DPP adduce evidence addressing the deficiency identified, and of course affording to the offender an opportunity to adduce evidence in relation to the same matter.

[86] In the present case, therefore, it is my view that when, either during or at the conclusion of the hearing before him, McKechnie J reached a provisional view that the evidence he had was inadequate for him to determine which of the orders pursuant to s 17 was appropriate, he should have communicated that provisional view to the parties, and given appropriate directions for the calling of further evidence. Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.

115 There was also consideration in that case as to whether there was a discretion not to make an order, if the requirements for an order had been made out. Martin CJ said there was a discretion, though little room for it to be exercised against the making of an order. Wheeler JA and Le Miere AJA considered there was no discretion. I will give reasons below why I think, in the case of the New South Wales legislation, there is a discretion not to make an order, where the conditions precedent for an order under s17(3) have been satisfied.

116 The views expressed by Wheeler JA in paragraph [81] of the judgment in Williams are pertinent to the question under consideration. However, in expressing views as to what the Court “can assume” or “must assume”, it is not clear whether her Honour is saying in effect that there is an irrebuttable presumption of law on these matters, or saying in effect that there is a rebuttable presumption of fact.

117 In my opinion, where legislation authorises a court to make orders which are such that they require action by the State in order that they be effective, it would not be open for any party to oppose the making of such an order by leading evidence that the State would not do what was required of it to make the order effective. In such cases, the Court can assume the Executive would perform the function that the Parliament, by passing the legislation in question, had indicated it should perform; and that assumption could not, in my opinion, be displaced by evidence to the contrary.

118 For example, a statute providing for punishment by imprisonment authorises an order that an offender serve a term of imprisonment, that is, an order that can only be effective if the State provides the necessary prison facilities. In my opinion, it would not be open for any party to oppose the making of such an order by leading evidence that no such facilities were available. Thus, in a case where a statute provided the alternatives of a fine or imprisonment, I do not think the State could lead evidence to the effect that it could not or would not carry out imprisonment, so that the Court should impose a fine. In that sense, I think the assumption that prison facilities would be provided is of the nature of an irrebuttable presumption of law, rather than a rebuttable presumption of fact. (In saying this, I do not mean to exclude the possibility that an offender might lead evidence that overcrowding in prison facilities made a sentence more onerous, so that a shorter sentence should be imposed.)

119 There are statutory provisions which explicitly raise a factual question as to whether facilities are available. The Crimes (Sentencing Procedure) Act 1999 makes provision for sentence of periodic detention; and s 66(1)(d) of that Act provides that such an order may not be made unless the court is satisfied that “there is accommodation available at a periodic detention centre for the offender to serve the sentence by way of periodic detention”. In relation to provisions like that, evidence is required to satisfy the Court that facilities are available.

120 The Act under consideration, in s 11, deals with the content of supervision orders; and it indicates that such orders take the form of directions to the offender to comply with conditions. These conditions relevantly include directions requiring the offender “(d) to participate in treatment or rehabilitation programs”.

121 In my opinion, it is relevant that the orders so authorised are directed solely to the offender, and do not expressly or impliedly require the State to do anything. In that respect, they are unlike orders for a term of imprisonment, which at least impliedly require the State to provide the necessary facilities. The terms of s 11(d) do not define or limit the treatment or rehabilitation programs which may be specified in an order; and in my opinion, they do not disclose a legislative intention that the Court should be able to formulate any such program as it chooses, and to assume irrebuttably that the Executive would provide such a program.

122 Accordingly, in my opinion, it would not be appropriate to treat any assumption that the Court may make as to the willingness and ability of the Executive to provide such programs as being, in effect, an irrebuttable presumption of law. If a program is proposed which on its face seems to be one which should reasonably be supported by the Executive (and a fortiori if, as in this case, it is proposed by the applicant itself), then in my opinion the Court may assume that the State will provide it, but only as a rebuttable presumption of fact.

123 Thus, in my opinion, if the Court was satisfied, to a high degree of probability, that an offender would be likely to commit a further serious sex offence, unless subject to a supervision order which included participation in some treatment or rehabilitation program, and also was satisfied, to a high degree of probability, that such treatment or rehabilitation program would not in fact be provided, then the conditions under s17(3) would be satisfied.

124 However, in my opinion, the Court has a discretion to decline to make any order; and this discretion could perhaps be exercised if the Court considered to be sufficiently unreasonable a failure by the Executive to make provision which would give effect to appropriate conditions of a supervision order.

125 That there is such a discretion is suggested by the use of the word “may” in s17(1), (2) and (3), by the form of s17(2) and (3) specifying conditions precedent that must be satisfied before an order “may” be made, and by the terms of s17(4), in particular s17(4)(a). The safety of the community is not a matter relevant to the conditions precedent in s17(2) and (3), so must go to the exercise of a discretion. Of course, the terms of s17(4)(a), particularly when combined with the new s3 which makes the safety and protection of the community the primary object of the Act, provide very powerful grounds for exercising this discretion in favour of making an order, once the conditions precedent are satisfied; but there is in my opinion a discretion not to make an order.

126 The Act provides for detention of offenders beyond the expiration of the sentence imposed as being appropriate in respect of their offending, and discloses an intention that effective supervision should be provided where this is adequate, and that continued detention should be ordered only where supervision would not be adequate. In those circumstances, for the Executive to seek to secure the continued detention of an offender, while making inadequate provision for effective supervision which would have enabled the offender’s release, might be considered unreasonable and might justify an exercise of discretion against the granting of an order.

127 I note that in Fardon v Attorney General (Queensland) [2004] HCA 46, (2004) 223 CLR 575, in which the High Court of Australia upheld the constitutional validity of the similar Queensland legislation, Gleeson CJ said this at paragraph [19]:

[19] The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.

If the Supreme Court was bound to make an order for continued detention, whenever the Executive made no provision for appropriate supervision, it could be said that the Supreme Court was a mere instrument for Government policy.

128 On the other hand, decisions about how to allocate resources for the rehabilitation of offenders and the protection of the community are decisions for Parliament and/or the Executive and not for the courts.

129 For those reasons, in my opinion the first question should be answered in the negative: evidence was led to the effect that funding would not be provided for sessions with Ms Howell, and it was appropriate for the primary judge to address the question of fact raised by that evidence.

130 In order to address the question of whether the primary judge erred in his decision on that issue of fact, it is necessary to note the submissions that were made to him.

131 In the primary written submissions made for the Attorney General before the primary judge, said to have been served on 30 August 2007 but dated 1st September 2007, there appears the following:

224 The evidence as to the availability of psychological treatment in the community which is suitable for Mr Winters is problematic at best. Group therapy, the modality of choice, is not presently available. There is no evidence that there would be funding available for the frequency (intensity) of psychological treatment which is needed in Mr Winter’s case – or, indeed, any therapy. The Defendant concedes that in that event there will be no psychological therapy (T217.29). It is agreed by all witnesses that twelve one hour sessions (per Medicare funding) would not be adequate.

132 The appellant’s written submissions before the primary judge, dated 31 August 2007, included the following:

23. Senior counsel for the plaintiff says his instructions are that the Attorney-General will not pay for the psychological treatment to be provided by Ms Howell. The uncontradicted evidence is that Ms Howell is treating “high risk” offenders released upon parole without completing CUBIT which is being paid for by the Attorney-General. No evidence has been produced by the plaintiff to justify why the Attorney-General should not pay for the treatment of Mr Winters as per the usual arrangements with Ms Howell in this context. It is submitted it is untenable for the plaintiff to suggest in this particular case the treatment payment will be refused so as to attempt to argue that otherwise available treatment in the ordinary course of affairs is not available in this case because of the refusal to fund some. The Court should make the order which is requested by the plaintiff in accordance with its alternate application for an extended supervision plan including treatment as directed by Probation and Parole in accordance with its power pursuant to s11(d).

133 Subsequently, the appellant made an application for a stay of proceedings, on the basis that the proceedings were an abuse of process in circumstances where funding would not be provided for treatment by Ms Howell. In the appellant’s submissions on this application, dated 10 September 2007, the following appears:

2. The unchallenged and uncontradicted evidence of Ms Howell is she is privately treating two high risk serious sex offenders at least one of whom was originally released upon parole without completing CUBIT and that this treatment is being paid for by the Attorney-General this arrangement having been organised by Probation and Parole.

3. The Court should not give any weight to representations by senior counsel for the plaintiff in the course of submissions seeking in effect to qualify Ms Howell's evidence when her evidence was not challenged nor evidence produced to the contrary in the course of the hearing.

4. In any event, whether or not it is ultimately the Attorney-General or another government instrumentality who should be responsible for the payment of the identified psychological treatment (upon the evidence in the order of two sessions a week) with Ms Howell the Attorney-General maintains this application in the full knowledge neither his office nor any other government agency will pay for this treatment or otherwise arrange to provide this treatment by similarly qualified psychologists in the government employ.

134 The submissions for the Attorney General in response dated 11 September 2007 contain the following:

5 In response to the application made by the Defendant, the Plaintiff relies upon the evidence in the proceedings and, in addition, the evidence in the affidavits of Lida Kaban, affirmed 8 September 2007, and Luke Grant, affirmed 11 September 2007. The evidence of Ms Kaban goes to the evidence from Ms Howell (T192.14) that she has been paid through the Attorney General’s Department for three parolees in the high risk category who were referred to her for treatment. It might be noted that when Ms Howell was asked to explain her experience in that regard, she referred (T192.22-31) to only two individuals, not three, and it was also referred in this manner by the Defendant's counsel (T331.55).

6 Ms Kaban provides the details of the administrative enquiries undertaken by the Attorney General's Department about which the Court has been informed by the Plaintiff's counsel (T338.55-339.31).

7 In her affidavit, Ms Kaban explains that there can be found only one record of payment to Ms Howell by the Attorney General's Department for what was clearly a claim for payment for provision of a treatment service. However, this arose where the Court Services division of the Department made the payment in the very unusual circumstances of an unfortunately framed order of a Local Court magistrate referred to in Ms Kaban's affidavit.

8 The fact is that the Attorney General's Department is not funded to provide private counselling services to individuals (see Kaban, par 22).

9 Mr Grant gives evidence of what it should be concluded is the second client of whom Ms Howell spoke. Mr Grant is an Assistant Commissioner of Corrective Services and says that in 2006 the Department of Corrective Services paid Ms Howell for providing psychological treatment to a parolee, Mr Sleeman. The circumstances were that Mr Sleeman had Asperger's Syndrome. Aspergers is a pervasive developmental disability characterized by severe and enduring impairment of social skills and restrictive and repetitive behaviours and interests, leading to impaired social and occupational functioning but without significant delays in language development (Stedman's Medical Dictionary, 27th ed, 2000, p 525). It was a condition of his parole that he be provided with treatment by Ms Howell. The parolee's family were unable to continue paying for the treatment.

10 Against the background of the fact that the Department of Corrective Services does not fund the provision by private practitioners of psychological treatment for sex offenders released into the community (as to which see below), the funding in 2006 of part of Mr Sleeman's treatment by Ms Howell was, as was indicated in "Summary of the Availability of Psychological Treatment and its Funding" ([ex D], p 2, col 2), a special circumstance case.

11 The evidence in the proceedings establishes that psychological treatment programs for high risk sex offenders fall under the responsibility of the Department of Corrective Services (and not the Attorney General). This is not surprising given the likely expertise of psychologists within the Department of Corrective Services and the day to day experience of such professionals with high risk sex offenders.

12 The evidence established that, quite independently of any particular circumstances arising from the present proceedings, the provision of psychological treatment provided by the Department of Corrective Services may be summarised as follows -

(a) The Department of Corrective Services operates the CUBIT (Custody-based Intensive Treatment) program for moderate to high risk sex offenders. The CUBIT program is detailed in the affidavit of David Bright affirmed 1 June 2007. The program is a high intensity treatment program that is conducted in a therapeutic environment.

(b) Since changes were made to the program in 2005, the CUBIT program is now less confronting and participants are highly unlikely not to be able to complete the program. The evidence is to the effect that the CUBIT drop-out rate since the end of 2005 is close to zero (see T194.30-41 – Mr Bright).

(c) The CUBIT program is properly seen as part of a tiered through-care treatment stream - with a PREP pre-treatment program aimed at assisting offenders in preparing to undertake a treatment program (such as CUBIT) (see Bright, pars 63-66; and Sahm T196.21-37). In addition, the Department of Corrective Services operates a maintenance program, both in custody and in the community, for offenders who have completed a treatment program (such as CUBIT).

(d) In addition, the Department of Corrective Services operates a treatment program for low to moderate risk sex offenders called the CORE program. The CORE program is provided both within custody and in the community. The program is not an intensive full-time program in the same manner as the CUBIT program (Bright, pars 60-62; Ware, pars 47-48).

(e) The treatment programs that the Department of Corrective Services is funded to undertake are group-based programs. The evidence is to the effect that group-based programs almost universally recognised as the treatment of choice with sexual offenders (Ware, pars 32, 44). On the importance of group-based therapy for high risk sex offenders, see Bright, pars 32, 44. Consider also the evidence of Mr Rendell at T159.27 -37 as to the very real, practical benefits for an offender arising from group- based treatment.

(f) One-on-one psychological counselling (for sex offence specific treatment) is not available within the prison system (see T194.16- 22 -evidence of Mr Bright). Nor does the Department of Corrective Services provide one-on-one psychological treatment for offenders who have been released from custody. The evidence is to the effect that the Department of Corrective Services is unwilling to commit resources for one-one-one counselling in light of the limited data suggesting that it is beneficial (see Ware, par 46).

(g) The custodial, as opposed to community-based, setting for the CUBIT program provides a safe environment for participants, staff and other persons. Within such custodial and therapeutic setting, the risk to the offenders and to other people can be monitored and managed in a way that would not be possible in the community (consider Sahm, at [57]).

(h) The Department of Corrective Services is not funded to and does not provide a community-based treatment program for high risk sex offenders. This is the current position and it was also the position before the coming into force of the 2006 Act.

(i) At a ministerial level, consideration may be given by the Department of Corrective Services to the development of a program in the community for high risk sex offenders. However such a program has not to date been given approval to proceed (see Ware T141.37-53). It may be assumed that, if approval were given for any such program, it would be not operational for some period of time thereafter (being, on the evidence, not less than 6 months).

13 Relevantly to this application, it should be concluded that the Attorney General's Department is not funded to provide private counselling services to individuals and that, in that context, the payment for services provided by Ms Howell pursuant to a Local Court order was an aberration and not pursuant to any policy or funding from Consolidated Revenue. There is no cogent evidence of any such policy or practice as to funding by the Department, and the evidence of Ms Kaban is firmly to the contrary (see eg Kaban, par 22).

14 The fact that funding is not available from the Plaintiff for psychological treatment of the Defendant is not a matter of unfair discrimination against him by the Plaintiff. Rather the fact is that funding is not available from any source for psychological treatment of the Defendant. It is not available from the Plaintiff. It is not presently available from the Department of Corrective Services (see "Summary of the Availability of Psychological Treatment and its Funding" [ex D]). The case of Mr Sleeman, a person with Asperger's Syndrome, was a special circumstance.

15 Funding is seemingly not available from the Legal Aid Commission for psychological treatment of the Defendant. It is not presently available from any potential source, including community and charitable sources (despite Ms Howell's reduction of her fees in some such cases (T191.33-38. That is, there does not at present seem to be any source of funds for psychological treatment of high risk sex offenders by private therapists.

16 Accordingly, if (contrary to the Plaintiff's submissions) the Defendant otherwise qualifies under s 17(3) of the Act for an extended supervision order, and yet all witnesses say psychological treatment is required for any such order to be adequate to manage his risk of re-offending, then the order cannot be made. It cannot be made because, on the evidence (and assuming again for this purpose that the defendant otherwise qualifies under s 17(3)), the Court could not be satisfied that such treatment as might be available would be funded from any source. Accordingly, in this case the Court cannot be satisfied that adequate supervision will be provided by an extended supervision order. It would follow that a continuing detention order should be made.

17 However, this does not mean the purposes of the Act are frustrated. On the evidence, under a continuing detention order the Defendant can access CUBIT, or a combination of CUBIT and a preparatory treatment program. The CUBIT program has changed significantly since 2001. It is now much less confronting and is much more flexible (see evidence of Mr Bright at T194.31-51; and note also the evidence of Ms Howell at T198.44-51). If a continuing detention order is made and Mr Winters makes application, he will be able to re-enrol in CUBIT, or at least in the preparatory PREP course with a view to re-enrolling in CUBIT (Bright, pars 115-116). With its group therapy approach (see Plaintiff's principal submissions at pars 202-202A) and 24 hour support from living in a therapeutic community, CUBIT holds the most promise for rehabilitating Mr Winters with the greatest degree of safety for him and for the community (see principal submissions at par 196). The evidence of Mr Bright was that he would expect that Mr Winters would need around 10 months in treatment to complete CUBIT (see T196.14-15).

18 In so doing, the Defendant can with safety to himself embark upon his rehabilitation. As explained below, this will also promote the protection of the safety of the community.

135 I note that in paragraph 224 of the submissions dated 1 September 2007 and in paragraph 16 of the submissions dated 11 September 2007, the submissions for the Attorney General reversed the onus of proof. However, as mentioned earlier, ultimately the primary judge did make a finding in accordance with the correct onus of proof. Having regard to the content of the submissions referred to above, particularly those of the Attorney General dated 11 September 2007, I am not satisfied that the primary judge was in error in his factual conclusions.

136 Certainly, the material did justify a conclusion, to a high degree of probability, that there was no funding for the Attorney General’s Department to pay for such sessions, and that the Department of Corrective Services did not provide funding for such purposes. It could be said, however, that there remained a question whether the Court could be satisfied, to a high degree of probability, that if it made an order containing condition 4(e) suggested by the Attorney General, on the basis that it was satisfied that without such a condition the appellant was likely to commit a serious sexual offence but not satisfied that he was likely to commit a serious sexual offence if subject to that condition, both Departments would maintain their position and not provide funding, despite the risk to the community of not doing so.

137 A submission to that effect was made below (see Black 356 T-V); but there was no cross-examination on the relevant affidavits provided for the Attorney General. That was not because the appellant’s counsel did not want to cross-examine, but because, given the time, he did not have the capacity to effectively cross-examine on the day the matter was being dealt with: see Black 358 P-Q.

138 In all the circumstances, the primary judge was entitled to accept the evidence relied on by the Attorney-General, and to draw the inference that funding would not be provided.

139 For those reasons, in my opinion the second question I identified should also be answered in the negative.

140 In those circumstances, it is not necessary to consider whether the other matter relied on by the primary judge, namely the statement by the appellant that he would offend, was or would be sufficient, on its own, to justify a finding in terms of s 17(3) of the Act.

141 Although it was not raised as a ground of appeal, there was some discussion as to whether the primary judge erred in failing to recognise in his judgment that he had a discretion not to make an order, or in failing to give reasons why he exercised his discretion in favour of doing so.

142 In any event, in my opinion the discretionary considerations in this case were overwhelmingly in favour of the making of an order, at least unless it could be considered there was a sufficiently unreasonable failure by the Executive to provide for appropriate supervision. The factors referred to in the Attorney General’s submissions dated 11 September 2007, and the reasons given by the primary judge in rejecting the application for a stay, substantially deal with that issue. Having regard to these matters, in my opinion this was clearly a case where the appropriate exercise of discretion was in favour of making a continuing detention order.

Supreme Court of New South Wales - Court of Appeal

Winters v Attorney General of New South Wales [2008] NSWCA 33 (18 March 2008)