State of New South Wales v RP (Preliminary)

[2019] NSWSC 937

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v RP (Preliminary) [2019] NSWSC 937
Hearing dates:	22 July 2019
Decision date:	24 July 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	The application for interim orders set out in Prayers 1 and 2 of the Summons is dismissed.
Catchwords:	HIGH RISK OFFENDER – serious sex offender – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – interim supervision order sought – whether matters, if proved, would satisfy Court to high degree of probability that defendant poses unacceptable risk of committing another serious offence – most offences committed when defendant was a child – last offence committed almost seven years ago – history of compliance with supervision requirements – well-validated utility of risk of recidivism instruments – acknowledgement of limitations of instruments in assessment of actual risk – proposed orders not justified
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW0, s 5(1) Child Protection (Offenders Registration) Act 2000 (NSW) Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 61J, 61M(1), 66A, 66C(1), 66C(3), 66D Crimes (High Risk Offenders) Act 2006 (NSW), ss 3(1), 5(1), 5B(d), 7(4), 10A(b)
Cases Cited:	Regina v RP [2018] NSWDC 125 RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215 RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 State of New South Wales v Carter (Preliminary) [2019] NSWSC 236 State of New South Wales v TT (Final) [2018] NSWSC 358 State of New South Wales v XXX (Preliminary) [2019] NSWSC 75
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) RP (Defendant)
Representation:	Counsel: Mr H El-Hage (Plaintiff) Mr H White (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Ms C Hunter (Defendant)
File Number(s):	2019/173596

Judgment

1. HIS HONOUR: The State of New South Wales (the State) has applied for an extended supervision order in respect of the defendant, RP, under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. RP cannot be identified as it is necessary to refer to prior offending which occurred when he was a child: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Those initials were used to refer to him in previously published judgments: Regina v RP [2018] NSWDC 125; RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215; and RP v The Queen (2016) 259 CLR 641; [2016] HCA 53.

3. The issue for determination is whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": s 7(4) and s 10A(b) of the Act. If so, the Court must appoint two psychiatric and/or psychological experts to examine the defendant and provide reports and may make an order for the interim supervision of the defendant.

4. The defendant is alleged to have committed various child sexual assault offences between April 2003 and 22 October 2012. The final offence, referred to as "the index offence", occurred when the defendant was aged 19. The other alleged offences occurred when he was aged between 10 and 17. He is now aged 26. It has been alleged that offences were committed against his younger biological sister (V1), two younger half-brothers (V2 and V3), and an older step-brother (V4).

5. Proceedings for some of the alleged offences have resulted in sentences being imposed. Charges in respect of some have been the subject of findings of guilt being quashed on a doli incapax ground (see the abovementioned judgments of the Court of Criminal Appeal and the High Court of Australia). Proceedings for other alleged offences have not proceeded to a determination of guilt or otherwise.

6. There have been three occasions when the defendant has been sentenced by a court.

Sentencing by the Children's Court on 27 November 2012

7. The defendant was sentenced in the Children's Court at Parramatta on 27 November 2012 for an offence of sexual intercourse with a person aged 14 years or over and under 16 years (s 66C(3) of the Crimes Act 1900 (NSW)) concerning V1 (aged 15); and two offences of sexual intercourse with a person aged 10 years or over and under 14 years (s 66C(1) of the Crimes Act) concerning V2 (aged 11).

8. The offence concerning V1, the defendant's 15-year-old sister, occurred in February 2011 when he was aged 17. He entered her room one morning without permission. She was lying on her back in bed and he simply proceeded to remove clothing and had penile/vaginal intercourse with her. She punched the defendant to the face and he desisted and left.

9. The offences concerning V2, the defendant's 11-year-old half-brother, occurred in December 2010 when he was aged 17. He approached the child from behind as the child was bent over retrieving something from a refrigerator. He pulled the child's clothing down and proceeded to have penile/anal intercourse with him. The child hit him with a drink bottle and managed to get away. The defendant tackled him to the ground and then sucked his penis. The child asked him to stop. He asked the child for a "toungy" but the child replied, "No, I'm not your girlfriend". The defendant asked him to do it to him (suck his penis), but the child refused. Other family members arrived home and the incident ceased.

10. The Children's Court had reports by two psychologists, Dr Peter Ashkar and Mr Peter Champion. The magistrate noted assessments of the defendant's limited intellectual ability; his "difficult upbringing" including exposure to alcohol abuse, harsh discipline, and domestic violence; his genuine remorse; prior good character; preparedness to engage in sex offender counselling; and rehabilitation prospects that were assessed as "reasonable". The Court imposed control orders totalling 14 months with a non-parole period of 4 months, dating from 27 November 2012. The orders were varied on appeal so that there was backdating to 15 November 2012, and the non-parole period was reduced to 3 months.

Sentencing by the District Court on 5 December 2014

11. The defendant was sentenced in the District Court by Letherbarrow DCJ on 5 December 2014. There had been a trial at which he was acquitted of one offence (count 1) but found guilty of three offences (counts 2, 3 and 4). They each concerned the defendant's younger half-brother, V3. Counts 2 and 3 were offences of sexual intercourse with a child under the age of 10 years (s 66A of the Crimes Act), and Count 4 was an offence of aggravated indecent assault upon a person under the age of 16 years (s 61M(1) of the Crimes Act). The s 66A offences occurred when V3 was aged 6 or 7 and the applicant was 11 or 12. The s 61M(1) offence occurred when V3 was aged 7 to 9 and the defendant was aged between 12 and 14.

12. The judge said that the sole issue at trial was that of doli incapax; there was no dispute about the facts surrounding the subject offences. The complainant was not required for cross-examination. The first s 66A offence against V3 involved a forcible act of penile/anal intercourse in the home which only came to an end when an adult arrived. The next s 66A offence occurred a few weeks later and involved another act of forcible penile/anal intercourse in an office at their father's workplace during a time when their father was absent. The s 61M(1) offence involved the defendant rubbing V3's penis on the outside of his clothing for about five minutes in the home. The defendant stopped when V3 said he was "starting to get sick of this".

13. The Court had the previously mentioned reports by the two psychologists, Dr Ashkar and Mr Champion as well as a report by Dr Susan Pullman, neuropsychologist. There was also a report by Juvenile Justice.

14. The judge took into account the defendant's "extreme youth" at the time of the offending; his "significantly low intellect"; "fair to average" prospects of rehabilitation; and his lack of remorse and denial of responsibility. He imposed a total effective sentence of 2 years and 5 months with a non-parole component of 11 months, dating from 5 December 2014.

15. On 26 August 2015, the Court of Criminal Appeal quashed the conviction and sentence for Count 4 on the basis of doli incapax: RP v R. On 21 December 2016, the High Court quashed the convictions and sentences for Counts 2 and 3 on the same basis: RP v The Queen.

Sentencing by the District Court on 18 May 2018

16. His Honour Judge Lerve sentenced the defendant in the District Court on 18 May 2018 in respect of two offences against V4 and the index offence against V3: Regina v RP [2018] NSWDC 125. The offences against V4, the defendant's older step-brother, were of aggravated sexual intercourse without consent and aggravated indecent assault (s 61J and s 61M(1) of the Crimes Act). They were committed in February and November 2007 when V4 was aged 15 and the defendant was aged 14. The offence against V3, the defendant's younger half-brother, was one of attempted sexual intercourse with a child aged over 10 years and under 16 years (s 66D of the Crimes Act). It occurred on 22 October 2012 when V3 was aged 14 and the defendant was aged 19.

17. The first offence concerning V4 occurred one night after everyone in the house had gone to bed. The defendant got into the victim's bed and engaged in a non-consensual act of penile/anal intercourse. The second offence occurred in the home when adults were absent. The defendant began kissing the victim on the neck and lips, hugged him, and, despite the victim trying to push him away, said repeatedly that he would love to have sex with him.

18. The offence against V3 occurred when V3 went to a tree to urinate while the pair were out fishing. The defendant approached him from behind, pulled his pants and underpants down and attempted to penetrate his anus. The attempt failed due to the defendant not having an erection.

19. Lerve DCJ received the reports of Dr Ashkar, Mr Champion and Dr Pullman as well as a Juvenile Justice Report, which I assume from its date was the one that had been before Letherbarrow DCJ in 2012. His Honour noted (at [65]) that this report "seems to assess the offender as being at a low risk of re-offending but recommends that he engages in a sex offender program in order to minimise or reduce any risk of re-offending".

20. His Honour also noted (at [66]) that the defendant had complied with strict bail conditions for a number of years without breach; he had not re-offended since 2012; that the alleged offences considered by the High Court in RP v The Queen were in about 2004 or 2005; and that the defendant was currently aged 25. He found that the defendant was "unlikely to re-offend" and that his prospects of rehabilitation were at least "reasonable". He added:

"However, it is preferable in my view to have the offender complete a sex offender's program."

21. For the 2012 index offence, his Honour imposed a term of imprisonment of 3 years with a non-parole period of 1 year, 9 months. The sentence was back-dated to 18 August 2016 to allow credit for pre-sentence custody. The effect of this was that the defendant was immediately released on parole. For the two offences against V4, his Honour imposed bonds requiring the defendant to be of good behaviour, one for 2 years and the other for 5 years.

22. It was a condition of supervision under the statutory parole order, as well as under each of the bonds, that the defendant obey all reasonable directions of Community Corrections, including as to participation in a sex offenders treatment program.

Other charges which have not proceeded

23. The defendant has been charged with a number of offences which have not proceeded to finalisation. These charges alleged eight further offences against V4 of aggravated sexual intercourse without consent and aggravated indecent assault, between about April 2003 and June 2006. In that period, V4 was aged 11 to 14 and the defendant was aged 10 to 13.

24. Those eight charges were on an indictment dated 16 December 2015 together with the two charges concerning V4 that did proceed and resulted in the imposition of good behaviour bonds by Lerve DCJ. On 9 May 2017, the District Court was informed that the Director of Public Prosecutions had determined to take no further proceedings in respect of the other eight charges.

Periods of being in custody or under supervision in the community

25. Having regard to the extent of the offending (and alleged offending) by the applicant over a fairly extended period of time, it is of note that he has only been held in custody for two discrete periods, each of about a year. He was in custody from 24 October 2012 until 19 November 2013, partially as a result of the Children's Court control orders imposed on 27 November 2012 (slightly varied on appeal) and partially as a result of being refused bail for the index offence until bail was granted by the Supreme Court on 19 November 2013. He was then in custody from 5 December 2014 until 4 November 2015, as a result of the sentences imposed by Letherbarrow DCJ (later quashed by the High Court).

26. Since the last offence was committed on 22 October 2012, the defendant has been in the community for significant periods, sometimes subject to supervision on parole and/or subject to bail conditions.

●   19 November 2013 on bail and parole until parole expired on 14 January 2014.

●   14 January 2014 on bail only until sentenced on 5 December 2014.

●   5 November 2015 on parole until 21 December 2016 when convictions quashed by the High Court.

●   21 December 2016 unsupervised until 18 May 2018.

●   18 May 2018 on parole until 17 August 2019.

27. There has been no suggestion of the defendant committing any further offences of any type in the periods in which he has been in the community, whether supervised or otherwise.

Current circumstances since release on parole on 18 May 2018

28. The defendant currently lives with his grandfather who accompanies him on the majority of occasions when he leaves the home. He had previously lived with his grandfather, moving in when he was aged 16 (2009).

29. Although there were reports of childhood physical abuse, the defendant now reports having a positive relationship with his father who sometimes assists him with travelling to appointments. He does not have any contact with his mother, his sister, or his step-siblings. He has reported some contact with cousins and their families who live nearby, but these interactions appear to be limited to superficial social interactions. His relationship with his family was affected when his offending against family members was detected.

30. The defendant has limited interactions with similar-aged peers. They are mainly confined to online communications associated with video games. He has told his current supervising officer that he spends most of his time at home playing such games. He occasionally attends a local registered club with his grandfather, where he usually spends about $20 on poker machines and drinks a modest amount of beer.

31. The defendant is not employed and is receiving a disability pension from Centrelink.

Treatment programs

32. The defendant was not referred to any programs to address his offending during his first period of custody (24 October 2012 to 19 November 2013).

33. In the second period of custody (5 December 2014 to 4 November 2015), he was referred to the Custody-Based Sex Offender Program but was not enrolled as there would have been insufficient time to complete it. It was recommended that he speak to his supervising officer upon release regarding a referral to a community-based treatment program.

34. The defendant attended a "Victim Empathy" workshop conducted by The Restorative Justice Unit on 20 May 2015. He has said that he found it helpful in gaining a better understanding of the impact of his offending on primary and secondary victims.

35. He had contact on 12 occasions with a Corrective Services NSW psychologist while on parole in March to November 2016. It does not appear that much of this involvement was concerned with treatment as such.

36. It was reported that since being subject to supervision during his current parole, the defendant has indicated a willingness to participate in psychological intervention to address his offending behaviour. He has had contact on three occasions with a Corrective Services NSW psychologist but little is known as to what has occurred.

The present application

37. On 25 September 2018, the Attorney General instructed the Crown Solicitor to provide an advice on the merits of an application being made under the Act in respect of the defendant. It may be assumed from this that there was concern about the possibility that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision under an extended supervision order. It may be assumed that this was motivated with the primary object of the Act (s 3(1)) in mind; that is, ensuring the safety and protection of the community.

38. The present proceeding was commenced with the filing of a summons in this Court on 3 June 2019. The State asks that the defendant become subject to an extended supervision order for a period of three years, subject to the usual lengthy list of conditions set out in a schedule to the summons. The conditions include (as they always do) that, as reasonably directed (as it seems it always is), the defendant shall submit to electronic monitoring and submit a schedule of movements for prior approval on a weekly basis. Until the final hearing of the matter, the State asks that an interim supervision order be made and that the conditions listed in the schedule to the summons apply to that order as well.

39. There is nothing to indicate that the concerns that seemingly underlie the pursuit of the present application have been reflected in any increase in the intensity of supervision of the defendant under his present parole and good behaviour bonds. Notably, despite the specification by Lerve DCJ that the defendant is to obey all reasonable directions of Community Corrections, including as to participation in a sex offenders treatment program, on the evidence provided to the Court, nothing in that regard appears to have been done in the past 14 months.

Risk Assessment Report

40. Ms Mandy Lau, an acting Senior Psychologist, Serious Offenders Assessment Unit with Corrective Services NSW, provided a Risk Assessment Report dated 27 February 2019. It is an extremely thorough report that is based upon her review of a large volume of historical materials as well has a rather lengthy interview with the defendant on 7 February 2019. Although the entirety of the report has been carefully considered, it will largely suffice to quote the summary Ms Lau provided:

“[The defendant] is a 25-year-old Australian man who has been convicted of multiple interafamilial (sic) sexual offences against both female and male children, aged between 11 and 15 years. These offences were committed when [the defendant] was aged between 14 and 19 years old. [The defendant] has not had an opportunity to participate in intervention to address his offending behaviour until late 2018 when he commenced individual sessions with a CSNSW psychologist. [The defendant] is currently serving a parole period which expires on 17/08/2019. He is also subject to a Good Behaviour Bond which expires on 17/05/2019 [sic – 2020. Another good behaviour bond expires on 17/05/2023.] Official records indicate that [the defendant] has not committed further offences since his release to the community in 2015 and has not breached any conditions of his order.

[The defendant] has been assessed as falling in the Above Average risk category for sexual offending compared with other male sexual offenders, according to actuarial risk assessment measures. Some deficits in sexual self-regulation, interpersonal and relationship skills, and general self-regulation appear to remain as relevant risk factors at this stage. Some of these deficits appear to stem from difficulties related to his level of adaptive functioning.

Should [the defendant] be considered for an Extended Supervision Order (ESO), the mitigation of future risk may be enhanced by ongoing community supervision and support, as well as participation in community-based individual risk management sessions with CSNSW Psychology Services.

Without any form of supervision, it is likely that [the defendant] may continue to experience issues with reintegration into community life. It is possible that additional support from professional services, such as psychological services and services that assist with capacity building, to improve his skills in identified risk areas may moderate his risk of reoffending. However, there is reportedly limited availability of forensic psychology services outside of CSNSW in the area that [the defendant] resides in. Consultation with his supervising officer indicates that a referral to NDIS is being explored at the time of this assessment. If [the defendant] is not made subject to an ESO, he will still be subjected to the Child Protection Register (CPR) for the remainder of his life after his supervision period expires and he would be required to inform the Police of any changes to his circumstances.”

41. Ms Lau's review of the defendant's response to supervision is worth more detailed mention. She noted that he was first subject to supervision by Community Corrections in 2013 for a short period while on parole. She said he reportedly engaged well with staff, attended all of his appointments and was compliant with the conditions of his parole.

42. During his next period of supervision from November 2015 to December 2016, the defendant's overall compliance with supervision was satisfactory. He was open when engaging with his supervising officers and no significant issues were noted regarded his compliance with directions or conditions of his parole. It was notable that he disclosed to his supervising officer on 19 September 2016 that one of his cousins and their young children had commenced living with him at his grandfather's home. Child Protection police officers and Community Corrections advised the cousin and family to relocate because the defendant was required to live at the residence but they remained for an extended period. It is notable that Ms Lau reported that "during this period [the defendant] appeared forthcoming in his communications with his supervising officers regarding this matter".

43. Departmental records and the defendant's supervising officer confirmed that there have been no significant issues with compliance during his current period of supervision since 18 May 2018. He had engaged with his supervising officer in an open and honest manner and responded well to discussions regarding strategies to manage his risk.

44. Ms Lau reviewed previous actuarial risk assessments made in respect of the defendant. She also provided a detailed discussion of the limitations that need to be borne in mind in respect of them.

45. A Level of Service Inventory – Revised instrument was utilised in July 2018 by the defendant's current supervising officer which indicated a "Low-Medium" risk category for general and violent offending.

46. The STATIC-99R instrument is well-known as a measure of historical risk factors based primarily upon past offending (hence, "static"). Amongst other things, Ms Lau noted that the recidivism estimates and relative rankings will not necessarily be a direct reflection of the recidivism risk of an individual offender. The instrument is not sensitive to changes in an offender's circumstances that may increase or decrease the actual risk of re-offending. She scored the defendant in the category of "Above Average" risk; a score reflecting a risk of recidivism that "is estimated to be 2.7 times higher than that of the 'typical' sex offender".

47. The STABLE-2007 instrument was also deployed, it being described as "a tool developed to assist clinicians in identifying stable dynamic risk factors". The defendant's score suggested "a Moderate density of criminogenic needs relative to other male sex offenders".

48. Combining the STATIC-99R and STABLE-2007 assessments, Ms Lau found the defendant's "composite risk/needs level … was in the Above Average risk level". The Corrective Services NSW policy is that this suggests the defendant "will require a Medium level of intervention and/or supervision".

49. Some matters appearing under the heading "Criminogenic Needs/Risk Areas" are worth specific mention. Under the category of "Sexual Self-regulation", Ms Lau wrote in part:

“Although [the defendant’s] victims were exclusively children, there appears to be insufficient evidence to suggest a sexual deviance towards children. Intimacy deficits and an association between sex and intimacy appears to be more relevant in his offending against his sister, while poor boundaries and cognitive distortions about sexual behaviour may have been relevant in his offending against his step-brothers. Although, given [the defendant] claims that he has no memory of most of the sex offences against his step-brothers and continues to maintain his innocence in regards to one of the offences, factors relevant to his offending against his step-brother can only be hypothesised based on official information regarding accounts from the victims and [the defendant’s] general attitude towards these victims and about sex at the time of the offences.”

50. In her report, Ms Lau continued by observing that sexual preoccupation and using sex as a coping strategy do not appear to be relevant risk factors. She noted that he reported a low sex drive and discussed possible reasons for that. Under the heading, "Intimacy Deficits", Ms Lau mentioned that "emotional identification with children does not appear to be a relevant risk factor", and nor did hostility against women.

51. Under the heading, "Potential protective factors", Ms Lau wrote:

“Protective factors are the individual or contextual strengths that might decrease or offset risk of sexual violence. Despite his limited insight into his offending behaviour, [the defendant] has consistently demonstrated willingness to engage with his professional supports and to be open in his communication with important issues that are relevant to his offending. His compliance with directions from authority and openness to discuss risk-related issues increases the likelihood for early intervention when warning signs become evident.”

52. According to Ms Lau, risk scenarios for the defendant needed to be considered with caution because "it was somewhat difficult to explore his insight into his offending behaviour". That was because his offending mostly occurred as a juvenile and that he denied his only offence as an adult. It was suggested that "his preferred victims would likely be someone who is known to him and whom he would have regular access to". It would be "someone who is vulnerable either due to age, capacity of functioning or being in the care/supervision of [the defendant]".

53. Ms Lau concluded that the defendant "falls in the Above Average risk category of sexual offending relative to other adult male sexual offenders".

54. Ms Lau concluded her report as follows:

“In the event that [the defendant] is not made subject of an ESO, he would still remain under a Good Behaviour Bond until 18/05/2023 and he would have some level of supervision by CSNSW staff depending on his needs during this period. In addition, he is subjected to the Child Protection Register (CPR) for the remainder of his life and would have obligations to inform the Police of any changes to his circumstances, even after the expiry of his order. Given [the defendant] has not yet developed a comprehensive self-management plan at the time of this assessment and there appears to be a lack of evidence to suggest active efforts in reintegrating into community life, his ability to manage risk adequately without supervision remains somewhat uncertain. For this reason, he continues to present some level of risk of returning to sexual offending. Whether this would be considered “unacceptable” in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court.” (Emphasis added)

55. Counsel for the defendant placed some emphasis upon the penultimate sentence of that extract. Counsel for the State submitted that the report should be read as a whole.

Submissions

56. Counsel for each party provided very detailed and useful written submissions which were supplemented by further oral submissions at the preliminary hearing.

57. A particular subject of the submissions was the fact that regardless of whether an ESO is made, the defendant will continue to be subject to supervision by Community Corrections until 2023 when his five-year good behaviour bond expires. (That period subsumes almost all of the three year period for which the State is seeking an ESO.) He will also be subject to the provisions of the Child Protection (Offenders Registration) Act 2000 (NSW) for the remainder of his life. He could also be made the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) if, inter alia, it was considered that he may be "a risk to the lives or sexual safety of one or more children, or children generally": Child Protection (Offenders Prohibition Orders) Act s 5(1).

58. The State submitted that a lack of insight and a need for treatment favoured the making of orders. References were made to certain offences for which the defendant has been dealt with, but that he had denied. The State pointed to the fact that the defendant has had some therapy, but only three counselling sessions, and that he had not completed a community-based sex offender program to address his offending. It submitted that "until such treatment is engaged and completed, there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence".

59. Counsel for the defendant pointed to the period of time since the last offence was committed, in October 2012. Further, that was the only offence committed by the defendant as an adult; all the others were committed when he was a juvenile. Reference was also made to the defendant's lack of offending whilst under supervision in the past; that he had never breached parole orders; and that his response to supervision has always been satisfactory.

60. There was a debate between opposing counsel as to how the Court should treat the alleged offending that had either not been the subject of finalised charges, or had been the subject of acquittals, either at first instance (in one case) or on appeal.

Determination

61. In accordance with the statutory provisions and the relevant (and well-known) case law discussing their application, it is necessary to put aside any prediction of the final outcome of the proceeding and consideration of discretionary factors that may bear upon whether an ESO should be made. An assumption needs to be made that the matters alleged in the material upon which the State relies are proved. Put another way, the case for the State needs to be assessed at its highest in determining whether the making of an ESO would be justified. What would justify the making of an ESO would be satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing, in this case, a serious sex offence (as defined in s 5(1) of the Act) if not kept under supervision: s 5B(d) of the Act.

62. The fact that the defendant is, or may be, subject to good behaviour bonds or the legislative protective regimes mentioned above would be a relevant matter to consider at a final hearing. They would go to the discretion as to whether an ESO should be made, notwithstanding the State making good its assertion that the defendant poses an unacceptable risk under s 5B(d) of the Act. Similarly, the seeming contradiction in the State bringing the present application whilst doing little or nothing to give effect to Lerve DCJ’s encouragement that arrangements be made for the defendant to participate in a sex offender treatment program is not a matter for present consideration. It is, nonetheless, curious that the submissions for the State included reference to two recent judgments of this Court as reflecting reasoning that should be adopted in this case. In both of those cases, there was a pressing need for a defendant to engage in and complete treatment, absent which there was held to be a prima facie case that the defendant posed an unacceptable risk of further serious offending: State of New South Wales v XXX (Preliminary) [2019] NSWSC 75 at [37] and State of New South Wales v Carter (Preliminary) [2019] NSWSC 236 at [35].

63. I am also of the view that it is unnecessary at the preliminary hearing phase to resolve the issue between the parties as to the treatment of past offending that has not been the subject of findings of guilt or convictions. I note, in any event, that there is precedent for such unproven charges being considered, not as part of a defendant's criminal history, but as relevant to the assessment of a defendant's risk of further offending: for example, State of New South Wales v TT (Final) [2018] NSWSC 358 at [108]-[109] (Johnson J).

64. The State's submissions concerning the defendant’s lack of insight into his past offending seems to arise largely from his failure to acknowledge his guilt in respect of some offences. The lack of treatment is a relevant matter as well, although in fairness it must be accepted that this has not been for any lack of motivation on the defendant's part. It has more to do with the authorities not having done anything. While these matters are relevant to an assessment of risk, it is the level of risk itself that is the key issue.

65. The following matters appear to be particularly pertinent:

●   The past offending has been against multiple children and it has entailed the commission of sexual acts of a most serious nature.

●   None of the offending involved a child outside the defendant's immediate family.

●   The defendant is now aged 26. All of his offending occurred when he was a child with the one exception of an offence committed when he was aged 19.

●   The last offence was committed almost seven years ago.

●   During those almost seven years, the defendant has mostly been out in the community, sometimes subject to supervision or bail conditions, while at other times his liberty has been unconditional.

●   The defendant has been compliant with all of the requirements imposed upon him pursuant to bail or supervision with only one exception, that being the commission of the last offence in 2012 whilst on bail.

●   Since that time, whether subject to conditional liberty or not, there has been no suggestion of any further offending, or circumstances that he has brought about that would give rise to concern about the prospect of offending.

●   Upon her review of a large volume of reports and other relevant material, the author of the Risk Assessment Report has said there is insufficient evidence to suggest that the defendant has a sexual deviance towards children.

●   Instruments designed to assess the risk of recidivism indicate the defendant presents an "above average risk level", suggesting he requires a "medium level of intervention and/or supervision". While such instruments have been well-validated for their utility, they are subject to well-known limitations in assessing the actual level of risk a particular individual may present.

●   The results of these assessments may be contrasted with the recent finding (albeit not without hesitation) of a very experienced sentencing judge that the defendant is unlikely to reoffend.

●   Having regard to all relevant matters and not just the risk indicated by the recidivism instruments just mentioned, the author of the Risk Assessment Report concluded that the defendant presented "some level of risk of returning to sexual offending".

66. While there are some matters that tend to justify the making of an extended supervision order, I consider that the preponderance of matters requires a conclusion that the making of an order cannot be justified in this case.

Order

67. I make the following order:

The application for interim orders set out in Prayers 1 and 2 of the Summons is dismissed.

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Amendments

25 July 2019 - [40] anonymise party name

Decision last updated: 25 July 2019