State of New South Wales v Dillon (Final)

[2018] NSWSC 1626

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Dillon (Final) [2018] NSWSC 1626
Hearing dates:	10 August 2018
Date of orders:	26 October 2018
Decision date:	26 October 2018
Jurisdiction:	Common Law
Before:	Walton J
Decision:	In order to facilitate the disposition of the matter the State shall file and serve short minutes of order, reflecting this judgment, within 7 days of the publication of this judgment. The defendant shall either confirm the order proposed by the State or submit an alternative form of order within 14 days of the publication of this judgment. The Court will then make orders administratively in Chambers.
Catchwords:	CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offence –application for a further extended supervision order – whether the defendant is a supervised offender –whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – directions
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (High Risk Offenders) Amendment Act 2017 (NSW)
Cases Cited:	Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Ali [2010] NSWSC 1045 State of New South Wales v Amohanga [2015] NSWSC 875 State of New South Wales v Banks [2016] NSWSC 926 State of New South Wales v Brookes (Final) [2017] NSWSC 215 State of New South Wales v Bugmy [2017] NSWSC 855 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Conway [2011] NSWSC 925 State of New South Wales v Darrego [2011] NSWSC 1449 State of New South Wales v Dillon [2018] NSWSC 780 State of New South Wales v Fernando [2016] NSWSC 1665 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 The State of New South Wales v Dillon [2016] NSWSC 256 Wilde v State of New South Wales [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) James Gilbert Scott Dillon (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) T Edwards (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/98480

Judgment

1. HIS HONOUR: By a further amended summons filed in Court on 10 August 2018 (“the application”), the State of New South Wales (“the State”) sought an order that James Gilbert Scott Dillon (“the defendant”) be subject to a further extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the amended summons which is attached to this judgment as “Annexure A”.

BACKGROUND

2. Prior to turning to a consideration of the relevant legal principles, it is necessary to set out the relevant background to the application and, in particular, the circumstances of the extended supervision order that expired on 16 August 2018.

The 2014 Final Hearing

3. On 25 August 2014, the Court made an order pursuant to s 9(1)(a) of the Act for an extended supervision order in respect of the defendant for a term of three years from that same date (“the 2014 extended supervision order”). The Court further ordered that for the period of the extended supervision order, pursuant to s 11 of the Act, the defendant comply with the conditions set out in the Schedule annexed to the decision: see The State of New South Wales v Dillon [2016] NSWSC 256 (“Dillon No 1”) (It should be noted, Hidden J made orders on 25 August 2014 and published his reasons for decision on 15 March 2016). I will return to the details of the defendant’s past offending momentarily.

4. The 2014 extended supervision order expired on 16 August 2018. The expiry date extended beyond 3 years as a result of four separate occasions of the defendant failing to comply with a condition or conditions of the 2014 extended supervision order followed by convictions and periods of time spent in custody with respect to the same (see s 10(1A)( and (2) of the Act). A consideration of these breaches will occur in the context of the parties’ submissions later in this judgment.

5. The defendant has been out of custody since 16 February 2018.

The 2018 Preliminary Hearing

6. By a summons filed on 28 March 2018 (“the summons”), the State sought the following relief:

1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

a. Appointing two qualified psychiatrists to conduct separate psychiatric 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;

b. Directing the defendant to attend those examinations.

2. An order:

a. pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 16 August 2018 (“the interim supervision order”);

b. pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days and be renewed every 28 days for a maximum period of 3 months or until the proceedings are finally determined, whichever is earlier.

c. pursuant to s 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.

3. An order:

a. pursuant to s 5B and s 9(1)(a) of the Act that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of 3 years from the date of the order; and

b. pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this Summons.

7. The summons was listed for preliminary hearing before Schmidt J on 28 May 2018. During the course of the hearing, consent orders were put before the Court. By consent, the parties sought:

1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

(a) Appointing two qualified psychiatrists to be agreed by the parties to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 11 July 2018;

(b) Directing the defendant to attend those examinations.

2. The Plaintiff is to file and serve affidavits and submissions for final hearing by 31 July 2018.

3. The Defendant is to notify the Plaintiff if any witnesses are required for final hearing by 3 August 2018.

4. The Defendant is to file and serve any affidavits and submissions for the final hearing by 8 August 2018.

5. The matter is listed for final hearing on 10 August 2018 at 12pm.

6. Liberty to relist on 1 day's notice.

7. An order restricting access to the Court's file in this proceeding such that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

8. The parties to have liberty to approach in the event that a second available psychiatrist cannot be located, that liberty to be exercised within 48 hours.

8. In considering the proposed orders, her Honour noted the following concessions by the defendant (State of New South Wales v Dillon [2018] NSWSC 780 (“Dillon No 2”) at [6]):

[6] In the submissions prepared for Mr Dillon various concessions are made as to relevant matters, including that the Crimes (High Risk Offenders) Act applies to Mr Dillon; that he is an “offender” as defined s 4A; and a “supervised offender” within s 5I(2)(b), and that for the purpose of a preliminary hearing, on the material relied on by the State, he poses an unacceptable risk of committing another serious offence, if not kept under supervision.

9. Schmidt J delivered judgment that same day and orders were made in terms of the proposed consent orders (see Dillon No 2 at [7]).

The 2018 Final Hearing

10. At the final hearing on 10 August 2018 before the Court as presently constituted, the State sought and was granted leave to further amend the amended summons, with respect to particular conditions set out in the Schedule to the amended summons (I will return to this issue within the discussion of conditions later in this judgment).

11. An interim supervision order was sought, by consent, on the same conditions contained with the Schedule attached to the further amended summons pursuant to ss 10A and 10C(1) of the Act for a period of 28 days effective from 16 August 2018. The order was made in Chambers on 15 August 2018.

12. That interim supervision order was renewed on the same conditions on two occasions pursuant to s 10C(2) of the Act for a period of 28 days from 13 September and 11 October 2018, respectively. Those orders were made in Chambers on 11 September and 8 October 2018, respectively.

13. At this juncture I now turn to the offences relevant to the application.

The Offences

14. The sexual offences relevant to the grant of the 2014 extended supervision order were set out succinctly by Hidden J in Dillon No 1 at [5]-[9] (“the offences”). I extract his Honour’s summary:

[5] On 9 October 2003, he was sentenced at Wollongong District Court for a number of sexual offences arising from two separate incidents to an aggregate term of imprisonment for 9 years with a non-parole period of 7 years, dating from 28 November 2002. The incidents giving rise to those offences occurred in 2001 and 2003.

[6] On 6 December 2001, he had been a visitor at the family home of a 6 year old girl. While the girl’s parents were in a nearby room, he digitally penetrated the girl’s vagina, causing bleeding. He reported that he had been sexually aroused by her sitting on his lap. For this he was charged with sexual intercourse with a child under the age of 10 years, pursuant to s 66A of the Crimes Act 1900.

[7] On 27 November 2002, he committed a series of offences against a 15 year old girl at Bellambi. He pointed a black replica pistol at her, and threatened to kill her if she did not go with him. He took her to an area with shrubs and tried to unzip her top. He began to kiss her neck but she escaped. As she ran away, he called out to her that he knew where she lived and was going to kill her.

[8] Police came to the area and arrested him, after an altercation during which he was armed with a knife. Nearby police found the black replica pistol, as well as a backpack which contained items of female clothing, including women’s and children’s underwear, pornographic pictures of women, a set of bolt cutters, a wheel brace and a face mask. At the time of his arrest he admitted that he was wearing a number of pairs of women’s underwear.

[9] This incident gave rise to charges of detaining a person with intent to obtain an advantage, namely sexual gratification, assault, and using a prohibited weapon without authorisation. At the time of the 2001 offence, he was on parole for armed robbery. At the time of the 2003 offences, he was on bail for the first offence and, indeed, had failed to appear in respect of it.

15. On 9 October 2003, the defendant was convicted and sentenced in relation to the incidents that occurred on 6 December 2001 and 27 November 2002, respectively. Justice Phelan of Wollongong District Court sentenced the defendant as follows:

1. sexual intercourse with person under 10 years – 3 years imprisonment;

2. detain person with intent to obtain advantage – 6 years imprisonment with a non-parole period of 4 years (cumulative to sequence 1);

3. possession of a prohibited weapon – 2 years imprisonment (concurrent with sequence 2); and

4. common assault – 6 months imprisonment (concurrent with sequence 2).

16. Further details as to the defendant’s criminal history and patterns of offending behaviour will considered below as part of the Court’s discretionary considerations under s 9(3).

STATUTORY FRAMEWORK AND LEGAL PRINCIPLES

Objects of the Act

17. The primary object of the Act, as stated in s 3(1) is, relevantly for the purposes of these proceedings, “to provide for the extended supervision … of high risk sex offenders … so as to ensure the safety and protection of the community”. Section 3(2) provides that another object of the Act is to encourage such offenders to undertake rehabilitation.

18. The word “ensure”, which is referred to in the object of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

Application of the Act

19. The State may apply for an extended supervision order against “an offender” pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act.

Legal Principles

20. For the purpose of this judgment I will adopt and apply the principles set out in State of New South Wales v TT (Preliminary) [2017] NSWSC 1797(“TT”) at [8]-[66], without repetition, save to the extent to particular passages that might assist in elucidating the resolution of particular issues in the judgement. Neither party raised any objection to the principles in TT being applied in this matter. (See also, State of New South Wales v French (Final) [2017] NSWSC 1475 (“French”) at [43]-[53], which was cited and applied in TT).

Requirements with respect to application

21. The application satisfies the requirements of s 6 of the Act for the following reasons:

1. It identified that it is an application for an extended supervision order against an offender. Further, the defendant conceded that the application was made within 9 months of the expiration of the 2014 extended supervision order, having been originally brought by the summons filed 28 March 2018 (a date within the last 6 months of the defendant's current supervision), in accordance with s 6(1).

2. It was supported by documentation that addresses the matters in s 9(3) of the Act (s 6(3)(a)); and

3. The accompanying report of, inter alia, Dr Andrew Ellis, forensic psychiatrist, dated 29 July 2018 included a report that assessed the likelihood of the defendant committing a serious offence, (s 6(3)(b)).

22. Further, I note the application also indicated, in the Schedule to the further amended summons, the kinds of conditions that are considered appropriate for inclusion under s 11 in the event that the extended supervision order is made (s 6(4) of the Act).

Defendant’s Status as a “Supervised Offender”

23. The State may only apply for an extended supervision order where at the time of the filing of the application the offender is a “supervised offender” for the purposes of s 5I of the Act.

24. Section 5I of the Act is extracted below:

5I Application for extended supervision order

(1) An application for an extended supervision order may be made only in respect of a supervised offender.

(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

(a) while serving a sentence of imprisonment:

(i) for a serious offence, or

(ii) for an offence of a sexual nature, or

(iii) for an offence under section 12, or

(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or

(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

(3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.

25. The defendant, in this respect, made the following concessions, albeit by reference to provisions of the Crimes (High Risk Offenders) Act prior to its amendment by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) (“the Amendment Act”)), namely:

1. the defendant is a “sexual offender” as a consequence of his sexual offending against a child in 2001 (for which he was convicted) (as previously defined in s 4 of the Act); and

2. the defendant is a “supervised sexual offender” as a consequence of being subject to the 2014 extended supervision order (as previously defined in s 5I of the Act).

26. In light of the above submissions, notwithstanding the defendant’s reference to former provisions of the Act, there was no dispute that the defendant was a “supervised offender” for the purposes of s 5I of the Act. Nevertheless, for completeness, I observe that the requirements for an application under s 5I, in my view, have been met for the following reasons.

27. The first element of the definition of a “supervised offender” under s 5I(2)( is that the defendant must be an “offender”. By s 4A of the Act, an offender means a person over 18 years who has at any time been sentenced, inter alia, to imprisonment following his/her conviction for a “serious offence”. For the purposes of these proceedings a “serious offence” is defined in s 4 of the Act as meaning a “serious sex offence”.

28. It may also be noted, as observed in TT at [17], the Amendment Act had the effect of incorporating in a single provision the conditions for the making of an application vis-à-vis a supervised offender with respect to what was formerly a “supervised sex offender” and a “supervised violent offender”.

29. In the context of these proceedings, the State submitted the defendant had been convicted of a “serious sex offence” (namely, sexual intercourse with a child under 10) and is therefore an “offender” within the meaning of the Act. In 2001, at the time of the offence, the Crimes Act 1900 (NSW) provided for a maximum penalty of 20 years imprisonment for sexual intercourse with a child under 10 (see s 66A). Although no indictment was provided pursuant to s 25 requests, the State submitted, it is reasonable to conclude that s 66A offence was charged when regard is had to the sentencing remarks of Phelan DCJ’s in 2003. It should also be noted “sexual intercourse” includes digital penetration: s 61H(1)(a) of the Crimes Act. For completeness, as to the offence against the 15 year old girl, the State submitted that offence does not appear to meet the requirements of s 5(1)(b) of the Act (noting, in that respect, “sexual gratification” is not a defined offence under Div 10 of the Crimes Act).

30. I agree with the above contention of the State.

31. Further, as the defendant was subject to the 2014 extended supervision order at the time of the application, the State correctly submitted the defendant was thus a “supervised offender” within the meaning of s 5I(2)(b) the Act and that the requirements for an application under s 5I were satisfied (as required by s 5B).

Principles Regarding s 5B

32. Section 5B of the Act empowers the Court to make orders for an extended supervision order. It is extracted below:

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.

33. The relevant principles regarding s 5B were dealt with in TT, in the light of the Amendment Act, at [55]-[60] and are extracted in full:

[55] Some immediate observations may be made in consequence of those amendments. First, the provision now contains reference to three additional requirements as expressed in s 5B(a), (b) and (c) although many of those provisions correspond to requirements existing elsewhere under the former Act (as well as the provisions of s 5B(2) of the former Act so far as it was necessary to demonstrate that the offender was a “sex offender”). The earlier discussion in this judgment demonstrates that those conditions have been met, in this matter.

[56] Secondly, whilst the title to Pt 1A of the Act continues to refer to “the supervision and detention of high risk offenders”, the phrase “high risk sex offender” no longer appears in the provision. Nor does the definition of the same. However, the second element to the former definition of a high risk sex offender is now reposed in identical terms in the provisions of s 5B(d).

[57] It was not submitted by either party that the amendment had the effect of altering the principles which have hitherto been applied to this Court in determining whether an offender falls within that second element of the definition of a high risk offender under the former Act. I consider that position is correct.

[58] Thirdly, the provisions of s 5B(1) which prescribe that an offender can only be the subject of a “high risk sex offender” extended supervision order “if and only if” the offender is a high risk sex offender has been replaced such that the provision has now introduced the words, “The Supreme Court may make an order for the supervision in the community of a person (extended supervision order) if”.

[59] The word “if” in the preamble to s 5B would suggest, at the least, that the satisfaction of the requirement of s 5B would be required before consideration was given to whether an extended supervision order may be made. The parties submitted, with some force, in conformity with earlier authority, that the requirements of s 5B remained threshold conditions (see the discussion in State of New South Wales v French (Final) [2017] NSWSC 1475 (“French”) at [42]. The implications of amendments to former s 5B(1), however, await further consideration in a matter where there is full argument on this question.

[60] Fourthly, the former provisions found in s 5B(3) are now substantially to be found in s 5D of the Act. The plaintiff made submissions as to the principles which should be applied in determining whether the defendant was a high risk offender. Those submissions were accepted by the defendant for the purposes of the determination of the interim supervision order application.

34. The judgment then adopted the discussion of relevant principles, with respect to whether the defendant was a “high risk sex offender”, of this Court in French at [40]-[41] as follows:

Sections 5B(1) and (2): High Risk Sex Offender

[40] As to the Courts making a determination under s 5B:

(1) The Act provides, as stated in its Long Title, for the extended supervision or continued detention of high risk offenders. The purpose of the legislation, as the primary object of the legislation states, is to "ensure the safety and protection of the community". The evaluation of whether an offender is a "high risk violent [or sex] offender" has to be undertaken in that context. The further context on which that evaluation is undertaken is provided by s 5E(2) (s 5B(2) for a sex offender) itself, namely, whether the offender poses an "unacceptable risk" of committing a serious violence (or sex) offence, when regard is had to the safety and protection of the community, unless the person is kept under supervision, either by way of making an extended supervision order or an extended detention order: Lynn at [55].

(2) The proper approach to determining whether a person is a high risk sex offender within the meaning of s 5B(2) is to give the words of s 5B(2) “their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act”: Lynn at [58].

(3) The nature of the risk posed by an offender is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The “criterion of unacceptability depends upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders”: Lynn at [126] (per Basten JA).

(4) In State of NSW v Kamm (Final) [2016] NSWSC 1 (“Kamm”), Harrison J found at [41]:

[41] First, it is preferable to avoid putting a gloss on the words of the statute which require the Court to consider matters such as the nature and likelihood of the relevant risk and form a judgment, based on the evidence, as to whether Mr Kamm poses an unacceptable risk of committing a further serious sex offence. The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.

(5) “The concept of ‘risk’ clearly involves a risk to the community; although the qualifier ‘unacceptable’ could be read in an extended sense as meaning deemed unacceptable by the Court. It is still the composite phrase which must be understood as referring to a risk to the community”: Lynn at [127] (per Basten JA).

(6)The precise parameter, standard or the norm against which the determination under s 5B(2) must be made is not immediately evident from the text of the provision. A determination as to whether something is unacceptable is an evaluative task and evaluative determinations require a context in which they are to be made: Lynn at [51] (per Beazley J). The required state of satisfaction in s 5B(2) requires the exercise of a discretionary judgment: Lynn at [82] (per Basten JA).

(7) As to the expression “high degree of probability”, in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal (Mason P, Giles and Hodgson JJA) observed that:

[21] The expression “a high degree of probability” indicates something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely” as explained in TSL.

(8) The position is further clarified by the terms of s 5B(3) which provide the Court "is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence".

(9) The Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test, even if the likelihood of them committing a further serious offence is determined to be low: Kamm at [43] (per Harrison J).

(10)The requisite finding under s 5B(2) may be made, in an appropriate case involving a single serious sex offence. In Kamm, Harrison J observed (at [44]):

[44] Finally, while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.

(11) The impact of an order on the offender is not a factor in assessing unacceptable risk which focuses rather on the assessment of factors relevant to the content of the risk itself: Lynn at [137] (per Basten JA), Attorney-General of NSW v McGuire [2016] NSWSC 158 at [43] (per Rothman J). Further, the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not relevant to the determination of whether a person poses an "unacceptable risk" for the purposes of s 5B(2) (Lynn at [44], [55]-[58], [128], [148]).

[41] Whilst it appears that the Court is not mandated to consider all of the matters referred to in s 9(3) in determining whether or not it is satisfied as to the unacceptable risk test under s 5B(2), those matters should nevertheless inform the application of the test: Kamm at [42] and State of New South Wales v Fisk [2013] NSWSC 364 (“Fisk”) at [22] (per Beech-Jones J).

35. Once the discretionary power to make an order has been enlivened pursuant to s 5B, s 9(3) sets out a non-exclusive list of mandatory matters the Court must have regard to when making its determination and in exercising its discretion. This may include the fact that the proposed order will place constraints on the individual's liberty and privacy (Lynn at [48], [131] and [149]).

36. Acts of an offender which have been charged but have not resulted in conviction or tested at trial (and acts which have not been charged) may not properly be considered within the terms of "criminal history" within s 9(3)(h). However, evidence of those acts might be relevant when the Court considers the matters identified in s 9(3)(a) (the safety of the community) and s 9(3)(i) insofar as there is any information available concerning the likelihood of the offender committing offences of a serious nature in the future: Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27] and [124] (per Adamson J).

Principles Regarding the Making of an Extended Supervision Order

37. As to the general principles in the making of the extended supervision orders I also refer to the judgment in French at [43]-[46].

Principles Regarding the Imposition of Conditions

38. The principles regarding the making of conditions were also discussed in French at [47]-[53], as follows:

[47] Section 11 of the Act provides that an extended supervision order may direct an offender to comply with such conditions as the Court considers appropriate, with the provision setting out a number of potential non-exclusive directions.

[48] In relation to the imposition of conditions in the context of the making of an extended supervision order, the Court in State of NSW v Ali [2010] NSWSC 1045 (per Johnson J) stated (at [88]):

[88] In approaching the question of conditions, I bear in mind what was said in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], that the imposition of conditions which are considered appropriate involves the striking of a balance between relevant considerations, so as to provide an outcome which is fit and proper. I bear in mind, as well, that the imposition of conditions under this Act creates a statutory offence if conditions are breached. The consequence of the ordering of a condition emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place.

[Emphasis added.]

[49] That approach was approved by the Court of Appeal in Lynn (at [141]).

[50] Such conditions may impose constraint or alternatively impose positive obligations. In Tillman, the Court of Appeal observed (at [10]):

[10] … A supervision order, as the name implies, involves no detention but permits a variety of conditions "as the Supreme Court considers appropriate", but including those specified in s 11. Those conditions can impose constraint as well as positive obligations. Most from their subject matter, appear directed to the capacity to supervise such a person. However they can extend to ordering mandatory participation in treatment and rehabilitation programs.

[Original emphasis.]

[51] The Court of Appeal in Wilde v State of NSW [2015] NSWCA 28 (“Wilde”) has recently considered the issue as to the "correct test" to be applied in relation to the imposition of conditions. The Court unanimously stated:

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under 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… [Emphasis added.]

[52] In that case, the Court of Appeal allowed as "appropriate" conditions in respect to drugs and alcohol, and association with an Outlaw Motorcycle Gang (OMCG), when neither of these issues related to the offender's past offending: Wilde at [57]. The Court of Appeal observed, that it was within the Court's discretion to consider the appropriate conditions to be imposed, in particular, in relation to drugs and alcohol, "as a means of controlling possible risk factors to sexual re-offending behaviour". In finding this, the Court had particular regard to findings by other courts of the general disinhibiting effects of alcohol: Wilde at [62]-[68].

[53] In keeping with this approach, this Court has also imposed particular conditions relating to employment, education and/or participation in personal development programs and finances, as follows:

(1) In State of NSW v Amohanga [2015] NSWSC 875 at [52], Schmidt J observed: "the dignity, occupation, income and other benefits which employment so obviously provide [an offender], means that the cost of subjecting himself to the requirements which employment carried with it, is one which he must bear".

(2) In State of NSW v Fernando [2016] NSWSC 1665 (“Fernando”) at [120], Adamson J observed “it is reasonable to envisage that circumstances might arise where a DSO considers that the defendant ought engage in such activities and the defendant is not prepared to do so without a direction”. Her Honour also observed that such conditions can have the effect of mitigating or “diminish[ing]” the risk of “lapsing into drug or alcohol abuse”. In Fernando that abuse was shown to be a common precursor to the defendant’s offending behaviour. The condition, requiring the defendant to comply with a direction to, inter alia, undertake employment, was allowed as the State had established a “sufficiently close connection between the condition and the risk” the defendant posed. (Cf State of New South Wales v Banks [2016] NSWSC 926 at [68(d)] (Rothman J)).

(3) In Fernando, the Court also accepted various conditions that related to an offender's finances, including the disclosure to financial status to the DSO, on the basis of the connection between offending conduct and disordered life (including financial disorder) (at [121]-[126] per Adamson J).

39. It may be noted that s 12 of the Act provides that a person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence.

FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 9(3)

Evidence before the Court

40. The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included, inter alia, the following:

1. reports and records produced by Corrective Services NSW (“CSNSW”);

2. two expert reports from court appointed forensic psychiatrists: Dr Samson F Roberts (dated 3 July 2018) and Dr Ellis (dated 29 July 2018); and

3. a Risk Assessment Report (dated 13 November 2017) produced by Mr Samuel Ardasinski, Senior Specialist Psychologist with the Serious Offenders Assessment Unit of CSNSW, which was annexed to his affidavit sworn 30 July 2018.

41. The State also relied upon the following evidence by affidavit:

1. Mr Christopher Butler, solicitor for the Crown Solicitor’s Office, affirmed 28 March (with Exhibit CB-1 vol 1 & 2) and 11 May 2018, respectively;

2. Ms Angela Rybak, Senior Electronic Monitoring Officer with the External and Electronic Monitoring Group at CSNSW, sworn 26 July 2018; and

3. Ms Janelle Farroway, High Risk Offender Application and Operational Governance Officer of the Extended Supervision Order Team at CSNSW, affirmed 31 July 2018.

42. The defendant relied upon two affidavits, which were admitted into evidence without objection:

1. Mr Andreas Aegler, Alcohol and Drug Transition Worker at the Community Restorative Centre (“the CRC”), affirmed 10 August 2018; and

2. Ms Lara Samway, Transition Worker (caseworker) at the CRC, affirmed 10 August 2018.

43. During the course of proceedings, only Dr Ellis, Mr Ardasinski and Ms Farroway were required for cross-examination.

Background Matters

44. The defendant is a 50 year old man who was born on 9 February 1968.

45. He has five adult children, aged between 24 and some point in their 30s, from three different mothers. He is not in contact with any of them. He currently lives in a boarding house in Croydon with seven other residents, five men and two women. He has been living there the past six months and prior to that spent two weeks at the Community Offender Support Program (“COSP”) CSNSW hostel. He has an exemption from job searching as he was awaiting an operation for gallstones and a hernia (the defendant’s status, in that respect, appeared unchanged at the time of the final hearing). He takes salbutamol (asthma medication) on an as needed basis.

46. He is subject to a GPS monitor, a weekly schedule, drug testing and attends a weekly CSNSW psychology group. He attends Alcoholics Anonymous five nights every week and has a sponsor. He sees two professional drug and alcohol workers from the Exodus Foundation and the CRC.

Criminal Offending

47. The defendant’s criminal history consists of an extensive history of non-sexual criminality, with multiple convictions for property theft, motor vehicle offences, interpersonal violence, escape custody, armed robbery and other offences dating back to when he was 13 years old. Details of the defendant's criminal history are recorded in the following documents:

1. Criminal History - Bail Report document;

2. Inmate Profile document; and

3. Conviction, Sentences and Appeals document.

Sexual offending

48. The defendant’s only sexual offence convictions relate to the offences which occurred in 2001 and 2002 against two female children aged 6 and 15, respectively (as discussed above). He has not committed any further sexual offending.(.

Not Proven Offences

49. In support of the application, the State also relied upon evidence of two offences dating back to 1990 and 1996, respectively, that did not result in a conviction or were otherwise “not proven”.

50. The circumstances of the alleged offences were as follows:

1. In 1990, the defendant was charged with one count of indecent assault of a female under 16 years. The allegation involved the touching of his 10 year old niece on the chest and groin on the outside of her clothing. He denied the allegation in a police interview. The defendant was later found not guilty by verdict at Wollongong District Court on 25 October 1991.

2. On 27 October 1996, the defendant was charged with one count of aggravated indecent assault and one count of assault. The allegation was that the defendant had approached a 17 year old girl on a street with a knife and threatened to cut her head if she did not comply. He was alleged to have made her take him to her home, where he rubbed his clothed groin against her similarly clothed groin before she managed to escape. However, the charges were dismissed on 23 April 1997.

51. The State relied on its preliminary written submissions with respect to the relevance of the two “not proven offences”:

7. As to these two matters, authority exists for the proposition that a charged crime which is withdrawn (or even where an accused is acquitted) may still be admissible in any proceedings under the Act so far as statistical risk assessment issues are concerned: see State of New South Wales v Thomas [2010] NSWSC 677 per Buddin J at [39], Justice Davies in State of New South Wales v Conway [2011] NSWSC 976 at [27]-[39] considered the decision in Thomas and found that uncharged acts in Conway (which were admitted by the defendant), would not fall for consideration under the criminal history provision in s. 9(3)(h), but may be relevant under the former ss. 9(3)(a) (safety of the community) and 9(3)(i) (any other information as to the likelihood that the offender will in future commit offences of a sexual nature). Subsequent decisions have applied this approach to withdrawn charges and charges not resulting in a finding of guilt.

8. Relying on these authorities, the plaintiff submits that charged but dismissed allegations of sexual misconduct could similarly be taken into account by the Court at least as a relevant consideration in relation to risk assessment via s. 9(3)(d), and also ss. 9(2) (safety of the community) and 9(3)(i), but could not be relied on under s. 9(3)(h).

52. Mr Ardasinski also observed that both “charges” (in 1990 and 1996, respectively) were “seen to be of some significance during his previous [risk] assessments” by Mr Patrick Sheehan, Senior Specialist Psychologist, in reports dated 19 August 2011 and 5 December 2013, respectively (both reports were included within Exhibit CB-1 to the affidavit of Mr Butler).

53. The Court is not in a position to make a finding of fact in relation to the unproven allegations against the defendant. That evidence may only establish two allegations of indecent assault were made, with respect to two young females aged between 16 and 17, and to that end, it is limited to the defendant’s risk of re-offending. This will also be relevant to the application of the paramount consideration in s 9(2) of the Act. Thus, the evidence with respect to the “unproven charges” is applicable to the assessment in that limited respect and for the purposes of making the evaluative judgment. As this Court observed in French at [72]:

[72] … the Court … must make an evaluative judgment as to whether the defendant is a high risk sex offender. As the discussion of principles above recognises, that evaluative judgment involves, inter alia, an assessment of that kind being made within the context of the objects of the Act; the principal object being to ensure the safety and protection of the community. It is appropriate that the Court examine all relevant material bearing upon the making of that judgment…

Parole

Release to parole on 18 February 2011

54. The defendant was released to parole on 18 February 2011 (to expire in 27 November 2011) and was subsequently placed on a Child Protection Prohibition Order (“CPPO”) on 20 December 2011 (discussed below).

55. On 23 May 2011, Ms Hollie Foster, Compliance and Monitoring Officer, produced a report to the State Parole Authority following an alleged breach of parole. Reference was made to urinalysis results which provided, inter alia, a positive outcome for cannabis. Ms Foster recommended that “a formal warning be given to the offender due to a negative result in his recent urinalysis, and his attendance to an alcohol and drug counselor [sic] to address his drug related issues”.

56. On 2 June 2011, the defendant received a formal warning reminding him of his obligations towards his parole (particularly that regarding drug use).

57. On 17 July 2011, Ms Ziggy Abedine, A/Senior Compliance and Monitoring Officer, produced a report to the Commissioner of Corrective Services following another alleged breach of parole (again, in relation to cannabis use). Ms Abedine recommended:

[The defendant] appears to be in breach of his conditional liberty and has demonstrated an inability to maintain abstinence from illicit drugs. The parolee is assessed to be at high risk of re-offending when considered on a Static 99 Assessment. It is the opinion of the writer, that [the defendant’s] current issues elevate his risk of sexually and violently re-offending. The risk of further sexual offending appears imminent and the protection of the community should be the paramount consideration.

Interim Suspension of [the defendant’s] Parole Order is recommended.

58. The defendant’s parole was suspended on 17 July 2011. The Parole Authority officially revoked his parole on 28 July 2011, citing breach of conditions 3 and 16, namely, “adapt to normal lawful community life” and “the offender must not use, or be in possession of, a prohibited drug or substance”. He returned to custody.

59. In a subsequent Risk Assessment Report dated 19 August 2011, Mr Sheehan gave a synopsis of the defendant’s parole performance. He opined:

In total, [the defendant] spent five months in the community before his suspension. Although ultimately unsuccessful in light of his revocation, his performance was not without merit. He was generally cooperative with supervision and reflected a positive attitude to adjusting his behaviour to fit into community life. He tolerated being told that he could not participate in particular activities without becoming argumentative. His participation in treatment programs (such as individual counselling, Alcohol and Other Drug programs and Community Maintenance) was generally described in positive terms by facilitators.

…

Historically, [the defendant’s] most likely response to supervision would have been to ignore his obligations, participate in escalating drug use (amphetamines) and engage in other criminal behaviour. He has not done so in this instance, however it may be that this is at least partly an artefact of the intensity of supervision as opposed to his own maturation and good judgment.

During interview (16/8/11) [the defendant] expressed frustration and disappointment with regard to having failed to complete supervision. He cited a number of instances where he had been successful in making positive decisions during supervision, but stated that at other times he simply failed to think about the consequences of his decisions. He acknowledged having fallen into a pattern of heavy alcohol consumption in the weeks before parole revocation. He described negative social influences in terms of heavy alcohol and drug use by people in the environs of his residence.

Release to parole on 8 August 2013

60. Following subsequent convictions and a further period of custody, the defendant was subsequently released on parole on 8 August 2013. He was found to be intoxicated in his COSP accommodation (in breach of his parole) and was charged on 7 October 2013 with consequential assault and resist police and intimidate offences (arising from the physical resistance he displayed when arrested and from a threat made towards a staff member of the COSP). It may be noted, the day following his arrest, the defendant told a Dr Madiha Cheema that he had become aggressive with police so that they would shoot him, and that he had had ongoing suicidal thoughts for six months.

61. These offences resulted in a further period in custody commencing 6 October 2013 and concluding 5 February 2014, with a parole period of 6 months concluding 5 August 2014.

2011 Child Protection Prohibition Order

62. As mentioned earlier, on 20 December 2011, the defendant was made subject to a CPPO. The order stipulated, inter alia, that the defendant was restricted from unsupervised contact with persons aged under 18 years. The defendant breached the CPPO on several occasions.

63. A further charge of “threaten person with intent to influence witness” resulted in a partially cumulative sentence of 14 months imprisonment concluding 8 March 2013. This charge involved a letter sent to a witness threatening payback against her and two girls if he received a gaol sentence “because of them” (see summary of facts below, in particular, [64(4)]). The defendant was subsequently released to parole on 8 August 2013.

64. The facts of the contraventions were summarised by the State as follows:

1. In March 2012, the defendant had let a young woman and her 3 year old male child share his bedsit. He was found at home with the child by attending police. He told police that the day police had arrived was the first time he had been left alone with the child and that he had not told the woman about the CPPO;

2. On 8 May 2012, the defendant was seen in the company of a 15 year old boy for about 30 minutes in the Cabramatta CBD, including near the TimeZone Arcade (a place where children congregate to play video and other games). This gave rise to the offences of contravene order and loiter in a public place;

3. On 30 May 2012, the defendant was again seen in public in the company of the 15 year old for about 30 minutes; and

4. In May 2012, the defendant began associating with two 14 year old girls, including let them stay overnight at his home on three occasions. A separate charge of assault for slapping the bottom of one of the girls was also dealt with on sentence.

65. The following summary is extracted from the Risk Assessment Report of Mr Ardasinski:

• [The defendant] was found to be alone in the company of a 3-year old male child in contravention of his CPPO on 14/3/12. He had invited the child's mother to stay with him when she could not afford her rent any longer, having met her only a few weeks' earlier. He was released on bail;

• [The defendant] breached his bail, and his CPPO, within a few months. He was re-arrested on 7/6/12. He had been loitering around his new neighbourhood in Cabramatta, befriending local youths, including a 15-year old boy who was seen in [the defendant’s] company on CCTV footage. He was convicted on 28/8/12 of four counts of Contravene Prohibition Order and one count of Convicted Child Sex Offender loiter near public place;

• In June 2012, [the defendant] was also charged with sexual offences (assault with act of indecency and indecent assault person under 16 years) as well as other offences (common assault, threaten person with intent to influence) which related to allegations that he had been associating with two 14-year old female children, allowing them to stay at his home overnight and slapping one on the buttocks as she walked past him. The sexual offence charges were all ultimately withdrawn, though [the defendant] was convicted of Common Assault and Threaten Person with Intent to Influence (not serious) on 6/2/13. He had written a letter from prison in which he appeared to threaten the two 14-year olds with 'payback' in the event that resultant convictions led to further time in custody;

• Finally, after serving custodial sentences for the Contravene Prohibition Order convictions noted above, [the defendant’s] parole was revoked after he abused a COSP (Community Offenders Support Program) Centre staff member whilst intoxicated and fought arresting Police officers. While this did not constitute a further breach of his CPPO, it resulted in his remaining in custody until the imposition of his ESO in August 2014.

66. In summary, the defendant was charged in March and June 2012 with four contraventions of the CPPO, along with a charge of convicted sex offender loiter near public place. He was sentenced on 28 August 2012 to partly cumulative terms of imprisonment commencing 8 June 2012 and ending 8 January 2013, with a further parole period of 9 months ending 8 October 2013.

2014 Extended Supervision Order

67. As mentioned earlier, the defendant failed to comply with the conditions of the 2014 extended supervision order on four occasions. A summary of each occasion follows:

1. On 24 February 2015, the defendant was charged with three breaches under s 12 of the Act (fail to comply with a requirement of the 2014 extended supervision order), which each related to detection of cannabis by way of testing. He was sentenced to periods of 75 and 100 hours community service orders at Central Local Court on 8 April 2015. A call-up on 15 June 2016 extended the period to complete the community service orders by a further four months.

2. On 3 June 2015, the defendant tested positive for cannabis metabolite. He was charged with a further breach pursuant s 12 of the Act, it being a condition of the 2014 extended supervision order that he must not possess or consume illicit drugs. He was subsequently convicted and sentenced to 60 hours community service order at Burwood Local Court on 6 August 2015.

3. On 17 November 2015, the defendant was charged with two further s 12 breaches, this time for deviating from his approved schedule of movements two days earlier and associating with a person convicted of a serious sex offence. On 11 January 2016, at Burwood Local Court, the defendant was sentenced for these offences to a fixed term of 4 months imprisonment, commencing from 17 November 2015, when he was bail refused.

4. The defendant was released to the community on 16 March 2016. On 9 August 2017 a saliva sample tested positive to methylamphetamine and cannabis. He was charged with a s 12 breach. The same date he was found in possession of R18+ restricted material contrary to a condition of the 2014 extended supervision order and he was charged with a second s 12 breach. He was also charged with possession of equipment for the administration of cannabis, namely a bong and bowl with residual green vegetable matter. The defendant was convicted on 5 October 2017 of these offences and sentenced to 6 months imprisonment. He was released from custody on 16 February 2018.

68. On 25 July 2017, an extended supervision order completion report was prepared for the Attorney-General pursuant to s 13(2) of the Act. In that report Ms Amanda Carden, Community Corrections Officer of CSNSW, spoke to those breaches and provided an opinion as to the defendant’s response to the 2014 extended supervision order (at that time)

[The defendant] initially displayed a poor level of motivation towards remaining abstinent from illicit substance use due to his relapse to cannabis use on four occasions 9 January 2015, 23 January 2015, 10 February 2015 and 3 June 2015. Furthermore, the offender's disregard for his ESO conditions was further exemplified by his deviation from schedule of movements and association with another individual who was convicted of child sex offences on 15 November 2015 for which he received a custodial sentence.

Since [the defendant’s] release from custody on 16 March 2016 he has demonstrated an improved attitude towards supervision and appeared to be making efforts to improve his circumstances. The offender complied with Centrelink requirements and engaged in the ‘Work for the Dole’ program for four weeks in June 2016. He also attended alcohol and other drug counselling in addition to his fortnightly FPS maintenance group. [the defendant] has maintained stable employment since August 2016 and continues to attend FPS interventions and AA meetings as required. The offender appears to be progressing well overall and has formed relationships with pro-social individuals who are aware of his history of offending and remain supportive of him. It is noted that this is the longest period of time that [the defendant] has remained at liberty since 1996 as he has previously been re-incarcerated for breaches of his Order.

Behaviour in Custody

69. The following summary is drawn from the pre-release report dated 22 September 2010 of Ms Susan Ayres, A/ Unit Leader at the Long Bay Parole Unit:

[The defendant] has not incurred any further institutional misconduct charges. However, on 7 December 2009, a Risk Intervention Team (RIT) was conducted after [the defendant’s] cell mate advised Correctional Officers that he had been “head banging and responding to internal stimuli (voices)”. The RIT was unable to confirm any mental illness or risk of self-harm at that time and elicited that the inmate had banged his head after a disagreement with his cell-mate. Further, the inmate had claimed he "was challenging negative self talk in an attempt to calm himself and denied experiencing auditory hallucinations". The Mandatory Notification Form was subsequently terminated, and [the defendant] was cleared from the RIT on 17 December 2010.

In December 2009, [the defendant] was placed on a Segregation Order (MSPC 1), and later housed in the Intensive Behavioural Unit (MSPC 2) and Acute Crisis Management Unit following allegations of a sexual assault against another inmate. The NSW police investigated this matter, however no charges were laid. Please refer to the Offence-Targeted Programs section for further information.

Recent contact with a Correctional Wing Officer confirmed there had been a positive change in [the defendant’s] behaviour since his participation In, and completion of, the CUBIT program, In addition, his conduct within the correctional centre is considered to be appropriate and he is not regarded as a management issue.

70. An incident report was also produced by CSNSW dated 24 February 2015 relating to “self harm”. In summary, it was noted that the defendant had “indicated he had self harmed in the past by cutting his wrist”, he was experiencing depression and as a result of being bail refused stated he was going to “finish his life”. In response to that information the defendant was “placed on ISP for the purposes of management”.

71. In the extended supervision report to the Attorney-General dated 13 March 2017, Ms Carden observed the following with respect to the defendant’s behaviour in custody:

[The defendant] returned to custody on 17 November 2015 and was released on 16 March 2016 having served his four month fixed term… The expiry of this ESO has been adjusted to 16 February 2018.

Progress in custody

[The defendant’s] period in custody was uneventful with no misconducts or incidents recorded. The short period of his custodial sentence prevented him from engaging in programs or employment.

Reports of Court Appointed Experts

Dr Ellis’ Evidence

72. The defendant was examined by Dr Ellis on 15 May 2018 for a period of two hours. Dr Ellis issued a report dated 29 July 2018.

73. Dr Ellis opined that the defendant met the criteria for a paraphilic disorder, fetishism, transvestic fetishism, personality disorder and substance use disorder. He further suggested the possibilities of paedophilia and sexual sadism. He noted that the defendant denied attraction to children and sexual arousal to pain, fear or humiliation. However, he opined: “[i]t is common that persons with paraphilic arousal deny the arousal, or can be less consciously aware of it as motivating their behaviour. Paraphilias are chronic relapsing conditions”.

74. Dr Ellis formed the view that clinical considerations regarding risk included deviant sexual arousal or paraphilia, personality disorder, substance use disorder and treatment setting. In particular, deviant sexual arousal was consistently identified as the most prominent risk factor for sexual re-offence. In this same context, Dr Ellis opined:

[The defendant’s] offence history indicates this pattern of arousal. His offences are varied, but show a pattern of threat to victims, or a child victim. They have been associated with wearing female underwear for arousal. Offences, and other behaviour not charged began in his teenage years and has persisted in an intermittent and chronic fashion. His victims are varied, which matches his varied arousal patterns. Physical coercion has been employed. He continues to show poor insight around motivations for offending, which is relevant as it has led to poor or partial cooperation in treatment and rehabilitation attempts. He shows poor self-awareness, and difficulties with stress and coping. He has impoverished relationships with others and is unemployed. He shows poor planning and previously has not cooperated with treatment and supervision. His attitudes to supervision remain equivocal, with a negative attitude to psychological treatment directed at sexual offending. He is more enthusiastic about substance use treatment and exploring his own experience of victimisation. Anti-libidinal medication is the best treatment to address deviant arousal of any paraphilic pattern. Behavioural techniques may reduce deviant arousal.

75. During the final hearing, Dr Ellis expanded upon that opinion:

Q. When you say "his attitudes to supervision remain equivocal" are you including within that that form of counselling and treatment?

A. I'd say that he's got some very positive attitudes about aspects of his treatment and supervision. So, for example, he's very enthusiastic about Alcoholics Anonymous and the role that that has played in his life. He spoke with interest and sincerity in conditioning with that kind of treatment. He was much less enthusiastic about psychological treatment that was targeted towards sexual offending. He didn't like going to those sessions and he held a view that they weren't helping him.

By and large he had a good relationship with his parole officer and he felt that they were supportive and helpful for him. So I think that he wasn't uniformly positive about the treatment and supervision that was being offered to him at the moment. So that was where I considered that that was an equivocal attitude to supervision. I mean certainly there were positive aspects to it. He certainly was attending on everything that was being required of him, which I think is insight into the need for psychological treatment about sexual offending and his attitude to the sessions that were being offered to him.

76. Further, as to “treatment setting”, during cross-examination, Dr Ellis referred to the benefits of “pro-social relationships”, which are “[r]elationships with people who are not professionals but have a pro-social routine and lifestyle is also a protective factor”. As to the difficulties in the context of an extended supervision order, he opined:

Q. It would be quite difficult when you are on an ESO, would you accept that, to find those supports in the community?

A. It's difficult, but not impossible. There are certainly limitations on your ability to form new relationships because you have to have them passed by your supervisor and that can be difficult, because some people who might be a pro-social support otherwise are reticent to engage with Probation and Parole. It might make finding employment more difficult because you have to notify your employer and they may be less likely to take you on for work. I think they are things that people on ESO's struggle with, but I think also there is often encouragement to overcome those barriers and continue with pro social support as well. Certainly it doesn't preclude making and sustaining those relationships, but it can make it more difficult to achieve them.

Q. Certainly more difficult to initiate a close friendship if they are going to be told that you are a convicted sex offender, would you agree with that?

A. Yes. I think that needs to also be balanced with having a genuine reciprocal pro social relationship with someone, which is usually being truthful about your past. And sometimes having a professional assist you with establishing that relationship can be of use. You know many people, subject to these orders, might find that their offences are actually in the public domain and people can find out about it later down the track, part way through a relationship, and that often then causes a rupture in that relationship if someone finds out that they have been you know perhaps not the whole truth told to them about someone's background.

I think being able to be completely anonymous and perhaps erase your past and then form new relationships needs to be balanced against being able to be open and honest with people you form relationships with in the future. So it's a difficult area to navigate for someone who's on an extended supervision order. Even if someone is not on an extended supervision order those areas can be difficult to navigate as well. I suppose by way of summarising it I would put is that ESO can make it more difficult to have informal pro social supports in the community, but it doesn't necessarily preclude it and in some instances might support those relationships being sustained.

77. Dr Ellis reported that antisocial personality orientation was another factor consistently identified with sexual re-offence, as was substance use disorder. In respect of the defendant’s diagnoses of antisocial and borderline personality disorder, Dr Ellis opined:

He is diagnosed with antisocial and borderline personality disorder, and has displayed poor relationship function across the lifespan. By his report, this has been improving, and his current tenure in the community supports this. This may reflect early personality maturity, however it is too early to suggest this risk factor is no longer relevant, as stressful situations can lead to a reversion to old methods of functioning.

78. In relation to the defendant’s diagnosis of substance use, Dr Ellis opined it is “modestly correlated with sexual offending and may serve to disinhibit underlying sexual arousal towards objectification, violence and humiliation”.

79. Dr Ellis also had regard to the defendant’s participation in a group sex offender treatment program in custody. He opined:

He has participated in a group sex offender treatment program while in custody. Studies show that persons who reinforce gains made in custodial programs with ongoing work in the community, may display lower rates of recidivism. It is not clear whether this is an effect of treatment itself, or that persons who complete treatment tend to have more control over their behaviour, than those who do not. At this review he displayed little understanding of his motivations to offend, and limited strategies to desist from offending in the future. His participation in treatment would be considered marginal.

80. Specifically, in terms of risk assessment, Dr Ellis made the following observation:

A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of [the defendant], given the pattern of sexual arousal, victims would likely be female adults or children. The offending activity may be opportunistic, however his past wandering in public with weapons increases the chance of finding a lone and vulnerable victim. Associating with children, or persons who leave their children unsupervised also increases impulsive offending opportunity. Substances might further disinhibit this type of behaviour. The physical harm and psychological harm in terms of fear for physical integrity to victims from this type of activity is foreseeable.

81. Overall, in light of the above assessment, Dr Ellis considered “in the absence of any treatment or supervision, [the defendant], would fall into a group of persons with a risk for sexual offending that is statistically high in frequency, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce the risk”.

82. Dr Ellis reviewed the proposed community treatment plan contained in the Risk Management Report. He opined:

The community treatment plan… contains reporting and monitoring conditions, place and travel restrictions, conditions on accommodation, restrictions on employment, restrictions on association, restrictions on alcohol and drugs, restrictions on the Internet and pornography, restriction on weapons, treatment obligations, disclosure of information and review. As his risk stems from a number of areas, all these conditions are considered necessary and desirable from a clinical point of view in managing the presenting risk. Currently his attitude to treatment and supervision is sufficient for him to comply with conditions. This may wax and wane as his personality copes or does not with stress, but with support he should have the ability to comply.

It would be recommended his GP refer him to a forensic psychiatrist for anti-libidinal medication assessment.

Dr Roberts’ Evidence

83. The defendant was examined by Dr Roberts on 15 June 2018 at the rooms of MedicoLegal Psychiatry in Sydney. He produced a report dated 3 July 2018. Dr Roberts had previously prepared a report in relation to the defendant dated 10 July 2014, following an assessment of the defendant on 16 June 2014.

84. Notwithstanding the receipt of a further history from the defendant and additional documents reviewed in preparation for his most recent report, Dr Roberts affirmed the diagnosis reached on 10 July 2014:

[I]t remains my opinion that [the defendant] is suffering a Personality Disorder, Substance Use Disorder and Fetishism. Furthermore, the risks identified at the time of my previous assessment of [the defendant] and as discussed in my report of 2014 remain substantially unchanged. Taken into consideration were his repeated breaches and the prominence of relapse to substance use in addition to behaviour that would invariably place him at risk including associating with drug users or dealers and contact with a sex offender in direct contravention of the conditions of his Extended Supervision Order.

85. As to the defendant’s involvement and progress with therapy and counselling within the community, Dr Roberts opined:

Of merit is [the defendant’s] level of participation in group therapy through Forensic Psychology Services, his participation in Alcoholics Anonymous and his attendance at counselling sessions. Tempering the optimism that might reasonably be associated with his apparent commitment in these areas is the relative brevity of his current period in the community and the impression derived from the documents that he is consuming caffeine in a manner that invariably indicates an excessive and problematic pattern of use and which has the potential to impact on him physically and psychologically. Having said this, abrupt cessation should be avoided.

[The defendant’s] acknowledgement of his homosexuality may represent a significant positive step insofar as it represents a level of openness and trust in therapy and a personal acknowledgement of a psychologically uncomfortable issue which he has thus far sought to deny, notwithstanding having engaged in homosexual contact since age 15 years. It presents an opportunity for therapeutic progress which has thus far not been made available.

A matter for caution is [the defendant’s] desire to pursue a course of therapy to address matters arising from his childhood with his counsellor, Andreas. The pursuit of such a course of therapy should not be viewed as being without risk. Namely, therapy aimed at addressing childhood trauma and challenging relationships in one's developmental years can be of significant potential benefit but can also be distressing, destabilising and harmful. Such therapy should be undertaken with an experienced skilled therapist in consultation with the other clinicians who are involved in the patient's care to ensure a system of support, vigilance and awareness, to form a consensus as to the appropriateness of such a course of treatment and to optimally support the therapeutic process. It is important that the therapy not be undertaken in the absence of consultation notwithstanding [the defendant’s] subjective sense of readiness to do so.

86. In relation to the issue of risk, Dr Roberts opined:

Whilst [the defendant] remains under supervision and is required to remain abstinent from substances and whilst he participates in counselling and therapy, the risk of engaging in a further serious sex offence is significantly mitigated. The most prominent risk factor with respect to [the defendant] that is modifiable is his tendency to substance use. By his account, his sexual offences have all been associated with intoxication with illicit substances. He has repeatedly denied sexual attraction for children, however, the extent to which his account in this regard is to be accepted is called into question by such conduct as collecting children's toys and his minimisation of other aberrant sexual behaviour such as fetishism for women's clothing. In this context it must be acknowledged that the extent to which there is a full understanding of [the defendant’s] sexuality is compromised. Indeed, until recently, he additionally denied his homosexuality. It is not clear as to whether the lack of clarity with respect to [the defendant’s] sexuality in general is a manifestation of a desire to avoid full and frank disclosure or whether it reflects his lack of insight into his sexual inclinations.

87. Dr Roberts observed that the defendant’s “risk of committing a further serious sex offence is moderated by the supervision… but remains high in particular in the context of a diminished degree of vigilance with respect of [the defendant’s] participation in therapy, the support groups which he attends and the supervision under which he remains. Relapse to substance use would be expected to confer a significant escalation in his risk”.

88. Dr Roberts also identified substance use as “the most prominent risk factor for re-offending” in the case of the defendant. He opined that a CPPO “is unlikely to mitigate his risk [in that respect]”. However, he noted a CPPO “[does] reduce the likelihood that he will place himself in [a] circumstance in which he might be tempted to indulge in fantasies or engage in relationships with young people”.

89. As to ongoing treatment, Dr Roberts opined, “the most appropriate approach is that [the defendant] continue with the therapy in which he is currently engaged and with his attendance at Alcoholics Anonymous and SMART Recovery for an indefinite period”.

90. Dr Roberts did not observe “anti-libidinal medication” to be beneficial in the case of the defendant. He stated:

[A]ltering his libido per se is not expected to provide an appreciable reduction in his risk of sexual offending. It is a treatment with the potential to undermine his prospects for intimate relationship which invariably represent an important aspect of integration into the community and is therefore not without the potential for adverse outcome.

91. Dr Roberts was not required for cross-examination.

Psychologist Assessment by Registered Psychologist

Risk Assessment Report by Mr Ardasinski

92. On 13 November 2017, Mr Ardasinski prepared a Risk Assessment Report in relation to the defendant pursuant to s 6(3)(b) of the Act.

93. Mr Ardasinski interviewed the defendant for two hours on 30 October 2017 at the Metropolitan Remand & Reception Centre (“MRRC”) to discuss with him the potential for a further application by the Attorney-General for an extended supervision order under the Act.

94. In preparation for the report Mr Ardasinski also reviewed cases notes contained in the Offender Integrated Management System (“OIMS”). He also reviewed the reports of Drs Ellis and Roberts and stated that he “concur[red] with their opinions”. (He observed the main point of difference between the two reports “related to the recommendation for anti-libidinal medication assessment and treatment”. Mr Ardasinski also noted that he is not a medical practitioner and that it is out of his area of expertise to comment on any impact of medications on recidivism of risk).

95. The defendant’s performance under community supervision was summarised comprehensively by Ms Therese Britton in her Psychological Report dated 24 June 2017. That summary was adopted by Mr Ardasinski and is extracted below:

a. [The defendant] has been subject to 3 breaches of his order on 3 separate occasions, with convictions for Fail to Comply (with ESO) on 08/04/15, 06/08/2015 and 11/01/2016 (Mumford, 2015; Sartor, 2016). The subsequent periods of incarceration for breaching the order, extended the term of ESO by 5 months and 23 days. The first 2 breaches were in relation to [the defendant’s] cannabis use. Given his life-long addiction to illegal substances, originating in childhood, the lapses were not entirely unexpected. The second breach report highlighted a significant reduction and/or cessation of use during testing, and increased commitment to treatment services (Mumford, 2015). In interview, [The defendant] reported that to date he remains abstinent and no longer views drug use as "part of (his) life". The third breach was for consorting with another known sexual offender from FPS. It appeared that [The defendant] acted impulsively with little consideration for the consequences. As the report suggested he seemed motivated by financial gain, an opportunity to purchase cheap “mag wheels”. The other offender was a participant in [The defendant’s] Community Maintenance group, and he colluded with him to meet his own needs. In the breach report Mr Mumford stated that [The defendant] erred in his judgement. In interview, he acknowledged that impulsivity remained a risk factor that he needed to manage, saying: "maybe I do still" act impulsively, but the lapses are "legal" and less frequent.

b. The pre-sentence breach reports agreed that [The defendant] seemed to quickly recover from infractions and moderated his attendance and engagement in drug and alcohol intervention, therapeutic programs and overall compliance with supervision as necessary (Mumford, 2015; Sartor, 2016). They noted that whilst under supervision [The defendant] appeared to have a cooperative attitude, and willingness to adjust his behaviour to fit into community life (Mumford, 2015; Sartor, 2016). OIMS case notes also reported that his interactions with Community Corrections Officers (CCOs) and the Electronic Monitoring Room, demonstrated a tolerance for directions without his becoming argumentative or hostile.

c. The FPS progress notes similarly described a pattern of consistent attendance at the community maintenance group, satisfactory engagement, and active participation in group. Over the course of the order [The defendant’s] progress was reviewed and his attendance decreased from weekly, to fortnightly and then monthly sessions. The file information stated he had been attending FPS since 30/10/2013, and while he continued to progress, his contributions or insight during sessions appeared arbitrary. Occasionally he discussed risk related issues, but he presented the scenarios in the best possible light and rarely volunteered information about sexual-self regulation unless prompted. Much of the therapeutic work in maintenance seemed to be processed retrospectively, usually alter the risk had come to light through surveillance or monitoring.

d. The Sheehan report also described his progress and performance under previous periods of supervision as 'not without merit'. The annual ESO update reports to the Attorney General suggested that [the defendant] worked with the ESO team and seemed to have made some treatment gains, with his overall compliance improving over time (Mumford, 2015; Sartor, 2016). They surmised that compliance with supervision wavered when there were uncertainties around his accommodation, or unemployment, cannabis use, and impulsive or poorly considered decisions (Mumford, 2015; Sartor, 2016). in and around these times [the defendant’s] coping skills appeared inadequate, and sexual preoccupation increased. The update reports reflected the instability by recommending that he continued to be supervised at Stage 1, with an intention for progression to more minimal restrictions, following a lengthier period of compliance and stability.

e. Prior to the ESO the Sheehan report described [the defendant’s] social adjustment and, employment history as poor. It stated that he had negligible experience in living a non-criminal lifestyle, and had yet to make serious inroads to improving social adjustment, which could only be achieved over a stable period of community living. While the ESO restrictions make assessing, or measuring actual change difficult, the period since his last breach continues to be the longest [the defendant] has remained in the community throughout his adult life. In interview, he reported that his "attitude towards life has changed". He is reportedly in suitable accommodation, employed on an ongoing basis, sober and abstaining from illicit substances, engaging in programs and services, and developing prosocial connections to a few close friends (Sartor, 2016). Intensive supervision appears to have not only restricted his opportunities to offend, but created a stabilising influence.

176. During cross-examination, as to the defendant’s progress, Dr Ellis ultimately opined that “six months of stability isn't enough”. He gave the following evidence:

Q. Again, all those factors that you have just described they are all factors that relate to his history?

A. That's correct.

Q. Many of those many years ago?

A. Yes. And that's again in terms of the way personality disorders are conceptualised as being long term chronic disorders. You could certainly say in the last six months he has had improvement in a number of domains across that. But that wouldn't be sufficient to overturn the diagnosis. Again a bit like a paraphilia, personality function can wax and wane and a person who has a personality disorder diagnosis and has met that criteria in response to stressful events, particularly relational stressful events, will often decompensate to those behaviours associated with the personality disorder.

Q. Regardless of his conduct in the last six months or in the next six years he's likely to maintain that diagnosis?

A. Well in the next six months, yes. If he was able to show a sustained pattern of positive mature interpersonal relationships and show sustained emotional regulation ability and show sustained ability to desist from the previous anti-social behaviours without being in a place like custody where he is not able to do those things, then a personality disorder is something that can be removed as a diagnosis.

There is substantive evidence to suggest that those personality traits can improve and once they have improved over a period of years then generally that improvement remains sustained and a person doesn't relapse. So that's a diagnosis that could be in the future go into remission and into sustained remission. But at this point the period of six months of stability isn't enough to undo the decades previous.

177. Dr Ellis accepted, during cross-examination, that the defendant’s conduct over the past six months could be described as “complying with the conditions” and that “he's engaging in suitable behaviour and he is staying away from drug use”. He opined that such conduct is indicative of a “positive response to what is being applied to him”. However, he also opined that “the type of management and supervision that [the defendant] is currently receiving is in my opinion address[ing] the risk factors that he presents with”.

178. Whilst Dr Ellis opined the defendant “certainly was attending on everything that was being required of him, which I think is insight into the need [for such treatment]”, he maintained, in the absence of any treatment, the defendant would fall into a category of person with a risk for sexual offending that is “statistically high in frequency”. Dr Ellis considered the risks of sexual re-offence arose from the presence, in the defendant’s case, of sexual arousal or paraphilia. Dr Ellis also reported that antisocial personality orientation was another factor consistently identified with sexual re-offence, as was substance use disorder (which he described as “modestly correlated with sexual offending”). He opined that specific treatment and supervision would likely reduce the risk.

179. Additionally, Dr Ellis opined that is was plausible that the defendant’s time spent in incarceration and under supervision since the last serious sex offence may explain why the defendant has not offended with “a serious category offence” since 2002.

180. The “relative brevity of his current period in the community” also tempered the opinion of Dr Roberts. He opined the risk of engaging in a further serious sex offence is significantly mitigated by the defendant’s participation in counselling and therapy.

181. As to the defendant’s motivation to seek further therapy, in particular with respect to childhood issues, Dr Roberts expressed concern that “such a course of therapy should not be viewed as being without risk”. This is because whilst it has the “significant potential to benefit” it could also be “distressing, destabilising and harmful”.

182. Even with improvements, both Drs Ellis and Roberts recognised substance abuse via drugs and alcohol as a current risk, with Dr Roberts identifying it as the defendant’s “most prominent” risk factor. Dr Roberts also opined that relapse to substance use would be expected to confer a significant escalation in his risk.

183. Dr Roberts noted that the risk of committing a further serious offence remains high “in the context of a diminished degree of vigilance with respect of [the defendant’s] participation in therapy, the support groups which he attends and the supervision under which he remains”. Dr Ellis also specifically identified poor or partial co-operation with treatment and rehabilitation in relation to sexual deviance as an ongoing issue.

184. Overall, both Drs Ellis and Roberts considered the risk for serious sexual offending by the defendant to be statistically “high” in frequency.

185. Turning to then to the Risk Assessment Report of Mr Ardasinski. Mr Ardasinski opined that “consideration must be given to the extent to which the conditions of the defendant’s extended supervision order have contained the risk of his committing new sexual offences, and whether the defendant has developed the capacity to manage his own risk of sexual re-offence”.

186. In a similar light, Mr Ardasinski described the defendant’s progress in the past six months as “a very good start”. He accepted that the defendant’s participation in therapeutic programs and counselling, much of his own volition, was “definitely progress” towards managing his risk. However, “[w]eighed against, you know, a 30 to 40 year history of drug use though, six months of intervention doesn't necessarily mean that he's fixed”. The highest Mr Ardasinski put his opinion was as follows: “[i]t's very promising that he has taken initiative to avail himself of the intervention to avoid a return to drug use, which is what brought him back into custody the last time” (particularly in circumstances where “he is unable to work”).

187. In that respect I note the following opinions of Mr Ardasinski:

1. The defendant “never” progressed through his stages of electronic monitoring from “Stage 1”. He opined that more years on an extended supervision order would allow for a staged reduction in electronic monitoring and give him “the best possible chance of success”.

2. The disorders of which the defendant suffers are “chronic”. Another factor supportive of a longer extended supervision order.

3. “[I]t remains likely that the combination of [the defendant’s] interpersonal relationship skills deficits will combine with this newly discovered sexuality and may have unfortunate outcomes… which if combined with drug use and the presence of a potential vulnerable person could trigger a new sexual offence”.

188. As to actuarial risk assessment, the defendant scored within the moderate-high risk range. Mr Ardasinski opined that a risk rating of “moderate” was consistent with the defendant’s “current predicament and time offence free”. However, he opined “there were still a number of outstanding criminogenic needs related to sexual offending which would require intervention through further treatment or supervision”. Whilst it is true that the defendant made some progress, Mr Ardasinski opined “he lacks awareness of how the problematic behaviours he engages in have their basis in his diagnosed personality disorder and the chronic course that such disorders take”.

189. At this juncture, I note that Mr Ardasinski in part modified his earlier opinion, with respect to the defendant’s progress and the possibility of existing in the community under less stringent supervision. Whilst maintaining his opinion as to “less stringent supervision”, he opined that the supervision offered by an extended supervision order “with less conditions” would be preferred to a CPPO. This is because, under an extended supervision order police have the authority to drug test, whereas the same authority is not provided by the CPPO.

190. Thus, having regard to the history and nature of the overall offending of the defendant; the lengthy history of substance abuse connected with previous sexual offending and noting, in that respect, relapse to substance use would be expected to result in a significant escalation in the defendant’s risk; his limited insight into his previous sexual offending; his participation and attitude towards counselling and treatment, in particular his marginal progress with respect to psychological treatment directed at sexual offending; his assessment of being at “moderate-high” risk of sexual re-offending by Mr Ardasinski and “high” risk by Drs Roberts and Ellis; the recommended ongoing need for intensive supervision by all experts; and, the risk factors identified in the Risk Assessment Report (see above from [92]) (as well as the expert reports from 2018), I confirm that I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

Extended Supervision Order

191. The defendant accepted that, if a conclusion was reached that the Court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order, it would be appropriate to make an extended supervision order. I accept that was an appropriate concession. In particular, I note that the following additional considerations warrant the adoption of the same:

1. the nature the offences;

2. the likelihood of re-offending;

3. the potential type and nature of any offence committed in the event of re-offending;

4. the opinion of the court appointed experts, based upon clinical assessments, as to the necessity for supervision (including appropriate conditions) and ongoing treatment of the defendant;

5. non-compliance and failures by the defendant whilst on parole, subject to the CPPO and the 2014 extended supervision order;

6. the negative attitude towards FPS sessions directed at sexual therapy and the equivocal attitude to supervision; and

7. risks occasioned by alcohol and other drug use.

192. Hence, I determine an extended supervision order should be made and turn to the question raised in the proceedings as to what conditions should attach to the same.

CONDITIONS

Submissions – General

193. The parties made general submissions regarding the making of conditions with respect to an extended supervision order.

194. The State relied upon the clinical perspective of Drs Ellis and Roberts and submitted that the conditions sought to be imposed were appropriate to address the long-term risk, both from a legal and from a clinical perspective (including the chronic or enduring nature of the defendant's disorders). It was submitted that, in light of the opinion of Dr Ellis, “[a]ll the proposed supervision conditions were considered necessary and desirable from a clinical point of view of managing risk”. Similarly, Dr Roberts had opined “they were appropriate to the defendant's circumstances”.

195. In the event the Court was minded to grant the extended supervision order sought, the defendant advanced the following general submissions in its earlier written submissions with respect to the appropriateness of the conditions proposed by the State:

1. The Court should only make an order with conditions that are appropriate to further the objects of the Act and reduce the risk of further serious sexual offending.

2. The 64 conditions proposed are “somewhat generic/standard” and it was contended that they, “appear to have no particular application to this defendant”. In this respect, reliance was placed on State of New South Wales v Burns [2014] NSWSC 1014 at [59].

3. Conditions cannot be “unjustifiably onerous or simply punitive”: State of New South Wales v Green (Final) [2013] NSWSC 1003. It was contended that 64 conditions meets the definition of onerous.

4. Given that it is a statutory offence to breach an order, there is a need for a proper basis to be demonstrated for the condition to be made: State of New South Wales v Ali [2010] NSWSC 1045 at [88].

196. During oral submissions, the defendant also confirmed it relied upon the authority of TT, namely, that the onus falls upon the State to demonstrate that the proposed conditions are appropriate to mitigate the risk (see also State of New South Wales v Bugmy [2017] NSWSC 855).

197. I do not consider the conditions sought by the State in this matter encroach on those principles. Where particular issues were raised there is, as will be discussed below, ample basis on the evidence to make the conditions proposed.

Submissions – Particular Issues

198. The defendant challenged the appropriateness of particular conditions in Annexure A in his written submissions. The primary focus of the defendant’s contentions, in that respect, concerned curfew (condition 11) as well as a minor reference to employment (condition 20). During, the course of oral submissions, the defendant also advanced submissions with respect the restrictions upon access to pornographic material (condition 50).

199. Additionally, at this juncture I note, whilst no specific submissions were advanced in objection to the imposition of electronic monitoring (condition 5), beyond the general submissions summarised above, it attracted significant attention during the cross-examination of Dr Ellis and Mr Ardasinski and will be discussed in turn below.

Curfew

200. During the course of oral submissions, the parties reached an agreement to modify the curfew condition in two respects: firstly, deletion of the words “unless other arrangements are approved by his DSO” and, secondly, the curfew commences at 11pm (as opposed to 9pm).

201. Notwithstanding that agreement, counsel for the defendant contended in oral submissions that, in light of the proposed conditions for electronic monitoring and schedule of movements (see conditions 5 and 7 in Annexure A), if the Court was minded to impose those conditions, the “additional” requirement of a curfew condition – whether it commenced at 9pm or 11pm – would not meet the test prescribed by the Act, namely, it was submitted, “[s]uch a condition does not mitigate risk in circumstances where Community Corrections are aware where he is and who he is with and must provide their approval”.

202. As to the form of the condition, whether it be construed as an “opt in” or “opt out” clause, the primary consideration, it was submitted by the defendant, was “whether it in fact mitigates risk in circumstances where [the defendant] has the schedule, he has to get approval to be with whoever he is going to be with and certainly he is not going to be aimlessly walking the streets and getting into trouble or engaging in actions that could lead to relapse which is the concern and surely what the clause is for”.

203. The defendant, in this respect, relied upon the authority of Bugmy (as cited in TT at [65]) that the onus rests with the State to prove the condition is necessary such that it mitigates risk. It was contended that the evidence before the Court does not demonstrate that, in addition to electronic monitoring and a schedule of movements, that a curfew condition has the effect of “incrementally add[ing] to the mitigation of the risk”.

204. Reference, in this respect, should also be made to the evidence of Dr Ellis and Ms Farroway at the final hearing.

205. During cross-examination, Dr Ellis opined:

A. … I think having a blanket curfew at 9 o'clock every night … isn't directly related to risk. I think that if he was routinely going out to some sort of positive activity at night time that be probably help to reduce risk and reintegrate him into the community. I think having a curfew, if it's applied flexibly, I think if you were aimlessly going out at night all the time that might be an indication of problematic insight in behaviours and concern. But having a curfew as an automatic blanket rule is something that could be modified. If it's coupled with a schedule so that if he is going out at night for a particular reason, and that's known and agreed upon, then I don't see a problem with that.

Q. Because he couldn't be wandering aimlessly, as you say, if he is subject to a schedule because he would have to tell people who he is with and where he is?

A. Yes. The circumstance where not having a curfew would be problematic if

there is no particular – if he begins to engage in aimless activity or to be in places that might be high risk for him and they might be places where people take drugs or people consume alcohol, they might difficult places for him, given his history of substance use.

So having the ability to work with a parole officer around his night time routine and activities. I mean if he has got a structured day he will automatically have a curfew because like most of us who have structured lives have curfew self-imposed because it is very difficult to stay up all night and then do what you need to do the next day.

206. Ms Farroway gave the following evidence, with respect to previous negotiations, with the defendant, to modify the curfew condition:

Q. Would you accept that he has been very good at negotiating those changes when they have been required in the last six months?

A. Yes, I would.

Q. He has, in fact, initiated contact with your team when he feels like he might not comply with the schedule?

A. Yes, I'd agree with that.

Q. On a number of occasions?

A. Yes.

Q. Just on the concern that in fact he might not comply with it?

A. Yes.

Q. Ms Carden and others, the case notes indicate, have also had significant discussions with Ms Brittan from FPS?

A. Yes.

207. The State also referred to a selection of instances in the OIMS case notes in which the defendant’s curfew and/or location of his residence were modified (see pages 31 and 72 of the OIMS case notes, entries on 7 May and 13 July, respectively). Those examples, combined with the evidence of Ms Farroway, support the inference that the curfew condition is not unduly onerous and affords appropriate flexibility to the defendant.

208. Regard was also had to the affidavit of Ms Farroway. She deposed that the imposition of a curfew “can assist in providing structure and stability and is useful in trying to minimise exposure to environments related to risk of re-offending. In the case of the Defendant, this would be about minimising access to high risk scenarios that may cause him to relapse into the use of alcohol and illicit drugs" (at para 70). That opinion, it was submitted, was supported by the evidence of Dr Ellis.

209. On balance, and noting the modifications to the proposed conditions, I do consider that this condition would mitigate the risk in a material way. The aforementioned evidence of Dr Ellis and Ms Farroway supports a conclusion that the condition would do more than marginally mitigate the risk and, in fact, constitute an effective control against re-offending. There is ample and demonstrated latitude or flexibility in the application of the curfew if required.

Employment

210. Condition 20 is extracted below:

If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

211. In written submissions, counsel for the defendant opposed condition 20. However, in this respect, very little was advanced, save for a reference to authority relating to “appropriateness”: State of New South Wales v Banks [2016] NSWSC 926 (“Banks”) at [68(d)] (per Rothman J).

212. The remarks of Rothman J in Banks at [68(d)], relied upon by the defendant, are extracted below:

[68] As to the conditions to be imposed on the Extended Supervision Order I have largely accepted the amended conditions proposed by the State of New South Wales but make the following comments:

…

(d) In relation to paragraph 20 of the conditions, I have omitted the requirement for the defendant compulsorily to enter available employment as directed by the Supervising Officer but continue the prohibition on starting work that is not approved by the Supervising Officer. It is unnecessary to decide the issue on any constitutional or legal basis, but questions have been raised as to the power of government to force a person into compulsory labour. In any event, in the absence of express permission to force someone into work that is not desired, I would not exercise a discretion so to do: (Seaman’s Union v Utar Development Company (1978) 144 CLR 120 at 138 (per Gibbs J), at 153-154 (per Mason J) and at 157 (per Murphy J). The Australian Constitution and the State Constitutions work on the basis that we live in a democratic society and the proposition that the Court could impose a condition in which a person was forced to work or take up employment at the direction of an officer of government is, in the absence of express valid provisions, not one that ought lightly be imposed. Otherwise the conditions in Part D, proposed by the State of New South Wales have been adopted.

213. Despite the absence of a developed submission by the defendant, the remarks of his Honour are relevant to the present form of condition 20, which requires that “the defendant must make himself available for employment … as directed by the DSO”.

214. In relation to the same issue, namely, a condition with respect to a direction to enter available employment, Adamson J took a different approach (State of New South Wales v Fernando [2016] NSWSC 1665 (“Fernando”) at [120]):

[120] I accept the plaintiff’s submissions that the condition ought be imposed. Although I accept that it is unlikely that the defendant will be able to obtain remunerative employment on the open labour market, I would not readily conclude that there is no work, whether of a voluntary nature or otherwise, in which he could engage. That he has been able to work satisfactorily in the prison system as a baker provides some indication that, if some work, whether paid or not, at an appropriate level could be found for him, it would be desirable that he engage in it. Of course, if the defendant were willing to engage in such employment, or indeed in any education or training or personal development program that was thought to be in his interests, there would be no need for his DSO to give him a direction to that effect. However, it is reasonable to envisage that circumstances might arise where a DSO considers that the defendant ought engage in such activities and the defendant is not prepared to do so without a direction. I accept Ms Carden’s view as to the rationale for the condition and consider it to be reasonable. If the defendant can be suitably occupied and challenged, the risks of his lapsing into drug or alcohol abuse are diminished. As this abuse is usually the precursor to his offending behaviour, there is, in my view, a sufficiently close connection between the condition and the risk he poses. [Emphasis added.]

(See also, State of New South Wales v Amohanga [2015] NSWSC 875 (“Amohanga”) at [52], Schmidt J held: "Notwithstanding that this fear has a legitimate basis, I am satisfied that in Mr Amohanga’s case, given his history and the serious risk of violent re-offending which he poses, that the dignity, occupation, income and other benefits which employment would so obviously provide him, means that the cost of subjecting himself to the requirements which employment carries with it, is one which he must bear.").

215. I recognise the defendant has experienced difficulties in taking up employment, owing to medical issues, and as a result of being subject to the conditions of an extended supervision order. However, he has also successfully obtained employment since committing the offences, including during the period whilst he was subject to the 2014 extended supervision order. I would not, therefore, readily conclude it is unlikely the defendant would never be able to attain remunerative employment. No contrary suggestion was made by the defendant.

216. The evidence revealed that the absence of employment was a factor contributing to his risk of re-offending, by virtue of the absence of employment causing the defendant to re-engage in patterns of behaviour that contribute to the risk.

217. The corollary is that, as described by Schmidt J in Amohanga at [52], the attainment of work may result in the defendant being possessed of “the dignity, occupation, income and other benefits” that go with employment, which would, if availed of, improve the defendant’s overall prospects.

218. It might also be noted that condition 20 not only relates to employment, per se, but “education, training or participation in a personal development program”, which I consider could also contribute to the avoidance of risk for the same reasons as found in [216] and [217] above.

219. All of those considerations result in a conclusion that condition 20 is appropriate to manage the risk; provided it is expressed in a form, as it is, that gives the DSO an appropriate discretion.

220. I note, for completeness, that it would appear that that discretion is presently being properly exercised by the DSO as evident by the defendant being made exempt from searching for work (as at the time of the final hearing), for example, whilst he awaited an operation for gallstones and a hernia.

Access to Pornographic Material

221. As to the appropriateness of condition 50, the defendant contended that the State was required to produce “positive evidence, that access to… normal consenting adult pornography would somehow increase the risk factors in terms of the defendant committing a serious sex offence”. In the absence of such evidence, it was submitted, by counsel for the defendant, that such a finding could not be made.

222. In alternative, if the Court was minded to impose condition 50, because reference had been made to “preoccupation with sexual matters as being a risk factor”, it was contended that the exclusion of “X18+” would be appropriate provided that the words “or any other material as directed by the DSO” remained. In other words, the defendant contended for a construction of an “opt out” clause, that is, “if the DSO considers that it's inappropriate that the defendant access normal adult pornography, then it can be stipulated that he not have access to that in those circumstances”. This construction, it was submitted, was the more appropriate order in the absence of any direct evidence upon which the Court could draw a conclusion that access to normal adult pornography increases his risk factor of committing a serious sexual offence.

223. The State opposed the removal of “X18+” classification from condition 50. In doing so, the State also turned to the phrasing of the condition, namely the terms, “without the prior permission of the DSO”. It was contended that that phrase allows for the “possibility at least that if there were the appropriate expert input into whether that was a good thing to take out of that condition then consideration could be given to it in the future” (the State acknowledged that such a submission was advanced without the benefit of expert opinion or instruction in that respect).

224. The State also relied upon the authority Wilde v State of New South Wales [2015] NSWCA 28 (“Wilde”). In Wilde, the Court observed: “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” (at [53]). It was contended that condition 50 was “precisely” proposed in its present form “to address the risk of future offending of the type which was the basis of the order”.

225. Additionally, as to the connection of condition 50 to the mitigation of risk, reference was made to the affidavit of Ms Farroway. She deposed: “[p]roposed Conditions 50 to 53 are required to managed the Defendant’s identified risk factors around identification with young people, sexual preoccupation and the use of sex as coping” (at para 92).

226. On balance. I find that it is appropriate to impose the condition in the terms proposed by the State and without further modification. I reach this conclusion having regard to the content of the condition and its clear purpose to address specific risk factors, such as factors around sexual preoccupation and the use of sex as a coping mechanism, in order to mitigate the risk of future sexual offending.

Electronic Monitoring

227. During the course of evidence, reference was made by both parties to the “stages” of electronic monitoring. It was accepted that the defendant had not moved beyond “stage 1” during the 2014 extended supervision order. In this respect, the State submitted that “whilst that might normally be expected to go through 12 month stages for each of the stages, it would obviously have to be telescoped in a three year period”. As to its impact upon the risk of recidivism I turn to the evidence of the court appointed experts below.

228. Dr Ellis gave evidence that whilst electronic monitoring itself does not reduce the risk, “it may motivate people to attend upon rehabilitation activities more diligently... [and] people who attend diligently on their rehabilitation activities do better”. He opined:

electronic monitoring may be something that facilitates the actual risk reduction rather than reducing any sort of risk itself. I think this would be the sort of question, if he was to attend on all the rehabilitation, that is doing, without the monitor then that probably reduces the risk at the same rate as if he was attending all those things with the monitor on. What the monitor gives you is assurance that he is doing it.

229. As to the defendant’s apparent commitment to continue to attend upon his rehabilitation activities even in the absence of an extended supervision order, Dr Ellis opined:

… many people become enthusiastic about rehabilitation and then can lapse in that enthusiasm. Given [the defendant’s] past history of lapsed to substance use that would be – the fact that he says he will continue with treatment and abstain from substances is very positive and you want to encourage that, but it doesn't mean that he would necessarily be able to follow that.

230. A similar opinion was reached by Dr Roberts, in this respect: “[e]lectronic monitoring will reduce [the defendant’s] risk of re-offending by acting as a reminder that he is under supervision and it diminishes the risk that he will seek to evade supervision during periods of heightened emotion or lapses of judgement”.

231. Additionally, as to the “weekly schedule” that would accompany electronic monitoring, Dr Ellis opined:

In this particular circumstance I think the schedule is very important because someone who has not had much routine over his life and regularity and that kind of structure you are talking about, so I think that structure is important.

232. Whilst the Risk Management Report noted that the combination of electronic monitoring, schedule of movements and curfew assist in monitoring the whereabouts of the defendant, the limitations of the management strategy was also recognised: “it is noted that these risk management strategies did not prevent him from engaging in problematic behaviours such as drug use. Furthermore, it is noted that these strategies did not assist in detecting this behaviour due to him engaging in illicit substance abuse and associating with the anti-social individuals at his approved place of residence”. Nonetheless, both Ms Britton and Mr Ardasinski had acknowledged that “intensive supervision appears to have not only restricted his opportunities to offend, but created a stabilising influence".

233. In my view, when that evidence as to electronic monitoring is taken together with the evidence of the defendant’s previous behaviour on parole and under the 2014 extended supervision order, as well as the opinions of Dr Ellis and Mr Ardasinski, the condition providing for electronic monitoring sought by the State is appropriate. The measure will enhance the safety to the community by guarding against or encouraging compliance and the avoidance of deceptive behaviour as well as improving the prospects of engagement with rehabilitation, thereby, reducing the risk of re-offending.

Duration

234. As to the duration, the State submitted that based on the Risk Assessment Report and the concurring views of Drs Ellis and Roberts, a further extended supervision order of 3 years would be appropriate to address the long-term risk, both from a legal and from a clinical perspective (including the chronic or enduring nature of the defendant’s disorders), applying the conditions sought.

235. It was further submitted, “the expert opinion as to the chronic and enduring nature of the defendant's disorders, the mixture of progress and breaches under the current extended supervision order, and the continuing concerns about lack of insight into the sexual component of the offending history, all support an extended supervision order of 3 years duration, applying the conditions as presently sought”.

236. Whilst the two court appointed experts generally support an extended supervision order for 3 years on the conditions proposed, counsel for the defendant submitted, the determination is a legal question and remains at the discretion of the Court: State of New South Wales v Darrego [2011] NSWSC 1449 at [87]; State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [85]. Reference, in this respect, was also made to the observations of Hidden J in State of New South Wales v Conway [2011] NSWSC 925 (at [28]):

[28] … this decision is a legal one, not a clinical one. After careful consideration, I am persuaded by Mr Johnson's submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment.

237. Turning to the Risk Assessment Report, Mr Ardasinski opined that the defendant needed at least three more years to progress through the stages of electronic monitoring and develop a support network outside of CSNSW that can help him to manage his outstanding personality deficits which continue to relate to risk.

238. As to the recommendation of Mr Ardasinski, counsel for the defendant emphasised that his opinion was formulated back in November 2017. Additionally, consideration should be given, it was contended, to the length of time since the commission of a serious sex offence, the level of risk that is involved and the positive steps that have been taken in the last six months (namely, the period since his release from custody in February 2018) and determine that a shorter time is appropriate. It was submitted that the duration of the order should not exceed two years.

239. Notwithstanding the progress of the defendant, the State contended, in light of the material before the Court, the Court would not “have the necessary level of confidence, even with that six months demonstrated progress, to be able to say, well, I think two years would be sufficient, notwithstanding these clinical opinions”.

240. Additionally, whilst acknowledging the pro-social connection that the defendant presently has a friend, Steven, the State submitted there is “a fragility inherent in having only a small group of friends or a friend to rely on as part of your pro-social connections”. Hence, it was contended, the length of the proposed extended supervision order takes into account “the continued promotion of that so that we’re not just reliant on one person for our support and stability in the community”

241. Given the nature of the risk posed by the defendant, which, as I have earlier found, is unacceptable if not kept under supervision, I consider the appropriate period for an extended supervision order to be that proposed by the State, with the concurrence of the court appointed experts, namely, 3 years.

242. Whilst the recent progress of the defendant, with respect to his behaviour and participation in rehabilitative activities may be properly described as “promising” and “positive”, that progress, particularly in the light of its relative brevity and the nature and severity of the risks I have earlier discussed, does not warrant a conclusion that the duration of the order imposed should be other than that proposed by the State. The defendant’s psychiatric disorders are chronic and likely to persist even beyond any period of supervision. Both Drs Ellis and Roberts also referred to the relevant risk of relapse. Thus, I find that a further extended supervision order of three years duration, applying the conditions set out in Annexure A, appropriate to address the risks of re-offending as well as encourage the defendant to continue to undertake rehabilitation.

CONCLUSION

243. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under an extended supervision order.

244. An order shall be made pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 3 years from the date of this judgment. I also propose to make an order directing the defendant comply with the conditions set in the Schedule marked Annexure A attached to this judgment for the duration of the order pursuant to s 11 of the Act.

DIRECTION

245. In order to facilitate the disposition of the matter the State shall file and serve short minutes of order, reflecting this judgment, within 7 days of the publication of this judgment. The defendant shall either confirm the order proposed by the State or submit an alternative form of order within 14 days of the publication of this judgment. The Court will then make orders administratively in Chambers.

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Annexure A (232 KB, pdf)

Decision last updated: 29 October 2018