State of New South Wales v Stevenson (Preliminary)

[2019] NSWSC 492

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492
Hearing dates:	24 April 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Interim supervision order for 28 days with two qualified psychiatrists or a psychiatrist and a psychologist appointed to conduct separate examinations of the defendant
Catchwords:	HIGH RISK OFFENDER – serious sex offender – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – interim supervision order sought – defendant also subject to Child Protection Prohibition Order – whether matters, if proved, would satisfy Court to high degree of probability that defendant poses unacceptable risk of committing another serious offence – consideration of psychiatric reports and Risk Assessment Reports – no serious sexual offence committed since 2011 – history of breaching good behaviour bonds, parole and extended supervision orders – interim orders made
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 13(1) Child Protection (Offenders Registration) 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5(1)(a), 5B(a)-(d), 5D, 5I, 7(4), 9(2), 9(3), 10A, 11 Terrorism (High Risk Offenders) Act 2017 (NSW), s 27
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Brookes [2008] NSWSC 150 State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Jason Leslie Stevenson [2013] NSWSC 619 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Stevenson [2013] NSWSC 1070
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Jason Leslie Stevenson (Defendant)
Representation:	Counsel: Ms G E Lewer (Plaintiff) Ms S Hall (Defendant)   Solicitors: Crown Solicitors Legal Aid NSW
File Number(s):	2019/40665

Judgment

1. HIS HONOUR: This judgment arises from a preliminary hearing of an application by the State of New South Wales (the State) for an extended supervision order (ESO) in respect of Mr Jason Leslie Stevenson under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. The State seeks orders pursuant to s 7(4) of the Act for two experts to examine Mr Stevenson and provide reports. It seeks an order pursuant to ss 10A and 11 for an interim supervision order (ISO) which Mr Stevenson must comply with. It also seeks an order restricting (but not necessarily preventing) access to the Court's file.

3. Mr Stevenson opposes the making of these orders (aside from that concerning the file) and contends that the application should be dismissed.

Statutory provisions and some principles derived from case law

4. The State has complied with all of the statutory conditions for making an application for an ESO in ss 5I and 6, as well as the pre-trial procedures set out in s 7(1)-(2).

5. Following the preliminary hearing, if the Court is satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order", it must make orders appointing two psychiatrists, two psychologists, or one of each, to conduct examinations and to furnish reports to the Court on the results, and to direct the offender to attend such examinations: s 7(4) of the Act. If not so satisfied, the Court must dismiss the application.

6. The present application for an ISO is brought under s 10A of the Act. It provides that the Court may make an order for an ISO if it appears that the offender's current custody or supervision will expire before the proceedings are determined and "that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order".

7. Section 5B provides for the making of an ESO:

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.

8. It is not disputed that the requirements in (a)-(c) are established. The critical issue is that in (d): for present purposes, whether the matters alleged in the supporting documentation would, if proved, satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision under an extended supervision order.

9. Mr Stevenson does not concede that the evidence establishes to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision by an ESO.

10. Section 5D provides that a Court asked to make an ESO:

5D   Determination of risk

…is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

11. Aside from having regard to the "Objects of the Act" set out in s 3 (see below), it is important to note that s 9(2) provides:

9   Determination of application for extended supervision order

…

(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.

12. The test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn”) at [82] (Basten JA).

13. The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] (Beazley P). Those objects are:

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.

14. The degree to which the Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof: "more probably than not". It is not, however, a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

15. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at [44] and [55]-[58] (Beazley P), [128] (Basten JA), [148] (Gleeson JA).

16. I agree with what Harrison J said in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43] about the provision in s 5D (formerly in s 5B(3)):

"… [I]t is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low."

17. A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. 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].

18. The task has previously been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J). However, the test in ss 7(4) and 10A ("the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that "'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO".

19. There does not appear to be any controversy about this. What the Court is required to do is proceed upon the assumption that the facts alleged in the supporting documentation are proved and consider whether those facts would justify the making of an ESO.

The case for the State in a nutshell

20. I will shortly outline the more significant aspects of the evidence upon which the State relies, but to put it into context it is useful to understand the nature of the case the State seeks to establish. Counsel for the State said this at the hearing:

"In short form, the submission that is made on behalf of the State is that Mr Stevenson is a person who has a longstanding sexual interest in children and that he has acted on that sexual interest on a number of occasions. Because of that longstanding sexual interest, he continues to pose a risk of the commission of a serious sexual offence. In this case, that would reach fruition by committing a sexual offence involving a child. That is the unacceptable risk that the State says that Mr Stevenson poses." [1]

1. Tcpt, 24 April 2019, p 11(20).

Criminal history and chronology

21. Mr Stevenson is aged 32. The following are events from his criminal history that the State identified as relevant.

22. On 24 February 2005, Mr Stevenson was sentenced to imprisonment for 12 months for an offence of assault. The sentence was suspended upon him entering into a 12 month good behaviour bond. The Police Fact Sheet indicates that on the morning of 23 February 2005, he grabbed a 13-year-old girl as she was walking to the bus stop with one hand around her mouth and the other around her stomach. He dragged her backwards about five steps. She managed to break free, scream, and run away. Mr Stevenson was arrested later the same day. When asked by police if his intention was to abduct or sexually assault the victim, he replied, "No cause I know what would happen to me if I did, go to gaol".

23. On 18 May 2005, Mr Stevenson was sentenced to a term of imprisonment for 12 months for another assault which was also suspended upon him entering into a good behaviour bond. In the same location the week before the offence mentioned above, that is on 16 February 2005, Mr Stevenson grabbed a 7-year-old girl as she was walking home. He had his hand around her mouth and lifted her up. She yelled out to her brother and Mr Stevenson dropped her. Mr Stevenson later told police that he had just wanted the girl to talk to him.

24. On 8 June 2005, Mr Stevenson was called up for breaching the good behaviour bonds in both of those cases and was sentenced to full-time imprisonment. However, on 27 September 2006, those sentences were quashed on appeal and he was placed on further 12 month good behaviour bonds. The conditions of these bonds included: "to continue ongoing medical/sexual counselling … filter on internet service … no adult book stores".

25. On 3 March 2009, Mr Stevenson was convicted of stalk/intimidate intending fear of physical/mental harm and assault. For the former he was placed on a good behaviour bond and for the latter he received a sentence of imprisonment which was suspended subject to him entering a good behaviour bond. The conditions of the bonds included: "accept Probation Service supervision for as long as considered necessary and obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation". No details of the facts pertaining to the offences are available.

26. On 4 August 2011, Mr Stevenson was convicted for an offence of assault and imprisoned for 9 months with a non-parole period of 6 months. The police facts alleged that he made contact with a 16-year-old girl via Facebook. She came and stayed for about a week at the home where he lived with his 18-year-old pregnant wife. He engaged in consensual intercourse with the 16-year-old on a number of occasions, including within the home which was described as a "source of tension" with his wife. One day he "flew into a jealous rage" when the 16-year-old began talking to somebody on her mobile phone. When his wife prevented him from swallowing an overdose of prescription medication he tried to punch her in the stomach but she deflected the blow and protected the unborn child.

Index offences

27. On 19 August 2011, Mr Stevenson was convicted of 5 counts of sexual intercourse with a person of or above the age of 14 and under the age of 16: Crimes Act 1900 (NSW), s 66C(3). The offences were committed between 19 January and 12 February 2010. He was sentenced to imprisonment for 20 months with a non-parole period of 13 months.

28. The facts pertaining to these offences were that the offender was aged 23 and the child was aged 15. The child’s grandmother reported their relationship to the police. When interviewed by police, the child said that she "consented" to the intercourse and that it was not forced. She had told him her age when they had been communicating via the internet on MSN. After the last occasion of intercourse, she became concerned she might be pregnant and purchased a home pregnancy test. (The result was negative.) Mr Stevenson told police in a recorded interview that the child was the one that wanted sex.

29. During submissions on sentence, the magistrate observed that the victim was "approaching 16 at the time the latter offences took place". In the course of his sentencing remarks, he said:

"[T]he victim of this offence [sic – these offences] was a very willing participant and, in fact, probably could be said to have initiated your interest in having sex with her, and I do not think that is in dispute. There is certainly no issue here of your forcing herself upon her, there is no issue of consent."

30. Mr Stevenson's legal representative submitted that his Honour should find that the offences were at "the lower end of the scale" in terms of their seriousness. His Honour was mindful of the maximum penalty of 10 years imprisonment and, referring to the jurisdictional limit of the Local Court of 2 years, said he agreed with that assessment.

After the index offences

31. On 25 November 2011, Mr Stevenson was convicted of an offence of using a carriage service to menace/harass/offend. He was sentenced to imprisonment for 6 months, which was subsumed within the 13 month non-parole period for the above offences. The offence occurred on 13 June 2010.

32. The victim in this matter went to police to complain about disturbing mobile phone text messages he had received. He said he had been receiving messages from an unknown person over a dating-service social media internet site. Police determined that the unknown person was Mr Stevenson. The messages he sent included asking whether the complainant liked children and whether he wanted to play with Mr Stevenson's children. One message said, "I'll let you play with my kids if we can keep it a secret please". Another said, "Oh I have a son also. He's 10. I'll let you fuck his bum." He said he had last let someone have sex with his children a month ago. He said that he joined in; he played with his children every day; and he was "fingering" one at the moment.

33. Counsel for the State went through these facts at the hearing and said, "It doesn't appear likely that what is contained in there is true. He [did] not have access to his biological children. He didn't at that time, but it is some form of perhaps fantasy talk that he is engaging in on the internet." [2]

    2. Tcpt, 24 April 2019, p 13(25).

34. Mr Stevenson was released when the non-parole period for the sexual intercourse offences expired on 20 October 2012. He took up residence at a Community Offender Support Program (COSP) facility. On 13 November 2012, he received a warning not to associate with two co-residents, who had histories of child pornography offences, after he had been allegedly exchanging pornographic images with them.

35. On 13 November 2012, Mr Stevenson was found to have pornographic photos of a young teenage girl aged between 14 and 18 years on his phone. He also had photos of a woman holding a female child aged between 5 and 8 years. There were also two photos of his erect penis identified as having been taken in his COSP bedroom.

36. On 9 February 2013, Mr Stevenson was found to have a young homeless girl asleep in his bed at the COSP facility. She had turned 16 the previous month. She said she had met Mr Stevenson about six months before via Facebook.

37. A report was submitted to the State Parole Authority recommending that Mr Stevenson's parole be revoked as a result of the above incidents. The recommendation was accepted and Mr Stevenson returned to custody to serve the remaining 3 months of his sentence (22 February to 20 May 2013).

2013 extended supervision order

38. On 6 May 2013, the State filed a summons by which it sought an extended supervision order. Hidden J made an interim supervision order on 17 May 2013 (State of New South Wales v Jason Leslie Stevenson [2013] NSWSC 619). Mr Stevenson was subsequently examined by Dr Andrew Ellis and Dr Jeremy O'Dea, forensic psychiatrists.

39. Dr Ellis's report of 15 June 2013 includes:

"He describes having sexual fantasies about school-aged girls, particularly wearing school uniforms since he began masturbating in his teenage years. He reports that these fantasies are intrusive, in that when he is engaged in sexual intercourse with adult women he is fantasising about schoolgirls. He reports that he engages in this fantasy and masturbatory behaviour as younger girls 'like me for who I am'. He feels that older women judge him, and historically many females had hurt him by calling him 'retard'. He reports significant distress from these fantasies, and believes they are the motivation for his offending behaviour."

40. As to his sexual fantasies about school girls, Mr Stevenson said much the same to Dr O’Dea. In relation to both of the February 2005 assaults, he told Dr Ellis that he had been fantasising and "couldn't keep it in any more". He said that his attempt to grab the school girls was an attempt to initiate some kind of sexual activity with them. This stands in contrast to the report of Dr O'Dea who recorded that Mr Stevenson denied that the earlier offence was sexually motivated and said that he was unable to recall the later offence.

41. Dr Ellis made diagnoses of "paedophilia, attracted to females, non-exclusive type", "alcohol dependence disorder" and "antisocial personality disorder". He considered that Mr Stevenson "would fall into a group of persons with a risk of offending that is high, and greater than a theoretical average offender".

42. Dr O'Dea said that while Mr Stevenson only acknowledged a sexual interest in post-pubertal female children, there was evidence of a sexual interest in pre-pubescent children and homosexual paedophilic interest. He assessed the risk of committing a further serious sex offence as significantly high.

40. On 8 August 2013, Price J made an extended supervision order for a period of 4 years dating from 17 May 2013: State of New South Wales v Stevenson [2013] NSWSC 1070.

Events subsequent to the 2013 extended supervision order

44. On 30 October 2013, Mr Stevenson was arrested for breaching his ESO by way of being in the company of a 16-year-old girl and her 12-year-old sister he had met at Central railway station. He was arrested and refused bail. On 24 July 2014, he was sentenced to imprisonment for 6 months for two offences of fail to comply with ESO. He was released immediately. The period of the ESO, however, was extended by the period in which Mr Stevenson had been in custody: s 10(2) of the Act.

45. On 5 August 2017, Mr Stevenson progressed to stage 3 of the ESO whereby he was no longer required to provide a schedule of his movements. On 29 August 2017, he progressed to stage 4 whereby the requirement for electronic monitoring was removed.

46. On 7 February 2018, Mr Stevenson was arrested and charged with four offences of breaching his ESO. It was alleged that he had failed to notify his departmental supervising officer (DSO) that he was in an intimate relationship; he had befriended a person knowing they were a parent of a child under 18 without notifying his DSO; he had an association and contact with a child under the age of 18; and he failed to remain at his approved accommodation during curfew hours. The woman he befriended lived in the same unit complex and she had a daughter who was aged 4. He was sentenced for these offences to concurrent terms of imprisonment of 15 months with a non-parole period of 8 months dating from 7 February 2018.

47. Mr Stevenson was released on parole on 6 October 2018. His parole period expires on 6 May 2019.

48. The State commenced the present proceeding by filing a summons on 6 February 2019.

Statutory preconditions for making an ESO

49. Mr Stevenson has served a sentence of imprisonment for a "serious offence": s 5B(a). Sexual intercourse with a person aged 14 or above but under 16 contrary to s 66C(3) of the Crimes Act is within the meaning of that term: s 5(1)(a).

50. Mr Stevenson is a "supervised offender" in that he is currently serving a sentence of imprisonment under parole supervision in the community: s 5B(b); s 5I.

51. The application for the order was made in accordance with s 5I: s 5B(c).

Risk Assessment Reports

52. The first of a number of relatively recent Risk Assessment Reports is by Ms Kate Solomon, psychologist, Forensic Psychology Services and is dated 25 July 2017, some six months before the previous ESO was due to expire.

53. Ms Solomon noted the breach in October 2013 but said that during Mr Stevenson's "subsequent release into the community (approximately three years ago), he has demonstrated significant improvements in his compliance with supervision". Obviously unaware of the breaches that were to occur later, she wrote:

"The main risk issues for Mr Stevenson were identified as intimacy deficits, impaired general self-regulation and difficulties with sexual self-regulation. It was considered that these issues have been adequately addressed over the course of his ESO. Mr Stevenson has developed significant internal opportunities available to him over the course of his ESO.

Mr Stevenson's ESO expires on 09/02/2018 and it is not recommended that a further ESO be pursued. However, this is under the proviso that there be FACS and/or Police involvement in order to ensure Mr Stevenson is subject to ongoing restrictions with regards his partner's eight-year-old daughter."

54. A Supplementary Risk Assessment Report was provided by Ms Kate Harle, psychologist, and is dated 14 February 2018, shortly after Mr Stevenson had been charged with breaching his ESO. She noted that the High Risk Offenders Assessment Committee had decided that a further ESO would not be recommended and steps would be taken to transition him off his soon-to-expire ESO. After noting the recent arrest and refusal of bail on the breach charges, she wrote:

"Mr Stevenson appeared to be at significantly heightened risk of reoffending at the time of his arrest due to the following factors: victim access, possible sexual preoccupation and use of sex to cope, rejection of supervision, and collapse of social supports. These issues have not been resolved. It appears that supervision has contained Mr Stevenson's risk whilst on his ESO but he has failed to develop requisite internal risk management mechanisms to consistently moderate his risk of repeat serious sexual/violent offending especially when faced with difficult life events. This is evident by his recent alleged behaviour which occurred during a time of least restrictive supervision and monitoring; a brief six month transition period anticipating the expiration of his order.

Mr Stevenson's ESO was due to expire on 9 February 2018. It is considered that he presents an ongoing risk of serious sexual/violent offending if at unconditional liberty. The mitigation of future risk would be temporarily enhanced by ongoing intensive community supervision and support as has been provided under the ESO. In the event that Mr Stevenson's ESO is varied he would benefit from a period of at least 12 months further supervision to provide him a greater opportunity to manage his risk as external supervision is gradually made less restrictive. This length of supervision would allow staff to assess his response to the transition off an order in a staged manner, with opportunity to review and make adjustments to his risk management plans as required."

55. Ms Harle combined a Static-99R assessment made by Mr Patrick Sheehan, psychologist, in 2012 (which she said would be unchanged without any new sexual offences) and a Stable-2007 assessment made by Ms Solomon in July 2017, which yielded a result indicating that Mr Stevenson was considered "Above Average Risk". Ms Harle thereby estimated that his current risk current (as at 14 February 2018) was "at least Above Average Risk".

56. One of the "Acute Dynamic Risk Factors" discussed in Ms Harle's report was "victim access". Pertinent to this, she characterised Mr Stevenson's relationship with his female neighbour in 2017-8 as being in the nature of predatory grooming in order to obtain access to a pre-pubescent (4-year-old) girl. For example, she wrote:

"This contact occurred in the child's own home, was repeated and involved actively engaging with the child including playing and talking to her. Mr Stevenson appears to have instigated contact with the mother knowing she had a small child and he appears to have engaged in behaviours which may be interpreted as grooming (e.g., ingratiating himself to the child's mother by talking about the child, offering favours, buying gifts, and offering to take them both to the circus)."

57. In relation to Ms Harle's characterisation of this offending, I note that while the sentencing magistrate said that the behaviour was "consistent with grooming-type behaviour", he explicitly declined to find that it in fact was. I note that counsel for the State's submissions included that "the child was apparently a very young child and the gravamen of the offending related more to the relationship with the child's mother". In the course of referring to the 2018 ESO breach offences, counsel said in oral submissions:

"There is no suggestion in that material that there was any sexual component to that offending. The defendant has no real history of any sexual interest in a toddler aged child. The youngest appears to be the seven year old from that common assault [in 2005] … Most are post-pubescent female girls." [3]

3. Tcpt, 24 April 2019, p 15(20).

58. Mr Samuel Ardasinski, psychologist, provided a further Supplementary Risk Assessment Report dated 8 November 2018, in anticipation of a further ESO application being made by the State.

59. Included in the report is a review of the previous risk assessments by way of predictive actuarial tools. In summary, the results were:

●   Level of Service Inventory – Revised (LSI-R): within the low-medium risk category for general and violent offending.

●   Static-99R: administered once in 2011 and twice in 2012, each resulting in an assessments of "high risk category" (as it was formerly called).

●   Risk of Sexual Violence Protocol (RSVP): administered in 2012 and in 2013, each resulting in an assessment of "high risk category for repeat sexual violence".

●   Stable-2007: scored in 2017 by Ms Solomon "suggesting a moderate density of criminogenic needs relative to other male sexual offenders". Mr Ardasinski noted that the sole area of clinically significant concern in relation to this assessment was "Capacity for Relationship Stability".

60. Mr Ardasinski re-administered the Static-99R and obtained a result that would previously have been described as "High risk category relative to other male sexual offenders" but is now referred to as "Well Above Average risk, or Level IVb". This placed Mr Stevenson in the highest risk category.

61. Another tool deployed by Mr Ardasinski was the Static-2002R. The result suggested that Mr Stevenson’s risk of recidivism exceeded the "typical" sex offender by seven times.

62. The limits upon which results such as these can be interpreted are relatively well-known in the Court's experience of dealing with high risk offender cases. Mr Ardasinski provides some discussion of this in his report. At best, they are an estimate, as it is not scientifically possible to accurately predict whether an individual offender will or will not actually reoffend. However, Mr Ardasinski also noted that "for an offender such as Mr Stevenson who scores in the highest risk category on almost all actuarial risk measures undertaken, the clinical confidence that he is 'truly' high risk is necessarily improved". However, caution is required, as the re-offending risk being assessed is general and not confined to that which would be described as a "serious offence" under the Act.

63. Mr Ardasinski identified the following relevant, or potentially relevant, dynamic factors when considering Mr Stevenson's risk of sexual re-offending:

●   Sexual preoccupation and "need" for sex.

●   Sexual offending has been planned, rather than spontaneous.

●   Mr Stevenson continued to blame the victim of his index offences for lying about her age.

●   Poorly regulated emotions as a result of his personality disorder.

●   Poor insight into his mental status and into his risk factors.

●   Clear sexual offending cycle which links to flagging self-esteem.

●   Although mostly compliant, he has breached his ESO on two occasions.

●   Intimacy deficits.

64. Mr Ardasinski's opinion as to Mr Stevenson's overall risk was stated as follows:

"The overall totality of evidence suggests that Mr Stevenson continues to present a risk of further serious sexual offending if not made subject to an ESO. His risks are less than they were in 2013 when his ESO was originally ordered, but they have not abated to the extent that Mr Stevenson can likely exist in the community without resorting to maladaptive coping strategies and high-risk situations which may precede criminal behaviours if he does not manage his risks."

65. In the course of expressing his more detailed conclusions, Mr Ardasinski noted that Mr Stevenson would continue to be subject to the Child Protection Register and a Child Protection Prohibition Order ("CPPO") made on 5 February 2018 under the Child Protection (Offenders Prohibition Orders) Act2004 (NSW). That order is operative for the maximum 5 year period until 2023. It includes conditions with the effect that he is to have no contact with anyone under the age of 18 and he cannot befriend any person who he knows has responsibility for a child under the age of 18.

66. I note that contravention of the CPPO would place Mr Stevenson at risk of imprisonment for up to 5 years: Child Protection (Offenders Prohibition Orders) Act, s 13(1).

67. Mr Ardasinski discussed these matters and then concluded his report with the following observations:

●   It is possible that Mr Stevenson could remain offence-free without a further ESO.

●   The stringent conditions of his former ESO have been adequate in containing his risk to date.

●   It is possible that an ESO with few conditions could also contain his risk.

●   It would remain necessary to restrict his access to children and his phone and social media use would need careful monitoring.

●   There are ongoing risks relating to his attachment deficits and resultant personality dysfunction which continue to render him capable of opportunistic sensation-seeking from teenagers and young adults to improve his self-esteem.

●   Were he to encounter a vulnerable person, such as a teenage female, in such a state, and were he to sexualise that young person, the possibility of a further serious sexual offence remains a risk.

68. I note that on 11 December 2018, the CPPO was varied (unusually, but significantly) upon Mr Stevenson's application, so as to add conditions that he not access any form of social media and that he is to permit police to inspect his phone or other electronic devices. (I note Mr Ardasinski reported that Mr Stevenson said, "Social media was his risk factor".)

Other factors in s 9 of the Act

69. The submissions for the State addressed various factors in ss 9(2) and 9(3) of the Act that the Court is required to consider, in addition to any other matter it considers relevant, when determining whether or not to make an ESO. They are relevant to the question whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": ss 7(4); 10A(b). The following are matters that appear significant but which have not been previously discussed.

Safety of the community: s 9(2) of the Act

70. Safety of the community is the paramount consideration in the determination of whether or not an ESO should be made: s 9(2). The Crown pointed to the fact that Mr Stevenson has not been in the community without supervision since 2005. He was found to present a sufficiently high level of risk in the 2013 ESO proceedings such that the opinions of Drs Ellis and O'Dea as to the need for management and supervision were accepted. The State submitted that the question is whether the risk posed by Mr Stevenson has sufficiently abated since that time. I would prefer to formulate the question as being concerned with Mr Stevenson's perceived level of risk now, regardless of what it was thought by others to be in 2013.

71. The State referred to the events subsequent to the making of the ESO in 2013. Mr Stevenson was twice convicted and sentenced for breaching the order. The first breach involved him having contact with teenage girls, a particular risk factor for him. Thereafter he proceeded well and was progressed down to stage 4 of supervision but he then began a relationship with a woman who had a young child which involved him committing further breaches of the order.

72. The State accepted that Mr Stevenson has been compliant with his parole obligations since being released last October. Despite this, the State submitted that he "continues to remain at acute risk of relapse". It was submitted that the parole period of 7 months is "insufficient to properly reintegrate him and manage the risk posed". The issue raised here is what Mr Stevenson is at risk of relapsing into; is it into the commission of a further serious sex offence (as defined in the Act)?

Offender's criminal history: s 9(3)(h) of the Act

73. The State accepted that Mr Stevenson has been convicted in respect of only one incident of serious sexual offences, albeit constituted by five offences. It acknowledged that from the sentencing magistrate's remarks, they "are not serious examples of such offending". I have previously noted the magistrate's finding that the offending was at the lower end of the scale of seriousness for such offences.

74. However, the State submitted that Mr Stevenson has been convicted of a number of other lesser offences which demonstrate "disturbing behaviour with, and regarding, children". This was a reference to the assaults against two children in 2005 and the assault of his 18-year-old wife in 2011 which was related to his sexual activity with a 16-year-old girl. (I interpolate that this offence by itself was not sexually motivated: see the description of it above at [26].) Reference was also made to the use carriage service offence involving discussion of sexual acts with children, including offering his own children for sexual activities with an adult male. It is to be recalled that counsel for the State conceded that this was likely to be a fantasy.

75. The State also referred to the six offences of breach ESO conditions, two in October 2013 and four in February 2018. The State noted that all of them related to contact with children, albeit the 2018 offences were more concerned with Mr Stevenson’s relationship with the mother of a 4-year-old child.

76. Although they did not amount to offences, the State also referred to the events concerning teenage girls that related to his parole being revoked in 2012 (see above at [37]).

77. The State's submissions in relation to Mr Stevenson's criminal history concluded as follows:

"Other than the breach offences, it is conceded that it has been some years since the defendant committed an offence, including an offence with any sexual element. The last was the use carriage service offence which was committed by the defendant about 7.5 years ago. The only serious sex offences were committed more than 9 years ago. The last time he apparently had any (lawful) sexual relationship with a young female was more than eight years ago (whilst on parole)."

Treatment and rehabilitation of the offender; Options available to reduce risk: s 9(3)(e) and (e1)

78. Mr Stevenson completed a Self-Regulation Program – Sexual Offending whilst in custody prior to the imposition of the ESO in 2013. The State summarised the treatment report as suggesting that he had minimal insight into his offending and, while he superficially engaged well with treatment, he was unable to apply the content of the program to his own behaviour. Nonetheless, the State accepted that Mr Stevenson had completed the program successfully.

79. From 2014 until 2018, Mr Stevenson continued his treatment in the community with Forensic Psychology Services (FPS). The State referred to the FPS notes as suggesting that he generally participated and did all that was required of him. As at July 2017 he was said to be "managing his risk of reoffending", but that was of course before the 2017-18 breach offences.

80. Mr Stevenson has continued seeing FPS since his release on parole last October. Unfortunately there is little information available as to his progress but the State's submissions accepted that he "appears to be compliant and is seeking help".

81. In relation to further reducing risk, the State noted that Mr Stevenson may have also engaged, or be engaging, in other treatment including with a psychiatrist, psychologist, and Alcoholics Anonymous. Further, Mr Ardasinski noted that intervention via FPS and a private psychologist "may benefit him, in order that adequate attention is paid to his maladaptive personality traits".

82. A Risk Management Report signed by Ms Erin Kirkwood and Ms Janelle Farroway on 4 December 2018 provides details as to the proposed management of the risks identified in Mr Ardasinski's Risk Assessment Report.

Consideration

83. In 2013, Dr Ellis was of the view that a four year period of supervision was appropriate after which "a more informed appraisal of future risk in progress could be made". He added that Mr Stevenson's "psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point".

84. At the same time, Dr O'Dea was of the view that "Mr Stevenson's risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community, is likely to be relatively long term and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration, but should be regularly monitored and reviewed every 6 to 12 months dependent on his progress."

83. Price J accepted the opinion of Dr Ellis in determining a period of four years for the ESO he imposed: State of New South Wales v Stevenson at [40].

84. The State accepts that Mr Stevenson "hasn't committed an offence with any sexual element since 2011 and the last account of concerning sexual behaviour with teenage girls, albeit of age, was when he was released to parole, that is 2012, 2013". [4] It also accepts that Mr Stevenson has made significant progress in the years since the ESO was made in 2013. Counsel conceded that "it's not the case that the risk he poses is what it was in 2013". [5] This is reflected in the fact that the State is now only seeking an ESO for a period of 12 months; I have not encountered such a relatively short duration before.

    4. Tcpt, 24 April 2019, p 17(45).

    5. Tcpt, 24 April 2019, p 19(42).

85. However, the State maintains that it is not safe to draw an inference that the risk is lowered to a level at which supervision is not necessary to manage an unacceptable risk of the commission of a serious sex offence. [6]

    6. Tcpt, 24 April 2019, p 19-20.

86. The fact that Mr Stevenson is the subject of registration under the Child Protection (Offenders Registration) Act2000 (NSW) and of an order made under the Child Protection (Offenders Prohibition Orders) Act is a significant protective factor. Those measures provide for a level of oversight, albeit nowhere near to the extent of supervision and monitoring pursuant to an ESO, and they also provide a disincentive for Mr Stevenson to engage in behaviours giving rise to a risk of further serious sex offending. Mr Ardasinski had regard to these matters but was, however, still of the view that there remained the risk of Mr Stevenson committing a further serious sexual offence.

87. The submissions on behalf of Mr Stevenson, and the evidence upon which he relies, point to a number of matters that militate against the making of an ESO. The evidence was not the subject of any challenge. It includes a number of features warranting a conclusion that he has made substantial progress in terms of reintegration following his release on parole last October. Mr Stevenson has seemingly stable and secure employment; he has formed a new relationship with a partner who is supportive and the relationship does not involve the risk of contact with children; he is regularly attending AA meetings; he has a therapeutic relationship with Dr Mark Milic, psychologist; and he has regular contact with his family who live in a regional area and who he visits when able.

88. The fact that it was Mr Stevenson who applied for the variation of the CPPO to, in effect, bar himself from accessing social media is another positive factor. Counsel submitted, and I accept, that this "demonstrated a degree of maturity and a degree of insight into … what his risk factors are". [7]

    7. Tcpt, 24 April 2019, p 29(40).

89. One aspect of life in which Mr Stevenson is not presently settled is in accommodation. To date, he has not been approved to live with his partner which is something that is the cause of financial hardship and the frustration of having to seek approval every time he wishes to visit her. Counsel for the State said there was a concern that any relationship not move along too quickly because the breakdown of relationships in the past has led to Mr Stevenson turning his interest to teenage girls. [8] She added, however, that "it is not clear necessarily why cohabiting is in a different category to otherwise having a relationship", noting that he is permitted to visit his partner every day. [9] She confirmed in her submissions in reply that the address of Mr Stevenson's partner has been the subject of vetting and it has been found to be suitable in terms of its physical location. [10] This issue is something that could potentially be counterproductive in causing stress and anxiety; it requires serious reconsideration by those charged with Mr Stevenson's supervision.

    8. See, for example, Exhibit A, p 610.

    9. Tcpt, 24 April 2019, p 27(30).

    10. Tcpt, 24 April 2019, p 35(50).

90. It was submitted that there are questions as to the accuracy of Mr Ardasinski's risk assessment; for example, the way he scored Mr Stevenson on the Static-99R instrument, leading to a result which was higher than what he had scored under the same instrument in 2011 and 2012. That is true, although counsel for the State pointed out that all of the scoring resulted in Mr Stevenson being assessed in the high risk category.

91. It is necessary at this preliminary stage to assume that the matters alleged in the material relied upon by the State are proved. It is not my function to determine whether the opinions expressed about Mr Stevenson’s risk of committing a further serious sex offence should be accepted. Even if those opinions are accepted at a final hearing, the Court retains a discretion as to whether an order should be made. That consideration has to be put aside; at the moment the Court is only concerned with whether the matters alleged would justify the making of an ESO.

92. I have had particular regard to Mr Ardasinski’s risk assessment, his identification of dynamic risk factors, and, to some extent, the cumulative effect of the various actuarial assessments he collated (noting that they are not specific in terms of risk in relation to "serious sex offending"). I have also had regard to the strength of the opinions expressed by Dr Ellis and Dr O'Dea as to the long term and significant risk they each assessed, albeit in 2013.

93. Adopting the terminology of s 7(4) and s 10A of the Act, I am satisfied that the matters alleged in the material relied upon by the State would, if proved, justify the making of an extended supervision order. Whether such matters would be proved, and even if so, whether the Court would, in the exercise of its discretion, make an ESO, are entirely different matters. Having regard to the various factors relied upon by counsel for Mr Stevenson, it may well be the case that the Court would decline to make an order; but that remains to be seen. That determination will be further informed by such additional material as may be placed before the Court, including reports by the two experts who are to be appointed.

Conditions

96. There was opposition to conditions relating to schedules of movements and electronic monitoring. Mr Stevenson is presently subject to such conditions pursuant to his parole. I accept that he finds these frustrating but it seems appropriate to continue with such a regime for the period of the interim order.

97. There was also an objection to a condition requiring prior approval of accommodation and related conditions. I have previously indicated that the issue of Mr Stevenson not being permitted to live with his partner should be seriously reconsidered. However, I consider that these conditions should remain because of the need to vet any accommodation in relation to proximity to children.

98. The conditions prohibiting association with people who are consuming alcohol or drugs, or are under the influence of same, will be amended to insert a knowledge proviso (i.e. to insert "who he knows, or should reasonably know" into proposed conditions 28 and 29).

Orders

99. The following orders are made:

1. An order pursuant to ss 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

a.   appointing two qualified psychiatrists or a psychiatrist and a psychologist to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

b.   directing the defendant to attend those examinations.

2. An order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from the date of the order for a period of 28 days; and

3. An order pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule to the Summons (as amended in accordance with [98]) for the duration of the interim order referred to in order 2 above.

4.   An order restricting access to the Supreme Court’s file in respect of this proceeding such that access is only be permitted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party’s application for access and have been afforded an opportunity to be heard.

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Endnotes

Decision last updated: 03 May 2019