State of New South Wales v KAS (Preliminary)

[2019] NSWSC 924

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v KAS (Preliminary) [2019] NSWSC 924
Hearing dates:	16 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	The following orders are made: 1. an order pursuant to s.7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) appointing a psychiatrist and a psychologist to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; 2. an order directing the Defendant to attend those examinations; 3. an order pursuant to s.10A of the Act that the Defendant be subject to an interim supervision order from 27 July 2019 for a period of 28 days; 4. an order pursuant to s.11 of the Act directing that the Defendant comply with the conditions of the interim supervision order which are set out in the Schedule to this judgment; 5. an order restricting access to the Supreme Court file in respect of this proceeding so that access will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties have had notice of the non-party’s application for access and have been afforded an opportunity to be heard.
Catchwords:	HIGH RISK OFFENDER - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrist and psychologist - Defendant currently subject to three-year extended supervision order imposed in 2012 - 2012 order suspended on occasions between 2012 and 2017 as a result of sentences of imprisonment - Defendant demonstrating reasonable compliance since February 2018 - construction and operation of ss. 5B, 7(4) and 10A of the Crimes (High Risk Offenders) Act 2006 - whether orders should be made after preliminary hearing - orders made
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 Civil Procedure Act 2005 Crimes (High Risk Offenders) Act 2006 Crimes (Serious Sex Offenders) Act 2006 Interpretation Act 1987
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Buttrose v Attorney General of NSW (2015) 324 ALR 562; [2015] NSWCA 221 Cornall v AB (A Solicitor) [1995] 1 VR 372 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v KAS [2012] NSWSC 1139 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Schmidt [2019] NSWSC 764 State of New South Wales v Stevenson (Final) [2019] NSWSC 778 State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 State of New South Wales v TT (Final) [2018] NSWSC 358 State of New South Wales v WT [2019] NSWSC 812 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) KAS (Defendant)
Representation:	Counsel: Ms S McGee (Plaintiff) Mr M Johnston SC (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Vertigan Law (Defendant)
File Number(s):	2019/161748
Publication restriction:	---

Judgment

1. JOHNSON J: By Summons filed on 23 May 2019, the Plaintiff, the State of New South Wales, seeks orders under the Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) with respect to the Defendant, KAS. The Defendant is referred to by a pseudonym as publication of his name would tend to identify at least one victim of his sexual offences.

2. On 21 September 2012, Barr AJ made an extended supervision order (“ESO”) with respect to the Defendant for a period of three years: State of New South Wales v KAS [2012] NSWSC 1139. That ESO has not yet expired because the Defendant has served several sentences of imprisonment since 2012, with the effect that the ESO was suspended whilst the Defendant was in custody: s.10(2) HRO Act. The present ESO will expire by effluxion of time on 27 July 2019.

3. The Plaintiff’s Summons seeks the imposition of a further ESO for a period of three years. The present application seeks:

1. an order under s.7(4) of the HRO Act appointing a psychiatrist and a psychologist to examine the Defendant and report to the Court with respect to those examinations;

2. an order under s.10A of the HRO Act that the Defendant be subject to an interim supervision order (“ISO”) from 27 July 2019 for a period of 28 days;

3. an order under s.11 of the HRO Act directing that the Defendant comply with conditions to be set for the duration of the ISO; and

4. an order restricting access to the Supreme Court file with respect to the proceedings.

The Preliminary Hearing

4. The preliminary hearing proceeded on 16 July 2019. Ms McGee of counsel appeared for the Plaintiff and Mr Johnston SC appeared for the Defendant.

5. In support of the application at the preliminary hearing, the Plaintiff read affidavits of Patrick Mullane affirmed 24 May 2019 and 28 June 2019 together with the affidavit of Nicholas Boyce affirmed 15 July 2019.

6. Four volumes of material constituted Exhibit PM-1 to the affidavit of Mr Mullane affirmed 24 May 2019. The Court declined to admit the totality of this material given that the overwhelming bulk of it was not to be referred to at the preliminary hearing. Instead, the parties had selected some 19 documents otherwise contained in this material, with these items being listed on a separate schedule which became Exhibit A. A folder containing the 19 documents identified in Exhibit A became Exhibit B.

7. I was satisfied that the requirement that the parties identify and tender selected documents only at the preliminary hearing was appropriate in this case. Proceedings under the HRO Act are civil proceedings: s.21 HRO Act. The overriding purpose in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s.56(1) Civil Procedure Act 2005. The parties to civil proceedings are under a duty to assist the Court to further this overriding purpose: s.56(3) Civil Procedure Act 2005.

8. In recent times, several Judges have expressed strong concern with respect to the volume of material which is sought to be placed before the Court in applications under the HRO Act, without any real attempt to confine the material to that which is necessary in the particular case: State of New South Wales v Schmidt [2019] NSWSC 764 at [13]-[14] (Hamill J); State of New South Wales v Stevenson (Final) [2019] NSWSC 778 at [19] (R A Hulme J) and State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 at [31] (Garling J). These concerns have particular resonance given the significant increase in the number of applications under the HRO Act which are coming before the Court.

9. In my view, the approach adopted on the present application should be the invariable practice at a preliminary hearing of an application under the HRO Act.

10. Counsel had furnished written submissions prior to the hearing and counsel spoke to those submissions at the hearing.

Relevant Provisions in the HRO Act

11. It is appropriate to keep in mind the objects contained in s.3 HRO Act:

“3    Objects of Act

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

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

12. Section 7(3)-(5) of the HRO Act provide for a preliminary hearing:

“7    Pre-trial procedures

…

(3)    A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(4)    If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a)    appointing:

(i)    2 qualified psychiatrists, or

(ii)    2 registered psychologists, or

(iii)    1 qualified psychiatrist and 1 registered psychologist, or

(iv)    2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.

(5)    If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.”

13. As the Plaintiff seeks an ISO in this case, s.10A of the HRO Act is applicable:

“10A    Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

(a)    that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

14. For the purpose of ss.7(4) and 10A(b), it is necessary for the Court to consider the requirements contained in s.5B of the HRO Act:

“5B    Making of extended supervision orders—unacceptable risk

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

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

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

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

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

15. For the purpose of undertaking the required tasks under ss.7(4) and 10A(b), it is necessary for the Court to consider the matters contained in s.9 of the HRO Act:

“9    Determination of application for extended supervision order

(1)    The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.

(2)    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.

(2A)    (Repealed)

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

(a)    (Repealed)

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

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

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

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

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

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

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

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

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

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

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

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

(4) (Repealed).”

The Test to Be Applied at the Preliminary Hearing

16. Mr Johnston SC noted statements in many single-Judge decisions of the Court since 2008 concerning the test to be applied at a preliminary hearing. At times, descriptions of the task have extended beyond the terms of the statute itself.

17. It is helpful to consider the statutory history of what is now the HRO Act. The Crimes (Serious Sex Offenders) Act 2006 created a statutory two-stage process providing for a preliminary hearing and, if the application proceeded beyond that point, a final hearing at which the Court would have the benefit of reports from two court-appointed psychiatrists and psychologists. In addition, the Court was empowered after a preliminary hearing to order an interim detention order or an interim supervision order.

18. Sections 7(4) and (5) and 8 of the Crimes (Serious Sex Offenders) Act 2006 were effectively in the same form as the present provisions in ss.7(4) and (5) and 10A HRO Act.

19. In the second reading speech for the Crimes (Serious Sex Offenders) Bill, Mr Carl Scully, the Minister for Police said with respect to the preliminary hearing provisions (Hansard, Legislative Assembly, 29 March 2006) (emphasis added):

“Clauses 7 and 15 require an application to be served on a sex offender within two business days after it is filed, for a preliminary hearing to be conducted within 28 days after it is filed, and for a decision to be made as to whether there is a case against the offender. It is important to note that the Attorney General will have the same disclosure requirements in these matters as the prosecution does in criminal matters, meaning that all relevant matters, whether favourable or unfavourable, will be disclosed. This will ensure that applications based on selective evidence are not made, and it will also serve to shorten the discovery process that usually occurs in other matters. If a prima facie case is made out in the application, the Supreme Court is to make an order for

two psychiatrists to examine the offender and report independently. The appointment of two court-appointed psychiatrists is an important aspect of the scheme. It allows for a fair and independent medical opinion to be expressed. The psychiatrists will not be State employees, but will be private members of the Royal Australian and New Zealand College of Psychiatrists and the court will appoint them. As noted above, an offender is entitled to call his or her own evidence if he or she wishes.

Clauses 8 and 16 enable the Supreme Court to make interim supervision or detention orders so that an offender can be kept under supervision or in detention pending determination of an application. This power is important in cases where it appears that the offender's period of custody or supervision will expire before the proceedings are determined. It allows the offender to be detained for up to 28 days, but upon renewal of the order the total

period for which an offender can be kept under interim supervision is three months. This limit will ensure that people are not held on rolling orders, and will encourage expeditious determination of these matters.”

20. In Attorney General for New South Wales v Tillman [2007] NSWCA 119 (“Tillman”), the Court of Appeal (Mason P, Santow and Tobias JJA) described the statutory scheme and the process for making interim and final orders. With respect to s.8(1) (which was the equivalent of s.10A HRO Act), the Court said at [24]-[29]:

“24    By placing ss8(1) and 16(1) side by side, it can be seen that the power in s8(1) is enlivened if the proceedings include a claim for an extended supervision order and that the power in s16(1) is enlivened if the proceedings include a claim for a continuing detention order. Since each form of final relief was sought in the present case, it was open to the Court to grant either form of interim relief if the circumstances permitted it, as they were found to do.

25    For each provision, the power to make the respective interim order is enlivened if it ‘appears’ to the Court that the conditions in (a) and (b) are satisfied.

26    There was never a question about condition (a) in the instant case.

27    The terms of condition (b) make it plain that the Court’s function under the respective provisions is to examine the ‘supporting documentation’ (as to which see ss6(3) and 14(3)) to determine what is ‘alleged’ in that documentation; and to decide whether it ‘would, if proved, justify’ the making of the stipulated final order.

28    As regards interim supervision orders, it need only appear that the matters alleged would justify the making of an extended supervision order (s8(1)(b)).

29    As regards interim detention orders, the power is enlivened if the matters would justify the making of either type of final order (s16(1)(b)). The word ‘or’ in s16(1)(b) indicates that an interim detention order is capable of being made even if the matters alleged would only justify the making of an extended supervision order, so long as the substantive proceedings contain a claim for a continuing detention order. See also s17(1).”

21. There was no consideration of s.7(4) and (5) in Tillman.

22. There is a difference in the language contained in ss.7(4) and 10A(b) although both provisions are to be applied at a preliminary hearing by reference to the same “supporting documentation”.

23. Although other provisions in the legislation have been amended since 2006, the provisions now contained in ss.7(4) and (5) and 10A have effectively remained constant since 2006.

24. As the Court of Appeal observed in Tillman at [25], [27] and [28] (see [20] above), what is now s.10A(b) requires the Court to decide whether it “appears” to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It has been said that the word “appears” is a “chameleon-like word”, the meaning of which must be considered in its statutory context: Cornall v AB (A Solicitor) [1995] 1 VR 372 at 392; cf Buttrose v Attorney General of NSW (2015) 324 ALR 562; [2015] NSWCA 221 at 566 [16], 567 [26].

25. At a preliminary hearing, it has been said that it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Tillman at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff’s case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13]. The use of the term “prima facie case” seems especially apt given that the Minister used this term in the 2006 second reading speech when describing the process at a preliminary hearing (see [19] above). Reference to the second reading speech is of assistance in identifying the purpose or object of the preliminary hearing provisions: ss.33 and 34 Interpretation Act 1987.

21. The preliminary hearing procedure allows the Court to filter out unmeritorious applications at an early stage and, if interim orders are made, to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision: State of New South Wales v Manners at [9].

22. The unacceptable risk test in s.5B(d) of the HRO Act requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at 652 [82]. The objects in s.3 HRO Act should be kept in mind when undertaking this evaluative task: Lynn v State of New South Wales at 648 [55].

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

24. The right of a person to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales at 645 [44], 648 [55]-[58], 660-661 [128] and 665 [148].

25. If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127].

26. Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149].

27. As will be seen, in determining the present application, the same outcome will be reached whether applying a prima facie case approach to ss.7(4) and 10A, or a more demanding standard whereby the Court must be satisfied of the ultimate issue under s.5B(d) by reference to the supporting documentation in evidence at the preliminary hearing. Whichever approach is applied, I am satisfied that orders should be made for the purpose of ss.7(4) and 10A HRO Act in this case.

Issues at Preliminary Hearing

33. Mr Johnston SC conceded that the threshold requirements for the application were satisfied in this case. There was no dispute that, at the time of the application, the Defendant was a “supervised offender” as defined in s.5I(2) HRO Act being a person who is currently being supervised under an existing ESO. In addition, there was no dispute that the application was filed within nine months of the expiration of the Defendant’s current supervision and is supported by the necessary documentation addressing each of the matters referred to in s.9 HRO Act, including a risk assessment report for the purpose of s.6(2) HRO Act. The application and supporting documents have been served on the Defendant: s.7(1)-(2) HRO Act.

34. The principal issue at the preliminary hearing was whether the Plaintiff had established the statutory foundation for interim orders at a preliminary hearing as provided for in ss.5B(d), 7(4) and 10A HRO Act. It was submitted for the Defendant that the Plaintiff had failed in this respect so that the Summons ought be dismissed.

35. If, contrary to the Defendant’s primary submission, the Court determined that an ISO should be made, Mr Johnston SC submitted that the current condition requiring the Defendant to wear electronic monitoring should be deleted.

The 2012 Judgment of Barr AJ Imposing an ESO for Three Years

36. It is appropriate to set out parts of the judgment of Barr AJ, which explain his Honour’s order that the Defendant be subject to an ESO for three years. Barr AJ referred to the Defendant’s background and the index offences at [7]-[11]:

“7   The defendant was born on 12 February 1973 and is 39 years old. He came under the notice of the Children's Court when he was 14 and was dealt with over the years for many occasions of misbehaviour including offences of dishonesty and violence. In 1988 he was suspended from school after a report that he and his younger brother held down girls and fondled their breasts and vaginas. After he came of age he began to be dealt with in the Local Court but not for any offence of a sexual nature.

8   Just before Christmas 1996 he impregnated his 11 year old cousin, in whose house he was staying at the time. He pleaded guilty in the District Court after DNA tests proved it highly probable that he was the father of the child delivered to the girl. He was sentenced to imprisonment. The Crown appealed against the sentence and it was increased in the Court of Criminal Appeal to a head sentence of 4 years and 6 months with a non-parole period of 2 years and 3 months.

9   Between 1 November 1997 and 5 April 1998 the defendant committed two serious sexual offences against an 8 year old girl. Between 24 March and 18 December 1998 he committed two further offences against the same girl. Between 10 December 1998 and 20 April 1999 he committed a further offence against the girl, who was then 9 years old. The child was the daughter of a woman with whom the defendant had entered a relationship.

10   In the first event the defendant touched the child's vagina with his finger but did not penetrate. In the second he had her suck his penis. He ejaculated. In the third he again touched her vagina without penetrating her. In the fourth he again had her perform fellatio until he ejaculated. His activities in the fifth were of much the same kind.

11   The sentencing Court took the view that he was in the position of step-parent and that his actions, which occurred over a period of about 2 years, constituted breaches of trust. For the five offences the defendant was sentenced to an effective total term of imprisonment of 11 years with a non-parole period of 8 years. The Court of Criminal Appeal refused him leave to appeal against the severity of the sentences.”

37. Reports of Dr Andrew Ellis, forensic psychiatrist, dated 19 August 2012 and Dr Samson Roberts, forensic psychiatrist, dated 14 August 2012 were tendered in the 2012 proceedings. Dr Ellis and Dr Roberts examined the Defendant in 2012 pursuant to orders for examination made by Barr AJ at the preliminary hearing which proceeded before his Honour.

38. Both Dr Ellis and Dr Roberts diagnosed the Defendant with paedophilia. The reports of Dr Ellis and Dr Roberts were of critical importance to the orders made by Barr AJ in 2012. The Court was taken to parts of these reports as well on the present application. It is helpful to set out parts of Barr AJ’s judgment where his Honour incorporated significant portions of the reports of Dr Ellis and Dr Roberts. Barr AJ said at [26]-[34]:

“26   I have read the reports of Dr Ellis and Dr Roberts and the other evidence to which I have referred. I express myself satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. These are the reasons why I have come to that view.

27   Dr Ellis was asked to express opinions on a number of matters including whether the defendant met the diagnostic criteria for any psychiatric or psychological condition, and the traits and symptoms, likely duration, chronicity, and the level of any condition. He interviewed the defendant and read documents recording the history of offending, management in jail, including offending there, and substance use. His diagnosis included the following -

The recorded behaviour of obtaining an erection and ejaculating whilst in sexual activity with children is consistent with a diagnosis of paedophilia, attracted to females, non exclusive type. The behaviour is documented over a greater than six month period with two different victims. One victim is clearly prepubescent, and the other on the cusp of puberty. He endorsed some cognitions typical of persons with paedophilia both at interview today, such as believing the second victim enjoyed the time with him and on a structured scale administered to him 12 years ago. It is not uncommon for persons with paedophilia to be unaware of fantasies and urges associated with the behaviour, or to deny them although experiencing them. Paedophilia usually manifests as chronic relapsing condition.

He would meet criteria for a polysubstance dependence disorder. This includes dependent use of alcohol, amphetamines, opioids, benzodizepines and abuse of cannabis and hallucinogens. This is currently in remission in a partially controlled environment. I note that recently despite being in a controlled environment substance use persisted, so this remission is very early.

28   Dr Ellis expressed an opinion about the risk of commission of a further serious sexual offence, and his report included the following -

Clinical considerations in regard to risk of reoffending include deviant sexual arousal or paraphilia, personality disorder, substance use, age, social isolation and treatment setting. These can be applied to a structured professional judgement instrument to determine areas of propensity for future sexual aggression such as the RSVP. I have made reference to this tool in my evaluation. It does not place persons into risk categories, but identifies factors contributing to risk.

Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence.’ [The defendant] presents with historical offences that indicate this pattern of arousal. He reported distorted attitudes typical of persons with paraphilic arousal at the time of offences, as well as psychological coercion, a chronic pattern of offending and threats towards children. Antilibidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal, however from the CUBIT treatment report appear not to have been addressed due to [the defendant's] disavowal of deviant arousal.

Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is diagnosed with antisocial personality disorder. Disturbance in personality function can interfere with honesty in treatment, cooperation with restrictions and passive-aggressive sabotaging of treatment progress, and has been demonstrated by infractions during previous treatment. Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. He describes relationship dysfunction during all of his offences. There is therefore need to continually address personality function as part of any ongoing treatment process.

...

Substance use is significantly implicated in all offences. Similar to a disordered mental state, substance use itself is not a major factor, but serves to disinhibit underlying sexual impulses, and predisposes to disordered mental states.

...

A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of [the defendant], given the particular pattern of sexual arousal, the most likely type of victim would be a female child in a situation where they were alone or in a position of vulnerability. The associated intimidation and loss of a sense of bodily integrity through penetrative acts would be of the type where physical injury and psychological injury are foreseeable.

In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision [the defendant] would fall into a group of persons with a risk offending that is moderately high, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.

29   Dr Roberts, likewise, was asked to interview the defendant and report. Dr Roberts said this about the defendant's attitude towards his offences -

At the time of his attendance for assessment, [the defendant] stated his opinion that drug and alcohol use was ‘the biggest issue’. [The defendant] explained that he was intoxicated during all the sexual offences. He stated ‘there wasn't a day when (he) wasn't on something’. He also considered that the lack of communication and inability to access or utilize support were significant factors. By contrast, in August 2002, it was noted that ‘[the defendant] was not able to make a link between substance abuse and his sex offence’.

...

When asked regarding his thoughts as to his risk of relapse to substance use, [the defendant] replied that he considered himself older and wiser. He stated that he had learnt from his previous behaviour and that ‘there are so many things people take for granted’. He stated his opinion that he had his ‘priorities sorted now’.

...

Of the substances used by [the defendant], of particular concern is his use of stimulants, namely amphetamine and methamphetamine, benzodiazepines and alcohol. Stimulants have a euphoric, energizing, and disinhibiting effect. They have the potential to be associated with aggression and are strongly associated with the development of psychotic symptomatology such as those described by [defendant]. Benzodiazepines, whilst potentially sedating, cause disinhibition, clouding of the sensorium and have potential amnesic effects. Alcohol, by [the defendant's] account, renders him aggressive. All these substances in addition to cannabis and Buprenorphine, which [the defendant] reports having used previously, have the potential to compromise judgement, undermine cognition and produce disinhibition. In combination, the substances reportedly used by [the defendant] are expected to have an unpredictable synergistic effect dramatically heightening the risk of engaging in inappropriate conduct, in particular in someone who is pre-disposed to aggression, criminality or inappropriate sexual conduct.

...

[The defendant] would appear to have demonstrated insight into the potential risks associated with substance use and has abstained from drugs and alcohol since January 2012. Whilst his success thus far is considered a positive prognostic indicator, his period of abstinence whilst under strict supervision, represents a short-lived success having regard for the many years of substance use including ongoing substance use in an environment where procuring substances is, in theory, more challenging than in the community.

30   Dr Roberts expressed his opinion thus -

Having regard for the nature of [defendant]'s sexual offending, it is my opinion that [the defendant] attracts a diagnosis of Paedophilia in accordance with the criteria stipulated in DSM-IV TR. The fact that [defendant] has minimized or indeed denied his sexual attraction to children cannot in my opinion be considered to negate a diagnosis which has been supported by past behaviour.

In my opinion, [the defendant] is expected to suffer a life-long propensity to the development of psychotic symptoms in the context of stimulant use. Whilst it is apparent that the psychotic episodes have in the past fully remitted on reduction or cessation of stimulant use, it cannot be predicted with certainty whether future episodes of psychosis would fully remit should [defendant] relapse to substance use in the future. There remains uncertainty in relation to the presence of a psychiatric condition unrelated to his use of substances or the potential impact of cessation of his current medication regime. An opinion with regard to prognosis in this regard would be premature.

The diagnosis of Paedophilia, in my opinion, reflects a life-long orientation which it is hoped [the defendant] will successfully manage with the support of skills derived from therapy and the ongoing support of professional services to which he has access in the community.

31   Dr Roberts said this about the risk that the defendant might commit a further serious sex offence -

Of concern in [the defendant's] case is his significant history of drug and alcohol use. [The defendant] was intoxicated at the time of the sexual offences and it is my opinion that a relapse to substance use would represent a situation of heightened risk. A relapse to his previous pattern of past substance use would dramatically impact upon his cognitive functioning, interpersonal manner and judgement. Furthermore, [the defendant] has demonstrated a propensity to developing psychotic symptomatology as a result of substance use of such a degree of severity as to have led previous psychiatrists to consider that he was suffering the major mental illnesses of Schizophrenia or Schizoaffective Disorder.

...

In summary, it is my opinion that the above factors confer upon [the defendant] a high risk of potential reoffending.

32   Both psychiatrists were asked to comment on the desirable length of any proposed course of management and treatment. Dr Ellis said this -

From a psychiatric perspective a period of three years is considered reasonable in order to establish a baseline function in the community, and refine the appraisal of risk. It is most likely that a period of 12 months will be required to secure stable accommodation and regular meaningful activity in the community, given the restrictions on persons subject to extended supervision orders. During this period of time, it is unlikely that a person will have the focus to benefit from intense therapeutic activity. A further 12 months of regular treatment in a psychological program, coupled with medication and review of this medication would be necessary to consolidate the modest gains made in custodial programs. This period is estimated based on his personality disorder, paraphilia, substance use disorder and current attitudes to supervision that will be unlikely to change in the short term. Involvement in structured activity and appropriate social groups will also consolidate a routine promoting a positive lifestyle. A further period of 12 months would be required to monitor the consolidation. At this point a more informed appraisal of future risk in progress could be made. His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point.

33   Dr Roberts said this -

Overall, it is my opinion that [the defendant] has been in receipt of insufficient treatment aimed at addressing the risk factors associated with his offending behaviour. His successful reintegration into the community will require support to counter the lack of informal social support in Sydney if he is to remain in the metropolitan area in order to access the treatment that he requires. In my opinion, a treatment program and supported community reintegration plan would require a period of no less than three years.

34   I have read the whole of the reports of Dr Ellis and Dr Roberts. The paragraphs I have extracted will serve to explain why I have reached the degree of satisfaction I have expressed.”

The Defendant’s Chequered History of Compliance with the ESO Between 2012 and 2018

39. Of particular significance to the present application is the Defendant’s troubled history of compliance with the ESO and the law generally between 2012 and February 2018. This aspect will be mentioned for different purposes in the judgment and it is appropriate to set out the chronology of events at this point.

40. On 14 June 2012, the Defendant was released to a community residence for the purpose of his then ISO. On 21 September 2012, Barr AJ made an order for an ESO for three years. Since then, the Defendant has returned to custody due to breaches of the ESO on eight occasions and has spent a total of three years and 10 months in custody.

41. On 19 December 2012, the Defendant was convicted of failing to comply with the ESO due to drug usage and was sentenced to six months’ imprisonment.

42. Following his release in June 2013, the Defendant was again convicted on 25 July 2013 for an offence of failing to comply with his ESO by refusing to comply with urine analysis, with a further sentence of six months’ imprisonment being ordered.

43. Following his release in January 2014, the Defendant was given a formal eviction notice from his residence on 8 May 2014 and was allowed until 30 May 2014 to improve his behaviour. Reports indicated some improvement in his compliance, however, on 10 July 2014, the Defendant was admitted to hospital for a suspected drug overdose and was returned to custody on 11 July 2014 following his conviction for failing to comply with the ESO leading to a sentence of four months’ imprisonment.

44. The Defendant was released once again from custody on 11 November 2014. In early December 2014, the Defendant’s telephone was searched and he was found to have a staff member’s phone number thereby indicating the existence of a relationship which constituted a breach of the ESO. On 11 December 2014, the Defendant was subjected to urine analysis and returned a positive result. On 23 December 2014, the Defendant was convicted of five counts of failing to comply with the ESO and was sentenced to imprisonment for five months.

45. In August 2015, the Defendant was released once again to reside in community accommodation. On 14 October 2015, the Defendant was requested to provide a urine analysis sample, but claimed that he was not able to do so. He admitted to illicit use of non-prescribed medication. The Defendant’s supervising team decided not to breach him at that time, but rather to make further attempts to engage him in motivational interventions for substance use.

46. On 10 November 2015, staff attempted to contact the Defendant to advise him to charge his ankle tag. When these attempts failed, he was charged with failing to comply with the ESO and, on 11 November 2015, the Defendant was sentenced to 15 days’ imprisonment for not responding to contact attempts from his supervisors. The Defendant reported to Justice Health staff that he had been on an “Ice bender” in the days prior to his arrest and that this was why he had missed phone calls and messages from the ESO team.

47. Following his release from custody, the Defendant failed to attend drug and alcohol counselling on three occasions as well as failing to provide urine analysis testing. On 2 December 2015, the Defendant was admitted to a mental health facility due to suicidal thoughts.

48. By January 2016, the Defendant had ceased taking his medication. On 20 January 2016, he was sentenced to two months’ imprisonment for failing to take prescribed medication. Two days prior to his release from custody, the Defendant was subjected to urine analysis which yielded a positive result for methamphetamine. On 29 March 2016, he was sentenced to 12 months’ imprisonment for failing to comply with the ESO by way of drug use. During this period in custody, the Defendant was charged on three occasions for drug-related offences.

49. The Defendant was released from custody in June 2017. He commenced opioid replacement therapy and counselling for his drug issues and appeared to have remained drug free for a short period, before returning a positive urine analysis result in August 2017. In August 2017, the Defendant was sentenced to six months’ imprisonment for failing to comply with the ESO by reason of drug use. During this period in custody, the Defendant incurred one disciplinary offence for failing a prescribed drug test.

50. The Defendant was released from custody on 8 February 2018. Prior to his release, he was found to have made contact with the sister of a fellow offender who was believed to have children. The Defendant was ordered to cease contact with this person which he did.

51. It will be necessary to keep in mind this history of repeated non-compliance over a number of years when coming to consider the present risk assessment with respect to the Defendant.

Consideration of Statutory Factors Under s.9(3) HRO Act

52. It is appropriate now to consider the evidence under the different headings contained in s.9(3) HRO Act.

Section 9(3)(h) - The Defendant’s Criminal History and the Pattern of Offending Behaviour Disclosed by that History

53. The Defendant was born in 1973. He has an extensive criminal history which dates back to 1987. Predating the commission of the index offences between 1996 and 1998, the Defendant was convicted of various offences including break, enter and steal, assault, assault occasioning actual bodily harm, possess shortened firearm, illegal use of a conveyance, malicious damage, larceny, resist arrest, pervert the course of justice, make false statement, failing to appear in accordance with a bail undertaking and receiving stolen property, with the last of these offences being committed in 1996.

54. The first index offence was committed in December 1996 when the Defendant was 23 years old. At that time, the Defendant and his 11-year old cousin were residing in the same house. One evening, the victim was asleep in her bedroom when the Defendant entered the room. He closed the door, removed his track pants and the victim’s pyjamas and had penile-vaginal intercourse with her. The victim did not disclose the assault and it was not until the victim’s mother developed concerns about the girl gaining weight that the victim was taken to see her general practitioner. Shortly thereafter, the victim was determined to be pregnant and she ultimately gave birth to a child. On DNA testing, the Defendant was found to be the child’s father and he was charged with aggravated sexual assault.

55. The Defendant pleaded guilty and was sentenced by his Honour Judge Bellear for this offence to imprisonment for three years and six months with a non-parole period of 20 months. Following a successful Crown appeal against sentence, the Defendant was sentenced by the Court of Criminal Appeal for this offence to imprisonment for four years and six months with a non-parole period of two years and three months.

56. Whilst serving his sentence for the first index offence, the Defendant was charged with a further series of sexual offences committed between 1997 and 1999. He ultimately entered pleas of guilty to two counts of aggravated indecent assault on a child under 10 years and three counts of sexual intercourse with a child under 10. The victim was the daughter of the Defendant’s then de facto partner. At the time of these offences, the Defendant was aged 25 or 26 years and the victim was aged eight or nine years. The Defendant required the victim to pull her pants down and he touched her vagina with her finger as well as requiring the victim to perform fellatio on him.

57. In December 2002, the Defendant was sentenced for those offences at the Penrith District Court by his Honour Judge Bellear to a total effective sentence of imprisonment for 11 years with a non-parole period of eight years. In November 2003, the Court of Criminal Appeal refused the Defendant leave to appeal against sentence with respect to these offences.

58. The Defendant was released to parole on 14 June 2012 and the balance of his sentences of imprisonment expired by effluxion of time on 28 July 2012.

59. During his time in custody prior to being released in 2012, the Defendant accumulated some 33 institutional misconduct charges most of which related to illicit drug use.

Section 9(3)(h1) - The Views of Sentencing Courts

60. In sentencing the Defendant for the first index offence, his Honour Judge Bellear accepted that the Defendant had a problem with alcohol which was a significant factor in his offending. In allowing the Crown appeal and increasing the sentence for the first index offence, the Court of Criminal Appeal (Greg James J, Mason P and Levine J agreeing) observed that the Defendant had been diagnosed as suffering from a schizo-affective disorder although it was not said to be causally related to the offence.

61. By the time the Defendant came to be sentenced by his Honour Judge Bellear for the second series of index offences, the Court of Criminal Appeal had allowed the Crown appeal and increased the sentence for the first index offence. His Honour found that these offences were not isolated, but formed part of a wider course of conduct involving some planning by the Defendant. The sentencing Judge noted the Defendant’s comment to a reporting psychologist that the Defendant “could not bring himself to stop abusing her”. His Honour accepted that the Defendant “appeared to engage in many justifications and minimisations” and that the Defendant “showed limited insight into the escalatory nature of his abuse and into the relationship between his prior offences and his index offence behaviour”. His Honour took into account the Defendant’s schizophrenic illness and found special circumstances, thereby fixing a longer than usual parole period by reason of the Defendant’s ongoing need for sex offending therapy and psychiatric treatment, counselling and monitoring.

62. In refusing the Defendant leave to appeal against sentence, the Court of Criminal Appeal (Meagher JA, Shaw J agreeing, Kirby J dissenting) found that the sentencing Judge had not fallen into error, noting the substantial objective gravity of the offences.

Section 9(3)(c) - The Results of any Other Risk Assessment Prepared by a Qualified Psychiatrist, Psychologist or Medical Practitioner

63. I set out (at [38] above) extracts from the 2012 judgment of Barr AJ which referred to the reports of Dr Ellis and Dr Roberts. These paragraphs from the reports of Dr Ellis and Dr Roberts were emphasised once again by counsel for the Plaintiff on the present application.

64. I mentioned earlier that the Defendant had a significantly chequered history (certainly between 2012 and February 2018) with respect to his conduct and compliance with the ESO. The Defendant has had intermittent periods at liberty and then custody between 2012 and February 2018 as a result of sentences imposed for various offences.

65. The Defendant has been in the community consistently since 8 February 2018, with the ESO being operative in that time. For the purpose of this application, attention will be focused upon expert psychological reports of persons who have assessed the Defendant in the community since February 2018.

66. Gillian Tulloh is a Senior Psychologist, Risk Management Programs. Ms Tulloh prepared an ESO completion report dated 22 October 2018 with respect to the Defendant. Ms Tulloh noted that the Defendant appeared to have made significant improvements in his attitude towards monitoring and had engaged positively in supervision. Ms Tulloh noted that the Defendant had been participating in opioid replacement therapy and had engaged in regular counselling to address his drug and alcohol issues. He had been prescribed antidepressants and medication for nerve pain and had re-established contact with his mother, children and siblings.

67. Ms Tulloh noted that the Defendant had moved into independent accommodation. At the time of the report, the Defendant had been living there for nine months, this being his longest period in the community since the ESO had been ordered in 2012. Ms Tulloh noted that the Defendant’s then community lifestyle was “highly structured and highly supported” and that the Defendant reported that “he relies on his supervising officer both for guidance and emotional support”. Ms Tulloh observed that it was uncertain how the Defendant “will cope if these supports fall away when/if the conditions attached to the ESO are relaxed”. Ms Tulloh observed:

“There have been significant gains in some areas (general self-regulation, co-operation with supervision, and social influences) and no change in others (intimacy deficits, sexual self-regulation). The warning signs for future reoffending that were identified (drug and alcohol use, shifting blame, expressing hostility, shutting down/isolating himself, avoiding talking about his feelings) don't appear to be present currently. [KAS] appears to be progressing well with the goals that he developed in his self- management plan ... Many of his identified risk factors are currently moderated by the conditions of the ESO.”

68. Ms Tulloh identified a number of risk factors of sexual reoffending for the Defendant:

1. substance abuse - if the Defendant were to relapse into substance abuse, it is likely his positive support persons would cease contact and this may cause a sense of abandonment and social isolation with only negative social influences;

2. significant social influences - the Defendant’s tendency to gravitate towards antisocial and drug-using peers was moderated by the conditions of his ESO;

3. capacity for relationship stability - the Defendant has had two previous long-term relationships and two inappropriate relationships over the course of the ESO;

4. impulsivity - the Defendant has a history of impulsive behaviour, in particular, drug use even when he had been under intensive supervision and was aware that he would likely be caught;

5. negative emotionality - the Defendant had received antidepressant medication which he was required to take as a condition of his ESO and, if he were to cease taking his medication, his risk of reoffending would increase;

6. sex drive/sexual preoccupation - the Defendant reported to Ms Tulloh that his antidepressant medication had reduced significantly his sexual drive - he was required to take the medication as a condition of his ESO;

7. co-operation with supervision - the Defendant had a relatively long history of non-compliance with supervision although he had been compliant for 10 months (as at October 2018); and

8. deviant sexual preference - Ms Tulloh noted that the Defendant is identified as having a deviant sexual preference (to prepubescent female victims).

69. Ms Tulloh identified the greatest risk of reoffending would be if the Defendant were to enter into an intimate relationship with a partner who has care of young female children. In this respect, Ms Tulloh observed:

“Female children with whom he has a prior relationship and ready access are the most likely group of people to be victimised sexually by [KAS]. The risk of him offending sexually is likely to be more acute in situations where he is under the influence of substances and/or if he ceases to take his medication … As [KAS] has had limited intervention around his sexual offending, it is difficult to determine if there are emotional states or situations which place him at increasing risk of offending. However, deficits in intimacy appear to be associated with [KAS’s] offending.”

70. Ms Tulloh identified the Defendant’s overall risk of sexual reoffending as “moderate high”. She noted that the Defendant’s changes in behaviour had been relatively recent and had occurred within the strict confines of electronic monitoring and weekly scheduling. Ms Tulloh considered a reduction in conditions would provide an opportunity to demonstrate the Defendant’s capacity for self-management.

71. Ms Tulloh observed that, even with the concerns she had expressed, “it is doubtful that a court would be convinced he has an unacceptable risk of a serious sexual offence and I suggest that a further application for an ESO would be unsuccessful.” Ms Tulloh observed that the Defendant’s risk factors for future sexual offending may be managed appropriately under a Child Protection Prohibition Order and registration on the Child Protection Register. Ms Tulloh recommended that no further application be made under the HRO Act.

72. Senior Counsel for the Defendant emphasised Ms Tulloh’s views expressed in the preceding paragraph. Although acknowledging that it was a matter for the Court to determine whether the relevant statutory opinion could be formed, Mr Johnston SC submitted that Ms Tulloh’s opinion was of assistance and pointed away from the making of an ISO in this case.

73. Ms McGee submitted that little weight could be given to this part of Ms Tulloh’s report and that the Court should have regard to the totality of the evidence in determining whether the relief sought at the preliminary hearing should be granted.

74. I will return to this issue later in this judgment.

75. An important report on this application is the supplementary risk assessment report of 14 May 2019 of Samuel Ardasinski, Senior Psychologist, Serious Offenders Assessment Unit. Mr Ardasinski’s report is the most recent expert report concerning the Defendant on this application.

76. Mr Ardasinski administered statistical risk assessment tools which placed the Defendant in the “above average” risk category for sexual reoffending. On the basis of all the material, he expressed the opinion that the Defendant’s level of criminogenic needs lay currently in the “moderate” range and his risk of sexual reoffending was “average”, as he has remained abstinent from drugs for more than 15 months, with this having been the Defendant’s primary treatment need.

77. Mr Ardasinski considered that the Defendant’s attitude towards his offending remained consistent with previous reports in that he remained deeply ashamed of his actions and did not deny them, but “is generally not forthcoming with details about them when asked in interview”.

78. Mr Ardasinski endorsed the views of Ms Tulloh expressed in her report of 22 October 2018 as to the Defendant’s compliance with his ESO. Mr Ardasinski noted, consistent with Ms Tulloh, that since the Defendant’s release from custody on 8 February 2018, he had made significant improvements in his attitude towards monitoring and engaged positively in supervision.

79. Mr Ardasinski recorded that since Ms Tulloh’s report, there had been “a significant development” in that the Defendant had formed an intimate relationship with a woman he met at an opioid replacement therapy clinic. The relationship had been disclosed by the Defendant in accordance with his ESO conditions. The woman had three children, none of whom fall within the “target victim age range” for the Defendant’s sexual offending. She has a son in the 8-11 years age range, but her only daughter is now aged over 16 years.

80. Mr Ardasinski raised questions concerning the diagnosis of paedophilia reached by Dr Ellis and Dr Roberts in 2012. Although not challenging directly that diagnosis, Mr Ardasinski noted that there had been no further sexual offending with children since 1999. He pointed, as well, to studies in this area which may raise an issue in this respect.

81. Mr Johnston SC emphasised part of Mr Ardasinski’s report which noted that 2014 research had suggested that if high risk sexual offenders do not reoffend when given the opportunity to do so, then there is clear evidence that they are not as high risk as initially perceived. However, as submitted for the Plaintiff, it is necessary to read the entirety of Mr Ardasinski’s report on this aspect where he acknowledged that the Defendant had spent substantial periods in custody between 2012 and 2018 so that the calculation of risk assessment in his case was complicated by his frequent returns to custody for breaches.

70. In approaching this issue, I have kept in mind the expert evidence of two forensic psychiatrists given in 2012, and relied upon by Barr AJ for the purpose of making the 2012 ESO. The sexual offending of the Defendant, directed to prepubescent girls, occurred on a number of occasions with different victims. This is not a case of isolated offending with respect to one victim. It must be kept in mind, as well, that the Defendant has been in custody for very substantial periods between 2000 and February 2018. Even after the Defendant’s release from custody in 2012 and the putting in place of the ESO, the Defendant has spent further substantial periods in custody. I have kept in mind that the Defendant was regularly using illicit drugs between 2012 and 2018. The absence of sexual offences committed against young girls between 1999 and 2018 provides limited assistance to the Defendant from the point of view of risk assessment.

71. In my view, there is a significant basis for qualifying Mr Ardasinski’s questioning of the diagnosis of paedophilia reached by Dr Ellis and Dr Roberts in 2012.

72. Mr Ardasinski noted that the Defendant had recently engaged therapeutically with Dr Emma Agnew, clinical psychologist, with the Forensic Psychology Service (“FPS”) and that it appeared that “he was more fully engaged in that therapeutic relationship than ever previously”. Given that the availability of FPS counselling would end with the expiration of the present ESO, Mr Ardasinski noted that there had not yet been efforts to refer the Defendant to a community-based provider who would seek to continue psychological counselling of this type when the ESO expired.

73. However, a case note made by Carly McMillan, community corrections officer, noted that, as at 22 June 2019, the Defendant was being encouraged to look into the availability of a community psychologist, and that he had self-referred to the Penrith Community Health Centre for the purpose of obtaining such assistance.

74. As will be seen, the importance of continuity of psychological counselling to the Defendant, through an experienced and specialist entity such as the FPS, is an important aspect of this application. This is especially so when ongoing counselling of that type would be required as part of an ISO or ESO, but would be entirely voluntary if the ESO expired and no ISO was put into place.

75. Although the Defendant has indicated preparedness to undertake voluntary psychological counselling, the relevance of his troubled history between 2012 and February 2018 must play a part in an assessment of further action pertinent to this application.

76. Mr Ardasinski concluded his report in the following way:

“61.    It is possible that, without the imposition of a further ESO, [KAS] could still remain offence-free – after all, he has now been abstinent from drug use for over 15 months, which is a milestone very few supervising him would have foreseen even two years ago. It is considered from the file material available that the stringent conditions of his ESO have been adequate to contain [KAS’s] risk to date, however given his new situation, they are potentially onerous and there are many conditions which would be considered obsolete if a further ESO were to be considered. It is possible that an ESO with fewer conditions could also contain his risk, as long as access to children remained limited, e.g. he was unable to have unsupervised contact with children under 16 or 18. His drug use would also need to continue to be monitored closely, although it would be beneficial if there were mechanisms apart from arrest/charge/convict/imprison to manage lapses [sic]. I believe there are ongoing risks as relate to [KAS’s] potential for destabilisation if he loses the positive elements of his life that he has built up. [KAS’s] therapist noted, ‘We discussed the fact that [KAS] has made considerable progress in the last 14 months, however this is on the backdrop of 20 years of difficulties and being in and out of jail, and therefore we cannot assume that he is fully equipped to manage if obstacles arise in the future. Therefore he needs to plan and prepare for every eventuality’ (Agnew, 2/5/19).

62. Were he to experience a relationship breakdown, as well as an estrangement from his family, the possibility of a further serious sexual offence remains a risk. I consider it unlikely that any residual risk would result in a further serious sexual offence, but it is possible. Whether this would be considered ‘unacceptable’ in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court.”

89. In the executive summary to his report, Mr Ardasinski said:

“Should [KAS] be considered for a further Extended Supervision Order, this may take the form of a less intrusive/rigorous Order which would allow him to reintegrate further into his current prosocial lifestyle and moderate further any residual risk of repeat sexual offending as he enters his late-forties. Since a Child Protection Prohibition Order (CPPO) is being sought by NSW Police to provide a further layer of protection for the community given [KAS’s] past offending, a further ‘bespoke’ ESO targeting drug use and continued attendance at recommended interventions may also provide the support and assistance to [KAS] to adapt to this new form of restrictive liberty. It may also allow for a more gradual staged reduction in the level of monitoring provided by CSNSW since he has only recently progressed to Stage 3 EM, allowing for the possibility that he may lapse into drug use again in the future and potentially regress back to an earlier stage of EM for a period.”

90. It is helpful to note Mr Ardasinski’s use of the concept of “a further ‘bespoke’ ESO targeting drug use and continued attendance at recommended interventions”, with this being an important feature in the determination of the present application.

91. Counsel for the Plaintiff and the Defendant each made submissions with respect to Mr Ardasinski’s report, which is effectively the most recent assessment of the Defendant for the purpose of an application for a further ESO.

92. Whilst acknowledging the substantial progress made by the Defendant since February 2018, it is necessary for the Court to keep in mind his troubled history of non-compliance and further imprisonment over a period of six years before then. Mr Ardasinski’s use of the term “bespoke ESO”, fashioned to the circumstances of the Defendant, is a very significant piece of evidence on this application.

Section 9(3)(d) - Results of any Statistical or Other Assessment as to the Likelihood of the Commission for Further Serious Offence

93. The Defendant has been assessed on many occasion using statistical tools.

94. In 2002, Theresa Britton, psychologist, prepared a report for the purpose of sentence on the second series of index offences. Ms Britton assessed the Defendant as being a “medium risk” of reoffending if placed in similar circumstances given his statements that he had poor sexual self-regulation when drug affected.

95. In her report of 22 October 2018, Ms Tulloh noted outcomes of statistical or other assessment concerning the Defendant.

96. On a Level of Service Inventory – Revised assessment conducted on 16 July 2018, the Defendant fell in the “medium to high” range of risks/needs. Prior assessments carried out on occasions between 2008 and 2017 had placed the Defendant consistently in the high-risk range. Ms Tulloh noted that the Defendant’s reduction in risk level over the course of these assessments can be accounted for by reduction of scores around his drug and alcohol use, and improvements in his attitudes and orientation towards offending and community supervision.

97. Application of the STATIC-99R measure of assessment in 2012, 2015 and on 10 October 2018 produced a score of four, placing the Defendant in the moderate-to-high risk category with a risk that would be a perceptively higher risk than the typical sex offender.

98. A STABLE-2007 assessment provided a risk score of eight for the Defendant placing him in the “moderate” risk category relative to other male sexual offenders.

99. On the combined STATIC-99R and STABLE-2007 composite assessment of risk/need, Ms Tulloh noted that the Defendant’s results were in the “moderate high category” suggesting that he will “require a medium level of intervention and/or supervision”.

100. In his report of 14 May 2019, Mr Ardasinski applied risk assessment tools. On the Violence Risk Appraisal Guide - Revised, which is an assessment of risk of violence including sexual violence, the Defendant scored 33 which is equal to or higher than a score of 96% of the construction sample, and placed him in the ninth of nine “bins” classifying him as “high” risk compared to other violent offenders. In the norms for this instrument, 76% of violent offenders in this “bin” reoffended violently within five years at risk and 87% within 12 years at risk.

101. On the STATIC-2002R, an empirical actuarial risk assessment tool for adult male offenders convicted of sexual offences, Mr Ardasinski noted that the Defendant was placed in the “above average” risk category which aligned with his STATIC-99R rating.

102. As noted earlier, Mr Ardasinski assessed the Defendant’s risk of further sexual offending as “average” based on the totality of information.

Section 9(3)(d1) - Report Prepared by Corrective Services NSW Concerning Extent to Which Defendant Can Reasonably and Practicably Be Managed in the Community

103. A supplementary risk management report dated 24 May 2019 was prepared by Ms McMillan and Kelli Grabham, High Risk Offender Applications and Operational Governance Officer. I note that Ms McMillan and Ms Grabham are not psychologists. Ms McMillan has supervised the Defendant in the community under the ESO. Ms McMillan had prepared an ESO completion report dated 26 November 2018 in which she recommended that no further ESO should be sought.

104. Ms McMillan and Ms Grabham reported that, in May 2019, the Defendant progressed to Stage 3 of electronic monitoring, which meant that the requirement for a curfew and schedule ceased and the Defendant was permitted to engage in any activities within his legal boundaries without restriction upon timeframes. The Defendant remains on Stage 3 so that he is required at present to wear an electronic monitoring device. Progression to Stage 4, which marks the cessation of electronic monitoring, has not yet occurred.

105. The May 2019 report outlines a range of management strategies directed to the risk factors identified in Mr Ardasinski’s report, which would continue to be implemented if the Defendant was subject to a further ESO. Based on the Defendant’s current compliance with his ESO conditions, none of the limitations of management strategies set out in the report suggest the Defendant cannot be reasonably and practicably managed in the community.

Section 9(3)(e) - Treatment or Rehabilitation Programs for the Defendant, his Willingness to Participate and the Level of his Participation

106. The Defendant was referred to the Custody Based Intensive Treatment (“CUBIT”) program in 2001 and he refused a position. He was offered a position in 2009, however he again refused. The Defendant referred himself in 2010 and was found suitable, but refused to sign a consent form. He completed another referral in 2011 and completed the CUBIT program between August 2011 and April 2012. The Defendant experienced issues with motivation and treatment engagement and had a brief period of suspension due to illegal drug use. A number of warning signs for future reoffending were identified during the CUBIT program.

107. The Defendant completed the EQUIPS Addiction Program on 12 October 2016.

108. The Defendant attended FPS for psychological counselling on and off when in the community. He has been engaged regularly with Dr Agnew of FPS since August 2018. The Defendant has stated that he is experiencing benefits from his FPS counselling. Dr Agnew reported to Ms Tulloh that the Defendant was progressing well and had some awareness of his risk factors and triggers for reoffending, and that he had demonstrated some improved problem-solving skills with his ability to manage his risk factors in the community improving. Dr Agnew reported, however, that the Defendant was reluctant to discuss his sexual offending, which he believed related to a high level of shame. This appears consistent with difficulties experienced by the Defendant when involved in the CUBIT program some years ago.

109. It is submitted for the Plaintiff that it is concerning that, despite the Defendant’s otherwise significant progress, he does not appear to have adequately engaged in rehabilitation for the specific offending that gives rise to risk in his case.

Section 9(3)(e1) - Other Options Available to Reduce the Likelihood of the Defendant Reoffending

110. On 13 June 2019, an order was made at the Blacktown Local Court under s.5 Child Protection (Offenders Prohibition Orders) Act 2004 with respect to the Defendant to operate for a period of five years. By that order, the Defendant is prohibited from engaging in specific conduct, namely:

“'1.    Communicate or attempt to communicate, by any means either directly or indirectly, with any person under the age of 18 years, unless in the company of a responsible adult.

2.   Approach, actively seek the company of any person under the age of 18 years.

3.   Participate in, or actively seek, to undertake minding/care of any person under the age of 18 years.

4.   Permit any person under the age of 18 years to enter and remain or reside at the residential address of the respondent unless in the company of a responsible adult.

5.   Remain or reside in any residential premises with any person under the age of 18 years, unless in the company of a responsible adult.

6.   Befriend any person whom the respondent knows to be the parent, guardian, person with care or control or sibling of a child under the age of 18 years unless in the company of a responsible adult.

7. Associate or contact either directly or indirectly any registerable person or a person that has been convicted of a Class 1 or 2 offence, pursuant to the Child Protection (Offenders Registration) Act 2000.

8.   Create, administer or use any social media or internet-based messaging accounts in any name other than [KAS].

9.   Use a public setting, where available, for any social media or internet-based messaging accounts which he creates, uses or administers.

10.   Use or possess any alcohol (including alcohol-based products such as methylated spirits).

11.   Use or possess illicit drugs, other than medications prescribed to the respondent.”

111. In addition, the Defendant is subject to the Child Protection (Offenders Registration) Act 2000, so that he is required to report information in accordance with s.9(1) of that Act which states:

“9    Relevant personal information to be reported

(1)    For the purposes of this Act, the relevant personal information to be reported by a registrable person consists of the following information:

(a)    the person’s name, together with any other name by which the person is or has previously been known,

(b)    in respect of each name other than the person’s current name, the period during which the person was known by that other name,

(c)    the person’s date of birth,

(d)    the address of each of the premises at which the person generally resides or, if the person does not generally reside at any particular premises, the name of each of the localities in which the person can generally be found,

(e)    the name and date of birth of each child who generally resides in the same household as that in which the person generally resides,

(f)    if the person is a worker:

(i)    the nature of the person’s work, and

(ii)    the name of the person’s employer (if any), and

(iii)    the address of each of the premises at which the person generally works or, if the person does not generally work at any particular premises, the name of each of the localities in which the person generally works,

(g)    details of the person’s affiliation with any club or organisation that has child membership or child participation in its activities,

(h)    the make, model, colour and registration number of any motor vehicle owned or hired by, or generally driven by, the person,

(i) details of any tattoos or permanent distinguishing marks that the person has (including details of any tattoo or mark that has been removed),

(j)    whether the person has ever been found guilty in any foreign jurisdiction of a registrable offence or of an offence that required the person to report to a corresponding registrar or been subject to a corresponding child protection registration order and, if so, where that finding occurred or that order was made,

(k)    if the person has been in government custody since the person was sentenced or released from government custody (as the case may be) in respect of a registrable offence or corresponding registrable offence, details of when or where that government custody occurred,

(l)    if, at the time of making a report under this Division, the person leaves, or intends to leave, New South Wales to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence):

(i)    in general terms, the reason for travelling, and

(ii)    in general terms, the frequency and destinations of the travel,

(m) details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person including any phone numbers used, or intended to be used, by the person,

(n) details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person,

(o)    details of the type of any internet connection used, or intended to be used, by the person, including whether the connection is a wireless, broadband, ADSL or dial-up connection,

(p)    details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the person through the internet or other electronic communication service,

(q)    any other information prescribed by the regulations.”

112. As will be seen, these provisions place restrictions on the Defendant’s conduct in various respects. However, the provisions cannot compel the Defendant to do certain things, including engagement in counselling and treatment which would assist him to reduce his risk of reoffending.

Section 9(3)(e2) and (f) - Likelihood that the Defendant will Comply with ESO Obligations and the Level of the Defendant’s Past Compliance with Obligations

113. I have noted earlier the Defendant’s protracted history of non-compliance with conditions of his ESO in the period between 2012 and 2018. Those events are of particular significance on this application although the progress made by the Defendant since February 2018 operates in his favour.

114. On 30 August 2018, the Defendant was given a warning and written direction relating to communication with persons whom he was not permitted to contact. There has been no further breach of conditions of the ESO since then.

Submissions of the Parties

Submissions for the Plaintiff

115. Having regard to the nature of the task to be undertaken on the preliminary hearing, it was submitted for the Plaintiff that the Court would be satisfied that orders ought be made for psychiatric and psychological examination of the Defendant together with an ISO, subject to conditions.

116. Whilst acknowledging that the Defendant was to be commended for his substantial improvements in attitude and compliance with supervision, the Plaintiff submitted that these improvements were in the early stages when considered in the context of the long-standing and chronic nature of his risk factors. It was submitted that the original ESO was imposed for a period of three years as a result of a recommendation of Dr Ellis who expected that, in the first year, the Defendant would secure accommodation and regular meaningful activity in the community. In the second year, Dr Ellis expected that having done those things, the Defendant could engage in regular psychological treatment coupled with medical review and in the third year, his progress could be considered and monitored and steps taken to appraise his future risk.

115. The Plaintiff submitted that up to the present time, a period of 10 months since 30 August 2018 is the longest period which the Defendant has spent in the community without any breaches or warnings in respect of his compliance. Only recently, he had begun to engage in psychological treatment consistent with Dr Ellis’ prediction as anticipated in the second year. Using Dr Ellis’ approach, it was submitted that a further period of structured supervision is required to give effect to that approach.

116. It was submitted for the Plaintiff that the following aspects support the making of orders at the preliminary hearing:

1. the nature of the Defendant’s criminal history, including repeat serious sexual offending;

2. the persistent failure of the Defendant to meaningfully discuss and address his sexual offending and paedophilia diagnosis with medical professionals;

3. the nexus between his substance abuse and risk of offending behaviour;

4. his lengthy (including relatively recent) history of substance abuse and the chronic nature of his substance abuse disorder;

5. the assessment of his being between a moderate to above average risk of relevant reoffending;

6. the Defendant’s relatively recent display of a positive response to supervision in the context of a long period of poor response to supervision; and

7. the serious and new nature of the Defendant’s current relationship.

119. Whilst acknowledging that the Defendant had not committed a serious sexual offence since 1999, the Plaintiff submitted that he had since that date been either in custody or subject to supervision, which has had the effect of forcibly moderating his risk of reoffending. It was submitted that it was yet to be demonstrated that the Defendant has achieved, on a sustainable long-term basis, adequate amelioration of his risk of serious sexual offending.

120. It was submitted that making the orders sought, including an ISO for 28 days commencing at the expiration of the existing ESO, would provide continuity and stability for the Defendant and ensure protection of the community pending the final determination of the relief sought in the Summons.

Submissions of the Defendant

121. Whilst conceding that there was sufficient evidence in 2012 for the Court to make an ESO, Mr Johnston SC submitted that the necessary evaluative task in the current proceedings must focus on the Defendant’s current, as opposed to, historical risk. He submitted that, since 8 February 2018, the Defendant had demonstrated compliance with supervision, abstention from drugs and alcohol and had significantly reduced his risk of offending. Though the current risk assessment is not without caveat, it was submitted that the supplementary risk assessment of Mr Ardasinski should lead the Court to conclude that the evidence does not reach the requisite standard of unacceptable risk.

122. Mr Johnston SC emphasised the fact that the Defendant would be subject to statutory protections other than those which arose under an ESO. He pointed to the conditions to which the Defendant was subject since June 2019 as a result of the order under the Child Protection (Offenders Prohibition Orders) Act 2004 (the terms of which are set out at [110] above).

123. In addition, he pointed to the provisions of the Child Protection (Offenders Registration) Act 2000 (at [111] above) which apply to the Defendant.

124. It was submitted that Mr Ardasinski’s supplementary risk assessment report indicated that the Defendant had progressed far enough along his “desistance trajectory” to be able to exist in the community under a less stringent supervision scheme such as that contained in the order under the Child Protection (Offenders Prohibition Orders) Act 2004. Accordingly, it was submitted that the Court would not be satisfied that the necessary threshold had been reached for the making of orders sought against the Defendant at the preliminary hearing.

125. In addressing the evidence concerning statistical or other assessment for the purpose of s.9(3)(d) HRO Act, reliance was placed upon Mr Ardasinski’s observation that, given the Defendant had not reoffended sexually since 1999, recent research would indicate that his risk of reoffending sexually had significantly reduced. It was noted, as well, that Mr Ardasinski’s assessment was that the Defendant’s risk of reoffending was in the moderate risk category relative to other men who had offended sexually.

126. Concerning risk management reports for the purpose of s.9(3)(d1) HRO Act, Mr Johnston SC pointed to Ms McMillan’s extended supervision completion report of 26 November 2018, in which she concluded that a further ESO was not recommended in the Defendant’s case. It was submitted that Ms McMillan was in a good position to express an opinion on this issue as she had supervised the Defendant since February 2018.

127. With respect to other treatment or rehabilitation programs for the purpose of s.9(3)(e) HRO Act, it was submitted that the Defendant had undertaken FPS psychological counselling and had independently engaged with an alcohol and drug counsellor, as well as attending Narcotics Anonymous twice a week. It was submitted that the Defendant had sought to put in place appropriate community-based support to operate once the ESO expires.

128. Concerning the Defendant’s compliance with the ESO for the purpose of s.9(3)(f) HRO Act, it was acknowledged that the Defendant’s compliance prior to February 2018 was problematic. Insofar as the main issue was the Defendant’s ongoing use of illegal drugs and his attempts to avoid detection, it was submitted that the Defendant had been abstinent for some 17 months and was well advanced in his recovery.

129. Concerning the Defendant’s criminal history for the purpose of s.9(3)(g) HRO Act, it was submitted that the Defendant’s index offences were committed in the late 1990s. It was noted that the Defendant had not committed a sexual offence since 1999 and that his breach offences were primarily linked to his drug use as opposed to conduct indicative of sexual reoffending. Attention was drawn to Mr Ardasinski’s suggestion that the Defendant may have reached a “burnout” age for his potential criminality.

130. Mr Johnston SC submitted that the circumstances of this case were similar to those determined by Davies J in State of New South Wales v WT [2019] NSWSC 812, where his Honour declined to make orders at a preliminary hearing and dismissed the Summons.

131. It was submitted that the Defendant has engaged effectively with FPS and community-based counsellors to address his drug abuse and to put in place appropriate protective factors to ensure future stability. It was submitted that the safety of the community had been addressed adequately by the Defendant’s steps taken towards his rehabilitation, and that he is not an unacceptable risk of committing a serious offence if not kept under supervision. If an ESO was not made, it was submitted that the community is afforded the protection of the operation of the Child Protection Register provisions and the order made in June 2019 concerning the Defendant at the Blacktown Local Court.

132. It was submitted for the Defendant that the Summons should be dismissed with costs.

Decision on the Application

133. The task for the Court on the present application is to determine whether the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. I keep in mind that an ESO may only be made if the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. I keep in mind, as well, that the Court is not required to consider that the risk of the Defendant committing a serious offence is more likely than not.

134. As mentioned earlier (at [32]), the outcome of this application is not affected by the legal test to be applied. Whether the Court applied a prima facie case test or a more stringent approach where the test at the final hearing is applied to the facts contained in the “supporting documentation”, the outcome will be the same. I am satisfied that the orders sought by the Plaintiff should be made.

135. It is necessary to keep in mind the primary object of the HRO Act which involves the protection of a community.

136. The Defendant committed serious sexual offences against prepubescent girls over a period of years between 1996 and 1999. The nature and gravity of the offences, together with their repetition, contributed to opinions being formed by Dr Ellis and Dr Roberts in 2012 that the Defendant was appropriately diagnosed as a paedophile, described by Dr Roberts as a “life long propensity”. In reaching this diagnosis, the psychiatrists took into account the circumstances of the offences which revealed a context of intoxication by alcohol or illicit substances at the time of the offences. The substantial sentences of imprisonment imposed upon the Defendant for these offences demonstrate that these were crimes of considerable magnitude committed against young girls who lived in close proximity to the Defendant.

137. The Defendant was released on parole in 2012 when he was 39 years old. By that time, he had demonstrated limited insight into his offending, apparently seeking to avoid the challenging process of confronting the nature and consequences of his own actions.

138. In 2012, Barr AJ readily formed the opinion that an ESO for a three-year period should be ordered under the HRO Act. The Defendant has repeatedly breached the terms of that ESO by way of his use of illegal substances and non-compliance with the conditions of the ESO. These breaches occurred regularly over a period of some six years, despite the currency of the ESO and the various forms of community support and resources which were available to the Defendant. As a result, the three-year ESO is still on foot nearly seven years after it was put in place.

139. The Defendant has not committed any further sexual offence since 2012. It is of no assistance to the Defendant that he committed no sexual offence between 1999 and 2012 as he was in custody serving sentences of imprisonment for the entirety of that period. The absence of sexual offences committed since 2012 assists the Defendant in the area of risk assessment, but this observation must be tempered by the fact that he has been regularly returning to custody for offences throughout that period. Further, when not in custody, the Defendant has been subject to an ESO although regularly breaching the terms of that order. There has been no period since 1999 when the Defendant has been in the community without being subject to conditional liberty in the form of an ESO.

140. Since February 2018, the Defendant has been at large in the community subject to the ESO. Certain breaches occurred in August 2018 which were the subject of an official warning and have not been repeated. There has been a pattern of compliance established which is indicative of a measure of stability on the part of the Defendant. A recent and significant development is his formation of a relationship with a new partner.

141. I have kept in mind the statutory test to be applied at a preliminary hearing. The question is not whether it is socially desirable for the Defendant to continue with the regime which is in place as a result of the ESO. The test to be applied is that contained in ss.5B(d), 7(4) and 10A HRO Act.

142. An assessment as to a level of unacceptable risk cannot be undertaken with scientific certainty. The Court is to apply the various factors identified in s.9(3) HRO Act which accord with experience in this area, where what has happened in the past with a person in the position of the Defendant sheds considerable light upon an assessment as to risk for the future.

143. The appropriate starting point is the diagnosis of paedophilia reached by Dr Ellis and Dr Roberts in 2012. Although Mr Ardasinski has raised a question about that diagnosis, it was and remains an appropriate diagnosis made by experienced psychiatrists. The passage of time since 1999 free of sexual offences is of limited assistance to the Defendant because of his imprisonment and regular re-imprisonment up to February 2018.

144. In truth, there has been a relatively brief period of stability since February 2018. That stability, of course, has been triggered largely by the regime under the ESO which the Defendant finally determined (at the age of 39 years) to accept and comply with to his benefit as well as that of the community.

145. I accept that the expiration of the ESO would still leave in place the various measures to which the Defendant is subject under the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004. It is important to keep in mind that the provisions of those Acts are essentially deterrent or prohibitive in nature.

146. There is no provision in either of those Acts which would require the Defendant to continue psychological counselling or other forms of counselling or treatment for substance use. Those steps would be left to the Defendant to undertake voluntarily if he saw fit. This is a significant aspect on the present application.

147. The prospect of recurrence of alcohol or substance abuse by the Defendant would substantially exacerbate the risk of further child sexual offending given the diagnosis of paedophilia where, in the past, he has committed very serious child sex offences whilst under the influence of alcohol or an illegal substance. It is a most important part of the Defendant’s current ESO regime that he is benefiting from ongoing psychological counselling available through the FPS. That requirement would fall away if the ESO ceases. I accept that the Defendant has indicated a preparedness to take steps for ongoing voluntary counselling, but the concern is what would occur if he enters choppier waters in his life with consequential destabilisation. He has been in decidedly choppy waters between 2012 and 2018 with repeated breaches of the ESO.

148. I have kept in mind the views expressed by Ms McMillan and Ms Tulloh as to whether a further application for an ESO should be made. Whilst acknowledging those comments and the reasons for them, it is the responsibility of the Court to discharge the function entrusted to it by the community under the HRO Act, by reference to the totality of the evidence and having regard to all factors relevant to the statutory decision.

149. Mr Ardasinski is a highly experienced psychologist in this field who reports regularly to this Court on applications under the HRO Act. His opinion is of considerable value. Mr Ardasinski fairly characterises the present position of the Defendant with a number of factors operating in the Defendant’s favour, but with several areas of concern or reservation.

150. It is important for the Court to keep in mind that the present issue is not whether a long-term ESO would be appropriate if the statutory threshold is reached. The question for the Court at this preliminary hearing is whether that threshold is reached in this case, even if it may be that any future ESO that may be imposed might be a relatively short-term one. The Judge called upon to make that decision at the final hearing will have the advantage of two expert reports to allow a truly contemporaneous risk assessment concerning the Defendant.

151. It is important to keep in mind, as well, that the decision-making process under the HRO Act is a fact-specific one depending upon the circumstances of the particular case. I do not think that the Defendant obtains assistance in this case by reliance upon the outcome in State of New South Wales v WT. The understandable outcome in that case was based upon the fact that there was an extended period of some seven years of satisfactory compliance by the defendant with his parole conditions and then his ESO. That is not the case with the present Defendant.

152. Mr Ardasinski’s characterisation of any order in this case as a “bespoke ESO” is a useful concept to keep in mind. There are strengths and weaknesses in the Defendant’s current position which feed into an assessment as to his risk of further serious sexual offending.

153. In all the circumstances, I am satisfied that the statutory threshold has been met in this case by reference to the totality of the evidence adduced at the preliminary hearing. It is appropriate to make an order for psychiatric and psychological examination of the Defendant together with an ISO subject to conditions.

Conditions of the ISO

154. As noted earlier, Mr Johnston SC submitted that, if the Court was minded to make an ISO, the Court should delete the current condition requiring the Defendant to wear electronic monitoring. He submitted that the Defendant has been required to wear electronic monitoring every day of his ESO including the period since February 2018. It was noted that a sunset clause for electronic monitoring after 12 months was raised in the proceedings before Barr AJ in 2012: State of New Wales v KAS at [37]. At that time, the Plaintiff put faith in the discretion of the ESO staff to terminate the condition when required. It was submitted, however, that (as described by Mr Ardasinski) the bureaucratic approval process to allow for progress can take some time. It was submitted in these circumstances that there is no need for an electronic monitoring condition and that it ought be lifted.

155. It was submitted for the Plaintiff that the electronic monitoring condition should be left in place. It was submitted that the Stage 3 level of electronic monitoring, to which the Defendant is subject, did not require a curfew or scheduling so that the restrictions posed by the condition lay at the lowest level. It was submitted that ongoing need for an electronic monitoring condition should be left for the appropriate officers to consider as part of the ISO.

156. The Defendant obtains limited assistance with respect to the electronic monitoring issue arising from what was said in 2012. The fact is that the Defendant had a sustained period of fractured compliance or non-compliance with the ESO between 2012 and early 2018. The existence of electronic monitoring throughout that period cannot be assessed in the manner expected when Barr AJ made the order for an ESO in 2012.

157. It is the case that the evidence before the Court on this application provides limited support for the ongoing requirement of an electronic monitoring condition. However, Mr Ardasinski has described a process where that condition can be considered further with the prospect of removal.

158. It is a matter for the Court to determine whether electronic monitoring ought remain for the moment, subject to discretionary decision making by relevant officers for the purposes of the ISO.

159. The electronic monitoring condition forms part of an overall set of conditions which have belatedly seen an established pattern of compliance and improvement by the Defendant since 2018. Having determined to set an ISO, it is appropriate, in my view, for the electronic monitoring condition to remain, but in the expectation there will be an assessment made concerning the need for that condition by those with an overview of the Defendant’s circumstances. I am satisfied that an electronic monitoring condition should remain in place for the limited time involved in the ISO, noting that the condition operates at the lowest level of intrusiveness and is subject to discretionary removal if it was considered appropriate to do so.

160. No submission was made on behalf of the Defendant with respect to any other proposed condition of the ISO and I am satisfied that each of those conditions should be included in the ISO.

Conclusion

161. I am satisfied that an ISO should be made in this case, together with an order for examination of the Defendant by a psychiatrist and a psychologist and with associated orders. I am satisfied that the conditions sought by the Plaintiff should be included in the ISO including an electronic monitoring condition.

161. If the Court determines at the final hearing that an ESO should be made, it will, of course, be a matter for the Judge presiding at that hearing to determine what conditions should be fixed as part of an ESO, and the duration of such an order.

162. I make the following orders:

1. an order pursuant to s.7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) appointing a psychiatrist and a psychologist to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;

2. an order directing the Defendant to attend those examinations;

3. an order pursuant to s.10A of the Act that the Defendant be subject to an interim supervision order from 27 July 2019 for a period of 28 days;

4. an order pursuant to s.11 of the Act directing that the Defendant comply with the conditions of the interim supervision order which are set out in the Schedule to this judgment;

5. an order restricting access to the Supreme Court file in respect of this proceeding so that access will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties have had notice of the non-party’s application for access and have been afforded an opportunity to be heard.

164. I will consider making such further orders as are appropriate to progress the application for final hearing after hearing the parties on that matter.

*********

SCHEDULE OF CONDITIONS OF SUPERVISION

KAS

Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

CSNSW will administer the interim supervision order (ISO) and extended supervision order (ESO)

The defendant must report to the DSO or any other person supervising him as directed by the DSO

The defendant must comply with any reasonable direction given by his DSO or their delegate from CSNSW, for the enforcement and implementation of the ISO/ESO or any condition of the Order Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service

Electronic Monitoring

4a) The defendant must wear electronic monitoring as directed by the DSO or any other person supervising him, and

b)    Electronic monitoring will only be imposed if it is required to manage the defendant's risk because the DSO, in consultation with the defendant's healthcare or mental health practitioner(s), reasonably suspects the defendant's behaviour or conduct is associated with an increased risk of the defendant committing a serious offence.

Schedule of Movements

The defendant must truthfully answer questions from his DSO, or any other person supervising him, about his past, present and proposed future movements and activities

If the defendant is charged with any offence of breaching the Order or with any other criminal offence, then the following conditions 6 a 6 c will apply

a 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

b 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

c The defendant must not deviate from his approved schedule of movements except in an emergency, or if there is a reasonable explanation for the deviation which is provided to his DSO or any other person supervising him as soon as possible and in any case no later than 24 hours after the deviation.

7   If conditions 6 a - 6 c are activated upon the defendant being charged with an offence, and the charge for that offence is later withdrawn or dismissed or the defendant is acquitted in relation to it, then that charge can no longer be a basis for the activation of conditions 6 a - 6c.

Part B: Accommodation

The defendant must live at an address approved by his DSO.

The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

Part C: Place and travel restrictions

The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW ('the Commissioner').

The defendant must surrender any passports held by the defendant to the Commissioner.

The defendant must comply with any reasonable direction from his DSO not to go to a particular place.

Part D: Employment, finance and education

The defendant must not start any form of employment, volunteer work or educational course without the approval of his DSO.

The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol

15   The defendant must not:

possess or use alcohol without the prior approval of his DSO, or

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

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

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.

Part F: Non-association

Association with Children

18 The defendant must not approach or have contact with anyone who he knows or reasonably should know is under 18, other than:

a incidental contact in a public place in the course of the duties of the minor, or

b with the written permission of his DSO and in accordance with any requirements reasonably determined by the DSO, including that the contact takes place in the presence of an adult who has been approved in writing by his DSO.

Associations with Others (not children)

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

The defendant must not knowingly associate with any people who are consuming or under the influence of illegal drugs.

If the defendant starts an intimate relationship with someone, he has to tell his DSO as soon as practicable, the name of that person and truthfully answer any questions that the DSO asks regarding that relationship.

Having assessed the nature and progress of that relationship the defendant has identified in the above condition 21, the DSO may tell the person about his criminal history The DSO will notify the defendant of the intended disclosure and the defendant must permit it.

The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part G: Access to the internet and other electronic communication

The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet This includes phones, tablet devices, data storage devices or computers This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices (Devices), including but not limited to:

a producing his Devices if requested to do so by the DSO,

b prohibiting the defendant deleting records on Devices regarding searches carried out using search engines, websites accessed, text messages sent and received, emails sent and received, and data downloaded, and

c any reasonable directions relating to his access and use of the internet.

26   The defendant must submit to CSNSW searching any Device that he may use The power to search includes but is not limited to:

a CSNSW inspecting his Device's logs, text messages sent and received, emails sent and received, images or data downloaded and records regarding searches using search engines and websites accessed,

b CSNSW photographing text or images or screenshots on his Device and downloading data from the Devices using hardware and software that CSNSW determines is necessary to carry out that download,

c CSNSW seizing the Device for the purposes of examination and or preservation of evidence in connection with suspected breaches of interim or extended supervision orders made by the court or any other criminal offence punishable by a maximum of 2 years or more imprisonment.

The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, social media accounts in monitoring compliance with this order.

The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory listed in condition 24 immediately.

Part H: Search and seizure

30   If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary:

a for the safety and welfare of residents or staff or persons present at the defendant's approved address,

b to monitor the defendant's compliance with this order, or

c because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence,

then the DSO may direct, and the defendant must submit to

d search and inspection of any part of, or any thing in, the defendant's approved address,

e search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant,

f search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant, and/or

g search and examination of his person.

31   For the purposes of the above condition:

a a search of the defendant means a garment search or a pat-down search

b to the extent practicable a pat down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

32   During a search carried out pursuant to condition 30 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

a the safety of residents or of staff at the defendant's approved address,

b the welfare or safety of any member of the public or any other person, or

c the defendant's compliance with this order,

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions [30] to [33] above.

Part I: Personal details and appearance

The defendant must not change his name from “[KAS]" or use any other name without the approval of his DSO.

The defendant must not use any alias, log-in name, or a name other than “[KAS]" or use any email address other than those known to the DSO under condition 24 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

The defendant must not significantly change his appearance without the approval of his DSO.

The defendant must let CSNSW photograph him.

If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part J: Medical intervention and treatment

The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

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 for his non attendance.

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.

If the defendant knowingly ceases to take medication for the treatment of his mental health 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 or not commencing the medication as recommended.

The defendant must agree to his healthcare practitioners sharing with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioners general opinion as to the development of his insight into offending risk factors and attitudes to reduce his risk of offending.

45 The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Decision last updated: 19 July 2019