State of New South Wales v Amacha (Final) - [2017] NSWSC 799

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Amacha (Final) [2017] NSWSC 799
Hearing dates: 22 May 2017
Decision date: 22 June 2017
Before: N Adams J
Decision:
Order pursuant to ss 5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a high risk sex offender extended supervision order for a period of three years and, pursuant to s 11 of that Act, direct that the defendant comply with the conditions set out in the Schedule to this judgment for the duration of that order.

Catchwords: HIGH RISK SEX OFFENDER – application by State of New South Wales for extended supervision order – defendant convicted of offence of inflicting actual bodily harm with intent to have sexual intercourse without consent – whether defendant a high risk sex offender – question of duration of order
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61K
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 5B, 5C, 5H, 5I, 6, 9, 10A, 10C, 21A
Cases Cited: Amacha v R, R v Amacha [2010] NSWCCA 180
Lynn v State of New South Wales [2016] NSWCA 57
State of New South Wales v Amacha (Preliminary) [2017] NSWSC 284
State of New South Wales v Brookes (Final) [2017] NSWSC 215
State of New South Wales v Donovan [2015] NSWSC 1254
State of New South Wales v Donovan [2015] NSWCA 280
State of New South Wales v Fisk [2013] NSWSC 364
State of New South Wales v Kamm (Final) [2016] NSWSC 1
Wilde v State of NSW [2015] NSWCA 28
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Robi Alvin Amacha (Defendant)
Representation:
Counsel:
Ms J Single (Plaintiff)
Ms A Cook (Defendant)
Solicitors:
NSW Crown Solicitor (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2017/00060214

Judgment

Introduction

By amended summons filed in court on 22 May 2017, the State of New South Wales (“the State”) seeks that the defendant, Robi Alvin Amacha, be made subject to an extended supervision order (“ESO”) for five years. That order is sought pursuant to ss 5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). I may make the order sought only if I am satisfied that the defendant is a “high risk sex offender” within the meaning of the Act.
The defendant opposes the orders sought and contends that, in the event that the Court determines that it is appropriate to place him on an ESO, it should be for a period of less than five years.
The defendant is a 36-year-old man who, in separate incidents in 2007, sexually assaulted two women and inflicted actual bodily harm on one of them with intent to have sexual intercourse with her. He was released on parole on 7 April 2016, but breached his parole by both failing to comply with certain of its conditions and also by being charged on 7 December 2016 with a common assault on a woman with whom he had recently been intimate. The defendant served the balance of his parole until 28 March 2017. He is presently serving a sentence of imprisonment for nine months, with a non-parole period of six months and 22 days, for the assault committed during his parole period. That sentence expires on 28 June 2017.
On 27 March 2017, I imposed an interim supervision order (“ISO”) on the defendant pursuant to s 10A of the Act and made orders pursuant to s 7 of the Act appointing a psychiatrist and psychologist to examine the defendant and furnish psychiatric and psychological reports respectively: State of New South Wales v Amacha (Preliminary) [2017] NSWSC 284. As the defendant has been in custody continuously since the imposition of the ISO, the order and his obligations under it have been suspended by the operation of s 10C(1A) of the Act.

The legislative scheme

The primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1). Its secondary object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).
The State may apply to this Court for an extended supervision order: s 5H. Such an application may only be made in respect of a “supervised sex offender”: s 5I(1). It must not be made until the last six months of the offender’s current custody or supervision (s 6(2)) and must be supported by documentation that addresses each of the matters to which s 9(3) refers (s 6(3)(a)) and that includes a report prepared by a psychiatrist, psychologist or doctor that assesses the likelihood of the offender committing a further serious sex offence (s 6(3)(b)).
The Supreme Court may, on application, make an order for the supervision of an offender if the offender is a “high risk sex offender”: s 5C(1). An offender can be made the subject of a high risk sex offender ESO if and only if the offender is a high risk sex offender: s 5B(1). An offender is a high risk sex offender if the offender is a “sex offender” and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious sex offence” if he or she is not kept under supervision: s 5B(2).
A “sex offender” means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a “serious sex offence”: s 5. A “serious sex offence” is defined by s 5(1) of the Act to mean any of the following offences:

an offence under Division 10 of Part 3 of the Crimes Act that is punishable by imprisonment for seven years or more in the case of an offence against an adult or child, and, 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;

an offence under ss 61K or 66EA of the Crimes Act; or

an offence under ss 38, 86 (1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act, where the offence intended to be committed is punishable by imprisonment for seven years or more.

The Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence: s 5B(3).
The Court may dispose of an application for an ESO by making an ESO or by dismissing the application: s 9(1). Section 9(3) lists the considerations to which the Court must have regard in determining whether or not to make an ESO, relevantly, as follows:

the safety of the community (s 9(3)(a));

the reports received from the persons appointed under s 7(4) of the Act to conduct examinations of the offender, and the level of the offender’s participation in any such examination (s 9(3)(b);

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 relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment (s 9(3)(c));

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 relevant offence (s 9(3)(d));

any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1);

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 (s 9(3)(e));

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 (s 9(3)(f));

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 (s 9(3)(h);

the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1); and

any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (s 9(3)(i)).

The evidence

The State relied upon the following evidence at the hearing of this matter:

The affidavit of Gareth Martin affirmed 24 February 2017, together with exhibits GM-1 and GM-2;

The affidavit of Gareth Martin affirmed 13 March 2017;

The affidavit of Gareth Martin affirmed 9 May 2017, along with exhibit GM-3;

The report of Dr Adam Martin dated 25 February 2017;

The report of Chelsey Dewson dated 5 May 2017; and

Two victim statements dated 22 May 2017.

The defendant did not rely upon any evidence at the hearing of this application. Counsel for the defendant cross-examined the two court appointed experts at the hearing, Dr Adam Martin and Ms Chelsey Dewson. She also cross-examined Dr Richard Parker and Mr Mahmoud Elsayed. Dr Parker is employed by Corrective Services NSW as a psychologist. He prepared the Risk Assessment Report prior to the making of this application. Mr Elsayed is a member of the Extended Supervision Order Team (“ESOT”) and was the defendant’s supervising officer whilst he was on parole. He prepared both the Risk Management Report and the earlier breach of parole report dated 13 December 2016.
The focus of the cross examination of these witnesses was on the difficulty in predicting risk, the limitations of interviewing a sex offender who is in custody, and the factors militating against a longer period of supervision should the defendant be placed on an ESO. During the hearing it became clear that the defendant was antagonistic towards a potential ESO for a number of reasons but in particular because one of his two brothers was getting married in Lebanon on 30 June 2017 (two days after the expiration of his current sentence) and he wished to travel to Lebanon to attend the wedding, be reunited with his family and, hopefully, find a wife.

The defendant’s background

The defendant was born on 26 June 1980. He has two brothers. He is only in contact with one of them. He was raised by what Dr Parker describes as “hard-working migrant parents from Lebanon”. His father is a taxi driver and his mother is a childcare worker. His parents worked hard to send him to a prestigious private school. Both of his brothers studied economics at university. The defendant has asserted that he felt pressure from his parents to succeed academically and reacted against this. He started mixing with delinquent youths outside of his school and commenced his interactions with the criminal justice system at the age of 17, mostly in relation to driving and drug related offences.
The defendant has told various report writers that he felt emotionally isolated as a child and was affected by his parents arguing a lot. The defendant has been in custody since 2008 (except for eight months in 2016). During that time, he has had only one visit from his father in 2008 and one visit from his mother in 2009. Psychology notes before me on this application record that his father cried on that visit, so the defendant did not want to put his family through further visits. Apparently neither of his parents and only one of his brothers is aware of the details of the index offence. Most of his extended family lives in Lebanon.
The defendant used a range of drugs prior to entering custody including marijuana, amphetamines, ecstasy and cocaine. He also drank alcohol to excess. He was affected by both alcohol and marijuana at the time of each of the sexual assault offences. He has never attended a detoxification or rehabilitation facility, but has received some treatment in custody. He completed the “Breakout Workbook Alcohol and Drug Relapse Prevention Program” on 22 September 2008. He twice declined to attend the Getting SMART program in 2010, but accepted a further opportunity in 2012 and did complete the program. He was reported as participating well in that program.
The defendant commenced tertiary study at the University of Wollongong, but was unable to finish the first year. He stated that he was sick of studying. He worked as an apprentice spray painter, but dropped out of his TAFE course before finishing it. He obtained a forklift driver’s licence and worked intermittently in that field for around seven to eight years before his incarceration. His longest period of continuous employment was three years.
He has not completed any educational programs whilst in custody. He enrolled in, but failed to complete, a Certificate IV in Small Business Management run by TAFE NSW. Although he participated in some employment in custody, the positions were generally terminated on the basis of the defendant being unable to accept directions or work with others. He was unable to secure ongoing employment when released on parole.
The defendant has been prescribed medication in the past for depression and anxiety including Aropax and Avanza. In his pre-release report dated 30 October 2014 it was reported that he was not receiving treatment or taking medication at that stage. In early 2016 he was assessed by a Justice Health psychiatrist and prescribed anti-anxiety medication (Escitalopram). He agreed to continue taking that medication whilst in the community. As will be discussed below, after commencing parole he ceased taking his medication despite that being a condition of his parole.

Facts of the ‘index’ offence

On 9 May 2009, the defendant was convicted, following a trial by jury, of three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act and one count of inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K (“the Paddington offences”). He also pleaded guilty to two counts of sexual intercourse without consent in relation to a different victim (“the Miranda offences”). The only “serious sex offence” within the meaning of the Act of which the offender has been convicted is that contrary to s 61K of the Crimes Act.
The sentencing judge, Puckeridge QC DCJ, found the facts of the Paddington offences in his remarks on sentence in accordance with the evidence given by the complainant at trial. I summarised those facts in State of New South Wales v Amacha (Preliminary) and, for the sake of efficiency, I propose to set out the same summary in this judgment.
In the early hours of 29 September 2007, the defendant and the complainant met at the Oxford Hotel on Oxford Street. His Honour found that there was contact between the defendant and the complainant inside the Hotel, although the evidence of the complainant was that the offender “came out of nowhere” while she and a friend were waiting outside the Hotel for a taxi. She gave evidence that she was intoxicated and in a “terrible condition”. The defendant, the complainant and a friend of the complainant got into a taxi together. The complainant’s friend then left the taxi because he was “sick of comments by [the defendant] that he loved the complainant and sick of the complainant saying to the offender to leave her alone.”
The complainant changed taxis twice to try to get away from the defendant, but he followed her. She was very drunk and recalled little. A taxi took her and the defendant to her apartment in Paddington. The complainant remembered passing out on her bed and waking up later with the defendant undressed beside her. She got up to get a glass of water and then go to the bathroom, but the defendant kept telling her to stay in bed. He forced the door of the bathroom open. The complainant went back to bed because she was scared of the defendant. The defendant asked for oral sex and she refused. The defendant again demanded oral sex and said that afterwards he would leave. The complainant relented. The defendant said to her, “suck [my] cock till I come.”
The defendant then demanded that the complainant “suck his cock” again. He said, “Make me come or I’ll hit you.” The complainant said no. The defendant replied, “Suck me or I’ll break your face.” She again said no, but then commenced performing fellatio on the defendant because she was scared and he had become aggressive.
The defendant said to the complainant, “I want to fuck you.” A “fight” broke out, which started when the defendant hit the complainant in the face with his fist. The defendant hit the complainant about the face several times. (This was the conduct the subject of the count of maliciously inflict actual bodily harm with intent to have sexual intercourse contrary to s 61K of the Crimes Act.) The complainant started to scream for help. The defendant said, “Shut up or I’ll break your face.” The complainant gave evidence that she was strangled.
The complainant again told the defendant to leave her apartment after he had told her to stop screaming. He said that he would go and asked her not to call the police. She was crying. The defendant asked her to “suck [his] cock” again before he left and the complainant refused. She said, “No, no. I just want you to leave. Please leave, please.” He responded, “Suck me off or I break your face.” She again relented because she was afraid of the defendant. The police arrived as another physical altercation between the defendant and the complainant was breaking out.
The defendant’s case was that the sexual intercourse was consensual. He claimed that he acted in self-defence in a “fight” with the complainant.

The Miranda offences

Also before Puckeridge DCJ were two offences of sexual intercourse without consent that occurred in Miranda (“the Miranda offences”). The defendant and the victim in that matter had met at a club in Newtown and went back to the victim’s place, where he forced her to perform fellatio. The victim suggested putting on a pornographic video to make the defendant “come” and the defendant slapped her across the face with the back of his hand. The victim drove the defendant home and he again forced her to perform fellatio in her car. The defendant pleaded guilty to the Miranda offences and a common assault was taken into account on a Form 1.

Remarks on sentence

In his remarks on sentence, Puckeridge DCJ referred to the seriousness of the Paddington offences taking place in the victim’s home and under the threat of violence. The infliction of actual bodily harm was described as a “serious assault”, which was “unprovoked by her”. His Honour noted that the final count of sexual intercourse without consent occurred after a “malicious assault”, which put the victim in a “real state of fear”.
His Honour also noted that it did not appear to him that the defendant accepted responsibility for his actions. His Honour was not satisfied that the defendant’s need for rehabilitation in the future constituted special circumstances. Finally, his Honour ordered that, when released on parole, the defendant would be subject to the supervision of the Probation and Parole Service and would be required to obey directions of that service, particularly in relation to anger management and drug and alcohol counselling.
For Count 7 on the Paddington indictment (sexual intercourse without consent contrary to s 61I of the Crimes Act), Puckeridge DCJ sentenced the defendant to imprisonment for nine years, to date from 29 September 2007 and expire on 28 September 2016, with a non-parole period of seven years, to date from 29 September 2007 and expire on 28 September 2014. For Count 2 (sexual intercourse without consent) and Count 5 (inflicting actual bodily harm with intent sexual intercourse contrary to s 61K of the Crimes Act), his Honour imposed a fixed terms of imprisonment for six years. For Count 4 (sexual intercourse without consent), his Honour imposed a fixed term of imprisonment for six years and six months. Those sentences were to be served concurrently.

For Count 1 on the Miranda indictment (sexual intercourse without consent), taking into account a common assault on a Form 1, his Honour sentenced the defendant to imprisonment for four years and six months, to date from 28 July 2011 and to expire on 27 January 2016, with a non-parole period of three years and four months, to date from 28 July 2011 and to expire on 27 November 2014. For Count 2 (sexual intercourse without consent), his Honour imposed a sentence of imprisonment for four years and six months, to date from 28 September 2011 and expire on 27 March 2016, with a non-parole period of three years and four months, to date from 28 September 2011 and to expire on 27 January 2015. Those sentences were partially accumulated upon the sentences for the Miranda offences.
Both the defendant and the Crown appealed the sentences to the Court of Criminal Appeal: Amacha v R; R v Amacha [2010] NSWCCA 180. The Court of Criminal Appeal dismissed the defendant’s appeal, allowed the Crown appeal in part and resentenced the defendant as follows (at [90]):

For Count 2 on the Paddington indictment, imprisonment for six years to commence on 29 September 2007 and to expire on 28 September 2013, with a non-parole period of four years and six months to expire on 28 March 2012.

For Count 4 on the Paddington indictment, imprisonment for six years and six months to commence on 29 September 2007 and to expire on 28 March 2014, with a non-parole period of four years and ten months to expire on 28 July 2012.

For Count 5 on the Paddington indictment, imprisonment for six years to commence on 29 December 2007 and to expire on 28 December 2013, with a non-parole period of four years and six months to expire on 28 June 2012.

For Count 7 on the Paddington indictment, imprisonment for nine years to commence on 29 March 2008 and to expire on 28 March 2017, with a non-parole period of six years and eight months to expire on 28 November 2014.

For Count 1 on the Miranda indictment, imprisonment for four years and six months to commence on 28 August 2011 and to expire on 27 February 2016, with a non-parole period of three years and four months to expire on 27 December 2014.

For Count 2, imprisonment for four years and six months to commence on 28 September 2011 and to expire on 27 March 2016, with a non-parole period of three years and four months to expire on 27 January 2015.

The sentence that the defendant was serving at the time of the filing of the summons was for Count 7 on the Paddington indictment.

Victim statements

The victim of the Miranda offences provided two statements to this Court on the application. The State relied upon s 21A of the Act as the basis for the admissibility of those documents. Section 21A(1) relevantly requires the State to take reasonable steps to notify “each victim of the offender” of an application under the Act. Section 21A(2) provides that the victim must be informed that he or she can provide a report about their “views about the order and any conditions to which the order may be subject”. Section 21A(4) provides that, “Any statement received before the final hearing date in respect of the application may be placed before the Supreme Court for consideration in respect of the application.” Section 21A(6) provides that the statement cannot be disclosed without consent and s 21A(7) provides, inter alia, that if consent is not provided the Supreme Court may “reduce the weight given to the statement”. Section 21A(8) provides that, in s 21A:

“victim of an offender means a victim who is recorded on the Victims Register in respect of the offender and who is a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment.”

Counsel for the defendant objected to the statements being before the Court on the basis that s 21A(8) defines a victim as being someone who is a victim of an offence committed by the offender for which the offender is currently serving, or has mostly recently served, a sentence of imprisonment. It was submitted on behalf of the defendant that, because of the way in which the sentences for the Miranda and Paddington offences were structured, the defendant was actually serving his sentence for Count 7 of the Paddington offences only at the time of this application. The sentence imposed was not an aggregate sentence. It was the head sentence for the last of the Paddington offences that expired on 28 March 2017; the longer head sentence for the Miranda offences expired on 27 March 2016.
The definition of “victim” in s 21A(8) is a narrow one. It seems to me that a “high risk offender” in respect of whom an ESO or CDO is sought may have many previous victims. It is unclear to me why only the most recent victim(s) is able to put such a statement before the Court. Despite this, I accept that the reports before me do not appear to fall within the terms of s 21A(8) of the Act.
I note that s 21A of the Act does not set out how it is that such a statement is to be taken into account in any event. Section 21A(4) provides that such a report may be placed before the Court “for consideration in respect of the application” and s 21A(7) provides, inter alia, that if consent to disclose the report is not provided the Supreme Court may “reduce the weight given to the statement”. I have been unable to find any judicial consideration of s 21A of the Act.
Although I am not satisfied that the statements fall within the definition in s 21A(8), there is some material therein that I consider to be relevant under s 9(3)(i) of the Act. The victim of the Miranda offences states that she attended the defendant’s parole hearing and made representations to the effect that she had forgiven him and supported his parole. In the statement before the Court, she expressed disappointment to hear that the defendant had reoffended and asserted that she no longer maintains her earlier position. It seems to me that this aspect is relevant to the opportunities that the defendant has already been given to demonstrate that his remorse and commitment to rehabilitation are genuine.

Consideration

Is the defendant a high risk sex offender?

The defendant meets the definition of “sex offender” in s 4 of the Act, having been sentenced for one “serious sex offence”. In these circumstances, he is a “high risk sex offender” if I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2). The phrase “unacceptable risk” is not defined in the Act. It was considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 (“Lynn”) where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in s 5B(2) is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]).
As stated above, s 9(3) of the Act provides a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO. As Beazley P observed in Lynn, the mandatory considerations in s 9(3) of the Act are applicable in the exercise of the statutory power to make an ESO and not to the anterior determination of whether an offender poses an unacceptable risk: at [48]. Despite this, the criteria in s 9(3) are still relevant to the question of whether a person poses an “unacceptable risk” of committing a serious sex offence if not kept under supervision: per Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [48].
In Lynn, Basten JA described the Court’s role at [124] as follows:

“The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order.”

I now turn to consider the evidence before me pertaining to each of the factors in s 9(3) of the Act.

The offender’s criminal history and any pattern of offending behaviour disclosed by that history (s 9(3)(h))

The defendant has a lengthy and diverse criminal history. He first came into contact with the criminal justice system in 1997, when he was 17 years old, in relation to the theft of a motor vehicle. In 1998, he committed offences of armed robbery and robbery in company for which he received community service orders. He has received fines for the possession of prohibited drugs and good behaviour bonds and fines for driving offences on several occasions. He has been sentenced to terms of imprisonment for driving dangerously and for driving whilst disqualified. In 2002, he received a suspended sentence of imprisonment for 12 months for an assault occasioning actual bodily harm in a domestic violence context. That offence involved the defendant punching the victim, his partner, in the face at least twice and holding her by the throat. He contravened apprehended domestic violence orders in relation to the same victim a number of times after she sought to end the relationship.
The defendant has a troubling history of breaching court orders. He was placed on a good behaviour bond in July 1997, but breached that bond in January 1998 when he committed two robberies. He received a further 12 months’ supervised bond on 1 October 1998. Although the supervision component of that order was terminated early due to his favourable response, the defendant ultimately breached that order when he committed two further counts of possessing prohibited drugs, and driving offences.
On 16 August 2000, he received a further supervised bond under s 9 of the Crimes Sentencing Procedure Act 1999 (NSW). He breached that bond in November 2001 with the commission of further offences.
On 4 October 2000, he was convicted of further serious driving offences and sentenced to six months’ imprisonment to be served by way of home detention. That home detention order was revoked due to his non-compliance and dishonesty. It is reported that on at least five occasions he told Community Corrections that he was at work when he was not. He did attend an anger management program. He was reported to be circumventing the curfew arrangements in “bold and devious ways” in a probation and parole report dated 11 October 2002. He was released on parole on 3 April 2001. That parole period ended on 19 October 2001. In November 2001, he committed the offence of assault occasioning actual bodily harm in breach of the August 2000 bond.
As stated above, the defendant was in custody from 29 September 2007 to 7 April 2016 serving sentences for the sexual assault offences.
The defendant is currently in custody serving a sentence for a common assault on a woman with whom he had been in a brief intimate relationship. That offence was committed whilst he was on parole for the last of the Paddington offences.
The police facts sheet for his most recent offences state that about three days prior to 6 December 2016 the defendant met a 26 your old woman and became intimate with her. On 6 December 2016, he began calling her mobile telephone and demanding that she meet him. She left her place of work to meet him and when she did he demanded her mobile telephone. He then asked her for $50, which she did not have. The defendant then became agitated and swore at her stating "You're a dog. Give me the money. I don't care about anyone." She asked him to stop shouting at her and requested her phone back but he would not give it to her. When she tried to grab it, he pushed her away.
The victim started to walk away but the defendant walked up to her and grabbed both of her arms. She tried to push him off but he said "I don't care. Give me the money." He also yelled, "Stop, give me the money you fucking bitch". There was a struggle and she fell to the ground landing on her knees. She grabbed her phone, ran back to her workplace and reported the matter to police later that day.
When the defendant was approached by police the following day he initially denied knowing the victim. He was refused bail and has been in custody since.

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 (s9(3)(f))

The defendant has not been subject to any earlier ESO, but his response to supervision whilst on parole is of particular concern. Although a pre-release report dated 30 October 2014 described his early response as “mixed”, his recent history has been particularly problematic.
The defendant became eligible for parole in relation to the Paddington offences on 27 January 2015. He was refused parole on the basis that he had not addressed his offending behaviour. Parole was again declined on 9 March 2015 for the same reason. The defendant was ultimately released on parole on 7 April 2016. One of his parole conditions was that he undergo psychological and psychiatric assessment and counselling as directed and another was that he take his medication. Three days after he was released on parole, he failed to take his prescribed anti-anxiety medication without written medical advice and was given a warning.
The breach report goes on to note the following:

“Further concerns were raised which were related to his consideration of ‘women and relationships and his understanding of the offences’. A referral to psychiatric assessment was deemed appropriate. On 3 August 2016, his treating FPS psychologist noted that the offender presented as an ‘acute risk’ of reoffended giving that he is ‘hostile towards females’.
Mr Amacha continued to demonstrate avoidant behaviour in discussing relationships with females and denied disclosing information about a female he had been interacting with during May 2016. Mr Amacha utilises diversionary tactics in an attempt to avoid answering questions related to his interaction with females and discredits any attempts to gain transparency with him.”

In June 2016, a further condition was imposed on the defendant’s parole. He was directed to remain at his place of residence between 11pm and 5am. The basis for this condition was that the defendant had been observed to be engaging in suspicious activities between those hours around numerous restaurants, clubs and hotels and was unable to provide credible reasons for what he was doing.
The breach report also notes the following:

“After numerous directions to commence psychiatrist intervention, Mr Amacha attended one consultation on 5 August 2016. Mr Amacha disclosed that his treating psychiatrist recommended that he cease use of his medication. Contact with his treating psychiatrist on 31 August 2016 confirmed no decision was made in relation to his treatment to the psychiatrist’s first contact with the offender. The psychiatrist further disclosed that the offender’s approach was intimidating in nature and that there would be no ‘therapeutic alliance’ with Mr Amacha. The psychiatrist refused to have further contact with him and noted that ‘if he does not get his way any escalates’.”

The defendant was initially supervised by the Burwood Community Corrections office. On 11 October 2016, his supervision was transferred to the ESOT due to the defendant’s hostile response to supervision and also because he was being considered for an ESO. The breach report describes him as being argumentative and lacking insight into his offending behaviour.
Mr Elsayed concludes the breach report by stating:

“Mr Amacha’s embedded sense of self entitlement towards females appears to remain entrenched with him based on his interaction with FPS and Community Correction staff. His inability to connect his offending behaviour with his core risk factors is of concern. His utilisation of diversionary tactics in an attempt to thwart any meaningful intervention appears to have continued a downward spiral into his reoffending which would implicate an ongoing recalcitrant way of life with little regard to the welfare and safety of females with whom he wishes to interact. Further, his dismissive attitude towards mental health treatment and psychiatric intervention raises further concerns.”

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 (s9(3)(e))

The supporting material included a detailed Custody Based Intensive Treatment (“CUBIT”) programme report dated 31 March 2016 under the hand of Aimee Press, forensic psychologist. The CUBIT programme is a six to ten month residential therapy programme for sex offenders. It took the defendant a period of over 20 months to complete CUBIT in custody between 21 June 2014 and 25 February 2016. Ms Press reported that the delay was attributable to a combination of issues, including the length of time taken by the defendant to produce written work, resistance to feedback, minimisation, and difficulties engaging with others. He was reported as displaying a pattern of “impression management”. That is, he was considered to be more concerned with making a good impression than actually absorbing the content of the programme.
The report records that the defendant provided justification for the sexual offences that focused on minimising his responsibility. It is noted in that report that the defendant does not accept that he still poses a risk and that he is hindered by a desire to be seen as treated and changed. It is reported that he has attributed responsibility elsewhere and continues to rationalise his actions.
An analysis of the defendant’s risk of sexual recidivism was undertaken for the purpose of the report. It concluded that the defendant was in the very high priority category for supervision and intervention.

The reports of experts appointed under s 7(4) of the Act (s 9(3)(b))

Dr Adam Martin, forensic psychiatrist

Dr Adam Martin, forensic psychiatrist, prepared a psychiatric report dated 25 April 2017 in relation to the defendant. He saw the defendant in person at Parklea on 5 April 2017. Dr Martin detailed the defendant’s psychiatric, medical, drug and alcohol, personal, forensic and psychosexual background. The defendant self-reported that he is attracted to large breasted women and explained the term “sexual objectification” as “focusing on one object, larger breasts when I’m on drugs”.
He said that the defendant presented as tense, aroused and quite controlling and that “his affect was tense and restricted with limited reactivity (that is, his emotional response did not change very much during this interview).” Dr Martin explained that as being consistent with the defendant’s frustration with his legal issues and unhappiness and irritation at the proposed ESO.
Dr Martin described that the defendant came across as overbearing and quite controlling in responding to questions. He was antagonistic at the proposed ESO and was not “receptive to the opinions in relation to the risks and needs by others.” He expressed regret about his offences and acknowledged that victims would have been psychologically harmed by his behaviour. He attributed the offending to external factors including in part to drug and alcohol use.

Dr Martin did not find that the defendant met the diagnostic criteria for a psychiatric condition, including paraphilia, or a personality disorder. His view was that the defendant would fulfil diagnostic criteria for anti-social personality disorder given his impulsivity, failure to conform to social norms and longstanding pattern of disregard of the rights of others.
In his opinion, the defendant’s difficulty behaving appropriately and his lack of self-awareness and understanding of the perspectives of others are the issues that will have a limiting effect on his response to psychological treatment, regardless of any diagnostic label. His view was that, from the perspective of psychological/psychiatric treatment, the defendant’s psychological problems will be of an enduring nature that are not likely to change in the short, medium or long term. He also saw the defendant’s demonstrated difficulty in complying with directions under supervision as a long term issue that would require psychological/psychiatric intervention over many years.
Dr Martin considered the defendant to be at high risk of future sex offending. He administered risk of sexual violence protocol (“RSVP”), in which he examined risk factors suggestive of future risk issues and found a number of features associated with a greater risk of re-offending. They included psychological adjustment difficulties, such as self-awareness, lack of insight, distorted attitudes, self-regulation and problems with anger and impulsivity; difficulties with social adjustment, such as inability to have intimate relationships and stable employment and accommodation; demonstrated anti-social and narcissistic personality traits consistent with psychopathic traits; issues with manageability such as tendency to behave impulsively and poor self-management; and problems with planning and following directions under supervision.
He also took into account the fact that the defendant’s score of 6 on the actuarial risk instrument STATIC-99R placed him in the high risk category relative to the “average sex offender”. The main risk factors contributing to that risk were also identified as his anti-social behaviour, including violent sexual offending, his tendency to externalise responsibility, his disregard of rights of others, his demonstrated problem with following directions and adhering to obligations around supervision, his lack of self-awareness, poor coping abilities and vulnerability to substance misuse, and his antagonistic attitude to clinicians and supervising officers.
His overall opinion was that the defendant’s high risk of re-offending could to some extent be managed by an ESO.
In cross-examination, Dr Martin agreed that there are limitations and inherent uncertainties with respect to risk assessment tools as applied to a particular individual to assess the risk of reoffending. He accepted that one such limitation in this case would be that the assessment was conducted in a gaol environment, where discussion of sex offences is particularly sensitive and would be approached with a degree of apprehension.
Dr Martin accepted that it would be positive for the defendant to obtain employment, integrate into the community, have support from his family, participate in family events and find a partner. He agreed that, in an “ideal world”, a stable and supportive relationship would generally be seen as a protective factor against future sexual offending.

Chelsey Dewson, forensic psychologist

Forensic psychologist Chelsey Dewson furnished to the Court a psychological report dated 5 May 2017. She had assessed the defendant via audio-visual link from custody on 4 May 2017.
The defendant told Ms Dewson that he had had 10 significant partners, with the longest relationship lasting 12 months. Those relationships were “significant”, according to the defendant, because “marriage was on the cards”. They reportedly ended because of “religious, cultural or financial issues”. He would like to find a partner from the same minority religion (namely, Druze) and he was hopeful of doing so when he travels to Lebanon for his brother’s wedding. He said that his parents are currently not speaking to him because of the possibility that he will be unable to attend the family wedding in Lebanon.
The defendant’s sexual functioning was addressed in the report. He reported that his libido was “low” and that he masturbated approximately once a month. Ms Dewson noted that the defendant had in the past described higher levels of sexual arousal and had acknowledged a strong link between arousal and cannabis use. She described his sexual history as “impersonal”, which is evidenced by his high number of sex partners and engagement with sex workers.
Ms Dewson noted that actuarial assessments conducted to assess the defendant’s risk of sexual reoffending had consistently placed him in the “high-risk” range or category. Those included a STATIC-99 assessment carried out on 23 November 2009, a STATIC-99R on 12 May 2014 and a STATIC-99R conducted during the defendant’s participation in CUBIT.
She gave evidence that she concluded that the defendant’s “level of risk of sexual reoffending appears to have consistently fallen in the higher risk range” and that, in her opinion, the defendant poses a risk of sexual reoffending. That opinion is based on risk assessment tools, both static and dynamic (the STATIC-99R, with its prior version the STATIC-99, and the STABLE-2007), as well as the clinical presentation of the defendant at the interview.
On the basis of the tests she used, she was also of the opinion that the defendant poses a risk of committing further serious sex offences. She stated that, whereas the STATIC-99R looks at sexual recidivism in general, the RSVP is a structured professional judgment, including the development of certain scenarios based on the determined risk factors. Her opinion that there would be a high risk of serious sexual offences with respect to the defendant was based on those scenarios.
Ms Dewson was aware that the defendant participated in the CUBIT program and that the CUBIT report indicated little change within that program on a whole. She stated that mere participation in the program is not significant enough to change somebody’s risk. It is what they do within the program. She confirmed that the defendant lacks insight into the reality of his current risk and that there was limited evidence of changes to his attitude and behaviour.
Ms Dewson agreed that conducting an interview with the defendant via AVL was not ideal and that he expressed his concerns about confidentiality. He, however, seemed to accept her explanation that there was nobody else in her room. She attributed the defendant’s verbosity and his being tangential during the interview to his concern that he would not have enough time to tell her everything he wanted to communicate and not to his having a degree of anxiety.

Other expert assessments as to the likelihood of the offender committing a further relevant offence and the level of participation in such assessment (s 9(3)(c))

Dr Richard Parker, psychologist

Dr Parker is a qualified psychiatrist who prepared a report dated 2 December 2016 that satisfies this criterion in support of this application. Section 6(3) of the Act provides that an application for a high-risk sex offender ESO must include such a report addressing the likelihood of the defendant committing a further serious sex offence. I have already summarised the report of Dr Parker in my previous decision. I repeat that summary here.
Dr Parker was impeded in his assessment of the defendant’s level of risk by the defendant’s failure to attend for examination. Although he did not refuse to attend to see Dr Parker, he rescheduled until Dr Parker ran out of time and had to prepare the report without a meeting with him. In his evidence at the hearing, he said that his inability to interview the defendant did not pose a significant problem in this case because of the volume of observational data available in relation to the defendant. He said in cross-examination that, in the risk assessment process, the most validity comes from the risk assessment instruments (for instance, the STATIC-99).
Dr Parker summarised the defendant’s history and then turned to consider the risk of his reoffending. Dr Parker noted that it is not scientifically possible to predict accurately whether or not an individual offender will or will not reoffend. The best that can be offered is an estimate that is anchored in empirical literature specifying features associated with risk. Dr Parker conducted the STATIC-99R test, which is an instrument designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of sexual offences. Dr Parker concluded that when compared to other adult sex offenders the defendant’s score is in the 94th percentile. That means that roughly 92% of sex offenders scored lower than he did and roughly 4% scored higher.
Dr Parker also used the STABLE-2007 test, which is an actuarial tool developed to assist clinicians to identify stable dynamic risk factors for sexual reoffending. The defendant’s score on this test was 13 out of a possible 24, which Dr Parker classified as “high”. Dr Parker combined these two tests to generate an overall “very high” risk level.
He opined that, so long as the defendant is unable to form stable intimate relationships, he will continue to seek sexual gratification through impersonal encounters such as the situations that led to the index offences.
The conclusion was that the defendant is at a high risk of committing further sexual offences. He is of the view that a return to the defendant’s previous lifestyle, involving regular substance abuse and casual sexual relations, would be “highly concerning”. He indicated that there is the potential for such relationships to involve complex issues of consent at a time when both parties are under the influence of mind-altering substances. Dr Parker concluded that it is considered likely that the defendant would resume a lifestyle similar to that which preceded the index offences.
Dr Parker gave evidence and was cross-examined at the hearing. He stated that the conditions imposed under an ESO do not necessarily apply in the same strict way for the duration of the order and that the orders give a discretion to the Departmental Supervising Officer (“DSO”). He gave evidence that a committee meets every three months to assess the progress of each offender. If an offender is progressing, the committee ensures that that progress is recognised and acted on appropriately. He stated that the level of electronic monitoring to which an offender is subject is staged such that each offender is at the correct level of supervision. Ideally, an offender is no longer in need of supervision at the end of the term of an ESO. Electronic monitoring is not intended to interfere in employment.
He was asked whether it was possible to assess the defendant’s risk of committing a serious sex offence. He opined that the general pattern of behaviours that underpinned the defendant’s offending indicates that further serious sex offending is certainly possible. He indicated that data from the STATIC-99 refers to a broad category of offences. As the rate of sexual reoffending includes persons who, for example, are serial exposers, the percentage of sex offenders who reoffend with serious sex offences is lower than the rate of reoffending as a whole. He did not place weight on the apparent “escalation” between the Miranda and Paddington offences in terms of the defendant’s risk of committing a further serious sex offence.
In cross-examination, Dr Parker did not accept that it was “routine” to continue electronic monitoring at each quarterly meeting. However, he stated that the logic of electronic monitoring was for offenders to exhibit stable behaviour. Conditions would not be changed if, for example, an offender had been the subject of an ESO for only two weeks. He did not accept that this defendant should have “clear boundaries” in terms of a specific duration for which certain conditions will be in place. He stated that, if the process is to be used to change behaviour, a change in conditions should be contingent upon changed behaviour. He described the process as form of “operant conditioning”.

Dr Bruce Westmore, psychiatrist

In November 2008, the defendant was seen by Dr Bruce Westmore, psychiatrist, for the purposes of preparing a report for his sentencing proceedings. Dr Westmore prepared a psychiatric report dated 20 November 2008. The defendant told Dr Westmore that his grandmother had died about two weeks before the Paddington offences. He said that, at that time, he was drinking (up to ten spirits three to four times a week) and smoking marijuana heavily. As for the Paddington offences, he described a consensual sexual encounter that descended into violence when the victim punched him after refusing anal sex. The defendant said he struck the victim “in self-defence”. He told Dr Westmore that he did not accept the jury’s verdict. He told Dr Westmore that he was of the view that, as the victim was transgender, she may have been on some type of hormone therapy that affected her perception of his requests.
Dr Westmore made diagnoses of alcohol and substance abuse and noted that the defendant reported a history of depression and anxiety. Although he considered that some concerns about the defendant’s personality arose from his criminal history, he was unable to diagnose an antisocial personality disorder in the absence of extended clinical contact. It was recommended that the defendant attend a sex offenders’ program and drug and alcohol rehabilitation service in custody.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1);

Risk Management Report of Mahmoud Elsayed

Mr Elsayed prepared a Risk Management Report dated 11 January 2017 that was before the Court on the State’s application. The Risk Management Report sets out the defendant’s history of contact with Community Corrections and addresses the management of the factors, identified in Dr Parker’s Risk Assessment Report, relevant to the risk of reoffending that the defendant poses. The identified risk factors relate to the defendant’s attitudes, self-regulation, intimacy deficits and substance abuse.
The strategies proposed for managing the risk factors include interviews with the defendant, field visits, liaising with third party contacts to determine whether they have any concerns about the defendant, referral to Forensic Psychology Services (“FPS”), referral to psychiatric and alcohol and other drug services, monitoring, schedules and curfews, and non-association and place restrictions. Mr Elsayed acknowledges in his report that the effectiveness of the various risk management strategies is limited by the defendant’s resistance to supervision and to psychological or psychiatric intervention. He notes that the defendant is not transparent and that he tends to avoid answering questions and to engage in “impression management”.
Mr Elsayed states that the defendant was unwilling to divulge his post-release plans prior to his release on parole. The defendant’s response to supervision by the ESOT prior to being remanded in custody in April this year is described as “hostile”, given his refusal to undertake psychiatric assessment, his interaction with FPS, his dismissive attitude towards his DSO and his lack of transparency with respect to his personal life. The defendant is also said to have been “uncooperative” with the ESOT whilst in on remand by reason of his refusal to take part in necessary interviews and his rejection of referrals to be assessed by a psychologist.
Mr Elsayed gave evidence at the hearing and was cross-examined. He gave evidence that he considered that the defendant had breached his parole by breaching a condition to undergo psychiatric assessment and counselling. The defendant attended one psychiatric evaluation with a male psychiatrist, but that psychiatrist considered that it would not be possible to achieve a therapeutic alliance with the defendant. He gave evidence that the defendant was notified of the application for an ESO in September 2016.
In cross-examination, Mr Elsayed accepted that the defendant had attended weekly sessions with his treating psychologist at FPS whilst on parole. As for the wedding of the defendant’s brother, Mr Elsayed stated that it was his understanding that the wedding date of 30 June 2017 was fixed and that there was no flexibility. He gave evidence that he had spoken with the defendant’s brother about his desire for the defendant to attend the wedding.

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 relevant offence (s 9(3)(d))

The defendant has been assessed a number of times. I have already addressed these assessments when dealing with the expert reports relied upon by the State as set out above.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (S 9(3)(h1))

I have already set out the observations of the sentencing judge at [29] – [30] above.
In the decision of the Court of Criminal Appeal referred to above at [33], Allsop P (with whom Grove and Hislop JJ) agreed, observed that:

“Whilst the consumption of alcohol may be an explanation for the physically and sexually aggressive and violent behaviour of the offender it did not excuse it or mitigate it. This was not the kind of offence for which a lack of planning or conscious pre-meditation brought about by alcohol might be relevant. The offences involved violent and brutal physical and sexual aggression. I reject the submission that the seriousness of the attack should be discounted because, as the submissions seemed to put, of its place in an alcoholic haze borne of a night’s excessive drinking.”

When dealing with the defendant’s ground of appeal based on totality, Allsop P opined at [44] that head sentence of nine years, derived from Count 7 on the Paddington indictment, “…reflected an appropriate sentencing response to a violent and degrading attack on the complainant.” In response to a complaint that the sentences imposed in respect of the Miranda offences were manifestly excessive, his Honour said at [50]:

“Whilst the offender did not exhibit the violence and degrading brutality that he did against the Paddington complainant, he nevertheless behaved in threatening way to engender fear in the complainant to force himself upon her.”

The Court held that the sentencing judge had erred in failing to accumulate to some degree the four sentences for the Paddington offences. As Allsop P observed at [73], “Not to do so failed to have any regard to the separate criminality involved in the different aspects of the whole violent and brutal episode.”
His Honour stated at [87], in the context of re-sentencing the defendant:

“Reading the psychiatric report and given Mr Amacha’s age there must be a significant prospect of rehabilitation, if he ceases the kind of use of alcohol and drugs that appear to that have been [sic] influential in his behaviour in the past.”

Any other information that is available as to the likelihood that the offender will in future commit serious violence offences (s9(3)(i))

The defendant appears to have generally presented a management problem in custody. He has committed 11 breaches of prison discipline since 29 September 2007. Offender Integrated Management System (“OIMS”) case notes describe him as “very high maintenance” (23/11/2009), “continually officer shopping to get what he wants when he wants it” (24/12/2009) and “verbally abusive” (27/10/2011). There are reports that he engaged in stand over tactics towards another inmate (08/01/2013; 20/01/2013). A psychology case note of 17 December 2013 states that the defendant became argumentative when advised that he has a high number of static risk factors. There are some positive OIMS notes from the period when the defendant was in custody at Cessnock Correctional Centre immediately prior to his release on parole.

The defendant’s submissions

It was submitted on behalf of the defendant that the Court would not be satisfied that the defendant poses an unacceptable risk of committing a serious sex offence. It was conceded that the reports from the court-appointed experts “go some way” towards establishing the risk of reoffending, but that the evidence does not go so far as to establish to the high standard of a “high degree of probability” that the risk the defendant poses is unacceptable.
The defendant relied upon the fact that he has not been diagnosed with a paraphilia or sexual deviance disorder of any kind and that the only index offence on the defendant’s criminal record is that which is the subject of this application.
It was further submitted that although the focus of the Court’s consideration is on the primary object of the Act, consideration needs also to be given to the other object of the Act, namely, to encourage the rehabilitation of the defendant.
The defendant relied upon the observations of McCallum J in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]-[3] when her Honour observed:

“After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is “the most fundamental and important of all common law rights”. It is one which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ.
Some offenders reoffend (some, predictably so). In Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [12], Gleeson CJ observed that the way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is “an almost intractable problem”. At common law, the response is governed by the principle of proportionality, which prohibits preventive detention. The principle holds that, while it is permissible for a sentencing judge, in fixing an appropriate sentence, to have regard to the protection of society, a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection for that purpose alone: Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 472. The case of Mr Veen provides an exquisite illustration of the problem.”

Conclusion

In addition to all of the above I have had regard to the safety of the community (s 9(3)(a) of the Act). It is the primary object of the Act.
Before I can consider whether to place the defendant on an ESO, I must first be satisfied to “a high degree of probability” that he poses an unacceptable risk of committing a serious sex offence if not kept under supervision.
I have before me a number of assessments by experts as to the risk that the defendant poses. Doctors Martin and Parker and Ms Dewson all assess his risk of further sexual offending as high. Although the risk assessments relied upon by the State do not differentiate between sex offenders generally and those who commit “serious sexual offences” as defined under the Act, Dr Parker and Ms Dewson concluded that the defendant poses a risk of committing a further “serious sexual offence”. Dr Martin declined to rule out further serious sexual offending.
I have had regard to the defendant’s recent history. Last year, he was released on parole for sexual offences on 7 April 2016, after twice being refused parole. He then failed to attend psychiatric assessments and treatment as requested and was hostile to supervision. His supervision was so problematic that he was transferred to the ESOT because a view was taken that he would need to be placed on an ESO when his parole period expired. At that time, when the defendant was being supervised by the ESOT and was on notice that an ESO may be sought, he not only maintained his position of non-compliance with his parole conditions, but was also arrested and charged with further offences involving an assault on a woman with whom he had been intimate. Although it might have been expected that the prospect of being placed on an ESO may have motivated the defendant to comply with his parole conditions, this was not the case.
The defendant only has one prior offence that falls within the definition of “serious sexual offence”. Although only one such conviction is required to bring the defendant within the scope of the Act, it is to be accepted that the greater the number of index offences the more easily the statutory test could be satisfied. The definition of “serious sex offence” set out above at [8] means that a sexual offender who preys on adults rather than children does not come within the scope of the Act no matter how many sexual assaults he (or she) has committed unless at least one of the offences of which he or she has been convicted comes within that definition.
I have paid close regard to the history of the defendant’s criminal offending and in particular his history of offences against women of both a violent and a sexual nature. His first offences of this nature were breaches of domestic violence orders of a violent nature. Those offences escalated to the Miranda offences which were offences of a sexual nature that also involved the defendant slapping the victim. His offending behaviour then escalated to the Paddington offences which included the index offence and were offences of both a violent and a sexual nature. When the defendant was finally released on parole for those offences, having been through the CUBIT treatment programme, he assaulted a woman with whom he had had a brief intimate relationship.
Although it is to be accepted that his most recent offence of common assault is objectively a less serious offence, it is nonetheless an offence of violence. The serious sex offence committed by the defendant included an act of violence. It is the defendant’s history of offences of both violence and sexual assaults that is of concern. The risk that I am being asked to consider is not whether he will commit further offences of a sexual nature, but whether he poses an unacceptable risk of further serious sex offences.
With respect to his most recent assault, it is to be noted that the Magistrate who sentenced the defendant to his current term of imprisonment was not satisfied that the offence was committed in the context of a “domestic relationship”. That finding was in the context of a description of the offence for the purposes of entry onto his criminal record. That finding by the magistrate does not preclude me from being satisfied on the facts of the matter before me that the person whom he assaulted was a woman who was a recent sexual partner.
The defendant has expressed troubling attitudes towards women in some of the reports before me, as I have set out above. It is recorded in an OIMS case note of 7 April 2016 that, even on the day that the defendant was released on parole, he made inappropriate comments to a female corrections officer and made her feel uncomfortable.
Although the defendant failed to comply with his parole condition that he take medication for anxiety, his presentation and potential psychiatric issues remain obscure. The acting senior psychologist at Cessnock Correctional Centre Luke Brabant reported as follows in an OIMS case note on 7 November 2016:

“His presentation is quite obscure. He always appears agitated, shifting in his chair, averting eye contact, looking at things in the room that aren’t there. He has also displayed very unusual behaviour such as slapping his face, and expressed some paranoia in relation to believing that his previous CUBIT psychologist setting him up I mean agreement that he requires a psychiatric evaluation and believe that this is a priority. Robi appears to be quite resistant and believes that he does not require medication. He appears to lack insight into this mental health.”

No psychiatric diagnosis has been made that would explain this behaviour. The evidence of Dr Martin, the psychiatrist who has seen him most recently, is that the defendant would fulfil diagnostic criteria for an anti-social personality disorder. Other reports have also raised the possibility that the defendant may have a personality disorder, but no expert has been able to spend sufficient time with him to be in a position to make such a finding.
The defendant has a troubling history of being hostile to supervision. Despite this, the evidence of the experts was that he would be able to comply with the conditions of an ESO. I am satisfied that there are appropriate conditions that might be imposed as part of the ESO. I will address the appropriate conditions further below.
Having regard to all of the material before me, it seems to me that, unless the defendant is adequately supervised, he will resume his previous lifestyle of drug and alcohol abuse and seeking sexual gratification through impersonal encounters, such as the situations that led to the index offences. The prospect of him resuming that lifestyle must be considered in the context of his underlying lack of insight into his behaviour and his attitudes towards women, including a sense of entitlement in relation to them.
Overall, the defendant’s history of sexual offending, his past assaults on women, his acts of aggression and intimidation, his continuing attitude towards his offending and rehabilitation, his lack of insight into his behaviour, his poor response to supervision on parole and his recent offending on parole lead me to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision.
The granting of an ESO is discretionary: s 9(1) of the Act. Thus, even if the State discharges its burden of establishing that the defendant is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make the order. It is at the time when consideration is being given to that discretionary exercise that the Court is required to take into account the criteria in s 9(3) of the Act. I have had regard to those matters at both stages of my consideration of this matter. That is, I have already considered them in concluding that the defendant is a high risk offender and I have also had regard to all of them in considering whether to exercise the court’s discretion to grant the ESO. As Harrison J observed in State of New South Wales v Kamm at [46], it would be an unusual case before the court would decide in its discretion not to make an ESO under s 9 if it is satisfied according to the relevant standard that the offender is a high risk sex offender.
In addition to having regard to all of the matters in s 9(3) I have had regard to whether there are any factors personal to the defendant that would militate against ordering that he be placed on an ESO. I am satisfied that there are none. Accordingly, I propose to grant the State’s application. The only remaining matters to consider are the duration of the ESO and the relevant conditions.

Duration of the ESO

I have previously considered the relevant test for determining the length of any ESO in State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [76] – [90]. The question of the appropriate duration of an ESO is a legal one, albeit to be determined with the assistance of expert psychiatric and psychological opinion. It seems to me that the most important consideration guiding the exercise of the Court’s discretion with respect to the duration of an ESO is the safety and protection of the community. That approach accords with the primary object of the legislation. The rehabilitation of the defendant is a secondary object that yields to the safety and protection of the community in cases where those two objects conflict.
Dr Martin supported the proposed five years’ length of an ESO as reasonable because the issues relevant to the ESO are not going to “go away” in the short term. He also assessed the defendant’s risk of future sex re-offending as high. He agreed that people who are difficult to manage, like the defendant, would benefit from having an incentive to engage in the treatment process and that having a shorter ESO would give him an incentive to persist and comply with the order. He did not agree that the defendant is more likely to progress positively on a shorter ESO that could then be continued if there was no compliance. Nor did he accept that the making of an order for the maximum period would set the defendant up to “fail”.
Dr Dewson recommended an ESO of at least two years’ duration in her report. That recommendation was based on a theoretical model of change. According to that model, it is generally accepted that it takes approximately two years from the time that an individual starts to make changes through to maintenance of those changes. She gave evidence that the idea of two years of consolidation is premised on the defendant fully participating and embracing the supervision and treatment offered. If that is opposed, the stages of change would take significantly longer than two years. Hence, if the defendant does not fully embrace supervision and treatment, her recommendation would be that the supervision period be longer than two years.
In cross-examination, Ms Dewson stated that the quality of the defendant’s participation within the treatment is of more relevance to the length of his supervision order than his compliance with attendance at appointments and monitoring requirements. She disagreed that a person adhering to the theoretical model of change could progress through the model in less than two years, stating that the full two years would be needed to consolidate what needs to be done. She agreed that some people can move through the stages faster than the others, but that they can also move forwards and backwards through the stages. The two-year period from action to maintenance is inclusive of both scenarios.
Ms Dewson did not agree that no more than three years’ supervision could be sufficient. Nor did she believe that the defendant would be “set up to fail” by having an extended supervision order imposed for a maximum period of time with onerous conditions. Her belief was that he should be able to comply with the conditions and that it is not the length of the supervision order that should assist him, but rather his internal desire to change.
I have had regard to the objects of the legislation; namely, both the safety and protection of the community and the rehabilitation needs of the defendant. Although I accept the evidence of Dr Martin as to the need for an ESO for five years, the test is ultimately a legal one. In the circumstances of this application and having regard to the material before me, I am satisfied that three years is the appropriate length both to protect the community and also assist the defendant in his progress toward rehabilitation.

Conditions of the ESO

Having concluded that the defendant should be made the subject of an ESO for three years, s 11 of the Act provides that I may direct the defendant to comply with such conditions as I consider appropriate. Some directions are set out in s 11 of the Act. The conditions that I impose must be specifically designed to address issues relevant to the currently identified risk factors in relation to future serious sex offending, rather than general offending. Moreover, such conditions cannot be unjustifiably onerous or simply punitive. I have had regard to the relevant legal principles extracted at [37] – [46] of Wilde v State of NSW.
In imposing supervision conditions, the Court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
The proposed conditions sought by the State are attached to the amended summons. The parties made submissions as to the appropriate conditions during the hearing. During submissions, one matter that arose was whether the conditions were too onerous such that they may interfere with any employment that the defendant may obtain. I am satisfied that there is sufficient discretion on the part of the defendant’s DSO to accommodate any future employment. The evidence before me was that it was the aim of those administering the orders to have persons such as the defendant in gainful employment. I am satisfied that his DSO and the ESOT would work with him to help him gain employment and ensure that his supervision did not preclude that.
Further submissions were directed at the need to impose conditions monitoring the defendant’s internet access. It is to be accepted that the defendant has been in custody since 2007, except for eight months at liberty on parole in 2016. The circumstances of his previous sexual offending were that the defendant met his victims in bars. Despite this, he has reported that one of his previous relationships was with a woman that he had met online. It seems to me that there has been an increase in the use of dating applications that utilise the internet in recent years. Thus the number of women with whom the defendant could potentially come into contact via the internet is large. I am satisfied that the imposition of these conditions addresses the particular risk that the defendant poses.
The proposed conditions are restrictive. I am nonetheless satisfied that they are appropriate in the circumstances of this case. I note the evidence of Dr Parker at [87]. The ESOT has the discretion to relax the conditions over time if satisfied that the defendant is complying with them and progressing appropriately.

order

I make an order pursuant to ss 5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a high risk sex offender extended supervision order for a period of three years and, pursuant to s 11 of that Act, direct that the defendant comply with the conditions set out in the Schedule to this judgment for the duration of that order

Schedule

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

*Any reference to DSO includes any other employee of CSNSW who may also supervise the defendant from time to time

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must accept the supervision of CSNSW until the end of the Order.

2. The defendant must report to the DSO as directed by the DSO.

3. The defendant must follow all reasonable directions given by his DSO.

Electronic Monitoring

4. If directed, the defendant must wear electronic monitoring equipment as directed by the DSO.

Schedule of Movements

5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

8. The defendant must truthfully answer questions from his DSO about where he is, where he is going and what he is doing.

Part B: Accommodation

9. The defendant must live at an address approved by his DSO.

10. The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO.

11. The defendant must allow his DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

12. The defendant must not spend the night anywhere other than at his approved address without the approval of his DSO.

13. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO, unless that person is a member of the defendant’s immediate family.

Part C: Place and travel restrictions

14. The defendant must not leave New South Wales without the approval of CSNSW.

15. The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.

16. The defendant must not go to a place if his DSO tells him he cannot go there.

Part D: Employment, finance and education

17. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

18. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

Part E: Drugs and alcohol

19. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

20. The defendant must submit to testing for drugs and alcohol as directed by his DSO.

21. The defendant must not enter or loiter around any licensed premises (with the exception of cafes and restaurants where alcohol may be sold) without the approval of his DSO.

22. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association

Associations with Others

23. The defendant must not contact or associate with any victims of crimes for which the defendant has been charged and convicted, or with people that his DSO tells him not to.

24. The defendant must not associate with any people who he knows, or ought reasonably to know, are consuming or under the influence of illegal drugs.

25. The defendant must not associate with any people who he knows, or ought reasonably to know, are consuming or under the influence of alcohol without the approval of his DSO.

26. The defendant must not engage the services of sex workers without the approval of his DSO.

27. If the defendant intends or plans to start an intimate or sexual relationship with someone, he has to tell his DSO. The DSO may disclose the defendant’s criminal history to that person if the defendant refuses or fails to do so.

28. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part G: Access to the internet and other electronic communication

29. If directed, the defendant must give his DSO a list of all devices, services and applications he uses to communicate with others or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. The defendant must advise the DSO of any change to the inventory, or any of these details, immediately.

30. The DSO may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.

31. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

32. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

Part H: Search and seizure

33. If the DSO believes on reasonable grounds that a search (of the type referred to in sub-paragraphs d to f below) is necessary:

a. for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

b. to monitor the defendant’s compliance with this order; or

c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

d. search and inspection of any part of, or any thing in, the defendant’s approved address;

e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

g. search and examination of his person.

34. For the purposes of the above condition:

a. a search of the defendant means a garment search or a pat-down search.

b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

35. During a search carried out pursuant to condition 33 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

a. the safety of residents or of staff at the defendant's approved address;

b. the welfare or safety of any member of the public or any other person; or

c. the defendant's compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

36. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

37. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 33 to 36 above.

Part I: Access to pornographic, violent and classified material

38. The defendant must not, without the approval of his DSO, purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part J: Personal details and appearance

39. The defendant must not change his name from “Robi Alvin Amacha” or use any other name without the approval of his DSO.

40. The defendant must not use any alias, log-in name, or a name other than “Robi Alvin Amacha” or use any email address other than those known to the DSO under condition 29 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

41. The defendant must not permanently change his appearance without the approval of his DSO.

42. The defendant must let CSNSW photograph him.

43. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part K: Medical intervention and treatment

44. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

45. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

46. The defendant must take all medications that are prescribed to him, with his informed consent, by his healthcare practitioners.

47. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

48. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

49. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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Decision last updated: 22 June 2017

Medium Neutral Citation:	State of New South Wales v Amacha (Final) [2017] NSWSC 799
Hearing dates:	22 May 2017
Decision date:	22 June 2017
Before:	N Adams J
Decision:	Order pursuant to ss 5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a high risk sex offender extended supervision order for a period of three years and, pursuant to s 11 of that Act, direct that the defendant comply with the conditions set out in the Schedule to this judgment for the duration of that order.
Catchwords:	HIGH RISK SEX OFFENDER – application by State of New South Wales for extended supervision order – defendant convicted of offence of inflicting actual bodily harm with intent to have sexual intercourse without consent – whether defendant a high risk sex offender – question of duration of order
Legislation Cited:	Crimes Act 1900 (NSW), ss 61I, 61K Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 5B, 5C, 5H, 5I, 6, 9, 10A, 10C, 21A
Cases Cited:	Amacha v R, R v Amacha [2010] NSWCCA 180 Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Amacha (Preliminary) [2017] NSWSC 284 State of New South Wales v Brookes (Final) [2017] NSWSC 215 State of New South Wales v Donovan [2015] NSWSC 1254 State of New South Wales v Donovan [2015] NSWCA 280 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Kamm (Final) [2016] NSWSC 1 Wilde v State of NSW [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Robi Alvin Amacha (Defendant)
Representation:	Counsel: Ms J Single (Plaintiff) Ms A Cook (Defendant) Solicitors: NSW Crown Solicitor (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2017/00060214