State of New South Wales v Carr (Final)

[2023] NSWSC 1552

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Carr (Final) [2023] NSWSC 1552

Hearing dates:

27 November 2023

Decision date:

15 December 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

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

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

(3)    The interim supervision order made by McNaughton J on 28 August 2023 is revoked from the date of this order.

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

Catchwords:

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

Legislation Cited:

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

Cases Cited:

State of New South Wales v Carr (Preliminary) [2023] NSWSC 1068

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Anthony Richard Carr (Defendant)

Representation:

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

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

File Number(s):

2023/206987

JUDGMENT

1. HIS HONOUR: By an amended summons filed in Court on 27 November 2023, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) for a period of 3 years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). An interim supervision order (ISO) and certain other preliminary orders were made by McNaughton J on 28 August 2023 pursuant to the original summons: State of New South Wales v Carr (Preliminary) [2023] NSWSC 1068.

2. The defendant accepts that the statutory preconditions for the making of an ESO are established and that it is open to the Court to be independently satisfied that the defendant poses an unacceptable risk of committing a serious offence, if not kept under supervision. However, the defendant submits that an ESO of a duration of 2 years, rather than 3 years, is appropriate and contests the necessity of some of the conditions that are proposed by the plaintiff.

The defendant’s background and criminal record

3. The defendant is presently aged 71. He has reported to forensic experts that in an otherwise unremarkable childhood, from the age of about 6 years, he was sexually assaulted by an older stepbrother for a period of about 2 years and 6 months. He left school having completed the equivalent of year 10 and commenced a mechanic’s apprenticeship. He enjoyed a solid employment history. In the early 1970s, he had a two-year relationship, followed by multiple short-term relationships. In 1991, he met his wife. They married in 1993.

The 1994-1995 offences

4. The defendant’s first criminal offences were committed between 27 November 1994 and 30 August 1995, when he was aged between 42 and 43 years. On 30 August 1995, he was arrested and charged with one count of performing an act of indecency on a child aged under 16 years outside Australia (the Commonwealth offence), one count of inciting a male person under the age of 16 years to commit an act of indecency on a female under the age of 16  years, three counts of performing an act of indecency on a child aged under 10 years and two counts of aggravated indecent assault of a child under 10 years. The circumstances of one of the latter two charges were that he was observed by a security guard in a department store to lead a 3-year-old child to a secluded location, lift her dress, pull down her underpants and touch her genitalia. The other aggravated indecent assault followed on his admission of having previously committed a similar offence against another child in a different department store.

5. The acts of indecency arose from videos that police seized from his home. In one video, taken by him in the Philippines in 1994, a girl aged about 5 years is seen to obey his instructions to allow him to film her genitalia, which gave rise to the Commonwealth offence. In another video taken by the defendant, in March 1995, three young children (a boy aged about 5, a girl aged about 6 to 8 and a girl aged 4 or 5) can be seen in parkland in the Bronte area. He filmed the genitals of one of the girls as he pulled down her pants and again when he prevailed upon the boy to pull her pants down, and the genital area of the other girl, moving her hand to one side as he did so.

6. While on remand awaiting sentence for those offences, the defendant was assaulted, resulting in serious injuries to his thigh, neck and carotid artery. He reported the assault and identified the perpetrators, obliging him to be held on protection thereafter. Following a successful severity appeal to the Court of Criminal Appeal, he received a total sentence of 7 years imprisonment, comprising a minimum term of imprisonment for 4 years and an additional term of 3 years, to commence on 31 August 1995, so that he qualified for release to parole on 30 August 1999. As a result of the offences, the defendant was placed on the Child Protection Register.

The 2008 offences

7. The defendant was released to parole on 30 August 1999. He and his wife had a child, about a year later. On 9 October 2008, when aged 56, the defendant was arrested and charged with two counts of indecency against a person under the age of 10. He entered pleas of guilty and on 12 June 2009 he received an overall sentence of 6 years, backdated to commence on the date of his arrest, with an effective non-parole period of 4 years, expiring on 8 October 2012, his release being subject to him participating in the CUBIT program.

8. The facts of the offences, briefly stated, were that on 3 October 2008, the defendant was minding two children of family friends, a girl aged 7 and a boy aged 4, while their mother was at work. He re-dressed the girl in a skirt, told her she was not to wear underpants, and touched her genitalia twice for about 3 to 5 minutes while she was playing in water. When sentencing the defendant, Williams DCJ said:

“[The defendant] said it was an opportunistic offence, although conceding he had been asked to baby-sit at 10pm the night before, and he should have refused but he did not because it would not look good. … although the circumstances leading to [the defendant] having access to the child were opportunistic, he had a long period of time in which not to place himself in the way of temptation, and his behaviour the following day had a degree of planning about it that suggests that his offending was not truly opportunistic, although I accept there was no grooming of the child.”

9. The defendant was not released to parole until 23 May 2013. He initially resided for four months in the Nunyara Community Offender Support Program Centre (COSP). The defendant and his wife separated in 2013, although they remain married.

The 2017 offences

10. On 25 April 2017, when aged 65, the defendant was arrested and charged with producing child abuse material, to which he ultimately pleaded guilty. The defendant had attended Anzac Day activities at the war memorial in Hyde Park. Using his smart phone, he captured images of a 9-year-old girl who was with her parents. He took successively zoomed-in photographs of her back, the last being only of her lower back and buttocks. He was sentenced in the Local Court to imprisonment for 7 months with a 3 month non-parole period and was released to parole 24 July 2017.

The 2020 offences

11. On 11 March 2020, when aged 68, the defendant was arrested and charged with common assault, producing child abuse material and intentionally carrying out a sexual act with a child aged under 10. A further two counts of common assault were taken into account on a Form 1. Whilst on remand, the defendant was again seriously assaulted. On 30 September 2020, he was sentenced in the Local Court. He successfully appealed the severity of the sentence to the District Court, which imposed an aggregate sentence of imprisonment of 3 years and 6 months, to date from his arrest and conclude on 10 September 2023. A non-parole period of 2 years and 7 months was imposed, to expire on 10 October 2022.

12. According to an agreed statement of facts, on the day of the defendant’s arrest, two children, aged 4 and 6, were playing in the front yard of a block of home units that was enclosed, save for a driveway. At about 5.30pm, the defendant, while riding a bicycle along the road, saw them. The events were captured on CCTV. He alighted from his bike and sat on the grass with the girls. He took sweets, biscuits and chocolate from a bag he had with him and offered them sweets. At one point, he grabbed the 6-year-old and pulled her onto his lap, holding her tight. This behaviour constituted the first count of assault.

13. He then asked the 4-year-old to sit on his lap. She stood up and moved to leave, but he held her body and pulled her back, which constituted one of the Form 1 assaults. He placed sweets inside her top and looked inside her clothing, “to see where it went”. The defendant pointed a Canon digital camera at her face and asked her to say “cheese”. He took three videos of the 4-year-old, using the camera. In a video lasting 1 minute and 3 seconds, he focussed the camera on her torso and groin area. He uses a finger to pull her shorts and underwear to one side. The video captures her genitalia for a moment before she covered her vagina with her hand. Another video, 1 minute 19 seconds, recorded her genitalia for approximately 20 seconds, as he engaged in play-talk with her. In the third video, which was 1 minute and 13 seconds in length, he again captures her genitalia as he used a finger to pull her shorts and underwear to one side.

14. The father of one of the girls noticed the defendant and called out, which alerted two residents who approached the defendant and saw him with his hand on the inside of her thigh, which was the second Form 1 assault. They held him until police arrived. The videos were downloaded from the camera.

15. In sentencing the defendant, Magistrate Stapleton said:

“I consider it an aggravating feature that this was a pre-planned exercise. I reject the explanation given by [the defendant]. It is clear from what was described in the CCTV footage that he was riding around on his bike and that he was ready [and] prepared for such an event with lollies and things of attraction to children and with a camera. He offers no explanation for why he would have a Canon Digital camera in his possession as compared to the way most people drive around these days with a camera, that is with their phone in their pocket. It seems to me that it is a completely rational inference which I draw that he was looking for victims on this day, and notwithstanding the fact that these two children were in their front yard inside the fence he approached them. That was the strength of his resolve.”

16. On 4 August 2022, the State Parole Authority refused the defendant’s release to parole at the earliest date, for the stated reason that he needed “to complete a program to address his offending behaviour of sex offending”. The defendant was released to parole on 3 August 2023 and accommodated at a COSP. On 8 August 2023, police made an application for a Child Protection Prohibition Order (CPPO) and an interim CPPO, which was granted, apparently in the defendant’s absence.

The 2023 charges

17. On 22 August 2023, that is, about three weeks after his release, the defendant was arrested and charged with contravening two prohibitions specified in the interim CPPO which were: that he not view, access or possess any images or videos of persons under the age of 18 years; and that he not access the internet for any unauthorised purpose. He was returned to custody. The first offence was alleged to have occurred on 13 August 2023 when he allegedly used his smartphone to access the eBay website in search of a drone that has a camera. The defendant has entered a plea of not guilty to that offence. The second is that on 22 August 2023, police approached the defendant at Eastgardens, where he was overlooking a small children’s play area, and searched his phone, finding photographs of his son when he was a child, with his childhood friends. In all, there were 38 photographs, 14 of which depicted children other than his son. He has pleaded guilty to that offence, which is set down for sentence on 12 August 2024. The other matter is set down for mention on the same date.

18. On 30 October 2023, the defendant was released on Supreme Court bail, conditional upon him residing at the Nunyara COSP. The ISO that was to have commenced on 10 September 2023, then commenced.

Disciplinary matters in custody

19. The defendant’s only disciplinary matter over his many years in custody was for possessing prohibited goods in January 2012. He has never been subject to urinalysis testing. He has a strong work history throughout his time in prison. His behaviour in prison has been described by Corrective services staff as “exemplary”.

The defendant’s community ties

20. According to a pre-release report dated 6 July 2022 that was prepared by a Senior Community Corrections Officer who spoke with the defendant’s wife, the defendant and his wife ceased to cohabit in 2013. According to the report’s author, his wife described “their marriage as one of friendship with no romantic intentions on her behalf”. The defendant maintains regular contact with both his wife and son. The officer recorded that the defendant had two adult male friends in the community, but one has a criminal record for “similar child-related offences”.

The relevant statutory provisions and principles

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

“Part 1A   Supervision and detention of high risk offenders

…

5B   Making of extended supervision orders—unacceptable risk

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

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

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

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

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

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

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

“4   Definitions

(1)   In this Act:

…

serious offence means—

(a)   a serious sex offence, or

(b)   a serious violence offence.

serious sex offence—see section 5 (1).

…

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

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

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

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

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

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

…

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

…

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

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

“5D   Determination of risk

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

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

26. Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence.

27. Consequent upon other orders made by McNaughton J at the time the current ISO was imposed, reports were furnished to the Court by Dr Sathish Dayalan, forensic psychiatrist, and by Dr Chelsey Dewson, forensic psychologist. Accordingly, there was compliance with the latter requirement set out in s 6(3)(b) of the Act.

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

“3   Objects of Act

(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

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

…

9   Determination of application for extended supervision order

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

(a)   by making an extended supervision order, or

(b)   by dismissing the application.

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

(2A)   (Repealed)

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

(a)   (Repealed)

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

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)   the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

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

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

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

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

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

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

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

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

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

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

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

29. Some of the matters identified in s 9(3) of the Act, such as the defendant’s criminal history and the views of sentencing courts (s 9(3)(h) and (h1)), have already been considered in this judgment.

Section 9(3)(c): a risk assessment report

30. A risk assessment report dated 8 February 2023 by Jonathan Mystakidis, who is a senior psychologist with the Serious Offenders Assessment Unit, was tendered into evidence by the plaintiff. The defendant declined to be interviewed by Mr Mystakidis. Mr Mystakidis noted that the defendant’s wife, although separated, remains supportive of him and maintains contact with him.

31. Mr Mystakidis observed that the defendant has previously been diagnosed as having a paraphilic disorder (unspecified) and presenting with symptoms of depression and trauma, related to his being assaulted in prison. In 2021, he was assessed by Justice Health as having a mild cognitive impairment, although apparently it was not causing him significant problems and his treating psychology team in the High Intensity Sex Offender Program (HISOP) did not detect a cognitive deficit.

32. Mr Mystakidis reviewed the defendant’s background and his criminal and treatment history. He noted that the defendant has expressed contrition for his offending behaviour from time to time, but overall:

“… evaluations of [the defendant’s] attitude over the course of his incarceration indicate that he has demonstrated difficulty accepting responsibility for his offences and continues to believe that he did not ‘harm’ his victims.”

33. Mr Mystakidis stated that the defendant’s approach to community supervision over the years had been “generally positive”, although I note that the report pre-dated the 2023 charges.

34. Mr Mystakidis reviewed past assessments of the defendant’s level of risk of sexually reoffending. An actuarial assessment of sexual recidivism using the STATIC-99R that was completed in 2021 scored him at 4, which was indicative of him having an “above average” risk of sexual reoffending. The Level of Service Inventory – Revised (LSI-R) was applied in July 2022, which assessed the defendant as being at a “low-medium” risk of reoffending. Mr Mystakidis reapplied the STATIC-99R and assessed the defendant as having a score of 5 which, while higher than the 2021 score, was still within the range of him having an “above average” risk of sexual reoffending. Mr Mystakidis assessed the defendant’s dynamic factors using the STABLE-2007, which he conceded was “difficult” since the defendant had not agreed to be interviewed. His score was 8, which suggested a “moderate density of criminogenic needs”.

35. Mr Mystakidis considered possible risk scenarios:

“A sexual offence, were it to occur, would most likely involve [the defendant] committing a contact sexual offence (i.e., sexual act) or noncontact sexual offence (i.e., filming) against a female, prepubescent victim. [The defendant] may approach a potential victim in the context of seeking shelter, or rest, and then groom the victim by offering them something of interest (e.g., sweets). There is the possibility of a child becoming a victim were [the defendant] to have ongoing contact with them (e.g., through friendship with the child parents). A sexual reoffence is likely to occur in the context of sexual preoccupation, deviant sexual fantasy, a lack of social supports and the subsequent personal experience of isolation, rejection and low self-esteem. Nevertheless, he appears to have pervasive deviant sexual thoughts and an affinity for child interaction, which might make him a risk to children outside of this scenario.”

Section 9(3)(b): a report by Dr Sathish Dayalan

36. Dr Sathish Dayalan, forensic psychiatrist, prepared a report dated 9 November 2023. He assessed Mr Carr on 27 October 2023 by an audio-visual link (AVL), when he was in custody, bail refused, on the 2023 charges.

37. Dr Dayalan diagnosed the defendant as having a “paedophilia-non-exclusive type, sexually attracted to females”, according to the criteria of the Diagnostic and Statistical Manual for Mental Disorders Version 5 (DSM-5). He did not diagnose him as having a psychotic, mood, anxiety or personality disorder.

38. As to Dr Dayalan’s assessment of the defendant’s level of risk, he referred to the STATIC-99R and the STABLE 2007, although it is not apparent whether he administered those tests or he relied upon the results obtained by Mr Mystakidis. The score for the former was 5, as it was when Mr Mystakidis applied the tool. Dr Dayalan concluded:

“[The defendant] presents with a sufficient number of static and dynamic risk factors for sexual recidivism to warrant concern that he poses a risk of committing a further serious sex offence.

The level of risk posed will fluctuate depending upon his circumstances. The external factors that would increase his level of risk will include accessibility to potential victims, psychosocial stresses, level of supervision and monitoring in the community and access to pornography.”

Section 9(3)(b): a report by Dr Chelsey Dewson

39. A report by Dr Chelsey Dewson, forensic psychologist, dated 13 November 2023, was tendered. She examined the defendant via AVL on 24 October 2023 while he was in custody. In her report, Dr Dewson canvassed extensively the defendant’s responses to her questioning concerning his childhood and general background.

40. Dr Dewson administered four tests to assess the defendant’s level of risk. His general recidivism was assessed with the Level of Services/Case Management Inventory (LS/CMI), which yielded a result of him having a moderate risk of general reoffending. She administered the STATIC-99R, on which the defendant again scored 5, which was indicative of an “above average” risk of sexual reoffending. On the Static 2002R, the defendant scored 7, which placed him on the “well above average” risk of sexual reoffending. Dr Dewson assessed the defendant’s dynamic risks using the Risk for Sexual Violence Protocol (RSVP). Overall, Dr Dewson concluded that the defendant had an “above average” risk of sexual reoffending.

41. As to risk scenarios, Dr Dewson stated:

“Concerningly, [the defendant’s] past offending was brazen, and both opportunistic and pre-planned in nature. As such, scenarios in which he could offend are plentiful and could occur in any environment in which children are present (for example, shopping centres, libraries, restaurants, parks, schools etc.). As such, the main difference between hypothetical risk scenarios is the intrusiveness of the offence itself. Given his history, the most likely scenario is that he offends against a female child (or children), by taking photographs/videos of their genitals, either clothed or unclothed. In a more serious scenario, [the defendant] may use greater physical coercion to offend and/or may use more intrusive sexual violence (for example, penetrative sexual violence). In a less serious scenario, he may access child abuse material on the internet or may take photographs of a victim(s) from a distance (in a similar fashion to the 2017 offence). [The defendant] appears primarily interested in pre-pubescent females, although he may not be deterred if males are involved and he self-reported to have an interest in older females (ages 13-14). Being in a committed relationship doesn’t appear to have been a protective factor in the past, nor has being subject to a Child Protection Order. Although it is hopeful that [the defendant] remains offence-free, given his offending history, any sexual violence in the future (noting the limits to my legal expertise) may meet the threshold of a ‘serious’ offence as defined by the Crimes (High-Risk Offenders) Act 2006.”

Section 9(3)(e): treatment programs

42. Upon his release in 1999, the defendant was obliged to receive counselling from the Forensic Psychology Services (FPS). His response was deemed to be “superficial”, displaying limited insight. He was reported to minimise the nature of his offences, struggle with victim empathy, show limited insight into his offending behaviour, and have difficulty identifying the attitudes and beliefs that facilitated his sexual offences. While in custody for the 2008 offences, he completed the HISOP program, which was previously known as the CUBIT program, which is a treatment program for sex offenders. Following his release to parole in 2013 and 2017, he was again required to attend upon FPS, and engaged satisfactorily in their sessions for 16 months from June 2013 and 13 months from September 2016. While serving his sentence for the 2017 offences, the defendant completed a 10-week Sex Offenders Redirection Training (SORT) program, although it is not a treatment program. In May 2022, the defendant completed the Real Understanding of Self-Help (RUSH) program. He was described as “appear[ing] challenged in response to group members feedback”, although he described his engagement in it as highly beneficial.

43. The defendant repeated the HISOP program between June 2022 and June 2023. The HISOP treatment report, dated 11 August 2023, concluded:

“Overall, during his time in the HISOP [the defendant] was an attentive group member and engaged during sessions. However, his participation seemed superficial, and it was unclear whether his reported motivation to participate in the program was genuine or based on a desire to present as motivated and participate in intervention so as to progress to release. [The defendant] appeared to make positive changes in his ability to identify emotions and communicate to others, but still requires significant assistance in developing these areas. He also greatly increased his understanding of psychological concepts however the depth of this knowledge is unclear given his difficulties elaborating or explaining these concepts. [The defendant] seemed aware of the areas of risk that led to his offending and how they have impacted his life however he still seems to minimise the significance of these areas of risk. [The defendant] often reported a desire to address these areas of risk post release, rather than whilst in HISOP. As such it is unclear how effective the strategies developed with [the defendant] will be in managing his risk post release and external management will be necessary to assist his transition into the community. In particular [the defendant’s] sexual attraction to children and his tendency to impression manage will likely require particular attention and management. [The defendant] will need to put significant effort into behaviour change and addressing unhelpful thoughts in these areas.”

Section 9(3)(d1) and (e2): a risk management report

44. A risk management report, dated 16 March 2023, was prepared by Louise Robinson, a senior Community Corrections officer with the Metropolitan ESO team. Ms Robinson noted that if the defendant is made subject to an ESO, he would be referred to FPS for one-on-one ongoing risk management sessions, to address risk factors that were identified in the risk assessment report. Ms Robinson also noted that the defendant has indicated his willingness to be managed pursuant to an ESO.

Consideration and determination

45. As noted, the defendant accepts that it is open to the Court to determine that the test at s 5B(d) of the Act is satisfied. I am so satisfied. It is particularly concerning that the defendant was charged with breaches of the conditions of the interim CPPO about three weeks after his release back into the community and, while it did not constitute an offence, he was seen by police to be in a shopping centre standing in a position that overlooked a children’s play area. That is a matter for concern in view of the risk scenarios contemplated by Dr Dayalan and Dr Dewson. A refusal of an ISO in the exercise of my discretion has not been sought and, in any event, would be inappropriate, in view of the level of risk of sexual reoffending that is posed by the defendant.

The duration of the ESO

46. Dr Dayalan considered that an ESO for a period of three years was “reasonable” and Dr Dewson recommended an ESO for the same period. The defendant submitted that in view of the defendant’s age of 71 years, a length of 2 years is appropriate, since there is a real prospect that his level of risk will diminish over that period.

47. I agree with the opinions of Drs Dayalan and Dewson. It is of critical importance that the defendant not be constrained by an ESO longer than necessary, but in my view, in spite of the defendant’s exemplary record of behaviour in prison and participation in multiple treatment programs over a period of years, his criminal behaviour has persisted. He appears to retain a behavioural disposition to placing himself in situations where he may have contact with children, which is concerning. At this stage, there is no sign of awareness and acceptance on the part of the defendant that this is inappropriate behaviour, or that it is likely to abate in the short term. A relatively lengthy period of supervision, that is, for a period of three years, is appropriate.

Conditions to the ESO

48. The defendant disputes certain of the proposed conditions to the ESO. He seeks the inclusion of a presumptively acceptable residence for him to live as his wife’s residence, despite there being no such arrangement agreed to by his wife at this point. The defendant hopes to secure her agreement in the future. His adult son, who also lives in the residence, is said to be accepting of the proposition, although there is no evidence before the Court of the son’s position. The amendment proposed by the defendant is opposed by the plaintiff, on the basis that the defendant’s wife has demonstrated in the past an inappropriately benign view of the defendant’s criminal behaviour. I also note that on the bail application in relation to the charge to which the defendant is awaiting sentence, his wife provided a letter to the Court in which she took responsibility for providing him the camera with the photographs of children on it, explaining they were of friends of their son and she did not realise that it breached the interim CPPO.

49. There is no practical benefit in providing the condition sought by the defendant and I decline the proposed amendment. It is open to the Departmental Supervising Officer (the DSO) to approve the address of the defendant’s wife if satisfied it is appropriate.

50. The defendant challenged the necessity of the DSO having access to his financial records. He conceded that he used his funds to commit the Commonwealth offence, but submitted that he had not recently misused his funds. I decline this request. I note the defendant’s use of cameras, which are an expensive item, in committing offences against children. Access by the DSO to the defendant’s financial records has the capacity to detect purchases of items that may be used by him for a criminal purpose.

51. The defendant sought an amendment of a condition that required him to obtain approval prior to joining clubs. However, I take judicial notice of the fact that many clubs, such as sporting clubs, have family activities that involve children. I am of the opinion that prior approval to join a club is necessary.

52. The defendant disputed the need for a condition that prohibits him from “collecting” images of persons who appear to be under the age of 18 years. His concern is that he may unwittingly breach that rule by having in his possession images in magazines and the like. However, I am satisfied that a DSO can appropriately exercise their discretion to differentiate between such a scenario and the defendant obtaining and retaining images of children for no apparent purpose. That proposed amendment is declined.

Orders

53. I make the following orders:

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

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

3. The interim supervision order made by McNaughton J on 28 August 2023 is revoked from the date of this order.

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

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Schedule of Conditions of Supervision - Carr (127031, pdf)

Amendments

22 December 2023 - Typographical error corrected in Schedule

Decision last updated: 22 December 2023