State of New South Wales v Ryan (Preliminary)

[2023] NSWSC 726

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ryan (Preliminary) [2023] NSWSC 726

Hearing dates:

20 June 2023

Date of orders:

28 June 2023

Decision date:

28 June 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under s 7(4) Crimes (High Risk Offenders) Act 2006 (NSW):

(a) Appoint two qualified psychiatrists, or two registered psychologists (or a combination of both professions) to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations within 3 weeks of the date of the examination; and

(b) Direct the defendant to attend the examinations so fixed;

(2) Under s 10A of the said Act, the defendant is subject to an Interim Supervision Order for a period of 28 days commencing after the expiration of his sentence of imprisonment on 3 July 2023;

(3) Order pursuant to s 11 of the Act directing that the defendant comply with the conditions set out in the schedule to the summons as altered or modified by these reasons for the period of the interim supervision order;

(4)      Order that access to the Court’s file in respect of any document shall not be granted to a non-party without leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so at to allow them the opportunity to be heard in relation to the application for access.

(5)      List the matter for mention before Campbell J on Friday 30 June 2023 to enable the parties to bring in agreed short minutes of order incorporating the conditions of supervision amended or modified in accordance with these reasons.

Catchwords:

HIGH RISK OFFENDERS — interim supervision orders — index offence relates to breach of interstate child protection prohibition order taken to be a NSW order by statute — interstate conviction for a serious sex offence — matters if established at the final hearing would justify the making of an extended supervision order — consideration of disputed conditions

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 13 and 19

Child Protection (Offenders Prohibition Orders) Regulation 2018 (NSW), cll 5 and 7

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW), s 66E

Crimes Act 1958 (Vic), s 49M

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Crimes (High Risk Offenders) Act 2006 (NSW), ss 5, 5B, 6, 9, 7, 10A, 11

Sex Offenders Registration Act 2004 (Vic), ss 66D and 66E

Cases Cited:

R v Ryan [2012] SASCFC 136

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
David Ryan (Defendant)

Representation:

Counsel:
H El-Hage (Plaintiff)
A Cook (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Streeton Lawyers (Defendant)

File Number(s):

2023/152361

JUDGMENT

1. By summons filed on 10 May 2023, the State of New South Wales (“the State”) by way of final relief seeks an order that the defendant, Mr Ryan, be subject to an extended supervision order (“ESO”) for a period of three years under ss 5B and 9(1)(a), and an order directing him to comply with conditions pursuant to s 11, each of the Crimes (High Risk Offenders) Act 2006 (NSW). Unless otherwise specified all references to legislative provisions in this judgment are references to that Act.

2. On 20 June 2023, I conducted the preliminary hearing into the State’s application required by s 7(3), the time for which was extended until then. At the preliminary hearing, the State applied for, and Mr Ryan opposed, interim relief being orders under s 7(4) appointing two relevantly qualified experts to conduct separate examinations of Mr Ryan, to furnish reports to the Court on the result of those examinations, under the same section an order directing Mr Ryan to attend those examinations and an interim supervision order (“ISO”) under s 10A, subject to conditions imposed pursuant to s 11. The ISO is to commence after the expiration of Mr Ryan’s current imprisonment on 3 July 2023 and run for a period of 28 days. A non-access order to non-parties, other than by leave with prior notice to the parties is also sought.

3. Under s 6(3), the State’s application is required to be supported by documentation that addresses each of the mandatory considerations for the making of an ESO referred to in s 9(3) and a report by a qualified expert assessing the likelihood of Mr Ryan committing a serious offence (“RAR”). Under s 6(4), if following the preliminary hearing I am satisfied that the matters alleged in that supporting documentation would if proved at the final hearing justify the making of an ESO, I am required to make the orders sought appointing experts, requiring their reports and directing Mr Ryan to attend for examination.

4. Under s 10A, I have a discretion to make an ISO if it appears to me that:

1. Mr Ryan’s current custody will expire before the proceedings are determined; and

2. the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an ESO.

5. As Mr Ryan’s current custody will expire on the completion of his sentence of imprisonment as soon as 3 July 2023, I am satisfied that the first s 10A condition for making an ISO is satisfied. Satisfaction of the second s 10A condition requires me to determine whether the supporting documentation if proved at the final hearing would establish each of the conditions specified in s 5B(a) – (d) and also that it deals with each of the mandatory considerations to which the Court must have regard as specified in s 9(3) before the Court, in the exercise of the s 9(1) discretion, would be justified in making an ESO.

6. Section 5B is in the following terms:

“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.”

7. Mr Ryan is to be commended as he has properly, through his counsel, Ms A Cook, acknowledged that at this preliminary hearing there is no issue that the conditions in s 5B(a) – (c) would be established at the final hearing by the matters alleged in the supporting documentation. This means that the issues are whether that documentation, if proved at the final hearing, would justify a finding under s 5B(d) to a high degree of probability that Mr Ryan poses an unacceptable risk of committing another serious offence if not kept under an ESO; and whether the facts alleged in the supporting documentation, if proved would otherwise justify exercise of the Court’s discretion to make an ESO rather than dismissing the State’s application.

An unusual feature of the case

8. While there was no dispute about the s 5B(a) – (c) conditions, there are matters concerning them which I should mention. The index offending for which Mr Ryan is serving his current NSW sentence is not a serious sex offence for the purpose of s 5(1). Rather, it is an offence of a sexual nature as defined by 5(2)(g), being an offence under s 13 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (“CPOPO Act”). This offence carries a maximum penalty of imprisonment for 5 years, rather than imprisonment for 7 years or more as is generally required for a serious sex offence under s 5(1). The offending, which I will summarise below, occurred on 2 November 2021. He was then subject to a prohibition order under the CPOPO Act by force of s 19 of that Act and clauses 5 and 7 of Child Protection (Offenders Prohibition Orders) Regulation 2018 (NSW) made under it. The combined effect of these provisions is that a person subject to an order under Part 4A of the Sex Offenders Registration Act 2004 (Vic), inter alia, is taken to be subject to a prohibition order made by the Local Court under the CPOPO Act. The interstate order may be enforced in NSW against the person bound by it for a breach which occurred in this State as if it were a prohibition order made under the CPOPO Act. The relevant interstate order was an interim prohibition order made in the Magistrate’s Court of Victoria at Melbourne on 17 September 2021 under the provisions of Part 4A, ss 66D(1) and 66E of the Victorian legislation. He was convicted of the NSW offence on 5 July 2022. A final order was made under the Victorian Act on 15 July 2022.

9. While these circumstances (see Exhibit AT–1, p 79) sufficiently account for his conviction for the index offending, satisfaction of the s 5B(a) condition at the relatively low level necessary for s 10A(b) and s 7(4) depends upon other interstate offending to establish that Mr Ryan is an offender who has served a sentence of imprisonment for a serious sex offence within the meaning of s 5(1). As will become clear he is a person with a relatively long history of child sex offending. For present purposes, it is sufficient to narrate that the supporting documentation, if proved, would justify a finding that on his conviction for three child sex offences in the County Court of Victoria at Bendigo on 19 June 2018, Mr Ryan was sentenced by his Honour Judge Grant to a total effective sentence of imprisonment, after a discount for his guilty plea, of 4 years with a minimum term of 3 years after which he was eligible for release on his parole. The second of those charges was a charge of grooming a child under the age of 16 for the commission of a sexual offence contrary to the provisions of s 49M Crimes Act 1958 (Vic). The equivalent offence in New South Wales is created by s 66E(b) Crimes Act 1900 (NSW). Both the Victorian and the New South Wales offences carry a maximum penalty of imprisonment for 10 years. While the wording of the provision creating the respective offending is not identical, there is no doubt that the substance of the Victorian offence involves the concept of grooming, which is directly addressed by the New South Wales provision. Judge Grant referred to the Victorian offence as being one of “grooming”. The individual sentence imposed for the grooming offence was one of 18 months imprisonment. By force of s 5(1)(c) to (d), an interstate offence that if committed in NSW would be a serious sex offence is a serious sex offence for the purpose of s 5(1) itself. Thus, the matters alleged in the supporting document would, if proved at the final hearing, justify a finding that the s 5B(a) condition was satisfied. As I have said, there is no question for present purposes that either Mr Ryan is a supervised offender under s 5B(b) or the procedural requirements of s 5I have been complied with to satisfy s 5B(c).

10. I will return to the question of whether the matters alleged in the supporting documentation, if proved to the final hearing, would justify a finding by application of the statutory standard of a high degree of probability that Mr Ryan poses an unacceptable risk of committing another serious offence if not kept under an ESO for the purpose of s 5B(d). In his case, the only question is the risk of another serious sex offence. Nothing in the evidence suggests any risk of him committing a serious violence offence.

The supporting documentation

11. Mr Ryan has a long history of child sex offending commencing in Victoria on 11 February 1994 when he was convicted of commission of an indecent act in the presence of a child under 16 years of age. Mr Ryan received a community based order of 2 years duration. The facts of the offending involve Mr Ryan and his then wife inviting the child victim to participate in a “threesome”. The adults removed their clothes and hugged the child.

12. Mr Ryan received a suspended sentence in Western Australian on 20 March 2000 for an offence of stalking. A bond was imposed in the ACT Magistrate’s Court for a breach of the peace committed on 19 May 2006, the facts are not replicated in the supporting documentation. Another bond was imposed on 13 August 2009 in South Australia for an offence apparently not of a sexual nature but involving an assault.

13. Mr Ryan was sentenced in the South Australian District Court on 24 August 2012 to imprisonment of 18 months with a non-parole period of 4 months. The short non-parole period was to facilitate the resumption of treatment he had been receiving at a rehabilitation facility for sex offenders known as Owenia House. The offending consisted of child pornography offences uncovered on 5 June 2008 and again in April 2011. The latter offending occurred while he had been on extended bail for the June 2008 offending due to delays in the formulation of the prosecution case. While still on bail he was arrested for further like offending in May 2012 at which time he was remanded in custody. Again, there was a delay in analysing the material and the matter was unable to be dealt with when listed in August 2012. During this extended period on bail, he commenced psychological treatment at Owenia House. The sentence was quashed on a Crown appeal and the matter was remitted for re-sentence: R v Ryan [2012] SASCFC 136.

14. When the matter came back before the District Court, he faced not only the original offences of possessing child pornography in 2008 and 2011, but following full analysis of his computer in relation to the 2011 offences, he was charged with 29 counts of breaching bail, further charges of possessing child pornography, charges of the aggravated form of possessing child pornography, 3 charges of grooming offences in 2008, 2011 and 2012 and yet further charges of accessing child pornography including in its aggravated form. Mr Ryan was sentenced to a maximum of 4 years imprisonment with a non-parole period of 2 years. A victim’s levy of $13,480 was imposed. Convictions were recorded for the breach of bail offences without further penalty. The victims of the 3 grooming offences were aged 15 (x2) and 16.

15. As I have already said, Mr Ryan was sentenced to a total effective sentence of 4 years with a non-parole period of 3 years on 19 June 2018 in the County Court of Victoria after he pleaded guilty to 3 charges of knowingly possessing child pornography, grooming a child under 16 for sexual offences and failing to comply with reporting conditions to which he was already subject.

16. There are also uncharged matters to which Mr Ryan has confessed. They are not part of his criminal history but are capable of being relevant to the question of community safety. The same submission is made by the State in relation to an acquittal on a child stealing offence arising from a visit by Mr Ryan to a 15-year-old girl he had befriended online. The elements of the offence were not made out.

17. As I have indicated above, the index offending occurred after his release from custody for the last tranche of Victorian offending and while he was subject to reporting obligations and an interim prohibition order under the Victorian legislation. According to the judgment of the trial magistrate, Beattie LCM, Mr Ryan attended a church service in Goulburn on 2 November 2021 for the purpose of making contact with children including physical contact effectively on the pretext of being in need of charity. The offending involved contact and communication with as many as 3 children. The contact with two of the children was brief. Her Honour regarded the objective seriousness of the offending as mid-range. She regarded protecting the community from Mr Ryan as “clearly a big factor” (Exhibit AT–1, p 9 line 33). General and specific deterrence were also significant factors notwithstanding the matters which may have mitigated his moral culpability including his dysfunctional upbringing and mental illness issues. There was no expression of remorse whatsoever; indeed, quite the contrary. Her Honour noted the comments of his Honour Judge Grant from the 2018 Victorian sentencing remarks, including his Honour’s opinion that he had no confidence in Mr Ryan’s ability to rehabilitate. As I have said already, Beattie LCM imposed a head sentence of 20 months with a non-parole period of 14 months.

18. On appeal to the District Court, the non-parole period was reduced to one of 12 months. In his judgment, Judge Arnott SC (Exhibit AT–1, 95ff) regarded the index offence as representative of a continuing attitude of disobedience to the law requiring a particular emphasis on general and specific deterrence. Like Judge Grant, his Honour regarded Mr Ryan’s prospects of rehabilitation and future non-offending as guarded: “[t]here is little contrition”. For offending of its type, his Honour regarded the offending as “low in the range of seriousness, but certainly nowhere near the bottom of the range”.

19. It is convenient to complete this narrative of Mr Ryan’s criminal history by recounting that in accordance with the sentence imposed by Judge Arnott, Mr Ryan was released to his parole by statutory parole order on 3 November 2020. When he was released, he was given a direction “not to enter, loiter or remain in the vicinity of child related facilities, including but not limited to…other premises including churches, known to be frequented by children under the age of 18 years”. During the mid-morning of Sunday 6 November 2022, that is to say only 3 days after his release, Mr Ryan attended a church at Darlinghurst just as the service was finishing. The congregation included about 15 children aged up to 14 years. He approached the celebrant seeking help with food, clothing and money disclosing he was a sex offender who should not be at the church. It was observed that Mr Ryan became fixated on the children playing in the church. He was asked to leave and return later for the adults-only service. The celebrant reported the matter to police (Exhibit AT–1, p 211ff).

20. This incident triggered a review of Mr Ryan’s parole. His Community Corrections Officer and the team leader jointly recommended that his parole order be revoked. The incident reported by the celebrant “highlighted an immediate return to his former behaviour and a disregard for the directions issued in an attempt to prevent such behaviour and mitigate the risk he poses to children in the community” (Exhibit AT–1, p 214). The State Parole Authority revoked the parole order on 10 November 2022 and issued a warrant for Mr Ryan’s return to custody. An application for recission of the revocation was refused on 9 December 2022.

Section 9(3) considerations

21. I propose to deal with the s 9(3) matters briefly as it will in any event be necessary for a judge, if the matter proceeds to a final hearing, to make his or her own assessment of the evidence for the purpose of determining whether the matters alleged in the documentation are proved. Naturally, no reports are yet available from persons who may be appointed under s 7(4) to conduct examinations of Mr Ryan at the Court’s direction.

22. There is material dealing with s 9(3)(c) and (d) in the form of the risk assessment report prepared by Jonathon Mystakidis. Mr Mystakidis occupies a position of Acting Senior Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. Mr Ryan consented to being interviewed on 17 and 21 February 2023 and Mr Mystakidis’s report was prepared on 27 February 2023. Mr Ryan seems to have been co-operative and polite during the interview. On Mr Mystakidis’s assessment, there can be no doubt that Mr Ryan suffered a traumatic and disadvantaged childhood during which he was subject to both physical and sexual abuse at the hands of foster carers, his biological father and his mother’s male partner. He felt abandoned by his parents. He has no contact with his mother and infrequent contact only with his father. Mr Mystakidis documented the various diagnoses of mental illness that have been made over the years, which I will refer to below.

21. So far as risk assessment is concerned, Mr Mystakidis made reference to previous assessments and administered for himself the static risk factors (Actuarial Assessment – Sex Offending) tool referred to as STATIC-99R. His scores justified an assessment of a “Well Above Average” risk of future sex offending. The literature apparently supports an opinion that offenders scoring in that range have a perceptibly higher risk of recidivist sex offending than the typical sex offender: Exhibit AT-1, p 56 [53].

22. Mr Mystakidis also administered the STABLE-2007 tool identifying and measuring stable dynamic risk factors affecting the individual offender. Once again, Mr Ryan returned a high score suggesting a high density of criminogenic needs. Taken in combination with STATIC-99R, these results confirm the “Well Above Average” risk assessment. Mr Ryan’s criminogenic needs are documented (at [60]) in his report and include a sexual attraction to children, mainly female children aged around 15 to 16. Mr Mystakidis “hypothesised” (Exhibit AT-1, pp 61-62 [62]-[65]) that the criminogenic needs that he identified have contributed to the perpetuation of sexual offences. He expressed the opinion:

“The risk is further exacerbated by Mr Ryan’s denial of much of his offending, delusional presentation, distorted views about children’s capacity to consent, antisocial views, unwillingness to engage in treatment and poor compliance with supervision.”

Mr Mystakidis is of the view that the most likely risk scenario involved contacting underage females online and initiating sexual grooming under the pretence of offering emotional support. He is of the view that Mr Ryan is likely to breach his reporting conditions by frequenting places of worship, as he has in the recent past, in the context of seeking charitable assistance to bring himself into contact with children.

25. A risk management report has been prepared by Shelley Sfetcopoulos, a Senior Community Corrections Officer, dated 13 April 2023. One of the difficulties identified is Mr Ryan’s previous itinerant lifestyle and his relative social isolation. There was also a difficulty when the report was prepared in identifying suitable stable post-release accommodation. I interpolate that on the evidence led before me at the hearing, that difficulty seems to have been overcome at least for the medium term. Mr Ryan also appears to have an anti-authoritarian bent to his personality, believing that governmental agencies “are seeking to harm him” (AT-1, p 70). He believes he is discriminated against because of his attraction towards mid-teenage children. Ms Sfetcopoulos largely outlines the type of conditions which may be imposed for the purpose of an ESO to manage the risk Mr Ryan presents in the community. She does not seem to expressly state an opinion about whether his risk can be managed in the community, but I would infer that so much is necessarily implicit in the management plan she has propounded which it must be said proposes a relatively strict suite of conditions. I am of the view that this evidence, if proved at the final hearing, would justify the conclusion that Mr Ryan can be managed in the community.

26. It is apparent from the review of Mr Ryan’s criminal history that he has participated in rehabilitation and treatment programs over the years for the purpose of s 9(3)(e). I have already referred to the program at Owenia House in South Australia. There have been other programs, including a “better life” program during his incarceration in Victoria. It does seem clear, however, that Mr Ryan’s attitude toward his interest in children is fairly fixed and inflexible. At least it will be open to a judge conducting any final hearing to so find.

27. Section 9(3)(f) is concerned with compliance with the conditions of parole. I have dealt with his early breach of his most recent release on parole above. The some 29 breaches of bail in South Australia which were dealt with when he was re-sentenced in the District Court there suggests that there will be challenges to Mr Ryan complying in all respects with the obligations of an ESO (s 9(3)(e2)).

28. On the supporting documentation it will be open to the Court at any final hearing to infer that Mr Ryan’s compliance with his obligations under child protection legislation for the purpose of s 9(3)(g) has not been good. Afterall, the index offending is a significant breach of the CPOPO Act and the offending in this regard was virtually duplicated following his release to parole on 3 November 2022. One of the offences for which he was sentenced by his Honour Judge Grant in the Victorian County Court was a breach of his reporting obligations under the Victorian equivalent of the Child Protection (Offenders Registration) Act 2000 (NSW), for which he received a custodial sentence. Although the police facts in relation to the index offending (Exhibit AT-1, p 75ff) may leave open an inference of better compliance with registration and reporting conditions more recently, before the commencement of his current sentence he had just emigrated from Victoria and expressed desire to live overseas. There also may be an available inference that his perambulations are for the purpose of avoiding compliance and supervision.

29. I have already summarised Mr Ryan’s criminal history for the purpose of s 9(3)(h) and the views of the sentencing courts where they are material for the purpose of s 9(3)(h1) above. His record, the nature of the offences and the decades over which his offending has been perpetrated tend to support the statistical assessments made by Mr Mystakidis.

30. For the purpose of s 9(3)(c) and 9(3)(i), the evidence is that Mr Ryan has seen psychiatrists and psychologists over the years, both for treatment and for forensic purposes in relation to his participation in the criminal justice system. None of the treatment has so far enabled Mr Ryan to move beyond his attraction, including sexual attraction, to mid-teenagers, especially girls. It may be open to the Court at a final hearing to find that Mr Ryan’s mental illnesses are firmly anchored in his unfortunate dysfunctional and disadvantaged childhood.

31. Various diagnoses have been proffered from time to time. He has been hospitalised for at least two periods for delusional disorder, but this condition does not seem to be active at present. However, the symptoms of Post-Traumatic Stress Disorder from his childhood trauma and Adjustment Disorder continue. At other times diagnoses of Borderline Personality Disorder and Paranoid Personality Disorder have been put forward. There seems little doubt that he has ongoing and perhaps intractable paedophilia. It has also been suggested that he may suffer from Asperger’s Disease.

32. Mr Mystakidis identified criminogenic needs including a lack of significant pro-social influences, an incapacity for forming stable adult relationships, emotional identification with children, general social rejection, lack of concern for others, impulsivity, poor problem solving skills, negative emotionality, sex as a coping mechanism, deviant sexual preference in the form of his “minor attraction” and his ingrained anti-authoritarian attitudes, which create difficulties for him co-operating with supervision.

33. It should also be noted that there is evidence suggesting that Mr Ryan is adept and resourceful at attempting to manipulate the custodial system to his own advantage, especially in attempting to be “placed one out” (note of registered nurse 11 November 2022, Exhibit AT-1, pp 218-219).

34. An assessment of Mr Ryan while in custody over three occasions in September and October 2022 determined that overall, he did not meet the full diagnostic criteria for Autism Spectrum Disorder, although he had social and communication difficulty and rigid thoughts and beliefs. I have reviewed the Justice Health records relating to Mr Ryan’s current incarceration (Exhibit AB-1, pp 218-272 including OIMS case notes). While Mr Ryan has frequently seen psychology staff, it is not apparent that he is currently receiving any medication for any recognised mental health diagnosis. Indeed, other than the reference to Asperger’s Syndrome Disorder, I have referred to and referenced historical PTSD. No diagnosis of any active mental health condition has been posited or suggested. He has not been examined during this current incarceration by a psychiatrist so far as the evidence before me discloses.

Submissions on unacceptable risk

35. Mr H El-Hage of counsel submitted that I would be satisfied to the extent necessary at a preliminary hearing that the matters alleged in the supporting documentation justified both a finding that Mr Ryan posed an unacceptable risk of committing a serious sex offence if not under an ESO and that an ISO should be made. In summary he relied upon 7 points. First, the history of child sex offences that I have detailed above including the 1994 offence of a commission of an indecent act in the presence of a child under 16. Secondly, Mr Ryan’s longstanding and entrenched beliefs that it is appropriate for him to be “minor attracted” to underage girls. Thirdly, the defendant has no insight into his offending. Fourthly, he has a history of offending while subject to conditional liberty, as I have detailed above. Fifthly, he has not engaged appropriately with such rehabilitation programs that have been made available to him and has no real prospect in that regard. Sixthly, the opinion of Mr Mystakidis. And finally, the high intensity of Mr Ryan’s criminogenic needs.

36. Ms A Cook joined issued with the State’s contentions. By reference to her written submissions, she made the following points: first, there has been a significant lapse of time, nearly 20 years since the defendant’s only “contact” offence; secondly, most of the child abuse material in the child pornography charges was category 1, not depicting sexual activity; thirdly, the conduct that resulted in the revocation of his current parole has not resulted in the laying of any additional charges; fourthly, Mr Ryan has effectively served the entirety of the current sentence; fifthly, Mr Ryan has undertaken some treatment, therapy and counselling programs which ought to have a protective effect; and finally, the potential risk of re-offending is not necessarily a risk of a further “serious” offence as defined in the Act.

Determination of unacceptable risk

37. Notwithstanding the arguments capably advanced by Ms Cook, I am satisfied from my review of the matters alleged in the supporting documentation that if they are established at a final hearing, they would justify the making of an ESO. In particular, I am satisfied that the whole of matters alleged are capable of justifying satisfaction to the requisite high degree of probability that there is an unacceptable risk of Mr Ryan committing another serious sex offence if not kept under an ESO.

38. I have had regard to Mr Mystakidis’s hypothesised risk scenarios. Given Mr Ryan’s history, his ingrained anti-authoritarian attitudes and the other criminogenic needs identified by Mr Mystakidis, the material proved would justify a finding of an unacceptable risk of the commission of further grooming offences, themselves serious sex offences as defined. The evidence if accepted would also justify a finding that there is the risk that given the opportunity he may attempt to act upon his sexual interest in mid-teenaged girls.

39. Given this preliminary finding and the matters which underpin it, I am satisfied that an ISO ought to be made. Obviously, I am not purporting to predict the outcome of a contested final hearing. That is not my function. But the further investigations which the Act require, including the appointment of the relevant experts and the direction that Mr Ryan attend for examination, which I am required by law to make given my finding, should be undertaken while the community has the protection of Mr Ryan being supervised under an ISO. His peripatetic nature and relative social isolation are important factors in leading me to that conclusion. I will turn then to the conditions that should be imposed.

Conditions

40. The issue in relation to what conditions should be imposed during the currency of the ISO have been very helpfully tabulated in the annexure to Ms Cook’s written submissions. The State accepts the amendments to conditions 49, 50 and 51 suggested on behalf of Mr Ryan should be made. Those matters may be incorporated in the short minutes of order for which I will call at the conclusion of this judgment. I should say that by and large Mr Ryan accepts most of the conditions sought by the State.

Condition 4 – conduct toward supervisory staff

41. Condition 4 relates to Mr Ryan’s conduct towards Corrective Services NSW staff or the staff of the company which will provide the electronic monitoring, which he does not oppose. Ms Cook makes the point that as it is expressed it covers the same ground as the offence created by s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW). The proposed condition certainly refers to threatening and intimidating behaviour capable of causing staff members to fear for their safety. While acknowledging the force of the submission, it seems to me that the condition is broader than s 13 and its appearance in the conditions should emphasise to Mr Ryan, particularly having regard to his anti-authoritarian traits the need to treat those responsible for his supervision with curtesy and respect. If he cannot manage that state of mind, he must not engage in threatening, intimidating or abusive behaviour.

Conditions 6, 7 and 8 – schedule of movements

42. While, as I have said, Mr Ryan accepts the electronic monitoring condition, he opposes the need to be subject to condition 6, 7 and 8 relating to the provision of and compliance with a schedule of movements. Ms Cook argued that this was particularly burdensome, required Mr Ryan effectively to provide a schedule of his expected movements up to nine days in advance, which may be unrealistic for anybody. On the other hand, it is my view that a schedule of movements tends to work in combination with electronic monitoring. Unless a schedule is provided it may be difficult for supervisory staff to know whether Mr Ryan is where he should not be, notwithstanding the advantage of electronic monitoring. Given his social isolation, his unfamiliarity with greater Sydney and most of New South Wales in general, I am of the view, the conditions should be imposed requiring Mr Ryan to think ahead and may also guard against the risk associated with his impulsivity.

Conditions 10, 12 and 14 - accommodation conditions

43. Mr Ryan objects to condition 10, which places him under the direction of his Department Supervising Officer as to his place of residence. He submits he should be entitled to agree to the place where he is to live prior to him receiving a direction in that regard. He also objects to condition 12 in part and suggests that Departmental visits to his approved address ought to occur only in business hours. He opposes the need, imposed by condition 14, for him to require prior approval before receiving visitors at all or overnight.

44. I accept that it is not unreasonable for Mr Ryan to have an input into the selection of his place of residence and I fully understand why he would wish to be able to agree as a condition precedent to its selection. On the other hand, given his anti-authoritarian traits and a certain tendency to attempt to manipulate the system as evinced by his attempts in custody to bring about a one out placement, I am of the view that while he should be consulted, in the end, someone must have the decision-making responsibility and that someone should be the DSO. It does seem to me that the wording of condition 10 allows for consultation and discussion with Mr Ryan. The requirement is that the residence be “approved by a DSO” not that the DSO direct Mr Ryan where to live.

45. In regard to condition 12, I accept the State’s submission that the condition would be deprived of its utility if the authority to visit Mr Ryan at his residence, including without notice, could only be exercised during business hours. The risk of committing a child sexual offence could materialise at any time of the day or night and the DSO must have relevant flexibility of authority.

46. It is also my view given the risk that an underaged person, most probably a female, may be enticed to Mr Ryan’s place of residence, at least initially, prior approval for receiving visitors, especially overnight visitors is an appropriate addition to management of the risk and I will impose condition 14.

Conditions 17 and 18 - place and travel restrictions

47. Mr Ryan opposes condition 17 empowering the DSO to specify places which he is prohibited from entering. I am of the view that this is appropriate given the difficulty of foreseeing every possible permutation of the relevant risk materialising.

48. Condition 18 specifies places or events Mr Ryan is not permitted to enter or attend. He accepts the condition generally but seeks to delete the reference to “libraries and museums”. I accept that these are places of resort not directed exclusively or mainly to children. Even so, they are also places children are likely to visit. There is no absolute prohibition in condition 18, rather prior approval is required. I do not regard the condition to be in any way unreasonable and I would allow it in its entirety. Moreover, given the circumstances of the index offending and the breach of bail, I would also add the following:

1. “(k)   Churches or other places of worship during children’s or family services.”

49. I am not of the view that this in any way interferes with Mr Ryan’s freedom of religion. I observe, in any event, that in neither of the circumstance of the index offending or the breach of parole did Mr Ryan say he had attended the church concerned for the purpose of religious devotion.

Conditions 20 and 21 - employment, finance and education

50. I would delete the phrase, “on his own initiative” from condition 20. I would allow condition 21 which is opposed by Mr Ryan. It needs to be borne in mind that part of the explanation he gave for attending the church, the subject of the index offence and also the breach of parole, was financial need. In relation to the breach of parole, there is some material that he had exhausted his income on consumer items which led him to seek assistance from the church. It would seem to me that it is legitimate and proportionate to allow the DSO to check his financial situation should it appear necessary to the DSO.

Conditions 23, 25 and 26 - association with others

51. Mr Ryan opposes conditions 23, 25 and 26. Condition 23 is a prohibition on Mr Ryan associating with any person specified in that regard by the DSO. I am of the view that this is an appropriate condition. A person in his position may associate with persons who prove to be bad influences. I appreciate that Mr Ryan is avoidant of, especially, adult males. That does not mean that he may not associate with adult persons with interests similar to his own. I will impose the condition.

52. Condition 25 is concerned with the engagement of adult sex workers. I accept the argument that the condition is neither appropriate nor proportionate. It is true that Mr Mystakidis has identified amongst the criminogenic needs consideration that Mr Ryan may use sex as a coping mechanism. Accepting that may be correct, access to sex workers, if he chooses to do so, may have a prophylactic effect and I will delete condition 25.

53. Condition 26 relates to the disclosure of Mr Ryan’s criminal history to another person if the disclosure is reasonably necessary to address the risk of the commission of a serious offence. The main purpose of the condition seems to be disclosure to a person with whom Mr Ryan may form a romantic or sexual relationship, who is a parent of children. The condition also gives Mr Ryan the option of first making the disclosure himself. I would allow condition 26, but to restrict its scope within its intended operation, I would add after the phrase, “another person” the words “with whom the defendant is forming a romantic or sexual relationship.”

Conditions 30, 31, 32 and 37 - access to the internet

54. Mr Ryan opposes conditions 30, 31, 32 and 37. All of these conditions restrict his internet access and facilitate the DSO accessing his use of personal electronic devices to ensure compliance with other restrictions. Given Mr Ryan’s history of convictions for possessing child pornography and his use of technology for his grooming offences, I am satisfied these conditions are entirely reasonable and proportionate for the purpose of making his supervision effective.

Condition 39 - search and seizure

55. Mr Ryan has suggested an amendment to condition 39, which authorises the DSO to carry out routine searches and to seize any object located during the search. Mr Ryan suggests an amendment which conditions the exercise of the power upon the formation of a reasonable suspicion of breach of conditions or of conduct increasing the risk of commission of a serious offence. I am not of the view that the power to conduct searches should be so conditioned. The effectiveness of supervision may in part rest upon the ability of the DSO to carry out checks or searches randomly and routinely. This is especially so in respect of any computer or other electronic or communication device that Mr Ryan may be using. However, the power to seize property perhaps should be more constrained and I would add to the end of the condition the following:

“The power to seize objects is limited to objects, the possession of which involves a breach of these orders or, the possession of which in the opinion of the DSO increases the risk of the defendant committing a serious offence”.

Condition 41 - access to pornographic etc material

56. Mr Ryan wishes to modify condition 41 by excluding from its operation the viewing of pornography depicting only adults. Given the nature of the risk, I consider the modification or amendment to be reasonable and I will adopt it.

Conditions 43 and 47 – change of appearance and healthcare practitioners

57. Mr Ryan also suggests a modification to condition 43 dealing with his personal details and appearance. I am of the view, once again, the DSO being notified within 24 hours if he significantly changes his appearance is a reasonable condition and I will adopt the suggestion. He objects to condition 47 requiring him to notify the DSO of the identity and address of any healthcare practitioner he consults. I do not regard the condition as proposed by the State as being unreasonable. Co-operation with treating health care professionals is often an important management tool assisting with progress of a defendant’s supervision. I will permit condition 47 as drafted. I note again that conditions 49 and 51 have been agreed to by the parties in an amended form and may be incorporated within the conditions as now modified.

Orders

58. My orders are:

1. Under s 7(4) Crimes (High Risk Offenders) Act 2006 (NSW):

1. Appoint two qualified psychiatrists, or two registered psychologists (or a combination of both professions) to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations within 3 weeks of the date of the examination; and

2. Direct the defendant to attend the examinations so fixed;

2. Under s 10A of the said Act, the defendant is subject to an Interim Supervision Order for a period of 28 days commencing after the expiration of his sentence of imprisonment on 3 July 2023;

3. Order pursuant to s 11 of the Act directing that the defendant comply with the conditions set out in the schedule to the summons as altered or modified by these reasons for the period of the interim supervision order;

4. Order that access to the Court’s file in respect of any document shall not be granted to a non-party without leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so at to allow them the opportunity to be heard in relation to the application for access.

5. List the matter for mention before Campbell J on Friday 30 June 2023 to enable the parties to bring in agreed short minutes of order incorporating the conditions of supervision amended or modified in accordance with these reasons.

**********

Decision last updated: 28 June 2023