State of New South Wales v Rush (Final)

[2019] NSWSC 582

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Rush (Final) [2019] NSWSC 582
Hearing dates:	10 May 2019
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	1) Pursuant to the provisions of s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of 3 years from the date of this order; 2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant shall comply, for the period of the extended supervision order issued in these orders, with the conditions set out in the schedule to this order.
Catchwords:	HIGH RISK OFFENDER – sex offender – final hearing – criminal history involves sexual offences of opportunistic nature with young persons and children unknown to the defendant – fluctuating compliance – revocation of parole following breach of parole conditions in December 2018 after 20 months of compliance – whether two or three year ESO appropriate – whether electronic monitoring should have time limit
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56 Crimes (High Risk Offenders) Act 2006 (NSW) ss 5, 5B, 5D, 9, 11
Cases Cited:	State of New South Wales v Brookes (Final) [2017] NSWSC 215 State of New South Wales v Garry Allan Conway [2011] NSWSC 925 State of New South Wales v Grooms (Final) [2019] NSWSC 353 State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949 State of New South Wales v Rush (No 2) [2019] NSWSC 417
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff Shayne Charles Rush (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) A Cook (Defendant)     Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2018/295920

Judgment

1. By summons filed 27 September 2018 the plaintiff seeks an order under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for extended supervision of the defendant for three years. The defendant does not resist a finding that a court would be satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. However, the defendant submits that the duration should be limited to two years. Some modification and minor adjustments to some of the conditions proposed by the plaintiff were agreed in discussion between counsel and are reflected in the conditions attached.

2. The specific issues for the Court to determine, other than the necessary s 5B and s 9 determinations were two. First, whether the ESO should be for two or three years and second, whether the proposed condition regarding electronic monitoring should be subject to a “sunset clause” where the condition is limited to a six month period unless the defendant breaches the conditions of the ESO, and if any condition of the ESO is breached, electronic monitoring will apply for the balance of the term of the ESO or as directed by the Departmental Supervising Officer (DSO).

3. It was common ground that the court is still required to make the necessary determinations pursuant to ss 5B and 9 of the Act, despite there being no objection to an ESO of two years.

The preliminary hearing

4. At the preliminary hearing which took place before me on 10 December 2018, the defendant did not resist the interim relief sought in the summons, provided that the Court was independently satisfied that the orders should be made. No submission was made on behalf of the defendant that the court should not be so satisfied.

5. At the time of the preliminary hearing, the defendant was 20 months into a 2 year parole period. Up to that time he had not breached conditions of parole.

6. Based on the history, conclusions and reasoning set out in paragraphs [12]–[29] of my judgment, State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949, I made orders that the defendant be examined by a psychiatrist Dr Adam Martin, and a psychologist, and that the defendant be subject to an interim supervision order (ISO) commencing on 24 March 2019 for a period of 28 days.

7. My analysis of the statutory tests and the defendant’s background and offending is relevant for this judgment and I repeat them here for context:

“12   Statutory threshold requirements were conceded by counsel for the defendant and I am satisfied there was a proper basis for these concessions.

13 There are a number of threshold requirements under ss 4A(a), 4A(b), 5I(2)(a)(i) and (ii) and 6(1) of the HRO Act. These concern formal matters concerning the timing of the application, the custodial status of the defendant at the time of the application, the age of the defendant (he is now 53 years old), the fact that the defendant has served a sentence of imprisonment following conviction for a serious offence in the form of a serious sex offence (here an offence contrary to s 61J of the Crimes Act 1900) and the fact that the defendant is a supervised offender within the meaning of the HRO Act, are all met here.

Some relevant legal principles

14   I adopt the summary of the relevant principles to apply at preliminary hearing from the judgment of Johnson J in State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [20]-[25]:

[20] The unacceptable risk test in s.5B(d) of the HRO Act requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at 652 [82]. The objects of the HRO Act should be kept in mind when undertaking this evaluative task: Lynn v State of New South Wales at 648 [55]. Those objects are contained in s.3 which states:

“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.”

[21]   The Court must be satisfied to a high degree of probability that the Defendant poses an “unacceptable risk” of committing a further serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

[22]   The right of a person to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales at 645 [44], 648 [55]-[58], 660-661 [128] and 665 [148].

[23]   At a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff’s case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].

[24] If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127].

[25] Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149].

Consideration of statutory factors under section 9(3) HRO Act

15 I have considered the evidence adduced at the preliminary hearing by reference to the statutory factors contained in s 9(3) of the HRO Act. Given the defendant has conceded these requirements have in effect been met, I will briefly refer to key matters only.

Section 9(3)(h): Defendant’s criminal history and pattern of offending behaviour

16   The defendant had a history of non-sexual offending both as a young person and into adulthood comprising thefts, break and enters and goods in custody as well as some violent offences in the nature of hindering police, malicious damage and assault. There were many driving offences spanning 1982 to 1997 including drink driving and negligent driving as well as one charge of possession of drugs in 1995.

17   In addition to the index offending for which he was sentenced on 17 December 2010, the defendant was convicted for offences committed in September 1998. For those offences, he was sentenced on 19 October 1999 to nine years imprisonment. They involved a series of attacks on young girls in Wyong Shopping Plaza and a Gosford shopping centre. In respect of one of the offences, the defendant pleaded guilty. That plea related to his conduct on 2 September 1998 where he approached a nine year old girl dragged her by her school uniform into a fire escape, sexually assaulted her, threatened her that he would and punch her in the mouth, placed his hand across her mouth so she could not scream for help and then made her “squeeze” his penis until he ejaculated.

18   The defendant pleaded not guilty to other charges relating to his conduct on 9 September 1998, but was found guilty by a jury. In essence, he raped a 13 year old girl in a toilet cubicle, threatened her and told her he had a knife and that he would stab her if she is not quiet.

19   There was another charge taken into account on the Form 1 which involved the defendant masturbating in the presence of another child, a 10 year old female, in 1998. There were additional charges involving sexual attacks on two 12 year old girls in May 1998. However, he was found not guilty of those charges in October 1998. Whilst there is some authority to suggest that I can take into account charges not established in exercising my discretion under the HRO Act, I decline to do so here. There is ample evidence that activates my discretion in the form of the convictions for serious sex offending against children, including rape, as well as the risk assessments of the defendant carried out in July 2018.

20   The index offending occurred in 1997 and involved three counts of aggravated sexual intercourse without consent, aggravated indecent assault and commit or incite acts of indecency (three counts) involving a 13 year old boy, whom the defendant randomly attacked and threatened violence if he did not do what the defendant said. The defendant was DNA matched in 2008, hence the late arrest and sentence for that offending.

21   As observed by the sentencing judges in respect of all of the offending for which he was convicted, the defendant behaved in a way that was predatory, opportunistic and deliberately degrading of the children concerned.

Section 9(3)(e): Treatment or rehabilitation programs undertaken

22   Whilst the defendant underwent the CUBIT program in custody and showed some improved cooperation later in his participation, observations were made about his impulsive nature, his limited consequential thinking, his poor understanding of boundaries, and limited self-awareness. He was reported on a number of occasions to have minimised the offending behaviour. He made assertions such as the 13 year old boy “exaggerated” what had happened, and that the boy “had not done anything he didn’t want to do”. He said that the female victims “were better off” because he had “made them more aware of life”. This was described by an assessing psychologist as a “cognitive distortion to justify his actions”.

23   Of particular concern is the perception perpetuated by the defendant that the 13 year old boy had “sexed him”, showing a lack of insight into the predatory nature of his own behaviour and a lack of recognition of the unacceptable nature of his attacks.

Section 9(3)(c) and (d): Risk assessment reports undertaken

24   Dr Ardasinski in his report of July 2018 noted that since release on parole in April 2017, the defendant had not formed any relationships or social connections. Because he has been in custody almost continually from 1999 to April 2017, it is difficult to predict what will happen. He identified that the defendant probably has a pre-existing sexual preoccupation with children. These matters, together with the history of offending, lead Dr Ardasinski to the view that the defendant is at a moderate to high risk of sexual re-offending.

Section 9(3)(f): Behaviour whilst on parole

25   Whilst on parole (over the last 18 months) there have been no breaches. It appears that the containment associated with the conditions of parole has been protective, and hence the usefulness of close supervision with clear conditions, should continue for the protection of vulnerable young persons against potential random sexual attacks by the defendant.

Section 9(3)(d)(ii): Corrective Services Risk Management report

26   The risk management report prepared by Ms Carden, Community Corrections Officer, dated 26 July 2018 set out a number of potential management strategies to address the defendant’s risk for sexual reoffending. She noted this risk to be well above average or “high” on the assessment of Luke Brabant, Psychologist, in June 2018. Risk factors were identified as anti-social lifestyle, drug use, hedonism, lack of direction, relationship and intimacy deficits, emotional loneliness, possible deviant sexual interest, impulsivity, poor problem-solving, personality factors and difficulty accepting feedback. Ms Carden outlined a risk management plan which included a number of strategies aimed at managing those risks. Those strategies have been largely incorporated into the series of conditions proposed by the plaintiff with the Summons and consistently with which I made the orders on 10 December 2018.

Determination

27   I have had regard to the various statutory factors outlined in this judgment and the evidence which relates to them. The issue for the court at this stage is a threshold one involving the application of a prima facie test by reference to the evidence.

28   I am completely satisfied that an ISO should be made in this case together with orders for a psychiatric and psychological examination. I have significant concern that the defendant may well engage in similar types of random sexual attacks upon young children. The evidence discloses that the risk of him committing this type of offence is moderate to high. The attacks are random, committed in public places accessible to children, and are associated with sudden violence and threats to the children concerned.

29   The assessment of Mr Ardasinski places the defendant in the moderate to high risk category for future sexual offending. I am required pursuant to s 3(1)(b) of the HRO Act to provide for extended supervision of high risk sex offenders so as to ensure the safety and protection of the community. I am satisfied to the prima facie level, that on the evidence before the court there is real risk of the defendant committing a serious sex offence involving young, vulnerable children. This level of risk is likely to be ameliorated by a further lengthy period of supervision with stringent conditions and accordingly the interim or preliminary ISO should be made.”

8. Orders extending the ISO were made by me on 8 April 2019: State of New South Wales v Rush (No 2) [2019] NSWSC 417. At that time the report from Dr Martin was available. In addition to the material I relied upon at the preliminary hearing, Dr Martin’s report informed my decision as set out in paragraph [7] of my judgment:

“[7] Dr Martin identified the major risk factors appear to be:

“…the history of serious and violent sexual offending on the background of general anti-social behaviour and lack of regard for the rights of others. He has shown evidence of cognitive distortions such as minimisation and denial of the nature of the offending in the past…”

And

“If in the community and without supervision, he would be vulnerable to use of substances which could also act as a disinhibiting factor, increasing risk. Historical sex offending in the context of probable paraphilia is the major risk factor and this is likely to remain an issue for him. I have considered that the offending happened 20 years ago and there has not been further offending. However, he has been in a highly restricted environment since, and my view is that the risk is significant, particularly in circumstances of not being closely monitored.””

9. The parties prepared consent orders to effect the renewal. The defendant’s counsel did not oppose renewal. The defendant himself is noted by Dr Martin to have said that he was “happy” with the proposed extended supervision planned and that he “did not care how long it was for” and that he was “not fighting it”.

10. Whilst on one analysis this attitude of the defendant to supervision orders could be interpreted as suggesting a degree of insight into the offending in the past, this is a subject to which I will return because the apparent lack of insight into his offending and its effect on his victims and the repeated minimisation of his sexual offending remains of significant concern and informs the risk that the defendant may well engage in this behaviour again if the urge so takes him.

11. Due to a breach of parole on 16 December 2018, the defendant was returned to custody on 21 December 2018 where he remained until his release on 25 March 2019. The breach was the subject of a guilty plea in February 2019, and he was sentenced to three months imprisonment for that breach. There have been no further incidents of breach since his release on 25 March 2019.

The final hearing

12. The final hearing took place on 10 May 2019. The material from the preliminary hearing was tendered which comprised a lengthy affidavit of Kate Horman, sworn 27 September 2018 together with two volumes of exhibited material covering the defendant’s offending, sentencing remarks of the judges who dealt with the previous offending, and parole reports. The material also included risk assessments by Mr Ardasinski, psychologist, and Ms Carden, the DSO from the Department of Corrective Services.

13. The following additional material was read and or relied upon:

•   An affidavit of Amanda Carden dated 11 April 2019;

•   An affidavit of Ann Emmanuel affirmed 12 April 2017 together with a large volume of exhibited material AE-1 which updated information regarding parole and other relevant material;

•   An affidavit of Angela Rybak sworn 18 April 2019 addressing electronic monitoring;

•   The report of Dr Adam Martin, psychiatrist, dated 5 February 2019; and

•   The report of Dr Collins, psychologist, dated 22 April 2019.

The reports of the court appointed experts

14. Neither of the experts were required for cross-examination. Dr Collins was called to give some further explanatory evidence addressing why she provided a range of two to three years as the appropriate duration of the ESO.

15. Dr Martin expressed the following opinions in his report of 5 February 2019:

1. Mr Rush fulfils diagnostic criteria for paedophilic disorder in that he has shown repeated sexual offending behaviour where the victims were children, including a 9 year old girl (Page 12).

2. Mr Rush denies ongoing attraction to children. The offending behaviour happened more than 20 years ago. It might be argued that paedophilic urges, fantasies and behaviours have abated and that this diagnosis is no longer relevant, given the length of time since the offending, but on balance, given the number of child victims I think it is more likely than not that he has paedophilic disorder, which essentially represents an enduring vulnerability to experiencing of aberrant urges, fantasies and behaviours involving sexual activity with children (Page 12).

3. Given his history of conduct-disordered behaviour as an adolescent and an adult, and his history of criminal offending of various types, he fulfils diagnostic criteria for anti-social personality disorder which is essentially a description of enduring problems with disregard for the rights of others, failure to conform to social norms, lack of remorse and impulsivity. By definition, anti-social personality disorder is an enduring issue and is a description of character and behaviour as opposed to a mental illness (Page 13).

4. The major risk factors appear to be Mr Rush’s history of serious and violent sexual offending on a background of general anti-social behaviour and lack of regard for the rights of others (Page 14).

5. He has shown evidence of cognitive distortions such as minimisation and denial of the nature of the offending in the past (Page 14).

6. He has a highly prejudicial developmental background and has reported being sexually abused himself as a child (Page 14).

7. He has had drug and alcohol problems and gives a history of having been intoxicated at the time of some of the offending (Page 14)

8. He appears to have very limited supports in the community in terms of family and friends (Page 14).

9. He probably does not have the requisite coping abilities to regulate his behaviour appropriately and will remain at risk of future offending without appropriate supervision. He is still relatively young and his age will not be a significant mitigating factor over the coming years in terms of sex drive and the potential for sex offending (Page 14).

10. He is not keen on anti-libidinal medication which might otherwise moderate risk of problematic sexual behaviour (Page 14).

11. If in the community and without supervision, he would be vulnerable to use of substances which could also act as a disinhibiting factor, increasing risk (Page 14).

12. The history involved sexual violence, with physical and psychological coercion involved, plus minimisation and denial of the offending and trying to justify the offending by his own sexual frustration. This indicates significant problems with self-awareness, stress and coping (Page 15).

13. The history demonstrates sexual deviance and anti-social personality traits and he has problems with intimate and non-intimate relationships and has limited supports, and in terms of manageability there are “mixed reviews” in relation to his engagement with treatment at times (Pages 15-16).

14. The proposed conditions are restrictive but probably necessarily so from the perspective of community safety. Conditions should be in place for a period of five years as risk issues are unlikely to significantly decrease over the next five years (Pages 17-18).

16. In her report of 22 April 2019, Dr Collins expressed the following opinions:

1. The defendant remains a risk of committing either a serious or non-serious sexual offence, based on the current higher levels of assessment risk. Of significant concern there are fluctuating levels of risk due to the potential for lapse into substance use which could have a profound impact on risk, also general destabilisation of the defendant’s psycho-social functioning, for example returning to a transient lifestyle or disconnection or not managing his own sexual needs (Page 24).

2. There are some positives including it is possible that his risk will reduce with age given that he has not reoffended in two decades however he spent most of that period in custody, and his adjustment over the next couple of years in the community will provide further information about potential stability and whether he can remain in an offence-free lifestyle over the longer term (Page 24).

3. An ESO of two or three years duration would be appropriate, as this would allow Mr Rush to adjust back into the community, engage in regular maintenance therapy and provide a sufficient period of time to observe his stability and management of risk (Page 24).

4. He is a high risk sex offender and there is potential that he may commit a serious sexual offence in the future (Page 22).

5. There are a number of identified risk factors including the cluster of sexual offences over 1997 to 1998, diversity to the offending by way of contact and non-contact offences directed at both males and females. The contact offences were reckless and included threats to hurt the victim (Page 22).

6. There is a continued minimisation of his conduct (Page 22).

7. There is an apparent opinion of the defendant that children are sexual beings, probably normalised through own childhood of sexual abuse (Page 22).

8. He has problems with self-awareness and limited insight, problems with stress and coping, problems with intimate relationships and social isolation, personality dysfunction, no employment, limited ability to engage in and make effective gains from treatment, problems with activity planning (Page 22).

9. He has had some historical problems with engaging with supervision but more recently good response, or acceptable response to supervision (Page 22).

10. He has limited insight into risk issues and displays rigid thinking (Page 22).

11. His own childhood abuse normalised children as sexual beings (Page 22).

12. It remains unclear as to whether he maintains a sexual interest in children (Page 22).

Oral evidence of Dr Collins

17. Dr Collins gave evidence that she considered it would be usual for persons such as the defendant to have interface with Forensic Psychology Services (FPS) for 18 months to 2 years for treatment purposes. After that, there needs to be an additional supervisory period to determine the defendant’s response, his community adjustment and to ensure that relapse strategies and other strategies provided to him are working in the community.

18. Dr Collins said that whilst the defendant has demonstrated that he will adhere to some of the treatment and guidance, it can be “a little hit and miss”. On occasion there is a suggestion that he complies because it suits him to do so and because of that, there needs to be additional processes to ensure that he is adhering to what is required of him.

19. On the issue of whether there is an ongoing sexual interest in children, Dr Collins said it was difficult to answer this question because he denied it but his description of the offences and the way in which they were situationally driven indicates, in her view, a very clear interest in children. This underpins the need to monitor him through FPS treatment and to monitor him in the community to see whether there is any indication that his self-report that he is not sexually interested in children is inconsistent with the facts. Because of these needs and concerns, a period of three years is more appropriate and two years is not sufficient.

20. In terms of length of monitoring by electronic means, Dr Collins gave the view that a six month limit would be premature because the defendant needs a significant period to examine whether he can maintain compliance with ESO restrictions.

21. I was impressed by Dr Collins and found her analysis, rationale and explanations as to what she meant in her report when she provided the upper limit of three years, persuasive.

Oral evidence of Ms Carden

22. Ms Carden explained that at the time of the defendant’s breach of parole conditions, he was on stage three of monitoring, that is he was no longer required to provide schedules of movement but was still wearing electronic monitoring. The scheduling requirement had been removed in August 2018 and the breach of parole was being present in Burwood Park, a place he was not permitted to go.

23. Ms Carden explained that because of the breach of parole, on release on 25 March 2019 and pursuant to the conditions of the ISO, it was determined that he should revert to stage one being both electronic monitoring and the requirement that detailed schedules of movements be provided to his DSO for approval three days ahead.

24. Ms Carden explained that usually people such as the defendant remain on stage one for 12 months before the type of modifications available under stage two are made, such as curfew extensions and slightly less restrictive scheduling.

25. In respect of the proposal made on behalf of the defendant that he be restricted to electronic monitoring for six months with automatic removal at the end of a six month period from the date of the Court’s orders, Ms Carden indicated that it would be necessary for there to be an in-built option for the DSO to immediately resume electronic monitoring if the defendant were to breach any condition or to become destabilised in a way that would lead to an increased risk of reoffending for example if he indicated to his consulting psychologist, his GP or to anyone, a sexual interest in children, or commenced using alcohol or drugs.

26. As explained in paragraphs [27]–[38] of her affidavit, it is important that alerts from electronic monitoring can be managed and any deviations from required or scheduled activities can be monitored and assessed on a case by case basis:

“27. Progression through the stages is dependent on the defendant’s compliance with his ESO and his progression through his case plan in terms of addressing and managing his risk factors and offending behaviours. Progression allows for treatment gains to be implemented, or for a greater ability to assist in the defendant’s rehabilitation. If his behaviour destabilises, he may be regressed in his stage of electronic monitoring.”

Breach of parole

27. According to the police facts used in the proceedings for contravene Child Protection Prohibition Order, on 16 December 2018 Mr Rush entered and remained in Burwood Park between 5.55pm and 6.01pm. He claimed he did not go into the park but was “just watching the birds and ducks”. However, a map outlining his movements shows that he clearly entered and moved throughout the park which contains children’s play equipment. This park had been made the subject of a formal exclusion zone on 28 October 2018 after the offender was detected riding his scooter around the perimeter late in the evening on 27 October 2018.

28. The breach of parole report by Ms Carden about these events indicated a concern that the context of this was removal of scheduling requirements in August 2018, job loss and a generalised lack of willingness to take on feedback and lack of insight by Mr Rush into his risks and potentially risky situations.

Whether an ESO should be made

29. Section 5B of the Act provides the power to make the order:

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.

30. Section 9 of the Act provides a list of mandatory considerations:

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).

31. In addition to the matters set out in paragraph [7] of this judgment extracted from my judgment on the preliminary hearing, the following further material and analysis is relevant.

(i) Section 9(3)(b) – the reports of court appointed experts

32. These have been discussed in paragraphs [15]–[21] of this judgment. They clearly support a rational and considered basis for the conclusion that Mr Rush poses an unacceptable risk of committing a further serious sexual offence, if not kept under supervision. The significant risk he poses is in particular to children. They explain well the need for the interrelated package of conditions to the ESO to monitor and manage that risk.

(iii) Section 9(3)(d) – the results of any statistical or other assessments as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a serious offence

33. On assessment by Mr Brabant in June 2018, Mr Rush’s score on the STABLE-2007 suggested high density of criminogenic needs relative to other male sexual offenders. Areas of clinically significant concern were his lack of concern for other, impulsivity, poor problem solving skills and deviant sexual preference.

34. Mr Rush’s score on the STATIC-99R was five and this places him in the moderate to high risk category relative to other male sexual offenders.

35. On the STATIC-2002R testing Mr Rush’s score reflects a risk rate of recidivism potential at about three and a half times higher than that of a “typical” sex offender, according to Mr Ardasinski.

(iv) Section 9(3)(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

36. Ms Carden reports in her affidavit and in her oral evidence that Mr Rush engages regularly and at times intensively, asking questions about what he can and cannot do given his ESO and other conditions. She expressed optimism that he can be managed in the community on conditions but that the discretion to reactivate electronic monitoring with any relevant breach of conditions or any destabilisation in Mr Rush’s life was essential to that management. It is important to observe that records tendered indicate Mr Rush’s straying into Burwood Park in December 2018 was picked up very quickly and action taken to let him know that he had to move out of the park immediately.

(v) Section 9(3)(e) – any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and his willingness to participate in any such programs

37. Whilst Mr Rush was reported as being initially resistant to CUBIT, he did undertake and engage in and complete CUBIT before release. Mr Ardasinski observed that Mr Rush has to date, availed himself of all requisite programs.

(vi) Section 9(3)(e2) – the likelihood the defendant complying with his obligations under an ESO as may be reflected in his level of compliance with the orders

38. His compliance – excluding the December 2018 breach – was generally good according to Ms Carden and I consider based on the evidence before me that it is likely that he will comply, with support and assistance as planned.

(vii) Section 9(3)(h) and (h1) – the defendant’s criminal history, any pattern of offending behaviour disclosed by that history

39. Self-evidently the defendant’s criminal history attracted concerns, not only by the judges sentencing him but by the State in applying for orders under this Act, in particular because of the random, sudden and opportunistic nature of his offending, his lack of insight into the effect of this offending upon his victims and his minimisation of the offences.

40. Taking all the mandatory considerations into account and the expert reports of Dr Martin, Dr Collins and Mr Ardasinski, I am persuaded that an ESO should be made. I am satisfied to a high degree of probability that there is an unacceptable risk of the defendant committing a further serious sex offence if not supervised. I accept the plaintiff’s analysis set out in its written submissions at paragraph [48] that persuasive factors include:

“(a)   The history and extent and nature of sexual offending against children, including the fact that it involved spontaneously isolating and attacking strangers in public places where they may be most vulnerable;

(b)   Lack of effective support from, or existence of, stable relationships or friendships;

(c)   Possible ongoing sexual preoccupation with children which requires further appraisal;

(d)   Apparent need for a much longer period of intensive supervision flowing from these factors and others, including problems with self-regulation, rigid thinking, poor response to or limited insight into treatment and reasons for offending, concerns about the extent to which previous sex offender treatment had equipped the defendant with coping strategies, social isolation, stress and vulnerability to destabilisation if his lifestyle is detrimentally affected (e.g. lack of employment and inappropriate accommodation) or there is a return to substance use;

(e)   Assessed need for further ongoing therapeutic treatment to assist in reducing risk;

(f)   Ongoing dynamic risk factors which are less susceptible to change, namely interpersonal detachment, personality characteristics, pro-offence distortions and reduced capacity for treatment gain;

(g)   Assessed moderate-high/well above average risk of further sexual reoffending; and

(h)   History of breaches by further (non-sexual) offending when subject to supervision or conditional liberty.”

41. I also accept the plaintiff’s submission at paragraph [49]:

“Whilst the defendant has not committed a serious sex offence since 1998…[his] opportunities to offend have been severely limited (particularly against women and children) in that the subsequent period has been mostly spent in custody…[and] when out in the community, the intensity of subsequent supervision and…has likely mitigated [any] risk significantly.”

This is consistent with the observations of both Dr Martin and Dr Collins.

The term of the order – two or three years?

42. Dr Martin supports a five year ESO. Dr Collins, by her oral evidence, supports an ESO of three years.

43. Ms Cook on behalf of the defendant referred to State of New South Wales v Garry AllanConway [2011] NSWSC 925 at [28] where the Court took the view that in that case a:

“lesser period…would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment.”

It was submitted this was a consideration for Mr Rush.

44. Ms Cook also referred to State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [85] per N Adams J, where emphasis was placed on the safety and protection of the community because:

“That approach accords with the primary object of the legislation. The rehabilitation of the defendant is a secondary object; necessarily it will yield to the safety and protection of the community in cases where those two objects conflict.”

45. Safety and protection of vulnerable children is a critical consideration in respect of Mr Rush’s supervision. His offences were committed suddenly, randomly and with coercion and force, upon mostly young children who were going about simple activities such as shopping or going to a public toilet in a shopping centre.

46. Mr Rush’s minimisation of his offending continues to be a concern. I accept that Mr Rush needs concerted psychological treatment and careful observation and supervision to minimise the risk that he presents to children, and that a reasonable period is three years to review and calibrate monitoring and other conditions to his potentially fluctuating responses and needs in the community.

Conditions

47. Section 11 of the Act requires the Court to only make conditions that the Court considers appropriate.

48. In State of New South Wales v Grooms (Final) [2019] NSWSC 353 Fullerton J discussed the power of the Court to impose conditions:

“[78] In State of New South Wales v Baker (No 2) [2015] NSWSC 483 at [36] Adams J addressed the breadth of the analysis in which the Court is engaged in exercising the power in s 11 of the Act in the following way:

Section 11 of the Act permits the imposition only of such conditions as it “considers appropriate”, including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a “balance between relevant considerations” which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendant’s committing further sexual offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)

[79] In State of New South Wales v Bugmy [2017] NSWSC 855 at [89] I was concerned to emphasise the care that needs to be taken to ensure that the conditions the Court imposes when making an extended supervision order relevantly address the nature of the risk a defendant poses referable to the risk factors identified in the evidence adduced in the proceeding under the Act:

The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways.”

49. Obviously in Mr Rush’s case the conditions need to be directed to moderating or minimising the risk that Mr Rush will suddenly and randomly sexually attack a child in a relatively public place. A comprehensive package of interrelated conditions have been agreed between the parties. Only one condition was is issue.

50. The area for debate narrowed even further during the hearing on 10 May 2019. Initially counsel for the defendant Ms Cook argued for a six month “sunset clause” on the requirement to wear electronic monitoring, however this position was modified to a “sunset clause” of six months, with a proviso that if there is any breach of the conditions, the DSO could immediately reinstate the electronic monitoring and the requirement for electronic monitoring would revert to the DSO’s discretion for the balance of the ESO period.

51. Mr Aitken for the plaintiff argued that there were difficulties with the proposal that only a breach of an ESO condition would trigger resumption of electronic monitoring in a situation where risk factors identified by Ms Carden and Dr Collins and Dr Martin such as indicating an interest in children, engaging in drug and alcohol use, decreased social supports or deterioration in coping skills would all increase his risk of offending but these matters would not trigger a right for the DSO to immediately reinstate electronic monitoring.

52. Ms Cook submitted that if that occurred, an application to the Court to review conditions could then be made.

53. Mr Aitken countered, correctly in my view, that orders which contemplate identified issues to be dealt with by a future court application would not be consistent with a proper exercise of the Court’s discretion regarding conditions for the ESO, and would not be consistent with s 56 of the Civil Procedure Act 2005 (NSW).

54. I am of the view that the introduction of a “sunset clause” as proposed, even for one year, introduces an arbitrariness which is not suitable to the supervision needs of Mr Rush. I was impressed by the intelligent and holistic approach to the supervision by Ms Carden and I accept that there is a need for multi-faceted monitoring, psychological as well as physical, including, as explained by Dr Collins, concerted interface with FPS. Within four months of being taken off scheduling requirements Mr Rush was found somewhere that he was not supposed to be. Whilst he did not offend, his transgression was able to be quickly seen because he was being electronically monitored. This illustrates clearly the importance of electronic monitoring of Mr Rush who seems to have acted impulsively, wanting to “watch the ducks” without thinking through what he was doing.

55. Because his stability and risk may well fluctuate, there is an unnecessary arbitrariness in identifying six months or for that matter, 12 months as a time for designated removal of electronic monitoring.

56. I decline to modify condition 4 as argued for by Mr Rush. Condition 4 as proposed by the Crown is appropriate in the circumstances. The discretion to maintain and calibrate monitoring to respond to either reduction or increase in the risk that Mr Rush will, for example, randomly sexually attack children or sexually act out in their presence is an essential part of the package of conditions. Electronic monitoring has and will continue to perform a significant role in moderating or minimising this risk.

Orders

1. Pursuant to the provisions of s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of 3 years from the date of this order;

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant shall comply, for the period of the extended supervision order issued in these orders, with the conditions set out in the schedule to this order.

Schedule of conditions of supervision 17 May 2019 (231 KB, pdf)

**********

Amendments

20 May 2019 - Formatting and removed duplicate text in para 40

Decision last updated: 20 May 2019