State of New South Wales v Ariesen (Final)

[2024] NSWSC 276

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ariesen (Final) [2024] NSWSC 276

Hearing dates:

8 March 2024

Decision date:

21 March 2024

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment.

(3)    The interim supervision order made by Schmidt AJ on 7 December 2023 is revoked from the date of this order.

(4)    Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDER – Final hearing – High risk sex offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision

Legislation Cited:

Crimes Act 1900 (NSW) ss 61M(1), 66DB(a)

Crimes (High Risk Offenders) Act 2006 (NSW) ss 4, 5, 5B, 5D, 6(3), 7(4), 9, 17(4)(d1)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9(1), 32, 33

Cases Cited:

State of New South Wales v Ariesen [2023] NSWSC 1510

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Steven Ariesen (Defendant)

Representation:

Counsel:
Mr T Hammond (Plaintiff)
Mr G Heathcote (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Proctor & Associates (Defendant)

File Number(s):

2023/204047

JUDGMENT

1. HIS HONOUR: By a summons filed in Court on 26 June 2023, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) for a period of four years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). An interim supervision order (ISO) and certain other preliminary orders were made by Schmidt AJ on 7 December 2023 pursuant to the original summons: State of New South Wales v Ariesen [2023] NSWSC 1510.

2. The defendant accepts that the statutory preconditions for the making of an ESO are established and does not oppose the application, thus accepting that it is open to the Court to be independently satisfied that he poses an unacceptable risk of committing a serious offence, if not kept under supervision. The defendant takes issue with the proposed length of the ESO and some of the conditions that are proposed by the plaintiff.

The joint memorandum of facts and issues

3. Pursuant to a recently introduced practice note (SC CL 12), the application is accompanied by a joint memorandum of facts and issues, which includes the following relevant background to the application, and to which I have added some additional observations and evidence summaries.

The defendant’s criminal offending

4. The defendant is presently aged 53. The index offences giving rise to the application are two counts of sexual touching – child between 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW), and a count of failing to comply with reporting obligations, contrary to the Child Protection Offenders Registration Act 2000 (NSW). He pleaded guilty to all three offences and was sentenced by Judge Craigie SC at the Parramatta District Court on 21 June 2021 to an aggregate term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years, commencing from 23 June 2020. The non-parole period expired on 22 June 2022 and the head sentence expired on 22 December 2023.

5. The victim of the index offences was a 14-year-old youth who lived across the road from the defendant’s partner. The victim, along with his brothers and the defendant’s partner’s daughters, was frequently taken to outings by the defendant. The defendant and the victim exchanged text messages which the defendant instructed the victim to delete. The matter was reported to the police when the victim’s sister discovered the text messages. During the course of the police interview that followed, the defendant made admissions to having groomed the victim and sexually touching him on a number of occasions (fondling the victim’s penis). At the time, the defendant was on the Child Protection Register (CPR) consequent to earlier offending and was not permitted to have unsupervised contact with children. The CPR application also required disclosure of contact with children, which he failed to do in relation to the victim.

6. Judge Craigie SC found that the defendant lacked insight as to the impact of his conduct on the victim. Although he had been assessed by the author of a sentencing assessment report as posing a “medium to low” level of risk of reoffending, Craigie SC DCJ was unpersuaded of that assessment of the defendant:

“The primary informant as to risk I find is in the nature and sustained repetition of offending, including in the past context that [the defendant] plainly hid his past. In the present instance he simply neglected his obligations, in relation to reporting. Had he met that obligation, it may well have presented some level of protection for the young lad who became his victim.”

7. The defendant was convicted of sexual offences in relation to children on two previous occasions. The first set of offences involved five counts of aggravated indecent assault of a child under the age of 16 years, contrary to s 61M(1) of the Crimes Act, committed between 1 September 2002 and 27 February 2004. The defendant was sentenced to a five-year good behaviour bond pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (since amended) (Sentencing Procedure Act). Two of those offences were taken into account on a Form 1 pursuant to ss 32 and 33 of the Sentencing Procedure Act.

8. The defendant was arrested and charged with the second set on 10 July 2007, being nine counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act, committed between 1 June 2006 and 11 July 2007 and relating to four separate victims. The defendant was also charged with three counts of failure to comply with the Child Protection Register due to him not reporting to police that he had access to the victims. He pleaded guilty to the offences and was sentenced to a total effective sentence of 2 years and 6 months, with a non-parole period of 2 years. ^[1]

   1. The joint memorandum of facts and issues referred to the sentences as being 3 concurrent sentences of 18 months and one cumulative sentence of 18 months, all the remaining matters being on a form 1. However, according to the bail chronology, each 18 months sentence had a non-parole period of 12 months and the cumulative sentence commenced 12 months after the three concurrent 18-month sentences commenced.

9. During his time in custody, the defendant participated in and completed three treatment programs: the Custody-Based Intensive Treatment (CUBIT), the High Intensity Sex Offender’s Program (HISOP) and the Real Understanding of Self Help (RUSH). Following his release on parole and during the period of the ISO, the defendant participated in sex offender treatment with the Forensic Psychology Services (FPS) that was provided in group form rather than individually and, since December 2023, with a private psychologist.

The risk assessment report

10. A risk assessment report (RAR) was prepared in relation to the defendant by Ms Holly Cieplucha, Senior Psychologist, Serious Offenders Assessment Unit. The report noted that the defendant met the diagnostic criteria for a Paedophilic Disorder, with a preferential attraction to prepubescent males, and a Recurrent Major Depressive Disorder. She noted that he had been previously assessed as falling in the borderline range of intellectual functioning. According to the RAR, the most likely risk scenario for future offending would involve the sexual touching of pre-pubescent or pubescent boy’s genitalia alongside psychological coercion or grooming, the potential victims likely being known to the defendant and in the age range of 7 to 14 years old. A supplementary RAR prepared by Ms Cieplucha assessed the defendant as presenting a high density of criminogenic needs according to the STABLE-2007 risk assessment scale, causing him to fall within the Well Above Average risk range.

The risk management report

11. The tendered material includes a risk management report (RMR), prepared by Lisa Dodd, a Community Corrections Officer in the ESO team. The report was prepared following an interview with the defendant, contact with his psychologists (during the custody-based sex offender programs) and his parole officer, as well as a review of the RAR, police facts and criminal history and Corrective Services NSW records relating to the defendant. It summarised prior risk management of the defendant by Community Corrections, his post-release plans, risk of re-offending and risk factors. The report proposed a risk management plan for the defendant.

12. The plan proposed in the RMR included recommendations as to appropriate conditions of an ESO. It was suggested that the defendant should be subject to weekly reporting with a DSO, focussing on implementing a comprehensive case plan which would include interventions and opportunities for pro-social activities and strategies that are relevant to his identified risks, and a referral to FPS. In order to monitor his engagement with all interventions, weekly third-party contacts with the defendant’s family, friend/partner, and service providers were recommended, in addition to announced and unannounced field visits to the defendant’s residence and observations of the defendant in community settings by Community Corrections and the NSW Police Extended Supervision Order Investigation Team (ESOIT). The plan also recommended the imposition of a schedule of movements and a curfew, along with electronic monitoring, to monitor the defendant’s movements in the community and to ensure the defendant was residing at his approved place of residence overnight, respectively. Further place restrictions suggested that the defendant should be required to remain in NSW, with a prohibition on unauthorised travel, and an imposition of exclusion zones for suburbs located in NSW for the safety of the victims. In order to enable Community Corrections or the ESOIT to easily identify him, the report suggested that the defendant should be prohibited from changing his identification information and prior approval should be mandated before he is to change his appearance.

13. In relation to restrictions as to the defendant’s associations, the plan suggested conditions to prohibit the defendant’s contact and association with children under the age of 18, and to limit his contact with anti-social associations. As well, it was suggested that the defendant should be required to inform his DSO of any person with whom he intends to associate or form a relationship with, and to seek his DSO’s approval prior to joining or affiliating with any club or organisation, including any internet or social media networking service. Finally, it was proposed that the defendant’s use of communication devices and internet usage must be limited, and a search condition must be imposed to enable Community Corrections to effectively monitor the defendant’s compliance with his order conditions, his communication with others, and the information he had accessed on the internet.

A forensic psychologist’s report (Dr Youssef)

14. Pursuant to the orders made by Schmidt AJ in compliance with s 7(4) of the Act, two forensic reports were prepared by Dr Jeremy O’Dea and Dr Carollyne Youssef. Dr Youssef’s report, dated 7 February 2024, followed a four-hour interview with the defendant. She considered that the defendant met the criteria for a Paedophilic Disorder and Hebephilia (both exclusive type, sexually attracted to males) and a Dependent Personality Disorder (DPD). The report identified several dynamic risk factors for the defendant being, chronicity of sexual violence; psychological coercion in sexual violence; extreme minimisation or denial of sexual violence; and problems with self-awareness, stress or coping, child abuse, sexual deviance, sexual health, intimate and non-intimate relationships, and treatment. The most significant risk factor for the defendant, in Dr Youssef’s opinion, was his ongoing sexual preference for underage males. Dr Youssef did not consider that the defendant’s risk could be adequately managed without an extended period of supervision in the community to address his dynamic risk factors. In relation to the imposition of the ESO, the report considered: that the Schedule of Conditions attached to the summons, in addition to a condition which required that the defendant seek approval from his Departmental Supervising Officer (DSO) before he had contact with an adult who may have children or access to children (including a potential intimate partner), would be appropriate to manage the defendant’s risk; that a minimum ESO duration of three years was recommended; and further that a duration of four years may not be considered excessive.

A forensic psychiatrist’s report (Dr O’Dea)

15. Dr O’Dea’s report was prepared on 14 February 2024 following a two-hour interview of the defendant. Dr O’Dea considered that the defendant met the diagnostic criteria for a Paedophilic Disorder and a Homosexual Hebephilia. He considered that the defendant’s issues with mood and relationships were better understood in the context of those diagnoses rather than that of an independent Major Mood Disorder. Dr O’Dea opined that the defendant presented a significantly high risk of engaging in further sex offending in the community, including committing a further serious sex offence. According to Dr O’Dea, such risk could be adequately and appropriately managed with successful implementation of psychiatric treatment and a risk management program, including antilibidinal medication, and supervision of an ESO, with the imposition of conditions attached to the summons. Dr O’Dea considered that the appropriate duration of the ESO was five years due to the defendant’s long-term risk of committing a further serious sex offence.

The relevant statutory provisions and principles

16. Section 5B of the Act relevantly provides as follows:

“Part 1A   Supervision and detention of high risk offenders

…

5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if—

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b)   the person is a supervised offender (within the meaning of section 5I), and

(c)   an application for the order is made in accordance with section 5I, and

(d)   the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

17. As noted, the defendant does not contest that the preconditions of an application for an ESO, which are set out at s 5B(a)–(c) are made out. I am independently satisfied that those preconditions are satisfied.

18. The term “serious offence”, which appears in s 5B(d), is defined in ss 4 and 5 of the Act, as follows:

“4   Definitions

(1)   In this Act:

…

serious offence means—

(a)   a serious sex offence, or

(b)   a serious violence offence.

serious sex offence—see section 5 (1).

…

5   Definitions of ‘serious sex offence’ and ‘offence of a sexual nature’

(1)   For the purposes of this Act, a serious sex offence means any of the following offences—

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where—

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

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

(a1) an offence under section 61K or 66EA of the Crimes Act 1900

…

(2)   For the purposes of this Act, an offence of a sexual nature means any of the following offences:

…

(c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900 …”

19. The reference in s 5B(d) of the Act to “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act, which provides as follows:

“5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.”

20. I note that, pursuant to ss 5B and 9(1) of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the prerequisites in that section are satisfied.

21. Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. The reports by Dr Youssef and Dr O’Dea are in compliance with the latter requirement set out in s 6(3)(b) of the Act.

22. The Act stipulates its objects and the paramount consideration to be taken into account when determining an application for an ESO. They are as follows:

“3   Objects of Act

(1)   The primary object of this 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.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

…

9   Determination of application for extended supervision order

(1)   The Supreme Court may determine an application for an extended supervision order—

(a)   by making an extended supervision order, or

(b)   by dismissing the application.

(2)   In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A)   (Repealed)

(3)   In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a)   (Repealed)

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

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious 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 offence,

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

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

(e1)   options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)   the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)   without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g)   the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

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

(h1)   the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)   any other information that is available as to the likelihood that the offender will commit a further serious offence.

(4)   In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

Section 9(3) of the Act: forensic reports and evidence

23. The forensic reports by Dr Youssef and Dr O’Dea, and the RAR and RMR by Ms Cieplucha and Ms Dodd respectively, constitute the primary material that has been tendered in respect of the matters identified in s 9(3), the relevant contents of which are summarised earlier in this judgment. In particular, the forensic reports are of a type specifically identified in s 9(3)(b), the RAR in s 9(3)(c) and the RMR in s 9(3)(d1). The defendant’s criminal history and the sentencing judge’s observations have also been reviewed or noted earlier in this judgment.

Finding as to s 5B(d) of the Act

24. In the terms of s 5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. I decline to exercise the discretion made available by ss 5B and 9(1) of the Act to not make an ESO.

25. As to the length of the ESO, I note Dr Youssef’s opinion, as expressed in her report, as follows:

“I recommend an ESO duration of a minimum of three years, although four years may not be considered excessive. This period would allow sufficient time to put in place community measures and supports that will ideally lead to [the defendant] progressing through his (re)integration and desistance process. An ESO period of at least three years provides an opportunity for [the defendant’s] conditions to be gradually, but steadily reduced with an opportunity to be supported whilst under the order. This period would also allow for [the defendant] to engage in intervention to address his outstanding dynamic risk factors as identified.”

26. During cross-examination, Dr Youssef was asked if an ESO for two years would suffice, since the defendant has been in the community subject to parole, and subsequently, to the ISO, since March 2023, being a period of 12 months, without breaching his conditions. She responded:

“I think provided that he is addressing the outstanding dynamic factors because I do believe that although he has done treatment on three occasions there still remains some specific outstanding factors, dynamic risk factors that may not be adequately addressed in maintenance which I am aware he is currently engaging in and not attending any other targeted intervention so I don’t know, I don’t think he has addressed that in a way to be beyond just maintenance and two years, it may be enough; it may not, however, taking into account some responsivity factors that [the defendant] has.”

27. Dr Youssef was invited to elaborate upon what she meant by the defendant’s “responsivity factors” and replied:

“So responsivity factors by way of his borderline intellectual function. So when he was identified as having borderline intellectual function it meant in group settings it seemed he was struggling to grasp what was happening so it kind of held him back in addition to the anxiety that he also experiences so there was a pattern of him taking some time to warm up to the group environment and functioning with his treatment. There were still substantial outstanding risk factors that remain unaddressed and outstanding to monitor.”

28. Dr Youssef has recommended that, because of the defendant’s borderline intellectual functioning, his sessions with FPS be by way of one-on-one individual sessions. She was asked if the defendant had the benefit of one-on one-counselling, how long it would take to address his outstanding needs. She replied:

“It is quite difficult to say. So he has already done treatment and there is some, some awareness there but I would say at minimum probably two years because you want to allow a sufficient period of time to acquire new skills and then generalise them in the community before then having a period of maintaining those changes. That would be the ideal scenario.”

29. Dr O’Dea gave evidence as well, but was not questioned about his opinion as to the duration of an ESO, as expressed in his report, which was as follows:

“[The defendant’s] risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006 in the community, is likely to be long term, and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term, and at least of 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress.”

30. I am of the view that the ESO should be for a period of three years from the date of this order. Dr Youssef’s somewhat qualified acceptance of the proposition of an ESO for two years was dependent upon a positive response by the defendant to one-on-one counselling, which there is no guarantee he will receive through FPS. It is appropriate, in my view, to recommend that he does. An ESO for three years allows more confidence that the defendant’s treatment needs will be completed, in order to mitigate the risk of him committing another serious offence, to an acceptable level.

Proposed conditions of the ESO

Proposed conditions in dispute

Schedule of movements

31. The plaintiff proposes that, if directed by his DSO, the defendant be obliged to provide a weekly plan, at least three days before it is due to commence (condition 5). Any change must be approved in advance and must be communicated to a DSO at least 24 hours beforehand, unless a shorter period is agreed (condition 6). He must not deviate from the plan, unless in an emergency (condition 7). The defendant submitted that, in view of the fact that the whereabouts of the defendant can be known at any time by virtue of electronic monitoring, the schedule is both unnecessary and a source of considerable anxiety to the defendant. Further, the defendant argues that scheduling is unnecessary also in view of the evidence of Dr O’Dea and others regarding the likely risk scenario being the defendant committing a sexual offence against a child who would have been known to him for a period of time, rather than an opportunistic commission of such an offence.

32. I am of the view that advance scheduling of the defendant’s movements is appropriate. Electronic monitoring is most effective when it operates in conjunction with scheduling. Scheduling also facilitates the ESO staff and police carrying out random checks on the defendant’s whereabouts. However, I accept that the proposed conditions concerning last-minute changes to the schedule may unnecessarily cause stress and anxiety to the defendant. Condition 7 will be amended to read as follows:

“The defendant must not deviate from his approved schedule of movements except in an emergency or if the deviation is unavoidable, and if the defendant deviates he must notify his DSO as soon as practicable.”

Visits by the DSO to the defendant’s address and searches by the DSO

33. The plaintiff seeks a condition (condition 11) that the defendant allow a DSO to visit him at his approved address, and enter those premises, at any time. Similarly, a condition is sought (condition 39) that the defendant agree to permit a DSO, or a person authorised by a DSO, to carry out searches of him, places under his control, as well as certain electronic devices, and to seize any object located during such searches.

34. The defendant submits that the conditions are unnecessarily oppressive and that visits and searches should be restricted to no more than two per month.

35. I decline that amendment, for the reason that after the second visit or search in a month, the defendant would know that no further visits or searches are possible until the following month, which would deprive the condition of its deterrent value for that period.

No visitors without permission

36. The plaintiff proposes the following condition 13:

“The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight at his approved address (other than persons who ordinarily reside at his approved address) without the prior approval of a DSO.”

37. The defendant submits that condition 13 should be modified so that these words are added: “apart from one or more of the following named persons”. The names would thereafter appear of his mother, his mother’s partner, an uncle, his flatmate and his flatmate’s mother, who is also a close friend.

38. As to condition 13, in my view, there is no danger posed by the named persons (other than his uncle) visiting, and staying overnight at, his residence. Although the plaintiff has reservations as to the protective capacity of some of those individuals, I do not understand, at least four of them, to proactively encourage offending behaviour by the defendant. His uncle, who has not previously been assessed, could do so with prior approval. The condition will read as follows:

“The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address, without the prior approval of a DSO, except for persons who ordinarily reside at his approved address and, unless a DSO directs otherwise, the following nominated persons: [five named persons].”

Prior permission needed to visit certain places

39. Proposed condition 17 excludes the defendant from attending certain types of venues without prior approval. The list effectively comprises places where children may be expected to be present. The defendant proposes that he not be required to seek prior approval to attend three of the types of locations (cinemas, libraries or museums) if he is in the company of one or more of the same five named persons that he proposed in respect of condition 13.

40. Condition 17 involves a different consideration: whether any of the named persons is a protective factor to the extent that prior approval from the DSO for visiting such locations is not required. In my view, there is no basis for confidence that the presence of one or more such persons would remove the potential for a serious offence being committed. It is alleged that the defendant’s mother has previously allowed the defendant to socialise with children, while aware that such behaviour was prohibited. Accordingly, the defendant’s counter proposal is refused.

Two recommendations

41. As noted, the RMR and Dr Youssef referred to an earlier assessment of the defendant’s intellectual functioning which placed him in the borderline range of having an intellectual disability. It appears that the only such assessment was by psychologist W John Taylor, the results of which he included in a report dated 28 December 2004. Although an intellectual disability is a permanent condition, it would be helpful, in my view, if the defendant’s therapists and the ESO team had the benefit of an updated assessment, in order to facilitate their understanding of the defendant’s strengths and weaknesses in communication and understanding. Accordingly, I recommend that Corrective Services NSW give consideration to obtaining such a report from a clinical psychologist.

42. I note that Dr Youssef was of the opinion that the defendant’s response to treatment and therapy would likely be significantly enhanced by one-to-one counselling, rather than group therapy. This is partly due to his cognitive issues. Clearly, it is in the interests of the defendant and the community that his treatment is successful. I recommend that Corrective Services NSW give consideration to funding one-on-one therapy for the defendant.

Orders

43. I make the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order.

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment.

3. The interim supervision order made by Schmidt AJ on 7 December 2023 is revoked from the date of this order.

4. Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

**********

Ariesen Schedule of Conditions of Supervision (100062, pdf)

Endnote

Decision last updated: 21 March 2024