State of New South Wales v BG (preliminary)

[2022] NSWSC 1065

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

3 August 2022

Date of orders:

10 August 2022

Decision date:

09 August 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’):

(a)   Appointing 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 reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b)   Directing the defendant to attend those examinations.

(2)   An order:

(a) Pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from 12 August 2022; and

(b) Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule to the Summons filed 25 February 2022 subject to the amendments and deletions as outlined in these reasons.

(3)   I direct that the State prepare, and file with the Court by 10 am on 10 August 2022, a Schedule of the conditions to the ESO in line with the judgment of the Court.

Catchwords:

HIGH RISK OFFENDERS — Interim detention orders — Application — serious sexual offending — whether risk mitigated by imposition of interim supervision order — where interim supervision order made

Legislation Cited:

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

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 4A, 5, 5B, 5C, 5D, 5H, 5I, 6, 7, 9, 10A, 10C, 11, 12, 13A, 13B, 14, 15, 17, 18A, 18C

Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases Cited:

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

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

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

Lynn v State of NewSouthWales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856

State of New South Wales v Bugmy (preliminary hearing) [2016] NSWSC 1128

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

State of New South Wales v Davis (Preliminary) [2021] NSWSC 53

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

State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116

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

State of New South Wales v Holschier (No 2) [2018] NSWSC 1921

State of New South Wales v Ibrahim (Final) [2021] NSWSC 793

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

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of NSW v Devaney (Preliminary) [2021] NSWSC 1432

State of NSW v Donovan [2015] NSWCA 280

State of NSW v Golding (Preliminary) [2018] NSWSC 1041

State of NSW v Kaiser [2022] NSWCA 86

State of NSW v Shields (Preliminary) [2022] NSWSC 469

State of NSW v Sturgeon [2019] NSWSC 559

State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813

Tannous v State of NSW (2020) 103 NSWLR 183; [2020] NSWCA 261

Wilde v State of New South Wales [2015] NSWCA 28

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):

2022/55932

JUDGMENT

Introduction

1. The defendant has been convicted of a number of sexual offences against young girls. The victims were aged 9, 10, 11 and 15. His most recent conviction occurred in November 2013 – albeit for offending that occurred in 1998-1999. He is due to be released from prison on 12 August 2022.

2. The State of New South Wales (‘the State’) alleges, and the defendant disputes, that the defendant poses an unacceptable risk of committing another serious sexual offence such that orders, both interim and final, should be made against him under the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’).

3. In relation to interim orders, the State seeks the appointment of experts to conduct psychological and/or psychiatric examination of the defendant and for those experts to report to the court upon the results of those examinations, as well as an order directing the defendant to attend such examinations. It also seeks an interim detention order (‘IDO’) or, alternatively, an interim supervision order (‘ISO’).

4. The final relief sought by the State is a continuing detention order (‘CDO’) for a period of 12 months from a date to be fixed and an extended supervision order (‘ESO’) for a period of 5 years commencing on the expiration of the CDO, and, for the period of such ESO, an order that the defendant comply with the conditions set out in the Schedule to the Summons; and, in the alternative, an ESO for a period of 5 years, and, for the period of such ESO, an order that the defendant comply with the conditions set out in the Schedule to the Summons.

5. The State read, in support of the interim orders, the affidavits of Brett Thomson sworn 24 February and 1 July 2022. The defendant read an affidavit of Dominic Gleeson sworn 18 July 2022.

6. The reasons that follow deal with the interim relief sought.

7. All references to legislative provisions in these reasons are, unless otherwise specified, references to the Act.

The legislative scheme

8. 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 Donovan [2015] NSWSC 1254 at [3] (McCallum J); State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [18] (Hoeben CJ at CL); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [10] (Dhanji J).

9. The Act has two express objects. The primary object “is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community” (s 3(1)). Another object “is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation” (s 3(2)). These objects are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] (Mason P, Santow and Tobias JJA) (‘Tillman’); Kamm v State of NSW (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147] (Beazley P).

10. The Act seeks to fulfil these objects by conferring jurisdiction on the Supreme Court to make orders, extending beyond the terms of imprisonment imposed by sentencing courts, for the extended supervision (s 9(1)), or for the continuing detention (s 17(1)), of convicted offenders: State of NSW v Kaiser [2022] NSWCA 86 at [6] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing).

Extended supervision orders

11. Section 5H of the Act permits the State to apply for an ESO “against an offender”. However, s 5I(1) qualifies this by providing that an order can only be made against a “supervised offender”. Section 5I(2)(a), relevantly here, defines “supervised offender” to mean “an offender who, when the application for the order is made, is… in custody…while serving a sentence of imprisonment for a serious offence”. A “serious offence” is defined by s 4 of the Act, relevantly, to mean “a serious sex offence”. A “serious sex offence” is defined by s 5(1) of the Act to mean “an offence under Division 10 of Part 3 of the Crimes Act 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. (I note that the defendant submitted that this result follows from s 5(1)(c1) of the Act because these provisions “did not exist at the time of the index offending. The result is, nevertheless, the same by operation of that section. Nothing turns, or is said to turn, on this, so no further reference will be made to this submission in what follows).

12. The defendant conceded that he is a supervised offender for the purposes of s 5I, and I find that he is. That is because the defendant is currently in custody serving a sentence of imprisonment for a serious offence – namely, following his conviction, in November 2013, of aggravated indecent assault upon a person under 16 years (s 61M(1) of the Crimes Act 1900 (NSW)) and aggravated sexual assault upon a person under 16 years (s 61J of the Crimes Act – three counts), the defendant was sentenced to an aggregate term of eight years and nine months commencing 11 November 2013 and expiring 12 August 2022.

13. Section 6 of the Act sets out a number of requirements with respect to an application for an ESO. One is that the application “may not be made until the last 9 months of the offender’s current custody or supervision” (s 6(1)). It is accepted by the defendant that this element is satisfied, and I find that it is. The State’s application is made within the last 9 months of the defendant’s custody: the sentence will expire on 12 August 2022.

14. Another requirement is that the material that must accompany the application for an ESO addresses the matters in s 9(3) of the Act (s 6(3)(a)) and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that “assesses the likelihood of the offender committing a serious offence” (s 6(3)(b)). I am satisfied that the material in the affidavit of Brett Thomson sworn 24 February and 1 July 2022 addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 9(3) of the Act), and the defendant did not contend otherwise.

15. The application may also indicate the kinds of conditions that are considered appropriate for inclusion under s 11 — in the event that an ESO is made: s 6(4). This has occurred; in fact, there was considerable dispute over the conditions proposed by the State.

16. Section 7 of the Act prescribes a number of pre-trial procedures relating to the making of, and dealing with, an application for an ESO: the application must be served on the offender (the defendant) within 2 business days of the application being filed, or such further time as the Court may allow (s 7(1)); the State must disclose to the offender material relevant to the application (s 7(2)); and the Court must hold a preliminary hearing within 28 days of the filing of the application, or within such further time as the Court may allow (s 7(3)). I am satisfied that these pre-trial procedures have been complied with and, like the position the defendant took in relation to the matters referred to in s 6, the defendant did not submit to the contrary.

Continuing detention orders

17. Section 13A of the Act permits the state to apply for a CDO “against an offender”. However, s 13B(1) qualifies this by providing that an application for a CDO may only be made in respect of a “detained offender” (s 13B(1)(a)) or a “supervised offender” (s 13B(1)(b)). A “detained offender” is an “offender who, when the application for a continuing detention order is made, is in custody…while serving a sentence of imprisonment – for a serious offence”: s 13B(2)(a)(i). For the reasons given in [11]-[12], above, the defendant is serving a sentence of imprisonment for a “serious offence”.

18. An “application for a continuing detention order in respect of a detained offender may not be made more than nine months before – the end of the offender’s total sentence”: s 13B(3)(a). As I have earlier noted, the State’s application is made within the last 9 months of the defendant’s custody: the sentence will expire on 12 August 2022. This requirement is conceded by the defendant, and I accept it is satisfied.

19. Sections 14(3) and (4) of the Act set out a number of requirements with respect to an application for a CDO. Those requirements mirror those contained in s 6 of the Act. For the reasons set out in [13]-[15], above I find that these requirements have been satisfied, and the defendant did not submit to the contrary.

The preliminary hearing

20. A preliminary hearing is required to be conducted when an ESO is sought (s 7(3)) or CDO (s 15(3)) is sought.

21. When an ESO is sought, s 7(4) of the Act provides that if, following the preliminary hearing, the Court “is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO”, the Court must make two orders. The first is an order appointing a qualified psychiatrist and/or a registered psychologist (or several of them) to examine the offender, and to furnish reports to the Court (s 7(4)(a)). The second is an order that the offender attend the examinations (s 7(4)(b)).

22. When a CDO is sought, s 15(4) of the Act applies and it is expressed in a relevantly identical terms to s 7(4).

23. If, following the preliminary hearing, the Court is “not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO” (or a CDO), the Court must dismiss the application: s 7(5) and s 15(5). These provisions are particularly relevant where, as here, the defendant contends that the material does not justify the making of a CDO or ESO.

24. The Court may make an ISO in proceedings for an ESO if it appears to the Court that “the offender’s current custody or supervision will expire before the proceedings are determined” (s 10A(a)) and “that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO” (s 10A(b)).

25. Generally, the ISO will be for a period of 28 days: s 10C(1)(a). An ISO may be “renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months”: s 10C(2).

26. An application for an ISO, and for the appointment of psychiatrists and/or psychologists to examine the defendant (and report to the Court following such examinations) is to be assessed on the basis that the Court is required to be “satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO…”: ss 7(4) and 10A(b).

27. The Court may make an IDO in proceedings for an CDO if it appears to the Court that “the offender’s current custody or supervision will expire before the proceedings are determined” (s 18A(a)) and “that the matters alleged in the supporting documentation would, if proved, justify the making of an CDO” (s 18A(b)).

28. Generally, the IDO will be for a period of 28 days: s 18C(1)(a). An IDO may be “renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months”: s 18C(2).

29. That these provisions (ss 7(4) and 15(4)) direct attention to “the matters alleged in the supporting documentation” has a number of consequences that should be noted – particularly in a case such as this where the defendant’s principal contention is that the material in support of the application does not justify the making of any orders against the defendant. First, the task being performed at the preliminary hearing stage is not to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing; rather, it is for “the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order”: Tillman at [98] (Mason P, Santow and Tobias JJA); State of NSW v Shields (Preliminary) [2022] NSWSC 469 at [12] (Wright J). The task has been described as being similar to applying a prima facie case test, taking the plaintiff's case at its highest: State of NSW v Golding (Preliminary) [2018] NSWSC 1041 at [17] and [19] (R A Hulme J) (‘Golding’); State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).

30. Secondly, it is impermissible for a defendant to adduce evidence that might “cast light” on — or contradict — the matters alleged in the supporting documentation: Tillman at [98] (Mason P, Santow and Tobias JJA); State of NSW v Devaney (Preliminary) [2021] NSWSC 1432 at [20]-[21] (Dhanji J).

31. Thirdly, “there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State’s application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to…”: State of NSW v Sturgeon [2019] NSWSC 559 at [13] (Garling J).

32. Before moving to consider whether the preconditions to the making of a CDO or ESO have been satisfied, it should be noted that the defendant accepted that the statutory preconditions for the making of an ESO or a CDO were present – except in relation to the issue of whether the defendant poses an unacceptable risk of committing another serious offence, within the terms of s 5B(d) or s 5C(d) of the Act. I will next address – briefly in light of the concession made by the defendant – the conditions of engagement to the making an ESO or a CDO.

Sections 5B and 5C of the Act

33. I will start by addressing the statutory provisions that relate to the making of an ESO.

34. In relation to an application for an ESO, ss 7(4) and 10A(b), by their reference to the requirement that the Court be satisfied that the matters alleged in the supporting documentation justify the “making of an extended supervision order”, direct attention to s 5B of the Act. Section 5B contains four cumulative criteria that must be satisfied in order for an ESO to be made. They have been described as “identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders”: Tannous v State of NSW (2020) 103 NSWLR 183; [2020] NSWCA 261 at [14] (Basten JA, McCallum JA and Simpson AJA agreeing).

35. By s 5B, the Court may make an ESO upon satisfaction of the matters in ss 5B(a)-(c) and, by s 5B(d), of satisfaction 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”.

36. The defendant has accepted that the statutory preconditions in s 5B(a)-(c) of the Act have been met (see [32], above). I find that they are, for the following reasons.

37. Section 5B(a) requires the defendant to be “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”.

38. In order to consider whether the requirements of this section are met, it is necessary to make reference to some other sections which define concepts within s 5B(a).

39. Section 4A of the Act defines “an offender” to be a “person who – (a) is of or above 18 years of age and, (b) has at any time been sentenced to imprisonment…to be served by way of full-time detention…following the person’s conviction for a serious offence”. It is clear that the defendant is above 18 years of age: s 4A(4). And it is also clear, and I find, that the defendant satisfies s 4A(b), for the following reasons

40. Section 4(1) of the Act defines, relevantly, “serious offence” as meaning “(a) a serious sex offence”. The term “serious sex offence” is defined by s 5(1).

41. The defendant has been sentenced to full-time imprisonment following his conviction for a serious offence (s 4A(b)) – the “serious offence” is a “serious sex offence”, being aggravated indecent assault upon a person under 16 years (s 61M(1) of the Crimes Act) and aggravated sexual assault upon a person under 16 years (s 61J of the Crimes Act): see [12], above.

42. Section 5B(b) requires the defendant to be “a supervised offender (within the meaning of s 5I)”. Section 5I(2) relevantly defines “supervised offender” to mean “an offender who, when the application for the order is made, is in custody or under supervision”. I have earlier made a finding that the defendant meets this description: see [11]-[12], above.

33. Section 5B(c) requires the application for the order to be made in accordance with s 5I. However, the reference in s 5B(c) to s 5I is “a drafting or cross-referencing error and should have been a reference to s 6”: State of NSW v Kaiser at [124] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). I have previously made a finding that the requirements stipulated by s 6 have been met.

34. Section 5C of the Act is expressed in identical terms to s 5B. It follows, in light of the above, and the findings that I have made in relation to ss 5B(a)-(c), that the terms of ss 5C(a)-(c) are also satisfied and I find that they are.

35. Having established the matters in ss 5B(a)-(c) and s 5C(a)-(c), s 5B(d) and s 5C(d) of the Act remain to be considered. Those sections require the Court to be “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”. As I have earlier noted, the central issue for my determination is whether the terms provided by these sections have been met.

36. In view of the fact that the provisions are expressed in identical terms, I will address whether the “unacceptable risk” test has been satisfied by reference to s 5B(d) of the Act.

37. For the reasons set out below, I am satisfied to the requisite degree required by s 5B(d) and s 5C(d). Before doing so, some of the concepts within the section will first be addressed.

High degree of probability

48. The high degree of probability “qualifies the state of the judge’s satisfaction, not the degree of the risk”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] (Basten JA) (‘Lynn’).

49. The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is “beyond more probably than not”, but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA); Golding at [14] (R A Hulme J); State of NSW v Shields (Preliminary) at [12] (Wright J).

Unacceptable risk

50. The concept of “unacceptable risk” is expanded upon by s 5D, which is in the following terms:

“For the purposes of this part, the Supreme Court is not required to determine 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 a person committing such an offence.”

51. The concept of an “unacceptable risk” has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following:

1. The phrase is to be given its everyday meaning within its context having regard to the objects of the Act: Lynn at [55]-[58] (Beazley P).

2. What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55] (Beazley P); State of NSW v Donovan [2015] NSWCA 280 at [24] (Beazley P, Macfarlan and Leeming JJA). That finding provides the basis for imposing control on the offender: Lynn at [127] (Basten JA).

3. The interests of the offender to liberty and privacy are not relevant to the assessment of whether there is an “unacceptable risk”, but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44] (Beazley P), [143] (Basten JA), and [148]-[149] (Gleeson JA).

4. Unacceptability of risk “involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J) (‘Simcock’); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). 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”: Lynn at [126] (Basten JA).

5. 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: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); Golding at [16] (R A Hulme J); State of New South Wales v Devaney (Final) at [73] (Dhanji J).

Factual background

General

52. The defendant was born on 2 December 1960, and is currently 62 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, to which reference has briefly been made, 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).

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.

59. In June 2004, the defendant was charged with further sex offences against children 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.

The determination of the application: assessment of the risk

74. Section 9(1) empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)). For a CDO, s 17(1) empowers the court to make an ESO (s 17(1)(a)); to make a CDO (s 17(1)(b)); or to dismiss the application s 17(1)(c)).

75. In determining whether or not to make an ESO or a CDO, the “safety of the community” is the paramount consideration of the Court: ss 9(2) and 17(2).

76. Further, the Court must take into account – in addition to any other matter the Court considers relevant – the matters in s 9(3)(a)-(i), but is not to consider “any intention of the offender to leave New South Wales (whether permanently or temporarily)”: s 9(4). (In relation to an application for a CDO, the relevant section is s 17(4) – which mirrors the terms of s 9(3)).

77. I undertake the analysis by reference to s 9(3) of the Act.

78. The 12 matters that must be considered, under s 9(3), “fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made”: Tannous v State of NSW at [18] (Basten JA, McCallum JA and Simpson AJA agreeing).

79. These provisions — ss 9(2)-(4) of the Act — are relevant not only when considering whether to make an ESO following a final hearing, but also as to whether the Court should make an ISO following a preliminary one.

The matters in s 9(3)

Reports under s 7(4) of the Act: s 9(3)(b)

80. There are currently no reports from persons appointed under s 7(4) of the Act — thus there is no material of that kind to consider.

Psychiatric and other assessments: s 9(3)(c)

81. There were a number of these assessments in evidence.

82. The defendant was assessed by John Taylor, clinical forensic psychologist, on 6 October 2005 and Mr Taylor prepared a report of that date. The assessment was arranged by the defendant’s solicitor and the purpose of the assessment was to provide a report in relation to “his present criminal offence”. That last reference is a reference to the impending sentencing hearing – a hearing which, as earlier noted, took place on 24 November 2005 following the defendant’s conviction for the offence committed on 7 February 2004.

83. Mr Taylor reported that the defendant’s “profile indicates that he has a high average predisposition towards developing dependence on alcohol”. He also undertook an assessment of the defendant’s potential for recidivism, concluding that the defendant was assessed as “having a generally lower than average risk of recidivism”. Some matters that Mr Taylor identified as relevant to this risk were that the defendant had the support of his parents, although other evidence now suggests that he does not have any contact with them; that the assessment did not take into account any possible deterioration in the defendant’s emotional functioning, which Mr Taylor suggested was “possible”. Mr Taylor also noted that the defendant, during the consultation with him, “frequently related rather paranoid ideas”. There is a strong suggestion that these ideas have continued to the present time, and possibly worsened.

84. Chelsea Dewson, psychologist from Metropolitan Special Programs Centre, Department of Corrective Service, prepared a psychological assessment report at the request of the State Parole Authority dated 27 April 2009. The report specifically covered “risk of sexual re-offending”, and the defendant participated in this assessment.

81. The key points from that report are:

1. The defendant advised that “for the five years prior to his conviction [the defendant] was drinking to excess as a mechanism to cope with family stress…” and that upon assessment, when taken into custody, the defendant “self-assessed himself as experiencing mild withdrawals from alcohol”.

2. An assessment of his alcohol and drug treatment needs was conducted in 2007, and the results of that assessment were said to “typically reflect someone who is both physically and psychologically dependent with little insight into this dependence”. It was noted that the defendant had two convictions for driving whilst over the prescribed concentration of alcohol level and, further, that the defendant indicated that on the night that he committed the offence in 2004 (for which he was sentenced by Boulton A-DCJ), he had consumed approximately 6 to 8 stubbies of beer.

3. That the defendant had not attended, or attempted referral to, sex offender treatment programs and that the defendant “maintains that he is not suitable for treatment because he is not guilty of his offence”. Later it was noted that the defendant “strongly” denied any involvement with any of his sexual offences.

4. The result of the defendant’s “actuarial sexual recidivism risk assessment falls into the Moderate-High category of risk for reoffending”.

86. Michelle Fung, an intern forensic psychologist from the Department of Corrective Services, assessed the defendant and prepared a report dated 7 July 2009. She noted that the defendant “displayed no insight into his crimes. He portrayed himself as the victim of a conspiracy”. When asked to discuss the offence he is said to have responded, that there was “‘nothing to tell because it didn’t happen’”.

87. Ms Fung also noted that the defendant felt “no remorse for his crimes”, and that he self-portrayed “as a victim”, leading her to conclude that it was “difficult to see how any psychological intervention will prove of use at this time, as [the defendant] does not show the slightest insight into his crimes and behaviour and hence has no motivation whatever to change”.

88. The defendant, for the purposes of his sentencing hearing for the index offences (he was sentenced by Norrish QC DCJ on 11 November 2013), secured a report from Dr Olav Nielssen, consultant psychiatrist, dated 31 October 2013. That report was prepared following an audio-visual link interview with the defendant on 30 October 2013, as well as based on some material that the defendant’s solicitor briefed Dr Nielssen with. The material briefed impresses as somewhat incomplete. In this respect I note that, by way of example, although Dr Nielsen was provided with the sentencing remarks of Shillington QC DCJ (who sentenced the defendant in relation to the sexual offence committed on the defendant’s daughter), Dr Nielssen did not have the sentencing remarks of Boulton A-DCJ.

89. This report, as I have earlier mentioned, was tendered at the sentencing hearing before Norrish QC DCJ (although it appears that Dr Nielssen was not called to give any oral evidence).

90. According to the history taken by Dr Nielssen, the defendant told Dr Nielssen that so “far as he was aware his sexual interests were normal” and that he “denied being attracted to pre-pubescent children or being especially attracted by teenage girls”. Later, the defendant is reported to have “denied having a specific attraction to pre-pubescent female children which would be required to make a diagnosis of heterosexual paedophilia”. In relation to this last matter, I would simply observe that, on the face of the report, Dr Nielssen did not engage with a more fundamental question – namely, whether, based on the defendant’s pattern of offending, the defendant did in fact have an attraction to underage girls (or heterosexual paedophilia). To the extent that Dr Nielssen addressed this issue, it was in the following terms, after noting the defendant’s denial of any sexual attraction towards female children: “hence, the only information supporting the existence of an attraction to underage girls is his pattern of offending. From the information that is available about those offences, it seems they were opportunistic offences that were committed against underage girls in his care”.

91. The following should also be noted in relation to that part of Dr Nielssen’s report to which reference has just been made. First, as I earlier mentioned, Dr Nielssen did not squarely address whether the defendants “pattern of offending” demonstrated heterosexual paedophilia, notwithstanding the defendant’s denial. (To the extent that the defendant sought to rely upon this as establishing that he does not have paedophilia and therefore no accepted risk of re-offending – a risk that the defendant said would accompany that diagnosis – I do not accept the submission. That is because, on the face of the report, the reasoning underpinning that conclusion appears to be absent: that is, Dr Nielssen did not explain why, even if one accepted the defendant’s denial that he has an interest in young female children and his assertion that so “far as he was aware his sexual interests were normal”, that diagnosis is not available in light of his offending history). Secondly, again as I have earlier mentioned, Norrish QC DCJ did not accept Dr Nielssen’s opinion that the offences could be characterised as ‘opportunistic’: see [72(2)], above.

92. Dr Nielssen undertook an actuarial assessment of the defendant’s risk of re-offending, and reported the results to be within the “moderate range for re-offending”.

93. Katarzyna Sapula, an acting senior psychologist with the Serious Offenders Assessment Unit, Corrective Services NSW (‘CSNSW’), prepared a risk assessment report dated 30 November 2021. The defendant did not participate in an interview with Ms Sapula: although requested to do so, he declined.

94. The key points from Ms Sapula’s report, in my view, are as follows:

1. She noted the “tendency evidence”, adduced at the trial in connection with the 2002 offences and referred to by Boulton A-DCJ (see [63(1)], above), as well as the other allegations made by the defendant’s older daughter in relation to the younger daughter (see [130]ff, below).

2. She considered that, on her review of the material, the defendant “tends to minimise his alcohol consumption”.

3. She considered, or separately undertook, risk assessments for general reoffending as well as for sexual reoffending. In relation to general offending, she noted that the Level of Service Inventory – Revised was performed by Jessica Porter, from Bathurst Community Corrections in February 2021, and the defendant’s risk/needs were assessed as falling within the Medium-High risk category for general and violent reoffending. Ms Sapula noted that whilst LSI-R was a “robust predictor of general offending omits numerous risk factors specific to sexual violence”.

4. In relation to the sexual reoffending, the assessments were static, dynamic and convergent – of the defendant for sexual reoffending, Ms Sapula noted that in July 2014, the defendant’s STATIC-99R actuarial risk assessment score was in the Moderate-High risk category. Applying the most recent version of the STATIC-99R manual placed the defendant in the “Above Average risk”. In terms of dynamic risk factors, using the STABLE-2007 tool, Ms Sapula assessed the defendant as having a “high density of criminogenic needs relative to other male sexual offenders”. When the defendant’s static and dynamic risk factors were combined – something that Ms Sapula considered to be consistent with “the best practice approach” – the combined assessment of ‘risk/needs’ was “Well Above Average risk category”.

5. Although it was “now generally accepted that denial or minimisations do not increase recidivism”, denials can “create barriers to treatment that aims to target criminogenic risk factors, that is those dynamic factors highlighted in research as relevant to risk predictions”. To this end Ms Sapula “considered that the actuarial assessment is an accurate reflection of his risk and needs and that he is likely to experience difficulties with implementing any risk mitigation strategies independently”.

6. She considered that the defendant’s “most likely risk scenario for further sexual offending would involve him exploiting either a well-established relationship, or he will create an opportunity for access”.

7. In relation to alcohol consumption, Ms Sapula did not consider it to be a “pre-requisite or primary contributing factor to his sexual offending; however, it is likely to have a disinhibiting effect thus could increase his risk, particularly if it is accompanied by access to a potential victim. [The defendant] would most likely target females whose developmental stage falls anywhere between pre-pubescent to older teenager”.

8. In her conclusion, Ms Sapula expressed the opinion that the defendant’s “risk of sexual re-offending is estimated to be in the Well Above Average (High) risk category relative to other men who have offended sexually”.

9. That the defendant remained “untreated”, and that he appeared “to have little insight or motivation to recognise any of his personal deficits, attempt behavioural change, or to implement strategies to avoid further contact with the criminal justice system”. Further, given the defendant’s “limited insight into his risk factors and necessary management strategies, along with his proven propensity for serious offences against children, it is possible that [the defendant] could commit an offence that would approach the threshold of a ‘serious sexual offence’” within the Act.

Statistical and other assessments on the likelihood of the offender committing a further offence: s 9(3)(d)

95. Section 9(3)(d) refers to 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”.

96. I have, in my assessment of the psychiatric and psychological reports under s 9(3)(c), considered statistical and other assessments of the kind referred to. There are some others, to which reference will now be made.

97. A Risk Management Report dated 19 December 2021 (the ‘Risk Management Report’) was prepared by Jason Saad from Corrective Services, NSW. That report referred to an assessment using the Level of Service Inventory – Revised that was performed on 2 February 2021 – which is reported to have found that the defendant fell in the “medium to high risk level for general re-offending”. (It is quite likely that this assessment is the one that was referred to by Ms Sapula to which reference has been made: see [94(3)], above).

98. The Pre-release report dated 31 January 2022 prepared by Donna-Maree Howard, a community corrections officer also made reference to the defendant having been assessed “at a medium-high risk of reoffending according to the Level of Service Inventory – Revised”.

Corrective services reports: s 9(3)(d1)

99. Section 9(3)(d1) requires the Court to consider any “report from Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community”.

100. The Risk Management Report dated 19 December 2021 is a report prepared for the purposes of this section. Although this report covered matters such as risks of reoffending, risk factors etc., its principal function appears to be that it creates a risk management plan with recommendations about conditions which are recommended to support that plan.

101. In my view this report is important in that it identifies, by the risk management plan created and the conditions which it considers would aid any implementation, that the defendant can, with appropriate (and strict) conditions, be managed in the community following his release.

102. The Pre-release report dated 31 January 2022 was prepared by Corrective Services for the purposes of assessing whether the defendant should be granted parole. Like the Risk Management Report dated 19 December 2021, I see the importance of this report as identifying the ways in which the defendant can, with appropriate (and strict) conditions be managed in the community following his release.

103. In order to assess whether the defendant should be granted parole, a Risk Mitigation Plan dated 25 January 2022 was prepared by Corrective Services. Again, as I see it, the importance of this report lies in its recommendations about whether, and if so in what way, the defendant could be managed by a period of supervision in the community.

Treatment or rehabilitation programs etc: s 9(3)(e)

104. Section 9(3)(e) requires the Court to have regard to any treatment or rehabilitation program “in which the offender has had an opportunity to participate”, as well as the willingness of the offender to participate in any such programs and the level of any such participation.

105. A considerable part of the hearing was occupied with whether or not the defendant attended three rehabilitation programs, his willingness to participate in those programs and their utility: EQUIP, RUSH (‘Real Understanding of Self-Help’) and the DENIERS program.

106. In relation to the EQUIP addiction program, I do not accept the defendant’s submission that there would need to be evidence, certainly at this stage, about “how and why that would necessarily assist and it would give rise to removal of an unacceptable risk of committing a further serious sexual offence” (T 50.37). That is because the section directs attention to programs “in which the offender has had an opportunity to participate”, and not to the utility of those programs: the section assumes that they are not inutile. In any event, to the extent I need to, there is sufficient explanation of that program within Ms Sapula’s report (at [42]), and its purpose, for me to be satisfied, that it would be of some utility in mitigating risk.

107. In my view, the focus here is upon the willingness of defendant to participate in treatment and rehabilitation programs offered, and his level of participation in such treatment and rehabilitation so offered. They are the issues to which the subparagraph directs the Court’s attention, as part of the evaluation of the relevant risk.

108. Notwithstanding there is evidence of the defendant’s participation in a number of the program sessions (indeed the State, in its written submissions, conceded that the defendant had completed that course in custody), I entertain some doubt, in light of what follows, that the defendant fully and genuinely engaged with the program.

109. As to the RUSH program, the defendant – it appears begrudgingly – attended this program in 2021, although it is recorded in the Corrective Services case notes, that the defendant considered his engagement in that program to be “a waste of time” and that he was attending that program “not because he believes it will help address any of his criminogenic needs and further stated he doesn’t believe that programs even work”. On a later occasion, it is said that the defendant described RUSH as “all psycho-babble and bullshit. He used an example from the session today and said he has learned nothing. [The defendant] again said he will sit in the program but will not participate”.

110. The defendant pointed out, correctly, that he participated in the RUSH course, in 2021, to completion and, during the hearing, drew attention to that part of the entry in the Corrective Services case note report, dated 15 April 2021, that upon re-joining the group, he had a “more positive mindset”: that is true, but the entry further records that he used what he had learnt “to support his negative thinking or refusing to try a new way of doing things”.

111. As to the DENIERS program (some explanation of the nature of this course is contained within the risk assessment report from Ms Sapula), the defendant argued that although it was true that he had declined to participate in that program there was a sound reason for this refusal: in late 2020 and 2021 – because he had risks for his own safety in doing so. The defendant argues that, to the extent that he was unable to complete this program in that time period, it is explicable by reason of that matter and, separately, the defendant should not be penalised for the failure of Corrective Services to make other arrangements.

112. The State argued at the hearing that the refusal to attend the DENIERS program in fact related back to 2008 – albeit, in the written submissions, it was suggested that that program was not introduced during his first period of imprisonment. Against that, I note that in the Risk Management Report dated 19 December 2021, it was reported that between “2007 and as recent at April 2021, [the defendant] was offered placements into the CSNSW Deniers Program. On each occasion, [the defendant] either refused to consent to partake in the program, or withdrew his placement due to perceived concerns that he may be targeted by other inmates for being ‘put on show’”.

113. I am not placed, at a preliminary hearing, to resolve this issue about the defendant’s participation in this program. Nor do I consider that I need to.

114. My overall assessment is that the defendant has been a reluctant participant in these programs and, as earlier mentioned, I entertain some considerable doubt as to whether, particularly in light of his refusal to acknowledge his guilt in relation to his offending, the defendant’s participation was genuine and substantive.

115. Furthermore, as the State submitted, the defendant does not appear to have undertaken any substantive treatment to deal with the fundamental reasons why he committed the various offences to which reference has been made. As Ms Sapula stated, in her risk assessment report, the defendant “remains untreated”.

Options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

116. Section 9(3)(e1) requires the Court to consider “options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time”.

117. The State’s submission was, in essence, that the defendant’s lack of treatment and his attitude towards it, and his offending, all justify a finding that “a large suite of protective conditions are required”. (I deal with conditions later in these reasons).

118. The defendant did not make a specific submission directed to this sub-paragraph.

The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2))

119. Section 9(3)(e2) requires the Court to consider “the likelihood that the offender will comply with the obligations of an ESO”.

120. The State’s submission was that this was “a particularly concerning question” because, in effect, the defendant had been resistant to supervision in the past and demonstrated an unwillingness to engage in treatment programs. I do not think that these matters necessarily support an inference that the defendant would be unlikely to comply with the conditions imposed as part of any ESO.

121. In this respect, as the defendant submitted, there is a difference between the complying with conditions (that is, court orders) and being resistant to forms of supervision and being reluctant to undergo treatment. I do not consider that there is a sufficient evidentiary basis to conclude that the defendant would not comply with any conditions as part of an ESO.

The level of the offender’s compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)

122. Section 9(3)(f) requires the Court to have regard to the level of the offender’s compliance with any obligation to which they have been subject while on parole or an earlier ESO.

123. I have earlier made reference to when the defendant was granted parole in 2009 – and that parole being revoked. When the defendant was sentenced by Norrish QC DCJ, his Honour remarked that it appeared 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”.

122. The State’s submissions noted that, whilst on parole and residing at a CSNSW operated residential centre, the defendant was described as “belligerent” throughout his four month period there. The State did not, however, identify any non-compliance with any parole conditions.

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: s 9(3)(g)

125. This legislation was not raised as being relevant to the present application.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

126. I have addressed all offending earlier in these reasons.

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

127. I have referred to the sentencing remarks of Boulton A-DCJ and Norrish QC DCJ earlier in these reasons.

128. I was not taken to the sentencing reasons of Shillington QC DCJ, but my review of them did not reveal any relevant “views”.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

129. Section 9(3)(i) requires the Court to have regard to “any other information that is available as to the likelihood that the offender will commit a further serious offence”.

130. The State drew attention to other material – specifically, allegations (I am told by the defendant’s older daughter) that suggested that the defendant had committed, but had not been charged with, other inappropriate sexual acts involving the defendant’s younger daughter.

131. This material was briefed to Ms Sapula and formed part of her overall consideration in her assessment of the risk, and I have considered her opinions in the assessment that follows.

132. In the State’s written submissions, it was suggested that “further useful information could be gathered” following psychiatric/psychological assessment of the defendant – presumably material that would become available if interim relief is granted. I do not consider that information prospectively obtained through interim relief (whatever that might be) can be considered under this subparagraph bearing in mind the clear temporal element referred to – viz., “is available”.

The ISO should be made: unacceptable risk

133. I have already found that the matters in ss 5B(a)-(c) of the Act are satisfied: see [35]-[43], above.

134. Having regard to the matters under s 9(3) referred to above, as well as the safety of the community (s 9(2)), I have no doubt that, unless supervised, the matters alleged in the supporting documentation demonstrate that there is an unacceptable risk of the defendant committing another serious sex offence. Accordingly, I am satisfied that the terms of s 7(4) of the Act are met.

135. In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.

1. First, the starting point is the nature and extent of the sexual offending: the target of that offending conduct was young girls, two of which were primary school age; the offending conduct occurred during a period spanning approximately six years – from 1998 to 2004; and the offending conduct included digital and penile penetration. It is axiomatic that conduct of this kind, if it were to recur, would be grave, and unacceptable.

2. Secondly, there is reason to think, and a reasonable basis to conclude, that the defendant’s sexual misconduct involving young girls extended beyond those offences for which he was convicted. As I have earlier mentioned, when the defendant was sentenced in 2005 by Boulton A-DCJ, his Honour accepted as “quite compelling” tendency evidence to the effect that the defendant had digitally penetrated one of his daughters as a child in Victoria. Thus, the presence of other further offending – not the subject of charges – adds to the risk beyond that created by the conduct that was the subject of charges and conviction.

3. Thirdly, when sentenced, the sentencing judges gave the following assessments of the defendant: Boulton A-DCJ took the view that the defendant had a “dangerous tendency to sexually assault young girls” and when sentenced in 2013 for the index offences, Norrish QC DCJ remarked that the defendant “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” and, further, that “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”.

4. Fourthly, in my view, recognising the confined nature of the Court’s task when conducting a preliminary hearing, the evidence demonstrates that the defendant’s risk profile has not changed over time, when assessed using actuarial risk assessments – including the following:

1. 2009: The defendant’s STATIC-99R “actuarial sexual recidivism risk assessment falls into the Moderate-High category of risk for reoffending”: see [85(4)], above. This assessment, it should be noted, was conducted prior to the expiration of the sentence imposed by Boulton A-DCJ.

2. 2014: The defendant’s STATIC-99R actuarial risk assessment score for sexual re-offending was in the Moderate-High risk category (albeit that there had been some reclassification of these terms more recently): see [94(4)], above. This assessment, it should be noted, was conducted after the defendant had been sentenced by Norrish QC DCJ.

3. 2021: The defendant’s “risk of sexual re-offending is estimated to be in the Well Above Average (High) risk category relative to other men who have offended sexually”: see [94(8)], above.

4. The consistent results in these assessments over time provide no confidence that the risk the defendant poses to the community has been reduced naturally over time, including the time he has spent in custody.

5. Fifthly, there is no suggestion that the defendant has been rehabilitated or undergone treatment that has addressed the root cause of his offending. On the contrary, the evidence paints a picture of an offender who has been reluctant to engage in rehabilitation and undergo treatment. This reluctance may well be because the defendant has consistently, and strenuously, refused to accept his guilt notwithstanding his convictions, or it may be for other reasons. Irrespective of the true basis for this, the defendant remains, as Ms Sapula commented, largely “untreated”, with the consequence that there has not been identification of, and strategies developed to avoid, factors that might increase the risk of re-offending. Absent treatment and rehabilitation, or other independent measure of progress, it is difficult to form a view other than the one that I have previously reached – namely, that there has been no material change, over time, in the defendant’s risk profile.

6. Sixthly, there remains a significant question about the contribution that alcohol has played in the defendant’s offending. To the extent that the defendant has maintained that he did not have any issues with alcohol abuse and his offending, that position must be doubted: in relation to the 2001 incident, the defendant had returned late after drinking at a hotel, and then committed the offence; and, in relation to the 2004 incident, the defendant had been drinking in the afternoon and evening with a parent of the victim, and thereafter committed the offence. It was in this respect that Ms Sapula noted that whilst alcohol consumption was not necessarily a prerequisite or primary contributing factor to his offending, it was “likely to have a disinhibiting effect thus could increase his risk, particularly if it is accompanied by access to a potential victim”. Nor should the 2005 assessment by John Taylor, clinical forensic psychologist, be overlooked: Mr Taylor reported that the defendant’s “profile indicates that he has a high average predisposition towards developing dependence on alcohol”. Again, Ms Sapula considered that the defendant’s treatment should extend to drug and alcohol counselling – thereby suggesting that, at least in relation to alcohol, the defendant also remains sub-optimally treated.

7. Seventhly, although, in a given case, the historical nature of the offending may – possibly – tell against the likelihood of the further commission of a serious offence by an offender (if not supervised or detained), I do not think that is the situation here. That is not only for the above reasons, particularly as they relate to his consistent actuarial risk assessment results and failure to participate in rehabilitation programs, but for the reason that for a significant part of the time since the last offending occurred (in 2004), the defendant has been imprisoned – albeit that I recognise there was a period when the defendant was in the community unsupervised. (I note, consistent with my view that the historical nature of the offending did not tell against the likelihood of further offending, the comments of Norrish QC DCJ, referred to earlier: namely, despite (in 2013) the fact 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”).

136. I do not accept, as the defendant argued, that the State’s evidence had failed to identify the risk with sufficient particularity. In my view, as the State submitted, the “risk” presented is of sexual offending against young girls broadly in line with his past offending conduct – which undoubtedly would give rise to a “serious sex offence” within s 5(1)(a)(i) of the Act. This is substantially what Ms Sapula identified as the reoffending risk: namely, the defendant’s “most likely risk scenario for further sexual offending would involve him exploiting either a well-established relationship, or he will create an opportunity for access” and that the defendant would most “likely target females whose developmental stage fall anywhere between pre-pubescent to older teenager”.

137. I also do not accept, as the defendant argued, that the evidence did not support the “level of the risk”. In my view the actuarial evidence to which reference has been made does that: the defendant’s risk of sexual re-offending has been specifically (and recently) estimated to be in the “Well Above Average (High) risk category relative to other men who have offended sexually”. Two further matters should be noted in relation to this submission, and why I do not accept it. First, and as the defendant pointed out in his written submissions at [15], unacceptability of the risk involves “considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: Simcock at [71]. As I mentioned earlier, offending of the kind perpetrated by the defendant on young girls, if it were to recur, would be grave, unacceptable and constitute a “serious sexual offence” within s 5(1)(a)(i) of the Act. Secondly, to the extent the submission sought to suggest that the evidence did not establish the probability of its occurrence, it is to be remembered that an unacceptable risk does not require that the offender is more likely than not to commit a serious offence: s 5D.

An IDO or an ISO?

138. The State argued – in writing and orally – that the preconditions for the making of an ESO, as well as a CDO, were established. During the hearing, it was argued that an IDO should be ordered because the risks could not be adequately managed via an ISO – specifically because, so it was argued, the defendant did not want to be managed and had refused treatment.

139. It is necessary to make some reference to the evidence in order to evaluate this submission, but. I will begin by addressing some matters of legal principle.

Legal principles: an IDO or an ISO

140. The starting point is that, by s 17(1) of the Act, the court may determine an application for a CDO in one of three ways: by making a ESO (s 17(1)(a)); by making a CDO (s 17(1)(b)); or by dismissing the application (s 17(1)(c)). Otherwise the Act provides no direct guidance, when relief is sought in the alternative, on how to approach making one form of order, as opposed to the other. No detailed submissions were made about the proper approach to take, and I was not referred to any authority.

141. In my view, there is no warrant to necessarily consider whether an ESO should be made, and only consider whether a CDO should be made if an ESO is considered inappropriate or otherwise unsuitable. Put another way, the statutory language does not, in my view, support an approach that a CDO should only be ordered as a “last resort”: State of New South Wales v Bugmy (preliminary hearing) [2016] NSWSC 1128 at [25] (McCallum J). Rather, the task is to assess the particular circumstances, informed by matters such as risk avoidance (State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 at [84] (Wright J)), and the paramount consideration, being the safety of the community (s 17(2)). There is also no “general presumption in favour of maintaining the custodial status quo when interim relief is in question”: Tillman at [46] (Mason P, Santow and Tobias JJA).

Consideration

142. In my view, approaching the matter in the way that I have outlined, I consider that the objects of the Act – protection of the community as well as encouraging rehabilitation – can be fulfilled through the making of an ESO, rather than a CDO: more specifically, at the interim stage, an ISO, rather than an IDO.

143. My reasons for this conclusion are as follows.

144. First, whilst the State argues, with some force, that the defendant has not undergone treatment or rehabilitation whilst he has been imprisoned, somewhat paradoxically it seeks an order that he remain there notwithstanding that the effect of making a CDO would be to confirm the status quo. Indeed one of the matters to which, as I mentioned, considerable argument was directed during the hearing – namely the availability of the DENIERS program – has been accepted by the State to be a program which would not be available to the defendant if he remained in custody. In my view, having regard to the conditions that were agreed upon, the defendant’s department supervising officer (‘DSO’) can direct the defendant to undergo psychological or psychiatric assessment or counselling (or any combination of these), including therapy sessions and support and treatment programs: see proposed condition 54.

145. Secondly, I do not accept, as argued by the State, that the defendant could not, with conditions, be managed nor, critically, were the risks of the defendant’s offending behaviour such that the imposition of conditions on his release would inefficacious. In this respect I note the following:

1. Ms Sapula, in her report dated 30 November 2021, did not suggest that management of the risk could only occur through continuing detention of the defendant. Rather she suggested that, in “the event that [the defendant] is considered suitable for an ESO, he would be subject to intensive supervision, strict monitoring and case management by CSNSW”, and she thereafter set out a number of risk management strategies. I accept that last statement by Ms Sapula assumed the making of an ESO, but its importance lies, in my view, in the fact that she was prepared to express a view on what conditions would be necessary. To recap slightly, I see the importance in Ms Sapula’s report being that she did not suggest that supervision through an ESO would not be reasonable, practicable or appropriate in the circumstances of this case.

2. The Risk Management Report, dated 19 December 2021, proposed a risk management plan that included supervision as well as the imposition of conditions extending to matters such as electronic monitoring, schedule of movements and curfews, non-association, medical intervention and treatment so on.

146. Thirdly, although the defendant argued that no order (that is, no IDO or ISO) should be made, many of the State’s proposed conditions were agreed to by him – including those relating to medical intervention and treatment. In my view, an ESO with conditions would fulfil an express object of the Act; namely, it would encourage and facilitate rehabilitation of the defendant, something that has not occurred during his imprisonment.

147. For these reasons, although I have concluded that there is an unacceptable risk of the requisite kind, I am not prepared to further find that the risk should be managed by continuing detention or, in the first instance, an IDO.

The statutory provisions and principles

148. An ESO or an ISO may direct an offender to comply with such conditions as the Court considers appropriate, including but not limited to those conditions specified in ss 11(1)(a)-(n) of the Act. Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO (or ISO) is delimited by the requirement that the conditions be “appropriate”.

149. When an ESO or ISO is made, it must include a condition “requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Service”: s 11(2). This is the State’s proposed condition 15..

150. Failure by a person to comply with the requirements of an ESO or ISO is an offence, punishable by fine, imprisonment, or both: s 12.

151. In State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44], Hoeben CJ at CL identified the following principles to be considered in relation to the imposition of conditions:

“(i)    having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83];

(ii)   in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68];

(iii)   a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36];

(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53];

(v)   conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38];

(vi)   conditions must not be unjustifiably onerous or punitive, “nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855;

(vii)   conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) at [36];

(viii)   to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales [(2016) 91 NSWLR 636] at [129]-[131].”

The conditions

152. The State proposed a schedule of conditions of supervision. There were 58 conditions contained in that schedule. The defendant, whilst maintaining his opposition to making of any orders, accepted that, if the court was minded to make an ISO, it did not oppose a number of them: notably, conditions 1 – 4, 6 – 8, 10 – 15, 16 – 19, 21, 23 – 25, 27 – 30, 32, 34, 36, 47 – 50, 52 – 55 and 57 – 58. As to these conditions, I am satisfied that they are appropriate, and mitigate the unacceptable risk and I propose to impose those conditions as part of the ISO.

152. In relation to some of the proposed conditions, the defendant, whilst maintaining his opposition to making of any orders, did not oppose some of them, so long as amendments to them were made. The State agreed to the defendant’s amendments to some of the conditions that they have proposed. Conditions of this kind, with the agreed form of wording, are:

1. Condition 17(d): to the State’s proposed condition, the following words were added: “but this does not include locations where the primary use of the area is not a children’s playground, such as McDonald’s or a national park;”.

2. Condition 33: to the State’s proposed condition, the following words are added: “if the defendants DSO is to make such a disclosure they must give the defendant the opportunity to tell the other person”.

3. Condition 35: this condition will now read: “The defendant must obtain permission from a DSO prior to joining or affiliating with any club or organisation in such permission must not be refused, except where the defendant’s involvement or affiliation with any club or organisation would give rise to an acceptable risk of him committing a serious offence”.

4. Condition 37: on the first line of the State’s condition, the words “not use”, will be deleted and replaced with the word “disclose”.

5. Condition 51: this condition will now read: “the defendant must not significantly change his appearance without notifying his DSO within three working days prior to that change”.

6. Condition 56: to the State’s proposed condition, the following words are added: “as considered appropriate by his DSO or treatment and service providers or health practitioner’s for the defendant’s rehabilitation and risk mitigation”.

154. As to these conditions, I am satisfied, with these amendments, that they are appropriate, and mitigate the unacceptable risk and I propose to impose those conditions as part of the ISO.

155. The State pressed, and the defendant opposed, the imposition of the following proposed conditions: conditions 5, 9, 20, 22, 26, 31(a) and 38 – 46.

156. Before addressing those contested conditions, the following matters should be noted. First, during the course of submissions, reference was made to a number of authorities where conditions of a particular kind had been imposed as part of an ISO (or not, as the case may be) as a step towards arguing that the proposed conditions in this case should (or should not) form part of any ISO. In my view, having regard to the fact-sensitive and discretionary nature of what is required by s 11 of the Act, reference to such authority is of limited utility. Secondly, to the extent that it was suggested that any conditions imposed by the court were required to have a demonstrated link to past offending, then any submission sits inconsistently with the Court of Appeal’s decision in Wilde v State of New South Wales [2015] NSWCA 28 at [53] (Beazley P, McColl and Ward JJA) (‘Wilde’), and I do not accept it. The Court held, in Wilde, in relation to ordering conditions under s 11 of the Act: “…rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.”: see also State of New South Wales v Davis (Preliminary) [2021] NSWSC 53 at [13] (Johnson J); State of New South Wales v Ibrahim (Final) [2021] NSWSC 793 at [358] (Walton J). Thirdly, as was pointed out in Golding at [102] (R A Hulme J), short form reasons on conditions are appropriate in light of the interim (and finite) nature of the order and re-agitation can and inevitably will occur at a final hearing.

Condition 5

157. This condition relates to the requirement, if directed, for the defendant to provide a schedule of movements. In my view this condition is reasonable and appropriate bearing in mind the risk identified. The defendant cannot be supervised if a DSO does not know where the defendant is. The DSO would need to supervise, carefully, movements to ensure that the defendant complies with the conditions and restrictions within them.

Condition 9

158. I consider this condition to be reasonable and appropriate. In this instance, part of the offending conduct of the defendant was committed in the early hours of the morning: the offence committed in December 2001 was committed shortly after midnight, as was the offence committed in February 2004. Furthermore, the condition allows an exception to it upon arrangements being approved.

Condition 20

159. The State argued that there were practical reasons to support its proposed condition and that to impose a condition in the way suggested by the defendant “would be damaging to the relationship between the defendant and the DSO”. In my view, the condition proposed by the defendant should be accepted, without the limitation “reasonably” so far as it relates to the written direction from the defendant’s DSO.

Condition 22

160. This condition was pressed on the basis that it was “about oversight” or “a review of factors that may be unstable factors in [the defendant’s] life indicative of risk”. I do not accept that this condition is reasonable or appropriate at this time, particularly in light of other conditions and the risk that I have identified.

Condition 26

161. In my view, particularly where the defendant has agreed to conditions 24 and 27, this condition is reasonable and appropriate. I have specifically considered alcohol when evaluating the risk: see [135(6)], above.

Condition 31(a)

162. In my view this condition, framed in this way, is problematic. For example, if, as these conditions appear to accept, that the defendant can enter into licensed premises with the prior approval of a DSO, and the defendant in fact does this, he would not be permitted to speak to or associate (a term defined to include “communicate by any means”) with any person within those premises who, say, wished engaging conversation with the defendant.

163. In the circumstances of this case, bearing in mind the other conditions that are to be imposed, I do not consider this condition, at the present time, to be reasonable or appropriate.

Conditions 38-46.

164. I do not accept the defendant’s submission that these conditions should not be imposed because: (a) there is no evidence that the defendant used or uses the internet; and (b) the risk factors do not include the internet.

165. In my view these conditions should be imposed and, to be clear, they are reasonable and appropriate and deal with the unacceptable risk that I have found to exist. Importantly it should be recalled that (a) Ms Sapula “considered that the actuarial assessment is an accurate reflection of his risk and needs and that he is likely to experience difficulties with implementing any risk mitigation strategies independently” and (b) the defendant’s “most likely risk scenario for further sexual offending would involve him exploiting either a well-established relationship, or he will create an opportunity for access” (emphasis added). I do not think that simply because past offending may not have involved the internet is a reason simply to ignore this evidence, and I do not propose to do so. As the State submitted, in effect, “online” is a well-known way in which those with a predisposition towards offending involving young children create an opportunity or develop a relationship. In my view the imposition of these conditions, particularly on an interim basis, not only are reasonable and appropriate, but enhance the safety and protection of the community.

Orders

166. Accordingly, I make the following orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’):

1. Appointing 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 reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. Directing the defendant to attend those examinations.

2. An order:

1. Pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from 12 August 2022; and

2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule to the Summons filed 25 February 2022 subject to the amendments and deletions as outlined in these reasons.

3. I direct that the State prepare, and file with the Court by 10 am on 10 August 2022, a Schedule of the conditions to the ESO in line with the judgment of the Court.

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Decision last updated: 09 August 2022