State of New South Wales v French (Final)

[2017] NSWSC 1475

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v French (Final) [2017] NSWSC 1475
Hearing dates:	16 June; 7 July 2017
Date of orders:	27 October 2017
Decision date:	27 October 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	I propose to order pursuant to ss 5C(1) and 9(1)(a) of the Act that the defendant be subject to a high risk sex offender extended supervision order for a period of 5 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.  In order to facilitate the disposition of the matter in that fashion 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 offender –application for an extended supervision order – whether the defendant is a high risk sex offender – whether the defendant poses an unacceptable risk of committing a further serious sex offence – consideration of factors in s 9 – rulings on admissibility and weight of evidence – the implication of evidence as to V2 – extended supervision order made for maximum duration of 5 years – conditions imposed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Attorney General for NSW v Tillman [2007] NSWCA 119 Attorney General v Gallagher [2006] NSWSC 340 Attorney-General of NSW v McGuire [2016] NSWSC 158 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 French v Regina [2006] NSWCCA 361 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 New South Wales v Anderson [2015] NSWSC 1515 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 Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Green (final) [2013] NSWSC 1003 State of NSW v Ali [2010] NSWSC 1045 State of NSW v Amohanga [2015] NSWSC 875 State of NSW v Baldwin [2016] NSWSC 1498 State of NSW v Donovan [2015] NSWCA 280 State of NSW v Fernando [2016] NSWSC 1665 State of NSW v Kamm (Final) [2016] NSWSC 1 State of NSW v Steadman [2016] NSWSC 174 Wilde v State of NSW [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Barrie James French (Defendant)
Representation:	Counsel: H Bennett (Plaintiff) A Cook and K Averre (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2017/80400

Judgment

1. HIS HONOUR: By an amended summons filed in Court on 16 June 2017, the State of New South Wales (“the State”) sought an order that Barrie James French (“the defendant”) be the subject of a high risk sex offender extended supervision order for a period of 5 years from the date of the order, pursuant to ss 5C(1) 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”.

INTRODUCTION

Course of Proceedings

2. By a summons filed on 15 March 2017 (“the summons”), the State sought the following relief:

Appointment of psychiatrists/psychologists

1. An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

a. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the result of those examinations by a date to be fixed by the Supreme Court; and

b. Directing the defendant to attend those examinations.

Continuing detention order

2. An order pursuant to s 5D(1) and s 17(l)(b) of the Act that the defendant be the subject of a high risk sex offender continuing detention order until the earlier of the following two events:

a. The expiry of 6 months from the date of this order; or

b. The date on which suitable and appropriate accommodation becomes available.

3. An order pursuant to s 20(1) of the Act that the Supreme Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the order referred to in paragraph 2 above.

Extended supervision order

4. An order pursuant to s 5C(1) and s 9(1)(a) of the Act that, for a period of 5 years from the date of expiry of the continuing detention order made pursuant to paragraph 2 above, the defendant be subject to a high risk sex offender extended supervision order.

5. An order pursuant to s 11 of the Act that the defendant is directed to comply with the conditions set out in the Schedule attached to this Summons for the duration of the order made pursuant to paragraph 4 above.

3. The summons was the subject of a preliminary hearing before Adamson J on 10 April 2017. Her Honour reserved her decision.

4. By a judgment issued on 12 April 2017: State of NSW v French [2017] NSWSC 400 (“the preliminary hearing”), Adamson J made orders, which included, inter alia, that the defendant be the subject of an interim supervision order from 23 April 2017 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant is to comply with the conditions in the Schedule attached to this judgment (Annexure A).

5. At the final hearing on 16 June 2017 before the Court as presently constituted, the State sought and was granted leave to amend the summons. The relief sought in paras 2 and 3 of the summons, in relation to a high risk sex offender continuing detention order, was abandoned and the form of the conditions at the preliminary hearing were sought by the State as final orders.

6. 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. First, the order was varied by Fullerton J, with the consent of the parties, in Chambers on 17 May 2017. Second, the interim orders were extended by the Court as presently constituted until 14 July 2017.

7. On 29 June 2017, prior to the continuance of the final hearing, the Court received a communication from the Registry that advised the defendant had returned to custody. An email was sent to the parties, identifying this changed circumstance, and requesting a status update. On 7 July 2017, the State provided the Court with an affidavit of Erin Kirkwood, the Departmental Supervising Officer (“DSO”) of the defendant, affirmed 5 July 2017. Ms Kirkwood deposed: “On 23 June 2017, the defendant was arrested by the Extended Supervision Order Investigations Team (NSW Police) and charged with one count of Fail to Comply with Extended Supervision Order, arising from positive laboratory results” (annexed to the affidavit was a copy of drug analysis report produced by NSW Health Pathology).

The Offences

8. On 13 May 2005, after pleading guilty to multiple offences of sexual intercourse without consent committed against one adult female victim (referred to throughout the proceedings as “V1”) in 2001 and 2002, the defendant was sentenced by Hock DCJ in the District Court of NSW to a term of imprisonment of 14 years. The offences were as follows:

1. Administer stupefying drug with intent to commit an indictable offence (2 counts) under s 38 of the Crimes Act 1900 (NSW);

2. Sexual intercourse without consent (8 counts) under s 61I of the Crimes Act;

3. Assault (1 count) under s 61 of the Crimes Act;

4. Assault occasioning actual bodily harm (2 counts) under s 59 of the Crimes Act;

5. Indecent assault (1 count) under s 61L of the Crimes Act; and

6. Aggravated sexual intercourse without consent (1 count) under s 61J of the Crimes Act.

(The abovementioned offences will hereinafter be referred to as “the offences”.)

9. The defendant’s sentence for the offences expired on 23 April 2017.

10. The offences related to episodes between 1 January 2001 and 1 July 2002 in which the defendant videotaped himself perpetrating sexual offences against the victim, without her knowledge or consent. After the offender drugged the victim, he tied her up, penetrated her genitals with objects (eg syringes and food items) and forced her to perform fellatio on him. The victim was unconscious or stupefied for the majority of the offending and unaware of the videotapes at the time. The victim had been the defendant's girlfriend for nine years with their relationship ending in 2002.

11. The offence came to light as follows. On 25 March 2003, police officers executed a search warrant at the defendant’s home in relation to separate allegations (see “March 2003 Complaint” below). There, they located and seized three videotapes, two of which captured the offences and were labelled Tape 2 and Tape 3, respectively (“Tape 1” is addressed under the next heading). (Collectively the videotapes shall be hereinafter referred to as “the videotapes”.)

12. The “Particulars of Indictment”, with respect to offence and the corresponding footage on Tapes 2 and 3, were annexed to the affidavit of Vicenzo Camporeale marked Ex 4 in the proceedings before this Court (the videotapes were also tendered on 17 August 2016, during the defendant’s sentencing hearing, before Hock DCJ). The document is extracted in full below:

PARTICULARS OF INDICTMENT

FRENCH

“TAPE 2”

Count	Timer	Particulars
1	N/A	Administer stupefying drug with intent - relates to the entire video [s 38]
2	09:58	Syringe inserted into complainant's vagina [sexual intercourse without consent - s 61I]
3	11:03	Syringe sticking into elbow [common assault —s 61]
4	11:12	Complainant has a number of syringes inserted into her body, including one through the labia [AOABH - s 59]
5	13:01	Syringe in anus. Syringe is being depressed and liquid expelled into body [Sex. Int. w/o consent s 61I]
6	14:49	Tim tam biscuit inserted into complainant's vagina [sex. Int. w/o consent – s 61I]
7	15:34	Tim tam biscuit inserted into complainant's anus. Biscuit removed and given to accused's dog to eat [sex. int. w/o consent - s 61I]

“TAPE 3”

Count	Timer	Particulars
8	N/A	Administer stupefying drug with intent - relates to the entire video [s 38]
9	11:19	Digital penetration of vagina [sex. int. w/o consent - s 61I]
10	25:05	Tim tam biscuit inserted into complainant's vagina [sex. int. w/o consent - s 61I]
11	29:45	Accused spits on complainant's vagina, after rubbing silver meditation balls on vagina [indecent assault - s 61L]
12	35:45	Fellatio, accused places penis in complainant's mouth [sex. int. w/o consent - s 61I]
13	39:40	Inserted red dildo into complainant's vagina [sex. int. w/o consent –s 61l]
14	49:37	Accused holds uncapped syringe near complainant's bottom. He inserts syringe into vaginal area [AOABH - s 59]

13. The District Court made determinations in relation to each of the offences, with the overall sentence being a term of 14 years and a non-parole period of 10 years.

14. The sentencing judge made the following comments with respect to the offences:

As the complainant was unconscious for most of the offences she has not been able to provide a statement detailing. ... Suffice to say that the offender subjected the complainant to many acts of degradation of the grossest kind. Not only was she drugged, she was also bound and tied up to the bed head. Should this matter proceed to a Higher Court I record my view that the offender's criminality cannot be adequately assessed by reference to the written material only. The complainant had no knowledge of these matters until she was shown the video tapes by the police. She had been in a long term relationship with the offender from 1994 until she ended it in 2002. Unsurprisingly being confronted with this material has had a devastating effect on her.

15. The defendant appealed his sentence. The Court of Criminal Appeal dismissed the appeal: French v Regina [2006] NSWCCA 361 (“French No 1”).

16. In considering the issue of the defendant's memory of the offences and the degree to which he was intoxicated by drugs at the time, M Adams J (with McClellan CJ at CL and Latham J agreeing) stated in French No 1 (at [37]):

[37] ... Nor do I accept that the appellant has told the truth about his lack of memory about the events in question, either to this Court or, for that matter, to Dr Westmore. Such a failure of recollection is inherently unlikely. Moreover, the conduct of the applicant as shown in the videotapes is quite inconsistent with the suggestion that he was intoxicated at the time. His actions are deliberate, careful and controlled and display no impairment of movement or fine motor skills. His voice is normal in tone, though what he says cannot be properly heard. Furthermore, I would reject the appellant as a witness of truth. It follows that it should not be concluded either that he was adversely affected by drugs at the time of the offences or that he has no memory of the relevant events.

17. As noted in the following extract, M Adams J viewed Tapes 2 and 3. His Honour observed:

[41] I have viewed with care the videotapes Exhibits 2 and 3. It is true that some of the conduct is, in a sense, context neutral, that is to say, it is impossible from those particular scenes to determine whether the victim was so affected by any drug that she was unable to consent to the acts in question. Nevertheless, taking each scene in context and considering the overall effect of what is depicted, I find it impossible to conclude that there is, to use the words of Badgery-Parker J, “a real question about the guilt of the accused”. Furthermore, the statements of the victim concerning her relationship with the applicant comprise what in the result is uncontradicted evidence that in effect demonstrates that she did not voluntarily take any drug that induced such a state of torpor or unconsciousness as is demonstrated not only by parts of the videotapes but also by her failure to respond to some acts that must have caused considerable pain. At the same time, it is obvious that on some occasions the complainant flinched when the applicant attempted some interference with her vagina. When that occurred, he stopped what he was doing and then attempted it in a slightly different way, without eliciting any response. This suggests that the complainant was, on those occasions, conscious enough to give a pain response and, I think it fair to add, that the applicant did not wish to cause pain.

[42] Taken together, however, this material amounted to a strong Crown case and, in respect of a number of the counts, an overwhelming one. I have formed this conclusion without considering the question whether the applicant’s assertion of a failure of recollection is true. In fact, I believe that it is untrue. On the whole of the evidence, it should be concluded that the applicant, at all material times, remembered well or, at least sufficiently well, the circumstances which he videotaped and was thus able to determine from his own knowledge whether he was guilty of the charges or not. When this consideration is added to those which I have already mentioned, the only appropriate order is to reject the application for leave to withdraw the pleas of guilty. It follows that the convictions must stand.

18. Having viewed the videotapes, his Honour observed, with respect to objective gravity of the offences as described by Hock DCJ, at [46]:

[46] … I agree with her Honour that it was unnecessary to describe in greater detail the applicant’s conduct. They sufficiently appear in the brief description contained in the introduction of this judgment. The learned sentencing judge said –

Suffice to say that the offender subjected the victim to many acts of degradation of the grossest kind. Not only was she drugged, she was also bound and tied to the bed head. Should this matter proceed to a higher court I record my view that the offender’s criminality cannot be adequately assessed by reference to the written material only.

19. I will return to my reasons for viewing the videotapes at [61]-[78]. However, it should be noted that the Court viewed, as part of its deliberations as to the present application, the videotapes.

March 2003 Complaint

20. In March 2003, a further complainant, referred to throughout proceedings as “V2”, made a complaint to the police that she has been raped by the defendant on 23 March 2003 (“the March 2003 complaint”). V2 provided the police an account of meeting the defendant and of the events leading up to 23 March 2003.

21. A search warrant was issued and acted upon, and it was in the context of this search that the videotapes disclosing the offences (Tape 2 and Tape 3) were discovered. As stated above, a third videotape was also seized (hereinafter referred to as “Tape 1”). Tape 1 contained footage of V2. On 25 March 2003, the defendant was charged with respect to the offences and the March 2003 complaint.

22. The prosecution of the March 2003 complaint, however, was not taken further because V2 advised the police she no longer wished to proceed. The matter was subsequently "no billed" in the Local Court. (Accordingly, Tape 1 did not feature on the Particulars of Indictment, extracted above at [12]).

23. At the final day of the hearing, this Court heard submissions with respect to the weight to be attached to the Tape 1 and the March 2003 Complaint (hereinafter collectively referred to as “the V2 evidence”). I will return to the discussion of the limit of the use of any evidence concerning V2 under the heading “Evidence before the Court” (at [79]-[81] of this judgment).

STATUTORY FRAMEWORK

Objects

24. 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.

25. 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

26. 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.

Part 1A

27. Part 1A of the Act concerns the supervision and detention of high risk offenders.

28. The power to make a high risk sex extended supervision order (“the order”) resides in ss 5C(1) of the Act. That power is, however, governed by s 5B(1) which confines the exercise of the power to a particular class of offender, namely, a high risk sex offender, an expression defined in s 5B(2).

29. Section 5B(2) may be described as the gateway to the power to make orders under ss 5C: Lynn at [55] and [64] (per Beazley P); State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 (“Donovan”) at [24].

30. The Act at s 5B(1) provides that an offender can only be made subject of an order "if and only if” the offender is a high risk sex offender. Of this phrase, McClellan CJ at CL in Attorney General v Gallagher [2006] NSWSC 340 stated (at [34]):

The caution that an order can only be made "if and only if” the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty.

31. Section 5B is in the following terms:

5B High Risk Sex Offender

(1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

(3) The Supreme 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.

32. The power to make an order under Pt 1A of the Act is premised upon the Court being satisfied to a high degree of probability (being a special level of satisfaction) that the offender poses an unacceptable risk of committing a serious sex offence (that assessment being one of “likelihood” of that risk) in the event that the offender is not kept under supervision: Lynn at [82] and Donovan at [12] and [24].

33. The term “sex offender” found in s 5B(2) is defined in s 4 of the Act to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a “serious sex offence”. That later expression is defined in s 5, the relevant components of which, for present proceeding are as follows:

5 Definitions of “serious sex offence” and “offence of a sexual nature”

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

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

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

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

…

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

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

…

34. The offence included convictions for offences under ss 66I, 66J, 66L of the Crimes Act, which are contained in Pt 3 Div 10 and are punishable by imprisonment for up to 20 years (per s 66J). For this reason, the offences fell within the definition of "serious sex offence" within s 5 of the Act.

35. The defendant may be considered a "sex offender", pursuant to s 4 of the Act, as he is over the age of 18 and he has been sentenced to imprisonment following conviction of a serious sex offence.

36. In relation to high risk sex offender applications, an order may only be made in respect of a "sex offender" who is a "supervised sex offender" who is in "current custody or supervision" in relation to an extended supervision order application (s 5I).

37. Section 5I sets out the threshold requirements in relation to an extended supervision order, which are relevantly:

5I Application for high risk sex offender extended supervision order

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

(2) A supervised sex offender is a sex 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 sex offence, or

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

(iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or

(b) pursuant to an existing extended supervision 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, intensive correction in the community or home detention and whether the offender is in custody or on release on parole.

38. The defendant falls within the definition of a “supervised sex offender” because at the time of the application for order the defendant was in custody serving a sentence of imprisonment for a “serious sex offence”: s 5I(2)(a)(i). In this, it will be noted that a person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole (s 5I(3)).

PRINCIPLES

39. The scope and operation of Pts 1, 2 and 3 of the Act received extensive consideration in Donovan and Lynn, which in my view, are applicable to the consideration of proceedings concerning high risk sex offenders.

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).

42. The structure of the Act would appear to require that the Court first undertake a determination of whether a person falls within the definition of a "high risk sex offender” (under s 5B(2)), having regard to the relevant standard, prior to considering whether or not to make an extended supervision order. It is only once the Court has made a determination that a person is a high risk sex offender that the criteria in s 9(3) is to be addressed: see Kamm at [26] and [42] (per Harrison J); Fisk at [22] (per Beech-Jones J). In Lynn, the Court of Appeal clearly relegated the Court's consideration of s 9(3) matter to a second stage determination under s 9, which arises only once the first stage determination under s 5B(2) has been made: State of NSW v Baldwin [2016] NSWSC 1498 at [17] (per Beech-Jones J).

High Risk Sex Offender Extended Supervision Order

43. Section 5C empowers the Court to make orders for an extended supervision order.

44. The Court in Attorney General for NSW v Tillman [2007] NSWCA 119 (“Tillman”) (at [30]-[42]) referred to the discretionary nature of a number of the provisions in the former Act, where the term "may" as opposed to "must" had been employed by the legislature. The Court concluded that a true judicial discretion was involved (at [42]). (See also Donovan at [14]-[15] and New South Wales v Anderson [2015] NSWSC 1515 (“Anderson”) at [15].)

45. Once the discretionary power to make an order has been enlivened pursuant to s 5C, 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], [149]).

46. 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: State of NSW v Steadman [2016] NSWSC 174 at [27] and[124] (per Adamson J).

Conditions

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).

54. 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

55. The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included reports and records produced by Corrective Services NSW (“CSNSW”), NSW Parole Authority as well as reports by various psychologists and psychiatrists who assessed the defendant between 1998 and 2017 (see at [172] of this judgment). In addition the Court received two expert reports from court appointed forensic psychiatrists: Dr Andrew Ellis (dated 7 May 2017) and Dr Jeremy O’Dea (dated 18 May 2017).

56. A Risk Assessment Report was also provided by Dr Richard Parker, a registered Senior Psychologist with the Serious Offenders Assessment Unit of CSNSW, (dated 2 September 2016) (hereinafter referred to as “the Parker report”).

57. The State relied upon the following evidence by affidavit: Vincenzo Camporeale (affirmed 15 March 2017, 30 March 2017, 10 April 2017 and 29 May 2017); Angela Rybak (sworn 3 May 2017) and Erin Kirkwood (affirmed 30 March 2017, 30 May 2017, 21 June 2017 and 6 July 2017).

55. The State also relied upon two further affidavits admitted into evidence subject to particular rulings with respect to confidentiality:

1. Vincenzo Camporeale (affirmed 1 June 2017), with an annexure consisting of the videotapes.

2. Lisa Viney (affirmed 15 June 2017), with an annexure consisting of a letter written by a “victim” to Corrective Services (hereinafter referred to as “the victim statement”).

59. No evidence was filed for or on behalf of the defendant.

60. During the course of proceedings, particular contentions were raised as to the requirement of the Court to view the videotapes, as well as the admissibility and weight of the V2 evidence and the victim statement. I now turn to my rulings with respect to that evidence.

The Videotapes

61. As stated above, the videotapes were annexed to the affidavit of Mr Camporeale affirmed 30 May 2017.

62. The videotapes were admitted into evidence in the District Court and the subject to orders made by Hock DSJ at the sentencing hearing as follows:

I direct that the videos which were tendered be sealed. They will be endorsed “Not to be Opened” except by a judge of a superior court or by the Director of Public Prosecutions. The[y] will be returned to the Officer of the Director of Public Prosecutions.

63. In the result, the parties in the present proceedings had not viewed the videotapes at the commencement of these proceedings (although the videotapes were tendered into evidence without objection).

64. The State submitted the videotapes should be viewed by the Court. Reliance was placed upon Hock DCJ’s remarks on sentence: “[s]hould this matter proceed to a higher court I record my view that the offender’s criminality cannot be adequately assessed by reference to the written material only”. The State also referred to the fact that the Court of Criminal Appeal viewed the videotapes in the hearing of the sentencing appeal: French No 1 at [41]-[42] and [46] per M Adams J (with whom McClennen CJ at CL and Latham J agreed) (extracted above at [17]-[18]).

65. Counsel for the defendant contended the written material before the Court “would be sufficient for the purpose of this hearing to proceed”. It was submitted, in that respect, that the factual basis of the offences “is very graphically and clearly described in all of the various documents that are before the court”, namely, Tab 7 of Exhibit 1, the particulars of indictment (see at [12]), the remarks on sentence by Hock DCJ and the judgment of M Adams J. It was submitted the Court may properly determine the present application without the need to view the videotapes, as the “severity” and “grossness” of the offences was already established.

66. In oral submissions, the counsel for the defendant contended:

Given that all of those materials place any assessment of the offending at the upper end, I don't think that there could be any description of it being otherwise than at the upper end, it is unnecessary to view the videos. If the Court was to view the videos other parties need to view the videos and make relevant submissions, so that is a further consideration, but your Honour has in the material the statement of facts, the narrative, the statements of the victim and what she says about her viewing of those videos, there are the trial particulars that link the individual act relied upon to the individual count on the indictment, there is what the District Court Judge said, there is what the appeal court judges said after careful consideration and, in circumstances where there can be no challenge with descriptions that place the offending over the fifteen counts at the upper end, it is not necessary, in my submission, for a viewing to properly consider all of the relevant criteria.

67. In the course of argument the Court raised with counsel for the defendant, observations made by M Adams J (at [37]), suggesting limitations within the written narrative of events leading to the defendant’s conviction for the offences, as follows:

[37] …the conduct of the applicant as shown in the videotapes is quite inconsistent with the suggestion that he was intoxicated by any drug at the time. His actions are deliberate, careful and controlled and display no impairment of movement or fine motor skills. His voice is quiet and normal in tone, though what he says cannot be properly heard. Furthermore, I would reject the appellant as a witness of truth. It follows that it should not be concluded either that he was adversely affected by drugs at the time of the offences or that he has no memory of the relevant events.

68. Counsel for the defendant maintained its contention but submitted, in the event the Court makes orders for viewing, the defendant should be afforded the opportunity to view the videotapes.

69. The Court ruled that the videotapes were to be viewed and thereafter viewed the videotapes.

70. Tapes 2 and 3 are plainly relevant to these proceedings (it was not suggested otherwise by the defendant). It may be accepted that the descriptions provided by Hock DCJ and M Adams J and the particulars of indictment of the offences are “graphic” but it does not follow that the videotapes are not appropriate to be viewed by the Court and, as a matter of procedural fairness, the legal representatives of the parties.

71. Hock DCJ’s views in that respect should, in my view, carry significant weight given she heard the trial of the offences and sentenced the defendant. Weight should also be given to the fact the Court of Criminal Appeal viewed Tape 2 and Tape 3, and that observation by M Adams J in French No 1 at [37] went beyond bare descriptions of the conduct of the defendant giving rise to the offences.

72. Most significantly, however, is that the Court, as presently constituted, 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, which must, in my view, involve at least an examination of the very material that was before the Court in the sentencing of the defendant (and his appeal for sentence).

73. The parties were directed to agree to a timetable for the viewing of the videotapes. Short minutes of order were filed in Court setting out a draft timetable for viewing by the Court and the parties. (Counsel for the defendant did not seek an order permitting the defendant an opportunity to view the videotapes.)

74. During the course of proceedings, the Court intimated that an application seeking the videotapes to be viewed by the experts would be allowed. However, after cross-examination of Drs Ellis and O’Dea, no such application was pursued. Dr O’Dea opined, having read the “transcripts” of the videotapes, that there was no deficiency in his report or opinion despite not viewing the videotapes.

75. Orders were made fixing the timetable as proposed in the short minutes of order.

76. In that result, the orders of Hock DCJ were varied in the following terms:

I direct that the videos which were tendered be sealed. They will be endorsed “Not to be Opened” except by a Judge of a superior court or by the Director of Public Prosecutions or the legal representatives party to these proceedings. The[y] will be returned to the Officer of the Director of Public Prosecutions. [Emphasis added.]

77. The Court has closely viewed the videotapes. With respect to Tapes 2 and 3, the Court accepts the conclusions of both Hock DCJ and the Court of Criminal Appeal, as to the nature and criminality of the offences. The severity and grossness of the defendant’s conduct is not disputed on the written material before the Court. However, the depravity of the defendant’s conduct is, in my view, best understood within the context of the visual narrative made and controlled by his hand. The defendant’s meticulous degradation of V1, in my view, is relevant to an assessment of not only the risk of re-offending but the type and nature of the offences which may be committed absent supervision.

78. The Court also viewed Tape 1, which is also graphic, but its implications with respect to V2 requires separate consideration.

The V2 Evidence

79. In respect of the V2 evidence, the State contended that the Court should adopt the approach of Adamson J. At the preliminary hearing, her Honour limited evidence, with respect to V2, to the likelihood of the defendant’s re-offending. Counsel for the State submitted:

It’s not being submitted that this Court ought to make a finding or can make a finding that it in fact happened. What’s being said is that, [a] complaint [has been] made and that is the nature of the complaint. And that’s as high from a factual evidentiary basis that the State can take it.

80. Counsel for the defendant referred to the opinion of Dr Ellis with respect to the V2 evidence. Dr Ellis opined, “if the allegations brought by [V2] are considered accurate then this arousal pattern is likely to be prolonged and chronic”. In that light, counsel for the defendant conceded:

That your Honour was another way in which, outside of that which you raised with my friend, the allegations as against V2 play a part in any assessment. And again, your Honour that would not be cavilled with in terms of its appropriateness in that report and a conclusion that was drawn by Dr Ellis in that regard.

81. The State correctly submitted, in my view, the Court is not in a position to make a finding of fact in relation to the untested allegations concerning V2, or, in that respect, draw conclusions of that kind from the viewing of Tape 1. The V2 evidence may only establish a complaint was made, with respect to a sexual offence, and to that end, it is limited to the defendant’s risk of re-offending. Thus, whilst the images on Tape 1 may appear to exhibit a similar level of degradation of V2 by the defendant, as that viewed in Tapes 2 and 3, its impact must be limited to the likelihood of, as Dr Ellis put it, the arousal pattern being prolonged or the risk of re-offending in that sense, being higher. The viewing of Tape 1 was applicable to the assessment in that respect and for the purposes of making the evaluative judgment of the nature referred to in [72] above. In my view, Tape 1 is only demonstrative of the risk of re-offending, in that sense, as conceded by the defendant.

The Victim Statement

82. The victim statement was admitted into evidence pursuant to s 21A of the Act (the person who made the statement was not expressly identified in the course of proceedings and will hereinafter be referred to as “the victim”). I will briefly summarise my reasons, in that respect, as to rulings on admissibility and weight.

83. The State submitted that the victim met the criteria of “victim” as defined under s 21A(8). This was supported by the oral testimony of Ms Viney which confirmed the victim had been on the Victim’s Registry since 20 August 2013. The defendant did not object to this testimony. Counsel for the defendant also drew the inference that the victim, in order to meet the threshold of the provision, was “a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment”, namely, V1: s 21A(8). It was left to the Court to determine if the threshold was satisfied. However, it was contended that in the circumstances of an unsighted and “unsigned” victim statement, the weight attributed to the document should be “significantly reduced”.

84. In respect of weight, the State conceded: “there is little weight to be had, in terms of any risk of future offending; the State will be relying on all of the other evidence that the defendant has had the opportunity to review and make submissions in relation to”. To that end, the State submitted, “The purpose behind section 21A, in a sense, is to give the victim a voice in the proceedings and give the opportunity to have before the court the impact, some impact, from the perspective of the victim before the court”. It was submitted that the victim statement does not bear upon the Court’s assessment under s 9 of the Act except in a “broad” sense, namely, “the vulnerability and the risk to the community and the protection of the community; part of that assessment of risk is the harm that's been done to individual victims but it is, in my submission, that the State does not need to [otherwise] rely on and won't be relying on the contents of that document”.

85. Further, the State advised that the victim “consents to that document going to the legal representatives of the defendant, but not the defendant”. By withholding consent, this Court should attach little weight to the statement: s 21A(7)(a).

86. In light of the victim statement, it was determined that the substance of the statement, even in redacted form, could not be disclosed to the legal representatives of the defendant without identification of the person who made the statement: s 21A(7)(b). The Court ruled “it will be available to no person other than the Court and the legal representatives of the State”. In the result, very little weight may be attached to it.

General Factual Background

87. The defendant is a 44 year old male who was born on 9 November 1972.

88. The Parker report set out the relevant personal and psychosocial background of the defendant as follows:

[7] Mr French was born in Sydney and has a sister, nine years his junior. From birth he was placed into the care of his maternal grandparents in Wollongong, after his mother was seriously injured in a motor vehicle accident. At five years of age he moved back to Sydney to live with his father. His mother was in and out of hospital, as a result of her injuries.

[8] He said his father was repeatedly violent towards his mother and himself when he was a child, and they are currently estranged. His parents separated when he was in his twenties. He has had no contact with this mother or sister since an argument in 2003.

[9] Mr French reported he was sexually abused in his later childhood by a man he met at a video arcade. The offender bribed him with money and he did not report this to authorities (Duffy, 16/11/2004). He also disclosed that, around the same time, a mentor also attempted to sexually abuse him.

[10] He was taken to a psychiatrist by his parents when he was around twelve or thirteen years of age, as a result of his behavioural problems, and has seen several psychiatrists. However, he has never been hospitalised for psychiatric reasons.

[11] His schooling was reportedly problematic, due to his behaviour, and he was sent to boarding school as a result. Mr French reported he left school during year 9, but later attended TAFE and obtained a certificate of general education. He reported he has worked as a plasterer, as spray painter, in security and as a storeman. While previous documents suggest none of these positions lasted longer than three months, at interview Mr French said he held the spray painting position for about three years and worked nights undertaking security duties for about four or five years. He last worked in 2000, when he was injured in a forklift accident (Case note, 12/8/2011).

Sexuality and relationships

[12] Mr French reported a substantial number of casual relationships with "hundreds" of women but only three substantial relationships. Two of these lasted 9-12 months and the relationship with the victim of the current offences lasted nine years (Britten, 16/11/2004).

89. There is little specific documented detail in relation to any of the defendant's long term relationships (although there was a notation made by a psychologist in the defendant’s CSNSW Case Management file and Offender Integrated Management System (hereinafter referred to as “the OIMS case notes”) that the defendant has a 15 year old son and 23 year old daughter).

90. From an employment perspective the offender is reported as last working in 2000 at which time he was injured in a forklift accident. Issues relating to misuse of his prescribed pain management medication have been raised.

Criminal Offending

91. The defendant’s criminal history consists of a mixture of violent, sexual, and other offences dating back to 1987. 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.

92. The defendant was first brought before the Children's Court at about 13 years of age. The defendant’s prior convictions include, inter alia, stealing, break enter and steal, assault, driving offences, and trespass.

93. In 1994 the defendant, who was 22 years old at the time, began a relationship with V1, who was then 18. Adamson J observed the following at the preliminary hearing (at [20]-[21]):

[21] … After the first year [of the relationship], he became verbally abusive and later became physically abusive. He had a pistol and dealt in ecstasy. The defendant kicked and punched V1 and also hit her with a baton and baseball bats. Her coccyx fractured when he kicked her with a steel-tipped boot. She also sustained a fractured rib.

[22] The defendant was charged on an indictment presented in 1999 with an offence of demanding money ($4,000) with menaces. He pleaded guilty to the charge. A pre-sentence report dated 14 April 1999 reported that, in the past 4-5 years, he had resided between his parents’ home and the home of his girlfriend (V1, see further below). Its author noted the defendant’s tendency to become abusive when angry. A Community Service Order of 250 hours was imposed on 15 April 1999 by the District Court. The Community Service Order was revoked in September 2000. A sentence of periodic detention was imposed, which was revoked. A sentence of home detention was imposed but it, too, was revoked. Ultimately a sentence of imprisonment of 5 months and 2 days, which concluded on 23 June 2002, was imposed.

94. In 1996, the defendant was charged with offences of demand property with menaces, assault occasioning actual bodily harm and kidnapping. He was found not guilty by verdict for the assault and kidnapping charges, and received a Community Service Order (“CSO”), without conditions, for a period of 250 hours, for the demand property with menaces charge. The CSO was breached and revoked, and a Home Detention Order (“HDO”) was made in its place. The HDO was also breached and revoked. The defendant ultimately received a sentence of imprisonment for a period of 5 months and 2 days.

95. The details of the defendant’s criminal offending, with respect to the offences, are discussed above at [8]-[19]. See also State of NSW v French at [19]-[32] (per Adamson J).

Parole

Decision to Refuse Parole on 14 February 2014

96. The non-parole period for the offences expired on 9 April 2013. A pre-release report was prepared on 22 January 2013 by Wagga Wagga Probation and Parole Service. The report did not recommend release to conditional liberty. It was recommended that the defendant complete the Custody-Based Intensive Treatment program (“the CUBIT program”) prior to further parole consideration.

97. On 14 February 2013, NSW State Parole Authority released its decision not to release the defendant on parole. The primary reason and “critical issue” being, the defendant “needs to address his sexually offending behaviour through therapeutic program participation in custody”. Until such time, the NSW State Parole Authority did not believe the defendant’s release to parole was appropriate.

98. An “Anniversary” pre-release report was prepared on 21 January 2014 by Long Bay Parole Unit. The report noted that the defendant’s “attitude is yet to show significant change” since the pre-release report dated 22 January 2013. However, despite incurring numerous institutional misconducts since that report, it was recorded that the defendant’s behaviour appeared to be improving. It concluded that until the defendant “adequately addressed his offending behaviour through completion of the CUBIT program his release to parole is not recommended”.

Release on Parole from 16 July 2014 to 8 September 2014

99. The defendant was initially released on parole on 16 July 2014, at which time he resided with his grandmother in Wollongong.

100. Following a period of approximately one week after release the defendant was referred to a local GP for a consultation and possible medication as he stated he was having problems with sleeping, anxiety and depression. He was also referred to Forensic Psychology Service (“FPS”) for intervention with respect to his offending behaviour, and a further referral pending to see a generalist counsellor to assist him.

101. During this parole period, the defendant’s behaviour deteriorated to a stage where, as of 4 August 2014, his grandmother repeatedly contacted the Probation and Parole Service with instability issues of the defendant, namely, drinking heavily and verbal abuse. There were also concerns identified by the police on 11 August 2014. The police called Barney King, Probation and Parole Officer at Wollongong Community Corrections, to advise that they had reports from a local GP that the defendant could be “doctor shopping” for medication. There were also further reports from the police that the defendant was spoken to in regards to being an intoxicated person on three separate occasions.

102. Further reports were obtained from FPS that the defendant, whilst attending group sessions, was drug affected. A report from the defendant’s GP recorded concerns that the defendant had spoken to her about harming himself and/or others.

103. On 22 August 2014, the defendant was permitted to visit and stay a few nights with his father in Cabramatta. This was allowed due to the increasing conflict and instability at his accommodation with his grandmother. The purpose of the visit was to ascertain any potential accommodation options. He was directed to return on 26 August 2014 following his FPS appointment.

104. On 25 August 2014, the defendant contacted Probation and Parole Service to request a longer stay at his father’s place as he had run out of money. The defendant was allowed two further days, at which time he was to receive his next Centrelink benefit.

105. On 28 August 2014 the defendant advised Probation and Parole Service that he had developed a medical condition and was “unfit to travel due to some swelling of his legs”. The diagnosis was confirmed by Cabramatta medical practice. This occurrence raised concern. A Community Corrections Officer from the Fairfield District Office was requested to undertake a home visit on 29 August 2014. Upon their arrival, there was no one home.

106. On 1 September 2014, the defendant contacted the Probation and Parole Service to advise that there had been some incidents over the weekend involving police. He also added that he was in the process of sorting the issue out and was unable to report until “a little later in the week”. In fact, the defendant was charged with assault occasioning actual bodily harm and stalk/intimidate with intent to cause fear or physical harm (domestic). It came to light that the offence had been committed against his father on 24 August 2017. He was also alleged to be in breach of his parole, namely, conditions 1, 2, 3, 7a and 14. Shortly after his arrest, the defendant’s father withdrew the complaint. (On 1 December 2014, at the Liverpool Local Court, the charges brought by the complaint of his father were dismissed.)

107. On 3 September 2014, a Breach of Parole report was prepared by Mr King and endorsed by Leah Hawkins, A/Unit Leader at Wollongong Community Corrections. Mr King recommended that the defendant’s parole should be revoked as of the day of the assault.

108. On 5 September 2014, the State Parole Authority found the defendant to be in breach of his parole. His parole was revoked and the defendant was ordered to serve out the balance of the sentence for the offences in custody (2 years, 7 months and 1 day) commencing from 7 September 2014.

Release on Parole from 18 February 2016 to 24 March 2016

109. On 18 February 2016 the defendant was released on parole and placed in the Community Offender Support Program (“COSP”), which included temporary residence at the Nunyara COSP centre. There was no other suitable accommodation available. The defendant’s behaviour in the program was described as “difficult” and included verbal outbursts. Christopher Rolleston, Community Corrections Officer, in a report dated 24 March 2016, made the following observation:

Since his release from custody to the COSP, Mr French has been issued numerous warnings by the management at the centre regarding his poor attitude and lack of compliance with the programs conditions. Some of these include: threatening to assault a staff member, schedule deviations, presenting under the influence of illicit substances and failing to take prescription medication under the supervision of staff as required…

110. As a result of his behaviour, the defendant was given a two week eviction notice on 23 March 2016. That same day he was found unconscious by the police, apparently under the influence of some substance. His parole was revoked on 24 March 2016. He was to serve the balance of his sentence in custody.

Interim Supervision Order

Release on Interim Supervision Order on 23 April 2017 to 23 June 2017

111. The defendant’s sentence for the offences expired on 23 April 2017 and he was released to the community under an interim supervision order. He resided at Providential Homes Mt Druitt from 23 April 2017 up until his arrest on 23 June 2017. The defendant’s DSO at this time was Ms Kirkward. The following summary is primarily derived from the Ms Kirkward’s record of the defendant’s performance under supervision, deposed in her affidavit affirmed 30 May 2017.

112. Providential Homes is a Christian non-denominational not for profit organisation which provides transitional and supported accommodation. Transitional housing is subsidised housing, based on the guest’s “affordability”, and it used as a stepping-stone to longer-term housing, helping participants in the program to source their own private rental accommodation. Participants are provided support and guidance in seeking rental properties, mentored in how to keep their own properties and given follow up assistance once they have moved into their new homes.

113. The defendant described the circumstances of his living arrangement to Dr O’Dea. The house was overseen by Pastor Warren and consisted of 5 bedrooms and a granny flat. He recalled three people, including himself, resided in separate bedrooms, and noted that “others come and go”.

114. The defendant’s accommodation was temporary, up to a maximum of six months.

115. From about 10 May 2017, the defendant was made a caretaker for Providential Homes. This unpaid role required the defendant to complete basic maintenance tasks and assist other residents with issues that arose in the absence of staff.

116. On 19 May 2017, the defendant disclosed he had been communicating via telephone with a female. As a result of intelligence checks, a verbal direction was issued for the defendant to cease contact with that female.

117. On 24 May 2017, a search of the defendant's phone revealed:

1. explicit photographs and illustrations of adult female persons, depicting bondage activities and females in lewd and suggestive poses;

2. contact details of two known sex offenders; and

3. use of an active Facebook account.

118. Further directions were issued in relation to those occurrences.

119. On 23 June 2017, the defendant was arrested by the Extended Supervision Order Investigations Team (NSW Police) and charged with one count of “Fail to Comply with Extended Supervision Order” (discussed above at [7]). The defendant was refused bail and remained in custody as at the date of final submissions.

Behaviour in Custody

120. The State submitted that the defendant's response to custodial supervision was generally “challenging”. This description was supported by the Inmate Profile Document compiled by CSNSW, which recorded 33 institutional misconduct offences. CSNSW also recorded “it is of concern that [the defendant] has been subject to disciplinary action on six occasions in the past 12 months for offences that include Refuse Fail Drug Sample, Disobey Direction Create Possess Prohibited Goods and Fight or Other Physical Combat”.

Reports of Court Appointed Experts

Dr Ellis’ Evidence

121. The defendant was examined by Dr Ellis on 24 April 2017 for a period of two hours. Dr Ellis issued a report dated 7 May 2017.

122. Dr Ellis opined that the defendant suffered from sexual sadism disorder, substance use disorder, and personality disorder (a mixture of antisocial, borderline and paranoid). He further suggested the defendant may suffer from some mild cognitive problems and noted that the defendant reported symptoms of depression and panic.

123. Dr Ellis formed the view that clinical considerations regarding risk included deviant sexual arousal, substance use and personality disorder as well as the 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:

Mr French’s offence history indicates this pattern of arousal. His index offences, and other recorded sexual activity are likely reflective of this sexual arousal. Physical coercion with drugs and physical force was employed in order to subdue the victim.

124. Dr Ellis noted that anti-libidinal medication was “the best treatment to address deviant arousal”. He also opined that behavioural techniques may reduce deviant arousal.

125. Dr Ellis reported that antisocial personality orientation was another factor consistently identified with sexual re-offence, as was substance use and mental disorders such as depression, psychosis and panic. In respect of the defendant’s diagnosis of antisocial personality disorder, Dr Ellis opined:

Disturbance in personality function can interfere with honesty in treatment, cooperation with restrictions, passive-aggressive sabotaging of treatment progress, and be a risk for development of at risk mental states such as anxiety and depression. Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. [Mr French] describes long term relationship dysfunction including directly at the time of offending. He has offended within a relationship. His institutional adjustment has been poor. He had variably engaged with treatment, and at times has been superficially involved. There is therefore need to continually address personality function as part of any ongoing treatment process.

126. In relation to the defendant’s diagnoses of substance use and mental disorders, respectively, Dr Ellis opined that they are “modestly correlated with repeat sexual offending”. The former “may serve to disinhibit underlying sexual arousal towards objectification and humiliation of women”, whereas the latter, if untreated, may result in negative mood states and psychotic symptoms that “may impair judgment and increase impulsivity”.

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

Studies show that persons who reinforce gains made in custodial programs with ongoing work in the community, may display lower rates of recidivism. … At this review, [Mr French] displayed poor understanding of his motivations to offend, and no strategies to desist from offending in the future. His participation in treatment would be considered marginal, with poor reports from treating clinicians.

He is not yet at an age where significant risk reduction could be attributed to maturity and decreased aggression or sexual drive.

128. 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 Mr French, given the particular pattern of sexual arousal, the likely type of victim would be a woman in a situation where they were alone or in a position of vulnerability. The associated intimidation, shame and loss of a sense of bodily integrity would be of the type where serious physical and psychological injury is foreseeable.

129. Overall, in light of the above assessment, Dr Ellis considered the defendant to "fall into a group of persons with a risk for serious sexual offending that is statistically moderate-high in frequency, of a type with serious consequence, and greater than the theoretical average offender".

130. Dr Ellis was of the view the defendant would require significant monitoring when in the community, and further noted that "this will need to be vigilant as he could engage in deceitful behaviour", and further noted that if treated with anti-libidinal medication, then further reduction in risk was likely.

131. Dr Ellis reviewed the risk management plan set out in the Risk Management Report provided by Cornelius Van Ryn, Senior Community Corrections Officer (discussed below at [194] and following), and stated that "all of these conditions are considered necessary and desirable from a clinical point of view in managing the present risk". He stated that an extended supervision order for a period of five years was considered reasonable.

132. Dr Ellis was also cross-examined with respect to the V2 evidence:

Q. Firstly, in relation to your opinion … that if the allegations brought by the second victim or V2 are considered accurate then the arousal pattern is considered to be prolonged and chronic?

A. Yes.

Q. And if it was the case that the allegations made by V2 in the proceedings were not accepted or were not accurate what impact does that have?

A. It could potentially mean that this was a more discrete period of time in which he was experiencing this kind of pathological sexual arousal, but that also usually that kind of sexual arousal pattern is a long term problem, but if the allegations of the second victim were true then it would strengthen the opinion that it would be a prolonged and chronic pattern of sexual arousal. I think the videotape evidence indicates that there is at least a - this is not a one-off incident but, if you had further information that this had happened on other occasions then that makes it more likely that there's, it strengthens the diagnosis essentially.

Q. Is it your opinion that in terms of substance use or substance misuse?

A. Yes.

Q. That that would be a concerning feature that elevates risk?

A. Yes.

133. Dr Ellis provided his opinion with respect to the defendant’s limited insight in relation to his offending:

Q. In relation to the issue of insight are you able to indicate, or would you accept that it is fairly common amongst sex offenders for there are to be limited insight and some degree of denial?

A. It's, yes, it is relatively common for there to be denial of offending altogether or a denial of aspects of the offending. It is I mean, yes, that is a common finding.

Q. And even when that is common amongst sex offenders, sex offenders generally can progress well in treatment and be responsive to treatment even with such limited insight and denials continuing?

A. Yes, as long as that that insight and denial doesn't stop a person participating in rehabilitation it is generally not to greatly significant factor in determining someone's risk. If someone denies past sex offending but they participate well in rehabilitation the denial is not such an issue. But if the denial, for example, led to someone saying, Well, I'm, it's fine to me to use substances because none of that stuff happened, then it becomes a crucial and important factor.

134. As to the defendant’s prospects for rehabilitation, Dr Ellis identified the following indicia for successful integration into the community: secure stable accommodation, regular routine, employment, education, other pro-social activities and the ability to interact with a supportive social group. Dr Ellis opined, “they would all be positive things for longer term risk management and rehabilitation”. Dr Ellis also agreed and recommended that drug and alcohol treatment as well as psychological treatment of some kind (such as FPS) should be undertaken to assist with integration into the community.

Dr O’Dea’s Evidence

135. The defendant was examined by Dr O'Dea on 8 and 11 May 2017 for a period of about three hours. He provided a report dated 18 May 2017.

136. Dr O'Dea summarised the defendant’s psychiatric status as follows:

Mr French's criminal history, including his history of violent offending and sex offending, leading up to and including the index sex offences, may be best understood in the context of his general antisocial personality, sexual deviance and substance abuse; with his psychosexual history, and sex offending history in general, and the index sex offences in particular, pointing to at least specific interest in coercive sexual activity, and a Paraphilic Disorder, Sexual Sadism Disorder

137. In this context, Dr O'Dea noted that the best predictors of future sex offending are past sex offending and the presence of significant sexual deviance, particularly in the context of substance use disorder and personality disorder, as in the defendant's case.

138. In relation to the issue of risk, Dr O'Dea opined:

Although prediction of risk in general, and of the risk of an individual engaging in future sex offending behaviours in particular, remains a controversial endeavour in the psychiatric profession, it is generally agreed that the best predictors of future sex offending behaviours are past sex offending behaviours, and the presence of significant sexual deviance, particularly in the context of Substance Use Disorder and Personality Disorder, as in Mr French’s case.

In addition, the reported ongoing significant problems Mr French has experienced with alcohol and illicit substance abuse, and with managing interpersonal relations and supervision, in custody and in the community, would also be considered significant risk factors for future violent and sex offending in the community in the long term for Mr French.

As such, it would seem reasonable to assume that Mr French has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in [the Act], particularly if he were to continue to abuse alcohol and/or illicit substances, and to not successfully address and manage his sexual deviance, with this risk the appropriate focus of specific and structured risk management, including psychiatric treatment and risk management, in the community in the long term.

139. He noted increased risk if substance abuse were to continue, and recommended a consideration of the judicious use of anti-libidinal medication.

140. Dr O’Dea emphasised the need for the defendant “to remain totally abstinent from alcohol, cannabis, and other illicit drug use” as well as undergoing long term psychiatric and/or psychological treatment “in order to manage and minimise his risk of engaging in further violent and sex offending behaviour in the community in the long term, including committing a further serious sex offence, as defined in [the Act]”.

141. From a psychiatric risk management perspective, Dr O'Dea was of the view any appropriate risk management program implemented should be long term and at least five years duration.

142. In light of the above assessment and after review of the relevant risk assessment tools (discussed under the next heading) Dr O’Dea opined:

Mr French’s risk of engaging in further sex offending behaviours in the community in the long term would be considered significantly high and appropriate for specific psychiatric treatment…

More specifically, it would seem reasonable to consider that there would be a significantly high degree of probability that Mr French would pose a significant risk of committing a further “serious sex offence” (as defined in Section 5(1) of [the Act] in the community in the long term, if these above outlined community treatment interventions above were not successfully implemented in the context of community supervision and monitoring.

Conditions

Submissions – General

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

252. The State submitted that the conditions sought to be imposed further the objects of the Act, namely, ensuring the safety and protection of the community, and encouraging offenders to undertake rehabilitation. Some of the conditions are aimed at specific risk posed by the defendant re-offending, with the balance being “necessary ancillary conditions” to the management of the risk posed by the defendant. It was contended that “the practical operation of the conditions is such that they work together as a suite to allow for the reasonable and practicable management of the defendant in the community”. I accept those submissions.

253. 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 and the duration 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. In this respect, the defendant relied upon the observations of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

2. The 54 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 54 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 NSW v Ali [2010] NSWSC 1045 at [88].

254. 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

255. The defendant challenged the appropriateness of particular conditions in Annexure A in his written submissions. The primary focus of the defendant’s contentions in this respect were:

1. Electronic monitoring and schedule of movements (conditions 4, 6, 10 and 15);

2. Employment, finance and education (conditions 18-23); and

3. Access to the internet and other electronic communication (conditions 35 and 38).

256. It might be observed, however, that even though the aforementioned contested conditions, in particular electronic monitoring, featured predominantly in the course of evidence, namely the cross-examination of the court appointed experts, there was very little said in written and oral submissions beyond the bare objection listed in the preceding paragraph. That may be a feature of the fact, that the cross-examination of the experts did not, in my view, dissuade the court appointed experts in their views that the conditions proposed were important for the purposes of an extended supervision order.

Electronic Monitoring and Schedule of Movements

257. The State submitted that the purpose of electronic monitoring operates at two levels. First, it is directed at deterrence. It was contended that the defendant would be “less likely to go off and do his own thing” were he the subject of electronic monitoring. Secondly, in the event the defendant did breach the conditions of an extended supervision order “he is more likely to get caught or at least tracked down”. Further, the State relied upon evidence, namely the FPS case notes, which supported the characterisation of the defendant’s past behaviour of “dishonesty and unreliability”. In particular, the FPS case notes record the defendant wanting to meet up with women and looking forward to not being in the COSP any longer. The FPS case notes recorded:

[The defendant] said that he was planning on meeting a girl called P14. … He said that she is a “glamour” and although they [h]ad made several attempts to meet up, “the COSP stuffed things up because of the schedule”. … He said there are a few women whom he is currently in contact with and he [sic] trying to arrange to meet them, but is waiting to get out of the COSP so it is easier to do.

258. For the same reasons submitted in relation to electronic monitoring, the State stressed the need for a schedule. In this regard, the State again relied upon the defendant’s disclosures in the FPS case notes.

259. In written submissions, counsel for the defendant contended that, generally, “it [was] not clear from the court appointed expert reports how the proposed conditions of the ESO would mitigate any risk”. Mitigation of risk, however, was specifically addressed by counsel for the defendant in her cross-examination of the experts as to electronic monitoring.

260. In written submissions, counsel for the defendant also raised objection with conditions 6 and 15, which concerned the requirement of notice to change anything in his schedule of movements and the further requirement to surrender any passports held to the CSNSW, respectively.

261. In cross-examination, counsel for the defendant questioned both Drs Ellis and O’Dea with respect to electronic monitoring. It was suggested that the defendant was primarily resistant to electronic monitoring (also referred to as “GPS monitoring”) due the perceived “stigma of being a child sex offender”.

262. Dr Ellis was cross-examined as to the alternative of “human monitoring”:

Q. In circumstances where there is no link between the electronic monitoring and a reduction in further offending, where really the aim of that, … is monitoring where the defendant has been, where he can go and that he has been at various places, would you accept that could be achieved fairly readily from conditions that simply have the defendant being required to obey the reasonable directions of the DSO to attend drug and alcohol, attend FPS and things of that kind, noting that the DSO could make contact with the FPS to confirm attendance at the Smart Recovery meetings and things of that kind?

A. Yeah, that's an alternate way of monitoring someone's movements and before GPS monitoring that is how things were routinely done. And as long as he's participating in all of those programs, that's the goal for risk reduction, and your monitoring system is a human one, and the GPS forms a technological way of mimicking that human monitoring.

I think that Corrective Services around the world have used these over the years because they see efficiency in the way they can operate with them. But it could appear from the research that it is not the monitoring itself that makes the difference, it is the participation in the rehabilitation that makes the difference. So if a parole service was able to use human monitoring and he was participating in that rehabilitation that is just as effective as him doing those things with a monitor on.

263. Dr Ellis subsequently added to his opinion:

But I think it is difficult for me to say that it would be better to use the sort of more traditional version of monitoring than GPS monitoring. That level of distress that he experiences from wearing the GPS might be something that he can discuss with them, work through and adjust to, so it could be corrected in that manner.

There is in my experience of treating people who are on these orders, that in general Corrective Services tend to remove GPS monitors after a period of time when a person is established in their routine and they gradually phase them out. That might be something that is considered with him. But from a psychiatric point of view I would probably be deferring somewhat to colleagues in parole who would be doing the actual supervision rather than making strong recommendation one way or the other about GPS monitoring. But it is, yes, it is I guess the long way of answering your question, but I don't think that you could clearly say that one method is it better than the other.

264. Dr Ellis also gave his opinion rejecting to the potential “hindrance” of electronic monitoring:

Q. In terms of a person's integration into the community would you accept that electronic monitoring is some degree of hindrance in successful integration?

A. It is, I think electronic monitoring, the general evidence at a group level is that it does encourage people to participate in rehabilitative endeavours. Ideally you would be looking for the situation where he is self-motivated in engaging in those endeavours like attending a psychologist, going to his place of work, residing where he is supposed to be, and engaging with pro social groups like his church group. But the GPS monitor is not doing all those things, but if it is encouraging him to go to all of those things then it assists. And it assists with supervising officers being able to have confidence where he is and also for him to concretely demonstrate that he is following the patterns that he has set down. In and of itself though it can also be a stigmatizing marker for somebody and it may cause him a level of distress to wear it. There's not a great deal of evidence around reduction in future offending for the wearing of electronic monitoring. And I think it is probably best directed at the parole supervisors who would find it more or less useful in particular cases. But in general there is some evidence that suggests while as long as it is coupled with rehabilitation programs it does encourage participation in that rehabilitation. So it is a there is not clear evidence that it makes people worse or discourages them from those kind of programs. But just in an individual case it might, and this is more from clinical experience of seeing people wearing monitors over the years, some people are quite sanguine about wearing a monitor and it has very little impact on their day to day life. Some people find some level of comfort in wearing a monitor because they are often accused of things in their day to day interactions with authorities and the wearing of a monitor means that they can prove where they were.

And there are a small group of people who find it very distressing to wear a monitor. They feel as though they are under, they have a sense of being under scrutiny and surveillance all of the time and that causes them a level of distress. And sometimes that can be ongoing, but sometimes people adjust to that. So there's not, I think, a blanket statement to make about global position monitoring.

265. Dr O’Dea confirmed that he was, broadly speaking, in agreement with the abovementioned testimony of Dr Ellis as to electronic monitoring (he was present in Court whilst the evidence was given by Dr Ellis), “that the electronic monitoring really is a correctional intervention and that it is not a psychiatric intervention per se”. He also opined, “I'm aware there [are] alternative[s] to electronic monitoring that perhaps don't provide the same level of monitoring. But all up I think there is some benefit in people having electronic monitoring”.

266. In my view, when that evidence as to electronic monitoring taken together with the questions as to honesty and reliability raised by the State (see above at [257]), and the defendant’s previous behaviour on parole and under an interim supervision order (see above at [96]-[119]), 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.

267. The defendant’s submissions as to scheduling were minor. Similar factors to those discussed, with respect to electronic monitoring, are relevant to scheduling, including the connection between routine and rehabilitation as identified by Dr Ellis (see above at [134]).

Curfew

268. The State contended that the curfew condition is necessary and appropriate, and submitted, correctly in my view, that its form afforded the defendant flexibility. The relevant condition sets curfew between 9pm and 6am, with the caveat: “unless other arrangements are approved by the DSO". The State submitted, in this respect, that the Court ought to accept and expect that the DSO would act with common sense and fairly and not do anything from a capricious point of view.

269. The defendant’s contentions, in this respect, did not rise above a bare objection to the imposition of a curfew.

270. In light of the evidence before the Court, in particular, with respect to the defendant’s past attitudes and behaviour in the custody-based and community maintenance programs (see above at [204]-[215]), as well as his behaviour on parole and under interim supervision orders, I consider the imposition of a curfew, in the proposed form, to be appropriate. In reaching this conclusion, I have attached weight to the opinions of the court appointed experts, who opined that a supervision order was necessary for managing the risk of recidivism; with Dr Ellis expressly identifying “regular routine” as an indicia positively contributing towards successful rehabilitation and integration into the community (see at [134]). I find the imposition of a curfew, to be appropriate in all the circumstances.

Employment, Finances and Education

271. The State contended that the employment conditions were appropriate, when read in light of all the conditions, “in terms of reducing risk for the future and assisting and facilitating a more ordered lifestyle”. It was submitted that the conditions work together to assist the defendant with reintegration into the community.

272. Further, in relation to the conditions requiring aspects of the defendant’s financial affairs to be subject to the direction and/or the approval of the DSO, the State contended they were appropriate having regard to the evidence of Ms Kirkwood. Ms Kirkwood deposed that the defendant experienced difficulties in relation to his accommodation and at one point risked eviction because he had stopped paying rent. The State contended, “[i]n terms of risk factors for a chaotic lifestyle and drug use and, therefore, serious sex offending there is a link between homelessness and insecurity of accommodation”. The State submitted that to enable the DSO to keep track of his finances will, at the very least, enable and support the defendant in his payment of rent.

273. In written submissions, counsel for the defendant opposed the entirety of Part D of the conditions proposed. 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)] (Rothman J).

274. In respect of this opposition to an employment condition, counsel for the defendant relied upon the remarks of Rothman J in Banks I extract the relevant passage:

[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.

275. Despite the absence of a developed submission by the defendant, the remarks of his Honour are relevant to the present form of condition 18, which requires that “the defendant must enter available employment if and as directed by the DSO”.

276. In relation to the same issue, namely, a condition with respect to a direction to enter available employment, Adamson J took a different approach (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.]

277. The evidence with respect to the defendant’s difficulties with employment, education programs and finances (namely in the context of maintaining accommodation) is well documented in the material before the Court. Further, Dr Ellis identified “employment” and “education” as factors that contribute, as a means of risk management, to successful integration into the community (see above at [134]). Both court appointed experts, as previously mentioned, reached similar conclusions with respect to recidivism and the role of supervision. In light of this evidence, I consider there is “a sufficiently close connection” between condition 18 and the risk posed by the defendant. I note that it is unnecessary to resolve any apparent difference in the approach by Rothman J and Schmidt J as, on the evidence in this matter, there is (as there was in the case of Fernando) an appropriate foundation for the making of the order in terms of rehabilitation and reducing recidivism. I find the entirety of Part D to be appropriate in all the circumstances.

Access to Internet

278. The State submitted that the conditions enabling the DSO to scrutinise who the defendant is keeping in contract with and what he is doing on the internet are appropriate and important to ensure the safety of the community. In this respect, reliance was placed upon the FPS case notes and the affidavits of Ms Kirkwood.

279. In written submissions, counsel for the defendant advanced two objections, in respect of Part G, but these only concerned issues of construction. First, it was contended that condition 35 “is not worded in the form of a condition that can be complied with”. Condition 35 states:

“The DSO may remotely inspect any internet account used by the defendant, including the defendant’s email addresses, in monitoring compliance with this order”.

280. Second, the defendant objected to condition 38 on the basis that it appeared “duplicitous of earlier conditions”. No further submissions were advanced in oral submissions with respect to either of the conditions.

281. The first objection regarding condition 35 is misconceived. Section 11(a1) of the Act enables conditions to be imposed that require an offender “to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender”. Whilst it might be ineloquently expressed having regard to the terms of the premise of s 11(1a), condition 35 should be understood in that light, namely, for the purpose of surveillance of the defendant’s internet services in order to monitor compliance. In substance, the order achieves that end, as the license granted to the DSO must translate as the equivalent of a requirement for the defendant to give his permission.

282. Similar reasoning applies with respect to condition 38. Whilst I accept that the condition is in similar terms to earlier conditions, namely, condition 34, each are directed at distinct, albeit complementary, purposes, again, pursuant to s 11(a1).

283. Further, there is ample basis on the evidence for making orders directing the defendant to comply with the conditions 35 and 38, having regard to the defendant’s relatively recent conduct whilst under an interim supervision order (see above at [111]-[119]) and, particularly, taking into consideration, once again, the opinions of the court appointed experts, which support the imposition of an extended supervision order to mitigate and manage the risk of recidivism.

284. Conditions 35 and 38 should be imposed with the extended supervision order.

Surrender Passport

285. As to the objection to condition 15, the defendant made no submissions in support of his objection.

Duration

286. As to duration, the State submitted that the appropriate period for an extended supervision order to continue is five years. This was supported by the aforementioned evidence of nature and extent of the defendant's past offending, identification of the risk of further offending, and the nature and extent of his unresolved issues. In this respect, the State relied upon the opinions of both Dr Ellis and Dr O'Dea, which, it was contended, were not challenged by the defendant.

287. Whilst the court appointed experts support an extended supervision order with a duration of five years, 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 Conway [2011] NSWSC 925 at [28] and State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [85].

288. That may be so, but the evidence of those experts does provide a compelling basis for the making of an order for 5 years. Some examples are given below.

289. Dr Ellis expressed the following view:

From a psychiatric perspective if an ESO is applied a period of five years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. … Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. It is most likely that a period of 24 months will be required to secure stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community… A further 36 months of regular treatment in a psychological program, coupled with regular review of antilbidinal medication and other psychiatric medications should they be prescribed would be necessary. The psychological program should focus on methods for controlling deviant sexual arousal, improving personality function and abstinence from illicit drugs and alcohol.

290. In cross-examination, with respect to his estimation, Dr Ellis explained:

[M]y estimate is based on his current presentation and the likelihood of that current presentation taking time to shift and time to improve, given the number of different conditions contributing to the risk and the general nature of those kind of conditions, such as paraphilia and personality disorder and substance use disorders that tend to take longer periods of time to improve in their clinical presentations and prognosis.

291. Dr O’Dea was of a similar opinion:

Mr French’s risk of engaging in further sex offending behaviour in the community, and of committing a further serious sex offence in the community, is likely to be long term, and potentially of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management plan implemented should be long term and at least 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress.

292. Counsel for the defendant questioned Dr Ellis with respect to the benefits of “any period of supervision being less than the maximum”. Dr Ellis opined:

My opinion of it is that it is more likely that if you had a shorter order you will probably be reviewing it given the complexity of his presentations currently. But again it is certainly possible that he could have in a shorter period achieved a more rapid rehabilitation. But I think it is more likely that the longer period would be required for that to occur.

293. In the same light, with respect to duration, Dr O’Dea was cross-examined:

Q. Given the various features that you know of the defendant would you accept that a shorter period than five years might be beneficial in terms of the defendant working towards in a more diligent way his rehabilitation and successful integration into the community?

A. I would accept that it might. But I would also take the view that of course the relevance is managing the risk of him committing a further serious sexual offence. And of course as I have detailed in my report that risk is long term and related to a number of components of his condition as I have outlined in the opinion, including his paraphilic disorder, his substance abuse history and his personality. And all three of those are chronic long term issues and the interventions suggested don't cure those problems, they simply control them. And that therefore that control is something, sorry, the risk is something therefore that persists particularly and increases if those controls are withdrawn. And therefore I would be of the view that the risk management should be long term. The five year duration I appreciate is a requirement of the Act. But he should be addressing his risks much longer term than that. And in addition, as I have said in my report, that doesn't mean that the conditions and risk management strategies need to remain the same. Over time they can change depending upon his progress. But nevertheless there is likely to be required specific and long term interventions to address each of those risk factors.

294. In light of the evidence before the Court, in particular the report of Drs Ellis and O’Dea, I consider the appropriate period for an extended supervision order to be the maximum period allowable. The order, therefore, should be made for five years.

CONCLUSIONS

295. In my view, the defendant is a high risk sex offender for the purposes of s 5B of the Act. It is appropriate that, pursuant to s 5C(1), an order be made for the supervision of the defendant as an extended supervision order and that the defendant be directed to comply with the conditions annexed to this judgment as Annexure A.

296. I propose to order pursuant to ss 5C(1) and 9(1)(a) of the Act that the defendant be subject to a high risk sex offender extended supervision order for a period of 5 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.

DIRECTIONS

297. In order to facilitate the disposition of the matter in that fashion 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 (30.0 KB, pdf)

Amendments

16 October 2018 - Typographical error amended - in citation at [253(4)].

Decision last updated: 16 October 2018