State of New South Wales v Strong by his tutor Ainsworth (Final)

[2018] NSWSC 1438

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Strong by his tutor Ainsworth (Final) [2018] NSWSC 1438
Hearing dates:	26 September 2018
Decision date:	03 October 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Extended supervision order for a period of 5 years with conditions
Catchwords:	HIGH RISK OFFENDER – extended supervision order – whether Court satisfied to high degree of probability that offender poses unacceptable risk of committing another serious offence if not kept under supervision – offender convicted of sexual assaults – offender diagnosed with schizophrenia and substance use disorder – subject to Guardianship order – offender at high risk of committing another serious offence.
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Guardianship Act 1987 (NSW)
Cases Cited:	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 Kamm (Final) [2016] NSWSC 1 State of New South Wales v Strong [2016] NSWSC 1041 State of New South Wales v Strong, Robert [2018] NSWSC 1113
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Robert Strong by his tutor Frank Ainsworth (Defendant)
Representation:	Counsel: Ms D New (Plaintiff) Ms A Hawkins (Defendant)   Solicitors: Crown Solicitor’s Office Legal Aid NSW
File Number(s):	2018/163005

Judgment

1. HIS HONOUR: The State of New South Wales applies for an extended supervision order (ESO) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) in relation to Robert Strong.

2. Mr Strong was born in 1959 and is now aged 59. He has spent very little of his adult life in the community because of his extensive history of sexual offending. He also has an intellectual impairment and a history of mental illness (schizophrenia and substance use disorder).

3. Mr Strong appears by way of a tutor. He is subject to a Guardianship Order under the Guardianship Act 1987 (NSW) which was made by the Civil and Administrative Tribunal of New South Wales on 19 June 2018. A referral has been made to the National Disability Insurance Scheme on behalf of Mr Strong but there is no evidence at the moment as to whether any action has resulted.

4. The summons instituting these proceedings was filed by the State at a time when Mr Strong was coming to the end of a two-year continuing detention order that had been made by Harrison J in 2016: State of New South Wales v Strong [2016] NSWSC 1041. That order followed a sentence of 6 years 3 months that Mr Strong served for an offence of sexual intercourse without consent. He served the entirety of that sentence without being granted parole. The sentence expired on 15 May 2016.

5. Mr Strong did not wish to be heard in opposition to the making of an ESO. It remains, of course, for the Court to be satisfied that one should be made.

The legislative framework

6. The statutory conditions in ss 5I and 6 of the Act for the State to make an application for an ESO are all met.

7. The pre-trial procedures set out in s 7 have been complied with. Latham J presided at the preliminary hearing and was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: State of New South Wales v Strong, Robert [2018] NSWSC 1113 (the preliminary judgment). As a result, pursuant to s 7(4) she made orders appointing two experts to examine Mr Strong and to provide reports to the Court and she directed Mr Strong to attend those examinations. Reports are now to hand from Dr Emma Collins, clinical and forensic psychologist, dated 27 August 2018 and Dr Jeremy O'Dea, forensic psychiatrist, dated 4 September 2018.

8. An ESO may be made if the matters in s 5B are established. The matters in s 5B(a)-(c) are pre-requisites and there is no dispute that they are each established. The matter in s 5B(d) is the principal matter for determination: whether "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" an ESO.

9. Pursuant to s 5D the Court "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".

10. The Court is required to take into account the matters listed in s 9(3) in addition to any other matter it considers relevant.

11. Another mandatory aspect is the provision in s 9(2) that, "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. An ESO may be made for a period of up to 5 years: s 10(1A).

13. An ESO may direct an offender to comply with such conditions as the Court considers appropriate, including (but not limited to) directions requiring the offender as to certain matters listed in s 11.

Some principles derived from case law

14. 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).

15. 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."

16. The Court must be satisfied that the likelihood of Mr Strong committing a further serious offence is higher than the civil standard of proof; it is "beyond more probable than not" but it is not 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].

17. Latham J had regard to the provision in s 5D (see above at [9]). She noted what Basten JA said in Lynn at [126] that:

"The nature of the risk …. had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders."

18. 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).

19. Harrison J observed 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."

20. Basten JA in Lynn (at [129]) described as "the second step" a determination of what conditions may be imposed "with the purpose of diminishing the risk to an acceptable level". He described this as involving a "balancing" exercise; "the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective". Gleeson JA agreed (at [149]), saying that "consideration of the possible intrusions on the offender's liberty and privacy are appropriately taken into account" in deciding what conditions may be imposed and, in the result, whether an order is otherwise appropriate.

The evidence

The index offence

21. It is unnecessary, for reasons I will mention shortly, to discuss all of the evidence in the case. However, it is worth noting the circumstances of what has been referred to as Mr Strong's index sex offence. It occurred in February 2010. After a night out socialising and drinking he returned to a house with his 29-year-old niece and her friend. The latter two went to sleep. His niece woke sometime later to find that her clothing had been removed and that Mr Strong was having penile/vaginal intercourse with her. She reacted in horror and he desisted immediately. When the victim's friend asked him what he had done he apologised several times and then left the premises. This is the offence for which Mr Strong received the sentence of 6 years 3 months mentioned earlier.

Other evidence

22. Much of the evidence tendered in this hearing was also tendered in the preliminary hearing before Latham J. Her Honour provided useful summaries of much of it in her judgment and I simply refer to that without repeating it.

23. In relation to Mr Strong's extensive criminal history of sexual offending, see the preliminary judgment at [12].

24. In relation to the various psychiatric and psychological evaluations of Mr Strong that have been carried out since he was first incarcerated in the late 1970s, see the preliminary judgment at [13]-[28].

25. Her Honour referred to assessments of the risk of Mr Strong committing a further serious sex offence ([29]-[32]). She noted that the reports indicated that he "continues to pose an overall high risk of sexual reoffending relative to other male sex offenders". She also said (at [32]):

"The statistical assessment of Mr Strong’s risk of reoffending is assessed at 8 which is “well above average risk”, and 5 times higher than that of the typical sex offender. This may have changed since the test was carried out in 2015, on the basis that Mr Strong has been on antilibidinal medication and has maintained stable mental health. Mr Ardasinski maintains that Mr Strong remains a high risk overall."

Report of Dr Emma Collins, 27 August 2018

26. Dr Collins interviewed Mr Strong in her rooms on 17 August 2018. She also reviewed a substantial volume of material with which she was briefed. Her report is very comprehensive and useful.

27. In relation to the assessment of Mr Strong's risk, Dr Collins noted the following opinions had been expressed by experts over the past 12 years:

“Mr. Strong’s risk for sexual recidivism was assessed as falling into the high category (e.g., McElhone, 26/05/06; Baird, 18/03/11; Langton, 02/05/14 & Ardasinski, 14/08/15) using the Static-99 and its updated and current version, Static-99R. Mr. Strong’s sexual preoccupation and sex drive were noted as significant dynamic risk factors, in addition to limited intimate relationship history and significant episodes of boredom (Baird, 18/03/11). Sexual deviance was identified as a significant risk factor with regards to sexual recidivism (e.g., Ellis, 10/05/16). Mr. Ardasinski commented that Mr. Strong’s offending against strangers, family and passing acquaintances meant it would be difficult to ‘predict a clear offence pathway or potential reoffence’ (Ardasinski, 14/08/15 p.2). He opined that ‘the overall totality of evidence suggests that Mr. Strong falls in the high risk category of sexual and other criminal offending relative to other adult male sexual offenders’ (p.23). In 2018, Mr. Ardasinski also applied the Static-2002R, and he noted that Mr. Strong’s risk fell in the well above average risk or level IVb (Ardasinski, 28/03/18). He commented that individual’s risk with a score of eight are ‘estimated to be five times higher than that of the ‘typical’ sex offender’ (p.10).”

28. Mr Strong was released from custody on 28 July 2018 and has since been living in a community offender support program facility. He gave an account to Dr Collins of a typical day which comprises such activities as watching television, going to the local shops, going for a walk, and speaking with his mother on the telephone. He has regular contact with his ESO supervisor who plans and approves various visits and trips for him.

29. Mr Strong told Dr Collins that he has remained abstinent from substance use since his release from custody. He claimed that he had not had a drink for eight years. He spoke of someone offering him a drink recently which he described as "tempting" but he declined. He said that he last used drugs in custody, buprenorphine and marijuana on his birthday in June. He also told Dr Collins that he did not have any sexual urges (he is on anti-libidinal medication, although he told Dr Collins he was not).

30. Dr Collins spoke with Mr Strong's departmental supervising officer ("DSO") and it became apparent there were some discrepancies in the account Mr Strong was providing. For example, he had told his DSO that he had last used drugs in January and that he is on anti-libidinal medication. Dr Collins expressed concern at the potential for Mr Strong to lapse in relation to substance use. I note that in an affidavit sworn by Mr Strong's DSO (see below) there is no suggestion to date of any lapse.

31. Dr Collins administered some tests but also had regard to prior intellectual assessments. She found Mr Strong's executive functioning was "poor". His attention was also very poor. It appeared that his true memory functioning was significantly lower than what is anticipated by his IQ. There appeared to be evidence of cognitive decline, possibly as a result of head injury or the effects of substance abuse, or most likely perhaps a combination of both. The significance of this in relation to day-to-day functioning included that he is likely to pay very little attention to instructions.

32. Dr Collins approached the task of assessing Mr Strong’s risk of further sexual offending by the use of actuarial tools and by identification of dynamic risks. She expressed the usual cautions that are mentioned in relation to such an exercise. The Static-99R instrument results led Dr Collins to concur with an assessment made in 2011 that Mr Strong was in the "well above average risk level (IVb)" for being charged or convicted of another sexual offence. Dr Collins said:

“Given his high score, I have chosen to compare Mr. Strong to the high risk/need group when estimating five-year sexual recidivism rates. The rate of sexual recidivism for offenders with a score of eight was between 29 and 45%.”

33. Dr Collins agreed with an assessment made earlier this year with the Static-2002R instrument that placed Mr Strong in the 96th percentile. Persons with such a score on this instrument are estimated on average to have a sexual recidivism rate five times the rate of offenders in the middle of the risk distribution. In the high risk/need group, the five-year rate of sexual recidivism for offenders with such a score was between 25 and 39%.

34. So, Dr Collins found that on both instruments Mr Strong had a "well above average static risk".

35. Dr Collins applied the Risk of Sexual Violence Protocol (RSVP). A lengthy list of risk factors for Mr Strong were identified:

Long history of sexual offending – 1975 to 2010.

Diversity of sexual offending – alone or in company; victims of varying ages; activity including stalking, breaking and entering, exposure, indecent assault and rape.

Physical coercion during some offences.

Some history of attitudes supportive of sexual violence, although no recent, clear evidence of same.

Limited self-awareness.

Problems resulting from child abuse (exposure to alcoholism and an environment where violence was condoned).

Sexual deviance, including diagnosis of paraphilic disorder.

Well-established history of major mental illness.

Substance use – with recent drug use and temptation to consume alcohol.

No engagement in employment although working recently in custody.

Prior history of violent and suicidal ideation – although not assessed as currently relevant.

Long history of problems with intimate relationships.

Limited personal supports beyond a few family members and acquaintances from gaol.

Prior non-sexual criminality, although no such recent offending.

Limited ability to engage and make effective gains from treatment.

Historical problems engaging in supervision, although currently engaged with his DSO (yet to demonstrate stability in supervision given recent release from custody).

36. The submissions of counsel for Mr Strong referred to a shorter but similar and still significant list of risk factors in a report of Mr Samuel Ardasinski, psychologist, of 28 March 2018. She commented that Mr Strong "does not have the ability to address any of these factors without assistance".

37. Dr Collins concluded the risk assessment section of her report as follows:

“The combination of static and dynamic factors indicates that Mr. Strong’s risk of sexual recidivism falls in the well above average level. It is acknowledged that age can reduce risk over time, and this may be the case for Mr. Strong. However, there is no evidence to support that hypothesis as yet given his recent release into the community, meaning he has not as yet had time to demonstrate stability. Furthermore, Mr. Strong’s risk could change rapidly, particularly if substance abuse or a deterioration in mental health occurs, and therefore he requires intensive and regular monitoring. Risk management will need to match the level of risk present, which as noted above is significant.”

38. She concluded overall:

“It is my opinion that Mr. Strong is a high risk sex offender and there is potential that he may commit a serious sexual offence in the future. He may also commit a ‘non-serious’ sexual offence; there is no way to estimate the likelihood of either given the interplay of substance misuse and/or clinical symptoms with underlying sexual deviance. It is possible that Mr. Strong’s advancing age may reduce risk, but this remains an untested hypothesis given his recent release from custody. The only way to establish this is Mr.

Strong’s ongoing, future stability in the community, and this should be managed through close, rigorous monitoring of his ongoing adjustment.”

39. Dr Collins was asked to comment upon the proposed conditions of an ESO and of the duration of the order, if made. She agreed that all of the conditions were appropriate but made the following additional comment in relation to the proposed electronic monitoring:

“It is my suggestion that some additional commentary regarding Mr. Strong’s movements may be beneficial. I have suggested at paragraph 67 that his movements be randomly monitored for verification (an ESO member goes to the location where Mr. Strong is due to be according to electronic monitoring or as pre-arranged). This should occur as soon as possible, particularly in monitoring whether he associates with other individuals drinking in the park for example. As an alternative, regular review of electronic monitoring records should occur to assess where Mr. Strong goes during walks and whether he does associate with individuals drinking in the park.”

40. As to the duration of an ESO, Dr Collins said (somewhat confusingly):

“I am of the opinion that a shorter ESO period as opposed to a longer period is best at the present time. To be clear, I hold the view that Mr. Strong requires long-term intensive supervision. However, given there is some potential for deterioration or indeed stability in Mr. Strong’s case over the next couple of years given his recent release into the community, I suggest that a period of at least two years should be applied.” (Emphasis added)

41. That assessment of "at least two years" is to be compared with Dr Collins having also said that a relapse in substance use could have a profound impact on risk and a deterioration in mental health and/or non-compliance with treatment would significantly elevate risk. She then said:

"Given Mr Strong's already high risk level, I am of the view that Mr Strong's risk could not be safely managed in the community should any of the aforementioned factors change. Lastly, it may be that age actually decreases the risk of sexual recidivism in Mr Strong's case; however, this can only be tested the longer he remains offence free in the community. Hence, the next few years are critical in establishing whether Mr Strong's risk has changed at all, pending how he progresses in the community." (Emphasis added)

42. Finally, Dr Collins said that she thought Mr Strong would struggle to engage in psychological treatment programs; she did not believe there is much merit in him accessing offence-specific treatment or programming. She thought it may be beneficial for him to receive drug and alcohol intervention, with some basic strategies regarding maintaining abstinence repeatedly reviewed with him.

Report of Dr Jeremy O'Dea, 4 September 2018

43. Dr O'Dea saw Mr Strong in his rooms on 13 and 20 August 2018 and, like Dr Collins, he was also briefed with a large volume of documentary material.

44. Dr O'Dea's report is also very comprehensive and useful. He summarised at length much of the defendant's criminal history and other matters in the documentary material.

45. Dr O'Dea considered that Mr Strong "suffers from a major psychiatric illness, namely a severe chronic treatment resistant Schizophrenic illness, complicated by a long and significant history of Poly Substance Use Disorder."

46. Dr O'Dea said the following about the risk of further offending:

“106. …, Mr Strong will require to engage in successful long term treatment of his schizophrenic illness, with significant and enduring improvement in at least his positive symptoms of schizophrenia; will require to remain totally abstinent from alcohol and illicit substance use in the long term; and will be required to exercise good control over his sexual behaviour in the long term, if he is to adequately manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term, and if he is not to pose a significant, and potentially unacceptable, risk of committing a further “serious offence” (as defined in Section 5 of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term.

107. Whilst predicting future behaviour is difficult, with significant margin for error, on the basis of Mr Strong’s reported history of repeated significant sex offending, in the context of an extensive history of Poly Substance Use Disorder, a severe chronic treatment resistant schizophrenic illness, with limited response to treatment to date, and an antisocial personality, and poor insight, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, with this risk the appropriate focus of specific and structured risk management in the community in the long term.”

47. Dr O'Dea indicated a preference as a psychiatrist to make a clinical judgment as to risk rather than to rely upon the tools that were used by Dr Collins (Static-99R, Stable-2007 or RSVP). (I note that such tools are commonly used by many court-appointed experts in cases such as these.) Dr O'Dea then further explained his assessment of the risk of Mr Strong committing a further serious sex offence as follows:

“119. With this in mind, from a full clinical psychiatric risk management perspective, Mr Strong’s risk of engaging in further sex offending behaviours in the community in the long term would seem to be considered significantly high, particularly if he were not to respond further to psychiatric treatment and/or were to resume alcohol and/or illicit drug use in the community in the long term, with this risk appropriate for specific psychiatric treatment as outlined above.

120. More specifically, it would seem reasonable to consider that there would be a high degree of probability that Mr Strong would pose a significant, and potentially unacceptable, risk of committing a further “serious offence” (as defined in Section 5 of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if these above outlined treatment interventions were not successfully implemented in the context of community supervision and monitoring. Whilst it is not possible, or clinically appropriate from a psychiatric perspective, to place a percentage likelihood of Mr Strong committing a further ‘serious violence offence’, the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in ‘Tillman v Attorney General for New South Wales [2007] NSWCA 327’.”

48. Dr O'Dea did not consider that the conditions of an ESO as set out in the schedule to the summons would interact adversely with his Guardianship Order or any potential Community Treatment Order (CTO), nor interact adversely with his capacity for complying with orders from different agencies. He continued, however, by indicating a preference that Mr Strong first be admitted to a secure forensic psychiatric facility:

“116. Whilst, if successfully implemented, this combination of treatment, supervision and monitoring may prove effective in managing Mr Strong’s risks, I would consider that admission to a secure forensic psychiatric facility, such as the Forensic Hospital of a medium secure forensic psychiatric facility, under the provisions of the New South Wales Mental Health Act, for further treatment of his schizophrenic illness, would be indicated at this stage. Mr Strong’s current positive symptoms, negative signs and cognitive impairment, related to his severe chronic treatment resistant schizophrenic illness, is likely to impact adversely on his ability to successfully manage and benefit from such a community treatment, management and supervision program at this stage.

117. Whilst in a secure psychiatric facility, Mr Strong should undergo a trial of Clozapine (an antipsychotic medication indicated for use in patients with severe chronic treatment resistant schizophrenia as a medication that may further improve the symptoms and signs of schizophrenia), that should be implemented in addition to the depot Risperidone and Depot Provera, aimed at further improvement in Mr Strong’s schizophrenic illness. Whilst Mr Strong’s prognosis remains guarded, and his admission to a secure psychiatric facility is likely to be longer term, if his schizophrenic illness were to improve to a satisfactory level, then implementation of the above CTO in conjunction with an ESO may be more appropriate, and potentially more successful. Whilst a trial of Clozapine may be undertaken in the community, in Mr Strong’s case, it may more appropriately be undertaken in a secure psychiatric facility at this stage.”

49. As to the duration of an ESO, Dr O'Dea was of the view that "any appropriate risk management program implemented should be long term and at least of 5 years duration".

Evidence of Departmental Supervising Officer, 5 September 2018

50. Mr Terry O'Brien has been Mr Strong's Departmental Supervising Officer (DSO) since he was released at the expiration of the Continuing Detention Order on 28 July 2018. He has met with Mr Strong on a weekly basis.

51. Mr O'Brien provided an account of Mr Strong living at the Nunyara Community Offender Support Program (COSP) Centre. He attends upon the Maroubra Community Mental Health team where he has a case manager. He attends on at least a fortnightly basis to have his depot injections and engage with the psychologists and psychiatrists there. Prior to his release Mr Strong received an injection of anti-libidinal medication and he is due to have another one soon.

52. Mr O'Brien says that Mr Strong has been "largely compliant and cooperative with the conditions of his ISO and there have been no incidents or concerns in relation to his behaviour. Similarly, the COSP has not reported any issues with Mr Strong to the ESO Team". Mr O’Brien agreed in cross-examination that Mr Strong is acquiescent rather than proactive but he added, “but I do always ask him how he is travelling, does he have any questions”.

53. Mr O'Brien is of the opinion that Mr Strong struggles to understand basic instructions and tends to say "yes" or agree to everything, even when he does not understand what is being asked of him or what he is meant to do. He also described Mr Strong as having difficulty with planning and management. He gave some examples, such as Mr Strong grossly underestimating the time he would need to travel from one place to another. He said that for these reasons some care is taken in explaining matters to Mr Strong and allowances are made in respect of minor breaches (e.g. not returning to his accommodation on time) because of the possibility of inadvertence. Counsel for Mr Strong estimated that there had been five occasions of minor breaches. The fact that no formal warnings or breach action had been taken is indicative of the sensitivity and flexibility with which the ISO has been administered.

54. Mr O'Brien said in his oral evidence that supervision of Mr Strong will be transferred to another Community Corrections Officer, Mr Aubrey Lucas, if an ESO is made. Mr O'Brien said that he will work with Mr Lucas and have a comprehensive hand-over about how Mr Strong has progressed so far on his ISO and what plans there are for his supervision in the future. He said he would explain "the current limitations and struggles that Mr Strong is currently going through in relation to his understanding of the order, et cetera". He proposed to discuss the difficulties Mr Strong has in understanding the conditions and how best to engage with him in relation to weekly schedules of movements. He said there would also be a discussion about “all of the applications that are in place, including Robert’s Disability Support Pension application, the priority housing application that’s now gone in and also for the NDIS application”.

55. Another example of the sensitivity and care with which the supervision of Mr Strong is being approached is that his accommodation at the Nunyara COSP is due to end at the end of next month but Mr O'Brien said that they, together with Corrective Services and Mission Australia, would continue to support Mr Strong in finding an appropriate place to live. He said in cross-examination that supported accommodation, places staffed by case workers catering for people with intellectual disabilities or mental health issues, are being considered as well as more general accommodation, although the former would be preferable.

56. Mr O'Brien confirmed in his evidence that it was he who had engaged the help of Mission Australia; initially in relation to accommodation support but now in generally helping Mr Strong with day-to-day activities in the course of reintegrating into life in the community. He agreed in cross-examination that Mr Strong had struggled initially when attempting tasks such as engaging with Centrelink. However, Mission Australia is now helping Mr Strong by taking him on excursions; for example, in the week before the hearing they took him to Centrelink and helped him in relation to his Disability Support Pension application. They also brought him to Court on the day of the hearing last week.

57. Collaboration is also occurring between the ESO Team and Mr Strong's Guardian "to ensure that we meet their requirements and they understand our role". The Guardian has a responsibility for approving accommodation for Mr Strong. Mr O'Brien said that once a residence has been found there would be discussions with a view to both the Guardian and the ESO Team agreeing as to its suitability from their different perspectives.

58. Mr O'Brien reviewed the supervision conditions set out in a schedule to the amended summons and considered that they would give effect to the risk management plan compiled by Ms Sarah Gilmour, Acting Manager, Extended Supervision Team, 18 April 2018, with which Mr O'Brien agreed. These are the conditions of Mr Strong's current ISO. Mr O'Brien said that "the ESO Team is working with Mr Strong to ensure that he has a sufficient understanding of the conditions, by explaining them to him in simple language and where possible accompanying Mr Strong to relevant appointments to assist him". He added:

“It is acknowledged that Mr Strong’s difficulty in understanding some directions may mean that the strict enforcement of some of his conditions will not be helpful in instances where technical breaches may in fact be better explained by misunderstanding. A flexible practice adopted by the ESO Team will avoid Mr Strong being subject to unnecessary sanction or penalty and the degree of discretion built in to many of the conditions will assist with this.”

59. Mr O'Brien did, however, express a negative view about one of the proposed conditions. He could see no point in directing Mr Strong to make himself available for employment or to participate in any training or education courses (proposed condition 20). The focus at present is on managing his transition to living in the community.

60. Mr O'Brien was asked to give a detailed account of how up until now he has approached the formulation of weekly schedules of movements with Mr Strong. It is apparent that he has done so with care and patience in ensuring Mr Strong properly and completely understands, but with an acknowledgement that there will be occasions of minor breaches which have to be expected. It is encouraging that as time goes on Mr Strong has become more familiar with the routine of attending places such as Centrelink and Maroubra Community Mental Health and he is becoming more compliant with his schedule of commitments. Mr O'Brien was of the view that "routine and structure is something that Robert needs to develop in his life and this helps him with that".

61. Mr O'Brien gave oral evidence at the hearing in which he spoke of a proposal to provide Mr Strong with an "Easy English" version of the conditions if an ESO were to be made. A copy of a version of "Easy English" parole conditions was provided as an example of the style (Exhibit A). It shows that the conditions can be expressed in very simple language in a very direct style. Mr O'Brien thought that such a document "would really help Robert in understanding the conditions and making quite clear to him what the conditions are there for and how – what his obligations are in relation to" them.

Risk assessment reports by Mr Samuel Ardasinski

62. The last body of evidence that I propose to make specific reference to is the risk assessment reports by Mr Samuel Ardasinski of 14 August 2015, 1 March 2016, 1 July 2016 and 28 March 2018.

63. In his report of 1 March 2016 and repeated, because it remained pertinent, in his report of 28 March 2018, Mr Ardasinski said:

"[Mr Strong] will need supervision to monitor him and thereby minimise his exposure to risks such as alcohol abuse and antisocial peer associations, and he will need support to find prosocial activities and other opportunities to meet the same needs which these endeavours have met previously."

64. In the latter report he also said:

"[Mr Strong] remains a high risk sex offender with incredibly complex support needs. However, I believed that:

• With the additional protections afforded by ongoing antilibidinal therapy, and

• (hopefully) with disability support through a successful application through NDIS, as well as

• The benefits to Mr Strong of a further order for Guardianship and ongoing financial management (neither of which Mr Strong opposed previously when sought through the NCAT), and

• Appropriate planning, on-referral and training of agencies in the community that may be assisted by the PBDS having examined Mr Strong’s case in recent times,

Mr Strong’s risk may be manageable through the provision of an Extended Supervision Order. He has been a compliant inmate for the past two years on his CDO, without any observed behaviours indicative of risk to any of the female staff of Junee Correctional Centre. It must be remembered that he did not reoffend for over 12 months the last time he was at unconditional liberty in the community in 2009, which suggests he may have some internal restraints on his sexual offence risk, and while he remains high risk, it is unlikely that every high-risk situation will culminate in the commission of a new sexual offence.”

65. It was Mr Ardasinski's view that a further continuing detention order was not warranted; "little would change". He said that if Mr Strong were to be subject to an ESO, the mitigation of future risk would be enhanced by ongoing intensive community supervision and support through non-government agencies and community mental health services. He has been made subject to a previous Guardianship Order through the NCAT, which would assist him in decision-making, housing and health. He remains subject to orders relating to financial management. If his mental health destabilised, applications could be made to the Mental Health Review Tribunal for a Community Treatment Order. Monitoring and interventions would be targeted to ensure he does not return to alcohol or drug abuse. He could also be subject to electronic monitoring which may assist him in developing awareness of his boundaries when in the community.

Conclusion as to the making of an ESO

66. Having regard to all of the material upon which the State relies, and particularly upon the opinions of the two court-appointed experts, I am satisfied that there is no doubt Mr Strong poses an unacceptable risk of committing another serious offence (a serious sex offence) if he is not kept under supervision pursuant to an ESO.

67. The other issues to consider are the duration of any such order as well as the conditions that should be imposed. In relation to those matters the following submissions of Mr Strong's counsel are pertinent:

“Mr Strong presents as a difficult case. It seems clear that more than just rules are required. He needs decisions to be made for him as he doesn’t have the life skills. He needs help with basic life management skills. He needs to be reminded of his rules frequently so that he doesn’t forget. He needs help to ensure he is taking his medication. He needs help with finding positive uses of his time. He needs help in arranging his ongoing accommodation.

It is clear that Mr Strong will require ongoing treatment and assistance with his mental health issues and medication regime. This could be facilitated through a community treatment order. He instructs that he finds a Webster pack helpful to him which is indicative of his need to have his medication regime arranged for him. If left to his own devices he may not be able to manage to remember when injections are due and the like. Mr Strong needs to be encouraged to stay on a route of self medication so he may avoid the temptation to self-medicate with drugs or alcohol.”

Duration

68. The State seeks that an ESO be for a period of 5 years. This is supported by the evidence of Dr O'Dea whilst Dr Collins was in favour of a shorter period.

69. Counsel for Mr Strong argued for a shorter period on the basis that there ought to be scope for some flexibility in approach. If, for example, Mr Strong stabilises in accommodation and treatment then conditions might be relaxed. In oral submissions it was suggested that Mr Strong's "situation may change … and his needs might be quite different in due course". It was recognised that the change might be negative as well as positive. This appears to reflect the reasoning of Dr Collins.

70. It was submitted that if there was to be an order of five years' duration as the State seeks, but Mr Strong made considerable improvement over a shorter period, it would be theoretically open to him to make an application for a variation but he is such a compliant and acquiescing person that he is unlikely to be proactive in this respect.

71. Counsel also suggested that a longer period may encourage "bureaucratic inertia" in the provision of assistance to Mr Strong; if the State was aware it may have to come back to the Court to make an application to keep him under supervision for longer it would be more likely to act expeditiously.

72. There is no evidence from which it might be inferred that those charged with the supervision of Mr Strong in the community pursuant to an ESO will be any less diligent than has Mr O'Brien been to date. The efforts he has made to assist Mr Strong in his transition to community life have been considerable and appropriately sensitive to his unique combination of issues.

68. Some of the cross-examination of Mr O'Brien and the submissions made on Mr Strong's behalf tended to suggest a notion that a Community Corrections officer supervising a high risk offender should adopt a role akin to a carer where the person is afflicted with some of the issues Mr Strong has. Such a notion is obviously inapt. But it is notable in this case that the officer responsible has taken steps to engage Mission Australia to assist Mr Strong.

69. Foremost in the determination of the duration of the order must be the safety of the community. In this respect, the chronic and enduring risk Mr Strong poses and the seriousness of the consequences if further offending did occur both point towards a longer period. There might be a significant period of time that has elapsed since his last sexual offence, but risk factors such as the potential for relapse in relation to substance use remain current and are unlikely to subside in the short term.

70. The appropriate duration of the order is a period of 5 years.

Conditions

76. Mr Strong has struggled with compliance with the conditions of his existing ISO. They are the same conditions as the State proposes for an ESO. The concern of his counsel was that he could be set up for failure which may lead to criminal sanction.

77. Counsel acknowledged that Mr O'Brien, the present DSO, has approached his task with considerable understanding and flexibility but she expressed concern about whether others who would assume the role would adopt the same approach.

78. Counsel accepted that the risk of gaol in the event of Mr Strong committing an act of sexual or physical violence was entirely warranted. But "the threat or risk of further custody attaching to Mr Strong through 'breach' style offences is a burden or risk that is untenable in circumstances where Mr Strong has shown that he will inevitably breach some aspect of the order".

79. Counsel for the State submitted that the concern that Mr Strong is vulnerable to breach proceedings is a valid one. However, it was submitted that the evidence indicated that the manner in which supervision under the ISO has been carried out, and in which it would continue if an ESO was made, showed sensitivity, latitude and flexibility that appropriately accommodated the rationale for the orders being made (safety of the community) as well as the unique personal circumstances of Mr Strong.

80. It was indicated to counsel for Mr Strong during the course of submissions that absent evidence to the contrary, I intended to approach the determination of this matter on the basis that an ESO will be administered in the same way as the ISO has been administered to date and that is as described by the present DSO, Mr Terry O'Brien. I said, and counsel appeared to accept, the following:

"I think we have to proceed in cases such as this on the basis that we have to have some faith in the integrity, the sensitivity and the flexibility of those who are charged with implementing the Court's orders, where necessary. They have to bear in mind the overriding object or purpose of this legislation as a starting point, but they have to be sensitive to the unique characteristics of each client, if I can call them that." (T25.25)

81. The conditions to which objection was taken were 6 to 8 (relating to schedules of movements), 10 (accommodation) and 20 (employment). I will discuss them in turn.

Schedule of movements

82. Conditions 6 to 8 are in the usual form. They require the submission three days in advance of a weekly plan (a "schedule of movements"); giving 24 hours' notice of any planned changes; and not deviating from the schedule except in emergencies.

83. It was submitted that this was setting Mr Strong up to fail because it is a task and an obligation that he struggles with. He requires assistance and there is no guarantee he will continue to receive the same level of assistance he is receiving now. It was also submitted that the 24 hours' notice requirement in relation to any proposed changes was arbitrary and likely to cause difficulty (for example when there are public transport issues, appointment variations or class re-scheduling). When such things occur with little notice Mr Strong may not be able to give the required notice and may not be able to contact his DSO at all. It was suggested that "24 hours" should be replaced with "reasonable notice".

84. Counsel for the State pressed for the inclusion of these conditions. The experts were unanimous that Mr Strong needed to be intensely monitored. Reference was made to evidence I have already referred to but also to a report by Dr Adam Martin, forensic psychiatrist, who prepared a report as a court-appointed expert in the continuing detention order proceedings before Harrison J in 2016. Dr Martin said in his report of 10 May 2016 (pp 14; 16):

“In summary, my view is there is very little persuasive evidence to suggest that Mr Strong does not remain at high risk of further sexual offending if not monitored extremely closely.

…

In my opinion, I think the only significant way of dramatically reducing his risk of sexual offending, is for him to be under constant supervision in an environment where he does not have access to females, or if he does have access, that he is constantly being physically monitored. That is to say, if not being constantly physically monitored, I would be concerned that in the community, that he would be at significant risk to others.”

85. Mr Ardasinski wrote in his report of 1 March 2016 that:

“[10] … [W]hat is abundantly clear is that Mr Strong will require a high level of support and supervision (i.e. these cannot viably be provided by the same agency). He will need supervision to monitor him and thereby minimise his exposure to risks such as alcohol abuse and antisocial peer associations, and he will need support to find prosocial activities and other opportunities to meet the same needs which these endeavours have met previously.” (Emphasis in original)

86. In his report of 14 August 2015, Mr Ardasinski wrote:

“[87] In the event that Mr Strong is subject to an Extended Supervision Order … He may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily activities. Given his vulnerabilities, he may be given additional assistance to complete such scheduling activities. Electronic monitoring would likely assist in his risk management, considering his offending history includes offences against strangers. The monitoring equipment may assist Mr Strong to maintain appropriate schedules and boundaries in a community setting.”

87. Given the overwhelming evidence to the effect that Mr Strong requires close supervision in the community, and having regard to what I said earlier about my expectation as to the administration of the ESO being similar to the manner in which the current ISO has been administered, I propose to leave conditions 6 to 8 in the Schedule.

Living at an approved address

88. Condition 10 would require Mr Strong to live at an address approved by his DSO. It was submitted that this was redundant given that his Guardian has responsibility in relation to accommodation and there should be no possible conflict between the Guardian and the DSO.

89. The evidence before me is to the effect that the DSO will work in consultation with the Guardian in approving accommodation for Mr Strong. It is acknowledged that they approach their responsibilities from different perspectives but there is nothing to indicate that this topic might give rise to disputation. It is also necessary to bear in mind that the Guardianship order is only in place for a period of 2 years whereas the ESO will be in place for considerably longer.

90. It is essential for the DSO to have the discretion to approve Mr Strong's accommodation in order to ensure the interests of community safety are best served. Condition 10 should remain as proposed.

Education and employment

91. Counsel for Mr Strong objected to Condition 20 which would provide that if Mr Strong is unemployed he must, if directed by his DSO, make himself available for employment, education, training or participation in personal development programs as directed by the DSO.

92. It was submitted that such a condition was unnecessary when Mr Strong was living on a disability support pension and at a stage of his life and in circumstances where commencing work or education may not be warranted.

93. Reference has been made earlier (at [59]) to Mr O'Brien's evidence that directing Mr Strong to make himself available for employment and the other purposes mentioned is not something that has occurred to date because there have been other more pressing concerns in managing the transition from custody to community living. That is not say, however, that dialogue about such activities should not occur, and Mr Strong himself has said as recently as 7 June 2018 that he would like to seek employment. Whether that in fact eventuates is another matter but it would be appropriate for it to be included in the range of activities that he might engage in at some stage over the next five years. Condition 20 should remain.

Orders

94. The following orders are made:

1.   Pursuant to s 5B and s 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 5 years from the date of the order; and

2.   Pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Amended Schedule A of the summons.

3.   Access to the Court’s file in respect of any document shall not be granted to a non-party without the 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 as to allow them an opportunity to be heard in relation to the application for access.

4.   Pursuant to s 25D of the Act permitting the reports prepared by Dr Emma Collins dated 27 August 2018 and Dr Jeremy O’Dea dated 4 September 2018 to be provided to Corrective Services NSW, any other agency involved in the defendant’s supervision and the defendant’s treating clinician(s) or health care practitioner(s).

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Decision last updated: 03 October 2018