State of New South Wales v GJO (Final)

[2020] NSWSC 1412

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v GJO (Final) [2020] NSWSC 1412

Hearing dates:

7 October 2020

Date of orders:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to an Extended Supervision Order for a period of 2 years.

Catchwords:

HIGH RISK OFFENDER – application for Extended Supervision Order – committed numerous rapes in 1996 – released in 2015 – supervised since December 2016 – breach of ESO in 2018 – duration of ESO – electronic monitoring

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010

Crimes (High Risk Offenders) Act 2006

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

New South Wales Crimes (High Risk Offenders) Act 2006

Child Protection (Offenders Prohibition Orders) Act 2004

Child Protection (Offenders Registration) Act 2000

Cases Cited:

[2016] NSWSC 1820

[2017] NSWSC 254

[2018] NSWSC 1235

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Lynn v State of New South Wales [2016] NSWCA 57

State of New South Wales v Baldwin [2019] NSWSC 1882

State of New South Wales v GJO(No 2) [2020] NSWSC 969

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
GJO (Defendant)

Representation:

Counsel:
Ms JE Davidson (Plaintiff)
Ms A Cook (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Younes + Espiner Lawyers (Defendant)

File Number(s):

2020/171836

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, the court orders that the identity of the author of the Victim Statement be suppressed until 9 October 2055. This order is to operate throughout the Commonwealth.

Judgment

1. By prayer 3 of an amended summons filed 9 July 2020, the State of New South Wales seeks an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (“HRO Act”) against the defendant GJO for a period of two years.

2. On 29 July 2020, Rothman J ordered the name and other identifying details of the defendant be suppressed pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, and that he be referred to as “GJO” (State of New South Wales v GJO(No 2) [2020] NSWSC 969 (“GJO (No 2)”). The basis for the order was the “public interest in preventing prejudice to the administration of justice by inhibiting the rehabilitation of the defendant” (GJO (No 2) at [86]).

3. On the same day, his Honour made an interim supervision order under s 10C of the HRO Act for a period of twenty-eight days. It has since been renewed twice. The current interim order expires at midnight on 11 October 2020.

4. As I will explain, the defendant was released to parole on 20 February 2015 after having been convicted of serious sex offences. On 15 December 2016, Schmidt J made an interim supervision order against him ([2016] NSWSC 1820). On 17 March 2017, Harrison J made an ESO against him for a period of three years ([2017] NSWSC 254). In the circumstances I will describe, the conditions attaching to that ESO were varied by Wilson J on 9 August 2018 ([2018] NSWSC 1235).

The HRO Act

5. I outlined the operation of the HRO Act in the State of New South Wales v Baldwin [2019] NSWSC 1882 at [5] to [20] (“Baldwin”). The following is taken from that analysis. Section 3 of the HRO Act provides:

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

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

6. Section 5H of the HRO Act enables the State to make an application for an ESO against an offender. That is qualified by s 5I(1) so that it is only applicable in respect of a supervised offender. Section 5I(2) provides, inter alia, that a supervised offender is an offender who, when the application for the order is made, is in custody or under supervision under an existing ESO. There is no issue that this condition has been established in this case.

7. Section 6(1) of the HRO Act provides that an application for an ESO “may not be made until the last 9 months of the offender's current custody or supervision”. The amended summons was clearly filed in that period. Section 6(3) requires the application be accompanied by material that addresses the requirements in s 9(3) of the HRO Act and that it include a report from a suitably qualified expert assessing the offender's likelihood of committing a serious offence. These provisions were also complied with.

8. Section 7 of the HRO Act specifies various procedural requirements that must be complied with by the time of the final hearing. Again, there were no issues that these requirements were satisfied.

9. Section 5B provides that the Court may make an ESO if:

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

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

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

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

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

10. It follows from what I have said that ss 5B(b) and (c) are satisfied.

11. In relation to s 5B(a), a “serious offence” is defined by s 4 to be either a “serious sex offence” or a “serious violent offence”. Section 5(1) defines a “serious sex offence” as including an offence under Div 10 of Pt 3 of the Crimes Act 1900 where, in the case of an offence committed against an adult or child, the offence is punishable by imprisonment for seven years or more. Section 5(1)(d) extends the definition to include an offence that, at the time it was committed, was a serious sex offence for the purpose of the HRO Act.

12. On 26 July 2000, the defendant pleaded guilty before, and was convicted by, RS Hulme J of four counts of aggravated sexual intercourse in contravention of s 61J of the Crimes Act 1900. Those offences were committed on 23 December 1995, 28 March 1996, 17 September 1996 and 22 October 1996 ([2000] NSWSC 716). The offences were perpetrated against three adult females and one female child.

13. In addition, for the offence committed on 17 September 1996, his Honour took into account on a “Form 1” two further aggravated sexual assaults which had been committed on 14 May 1996 and 30 May 1996 on two adult females. His Honour also took into account two offences of threat to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse which had been committed on 30 May 1996 and 24 December 1996. Those offences were perpetrated against an adult female and a sixteen-year-old girl respectively.

14. The defendant was sentenced to a total term of imprisonment of twenty years commencing on 18 February 1997 and expiring on 18 February 2007 with a non-parole period expiring on 18 February 2012. An appeal against sentence was dismissed on 24 July 2002 ([2002] NSWCCA 286).

15. Section 61J of the Crimes Act is found within Div 10 of Pt 3. It follows that the defendant is an offender who has served a sentence of imprisonment for a serious sex offence in custody and thus s 5B(a) is satisfied.

16. This leaves s 5B(d). The concept of an “unacceptable risk” as referred to in that provision is expanded upon by s 5D which provides:

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

17. In this regard, the phrase “unacceptable risk” in s 5B(d) and s 5D is to be given its everyday meaning within its context having regard to the objects of the HRO Act (see Lynn v State of New South Wales [2016] NSWCA 57 at [55] to [58]; “Lynn”). I have already outlined the objects of the HRO Act.

18. Section 9(1) provides that the Court may determine an application for an ESO by making an order or dismissing the application. Section (9)(2) provides that:

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

19. Section 9(3) provides:

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

(a)   (Repealed)

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

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

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

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

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

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

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

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

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

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

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

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

20. The factors enumerated in the statutory predecessor to s 9(3) have been held to be relevant to the exercise of power to make an ESO, but not to the anterior determination of whether an offender poses an unacceptable risk (see Lynn at [48]). The same applies to ss 9(2) and 9(3) in their current form.

21. Section 10 of the HROAct deals with the terms of an ESO. It commences when it is made and when the offender's current custody or supervision expires, whichever is the latter (s 10(1)). The ESO expires at the end of the period specified in the order which cannot exceed five years from its commencement (s 10(1A)(a)).

22. Section 11 of the HRO Act deals with the conditions that might be imposed as part of an ESO. It provides:

(1)   An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender:

(a)   to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)   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, or

(b)   to make periodic reports to a corrective services officer, or

(c)   to notify a corrective services officer of any change in his or her address, or

(d)   to participate in treatment and rehabilitation programs, or

(e)   to wear electronic monitoring equipment, or

(ea)   to reside at an address approved by the Commissioner of Corrective Services, or

(f)   not to reside in or resort to specified locations or classes of locations, or

(g)   not to associate or make contact with specified persons or classes of persons, or

(h)   not to engage in specified conduct or classes of conduct, or

(i)   not to engage in specified employment or classes of employment, or

(j)   not to change his or her name, or

(k)   to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m)   to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n)   to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.

(2)   An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

23. The criteria for the imposition of a condition is that the Court considers it to be “appropriate”. In Lynn, it was held that in addressing whether to exercise the discretion to make an ESO, consideration should be given to the appropriate conditions which might be imposed before considering whether such an order is otherwise appropriate (see Lynn at [149] per Gleeson JA). Further, in Lynn at [124], Basten JA stated:

“The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order.”

24. In this case, on behalf of the defendant it was contended that he did not represent an “unacceptable risk”, and that otherwise, the length of the ESO sought by the State was too long and that some of the conditions sought by the State were too onerous and thus “not appropriate”.

25. To address the issues that arise, it is necessary to further describe the defendant's personal background and criminal history.

Personal and Criminal History

26. The defendant is now sixty-nine years old. He separated from his wife in 1993 and divorced in 1995. He has two adult sons with whom he has no contact. As at August 2020, he was employed full-time as a forklift driver. Between 1971 and 1995, he accumulated the following convictions: 25 January 1971, assault female; 1 October 1975, indecent assault; 5 October 1983, peep and pry; 19 May 1987, peep and pry; 7 February 1995, breach domestic violence order.

27. Save for the last of these offences, for each of them, the defendant either received a fine or a bond. For the last of the offences, he received a punishment of 100 hours of community service.

28. Between 23 December 1995 and 24 December 1996, he committed a series of serious sexual assaults on Sydney's North Shore which led to the convictions that I have described ([2000] NSWSC 716 at [8] to [43]). In [2016] NSWSC 1820 at [26] to [37], Schmidt J described these offences and the defendant's explanation for them as follows:

“26   [The defendant’s] first offence occurred in December 1995, when he approached from behind a 25 year old woman walking down the driveway of a block of units. He placed a hand over her mouth and a scalpel, or what he described to be a ‘works knife’, to her neck. He threatened to cut her and demanded money. He stuffed what appeared to be a sock into her mouth, fondled one of her breasts, rubbed her labia and then inserted his finger into her vagina. After further touching her vaginal area, he also attempted, but failed, to insert his penis into her vagina, and then walked away. This victim also suffered a light cut to her throat, as well as cuts and bruising to her mouth.

27   [The defendant] could give no explanation for this offence, beyond saying that he had lost control.

28   In March 1996, [the defendant] committed another sexual assault on a 17 year old girl, who he followed from a train station to some units; grabbed and asked for money; shoved a sock or piece of rag into her mouth; and when it fell out, threatened to kill her if it happened again. He pulled down her pants and with a knife which she described to be like a hunting knife with a jagged edge on the blade held at her throat, which she could feel being pushed deeper with every move she made, he then rubbed around her labia and inserted fingers into her vagina. After threatening her further when she removed the sock, he inserted either his fingers or penis into her vagina. He also threated to return to kill her, if he she told anyone.

29   In evidence [the defendant] agreed that it was possible that on this occasion, he had spent some hours in the vicinity, looking for a victim.

30   [The defendant] committed another aggravated sexual assault in May 1996, when he followed another 18 year old woman from a railway station, came up behind her, put a hand over her mouth and demanded money. He also forced a sock or other material into her mouth, squeezed her breasts, pushed the blade of a knife which the victim described as looking like a fishing knife, into her back and shoved her down a driveway into some shrubs. He became more aggressive when she started to scream. After picking up the knife he had dropped and holding it against her again, he felt and penetrated her genitalia, before running off, after threatening to hurt her if she told police.

31   Hulme J did not accept [the defendant’s] evidence that while he could not clearly recall this incident, he denied sitting at the railway station looking for potential victims.

32   In May 1996, [the defendant] committed an offence of threat to inflict actual body harm by means of an offensive weapon with intent to have sexual intercourse, when he attacked a 39 year old woman, putting his hand over her mouth as she opened the door to the foyer of her unit block. He again had a knife and started to drag her towards some stairs leading down to the garage, but ran off after the woman managed to kick the door of a unit and call for help and he heard the unit door being unlatched. This victim was cut and bruised.

33   [The defendant’s] evidence was that he had seen the victim, parked and followed her. Hulme J did not accept his evidence that he had desisted, because he realised what he had done. He concluded that it was the imminent intervention of another person which was the major contributing factor to [the defendant] desisting.

34   There was a similar attack on 30 May 1996 on a 24 year old woman walking home from a railway station, when [the defendant] went up behind her, put his hand over her mouth and demanded money. He put a glove in her mouth and a knife to her neck, but ran off when he heard a voice.

35   In September 1996, [the defendant] attacked a 23 year old woman, after she had withdrawn money from an ATM machine, after getting off a train. Coming up behind her, he demanded money. She screamed for help and he grabbed her, threatening to use his knife. Holding the knife to her throat after she had given him the money, credit cards and her license, he fondled her breasts and pulled her into a dark pedestrian tunnel, while she pleaded with him not to rape her. He tied her up, touched her vagina and inserted his finger, before inserting his penis into her vagina more than once. He also threatened to get her at her home, if she told anybody. He then untied her and ran off. It was on sentence for this offence that three of [the defendant’s] other offences were taken into account on a Form 1.

36   In October 1996, [the defendant] followed a 22 year old woman from a railway station and attacked her at the entrance to a block of units. As she put the key in the door he approached from behind, put a knife to her neck and a cloth in her mouth, and demanded her credit cards. He then forced her to a secluded area nearby, where he touched her breasts, inserted his fingers roughly into her vagina, and with a knife at her throat offered her the choice of being raped or giving him a head job. He then forced his penis repeatedly into her mouth, before withdrawing and ejaculating. After taking $10, he threatened to return to kill her if she told anyone, and walked off.

37   In December 1996, [the defendant] grabbed a 16 year old girl from behind after she got off a bus. She collapsed to the ground when [the defendant] demanded money. He told her he had a knife and pushed her into the driveway of a nearby school, put a gag into her mouth, forced her hands behind her back and tied her up. He fondled her breasts and inserted a finger into her vagina, pulled down her pants and forced her to bend at the waist, then again inserted a finger or fingers into her vagina. She managed to scream and he forcefully applied the knife to her throat. She managed to scream again and he pushed the knife into her throat, but then untied her and ran off.”

29. Certain aspects of RS Hulme J's findings on sentence in 2000 should be noted (see s 9(3)(h1)). First, his Honour found that the offences were “premeditated and planned events” (at [50]), although, with some of the offences committed early in the above sequence of offences, his Honour was not satisfied that it was planned prior to the defendant seeing his victim (at [54]).

30. Second, RS Hulme J found that the defendant had “some remorse”, but only limited weight should be attached to that factor (at [77]).

31. Third, RS Hulme J appeared to accept the assessment of a psychiatrist that the defendant “indicate[d] very significant risks of re-offending”, at least prior to serving a lengthy period in custody (at [88] and [90]).

32. According to Dr Martin's report which I will refer to shortly in more detail, the defendant completed a number of programs for sex offenders in custody, including the custodial based psychological program for sex offenders. During this time in custody, he achieved and maintained a minimum security classification which meant that from August 2012 he was allowed day leave. Mr Sheehan, a psychologist to whom I will refer shortly, described the achievement of that classification in 2012 by a person with the defendant's convictions as a matter very much in his favour. In his report, Mr Sheehan described the defendant as having a “largely favourable history of institutional adjustment in the correctional system”.

33. As already noted, the defendant was released in February 2015. By April 2018, he was subject to the ESO imposed by Harrison J on 17 March 2017. However, by that stage he was not subject to electronic monitoring as a condition requiring that he be monitored had expired pursuant to a sunset clause.

34. On 7 April 2018, a departmental supervisor (“DSO”) attended his house to conduct an unannounced curfew check. During the course of the check, the DSO located a sex worker inside the premises. The defendant told the DSO that he had been lacking “companionship” and had been spending time with a sex worker.

35. A visit by the DSO to his home the next day revealed that the defendant had bought flowers for the sex worker. The sex worker was unaware of the defendant's history. The defendant was arrested and charged with breaching the conditions of his ESO because he had not informed his supervisor of his relationship with the sex worker and had failed to obtain permission for her to spend time at his home.

36. On the same day, he was charged with, inter alia, assault. The assault arose out of an incident where the defendant attended a suburban supermarket and recognised a retail assistant as a resident of a block of units he formerly resided in. He called out to the retail assistant, and as she approached him, he reached out to her, placed his hand on her hip, leaned towards her and kissed her on the cheek. The kissing and touching of the victim's hip was not welcome. Ultimately, the defendant accepted he was reckless as to her lack of consent.

37. On 21 May 2018, following his plea of guilty, the defendant was sentenced in the Local Court to four months imprisonment for the offence of breaching the conditions of his ESO. The sentence of four months imprisonment expired on 24 August 2018. An appeal against the severity of the sentence was dismissed by the District Court.

38. On 24 August 2018, the defendant was sentenced in the Local Court to be subject to a fifteen-month good behaviour bond for the assault offence. A charge of stalking and intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act2007 was withdrawn, as was a charge of commit act of indecency.

39. At the time the defendant was sentenced for the breach of the ESO, the presiding magistrate found there was no evidence of remorse on his part, but accepted that the defendant had “slowly reintegrated back into the community in a positive way”.

40. As already noted, on 9 August 2018, Wilson J varied the conditions attaching to the defendant’s ESO ([2018] NSWSC 1235). Of particular significance to this matter is that her Honour reimposed a condition of electronic monitoring.

Section 21A – Victim Statement

41. Section 21A(1) of the HRO Act provides that, as soon as is practicable after an application for an order under the HRO Act is made, the State's representatives are to provide written notice of the application to each “victim” of the offender, or in the case of a victim who is under eighteen or lacks legal capacity, their parent or guardian.

42. Section 21A makes provision for the making of a statement by or on behalf of the victim to the Court which conveys their “views about the order and any conditions to which the order may be subject”, as well as “any other matters prescribed by the regulations” (s  21A(2)). No regulations addressing this topic have been described.

43. Consistent with this provision, a statement was provided to the Court by a victim of the sexual assault committed by the defendant on 17 September 1996. The victim consented to the distribution of the statement to the defendant and his legal representatives (s 21A(6)).

44. In her statement, the victim describes how when she was raped by the defendant she felt “terrified” and “thought I was going to die”. She describes the ongoing trauma that this attack still causes her. She states she is distressed that the defendant has been released from prison but adds that the only saving grace is that he is subject to electronic monitoring. I note that this is one of the conditions sought by the State and, as already noted, it was the subject of detailed submissions.

45. At the hearing of the proceedings, the State sought an order suppressing the identity of the victim. I made an interim order to that effect under s 10 of the Court Suppression and Non-Publication Orders Act 2010 which is operative until 5.00pm on 9 October 2020, ie, today. I indicated that the making of a final order under s 7(a) would be addressed in the final judgment.

46. Given the nature of the offence to which this person is a victim, I am satisfied the making of such an order is necessary to protect her (psychological) safety (s 8(1)(a)), and is necessary to avoid causing her undue distress or embarrassment (s 8(1)(d)).

47. It is now apparently incumbent on this Court to specify a time period for the operation of the order (see DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [47]; “DRJ”). The victim was approximately twenty-three years of age at the time of the offence committed against her. She is now approximately forty-seven years of age. I cannot envisage any circumstances in which the Court would lift the suppression order while she is still alive. Nevertheless, DRJ apparently frowns on orders that operate for the period of a person's lifetime (DRJ at [48]). To address that, and consistent with s 12(2) of the Court Suppression Non-Publications Orders Act, the order that I will make will operate for a period of thirty-five years.

48. Section 11(1) of that Act appears to require the Court to specify the place where the order applies. This was not addressed in DRJ. In this case, the order will operate throughout the Commonwealth.

Reports Under Section (7)(4)

49. Pursuant to orders made under s 7(4) of the HRO Act, reports were provided by a psychiatrist, Dr Adam Martin, dated 25 August 2020, and by a psychologist, Mr Patrick Sheehan, dated 21 August 2020.

50. Doctor Martin stated that his primary significant psychiatric diagnosis of the defendant is “sexual sadism”. He noted that:

“Paraphilic disorders are known to have significant risk factors for sexual offending and in my opinion, and it cannot be said that his paraphilic tendencies are no longer relevant to ongoing risk.”

51. Doctor Martin applied the Risk for Sexual Violence Protocol (RSVP) to the defendant. His conclusion was that the defendant:

“… [c]an be described as being of moderate high risk future sexual offending. This assessment is largely predicated on historical sexual offending. Significant weight has to be given to the risk because of the nature of the offending occurring in a serial manner, and being of a serious and violent nature. This means that while he is relatively physically healthy, he cannot be said to be at low risk of future sexual offending, in my view. Salient risk issues to note are that his previous serious sexual offending occurred many years ago and he has not subsequently reoffended in a serious manner. However, it is not possible to know whether lack of subsequent offending occurred in association with him being incapacitated by being in custody and subsequently subject to significant monitoring and restrictions. That being said, he is of a relatively advanced age, and it is reasonable to accept that this would be likely to diminish future risk of sexual offending to an extent.”

52. Doctor Martin also addressed that the risk of serious sexual offending posed by the defendant could be managed under the conditions of an ESO with close monitoring of his mental state and behaviour, as well as appropriate restrictions in place to mitigate such a risk. In relation to the proposed conditions, Dr Martin concluded that they “appear appropriate from the perspective of public safety”, but acknowledged they would be “onerous and likely … stressful for the defendant”.

53. Doctor Martin was clearly vexed in relation to the duration of the proposed ESO, however, he did state that “in twelve months time, historical risk factors will not have changed materially”.

54. In his report, Mr Sheehan considered that the defendant's history suggests a “paraphilic disorder”, although he agreed with a psychiatric diagnosis of “voyeuristic disorder”. He assessed the defendant's risk of re‑offending via the Static-99R actuarial risk assessment tool. He said that placed him in the “above average risk” category, although he would adjust that assessment to the average range on account of the defendant's time in custody.

55. Mr Sheehan relevantly concluded:

“The overall evidence leads me to estimate [the defendant's] risk of committing a sexual offence to be in the midrange of the risk spectrum relative to other adult male sexual offenders, that is, medium or moderate risk. As [the defendant] approaches his 69^th birthday, I find it increasingly unlikely that his risk of reoffending extends to the type of offence characteristic of his index cluster. I am unfamiliar with any cases of predatory knifepoint rape in the 70+ age cohort. In my estimation this may lessen the likelihood that any future sexual offending would necessarily meet the threshold for a serious sexual offending, as defined in the Crimes (High Risk Offenders) Act 2006. It will be reasonable to anticipate this risk will continue to attenuate over time in concert with the aging process.”

56. I would add that there are many forms of conduct that amount to serious sexual offending which do not necessarily answer the description “predatory knifepoint rape”.

57. Mr Sheehan considered that the “supervision conditions are adequate to reasonably manage [the defendant's] risk of sexual recidivism, particularly in terms of more serious types of offending”. That said, one further part of Mr Sheehan's report should be noted as it concerns the topic of electronic monitoring. In relation to the proposed term in that regard, Mr Sheehan stated:

“These conditions seem reasonable and necessary, with a caveat that electronic monitoring should be finite, with an end date specified. The lack of clear understanding for the removal of electronic monitoring has been an ongoing source of concern to [the defendant]. The electronic monitoring is a genuine deterrent to social reintegration.”

58. In his oral evidence, Mr Sheehan reiterated that one obstacle to his being satisfied the defendant was no longer at risk of re-offending was that he had not been through the stresses of a new relationship. In that regard, I note that the index offending followed soon after the breakdown of the defendant's marriage as well as the breakdown of a relationship he formed that had ended his marriage.

59. Mr Sheehan’s observations relate to the potentially deleterious effects of close supervision of the defendant, especially electronic monitoring. Those types of measures provide a reasonably robust degree of short to medium term protection for the community from the defendant re-offending. However, as Mr Sheehan observed, electronic monitoring is a genuine deterrent to social reintegration, and thus can be seen to be a long-term inhibitor of a defendant's rehabilitation with a potentially downside risk to the protection of the community.

Other Reports and Risk Assessment (s 9(3)(c); s 9(3)(d))

60. A risk assessment report dated 15 November 2019 undertaken by Samuel Ardasinski, a senior psychologist employed within the Serious Offenders Assessment Unit of Corrective Services New South Wales, was tendered. Mr Ardasinski reported applying two actuarial risk assessments, namely, the Static-2002R and Stable‑2007. His overall assessment was:

“According to actuarial assessments based on empirical assessments, [the defendant] falls in the moderate-high risk category for sexual reoffending compared with other male sexual offenders. However, his existence in the community sex-offence free for over four years must be weighed into his overall assessment of risk.”

61. The qualification of the end of this passage reflects the following observation of Mr Ardasinski:

“Statistically speaking, by now (having lived in the community for five years since his initial release from custody), only ten to 15 men (out of 100) who are assessed as falling in the same category of risk as [the defendant] reoffends sexually. Such sexual reoffending as these 10 to 15 men commit need not meet the criteria of sexual offence as defined in the New South Wales Crimes (High Risk Offenders) Act 2006 either.”

62. The Court was provided with a number of other psychiatric reports including those placed before the Court when it previously made interim supervision orders and extended supervision orders against the defendant. This included a report of Dr Anthony Samuels dated 6 January 2017, as well as a report of Dr Andrew Ellis dated 3 February 2017. Their assessments were not materially different to those noted above, save that their opinion of the defendant's risk of re-offending was not informed by the events since that time, notably, the breaches of the ESO that occurred in November 2018, and the otherwise offence-free periods of supervision that concern the defendant.

63. On behalf of the defendant, there was tendered a letter dated 22 September 2020 from a psychologist, Mr Navin Gooniah, who has seen the defendant on a regular basis since 2018. The defendant had apparently arranged for those appointments himself. Both Dr Martin and Mr Sheehan agreed that fact was a positive step.

64. Mr Gooniah considered the defendant's symptoms were consistent with an adjustment disorder. He recalls the defendant being frustrated by what the defendant contends is the inconsistent provision of information by his ESO supervisory teams, and at times, a “more authoritarian approach” being adopted rather than “working collaboratively” with him.

65. The focus of Mr Gooniah's letter was on the use of electronic monitoring. He said:

“I'm of the opinion that the ESO team and being monitored has been a hindrance in [the defendant's] progress over this extended period of time. The electronic monitoring device alone has been the focus of our sessions where [cognitive behavioural therapy] has been used to challenge negative assumptions of what others may assume. [The defendant] has utilised a solution focused approach to wear jeans and long-pants all year around when outside his residence.

I cannot see the benefit of [the defendant] needing the ESO team to be involved or being electronically monitored as [the defendant] has demonstrated a capacity to maintain stable employment and develop effective working relationships in his environment.

[The defendant] participated and reportedly progressed well through all available treatment programs he has attended.

There is no information available to me based on the 24 sessions I have had with [the defendant] to date that he is a risk to public and require this monitoring.”

66. In his oral evidence, Mr Gooniah clarified the reference to “monitoring” in this extract included both electronic monitoring and monitoring by his ESO team. He offered the opinion that whatever risk the defendant posed could be adequately managed by the defendant consulting with him on a monthly basis. With respect to Mr Gooniah, I reject that contention.

Risk Management Report (s 9(3)(d1))

67. A risk management report prepared by Corrective Service officers in February 2020 was tendered. Based on other reports, it identified and then sought to address various risk factors pertaining to the defendant including his impulsivity, loneliness, victim access and rejection of supervision.

68. The methods of addressing those risk factors discussed in the report reflects the existing or proposed conditions of the ESO, of which the most contentious is electronic monitoring, curfews and movement schedules. Suffice to state, they reflect the issue identified earlier, namely, balancing the need for immediate community protection by close supervision of his movements against whether in the medium to long term that action inhibits the defendant's rehabilitation because he is subject to that restriction.

Statistical Assessments and Rehabilitation Programs (s 9(3)(d); s 9(3)(e))

69. I have already noted s 9(3)(d) of the HRO Act requires that consideration be given to the results of statistical or other assessments of the likelihood of an offender committing a further serious offence. Section 9(3)(e) requires consideration be given to any treatment or rehabilitation programs in which the offender has had the opportunity to participate and his level of participation. I have already addressed those factors in the above discussion.

The Likelihood of Compliance (ss 9(3)(e) to (f) and (g))

70. The terms of ss 9(3)(e) to (f) and (g) have already been set out above. I have already described the circumstances in which the defendant breached his ESO in 2018. I have also noted that the various reports reveal frustration on the defendant's part in his being subject to supervision. Nevertheless, overall since 2018, he has been compliant with his ESO.

Other Criteria

71. The balance of the criteria in s 9(3) has already been addressed. I note the defendant tendered material suggesting he would be subject to reporting obligations under the Child Protection (Offenders Registration) Act 2000 until 20 February 2030. Two of the victims of his offences were under the age of 18.

Unacceptable Risk

72. At this point the relevant issue to determine is whether the Court is “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision” (s 5B(d)).

73. Counsel for the State, Ms Davidson, submitted that this should be answered in the affirmative. Counsel referred to the defendant’s diagnosed paraphilic disorder, the psychiatric and psychological assessments and his risk of further sex offending, his degree of self-isolation as reflecting the lack of pro-social support and the events that occurred in 2018. Counsel accepted that if the defendant was not subject to an ESO he might nevertheless be subject to a Child Protection Prohibition Order (CPPO) under the Child Protection (Offenders Prohibition Orders) Act2004. However, counsel submitted that, even so, he would not be subject to the same level of supervision and support as he would be under an ESO.

74. As I have already indicated, counsel for the defendant submitted that the test in s 5B(d) is not made out. Counsel referred to the 25 year period that had elapsed since the index offences were committed, the defendant’s good record while in custody and supervision in the community for a period of five years and eight months to date. Counsel acknowledged the offences in 2018, but contended that they were not serious. Counsel pointed to the defendant’s excellent employment record, his stable accommodation and his advancing age as protective factors reducing his risk of committing sexual offences in the future, including serious sexual offences. Counsel for the defendant referred to the protective measures available in the absence of an ESO, specifically the making of a CPPO, as well as the requirements imposed on the defendant under the Child Protection (Offenders Registration) Act 2000.

75. I accept that the passage of time, the defendant’s age, his conduct in custody and under supervision are all matters that could be said to reduce the risk of his committing another sexual offence, including a serious sexual offence, if he was not kept under supervision under an ESO. Nevertheless, I am still satisfied to a high degree of probability that the defendant poses an unacceptable risk of that occurring.

76. Through 1996 the defendant was a serial rapist who terrorised the community. Despite this, counsel for the defendant submitted that it was “not likely” that he would ever repeat that type of offending. That may be so, but a risk of repetition of that type of offending does not have to be very high at all to be nevertheless unacceptable. As a practical matter, absent very compelling circumstances, someone who engages in that behaviour will present an ongoing risk of further serious sex offending of that kind, or at least serious sexual offending of some kind, into the future while they are still physically healthy.

77. In the defendant's case the psychiatric diagnosis and assessments of the risk he poses, together with the events of 2018, albeit they were very different offending to the index offending, support the conclusion that an unacceptable risk still pertains. The passage of time, advancing age, good prison record and a good record under supervision are, as I have said, positive indicators and they confirm the risk is reducing. However, in the years since 2000 he has nevertheless been closely supervised, either in prison, on parole or under an ESO.

78. Section 5B(d) requires an assessment of risk against a hypothetical circumstance of the person being under no supervision under an ESO. The evidence does not suggest that the making of a CPPO would be accompanied by anything like the supervision or support received under an ESO. These circumstances no doubt operate to create something of a dilemma for the defendant in that it is difficult for him to demonstrate that he no longer presents an unacceptable risk without being supervised in circumstances that he has been and continues to be under supervision, especially in circumstances where the type of supervision appears to be contributing to his social isolation. However, in the end result, that dilemma is just the consequences of the commission of his extremely serious crimes and then the subsequent enactment of legislation that protects community safety above all else.

79. I am satisfied that the test in s 5B(d) is made out.

Duration and Conditions

80. The passage from Lynn set out above suggests that, having identified an unacceptable risk, it is next necessary to consider the appropriate conditions that might be attached to an ESO and their effect on removing or diminishing the risk posed by an offender. Generally the conditions proposed by the State reflect a gradual loosening of the strictness of the supervision on the defendant that has occurred to date and it appears to logically follow from the reduction in the risk that he poses over time.

81. The State provided a schedule contrasting the conditions of his current ESO with the proposed conditions of the ESO it seeks. The State seeks to delete the requirements that the defendant lodge a schedule of movements, that a curfew be imposed and that there be a prohibition on his attendance at places that sell or display sexually explicit material or provide sexual services. Nevertheless, it seeks to retain a general power of supervision along with a requirement that would allow it to impose electronic monitoring, a matter I will return to.

82. Leaving aside the question of duration and the conditions that were the subject of specific submissions by counsel for the defendant, I am satisfied that the proposed conditions are an appropriate means to diminish the risk posed by the defendant.

83. Counsel for the defendant took issue with proposed conditions 15 and 16. Proposed condition 15 obliges the defendant to advise his DSO if he starts “an intimate relationship with someone” or has a sexual relationship with someone or commences a friendship with a woman. In its final form, proposed condition 16 provides that the DSO must give the defendant a reasonable opportunity to disclose his status to the person concerned and obliges the defendant to notify the DSO if he has done so. If the defendant has not done so within a reasonable period of time then the conditions provide that the DSO may inform the person concerned directly of the defendant's status.

84. Counsel for the defendant submitted that these conditions were not appropriate as they were adequately covered by other conditions, specifically those conditions conferring powers of supervision and a requirement on the part of the defendant to answer questions posed by the DSO truthfully. It is reasonably arguable that this is so. Nevertheless, I consider that the imposition of conditions 15 and 16 is warranted. They address a topic that goes to the heart of the risk posed by the defendant and the protection of the community. It is impossible to accept that anyone who commences either an intimate relationship with the defendant or a woman who becomes a friend with him is not entitled to know of his status. These conditions operate to clarify what is expected of the defendant to make sure that occurs.

85. The other condition that was disputed concerns the imposition of electronic monitoring. This is very much bound up with the duration of the order. The State sought an order operating for a period of two years. It also seeks a condition that the defendant must submit to wearing electronic monitoring devices during the period of the order “as directed by a DSO”. While resisting the making of any ESO, counsel for the defendant submitted in the alternative that there should be no such monitoring and that any ESO imposed should only be of twelve months duration.

86. Both Dr Martin and Mr Sheehan agreed that this litigation occasioned stress to the defendant. Doctor Martin noted there was otherwise little or no likelihood of the defendant being completely rehabilitated within twelve months, that is, of his risk factors being reduced by that period. These matters strongly trend towards the making of an ESO of longer duration.

87. I have already referred to some of the evidence concerning electronic monitoring. The effect of Mr Sheehan's evidence was that he accepts the reasonableness and necessity of electronic monitoring to address the risk posed by the defendant. However, he was concerned about the lack of clarity offered to the defendant about when electronic monitoring might end, especially given its potential to inhibit his ability to form pro-social relationships. Mr Sheehan expressed a preference for the use of electronic monitoring to be confined to a finite period.

88. The State read an affidavit from Ms Kelli Grabham who has held a number of positions related to the implementation of ESOs. Her affidavit addresses the various conditions proposed by the State. She describes the process of reviewing electronic monitoring that is undertaken within the ESO teams. She states that a staged approach to electronic monitoring is adopted, specifically four stages, the last of which is the removal of the electronic monitoring devices. The defendant is apparently now at stage 3. Ms Grabham expresses concern about the defendant's discontent with only being at stage 3 and noted that his ESO contraventions in 2018 occurred after electronic monitoring was removed. That may be so, but those contraventions appeared to be unrelated to the removal of the electronic monitoring. Those contraventions did not occur because the defendant was somewhere he was not supposed to be.

89. As for the use of electronic monitoring in the period prior to the expiry of an ESO, Ms Grabham stated:

“In the long term, it is not ideal for an offender who is approaching the end of an ESO to still be subject to electronic monitoring and/or schedules. At each case management review meeting, consideration is given to the length of the offender's order and what progress will be required to ensure the end goal of having the offender within the community without schedules and monitoring for a period of time prior to the expiration of their ESO. It is desirable that the offender is not subject to either electronic monitoring or scheduling for as long as possible prior to the end of their ESO to see how they are progressing in the absence of these tools and to identify any concerns or any need for additional supports.”

90. The defendant has either been in custody, supervised on parole or under an ESO, and mostly by the use of electronic monitoring, for decades. His risk of re-offending is reducing although still unacceptable. The medium to long-term protection of the community is better suited if he is reintegrated into the community rather than being forced into a form of social isolation.

91. In these circumstances, I considered whether to make the ESO operate for only a period of twelve months with electronic monitoring and thus allow the defendant the prospect of having electronic monitoring deleted as a condition of any ESO that might be made at the end of that twelve month period by the Court. However, for the reasons I have already addressed, I do not consider that a twelve month ESO is in his, or in the community's, best interests.

92. I also considered whether to allow the electronic monitoring to remain in an ESO that operates for two years. However, it is my assessment that offers no concrete prospect to the defendant that the electronic monitoring will be removed even if he continues with his rehabilitation.

93. In the end result, I determined that the position would be best addressed by imposing an ESO for a period of two years with a finite limit on the electronic monitoring of eighteen months. To an extent, this is consistent with the extract from Ms Grabham's affidavit set out above. This proposal affords the defendant a concrete date to work towards which will assist with his reintegration into the community. It would also allow the State sufficient time to continue to monitor him so that if another contravention like that which occurred in 2018 was to reoccur it could take action.

94. It is necessary to note something about the wording of the finite limit imposed on electronic monitoring in the conditions that will attach to the ESO. As I have said, the ESO itself will operate for two years. In some circumstances the operation of an ESO can be suspended, but when that suspension is lifted the expired portion remains to be served. It follows that it is not possible to impose a time limit on electronic monitoring which is expressed by reference to a limit such as “six months prior to the ESO ceasing” as that time will never be able to be known with some certainty. Accordingly, the conditions have been drafted with a fixed date as the limit to which the offender can be subject to electronic monitoring, namely 9 April 2022, being eighteen months from today.

Access to the Court File

95. Prayer 4 of the amended summons seeks the following order:

“An order restricting access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of the Judge of the Court, and, if any application for access is made by a non-party in respect of any documents, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in respect of the application for access.”

96. I addressed a similar application in Baldwin at [99]. In this case, given the suppression orders, I will make an order restricting access to the file without the leave of the Judge. I will not make an order directing another Judge as to how that leave may be granted (see Baldwin at [id]).

97. Accordingly, the Court makes the following orders:

1. Set aside the order made on 7 October 2020 under s 10 of the Court Suppression and Non-publication Orders Act in respect of the author of the victim statement which is exhibit B.

2. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act that the identity of the author of the victim statement, exhibit B, be suppressed until 9 October 2055.

3. Order 2 is made on the basis that it is necessary to protect the safety of that person and to avoid undue distress and embarrassment to that person.

4. Order 2 is to operate throughout the Commonwealth.

5. Pursuant to subss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant be subject to an Extended Supervision Order for a period of two years from the date of this order.

6. Pursuant to s 11 of the Crimes (High Risk Offenders) Act direct that the defendant for the period of the Extended Supervision Order comply with the conditions set out in the schedule to these orders.

7. Access to the court file in this matter is not to be granted without the leave of a Judge of this Court.

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State of NSW v GJO Schedule (110929, pdf)

Decision last updated: 14 October 2020