State of New South Wales v Burke (Final)

[2024] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Burke (Final) [2024] NSWSC 119

Hearing dates:

6 February 2024

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Common Law

Before:

Huggett J

Decision:

(1) I revoke the Interim Supervision Order made by Justice Sweeney on 5 October 2023 as referred to in paragraph [2]; 

(2) 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 from the date of the order;

(3) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that for the period of the extended supervision order, the defendant comply with the conditions set out in Schedule A to Order 1;

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

Catchwords:

HIGH RISK OFFENDERS — application for extended supervision order — contact and non-contact sexual offending in relation to children – unacceptable risk test met – dispute about duration of order and conditions – index offences committed while on parole – order imposed

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

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

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

State of New South Wales v Burke (Preliminary) [2023] NSWSC 1189

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Andrew Mark Burke (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
J Wilcox (Defendant)

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

File Number(s):

2023/226851

Publication restriction:

Nil

JUDGMENT

1. By a summons filed on 14 July 2023 the State of New South Wales (the plaintiff) seeks orders that:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the HROAct”), the defendant Andrew Burke be the subject of an extended supervision order (“ESO”) for a period of 4 years; and

2. Pursuant to s 11 of the HRO Act, the defendant be directed to comply with a number of conditions for the period of the ESO.

2. On 5 October 2023 Justice Sweeney made an Interim Supervision Order (“ISO”) in respect of the defendant: State of New South Wales v Burke (Preliminary) [2023] NSWSC 1189. Her Honour also made an order appointing two experts to examine the defendant and provide reports. Pursuant to that order, the Court has received expert reports from Dr Satish Dayalan, forensic psychiatrist and Patrick Sheehan, forensic psychologist. The ISO has been suspended because Mr Burke has been in custody on remand pending fresh charges since 4 September 2023.

3. Counsel for the defendant conceded that the statutory prerequisites for the making of an ESO as set out in s 5B of the HRO Act were satisfied and that it would be open to this Court to be satisfied that an ESO should be made. Counsel’s principal focus at the hearing was directed towards the duration of the ESO and the terms of proposed conditions 5, 18 and 22.

4. Despite the position taken on behalf of the defendant, the statutory prerequisites for imposing an ESO includes an evaluative test of which I must be satisfied. That said, the significant agreement between the parties has been of much assistance.

5. On the whole of the evidence, I have come to the view that an ESO should be made for a period of 3 years. Given counsel’s concessions, my reasons can be shorter than might otherwise have been necessary.

6. In order to make an ESO, I must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if he is not kept under supervision: s 5B(d) of the HRO Act. The term “high degree of probability” indicates a standard which is higher than the civil standard, but less than the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]

7. The term “unacceptable risk” is to be given its ordinary everyday meaning, bearing in mind that the primary purpose of the HRO Act is to ensure the safety and protection of the community. In determining whether or not to make an ESO, the safety of the community must be the paramount consideration and I must have regard to the mandatory considerations set out in s 9(3) of the HRO Act along with any other matters I consider relevant.

8. The defendant is a 45-year-old man with no dependants. He has been convicted of contact and non-contact sexual offences upon and in relation to children. He experiences significant difficulty communicating with adults and has admitted to having a sexual attraction to children and has been diagnosed with paedophilia. A likely diagnosis of autism spectrum disorder has also been made. Although the defendant has contact with his mother (who lives in Queensland), as things presently stand, the defendant has no other support in the community.

The supporting material

9. In addition to the reports of Dr Dayalan and Patrick Sheehan, the State relies on the following material (collectively marked Ex 1 on the application):

1. Affidavit of Melinda Smith, Solicitor, Crown Solicitor’s Office, affirmed 20 July 2023. Exhibit MS-1 was annexed to this Affidavit.

2. Affidavit of Melinda Smith, Solicitor, Crown Solicitor’s Office, affirmed 15 January 2024.

3. Affidavit of Johanna Fisher, Solicitor, Crown Solicitor’s Office, affirmed 25 September 2023.

4. Affidavit of Sarah Wright, Senior Psychologist, High Risk Offender’s Team, Department of Communities and Justice, sworn 31 January 2024.

10. The defendant relies on the following evidence (collectively marked Ex 2 on the application):

1. Affidavit of Melissa Tresheil Smith, Solicitor, Legal Aid Commission, affirmed 18 September 2023.

2. Affidavit of Melissa Tresheil Smith, Solicitor, Legal Aid Commission, affirmed 25 January 2024.

3. Affidavit of the defendant affirmed 24 January 2024.

The background to the application and the index offending

11. On 27 November 2020 Berman SC ADCJ sentenced the defendant for possessing child abuse material and failing to comply with reporting requirements under the Child Protection (Offenders Registration) Act 2000 (NSW). His Honour imposed an aggregate term of imprisonment of 3 years (commencing on 17 October 2020 and expiring on 16 October 2023) with a non-parole period of 2 years (expiring on 16 October 2022).

12. On 15 August 2023 the defendant was released on parole. He entered a residential facility operated by Community Corrections known as an Integrated Support Centre (“ISC”).

13. On 22 August 2023 the defendant was charged with two counts of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). The offences are alleged to have been committed between 14 and 21 August 2023 and relate to an alleged failure to report usernames for two online applications.

14. On 23 August 2023, a Child Protection Order was made against the defendant with a duration of 5 years by Campbelltown Local Court (pursuant to s 5 of the Child Protection (Offenders Registration) Act 2000 (NSW)).

15. On 4 September 2023 the defendant was charged with possessing child abuse material and contravening a Child Protection Order. He was refused bail. The offences are alleged to have been committed between 24 and 28 August 2023 and relate to an allegation that an image of a female aged approximately 12 to 14 years old being anally sexually assaulted by an adult male was located in the recycle bin in the photo gallery folder of the defendant’s mobile telephone and that he used the application Skype to search for random girls including communicating online with a female who appeared to be 10 years old and attempted to call her and that he communicated with user profiles with names “Very Young” and “Little Slut”.

16. Both sets of pending charges are listed for mention at Campbelltown Local Court on 10 April 2024. The defendant is yet to enter a plea to any of the pending charges.

17. On 20 September 2023, the State Parole Authority revoked Mr Burke’s parole.

18. On 5 October 2023 the ISO referred to in paragraph [5] was made.

19. On 16 October 2023 the ISO was suspended as a result of the respondent being in continuous custody since 4 September 2023 (by the operation of s 10C(1A) of the HRO Act).

Section 9(3) factors

20. Against that background, I turn to the mandatory considerations set out in s 9(3) of the HRO Act.

Criminal history, pattern of offending behaviour and the views of the sentencing court: ss 9(3)(h) and 9(3)(h1)

2012 proceedings before North DCJ

21. In 2012 the defendant was sentenced by North DCJ for using a carriage service to procure a person under 16 years for sexual activity; using a carriage service to transmit indecent material to a person under 16 years and possessing child abuse material.

22. The defendant pleaded guilty to agreed facts that indicated that in 2011 police became aware that the defendant was engaging in a sexualised conversation with a 10-year-old child on Facebook. Using an assumed online identity (“AOI”) of an 11-year-old girl, police began communicating with the defendant using Facebook, MSN, text messaging and phone calls. During these conversations the defendant told the AOI he loved her and wished to be her boyfriend. During another conversation he gave explicit directions on how to masturbate and told the AOI to “keep it our little secret.” Following that conversation, the defendant arranged to meet the AOI in person and when he arrived at the location he was arrested.

23. Upon his arrest, police searched the defendant’s mobile telephone and located six videos and three written stories containing child abuse material involving children aged between 7 and 15 years, predominantly females, masturbating and engaging in oral and penile vaginal intercourse with both underage and adult males.

24. During his police interview the defendant stated that he wished to find a girlfriend and due to his desperation would communicate with anyone that showed an interest in him. He indicated that he would tell young girls he loved them to make them feel special and so that they would want to continue to communicate with him.

25. The sentencing judge found that the respondent’s conduct went well beyond mere communications and that the arranged meeting made it clear that he “was not content with just communication but desired face to face conduct.” The sentencing judge noted that the defendant informed a psychologist that he was looking for a relationship with the AOI (who he believed to be an 11-year-old girl) and that he would have engaged in sexual relations if she had been willing.

26. The sentencing judge found that the defendant lacked insight due to his “mental makeup”. The sentencing judge accepted the psychologist’s diagnosis that the defendant had several problematic personality traits including being depressive, dependent and masochistic.

27. The defendant was sentenced to a fixed term of 9 months imprisonment for the offence of possessing child abuse material. For the offence of using a carriage service to transmit an indecent communication he was sentenced to 15 months imprisonment. For the offence of using a carriage service to procure a person under 16 years to engage in sexual activity he was sentenced to 2 years and 6 months imprisonment and be released on recognisance at the end of the term.

2013 proceedings before Wilson SC DCJ (as her Honour then was)

28. In 2013 the defendant was sentenced by Wilson SC DCJ (as her Honour then was) for 3 counts of sexual intercourse with a person aged between 14 and 16 years; possessing child abuse material and failing to comply with reporting obligations.

29. The agreed facts reveal that in August 2013 (whilst subject to a recognisance release order imposed by Judge North), the defendant and the victim, a 15-year-old girl, came into contact on a chat site called “meet me”. The defendant was purporting to be a 16 to 17-year-old girl called “Lisa Nissian”. After a period of exchanging messages, “Lisa” suggested that the victim meet “her brother” and gave the victim “her brother’s” mobile number to communicate on Kik. The victim and the defendant met at a train station where the defendant introduced himself as “Andrew”. The victim assumed he was about 18 although thought he looked older. The victim and the defendant went back to the defendant’s home where they talked and kissed. The victim kept their meeting a secret.

30. Over the next few days, the defendant and victim exchanged numerous messages with the victim ultimately agreeing to stay at the defendant’s house on the Saturday night (17 August 2013). The defendant’s response to that arrangement was to say to the victim, “so I can really have you”. The defendant knew the victim was not 16.

31. On the Saturday night and into the Sunday morning, the defendant and victim had penile/vaginal sexual intercourse three times. After the second occasion, two Corrective Services Officers attended the defendant’s home to discuss whether he had any issues in relation to being on conditional liberty. The officers were unaware of the victim’s presence in the unit.

32. These incidents were brought to the attention of police where the victim’s family became aware that the victim had been at her “boyfriend’s” on the night in question.

33. A search warrant was executed at the defendant’s home upon his arrest for the sexual intercourse offences. The mobile phone used to communicate with the victim was seized. A search revealed that the offender had been accessing social media sites with his phone. This formed the basis for the charge of fail to comply with reporting requirements.

34. During the course of the search the police also located a thumb drive which contained child abuse material including, by way of example:

1. Naked images of 4 to 5 year old children;

2. Images of children engaged in sexual activity including penetrative sexual activity with adult males;

3. Videos depicting bestiality with children;

4. Stories relating to paedophilia and incest.

35. The sentencing judge was not satisfied the respondent’s pleas of guilty were indicative of an “immediate recognition of wrongdoing and a wish to make amends.” Pointing to the defendant’s failure to take advantage of the support offered by Community Corrections during his period on the recognisance order, the sentencing Judge found the defendant’s prospects of rehabilitation to be “bleak” and that his pattern of engagement with children for sexual purposes was unlikely to change, regardless of whether he was closely supervised in the community upon his release.

36. The defendant received a total sentence of 7 years and 6 days on 21 July 2014 and expiring on 20 August 2021 with non-parole period of 5 years and 6 days expiring on 20 August 2019.

2019 proceedings before Berman SC ADCJ – the “index offending”

37. The defendant was released to parole on 20 August 2019. He was a registrable person under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). As such, he was required to annually report relevant personal information. According to his Child Protection Acknowledgment Form, the defendant only used one email address.

38. On 17 December 2019, police attended the defendant’s home to conduct relevant checks under the Child Protection (Offenders Registration) Act 2000 (NSW). They produced the relevant forms which the defendant read and signed and the defendant consented to police examining and searching computers and other electronic equipment of which he had access.

39. The defendant handed the police his ZTE mobile phone. Police noticed that the defendant was attempting to conceal something from them which was found to be a Samsung Galaxy mobile phone.

40. Both phones contained child abuse material.

41. The child abuse material on the ZTE phone consisted of 15 image files and five video files and included content such as:

1. An adult male engaging in penile-vaginal intercourse with a female child aged between five and eight years;

2. Two naked prepubescent male children involved in fellatio; and

3. An adult male engaging in penile/vaginal intercourse with a four-year-old female child.

42. The child abuse material on the Samsung phone showed ten image files and 14 video files and included content such as:

1. An adult male engaging in penile/anal intercourse with a female child aged eight years; and

2. An adult male engaging in penile/anal intercourse with a female child aged between five and eight years.

43. A further examination of the ZTE phone revealed that the defendant had been using four email addresses which were different from that address declared on his Child Protection Register Acknowledgment Form. The defendant had used those email addresses on sites such as Instagram, DropBox, Yahoo, Sony Entertainment, onenightfriend.com and dream-singles.com.

44. The sentencing judge noted that the defendant had peculiarities in thinking and difficulties with interpersonal relationships and as a result lived an isolated life. While a psychological report tendered in these proceedings did not suggest a causal link between any psychological condition and the offending, it was suggested on the defendant’s behalf by his Counsel that the defendant’s isolated existence may have led him to use the internet as a means of engaging with others such that he returned to his “old ways”, namely, accessing child abuse material.

45. The sentencing judge considered the defendant’s expressions of remorse contained in a letter to the court and his report to the psychologist that he felt “disgusted” in himself, and on balance (although noting a “considerable degree of hesitation”) found him to be genuinely remorseful.

46. The defendant was apparently responsive to the idea of sex offender treatment when the topic was discussed with the psychologist.

47. His Honour found that the defendant had a “continuing attitude of disobedience to the law” and that his prospects of rehabilitation were poor. His Honour also found that the defendant was an appropriate vehicle for both specific and general deterrence.

48. Berman ADCJ imposed an aggregate sentence of 3 years imprisonment commencing on 17 October 2020 and expiring on 16 October 2023 with a non-parole period of 2 years expiring on 16 October 2022.

The reports of the court appointed experts and the defendant’s level of participation in such examination: s 9(3)(b)

Dr Satish Dayalan

49. Dr Dayalan interviewed the defendant on 1 December 2023. The defendant was polite during the assessment and did not refuse to answer any questions. Dr Dayalan noted that the defendant was “quite evasive” when discussing his sexual offending risk factors and there were some inconsistencies between responses he provided and information contained within Exhibit MS-1 (annexed to the affidavit of Melinda Smith, affirmed 20 July 2023).

50. The defendant informed Dr Dayalan that in 2009 he accessed child pornography by “accident” whilst browsing adult pornography. He said that a pop-up link prompted him to websites containing teenage pornography which expanded to prepubescent girls.

51. When asked about his interest in child pornography, the defendant provided vague responses and indicated that he had “missed out” on engagement in sexual activity in his teenage years.

52. The defendant told Dr Dayalan he became sexually aroused by watching child pornography and masturbated when viewing such material. When asked what contributed to his offending, the defendant said that in the past he related better to children than adults because adults were not interested in spending time with him however children did. The defendant was unable to explain why he did not befriend male children.

49. On prompting, the defendant accepted he suffered from paedophilia although asserted that he was learning to control it by fantasising about adult women while masturbating and stopping himself if he had sexual thoughts about of children.

50. Dr Dayalan diagnosed the defendant as suffering from paedophilia of a non-exclusive type with a sexual attraction to females which is chronic and enduring. The sexually deviant urges and interests associated with his condition contribute directly to his risk of sexual re-offending.

51. Dr Dayalan also considered that the defendant presented with features of autism spectrum disorder which was likely to be chronic and enduring and which presents challenges for the defendant in forming and maintaining relationships with adult females such that interactions are sought with children which in turn leads to sexual offending.

52. The defendant told Dr Dayalan he was willing to engage in psychological treatment and pharmacological treatment (anti-libidinal medication which blocks the effects of testosterone thereby reducing sex drive but does not change a person's paraphilic interests) to address his paedophilia.

53. Acknowledging their limitations, Dr Dayalan used the tools STATIC-99R (which measures static historic risk factors) and STABLE 2007 (which measures dynamic risk factors) to assess the defendant’s risk of committing further sexual offences.

54. The defendant scored 5 on the STATIC-99R tool placing him in the above average risk level which would indicate a risk of reoffending in the next five years of between 18% and 24.8%.

55. Using the STABLE-2007 tool, Dr Dayalan noted that the dynamic risk factors relevant to the defendant’s risk formulation included his emotional identification with children, his loneliness and general social rejection, his lack of concern for others and tendency towards impulsive acts, his limited cognitive problem-solving skills, his increased sex drive and his deviant sexual interests. In Dr Dayalan’s opinion, the defendant has “high risk needs”.

56. Noting that the defendant has not completed any treatment to reduce his risk of sexual offending and the continuation of his offending while under various forms of supervision in the community, in Dr Dayalan’s considered opinion the defendant requires an extended treatment program and close monitoring and supervision following his release into the community. That said, Dr Dayalan recognised that some restrictions and conditions intended to manage risk would impede rehabilitation as they remove the defendant’s ability to make his own decisions and choices and for that reason, Dr Dayalan recommends a tapering of conditions over time.

57. Overall, Dr Dayalan considers that the defendant’s risk of committing a serious sexual offence in the community cannot be managed unless he is subject to an ESO. He considers a duration of three to four years to be reasonable to allow for completion of treatment, a gradual reduction in the restrictions and to provide an opportunity for the defendant to demonstrate a capacity to live pro-socially in the community with minimal supervision.

Patrick Sheehan

62. Mr Sheehan interviewed the defendant via AVL on 6 December 2023. The defendant was polite and easy to get on with but appeared socially and emotionally naïve. The defendant reported a long history of loneliness and a strong desire for connection and acceptance while simultaneously reported feeling socially anxious and inferior and fearful of rejection and/or criticism. Mr Sheehan noted that the latter factors were consistent with the defendant’s use of online platforms to seek social engagement in a less threatening environment.

63. Mr Sheehan found it difficult to draw the defendant into discussion regarding his deviant sexual interests because he tended to avoid the issue asserting that he had become better at managing his deviant interests in more recent times and more vigilant in not entertaining sexual fantasies in relation to children and that his primary interest was now in adult women. However, Mr Sheehan noted that with perseverance, the defendant acknowledged a long history of sexual interest in female children that was more arousing than his interest in adult females.

64. Mr Sheehan applied the Static-99R and Risk of Sexual Violence Protocol (“RSVP tool”) assessment tools. The defendant scored 6 using the Static-99R tool which placed him in the well above average risk level for sexual reoffending. In arriving at this score, Mr Sheehan had regard to the defendant’s most recent charges allegedly committed whilst on parole.

65. Using the RSVP tool against a list of 22 dynamic risk factors that relate to 5 domains – sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability, Mr Sheehan assessed the defendant as being in the well above average risk category. In light of dynamic risk factors that correlate with the defendant’s offending, in particular his paedophilic disorder, sexual preoccupation, social maladjustment and subversion of supervision, overall Mr Sheehan opined that the defendant’s risk of committing a sexual offence fell in the high-risk category.

66. In relation to the first of these domains, Mr Sheehan commented that the defendant’s sexual offence history was chronic and unresponsive to punishment or supervision and that the common theme was a sexual interest in female children. Although physical coercion was not a feature of the past offending, Mr Sheehan noted that it involved degrees of psychological coercion. Mr Sheehan noted that although there was no escalation in terms of meeting a child in person since 2013, the most recent offending if proven potentially indicates escalation in offending soon after release and while living in a controlled environment.

67. In relation to psychological adjustment, Mr Sheehan noted that although the defendant acknowledged his past offending, he tended to minimise his conduct and underplay his intention to engage in sexual relationship with children. For example, the defendant tended to use language suggesting a shared responsibility such as “we” did this and offered a passive account of the genesis of his offending (by referring to following links and coming across deviant material and asserting that child abuse material in his possession was from the past but which he forgot to delete).

68. In relation to mental disorder, in Mr Sheehan’s opinion, the defendant meets the criteria for Paedophilia and considered that a likely diagnosis of autism spectrum disorder was warranted.

69. In relation to social adjustment, Mr Sheehan pointed to the defendant’s chronic problems forming and maintaining appropriate relationships and his chronic problems securing and maintaining employment. Furthermore, the defendant has no support in the community beyond his mother (who has at times denied his offending).

70. In relation to the defendant’s manageability, Mr Sheehan noted the defendant’s problematic history is relation to problem solving and following prosocial plans, his tendency to lack intrinsic motivation or direction, boredom, loneliness and his tendency to subvert conditions imposed to protect children and superficial cooperation with supervision. Mr Sheehan also noted that the defendant lacked a coherent plan for how to live in a way that offsets his risk of reoffending.

71. In Mr Sheehan’s opinion the defendant is not capable of managing his risk of sexual offending without an ESO. In his view, an ESO with a duration of four years is appropriate.

The results of any statistical and/ other assessments as to the likelihood of the offender committing a further serious offence: ss 9(3)(c) and 9(3)(d)

72. In addition to the risk assessment testing conducted by Dr Dayalan and Mr Sheehan, Sarah Wright, Senior Psychologist in the High Risk Offender’s Team, interviewed the defendant via AVL on 20 and 24 August 2021 for the purposes of preparing a lengthy Risk Assessment Report (Tab 3 of Ex MS-1). She identified his key criminogenic needs as including intimacy deficits and emotional identification with children, deviant sexual interests and problems with sexual self-regulation, chronicity of sexual offending and problems with supervision.

73. Based upon the combined scores using the STATIC-99R and the STABLE-2007 tools, the defendant’s overall risk level for future sexual offending is in the above average risk category.

74. In February 2023 Ms Wright prepared a supplementary Risk Assessment Report (SRAR) (Tab 5 of Ex MS-1). The defendant was not reinterviewed for the purpose of that report. It was based on the receipt of further documentation identified on page 1 of that report including, State Parole Authority material relating to revocation of parole and recent OIMS case notes. After considering that material, Ms Wright was of the opinion the defendant’s risk is likely to remain unchanged however, she noted that the defendant appeared to have fewer protective factors then previously.

Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community and options (if any) that might reduce the likelihood of his reoffending over time: ss 9(d1) and 9(e1); and

The level of compliance with parole conditions and the likelihood Mr Burke would comply with the obligations of an ESO: ss 9(3)(e2) and 9(3)(f)

75. The defendant has responded poorly to supervision by Community Corrections. His first period of community supervision commenced in February 2013 following his release on a recognisance release order. The defendant struggled to maintain scheduled reporting instructions, provided misleading information in relation to access and use of the internet and spent a night at his mother’s residence without prior approval. He failed to achieve any supervision outcomes and his compliance with his supervision obligations was described as lacklustre.

76. The defendant’s second period of community supervision commenced in August 2019 following his release to parole. The supervision objectives were again focused on addressing his sexual offending and he was subject to scheduling and electronic monitoring. On this occasion individual psychological intervention with Sarah Wright was utilised because community based sex offender programs were not available. The defendant’s response towards supervision improved on this occasion however he was at times argumentative and confrontational when requested activities were declined.

77. In December 2019 the defendant’s parole was revoked due to further offending. The Breach of Parole report noted that despite engagement with psychologists employed by Corrective Services NSW and electronic monitoring, he reoffended. That report also stated that it would be difficult for Community Corrections to mitigate the risk the defendant posed to the wider community given he was already subject to electronic monitoring and engaging with psychological services.

78. In a Risk Management Report prepared by Joshua Begg, Community Corrections Officer in November 2021, he noted the following:

It is noted that upon Mr Burke's current release date, he would have only spent some 9.5 months in the community over a nine year period. This time was broken over two short periods of Community Corrections supervision, where meaningful traction with case management objectives had been heavily impeded by Mr Burke’s, at times, poor attendance, sporadic engagement and brisk recidivism.

79. An Updated Risk Management Report was prepared in May 2023 by Mick Glover, Senior Community Corrections Officer. It was noted that the defendant’s risk factors for sexual reoffending remain the same.

Any treatment or rehabilitation programs in which the defendant has participated, his willingness to participate in any such programs, and the level of his participation in such programs: s 9(e)

80. The defendant is currently considered to be an untreated sexual offender. Although he commenced a community-based sex offender program in 2013 and attended 13 group sessions, those sessions did not include content aimed at developing insight into his offending pathway and/or risk factors. He failed to complete that program due to being returned to custody.

81. In 2019 the defendant engaged in some individual psychological interventions however they were not completed because he breached his parole by sexually reoffending and failing to comply with his reporting obligations. The defendant consented to a referral to a sex offender program whilst in custody in May 2016 however unfortunately his referral was not processed until June 2019. He was assessed as being suitable for the High Intensity Sex Offender Program (HISOP) (previously known as CUBIT), however by June 2019, insufficient custodial period remained on his sentence to participate.

82. The defendant was offered a treatment place in HISOP in April 2022 however he declined that position stating that he wished to remain in custody at Junee for employment opportunities. He was again offered a position in November 2022 but declined citing safety concerns in leaving his current housing placement and stating he did not feel he would gain any benefit from completing the program. He was again offered a position in January 2023 which he declined.

83. The defendant completed the EQUIPS foundation course in March 2022 with 100% attendance. It is a less intensive program aimed at more general offending. The defendant was a willing and active participant and engaged well with the course content, the facilitators and the other inmates.

The level of the respondent’s compliance with any obligations to which he is or has been subject under the Child Protection (Offenders Registration) Act 2000: s 9(3)(g)

84. The defendant has been convicted of failing to comply with reporting obligations under the Child Protection (Offender’s Registration) Act 2000 (NSW). His failure to comply with reporting obligations in 2013 was described by Wilson SC DCJ (as Her Honour then was) as “a very serious example of a crime of this nature”. The defendant has also recently been charged with further non-compliance offences to which he is yet to enter a plea.

Satisfaction to a high degree of probability that the respondent poses an unacceptable risk of committing another serious sex offence if not kept under an ESO: s 5B(d)

85. The concept of “unacceptable risk” is not defined in the HRO Act, however s 5D provides that the Court is not required to find that the relevant risk is more likely than not. It has been held that "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed).

86. In determining whether or not to make an ESO, I am mindful that the safety of the community must be the paramount consideration. I have had regard to the mandatory considerations in s 9(3) to which I have referred.

87. The evidence is unanimous that a significant degree of risk would arise if the respondent was to reside in the community without an ESO. In light of his history of sexual offending, admitted sexual attraction to female children, inability to form and/or maintain appropriate social relationships and connections within the community, commission of offences whilst subject to less protective measures those provided by an ESO and the fact he is considered an untreated offender lead overwhelmingly to the conclusion that the likelihood of sexual reoffending is high.

88. Having regard to all of the supporting material, I am satisfied it is appropriate to order that the defendant undergo a period of extended supervision pursuant to the HRO Act. I turn to the dispute between the parties as to the conditions of such an order and its duration.

Appropriate ESO Conditions

89. Mr Wilcox submitted on behalf of the defendant that the conditions attaching to the order should specifically address issues relevant to currently identified risk factors in relation to future sexual offending.

90. Section 11 of the HRO Act provides power for the Court to direct an offender to comply with such conditions as are considered appropriate. The section provides a non-exhaustive list of conditions that may be imposed. While the discretion is broad, it must be exercised in light of the legislative purpose of the HRO Act.

Condition 5: Schedule of Movements

91. Proposed condition 5 requires the defendant, if directed to provide a weekly plan (called a schedule of movements) to a supervising officer 3 days before it is due to start.

92. The defendant proposes the addition of a sunset clause to the following effect:

Such a direction may be given for a maximum continuous period of 6 months unless the defendant breaches the ESO or commits a criminal offence, in which case such a direction may be renewed for an additional maximum 6 month period or it is necessary to give such a direction with respect to a supervising officer’s immediate concerns about the defendant’s risk of committing a serious offence, in which case such a direction must not extend beyond a period of one month from the time it is given.

93. The State contends that Condition 5 in its original terms is necessary to facilitate a proactive risk assessment of the defendant’s proposed activities and to enable the supervising officer to limit exposure to high-risk environments and to permit monitoring through covert observation. Secondly, it would enable a comparison of the defendant’s schedule of movements with his actual movements (discernible for example through electronic monitoring). Thirdly, the State argues that it will assist rehabilitation because it will assist the defendant to develop a weekly routine which will minimise boredom and a tendency to stay home and go online.

94. Mr Wilcox contends that the suggested amendment recognises the defendant’s significant need for a high degree of supervision (thus an initial duration of 6 months) but permits a gradual lessening of the scheduling requirement after 6 months to assist the defendant’s rehabilitation with adequate safeguards to trigger a reintroduction of scheduling should nominated immediate concerns arise. Mr Wilcox further submits that the defendant’s pattern of offending demonstrates it involves initial conduct online such that other protective conditions, and in particular those contained within Part G of the schedule of conditions, would address the risks posed.

95. I am satisfied that Condition 5 as amended by the defendant strikes an appropriate balance between managing his risk of sexual reoffending and assisting his rehabilitation. The proposed sunset clause will not have operation until there has been a period of 6 continuous months without a breach (of any kind). If the defendant achieves that milestone, a supervising officer can reintroduce the scheduling condition if there are immediate concerns about the defendant’s risk of committing a serious offence. Other agreed protective conditions including electronic monitoring, place restrictions, access to the internet and other electronic communications address the State’s proffered concerns.

96. Condition 5 as amended is imposed.

Condition 18: Places selling or displaying sexually explicit material or providing sexual services or sexually explicit entertainment

97. Proposed Condition 18 requires that the defendant not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without prior approval from a supervising officer.

98. The defendant proposes that Condition 18 be amended as follows:

That the defendant must notify a supervising officer if he attends any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, if practicable before he attends the place or otherwise at his next interview with a supervising officer.

99. The State contends that Condition 18 does not impose a blanket prohibition regarding attendance at such places arguing prior approval is necessary because it enables a supervising officer to approve, limit and monitor activities that may be associated with increased sexual preoccupation which has been identified as a dynamic risk factor. It is further contended that if only a notification is required, a supervising officer cannot intervene and prevent attendance if the defendant’s level of sexual pre-occupation increases and he is spending increasing time at such locations noting the expert witnesses agreement that an increase in sexual preoccupation will likely lead to an increase in sexual offending.

100. Mr Wilcox contends the proposed amendment accommodates Mr Sheehan’s concern that if the defendant experiences sexual preoccupation, it would be preferable for him to have access to adult sex workers and that he should not be required to seek approval before doing so but rather be required to advise a supervising officer thereafter. Mr Wilcox further contends that agreed Condition 16 (the defendant must not frequent or visit any place or district specified by a supervising officer) is adequate to cover the locations addressed in Condition 18 should a concern arise.

101. I am satisfied that Condition 18 as amended by the defendant strikes an appropriate balance between managing the offender’s risk of sexual reoffending in relation to children and assisting his rehabilitation. The proposed amendment permits him to attend upon premises offering lawful services rather than being in the online environment in his home while maintaining a requirement that the defendant notify a supervising officer. Other agreed protective conditions including electronic monitoring and place restrictions address the State’s proffered concerns.

102. Condition 18 as amended is imposed.

Condition 22: Financial Affairs

103. Proposed Condition 22 requires that the defendant must provide any information relating to his financial affairs including income and expenditure if directed by a supervising officer. The State contends this would allow for the monitoring of the defendant’s finances for patterns indicating concerning internet activity, the purchase of additional electronic devices or engaging in grooming behaviours such as purchasing unsanctioned gifts.

104. Mr Wilcox contends that this condition is invasive and represents a substantial incursion on the respondent’s autonomy and is disconnected from any identified risk factor. Mr Wilcox further contends that this proposed condition would not cover cash transactions and if the defendant was purchasing services or items of concern online, other agreed protective conditions including electronic monitoring, reporting and search conditions are available to the State.

105. I am not satisfied Condition 22 as proposed by the State meets the defendant’s identified risk factors. The link between proposed Condition 18 and the defendant’s previous offending is remote and speculative when weighed against the intrusion of his privacy. Condition 22 is not imposed.

Duration of ESO

106. I have considered the expert evidence (which is broadly aligned) and the respective submissions as to the length of the ESO.

107. The State seeks that the order be for 4 years. It points to paedophilia being a lifelong affliction and the evidence indicating that the issues related to the defendant’s offending are chronic.

108. Mr Wilcox contends that a duration of 3 years is a sufficient period. He points to the evidence as to the willingness of the defendant to take anti-libidinal medication upon his release which he has never taken before, the fact the defendant has never had the benefit of the intensive supervision offered by an ESO (which it is hoped will assist his rehabilitation) and that the State can make a further application for a further extended supervision order if that is thought appropriate: s 10(3) of the HRO Act. Furthermore, a shorter term would afford a greater incentive to the defendant to approach his rehabilitation conscientiously.

109. The submissions by Mr Wilcox should be accepted. The State has a remedy available if rehabilitation has not progressed to a stage where the risk to the community is sufficiently mitigated within three years.

Proposed Orders

110. Accordingly, I make the following orders:

1. I revoke the Interim Supervision Order made by Justice Sweeney on 5 October 2023 as referred to in paragraph [2]; 

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

3. Pursuant to s 11 of the HRO Act, I direct that for the period of the extended supervision order, the defendant comply with the conditions set out in Schedule A to Order 1;

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

**********

State of New South Wales v Burke - Schedule of Conditions

Decision last updated: 16 February 2024