State of New South Wales v King

[2015] NSWSC 74

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v King [2015] NSWSC 74
Hearing dates:	13 February 2015
Date of orders:	17 February 2015
Decision date:	17 February 2015
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Extended supervision order for a period of five years with conditions
Catchwords:	CRIMINAL LAW – Crimes (High Risk Offenders) Act – application for extended supervision order – dispute as to length of order and certain conditions – where defendant diagnosed with paedophilia and substance use disorder – where assessed risk of re-offending is high – order made for five years
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	R v King [2009] NSWCCA 117 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Green (Final) [2013] NSWSC 1003
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Ronald Dean King (Defendant)
Representation:	Counsel: Ms G Wright (Plaintiff) Mr P Johnson (Defendant) Solicitors: Crown Solicitors Legal Aid NSW
File Number(s):	2014/313078

Judgment

1. HIS HONOUR: The State of New South Wales ("the State") has applied for an extended supervision order for a period of five years in respect of Mr Ronald Dean King ("the defendant") pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").

2. The State commenced proceedings by the filing of a summons in this Court on 24 October 2014. A preliminary hearing was held by Hidden J on 21 November 2014. His Honour appointed two psychiatrists, Dr Andrew Ellis and Dr Jeremy O'Dea, to conduct examinations of the defendant and furnish reports. Her Honour also made an interim supervision order. Such order has been continued by other judges of the court until now.

3. The defendant does not consent but he does not contest the making of an order. The dispute in the matter is confined to the length of the order and the appropriateness of certain conditions proposed by the State. Notwithstanding the concession, it is necessary for me to be satisfied that all of the statutory pre-conditions for the making of an order are established.

4. A number of affidavits and a substantial volume of documentary evidence was read and tendered without objection and none of the deponents and authors were required for cross-examination.

The defendant and his criminal history

5. In deciding whether or not to make an extended supervision order the Court must have regard to certain matters: s 9(3). I do not intend to go into detail about each of those matters but will confine myself to those that are more prominent in this case. One of them is the defendant's criminal history and any pattern of offending behaviour disclosed by it: s 9(3)(h).

6. The defendant was born in 1984 and so is now 30 years of age. He has a criminal history which goes back to when he was 15 years old. Offences for which he was dealt with in the Children's Court include break, enter and steal; damaging property; stealing; entering prescribed premises without lawful excuse; taking and driving a car without the owner's consent; car theft; assaulting and resisting a police officer in the execution of the officers' duty; and stealing from the person. There are multiple entries for many of these offences, particularly for break, enter and steal. The defendant was sent to juvenile detention on a number of occasions.

7. As an adult, the defendant's criminal history continued unabated with convictions for similar types of offences. There are a number of drug possession offences and it seems clear that substance abuse was an underlying factor in relation to much of the offending.

8. The defendant received a variety of sentencing outcomes: fines, probation, community service orders, control orders and imprisonment. In February 2009 he received a suspended sentence good behaviour bond in respect of the index offence but the Crown appealed. The Court of Criminal Appeal concluded that the sentence was manifestly inadequate and re-sentenced him to a term of imprisonment for 7 years with a non-parole period of 4 years 6 months with effect from 28 November 2007: R v King [2009] NSWCCA 117.

9. The defendant was released on parole on 20 August 2012. However, his parole was revoked and he returned to prison on 14 December 2012 and served the remainder of his sentence until 30 November 2014. Parole was revoked because of his breach of an alcohol abstention condition.

10. The custodial history record indicates a number of punishments were imposed on the defendant for inmate disciplinary offences (including fighting; failing to comply with routine; drug or drug implement possession; intimidation; failure to supply urine sample for drug testing; and disobeying directions).

11. The index offence was one of sexual intercourse with a child under the age of 10. Offences of committing an act of indecency with a person under 16, stealing property in a dwelling-house, and taking and driving a conveyance without the owner's consent were taken into account in sentencing. The facts, as summarised in the written submissions by counsel for the State, were:

"On 22 November 2007, when aged 23, the offender entered a residence and walked into a bedroom where a four year old female was asleep. The offender turned off the night-light and removed his pants and underwear. He then removed the child’s clothes and underwear and penetrated her vagina with his finger. The child woke up and told him to go away. The offender masturbated while leaning over the child, and ejaculated onto the bedclothes. He then left the room leaving behind his underpants. DNA evidence ultimately identified the offender in the offence. The offender was said to be heavily intoxicated at the time of the offence.

In addition to being charged with Sexual intercourse with person under the age of 10 years, the offender was also charged with Commit act of indecency with person under 16 years, Steal property in dwelling house, and Take and drive conveyance without consent of driver. In this, it will be seen that the index offence took place in the context of breaking and entering a home, and in the context of theft.”

12. There was evidence that the defendant was affected by alcohol at the time but the Court of Criminal Appeal (McClellan CJ at CL, Grove and Howie JJ) said this about that fact (at [47]):

"It is clear that the Judge gave substantial weight to the respondent's intoxication as reducing the seriousness of his conduct. In light of the respondent's history of alcohol abuse and the commission of crimes while intoxicated, there was no mitigation in the fact that he was intoxicated. It may explain what was out of character conduct so far as the sexual assault was concerned but it did not excuse it. By reason of his record and his failed chances at rehabilitation, his intoxication was aggravating so far as his entering the house in order to steal property was concerned."

13. The Court also had the following to say about the defendant's prospects of rehabilitation:

[60] … The overwhelming likelihood was that the respondent would continue to re-offend. He had been given opportunities in the past and refused to accept the restrictions of rehabilitation or parole. Efforts by his parents and professionals to address his drinking and hence his offending had proved fruitless. His Honour's finding flew in the face of the psychiatrist's assessment of the likelihood of the respondent's further offending without treatment.

…

[62] … As we have noted, the respondent had been given ample opportunities to reform including being given two suspended sentences shortly before the current offence was committed. He had flouted them all.

…

[64] … There was insufficient regard paid to the fact that the respondent was subject to suspended sentences at the time of the offending and the impact of that fact and his earlier parole violation on his prospects of rehabilitation.

14. The submissions for the State point out that whilst this matter was the only occasion of the defendant committing a sexual offence, two of the break and enter offences on his record involved him being in the bedroom of female children. In January 2001 he entered a home at about 2.00am and went into a bedroom where two children aged two and seven were sleeping. He removed the two year old from the bed and placed her on the floor. He then got into bed with the seven year old female. She woke to find him in the bed and ran out to tell her relative. The defendant had left by the time the child returned to the bedroom.

15. Earlier that same evening, the defendant had entered another home but was detected and fled before anything happened. These offences were committed in breach of a bail curfew condition. The Children's Court imposed a fine of $150 fine for the offence of entering prescribed premises without lawful excuse.

16. In March 2005 the defendant entered a home and went into a bedroom where an 11 year old girl was sleeping. This home was in the same street as where the index offence occurred. The child woke to find the defendant standing over the top of her face. She called out to a relative and ran from the room but he chased and grabbed her. Fortunately she was able to break free and find her relative. The defendant was confronted by family members and was apprehended by police a short time later. He was charged with a break and enter offence and was sentenced to 12 months imprisonment.

17. Generally as to the defendant's criminal history I accept the submission of counsel for the State that it indicates "an ongoing and entrenched pattern of poor self-regulation and ongoing substance abuse."

Compliance with obligations whilst on parole (s 9(3)(f))

18. An offender's compliance with any obligations while on parole is a relevant matter to be taken into account. It seems that the defendant struggled to comply with his obligations when on parole in 2012. He lived for a short time with relatives in Dee Why but then moved to a half-way house (a "COSP" centre) at Malabar administered by Corrective Services NSW. It is a requirement that residents at a COSP centre comply with strict rules but the defendant struggled to do so; he ceased taking his Suboxone maintenance treatment for opioid dependence without medical advice; failed to comply with requests to engage with professional support to assist him to maintain abstinence from alcohol and other drug use; admitted to cannabis use on one occasion; deviated from his mandated schedule; was warned about bullying other residents; failed to attend appointments; and was found in possession of synthetic cannabis.

19. The defendant was evicted from the COSP centre in late November 2012 and began living in a boarding house in Marrickville. A few days later he was observed to be inebriated at La Perouse and police found him in possession of two bags of cask wine. He breached a rule at the boarding house about having overnight visitors. Then, on 11 December 2012 when reporting to his parole officer, he was breathalysed and returned a blood alcohol reading of 0.181. His parole was soon revoked for breach of the alcohol abstention condition.

20. The defendant continued to exhibit non-compliant behaviour following his return from custody. Notes from the Corrective Services' computerised file include references to him lacking co-operation with nursing and custodial staff; being dismissive and arrogant; adopting a belligerent attitude; being verbally aggressive; showing contempt for officers, procedures and local routine; and being manipulative and aggressive if denied a request. He was dealt with for two disciplinary offences ("fight or other combat" and "possess drug implement").

Participation in rehabilitation programs (s 9(3)(e))

21. The defendant completed the CUBIT (Custody Based Intensive Therapy) program prior to being released on parole in 2012. His participation was described as "satisfactory". He is said to have "demonstrated insight into issues relating to his offending behaviour and appeared committed to addressing these". He was also said to have "demonstrated high motivation to implement behavioural changes".

22. On a negative note, however, Mr Samuel Ardasinski, a senior psychologist with Corrective Services who prepared a Risk Assessment Report, noted that the prior break and enter offences in 2001 and 2005 in which the defendant was found in the bedrooms of underage female children, were not raised in CUBIT. Accordingly his therapist did not challenge him about that prior behaviour. Whether or not the defendant would have acknowledged a sexual motive for those offences or not, less weight might have been given to his proclivity for such deviant criminal behaviours in the future.

23. The defendant engaged with a Community-Based Maintenance Program during his period on parole. Mr Ardasinski's review of the records led him to say, "his participation would best be described as superficial, and the tenor of his progress notes is indicative of an individual who was attending group because it was expected of him, but who failed to engage adequately in the program to assist him with his reintegration". He also observed that the defendant seemed not to have incorporated what he learned about risk management in CUBIT into the real world: he engaged in excessive alcohol abuse, as well as recreational drug use (in breach of his parole); associated with unhelpful peers; displayed sensitivity to criticism and rejection; and demonstrated a sense of entitlement and unhealthy attitudes towards sex. The defendant admitted to all of this, only denying the "last warning sign" of having sexual thoughts about children.

24. The defendant participated in the Custody-Based Maintenance Program following his return to custody. His progress was mixed. It was noted that he "presented as generally unmotivated to participate in custody-based maintenance sessions as evidence by his unexplained absences and keenness to finish sessions prior to their scheduled time". However, he was also described as an active member who was generally engaged within the sessions. He indicated an intellectual understanding of concepts presented within past therapeutic groups and was able to relate this knowledge to his own life and circumstances. This prompted Mr Ardasinski to opine that the defendant appeared able, in the custodial setting, to articulate the issues he has had in the community and yet he still engaged in those risky behaviours when at liberty.

25. Mr Ardasinski expressed concern about whether the defendant had the capacity to self-manage his real risk of re-offending in any future release to the community without intensive supervision and ongoing support.

26. The defendant has engaged in other programs in relation to his substance abuse issues but the results have been mixed. When most recently in the community (on parole) he failed to undertake any form of AOD intervention, despite being directed to do so.

Risk of future offending

Mr Samuel Ardasinski

27. Mr Ardasinski referred to various assessments which have been made concerning the defendant's risk of re-offending. Administration of the "Level of Service Inventory - Revised" actuarial instrument (described as "a robust predictor of future offending" but it "omits numerous risk factors specific to sexual violence") in October 2013, showed his "risk/needs falling in the High range, relative to other male offenders".

28. Another actuarial instrument specific to sexual re-offending, STATIC-99R, indicated that he was in the "High risk category relative to other male sexual offenders". Another measure known as STABLE-2007 also scored the defendant in the "high risk category relative to other male sexual offenders". A combination of scores under both these instruments "yields a High overall risk level".

29. The Risk of Sexual Violence Protocol was administered by Mr Ardasinski and also brought a result of "High risk of committing further sexual violence".

30. Mr Ardasinski identified the following dynamic factors that were potentially relevant to the defendant's risk of sexual re-offending:

●   Substance abuse

●   Relationships and unhealthy peer associations

●   Possible deviant sexual interest

●   Impulsivity and poor capacity to plan

●   Poor stress coping and cultural disconnection

●   Poor work ethic and self-esteem issues

●   Compliance with supervision

●   Lack of community support and suitable accommodation

31. Under the heading "Overall Risk", Mr Ardasinski concluded:

"The overall totality of evidence suggests that Mr King falls in the High risk category of sexual and other criminal offending relative to other adult male sexual offenders. It is not clear to what extent any future sexual violence or other criminal offending would approach the threshold of a “serious sexual offence” as defined in the Crimes (High Risk Offenders) Act 2006.”

Dr Jeremy O'Dea

32. Dr O'Dea examined the defendant on 8 December 2014. He provided Dr O'Dea with a detailed family, developmental, alcohol and other drug and forensic history which included the following.

33. The defendant was expelled from high school for cannabis use. He moved to another school but never completed high school. He told Dr O'Dea about his "extensive" use and abuse of alcohol and other drugs from a very early age. He first used cannabis in primary school and his use quickly escalated to daily. The defendant reported a heavy dependence on alcohol, describing himself as an alcoholic from the age of 18. He would regularly experience "blackouts". He also experienced withdrawal symptoms from alcohol and subsequently developed a reliance on prescription drugs. He had also experimented with illegal drugs including "eccies", speed, ice and heroin.

34. The defendant's account of the index offence to Dr O'Dea was piecemeal. He said that he was intoxicated from alcohol and Serepax and was looking for a car to drive himself home. He remembers assaulting the victim but could not explain his motivations for the assault.

35. The defendant told Dr O'Dea he had access to pornography as a child. He viewed pornographic videos and magazines of adult heterosexual activity that he found at his home. He began masturbating in Year 7 or Year 8 and had his first sexual partner when he was 16 or 17. The defendant has not had a steady girlfriend at any time. He described his female sexual partners "more like friends with benefits".

36. While the defendant did not report a particular sexual interest in female children, Dr O'Dea noted the prior convictions for what he termed "potentially sex related offences" which, like the index offence, involved female children. The defendant told Dr O'Dea that he did not remember anything about these offences. When questioned about the possibility that he might have a sexual attraction toward children the defendant said to Dr O'Dea, "I find women of my age more attractive", however Dr O'Dea noted that the defendant became guarded and flustered when discussing this topic.

37. Dr O'Dea referred to the defendant's progress in custody, noting that he committed "a number of institutional rule violations" prior to his release on parole in 2012. When he returned to custody in December 2012, the defendant "attracted less institutional misconduct charges".

38. The defendant claimed he was currently "coping OK". He reported experiencing some anxiety in public and told Dr O'Dea that he was "too nervous to be around people". He said that he was "ashamed" to be identified as a child sex offender.

39. Dr O'Dea diagnosed the defendant with a Substance Use Disorder. He emphasised the importance of the defendant's abstinence from alcohol, cannabis and other illicit substances in order to minimise his risk of re-offending. He recommended drug counselling and rehabilitation, referral to a forensic psychiatrist and testosterone lowering medication.

40. Dr O'Dea assessed the defendant's risk of re-offending as follows:

"Whilst Mr King has been convicted of one serious sex offence … on the basis of his history of repeated offending, including at least 2 prior sets of offences of a potentially similar nature, his history of substance use disorder yet to be assuredly under control, his personality, and his progress in custody and on parole in the community, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence …

…

Indeed, if Mr King were to continue to use alcohol or illicit psychoactive substances in the community, then his risk of engaging in further sex offending behaviours in the community, at least in the long term, including of committing a further serious sex offence, as defined in [the Act] may be considered to be unacceptably high."

Dr Andrew Ellis

41. Dr Ellis examined the defendant on 19 January 2015. The psychosexual history provided by the defendant included additional information about his previous sexual encounters. He recalled that he was heavily intoxicated during his first sexual experience. The defendant and his partner were both aged 16. Each of his subsequent sexual partners (approximately seven) were female and of the same age as the defendant. The defendant told Dr Ellis that he masturbates around three times a week to video pornography and thoughts of an old girlfriend.

42. The defendant reported an awareness of sexual attraction to younger females. He said that when he was 18 he would masturbate to thoughts of a thirteen year old female school friend. He told Dr Ellis that he still has these thoughts but feels that he is now able to ignore them. The defendant did not report masturbating to images of female children around the time of the index offence.

43. Dr Ellis's diagnosis of "primary concern" is a paraphilic disorder (Paedophilia). He noted that paraphilic disorders are "chronic relapsing conditions". He also diagnosed an Antisocial Personality Disorder and a Substance Use Disorder. Dr Ellis described the defendant's psychiatric disorders as "chronic and likely to persist beyond any period of supervision".

44. In the section of his report dealing with the assessment of risk of re-offending, Dr Ellis included:

"Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. Mr King’s offence history indicates this pattern of arousal preceding the offences, and escalating from fantasy to masturbatory activity, to entering houses without sexual offending, culminating in an index offence of sexual activity with a minor. There is a direct nexus, although not recognised by Mr King between his masturbatory fantasy, early offending and later criminal action. Invasive action and some physical coercion was employed in order to gain access [to] the young victims. His pattern of offending has been present over years and gradually escalated. He displays a specific stereotype of victim attuned to his fantasy. Anti-libidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal.

Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is diagnosed with antisocial personality disorder. … There is therefore need to continually address personality function as part of any ongoing treatment process.

…

Substance use is prominent in this case with dependent levels of consumption of at least three difference substances. He reports being intoxicated for the offences. Substance use may serve to disinhibit underlying deviant sexual arousal. The offences are not consistent with intoxication alone due to the similarity across time and for the index offence the level of sexual arousal displayed."

45. Dr Ellis concluded that the defendant "would fall into a group of persons with a risk for serious sexual offending that is statistically high in frequency and of a type with serious consequences and greater than a theoretical average offender". Dr Ellis recommended "specific treatment and supervision" in order to reduce this risk.

Conclusion as to making an order

46. Having reviewed all of the material I am satisfied that Mr King is a "sex offender" within the meaning of that term in s 4 of the Act: he is over the age of 18 and he has been sentenced to imprisonment following his conviction for a "serious sex offence", namely sexual intercourse with a child under the age of 10, contrary to s 66A(1) of the Crimes Act 1900 (NSW) which is punishable by imprisonment for 25 years.

47. I am satisfied, that he is also a "high risk sex offender" within the meaning of that term in s 5B. I accept the unchallenged expert opinions and am satisfied that there is a high degree of probability that Mr King poses an unacceptable risk of committing a "serious sex offence" (as defined in s 5(1)) if he is not kept under supervision.

48. Having regard to the experts’ support for the making of an extended supervision order I propose to accede to the application. It remains to determine the following issues.

Duration

49. Detailed submissions were made by both counsel as to the suitable duration of an order. The State's position was that a period of five years was appropriate and was supported by the two court-appointed psychiatrists. The defendant contended that a determination should be made as to what was the minimum period to achieve the objects of the Act. It was submitted that the outcome should be an order of 3 years duration.

50. I accept that subjecting a person to an extended supervision order is to impose severe restrictions upon his or her personal liberty. However, I do not accept that the question is one of determining the "minimum period" but rather one of determining a period which is reasonable and appropriate, based upon the evidence and bearing in mind the objects of the Act set out in s 3: to ensure the safety and protection of the community ("the primary object") and to encourage offenders to undertake rehabilitation ("another object").

51. The evidence included the following opinion expressed by Dr O'Dea:

“Mr King’s risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community, is likely to be long term, and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress.”

52. Dr Ellis' view of the appropriate term of an order was as follows:

“From a psychiatric perspective a period of five years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid psychiatric conditions of personality and substance use impact upon likely treatment and supervision response. It is most likely that a period of 24 months will be required to secure stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. A further 36 months of regular treatment in a psychological program, coupled with regular review of medication, such as antidepressants, anticraving medication and antilibidinals should they be prescribed would be necessary. The psychological program should focus on methods for controlling deviant sexual arousal. This period is estimated based on his current mental state, paraphilia, personality disorder and current attitudes to supervision that will be unlikely to change in the short term.”

53. I accept those opinions. I propose to make an order for a period of five years.

Conditions

54. Mr Johnson, counsel for the defendant, made submissions addressing the appropriateness of a number of conditions proposed by the State. The State agreed that some of them could be deleted. It remains for me to determine the appropriateness of those which were pressed by the State.

55. Beech-Jones J recently observed in State of New South Wales v Burns [2014] NSWSC 1014:

"[59] In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender, in this case Mr Burns, to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender."

56. Mr Johnson, counsel for the defendant, reminded me of what I had said in State of NSW v Green (Final) [2013] NSWSC 1003:

"[36] Ms Mathur submitted on behalf of Mr Green that any conditions attaching to the order ought to specifically address issues relevant to currently identified risk factors in relation to future offending. Further, it was submitted that the conditions should be limited to addressing conduct regarding the risk of future serious sex offences as opposed to criminal offending generally.

[37] It was acknowledged that the primary object of the Act was concerned with ensuring the safety and protection of the community. But the other object of the Act specified in s 3 was to encourage offenders to undertake rehabilitation. Accordingly, it was submitted that conditions ought not be imposed that are unjustifiably onerous or simply punitive.

[38] I accept those submissions."

Unauthorised persons not permitted in defendant's home

57. The State proposes a number of conditions under the heading "Part B Accommodation". They include that he must live at an address approved by his Departmental supervising officer; obey all reasonable instructions if he is in a residential facility; not stay overnight elsewhere unless with prior approval; permit visits by supervisors; and, if directed, obey a curfew. The condition to which objection is taken is:

3. The defendant must not permit any person to enter and remain, or to stay overnight, at the defendant's approved address, without the prior approval of the Departmental supervising officer.

58. Counsel for the defendant submitted that this should be limited to persons under the age of 18. There is little, if any, cause for concern about the defendant's potential for offending against adults. This condition would impede his ability to form pro-social friendships with adults, such as neighbours. For example, it would prohibit an impromptu invitation to a neighbour to come into his home for a cup of tea.

59. Counsel for the State indicated the condition was directed at reducing the potential for unhealthy peer associations, particularly in the context of concerns about the connection between the defendant’s drinking, substance abuse and sexual activity generally.

60. Mr Johnson's rejoinder was that there are already conditions prohibiting alcohol and drug use as well as a condition prohibiting contact with any person nominated by his supervisor.

61. There was some discussion at the hearing of the matter last week about whether this condition could be relaxed after some passage of time in circumstances where the concern that prompted the State to press for its inclusion had sufficiently abated. The upshot was a proposed "Note" included after condition A4: that the defendant's supervisors had discretion to adjust the manner in which conditions are implemented and enforced.

62. At least theoretically, criminal sanctions may follow breach of a condition and someone may take a different view to a supervisor as to whether they should be pursued. Accordingly, I am not satisfied that the inclusion of the "Note" will suffice. I accept the submissions of the State as to the need for condition B3 to be included but I propose including the following words, found in a number of other proposed conditions, to have the effect that the condition applies only for so long as it is deemed necessary, namely "if directed by the Departmental supervising officer".

Adult accompaniment when attending certain places

63. Part C of the proposed conditions provides for place and travel restrictions. Condition 4 prohibits the defendant attending places such as schools, cinemas, children's playgrounds and the like without prior permission and without an approved adult accompanying him. The defendant opposed the requirement for an adult to accompany him because, apart from an aunt and uncle, he has no support network in Sydney (he derives from a country location). Counsel also pointed to the general requirement for the defendant to give notice and obtain prior approval for his movements.

64. In response, the State proposed an amendment to this requirement by adding the words "if directed". Counsel maintained that the condition was necessary but that this amendment would give the supervising officer some discretion after an assessment of any risk that might attach to the place the defendant sought to attend.

65. There is proposed a general requirement (in Part A condition 3) that the defendant must comply with all reasonable directions given by a supervisor. I do not see that the condition that he be accompanied by an adult if his supervisor directs is any more onerous than compliance with that overarching condition. The condition, as amended, should be included for the sake of clarity.

Control over business and financial affairs

66. Conditions 5 to 7 in Part D relate to a variety of financial and business affairs in which the defendant might engage and prohibits any such engagement "without prior approval of the Departmental supervising officer".

67. The defendant opposed these conditions upon the basis that they were unnecessary as they did not address issues relevant to currently identified risk factors in relation to future serious sex offending.

68. Counsel for the State submitted that these conditions were "part of the mechanism of holistic rehabilitation of the offender" and were aimed at assisting him after a lengthy period of incarceration. More specifically, they were included in recognition of the risk of alcohol and substance abuse when surplus income was available, noting the link between past offending and such abuse. It was also submitted that these conditions would assist in monitoring the defendant's relationships and associations.

69. I accept the concern that prompts the State to press for inclusion of these conditions. But there is also merit in the submissions for the defendant. I have come to the view that the purposes of the State would be served, and the rather draconian nature of the proposed conditions ameliorated, if they were modified so as not to prohibit the nominated activities but require the defendant to inform his supervisor with 48 hours if he engages in any of them and provide such details as the officer may require.

Orders

70. I make the following orders:

1.   Pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 the defendant is subject to a high risk sex offender extended supervision order for a period of five years expiring on 16 August 2020.

2. Pursuant to s 11 of the Act the defendant is directed for the period of the order to comply with the conditions set out in the schedule to the order.

3.   The plaintiff is permitted to provide the reports of Dr Andrew Ellis and Dr Jeremy O’Dea in these proceedings to:

(a)   any psychiatrist and psychologist involved in treating and/or counselling the defendant;

(b)   Community Corrections officers involved in the defendant’s supervision.

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Decision last updated: 17 February 2015