State of New South Wales v Morgan (Final)

[2024] NSWSC 1252

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Morgan (Final) [2024] NSWSC 1252

Hearing dates:

9 October 2024

Date of orders:

14 October 2024

Decision date:

14 October 2024

Jurisdiction:

Common Law

Before:

R A Hulme AJ

Decision:

Extended supervision order made for period of five years with conditions

Catchwords:

HIGH RISK OFFENDERS – final hearing – extended supervision order – dispute confined to conditions –statement by victim supporting order and conditions – no question of principle

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

State of New South Wales v Morgan (Preliminary) [2024] NSWSC 892

State of New South Wales v O’Hara (Final) [2024] NSWSC 225

State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Darryl Peter Morgan, also known as Darryl Peter Ross (Defendant)

Representation:

Counsel:
Ms D New (Plaintiff)
Dr A Hughes (Defendant)

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

File Number(s):

2024/00141423

JUDGMENT

1. The State of New South Wales has applied for a 5-year extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to Mr Darryl Peter Morgan, sometimes known as Darryl Peter Ross. ^[1]

   1. His first name is sometimes spelt “Daryl”.

2. On 26 July 2024, Wilson J ordered the appointment of two experts to assess Mr Morgan’s risk of serious sex offending and made an interim supervision order: State of New South Wales v Morgan (Preliminary) [2024] NSWSC 892. Mr Morgan was then in custody serving the balance of parole of a sentence for sex offences and on remand for charges of possessing bestiality material. The interim order did not commence until he was released on bail on 23 August 2024 after the balance of parole had expired on 28 July 2024.

3. There is no dispute that Mr Morgan qualifies as a person in respect of whom an extended supervision order may be made. All the statutory pre-trial procedures have been complied with and the preconditions for the making of an extended supervision order are met.

4. The critical issue is whether there is “a high degree of probability that [Mr Morgan] poses an unacceptable risk of committing another serious [sex] offence if not kept under supervision”: s 5B(d) of the Act. Mr Morgan concedes that in light of his history and the reports of the two court-appointed experts it is “almost inevitable” that an order will be made and he “does not wish to be heard” in that respect. He does, however, take issue with some of the conditions proposed by the State.

5. Having regard to the limited controversy raised by Mr Morgan there is no useful purpose served by setting out references to the legislation and the principles that have developed concerning its application. Such matters are readily found in numerous judgments of the Court, a helpful recent example being that of Chen J in State of New South Wales v O’Hara (Final) [2024] NSWSC 225 at [8]-[34] and [120].

The Evidence

6. The evidence which was tendered before Wilson J is again before the Court and it has been supplemented by the reports of the court-appointed expert psychologists, Dr Carollyne Youssef and Ms Tatyana Leist and an affidavit annexing further documents. An affidavit affirmed by Mr Morgan’s solicitor annexed more documents.

7. Wilson J provided a summary of the applicant’s criminal history in her judgment at [11]-[32] which I gratefully adopt. The following matters are highlighted. (The pseudonyms used are the same as adopted by Wilson J and are necessary to comply with statutory prohibitions upon identification of children and victims of sexual offences.)

8. Mr Morgan was born in 1954 and is now 69 years of age.

9. In 1976 he was convicted of having carnal knowledge of a 13-year-old girl. Sentencing was deferred upon him entering into a two-year recognizance to be of good behaviour.

10. In 1977 he was sentenced to 18 months penal servitude for maliciously killing a horse which was to be served concurrently with sentences for dishonesty offences. The relevance of this will become clear below in a review of the expert evidence and a consideration of a condition the State asks to be imposed.

11. In 1981 charges of rape and indecent assault were terminated by the Attorney General.

12. On 23 August 1990 Mr Morgan was sentenced to imprisonment for 4 years, with a minimum term of 3 years, for two offences of having sexual intercourse without consent with Ms A, an adult. The facts were recounted by Wilson J at [12]-[13].

13. That sentence was imposed by the Court of Criminal Appeal when it upheld a Crown appeal against the manifest inadequacy of a sentence imposed in the District Court – an order that Mr Morgan enter into a recognizance to be of good behaviour. After recounting the facts, Badgery-Parker J observed that Mr Morgan “behaved in a way well calculated to terrorise” the victim. ^[2]

    2. Exhibit MM1, p241

14. On 14 September 1990 Mr Morgan was sentenced to imprisonment for 8 years, 4 months with a minimum term of 7 years for offences of having sexual intercourse without consent with Ms B and Ms C, girls aged 13 and 15. The offences were committed after he offered the girls a lift on the pretext that he was a police officer. There was an order that the sentence commence upon the expiration of the minimum term of the earlier sentence. The total effect was that Mr Morgan would serve 10 years before becoming eligible for release on parole. The facts were recounted by Wilson J at [15].

15. In his remarks on sentence, Shillington QC DCJ said to Mr Morgan he was “satisfied that you have a very deep psychiatric problem and that you are certainly a potential danger in particular to young women”. ^[3]

    3. Exhibit MM1, p204

16. On 7 October 2016 Mr Morgan received an aggregate sentence of imprisonment for 9 years with a non-parole period of 6 years, 9 months for offences of aggravated sexual intercourse without consent and aggravated indecent assault in respect of Ms E (aged 14) and four offences of sexual intercourse without consent and two of indecent assault in respect of Ms F (aged 19). These offences occurred after he had deceived the victims into accompanying him to a remote location after offering them work. The sentence was specified to commence on 29 July 2015 and conclude on 28 July 2024. The facts were recounted by Wilson J at [23]-[24]. Her Honour observed (at [25]) that these offences are “serious sex offences” (the “index offences”) which invoke the Court’s jurisdiction to make an extended supervision order. (That is the case in respect of all except the last-mentioned offence.)

17. In her remarks on sentence, Flannery SC DCJ observed that Mr Morgan “manifested a continuing attitude of disobedience of the law so that retribution, deterrence and the protection of society indicate a more severe penalty is warranted”. ^[4]

    4. Exhibit MM1, p95

18. On 21 September 2018 Mr Morgan was sentenced to 3 years’ imprisonment with a non-parole period of 18 months commencing on 29 July 2021 for aggravated incite act of indecency in respect of an 11-year-old girl (Ms D). Knowing her fondness for horses, he invited her to go with him to see horses on his rural property. The facts were recounted by Wilson J at [18]-[21]. The practical effect of the sentence was to extend by 9 months the period before parole eligibility under the preceding sentence with the overall terms of both sentences expiring on the same date. This and the preceding sentence were the subject of parole revocation in respect of which Mr Morgan was serving the balance of parole until 28 July 2024.

19. In his remarks on sentence, Gartelmann SC DCJ said that Mr Morgan’s previous convictions demonstrated that this offence was “not any aberration and that increased weight is warranted for considerations of specific deterrence, retribution and protection of the community”. ^[5]

    5. Exhibit MM1, p110

20. Having regard to the circumstances of the offending and observations made by sentencing judges there is force in the following submission made by the State:

67. The Court has viewed the Defendant as a danger to society, not just because of his repeat offending but also the way in which he committed the offences. Noting that the Defendant is untreated, that danger, most likely arguably, remains.

21. Mr Morgan has also been sentenced in respect of a variety of crimes not constituting sex offences, including nine offences of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), five instances of which occurred in June 2023 and the others in 2015 and earlier. An aggregate 10 month intensive correction order imposed on 30 August 2023 was revoked by the State Parole Authority on 11 January 2024 and Mr Morgan served the balance of about 6½ months in full-time custody concurrently with the abovementioned balance of parole.

22. Mr Morgan’s custodial history includes continuous periods of incarceration from 24 August 1990 to 22 March 2001, 30 July 2015 to 1 June 2023, 28 June 2023 to 21 September 2023 and then 14 December 2023 to 23 August 2024. So, after sexually assaulting 13 and 15 year old girls and an adult female he spent about 10½ years in gaol. He then lived in the community for just over 14 years during which time he sexually offended against 13, 14 and 19 year-old females. He has now spent most of the last 9 years in gaol.

23. Wilson J summarised the content of some notes in the Offender Integrated Management System (OIMS) of Corrective Services NSW (at [30]-[32]). They include evidence of Mr Morgan’s refusal to acknowledge his prior offending. One aspect of this is his lack of interest in rehabilitation programs because of his belief in his innocence. There is also his breach of parole in June 2023, less than a month after having been released, for failure to comply with his reporting obligations. He was again released on parole in September 2023 but returned to custody when charged with the pending bestiality offences less than three months later.

Expert opinions

24. The Risk Assessment Report of Ms Sarah Wright, Senior Psychologist with the High Risk Offenders Team of Corrective Services NSW is summarised in her Honour’s judgment (at [33]-[53]). Ms Wright assessed Mr Morgan’s risk of sexual re-offending as falling in the Above Average range compared to other male sex offenders. She described the following “risk scenarios” to be most likely if he were to commit a further sexual offence:

89. A sexual reoffence, were it to occur, would most likely be perpetrated against an adolescent female; however, his history indicates that prepubescent girls and adult women cannot be discounted as potential victims. A victim may be known to him, for instance an adolescent girl whose family he has befriended or otherwise met through work or other activities in his community; alternatively, a victim could be a stranger or someone he has very recently met. Mr Morgan would most likely attempt to isolate a victim, and in the majority of his past sexual offences this has been achieved by driving victims to other (remote) locations in order to perpetrate the sexual offences. He may create a ruse to get the victim/s to accompany him. The nature of his sexual offending would most likely be a contact sexual offence involving forced penetrative sexual activity. An alternative scenario may involve perpetrating sexual offences against an adult woman, potentially a partner, in the context of conflict or sexual rejection. Any potential sexual reoffence for Mr Morgan could involve physical coercion; it is unlikely that he would escalate to life-threatening violence though this may be threatened. Potential motivations for his sexual offending could include sexual gratification and the pursuit of power and control. Sexual entitlement is likely to underly any sexual reoffence.

25. Ms Wright described potential risk factors as follows:

90. Potential acute risk factors that may signify […] imminent risk of reoffending include victim access (e.g., if he creates or takes advantage of an opportunity to interact with adolescent/ pubescent females), hostility (e.g., overt expressions of anger and hostility particularly towards authority or women, exaggerated sense of grievance that is clearly determinantal to himself, dismissive of others), sexual preoccupation (e.g., significant increase in sexual thoughts, fantasies or behaviours), rejection of supervision (e.g., hostile, argumentative, non-compliance, resistance, premature termination of treatment, evidence he is lying to cover up breaches, non-attendance at supervision appointments, attempts to manipulate supervisory relationship for special exceptions), and collapse of social supports (e.g., loss of mother or brother-in-law). Risk management for Mr Morgan should involve considerations about preventing his access to children and weapons.

26. A Risk Management Report by Mr Glenn Perry contains a discussion of various conditions that might be placed upon Mr Morgan as part of an extended supervision order: see the discussion by Wilson J at [54]-[58].

27. Dr Youssef said that Mr Morgan actively engaged in the assessment process and made a concerted effort to answer most questions. However, he was somewhat guarded and evasive, especially when discussing topics related to his offences. He did not impress her as a reliable or trustworthy historian; there were many inconsistencies in his narrative and a lack of concern when they were raised with him. ^[6]

    6. Youssef [15], [150]

28. The written submissions for the State helpfully summarised parts of Dr Youssef’s report:

32. To Dr Youssef, the Defendant denied an interest in underage females. He denied any paedophilic or sexual interests, he denied voyeurism, exhibitionism and other paraphilias. Dr Youssef stated that “[The Defendant] has no insight into his risk factors or vulnerabilities given his mollification, justification or denial of his offending behaviour.”

33. Dr Youssef remarked that whilst denial is not a criminogenic factor, in the Defendant’s case, his denial and minimisations have posed as a barrier to therapeutic engagement and effective self-management. For example, the Defendant told Dr Youssef that he did not consider he needed intervention and had “nothing to address.”

34. Dr Youssef, having observed that the Defendant has not had any high intensity treatments targeting his risk of repeat sex offending, found the Defendant does not have the tools to avoid or manage his own risks. At [81], Dr Youssef remarked that:

“In interview, when asked about self-management and how he intends to avoid further charges/allegations, [the Defendant] said “to be 100 percent honest, never have anything to do with a female under the age of my daughter, don’t want to employ another female … all of them [must be] Asian, never have another Australian [woman]”. [The Defendant] did not attribute any personal responsibility for himself, rather suggesting that there was a cultural issue with Australian women that resulted in them making false claims against him.”

35. Dr Youssef observed that the Defendant engages in positive impression management by answering in a socially desirable manner and minimising shortcoming. This, in Dr Youssef’s view, informed the appropriateness of certain conditions, such as electronic monitoring and unannounced home visits. ...

36. Diagnoses - Dr Youssef diagnosed the Defendant with Paedophilic Disorder, which is a lifelong condition, although it can be treated. The deviant sexual interest increases the risk of the Defendant committing another sexual offence unless managed. Dr Youssef opined that the paraphilia coupled with the Defendant’s personality structure “are his most significant risk factors.”

37. Dr Youssef applied the Hare psychopathy checklist – Revised, 2nd edition 41 and opined that the Defendant has several “problematic personality traits” which include narcissism, depression and psychopathy. Dr Youssef scored the Defendant 30 on the PCL-R which reflects a “high level of psychopathy”, meeting the threshold for diagnosed psychopathy. Dr Youssef observed:

“[The Defendant] is likely to be highly manipulative, exploitative, and callous, presenting a danger due to his lack of empathy and remorse. [The Defendant’s] combination of superficial charm and deceit, coupled with impulsive and irresponsible behaviour, elevates his risk for ongoing manipulative and potentially harmful behaviour toward others.”

38. Dr Youssef noted that the Defendant’s psychopathic traits may mean he is more prone to “violent or predatory behaviour, seeking excitements through acts of domination or sexual aggression. The lack of empathy makes it easy for those with high psychopathic traits to dehumanise their victims.”

39. Dr Youssef provisionally diagnosed the Defendant with Zoophilia (noting the history of killing a horse which appeared to be sexually motivated and the current charges involving possession of bestiality material). Dr Youssef noted that the addition of another paraphilia is relevant to sexual reoffending risk and increases it. (Footnotes omitted)

29. The following in Dr Youssef’s report is worth quoting in full:

148. Mr Morgan’s behaviour is marked by predatory tendencies, focusing on young females due to their perceived vulnerability and the ease with which they can be manipulated or controlled. His actions are deliberate, calculated and he may use grooming tactics to gain trust or establish a power dynamic that he can exploit, which is also consistent with psychopathic personality. Mr Morgan’s sadistic inclinations are not just about sexual gratification but are deeply tied to the infliction of fear and control on his victims. He likely engages in these behaviours in private, while presenting a different persona in public or around authority figures. Mr Morgan may demonstrate manipulative behaviours in relationships, often charming or deceiving others to mask his underlying tendencies. Mr Morgan’s tendencies stem from a combination of early life trauma, distorted beliefs about power and relationships, and deep-seated emotional dysregulation. His need for control and domination, particularly over young females, serves as a maladaptive way to cope with feelings of inadequacy, shame, or anger. His lack of empathy and emotional detachment from others’ suffering allows him to engage in these behaviours without guilt or remorse. Mr Morgan’s offending behaviour is driven by a desire for both sexual gratification and the psychological satisfaction of exerting control over another person.

30. Dr Youssef included the following in relation to the need for and efficacy of an extended supervision order:

150.6.1. I believe Mr Morgan’s risk can be effectively managed in the community under an ESO. However, I do not consider his risk to be manageable without an extended period of supervision, which is necessary to address his outstanding dynamic risk factors while enhancing his protective factors to mitigate his current level of risk. This assessment is based on an evaluation of Mr Morgan’s static, dynamic, and protective factors. Relevant risk factors identified include limited insight into his risk factors, poor general and sexual self-regulation, interpersonal deficits, problematic personality traits, and a lack of self-reflection regarding internal processes. Ongoing intervention aimed at strengthening his protective factors (para 135-139) would be beneficial for Mr Morgan.

150.6.2. If no order is imposed, Mr Morgan would remain in the community without any support or supervision, leaving him responsible for seeking ongoing psychological intervention, developing and maintaining a prosocial support network, and managing his risk independently. The likelihood of Mr Morgan being able to achieve this without additional support and supervision in the community is minimal. (Emphasis added)

31. Ms Leist described Mr Morgan as “euthymic in mood and somewhat restricted in affect, whereby little emotional expression was evident”. He “appeared to think through his responses to questions that were asked” but impressed as “uncomfortable with discussions centred around emotions and with reflecting on his unpleasant experiences”. He appeared to have a tendency “to feel more comfortable attributing his struggles to physical ailments (emphysema, heart issues) rather than emotional or mental health difficulties”. She considered “these reactions are well-established psychological defences, which function to protect Mr Morgan from uncomfortable feelings such as shame, rejection and guilt, rather than intentional attempts on his part to mislead the interviewer”. ^[7]

    7. Leist [8]-[12]

32. Ms Leist agreed with the conclusions of Ms Wright in her Risk Assessment Report and adopted them (devoting a large part of her report to quoting them).

33. Dr Youssef and Ms Wright scored Mr Morgan in the Above Average risk category using the STATIC 99-R risk assessment tool. Their scoring under the STABLE-2007 tool differed but each indicated high needs. Significant risk factors are lack of concern for others, poor problem-solving skills, negative emotionality, and deviant sexual interests. Also of concern are his significant social influences, hostility towards women, emotional identification with children, general social rejection, sex drive/sexual preoccupation, using sex to cope or to feel powerful, and poor cooperation with supervision. With the RSVP-V2 tool, Dr Youssef and Ms Wright found Mr Morgan had risk factors across all domains associated with a risk of sexual reoffending.

34. Both experts were asked for their opinion about the pending bestiality material charges. They entail allegations that Mr Morgan had electronic images of such activity in his possession on his phone, laptop and DVDs when a search was conducted on 13 December 2023 pursuant to powers under the Child Protection (Offenders Registration) Act. Both experts were instructed not to discuss the subject matter of the charges with Mr Morgan, to respect his presumption of innocence, and to offer opinions based solely upon the police facts sheet.

35. Dr Youssef noted the historical offence of killing a horse which may have been sexually motivated and Mr Morgan’s disclosure to her of his “research” into bestiality which indicated an ongoing interest in the subject. As a sexual interest in animals is a form of paraphilia, she considered that this was relevant to sexual offending risk and does increase that risk. ^[8]

    8. Youssef 150.5.1

36. Ms Leist said the alleged facts indicate a deviant sexual interest in animals that is current which could indicate a paraphilic disorder that can increase the risk of reoffending, particularly if left untreated. She considered there should be a condition prohibiting him from possessing or controlling any animal unless specifically authorised by his supervising officer. ^[9]

    9. Leist [31]-[37]

37. Ms Wright reported that Mr Morgan has repeatedly refused to participate in any high intensity sex offender programs in custody. In May 2023 he agreed to participate in the Deniers program but it was unavailable due to insufficient participants. He has been engaged with other programs of a lesser intensity but his commitment to gaining benefit from them has been questionable. ^[10] There are programs in the community that are arranged by Forensic Psychology Services which could be available to Mr Morgan. He has attended one session with a staff member at FPS since his release from custody. ^[11]

    10. Wright [56]-[63]

    11. OIMS note 16.9.24

38. The submissions for the State refer to repeated breaches by Mr Morgan of bail conditions, including offending whilst on bail, and breaches of parole conditions. Additionally, there is his repeated failure to comply with his reporting obligations under the Child Protection (Offenders Registration) Act. This raises a question about his ability to comply with the conditions of an extended supervision order. However, the State accepts that “the paramount consideration of community safety heavily favours the need for an ESO despite that concern”. ^[12]

    12. Plaintiff submissions [60]

39. Both court-appointed experts answered positively the question of whether Mr Morgan posed a risk of committing a serious sex offence and were of the view that the risk could be managed under an extended supervision order. They were pessimistic as to the prospect of appropriate risk management without such an order. ^[13]

    13. Youssef [150.3], [150.6.1]; Leist [17], [39]

Conclusion as to the making of an extended supervision order

40. The non-opposition by Mr Morgan to the making of an order is unsurprising. The evidence clearly establishes to a high degree of probability that he poses an unacceptable risk of committing another serious sex offence if he is not kept under supervision pursuant to an extended supervision order. Such an order should be made, there being no suggestion of a discretionary basis not to.

Duration of an extended supervision order

41. Dr Youssef believed an extended supervision order should be for a period of 4-5 years. She said this would allow Mr Morgan to spend at least 12 months on each of the four Corrective Services NSW monitoring stages. She considered that his therapeutic progress is likely to be a slow and prolonged process. ^[14]

    14. Youssef [150.7.9]

42. Ms Leist noted that the literature recommended treatment of 12-24 months duration for an individual of Mr Morgan’s risk profile. However, his historical reluctance to engage in treatment, mistrust of Corrective Services NSW psychologists, and minimisation and denial of offending behaviour would mean that treatment would require a longer period. Thus, she opined that “an initial ESO period of 3-5 years would allow Mr Morgan to address some of his risk factors”. ^[15] I note that in the letter of instructions, the experts were advised that while there is a maximum period of 5 years for an extended supervision order, the legislation provided no limit on the number of consecutive orders the court may make against the same offender. Whether and how this may have influenced Ms Leist’s opinion concerning “an initial ESO” is unknown.

    15. Leist [44]

43. The State submitted there should be an order of 5 years duration “to be confident community safety is not compromised”. It would be “a reasonable timeframe to reintegrate in the community from supported accommodation to independent accommodation, to get meaningful benefit from treatment in the community, and a considerable period of monitoring the Defendant’s risks”. ^[16]

    16. Plaintiff submissions [70].

44. Mr Morgan made no submission on this subject.

45. I am satisfied that the duration of the order should be for five years for the reasons advanced by the State.

Conditions of an extended supervision order

46. A collection of principles to be considered in relation to the imposition of conditions of an extended supervision order appears in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]. In the present case the submissions for the State helpfully included the following:

73. The conditions of an ESO need to be “appropriate” in that they directly or indirectly mitigate the Defendant’s risk of committing a further serious offence. The conditions do not need to have a demonstrable link to the risk of further offending of the proscribed kind but they should address the risk of future offending. Conditions must also not be unduly onerous or unjustified. (Citation of authorities in footnotes omitted)

47. A useful context in which to consider the objections taken by Mr Morgan is the assessment by Dr Youssef of him meeting the threshold for diagnosing psychopathy. This has been referred to above (at [28]) in the summary provided in the State’s written submissions but it is worth quoting more from Dr Youssef’s report:

114. Mr Morgan’s score on the PCL-R is 30 [on a scale of 0 to 40] and reflects a high level of psychopathy, meeting the threshold for diagnosing psychopathy (Hare, 2003). Mr Morgan’s score on Factor 1 items [a measure of interpersonal and affective traits] reflects significantly elevated deficits in empathy and emotional depth, as well as manipulative tendencies. Mr Morgan exhibits superficial charm, appearing charismatic or likable on the surface, but uses this to deceive and manipulate others for personal gain. He presents with a grandiose sense of self-worth, believing he is superior to others, and shows pathological lying as a key trait. Mr Morgan’s emotional responses may be shallow or insincere, and he is likely to have little to no remorse for his actions, even when causing harm. A lack of empathy and callous disregard for others’ feelings is a hallmark of his personality, making him highly manipulative and emotionally detached.

115. On Factor 2 [a measure of lifestyle and antisocial behaviours], Mr Morgan demonstrates moderately elevated antisocial and impulsive behaviour, though not as pronounced as his interpersonal deficits. Mr Morgan may exhibit impulsivity, acting recklessly without considering consequences, and have a tendency towards irresponsibility, failing to meet obligations or take accountability. Poor behavioural control is another trait, suggesting difficulties managing anger or frustration, which can lead to aggressive or violent outbursts. Mr Morgan also has a history of juvenile delinquency or engagement in various forms of criminal behaviour.

116. Overall, Mr Morgan would be considered to have high psychopathic traits by clinical standards. While his antisocial behaviours are significant, Mr Morgan’s interpersonal and emotional deficits stand out more prominently. He is likely to be highly manipulative, exploitative, and callous, presenting a danger due to his lack of empathy and remorse. Mr Morgan’s combination of superficial charm and deceit, coupled with impulsive and irresponsible behaviour, elevates his risk for ongoing manipulative and potentially harmful behaviour toward others.

Conditions 6-8 – Scheduling

48. Part A of the proposed conditions (conditions 1-8) is concerned with “Reporting and Monitoring Obligations”. Conditions 1-5 comprise usual conditions such as compliance with reasonable directions of supervising officers, being truthful in answering questions and submitting to electronic monitoring. There is no objection to these but an objection is made to conditions concerning Mr Morgan providing a schedule of movements if directed to do so.

49. Mr Morgan submitted these conditions are unnecessary and that the conditions to which no objection is taken are sufficient. The State pressed for the inclusion of these conditions to mitigate the risk of Mr Morgan taking advantage of opportunities to gain access to female children by limiting and managing those opportunities.

50. The provision of weekly schedules of movements was proposed by Mr Perry and endorsed by Ms Leist. Dr Youssef’s broad approval of the Part A conditions also supports the requirement.

51. Wilson J overruled Mr Morgan’s objection to these conditions:

64. In the Court’s conclusion each of these conditions should be imposed. Condition 6 provides the power for the DSO to direct the defendant to provide schedules of his movements and it is reasonable to infer that the power will only be exercised when schedules are regarded as necessary to mitigate risk. The defendant is clearly a not unintelligent man and requiring him to focus on legitimate activities in circumstances where those activities can be monitored can only promote the defendant’s engagement with suitable pastimes and allow for detection should he fail to do so. Particularly bearing in mind the defendant’s long history of serious sexual offending, his untreated condition, and his many failures in the past to submit to legitimate scrutiny of his activities, it is preferable that those who are to supervise the defendant in the community have all necessary tools to do so. The efficacy of electronic monitoring is reduced in the absence of a schedule of movements, and it is not desirable at this early stage to allow that to occur.

52. I agree with her Honour. Proposed conditions 6-8 will be included.

Condition 18 – Place restrictions

53. Part C (conditions 15-19) is concerned with “Place and travel restrictions”. There is no objection to proposed condition 17 that “You must not go to any place specified by a DSO”. ^[17] There is objection to proposed condition 18 which provides that “Without limiting condition 17 above, you must not go to any of the following places without the prior approval of a DSO” and then lists various types of places. Mr Morgan objected to the inclusion in the list of “cinemas”, “libraries and museums”, “camping grounds and caravan parks” and “playing fields and sporting facilities”.

    17. “DSO” is a reference to the “departmental supervising officer”.

54. Mr Morgan submitted that as presently drafted, the condition is too broad and there is no justification for the inclusion of the four items mentioned. If specific places were the subject of concern the DSO could give a direction under condition 17.

55. Item (f) in the list is “Children’s playgrounds, parks, and areas with play equipment provided for the use of children”. Mr Morgan contended that the inclusion of “parks” was ambiguous and submitted the item should be amended to read, “children’s playgrounds and parks or other areas that have play equipment provided for the use of children”.

56. The State submitted that the list of places in condition 18 is not prohibitive. They are each listed because they are places where young females may be found. Parents leave young female children in such places unsupervised, presumably because they are expected to be places of relative safety.

57. Wilson J considered an objection to this condition that was made on a similar basis. She overruled it (at [65]-[68]) for reasons which are compelling. In part, that was on the basis that the condition is not, as the State submitted, prohibitive. It merely required some forethought by Mr Morgan and the need to seek prior approval from his supervising officer. If his proposal to attend any of the types of places listed is a reasonable one, based on a legitimate need or desire to do so and in a way which does not compromise community safety, it can be expected that it would be approved.

58. Condition 18 will remain as presently drafted.

Conditions 23 -27 – Drugs and alcohol

59. Part E (conditions 23-27) is concerned with “Drugs and alcohol”. Condition 23 would have required Mr Morgan to advise his supervising officer of any possession, purchase or consumption of alcohol but it was deleted by agreement during the course of the preliminary hearing.

60. Condition 24 would prohibit the possession and use of prohibited drugs or prescription drugs not prescribed for Mr Morgan. Condition 25 could require him to submit to drug and alcohol testing. Condition 26 would prohibit him entering licensed premises without prior approval. Condition 27 would require him to participate in programs and courses for drug and alcohol rehabilitation as directed.

61. The objection relates to all of these conditions on the basis that there is no drug and alcohol issue or connection with the offending that would call for them. Reliance was placed upon evidence that upon entering custody in December 2023 Mr Morgan answered “No” to all questions asked as to whether he had consumed alcohol or drugs in the past four weeks. ^[18] I note that he made similar claims to a Community Corrections Officer on 14 June 2023, and to the author of the Risk Management Report on 18 September 2023. ^[19]

    18. Affidavit of Joseph Harding, annexure C

    19. OIMS notes, CB331, 359

62. Dr Youssef found Mr Morgan generally to be an unreliable historian (see above at [27]. He told her that he did not drink alcohol and had never used illicit substances but she said this conflicted with his previously reported statements. ^[20] The authors of a 2001 psychological report to the Parole Board and the 2023 Risk Assessment Report also noted such conflict. ^[21]

    20. Youssef [48]

    21. Sheehan and Golias, 23 January 2001, p3; Wright [19]

63. The parties relied upon and partly restated submissions that had been made before Wilson J. In the proceedings before her Honour, counsel for Mr Morgan accepted her observation that Condition 24 simply reflects the criminal law’s prohibition upon possession and use of such drugs. He also accepted that the provision for drug testing in Condition 25 could be relevant. He maintained an objection to alcohol testing, to the requirement for prior approval to enter licensed premises, and to undertake drug and alcohol rehabilitation programs and courses as directed. ^[22]

    22. 17 July 2024, T8.5 – 9.49

64. Wilson J referred to Mr Morgan having given inconsistent responses over the years when asked about substance abuse and considered there could be a historical link with a risk of offending. She was mindful that disinhibition because of substance abuse should be avoided and resolved to include Condition 25. Condition 27 was included for much the same reason, noting that it would only be utilised as required to mitigate risk and promote rehabilitation. She accepted the State’s submission that there was a risk of Mr Morgan sexually exploiting intoxicated women he may encounter in licensed premises and included Condition 26.

65. In relation to Condition 26, the State referred to OIMS notes of 14 and 18 June 2023 which recorded Mr Morgan’s interest in obtaining “bar work” or “a bar job” and noted that the proposed condition is not prohibitive but allowed for oversight. ^[23] That seems a sensible precautionary measure.

    23. CB 331, 339; 9 October 2024, T9.11 – 9.38

66. The reasoning of Wilson J is sound with respect. ^[24] It is now supported by the opinions of Dr Youssef and Ms Leist. ^[25]

    24. Wilson J [70]-[75]

    25. Youssef [150.7.3]; Leist [43.8]

67. Conditions 24-27 should all be included.

Condition 35 – Weapons

68. Part G (conditions 34-35) is concerned with “Weapons”. Condition 34 prohibits the possession of firearms and prohibited weapons which is not opposed. Condition 35 provides that Mr Morgan must not, in the absence of prior approval, possess or use certain items which are then listed in paragraphs (a) - knives and similar; (b) – “any other implement made or adapted for use for causing injury to a person”; and (c) – “anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property”.

69. There is a “Note” that the condition “does not apply to knives for ordinary domestic use”.

70. Mr Morgan submitted that the current formulation is overly complicated. Despite the “Note”, it would still extend to implements used for legitimate employment purposes such as a Stanley knife. He submitted that (b) and (c) are too broad and could include relatively innocuous items such as a rolled up newspaper. He suggested that condition 35 should be deleted and that condition 34 be amended to prohibit the possession or use of “any offensive, prohibited or dangerous weapon”.

71. Again, Wilson J considered this objection (at [76]-[78]) when making the interim supervision order. Applying a commonsense approach for which her Honour was renown, she saw the proposed condition as doing little more than requiring Mr Morgan to comply with the law. However, to address his concern, she amended the condition by adding “without lawful excuse”.

72. The State’s primary position was to press for the condition in its present form but it did not take issue with Mr Morgan’s proposed deletion of condition 35 and amendment of condition 34.

73. In my view, items (a), (b) and (c) in condition 35 are more descriptive and thereby more likely to be clearly understood by Mr Morgan than a broad reference to weapons which are “offensive, prohibited or dangerous”.

68. As Wilson J indicated, there is nothing unreasonable about prohibiting Mr Morgan from possessing or using the types of things described in those paragraphs. If there is a legitimate need for him possessing or using some type of knife (such as a Stanley knife), perhaps in the course of his employment, no doubt the supervising officer will give reasonable consideration to allowing that to occur in circumstances which may be specified.

69. Conditions 34 and 35 should remain as proposed by the State in the Schedule to the Amended Summons filed with leave at the hearing.

Condition 38 – Internet

76. Part H (conditions 36-43) is concerned with “Access to the internet and other electronic communication”. They require Mr Morgan to obey reasonable directions about the use of electronic devices and access to the internet (36). He must disclose relevant information (37). He must provide the officer with a list of all electronic devices and computers as well as gaming and storage devices (39). He would be limited to the use of only one device to access the internet after the device has been seen and approved (40). He must consent and provide information about accounts to which he subscribes on the internet (41). He cannot delete anything from electronic devices without approval (42). He must consent to service providers sharing information about his accounts (43).

77. The objection is to proposed condition 38 which would prohibit without prior approval the use of applications or services relating to social networking, encrypted messaging, online gaming and instant messaging.

78. Mr Morgan submitted that this condition does not address the manner of offending in his criminal history. The other conditions are already broad enough to cover any situation that might arise from his use of such devices.

79. The State submitted that the condition is not prohibitive in that it permits use with oversight and approval.

80. Mr Morgan has a history of breaching his obligations under the Child Protection (Offenders Registration) Act which includes five instances in June 2023, just after he had been released on parole as an untreated sex and child sex offender. They included him using without disclosure: a Tik Tok account, a new mobile phone service and accounts on dating websites.

81. The opinions of Dr Youssef and Mr Perry, the latter endorsed by Ms Leist, support inclusion of this condition.

82. In my view, the condition is particularly important with the increased ability of persons with deviant proclivities to use the internet for grooming and procuring of young females for sexual activities. Such activity is well within the range of Mr Morgan’s risk factors.

83. Condition 38 should remain.

Conditions 55-57 – Medical intervention

84. Part L (conditions 52-57) is concerned with “Medical intervention and treatment”. Conditions 55-56 relate to the sharing of information about Mr Morgan’s progress in treatment between treating professionals as they consider appropriate for his rehabilitation and as well with authorities concerned with his supervision. Condition 57 provides for Mr Morgan agreeing to the disclosure of his criminal history to any healthcare professionals who are treating him.

85. The parties agree that these conditions should be imposed in the amended form which was settled before Wilson J at the preliminary hearing. ^[26] That will be done.

    26. State of New South Wales v Morgan (Preliminary) at [81]-[83]

Condition 58 – Access to animals

86. Proposed condition 58 has been added in a new Part M after it was flagged for consideration by Wilson J at the end of her judgment. ^[27] It provides a prohibition on Mr Morgan having possession, ownership, access to (for greater than 7 hours) or control of any animal unless authorised by a supervising officer. It also provides for the supervising officer to consult with any treating health professional of Mr Morgan’s about such possession etc.

    27. Ibid [84]-[86]

87. The State submits that this enables the supervising officer to liaise with a treating psychologist to control Mr Morgan’s access to animals due to the provisional diagnosis by Dr Youssef of Zoophilia which is considered relevant to his risk of committing a further serious sex offence.

88. Mr Morgan opposes the imposition of this condition. It arises from charges of possessing bestiality material that have not been proven. He had given instructions to his lawyers that he has a “lifelong affiliation with horses and had worked as both a thoroughbred trainer and jockey. He last owned horses in March 2024 [sic] prior to his incarceration and if given the opportunity, would seek employment relating to the care of horses, or at least private ownership of horses”. ^[28]

    28. Defence submissions [21]

89. The State contested that there was evidence of Mr Morgan being a “jockey” or “thoroughbred trainer” in the past. Counsel for Mr Morgan conceded that to be correct. Mr Morgan certainly had access to horses, at least on the occasion he lured one of his young female victims (11-year-old Ms D) on the pretext of taking her to see horses of which she was fond. The State also pointed to the lack of evidence that Mr Morgan ever had access to or ownership of a horse whilst on parole.

90. Reference has been made above (at [35]) to Dr Youssef’s opinion about the recent bestiality material charges and how his disclosure to her of having carried out research on that subject indicated ongoing interest. Ms Leist also considered that Mr Morgan’s interest in this respect was current (above at [36]). The relevance of this to the risk of further sex offending is clear. The seeming sexual motivation relating to the malicious killing of a horse in 1976 ^[29] is disturbing despite its antiquity. A number of images which are the subject of the pending charges involve horses.

    29. Youssef [52]; Wright [45] (Exhibit MM1, p51)

91. There is good sense in including this condition. As the State submitted, it is not prohibitive. It is also appropriate for advice to be sought from Mr Morgan’s treating professional as to whether there are concerns about him having access to animals, or any limitations that should be in place.

92. Proposed condition 58 will be included.

Victim statement

93. Finally, I acknowledge the statement by one of Mr Morgan’s victims pursuant to s 21A of the Act. She was present in court during the hearing but to preserve her anonymity I do not propose to even indicate which of the six victims she is. She consented to her statement being disclosed (s 21A(6)). The statement served to reinforce the fact that sexual assaults such as that which Mr Morgan perpetrated upon her can be catastrophically life changing for victims. This demonstrates the nature of the risk inherent in any future serious sex offence he may commit.

94. There was ample justification for making an extended supervision order in the documentary evidence before the Court but it is significant to know that she supported its making, and the proposed conditions, as she did not want any other person to suffer as she has. Her input is appreciated.

Orders

95. The following orders are made:

The defendant is to be subject to an extended supervision order for a period of 5 years from 14 October 2024.

For the period of the extended supervision order the defendant is to comply with the conditions set out in the Schedule annexed to the Order entered on JusticeLink on 14 October 2024.

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Endnotes

Decision last updated: 14 October 2024