State of New South Wales v Farringdon

[2022] NSWSC 310

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Farringdon [2022] NSWSC 310

Hearing dates:

3 March 2022

Date of orders:

15 March 2022

Decision date:

23 March 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

See orders entered on 15 March 2022

Catchwords:

HIGH RISK OFFENDER – application for interim supervision order under the Crimes (High Risk Offenders) Act – preliminary hearing – weight given to material before the court – s 9 factors – interim relief granted

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Crimes Act1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Lawrence v State of New South Wales [2020] NSWCA 248

State of New South Wales v Farringdon [2018] NSWSC 874

State of New South Wales v Lidster [2020] NSWSC 275

State of New South Wales v Mustapha [2022] NSWSC 87

State of New South Wales v Newton [2022] NSWSC 224

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Keith Geoffrey Farringdon (Defendant

Representation:

Counsel:
K Curry (Plaintiff)
A Hughes (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2021/355589

Judgment

1. HIS HONOUR: By a summons filed 15 December 2021, the State of New South Wales (“the State”) sought an extended supervision order (“ESO”) for a period of 3 years from the date of any order made by the Court with respect to Keith Geoffrey Farringdon (“the defendant”), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. At the preliminary hearing, the State sought an interim supervision order (“ISO”) commencing on 15 March 2021, for a period of 28 days from that date, in conjunction with conditions set out in the Schedule to the summons and interlocutory relief under s 7(4) of the Act, appointing either two qualified psychiatrists or two registered psychologists, or a combination of one of each, to conduct separate psychiatric and/or psychological examination of the defendant and to furnish reports to the Court on the results of those examinations, by a date to be fixed by the Court (and a direction that the defendant attends to those examinations).

3. On 15 March 2022 the Court made the orders sought by the State for interim relief. These are the Court’s reasons for that decision.

BACKGROUND

4. The defendant is presently 41 years old. He was, at the time of the Court’s interim relief, the subject of an ESO under the Act, imposed by Button J for a period of three years in 2018 and after adjustment following time in custody, expiring on 15 March 2022: see State of New South Wales v Farringdon [2018] NSWSC 874 (per Button J) (“the ESO judgment”).

5. He was convicted in 2010 of two counts of sexual intercourse with a child under 10 years of age, in relation to offending in 2008. An aggregate head sentence of nine years six months, to expire on 1 April 2018, was imposed, with a non-parole period of five years six months to expire on 1 April 2014.

6. The defendant had been previously convicted and sentenced as follows:

1. on 30 September 2016, he was sentenced for two counts of produce, disseminate or possess child abuse material to a total head sentence of imprisonment for three years, which commenced on 18 June 2015 and expired on 17 June 2018, with a total non-parole period of two years, which expired on 17 June 2017;

2. on 19 September 2018, he was sentenced for four counts of failure to comply with his ESO in contravention of s 12 of the Act to an aggregate sentence of seven months (commencing on 6 August 2018 and concluding on 5 March 2019) with a non-parole period of three months concluding on 5 November 2018;

3. on 11 December 2020, he was sentenced for two counts of failure to comply with his ESO in contravention of s 12 of the Act to an aggregate sentence of 12 months (commencing on 11 September 2020 and concluding on 10 September 2021) with a non-parole period of six months concluding on 10 March 2021. He was released to parole on 10 March 2021.

THE EVIDENCE

7. The State relied upon two affidavits of Jessica Leigh Murty (together with Exhibit JM-1) affirmed on 15 December 2021 and 17 February 2022.

8. The defendant relied on a letter from Joshua Thompson, an NDIS Support Worker, who was supervising the defendant, dated 2 March 2022.

9. Ms Murty attached various OIMS case note reports. The defendant made submissions, to the effect, that lesser weight should be attached to the material nominating, in particular, the following aspects of the notes:

1. 10 November 2021, page 4 concerning schedules;

2. 12 November 2021, page 5 concerning adherence to medication and schedules;

3. 30 November 2021, page 6 concerning Androcur medication;

4. 5 December 2021, pages 7-8 concerning the DVD collection and the search of the defendant’s mobile device;

5. 14 December 2021, page 9 concerning the defendant’s identification of high risk places and thoughts of self-harm;

6. 27 December 2021, page 10 concerning the defendant self-harming; and

7. 29 December 2021, page 11 concerning the defendant self-harming

10. The defendant raised in that context the judgment of the NSW Court of Appeal in Lawrence v State of New South Wales [2020] NSWCA 248. It was submitted that the considerations of weight and limitations of use referred to in Lawrence has a role to play in the application of the s 10A test under the Act. Reference was also made in that respect to the State of New South Wales v Lidster [2020] NSWSC 275 at [23]-[26].

11. In my view, the Court may give considerations to the limitation in the use of material in a preliminary hearing considering an application for an ISO under s 10A of the Act, in the manner discussed in State of New South Wales v Mustapha [2022] NSWSC 87 (“Mustapha”), as applied in State of New South Wales v Newton [2022] NSWSC 224 (“Newton”).

12. I will return to those considerations in the course of examining material arising for consideration under s 9 of the Act.

STATUTORY SCHEME AND PRINCIPLES RELEVANT TO PREMLIMINARY HEARING AND APPLICATION FOR INTERIM RELIEF

13. The Court has recently discussed the statutory scheme under the Act and relevant principles associated with preliminary hearings and applications for interim relief, including, principles associated with unacceptable risk: see Newton at [16]-[46]. I adopted those principles for the present matter.

Threshold Statutory Criteria

14. The Supreme Court may make an ESO against an offender where the following elements are satisfied (see s 5B):

1. the offender (as defined in s 4A) is serving or has served a sentence of imprisonment3 for a serious offence (defined as either a serious sex offence or a serious violence offence) either in custody or under supervision in the community;

2. the offender is a “supervised offender”, being relevantly a person who is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature or under an existing ISO, ESO, IDO or CDO: s 5I;

3. an application is made in accordance with Part 2 of the Act: s 6; and

4. the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious offence” if not kept under supervision under an ESO: s 5B.

15. The defendant properly conceded that the first three conditions were made out but I propose to briefly pass upon those considerations.

16. The Court can dispose of an ESO application by making an ESO or by dismissing the application. The factors listed in s 9(3) must be taken into account, together with any other matters the Court considers relevant.

17. Although the Court’s power to grant an ESO is couched in terms that the offender (relevantly) has served a sentence of imprisonment for a “serious offence”, when the Court then turns to consider whether the offender poses an “unacceptable risk of committing another serious offence” (ss 5B(d) and 5C(d)), that consideration is not limited to considerations of offences of the same nature as enlivened the Court’s jurisdiction. The structure of s 5I(2) provides that a “supervised offender” or “detained offender” “is an offender”, which picks up the definition in s 4A of the Act. Providing the defendant has at some stage been convicted for a serious offence, and is currently serving a sentence of imprisonment for an offence of a sexual nature, an application can be made in respect of them to mitigate the risk of them committing another serious offence. That the defendant is an offender as defined and is under supervision under an existing ESO, are stand-alone threshold requirements which must be met before the Court can consider whether he poses an unacceptable risk of committing another serious offence.

18. The defendant meets these threshold requirements, having served a sentence of imprisonment for two counts of sexual intercourse with a child under 10 years of age and being subject to a current ESO. He has been convicted of offences committed under Division 10 of Part 3 of the Crimes Act1900 (NSW) where the offence was punishable by imprisonment for 7 years or more and is a “supervised offender”.

19. It may also be noted that for the purposes of the preliminary hearing the defendant accepted the paragraphs [1]-[15] of the ESO judgment.

Matters Relevant to the Application for an ESO

Prior criminal history – s 9(3)(h)

2008 offending – sexual intercourse with a child under 10 years of age

20. The facts of the defendant’s 2008 sexual offending (which involved offences contrary to s 66A of the Crimes Act) are summarised in the ESO judgment at [4]:

In 2008, when he was aged 28 years, the defendant enjoyed an intimate relationship with an adult woman. That gave him access to her young son from a previous relationship, who was aged seven and who suffers from cerebral palsy. On 29 September 2008, the defendant was in the company of the boy, along with his own niece, aged six. During a brief absence from a private home of all other adults, he committed acts of penetrative child sexual assault against those two victims.

21. Some salient aspects may be noted in that respect:

1. the assaults involved penetrative sexual intercourse, with digital penetration of one victim’s anus and the other victim’s vagina;

2. one of the victims suffered from cerebral palsy and was the son of the defendant’s then-partner (in relation to whom he was in loco parentis); the other was his niece;

3. the victims were aged six and seven at the time;

4. the defendant abused a position of trust in relation to the victims, which was regarded a substantial aggravating factor;

5. the defendant admitted to having started to fantasize about paedophilia in 2007.

22. Two counts of sexual intercourse with a person under 10 years were taken into account on a Form 1.

23. Judge Neilsen found the offences were in the mid-range of objective seriousness and imposed an aggregate head sentence of nine years six months, to expire on 1 April 2018, with a non-parole period of five years six months to expire on 1 April 2014.

24. The defendant was released to parole on 1 April 2014, but was charged with further offences, with the result that his parole was revoked and he returned to custody on 11 November 2014. Subsequently, he was sentenced by Judge Hanley SC in the District Court for two offences relating to possession of child abuse material.

Possession of child abuse material – 2014 (convicted 2016)

25. On 9 November 2014, police conducted a home inspection of the defendant’s place of residence pursuant to s 16C of the Child Protection (Offenders Registration) Act 2000. The defendant disclosed to the officers conducting the inspection that he was in possession of child abuse materials. Police seized and analysed his mobile telephone, laptop and two computer hard drives, recovering 30 images from the mobile telephone, and 52 images from the laptop that constituted child abuse material. Some of the material was in category 4 and depicted penetrative sexual intercourse between adults and children. In the ESO judgment, Button J stated at [12]:

In November 2014 … the defendant revealed to a person in authority that he had been accessing child abuse material on the internet. Subsequently, he was frank enough to admit not only that he had accessed such material within weeks of his release on parole, but also that he had been accessing such material in the period before he sexually assaulted the two victims many years beforehand.

26. The defendant was convicted of two counts of produce, disseminate or possess child abuse material in the District Court at Penrith on 30 September 2016. Judge Handley imposed a total head sentence of imprisonment for three years, which commenced on 18 June 2015 and expired on 17 June 2018, with a total non-parole period of two years, which expired on 17 June 2017.

27. I agree with the submission of the State that the following features are notable:

1. the defendant was on parole at the time these offences were committed;

2. he did not disseminate the images or make them accessible to others;

3. he acknowledged that the offences were not “victimless crimes”.

28. Judge Handley concluded that the first offence fell into the lower end of objective seriousness and the second fell below the midrange.

Contravention of ESO - 2018

29. On 19 September 2018 (in relation to events of early August 2018, approximately seven weeks into his ESO), the defendant was convicted of four counts of failure to comply with his ESO in contravention of s 12 of the Act. The offences related to the conduct of the defendant concerning the disregard of a direction not to contact other child sex offenders as follows:

1. he had contact by telephone with known sex offenders whilst subject to his ESO supervision;

2. he disregarded a direction not to delete content from phone (following a search of his telephone, no messages, call logs or emails were located. The defendant confirmed he had deleted them all out of "habit");

3. he was in possession of an image of a child without obtaining prior approval (the home screen of the defendant’s phone was a photo of his son aged approximately one year);

4. he failed to take medication as prescribed (a search of the defendant’s room and rubbish bin located seven days’ worth of medication - Seroquel and Zoloft - still housed in their individual blister packets).

30. The defendant was sentenced at Waverley Local Court and received an aggregate sentence of seven months (commencing on 6 August 2018 and concluding on 5 March 2019) with a non-parole period of three months concluding on 5 November 2018.

Contravention of ESO - 2020

31. On 11 December 2020, the defendant was convicted of two counts of failure to comply with his ESO in contravention of s 12 of the Act. The offences related to the following conduct:

1. possess a DVD depicting children without prior approval of his DSO (the defendant was found to be in possession of the Home Alone series DVDs);

2. access pornographic material (a search of the defendant’s internet history revealed that he had viewed pornographic titles).

32. The defendant was sentenced at Penrith Local Court and received an aggregate sentence of 12 months (commencing on 11 September 2020 and concluding on 10 September 2021) with a non-parole period of six months concluding on 10 March 2021. He was released to parole on 10 March 2021.

Views of sentencing court at time the sentence of imprisonment was imposed: s 9(3)(h1)

33. In sentencing the defendant for the 2008 offences, Nielsen DCJ noted the particular vulnerability of the defendant’s disabled victim, who had an intellectual disability as well as cerebral palsy, and was looking to the defendant for the protection he would seek from his father. His Honour regarded the objective seriousness of the offending as exacerbated by the fact that each of the victims had to observe the assault on the other.

34. His Honour regarded the incidents as “isolated” (though it was noted in the ESO judgment that the defendant later accepted that was not the case). His Honour referred to the victim impact statements and to the fact that he did not know whether the victims would recover sufficiently well from the offending. He regarded the offending as involving a grievous breach of trust in respect of both victims.

35. As to the likelihood of reoffending, his Honour referred to an assessment by a psychologist, Michelle Player, in 2009 that the defendant was at moderate risk of sexual recidivism, with factors increasing his risk including an inferred level of deviancy, sexual abuse during his childhood, a history of major attachment problems and depression and an unstable employment history. His Honour noted the defendant’s desire (at that time) to begin rehabilitation programs and regarded his prospects of rehabilitation as good.

36. He regarded a lengthy parole period as offering the best prospects of rehabilitation.

37. Judge Nielsen regarded the defendant as having inadequate psychological skills to deal with others in society, partly as a result of his history of abuse as a child. As Button J recorded in the ESO judgment, “[i]t is noteworthy that Judge Neilson referred to the fact that the offender admitted to starting to fantasise about paedophilia sometime in 2007”.

Risk Assessment Report

38. In his Supplementary Risk Assessment Report dated 2 August 2021 (“SRAR”) Mr Samuel Ardasinski noted that he had previously prepared a report dated 28 October 2020 in relation to the near completion of the defendant’s current ESO (“Completion Report”), but did speak to the defendant by telephone on 30 July 2021.

39. Mr Ardasinski noted that the defendant had a diagnosed “permanent and intractable” intellectual disability. He made a diagnosis of paedophilia on the basis of his offending and his experiencing intrusive sexual fantasies about pre-pubescent children. Mr Ardasinski stated that the defendant’s paedophilic disorder was “a chronic, relapsing condition” and that he had been “prescribed antilibidinal therapy for some years since his release to manage his urges”. He also diagnosed the defendant with various mental health disorders, mainly taking the form of a mood disorder (such as depression) or a personality disorder (Borderline Personality Disorder).

40. Mr Ardasinski stated that recent months have shown declines in the defendant’s mental health, such that he has required hospitalisation (although mental health units have inevitably discharged him without admitting him overnight). He was of the view that the defendant’s mental health conditions had never been either adequately assessed or adequately addressed, because they have either been assessed as “subclinical” or attributed to underlying borderline personality disorder. He was of the view that the defendant’s management of his mood swings, chronic feelings of emptiness and chronic ‘laziness’ had been “relatively resistant to treatment” – at least those forms of treatment that he had been able to access through his GP and CSNSW psychology.

41. With the notable exceptions that led to him being charged with failure to comply with his ESO in 2018 and 2020, Mr Ardasinski regards the defendant as having been largely compliant with conditions of his ESO since his release. He noted that, under supervision, the defendant’s life has been solitary and aimless. He had refused almost all attempts to engage him in some social life, and his informal supports being limited to one (elderly) aunt.

42. Mr Ardasinski also observed that the defendant had been mostly compliant with the supervision and had notified his DSO as to “anything he considered ‘risk related’, such as incidental contact with children or seeking accommodation which is in close proximity to schools”. However, Mr Ardasinski also noted that the defendant had failed to engage fully in the intervention process and had refused almost all attempts to engage him in some social life to increase his support circle, given his limited informal supports. His DSO concluded there was little or no shift in the defendant’s behaviours including continuing to demonstrate behaviours consistent with those identified in his offence pathway for child pornography offences and his risk factors remained valid.

38. In considering the 2020 ESO breach, Mr Ardasinski noted that, despite the defendant’s engagement with FPS, there are “some concerns” about his level of engagement and disclosure, since there were no indications that he was considering accessing adult pornography and questionable child-related content on streaming services in mid-2020 until the point of his arrest. The defendant had previously disclosed accessing sexual imagery in 2019, but only after being given a warning subsequent to material being found on his phone

39. The defendant initially denied to Mr Ardasinski that he had been experiencing sexual fantasies since September 2020, but then admitted to sexual fantasies about children once a week, stating that he “used self-talk and other strategies” to manage them. He denied masturbating to such fantasies.

40. The SRAR notes that, for the Completion Report (dated 28 October 2020), the defendant’s overall risk was reviewed using a number of instruments, but that Mr Ardasinski had not repeated those assessments for the purpose of the SRAR, given little had changed in the intervening period. The defendant posed a “Level IVa” (formerly Moderate – High) risk on the STATIC-99R at the time of Mr Ardasinski’s initial 2017 risk assessment. Mr Ardasinski opined that there had been no material change in this risk rating, on the basis that his two years in the community without committing further sexual offences had been effectively “cancelled out” by his two breaches of ESO constituting non-sexual offence convictions post-release.

41. The defendant’s October 2020 score on the STABLE-2007 was 13, in the high risk category, suggesting a high density of criminogenic needs relative to other male sexual offenders. The criminogenic needs of current clinical concern included Capacity for Relationship Stability, General Social Rejection and Deviant Sexual Interests.

42. The defendant’s dynamic risk factors (at October 2020), as identified by Mr Ardasinski, included his deviant sexual interest with chronic course, in relation to which the Completion Report noted that he had been medicated with antilibidinal therapy for some time. Mr Ardasinski stated that the defendant’s “most likely scenario for reoffence is seeking out child abuse material online; however it is far less likely, given his current circumstances, that he would have ready access to underage children into the future with appropriate mechanisms in place, such as the reporting obligations of the Child Protection Register”

43. Other dynamic risk factors included the defendant’s depressed mood and use of sex as coping, including by viewing online pornography. Noting that the defendant had complained that his depression had been worsened by the “limitations and stresses placed upon him”, and that “he is now known” within the mental health system, Mr Ardasinski opined that with “adequate mental health support, the defendant ought not need the rigorous supervision and monitoring of an ESO to stay safe”.

44. As to the further dynamic risk factors of attachment issues (resulting in intimacy deficits), problems with relationships and loneliness, the Completion Report notes that the defendant has mentioned seeking out trauma counselling (which would be of benefit). In relation to loneliness, the Completion Report states that the ESO is not the best mechanism to address this need, given the defendant’s past resistance to attempts by his DSO to motivate him to socialise. Mr Ardasinski considers the defendant’s NDIS provider should “take greater ownership” of his social isolation.

45. As to emotional dysregulation and capacity for impulsivity (additional dynamic risk factors), the SRAR notes that, while the defendant’s moods do oscillate despite being on antidepressant medication, each time there has been a decline in his mental health, this has resulted in hospitalisation rather than reoffending, which Mr Ardasinski considers an appropriate avenue of future support. While his residual impulsivity cannot be mitigated entirely, Mr Ardasinski noted that the defendant has been quite compliant with requirements to disclose potential access to victims to his DSO and believed that he would not actively seek opportunities to be left alone with children in future.

46. Mr Ardasinski’s conclusion in relation to these risk factors, in the Completion Report, was that, despite the defendant falling into the highest category on static and dynamic actuarial risk measures:

as regards these risk issues coalescing, there is little evidence in the material of real concern. Mr Farringdon has the protective factors of (albeit limited) family support, stable housing and professional network of supports such as a disability service provider, psychological intervention through FPS (which could be transitioned over to a private provider) and he has been seen to avoid situations which would have brought him into contact with children.

52. Mr Ardasinski noted that, whilst in custody, the defendant had twice participated in the most appropriate high-intensity treatment program, the Self-Regulation Program – Sex Offender version. He completed that program in 2013 and 2014. He repeated the program in 2017 and 2018 due to the reoffending for the possession of child abuse material. He also participated in risk management programs in individual sessions or maintenance groups run through the Forensic Psychology Services in Surry Hills on numerous occasions.

53. Paragraph 38 of the SRAR attracted particular attention in the proceedings and was in the following terms:

Mr Farringdon has been on antilibidinal therapy for some years now, but I understand he has had it prescribed by a GP and has not had any ongoing oversight by an appropriately qualified and experienced forensic psychiatrist. Despite being on testosterone-lowering medications, Mr Farringdon still breached his ESO by accessing pornography and questionable child-related videos online in 2020, indicating that this medication is not a 'hold all' for his diagnosed paedophilic disorder. Although it is my understanding (noting I am not a medical practitioner) that the effect of antilibidinals is to reduce sexual drive, not to alter sexual orientation. Further, Mr Farringdon has avoided being linked in with a private psychologist despite his ESO coming to an end, and while he has often mentioned that he feels better after speaking with people about his mental health and self-harm ideation he has very few informal supports in his life outside his elderly aunt Jenny. Without the oversight and support of the Department, it is doubtful that Mr Farringdon would have anyone looking out for him to avoid risky situations and manage himself with a specific concern about his potential to reoffend, even if only with a further offence of Possessing Child Abuse Material. He has indicated his intention to seek out a means to gain contact to his son, whom he told me in interview was now aged 13, and who is a client of the Department of Family and Community Services. Whether this would still be considered "unacceptable" in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court.

54. The defendant placed particular reliance upon an aspect of the Executive Summary to the SRAR which was in the following terms:

Over the course of Mr Farringdon's ESO, he has been intensively monitored and surveilled to moderate his risk, and he has also had support provided through the NDIS, although he has often failed to take full advantage of the opportunities that disability support may encompass. He has presented as chronically lazy, though within the context of a diagnosed mood disorder, there have been challenges in understanding how much responsibility Mr Farringdon should take for his lack of motivation to progress.

Mr Farringdon is subject to the Child Protection Register for Life. He would be eligible to be considered for a Child Protection Prohibition Order (CPPO), which could restrict the types of pornography he was able to access legitimately as well as make it an offence for him to have unsupervised access to children. The powers of NSW Police to attend on registrable offenders under s16C of the Child Protection (Offenders Registration) Act 2000, which require Mr Farringdon to keep Police informed of his whereabouts, co-habitants, and any regular contact with children, would likely be adequate to manage the risk that Mr Farringdon will destabilise to the extent that he poses an acute risk of serious sexual harm to children again.

Otherwise, if he were to be subject to a further Extended Supervision Order, the mitigation of future risk would be enhanced by ongoing community supervision and support, as well as further participation in the Maintenance program and/or individual risk management sessions with Sex Offender Programs. It would be necessary to adjust the conditions of any further ESO to best cater for his individual needs and minimise unnecessary restrictions on his liberty over and above those that would be related to his risk of serious sexual offending, which remains in the moderate range.

Other psychologist or psychiatrist reports

55. A number of additional psychologist and psychiatrist reports were made in respect of the defendant between 2009 and 2020.

56. Dr Adam Martin (psychiatrist) and Mr Patrick Sheehan (psychologist) provided reports for the purpose of the 2018 ESO application in April 2018. Their conclusions are recorded in the ESO judgment at [23]-[26].

57. Dr Martin was of the opinion that the defendant could formally be diagnosed with paedophilia and borderline personality disorder (both of which were likely to be lifelong conditions), and that various aspects of his life and character meant that he was likely to have an “ongoing heightened risk of future sexual offending.” The main issues identified by Dr Martin were that the defendant has sexually offended against different pre-pubescent children and, while on parole, had accessed child abuse material, demonstrating an ongoing paedophilic interest. Other issues included a background history of learning difficulties and significant emotional instability, probably attributable to chaotic development and having been abused himself as well as limited social supports.

58. Mr Sheehan stated that the defendant’s primary risk factors related to his paedophilic disorder, further complicated by his personality structure and cognitive impairment, with his risk of reoffending estimated to be in the moderate to high range. Mr Sheehan was of the view that the most immediate risk posed by the defendant was of accessing child abuse material on the internet (falling short of a serious sex offence), but this activity of itself was thought to heighten the risk of a “hands on” sexual offence against a child. Mr Sheehan noted a “possibility” of the defendant absenting himself from the disability home care support structure, thereby increasing the likelihood of placing himself in high risk situations where he may reoffend opportunistically.

59. The most recent of the other psychiatric reports by Dr Gordon Elliott (dated 6 November 2020) stated that the defendant has a likely diagnosis of paedophilia, which appeared to have been at least partially responsive to anti-libidinal medication, as well as a history of features consistent with borderline personality traits. Dr Elliott opined that the defendant’s engagement with prosocial adult contacts will be important to lower his risk of sexual recidivism, and that that a skilled disability support provider could increase his social outlets. Dr Elliott stated that the defendant “remains vulnerable to stress and the effects of loneliness” and that it appeared that at these times, his risk of offending increases.

60. In 2016, in a pre-sentence report, forensic psychologist Mr Jason Borkowski referred to the defendant having resorted to “maladaptive means of coping” upon his release from custody, including accessing child pornography and engaging in deviant sexual fantasies. He suggested that the defendant did have some insight into how his then-current behaviour in relation to the use of child pornography was harmful, as well as it being a notable risk factor for him.

Risk Management Report (“RMR”)

61. The RMR dated 8 September 2021 was prepared by Ms Danielle Ottaway. It was addressed at ameliorating the risk factors identified in the RAR. The RMR noted that, at the time of its preparation, the defendant’s mental health remained unstable, with his most recent self-harm behaviour occurring in early August 2021. He had been participating in telephone sessions with his Forensic Pathology Services (“FPS”) psychologist on approximately a fortnightly basis, but his engagement was considered poor. The RMR noted that he “continues to present as highly unmotivated”, exacerbated by the COVID-19 public health orders. The defendant had failed to engage with his private psychologist or NDIS funded disability support workers appropriately and was yet to attend his GP to discuss this lack of motivation and associated mental health issues. The RMR noted that at the time, the defendant had sourced independent accommodation in Western Sydney but was yet to relocate (the defendant has now done so).

62. The RMR notes that should the defendant continue to be subject to a Court order requiring supervision by Community Corrections, Community Corrections would engage in weekly face to face interviews with him, together with unannounced home visits on a monthly basis as a minimum. Other proposed risk management measures include close monitoring of any relationships that may give him access to potential victims, monitoring of his mental health and access to the internet, schedules in conjunction with electronic monitoring, ongoing engagement with FPS and prohibitions on contact with children.

Treatment or rehabilitation programs

63. I have earlier mentioned the completion by the defendant of the Self-Regulation Program – Sex Offender version. His July 2018 Treatment Report (prepared by Ms Megan Donaldson) described his participation as “satisfactory” and indicated he was motivated to engage in treatment, but his mood regulation issues impacted on his ability to meaningfully engage in such treatment and he “continued to rely on unhelpful coping strategies”. He was considered to have made some positive shifts through treatment and appeared to benefit from repeating the program, though the report stated he would require a high level of support in the community to adequately manage his risk factors outside the custodial environment.

Any other information available as to the likelihood that the offender will commit a serious offence

64. Reference may be made in this respect to psychiatric considerations and, in particular, the fact that the defendant is currently medicated for depression and has engaged in self-harm. He has had thoughts of self-harm as recently as November 2021 although he has generally not been hospitalised when presenting with such behaviour.

Is there a proper basis for relief sought

65. Having considered the foregoing s 9(3) factors and, having regard to principles applicable to a preliminary hearing under the Act (and applications for interim relief), the State has established, in my view, that there is an appropriate basis to exercise the discretion to grant an ISO and, in that context, that the matters alleged in the supporting documentation before the Court would, if proved, justify the making of an ESO.

66. My reasons for reaching that conclusion are as follows:

1. The history of serious sex offences against children under 10 which were substantially opportunistic and, as the defendant accepted, not isolated. I accept the submission of the State that the opportunistic nature of the defendant’s offending is an indicator that the risk of his commission of a further serious sex offence is likely aligned with the risk of his committing a further sexual offence not falling within that category.

2. The defendant has been consistently diagnosed with a specific paraphilia, namely, paedophilia. It was indicated in the SASR that the basis for this diagnosis has been his past offending and his experiencing intrusive sexual fantasies about pre-pubescent children. In that respect, he recently disclosed that he continued to have sexual fantasies about children as late as July 2021 which occurred about once per week. The paedophilic disorder is a chronic, relapsing condition, notwithstanding that anti-libidinal therapy assists in managing in urges but not the order per se. The defendant accessed pornography and sought out child related videos online in 2020 despite being medicated with anti-libidinal medication.

3. Medication non-compliance exacerbates the defendant’s risk of opportunistic and/or impulsive sexual offending. Whilst I accept the submission of Dr Hughes who appeared for the defendant that an OIMS case note of 30 November 2021 may be given reduced weight because of its form, nonetheless there is an indication that there have been periods since the defendant was released from custody where he may not have been completely compliant with the taking of anti-libidinal medication.

4. Expert opinion consistently points to the defendant posing a well above average risk of future sexual offending. I accept that a substantial amount of time has passed since the defendant’s last episode of direct sexual offending involving a child, but the defendant’s history of impulsive behaviour (identified as a dynamic risk factor) has consistently led experts examining him to the view that he required support to manage his risk factors and, at times, resorted to maladaptive coping strategies such as accessing child pornography.

5. In 2018, Mr Sheehan described the defendant’s risk issues as chronic and suggested an ESO of between 3 to 5 years’ duration and it would be realistic to oversee a period of transition into community life. Dr Martin expressed the view that the defendant did not have the internal capacity to adequately manage his tendencies to harmful behaviours and that managing his risk would be reliant on external support and ESO conditions.

6. The defendant remains extremely socially isolated and, despite the impending completion of his current ESO, he lacks support in the community in managing his risk factors outside the context of his DSO and FPS, save for the assistance of his elderly aunt. He has not taken full advantage of his NDIS funding and has avoided being linked to a private psychologist or psychiatrist. He has undertaken treatment programs as described earlier in this judgment. However, he has struggled to implement strategies developed during those programs over the course of his ESO.

7. The defendant continues to have episodes of self-harm which indicate a decline in the defendant’s mental health. I do not consider that the OIMS case note bearing upon this question should receive no weight. Plainly, the defendant reported that he had not self-harmed over about a 12 month period but there are instances of in the record of self-harm and admission to hospital during 2021. Managing the defendant’s mental health through his FPS and DSO is important in the management of risk. When the defendant feels stressed or lonely his risk of reoffending increases as illustrated by the 2020 conviction for breaching his ESO.

8. I acknowledge that Mr Ardasinski opined that the defendant was eligible to be considered for a CPPO which would restrict access to pornography, create reporting requirements and give powers to police and that, in Mr Ardasinski’s opinion, that would be adequate to manage the risk that the defendant will destabilise to the extent that he poses an acute risk of serious self-harm to children again. Mr Ardasinski recognised the defendant will require support in managing his risk factors. The context in which this opinion was expressed was that Mr Ardasinski recognised that, without the oversight and support of an ESO, it was doubtful that the defendant would have anyone looking after him to avoid risky situations and manage himself “with a specific concern about his potential to reoffend even if only with a further offence of Possessing Child Abuse Material”. Just whether the defendant would become the subject of a CPPO is ultimately a matter for police and the Local Court. The precise level of support offered by a CPPO is unclear including the capacity to intensively monitor and surveil the defendant to moderate his risk, particularly with respect to anti-libidinal and other medication, social isolation and mental health treatment. The State challenged whether the CPPO may provide that support. On the material before the Court, that submission has some substance.

1. While the defendant has an NDIS plan, he has not taken full advantage of the funding available to him as a result of his own lack of engagement with the package available to him.

67. It follows that the matters alleged in the supporting documentation would, if proved, result in the Court reaching the state of satisfaction required by s 5B(d) of the Act.

68. Having regard to those conclusions, the Court is required to make orders pursuant to s 7(4) of the Act.

Conditions

69. The only issue between the parties as to the conditions to be applied under the ISO concern conditions 5 to 7 of the Schedule to the summons concerning scheduling of movements.

70. In my view, scheduling conditions should not be removed at this stage, namely, from the ISO.

71. The defendant is currently on stage two monitoring which involves electronic monitoring, schedules (not restrictive) and a curfew as required. The defendant previously progressed to stage three monitoring which removed both the schedule and the curfew requirements. However, within three weeks of his progression he was charged with further offences. Upon his release from custody, he was returned to stage two monitoring.

72. The RAR notes the following regarding the rationale for the use of schedules in relation to the defendant:

It is the view of Community Corrections that a condition requiring a weekly schedule of movements and the imposition of a curfew would assist Mr Farringdon to plan his activities and develop a routine. Movement schedules would also assist in identifying and mitigating his risk of impulsive behaviour. It is noted that Mr Farringdon reported that the stressors of scheduling impacted on his mental health (RAR, Ardasinski, 2021, para 30), however he reoffended within weeks of the schedule of movements requirement being removed.

73. I accept the submission by the State that the schedule requirement may play a role in assisting the defendant to identify and participate in pro-social activities. It may also be used as a tool to mitigate the defendant’s social isolation.

74. The OIMS case note reports of 10 and 12 November 2021 indicate that a progression to remove schedules will be sought in the coming months. A discussion regarding this proposal has occurred between the defendant’s DSO and his Specialist Support Coordinator Joshua Thompson.

75. Overall and taking into account the weight that should be given to risk avoidance in this preliminary hearing, I consider there is utility in maintaining the scheduling conditions at an interim stage.

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Decision last updated: 23 March 2022