State of New South Wales v Presta (Final)

[2022] NSWSC 490

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Presta (Final) [2022] NSWSC 490

Hearing dates:

11 November 2021

Date of orders:

19 November 2021

Decision date:

28 April 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Orders made 19 November 2021:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of one year 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 of Conditions attached to these orders.

(3)   Access to the Court’s file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:

HIGH RISK OFFENDER – final hearing – application for extended supervision order – whether the offender poses an unacceptable risk of committing another serious offence

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 90A

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5D, 5I, 6, 7, 9, 11, 21A

Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Sentencing Act 1989 (NSW), s 5(2)

Cases Cited:

R v Presta [2000] NSWCCA 40

State of New South Wales v Presta (No 2) [2016] NSWSC 1154

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Bruno Presta (Defendant)

Representation:

Counsel:
Mr L Fernandez (Plaintiff)
Mr E Kerkyasharian; Mr W Burton (Defendant)

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

File Number(s):

2021/220209

Judgment

1. HIS HONOUR: By summons filed on 2 August 2021, the State of New South Wales (“the plaintiff”) sought final orders pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant, Bruno Presta, be subject to an extended supervision order (“an ESO”) for a period of two 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 20 August 2021, Cavanagh J made the 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. There were three further ISOs, comprised of two for a period of 28 days and one for a period of eight days, with the last ISO expiring on 19 November 2021.

3. The hearing of the present application occurred on 11 November 2021 and, in view of the statutory unavailability of an ISO beyond three months, I gave my determination on 19 November 2021. That determination comprised an ESO for a period of 12 months from the date of the order, an order that the defendant comply with an attached schedule of conditions and an order restricting access to the court file without leave of a judge of the Court. These are my reasons for those orders.

The defendant’s background

4. The defendant is aged 52. His twin brother was killed in a car accident when they were aged 16. The defendant was injured in the same accident, suffering a fractured pelvis, ribs and jaw. He has one surviving sibling, an older sister. His father is deceased and he is presently residing in the community with his mother.

The defendant’s criminal offending

5. The only entries in the defendant’s criminal record prior to the index offences are matters dealt with in the Children’s Court, for a count of “enter with intent” when he was aged 12, for which he received a recognisance for a period of 12 months, and two counts of stealing when he was aged 14, for which he received a recognisance for a period of 18 months for each offence.

The index offences

6. On 4 November 1998, the defendant was sentenced by O’Reilly DCJ for five counts of kidnapping contrary to s 90A of the Crimes Act 1900 (NSW) and 21 counts of aggravated sexual assault, contrary to s 61J of the Crimes Act, with a further ten offences taken into account on Form 1 certificates, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the index offences”). The defendant received wholly concurrent sentences, the longest (and thus effectively the overall sentence) being 19 years imprisonment dating from 14 November 1997 and expiring on 13 November 2016 with a non-parole period of 14 years and 3 months, expiring on 13 February 2012.

7. The defendant sought leave from the Court of Criminal Appeal to appeal the severity of the sentence. Leave was granted and the appeal was dismissed: R v Presta [2000] NSWCCA 40. The Court recited the facts on which the defendant had been sentenced by O’Reilly DCJ, which were to the following effect.

8. Between 28 March 1997 and 2 November 1997, when the defendant was aged 27 and 28, he abducted five males at gunpoint, each from a public place either late at night or early in the morning. He blindfolded and secured them, on occasion with handcuffs, and took them to his residence where he tied them to a bed and violently sexually and non-sexually assaulted them in a fashion that could reasonably be described as sadistic in motivation and torturous in effect. Each male was returned to a public area within, it would seem, a day or so. Two were aged 15. Each was drugged, eventually causing them to lose consciousness and not regain it until after the defendant had left them in a public area. One was a 17 year old who lost consciousness through the ordeal and awoke in a parkland. Another was an 18 year old. One was a 22 year old male who the defendant tackled while he was on an early morning run and then abducted in the same fashion, at gunpoint. The extent of the assaults was established by videos that the defendant had taken of each episode that were seized during a search of his residence, following his arrest.

9. In his remarks on sentence, O’Reilly DCJ noted that in view of the seriousness of the offending, the defendant’s plea of guilty “does not carry much weight”. His Honour found that “there was not much in the way of remorse so far as the victims were concerned”. His Honour did not identify any special circumstances warranting an adjustment of the non-parole period to the total sentence pursuant to s 5(2) of the Sentencing Act 1989 (NSW).

Post-release history and reasoning for this application

10. Although the non-parole period expired on 13 February 2012, the defendant was not considered suitable to be conditionally released to parole until May 2016, being six months before the expiration of his total sentence. His parole was subsequently revoked, apparently due to an absence of suitable accommodation.

11. On 22 August 2016, Wilson J ordered that the defendant be subject to an ESO for a period of five years, commencing on that date and thus expiring on 21 August 2021: State of New South Wales v Presta (No 2) [2016] NSWSC 1154 (“the 2016 hearing”).

12. On 9 July 2021, the defendant was arrested and charged with two counts of failing to comply with conditions of his ESO. On 20 June 2021, he had failed to notify his Departmental Supervising Officer (“DSO”) of the identity and address of three health care practitioners and he had used prescription medication that was not prescribed. The defendant entered a plea of guilty to the first charge and was granted bail on the second charge, which is set down for hearing in July 2022. He has continued to reside in the community since that time. The plaintiff has stated in submissions that the first admitted breach and the alleged second breach were sufficiently serious, in view of a nexus between the defendant’s substance abuse and the commission of the index offences, to prompt the plaintiff to commence the current proceedings for a two-year ESO.

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 did not dispute that the statutory preconditions are established, leaving s 5B(d) in contention. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied, for the following reasons.

15. 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:

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where—

(i)   in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and

(ii)   in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises) …”

16. Section 5B(a) is satisfied by the five offences of aggravated sexual assault, contrary to s 61J of the Crimes Act, which had a maximum penalty of 20 years imprisonment.

17. In relation to s 5B(b) of the Act, the term “supervised offender” is defined in s 5I:

“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. Section 5B(b) is thus satisfied. As to s 5B(c), 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, 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 Cavanagh J, the defendant has been examined by Dr Andrew Ellis, forensic psychiatrist, and Dr Katie Seidler, a clinical and forensic psychologist, both of whom gave evidence on the current application. 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:

“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).”

23. The plaintiff has tendered statements made by two of the victims of the index offences. Pursuant to s 21A(4) of the Act, I have taken each statement into account in consideration of the application.

Sections 9(3)(b), (c) and (d1) of the Act: forensic reports and evidence

24. Reports have been prepared pursuant to s 7(4) of the Act which are relevant to all matters identified in s 9(3) except for ss 9(3)(h) and (h1).

Dr Andrew Ellis’ report

25. Dr Ellis assessed the defendant on 1 October 2021. Dr Ellis took a history from the defendant that suggested that he was enduring a high level of anxiety at that time. In his report dated 18 October 2021, Dr Ellis stated:

“[The defendant] has lost 12 kg in the past three months. He says he has had a lower appetite with some recent increase in stress.

… He describes his mood as ‘stable’. He also describes himself as ‘constantly anxious’. He describes this as his mind racing and a need to retreat. He is scared of his mother dying and scared of the current pandemic. He says that he has been calmer by learning behavioural techniques from his psychology sessions. He feels sad about his mother, and other losses in his life …

…

He reported that 10 days ago he had an overnight admission to the Bankstown hospital psychiatric unit. He said that he experienced a ‘nervous breakdown’ after having viewed his police interview for the recent charges related to breach of the ESO.”

26. The defendant said that he had resumed smoking tobacco eight months before, not having done so since the age of 28, and was smoking one or two cigarettes daily.

27. As noted, the defendant has previously reported that he was raped when he was aged 14, but he was not prepared to discuss that matter or the index offences with Dr Ellis:

“He became particularly anxious and tearful when brought to discussing his offences, concerns about his compliance with orders or his experience of sexual assault at age 14. He requested to terminate the interview after this.”

28. The interview was terminated at the defendant’s request at that point. Dr Ellis explained in his evidence that this was about halfway through the two hours that Dr Ellis had set aside for the assessment.

29. The defendant informed Dr Ellis that, following the motor vehicle accident when he was aged 16 in which his twin brother died, he had amnesia for two weeks, indicating to Dr Ellis a serious head injury. The defendant reported doing well in academic subjects at school, having friends and not having disciplinary issues at school. Nevertheless, the defendant reported that he stopped attending school after the car accident. Shortly afterwards, following an overdose of painkiller medication, he was briefly admitted to Bankstown psychiatric unit.

30. The defendant reported that he moved out of home at age 23. His longest job was held for 10 years, as a loss prevention officer for a supermarket.

31. Dr Ellis observed:

“It is not clear if his early head injury had an impact on his development of impulse control, social judgement and decision making. This would require brain imaging and detailed neuropsychological measures to assess. The emotional impact and cessation of education as a result might serve to explain his problems in these domains as an alternative.”

32. The defendant has taken 20mg of the antidepressant fluoxetine for approximately 36 years. He receives monthly injections of buprenorphine, which is an opioid replacement medication. Dr Ellis observed that the defendant sees “corrective services” and private psychologists every four weeks and attends an online group for substance abuse three times each week.

33. The defendant suffers from asthma. In 2019, he had a heart attack, resulting in the insertion of a stent.

34. Dr Ellis diagnosed the defendant as having a sexual sadism disorder, based on the index offences. Although they occurred over 20 years before and the defendant had not engaged in other acts of sexual sadism, Dr Ellis expressed concern that the disorder was quiescent:

“The recorded behaviour of obtaining an erection and ejaculating whilst in sexual activity involving pain, humiliation and suffering of others over an 18 month period is consistent with a diagnosis of sexual sadism disorder. The behaviour is clearly documented in videos he made at the time. I note that he does not talk about sadistic sexual fantasy now, and only infrequently is it documented he discussed this in the material provided, and then reported as a historical experience, provoked by circumstance and substance use. It is not uncommon for persons with paraphilia to be unaware of fantasies and urges associated with the behaviour, or to deny them although experiencing them. They may be present but simply not spoken about. Sexual sadism usually manifests as a chronic relapsing condition. In this case, there is an absent satisfactory alternate explanation for the type of offending, and no indication of replacement with a normative sexual behavioural pattern. Incarceration and supervision may have prevented opportunity for further action on sadistic fantasy. Whilst he manages his other mental symptoms it may be quiescent. It would however be an ongoing target for management. His reticence to discuss his internal mental state is of concern. His strong emotional response in an interview, to what must be by now a familiar topic remains of concern. It is not sufficient to explain his past behaviour by intoxication, sexual identity issues and anger alone given the chronicity, detail and planning involved. In considering the diagnosis of sexual sadism … I have applied the sexual sadism scale (SeSaS) which assesses behavioural markers of sadism in crime scene behaviours. It goes somewhat to address criticisms of the difficulty in assessing the mental phenomena of sadism, which may be more difficult to relate to future offending. [The defendant] displays the presence of sexual arousal during crime scene actions, exertion of power, control and domination, torturing victims, degrading and humiliating behaviour towards victims, mutilation of non-genital parts of the victims body by putting out cigarettes, expressive physical violence, insertion of objects into the victims bodily orifices, ritualistic behaviour, confinement of the victim and planned conduct. This is a very high loading of factors associated with the sexual sadism diagnosis, and as behavioural markers have greater association with future behaviour.” (emphasis in original; footnote omitted)

35. In addition, Dr Ellis diagnosed the defendant as having a substance use disorder and a personality disorder.

36. As to the level of risk of the defendant committing a serious offence, Dr Ellis stated that deviant sexual arousal and personality disorder are factors consistently identified with sexual reoffending:

“Disturbance in personality function can interfere with honesty in treatment, cooperation with restrictions and passive-aggressive sabotaging of treatment progress, and has been demonstrated by concerns during the current supervision period. Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. He describes absent or limited relationships and emotional turmoil during all of his offences. There is therefore need to continually address personality function as part of any ongoing treatment process.”

37. Although the defendant’s anxiety and substance abuse were not, in themselves, factors tending towards sexual reoffending, they were nonetheless potentially contributing factors to recidivism for the defendant:

“He has shown a propensity to mental state instability, particularly an anxious mood, identity uncertainty and anger and describes this at the time of all offences. While these disorders and states per se are not usually associated with sexual offence recidivism, in this case relapse to a dysphoric mental state has been associated with a disinhibition of his sexually deviant urges, and is therefore a treatment target to reduce likelihood of repeat behaviour.

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

38. Dr Ellis concluded as follows:

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

39. Dr Ellis considered that a continuation of the ESO was appropriate. Ideally, monitoring of the defendant would be reduced over time:

“It is appropriate that the frequency and intrusiveness of monitoring be gradually reduced in response to positive progress, and increased at times of [re-emergence] of risk factors. This has currently occurred. It is best if this can be graded and flexible. If monitoring is changed in an inflexible or arbitrary manner it is more likely to lead to frustration and superficial cooperation. Rehabilitation and community safety are not mutually incompatible. The more stable a person is in their internal control, accommodation, employment and social activity, the less likely they are to offend. Therefore rehabilitation promotes community safety. The nature of monitoring and surveillance should be tailored to the degree of rehabilitation progress to maximise safety of the community.”

40. Dr Ellis thought a further period of two years of supervision was reasonable:

“It is most likely that a period of 12 months of regular treatment in a psychological programme, coupled with medication and review of this medication would be necessary to consolidate the modest gains made in custodial and community programs thus far. This period is estimated based on his personality disorder, paraphilia, substance use disorder and current attitudes to supervision that will be unlikely to change in the short term. Involvement in structured activity and appropriate social groups will also consolidate a routine promoting a positive lifestyle. A further period of 12 months would be required to monitor the consolidation. At this point a more informed appraisal of future risk in progress could be made. His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point.”

Dr Katie Seidler’s report

41. Dr Seidler assessed the defendant on 5 October 2021, that is, four days after Dr Ellis’ examination of him, and produced a report dated 13 October 2021. Dr Seidler noted that the defendant’s background had already been covered extensively and stated that she would focus “on matters that are more relevant to understanding [the defendant’s] current functioning and future risk”, commencing with a detailed review of the documentation provided to her. First, she referred to two ESO reports by Community Corrections Officers in the Metropolitan Extended Supervision Team. One was by Ms Newby, dated 18 August 2019. Dr Seidler noted that Ms Newby reported on the defendant’s progress at that time as follows:

“… [the defendant] has never before been subject to breach action whilst on the ESO. [Ms Newby] also refers to [the defendant] as engaging positively in psychological treatment with Forensic Psychology Services and indicates that future interventions with [the defendant] ‘will continue to focus on exploring strategies to manage his stress, anger and emotions, building assertive communication techniques, establishing and maintaining healthy interpersonal relationships, and developing skills needs for impulse control’.”

42. A similar ESO report was provided by Mr Glover, dated 20 October 2020. He observed that the defendant’s progress continued to be positive, that he was stable on an opioid substitution treatment program and that his:

“… week-to-week presentation has given no cause for concern that he is abusing illicit or non- prescribed substances ...”

43. Dr Seidler devoted a significant part of her review of documentation to a close assessment of a series of reports by a senior psychologist with NSW Corrective Services, Samuel Ardasinski. While it is not always helpful to reproduce lengthy passages from tendered reports, the following passages concern what became the central issue of fact in the hearing of the application. That issue was, namely, whether despite the defendant’s seeming progress and compliant, essentially law-abiding behaviour during his first ESO, which as noted lasted five years, he was not forthcoming about his continuing interest in and vulnerability to risk factors for further violent sexual offending.

44. Dr Seidler noted that the assessment of the defendant’s level of risk, based on static factors alone, was high. She excerpted a passage from a report by Mr Ardasinski, dated 22 February 2016, who contextualised that finding with the defendant’s “minor prior criminal history”:

“Even with only a minor prior criminal history, due to static factors such as his age and lack of relationship history, the brutality of the sexual offending, the randomness of his victim choice and a pre-sentence psychiatric diagnosis of sexual sadism, [the defendant] has been assessed as falling in the Moderate-High risk range for future sexual violence.”

45. Mr Ardasinski noted, in the same report, that there was an Offender Integrated Management System (“OIMS”) report which referred to a concerning aspect of the records in respect of the defendant:

“… [an] unverified alert on OIMS which suggests that [the defendant] has been implicated in grooming younger male inmates for sexual favours, however no further evidence related to such sexualised behaviours in custody could be located in the file material.”

46. Mr Ardasinski identified the following risk factors:

“•   The diagnosis of Sexual Sadism Disorder,

•   Minimal experience with intimate relationships,

•   Ongoing difficulties regulating affect,

•   The history of prescription medication abuse,

•   Difficulties with forward planning,

•   Limited community based social support.”

47. Dr Seidler noted that in an ESO Completion Report dated 3 February 2021, Mr Ardasinski recommended that:

“… no further action be taken, ‘since there are sufficient other mechanisms which are likely to manage any residual risk’. Even so, [Mr Ardasinki’s] report outlines a number of ‘incidents of note’ during the period of [the defendant’s] ESO, which includes an allegation that he was involved in ‘grooming a younger offender’ in 2016, whilst in residence at the COSP, as well as possibly ‘staring at a younger resident’ whilst housed at the ISC. Mr. Ardasinski also refers to [the defendant’s] ‘personality clashes’ with supervising officers, in addition to his submitting ‘GIPA’ requests to access his file documentation, subsequent to which [the defendant] was described as ‘more guarded and less open in his interactions with his supervising officer and psychologists’. Further, [the defendant] is described as having engaged in ‘boundary pushing’ behaviours with supervising officers.”

48. Dr Seidler extracted a passage from the same report, which was Mr Ardasinski’s last report before the defendant was charged with the two breaches of his ESO conditions:

“As mentioned … [the defendant] is not a sexual recidivist. He has all-but- completed a five-year ESO without breaching it. While the offences which brought him into custody almost 25 years ago involved ‘sadism of the worst kind’, there has been no other evidence of an ongoing deviant sexual interest within the intensive model of supervision and intervention provided to [the defendant] since he was released in 2016. Since he has denied any such lingering interest entirely, either he has been consistently lying about that and secretly harbours such a predilection, or his sexual sadism disorder is, by now, in full remission.

…

The ESO, for [the defendant], has provided him with time to adapt to the community after a very lengthy sentence, and he has used that time to set up a number of prosocial supports in the community … And while his support network is small, it is potentially adequate, given [the defendant’s] progress and compliance to date. [The defendant] has engaged with a local psychologist, in addition to his mandated intervention through FPS, and this additional therapeutic relationship can continue post ESO expiry, even if he will need to cease contact with FPS once no longer supervised.”

49. Dr Seidler also extracted passages from Mr Ardasinski’s most recent report, dated 21 July 2021, being 12 days after the defendant was arrested and charged:

“… dynamic risk assessment has been re-evaluated given the recent evidence of deception and poor coping. Though he is not a sexual recidivist, as noted in 2016, due to static factors such as his age and lack of relationship history, the brutality of the sexual offending, the randomness of his victim choice and a psychiatric diagnosis of sexual sadism, [the defendant] remains in the Above Average category of risk for sexual recidivism, even five years post-release as he nears the end of his current ESO.

…

He has not reported any sexual self-regulation issues with his FPS therapist – however, this accords with his long-standing denial of entrenched deviant sexual interest, despite the evidence of ‘sadism of the worst kind’ being laid bare in the video evidence presented in [the defendant’s] Court proceedings, to which [the defendant] was apparently ‘highly sexually aroused’. There remains a risk that [the defendant] has merely been ‘biding his time’ until he is no longer under supervision and will present a risk of repeat serious sexual offending only once he is no longer subject to intensive supervision.

There is recent evidence of [the defendant] concealing a return to unbridled prescription benzodiazepine abuse through ‘doctor shopping’ for some months even as he neared the end of his ESO. This does not bode well for the weight to be placed on his claims that he no longer harbours a deviant sexual interest in sadistic sexual practices (or never did). If he has been lying to his therapists and supervising officers about his drug use, questions must be asked about what else he has been concealing to date.”

50. Dr Seidler noted that, in the following passage, Mr Ardasinski offered a revised opinion:

“Overall, in my assessment of 3/2/2021, I did consider that [the defendant’s risks had reduced somewhat – at least from what they were when he was assessed pre-release. However, not only were my assessments of his management of his substance abuse incorrect, but the nature of [the defendant’s] long-term deceit in concealing his return to regular and high level benzodiazepine use also calls into question his compliance with supervision more generally and whether he has been

concealing more than that. Of note in considering this future risk of serious sexual offending, are the ‘warning signs’ noted in paragraph {66} of [his] CUBIT Treatment Report …:

Warning signs which should be monitored, which may indicate poor coping, perceived rejection or a build-up of anger, include

a.   Worsening in mental state, including self-deprecation or self-pity

b.   Abuse of prescription medication or other drugs

c.   Withdrawal/isolation from others, and spending excessive time alone

d.   Avoiding addressing problems and attributing responsibility for stressors to others

e.   Expression of thoughts of self-harm or disclosure of violent fantasies …” (emphases in original)

51. Dr Seidler noted:

“In addition to the above, Mr. Ardasinski describes that a ‘doom scenario’ in relation to risk is ‘not likely, and less likely than other more common forms of sexual violence …’. A doom scenario relates to [the defendant] being highly sexually aroused in relation to sexually sadistic fantasies and behaviours and ostensibly ‘biding his time’ in order to reoffend once the intensity of supervision is eliminated by the expiration of an ESO. Within this context, Mr. Ardasinski offers:

I now consider that it is possible that [the defendant] has indeed harboured an ongoing deviant sexual interest throughout his time on his ESO, but that it is egodystonic – he hates that he has sexually sadistic fantasies, and it is potentially for this reason that he has returned to prescription drug misuses recently. I consider it also quite likely that this has been [the defendant’s] reason for not seeking an intimate partner whilst subject to an ESO – it is possible that he has a diminished sexual interest in non- deviant homosexual sex.

…

After 19 years in custody, including a year of that in a high-intensity treatment program and five years in the community working with the same experienced therapist, there remains a startling lack of clarity as to whether he does continue to harbour deviant sexual fantasies about harming others, and if he truly does not, how he can adequately explain the brutality of the index offences themselves and his level of sexual arousal at the pain he inflicted then.”

52. Dr Seidler quoted an opinion from the ESO Completion Report by Mr Glover, dated 17 March 2021, which was more reserved than that expressed in Mr Ardasinski’s ESO Completion Report. Mr Glover referred to the defendant’s “superficial” engagement with his DSOs at times and his “ability to regulate his emotional responses when he feels challenges in an interpersonal interaction”, such as by “resorting to tears” to avoid issues during interviews that he did not want to discuss. Nevertheless, Mr Glover concluded at that stage that a further ESO was not warranted.

53. Dr Seidler also referred to the Risk Management Report for the application prepared by Joshua Begg, Community Corrections Officer, Metropolitan Extended Supervision Team, dated 30 July 2021. In 2019, the defendant was given a formal direction for breaching a condition of his ESO after admitting to the abuse of Endone. Mr Begg stated:

“Despite engaging with these services, [the defendant] appears to minimise his substance abuse and lacks insight, claiming that due to his eight days of abstinence his three year addiction is no longer a point of concern, and he has made multiple proposals to engage in individual counselling instead of an intensive intervention program as recommended.

54. Dr Seidler referred to the defendant’s recent charges:

“I was provided with [the defendant’s] Record of Interview with police in relation to his recent charges for breaching the conditions of his ESO. This interview took place on 9 July 2021. In this interview, [he] affirmed to police that he is aware that he is prohibited from ‘doctor shopping’ but police indicate that their evidence would suggest [the defendant] consulted with five different doctors, from whom he obtained five hundred tablets of Diazepam over a 12 month period. Further, [the defendant] informs police that at worst, in recent times, he was taking up to eight tablets of Valium per day.”

55. Dr Seidler noted a report dated 16 August 2021 by another forensic psychologist to the effect that the defendant at that time was regularly attending a psychiatric service for ongoing management of a bipolar disorder, a generalised anxiety disorder and a major depressive disorder. He was described as engaging well with the service and making good progress.

56. The defendant reported that he had also been consulting with Forensic Psychology Services (“FPS”) for approximately eight years and continued to have a session every six weeks, although at the time of the interview his engagement with FPS was intended to assist him in transitioning from his ESO upon its expiration, which would mean that the counselling through FPS would cease.

57. A letter from a treatment worker at Odyssey House, also dated August 2021, stated that the defendant was engaged in its outpatient maintenance program three days a week.

55. Dr Seidler referred to the defendant’s living situation. The defendant has resided with his mother since 2018 and is her primary carer. His sister lives next door and is supportive of him, as is his extended family.

56. The defendant told Dr Seidler that he had suffered from anxiety since his twin brother was killed and found it difficult to control this anxiety without abusing medications, although he claimed some success with recent therapies.

57. Dr Seidler noted that the defendant acknowledged that he relapsed recently with abuse of Valium, stating that he had not used it previously. It had been prescribed to him to manage his anxiety. Initially, he took it as prescribed, but over time he took it not as prescribed during a period of heightened anxiety due to a medical incident with his mother.

58. As to remorse, Dr Seidler stated:

“[The defendant] expressed seemingly genuine regret and remorse for his offending and this was primarily focussed on the recognition of the harm he caused to others through his actions.”

62. Dr Seidler offered this overview of the defendant’s current status, in terms of his anxiety and how it was relevant to the risk of him reoffending:

“What is evident clearly in this case is that [the defendant] has a significant history of anxiety that dates back to his adolescence and which he has struggled to regulate both in custody and in the community. In the past, he sought to cope with this anxiety through the abuse of prescribed medications. This was not an issue largely in the controlled environment of prison however, [The defendant] has relapsed in the abuse of medications in the community and in the context of significant life stressors, with which he coped poorly and which resulted in a surge of anxiety that he found difficult to regulate or cope with. This has been a consistent pattern for [the defendant] and one that explains his recent behaviour that resulted in his being charged with breaching the conditions of his ESO. Further, the way in which [the defendant] coped with this relapse makes sense in the context of reported anxiety, especially in relation to the possibility of being breached and returned to prison and within the context of difficulties communicating and relating to authorities after such a long period of time in the criminal justice system. If [the defendant’s] recent behaviour is seen in the context of long standing and debilitating anxiety, for which there is enduring evidence, the link to offence related risk becomes more tenuous and an ESO is less likely needed for the purposes of managing [the defendant’s] risk of future sexual offending.”

63. Dr Seidler administered the STATIC-99R to the defendant, which yielded a score of “four”. This score placed the defendant in the “Above Average” risk category, in terms of the risk of him committing a sexual offence within five years of release. Dr Seidler also applied the STATIC 2002R which she considered appropriate “in cases such as this” as a means of providing the Court with a “detailed understanding of the risk an offender poses to the community”. The defendant again scored “four” which, with this instrument, placed him in the “Average Risk range at Level III”. Dr Seidler explained that this meant that out of 100 offenders, 56 would have a lower score, 15 would have the same score and 29 would have a higher score.

64. Dr Seidler applied two instruments to assess the defendant’s dynamic factors. One was the Risk of Sexual Violence Protocol, or RSVP, and the other was the STABLE-2007, which assesses stable dynamic risk factors. Both instruments suggested that the defendant was at a moderate risk of sexual reoffending. Dr Seidler also administered the Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version (“SAPROF-SO”).

65. Dr Seidler noted that the defendant had continually denied a deviant sexual motivation to his offending and considered that it is unclear to what extent that denial may be related to risk “even though it has long been assumed by assessing professionals that there is a connection to future risk”. Dr Seidler explained that the SAPROF-SO is designed to consider protective factors over a six month period, as it is assumed that these factors can change along with changes in a person’s life circumstances. She found that the defendant was “rated as having a range of strong protective factors that will likely act to inoculate against risk”.

66. Dr Seidler summarised the defendant’s level of risk as follows:

“Taking into account the various risk assessment measures outlined above, [the defendant] is considered to pose a Moderate risk of sexual reoffence. However, should this risk be actualised, it is possible that any future act of sexual violence could reach the threshold necessary to be considered a serious sexual offence under the relevant Act. That being said, the primary reasons for this suggestion are [the defendant’s] past offending behaviour, which I note occurred over twenty years ago, in addition to the assumption that [he] may have some residual sadistic and deviant sexual interests. As such, it is suggested that the most likely future victim for any possible act of sexual violence by [the defendant] would be an adolescent or young adult male, who is a stranger to [him] and who for some reason offends or angers [him] by displaying exaggerated heterosexuality or criticises [the defendant] on the basis of his sexuality. Again, it is noted that there has been no recent evidence that this has been a concern for [the defendant]. Even so, should his risk increase, it is likely that there would be a build up to any future offence, with observable signs and obvious ‘leakage’ behaviours, which are likely to include poor coping, a lack of responsibility, reduced self-care, a relapse with medication abuse and angry and vengeful thinking directed at young, heterosexual males.”

67. Dr Seidler did not consider that the defendant required a further ESO. She considered that the other community-based services and support mechanisms that are available to him were sufficient, with one proviso:

“I am of the opinion that [the defendant’s] risk for engaging in a future act of sadistic sexual violence that would be considered a serious offence under the relevant Act is well managed within the current routine, structures and relationships present in [the defendant’s] life. Within this context, [the defendant] continues to engage in psychological and substance abuse treatment and it is recommended that he continue with this, as per his current plan, in order to maintain an active management of his dynamic risks and continue to support [the defendant’s] emotional wellbeing and capacity for appropriate coping. Moreover however, I recommend that [the defendant] be assessed by a psychiatrist in relation to the appropriateness of his current psychotropic medication regime and it would be beneficial if [he] was able to develop an ongoing relationship with a treating psychiatrist in terms of managing his medication treatment.”

Other forensic reports

68. The defendant was examined by Dr Allnutt and Dr O’Dea, forensic psychiatrists, for the purposes of the 2016 hearing. They diagnosed the defendant as having a paraphilic disorder, a sexual sadism disorder and a sexually sadistic paraphilic disorder.

The evidence of Dr Ellis and Dr Seidler

69. It was apparent from the forensic experts’ reports that they differed as to whether a further ESO was required, which reflected their different opinions as to the defendant’s current level of risk.

70. Dr Ellis, Dr Seidler, Dr Allnutt, Dr O’Dea and Mr Ardasinski had diagnosed the defendant as having a sexual sadism disorder, at least at the time of the index offences. Dr Ellis and Dr Seidler agreed that the primary motivator for the defendant having committed the index offences was sexual sadism. However, while Dr Seidler suspected that the defendant’s sexual sadism had resolved, Dr Ellis was less certain.

71. Dr Seidler explained that, if the defendant’s sexual sadism persisted, it would have emerged during his incarceration:

“A. If somebody has a sexual sadism disorder, in other words they are primarily sexually motivated by sadistic sexual practices, I would be flabbergasted that throughout somebody’s entire 20s and 30s and 40s, with the exception of their offending, for there to be no evidence of those interests anywhere else. So if we make the assumption that that sexual sadism disorder is present but we have seen no evidence of it then that would suggest that he has an incredible capacity to control his sexual urges, interests and practices.

Q. In light of what you understand to be his situation since the commission of the offences, in particular since his arrest until the time of your interview, do you think that there were sufficient opportunities for such an interest to have been detected if it was there?

A. Absolutely. Having worked in CUBIT myself and being in the prison system for as long as I have, there’s fantasy journals, there’s masturbation practices in prison, there’s evidence of things that they use as pornography in prison, there’s discussions they have with other inmates. There is absolutely tonnes of opportunities for that interest to have been expressed or to have been evident and we have zero evidence of it.”

72. Dr Ellis was asked for his opinion about the essence of this passage of evidence by Dr Seidler. He said, referring to a sexual sadism disorder:

“… one of the concerns is that this kind of behaviour is often very secretive and it may not manifest in the ways that are there, for example, journaling in a sex offenders’ program about your fantasises. This is – I think a potential concern is one that there doesn’t appear that he has ever really discussed in detail what his fantasises were, but we can presume from the behaviour they existed and they were elaborate and persistent and drove his behaviour ...

… prior to the events. And I suppose the other thing is that prior to the commission of the offence there had been no suggestion that he had engaged in any of these fantasises or behaviours. He had never spoken about them to anyone beforehand. People can keep these things secret. But – and I note that Dr Seidler had in her report talked about this concept of ‘leakage’ that people will sometimes because of the preoccupying and overwhelming, at times, nature of these fantasy slip out with either behaviours that parallel or were attenuated versions of the index behaviours of concern; or in their conversations with therapists these sorts of things might arise and be there.

It is correct that those sorts of things don’t seem to be recorded anywhere. It is of – look, I think it is of some significance and that is why I don’t discount that it may be that the sexual sadism disorder is in remission. But I think, again, looking at, you know, the overall literature about people who have experienced these kind of sexual fantasises and then engaged in the behaviours and then engaged in the behaviours on a repeated basis that it’s – it’s uncommon for that to then recede and never be an issue again. And it may that a person deliberately tries to present that there are no problems.

So … I think what may have, you know, potentially given people who have assessed him in the past and his treating clinicians in CUBIT more confidence would if he had disclosed some fantasises and described them in detail and then described as they reduced and faded away in response to various strategies and I think people might have been more comfortable that he was being authentic in what’s going on. But it is also possible that he had them, they dissipated without any particular strategy on his part or his therapist’s part and they haven’t reoccurred. It is possible.”

73. Dr Seidler considered that the defendant’s anxiety was “far more informative” in respect of his recent admitted offending, involving breaches of his ESO. Dr Seidler considered that the admitted offence and circumstances of the authorities’ intervention did not significantly elevate the level of risk posed by the defendant:

“… we need to be clear that the medication that he was taking in the lead up to his offending is not the same medication that he was taking recently. It is still an active substance abuse, but it is not the same substance. But the logic in this particular case goes, if we just look at logical argument, is: he took these medications in the lead up to his offending, he became angry, he became vengeful, he became disinhibited and he sexually offended. In what we have seen in recent history with [the defendant] is that he experienced anxiety, he abused medications, he didn't cope very well and became a bit tearful and lied a bit to his supervising officers. There is no evidence of anger, vengefulness, behavioural disinhibition or sexualised conduct. We don't have any of those pieces of evidence in response to the medication abuse.”

74. Dr Ellis, on the other hand, considered that the defendant’s admitted offence was concerning: “there’s something there that is driving his seeking out of sedating substances, and so I would consider it a risk factor of concern”. Dr Ellis noted that the drugs the defendant preferred were benzodiazepines, which are sedatives, and addictive. Dr Ellis elaborated:

“… there are three concerns, and I think one is that they can be a marker of underlying mental instability of some kind or other, what is driving someone to seek out those medications.

The second is that they have problematic effects themselves. Because of their sedative properties, they can render someone more impulsive, less considered about their actions, and they’ll reasonably quickly develop tolerance to them, and then have withdrawal symptoms, and then it becomes its own problem, and then the other is, in his particular case, because it’s a condition … not to consume these sorts of substances outside of an individual prescriber relationship, and to notify. It also, in his case, requires some deception to engage in that sort of behaviour, and I think that that then undermines his relationship with his treating team, and potentially puts him in a state of some desperation at times because he’s having to hide from his doctors and hide from his supervisors and hide from his relatives what he’s actually doing, and that isolates him from people who might otherwise support him.”

75. Dr Seidler thought that a link between the admitted offence and the defendant’s level of risk of further sexual offending was “tenuous”.

Consideration

76. In my consideration of the application, I was cognisant of the terms of ss 5B(d) and 5D of the Act and had regard to the matters identified in s 9(3) and the two victims’ statements.

77. The defendant did not commit any criminal offences of significance before the index offences and has not sexually offended in the time since then, which is a period of over 23 years. At the time of the recent charges, he was within months of completing a five-year ESO.

78. However, some aspects of the index offences warrant concern that if the defendant was to reoffend in a similar fashion, the consequences would be catastrophic for the victim or victims. The offences involved planning and repeated offending over a period of seven months. Two of the victims were aged 15 at the time and another two were aged 17 and 18. The terror that they were subjected to, aside from the physical pain and psychological damage, was extreme.

79. Dr Ellis and Dr Seidler differed in their opinions as to whether the Court could be satisfied that the defendant’s previously diagnosed sexual sadism disorder had resolved or at least that the defendant’s impulses of that nature were managed to a point that the level of risk was minimal. Dr Ellis’ evidence was that an element of uncertainty has been introduced by the defendant’s secretive pursuit of prescription medication. I accept that this is a troubling development. The defendant’s mental state is, at best in my view, barely managed. He suffers from anxiety which has its roots in profoundly traumatic events in the developmental phase of his life. Although he has a range of strong social and mental health supports, he was unable to resist the temptation of substance abuse as a therapeutic response which, if undetected for a significant period of time, carries a risk that his fragile state of mental equilibrium will unravel and lead to the commission of another serious offence, as defined in the Act.

80. Accordingly, I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision. That being so, I moved to consider the appropriate length of the ESO and concluded that a period of 12 months was appropriate. I was not persuaded that the longer period sought by the plaintiff was necessary. The immediate issue that the defendant is obliged to address is substance abuse. An ESO for that period should be sufficient.

Orders

81. On 19 November 2021, I made orders as follows:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of one year 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 of Conditions attached to these orders.

3. Access to the Court’s file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

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Amended Schedule of Conditions Presta (110911, pdf)

Decision last updated: 28 April 2022