State of New South Wales v JS (Final)

[2020] NSWSC 28

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JS (Final) [2020] NSWSC 28

Hearing dates:

2 and 14 September 2020; written submissions 16
September 2020

Date of orders:

21 September 2020

Decision date:

25 September 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that JS be subject to an extended supervision order for a period of three years.

(2) Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) that JS, for the period of the ESO, comply with the conditions set out in Annexure A to this judgment.

Catchwords:

HIGH RISK OFFENDER – application for final orders – extended supervision order – defendant convicted of serious sexual offences against children – question as to whether the defendant poses an unacceptable risk of committing further sexual offences if not supervised – appropriateness of proposed conditions of supervision

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Cases Cited:

State of NSW v JS (Preliminary) [2020] NSWSC 823 State of New South Wales v Cheney [2020] NSWSC 1231

Category:

Principal judgment

Parties:

The State of New South Wales (Plaintiff)
JS (Defendant)

Representation:

Counsel:
Z Heger (Plaintiff)
S McGee (Defendant)

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

File Number(s):

2020/00152776

Publication restriction:

(1) There is to be no publication of the name of the defendant, or of any material which might tend to identify him, including but not limited to a photograph, film or video recording.
(2) The defendant is to be referred to in connection with these proceedings, including in any published Court list, by the pseudonym “JS”.
(3) Orders (1) and (2) are to apply throughout the Commonwealth of Australia.
(4) The witness XXXX is to be referred to in connection with these proceedings by the pseudonym “SS”. This order is to apply throughout the Commonwealth of Australia.

Judgment

1. The defendant is currently subject to an interim supervision order (ISO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) with conditions directed to containing his risk of sexual offending against children. The ISO expires at midnight on 21 September 2020. The State seeks a 3 year extended supervision order (ESO) by way of final relief.

2. The reasons for placing the defendant on the ISO are set out comprehensively and with clarity in the decision of Wilson J in State of NSW v JS (Preliminary) [2020] NSWSC 823.

3. Since that judgment, the defendant has been assessed by the court- appointed experts, Dr Ellis, psychiatrist, and Ms Dewson, psychologist. Their opinions have added further significant weight to the evidence already available as to the risks the defendant poses and the reasons why the package of conditions proposed by the State are appropriate (and indeed necessary) to address the risk he poses to the community, and in particular to young children and their families.

4. The test to be met is that I must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: s 5B of the Act. In my view the evidence clearly establishes that test is met, and I find for the reasons set out in this judgment, that it has been met.

Extent of the dispute

5. The defendant concedes that he meets the statutory criteria for an ESO and does not oppose the making of an ESO pursuant to s 9(1) of the Act on discretionary grounds.

6. However, he opposes the making of an order of 3 years, contending that the appropriate length is no more than 15 months.

7. He also submitted through his counsel that the conditions should be less stringent than those sought by the State. In particular he submitted that he should not be subject to electronic monitoring and should not have to provide or be supervised via a schedule of movements.

8. A number of other proposed conditions were disputed. Some were the subject of agreement after argument; many remained in issue and require adjudication.

9. Given the ambit of dispute, I will focus my reasons on those parts of the evidence that address the question of the length of the ESO and the appropriateness of the conditions proposed.

Evidence

10. The State relied upon five affidavits of Ms Najjarin, solicitor, sworn 12 May, 9 June, 10 June, 23 July and 31 August 2020 which annexe and/or exhibit salient background materials and assessments.

11. The State also relied upon an affidavit of Rochelle Pateman affirmed 14 August 2020, which provided an updated risk assessment report. Reliance was also placed on an affidavit of Kelli Grabham affirmed 31 August 2020. Ms Grabham gave evidence and was cross-examined. Ms Grabham is the HRO Applications and Operational Governance Officer in the ESO team at Corrective Services NSW.

12. The defendant tendered two affidavits affirmed by him on 5 June and 28 August 2020. The affidavits to my mind seek to paint the defendant as a victim of other people’s unreasonableness. They show immaturity and deflection of responsibility for his actions and conduct. He somewhat arrogantly saw fit to criticise both court-appointed experts for the way they conducted their assessments and then sought to “rewrite” his account in a self-absorbed and immature fashion. He gave short oral evidence which was also frankly unimpressive and took a similar tone to his affidavit, for example, he “did not like” what the experts had said about his not revealing his offending to friends with children, although this was in fact a correct observation by those experts. He also relied upon an affidavit of his mother, dated 28 August 2020 and an affidavit of his solicitor, Ms Manio, affirmed 28 August 2020. His mother refers to some improvement in family relationships which is a positive feature to some extent.

13. The reports of the Court-appointed experts; Dr Andrew Ellis, forensic psychiatrist dated 5 August 2020 and Ms Chelsey Dewson, psychologist, dated 4 August 2020 were tendered for the assistance of the Court. On 2 September 2020, the experts gave evidence concurrently.

Background Facts

14. I have extracted the following background facts from the judgment of Wilson J:

“The Defendant’s Criminal Background, and Offences

[11] The defendant was born on 5 July 1992. At the time of the application, he is a 27 year old Aboriginal male, with a history of sexual offending.

[12] The defendant’s criminal history prior to the commission of the relevant offences began in 2012; it relates entirely to sexual related matters.

[13] On 28 February 2012, the defendant was sentenced by Magistrate Hawdon at Wyong Children’s Court in relation to two counts of aggravated indecent assault and two counts of aggravated sexual assault, committed between 2006 and 2008. The victim was the defendant’s sister, younger than him by about two years.

[14] At the time of the commission of the offences, the defendant was aged 14 to 16 years, and his sister about 12 to 14 years of age.

[15] The first incident occurred on a day in the period July 2006 to December 2006, when the defendant was sitting on a lounge in the family home with his sister next to him. He exposed his penis and told her to touch it; she refused. The defendant grabbed his sister’s hand and placed it on his penis, moving it up and down until she moved her hand away.

[16] He then told her to “suck on” his penis. When she refused, the defendant took hold of his sister’s head by placing his hand on the back of it, and pushed her head towards his exposed penis. The victim resisted, but the defendant continued to push her head down towards his penis, until her face was at his stomach. The siblings’ younger brother walked into the room, and the defendant let his sister go and pulled his pants up.

[17] The victim was 12 years old at the time of this incident.

[18] On the next occasion, on a day between June 2007 and July 2008, the victim was sitting in the lounge room of the family home when the defendant entered the room and sat down beside her. He began to rub the inside of his sister’s leg. She got up and went to her bedroom, closing the door and lying down on the bed.

[19] The defendant came into the bedroom and shut the door behind him. He sat down on the bed and began rubbing his sister’s leg again, before taking her lower clothing off, followed by his own. He lay on top of her and, despite her resistance, had penile – vaginal intercourse with her. He continued for a time before getting up, putting his pants on, and leaving the room.

[20] The victim was aged 12, 13, or 14 years old.

[21] The second offence of aggravated sexual assault occurred on a day between October 2008 and December 2008, when the victim was aged 14 years. The defendant was at home with his sister and brother. He told his younger brother to go into his bedroom and play X-Box, and he complied. The victim stood up to go and get a drink, but the defendant grabbed her by the wrist and pulled her into his bedroom. Pushing her onto his bed, the defendant pulled his sister’s clothes off. She told the defendant to stop, but he lay on top of her and began to kiss her.

[22] The victim tried to get away, moving her face away from the defendant, but he held her in position with a hand either side of her head. Removing his underwear, the defendant had penile-vaginal intercourse with his sister. The intercourse continued, with the defendant holding the victim down, until the defendant’s younger brother came into the room. The defendant jumped up. Later that day, the defendant told his sister that she should not tell anyone about what had occurred as she would be the one to get into trouble.

[23] Around Easter 2010, the victim ran away from home, spending nights at her grandmother’s home, and then at the home of a friend. When staying with the latter, she told her friend that her brother had sexually assaulted her on a number of occasions. The defendant’s mother was informed, and she confronted the defendant. He admitted that he knew what he had done to his sister was wrong; he said that that was why he had stopped. He described feeling “dirty, horrible, ashamed, repulsed by myself”. He apologised to his sister.

[24] The victim later spoke to a school counsellor about what had happened to her, and the authorities were notified. The defendant was arrested on 2 December 2010.

[25] A Psychological and Specialist Services Report recommended that the defendant would benefit from active engagement in a Sex Offender Programme in a controlled setting - ideally a custodial setting - but such a programme was not made available, as the defendant was sentenced to community based bonds. Good behaviour bonds for a period of 12 and 18 months respectively were imposed, concluding on 23 August 2013.

[26] As a result of these offences, the defendant was listed on the Child Protection Register.

[27] The other entries on the defendant’s criminal history are for offences of failing to comply with reporting obligations (three counts), and further child sexual assault offences, being the index offences.

[28] On 1 May 2014, the defendant was charged for failing to report as required of him as a person on the Child Protection Register. The breaches related to the defendant’s failure to advise police of a change of address and other contact details, or that he was living with children. When police finally located the defendant, he told them that he had been living with his girlfriend and her three young children. The index offences related to two of the children.

[29] In June 2014, the defendant pleaded guilty to three offences of failing to comply with his reporting obligations, contrary to s 17(1) of the Child Protection (Offenders Registration) Act2000 (NSW). His explanation for the breaches was that he “got caught up” with his “new girlfriend and just forgot”. He was sentenced to 12 months imprisonment with a non-parole period of two months, although the State Parole Authority revoked his parole prior to him entering it, on the basis that he had no suitable accommodation in the community.

[30] The relationship that had led to the defendant “forgetting” to abide by his reporting obligations commenced in July 2013.

[31] One month later, in August 2013, the defendant moved into the home of his new partner, a woman considerably older than him, and who had three young daughters, aged 7, 8, and 10 years old at the relevant time. The age difference between the defendant and Ms D was about 23 years, the defendant being 21 years old at the time of the index offences, and Ms D being 44 years of age.

[32] The defendant lived with Ms D and her children from August 2013 to May 2014. He sometimes cared for the children in Ms D’s absence. Two of Ms D’s daughters were the victims of the offences; LD, aged seven years old at the time of the offences, and SD, aged eight years.

[33] The offences came to light around 12 May 2014, when Ms D accessed the defendant’s Facebook account and saw private chat messages that he had sent to a friend. The messages were of a sexually explicit nature and referred to the defendant being sexually attracted to Ms D’s young daughters. The defendant detailed his sexual fantasies concerning the children, and his desire to engage in sexual intercourse with them, as well as referring to assaults committed upon them. The Facebook “chat” forms part of the evidence before the Court, but it is not proposed to reproduce it here; it is both graphic and highly disturbing.

[34] Having seen this material, Ms D spoke to her daughters, and two of the children disclosed that the defendant had indecently assaulted them. Ms D reported the matter to police the next day.

[35] On 3 June 2014, LD was interviewed and disclosed three offences of aggravated indecent assault, charged contrary to s 61M(2) of the Crimes Act 1900 (NSW).

[36] The first of the offences occurred when LD was at home sitting on the lounge watching a movie with Ms D and her two sisters, covered by a blanket. The defendant placed his hand inside her shorts, and rested it on her vagina, on the outside of her underwear. The victim told him she needed to get a drink and got off the lounge and left the room.

[37] The second offence, included on a Form One document, occurred when LD got into bed with her mother and the defendant. When L’s mother got out of bed and left the room, the defendant put his hand on her vagina on the outside of her underwear. His hand, “stay[ed] put”. She got out of bed sometime later, and went to make the defendant a coffee.

[38] The final offence relating to LD was disclosed by SD. SD described dancing in the defendant and her mother’s bedroom, while the defendant was in bed with LD. LD was on top of the sheet, and the defendant was under the blanket. The defendant grabbed LD’s hand and made her touch his penis on the outside of his clothes and blankets, holding her hand there.

[39] On 3 June 2014, SD was also interviewed and disclosed five offences of aggravated indecent assault, also charged pursuant to s 61M(2). SD recalled the first time that the defendant touched her on her vagina was when she was in the lounge room of the family home. He picked her up and held her in a straddling position with one of her legs positioned on his back, the other on his stomach, and her buttocks on his hip. He touched her on her vagina using a swirling motion on the outside of her clothes. He did this for about a minute.

[40] The day after this event, SD was in the kitchen. The defendant walked in and picked her up, and began touching her vagina in a swirling motion on the outside of her “onesie”. This lasted for about 10 seconds. The offence was before the sentencing court on a Form One document.

[41] After breakfast on this same day, SD was in the dining room of the family home and her mother was in the laundry. SD had changed into a dress, and the defendant approached her and picked her up. He then touched her vagina with his index finger in a swirling motion on the outside of her clothing. After a couple of minutes, he put her down and she left the room. This offence was also before the sentencing court on a Form One document.

[42] Later that day, SD’s mother went to work, leaving the defendant to look after SD and her sisters. SD was playing in the garage. The defendant came in and picked her up. She attempted to hold the dress between her legs as he picked her up, but was unable to do so. The defendant touched her vagina, underneath the dress but on top of her underpants. He tried to push his finger into her vagina, but was not able to do so, and put SD down.

[43] On another occasion, SD recalled standing at the bench washing up dishes in the kitchen of her home. The defendant walked past her, stopping and squeezing her on her breast with his hands on the outside of her clothing, and telling her she was a “good girl”.

[44] The offences all occurred between December 2013 and January 2014.

[45] The defendant ultimately pleaded guilty to four counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) on indictment, with further four offences taken into account of a Form One document. He was sentenced by Judge Haesler SC at Campbelltown District Court on 15 December 2015 to a term of 6 years imprisonment, with a non- parole period (“NPP”) of 4 years.

[46] In his remarks on sentence the sentencing judge observed that the defendant had failed to notify police of his changed address, as he was required to do as a registered person, motivated by the “entirely accurate assumption that, had he disclosed his offending history to Ms D, she would have ended their relationship”. His Honour noted that the children were young, the offences occurred in their home where they were entitled to feel safe and protected, and that:

“The offender exploited his relationship with their mother and with the children. He was at the time their carer…this position of trust and authority meant he could use ‘psychological coercion’ to commit the offences”.

[47] His Honour concluded that, whilst each act was sexually exploitive of the child, it fell toward the bottom of the range of objective gravity, although “certainly not at the bottom”. The real possibility of psychological harm to each victim remained. The sentencing judge took into account the defendant’s past sexual offending, noting that it was “relevant to determining the proper sentence” as:

“it indicates that this offence is not an uncharacteristic aberration, rather it shows a worrying trend”.

[48] Further, it was concluded that, “it is clear [the defendant] has a problem with sexual attraction to young girls”.

[49] His Honour considered that:

“a more severe penalty is warranted with additional focus on retribution, deterrence, and the protection of the community”.

[50] The defendant gave evidence on sentence, and acknowledged that he had a serious problem, and that his actions involved a serious breach of trust. The court accepted that the defendant was remorseful, and anxious to not reoffend.

[51] A psychological report prepared by Ms Durkin was also before the sentencing judge. Ms Durkin took a history from the defendant of having himself been subjected to sexual abuse as a child, and she considered that he displayed symptoms consistent with Post Traumatic Stress Disorder (“PTSD”). Ms Durkin assessed the defendant as posing a high risk of sexual re-offending. She recommended that he undertake the CUBIT programme while in custody”.

Risk Assessment Reports

15. The relevant contents of the risk assessment report of Rochelle Pateman in December 2019 is set out in the judgment of Wilson J at [53]-[93]. The report as summarised by Wilson J contained significant historical matters.

Of particular note is the defendant’s dishonesty with the mother of his victims which gave him opportunity to commit the index offending - see [63]-[64] below:

[53] On 16 December 2019, Rochelle Pateman, Acting Senior Psychologist of the Serious Offenders Assessment Unit, Corrective Services New South Wales (“CSNSW”) prepared a Risk Assessment Report in relation to the defendant, pursuant to s 6(3)(b) of the Act.

[54] Ms Pateman met and assessed the defendant on 2 December 2019. All collateral information was available to her.

[55] At the time of the interview, the defendant was aged 27 years. He presented as a healthy looking man who had appropriate eye contact and spoke in a clear, respectful, measured manner. He appeared cognitively intact having maintained concentration throughout the course of the interview.

[56] He reported a history of anxiety and depression and had been recently recommended anti-depressants.

[57] The defendant gave a history to Ms Pateman of being the eldest child of his parents union, with one younger sister. He reported that his father abused alcohol and was violent towards his mother, who ended the relationship and relocated the family to the Central Coast when the defendant was two years old. His mother entered a new relationship when he was about six years of age; she and his step-father were both supportive and loving towards him, and have two children together, aged 19 and 10 years.

[58] The defendant’s father was absent from his life from the age of two until he was about nine years old, after which his parents shared custody of him and his younger sister. The defendant reported that his father died by suicide when he was aged 11 years, and that he blamed himself for his father’s death, because he had not seen his father the weekend before his death. Following his father’s death, the defendant said that he struggled to cope, withdrawing socially.

[59] The defendant gave accounts of having been sexually abused during his childhood and adolescence by two separate abusers. The first was a 16 year old female neighbour who, he said, forced him to perform cunnilingus every few days for about a year. He was aged six years. The second was another neighbour, a 17 year old male, who forced him to engage in anal sex and fellatio when aged about 11 years, causing him significant distress and ongoing trauma.

[60] The defendant reported performing well academically in primary and secondary school. He recounted some bullying during his high school years, describing himself as a “social outcast”. He said that he was suspended on three or four occasions for aggressive behaviour in primary school; this subsided upon entering secondary school. He completed his High School Certificate (HSC) in 2010 while undergoing criminal proceedings for the sexual offences he committed against his sister, and when living with his grandparents.

[61] When at school, the defendant worked casually for six to 18 months as a labourer for his step-father in the period 2006 to 2011, and as a kitchen hand at two different fast food restaurants in 2008 to 2009. After completing his HSC, he studied sound engineering at TAFE, but withdrew due to feeling overwhelmed and struggling with low self-esteem.

[62] The defendant reported two significant relationships in his life. The first was his high school girlfriend, whom he dated from year 11 to a few months after graduation in 2011. He said that his girlfriend had been physically abusive but, despite this, the defendant said that when she ended the relationship, he was distressed and engaged in self-harming.

[63] Upon completing high school the defendant said that he moved from his grandparents’ home into shared accommodation. During this time, he reported an increase of feelings of loneliness and isolation up until he met his most recent partner (Ms D) via an online Facebook fan page. After meeting in person within a month or so of talking online, the defendant moved into her home and lived with her and her three daughters from August 2013 to May 2014 when he was arrested, initially for the breach of his Child Protection Register (“CPR”) obligations and later the index offences.

[64] He claimed that “he had told his partner of his past sex offences and had forgotten to advise the Police of his change of address” as required by child protection registration requirements. Ms D, however, said that the defendant had not informed her that he was on the Child Protection Register and did not give her “full details of his historical sex offending”.

[65] As to his health, the defendant reported some partial deafness and past sporting injuries that had required medical intervention. He denied any current medical issues.

[66] Ms Pateman recorded the defendant’s psychiatric history, noting his prior diagnosis of depression, anxiety and insomnia at the age of 18, issues which may have been present since his father’s death. Some months after his Childrens’ Court appearance for the offences against his sister, in February 2012, a provisional diagnosis of mild depression and adjustment disorder was made.

[67] The defendant denied any thoughts or plans to self-harm or suicide since those incidents, and denied any ongoing mental health issues. His mental state appeared to be stable.

[68] The defendant said that he was forced to re-commence his anti- depressant medication upon moving into Nunyara COSP, in compliance with a Justice Health prescription current on release from custody. He said he would seek a medication review with a general practitioner in the community.

[69] Ms Pateman referred to the defendant’s claim to have a chronic history of alcohol abuse in his younger years, at times when he felt lonely and unhappy. He reported that “his alcohol use increased again when he began experiencing relationship discord, low moods and sexualised thought regarding children”, believing that “his alcohol use may have lowered his inhibitions and perpetuated his offending behaviour”.

[70] The defendant also reported having experimented with Cannabis during his late teens but denied any other drug use.

[71] Of his supervision in the community Ms Pateman noted that the defendant has previously been subject to two Children’s Court bonds pursuant to s 33 (1)(B) of the Children (Criminal Proceedings) Act 1987 (NSW), from 2012 to 2013. He completed those bonds without incident, but was subsequently convicted of three counts of failing to comply with CPR reporting obligations, for failing to notify a change of address and telephone number, or that he was living in a house with children.

[72] In custody, the defendant was mainly managed in protective custody as a Special Management Area Placement (or “SMAP”) prisoner, and at times in Protection Limited Association Area (or “PLRA”) protective custody. The defendant has not incurred any institutional misconduct charges since his incarceration. He participated in some custody-based employment during his sentence; no negative case notes are documented in relation to his work ethic while employed.

[73] Although the defendant agreed to be referred to a custody based sex offence programme in March 2016, and was found suitable for admission to the High Intensity Sex Offender Program (“HISOP”), he declined to participate in it as “he was already into his parole period and [he thought] the programme would benefit another offender more”. It was only after having been refused parole by the State Parole Authority until such time as he had participated in a sex offender programme that he agreed to participate.

[74] The defendant entered HISOP in September 2018 and completed it in October 2019. He said that he had initially struggled to be open about his offending in a group setting due to anxiety, shame and embarrassment surrounding his offending, but completed all task work, attended all sessions as required, and appeared motivated to gain benefit from treatment. Ms Pateman noted that the defendant’s “active group participation was observed to increase over time”, while “his input reflected insight into relevant factors for his treatment”.

[75] The defendant was recorded as believing that “HISOP has assisted him to understand his offence pathways and the importance of self-care”. He reported that “his attitude towards his offending has changed since participating in the ‘offence pathway’ module”, and that “he can now recognise that he was not adequately dealing with his problems and they were progressively building up”. He reported “an increased awareness in the role of alcohol in his offending and as a maladaptive form of coping” and reflected “that he entered into an unhealthy relationship too quickly and isolated himself from other supports”. He reported “gaining insight into the severity of his offending rather than minimising the effect of his behaviour on the victims” and “identified his current most important risk factors” as poor coping skills, low self-esteem, sexual thoughts about children, and unhealthy relationships, whether romantic or otherwise.

[76] The defendant referred himself to the “Explore, Question, Understand, Investigate, Practice, Succeed” programme (“EQUIPS”) but did not meet the criteria because of his alcohol and drug score.

[77] Various risk assessment tools were administered to the defendant in custody. An assessment in February 2016 using the Level of Service Inventory – Revised (“LSI-R”), an actuarial assessment tool measuring the risk of general offending, placed the defendant in the “low-medium range of risk/needs”, although the result was adjusted to medium-high range of risk/needs, to take into account both a psychological assessment of December 2015 which found the defendant to pose a high risk of sexual offending, and the defendant’s “candid admissions of having a sexual attraction to pre-pubescent females aged seven and older”.

[78] The risk of sexual re-offending was assessed in November 2016 using the Static Risk Factors actuarial assessment tool (“STATIC-99R”), a tool directed to measuring the risk of sexual recidivism. The result returned at that time (5) was regarded as potentially inaccurate by the failure to incorporate the offences that were taken into account when sentence was imposed by Haesler SC DCJ.

[79] Ms Pateman readministered the STATIC-99R and found the defendant’s score to be 6, that being a score previously described as placing an offender “in the high risk category relative to other male offenders”. The most recent version of the STATIC-99R Manual categorises scores of 6 and above as corresponding to a “Well Above Average” risk, or “Level IVb”.

[80] Ms Pateman observed that the rate of recidivism for individuals with a score of 6 “is estimated to be about four times higher than that of the ‘typical’ sex offender”.

[81] Assessment of dynamic risk factors, by administration of the “STABLE- 2007” measure, returned a score of “9”, which is suggestive of “a ‘Moderate density’ of criminogenic needs relative to other male sexual offenders”. The defendant’s capacity for stable relationships was of significant clinical concern in utilising this tool, as was “Deviant Sexual Preference, Sex as Coping, Poor Problem Solving Skills, Significant Social Influences, General Social Rejection and Emotional Identification with Children”.

[82] Combining the score results from both the STABLE-2007 and STATIC-99R tools, an “overall risk level” of “well above average” was returned.

[83] Ms Pateman opined that a number of dynamic factors are relevant to risk, including “intimacy deficits”. The defendant has reported two significant relationships in his life, both of an unhealthy nature, leading to feelings of loneliness and inadequacy, and reduced problem solving ability. Ms Pateman observed that the defendant “is yet to demonstrate the ability to maintain a stable and mutually supportive intimate relationship”, and “lacks a secure adult attachment” outside immediate family members.

[84] Although the defendant does not currently appear to have any negative influences in his life, Ms Pateman believes that “he would be considered increasingly vulnerable when experiencing a sense of general social rejection, isolation and loneliness” and when in this mind frame, “he may also withhold his status on the CPR and criminal history when connecting with new people to reduce the chance of being rejected by them”.

[85] The defendant’s capacity for sexual self-regulation is also a relevant factor in assessing his risk of sexual offending, as he has acknowledged sexual attraction to prepubescent females, such attraction being more intrusive when the defendant is under stress. Historically, he is noted to have “been sexually preoccupied with a high sex drive and [to have] used sex as his primary coping strategy”.

[86] Poor problem solving is another risk factor. Prior to completing HISOP the defendant appeared to lack problem solving skills and when experiencing problems he would have increased sexualised thoughts about children, expressing the viewpoint that children involve “less drama” than relationships with adults. Although the work undertaken by the defendant in HISOP was thought to demonstrate an increased insight into this problem, Ms Pateman opined that:

‘he currently appears to still have deficits in his ability to generate/evaluate alternative ideas, choose a course of action and evaluate the outcomes’.

[87] Whilst the defendant has a number of short-term plans upon release, Ms Pateman noted that “he lacks any long-term plans regarding accommodation and employment”, and seemed to be unrealistic about the potential restrictions and problems that might arise due to his criminal history.

[88] Emotional identification with children is another potential risk factor. The defendant’s sexual attraction to children and apparent identification with them could his heighten risk of reoffending. Although the defendant appears to have limited adult friendships he claimed to be attempting to reconnect with friends from school and establish new adult friendships. Despite this, Ms Pateman believes the defendant is emotionally immature. She considers this to be a feature that requires further assessment once the defendant has spent a longer period in the community.

[89] Some “protective factors” were identified, which decrease risk factors in the community. These include: the defendant’s ongoing contact with his family, who have expressed a desire to continue to support him emotionally; plans to return to the Central Coast area, with some steps taken to that end; positive goals the defendant has set for himself, such as securing employment to ensure stable income, obtain a motorcycle licence to have a mode of transport, joining a local rugby or cricket team, studying a language, and training as a counsellor.

[90] Ms Pateman also referred to the defendant’s wish “to engage with a private psychologist to address unresolved grief and loss issues around his father’s suicide” and his willingness to comply with any other recommended support, including accepting drug and alcohol counselling.

[91] In summary, Ms Pateman concluded that the defendant is man with a risk of sexual re-offending estimated to be well above average, and who poses a medium-high risk of committing further offences in the future.

[92] The most likely scenario for further sexual offending in Ms Pateman’s opinion would involve the defendant offending against a prepubescent female victim encountered through friends, family or via a future relationship, in circumstances where he failed to disclose his offence history or status on the CPR due to a fear of rejection. If the defendant were to feel socially isolated, or stressed, he may start to experience increasingly intrusive sexualised thoughts about children, and gravitate to a child or children, grooming the child with positive attention or threats around disclosure, with offences of progressively increasing gravity possible. Alcohol use would heighten risk.

[93] Risk management strategies considered by Ms Pateman as potentially useful in the event that the defendant is under supervision in the community include:

(1) participation in a community-based sex offender maintenance programme provided by Forensic Psychology Service (“FPS”) in Sydney;

(2) referral to a local drug and alcohol service to engage in substance related intervention;

(3) careful scrutiny of social contacts with the aim of increasing pro-social influences,

(4) monitoring to ensure that the defendant is not engaging in relationships that endorse sexual abuse, including by supervision of his access to the internet and electronic devices;

(5) unannounced home visits and drug and alcohol testing;

(6) electronic monitoring and a requirement that the defendant provide a schedule of his daily activities, to potentially assist in improving decision-making skills and limiting access to potential victims;

(7) preventing unsupervised access to children;

(8) encouraging participation in education or employment to continue to build autonomy and self-esteem;

(9) psychological intervention regarding unresolved grief issues; and

(10) ongoing support following possible perceived rejection from a social network or poor coping.”

16. In her affidavit of 14 August 2020, Ms Pateman made no changes or additions to those recommended risk management strategies. A number of the risk management strategies that she identifies underpin the conditions that the State has proposed.

17. Ms Pateman confirmed that JS had not been breached by Community Corrections, that he moved from the Nunyara COSP to private accommodation in Glebe in April, and that his DSO noted that he was difficult to motivate to engage in appropriate physical activity and to search for appropriate accommodation on the Central Coast as per his plan to relocate there. Ms Pateman adhered to her opinion that the defendant still presented as “well above average” overall risk level.

18. A number of matters Ms Pateman identified as risk factors provide a basis for the need for careful deployment of risk management strategies. The defendant’s sexual attraction to children, his intimacy deficits, his vulnerability to isolation and loneliness, his sexual preoccupation particularly when under stress, and poor problem solving and lack of any long term plans regarding accommodation and employment are all matters clearly identified as potential risk factors requiring both monitoring and strategies to alleviate them.

Evidence of Dr Ellis psychiatrist and Ms Dewson psychologist

19. The evidence of Dr Ellis and Ms Dewson was very helpful, not only to further explain their views relevant to the question of the length of the ESO, but also in understanding from a practical point of view, how and why certain conditions are a necessary part of addressing both the static and dynamic risks that the defendant presents.

20. As Dr Ellis succinctly noted “the main assessment of risk, the main risk factors are his diagnosis of a paraphilia disorder and historic behaviours”. [1]

    1. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 24, lines 1-6.

21. In his report, Dr Ellis described the defendant’s paraphilic disorder as paedophilia which is a “chronic relapsing condition”. [2]

    2. State of NSW v JS, Report of Dr Ellis dated 5 August 2020.

22. Dr Ellis further explained in his oral evidence why he diagnosed the defendant as having paraphilia disorder:

“…The application of the DSM5 would be looking at the person as they present currently and you would include the historical data within it. So the other caution about using DSM5 is that it is an instrument designed primarily for research purposes and it makes a specific caveat about its use in medico legal settings, particularly because of issues like this. What you have if you look at the overall literature about paraphilic disorders is that most people with a paraphilic onset in their teenage years, the behaviour onsets in the teenage years usually around the time of puberty. Again, the DSM guides clinical discretion.

If you have someone who begins to have sexual arousal to non-usual targets in their teenage years you generally are cautious about concluding a diagnosis at that point. However, in this case, you now have the similar behaviours happening at the time when the person is clearly an adult and there is clearly a wide age gap between the person and the victims. In terms of the diagnosis according to DSM5 it is relatively straight forward in this case. Although I can see the, if you were to approach for DSM in a legalistic sense it may lead you to conclude that you couldn't diagnose paraphilia in this circumstance.

The other thing to also take into account that it is the fantasies and urges and not just the behaviours that contribute to the diagnosis. So JS reported to me that he had fantasies for a considerably longer period of time and masturbatory activity associated with those fantasies for a longer period of time than the period of time of offending. So in my view you can diagnose with reasonable medical certainty a paraphilic disorder.” [3]

3. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 32, lines 42-33; p. 33, lines 1-16.

23. Dr Ellis expressed a concern that the defendant continued to show limited insight into his offending. In his interview in July 2020, the defendant’s insight into his motivations for the past offences “showed limited descriptive ability and his insight into his previous treatment at my interview showed a limited understanding of strategies for managing sexual behaviour”, and “the reports of his progress in the sex offender treatment program indicated the clinicians there thought that there was further work yet to do”. [4] Dr Ellis was concerned that the defendant was not able to articulate how he would use the things that he had learnt during the program and apply them to his particular situation. [5]

    4. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 24, lines 31-36.

    5. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 26, lines 28-31.

24. Dr Ellis noted that another issue indicating limited insight was that when the defendant was asked about the offences, he was able to recount only a limited recollection of them and was unable to explain in detail, how he came to be in the situations where he offended. [6]

    6. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 24, lines 46-49.

25. Dr Ellis was concerned that the defendant’s lack of insight was evidenced by him using terms such as that he “felt up” the victims, describing it by the use of a colloquial term that diminished the activity. [7]

    7. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 25, lines 40-41.

26. Both Dr Ellis and Ms Dewson agreed that the defendant forming a romantic relationship with a person with children was a significant situation of risk for him. [8]

    8. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 36, lines 8-9, 13.

27. Both Dr Ellis and Ms Dewson provided helpful analyses as to the role and purpose of electronic monitoring. Dr Ellis explained:

“I think while the general research around electronic monitoring is fairly limited, there is some evidence that it assists people if it is coupled with a rehabilitative program, it assists people in attending on those rehabilitation appointments and it assists people in motivating to attend to the activities that they are required to under their period of supervision and I think given the level of risk that I assessed JS to present with there was reasonable grounds to use that in order to motivate his participation and monitor his participation.

I would say that as he establishes a clearer routine in the community, establishes good working relationships with his supervising officers and clinicians involved in his management that the electronic monitoring ought to reduce and be replaced by physical monitoring so just marking that he has attended appointments”. [9]

and:

“In my view it is probably not related to any single risk factor. It serves two purposes, as I discussed before. One is it appears to motivate people to attend on rehabilitation and people who participate in rehabilitation have reduced rates of offending. So it has a direct - or indirect effect in that way. The second is to monitor for signs of relapse and monitor for potential problems. So it is not - it is a more generic intervention. It is not really specific to sexual offending per se”. [10]

9. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 39, lines 15-28.

10. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 58, lines 24-30.

28. Dr Ellis explained why scheduling was important, not only to pick up whether the defendant was not attending a scheduled appointment, which would be of concern, but to encourage him to engage with pro-social groups or pro-social family members outside of the professional supports that form part of his risk management plan. It works with other interventions:

“I would consider schedules to be a general intervention. Scheduling is a common mental health intervention for any kind of mental health conditions in terms of having establishing regular patterns of behaviour, assisting with forward planning, assisting with problem solving, assisting with how you encounter obstacles to your schedule and how you manage stress around those.

So scheduling I would consider more a generic intervention that has overall impact on a person's level of risk as opposed to very sort of specific interventions. For example, in terms of sex offenders a very specific intervention would be medications that lower libido which targets a very individual risk factor or cognitive strategies to deal with sexual fantasies which targets a very specific risk factor. Interventions like scheduling or appropriate employment or education are more generic but they are nonetheless important, though.” [11]

“How I would see schedules operating is that it provides a kind of mesh, if you like, into which the other interventions fit into. I see these interventions working in synergy rather than in isolation and I think that in particular for JS who has had problems with isolation, spending idle time, and difficulties with problem solving and stress management in the past, that scheduling will help with those kind of problem areas.” [12]

11. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 60, lines 41 to p. 61, line 5.

12. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 62, lines 37-42.

29. Ms Dewson agreed, adding:

“… I think that it is probably more general. I think that it can assist in terms of risk factors such as isolating and unhelpful relationships. But it is probably more in terms of generally managing his risk rather than being a specific part of a risk factor.” [13]

13. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 62, lines 3-6.

30. The defendant’s dynamic risk factors are relevant to a number of considerations, including whether there should be a condition that pre- authorises the defendant spending time with his sister supervised by family members. Both Dr Ellis and Ms Dewson had reservations about that because the level of risk of the defendant can fluctuate over time. Dr Ellis said:

“From my point of view a discretion would be preferable. I think this is on the basis that, one, I think the relationship with his sister and other family members is particularly sensitive and would form a particular if not risk to an individual a risk of mental state decompensation in JS but as a general rule I think people's ability to supervise can fluctuate over time and I think having a discretion around that would be important. I think also that's in some ways having a standing order limits the people who might be in a position to supervise so actually in some ways it might actually limit his ability to have contact, appropriate supervised contact with his sister”. [14]

14. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 43, lines 36-46.

31. Ms Dewson agreed adding:

“… I agree and particularly in terms of what I consider to be symptom and risk factors which are those things that can change quite rapidly. They are the type of things that would need to be monitored and I think because of that the discretionary approach would be my preference also”. [15]

15. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 43, lines 57; p. 44, lines 1-4.

32. In respect of the need to have a condition that is directed to management of potential drug use and its oversight, Dr Ellis explained that he considered such a condition necessary even though there has been no history of drug abuse:

“Yes I do. He has an alcohol use disorder and that's in remission currently and that's positive but it's in remission while he is under supervision and if a person has one substance use disorder they are at risk of transferring that to other substances, particularly if they are under stress and may use substances to cope with stress, that can further impair someone's judgment and increase their risk.

So I would see it of utility but as part of our overall strategy around substance use predominantly monitoring for alcohol use but monitoring for other substances would be of benefit to him in remaining abstinent and benefit for risk management in identifying it early if it became a problem.” [16]

16. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 45, lines 31-39.

33. Ms Dewson added to this that having reflected on the defendant’s HISOP Treatment Report, one of the warning signs noted by that report that may occur was use of illicit drugs. Ms Dewson noted that one of his treatment providers had concerns that this could be a potential problem in the future and so Ms Dewson agreed that it would probably be helpful in terms of managing the defendant’s risk to have him monitored in that regard.

34. Dr Ellis maintained a concern that the defendant’s safety in the community was still unproven because the strategies learned in HISOP had yet to be tested, given COVID-19 restrictions meant less usual activities and less potential access to unsupervised children:

“He hasn’t been placed in a situation where he necessarily had to implement them. So I wouldn't say that he didn't but that his presentation in the interview with me was of someone who may struggle to implement them in a situation where he was potentially under stress or had strong sexual urges that he felt some degree of interest in acting [on] it.” [17]

17. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 49, lines 25-29.

35. Dr Ellis identified that the problem was that whilst the defendant was able to “list” rather than “detail” the strategies he had been given, he was not able to articulate the practicalities of how he had gone about implementing strategies to deal with his fantasies and whether he in fact had done so was uncertain. Dr Ellis also noted the defendant’s initial reticence to participate in the available treatment program.

36. Dr Ellis also had concerns that the defendant had difficulty with his self- identity and that historically that had certainly been a problem:

“I think in terms of the self-identity, it blends into the issues we have previously discussed about insight that his understanding of motivations and, particularly, the motivations around sexual behaviours is an area that would require further attention from him and his treating clinicians.” [18]

18. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 52, lines 21-24.

Why the ESO should be in place for three years

37. Both Dr Ellis and Ms Dewson agreed three years was an appropriate length for the ESO. Dr Ellis explained that his estimate of three years is:

“… based on the types of risks that the defendant presents with and the likely time it would take for there to be an appreciable and more confident opinion that the risk would reduce to a level where something like the child protection register could be sufficient to manage that risk.” [19]

19. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 56, lines 12-16.

38. This is a particularly important observation where the defendant was able to offend against two young children of his partner, despite being on the Child Protection Register. It is in my view quite clear that he deliberately breached his requirements and deliberately neglected to tell his partner the details of his previous offending in circumstances where he must have known that if he had told her, he would not have been allowed to reside with those children and access them in the way he did to sexually abuse them.

39. Given that safety and protection of the community is the primary object of the Act (s 3) and the defendant’s target victims are young children, it is essential that the term of the order is sufficient to recognise, evaluate, foster and monitor the risk the defendant presents. His feelings of unfairness about the requirements of the conditions and the length of the supervision I have determined is required are very much subordinate considerations.

40. The defendant argued that [99] of Ms Dewson’s report suggested an ESO for a term of 12 to 18 months was sufficient. On the contrary, Ms Dewson explained in her evidence that her comment in her report at [99] should not be read as suggesting an ESO of three years was not appropriate. She was simply pointing out that the defendant had the potential to meet the recommendations outlined in her report and if and when he does so, restrictions could be decreased. Ms Dewson explained:

“I am still recommending the 3 years, because that will give him access to those supports and that extended management available whilst he is on the ESO for 3 years.” [20]

There is thus no expert support for an ESO of less than three years and I am satisfied that is the appropriate length.

20. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 57, lines 1-3.

Principles governing imposition of conditions

41. Section 11 of the Act provides for the conditions that may be imposed on a supervision order. It is not an exhaustive list, but includes requirements to wear electronic monitoring equipment, to reside at a particular address, not to engage in particular types of conduct, and relevantly here, to comply with any obligations imposed under Part 3 of the Child Protection (Offenders Registration) Act 2000 (NSW).

42. Section 12 of the Act provides that a person who fails to comply with the conditions of an ESO is guilty of an offence. The maximum penalty prescribed for such an offence is 500 penalty units or imprisonment for 5 years, or both.

43. Given the available penalty for breach of a condition of an ESO, counsel for the defendant submitted that certain potential behaviours by the defendant should not be “criminalised” by the imposition of inappropriate conditions.

44. If those behaviours were irrelevant to risk, I agree. But when they are relevant to risk, and are part of a package that is appropriate to address the psychological difficulties and identify and modify behaviours the defendant has exhibited and continues to exhibit, and provides opportunity to identify when signs of risk that he may engage in offending against children are beginning to emerge, then the primary object of the Act is given necessary effect by the imposition of those conditions.

Conditions 4-7: Electronic Monitoring and schedules of movement

45. The State proposes that the defendant’s movements be electronically monitored. It is well-known that there are stages of electronic monitoring and scheduling and that those stages are graded and a step-down process is engaged in as the risk presented by the person in question lessens. Ms Grabham gave evidence about that process.

46. The defendant complains that he has already been monitored on parole and on the ISO for 9 months. He disputes that he should be monitored any further or to have to provide any schedules. This submission indicates a lack of understanding as to the role of monitoring. It suggests that the monitoring is a “punishment” that should be limited in time. On the contrary it is protective of the community and, to an extent, the defendant himself, to help promote his rehabilitation.

47. The conditions proposed by the State are:

4. The defendant must wear electronic monitoring equipment as directed by the DSO or any person supervising him.

5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

48. The defendant contends that if these conditions are imposed, there should be an inbuilt short term review requirement, because there is, as a general rule, insufficient attention paid to reduction of the stringency of the monitoring requirements and left in the hands of his DSO, it will only be intermittently considered. An alternative wording for condition 4 was proposed:

4. Subject to the operation of Conditions 4A, 4B and 4C, the defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

4A. If the defendant is not charged with any offence of breaching the ESO for a period of 2 continuous months from the date of commencement of the ESO, subject to Conditions 4B and 4C, Condition 4 shall cease to operate to allow the DSO to require the defendant to wear electronic monitoring equipment.

4B. If, pursuant to the operation of Condition 4A, electronic monitoring is removed and, thereafter, the defendant, in the reasonable opinion of the DSO, breaches this ESO the DSO, or any other person supervising the defendant, may direct the defendant to wear electronic monitoring equipment, in which circumstance the provisions of Condition 4 operate again and Condition 4A ceases to operate.

4C. If Condition 4B has operated and the defendant has again been directed, pursuant to the provisions of Condition 4, to wear electronic monitoring equipment, and it later becomes clear, by virtue of an acquittal to any charge based on the conduct that was the catalyst for the operation of Condition 4B, or the DSO forms the opinion that the ESO was not breached nor any other criminal offence committed, then that conduct can no longer be a basis for the operation of Condition 4B, and Condition 4A will again operate to disentitle the DSO from directing the defendant to wear electronic monitoring equipment.

(Adapted from State of NSW v Tannous [2020] NSWSC 292 at [80])

49. The defendant contends that if he must provide a schedule of movements the requirement should be worded as follows:

5-7. “If directed, the defendant must provide a weekly plan (called a “Schedule of Activities”) of his activities and this is to be provided 3 days before it is due to start”.

50. Alternatively, if the State’s conditions 4-6 are preferred, the defendant submits that 7 should be re-worded:

7. The defendant must not deviate from his approved schedule of movements except in an emergency or reasonably unforeseen circumstance”.

51. In my view, the conditions proposed by the defendant are not appropriate. The defendant’s proposed condition 4 takes oversight and discretion away from the DSO who has the task of assessing the defendant’s progress in the community. Given the defendant’s documented multifaceted psychological and social difficulties, imposing an arbitrary time limit or an “absence of offence” based time limit is inappropriate. Both Ms Dewson and Dr Ellis agreed that the defendant’s stability, and thus his risk, is likely to fluctuate.

52. The defendant’s proposed condition 4 is complex and confusing in form and is simply inadequate to properly address potentially fluctuating risk. As explained by Dr Ellis, the monitoring and scheduling is not solely directed to prevent active breaches of the requirements of the ESO, but also to encourage rehabilitation attendance and compliance. In a situation where the defendant has a proven record of dishonesty and subterfuge which enabled him to set up a domestic situation where he accessed and offended against young children, there is a clear need to observe and monitor whether the defendant is in fact doing what he says he is doing and to monitor his psychological state.

51. I consider electronic monitoring and the requirement that the defendant provide a schedule of movements ahead of time is appropriate and indeed necessary to manage his risk. The primary aim of the ESO conditions is not to focus on breach and to ensure any breach is punished, but to set up a package of conditions that keep the community safe from the risk that the defendant presents to children. The purpose of the monitoring and schedule of movements conditions proposed by the State are well explained, in particular by Dr Ellis in his evidence set out at [27]-[28]. In my view those conditions are appropriate and should be imposed.

Condition 15 - Prohibited places

54. The condition proposed by the State is:

15. The defendant must not go to a place if his DSO tells him he cannot go there.

55. The defendant opposes the condition, but if imposed, says that the wording of the condition should be:

15. “The defendant must not go to a place if his DSO tells him reasonably he cannot go there”.

56. The insertion of the word “reasonably” injects uncertainty and ambiguity into the condition. It provides license to the defendant to choose to disobey a requirement and then argue with his DSO as to what was “reasonable” in circumstances where the defendant has a proven demonstrated willingness to breach his obligations under the Child Protection Register and to lie about this, saying he “forgot”. A condition that is apt to be manipulated or argued about introduces an unnecessary level of risk and should not be permitted. The State’s proposed condition should be imposed.

Conditions 19 and 20 - Drug and Alcohol use and compliance

57. The conditions proposed by the State are:

19. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

20. The defendant must submit to testing for drugs and alcohol as directed by his DSO.

58. The defendant contends that the conditions should be:

19. The defendant must not possess or use alcohol, and he must not possess or use prescription medication for psychological or psychiatric treatment other than as prescribed”

20. The defendant must submit to testing for alcohol as directed by his DSO.

59. The defendant argues that there should be removal of any reference to drugs because drugs are not a relevant risk factor for the defendant and the criminal law can deal with general criminality separately from consequences associated with a criminal breach of the ESO.

60. It was also submitted that the compliance requirement should be limited to prescription drugs related to psychological or psychiatric treatment.

61. The defendant’s arguments have no merit. Both experts agreed that monitoring potential use of illicit drugs in addition to alcohol use was useful in managing risk. As Dr Ellis stated:

“… He has an alcohol use disorder and that's in remission currently and that's positive but it's in remission while he is under supervision and if a person has one substance use disorder they are at risk of transferring that to other substances, particularly if they are under stress and may use substances to cope with stress, that can further impair someone's judgment and increase their risk.

So I would see it of utility but as part of our overall strategy around substance use predominantly monitoring for alcohol use but monitoring for other substances would be of benefit to him in remaining abstinent and benefit for risk management in identifying it early if it became a [problem].” [21]

21. State of NSW v JS, Transcript of proceedings, 2 September 2020, p. 45, lines 29-39.

Condition 22 - Drug and alcohol program attendance

62. The condition proposed by the State is:

22. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.20.

63. The defendant contends that the condition should be:

22. The defendant must attend and participate in programmes and courses for alcohol rehabilitation as reasonably directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

64. The defendant contends that any reference to drugs should be removed because drugs are not a relevant risk factor for the defendant.

65. For the reasons articulated by Dr Ellis set out in [61], with which Ms Dewson agreed, any programme reasonably required by the DSO should include drugs as well as alcohol rehabilitation to ensure relevant focus and risk management.

Condition 23 - Premises where drugs and alcohol sold illegally

66. The condition proposed by the State is:

23. The defendant must not attend any place where he knows or should reasonably suspect drugs and alcohol are illegally sold.

67. The defendant opposes the condition in that form, arguing that the insertion of the word “reasonably” may be unfair to the defendant.

68. The State submits that the defendant should be required to turn his mind to the places he visits and his obligations under the ESO rather than being able to argue that he “did not suspect”. Given the defendant’s demonstrated dishonesty and tendency to manipulation, the State’s form of condition is appropriate and should be imposed.

Condition 24 - Non association / supervision arrangements regarding his sister

69. The condition proposed by the State is:

24. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

70. The defendant contends that the condition should be:

“Except as provided for in 24A [condition as proposed by plaintiff]”

24A. The defendant may associate with his sister XXXX on condition that the defendant is accompanied by either his mother, XXXX, his step-father XXXX or grandparent/s XXXX and XXXX at all times”

Consistent with the terms of the interim Child Protection Prohibition Order, and the evidence as to the defendant’s approved supervised attendance at his parents’ home.

71. Dr Ellis and Ms Dewson provided compelling reasons why the DSO should maintain a level of control over this arrangement. Those reasons are set out at [29]-[30] above. The State’s version of the condition should be imposed.

Condition 25 - Non association - role of supervisor

72. The condition proposed by the State is:

25. The defendant must not associate with people that his DSO tells him not to.

73. The defendant contends that the condition should be:

25. “The defendant must not associate with people that his DSO reasonably tells him not to”

74. The inclusion of the word “reasonably” leads to uncertainty and sets up an arena for evasion or non-cooperation and an ambiguity for the defendant to exploit. This will undermine the necessary parameters of supervision, and thus undermine, potentially, safety of the community – here specifically, young children. The State’s wording of the condition should be imposed.

Condition 28 - Clubs

75. The condition proposed by the State is:

28. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation.

76. The defendant contends that the condition should be:

28. “The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation which the defendant knows or reasonably should know may involve association with persons under the age of 18”.

77. The defendant argues that the condition should be limited to clubs/organisations with a risk factor for potential offending relationships.

78. The defendant’s proposal has the potential to remove from the hands of the DSO control and supervision in an important circumstance of potential risk, and to vest control in the hands of the defendant. Given the defendant’s previous dishonesty and manipulation, such a situation should not be allowed. The State’s version of condition 28 will be imposed.

Conditions 44 to 48 and 50 - Medical Intervention and treatment, and storing of information

79. The State’s form of conditions make reference to the need to include all health care practitioners in the proposed conditions.

80. The defendant contends that the conditions should be limited to only mental health care practitioners (and his general practitioner) and that condition 45, which requires the defendant to attend all relevant treatment appointments, should be limited to appointments his DSO “reasonably” tells him to attend. For the reasons already stated in [56] and [74] of this judgment, the word “reasonably” is not appropriate and will not be countenanced.

81. The conditions in issue proposed by the State are as follows:

45. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend, unless he provides a reasonable excuse to his DSO for his non-attendance.

46. The defendant must take all medications that are prescribed to him by his healthcare practitioners, except so far as his healthcare practitioners advise him that it is not necessary to do so.

47. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

48. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

50. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

82. In my view the form of conditions proposed by the State are appropriate. The reasons are frankly, obvious. The defendant should comply with arrangements for his health to avoid stress-related decompensation which is referred to as a risk by Ms Pateman, Dr Ellis and Ms Dewson. The same considerations apply to conditions 46 and 47. Condition 48 is necessary to ensure the DSO can obtain information which would otherwise be protected by patient/healthcare provider privilege. It is obvious why this information should be shared, and that is so that those treating the defendant can remain alert to signs of decompensation or risk-related behaviour.

83. Regarding condition 50, it may become relevant for the DSO to disclose the defendant’s criminal history to a healthcare professional treating the defendant and the DSO should maintain that right and discretion for community safety.

Condition 8 – the obligation to truthfully answer questions from his DSO

84. At the resumed hearing on 14 September 2020 Ms McGee sought a notation to condition 8 which provides:

8. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

85. Ms McGee argued that the condition should have the following notation added to it:

Note: The defendant is not required to comply with a direction given under this condition [8] if he has reasonable grounds to believe that his answer may tend to incriminate him of a criminal offence committed within New South Wales.

86. In support of this position Ms McGee submitted that the notation was required “consistent with the form of condition sought by the State and ordered in the matter of State of New South Wales v Cheney [2020] NSWSC 1231” (“Cheney”).

87. The Crown opposed the notation as inappropriate.

88. The judgment of Garling J in Cheney does not explain or refer to the notation which seems to have been included without contest. In those circumstances there is nothing to guide me as to why the addition of the note was thought to be appropriate in that case.

89. Care should be taken to refrain from seeking to import conditions from one matter to another in applications of this legislation. The risks to be managed vary significantly from case to case. The fact that the State made a proposal for a particular notation to a condition in the circumstances of one matter, has no relevance or bearing whatsoever on the question of whether a similar notation should be included in another matter dealing with different risks and different issues.

90. The proposed notation is circular and would remove the utility of condition 8 and its role in protecting the community if the defendant chose to lie as to where he is going and what he is doing because he planned to breach his conditions or engage in criminal conduct, or had already done so.

91. I am not prepared to make the notation sought. It seems to me the proposed notation suffers a number of problems in the context of this particular defendant. The first and most notable one is that the defendant has demonstrated manipulative, dishonest behaviour that allowed him to access and sexually abuse children. As observed at a number of places in my judgment, anything that allows the defendant to argue about his obligations and responsibilities pursuant to a condition is a circumstance at risk of being exploited by the defendant.

ORDERS

92. I make the following orders:

1. Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that JS be subject to an extended supervision order for a period of three years.

2. Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) that JS, for the period of the ESO, comply with the conditions set out in Annexure A to this judgment.

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State of NSW v JS - Schedule of Conditions (86557, pdf)

Endnotes

Decision last updated: 06 October 2020