State of New South Wales v Jones

[2018] NSWSC 459

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Jones [2018] NSWSC 459
Hearing dates:	28 March 2018
Date of orders:	16 April 2018
Decision date:	16 April 2018
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	(1) Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to a continuing detention order for a period of 12 months commencing on 16 April 2018. (2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that a warrant issue for the committal of the defendant to a correctional centre for a period of 12 months commencing on 16 April 2018.
Catchwords:	HIGH RISK SEX OFFENDER – application for continuing detention order or alternatively extended supervision order under the Crimes (High Risk Offenders) Act 2006 – recent amendments to relevant test
Legislation Cited:	Child Protection (Offenders Prohibition Order) Act 2004 (NSW), s 13 Child Protection (Offenders Registration) Act 2000 (NSW), ss 7, 17 Crimes Act 1900 (NSW), ss 5, 66EA, 578C Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4A, 5B, 5C, 5D, 9, 13B, 15, 17, 18A Crimes (High Risk Offenders) Amendment Act 2017 (NSW)
Cases Cited:	Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86 Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Donovan [2015] NSWSC 1254 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Kamm [2016] NSWSC 1 State of New South Wales v Pacey (Final) [2015] NSWSC 1983 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Wilde [2014] NSWSC 305 State of New South Wales v DK [2018] NSWSC 53
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Michael David Jones (Defendant)
Representation:	Counsel: Ms D New (Plaintiff) Mr R Webb (Defendant)   Solicitors: NSW Crown Solicitors Office (Plaintiff) Bay Legal (Defendant)
File Number(s):	2017/368111
Publication restriction:	Nil

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Judgment

1. By amended summons filed on 28 February 2018, the State of New South Wales seeks an order that the defendant, Michael David Jones, be subject to a high risk offender continuing detention order (“CDO”) for a period of two years under s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Alternatively, the State of New South Wales seeks that the defendant be subject to an extended supervision order (“ESO”) for a period of five years under s 5B of the Act. The original summons was filed on 5 December 2017. The defendant opposes the imposition of a CDO but consents to the imposition of an ESO for a period of two years.

2. The defendant is a 52-year-old man who has being diagnosed with paedophilia. He has served two significant imprisonment terms for sexual offences against children. On 29 November 1991, he was sentenced to 7 years imprisonment for child sexual assault offences committed against five young boys between 1987 and 1988. He was a Scout leader and member of the Royal Australian Air Force (“RAAF”) at that time. He was released on parole but breached his parole and served the rest of his sentence in custody.

3. On 10 September 2004, the defendant was sentenced to a non-parole period of 9 years with a balance of term of 5 years imprisonment for two charges of persistent sexual abuse of a 14-year-old boy and an 11-year-old boy, contrary to s 66EA of the Crimes Act 1900 (NSW), and one charge of publishing child pornography contrary to s 578C of the Crimes Act, committed between 1999 and 2001. He was not released on parole until the thirteenth year of that sentence. He only spent three months in the community before breaching his parole and ultimately served the remainder of his sentence in custody. That head sentence expired on 6 April 2018 but he has remained in custody pursuant to an interim detention order made by me by consent on 28 March 2018 under s 18A of the Act.

4. At the preliminary hearing in this matter before Hamill J on 22 February 2018, pursuant to s 15(3) of the Act, his Honour was satisfied that the matters alleged in the supporting document would, if proved, justify the making of either a CDO or a ESO and thus that the matter should proceed to a final hearing. His Honour made orders at that time under s 15(4) of the Act appointing Dr Kerri Eagle, psychiatrist, and Ms Chelsea Dewson, psychologist, to conduct separate psychiatric and psychological examinations of the defendant.

5. The final hearing in this matter proceeded before me on 28 March 2018. I have summarised the evidence and submissions relied upon by both parties in detail below. Implicit in the fact that the defendant consented to the imposition of an ESO was his acceptance that the court could be satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. This application thus turns to be resolved on the question of whether the appropriate order in this matter is a CDO or an ESO.

The Legislative Scheme

6. The primary object of the 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: s 3(1). Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).

7. The Act commenced on 3 April 2006 as the Crimes (Serious Sex Offenders) Act 2006 (NSW). It was initially limited to provide for the extended supervision and continuing detention of high risk sex offenders but was amended in 2013 to extend to high risk violent offenders at which point the name of the Act was changed. On 6 December 2017, the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) commenced. A number of amendments relevant to the present application were made at that time.

8. The Supreme Court may make a CDO if the four conditions under s 5C of the Act are satisfied.

9. Firstly, the person must be an “offender” who is serving (or who has served) a sentence of imprisonment for a “serious offence” and must be either in custody or under supervision in the community: s 5C(a). “Offender” is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a “serious offence”. “Serious offence” is defined in s 4 as including a “serious sex offence.” Relevantly, “serious sex offence” is defined in s 5(1) of the Act and includes the offence of persistent child abuse under s 66EA of the Crimes Act: s 5(1)(a1). As the defendant was serving a term of imprisonment for s 66EA offences, I am satisfied that he is an “offender” serving a sentence of imprisonment for a “serious offence”.

10. The second condition under s 5C of the Act is that the person must be a “detained offender” or “supervised offender” within the meaning of s 13B: s 5C(b). A “detained offender”, inter alia, is an offender who, when the application for a CDO is made, is in custody for a serious offence. The defendant has been in custody since his parole was revoked on 2 August 2017 and the original summons bringing the CDO application was filed on 5 December 2017. The defendant is therefore a “detained offender” for the purpose of ss 5C(b) and 13B of the Act.

11. The third condition under s 5C is that the application for the CDO must be made in accordance with s 13B: s 5C(c). The application was brought within time and in relation to a detained offender.

12. The fourth condition under s 5C comprises the substantive test for consideration before this Court. In order to make a CDO, the Court must be “satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order”.

13. Section 5D provides that the Supreme Court is not required to determine that 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 the person committing such an offence.

14. Under s 17(1) of the Act, the Supreme Court can dispose of a CDO application in one of three ways: by making a CDO, by making an ESO or by dismissing the application. In determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration for the Court: s 17(2). Under s 17(4), when determining an application, the Court may regard any matter it considers relevant but must take any relevant matters enumerated at s 17(4) (a)-(i).

2017 Amendments

15. The summons in this matter was filed on 5 December 2017 and the recent amendments to the Act commenced on 6 December 2017. Clause 17 of Schedule 2 to the Act provides that the amendments apply to persons who committed offences before the amendments commenced as well as persons serving sentences that began before the amendments commenced. Clause 19 confirms that the amendments apply to proceedings commenced but not determined before the amendments came into force. There was no issue taken that this application is to be considered under the Act as amended.

16. Under the amended Act, there is no longer a distinction between "high risk sex offenders" and "high risk violent offenders”. Accordingly, in the amended summons, the plaintiff now seeks an order that the defendant be the subject of a “high risk offender continuing detention order” rather than a “high risk sex offender continuing detention order”.

17. The amendments of particular significance to the present application are as follows.

18. First, the substantive test used to determine the granting of a CDO under s 5C has been modified. As stated above, the new test to be applied following the recent amendments is whether the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order. The previous test under the now repealed s 5C(1) held that the Supreme Court could only make a CDO if the offender was a “high risk sex offender” and the Court was satisfied that adequate supervision would not be provided by an ESO. A “high risk sex offender” was defined as a “sex offender” where the Court was satisfied to a high degree of probability that the offender posed an unacceptable risk of committing a serious sex offence if not kept under supervision.

19. In Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86, the Court of Appeal (Bathurst CJ, Beazley P and Leeming JA) described the test as it then was at [14]-[15] as follows:

“…ss 5B and 5D mandate a two stage process. The first question is that posed by s 5B, which is whether the person is a high risk sex offender. This entails the Court being satisfied, to a high standard, that the offender would pose an “unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”. Only if the answer to that question is affirmative can there be power to make either a continuing detention order or an extended supervision order.

The second question only arises if the person is a high risk sex offender. It is the question posed by s 5D, which is whether the Court is satisfied that adequate supervision will not be provided by an extended supervision order. If the answer to that question is affirmative, then there is power to make a continuing detention order. (For the purposes of this appeal, we put to one side the separate discretion whether to make a continuing detention order at all, discussed in State of New South Wales v Donovan [2015] NSWCA 280 at [14]-[15].)”

20. Putting to one side the separate discretion as to whether to make a CDO at all, the Act, as amended, no longer expressly sets out a two stage test. There is no longer a definition of “high risk sex offender” which applies to both the test for an ESO and an CDO. Rather, under 5C(d), a CDO may be made if the court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not detained and under s5B(d) an ESO may be made if 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 under the order.

21. Second, 17(2) of the Act now makes it clear that community safety is the paramount consideration for the Supreme Court in determining whether to make a CDO or an ESO. Prior to the amendments, the safety of the community was one of the many matters enumerated in s 17(4) which a court was required to take into account in determining whether to make a CDO: s17(4)(a). Section 17(4)(a) of the Act has now been repealed and s 17(2) now provides:

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

22. Similarly, s 9(3)(a) of the Act has been repealed and s 9(2) now 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.”

23. Third, two additional mandatory considerations have been added to s 17(4) which now provides that, in determining whether or not to make a CDO or an ESO, the Court must have regard to:

“(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.”

24. Thus, the question of whether the offender is likely to comply with an ESO is now a mandatory consideration when considering whether to impose a CDO under the Act.

25. Fourth, the Court is no longer able to have regard to the fact that if an offender is placed on an ESO and breaches it, action will be taken on the breach and this is relevant to the question of whether there is an unacceptable risk of the offender committing serious offences. Section 17(5) of the Act now provides that:

“In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences”.

26. A number of other changes were introduced by the recent amendments but the above changes are the most pertinent to the present application.

27. In his second reading speech introducing the Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) to the Legislative Assembly on 11 October 2017 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017), Attorney-General Mark Speakman explained the genesis of the amendments as follows:

“The bill implements reforms arising from recommendations of a statutory review of the Crimes (High Risk Offenders) Act 2006 conducted by the Department of Justice in 2016-17. That review made 28 recommendations to improve the frameworks governing eligibility for the scheme, making an order under the scheme, management of an offender under the scheme, and administration of the scheme. The Government makes no apology for implementing amendments to strengthen the High Risk Offender Scheme. Under these reforms the community will be better protected from the most dangerous sex and violent offenders. These reforms improve the scheme so that community safety will be the paramount consideration of the court when considering whether to make a continuing detention order [CDO] or ESO; more offenders will be eligible for the scheme as the court will be required to consider an offender's criminal history and future risk of sex and violent offences, instead of just one or the other; and the test for deciding whether to impose a CDO will be strengthened so that an offender's risk to the community is considered instead of whether they can be adequately supervised.”

28. With respect to the amendments to the substantive test for CDO’s under s 5C of the Act, the Attorney-General stated:

“Items [14], [39] and [40] of schedule 1 will insert statutory amendments to change the test to be applied by the Supreme Court in deciding whether or not to make a CDO in respect of a high-risk offender. Under the existing test for making a CDO, an offender is likely to be released to supervision in the community provided adequate supervision can be provided. There are a number of issues with the current process. Offenders who pose an unacceptable risk which cannot be managed in the community on an ESO are being granted these orders by the court under the current test. Offenders cycle between being on an ESO and being in custody—having breached that ESO— with no change to underlying behaviour, and Corrective Services NSW is required to provide detailed information on how an unmanageable offender might be supervised in the community, even when Corrective Services does not have confidence that the proposed supervision measures will be effective in keeping the community safe.

The bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. In determining whether and what type of order to impose, the court would be required to have regard to the existing considerations in sections 9 and 17 of the Act, including community safety, the offender's criminal history and the sentencing remarks of the original sentencing court. In addition to existing considerations, the reframed test will require the court to consider two additional factors; whether the offender is likely to comply with an ESO, and options in the community or in custody that would help reduce the offender's risk of reoffending over time.

This second point is framed to enable the court to consider a range of options, including proximity to family, ensuring the offender's links to the community are retained, rehabilitative programs or other options available in custody or in the community. Further, when considering whether to make a CDO the Act will state that the court must not consider a breach of an ESO condition as an effective form of intervention. These reforms strengthen the test for deciding whether to impose a CDO so that an offender's risk to the community is considered instead of whether he or she has been adequately supervised. Community safety will be the Supreme Court's paramount consideration when considering whether to make an order under the Act. This aspect of the reform is expected to mean that some offenders who had previously received an ESO will now receive a CDO. That is appropriate if the offender cannot be managed in the community on an ESO.”

29. The object of the amendment to the test of whether to impose a CDO is thus said to be to emphasise an offender's risk to the community rather than whether he or she can be adequately supervised. It is anticipated that some offenders who had previously received an ESO will now receive a CDO.

30. I have extracted these relevant portions of the second reading speech in order to provide some background to the amendments. So far as I have been able to ascertain, this is only the second consideration of whether a CDO should be made under the amended Act. The first decision was that of Fullerton J in State of New South Wales v DK [2018] NSWSC 53 but in that matter, the defendant’s counsel accepted that the statutory test for placing the defendant on a CDO had been met and the only issue in dispute was as to the appropriate term of the CDO.

29. I shall consider these amendments further below in my consideration of the appropriate order in this matter.

The evidence

32. The State relied upon the following evidence at the hearing of this matter:

1. Affidavit of Christopher Butler (solicitor for the State of New South Wales) affirmed on 5 December 2017, together with exhibit CB-1;

2. Affidavit of Christopher Butler affirmed on 8 February 2018;

3. Affidavit of Angela Rybak (senior electronic monitoring officer of the External and Electronic Monitoring Group of Corrective Services NSW) affirmed on 9 March 2018;

4. Affidavit of Richard Parker (registered psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW) affirmed on 12 March 2018;

5. Affidavit of Andrew Sandercock (community corrections officer attached to the Metropolitan Extended Supervision Order Team of Corrective Services NSW) affirmed on 15 March 2018;

6. Affidavit of Karen Langdon (unit leader of the Extended Supervision Order Team of Corrective Services NSW) affirmed on 16 March 2018; and

7. Affidavit of Christopher Butler affirmed on 16 March 2018.

33. The defendant relied upon the affidavits and annexures of Timothy John Mitchell sworn on 19 February 2018 and 27 March 2018. Mr Mitchell is the defendant’s solicitor. The affidavit dated and filed on 27 March 2018 confirms that the defendant consents to the ESO proposed in the amended summons and a further condition that he have no access to the internet. Also annexed to this affidavit is the report of Dr Stephen Allnut, psychiatrist, dated 22 March 2018. Although this report was provided late in the proceedings, no objection was made on behalf of counsel for the State but objection was taken to additional oral evidence being given to which the State was not on notice. As summarised below, Dr Allnutt only gave evidence clarifying matters in his report.

34. With respect to Timothy Mitchell’s affidavit sworn on 19 February 2018, there was objection to annexure M and other annexures were said to be duplicates to the material already before the court. The material annexed to Mr Mitchell’s affidavit relied upon in this matter was as follows: medical evidence which includes a discharge summary from Prince of Wales Hospital dated 2 June 2017; case notes from Corrective Services NSW (CSNSW) dated between 18 September 2014 and 24 May 2017; a supplementary pre-release report of Katherine McCullock dated 9 March 2017; an earlier affidavit of Mr Mitchell sworn on 31 August 2017; an affidavit of Susan Winnifred Fattore (the defendant’s sister) sworn on 15 July 2017; an affidavit of Antonio Fattore (the defendant’s brother-in-law) sworn on 15 July 2017; affidavits of Elizabeth Anne Jones (the defendant’s sister) sworn on 16 July 2017 and 1 September 2017; and an affidavit of her husband, Enrico Regoli (the defendant’s brother-in-law) sworn on 16 July 2017.

35. The affidavits of Mr and Mrs Fattore, Ms Jones and Mr Enrico Regoli were made in support of the defendant’s opposition to amendments to a prohibition order that had been in place following his release from custody on parole. The relevant parts of those affidavits in terms of these proceedings were as follows. Ms Fattore states that she wants the defendant to have the opportunity to lead a healthy and positive life, to be re-integrated into society and that she is committed to offering necessary support. Mr Fattore deposes that his family is committed to doing as much as possible to support the defendant as he transitions back into society and that an ongoing presence in the defendant’s life is a necessary aspect to that. The defendant’s sister, Ms Jones, and her husband, Mr Regoli, likewise state that they support the defendant’s re-integration into the community and that they believe it is important that he have inclusion in their family to assist in achieving this.

36. Other evidence before the Court included the Court-mandated reports of Dr Kerri Eagle, psychiatrist, dated 15 March 2018 and Ms Chelsey Dewson, psychologist, dated 16 March 2018.

37. During the hearing before me on 28 March 2018, Dr Parker, Dr Allnutt and Dr Eagle all gave evidence, each being examined on behalf of the State and the defendant. Their evidence is summarised below.

The material relied upon

38. As is usually the case in applications of this nature, the State relied upon a considerable body of material in support of its position that the defendant is a high-risk sex offender and poses an unacceptable risk of committing a further serious sex offence if not detained.

39. As stated above, s 17(4) of the Act provides a number of mandatory considerations to which the Court must have regard in determining the question of whether, in the exercise of its discretion, the court should make the order sought. It has been held that the criteria in s 17(4) of the Act are still relevant to the first question of whether a person poses an “unacceptable risk” within the meaning of the Act: per Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm [2016] NSWSC 1 at [48].

40. I propose to briefly set out the defendant’s background and describe the offences for which he was serving a sentence at the time that this application was brought. I will then summarise the bulk of the material placed before the Court on this application. It seems to me that a convenient way to do so is under the various headings in s 17(4). After summarising the supporting material, I will then turn to consider the question of the appropriate order in this matter.

The defendant’s background

41. The defendant was born on 16 January 1965 in Belfast, Northern Ireland. He came to Australia for the first time in 1969 with his family when he accompanied his father on a business trip. His family moved back and forth between Australia and England due to his father’s occupation within the television industry but finally migrated to Australia in November 1977.

42. The defendant comes from a family of six, having two sisters and a brother. His parents remained together until his mother died in 2007. His father died in 2016. The defendant got on well with his sisters but less so with his younger brother. The defendant thought that he grew up in a controlled environment in that his parents were overprotective and limited their children’s movements and contact with others socially. There was no violence in the family home.

43. The defendant attended school in England and Australia. He left school after completing his School Certificate at the end of year 10. During his schooling years he was constantly bullied because other people thought he was homosexual. He also found it difficult to make friends due to his transient childhood. He formed very few friendships, was socially excluded and was often verbally and physically victimised by his peers. He left school due to the bullying.

44. After leaving school, the defendant joined the RAAF and remained there from 1982 to 1990. He completed an apprenticeship in Aeronautical Engineering between 1982 and 1984. During this time, he was operationally deployed, primarily on peacekeeping operations. It was while in the RAAF that the defendant committed his first offences (discussed further below).

45. At the age of nine the defendant was sexually assaulted by a male stranger. The assault involved oral sexual contact. At age 13, within the context of general social exclusion, the defendant formed a three-year relationship with a similarly aged male. The defendant found ways to spend as much time as he could with this individual, during which they engaged in oral sex and mutual masturbation.

46. The defendant has recurrent and sexually arousing fantasies about teenagers, which started at around 15 years of age. He has denied any sexually arousing fantasies concerning pre-pubertal males or females of any age.

47. The defendant has never lived with somebody as part of a committed relationship. Although he has on occasion described being in relationships, those descriptions have either been of victims or have not been verified. In 2004, the defendant told his probation and parole officer, Lynley Boyd, that he had been in a long-standing relationship with a woman whom he intended to marry but says she died in a car accident. He also told Ms Boyd that he was in a relationship in 2004 with a woman he intended to live with when released from custody which was verified by the parole officer. That same year he described that relationship to Dr Christopher Lennings as a female friend who wanted to move the friendship on to a sexual level but he had no libido and stated that he had had no sexual encounters for eight years (as Dr Lennings noted this cannot be accepted given the offences). He has more recently indicated that all of his adult sexual relationships have been with men and were either men he had sexual contact with in public toilets or in prison. The defendant does not have any alcohol or drug issues.

Index offences

48. On 12 October 2001, the defendant was charged with the index offences, being two counts of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act and one count of publishing child pornography under s 578C of the Crimes Act. He pleaded not guilty but was found guilty on all accounts. On 10 September 2014, Judge Shadbolt sentenced the defendant to a head sentence of 14 years imprisonment with a non-parole period of nine years. The head sentence expired on 6 April 2018.

49. The index offences occurred over a period of 19 months between 1999 and 2000. The defendant was 34-35 years of age at the time of offending and the two male victims were brothers aged 11 years (V2) and 14 years (V1). The victims came from a dysfunctional family. The defendant befriended the victims and their parents while they were staying at a hotel where the offender lived. The family had previously endured a period of homelessness. The defendant became a regular visitor of the family after they had obtained a more permanent address. It is at their home that the offences were committed.

50. The case was brought to the attention of the Australian Federal Police when federal law enforcement from the United States of America made contact to inform them of an email containing offensive material that had been sent from the defendant’s account. The Australian Federal Police in turn informed New South Wales Police. Within a short period of time, further information was independently provided to police by Telstra as its technicians had found offensive material in the mailbox of the defendant following a complaint that he had made about technical issues with his email account. This led to the identification of a Yahoo email account which had been used by the defendant. A number of obscene photographs of a child were discovered, later identified as V2.

51. Further enquiries led the Police to identify the house of V1 which was then put under surveillance. Police also discovered that the Yahoo email account was being accessed from Waverly library. Following discussions with library staff, the defendant became a person of interest. At the time, the defendant was living in a private hotel. The Police searched his room and located and seized a hard disc. The house of V1 was also searched. Two hard discs were seized. Police also found a privately produced CD. This contained 588 photographs, many of which were obscene and involved V1 and V2 and an adult male. The hard drives were subject to forensic testing and copious diary entries were discovered which set out, in graphic detail, the defendant’s invasion of the household and the grooming of the victims. Similar diary entries had been admitted into evidence against the defendant for his 1988 offences.

52. Section 66EA of the Crimes Act provides that a person who, on three or more occasions, occurring on separate days during any period, commits “sexual offences” against a particular child, is guilty of an offence and liable to 25 years imprisonment. For the purpose of the two s 66EA charges, the Crown relied upon a total of 30 sexual offences which were alleged to have been committed against the victims. It was the Crown’s case that 27 offences were committed against V1 (who was 14 years of age), comprising 15 counts of homosexual intercourse with a person under 18 years of age, eight counts of indecency, three counts of sexual intercourse with a child between 14 and 16 years of age and an act of incitement. The alleged offences against V2 (who was 11 years of age) were two counts of acts of indecency and one count of homosexual intercourse with a person under 18 years of age.

53. Judge Shadbolt commented that the jury must have been satisfied that the defendant was the author of the diaries, that he was the taker or the producer of the images and that it was he who placed some of this pornographic material on his email account with Yahoo. It is clear that the jury found the defendant had committed all counts against V2 whereas the precise combination of offences found to have been committed against V1 is unknown. However, his Honour had no doubt that the pictures of the male committing fellatio on V1 were of the defendant and that, as the defendant had a distinctive mole on his hand, it was the defendant’s hand depicted in other photos involving V1. I have extracted further observations of Judge Shadbolt below at [189]-[190].

The offender’s criminal history and any pattern of offending behaviour disclosed by that history, s 17(4)(h)

54. The defendant’s custodial history states that he has been in custody serving sentences for child sexual assault offences from December 1991 until 28 November 1995; from 6 June 1997 until 29 January 1998; from 9 April 2004 until 11 April 2017; and from 18 July 2017 until today.

55. During 1987 and 1988, the defendant committed 6 counts of gross indecency and 9 counts of sexual intercourse on five young boys. The five victims were boys aged between 13 and 16 years. At that time, the defendant, who was between 22 and 23 years of age, was a member of the RAAF which was associated with the local Boy Scout groups for young boys. He also met boys who were the sons of various servicemen attached to the RAAF and who resided either on the base or nearby. The defendant used his position as a Scout leader to target the victims. He would take the boys on drives or camping trips and would discuss matters of a sexual nature with them or show them pornographic material. The victims would become sexually aroused and the defendant would touch the victim’s penises, perform oral sex on them or engage in mutual oral sex.

56. The Police facts relating to these offences describe how a search warrant was executed on the defendant’s premises at the RAAF base and that a computer printout was found in the form of a date diary containing entries with respect of boys engaging in sexual activities with the defendant. There was also an exercise book with the names, addresses and birth dates of “young boys”. The facts state that “[d]ue to the large number of names and entries contained in the computer diary… Police concentrated their investigation around the years 1987 and 1988.” Although a number of boys were interviewed, charges were only brought in relation to five of them.

57. In 1990, the defendant was arrested for 30 counts of sexual offences relating to the events between 1987 and 1988. In 1991, the defendant pleaded guilty to 15 of the offences. He was sentenced before Judge Shillington to a total of 7 years imprisonment with a 4 year non-parole period, commencing on 29 November 1991 and expiring on 28 November 1998.

58. In 1993, the defendant was implicated in a “paedophile ring” at Cooma Correctional Centre. He was moved out of this facility because of the allegations however no disciplinary actions were taken. The defendant was also found with the names of children in his possession, including the names of children belonging to CSNSW officers.

59. On 28 November 1995, the defendant was granted parole and released from custody.

60. On 31 December 1996, whilst on parole, the defendant was charged with possession of child pornography. Community Corrections recommended that his parole be revoked but he was acquitted of the charge at Manly Local Court on 25 March 1997. There was no evidence before this Court as to why he was acquitted of the charge.

61. On 5 June 1997, the defendant’s parole was revoked because he befriended a 14-year-old boy and was found to be conversing with him contrary to his parole conditions. The defendant was employed with St John’s Ambulance at the time. He became aware that the victim and his siblings had been sexually abused by their father and used his position with St John’s Ambulance to offer the victim support and gain his mother’s trust. The Probation and Parole Service Report dated 28 July 1997 describes that he “moved in on the boy” after learning he had been sexually abused. Statements from the boy’s mother furnished at that time suggested inappropriate physical behaviour and furtive, intense emotional contact. After returning to custody, the defendant attempted to maintain contact with this child whilst incarcerated and asked him to communicate via letters, phone or visits.

62. In May 1998, the defendant was found with a list of internet addresses and information about internet sites which were related to child abuse material.

63. In a parole report dated 2 June 1998, Susan Mitchell, parole officer, describes the defendant as appearing to have a limited understanding of his offending behaviour. She recommended that parole be denied. She stated in her report:

“Mr Jones appears to be an articulate man, who is able to present in a favourable manner, which utilising (sic) when gaining the trust of young children and their families.

Of concern is the total disregard the inmate showed for the conditions placed upon him by the Board during the period of conditional liberty. Not only did he gain the trust of a teenage child and his family, but he utilised his employment to gain access to young children. Furthermore, Mr Jones did not willingly inform his employer of his parole conditions, he in fact waited until he was formally directed by his supervising officer.”

64. Shortly afterwards, on 28 November 1998, the defendant’s head sentence for the 1987-1988 offences expired and he was released back into the community.

65. The index offences occurred in New South Wales shortly thereafter and took place during an 18-month period between 1999 and 2000. Unfortunately, the concerns held by Ms Mitchell as to the defendant’s ability to gain the trust of young children and their families appear to explain his ability to go on to commit the index offences.

66. On 7 March 2001, the defendant was sentenced to 12 months imprisonment (suspended for a period of 3 years) at the Brisbane District Court with respect to offences that had occurred in Queensland between 1989 and 1990. These offences included: wilful exposure of a child under 16 years of age to a photograph; taking an indecent photograph of a child under 16 years of age; and indecent dealing with a child under 14 years of age.

67. On 19 September 2003, the defendant was charged with offences of break, enter and steal and obtaining money by deception. On 22 April 2005, he was sentenced by Judge Hock to imprisonment for two years to commence on 7 January 2013 and to expire on 6 January 2015, with a non-parole period of 15 months to expire on 6 April 2014. No further information was provided in relation to the details of this offending. It is noted that, as at 19 September 2003, he was on bail for the index offences.

68. On 16 December 2008, while in custody for the index offences, the defendant was found to be in possession of two handwritten encoded letters thought to be related to paedophilia being practised upon boys and girls aged seven and eight years of age who “enjoyed it”. The defendant also possessed magazine clippings of young boys under 16 years of age. The defendant received a warning.

64. On 7 July 2011, while in custody for the index offences, the defendant was found in possession of a plastic sleeve that contained eight pages of homosexual pornography, a Justin Bieber poster, various magazine cut-outs of children and a list of young inmates in the same wing as the defendant. Next to each name were residential addresses. The defendant received an institutional charge for possessing prohibited goods and received custody-based sanctions.

65. In a pre-release report dated 10 December 2013, it was noted that the defendant continued to deny the offences and claimed that the victim’s older brother offended against the victim. It was noted that the defendant attempted to “provide theories and find gaps in the evidence presented at court” and that he claimed that “the victims were ‘hostile witnesses’ in the court proceedings because he was innocent of any wrong doing.”

66. On 14 November 2014, the defendant was found in possession of a CD which contained some “questionable” content. He received an institutional charge and custody-based sanctions.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, s 17(4)(d1)

72. A Risk Management Report (“RAR”) was prepared by Karen Langdon on 24 November 2017. She has also provided an affidavit in which she more recently reviewed that RAR. She sets out the defendant’s most recent parole conditions and notes that he was issued with numerous written and verbal warnings and directions. She notes in her report:

“Concerns were raised about Mr Jones’ return to the COSP given his many associations with other child sex offenders. It was considered that Mr Jones would have opportunity to engage in manipulation of co-residents and anti-social networking, and therefore potentially increased access to child victims when placed in that environment.”

73. She sets out what would be proposed if the defendant was placed on an ESO. Mr Sandercock would be his Departmental Supervising Officer (“DSO”) and primary point of contact. She describes how the focus of an ESO would be to ensure the protection of the community in accordance with the objects of the Act. However, part of the aim of supervision would also be to assist him to create safe and positive support networks in the community and to engage in appropriate interventions to address his risk of re-offending and maintain long-term independent accommodation.

74. On 27 September 2017, the defendant was assessed on the “Level of Service Inventory – Revised” (“LSI-R”) assessment tool used by CSNSW to determine an offender’s risk of general offending. He was assessed as being a medium level of general re-offending in the community. On 27 September 2017, a Community Impact Assessment (“CIA”) was made to assess the consequences of re-offending on the community. It is then combined with the LSI-R to give a composite score. He was assessed as being a “T3 High S-1 on this score. In circumstances where the range is T1-T3 with three levels of low, medium and high, T3 “high” requires the highest level of supervision.

75. In her report, Ms Langdon notes that the ultimate effectiveness of placing the defendant on supervision depends in large part on his willingness to comply with conditions and to be honest with his CCO (Mr Sandercock). She noted that he did not demonstrate this behaviour whilst on parole.

76. In her affidavit, Ms Langdon notes that she has carefully reviewed her RAR and maintains that the defendant has a number of dynamic risk factors as identified in that report. Briefly, these factors are the defendant’s sexual drive and sexual preoccupation, his intimacy deficits and his sexual attitudes, including viewing children as sexual beings. She maintains the limitations set out in that report still exist.

77. Andrew Sandercock is a Community Corrections Officer attached to the Metropolitan Extended Supervision Order Team at Blacktown. He is responsible for the case management of high risk and high-profile offenders subject to interim supervision orders ESOs and parole orders. He personally supervised the defendant from when he was released on parole on 11 April 2017 until his parole was revoked on 2 August 2017. Some of the defendant’s parole conditions were as follows:

“2. The offender must not, while on release on parole, commit any offence.

…

4. The offender must, until the order ceases to have effect or for a period of 3 years from the date of release (whichever is the lesser), submit to the supervision and guidance of the Community Corrections Officer (hereafter referred to as “the Officer”) assigned to the supervision of the offender for the time being and obey all reasonable directions of the officer.

…

15. The offender must submit to electronic monitoring and comply with all instructions given by the Officer or an Officer of the Extended Supervision Team/Electronic Monitoring Unit in relation to the operation of monitoring systems.

…

18. The offender must not be in the company of a person under the age of 16 years unless accompanied by a responsible adult, as determined by the Officer and must not engage in written or electronic communication (including through social media) with any person under the age of 16, other than those approved by the Officer.

…

19. The offender must comply with all conditions and requirements of the Child Protection Register.”

78. During the time that Mr Sandercock supervised the defendant, he took extensive case notes detailing his interactions with the defendant and observations of him during visits. His affidavit is lengthy and establishes that the defendant was closely supervised whilst on parole. His evidence sets out how the defendant’s behaviour during the first three months of his parole escalated, resulting in him breaching his parole order and ultimately being returned to custody.

79. The defendant was released to reside at Community Offender Support Program (COSP) accommodation. When he arrived there on 11 April 2000, Mr Sandercock explained to the defendant each of his parole conditions and issued two verbal directions:

“(a) Not to associate, being contact directly or through a third party, with anyone who has been convicted or charged with of an adult child sex offence; and

(b) Not to attend, loiter or visit any park, playground, school etc.”

80. On 14 April 2017, Mr Sandercock issued further written directions confirming the above oral directions and added that he was to attend all scheduled appointments, comply with the non-association conditions and to abide by all conditions and requirements of the Child Protection Register (“CPR”).

81. The defendant had a family visit with his sister on 15 April 2017. She gave him a mobile telephone as a present. On 19 April 2017, Mr Sandercock was approached by the defendant seeking approval to visit a shopping Centre for assistance in activating his mobile telephone. He had already tried to do so unsuccessfully. It was a condition of his CPR order that he inform police of any mobile telephone he obtained. He had not notified police. He was informed that he needed to advise the CPR police immediately. The defendant also asked to visit the library in order to access the restricted section to access defence files to obtain the contact details for people he was friends with prior to going into custody.

82. On 20 April 2017, Mr Sandercock visited the defendant who told him he had received a new telephone number. He had not advised the CPR police of this yet.

83. On 27 April 2017, it was agreed that the defendant could have access to the internet under COSP supervision. The defendant was issued with a new direction in that regard on 29 April 2017. He told Mr Sandercock that he had joined Facebook and was in a lot of groups such as RAAF 36, Apprentice Intake, Manic Sea Eagles, DHC-4, Gaming Addiction, RAAF memories, Birds for Sale, Ex-RAAF Apprentice Group and Friends of the RAAF. He then listed a number of names of men he was in contact with. He was then issued with the following order:

“.. You are hereby directed not to access the internet and/or social media without the direct supervision of COSP staff and your Supervising Officer from the Extended Supervision Order Team or any other Officer from this team. Should we receive advice from your treating psychologist that access to the internet and/or social media will not impact your risk of reoffending, you will receive written approval to access the abovementioned.”

84. The defendant signed a copy of the direction and stated that he understood it. He was subsequently informed by Mr Sandercock that he would need to remove the social media applications from his mobile telephone. Mr Sandercock observed the defendant to successfully de-activate, uninstall and delete his Facebook and Facebook Messenger accounts. He was also asked to uninstall and delete other applications, being Instagram and Hangouts, from his mobile telephone. He was then reminded that he was not allowed to access the internet without supervision and he repeated that he understood this direction.

85. On 1 May 2017, Mr Sandercock spoke with Detective Sergeant Carmen Agnew from the CPR police who indicated that the defendant had not informed them that he had a Facebook account. The defendant subsequently admitted that he had not declared Instagram or Hangouts to CPR police because he did not think they were as important or that he needed to.

86. On 8 May 2017, Mr Sandercock visited the defendant and discussed his previous direction relating to his access to social media. The defendant was directed not to have any access to social media accounts which included but were not limited to “Facebook, Instagram, Snapchat, Hangouts, WhatsApp, and Twitter”. He was directed that he could only have access to them for the purpose of accessing his emails and for employment, education, accommodation searches and to assist with budgeting. He was also directed not to destroy, tamper with or interfere with his mobile device. He was further directed that he was not to have access to any applications designed to erase his mobile telephone history or hide the contents of his device. He signed this direction and indicated that he understood it.

87. On 23 May 2007, Mr Sandercock asked the defendant whether there was any social media on his mobile telephone. He replied that there was not. His phone was then searched. Mr Sandercock observed that the applications Facebook, Facebook Messenger and Hangouts were all re-installed on his mobile device. The defendant replied that, when he connected to Google, it automatically generated those applications on his phone. When Mr Sandercock investigated this further, he noticed recent notifications from Facebook. He said to the defendant “I just logged into your Facebook account when you just told me that you did not have social media.” The defendant replied, “I have no explanation.” He was again asked to de-activate and delete all of his social media applications. It was put to the defendant that he had clearly downloaded the applications and had been accessing them. The defendant replied, “I don’t have an answer to that.”

88. Mr Sandercock also noted that the defendant was following persons on Instagram and that he was accessing Facebook Messenger and contacting people through it. The defendant replied that an ex-RAAF friend had messaged him and somehow those messages were transferred to Facebook. When Mr Sandercock tried to find this message, the defendant stated that he had deleted it to free up space. He advised that he had also deleted voicemail messages from random numbers. He was reminded of the direction not to delete things from his phone.

89. The defendant admitted to Mr Sandercock that he had had access to social media for two to three days. Mr Sandercock found a message from four days prior. Mr Sandercock ascertained that the defendant had been sharing items on his Facebook profile for the past two to three weeks with the most recent post being nine hours earlier. Mr Sandercock then observed that the defendant was “friends” with numerous individuals and that three of them appeared to be very young in appearance: J1 J2 and J3. J3 had just turned 16. The defendant had sent him a “happy birthday” message through Facebook and had earlier sent him an image of a teddy bear and the word “hi” on 29 April 2017 (weeks after being released from custody).

90. Mr Sandercock confronted the defendant and put to him that had been accessing social media since the relevant applications were deleted from his mobile telephone, contacting children and engaging in deceitful behaviour to which the defendant responded “I don’t have an answer that.” It is to be noted that at no time during this conversation did the defendant suggest that he was not aware that any of the persons he had befriended were children.

91. The defendant then stated that he had been accessing social media whilst at his sister’s house. He stated that he only became friends with these people because they were friends with a mutual friend (“CS”) and that he did not know them personally. There was a further discussion about this in which the defendant gave inconsistent answers. When he was asked why he had not told the CPR police of his change in circumstances he replied it was because they did not ask him. Mr Sandercock said to him “Michael, it makes it very difficult for me to be able to manage and support you through your order if you are not honest and transparent.”

92. Police subsequently attended and seized the defendant’s mobile telephone. He was informed that he was breach of his parole. He was directed not to access any mobile telephones and to remain at the COSP until further advised.

93. His mobile telephone was subsequently forensically searched because he was in breach of the CPR.

94. His explanation for being a friend of J3 is that he stated that he had accepted a friend request from him at the beginning of April 2017 and they had been in contact since then. He had also been Facebook friends with J1 and J2 since early April. He stated that he had not met up with any of them. On 24 May 2017, the defendant was spoken to about be-friending young people. It was at this stage that he first suggested that he did not know their ages.

95. Mr Sandercock subsequently spoke to the defendant’s sister who stated that she had received calls from the defendant despite his phone being seized. The number was verified and found to be linked to a convicted child sex offender who was another resident of the COSP. The defendant was warned about this additional breach of his parole. He responded that he was having difficulties using the COSP phone in that he was told he was not allowed to use it.

96. The defendant was issued with a further direction on 6 June 2017 not to use any telephones. He was arrested and charged with a breach of his CPR obligations on 7 June 2017 and granted bail.

97. On 12 July 2017, Mr Sandercock visited the defendant and again searched his mobile telephone. It was observed that, once again, he had deleted data from it. The defendant replied that he only deleted “stuff” because his memory was full. He stated that the memory storage was minimal at 20% and that after he deleted “stuff “it was 70%. Mr Sandercock said to him “so you deleted 50% of your phone memory” to which the defendant said there was not much to delete. Mr Sandercock continued to challenge the defendant on the specifics of what he had deleted.

98. The evidence of Mr Sandercock is that he knowingly and deceptively breached the conditions of his parole to engage in behaviour indicative of taking preliminary steps to groom young boys. When he breached the defendant’s parole he noted that:

“Due to the offender’s ongoing failure to comply with the directions, it is considered that Community Corrections are not able to implement strategies beyond the already strict supervision that has been afforded [to] Mr Jones which included electronic monitoring, intensive case management, engagement with FPS maintenance and case management through COSP staff.”

The level of the offender’s compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, s 17(4)(g)

99. The defendant was a registrable person under the Child Protection (Offenders Registration) Act 2000 following his 2004 convictions. On 7 July 2017, Waverley Local Court made an interim order under s 7 of this Act. The defendant registered with police on 12 April 2017. His obligations under that Act were explained to him. He was informed that any contact with a child under the age of 18 for the purposes of exchanging contact details or attempting to befriend them must be provided to police within 7 days. He was also to provide all details of any social networking sites.

100. On 7 June 2017, the defendant was arrested and charged with five counts of failing to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act alleged to have occurred between 3 April 2017 and 7 June 2017. The background to those offences is outlined in the evidence of Mr Sandercock. One of those counts was withdrawn on 6 October 2017, prior to the hearing. That charge concerned the defendant allegedly borrowing an inmate’s telephone to call his sister. The following four charges proceeded to hearing in the Local Court:

1. Failing to notify Police of access to an instant messaging site, that being, an Instagram account;

2. Contacting a child, J1, through the use of Facebook, in the absence of prior disclosure and specific approval by authorities;

3. Contacting a child, J2, through the use of Facebook, in the absence of prior disclosure and specific approval by authorities; and

4. Contacting a child, J3, through the use of Facebook, in the absence of prior Disclosure and specific approval by authorities

101. On 18 July 2017, the defendant was arrested and charged with an additional offence of contravening a prohibition order contrary to s 13(1) of the Child Protection (Offenders Prohibition Order) Act 2004 (NSW). Condition 8 of the prohibition order stated that the defendant was “not to be in possession of any images depicting children or childlike images”. The defendant’s room was searched on 17 July 2017 where a TV Week was found on a table and an envelope containing cut-outs from magazines and newspapers with pictures of children was found in a cupboard.

102. On 23 November 2017, the charges were heard before Magistrate Andrews at Central Local Court who acquitted the defendant on all counts. The defendant raised the defence of “reasonable excuse” as provided by s 17(1) of the Child Protection (Offenders Registration) Act and s 13(1) of the Child Protection (Offenders Prohibition Order) Act.

103. With respect to the first count, the defendant gave evidence that he was unaware of the existence of the Instagram account and that it had appeared without his knowledge. Magistrate Andrews found that reasonable excuse had been established and dismissed the charge. This was on the basis that the defendant had been in custody for a long period of time and that his potential state of knowledge with respect to social media created a doubt as to whether he was in fact aware of the application.

104. The Prosecution relied on the following evidence with respect to the three charges relating to Facebook contact with three boys. In terms of contact with J1, the Prosecution adduced an image attached to J1’s Facebook account and argued that it clearly depicted him as being under 18 years of age. With regards to J2, the Prosecution tendered J2’s profile picture that had been used on his Facebook account, and adduced evidence showing that J2’s date of birth was displayed on his profile and that the defendant had sent him a message stating “happy birthday”, upon the basis of which the Prosecution submitted the defendant had awareness of the boy’s age. The Prosecutoin also adduced evidence of J3’s profile picture which was said to clearly depict a person under 18 years of age, in addition to pictures of the Wiggles which were present on the boy’s profile and were said to fortify the contention that the defendant knew the boy was under 18 years of age. In total, it appears the defendants contact with the boys was limited to “happy birthday message” being sent to J2 and “liking” various posts made by the children.

101. The defendant gave evidence disputing any knowledge or belief that J1, J2 and J3 were under 18 years of age. He gave evidence that none of the Facebook profiles had photographs depicting them at the time they became Facebook friends. It was argued that, in any case, if the defendant were to access Facebook images, they would be accessed on his mobile telephone which had a relatively small screen and which he said he finds difficult to see. The defendant argued that the photographs could have been viewed as depicting persons 18 years or older. The defendant further submitted that the reason for his Facebook interaction with the children was that he was seeking out people he had worked with in the RAAF some years ago and that the children were in a RAAF Facebook group.

102. With respect to contacting J1, J2 and J3, Magistrate Andrews found that reasonable excuse had been established and dismissed the charges. His reasons for this finding were not set out with great specificity. However, in his remarks prior to this conclusion, his Honour said that two of the three boys “look as though they could be 18” and it is inferred that this was the basis for his decision.

103. With respect to possessing images depicting children or childlike images, the defendant claimed to have no knowledge that he was prohibited from being in possession of a TV Week. However, during cross-examination of the defendant, the Prosecution adduced evidence of a text message sent by the defendant to his sister which said “cancel the TV Week subscription. Prohibition order doesn’t allow it”, or words to that effect. The defendant thereafter conceded that he did know the TV Week was prohibited. With respect to the envelope of images, it was the defendant’s contention that he was unaware of the contents of the envelope and that, although they were his images, he had not seen them since about 2007 or 2008.

104. Magistrate Andrews found that reasonable excuse had been established with respect to contravening the prohibition order. In terms of the cut-outs, his Honour was not satisfied that the defendant had knowledge of the actual content of the envelope which had made its way into his possession and into the cupboard in his room. With respect to the TV Week, Magistrate Andrews noted that the material had been present in the defendant’s room for some time before it was brought to his attention that they were prohibited. After this time, the defendant told his sister that the subscription should be cancelled. His Honour dismissed this charge on that basis.

105. At the hearing before me, it was conceded on behalf of the defendant that the material in support of that prosecution was relevant in this application as the standard of proof is different in the present proceedings.

The results of any statistical or other assessments as to the likelihood of the offender committing a further serious offence, s 17(4)(d)

110. A number of actuarial tools have been used to assess the risk of the defendant’s further offending over the years.

Static 99-R

111. This is a tool commonly used by psychologists and psychiatrists to predict the risk that adult male sexual offenders will re-offend. The Static-99R is an actuarial assessment tool that considers unchangeable risk factors associated with sexual offending on the basis of research studies. It places offenders in a risk category based on the rates of re-offending of groups of other offenders who have shared characteristics as the offender. There are 10 characteristics considered that relate to demographic and criminal history information which are used to produce a score between -3 and 12. Static-99R analysis of the defendant has been undertaken by Dr Eagle, Ms Dewson, Dr Parker and Dr Allnutt as well as by Sarah Wright and Laura O’Neill, psychologists in their report on 6 June 2016.

112. Dr Eagle applied the Static-99R tool to the defendant and scored him a total of seven, placing him in the highest category of risk, that being, “well above average risk”. Dr Eagle explained this to mean that, out of 100 sex offenders with shared characteristics, between 14 and 24 were charged or convicted of a new sexual offence after 5 years in the community, and with respect to those offenders identified with treatment need, such as the defendant, those with a score of seven would re-offend at an average rate of between 21.8% and 29.4%.

113. Ms Dewson also applied the Static-99R to the defendant. She scored him a total of six which likewise places him in the “well above average risk” category. Ms Dewson notes that offenders with the same score as Mr Jones have a recidivism rate of between 18% and 23%, allowing for a margin of error. She states that out of 100 sexual offenders with the same risk score, between 18 and 23 would be charged or convicted of a new sexual offence after 5 years in the community. Ms Dewson noted that for those with a “high need”, such as the defendant, the recidivism rate increases to between 21% and 31%.

114. Dr Parker likewise scored the defendant a total of six using the Static-99R. He observed that, when compared with other adult male sex offenders, 92% of offenders scored lower than Mr Jones and 4% scored higher. Dr Parker said that the recidivism rate of individuals convicted or charged with the same score as the defendant would be expected to be 3.77 times higher than the “typical’ sex offender. He further noted that offenders within the same score re-offend between 21.5% and 30.3% of the time within five years and 30.5% and 44.7% over ten years.

Stable-2007

115. The Stable-2007 is another actuarial tool used to assess the risk that sex offenders will re-offend. It is based on identification of “stable dynamic risk factors”, that being, persistent characteristics that remain relatively stable over time but are amenable to change through intervention, such as treatment and supervision. Examples of these factors include intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. Stable-2007 is often used in conjunction with the Static-99R to place an offender within an overall risk category of offenders who share certain characteristics.

116. Dr Parker applied the Stable-2007 to the defendant and scored him a total of 15 out of a possible 26, placing him in the high risk category. He stated that, when combining the results of the Stable-2007 and Static-99R to generate an “overall risk level”, that the defendant “yields a very high overall risk”.

117. Dr Eagle likewise scored the defendant a total of 15 in applying the Stable-2007. Dr Eagle noted that offenders who score in the highest category on the Static-99R and the Stable-2007, such as the defendant, have recidivism rates of between 24% and 57%.

RSVP

118. Instead of employing the Stable-2007 to assess the defendant’s dynamic risk, Ms Dewson utilised the Risk for Sexual Violence Protocol (“RSVP”). This type of assessment uses structured professional judgment to examine static and dynamic risk factors and consists of 22 items examining the risk areas of sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Applying the RSVP assessment tool, Ms Dewson found that the defendant poses a “high risk of reoffending”. It was observed that the defendant’s primary risks relate to deficits in sexual self-regulation and characteristics related to sexual deviance. Furthermore, Ms Dewson noted that the defendant appears to experience social isolation, intimacy deficits and poor compliance with supervision. She opines that he is most likely to offend against a male child between 14 and 16 years of age by way of manipulating the environment or individuals to create a situation where he is alone with a child.

Rehabilitation programs in which the offender has had an opportunity to participate s 17(4)(e)

119. The defendant entered the Custody-Based Intervention Treatment (“CUBIT”) program in 2013. He had applied for the program in 2004 and had received a letter stating that he had been placed on a list and would be told close to the time. In 2012, he was offered a position in the program which was deferred for 12 months. He completed the program in a 10-month period between 25 November 2013 and 24 September 2014.

120. The CUBIT Treatment Psychology Report of Tamara Sweller dated 2 October 2014 was before the court. Ms Sweller noted that the defendant’s level of acknowledgment for his offending behaviour increased as he progressed through treatment but he still continued to deny responsibility for some aspects of his offending and often presented himself as a victim. She noted:

“…Mr Jones presented as superficially engaged in treatment. For instance, Mr Jones parroted terminology he heard from others (e.g., therapist, other group members). His understanding of these phrases and how they relate to him was often limited. However, he completed all required tasks and at times, did more than was asked, e.g., writing answers to questions asked in group sessions when he was not required to do so.

Mr Jones was generally a poor historian. He often provided vague and contradictory information related to past and current behaviour. He appeared to omit information that might present him in a negative light; however, he reported that his omissions were unintentional.”

121. In relation to his “pathways to offending” the defendant had difficulty identifying the relevant factors involved in his sexual offending. Ms Sweller noted that he felt like he did not fit in with his peers and felt more comfortable around children as he perceived them to be less judgmental. She states he was sexually preoccupied, used sex to feel better (ie about himself and gaining control), was not meeting his sexual wants, had a sense of sexual entitlement (ie thought he deserved to have as much sex as he wanted, with whoever he wanted) and was sexually attracted to pubescent and post-pubescent males. She noted that:

“Despite these difficulties, Mr Jones presented as trustworthy, reliable, generous, and in control of his life. This presentation style allowed him to gain approval from others and access to potential victims. As his relationships with the victims and their families developed, Mr Jones’ sense of self-worth, his connectedness, and control over his life and surroundings increased; as well as his perception that others approved of him. Mr Jones targeted victims who were particularly vulnerable, through their prior experiences of sexual abuse. He justified his actions with the thought that the victims had already had sexual relationships with adults so it was okay. He hid his sexuality from his peers, but felt comfortable expressing it to the victims. Mr Jones gradually started to breach the boundaries within these relationships…”

122. In his consultation with Dr Allnutt, the defendant said that he found the group work uncomfortable as the other members were heterosexual offenders (and he had offended against boys) and therefore felt like the “odd one out”, and that he had particular difficulty as he felt uncomfortable about disclosing personal issues to everyone else and being judged.

The s 15 (4) reports: s 17(4)(b)

Chelsey Dewson

123. Forensic psychologist Chelsey Dewson furnished a psychologist report dated 14 March 2018. She assessed the defendant via audio-visual link from custody on 7 March 2018.

124. Ms Dewson noted that the defendant provided an account of his sexual offending which was generally consistent with official documents. With respect to his sexual offending between 1984 and 1989 the defendant commented that he realises now that he “abused [his] position of trust” and had control over the victims but “didn’t think it was wrong” at the time of offending.

125. With respect to the index offences the defendant expressed remorse for his actions while strongly denying any abuse against the victim’s younger brother. He told Ms Dewson that he was aware prior to offending that his actions may cause harm to the victim but that he “switched off”. Ms Dewson noted that it appeared that his interest in meeting his sexual wants overcame any moral objection to the offending and/or concern for the wellbeing of the victim. While discussing the possible impact his offending may have had on the victim in the context of his own abuse history, the defendant gave the impression that he aligned with his victims in that they had abuse histories in common.

126. Ms Dewson noted that, by identifying as a victim and externalising his behaviour, the defendant’s capacity to reflect on his offending and hypothesise on the potential impact has been hindered. He described relationships in the community as superficial and reported that he never had a cohabiting relationship, has never been married and has no children. Ms Dewson noted that he reportedly gave others the impression that he had a wife and children whilst progressing through CUBIT. The defendant mentioned a heterosexual relationship between 1982 and 1987 as well as a homosexual “relationship” lasting for six years, however, it became clear throughout the interview that he was referring to one of his victims. He told Ms Dewson that he “considered it to be a real relationship, although [he] knew it to be wrong".

127. The defendant told Ms Dewson that he was assaulted sexually by a male stranger when he was nine years of age and that he had a three-year long sexual relationship when he was 13 years of age with a similarly aged male. He said that throughout his life he has been primarily attracted to “teenage males” who have already transitioned through puberty and have masculine characteristics and that he maintained such interest because they are able to “reciprocate” his sexual favours, including performing oral sex. He reported no interest in anal intercourse but only in mutual oral sex and masturbation. The defendant reported that he formed “genuine relationships” with other offenders in custody and that he had approximately 30 sexual partners while in custody with most of them being strangers. He also said that his high sex drive has diminished over time reaching “low” levels of arousal by 2006 and that he experienced erectile dysfunction.

128. Ms Dewson concluded that it appears concerning that the only relationships that the defendant considered meaningful were with “victims (underage children) and other sexual offenders in custody”.

129. Ms Dewson noted that the fact that the defendant was prescribed anti-libidinal medication in January 2017 suggests that he has under-reported his level of libido in the assessment with her. The defendant reported that he was taken off the medication in August 2017 because of the side effects he experienced and his anti-depressants contraindicated with anti-libidinal medication.

130. Ms Dewson also noted that the defendant’s offending may not be related purely to his sexual interests but to other unmet needs, including his desire for affection, non-sexual intimacy, and control and that the use of anti-libidinal intervention as a risk-management strategy in the defendant’s case is questionable.

131. In her opinion, given his intense and persistent interest in pre-pubescent and post-pubescent male children the defendant meets the Diagnostic and Statistical Manual of Mental disorders fifth edition (DSM-5) criteria of “Other Specified Paraphilic disorder – hebephilia" (interest in pubescent children typically 11 - 14). In 2017, he was diagnosed by a community-based psychologist with Major Depressive Disorder when he admitted himself into a psychiatric ward after experiencing suicidal thoughts. He denied any self-harming behaviour since commencing on anti-depressants.

132. Ms Dewson noted that the defendant participated in the assessment willingly and appeared engaged and forthcoming with information. She would categorise the defendant as being at high risk of sexual re-offending with presentation of both acute factors evident immediately prior to and at the time of offending and dynamic risk factors (attitudes, sexual interests) contributing to the risk.

133. Ms Dewson considered options that may reduce the likelihood of the defendant's re-offending as possible re-engagement in offence specific treatment (CUBIT) in both custody and the community. She noted that such treatment would be at the discretion of CSNSW given that most offenders complete it only once. She also noted that community maintenance programs may be ineffective given that he had breached his parole while participating in such a program.

134. As for his likely compliance with conditions of an ESO, Ms Dewson stated that the defendant had difficulty with complying in the past and she is not confident that he is willing or motivated to do so. She opined that without understanding the underlying function of his behaviour, given that he has behaved in a way to deceive others, it would be difficult for him to make any internal or behavioural changes.

135. With respect to treatment she recommended individual-based intervention, that could be conducted both in custody and the community, over group-based program that carries the risk of forming more antisocial peer connections that would outweigh the benefits of the treatment. She suggested such treatment be conducted by a psychologist well versed in his case given that the defendant has provided incorrect information to psychologists. She opined that he may also benefit from cognitive-behavioural therapy.

136. With respect to the proposed conditions for an ESO she was of the opinion that it would be very difficult to manage the defendant’s risk in the community. Keeping in mind that he will have to be released at some stage she stated that the proposed conditions would be appropriate and that the maximum term of 5 years should be enforced in the defendant’s case.

137. On the basis that there was no 'custody-based maintenance' she opined that it is not likely that a CDO would make any significant changes to his risk apart from further confinement. She made no recommendations as to the possible length of any CDO.

138. Finally, she was of the view that removing the defendant’s access to internet would ameliorate the risk of forming and maintaining relationships via social media with potential victims but that it would not mitigate any risks of forming physical relationships with other potential victims (such as neighbours etc). Accordingly, such a condition would be only a small part of a larger management plan needed in this matter.

Dr Kerri Eagle

139. Dr Kerri Eagle, forensic psychiatrist, prepared a psychiatric report dated 15 March 2018. She saw the defendant in person at Parklea on 28 February 2018 and conducted an interview over approximately two hours. She noted that the defendant denied any suicidal thoughts and that he was prescribed anti-depressant medication.  He had ceased to take anti-libidinal medication, prescribed to him in January 2017, in August 2017 because he experienced “very bad mood swings” and “out of character behaviour”.

140. In relation to the index offences Dr Eagle noted that the defendant did not accept responsibility for the charges and told her that he engaged in “touching” with the older boy who was engaging in similar conduct with the younger boy and “the boys took photos of each other”.

141. In relation to first sexual offences between 1987 and 1988, the defendant told Dr Eagle that he was 19 years old and it was the first time he had sexual contact with a minor. He was a pool attendant on the Defence Force base in Richmond and was also becoming a scout leader. He said that while cleaning the pool a 13-year-old boy “jumped in on top of me and his hand went between my legs”, he felt aroused and things “went from there”. He said that the “friendship went for about 6 years” and that later on when he was in custody, he was visited by the victim and his father and the victim’s father told him that “after the offending started he [the father] saw a change in him [the victim] for the better”. He knew it was an “abuse of trust” and was not proud of what he did. He also reported having contact at camps with a number of boys of the same age on more than one occasion and having “fully consensual” sexual conduct that he found satisfying at the time.

177. The defendant told Dr Allnutt that he preferred the company of younger boys who looked for a father figure and were accepting of him and not judgmental. This made him feel good inside. He said that he had felt this way since about the age of nine. He said that he became aware of a sexual attraction to boys around the age of 19 or 20 and had recurrent, intense, sexually arousing fantasies since then. However, when Dr Allnutt saw him, the defendant denied any recurrent fantasies of any nature being currently active. He said that his last sexual fantasy was in 2013, that he last engaged in masturbation in 2013 and that he had not had any erections since that time.

178. Dr Allnutt believed that the defendant could be diagnosed with a schizotypal personality disorder based on factors including his circumstantial manner of speech, suspicion of others, restricted affect, eccentricity, lack of close friends and confidants and experiences of social anxiety. Such a disorder impacts on the defendant’s quality of social interactions. He further opined that the defendant meets the criteria for a diagnosis of paedophilic disorder, being sexually attracted to male children, and also hebephiliac sexual behaviour, that being inappropriate sexual behaviour with young adolescent boys. The underlying motivation for his inappropriate sexual behaviour was said to have been primarily for sexual gratification and his underlying vulnerability with regard to his capacity for pursuing relationships due to his schizotypal personality disorder.

179. Dr Allnutt identified a number of factors associated with an increased risk for sexual recidivism that were present in the defendant’s case. These included the chronicity, diversity and coercion in relation to his sexual offending, the sexual abuse he experienced as a child, his sexual deviance, his major mental illness (previous major depressive disorder diagnosis), his problems with non-intimate relationships, the non-sexual criminality in his history (see above at [67]) and his problems with supervision, self-awareness, stress, coping and employment. Dr Allnutt also applied the Static-99R and found that the defendant would fall into a group of sexual offenders whose level of risk would be regarded as “well above average” compared to other sex offenders in the same study. For this reason, Dr Allnutt opines that, for this reason, the defendant needs initial restrictions.

180. Having regard to the defendant’s clinical and actuarial assessment, Dr Allnutt regarded the defendant as falling into a group of individuals who have a relatively high risk of future sexual recidivism requiring further supervision and treatment. He made a number of recommendations as to appropriate approaches to treating the defendant in the future. These include: ongoing engagement in a comprehensive sex offender rehabilitation program; individualised psychological treatment rather than group-based programs; alternative anti-libidinal medication; social skills training; vocational assistance; and ongoing social support.

181. Dr Allnutt did not provide a view as to whether an ESO or a CDO was a better alternative, commenting that this was a legal matter for determination by the Court. The highest he put his opinion was that, from a clinical management perspective, it would be best for the defendant to commence treatment in a highly supervised environment (whether in the community or otherwise), with gradual reduction of supervision, depending on his response to rehabilitation, commensurate with risk. Dr Allnutt said that treatment should be one-on-one and not a group situation, wherever that may occur. He said that the defendant would benefit from assistance in adapting to a pro-social lifestyle while in a supportive environment with restrictions which should be withdrawn over time, commensurate with the perceived risk. He noted that, in the community, the defendant requires ongoing supervision, monitoring and rehabilitation in a supportive programme to address his clinical needs for the foreseeable future, with experts in managing sexual offenders.

Any options available that might reduce the likelihood of the offender re-offending over time, s 17(4)(e1),

184. The defendant was prescribed with anti-libidinal medication (Androcur) in January 2017 by a psychiatrist, initially at a 50mg dosage. However, due to side effects, including shortness of breath, tiredness, mood swings, depression, weight gain and constant headaches, the dose was reduced to 25mg. The side effects persisted. In August 2017, he was taken off Androcur. At the same time, his anti-depressant medication (Zoloft) was increased from 25mg to 100mg. He was on Androcur whilst he was on parole.

185. The options advanced by the experts that might reduce the defendant’s likelihood of re-offending over time were largely consistent. They all recommend some or all of the following: Individualised psychological treatment, Cognitive behaviour therapy, alternative anti-libidinal medication, Social skills training, Vocational assistance and ongoing social support.

186. The dynamic risk factors that need to be worked on are developing stable relationships, not identifying emotionally with children and demonstrating co-operation with supervision.

Whether the offender is likely to comply with the obligations of an extended supervision order s 17(4)(e2),

187. This factor has already been addressed by the relevant experts as outlined above. Further, it is to be noted that the proposed conditions for the ESO were in very similar terms to the parole order which he breached. In fact, he has breached every parole order he has ever been on.

The level of the offender’s compliance with parole or ISO or ESO conditions: s 17(4)(f)

188. I have already set out the defendant’s poor compliance with parole on a number of occasions above. He has not previously been on either a ISO or ESO.

The views of the sentencing court: s 17(4)(h1)

189. Judge Shadbolt sentenced the defendant on 10 September 2004 following a trial before him and a jury. He sets out the strong case at trial against the defendant which comprised photos depicting him and the victims, and that the photographs were taken on his telephone. There were diary entries setting out the offences which were in the same terms as diaries used in his 1988 convictions. There were other circumstantial matters such as the Internet was accessed at Waverley library and persons there identified the defendant as a person of interest. Persuasive evidence was given in relation to the integrity of the images. Some of the observations of the sentencing judge are as follows:

“Despite the overwhelming evidence of homosexual intercourse with a person under the age of eighteen, sexual intercourse with a person under the age of sixteen, indecent assault on a person under the age of sixteen, the incitement to acts of indecency and circumstances of aggravation stretching over a period of eighteen months, perpetrated by this offender on two boys from a dysfunctional family, he chose to plead not guilty and put forward a defence which appeared to me, to be built almost entirely on an arrogant assumption that he knew more about computers than anyone in the court.

But this was not a case to be fought within the microchips of a computer, but within the neurones of the human mind. It was a simple case of circumstantial evidence in respect of both of the diaries, their authorship and their truth, the ownership of the images on the CD and the exclusive access to the email address, all of which were to be proved by matters lying far outside the casing of any computer…

These offences are so serious and the course of conduct so damaging to the young children they are deserving of severe prison sentences…

The prisoner can only be regarded as a persistent paedophile and a threat to society. He is also a persistent liar, as his lengthy evidence before the jury demonstrated.

The boys’ evidence and their parents leaves me with a great feeling of unease. Tightly constructed and carefully interlocking, it had all the hallmarks of collusion. It is clear that he has upset what moral values the children might have had to the point where they blithely denied any misconduct on his part.

…

These offences continued for nineteen months and can only be regarded as persistent, lengthy and including sexual activity of a really gross nature… It was committed whilst he was on bail. Further he has shown himself to be a persistent offender and pedophile.”

190. His Honour noted that the Crown had submitted that given his past record there would really be no hope of rehabilitation. In response to that his Honour noted:

“… But I cannot feel that there is no hope. It is true that the future can only be judged by the past, and on that, there is scant possibility of rehabilitation but nevertheless I am not of the view that the prisoner should be denied that as a mitigating factor.”

While no-one can be denied his trial, nor should he be punished for pleading not guilty, there arises in this sentence on a question of contrition, even some dawning awareness in the offender that what the offender was doing was illegal, wrong and utterly destructive of the future lives of his two victims.”

The parties’ submissions

191. The State’s submission was that a CDO would achieve the primary and secondary purposes of the Act. It was submitted that the defendant’s risk of re-offending was too high and his motivation to reduce that risk too low such that he presents too high a risk to be placed on an ESO. It was submitted that in order to ensure the safety of the community the defendant requires treatment in custody under a CDO to address his underlying behaviour and challenge his habitual lying.

192. Detailed written submissions were provided addressing the relevant supporting information and particular emphasis was placed on the effect of the recent amendments: the court must take into account whether he would comply with an ESO and when assessing the unacceptable risk, the court cannot have regard to the ability to take action for a breach of an ESO.

193. At the hearing, the State’s position was put as being that the defendant must be detained on the question of unacceptable risk and, accepting that he must be released one day, having regard to the secondary consideration in the Act of the defendant’s rehabilitation, CSNSW is prepared to provide one-on-one counselling in custody with a view to meeting that secondary aim.

194. On behalf of the defendant it was submitted that the defendant is willing to be placed on an ESO with very strict conditions and would also agree to not have any access to social media as a condition of an ESO. It was proposed that he would only use a mobile telephone with no access to the internet. It was submitted that this would have some utility. Reliance was placed on the observations of Dr Eagle in this regard that the defendant’s pattern of offending would be significantly increased if he had access to social media as it would provide him with unsupervised access to children and young males.

195. It was noted that Ms Dewson was also of the view that removing access to the internet would likely ameliorate the risk of the defendant forming and maintaining relationships with potential victims although it would not mitigate risks of forming relationships with potential victims such as neighbours

196. Reliance was placed on Dr Eagle’s report where she states that he could be “more effectively” managed on an ESO because custodial programs are less effective. Reliance was also placed on the evidence of Dr Allnutt in his report that although he declined to opine as to whether a CDO or ESO is required, the conditions of the proposed ESO would in his view “likely support risk management and treatment associated with an ESO disposition.”

197. It was submitted that the balance of the clinical opinion favoured the viability of an ESO and that the state had not established that “the relevant risk is not susceptible to appropriate moderation by the imposition of an ESO of the highly intrusive and onerous type now in contemplation.”

198. It was submitted that the Act should be construed on the basis that detention is not an option of first resort and thus, even following the amendments, the question must be whether the risk can be ameliorated other than in prison. It is only if it cannot be established that an ESO can “do the job for the community in terms of the protective jurisdiction” that a CDO would then be the option as a last resort.

199. It was noted that the defendant was acquitted of the charges before Magistrate Andrews and consented to a Final Prohibition Order of two years duration on 23 November 2017. The evidence was two out of the three children had “friended” the defendant and he had only sought to “friend” one of them. It was noted that none of the breaches related to inappropriate communication of a sexual nature. The defendant gave evidence before Magistrate Andrews that he could not see the images of the boys and had just touched an acceptance field on a smart phone. It was noted that not all of the profile images were accurate in any event, as his friend, CS was associated with an image of the actor Vin Diesel.

200. Reference was made to the evidence that the defendant had reported falling from the top bunk on to the concrete in his cell in late 2016. Whilst on parole he presented himself to hospital. He was assessed as being neurologically intact with a headache. The hospital note reads, "nothing to suggest significant neurological disease." Dr Allnutt gave evidence that he was complaining about numbness to his arm but he was unclear whether that was a physical or psychological issue.

201. It was also noted that the defendant had been regarded as a well-behaved prisoner, that he completed CUBIT, that the CPR prohibition order is in place, that he has helpful support from his sisters and that the recent breaches were not particularly serious. I was invited to read the full transcript before Magistrate Andrews in order to obtain a “helpful sense of what the breaches were about.” It was submitted that the defendant is heavily institutionalised and the breaches of parole occurred during an adjustment period.

202. It was noted that whereas the court has been provided with the images of the children J1 J2 and J3 in A4 size, the defendant was only able to view them on his mobile telephone thus the images were much smaller. It was accepted that images on a mobile telephone can be enlarged. It was noted that the majority of persons he contacted on social media were other middle-aged men from his RAAF days.

203. It was conceded that Dr Eagle had retreated slightly from the position in her written report in her oral evidence as to the suitability of an ESO as opposed to a CDO.

Consideration

204. As McCallum J observed of this legislation in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]-[3]:

“After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is “the most fundamental and important of all common law rights”. It is one which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ.

Some offenders reoffend (some, predictably so). In Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 at [12], Gleeson CJ observed that the way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is “an almost intractable problem”. At common law, the response is governed by the principle of proportionality, which prohibits preventive detention. The principle holds that, while it is permissible for a sentencing judge, in fixing an appropriate sentence, to have regard to the protection of society, a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection for that purpose alone: Veen v R (No 2)[1988] HCA 14; 164 CLR 465 at 472. The case of Mr Veen provides an exquisite illustration of the problem.”

205. As her Honour went on to observe, most States, including NSW, have enacted legislation which overrides the right to personal liberty and overcomes the principle of proportionality by conferring power on a superior court to detain a person beyond the expiration of their term of imprisonment.

206. It is readily apparent that since the enactment of the Act a significant number of applications have been brought under it. A review of the orders made in decisions of this court published on NSW Caselaw suggests that the majority of the applications made to this court under the Act have been resolved by the defendant being placed on an ESO rather than a CDO. To a large extent this follows from the fact that in many cases it was an ESO rather than a CDO which was sought by the State. Despite this, it seems to me that it may also be the result of the fact that, prior to the recent amendments, the extraordinary power to make an order detaining a person for the protection of the community could only be made if the court was satisfied that a defendant could not be adequately supervised under an ESO. That test has now changed.

207. I have had regard to the recent amendments to the Act. It was submitted on behalf of the State that the Court would take the two stage process set out in Anderson v State of New South Wales extracted above at [19]. It was submitted that the first stage was whether the court could impose a CDO under s 5C of the Act and, if so, the second question is whether such an order should be made having regard to the matters set out in s 17(4) of the Act, bearing in mind that the safety of the community must be the paramount consideration under s 17(2) of the Act. Although I am satisfied that is the correct approach, it is not the test set out in Anderson v State of New South Wales. The court in that matter considered the test prior to the amendments which provided that the first question was whether the offender posed an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision and the second question was whether the Court was satisfied that adequate supervision would not be provided by an ESO. It was only after these two questions had been answered that the question of the court’s discretion arose.

208. Given that the State seeks a CDO as its primary application in this matter, I propose to approach the statutory task by first considering whether s 5C(d) is satisfied and then turn to consider whether, in the exercise of the discretion conferred under s 17(1) of the Act, I would dispose of the application by way of a CDO or an ESO.

209. The first question is whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept in detention under a CDO.

210. The phrase “unacceptable risk” is not defined in the Act. It was considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in the Act is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]). In addition, s 5D of the Act provides that this court is not required to determine that 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 the person committing such an offence.

211. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

212. Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

213. In the present matter I am satisfied that the consequences of the defendant committing a serious sex offence would be significant. For one thing, the potential long term adverse effects associated with child sexual abuse is a matter now well accepted by the courts. Similarly, I am satisfied that the likelihood that the risk will eventuate in this matter is also significant based on, inter alia, the expert evidence regarding his risk of re-offending summarised above, the actuarial risk assessments, the defendant’s criminal history, his pattern of offending, his relatively short periods in the community without re-offending and his poor history of compliance with parole conditions in the past.

214. In assessing this risk I note that the defendant has not committed any sexual offences since those the subject of the 2004 convictions. This is to be balanced, however, by the fact that he has been in custody since 2004 except for the three months he was on parole last year.

215. The evidence clearly establishes that the defendant is a persistent and determined recidivist sex offender who has never been able to comply with any conditions of parole in the past. His persistence places him at an elevated risk of re-offending. Despite completing CUBIT and telling psychiatrists he knows what he is doing is wrong, he in fact does not have the emotional understanding of his pathways to offending and has not meaningfully addressed his dynamic risk factors to date. He was on anti-libidinal medication at the time he breached his parole. The offender’s criminal history shows a particular pattern and, as the sentencing judge observed, he is a practiced liar. His history of being dishonest in relation to his supervision is of concern.

216. Ms Dewson is not confident that the defendant is willing or motivated to comply with an ESO. She is of the view that his dishonesty and lack of understanding of his behaviour will make it difficult for him to make any internal or behavioural changes. She was of the opinion that it would be very difficult to manage the defendant’s risk in the community.

217. Despite finding that the defendant has a history of persistent sex offending and repeated non-compliance with supervision and that he had failed to demonstrate the capacity to exercise internal constraints in his impulses or behaviour for any period or complying with external restrictions, Dr Eagle initially opined in her written report that the defendant would be more “effectively” managed in the community. This opinion was based on the fact that custodial sex offender programmes have been shown to be less effective than those in the community. She stated that this option would better help his rehabilitation. When it was suggested to her in court that the defendant would receive one-on-one counselling in custody she withdrew to an extent from her initial position as her evidence extracted above shows.

218. Dr Parker opined that a CDO would contain the defendant and if he was subject to the ESO it is possible that he may manage to re-offend despite restrictions, given his persistence in attempting to gain access to children.

219. All experts performed statistical assessments which placed the defendant’s risk of re-offending as high. Although CSNSW provided information as to how he could be” reasonably and practicably” managed in the community, the limitations of CSNSW’s ability to do so were highlighted in the reports of Ms Langdon and Mr Sandercock. Their reports cast grave doubt as to whether the risk of re-offending could be managed by an ESO given the defendant’s past conduct on parole and the lack of honesty he displayed at that time.

220. I have had particular regard to the defendant’s conduct whilst most recently on parole. The breaches of parole were of themselves not serious to the extent that they did not involve any contact with young boys nor sexual offending. Although he made no actual physical contact with any young boys, the evidence of Mr Sandercock is that he was using social media between 29 April 2017 and 23 May 2017 and that he deleted his searches. A happy birthday message with a teddy bear waving and saying “hi” was sent which is suggestive of grooming behaviour.

221. The defendant states he did not know the ages of the boys. He asserted that their profile pictures were not available when he contacted them, that two out of the three “friended” him first and there was no other contact other than becoming Facebook friends. The fact remains that he re-installed social media sites to his mobile telephones, deleted texts and used Facebook and Facebook Messenger without being supervised despite knowing he was prohibited from doing so and then lied about it.

222. As for the CPR breaches, although I do not consider the breaches regarding his possession of a TV Week to be of particular concern, the contact made with J1 J2 and J3 is in a different category.

223. I have examined the photographs of J1 J2 and J3 on Facebook provided to me. All of the dates of births are on their profiles. J1 was born on 22 May 2001. When he turned 16 on 22 May 2017, the defendant sent him a “happy birthday” message. J2 was born on 13 September 2001 and J3 was born on 10 December 2001. All three of them were 15 years old when the defendant first “friended” them on Facebook. The material before me shows that, in relation to J3, it was the defendant who had sent him a friend request. Although I am not satisfied that the photograph of J1 clearly depicts a person under the age of 18, I am satisfied that the photos of J2 and J3 do clearly depict boys under the age of 18 years.

224. Having regard to all of the material summarised above, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, specifically, child sexual assault offences against boys under the age of 16 years including sexual intercourse, if not kept in detention under a CDO: s 5C(d) of the Act.

225. The next question is whether, in the exercise of the court’s discretion under s 17(1) of the Act the defendant should be placed on a CDO for a period of two years as sought by the State, placed on a CDO for some lesser period, or placed on an ESO for five years or less. As stated above, the defendant consents to being placed on an ESO for a period of two years. I have had regard to the fact that following the amendments, the “paramount consideration” in this regard is the safety of the community. I have also had regard, inter alia, to the mandatory factors in s 17(4) of the Act.

226. I have had regard to the matters relied upon by the defendant including the fact that he still has the support of his sisters, his explanations for the recent breaches regarding social media, that the recent breaches were relatively minor, his willingness to be placed on a lengthy ESO which would preclude any access to social media and the length of time since he has committed any child sexual assault offences.

227. I have had particular regard to s 17(4)(e1) of the Act which requires me to consider whether I am satisfied that the defendant is likely to comply with the obligations of an ESO. There is very little in the material before me to suggest that the defendant would comply with an ESO. Although he has never been on an ESO before, the fact remains that he has never successfully complied with parole before. Although the experts all agreed that if a condition was imposed that he was not to have access to social media his risk of re-offending may be reduced, I am not satisfied that he would comply with such a condition given the evidence of, inter alia, Mr Sandercock. Putting to one side whether the defendant did in fact intentionally have contact with the three 15-year-old boys on Facebook, the fact remains that after he was told to remove the applications from his telephone, he re-installed them, lied about it and deleted his search history after being directed not to. I am not satisfied that providing him with a mobile telephone without internet access could prevent such internet contact from in fact being made.

228. Although he was acquitted of the charges under the Child Protection (Offenders Registration) Act, his parole was not revoked solely on those matters but on his dishonesty and failure to follow directions. I have had regard to the fact that the purpose of the legislation is protective and not punitive. He is not to be punished for his poor compliance on parole. Rather, it is relevant to the question of his suitability for a CDO.

229. Taking all of these mandatory requirements into account, I am satisfied that, although there are stringent conditions that could be imposed on the defendant, he is likely to breach them. As Dr Eagle pointed out in her evidence before me extracted above at [139]-[160], when he most recently breached his conditions of parole, the breaches were detected before he made any direct contact with any potential victims. It was on this basis that Dr Eagle opined that he could still be managed under an ESO. The difficulty with this approach is that, under s 17(5) of the Act, I am no longer permitted when determining whether or not to make a CDO to consider the ability to take action for a breach of “the order” in relation to whether there is an unacceptable risk of the offender committing further serious offences. The reference to the “order” in s 17(5) can only mean to an ESO.

230. I have found the terms of s 17(5) of the Act of some significance in this matter. The defendant is not attracted to pre-pubescent boys nor has any of his offending involved violence or other force. Rather, the particular risk that this defendant poses is that he would groom a vulnerable male child over the age of 11-12 years and under 16 years through befriending him and showing him pornography and arousing him and then manipulating him into various sexual acts. This has been his modus operandi for the last 30 years. None of the reports suggest that his offending would take any other form. In the past he has targeted vulnerable children who themselves have already been victims of child sexual assaults as his 2004 convictions and his 1997 breach of parole indicate.

231. The risk of the offender committing a serious offence if placed on an ESO would be ameliorated to some extent by the fact that if he commenced to groom young boys this would be a breach of his ESO which might be detected before any offences were committed. But for s 17(5) of the Act, given the nature of the defendant’s particular offending, this could have been a relevant factor weighing in favour of an ESO rather than a CDO. Weighed against this is the evidence of Dr Parker who was not satisfied that strict conditions could ameliorate the risk in any event given the defendant’s “strong desire to actually make contact with children” and lack of restraint in doing so. His evidence was that if the defendant saw the opportunity, “he may act fairly quickly”.

232. I have had particular regard to the fact that the defendant cannot be detained forever and needs to gain skills in the community to assist in his rehabilitation. In order to work on his dynamic risk factors the defendant ultimately needs to be in the community to learn the relevant skills. On one view his attempts to make friends on Facebook are consistent with efforts to build community ties, which is one of the dynamic risk factors he needs to work on.

233. Although he has completed CUBIT, the unanimous view of the experts was that he needs one-on-one counselling to assist in giving him greater insight into his offending behaviour and the need for compliance. All experts agree that this is an option which might reduce the likelihood of the defendant re-offending over time.

234. In his affidavit, Dr Parker stated that the defendant required individualised counselling on a weekly or fortnightly basis in order for him to fully address his dishonesty and offending behaviour. He estimated that it would take between one and two years of such treatment to have any appreciable impact upon his risk of re-offending. He also noted that group based therapy was unable to change his persistent lying and individual treatment would be better. In his evidence in court he suggested that the counselling would be fortnightly. Similarly, Dr Eagle gave evidence that such counselling in custody should take place weekly and progress could be made in less than a year.

235. The question of ongoing one-on-one counselling in the custodial setting was only addressed in oral evidence, rather than in the reports before me thus Ms Dewson did not directly address this issue in her report. She did, however, emphasise the need for such counselling as opposed to group based therapy. Dr Allnutt was also in favour of such.

236. The State seeks a CDO for a period of two years on the basis that the safety of the community would be ensured if the defendant is subject to a CDO for a period of two years. Although the primary concern is the safety of the community, rehabilitation is another object of the Act and the safety of the community will ultimately be best served if the defendant gets the help he needs and can be placed on an ESO, to which he consents, as soon as practicable.

237. Although the court has the power to impose conditions on an ESO, there is no power for the court to impose a condition on a CDO. If I did have such a power I would make it a condition of placing the defendant on a CDO that he receive one-on-one counselling from a qualified expert on a weekly basis. If legislation is enacted to detain a person such as the defendant on the basis, inter alia, that he poses an unacceptable risk of further offending until he gains further insight into his behaviour through intensive counselling, then it seems to me that the resources of CSNSW should be used to minimise the time that such detention is required. I accept that the purpose of placing him on detention is primarily for the safety of the community rather than his rehabilitation but his rehabilitation is nonetheless another object of the Act and an important one.There can be little doubt that if the defendant is able to control his behaviour then the risk to the community is diminished.

238. Having weighed all of the evidence and submissions in this matter, I am satisfied that the defendant should be placed on a CDO rather than an ESO. To conclude otherwise would be to go against the weight of the expert evidence in this matter. Although the expert evidence is only part of the material to which I am required to have regard under s 17(4) of the Act, it has been particularly persuasive in this matter, especially when considered in the context of all of the other material. The defendant requires further intensive counselling to understand his pathways to offending and the importance of complying with his conditions before the court could be satisfied that he would comply with an ESO.

239. I do not propose to make the CDO for the period of two years sought by the State. The evidence of Dr Eagle is that it would take six to 12 months to build a trusting relationship in counselling. Dr Parker estimated that it would take between one and two years to have any appreciable impact upon his risk of re-offending. On that basis I am satisfied that a CDO for a period of one year would best achieve the primary aim of protecting the community whilst also allowing for the rehabilitation of the defendant.

240. The defendant’s head sentence expired on 6 April 2018. At the hearing of this matter on 28 March 2018, the defendant consented to an interim detention order for 10 days until today. Although that IDO was consented to by the defendant I nonetheless had to be satisfied it was appropriate to make such an order given the evaluative judgment required in the statutory test under s 18A of the Act. Given the material I had already read and heard at that time, I indicated that I was satisfied that it was appropriate to grant that order and that I would provide brief reasons in this judgment. It seems to me sufficient to note that, at the time I made the order, I was satisfied that the defendant’s custody would expire before the proceedings were determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or a CDO for the reasons set out herein.

ORDERS

241. In consideration of the above, I make the following orders:

1. Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006, the defendant is subject to a continuing detention order for a period of 12 months commencing on 16 April 2018.

2. Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006, that a warrant issue for the committal of the defendant to a correctional centre for a period of 12 months commencing on 16 April 2018.

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Amendments

26 April 2018 - Please Note:
A different version of this judgment was briefly made available on Caselaw in error from 20 - 23 April 2018.

[112] line 7; [132] line 4; [133] line 2; [148] lines 2 and 10; [160] line 5; [164] line 3; [167] line 4; [170] line 4; [2013] line 8; [218] line 2 - “reoffend” changed to “re-offend”

[126] line 4 – “the” changed to “he”

[131] line 4 – inverted comma “inserted after word “hebephilia” and deleted in line 5 after closed bracket

[131] line 8 and [139] line 5 – “antidepressant” changed to “anti-depressant”

[137] line 1 – second “that” deleted

“Kerrie” and “Kerry” changed to “Kerri” in subheading following [138] and in [139] line 1

[139] line 5 and [149] line 4 – “antilibidinal” changed to “anti-libidinal”

[141] line 4 – “he” deleted

[144] line 3 – “non exclusive” changed to “non-exclusive”

[148] line 6 and [186] line 3 – “cooperation” changed to “co-operation”

[160] line 2 – second “above” deleted

[164] line 6 – first “the” replaced with “an”

[165] line 2 – “his” changed to “the defendant’s”

[171] line 2 – “are” replaced with “a”

[176] line 1 – “the” deleted

[185] line 2 – “of re-offending” inserted after “likelihood”

[189] line 3 – “and that” inserted after “victims”; line4 – full stop inserted after “telephone”, “There” instead of “there”; line 6 – “are” changed to “were”

[191] line 3 – “too low” added after “risk”

[193] line 3 – “regarding” changed to “regard”

[196] line 4 – “DCO” changed to “CDO”

[224] – [225] deleted thereafter re-numbered

[230] line 1 –line 2 – “prepubescent” changed to “pre-pubescent”

[237] line 12 – second “that” deleted

[239] line 12 – second “that” deleted

Decision last updated: 26 April 2018