State of New South Wales v O'Sullivan (Final)

[2022] NSWSC 568

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v O’Sullivan (Final) [2022] NSWSC 568

Hearing dates:

11 May 2022

Decision date:

17 May 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order;

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment;

(3)   Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified.

Catchwords:

HIGH RISK OFFENDER – final hearing – application for extended supervision order – no controversy about making of order – dispute limited to conditions imposed

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5

Criminal Code (Cth), ss 474.22, 474.27

Crimes Act 1900 (NSW), ss 61H, 61M, 61N, 66

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5D, 5I, 6, 7, 9, 11

National Classification Code 2005 (Cth)

Cases Cited:

State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Michael O’Sullivan (Defendant)

Representation:

Counsel:
M Dalla-Pozza (Plaintiff)
D Bhutani (Defendant)

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

File Number(s):

2021/353178

Judgment

1. By summons filed on 13 December 2021, the State of New South Wales (“the plaintiff”) sought final orders pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant, Michael O’Sullivan, be subject to an extended supervision order (“an ESO”) for a period of three years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in a schedule to the summons.

2. On 17 February 2022, Lonergan J made preliminary orders that were sought in the summons, which included an interim supervision order (“an ISO”) for a period of 28 days, to commence on that date. Subsequently, there were two further ISOs imposed by Bellew J, each for a period of 28 days.

The defendant’s background

3. The defendant is aged 49. He was raised by his paternal grandparents. His grandfather and father have both been convicted of sexual offences against children. His father is presently subject to an ESO, his index offending being three counts of sexual intercourse with persons aged between 10 years or over and under 14 years contrary to s 66(1) of the Crimes Act 1900 (NSW). The offences were committed in 2002.

4. On 27 March 2001, the defendant was convicted at Bathurst District Court of two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. These offences were committed in 1996, when he was aged 23 and 24. The victims were the defendant’s stepdaughters (the children of his first wife). The victims were aged between 5 and 6 and between 6 and 7 years old. At the time of the offences, the children were in the defendant’s care whilst his ex-wife was hospitalised overseas. The circumstances of the offending involved the defendant touching each of the victims on their vaginas on the outside of their clothing. A further offence of incite act of indecency on a child under 16, contrary to s 61N(1) of the Crimes Act, was taken into account on a Form 1. The circumstances of the offending involved the defendant asking each of his stepdaughters to touch his penis. For those offences, the defendant received concurrent sentences, comprising a total effective sentence of 30 months imprisonment, with a non-parole period of 18 months. Consequent to the offences, he was placed on the Child Protection Register.

5. The sentencing judge, Gibson QC DCJ, said in his remarks on sentence:

“I am not convinced at this stage as I say that ... [the defendant] really understands fully the nature an[d] effect this has had on the people that have been involved and that in the light of his conduct I am not convinced that it will not happen again if given an opportunity.”

The index offences

6. On 10 March 2017, following pleas of guilty, the defendant was sentenced in the District Court by Bennett SC DCJ (“the sentencing judge”) for three counts of use carriage service to groom a child under 16 years for sexual activity in contravention of s 474.27 of the Criminal Code (Cth); one count of use carriage service to solicit child abuse material in contravention of s 474.22 of the Criminal Code; one count of produce child abuse material in contravention of s 91H of the Crimes Act; and three counts of disseminate child abuse material in contravention of s 91H of the Crimes Act.

7. The charges arose from material that had been seized by police from the defendant’s residence on 3 June 2014. Police located child pornography videos and photographs on his laptop as well as Skype messages, sent to adults, in which the defendant had described sexually offending against children. Some of the Skype messages referred to a young boy. Photographs of the boy in various states of undress, some of which displayed his genitalia, were located on the defendant’s laptop. Skype messages from the defendant to his father included photographs of the same boy. Online conversations with children about sexual behaviour were located on his phone.

8. The defendant received separate sentences for each offence, which comprised an overall sentence of 8 years imprisonment, commencing on 31 May 2014 and concluding on 30 May 2022. A non-parole period of 4 years was fixed, expiring on 30 May 2018.

9. The defendant has no entries on his custodial record for misconduct and has no history of non-sexual criminal offending. He received a minimum security classification during his index sentences, holding a C2 classification from April 2017 until his release from custody.

Post-release history

10. The defendant was released to parole on 22 January 2020. He initially resided in the Nunyara Community Offender Support Program Centre (“COSP”) and then moved into independent living accommodation on the Central Coast.

11. The defendant has received warnings for breaching the conditions of his parole, which are considered below in the context of forensic reports.

12. On 19 May 2020, a Child Protection Prohibition Order (“CPPO”) pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) was made against the defendant. It will expire on 18 May 2025. The terms of that order prohibit the defendant:

“•   From engaging in physical contact or from having an ‘active presence’ with any person aged under [18] without ‘proper responsible adult supervision’;

•   From remaining or residing in any residential premises with any person aged under 18 without ‘proper responsible adult supervision’;

•   From seeking or undertaking paid or voluntary work that brings him into unsupervised contact with any person aged under 18;

•   From approaching, actively seeking or remaining in the presence or company of, any person aged under 18 without ‘proper responsible adult supervision’;

•   From communicating, befriending or engaging with any person under the age of 18 through social media;

•   From possessing any images of children or ‘child-like images’; and

•   From associating or contacting any registrable person or any person that has been convicted of a class 1 or 2 offence pursuant to the Child Protection (Offenders Registration) Act 2000 unless (relevantly) the registrable person is a direct relative. In that event, the order restrained the Defendant from discussing children ‘in any way that could be perceived by a reasonable person to be of a sexual or predatory nature’.”

Relevant provisions of the Act

13. The Act relevantly provides as follows:

“Part 1A   Supervision and detention of high risk offenders

…

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.”

14. The defendant does not dispute that the statutory preconditions required by ss 5B(a)-(c) are established. He also accepts that s 5B(d) is open to being established to the Court’s satisfaction.

15. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied, for the following reasons.

16. In relation to s 5B(a), the term “serious offence” is defined in the Act as follows:

“4   Definitions

(1)   In this Act:

…

serious offence means:

(a)   a serious sex offence, or

(b)   a serious violence offence.

…

serious sex offence—see section 5(1).

…

5   Definitions of ‘serious sex offence’ and ‘offence of a sexual nature’

(1)   For the purposes of this Act, a serious sex offence means any of the following offences:

…

(b5) an offence against the Commonwealth Criminal Code, section 471.22, 471.24, 471.25, 471.25A, 474.23A, 474.24A, 474.25B, 474.26, 474.27 or 474.27AA …

(2)   For the purposes of this Act, an offence of a sexual nature means any of the following offences:

…

(c) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900 …”

17. Accordingly, of the index offences, one of the Criminal Code offences, that is, the three counts contrary to s 474.27, and both Crimes Act offences satisfy s 5B(a) of the Act. With respect to the Crimes Act offences, s 5B(a) is satisfied because s 91H comes within Div 15A of Pt 3 of the Crimes Act. In relation to s 5B(b) of the Act, the term “supervised offender” is defined in s 5I of the Act, which provides as follows:

“5I   Application for extended supervision order

(1)   An application for an extended supervision order may be made only in respect of a supervised offender.

(2)   A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision)—

(a)   while serving a sentence of imprisonment—

(i)   … or

…

(b)   under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

(3)   A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.”

18. At the time the summons was filed, the defendant was a “supervised offender” for the purpose of s 5I of the Act, thus satisfying s 5B(b). As to s 5B(c) of the Act, the balance of s 5I is also satisfied.

19. I return to consider s 5B(d) and note that the meaning of “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act:

“5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.”

20. I note that, pursuant to s 5B of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites are satisfied.

21. Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon other orders made by Lonergan J, reports have been furnished to the Court by Dr Jeremy O’Dea, forensic psychiatrist, dated 11 April 2022 and Patrick Sheehan, forensic psychologist, dated 1 April 2022. Accordingly, I note that the latter requirement was complied with.

22. The Act stipulates objects and a paramount consideration to be taken into account when determining an application for an ESO:

“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.

…

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)   In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

Section 9(3) of the Act: forensic reports and evidence

23. The two reports that have been prepared pursuant to s 7(4) of the Act, in my view, are relevant to all matters identified in s 9(3), except for ss 9(3)(h) and (h1).

Dr Jeremy O’Dea’s report

24. Dr O’Dea assessed the defendant on 21 March 2022. He took a family and personal history and reviewed the defendant’s progress in custody and on parole. By way of background, Dr O’Dea noted the contents of a report dated 30 July 2021 that had been prepared by Sarah Wright, Senior Psychologist, Serious Offenders Assessment Unit, and endorsed by Cherice Cieplucha, Chief Psychologist, Risk Management Programs.

25. Ms Wright referred to the treatment report concerning the defendant’s performance in the High Intensity Sex Offender Treatment Program (“HISOP”) program:

“The treatment report indicated that whilst [the defendant] verbalised motivation to engage in treatment and described recognising the need to address his problems, he demonstrated limited meaningful engagement and superficial participation in the program. He had a tendency to engage in positive impression management and minimised his difficulties (e.g., with sexual self-regulation). He had a tendency to prioritise activities that were unrelated to treatment (e.g., playing Dungeons and Dragons and writing a novel) over treatment tasks, and he often acquiesced to feedback given to him in an attempt to seek approval from others, but did not make the changes suggested that he had agreed to. Correspondence from a Custody-based Sex Offender Programs Senior Psychologist (Murphy, 13/12/2019 and 24/12/2019) indicated that by the end of treatment [the defendant] remained ‘ambivalent about whether or not he is ready to give up sexual offending’ ... [The defendant] participated in the RUSH program [(‘Real Understanding of Self Help’), based on Dialectical Behaviour Therapy (DBT) principles] between 6/09/2017 and 22/03/2018. Case notes indicate that he demonstrated an understanding of concepts and participated in discussions; ‘He was open with the group about his past and current stressors/struggles’ (22/03/2018) ...”

26. Ms Wright summarised risk assessments of the defendant that had been conducted whilst he was in custody:

“[The defendant] was last assessed using the LSI-R [Level of Service Inventory – Revised] shortly after his last release to parole ... His risk/needs were assessed as falling within the Medium risk category for general and violent offending ... [The defendant’s] total score on the STATIC-99R was 6 ... This score of 6 was previously described as being in the High risk category relative to other male sexual offenders ... The most recent version of the STATIC-99R Manual refers to the category encompassing scores of 6 and above on this instrument as being ‘Well Above Average’ risk, or Level IVb ... The authors of the STATIC-99R have indicated that Level IV offenders ‘would be perceptibly higher risk than the typical offender ... Level IVb is the higher of the two Level IV risk categories described by the authors of the STATIC- 99R, and is the highest risk category described by ... the STABLE-2007 suggesting a High density of criminogenic needs relative to other male sexual offenders ... The STABLE-2007 can be combined with the STATIC-99R to generate a composite assessment of risk/needs ... [The defendant’s] composite risk/needs level, when combining static and dynamic risk factors, was in the Well Above Average risk level, or Level IVb ... the RSVP results suggest that [the defendant] fell in the Moderate/Elevated risk category for repeat sexual violence ...”

27. Dr O’Dea extracted a further passage from Ms Wright’s report that concerned the defendant’s progress since his release on parole:

“[The defendant] was released to parole for the index sexual offences on 22/01/2020. He initially resided at Nunyara COSP until he secured independent accommodation on the Central Coast on 1/08/2020. He is currently subject to electronic monitoring, a five year ... Child Protection Prohibition Order (CPPO) and is subject to the CPR for life ... [The defendant’s] response to community supervision in the current sentence was initially described as ‘borderline’ (6/05/2020). On the day of his release, some boundary pushing was noted by his CCO, with him fixing his eye contact on her and repeatedly licking his lips (22/01/2020). He also asked his CCO to consider approving him to have communication with his father, demonstrating little insight into risk issues. He had been given a specific condition from the State Parole Authority (SPA) not to associate with his father.

Within the first month of parole, [the defendant] had made contact with a convicted child sex offender (30/01/2020) and had breached his parole conditions by accessing Facebook, which he claimed was accidental (19/02/2020). He was given a written warning for accessing Facebook and was given further written directions regarding not accessing social media (26/02/2020) or associating with convicted child sex offenders (4/02/2020; 11/03/2020). On 11/03/2020 [the defendant] disclosed he had received letters from a number of associates from custody. He was instructed that if he received further contact from offenders, he needed to hand in the mail to COSP staff. He breached these conditions on 7/04/2020 when a new COSP resident passed him a letter from his father and he opened it without doing so in the presence of COSP staff ... [The defendant] also noted having contact with a convicted child sex offender via a third party (his aunt) to arrange retrieval of his property; this is noted to contravene the conditions stipulated in the CPPO. He subsequently sought approval via CPR police to maintain this contact until the property had been placed in storage; this was approved. Since these early issues, an improvement in [the defendant’s] response to community supervision is apparent, though at times his engagement in the supervision process is described as superficial ...

During the current parole period [the defendant] has commenced participation in age-appropriate pro-social activities, such as tennis, a stamp collectors club, bowls and attending an RSL club. Management at the RSL club became aware of his offending history, however, and he was excluded from attending; he was asked to attend a board meeting if he wanted to continue attending, however he declined to pursue this ...

[The defendant] commenced Maintenance at FPS [a ‘Maintenance’ after-care program, which is a less structured program aimed at consolidating treatment gains made in HISOP and addressing outstanding needs. The community-based Maintenance program is run from the Forensic Psychology Services (FPS) office in Surry Hills, NSW] on 25/02/2020. He initially attended three group sessions and has since had approximately 20 individual risk management sessions over the telephone. This was initially in response to reduced face-to- face service provision as a result of COVID-19, however his engagement has continued to be limited to phone contact with his FPS therapist even after groups resumed, due to concerns raised by his supervising officer regarding the risks posed (i.e., potential victim access) if he were to travel to Sydney via train to attend sessions. In progress notes he has been described as meaningfully engaged in sessions. It appears that he has been willing to discuss risk related issues, including risk scenarios and strategies for managing his risk factors and high risk situations ...”

28. Dr O’Dea diagnosed the defendant as follows:

“… [the defendant] would satisfy the psychiatric diagnostic classification of a Paraphilic Disorder, namely Pedophilic Disorder, Sexually Attracted to both males and females, Not Limited to Incest, that would appear a significant and predominant, if not exclusive, sexual orientation.

Whilst [the defendant’s] history of sex offences related to both female as well as male children, thereby pointing to a diagnosis of so called ‘bisexual paedophilia’, his offending against female children may be understood in the context of opportunity and a more polymorphous perverse sexuality associated with his significant family history of paedophilia, with so called homosexual paedophilia being his predominant sexual orientation.

Regardless, both homosexual and bisexual paedophilia are likely, in individuals such as [the defendant], to be chronic, lifelong conditions, with a high risk of repeated expression towards children if untreated, and would require assertive long term psychiatric treatment and management in the community.

Whilst [the defendant] has at least antisocial personality traits, that may be of a nature and extent that may point to the psychiatric diagnosis of a personality disorder; these personality traits may be better understood in the context of his limited intellectual and social functioning, and his strong and deviant sexual orientation and drive, as part of his Paraphilic Disorder, rather than as an independent Personality Disorder.

Whilst I note his history of developmental disadvantage and trauma, his history of speech pathology, and his apparent limited intellectual functioning … I did not diagnose him as suffering a significant cognitive impairment, such as a neurocognitive disorder. However, I note his problems to date with adhering to detailed community restrictions that may be understood, at least in significant part, as related to his limited intellectual functioning and personality, with these enduring attributes likely to result in ongoing problems with [the defendant] abiding by complex and detailed restrictions and conditions.” (footnote omitted)

29. As to the history of attempted treatment of the defendant’s paedophilic disorder, Dr O’Dea stated:

“Whilst [the defendant] has engaged in psychological interventions for his Pedophilic Disorder since at least 2018, both in custody and in the community; psychological interventions have not been shown to be effective in reducing recidivism in individuals with Pedophilic Disorders, in particular in individuals with limited neurocognitive functioning, such as [the defendant].”

30. Dr O’Dea recommended that anti-libidinal medication be considered as a form of risk management for the defendant. As to the level of risk of the defendant sexually reoffending, as is relevantly understood in an application of this type, Dr O’Dea stated, with reference to the proposed schedule of conditions of an ESO:

“… I would consider that [the defendant’s] risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, would be adequately and appropriately managed at this stage in the community with successful implementation of the psychiatric treatment and risk management program, including successful prescription of anti- libidinal medication, together with a structured and supervised community management program, as detailed in the Schedule of Conditions ...”

31. Dr O’Dea considered that the length of a management program, from a psychiatric risk management perspective, should be at least five years and should be reviewed every six to 12 months.

Mr Patrick Sheehan’s report

32. Mr Sheehan assessed the defendant on 30 March 2022. He utilised certain assessment tools in forming an opinion as to the defendant’s current level of risk of sexually reoffending. The defendant scored a 6 on the Static-99R which, as its name suggests, assesses static factors. That score placed the defendant in the “Well Above Average Risk” category relative to other male sexual offenders.

33. Dynamic risk factors were assessed with the deployment of the Risk of Sexual Violence Protocol, or RSVP. Mr Sheehan considered each of the dynamic factors that are relevant to his vulnerability to sexually reoffending and concluded that, overall, his level of risk is in the “high risk” category, or at the upper end of the risk spectrum, relative to other adult male sexual offenders. He noted:

“The characteristics of his prior sexual offending suggests that any future sexual offending may well meet the threshold for a serious offence as per the Act (such as targeting a vulnerable child).”

34. Mr Sheehan’s opinion as to the defendant’s progress in addressing his vulnerability to reoffending was, essentially, mixed. While he had completed two years of parole without reoffending or revocation, there remained:

“… some evidence of failure to entirely let go of some attitudes associated with offending, most notably his ongoing ambivalence regarding a future relationship with his father.”

35. Mr Sheehan concluded that he was unable to express confidence that the defendant has advanced to the point where he could manage himself independently in the absence of intensive supervision, and therefore an ESO was appropriate. He considered that the duration sought, being three years, was appropriate.

Section 9(3)(h1) of the Act: views of the sentencing court

36. In relation to s 9(3)(h1) of the Act, which concerns “the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender”, I note that the sentencing judge for the index offences accepted an opinion expressed in a report by a forensic psychologist and tendered on the sentence hearing that the defendant presented with a high risk of reoffending. This was in no small measure due to the sexual abuse that he experienced as a child at the hands of his paternal grandfather and unassisted by the sexualisation of children by his father and grandfather. His Honour noted that the defendant gave evidence at the hearing, and accepted that his expressions of remorse were genuine and that he wished “to be rehabilitated”, although whether that desire was realistic remained to be determined.

Determination

37. I am cognisant of the terms of ss 5B(d) and 5D of the Act and I have regard to the matters identified in s 9(3) of the Act. I note that the defendant has all but completed his parole without revocation and, save for some initial concerns, satisfactorily. However, I accept the opinion of both forensic experts that the defendant continues to present a high level of risk of committing another serious offence, in particular, a serious sex offence as defined in s 5 of the Act.

38. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision by way of an ESO. In so finding, I determine not to exercise the statutory discretion in favour of the defendant, there being no apparent reason on the evidence to do so and no submission having been made that I should. I also conclude that the term of the ESO should be a period of three years, having regard to the two forensic reports.

Appropriate conditions for the ESO

39. Section 11(1) of the Act enables this Court to direct an offender to comply with such conditions as it considers appropriate, including (but not limited to) certain directions that are set out in the section. The majority of the conditions that were scheduled to the summons were agreed between the parties. Some that were initially the subject of disagreement have been modified to the satisfaction of both parties. I will resolve those that remain the subject of dispute.

40. The drafting of conditions involves a balancing exercise, so that the Court will impose the least intrusive conditions that are consistent with the assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective. Relevant considerations include the defendant’s interests in liberty and privacy, so as to ensure that unjustifiable conditions are not imposed: New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 per Johnson J at [25].

The defendant’s evidence

41. An affidavit affirmed on 6 May 2022 by the defendant was read at the hearing. Its contents were relevant to some specific contested conditions and more generally to all of those in contention, to the extent that he expressed frustration with the manner in which certain conditions of his parole and the ISO have been managed and explained the psychological impact of the degree of control permitted by the ISO over an extended period without breaches.

42. By way of introduction, the defendant provided a credible and innocent explanation for contacting a convicted child sex offender shortly after being granted parole (see [27] above). He explained that he continues to use the services of a psychologist as well as Forensic Psychological Services (“FPS”), although there is no obligation upon him to do so, because of its positive impact on his general wellbeing.

43. The defendant explained that he has been wearing a radio transmitter (an ankle bracelet) to facilitate remote monitoring of his precise whereabouts, since he was released to parole in January 2020. Following a change of his Departmental Supervising Officer (“DSO”) in around late October or early November 2021, many of his activities that were previously approved have been disapproved, for no apparent reason. As an example, the defendant annexed to his affidavit maps of walking routes for exercise that had been disapproved. He also provided an example of his routine evening walk being significantly brought forward, with the consequence that it would disrupt his usual afternoon activities.

44. Many of the defendant’s complaints, although not all, involved directions that were, in my opinion, at least on their face, capable of having a reasonable basis. One that appeared to be without a reasonable foundation was described by the defendant thus:

“While I was out for a walk one day last year, I saw on a noticeboard in the neighbourhood a sign for a soccer club. I contacted the club and found out they had an over 45s team. I spoke to [the DSO] about joining a team, and sent him an email with various details. [A copy of the email was annexed to his affidavit.] I thought it would be a good opportunity to make some friends close to my age. [The DSO] refused to approve that activity. He said to me that was because other players might bring their children to watch the games, and the ankle bracelet might get damaged.”

45. The applicant did not tender evidence of a different rationale for the DSO’s decision to disallow the defendant’s request for permission to seek to join the over 45’s soccer team.

46. The defendant contended that the stricter regime that commenced late last year and which was continuing under his current DSO was having an overall negative impact on his wellbeing:

“Since I have been under the supervision of the ESO team I have felt very anxious about my supervision. I did not feel this way while I [was on parole]. I am constantly checking and re-checking my schedule to make sure I have not made any mistakes. I feel like I have taken a step backwards, which is disheartening because I felt positive about the progress I had made while on parole. Now I feel like all the hard work I did on parole was wasted.

I do not trust my DSO, and have no rapport with him. I do not feel supported by him. I would like to get back into bowling, which I did before. I have my own shoes and ball. I feel as if there is no point asking him to approve that, or anything else that he has discretion to approve, because he has refused approval for so many things I have asked for so far. I also feel that the directions he has given me are inconsistent, particularly in moving my walks to earlier in the afternoon, because I have been approved to do other activities after 6:00pm, such as my stamp collection meetings and tennis ...”

Conditions 4 to 7: Electronic monitoring and weekly schedules

47. A condition is proposed that would oblige the defendant to wear an ankle bracelet “as directed by a DSO” and to provide a schedule of his proposed weekly movements, “if directed”, three days before it is due to commence. Any change to the schedule must be approved by a DSO, such approval to be sought at least 24 hours in advance of the proposed change, “unless a DSO approves a shorter period”. The defendant is not to deviate from the schedule “except in an emergency.”

48. In his report, Mr Sheehan stated:

“In my view there is a role for electronic monitoring and schedule of movements, however I do not support this as a permanent fixture, such as has occurred during [the defendant’s] parole supervision over the past two years. There should be a clear date specified for removal of GPS to increase transparency in this process and to offset [the defendant’s] perception that conditions are applied arbitrarily. I note that engaging [the defendant’s] motivation is an important aspect of effective supervision.”

49. In evidence, Mr Sheehan questioned the value of electronic monitoring in detecting contact by the defendant with other child sex offenders, including the defendant’s father, noting that the defendant had previously engaged in such contact via electronic media. Mr Sheehan was of the view that there should be a means to reintroduce it, if the situation clearly required it:

“My view is that there should be the capacity to use electronic monitoring when it is required, and usually that’s in the earlier stages of an order or a period of parole, and then removed over time. But the capacity should be there to reinstate that if risk is seen to escalate.”

50. In evidence, Dr O’Dea supported the retention of electronic monitoring without a sunset clause, since, in his view, the defendant’s risk could only be minimised by him embarking on a program of anti-libidinal medication, which the defendant was presently not minded to accept, and therefore a temporal limit was inappropriate.

51. The defendant submitted that there should be no condition for electronic monitoring in view of his compliance with supervision for a period of two years and four months to date and, alternatively, a sunset clause was appropriate. In relation to scheduling, initially the defendant’s only objection was that there should be a sunset clause.

52. The plaintiff submitted, in written submissions, that a sunset clause to electronic monitoring and weekly scheduling was inappropriate, because of:

“… the Defendant’s risk factors generally (which include his associations with other persons who have been convicted in child sex offending, most notably, his father). Electronic monitoring is, it is submitted, the only way in which the Defendant’s associations could be monitored; and the therapeutic benefits provided for by scheduling (in terms of assisting the Defendant to plan his week …”

53. In oral submissions, the plaintiff submitted:

“… there is at this present stage insufficient evidence before the Court to enable it to arrive at a particular date or even a period of time at which the defendant … will no longer require electronic monitoring. It is noted that Dr O'Dea’s evidence, in particular, was that this depends on how events arise during the case management of the defendant. Dr O’Dea, at least, is of the view that electronic monitoring is an appropriate measure given the defendant's risk factors. Because at this stage, in the plaintiff’s submission, there is no date on which the Court could say by when the defendant’s progress on rehabilitation will have reached the stage where it is no longer necessary or desirable for him to be subject to electronic monitoring, those conditions should be made, in the plaintiff’s submission, without a sunset clause.”

54. The plaintiff went on to note that s 13 of the Act provides a mechanism for either party to seek a variation of a condition, so that if the defendant was subjected to the condition unreasonably, he could seek a variation.

54. I reject the condition in its present terms, for four reasons. First, the plaintiff’s rationale for electronic monitoring is that it protects against the defendant approaching his father or other child sex offenders or going to places where children are known to congregate. Electronic monitoring does not prevent the offender communicating with these individuals by phone or social media, methods which are strictly controlled by other unchallenged conditions. Weekly schedules, in combination with random checks by ESO staff and police, are other preventative measures being deployed to ensure that the defendant does not visit places which are deemed by the authorities to be inappropriate and out of bounds to him.

55. Second, the defendant’s offending in respect of the offences committed in 1996 was by exploitation of established family relationships in the home rather than opportunistic encounters in public places. The index offences were committed by electronic means. There are other conditions that enable the authorities to monitor the defendant’s formation of relationships and routine dealings with children. Electronic monitoring of the defendant’s whereabouts would not be essential to ensuring that offending of this type did not recur.

56. Third, the defendant has successfully complied with electronic monitoring for two years and four months without incident. There is no evidence before me as to when, if implemented, electronic monitoring as a condition of the ESO would first be reviewed. I do not presume that it would be within the first 12 months of a three year ESO.

57. Fourth, I accept that wearing an ankle bracelet does not assist the defendant with reintegrating into the community. Mr Sheehan observed in evidence:

“Electronic monitoring is a genuine deterrent to social engagement. It is protective, but it is a genuine deterrent. It does make things more difficult.”

59. In his affidavit, the defendant referred to an incident in which a person he passed on the street noticed the bulge from the ankle bracelet he was wearing, assumed it was an ankle bracelet and questioned him on his custodial status. The defendant is a keen tennis player and aspires to play football. The bulge in his sock from the ankle bracelet is doubtless awkward for him in avoiding curiosity. In determining whether a particular condition is “appropriate” in terms of s 11, it is relevant to be mindful that some conditions, while protective of the community, may also impede an offender’s efforts to reintegrate into the community and build pro-social connections. Protection of the community, however, remains the paramount consideration in determining the appropriateness of a particular condition or a combination of conditions.

60. For those reasons, I am not satisfied that a condition requiring electronic monitoring of the defendant at this stage of his supervised liberty is appropriate to ensure the safety of the community. However, a condition that enables electronic monitoring to be reintroduced if there is a justifiable concern that the defendant is not complying with his weekly schedule is appropriate. I will include the following condition as to electronic monitoring, instead of proposed condition 4:

“4(a). It is noted that the defendant has worn electronic monitoring equipment for the last 2 years without incident. The defendant is not required to continue to wear such equipment from the commencement date of the ESO, subject to the following:

(b) If the DSO has a significant concern as to the defendant’s movements complying with his agreed weekly schedule, the defendant will be required to resume wearing electronic monitoring equipment for a further period of up to six months. If there is a significant concern as to the defendant’s movements in that further period of six months, then at the discretion of the DSO, the defendant may be required to wear electronic monitoring equipment for an additional period of up to six months, on the same basis, and continuing.”

61. In relation to the weekly schedule, in his evidence Mr Sheehan noted the benefits of a defendant being obliged to plan what they are doing, in combination with random checks to ensure that they comply with it. Mr Sheehan drew on his experience as a former member of the ESO compliance team, involved in the supervision of “a couple of hundred” defendants. He noted adverse aspects of requiring a weekly schedule and how they might be avoided:

“The issues of where the schedules are overly burdensome, and you have the monitoring people ringing you, and saying: ‘You were supposed to leave the house at 10 o'clock. It’s seven‑past‑ten. Why haven’t you left?’ It’s so unhelpful. But there are ways around that, with some of the scheduling, as people progress their way through the order. They have pre‑approval locations on their scheduling orders so they are allowed to go here or there at any time between those times, which allows for some of the spontaneity that we need if a friend says: ‘Can we go for a coffee?’ ‘I’m not allowed to that coffee shop. I can’t go down there’. I think it's really important in terms of social reintegration.”

62. I address these two concerns by a reformulation of condition 7, which is as follows:

“7. (a) 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. Such explanation is to be provided to his DSO or any person supervising him as soon as possible, and in any case, no later than 24 hours after the deviation.

(b) The DSO and the defendant are to try to agree upon locations to which the defendant may go without prior approval instead of the location specified in the weekly schedule.at that particular time. At the discretion of the DSO, some such locations may only be an acceptable destination between certain hours.”

63. If the latitude permitted by this condition is abused, in the opinion of the DSO, he or she has the option of re-introducing electronic monitoring pursuant to condition 4. In view of the relaxing of those conditions and the conditional removal of electronic monitoring, it is inappropriate to introduce a sunset clause applicable to the weekly monitoring condition.

Condition 16 (g): Access to playing fields and sporting facilities

64. The plaintiff proposed that the defendant must not go to “pools, playing fields [or] sporting facilities” without the prior approval of a DSO. The defendant proposed a cut-out amendment, namely, that he may attend playing fields and sporting facilities for the sole purpose of organised adult sports without prior approval. The defendant’s proposal was motivated by his experience recounted in his affidavit, and excerpted at [44] above.

65. Dr O’Dea was of the view that the presence of children should not be an issue at adult sporting events, since one would expect that they would be supervised. The plaintiff questioned Mr Sheehan about this proposed condition. He clarified that his concern was that the defendant not be permitted to attend places where children congregate, but it was acceptable for the defendant to attend places where children also attend, particularly if they are subject to adult supervision. Mr Sheehan considered that the prior approval of a DSO should be required.

66. I accept Mr Sheehan’s proviso that DSO approval should be required, but amend the condition as follows to encourage the DSO to facilitate such attendance:

“16. Without limiting condition 15 above, the defendant must not go to any of the following without the prior approval of a DSO: …

g.    Pools,

…

j.    playing fields and sporting facilities (the discretion of the DSO to be exercised in favour of the defendant, so far as is possible, for the purposes of organised adult sports)”

Conditions 17 and 41: obtaining sexually explicit material and the provision of sexual services

67. The plaintiff proposed the following conditions:

“17. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

…

41. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.”

68. The plaintiff amended proposed condition 41 by adding to its end the words “by reason of its pornographic nature", so as to not exclude violent material, since there is no concern that the defendant would engage in serious violent offences.

69. The plaintiff submitted that the conditions were necessary since:

“… it is at least conceivable, it is submitted, that attending this sort of venue will be contraindicative in that it will reignite the Defendant’s previous level of sexual preoccupation.”

70. The defendant proposed that condition 17 be amended to substitute post-visit notification of the DSO, instead of prior approval by the DSO. Dr O’Dea gave evidence in support of the conditions as proposed:

“… people with paedophilia, one of the things that we aim to do is … redirect, and focus them on adult sexual relationships. … [which is] clinically very difficult to do. … pornography is not something - in masturbatory redirection that has been proven effective - and is usually not something that is recommended in psychiatry.

The next thing is what role (if anything) can pornography have in this process. … people in situations where people have sexual deviances, and of course, as [the defendant] has, in the broader sense, problems with pornography, usually the recommendation would be to abstain from pornography. Because of the risks it may have in perpetuating overall sexuality and, therefore, sexual deviance. Because of that problem with the difficulty with redirecting sexual deviance.”

71. Mr Sheehan had a contrary view, to the effect that it could aid the defendant’s transition to non-criminal forms of sexual activity:

“One of the rehabilitative tools that would be used in the high intensity sex offender program that [the defendant] participated in is masturbatory reconditioning. It basically encourages the person to retrain their sexual arousal through masturbation. Because ejaculation is so highly reinforcing an experience, they can retrain themselves to focus on appropriate sexual stimuli so that they can regulate themselves sexually without recourse to deviance. I don't have any scientific papers that I can refer you to to say that porn is a great idea. I don’t have anything of that nature. It just seems to me that the risk is towards children and we are worried about his risk towards children specifically. It is very limited, his deviancy is limited in that sense. Whereas offenders who are at risk towards adults, where violence is part of their offence pathway, this is much more appropriate.”

72. Mr Sheehan favoured the defendant accessing sexually explicit material from a retail outlet rather than online:

“I usually consider someone’s pornography use is … more of an indicator of their sexual pre‑occupation than necessarily a trigger for their sexual pre‑occupation. And … I prefer to have control over that. … that they limit them to pornography DVDs or magazines. So you are more likely to control the content and of those things than going online. Which is a bit of a cesspit. And the various links. People get themselves into trouble quite quickly. That’s one of the ways I could go about controlling/exercising some control over pornography use.”

73. I conclude that condition 17 should be amended in the terms proposed by the defendant. Condition 41, as it presently reads, forbids the defendant from accessing such material altogether. Condition 41, as proposed, refers to four classifications. Having regard to the definitions of those classifications in the National Classification Code 2005 (Cth), I would allow the defendant to purchase and view material that is classified X18+, provided that it is purchased from a physical retail outlet rather than downloaded from the internet. Accordingly, conditions 17 and 41 are as follows:

“17. If the defendant attends any place used solely or mainly for the sale or display of sexually explicit material or for providing sexual services or sexually explicit entertainment, he must notify the DSO within 24 hours of attendance.

…

41. The defendant may purchase material classified or material that would be classified as X18+ but only from a physical retail outlet. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence, by reason of its pornographic nature.”

Condition 19: commencing certain activities with prior approval

74. Proposed condition 19 would oblige the defendant to obtain the approval of his DSO before commencing a job, volunteer work or educational course. The defendant proposes that the condition be modified such that, instead of the DSO’s prior approval being a requirement, the defendant would be obliged only to notify the DSO before commencing the activity. The essence of the defendant’s submission is that the concern that the vetting of the proposed activity is intended to address, that is, to ensure that there is not an unacceptable degree of contact with children, is already addressed by the conditions of the CPPO that applies until 18 May 2025. Conditions 1 and 3 of that order effectively prohibit the defendant from coming into contact with a person under the age of 18 who is not being supervised by a responsible adult.

75. I am of the view that prior approval by the DSO is appropriate, as a measure that ensures that contact contrary to the CPPO is not likely to occur.

Condition 21: information relating to the defendant’s financial affairs

76. The plaintiff seeks a condition that the defendant be obliged to provide any information relating to his financial affairs, if directed to do so by his DSO. The reason is that it may bring to light any expenditure for purposes related to serous offending of a nature related to child sexual assault. The defendant opposed the condition on the basis that it was unnecessary, since his past offending did not involve expenditure and the prospect of it doing so in the future was speculative.

77. Both Dr O’Dea and Mr Sheehan expressed reservations about the need for the condition. I am not persuaded that it is needed, and I will not impose it.

Condition 39: search and seizure

78. The plaintiff proposes a condition that would oblige the defendant to submit to the search of any item or place under his control and to the seizure of any object located in the search. The defendant, in his affidavit, noted an occasion when, following a search of his premises, a family photo album was seized, apparently because it contained photographs of the defendant’s family, including of himself, as children. He was advised that it would be safely stored.

79. I am of the view that it is appropriate for the authorities to be able to exercise a broad power of search and seizure in respect of the defendant, in order to ensure his compliance. I do not doubt that the seizure of the family photo album was distressing, but in view of the defendant’s extraordinary family history of child abuse extending over three generations, on its face the seizure is not necessarily inappropriate. I will make the condition as sought.

Orders

80. I make the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) order that the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of three years from the date of this order;

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment;

3. Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified.

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Conditions of supervision (169871, pdf)

Decision last updated: 17 May 2022