State of New South Wales v Hayter (Final)

[2020] NSWSC 1581

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hayter (Final) [2020] NSWSC 1581

Hearing dates:

27 October 2020

Date of orders:

11 November 2020

Decision date:

11 November 2020

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

(1) Pursuant to s.9(1)(a) Crimes (High Risk Offenders) Act 2006, the Defendant is subject to an extended supervision order for a period of three years, subject to Conditions 1-56 which follow as a Schedule to this judgment.

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

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

(4) For the purpose of s.10(1) and (2) Crimes (High Risk Offenders) Act 2006, the extended supervision order which the Court has made will commence when the Defendant’s current custody expires and that the Defendant’s obligations under the extended supervision order are suspended whilst the Defendant is in lawful custody.

Catchwords:

HIGH RISK OFFENDER – where Defendant does not oppose making of extended supervision order (‘ESO’) – Defendant has significant history of committing serious sex offences against boys under the age of 16 – Defendant diagnosed with paedophilia and hebephilia – Defendant subject to continuing detention orders and ESOs since 2007 – Defendant breached conditions of orders on many occasions – whether Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious offence if not kept under supervision under an ESO – consideration of factors under s.9(2) and (3) Crimes (High Risk Offenders) Act 2006 – unanimous opinions of expert witnesses provide cogent foundation for the making of an ESO – ESO made for a period of three years subject to conditions

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Crimes (Serious Sex Offenders) Act 2006

Crimes Act 1900

Cases Cited:

Attorney General for the State of New South Wales v Hayter [2007] NSWSC 1146

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Ali [2010] NSWSC 1045

State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280

State of New South Wales v Hayter [2008] NSWSC 394

State of NSW v Hayter [2009] NSWSC 318

State of NSW v Hayter [2009] NSWSC 611

State of New South Wales v Hayter [2020] NSWSC 916

State of New South Wales v Kamm (Final) [2016] NSWSC 1

State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562

Turner v State of New South Wales (2019) 99 NSWLR 767; [2019] NSWCA 164

Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28

Texts Cited:

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Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Warren Graeme Hayter (Defendant)

Representation:

Counsel:
Ms D New (Plaintiff)
Mr L Fernandez (Defendant)

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

File Number(s):

2020/168215

Publication restriction:

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Judgment

1. JOHNSON J: By Further Amended Summons filed on 6 October 2020, the Plaintiff, State of New South Wales, seeks an extended supervision order (“ESO”) for a period of three years under the Crimes (High Risk Offenders) Act 2006 (“HRO Act”) with respect to the Defendant, Warren Graeme Hayter.

2. On 20 July 2020, following a preliminary hearing, Campbell J made an interim supervision order (“ISO”) with respect to the Defendant together with an order for psychiatric or psychological examination of the Defendant for the purpose of the final hearing under the HRO Act: State of New South Wales v Hayter [2020] NSWSC 916.

3. As a result of his Honour’s orders, the Defendant was examined by Dr Anthony Samuels, forensic psychiatrist, and Professor Susan Hayes, clinical psychologist. Dr Samuels has provided a report dated 19 August 2020 and Professor Hayes has furnished a report dated 19 October 2020.

Final Hearing of the Further Amended Summons

4. The final hearing of the Plaintiff’s claim for orders under the HRO Act proceeded before me on 27 October 2020. Ms New of counsel appeared for the Plaintiff and Mr Fernandez of counsel appeared for the Defendant.

5. Three folders containing material relied upon by the Plaintiff was tendered without objection (Exhibit A).

6. Counsel for the Plaintiff and the Defendant had furnished helpful written submissions prior to the hearing. The written submissions of Mr Fernandez noted that the Defendant did not challenge the opinions of Dr Samuels and Professor Hayes, who had both assessed the Defendant as having a high risk of future sexual offending. The Defendant accepted that the formal requirements for making an ESO were satisfied and that the matters in s.9(3) HRO Act indicated that an ESO should be made. It was accepted, as well, that the Court would be satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision.

7. The written submissions for the Defendant, confirmed by Mr Fernandez at the hearing, indicated that the legal representatives for the Plaintiff and the Defendant had reviewed the conditions proposed by the Plaintiff prior to the final hearing. As a result of those discussions and after some amendment, the final conditions proposed by the Plaintiff at the hearing were not disputed by the Defendant. The Court was provided with the proposed conditions which were agreed by the parties in advance of the final hearing.

8. The Defendant did not oppose an ESO being made for a period of three years.

9. The Court was assisted greatly by the thoughtful approach adopted by counsel for the Plaintiff and the Defendant with respect to this application. It remains a matter for the Court to determine whether an ESO should be made for a period of three years subject to the conditions proposed to the Court. That said, the balanced and realistic approach of the parties assists the Court in the determination of the application.

10. As will be seen, it is entirely understandable why the legal representatives for the Defendant took the approach which I have indicated at the final hearing.

The Defendant and the HRO Act

11. The Defendant is a 57-year old Aboriginal man who has committed serious sexual offences (as defined in s.5 HRO Act) in three States against male children aged between seven and 15 years between 1984 and 2004.

12. On 16 October 2007, Hislop J directed that the Defendant be subject to a continuing detention order (“CDO”) for a period of six months from that day under the Crimes (Serious Sex Offenders) Act 2006 (as the HRO Act was then called): Attorney General for the State of New South Wales v Hayter [2007] NSWSC 1146.

13. On 6 May 2008, Hislop J directed that the Defendant be subject to a further CDO for a period of 12 months from that day: State of New South Wales v Hayter [2008] NSWSC 394.

14. On 24 April 2009, Buddin J conducted a preliminary hearing for the purpose of the Crimes (Serious Sex Offenders) Act 2006 and directed that the Defendant be subject to an ISO with effect from 5 May 2009 and that he be examined by two psychiatrists for the purpose of the final hearing: State of NSW v Hayter [2009] NSWSC 318.

15. On 1 July 2009, Buddin J (at the final hearing) directed that the Defendant be subject to an ESO for a period of five years commencing on 1 July 2009: State of NSW v Hayter [2009] NSWSC 611.

16. As it happens, the ESO for five years ordered by Buddin J in 2009 did not expire until 27 August 2020. During the period between 2009 and 2020, the Defendant served a number of sentences of imprisonment for failing to comply with the conditions of the 2009 ESO, with resulting periods of suspension of the ESO when the Defendant was in custody.

17. Regrettably, the Defendant has breached conditions of the ISO directed by Campbell J on 20 July 2020. Having pleaded guilty before the Burwood Local Court to those charges, the Defendant was sentenced on 21 October 2020 to a term of imprisonment for 11 months commencing on 7 October 2020, comprising a non-parole period of six months expiring on 6 April 2021 with a balance of term of five months expiring on 6 September 2021.

18. As a result of the current sentence, any ESO directed by the Court on this occasion will not commence until the Defendant’s current custody expires and the operation of conditions of the ESO will be suspended whilst he is in lawful custody: s.10(1) and (2) HRO Act.

Legal Principles Under HRO Act

19. I record the Court’s satisfaction, supported by concessions made for the Defendant, that the following prerequisites under the HRO Act are satisfied in this case:

1. the Defendant is an offender who has served a sentence of imprisonment for a serious offence: s.5B(a);

2. at the time when the Plaintiff made the application, the Defendant was a supervised offender for the purposes of s.5B(b) and (c);

3. the application by the Plaintiff for an ESO was made in accordance with s.5I HRO Act.

20. The remaining question is whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO: s.5B(d).

21. The primary object of the HRO Act is to ensure the safety and protection of the community: s.3(1). When determining whether an ESO should be granted, the safety of the community must be the paramount consideration: s.9(2).

22. A further object of the HRO Act is to encourage offenders to undertake rehabilitation: s.3(2).

23. The purpose of the orders which may be made under the HRO Act is to protect the community from unacceptable risks of further serious offending: Turner v State of New South Wales (2019) 99 NSWLR 767; [2019] NSWCA 164 at [32].

24. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) , the Court of Appeal observed (at [51]) that determination whether a risk is unacceptable involves an evaluative task. The Court held (at [61]) that the evaluation to be made 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.

25. The Court must be satisfied “to a high degree of probability” that the Defendant poses an “unacceptable risk” of committing another serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

26. Section 5D HRO Act makes clear that the Court is not required to determine that the risk of the Defendant committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence. Accordingly, an unacceptable risk of committing a serious offence can be a risk which is less than 50%: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [21].

27. The right of an offender to personal liberty at the expiry of a sentence of imprisonment being served is not a relevant consideration in the determination of whether the person poses an “unacceptable risk” for the purpose of ordering an ESO: Lynn at [4].

Consideration of Matters Referred to in s.9(3) HRO Act

28. Section 9(3) HRO Act requires the Court to have regard to certain specified matters in an application for an ESO together with any other matters which the Court considers relevant. It is appropriate to consider matters relevant to the Defendant under subheadings contained in this provision.

Section 9(3)(h) and (h1) - The Defendant’s Criminal History and Views of Sentencing Courts

29. In his judgment of 16 October 2007 (Attorney General for the State of New South Wales v Hayter) Hislop J recounted the Defendant’s offences, convictions and custody as follows (at [10]):

DATE	EVENT
17 March 1981	Convicted of trespass. Oberon Court of Petty Sessions. Sentenced to $40 fine or 48 hours hard labour.
21 September 1982	Convicted of malicious kill cattle (shoot goat). Oberon Court of Petty Sessions. Sentenced to $200 fine or 8 days hard labour.
6 May 1984	Date of sex offence for which defendant was convicted on 1 November 1985 in District Court at Bathurst. Victim was an 8 year old boy. (Defendant subsequently called up for sentencing for this offence on 27 February 1986, following breach of recognizance.)
17 July 1984	Date of two of the sex offences for which defendant was convicted on 5 November 1984 in Bathurst Court of Petty Sessions (victims were a 7 year old boy and an 8 year old boy)
18 July 1984	Date of third sex offence for which defendant was convicted on 5 November 1984 in Bathurst Court of Petty Sessions (victim was an 11 year old boy).
5 November 1984	Convicted of: 1. Attempt to commit act of gross indecency on male (7 year old boy) 2. Attempt to commit act of gross indecency on male (8 year old boy) 3. Attempt to commit act of gross indecency on male (11 year old boy) Bathurst Court of Petty Sessions (Webster SM). Convicted. Sentences: 1. Sentence deferred on entering recognizance self $300 and to be of good behaviour 2 years (to expire 5.11.86), supervision Probation & Parole Service, s 558 recognizance entered. 2. Fine $250 or 10 days hard labour. 3. Sentenced to the rising of the court.
21 May 1985	Convicted of receiving. Oberon Local Court. Fined $150 or 6 days hard labour.
1 November 1985	Convicted of commit act of indecency with person under 16 years old. Bathurst District Court (Judge Shillington). Sentence deferred upon defendant entering in self recognizance $300 to be of good behaviour for 3 years, accept supervision by Probation and Parole, obey all reasonable directions and continue with treatment under Dr Jolly and see him on a regular basis as Dr Jolly requires.
6 November 1985	Date of sex offence for which defendant was convicted and sentenced at Parramatta Local Court (victim was an 11 year old boy)
2 December 1985	Convicted of receiving. Oberon Local Court (Magistrate Forsyth). Fined $250.
17 December 1985	Convicted of attempt to procure male person under 18 years of age. Parramatta Local Court (Magistrate Fitzpatrick). Sentenced to imprisonment for 4 months (commencing 8.11.85 and concluding 7.3.86)
27 February 1986	Defendant called up for sentencing for offence for which convicted on 1 November 1985. Breach of recognizance entered into on 1 November 1985 (by reason of the conviction at Parramatta Local Court of further sex offence committed on 6 November 1985). Defendant called up for sentencing before Judge Shillington. Sentenced to imprisonment for 3 years on first offence (commencing from 27.2.86) with a non parole period of 18 months. Subsequently, with remissions, released to probation on 18.3.87.
3 March 1986	Breach of recognizance Bathurst Local Court (Magistrate Webster). Sentenced to imprisonment for 2 years (commencing 3.3.86 and concluding 2.3.88; non parole period 18 months concluding on 2.9.87) Convicted of assault (s 495). Sentenced to imprisonment for 6 months.
18 March 1987	Defendant released to probation (after remissions) and subject to a probation order with supervision to expire on 26 February 1989.
19 September 1987	Date of first sex offence in respect of which defendant convicted on 19 November 1987 in District Court at Forbes - 12 year old boy. Offence committed while defendant on probation after release on parole in March 1987.
21 September 1987	Date of second sex offence in respect of which defendant convicted on 19 November 1987 in District Court at Forbes - same 12 year old boy. Offence committed while defendant on probation after release on parole in March 1987.
25 September 1987	Defendant received back into custody - bail refused.
19 November 1987	Convicted of: 1. Commit act of indecency on person under the age of 16 years; 2. Commit an act of indecency on person under the age of 16 years (Crimes Act, s 61E(2)) Offences committed on 19.9.87 and 21.9.87 (victim was a 12 year old boy; same victim for both offences) Defendant pleaded guilty. Forbes District Court (Judge Freeman). Sentenced to: 1. Imprisonment for 2 years re first offence (commencing 25.9.87 and to expire on 24.9.89) 2. Imprisonment for 2 years re second offence (commencing 25.9.89 and to expire on 24.9.91) (ie sentences cumulative and 4 years in total). Judge declined to set a non parole period.
19 May 1989	Convicted of: 1. Attempt to escape; 2. Assault; 3. Malicious damage. Wollongong District Court (Judge Badgery-Parker). Sentenced to: 1. Imprisonment for 6 months (cumulative), non parole period 3 years 5 months commencing 19.5.89 concluding 18.10.92; 2. Imprisonment for 18 months (concurrent); 3. Imprisonment for 6 months (concurrent with 1 and 2)
24 February 1993	Convicted of: 1. Wilfully expose a child under the age of 16 years to an indecent act (2 charges); 2. Indecent dealing with a child under 16 years; 3. Wilfully expose a child under the age of 16 years to an indecent photograph (2 charges); 4. Indecent dealing with a child under 16 years (2 charges); 5. Indecent assault with circumstances of aggravation (between 1 & 30.11.92); 6. Permit himself to be indecently dealt with by a child under the age of 16 years (between 1 & 30.11.92); 7. Wilfully expose a child under age of 16 years to an indecent video tape (on 13.12.92); 8. Attempt to procure child under the age of 12 years to commit an indecent act (between 1, 2 & 30.9.92); 9. Wilfully expose a child under the age of 12 years to an indecent act (between 1, 2 & 30.9.92); 10. Wilfully expose a child under the age of 12 years to an indecent video tape (5 charges); 11. Indecent dealing with a child under 12 years (6 charges). Brisbane District Court, Queensland (Judge Hoath). Sentenced to: 1. Imprisonment for 3 years on each charge; 2. Imprisonment for 3 years; 3. Imprisonment for 2 years on each charge; 4. Imprisonment for 3 years on each charge; 5. Imprisonment for 5 years; 6. Imprisonment for 3 years; 7. Imprisonment for 2 years; 8. Imprisonment for 5 years; 9. Imprisonment for 5 years; 10. Imprisonment for 2 years on each charge; 11. Imprisonment for 5 years on each charge. All sentences to be served concurrently. Terms of imprisonment to commence from 14.12.92. To be considered for parole after 2 years.
25 February 1993	Convicted of possession of nunchuka without lawful excuse. Brisbane Magistrates Court. Fined $250.
10 March 1993	Convicted of: 1. Stealing (2 charges) 2. False pretences (2 charges) Date of offences 8 and 12 December 1992. Brisbane Magistrates Court. Sentenced to: 1. Imprisonment for 6 months on each charge (1st charge cumulative on term of existing term of imprisonment for 5 years); 2. Imprisonment for 6 months on each charge (concurrent). Appeal dismissed by Qld Court of Appeal but non parole period of three months set and to be added to the non parole recommendation in respect of the sentences imposed on 24.2.93 for the sex offences - and thus total non parole period of 2 years 3 months (ie 13.3.94).
9 February 1996	Convicted of escape legal custody (on 19.1.96). Townsville Magistrates Court. Sentenced to imprisonment for 9 months (cumulative).
23 June 1999	Convicted of unregistered vehicle. Elizabeth Magistrates Court, South Australia. Fined $174.
17 October 1999	Date of sex offence for which defendant convicted by District Court of South Australia on 20 February 2001.
21 October 1999	Convicted of larceny. Adelaide Magistrates Court. Fined $324.
7 April 2000	Warrant of apprehension issued in South Australian Magistrates Court (Deputy Registrar Haig)
23 May 2000	Defendant arrested in NSW in respect of South Australian sex offence on first instance warrant - remanded in custody and extradited to South Australia.
20 February 2001	Convicted of unlawful sexual intercourse. Victim a 14 year old boy. District Court of South Australia at Adelaide (Judge Anderson). Pleaded guilty. Sentenced to imprisonment for 3 years (commencing 23.5.00 and expiring 22.5.03) with an 18 month non parole period (expiring 22.11.01)
22 November 2001	Defendant released on parole from Port Lincoln Prison in South Australia. Upon release defendant is arrested by South Australia Police on first instance warrants and placed before a Justice of the Peace at Port Lincoln - and then remanded in custody until 26 November 2001 for extradition proceedings before a magistrate at the Adelaide Magistrates Court. On 26 November 2001 defendant was released into the custody of NSW Police - and then remanded to appear at Central Local Court on 27 November 2001.
26 November 2001	Defendant released (by SA authorities) into the custody of NSW Police - and then arrested and remanded to appear at Central Local Court on 27 November 2001
28 November 2001	Defendant recorded as being in custody in NSW
10 April 2002	Defendant in Parklea Correctional Centre
21 May 2002	Defendant released from NSW gaol custody (where had been on remand since 26.11.01 - NSW charges in relation to same victim as subject of the SA conviction not proceeded with)
10 July 2002	Defendant living in Wagga Wagga
17 July 2002	Defendant registers at Albury under the Child Protection (Offenders Registration) Act 2000.
29 July 2002	South Australia Parole Board issues extradition warrant to be brought back to South Australia to appear before the Parole Board.
14 March 2003	Defendant arrested by NSW Police on warrants and charged (kept in custody - period to be specified)
28 February 2004	Defendant released from NSW gaol custody.
21 June 2004	Date of index offence (at Ollie Web Reserve, Parramatta)
29 June 2004	Defendant arrested in respect of index offence - remained in custody from this date.
4 February 2005	Convicted of aggravated indecent assault on a victim under the age of 16 years (s 61M(1), Crimes Act 1900). Victim a 12 year old boy. Parramatta District Court (Judge Delaney). Defendant pleaded guilty. Sentenced to imprisonment for 3 years 3 months with a non parole period with conditions of 2 years (commencing 29.6.04 and non parole period concluding 28.6.06; head sentence to expire on 28.9.07)
27 April 2006	NSW State Parole Authority indicates intention to refuse parole for defendant.
28 June 2006	Non parole period for current offence expires.
30 March 2006	Defendant transferred from Junee Correctional Centre to Goulburn Correctional Centre.
19 January 2007	Defendant commences CUBIT programme.
26 April 2007	NSW State Parole Authority indicates intention to refuse parole for defendant.
25 May 2007	Defendant refused parole.
28 September 2007	Full term of defendant’s current sentence due to expire.

Sexual Offending in New South Wales

30. On 6 May 1984, the Defendant committed an offence of indecent assault on a male aged under 16 years. The Defendant approached an eight-year old boy on the streets of Oberon and persuaded the boy to come to his home. In a shed at the Defendant’s home, the Defendant touched the area around the victim’s penis. The Defendant told the victim to remove his pants and then placed his penis on top of the victim’s penis. The Defendant promised the victim a free puppy as an inducement.

31. On 1 November 1985, the Defendant was sentenced by his Honour Judge Shillington QC at the Bathurst District Court for this offence. His Honour deferred passing sentence under s.558 Crimes Act 1900 upon the Defendant entering into a recognisance himself in the sum of $300.00, to be of good behaviour for three years and to accept the supervision of the Probation and Parole Service and to obey all reasonable directions of that Service and to continue with treatment with Dr Hugh Jolly and see Dr Jolly on a regular basis as required.

32. On 17 and 18 July 1984, the Defendant committed three offences of attempting to commit a gross act of indecency with three boys aged seven, eight and 11 years. On each occasion, the Defendant approached the victim on the streets of Bathurst. With respect to the first victim, the Defendant approached an 11-year old boy on the street and took his hand leading him across to a park. The Defendant told the victim to pull his zipper down and offered him $4.00. The victim ran away. When interviewed by police, the Defendant admitted that he was going to masturbate in front of the boy on seeing the boy’s penis. The Defendant admitted to drinking alcohol at the time.

33. With respect to the second and third victims, on separate occasions, the Defendant approached each boy and offered them money to accompany him to another location. The Defendant’s purpose was to see each victim’s penis and to masturbate in front of each victim.

34. On 5 November 1984, the Defendant was sentenced by Mr Webster SM, sitting at the Bathurst Court of Petty Sessions, with sentence being deferred under s.558 Crimes Act 1900 upon the Defendant entering into a recognisance himself in the sum of $300.00, to be of good behaviour for two years and to accept the supervision of the Probation and Parole Service. On the second charge, the Defendant was fined $250.00 with a sentence of imprisonment to the rising of the Court being imposed for the third charge.

35. On 8 November 1985, the Defendant was charged with attempting to procure a male person under 18 years in an act of indecency. The Defendant had approached an 11-year old boy on the streets of Parramatta and offered the boy a sum of money saying “Come with me somewhere where we can be alone”. The Defendant subsequently admitted to the offence.

36. On 17 December 1985, the Defendant was sentenced by Mr Fitzpatrick, Magistrate, at the Parramatta Local Court to imprisonment for four months.

37. On 27 February 1986, the Defendant was called up for sentence before his Honour Judge Shillington QC in the District Court for breach of the recognisance entered into on 1 November 1985 by reason of the commission of the offence for which sentence was passed in the Parramatta Local Court on 17 December 1985. The Defendant was sentenced to imprisonment for three years with a non-parole period of 18 months.

38. On 3 March 1986, the Defendant appeared before the Bathurst Local Court for breach of recognisance for which he was sentenced to imprisonment for two years with a non-parole period of 18 months concluding on 2 September 1987.

39. On 24 September 1987, the Defendant was charged with two counts of indecent assault relating to incidents on 19 and 21 September 1987. The Defendant masturbated the penis of a 12-year old boy and rubbed his penis against the boy’s penis. After buying the victim alcohol, the Defendant had persuaded the boy to come to the Defendant’s residence in Oberon where the offences were committed. The victim had a difficult home environment and had run away on a number of occasions.

40. On 19 November 1987, the Defendant was sentenced by his Honour Judge Freeman at the Forbes District Court for these offences. A total effective sentence of imprisonment for four years commencing 25 September 1987 was imposed and his Honour declined to fix a non-parole period.

Sexual Offending in Queensland

41. The Defendant’s next sexual offence was committed in the State of Queensland. Having relocated from New South Wales to Queensland in 1991, the Defendant (then 29 years old) committed 23 sexual offences to which he pleaded guilty. The offences comprised 22 counts of indecent treatment of boys under the age of 16 years and one count of indecent assault. The charges related to four boys.

42. The sexual abuse involved a range of acts including sucking the victims’ penises and having them suck the Defendant’s penis, masturbating in front of the victims, having the victims masturbate the Defendant and mutual masturbation.

43. Two of the victims were intellectually disabled and had been approached by the Defendant on their way home from school. Another of the victims was aged under 12 years and had been living with the Defendant for a period of time. Another boy, aged under 12 years, was shown indecent videos by the Defendant who then engaged in sexual activity with him. The Defendant paid money to some of the victims to engage in these activities. A number of the offences occurred whilst the Defendant was on bail.

44. On 24 February 1993, the Defendant appeared at the Brisbane District Court where he was sentenced by his Honour Judge Hoath to an overall term of imprisonment for five years with a non-parole period of two years.

45. In sentencing the Defendant, his Honour Judge Hoath stated that the Defendant had “preyed on the boys involved”. His Honour stated that the “type of offences you have committed caused abhorrence to every right thinking person in the community and the community expects the court to impose sentences in these types of cases that will not only deter you but will also act as a deterrent to other like minded persons”.

Sexual Offending in South Australia

46. In May 2000, the Defendant was arrested in New South Wales and extradited to South Australia to face charges in respect of sexual offences committed in that State in October 1999. The Defendant was subsequently charged by South Australian authorities with five sexual offences, only one of which (a charge of unlawful sexual intercourse) was proceeded with and to which the Defendant pleaded guilty.

47. The charge related to an incident on 17 October 1999 in which the Defendant performed fellatio on a 14-year old boy. The victim, whom the Defendant had initially picked up at an Adelaide train station, was homeless. The Defendant offered him accommodation before sexually assaulting him with the assault having commenced whilst the victim was asleep. The Defendant then persuaded the victim to come with him to New South Wales for a period and he lied to authorities when enquiries about the victim’s whereabouts were made.

48. On 20 February 2001, the Defendant was sentenced by his Honour Judge Anderson at the Adelaide District Court for this offence. He was sentenced to imprisonment for three years commencing on 23 May 2000 with a non-parole period of 18 months.

49. When sentencing the Defendant, his Honour Judge Anderson said:

“Your behaviour in relation to the victim of this offence was predatory. You sought him out and then persuaded him to remain and then return to you. This confidence which you built was the foundation for your sexual attack on him. It was aggravated by your lie when official enquiries were made as to his whereabouts.”

50. A little later, his Honour Judge Anderson said:

“You are now aged 37 years. Since 1984 you have been convicted on more than 20 occasions of sexual offences with young males. Since 1987 you have spent about nine years in custody for such offences. From your antecedents, it seems that you were out of prison for about four years when this offence occurred.”

51. The sentencing Judge observed that the Defendant had “been diagnosed as a paedophile and that recently whilst in custody you have come to accept that this is so and to seek assistance”. His Honour observed that the Defendant “suffered sexual abuse as a child for several years and this goes some way to explain your behaviour”.

52. Soon after, his Honour Judge Anderson said:

“This was a deliberate offence predatory in nature where confidence winning was used to enable the offence to occur then you declined to reveal the victim’s whereabouts - perhaps in the hope that you would have further opportunity.

Your record is such as to emphasise the need for general deterrence in relation to such behaviour. With your record, personal deterrence is of no real significance, particularly as you now claim to be aware of the error of your past and to want actively to do something about it.”

Further Sexual Offending in New South Wales

53. In June 2004, the Defendant committed a further offence against a boy. On 20 June 2004, the Defendant approached a 12-year old boy in a park at Parramatta whilst the boy was playing football and he complimented the boy on his football skills. The next day, the boy was playing football on his own in the same park. The Defendant approached him and struck up a conversation and then offered the boy $20.00 to spend on what he wanted. The Defendant later made flattering remarks about the boy’s appearance. The Defendant lured the boy to bushes nearby where he sexually assaulted him by fondling the boy’s penis before the boy pulled away stating he felt uncomfortable. The boy made a diary entry of the incident which was read by his mother. The boy provided a description to police which ultimately led to the arrest of the Defendant on 29 June 2004.

54. On 4 February 2005, the Defendant was sentenced by his Honour Judge Delaney at the Parramatta District Court for one offence of aggravated indecent assault on a child under 16 years contrary to s.61M(1) Crimes Act 1900 which carried a maximum penalty of imprisonment for seven years with a standard non-parole period of five years. The Defendant was sentenced to imprisonment for three years and three months commencing on 29 June 2004 with a non-parole period of two years.

55. His Honour Judge Delaney noted a submission by the Crown and counsel for the Defendant that the Defendant would be “best served by going into the CUBIT program”. After reference to the Defendant’s prior criminal history, his Honour said:

“It is clear that, because of previous convictions, anything that can be done which might possibly change his situation and give him a chance of rehabilitation notwithstanding how late in life that would be, should be welcomed and encouraged in the hope that despite the history, he will change.”

56. His Honour summarised the opinion of a reporting psychologist that the Defendant’s risk of sexual reoffending was high, relying upon similar prior convictions and that the Defendant’s risk of recidivism arose in the context of offending against boys who were not related to him. His Honour noted that the Defendant had expressed a desire and motivation to rehabilitate.

57. It will be seen from the above history that the Defendant had been convicted and sentenced for several sex offences, all of which involved young boys under 16 years of age and some of which were committed whilst he was subject to conditional liberty.

58. It was submitted for the Plaintiff, accurately, that the Defendant’s pattern of offending revealed a predilection towards sexual offending with boys under the age of 16 years (and as young as eight years old) who were unknown to the Defendant where the Defendant, opportunistically, found ways in public places to meet and groom each child and then sexually abuse them by performing sexual acts on them or having the male children perform sexual acts on him.

59. The offending took place over a period exceeding 20 years and across three different States of Australia and demonstrated the persistence of the Defendant to seek out and abuse young boys.

Section 9(3)(f) and (i) - The Defendant’s Response to CDOs and ESOs

60. In Hislop J’s judgment of 16 October 2007, leading to the imposition of the initial CDO, his Honour noted that the Defendant participated in a sex offender program in 1984 and 1985 and, in 1996, he participated in a group based sex offender therapy program. His Honour noted that the Defendant entered the CUBIT program on 19 January 2007 having expressed a willingness to complete the program. However, in June 2007, the Defendant was found with pictures of young boys in his cell and then, in August 2007, he was found with a list of names and descriptions of schools which he admitted to his psychologist was a list of future victims. The Defendant was also found with telephone numbers for organisations which treated erectile dysfunction which led officers with Corrective Services NSW to suspect that the Defendant was trying to subvert the antilibidinal medication he was using. As a result, on 11 August 2007, the Defendant was suspended from CUBIT.

61. Hislop J summarised the evidence of the psychiatrists and psychologists who had provided reports (Professor Greenberg, Dr Samuels, Dr Allnutt, Mr Sheehan, Ms Sutton, Ms Senior and Mr Bright) who had assessed the Defendant as posing a high risk of committing a further serious sex offence. The Defendant was described as presenting with dynamic risk factors including sexual preoccupation, sexual impulsivity, sexual dysregulation and deviant sexual interests. The psychiatric and psychological experts saw benefit in the Defendant completing the CUBIT program, which had the prospect of providing him with internal controls and psychological controls, with some psychiatrists commenting as well on the need for antilibidinal medication.

62. In ordering a CDO for six months, Hislop J observed that this would enable the Defendant to complete the CUBIT program: Attorney General for the State of New South Wales v Hayter at [74].

63. On 6 May 2008, Hislop J ordered that the Defendant be subject to a further CDO for a period of 12 months: State of New South Wales v Hayter (2008). Hislop J noted that the Defendant had commenced the CUBIT program in October 2007, but therapists had described his progress as being poor. The Defendant had been suspended from the CUBIT program on 25 January 2008. In that respect, a number of problems were said to have hindered the Defendant’s progress in the CUBIT program including engaging in sexually inappropriate behaviour with other inmates, disobeying custodial staff directions, breaching CUBIT community rules and possession of inappropriate material: State of New South Wales v Hayter (2008) at [11].

64. The Defendant was offered another opportunity to participate in CUBIT, a course encouraged by the expert reports, and Hislop J directed the further CDO for a period of 12 months to commence on 6 May 2008. When the CDO expired, the Defendant was placed on an ISO pending the determination of the Plaintiff’s 2009 application for an ESO.

65. On 1 July 2009, Buddin J placed the Defendant on an ESO for five years: State of NSW v Hayter (2009). In that decision, Buddin J summarised the reports of Dr Samuels and Professor Greenberg who diagnosed the Defendant with paedophilia and hebephilia.

66. At the time of the decision on 1 July 2009, the Defendant was on antilibidinal medication. Both Dr Samuels and Professor Greenberg commented on the “deceptive maladaptive behaviour” of the Defendant to conceal the extent of his sexual urges and fantasies and the need for an ESO in the long term to manage risk. Each expert recommended that the Defendant take antilibidinal medication, with Dr Samuels supporting this step for 12 months and Professor Greenberg supporting a longer period.

67. As noted earlier, during the ESO which commenced in 2009, the Defendant had served periods of lawful custody by way of sentences for failing to comply with conditions of the ESO. As a result, the ESO expired on 27 August 2020. Thereafter, the Defendant was subject to an ISO before he was arrested for breaching conditions of the ISO on 7 October 2020.

Defendant’s Breaches of the ISO in October 2020

68. On 7 October 2020, surveillance operations sighted the Defendant purchasing a mobile phone in a mobile store at Burwood. This was in contravention of his schedule of permitted activities and the requirement that he disclose to his Departmental Supervising Officer (“DSO”) any phone which he used (Conditions 6 and 32 of the ISO). Later that day, Community Corrections NSW officers and police officers from the ESO Investigative Team attended the Defendant’s residence and asked him where he had been earlier in the day. The Defendant did not disclose that he had been to a mobile store, or that he had made any purchases. The Defendant’s backpack was searched and a new mobile phone was found and seized. The Defendant was arrested and bail was refused.

69. The Defendant’s purchase of a mobile phone in breach of a condition of the ISO is relevant to his risk of committing a further serious sex offence and evidences the ongoing need for supervision to ensure the safety of the community.

70. As noted earlier (at [17]), the Defendant was sentenced to a further term of imprisonment arising from his breaches of the ISO in October 2020.

71. It is clear that the Defendant has experienced difficulty in complying with conditions of the 2009 ESO with their being more than 20 charges laid for failing to comply with conditions of the ESO and, between 2009 and 2019, some 29 directions and/or warnings with respect to his compliance with ESO conditions.

72. The Defendant’s breaches and warnings/directions have included the following:

1. on 19 July 2009, the Defendant attended a park in Campbelltown in breach of a condition and was seen loitering in the toilet block of the location for 25 minutes;

2. on days in August 2010, November 2010, May 2011, September 2011 and April 2016, the Defendant tested for cannabis in contravention of a condition of the ESO;

3. in February 2013, the Defendant used Facebook and made contact with children and, on inspection, the Defendant’s mobile phone indicated to police that the Defendant had “friended” 10 young males on Facebook ranging from 12 to 17 years of age with the Defendant admitting that he had contacted the young males, stating he was “just looking for friends”;

4. in October 2014 and November 2016, the Defendant associated with vulnerable persons or known child sex offenders;

5. in April 2017, the Defendant erased data from his mobile phone; and

6. in March 2019, the Defendant possessed another mobile device and an associated SIM card which were not declared to the DSO.

73. The Defendant’s breach in March 2019 led to a sentence of imprisonment which expired on 2 March 2020.

Section 9(3)(b) and (d) - Reports of Dr Samuels and Professor Hayes

74. Dr Samuels examined the Defendant on 19 August 2020 in his Macquarie Street rooms and provided a report bearing that date. It will be recalled that Dr Samuels had examined the Defendant previously and furnished a report for the purpose of the 2007, 2008 and 2009 applications concerning the Defendant.

75. In his 2020 report, Dr Samuels diagnosed the Defendant with the following DSM-5 disorders (page 21):

1. Paedophilia (sexually attracted to males);

2. Cluster B Personality Disorder with Antisocial, Narcissist and Borderline features; and

3. Persistent Depressive Disorder (Dysthymia).

76. The Defendant’s breaches of the 2009 ESO suggested to Dr Samuels that the Defendant has a continued and ongoing attraction to young males despite antilibidinal therapy and his denials. As to risk of further offending, Dr Samuels considered that the Defendant posed a risk because (page 21):

“Mr Hayter has proven to be a recidivist offender who, despite a high level of supervision in the community, perpetually breaches his conditions. Despite his current denials regarding sexual interest in young males and although he is on antilibidinal medication, I would regard Mr Hayter’s offending risk as high. He also has limited supports and protective factors in the community.”

77. Dr Samuels identified the Defendant’s risk factors as including depression and loneliness, substance use, opportunities to offend (especially if the level of monitoring in the community was diminished), admissions by the Defendant to an increase in deviant sexual fantasies, socialising or communicating with known sex offenders and not attending therapy or avoidance of ESO supervision.

78. Applying the STATIC-99R and STABLE 2007 assessment tools, Dr Samuels categorised (at page 12) the Defendant as being in the “well-above average” risk range of further sex offending (with a score of eight). By application of the Risk of Sexual Violence Protocol structured risk assessment tool, Dr Samuels considered that the Defendant showed the presence of risk factors across five domains, being sexual violence, psychological adjustment, mental disorder, social adjustment and manageability.

79. Dr Samuels noted (at page 22) that he had expressed concerns in previous reports about the Defendant’s level of risk even when monitored under an ESO, with the Defendant having managed to access pornography and also trying to access potential victims even with stringent oversight. Dr Samuels observed, however, that the ESO “appears to have worked in the sense that these breaches were quickly picked up and he was returned to custody”.

80. Dr Samuels expressed the opinion that the proposed conditions of the ESO were appropriate. He considered that access to internet and restrictions to pornography were important and essential to managing the Defendant’s diagnosis.

81. Dr Samuels considered that the Defendant’s risk was ongoing and that a five-year ESO was necessary (page 24).

82. Professor Hayes undertook a telephone interview and assessment with the Defendant on 13 October 2020. That method of interview was undertaken as, by that time, the Defendant was in custody for having breached conditions of the ISO. Professor Hayes provided a report dated 19 October 2020 with respect to the Defendant.

83. The detailed psychological report of Professor Hayes serves to complement the psychiatric report of Dr Samuels with all relevant aspects concerning the Defendant being assessed in the reports furnished to the Court for the purpose of the present application.

84. Professor Hayes noted (at page 11) the diagnosis of paedophilia and hebephilia reached by a number of psychiatrists including Professor Greenberg, Dr Samuels, Dr Andrew Ellis and Dr Jeremy O’Dea. Professor Hayes observed (at page 12) that the conditions of paedophilic disorder and hebephilic disorder contributed to the likelihood of the Defendant committing a further serious offence and that, in addition, his cognitive impairments and possible ongoing deterioration contributed to the risk of committing a further serious offence.

85. Professor Hayes observed (at pages 11-12) that the Defendant’s decision-making abilities, executive skills and memory are impaired, making it difficult for him to develop a plan to avoid offending behaviour and to implement such a plan.

86. Professor Hayes referred (at page 9) to a report of Dr Van Den Berg, who performed psychometric testing on the Defendant in December 2019, and who concluded that there was a history of significant mental illness which could be associated with deficits in attention, verbal memory and executive functions.

87. Professor Hayes referred to the Defendant’s low cognitive functioning for cognitive impairments noting that he had little insight into his offending behaviour and strategies which he could utilise to avoid offending.

88. Professor Hayes observed (at page 12) that, whilst antilibidinal medication may (to an extent) mitigate the Defendant’s risk, the fact that he had difficulty in achieving an erection did not mean that he could not engage in inappropriate sexual contact with young children. It was clear from the Defendant’s purchase of pornographic material and his focus upon sexual relationships and sexual activity that he continued to be highly focused upon sexuality and sexual fantasies and was likely to pose a risk of further serious sexual offences.

89. Professor Hayes applied statistical or professional assessment tools with respect to the Defendant’s risk of reoffending. Application of the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend - Sexually (“ARMIDILO-S”) identified the following factors as being “problematic” and “not protective” (pages 12-13):

1. supervision compliance;

2. sexual deviance;

3. sexual preoccupations/sexual drive;

4. offence management;

5. emotional coping ability;

6. relationships;

7. impulsivity; and

8. substance abuse.

90. Professor Hayes explained (page 14) that the use of ARMIDILO-S was appropriate for the Defendant as this professional judgment tool was designed specifically for use with individuals with a borderline or mild intellectual impairment who have offended sexually or who have displayed sexually offensive behaviour.

91. Professor Hayes stated (page 14):

“Taken together with the actuarial risk rating on the STATIC-99, Mr Hayter’s risk rating is high, as evaluated on the ARMIDILO-S instrument, whilst his protective rating is low, giving an average overall convergent risk estimate of high risk.”

92. Concerning assessment of risk for the Defendant, Professor Hayes stated (page 13):

“There appear to be no changes in sexual preoccupation/sexual drive, victim-related behaviours, emotional coping ability, or use of coping strategies. Whilst some of these items are stable, they are stable in a negative way because whilst there has been no change in his emotional coping ability and use of coping strategies, ideally in order to minimise risk there should be positive gains in his emotional coping ability and coping strategies rather than a continuation of the previous levels of functioning in both of these areas.”

93. Professor Hayes stated that, in her clinical judgment, taken with the results of the ARMIDILO-S, the Defendant constituted a high risk of further sexual offending (page 15).

94. Professor Hayes noted that the ARMIDILO-S does not provide direct comparisons with other sex offenders. However, the Defendant’s results on STATIC-99R and STABLE 2007 indicated that his composite risks/need level was in the “well above average” risk level (Level IVb) compared with other men who have offended sexually (page 15).

95. After application of the ARMIDILO-S assessment tool, Professor Hayes observed that an ESO would be a protective and rehabilitative measure.

96. Professor Hayes favoured supervision to manage and/or reduce the Defendant’s risk of serious sex offending and emphasised that greater attention ought be given to the Defendant’s cognitive impairment as it is a contributory factor to his offending behaviour and his compliance with supervision (page 16).

97. Professor Hayes endorsed the proposed conditions of the ESO suggesting that further attention be given to the Defendant’s cognitive impairment as part of the supervision process (pages 16-18).

98. Professor Hayes agreed that an ESO for a period of three years was appropriate as this would enable the Defendant to complete treatment programs and engage in various interventions designed to reduce his risk (page 18).

99. Professor Hayes concluded the report as follows (page 19):

“It is important for all professionals engaged in Mr Hayter’s risk management plan to be aware of his cognitive impairments, and for a protocol to be developed outlining strategies to address his difficulties in planning, executive functioning and memory, in particular. This protocol needs to be adhered to by all professionals involved in his support and treatment interventions. Some of his difficulties with compliance with supervision, insight, response to treatment, sexual self-regulation and problem-solving are likely to be related to his cognitive impairments and deficits in adaptive behaviour skills.”

Section 9(3)(b) and (d) - Other Assessment Reports

100. Risk assessment reports were prepared with respect to the Defendant in 2019 and 2020. In these reports, Mandy Lau, Acting Senior Psychologist Serious Offenders Assessment Unit, identified present risk factors including sexual self-regulation, interpersonal and relationship skills deficits and lack of self-management strategies to manage risk.

101. Ms Lau commented that an ESO, should it continue, would allow the Defendant to develop a “more realistic and comprehensive self-management plan” and “it will allow [the Defendant] the opportunity to practice implementing it”.

102. Ms Lau expressed the opinion that the Defendant engaged in “unhelpful behaviours” since her 2019 risk assessment report which “appear consistent with [the Defendant’s] past behaviour patterns”.

103. On the STATIC-99R assessment, Ms Lau assessed the Defendant with a score of eight being in the “well above average” risk category where the rates of recidivism for sexual offenders (with the same score) was between 30.5% and 40% over five years.

104. On the STABLE 2007 assessment, Ms Lau categorised the Defendant as having a high density of criminogenic needs with a score of 19. Ms Lau commented that the Defendant’s risk areas included sexual self-regulation which was said to be a significant risk area.

105. Ms Lau noted that a neuropsychological assessment dated 18 December 2019 had been undertaken with respect to the Defendant and that the report concluded that there was no evidence of any neurocognitive disorder, brain injury or dementia.

Section 9(3)(e) - Any Treatment or Rehabilitation Programs In Which the Defendant Has Participated and His Level of Participation

106. The Defendant’s chequered history of participation in the CUBIT program and sex offender programs has been mentioned earlier in this judgment in summarising the 2007 and 2008 judgments of Hislop J.

107. The Defendant commenced and completed CUBIT between June 2008 and January 2009. A CUBIT treatment report dated 23 February 2009 commented that the Defendant’s participation was “enthusiastic” and that he attended every treatment group. The report observed (correctly) that the Defendant had difficulty in complying with institutional rules and may require monitoring. The report noted that the Defendant had demonstrated “a slightly improved understanding of the risk factors and problematic behaviours that may have contributed to his offending behaviour” and that he required “further ongoing work with his emotional understanding and embracing personal responsibility for his actions”.

108. With respect to the Defendant’s therapeutic progress in Forensic Psychology Services (“FPS”), Ms Lau observed in her 21 February 2020 supplementary risk assessment report (page 4):

“Whilst Mr Hayter attended FPS as required, his progress notes suggested the tendency to portray a positive impression of himself. He acknowledged feeling lonely and identified pro-social activities aimed to form pro-social relationships during discussions with his treating therapist but it appeared that he failed to follow through with his expressed intention to join these activities. Unless it was directly discussed with him, Mr Hayter appeared motivated to focus on discussing his progress on matters that were less relevant to his risk. When he was engaged in discussions that focused on risk areas relevant to him, it was noted that he provided avoidant responses or inconsistent information across sessions.”

109. Despite these features, Ms Lau noted that the Defendant had been attending FPS in accordance with the conditions of the ESO.

Section 9(3)(d1) and (e1) - Reports Concerning Management of the Defendant in the Community

110. A risk management report dated 6 March 2020 was prepared by Terry O’Brien, Community Corrections Officer, and endorsed by Kelli Grabham, High Risk Offender Applications and Operational Governance Officer. In the report, Mr O’Brien calculated that the Defendant had (as at 6 March 2020) spent six years and two months in custody and four years and seven months in the community since the last ESO was granted in 2009.

111. Mr O’Brien noted that a particular difficulty for the Defendant had involved use of mobile devices. In 2016, the Defendant was found to access inappropriate images of males aged between 10 and 12 years and, in December 2016, it appeared that data had been deleted from the Defendant’s mobile phone.

112. The risk management report of 6 March 2020 set out management strategies which included the following:

1. face-to-face weekly interviews;

2. cognitive behaviour intervention utilising modules to challenge the Defendant’s offending behaviours, provide him with tools to manage his risk factors and assist him in identifying opportunities to increase protective factors; and

3. to continue with therapy such as FPS.

113. Mr O’Brien noted that the limitations of the proposed management strategy included reliance on the Defendant’s compliance with conditions and a possible decline in the Defendant’s mental health.

Section 9(3)(e2) - Likelihood that the Defendant will Comply with Obligations Under an ESO

114. It was submitted for the Plaintiff, correctly, that the Defendant’s compliance with conditional liberty, and his obligations under the ESO, have been poor requiring numerous warnings and directions with breaches of ESO conditions for which the Defendant was imprisoned.

115. The Plaintiff submitted, once again correctly, that the Defendant’s breaches of ESO conditions suggest a lack of insight into his risks or the lack of an understanding of matters that elevate his risks (such as antisocial associations and cannabis use) and a lack of desire to regulate or be candid about the intensity of his sexually deviant behaviour (such as accessing child pornography or deleting data from his mobile phone).

116. The Defendant’s extended and chequered history since the last ESO was put in place in 2009, together with his recent breaches of the ISO, support the need for a greater intensity of supervision including schedules, electronic monitoring and conditions that permit access to oversight of the Defendant’s electronic devices.

Section 9(2) - The Safety of the Community

117. All of the factors considered so far relate to the paramount consideration under s.9(2) HRO Act being the safety of the community.

Has the Plaintiff Established that an ESO Should be Made in this Case?

118. I have regard to the principles summarised earlier in this judgment (at [20]-[27]).

119. Determining what is an “unacceptable risk” includes consideration of the type and nature of the offences that have been committed by the Defendant, absent supervision. Attention must be given to:

1. the nature of the risk posed which is said 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: Lynn at [51] and [126]; and

2. understanding the characteristics and circumstances of the Defendant that underpinned his offending behaviour which assists the Court to evaluate the degree of probability that the Defendant poses of committing a further serious offence if unsupervised: Lynn at [51].

120. An “unacceptable risk” is one that is intolerable or “so far from a required standard, norm, expectation, etc as to not be allowed”: Lynn at [50]-[51]. The evaluative task involves consideration of both the likelihood of the risk eventuating and the gravity of that risk if it eventuates: Lynn at [51].

121. The Court may legitimately find that a person poses an unacceptable risk for the purpose of the unacceptable risk test even if the likelihood of the person committing a further serious offence is determined to be low: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [13].

122. I accept the Plaintiff’s submission that the Court should be satisfied that the requirements of s.5B(d) HRO Act are met and that, when the factors enumerated in s.9(2) and (3) are considered, the Court should grant an ESO in this case.

123. The relevant risk in this case is the risk of serious sex offending against boys under the age of 16 years who are unknown to the Defendant. The Defendant has a substantial criminal history for offences of this type, where he approaches young boys in public places for the purpose of sexual offending. The severity of the unacceptable risk and the unpredictability of that offending are relevant to the evaluative task undertaken by the Court under s.5B(d) HRO Act.

124. I accept the submission for the Plaintiff that the Court should be satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision because of the following factors:

1. the Defendant has a current diagnosis of Paedophilia coupled with Cluster B Personality Disorder, which manifest themselves in antisocial and narcissist traits;

2. his desire for sexual arousal from offending against boys, when considered with his personality disorder, suggests that, in the absence of supervision, the Defendant would act opportunistically on that desire and would not self-regulate when in acute risk scenarios;

3. the Defendant’s dynamic risk factors and childhood trauma issues remain present and active features for the purpose of risk assessment;

4. even though the Defendant’s serious sex offences may have been committed some years ago (with the last offence in 2004), the characteristics of the Defendant that underpinned the commission of those offences are still present;

5. there is a lack of protective factors in the Defendant’s life;

6. professional judgment tools and statistical assessment tools which have been applied to the Defendant have classified the risk which he poses as high;

7. expert witnesses who have assessed the Defendant are unanimous in the opinion that the Defendant poses a high risk of serious sex offending if not supervised;

8. the Defendant has engaged in acts of considerable concern to public safety (such as contacting children on Facebook) in circumstances where the risk was discovered and managed only because of the existence of an ESO; and

9. the gravity of the consequences for the community if the risk posed by the Defendant eventuates is unacceptable.

125. I am satisfied that supervision is the effective, justified and reasonably appropriate measure to reduce and manage the Defendant’s risk and that an ESO would be protective of the community and thus meet the primary object in s.3 HRO Act.

126. An ESO would also encourage rehabilitation of the Defendant by providing a structure, oversight and therapy which the expert witnesses have stated unanimously are required to reduce the Defendant’s risk of reoffending.

127. In circumstances where the safety of the community must be the paramount consideration (s.9(2) HRO Act), I am satisfied that an ESO would be protective in this case and would provide the Defendant with the intensity of supervision which he requires to manage his risks.

Duration of the ESO

128. In the Further Amended Summons, the Plaintiff sought that an ESO be made for a period of three years. As noted earlier in this judgment, Dr Samuels proposed an ESO for five years with Professor Hayes expressing the opinion that a three-year period was appropriate.

129. Having considered the expert reports of Dr Samuels and Professor Hayes, the Plaintiff has maintained an application for an ESO for a period of three years. As observed earlier, the Defendant does not oppose an ESO being made for a period of three years.

130. I have concluded that an ESO should be made in this case. I am satisfied that an ESO should operate for a period of three years. In reaching this conclusion, I have kept in mind the Defendant’s complex and protracted history of compliance (and non-compliance) with the ESO ordered in 2009. I have also kept in mind the Defendant’s age and the opinion of Professor Hayes concerning his intellectual functioning. In addition, regard has been had to the fact that the period of the ESO will not commence to run until the Defendant is released from his present sentence, a date which is not before 6 April 2021.

128. In all the circumstances, the ESO, once it commences, should operate for a period of three years.

Conditions of the ESO

132. Section 11 HRO Act empowers the Court to impose conditions upon an ESO as the Court considers appropriate. Section 11(1) does not require that a proposed condition in an ESO must have a specific demonstrated link to past offending. Rather, s.11 requires that the Court be satisfied, having regard to the scope, purpose and objects of the HRO Act, that it is appropriate to impose a particular condition so as to address the risk of future reoffending of the kind that formed the basis for the ESO: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [53]-[54].

133. The Court is to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective, with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn at [129]-[130], [149].

134. With respect to conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached. A proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v Ali [2010] NSWSC 1045 at [88].

135. It was submitted for the Plaintiff that the conditions sought as part of the ESO were appropriate in that they addressed and managed directly the dynamic risk factors that underpin or precipitate the risk that formed the basis for the ESO with respect to the Defendant.

136. As noted earlier, the draft conditions sought by the Plaintiff were the subject of discussions between the legal representatives for the Plaintiff and the Defendant. The result of those discussions was that the Defendant does not oppose an ESO being made containing conditions now sought by the Plaintiff.

137. Although the question of conditions and their appropriateness remains a matter for the Court, the considered position of the parties provides assistance to the Court in reaching a decision on this part of the application.

138. I have considered the conditions sought by the Plaintiff for the ESO. The proposed conditions are of the type foreshadowed in s.11(1) HRO Act. They include reporting and monitoring obligations and a range of other conditions which have been drawn to meet the particular risks arising in the case of the Defendant. Both Dr Samuels and Professor Hayes have expressed the opinion that the proposed conditions are appropriate.

139. I am satisfied that the conditions sought by the Plaintiff are appropriate and that they meet the requirements of s.11 HRO Act.

Conclusion

140. I am satisfied that the statutory requirements for the making of an ESO have been established in this case. I am likewise satisfied that an ESO for a period of three years should be made.

141. I am satisfied that the ESO should be subject to Conditions 1- 56 as sought by the Plaintiff (noting that Conditions 10 and 51 have been deleted with the agreement of the parties).

142. I make the following orders:

1. pursuant to s.9(1)(a) Crimes (High Risk Offenders) 2006, I order that the Defendant be subject to an extended supervision order for a period of three years, subject to Conditions 1-56 which follow as a Schedule to this judgment;

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

3. I make an order that access to the Court file in respect to any document shall not be granted to a non-party without the leave of a Judge of this Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

143. For the purpose of s.10(1) and (2) Crimes (High Risk Offenders) Act 2006, I note that the extended supervision order which the Court has made will commence when the Defendant’s current custody expires and that the Defendant’s obligations under the extended supervision order are suspended whilst the Defendant is in lawful custody.

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State of NSW v Hayter (Final) Schedule (43177, pdf)

Decision last updated: 11 November 2020