State of New South Wales v BG (a pseudonym) (Final)

[2022] NSWSC 1531

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v BG (a pseudonym) (Final) [2022] NSWSC 1531

Hearing dates:

24 October 2022

Date of orders:

10 November 2022

Decision date:

10 November 2022

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of three years commencing on 10 November 2022.

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

Catchwords:

HIGH RISK OFFENDERS – Extended supervision order – final hearing – serious sex offender – order duration and nature of some of the conditions contested by defendant – whether unacceptable risk of committing another serious offence if not kept under supervision order – application granted – extended supervision order made for three-year period subject to conditions – discussion about appropriate conditions

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(d)

Crimes Act 1900 (NSW), ss 61M, 61J, 66A

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5D, 7, 9, 10A, 10C, 11, 12

Crimes (Sentencing Procedure) Act 1999 (NSW), s12

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119

Kamm v State of NSW (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

New South Wales v Simcock [2016] NSWSC 1805

State of New South Wales v BG (Preliminary) [2022] NSWSC 1065.

State of New South Wales v Chaplin [2019] NSWSC 471

State of New South Wales v Devaney (Final) [2022] NSWSC 60

State of New South Wales v Donovan [2015] NSWSC 1254

State of New South Wales v Hackett (Final) [2022] NSWSC 885

State of New South Wales v Heath (a pseudonym) (Final) [2022] NSWSC 365

State of New South Wales v Kaiser [2022] NSWCA 86

State of New South Wales v Kamm(Final) [2016] NSWSC 1

State of New South Wales v Wilmot (Final) [2019] NSWSC 1276

Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
BG (Defendant)

Representation:

Counsel:
D New (Plaintiff)
N Broadbent / A Richards (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2022/00055932

Publication restriction:

An order of the Court was made on 24 October 2022 as follows:
(1) An order pursuant to ss7 and 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the defendant shall be identified in connection with these proceedings by the pseudonym BG and that the identity of any victims or children identified in the course of reading the victim statement be redacted.
(2) That order shall apply:
(a) To all media including, but not limited to, print, radio, television, internet and social media;
(b) Throughout the Commonwealth;
(c) Until further order of the Court

JUDGMENT

1. The defendant, BG,^[1] is a 61-year-old man who has been convicted of a series of sexual offences against three female children aged 9, 10 to 11, and 15. The offences were committed between 1998 and 2004.

   1. An order was made pursuant to ss 7 and 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW) for the defendant in these proceedings to be identified by the pseudonym “BG”.

2. The plaintiff, the State of New South Wales, has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) by way of an amended summons filed on 4 October 2022. The plaintiff seeks final relief in the nature of a five-year extended supervision order (“ESO”) subject to certain conditions. The making of the order is opposed by the defendant. Should the order be made, the defendant contests the duration of the order and the nature of some of the conditions sought by the plaintiff.

3. For the reasons which follow, I am satisfied that an ESO of three years should be made subject to conditions. The conditions are set out at the conclusion of these reasons.

Procedural History

4. On 9 August 2022 following a preliminary hearing, Chen J made orders pursuant to ss10A and 10C of the Act for the defendant to be subject to an interim supervision order (“ISO”) commencing on 12 August 2022 for a period of 28 days. ^[2] The ISO was renewed on several occasions and is due to expire on 11 November 2022. ^[3] The ISO was also subject to certain conditions pursuant to s11 of the Act.

   2. State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [166] (Chen J).

   3. The ISO was renewed on 31 August 2022 by Bellew J for a period of 28 days from 9 September 2022. The ISO was renewed again on 4 October 2022 by Bellew J for a period of 28 days from 7 October 2022. On 28 October 2022, I renewed the ISO by way of a chambers order for a period of 7 days from 4 November 2022, which takes the expiration of the ISO up to 11 November 2022.

5. Chen J also made orders for the appointment of two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish those expert reports to the Court to assist in determining whether or not an ESO should be made and if so, the nature of it. ^[4]

   4. State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [166] (Chen J); An order pursuant to s7(4) of the Act.

6. The final hearing of the plaintiff’s application came before me on 24 October 2022. Ms New of counsel appeared for the plaintiff and Mr Broadbent and Ms Richards of counsel appeared for the defendant.

7. The following documentary material was tendered or read on behalf of the plaintiff at the hearing:

1. Exhibit A: Affidavit of Brett Thomson sworn 24 February 2022 with the one volume exhibit marked “BT-1” as referred to in the affidavit.

2. Exhibit B: Affidavit of Brett Thomson sworn 1 July 2022;

3. Exhibit C: Affidavit of Brett Thomson sworn 30 September 2022;

4. Exhibit D: Affidavit of Angela Marlis Rybak affirmed 23 August 2022;

5. Exhibit E: Affidavit of Kelli Grabham affirmed 4 October 2022;

6. Exhibit F: Expert report of Dr Michael Davis dated 23 September 2022;

7. Exhibit G: Expert report of Dr Andrew Ellis dated 26 September 2022; and

8. Exhibit H: Victim statement dated 13 October 2022.

8. The following documentary material was tendered or read on behalf of the defendant at the hearing:

1. Exhibit 1: Affidavit of Dominic Gleeson sworn 18 July 2022 with the exhibit marked “DG-1” as referred to in the affidavit;

2. Exhibit 2: Affidavit of Dominic Gleeson sworn 18 October 2022; and

3. Exhibit 3: Affidavit of BG affirmed 18 October 2022.

9. At the hearing of the matter, the two experts Dr Michael Davis and Dr Andrew Ellis gave oral evidence.

10. Helpful written submissions were provided by Ms New and Mr Broadbent (with Ms Richards) and counsel spoke to those written submissions at the conclusion of the hearing.

Principal Issues for Determination

11. The principal issues for determination by the Court are as follows:

1. Whether an ESO should be made;

2. If so, the duration of the order; and

3. If an ESO is made, the conditions which the Court considers appropriate as part of the ESO.

The Statutory Scheme

12. As set out in s 3 of the Act, 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 the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

13. The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release”: State of New South Wales v Heath (a pseudonym) (Final) [2022] NSWSC 365 at [11]; State of New South Wales v Donovan [2015] NSWSC 1254 at [3]. The objects of the Act are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of NSW (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].

14. Section 5B of the Act specifies the circumstances in which the Court may make an ESO (often referred to as the “threshold requirements”):

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 [to be read as s 6],^[5] 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.

5. State of New South Wales v Kaiser [2022] NSWCA 86 per Simpson AJA at [77], [124].

15. “Serious offence” is defined in s 4 of the Act as a serious sex offence or a serious violence offence. In this matter, the relevant type of serious offence is a serious sex offence.

16. Section 5D of the Act provides that 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.

17. The meaning of “unacceptable risk” is not defined in the Act and its meaning was considered by Beazley P of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51] (“Lynn”):

“As the respondent pointed out in its submissions, by reference to dictionary definitions, the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

“What the court, therefore, must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision”. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

18. In Lynn, Basten JA stated at [126]:

“The nature of the risk … posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community…”

19. The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

20. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

21. The impact an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That factor, however, may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the Act. ^[6]

    6. Lynn at [44], [56]–[58] (Beazley P), [126]–[128] (Basten JA), [148] (Gleeson JA).

22. In determining whether or not to make an ESO, s 9(2) of the Act provides that the safety of the community must be the paramount consideration of the Court.

23. Section 9(3) of the Act sets out a list of factors which the Court “must also have regard to…in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d) and also the exercise of the discretion in s 9 of the Act.

Factual Background

24. The defendant was convicted for three separate instances of offending:

1. In October 2002, he was convicted of one count of aggravated indecent assault of a person under 16 years contrary to s 61M(1) of the Crimes Act 1900 (NSW) in relation to conduct in November 2001. The offending involved his 15-year-old daughter. He was sentenced to a period of imprisonment of one year which was suspended pursuant to the now repealed s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the 2001 Offending”).

2. In November 2005, he was convicted of one count of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act in relation to conduct committed on 8 February 2004. The victim was a 9-year-old girl. He was sentenced to a period of imprisonment of five years and four months, with a non-parole period of four years (“2004 Offending”)

3. In November 2013, he was convicted of one count of aggravated indecent assault of a person under 16 years and three counts of aggravated sexual assault of a person under 16 years contrary to ss 61M(1) and 61J of the Crimes Act respectively in relation to conduct from January 1998 to July 1999. The victim was his daughter’s friend, aged 10 and 11 years at the time. He was sentenced to a period of imprisonment of nine years with a non-parole period of six years and nine months, expiring on 12 August 2022 (“the Index Offending”). While this sentence was last in time, these offences pre-dated all of the defendant’s other sexual offences.

25. Further background in relation to the offending and the defendant’s background more generally was set out conveniently in the preliminary judgment of Chen J at [52]-[73] as follows: ^[7]

    7. For further clarity I have added additional headings.

“[52]    The defendant was born on 2 December 1960, and is currently [61] years of age. Between around 1981 to 1994 the defendant was married and he has three children from that marriage – one boy and two girls.

[53]    There is no clear and consistent evidence around the defendant’s employment since leaving school. Based upon the history contained in a psychologist’s report – a report secured by the defendant for the purposes of his sentencing in 2005 – his employment may broadly be described as varied work of an unskilled or semi-skilled kind, until around 1987/1988 – when he apparently undertook security work. When he ceased this work in around 1995, the defendant is reported to have undertaken self-employed lawnmowing work for around 12 months, but thereafter had not had “any significant employment since 1996”.

[54]    Aside from the sexual offences against children … the defendant has been convicted of car theft and driving offences (in 1975), a driving offence (in 1979), as well as a prescribed concentration of alcohol (‘PCA’) offence and fine (in 1987 and again in 1996).

[The 2001 Offending]

[55] In January 2002, the defendant was charged with an offence of aggravated indecent assault against his daughter, under s 61M (1) of the Crimes Act 1900 (NSW), that occurred in November 2001. The circumstances of aggravation being the age of the victim – she was 15 years old.

[56]    The background and circumstances giving rise to the offending conduct were as follows. The defendant’s daughter (‘the daughter’), who was then aged 15, lived with the defendant. Also living with the daughter was her then boyfriend. On the evening in question, the defendant and the daughter’s boyfriend had spent the evening at a hotel, and they returned at approximately midnight, intoxicated. The daughter was in her bedroom. The defendant entered the room, and whilst she was in bed he lay next to her, and commenced to touch her on the upper right thigh under her dress for a minute or two, and brush up and down her thigh. He also touched her on the stomach and her breasts for a few minutes. The defendant, the sentencing judge found, made a “suggestive remark” to the daughter’s boyfriend – namely: “she wants you to come and do the things I can’t do… You’re in luck, she’s got no pants on”.

[57] On 3 September 2002, the jury returned a verdict of guilty. The defendant was convicted in respect of one count of indecent assault on a person aged under 16, and sentenced to imprisonment for one year, but the execution suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The defendant was also placed on a 12 month good behaviour bond, which expired in October 2003.

[58]    In a Pre-Sentence report in 2002, following his conviction, the defendant denied his guilt. The defendant has continued to deny committing this offence to the present time.

[The 2004 Offending]

[59] In June 2004, the defendant was charged with further sex offences against [a child] that occurred on 7 February 2004. (That is, some five months after the expiration of the good behaviour bond). The charges were: sexual intercourse with a child under the age of 10 years (s 66A of the Crimes Act) and indecent assault where the victim was under the age of 10 years (s 61M of the Crimes Act). The offending involved a nine year old female victim.

[60]    The background and circumstances giving rise to the offending conduct were as follows. The defendant occupied an adjoining townhouse to the victim and her family. On 8 February 2004, the defendant struck up a conversation with the victim’s father. During the afternoon, the defendant purchased alcohol for his own use, as well as for the parents of the victim. The defendant remained for the rest of the evening speaking with the victim’s father. It was accepted as “common ground” during the trial that during the evening the defendant, and the victim’s father, opened the window in the victim’s bedroom.

[61]    In the early hours of the morning, the victim awoke to find the defendant sitting on the side of her bed, with his arm under the covers and his finger in her vagina. The victim’s father, who is suggested along with the victim’s mother to have a form of intellectual disability, observed the defendant coming from the direction of the victim’s room and also observed the victim crying. The following day, the victim told her father what had occurred, and the police were called.

[62]    The defendant pleaded not guilty but was convicted by the jury of one count of sexual intercourse with a child under the age of 10 years. The defendant was sentenced by Boulton A-DCJ, on 24 November 2005, to imprisonment for five years and four months, with a non-parole period of four years. The sentence commenced on 24 June 2004 (when the defendant was taken into custody) and was to expire on 23 October 2009.

[63]    It is convenient, at this point, to note the following remarks of Boulton A-DCJ when sentencing the defendant:

(1)    There was tendency evidence admitted during the hearing from one of the defendant’s daughters “to the effect that [the defendant] had digitally penetrated her as a child years ago in Victoria”, evidence that the sentencing judge described as “quite compelling”.

(2)    That the defendant denied the earlier offence involving his daughter, and also continued “to deny this offence”.

(3)    That his Honour “was left with the strong impression…that [the defendant] insinuated [sic: inserted] [himself] into this quite dysfunctional household for motives other than having a conversation with the child’s father. Your going into the young girl’s bedroom, her upstairs bedroom in the early hours of the morning only lends support to this view”.

(4)    His Honour took “the view…that [the defendant had] a dangerous tendency to sexually assault young girls. [He] continue[d] to deny [his] guilt”.

[64]    The finding by Boulton A-DCJ that the defendant continued “to deny this offence” was a reference to a pre-sentence report dated 7 October 2005 (the defendant did not give evidence during his sentence hearing). The relevant part of this report is on page 2 where it was noted that the defendant:

… Has continued to deny guilt with regard to the present matter, claiming the only reason he had been in the victim’s bedroom was to help adjust a window at her father’s request and to read the victim the story at her request. He agreed he had only very recently met the family and had spent the day with them in which a quantity of alcohol had been consumed.

[65]    It appears that the defendant was granted parole on 23 June 2009, but only for a few months, when it was revoked because the defendant “did not wish to partake in any sexual offender programs”.

[66]    The defendant has consistently denied committing this offence, and continues to do so.

The index offences

[67]    In September 2012, the defendant was charged with 11 sexual offences that occurred in the period 1998 – 1999. The offending involved a female victim who was 10 or 11 years old – depending upon the date of the offending conduct.

[68]    The defendant pleaded not guilty to the 11 counts on the indictment. Verdicts by direction were given in relation to 2 counts (counts 9 and 10). The defendant was found not guilty by the jury in relation to counts 3 and 11 (verdicts were not required in respect of alternative counts 2, 5 and 8).

[69] The defendant was found guilty in relation to counts 1, 4, 6 and 7. Counts 1, 4 and 7, alleged that the defendant, contrary to 61J(1) of the Crimes Act, had sexual intercourse with the victim without her consent, knowing she was not consenting in circumstances of aggravation being that the victim was 10 or 11 years old. Count 6 alleged that the defendant, contrary to s 61M of the Crimes Act, committed an indecent assault upon the victim in circumstances of aggravation – being that the victim was 11 years old.

[70]    The offending conduct in relation to the four counts upon which the defendant was convicted were:

(1)    Count 1: the victim was staying overnight with the defendant and his daughter. She went to sleep in her own bed. Whilst in bed, the defendant got into bed with her, touched her on the outside of her vagina and then inserted his fingers into her vagina.

(2)    Count 2: the victim was staying at the defendant’s parents’ home, with the defendant and the defendant’s daughters. The victim went to bed by herself. Subsequently, the defendant got into bed with her “forced her legs open and licked her vagina on the outside as well as the inside”.

(3)    Count 6: this offence occurred when the defendant and his daughters, moved into a townhouse occupied by the victim and her father. The indecent assault occurred when the defendant entered the victim’s bedroom. The defendant got into bed with the victim and “touched her around her vagina and breasts”.

(4)    Count 7: this offence occurred when the victim was alone in the house with the defendant and the defendant’s children after the victim’s father went to work. At this time, the defendant entered her bedroom and got into bed with the victim, inserting “his penis into her vagina. [The victim] told [the defendant] it was hurting and tried to push him off”. At this time the victim was in year 6 at school.

[71]    The defendant was sentenced in relation to the 4 counts by Norrish QC DCJ on 11 November 2013 to an aggregate term of 9 years commencing on 11 November 2013 and expiring on 12 August 2022, with a non-parole period of 6 years 9 months.

[72]    It is convenient, at this point, to note the following remarks of Norrish QC DCJ when sentencing the defendant:

(1)    There was “no suggestion in the commission of these offences that [the defendant] was affected by alcohol or illicit substances at the time of the commission of the offences”.

(2)    The “pattern of the current offences… And the subsequent conduct of the [defendant] revealed in the subsequent offending [that] resulted in the convictions… Could not fairly be described as ‘opportunistic’ as the psychiatrist [Dr Nielssen: report dated 31 October 2013] characterised it”.

(3)    The defendant “has repeatedly taken advantage in a sexual way upon a naïve young individual, obviously for his own personal satisfaction. That he should do so with a child of the age of this [victim] given also the ages of the other victim shows an extremely unhealthy sexual appetite which at the time of the offending, at the very least, shows him to be a danger to young children in his care as the facts in the various matters for which he has been found guilty reveal”.

(4)    The Crown correctly submitted “that the offences could not be characterised as ‘opportunistic’”. Further, “even if it could be said that the first offence was ‘uncharacteristic’ in the absence of prior convictions the subsequent offences could not be so categorised in the context of a reflection upon the history of offending”.

(5)    His Honour was “unable to conclude that the [defendant] is unlikely to reoffend or that he has good prospects of rehabilitation given his history of subsequent offending and the obvious danger he has presented in the past and may still present at the present time to young children…”.

(6)    Notwithstanding that the defendant had not reoffended, nor was known in police intelligence, “the character of his course of offending over a period of time and the character of this type of offending reveals a risk to individuals and the community”.

(7)    The defendant “has not sought to address the causes of his offending and I note his unwillingness to undertake sexual offender courses in custody”.

(8)    “Whilst the promotion of the rehabilitation of the offender remains as a relevant purpose of sentencing there is little that can be done to promote his rehabilitation given his defiance of the verdicts, his denial of past offending and the fact that he will not address the issues that give rise to the commission of offences of his character”.

[73]    As with all earlier offending of a sexual kind, and as noted by Norrish QC DCJ, the defendant has consistently denied committing this offence, and continues to do so.”^[8]

8. State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [52]-[73] (Chen J).

Threshold requirements

26. There are four threshold requirements set out in s 5B of the Act. The defendant accepts that the first three threshold requirements set out under ss 5B(a)-(c) are satisfied. I find that they are satisfied on the following basis.

27. The defendant is an “offender” (as defined in s 4A) and has served a sentence of imprisonment by way of actual custody for a “serious offence” (as defined in s 4A). The index offence committed by the defendant (which is the offence triggering the operation of s 5B(a)) falls under the definition of a “serious offence” by virtue of it being a “serious sex offence” (s 4). A “serious sex offence” means “an offence under Division 10 of Part 3 of the Crimes Act1900 where in the case of an offence against … a child, the offence is punishable by imprisonment for 7 years or more…” (s 5(1)(a)(i) of the Act).

28. Further, the defendant is a “supervised offender” within the meaning of s 5I (as required by s 5B(b)) and an application for an order has been made in accordance with s 5I (as required by s 5B(c)).

29. However, the defendant opposes the making of an ESO on the basis that I should not be satisfied of the fourth threshold requirement – that is, the requirement set out in s 5B(d):

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 –

…

(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.

30. Aside from the orders sought by the plaintiff for a pseudonym and restricted access to the court file, the defendant submits that the Summons should be otherwise dismissed. Accordingly, the first contested question for resolution is the fourth threshold requirement.

First matter for determination: Should an ESO be made?

31. The risk in question, as contended for by the plaintiff, and which I accept is an appropriate characterisation of the risk, is a risk of the defendant committing another serious sex offence involving a female child. As noted above, this is an evaluative task. My satisfaction under s 5B(d) is a precondition to the exercise of the power in s 9 of the Act.

32. Section 9(1) provides that I may determine the application either by making an ESO or by dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO, the paramount consideration must be the safety of the community. The exercise under s 9 requires the exercise of a discretionary judgment, both as to whether such an order is to be made and as to the nature of the supervision. A non-exhaustive list of matters I must consider are found in s 9(3). I may also have regard to “any other matter [I] consider relevant”.

33. To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the material tendered by the plaintiff and by the defendant, and also in the oral evidence adduced from the two court-appointed experts at the hearing before me. I now turn to those matters.

The reports received from the court-appointed experts and the level of the defendant’s participation in any such examinations,^[9] and the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious offence^[10]

Report of Dr Michael Davis (Consultant Forensic Clinical Psychologist)

9. Section 9(3)(b) of the Act.

10. Section 9(3)(d) of the Act

34. Dr Michael Davis is a Consultant Forensic Clinical Psychologist who was appointed pursuant to s 7 of the Act.

35. Dr Davis examined the defendant by way of video-link (due to COVID-19 exigencies) for over 5 hours. Psychological testing and the completion of relevant diagnostic and risk assessment tools were undertaken during this examination. Dr Davis was also provided with a range of detailed documents including previous reports that have been tendered before me.

The examination of the defendant

36. The defendant claimed to Dr Davis that he is no longer interested in sex and stated that he wants “to go dirt-bike riding and pool playing … I’m sure if I had sex I’d enjoy it, but it’s not what I’m looking for.”

37. When asked about why he thought it was illegal for adults to engage in sexual activity with children, the defendant replied:

“children who… (do) not (have the) physical ability to have sex need to be protected…13, 14, that is more societal, other societies (allow sex at that age)… animals (have sex) when physically able… most 13, 14 year-old girls are having sex… the issue is whether an adult is taking advantage of the situation.”

38. When asked what he thinks of men who molest children, the defendant replied, “it’s wrong, it’s bad”.

39. In addition to setting out the details of the charged sexual offending in his report, Dr Davis also noted some uncharged acts reported by the defendant’s daughter (the victim of the 2001 offending) who stated that the defendant had sexually touched and digitally penetrated her when she was eight or nine years of age. She also alleged that when her younger sister was seven or eight years-old, she asked their father questions about her vagina. The defendant reportedly pulled her pants down and “told her to spread her legs and she did it and he was touching her and pointing out and telling her what the parts were as he touched her … after he finished he just [pulled her] pants back up”.

40. Dr Davis also noted that the defendant was initially charged with the offences, including the index offences, in September 2000 but that they were withdrawn in March 2001. The charges arising from that offending recommenced in September 2012.

41. Dr Davis reported on the defendant’s absence of any social circle, and his lack of hobbies, noting that the defendant stated he was not allowed any.

42. Dr Davis also noted some potential indications of alcohol misuse, a history of anti-social behaviour and a poor sense of identity. Dr Davis noted that a counsellor in 2008 described the defendant as being “dependent on alcohol”.

43. The defendant’s results on the psychological testing included a score of “reasonably elevated” in an impression management scale, which suggested that further self-report testing “may be invalid”, and “may potentially under-represent the extent and degree of any difficulties, especially in regard to social and moral matters”. His Personal Assessment Inventory testing suggested “prominent difficulties with paranoia and suspiciousness, as well as some physical health difficulties, stress in the environment, and a dearth of social supports.

44. Dr Davis assessed the defendant against the Revised Screening Scale for Pedophilic Interests (SSPI-2). Whilst noting the defendant’s score of three on the SSPI-2 was somewhat higher than the average score amongst child sex offenders in the sample on which the instrument was validated, it was lower than the score generally considered to indicate the presence of preferential paedophilic sexual interest. Dr Davis stated:

“the results of the SSPI-2 indicated that while [the defendant] may have some sexual interest in pre-pubescent and/or early pubescent children, this is perhaps unlikely to be a preferential sexual interest”.

45. Dr Davis also assessed the defendant against the Screening Scale of Pedophilic Crime Scene Behavoiur (SSPC). Whilst not as extensively validated as the SSPI-2, it has been validated in studies involving German, Canadian and American offenders. Again, the defendant’s results suggested that “while he had previously seen pre-pubescent females as a viable sexual alternative, this is perhaps unlikely to be a preferential sexual interest”.

46. Dr Davis concluded that the defendant does not meet formal criteria for a major mental illness, but that the combination of various factors meets the criteria for a diagnosis of Mixed Personality Disorder (with narcissistic and paranoid features” with a moderate level of impairment. The defendant would have also previously met the criteria for Alcohol Use Disorder. Dr Davis stated:

“while he has clearly seen available children as a viable sexual substitute in the past, and has even befriended a family with at least some motive to offend against their daughter, [the defendant] does not have a preferential sexual interest in pre-pubescent or pubescent children”.

47. In observing that the scholarly literature indicated that child molestation offenders can be usefully conceptualised on a continuum from the situational and impulsive to the preferential and compulsive, Dr Davis placed the offender “towards the middle of this continuum, but more towards the situational end, and is best explained by a combination of regressed and morally indiscriminate pattern of behaviour”.

48. In assessing the defendant’s risk of sexual recidivism, Dr Davis utilised firstly the Hare Psychopathy Checklist-Revised (PCL-R). Dr Davis observed that generally speaking, higher scores on the PCL-R are suggestive of an increased risk of re-offending. The defendant’s total score was in the moderate range, comparable to the average for North American offenders. Given other relevant risk factors, the defendant was also assessed against an actuarial scheme (Static-99/Static-99R) and a set of structured clinical guidelines such as the Risk for Sexual Violence Protocol (RSVP).

49. The Static-99 is a brief actuarial (that is, mechanical) instrument designed to assist in the assessment of sexual recidivism risk among adult males who have already been charged with at least one sexual offence against a child or non-consenting adult. It is based upon static risk factors found to be related to recidivism and provides explicit rules for combining risk factors.

50. Using this instrument, Dr Davis found that the defendant “is considered to fall in the moderate-high risk category relative to other male sexual offenders with a score of four”. In the studies on which this measure was developed, the percentage of offenders with scores of four who went on to be convicted of sexually re-offending ranged from 26% over 5 years, to 31% over 10 years, to 36% over 15 years.

51. Dr Davis noted the historical nature of his most recent conviction, and that the defendant is now 61 years-old:

“Rates of recidivism reduce, often considerably, for sexual offenders after the age of 60 years and this has not been adequately taken into consideration in [the defendant’s] scores on the Static-99 instruments. Moreover, [the defendant] has not committed a sexual offence for 18 years and was in the wider community for approximately four years before being charged with historical offences.“

52. Dr Davis also noted the potential protective effects of lengthy periods in the community offence-free, although he noted the unknown effect of the offender’s term of 9 years in prison for historical offences.

53. The Risk for Sexual Violence Protocol (RSVP) was also administered and it considered both static and dynamic risk factors. Dr Davis concluded that the defendant had a range of difficulties across all five domains of risk factors, although only the social adjustment domain was somewhat higher than average (the other scores were comparable to average). Certain qualifications were noted by Dr Davis given the defendant had just served nine years in prison. Importantly, he stated as follows:

“Moreover, his refusal to attend treatment, while not necessarily a risk factor, does mean that he did not have the risk reducing benefit of successfully completing treatment. Accordingly, it is my admittedly conservative opinion, that [the defendant] currently poses a moderate risk for sexual recidivism, at least until he can demonstrate a period of behavioural stability in the community”.

(Emphasis added.)

54. Dr Davis was of the view that the most likely scenario for future sexual offending, should it occur, is a repeat scenario in which the defendant sexually touches, and perhaps digitally penetrates, a pre-pubescent, pubescent, or adolescent female to whom he has been granted unrestricted access. Given the earliest offending which involved penile-vaginal penetration has not been repeated in subsequent offences, this would be less likely according to Dr Davis. Dr Davis also noted that given the defendant was reportedly intoxicated with alcohol during his offending against two of the three victims, any future offending may, but not necessarily, also involve alcohol misuse. Given that the defendant is not presently consuming alcohol and has not done so for nine years (having been in custody), it is unclear in Dr Davis’ opinion if the defendant will return to problematic alcohol use in the future.

The defendant’s participation in the examination

55. The defendant engaged with the interview by answering many of the questions and undergoing the testing. However, Dr Davis noted that he had a “shallow and restricted range of emotional expression” during their interview and refused to discuss his prior sexual offending. Dr Davis significantly reported the following:

“Despite [BG’s] seeming openness during most of our assessment interview, and his readiness to speak about his previous non-sexual offending, [the defendant] refused to discuss his sexual offences in any detail – “this is where we have a stumbling block, I won’t engage with their psychs, that to me is a no-go area”.

56. As such, in the defendant’s mental status examination, Dr Davis stated that it was difficult to determine insight as the defendant refused to discuss his previous sexual offending.

57. When questioned as to whether he was arguably “shooting himself in the foot” by refusing to discuss his previous sexual offending, he replied “I’m aware…the lies that have been written about me in reports…that’s taboo, just that line in the sand that I’ve drawn”.

Conclusion

58. Dr Davis’ overall opinion was that the defendant poses a moderate risk for sexual recidivism. This is a risk that is comparable to that of the average sexual offender. Accordingly, using the best available Australian data, the defendant’s moderate risk for sexual recidivism placed him in a group with a reconviction rate of 13 percent over 5 years, 17 percent over 10 years and 21 percent over 15 years. However, as Dr Davis stressed, it is important to note that there is no published research that explicitly addresses the recidivism rates for “serious sex offences”, as opposed to “sex offences” simpliciter. Accordingly, the rates of recidivism for a “serious sex offence” will be a sub-set of those figures. Dr Davis went on to observe that more than two thirds of the sample were sexual offenders that had victimised children, so the rates may not be too dissimilar, but that is “admittedly speculative”.

59. Dr Davis opined that if placed on an ESO, the defendant’s level of moderate risk for sexual recidivism and a serious sex offence will not necessarily be reduced, but that:

“…it may serve to contain it by providing much needed support and addressing some of the more social risk factors identified in the risk assessment instruments… The only things that will appreciably reduce [the defendant’s] risk will be the passage of time offence-free in the community and his concomitant advancing age”.

(Emphasis added.)

60. In relation to the utility of certain proposed conditions, Dr Davis expressed the view that the conditions prohibiting the defendant from attending sexually explicit entertainment utilising the services of sex workers, or watching legal adult pornography, are not going to have any appreciable effect on his risk for sexual recidivism. Dr Davis opined that anything which focused the defendant’s sexual interests towards adult females can be seen as cautiously positive.

61. Dr Davis also recommended the defendant be referred to a pain clinic to minimise the risk of using alcohol to address his physical pain issues. Dr Davis also noted that social isolation was a potentially concerning risk factor and he would benefit enormously from any management strategies that aimed to increase his social circle and provide more meaningful leisure activities, such as playing pool and dirt-bike riding. Employment of some form would also be efficacious.

62. As to the duration of the ESO, Dr Davis noted that he has generally found that a period of two-to-three years is enough time for an offender to demonstrate stability in the community.

Report of Dr Andrew Ellis (Forensic Psychiatrist)

63. Dr Andrew Ellis is a Forensic Psychiatrist appointed pursuant to s 7 of the Act.

64. Dr Ellis examined the defendant in a clinical interview of two hours and he was provided with a range of detailed documents about the defendant including previous reports that have been tendered before me.

Personal particulars of the Defendant

65. Dr Ellis noted that most of the defendant’s family have “disowned” him, and that he avoids his family to keep them out of the situation. Dr Ellis reported that the defendant’s relationship of 14 years with the mother of his four children ended when she asked the defendant to move out after she formed a relationship with another man. He had met her when he was 21.

66. The defendant told Dr Ellis that he would enjoy going fishing, riding dirt bikes or playing billiards.

67. Under a heading titled “Lay Observations”, Dr Ellis recorded that a witness noted in 2001 that the defendant “drank heavily, a bottle of spirits each night.” In 2004, a witness noted that the defendant was “drinking regularly, particularly scotch” and that he was playing with children in a driveway and calling himself “Ronald McDonald”.

The examination of the defendant

68. In relation to the index offending, Dr Ellis noted that they occurred in the homes of the defendant’s family members, and that the defendant was separated from his wife at the time. The 2001 offending occurred when the defendant had no fixed address and was not working. He had been out at a tavern with his daughter and her boyfriend playing pool that night before he was later interrupted in the offending by his daughter’s boyfriend. The 2004 offending was committed after the defendant had completed community supervision by way of a bond for the 2001 offending.

69. Dr Ellis reported that the defendant “specifically denied any sexual attraction to children or adolescents”. The defendant further denied:

“any interest in the general activities of children, reporting he preferred the company of adults… Currently he says he is not interested in sex and does not fantasise about it. He said he masturbates every 2-3 weeks in a mechanical fashion.”

70. Dr Ellis noted that his diagnosis was based on collateral information rather than self-report as the defendant refused to discuss his experiences. Dr Ellis stated that the diagnosis of primary concern would be a paraphilic disorder, paedophilia. That diagnosis is based on the adjudicated behaviour with clearly underage female children over a period of 6 years. Importantly, Dr Ellis states “Paedophilia is a chronic relapsing condition”.

71. Dr Ellis also opined that hebephilia (attraction to youthful, but post pubescent) females may also be present given the age of his daughter at the time of the offence. Dr Ellis noted there is evidence of physiological arousal for the offences. The disorder is characterised by attraction to females and is non-exclusive in that he reports attraction to adult females. Dr Ellis noted the other information from witnesses which suggests an interest in the company of children.

72. As to the issue of alcohol, Dr Ellis opines that he may meet the criteria for an alcohol use disorder (presently under remission as he is under supervision), noting that despite self-reporting modest alcohol use, other informants and prior assessments note heavy use of alcohol, with some related to the sexual offences. His criminal history also reflects alcohol use.

73. Dr Ellis also considered that the defendant suffers from a personality disorder with prominent paranoid features. Dr Ellis observed that whilst the defendant was not diagnosed with antisocial personality disorder, he has however displayed poor interpersonal function across his adult years. Dr Ellis stated that he will require ongoing support from his treatment providers to moderate his interpersonal function.

74. Dr Ellis’ report then went on to discuss the defendant’s risk of a commission of a further serious sexual offence, noting that actuarial measures such as the STATIC 99R do not determine whether an individual person will reoffend with a sexual or other offence. Rather, such a measure allocates individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons with the group as reoffending. Dr Ellis noted that the difficulty with the use of this sort of instrument is that it does not discriminate between those in a particular risk group who do reoffend and those who do not. Further, it does not discriminate by type of offending, and (as also noted by Dr Davis), would include reoffending with sexual offences that would not meet the criteria of a serious sexual offence defined in legislation.

75. Dr Ellis also stated that clinical considerations in regard to risk of reoffending include deviant sexual arousal, personality disorder, substance use and treatment setting. He notes that these can be applied to a structured professional judgement instrument to determine areas of propensity for future sexual aggression, such as the RSVP, and referred to that tool in his evaluation.

76. Dr Ellis opined that sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence, and that the defendant’s offence history indicates this pattern of arousal given the age of the three female child victims. Dr Ellis stated:

“The offending was chronic over years on separate occasions, with similar victim types. Psychological coercion (drinking with a parent to gain access to a child) was employed for one offence. He communicates no insight around motivations for offending, persisting in categorical denial without explanation, which is relevant as it has led to avoidance of treatment and rehabilitation attempts. He shows poor self-awareness, and difficulties with stress and coping. He has a history of unstable relationships with others and historically unstable employment and housing. He remains unemployed. His attitudes to supervision and psychological treatment are negative. He has not offended while subject to legal sanction as most of his offences were detected after being sanctioned.”

77. In noting the defendant’s lack of participation to date in cognitive behavioural programs for sexual offending, Dr Ellis stated that the evidence for completing such programs and reducing sex offence risk is limited. He also stated that there is less evidence for “Denier’s programs” modifying risk in a meaningful manner. Dr Ellis observed, however, that “there is some evidence that those who refuse to participate are at higher baseline risk than those that agree to the programs”.

78. As to substance abuse, Dr Ellis noted that whilst not strongly associated with sexual offending, “in this case alcohol use may have served to increase risk taking and increase paraphilic arousal”.

79. Dr Ellis also opined that sexual re-offence in persons over the age of 60 is “uncommon”. Importantly, Dr Ellis went on to observe that:

“In those over the age of 60 that do re-offend, a diagnosis of paraphilia is more common, and in those who offend against children.”

80. The defendant’s time in the community between 2009 and 2012 without offending was noted by Dr Ellis, who stated “This indicates some capacity to desist from offending”, although he also noted that the defendant was under the child protection register (CPR) supervision for this time. Dr Ellis further stated:

“His time in the community to demonstrate a sustained ability to desist has been limited, and not for such a length to make strong reductions in overall consideration of risk.”

81. Dr Ellis stated that a consideration of the type of possible sexual offence should be considered in an estimation of risk and noted that:

“In the case of [the defendant], given the pattern of sexual arousal, victims would likely be female children, who are marginally supervised and psychological coercion or “grooming” of them or their caregivers may be employed to give opportunity to offend. The psychological harm in terms of fear for physical integrity to victims from this type of activity is foreseeable.”

82. Dr Ellis concluded:

“While the overall group of offenders he falls into (over the age of 60) show low rates of offending, in his case the diagnosis of paraphilia and other indicators of general instability (personality disorder, poor employment and housing stability) moderate against him being typical of this age group of offenders… in the absence of any treatment or supervision [the defendant] would fall into a group of persons with a risk for sexual offending that is statistically below average to average in frequency compared to a theoretical average offender, largely due to considering his age. His risk is not at a clinically insignificant level. Other factors continue to be active considerations for persisting risk. Specific treatment and supervision would likely reduce the risk.”

(Emphasis added.)

83. As to treatment, Dr Ellis outlined his recommendations including assessment and therapy for sexual offending, substance use and personality function. He stated that if a private provider is engaged by the defendant, communication should occur between them and his CSNSW supervisor to coordinate care. Dr Ellis also provided that treatment via a regular general practitioner should occur to manage the defendant’s chronic pain as well as any other likely age-related health conditions.

The defendant’s participation in the examination

84. Dr Ellis reported that at the outset of their interview, the defendant indicated that “he would not discuss anything related to past convictions, charges or allegations”, citing a general distrust of the system and mental health practitioners. The defendant told Dr Ellis that he thought anything he said about the topic could be misconstrued.

85. In the mental state examination, Dr Ellis again noted that the defendant refused to discuss his previous charges and convictions in any way and did not change his position when given the opportunity to do so.

Conclusion

86. Dr Ellis reported that the defendant was of the view that he was being “set up to fail” with the proposed orders under the ESO.

87. Dr Ellis noted that the defendant had no contact with his children, was monitored by a global positioning system ankle bracelet and is presently subject to a schedule of movements pursuant to the ISO after having been in custody for 9 years (in protection) and having received no visitors.

88. In relation to an order for an ESO, Dr Ellis opined:

“In this case with the significant monitoring that can be in place with an ESO there is potential to manage the risks presented. If he is established in a productive routine, avoids alcohol use and is able to avoid situations where is supervising or in the company of unsupervised children the risk of a serious sexual offence would likely be reduced.

89. Dr Ellis further stated:

“Rehabilitation and risk management need not be mutually exclusive goals. If he is able to sustain employment, stable accommodation and effective mental health treatment this will assist in reducing his risk to others. Monitoring could detect early engagement in at risk behaviour before offending occurred, and appropriate risk management, up to and including return to custody for breaches can be effected”.

Oral evidence of Dr Davis and Dr Ellis

90. Dr Davis and Dr Ellis were called to give evidence before the Court on 24 October 2022. In the course of their evidence, certain matters from the expert reports were emphasised. The following matters of note were clarified, modified or otherwise discussed:

1. Both Drs Davis and Ellis noted the Risk Assessment report from Ms Sapula, ^[11] noting that she was not able to interview the defendant, but that she did a good job with the materials she had before her;

   11. See below at [93]

2. Dr Ellis noted that the presence of deception in some of the answers of the defendant would go to the form of supervision that might be required for someone, taking into account a capacity for not being authentic in responses to questions;

3. Both Drs Davis and Ellis were of the opinion that denial of offending was ultimately theoretically neutral in relation to risk assessment in a general sense, but that in this instance, where denial led in turn to refusal to take up treatment, that meant that any benefits from treatment, including a reduction in the recidivism rate, were unavailable;

4. Both doctors agreed that individual therapy rather than group therapy was the best option;

5. In relation to the 2004 offending, both doctors were of the view that there was either a predatory element to it, or the defendant had engineered a situation to be alone with the child. Dr Davis noted there was a degree of psychological coercion involved in all the offences.

6. Both doctors were of the view that the evidence from the eldest daughter alleging additional criminal conduct of digital penetration when she was eight and nine years old did not change their assessment of risk, given the similar nature of the proven intra-familial allegations.

7. Dr Davis agreed that the risk assessment literature indicated that if one has served a sentence and then reoffends (as the defendant did in relation to the 2002 suspended sentence, followed by the 2004 offending), it was considered far more of a risk than offending over a long period of time and being caught for all of the offences in one go.

8. As to the advancing age of the defendant, Dr Ellis was less convinced that his age and the concomitant likely diminution of sex drive was clear in this case. Dr Ellis stated “I think this kind of area contains more than simply sex drive … I think it is something that needs to be monitored, given the past history, but … it is an area that is difficult to assess now.”

9. The doctors essentially agreed that the defendant’s personality disorder, involving narcissism and lack of empathy, was a risk factor for offending.

10. The difference between Dr Ellis and Dr Davis as to a diagnosis of paedophilia was discussed. Dr Davis stated that while the defendant technically met the criteria for paedophilic disorder under the DSM-5-TR, there was nothing to suggest that the defendant had such a preference “over and above the normophilic sexual interests”. Dr Davis stated that to make something a paraphilic disorder, the deviant interest had to be greater than or equal to normophilic sexual interests. Dr Ellis was of the view, however, that a paedophilia diagnosis was indicated, based on the defendant’s adjudicated behaviour, including sexual arousal, and the age of two of the victims being pre-pubescent, which was more than “just indiscriminate taking of sexual liberties with someone who's nearby because the body habitus of those children is quite significantly different to what most adult men would be, adult heterosexual men would be sexually aroused to”. Dr Ellis also pointed to the length of time over which the offending took place. Ultimately Dr Ellis stated that his conceptualisation was not markedly different to that of Dr Davis, given on any view that the defendant was not an exclusive paedophile, but that the difference was ultimately one of degree.

11. Both doctors agreed that other motivations such as power and anger, together with evidence of sexual attraction towards children were a compelling part of their risk assessment.

12. Both doctors agreed in oral evidence that the score using the STATIC 99 was 4, and the STATIC 99R was 3.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the defendant committing a further serious offence, the willingness of the defendant to participate in any such assessment, and the level of the defendant’s participation in any such assessment^[12]

12. Section 9(3)(c) of the Act

91. Dr Davis noted the following observation made by Mr John Taylor, a clinical forensic psychologist, based on the results of the defendant from various psychological tests in a report dated 6 October 2005:

“[BG’s] profile indicates that he does have some schizotypal and paranoid qualities in this personality adjustment. He generally prefers privacy and would have few significant emotional attachments or personal obligations. He is likely to have drifted over time into increasingly peripheral vocational roles and somewhat clandestine social activities”.

“54. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.”

“56. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO, as considered appropriate by his DSO or treatment and service providers, or health practitioners for the defendant’s rehabilitation and risk mitigation.”

“57. The defendant must agree to any information being shared between those persons and agencies that are not involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.”

170. As I understood the position of the defendant, he originally opposed the making of the orders, but ended up accepting that perhaps more finely crafted conditions which were less likely to trigger unhelpful responses from the defendant may be acceptable.

171. I agree that it would appear to be beneficial if the defendant were able to be subject to well-tailored treatment, on an individual basis, in the nature of the Denier’s program (a program which is only presently offered in a group setting, in custody, as I understand it.)

172. It also appears to be necessary to be able to ensure there will be some sort of information sharing between treatment providers, if only for appropriate co-ordination, and risk mitigation. However, it would also appear tolerably clear that given the defendant’s prominent narcissistic and paranoid personality features, if there were to be no confidentiality attached to treatment, the defendant would be highly unlikely to engage with it. It would thus be self-defeating and would set up the defendant to fail.

173. Accordingly, I propose to impose more confined conditions. In confining the Conditions 54, 56 and 57, I note that condition 33 already provides that the defendant must agree to a DSO disclosing his criminal history “to another person if the disclosure is reasonably necessary [etc] (emphasis added.)”.

174. Accordingly, I propose the following wording of conditions 54, 56 and 57.

175. Condition 54:

“54. The defendant must undergo appropriate individual ongoing psychological or psychiatric treatment, assessment or counselling (or any combination of these) as directed by a DSO, including any appropriate individual therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order”

176. Condition 56:

“56. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information about his progress and attendance with each other and with a DSO.”

177. Condition 57:

“57. The defendant must agree to any information about his progress and attendance at treatment and service providers and health care practitioners being shared between those persons and agencies that are involved in his supervision including, but not limited to, as DSO, NSWPF and CSNSW.”

Orders

178. The orders I therefore make are as follows:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of three years commencing on 10 November 2022.

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

Schedule of ESO Conditions (State of NSW v BG) (117425, pdf)

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Endnotes

Decision last updated: 10 November 2022