State of New South Wales v TT (Final)

[2018] NSWSC 358

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v TT (Final) [2018] NSWSC 358
Hearing dates:	15 March 2018
Date of orders:	15 March 2018
Decision date:	22 March 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Extended supervision order made for three years from 22 March 2018 upon conditions as contained in the Schedule to this judgment
Catchwords:	HIGH RISK OFFENDER – application for high risk offender extended supervision order (ESO) – serious sex offender – Defendant with criminal history including sex offences against children, armed robbery and other offences – offences in 2015 of using carriage service to access child pornography contrary to s.474.19(1) Criminal Code (Cth) – diagnosis of paedophilic disorder, anti-social personality disorder and substance abuse disorder – high risk of future offending – ESO for three years appropriate – electronic monitoring condition appropriate – conditions appropriate to mitigate risk of re-offending in the interests of community safety – ESO made for three years
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Court Suppression and Non-publication Orders Act 2010 Crimes (High Risk Offenders) Amendment Act 2017 Crimes (High Risk Offenders) Act 2006 Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	Cornwall v Attorney General for NSW [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Mouscas v R [2008] NSWCCA 181 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 State of New South Wales v Ali [2010] NSWSC 1045 State of New South Wales v Bugmy [2017] NSWSC 855 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Conway [2011] NSWSC 976 State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v Kay [2017] NSWSC 254 State of New South Wales v Thomas [2010] NSWSC 677 State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 State of New South Wales v TT [2018] NSWSC 347 State of New South Wales v Weribone [2016] NSWSC 1474
Texts Cited:	---
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) TT (Defendant)
Representation:	Counsel: Mr PG Aitken (Plaintiff) Ms A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2017/344591
Publication restriction:	---

Judgment

1. JOHNSON J: By Summons filed on 14 November 2017, the Plaintiff, State of New South Wales, seeks orders against the Defendant, TT, under the Crimes (High Risk Offenders) Act 2006 (“HRO Act”). The Defendant is referred to by a pseudonym in this judgment as publication of his name may serve to identify victims of sexual offences committed by him: s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987. In addition, an order has been made under s.13 Court Suppression and Non-publication Orders Act 2010 that the Defendant be referred to by a pseudonym.

2. The Plaintiff seeks an order that the Defendant be subject to an extended supervision order (“ESO”), upon a range of conditions, for a period of three years from the date of the order.

The Index Offences

3. On 13 October 2016, following pleas of guilty, the Defendant was sentenced by his Honour Judge Hunt at the Campbelltown District Court with respect to three offences of using a carriage service to access child pornography contrary to s.474.19(1) Criminal Code (Cth). A total effective sentence of imprisonment for two years (commencing on 4 February 2016) was passed with an order that the Defendant be released upon entering into a recognisance after one year and two months pursuant to s.20(1)(b) Crimes Act 1914 (Cth). The Defendant was released from custody on 3 April 2017 and the sentence of imprisonment expired by effluxion of time on 3 February 2018.

4. On 18 December 2017, following a preliminary hearing, Walton J directed that the Defendant be subject to an interim supervision order (“ISO”) with orders also being made pursuant to s.7(4) HRO Act for the examination of the Defendant by two qualified psychiatrists who were to furnish reports to the Court following those examinations: State of New South Wales v TT (Preliminary) [2017] NSWSC 1797. These orders came into effect on 3 February 2018. On 26 February 2018, the ISO was extended by Rothman J until 30 March 2018: State of New South Wales v TT [2018] NSWSC 347.

The Final Hearing

5. The hearing of the Plaintiff’s application for final relief proceeded before me on 15 March 2018. Mr Aitken of counsel appeared for the Plaintiff and Ms Cook of counsel appeared for the Defendant.

6. The Plaintiff relied upon the following evidence at the final hearing:

1. affidavit of Kenny Ng affirmed 14 November 2017 (accompanied by Exhibit KN-1, Volumes 1, 2 and 3);

2. affidavit of Kenny Ng affirmed 28 November 2017;

3. affidavit of Janelle Farroway affirmed 29 November 2017;

4. affidavit of Sylvia Hart affirmed 1 March 2018;

5. affidavit of Chris Russell affirmed 28 February 2018;

6. report of Dr Adam Martin, forensic psychiatrist, dated 6 February 2018;

7. report of Dr Andrew Ellis, forensic psychiatrist, dated 18 February 2018;

8. affidavit of Janelle Farroway affirmed 14 March 2018.

7. Dr Martin and Dr Ellis examined the Defendant and furnished reports to the Court as a result of the order made by Walton J on 18 December 2017 under s.7(4) HRO Act.

8. None of the persons listed at [6] above were required by the Defendant for cross-examination.

9. Oral evidence was taken by telephone at the final hearing from Andrew James Sandercock, Community Corrections Officer (T10-21, 15 March 2018). This evidence related to an issue in connection with conditions of the proposed ESO. I will return to this topic later in the judgment.

10. The Defendant did not give evidence or call any witness at the final hearing.

11. The Court was assisted by helpful written submissions furnished by Mr Aitken and Ms Cook in advance of the final hearing. In light of the evidence relied upon by the Plaintiff, Ms Cook submitted that, if the Court was satisfied that a proper basis had been made out for the making of appropriate orders, the Defendant did not oppose the making of an ESO for a period of three years with the areas of controversy being confined to certain proposed conditions.

12. Counsel addressed orally at the final hearing and the Court received supplementary written submissions dated 19 March 2018 for the Plaintiff and the Defendant concerning the proposed electronic monitoring condition to which I will return later in this judgment.

13. As Beech-Jones J observed in State of New South Wales v Fisk [2013] NSWSC 364 at [7] and [23], the lack of opposition to the relief being sought does not relieve the Court from the task of determining whether orders should be made given the requirement under the statute for the Court to be so satisfied before an order is made. That said, the practical approach of counsel for the Defendant assisted the Court in making relevant statutory findings.

Some Threshold Issues

14. The present proceedings were commenced by the filing of a Summons on 14 November 2017. The HRO Act was amended by the Crimes (High Risk Offenders) Amendment Act 2017 (“the 2017 Act”) which commenced on 6 December 2017. By operation of Clause 19(2) of Part 10 of Schedule 2 of the HRO Act, the amendments made by the 2017 Act apply in respect of proceedings in relation to which an application was made, but not determined, before the commencement of the 2017 Act.

15. Accordingly, the 2017 amendments apply to the present application. Walton J proceeded upon this basis in State of New South Wales v TT (Preliminary) at [15] and this conclusion was not challenged by the Defendant at the final hearing.

16. The Plaintiff may only apply for an ESO where, at the time of filing the application, the Defendant was a “supervised offender”: s.5I(1) HRO Act. In the present case, it is common ground between the parties that the Defendant was, at the relevant time, an “offender” who was then under supervision whilst serving a sentence of imprisonment for an “offence of a sexual nature”: s.5I(2)(a)(ii) HRO Act.

17. I am satisfied that this was the case and find that the Defendant was a “supervised offender” at the time of the filing of the application on 14 November 2017. As will be seen, the Defendant was convicted and sentenced to imprisonment in 1988 by Wood J for a number of offences under s.66A Crimes Act 1900. I am satisfied that the offences under s.66A Crimes Act 1900 are caught by s.5(1)(a) HRO Act. If there was any doubt about that conclusion (and there is not), I would nevertheless have been satisfied that the Defendant’s s.66A offences committed in the period 1986 to 1988 would fall within s.5(1)(c1) HRO Act.

18. I adopt the reasoning of Walton J in State of New South Wales v TT (Preliminary) at [29]-[50] where his Honour held that offences under s.471.19 Criminal Code (Cth) were “offences of a sexual nature” (s.5(2)(h4) HRO Act ) with the Defendant being subject to a recognisance under s.20(1)(b) Crimes Act 1914 (Cth), as part of a sentence of imprisonment, at the time when the present proceedings were commenced in this Court on 14 November 2017.

19. In addition, I am satisfied of the following statutory requirements (which were not disputed by the Defendant):

1. at the time of the application, the Defendant was a person over the age of 18 years: s.4A(a) HRO Act;

2. the application was made in time (that is, within the last nine months of supervision of the Defendant): s.6(1) HRO Act.

Consideration of Factors Relevant to the Application for an ESO

20. Section 9 HRO Act is concerned with the determination of an application for an ESO. Section 9 provides:

“9    Determination of application for extended supervision order

(1)    The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.

(2)    In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A) (Repealed)

(3)    In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a)    (Repealed)

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)     the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1)    any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)    any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1)    options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)    the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)    without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h)    the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1)    the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)    any other information that is available as to the likelihood that the offender will commit a further serious offence.

(4) (Repealed).”

21. Section 10 HRO Act provides for the duration of an ESO:

“10    Term of extended supervision order

(1)    An extended supervision order commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later.

…

(1A)    An extended supervision order expires at the end of:

(a)    such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or

(b)    if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.

(2) An offender’s obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law.

(3)    Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender.”

22. In the present case, the Plaintiff seeks an ESO for a period of three years and that application is not opposed by the Defendant.

23. Section 11 HRO Act provides for conditions that may be imposed as part of an ESO. Section 11 states:

“11    Conditions that may be imposed on supervision order

An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender:

(a)    to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)    to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b)    to make periodic reports to a corrective services officer, or

(c)    to notify a corrective services officer of any change in his or her address, or

(d)    to participate in treatment and rehabilitation programs, or

(e)    to wear electronic monitoring equipment, or

(ea)    to reside at an address approved by the Commissioner of Corrective Services, or

(f)    not to reside in or resort to specified locations or classes of locations, or

(g)    not to associate or make contact with specified persons or classes of persons, or

(h)    not to engage in specified conduct or classes of conduct, or

(i)    not to engage in specified employment or classes of employment, or

(j)    not to change his or her name, or

(k)    to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m)    to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n)    to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.”

Consideration of Matters Referred to in s.9(3) HRO Act

24. Section 9(3) requires the Court to have regard to certain specified matters on an application for an ESO together with any other matters which the Court considers relevant. It is appropriate to consider matters relevant to the Defendant under the subheadings contained in this provision.

Section 9(3)(h) - The Defendant’s Criminal History and the Pattern of Offending Behaviour Disclosed by that History

25. The Defendant was born in December 1954 and his history of relevant offending extends back to 1976. As will be seen, the Defendant has a substantial criminal history for sex offences and offences of violence as well as property offences.

26. The Defendant’s near 40-year history of offences of a sexual nature was summarised neatly by Dr Andrew Ellis in his report dated 18 February 2018 (page 7):

“I note his sexual offences have been committed first at age 21 when he exposed himself to schoolgirls in a public place. His next offence is at age 31 when he picked up a fourteen year old boy hitchhiking and performed oral sex on him. Shortly after he began a series of 31 offences against his daughter, his niece and five other girls. Some offences occurred at his home, and some offences at a motel where he took four girls and engaged and coerced them into sexual activity with each other. Other offences took place in his car, or at secluded beaches. At age 48 he was convicted of exposing himself and masturbating in front of children at a pony club in Queensland. At age 60 he was convicted of accessing child abuse material over the internet on his mobile phone. The content consisted of images and text stories with sadistic (punishment and humiliation) and paedophilic content. Images and stories of boys and girls are viewed.”

27. It is necessary to refer to the Defendant’s history of offending in greater detail.

28. Between 1971 and 1976, the Defendant committed a range of dishonesty and driving offences for which he was fined and disqualified in Courts of Petty Sessions.

29. The Defendant's first offence of a sexual nature occurred in 1976 (at the age of 21), when he was convicted for the offence of wilful and obscene exposure. On 1 November 1976, he was sentenced at the Campsie Court of Petty Sessions by way of a three-year good behaviour bond and a fine. This offence involved the Defendant standing naked from the waist down in a public park in Canterbury, Sydney, and thereafter exposing his erect penis to teachers and a number of school girls from a local school. The Defendant remained in that state of undress for approximately 10 minutes, before he fled when uniformed police arrived. The Defendant claimed, at the time of his arrest, that he was under the influence of marijuana.

30. In the period between 1979 and 1986, the Defendant was placed on good behaviour bonds, fined or sentenced to short periods of imprisonment for various offences of dishonesty and driving offences.

31. On 14 December 1988, the Defendant was sentenced by Wood J (as his Honour then was) in the Supreme Court of New South Wales after he pleaded guilty to nine counts of having sexual intercourse with a child between the ages of 10 and 16 years, 14 counts of committing an act of indecency, seven counts of inciting an act of indecency and one count of attempted sexual intercourse with a person under 10 years. The Defendant was sentenced to imprisonment for a total effective period of 15 years, commencing on 7 August 1988, with a total non-parole period of 10 years and three months. The Defendant lodged an application for leave to appeal against sentence to the Court of Criminal Appeal, but he abandoned that appeal on 9 June 1992 with an order being made by the Court that time was to count.

32. The matters for which Wood J sentenced the Defendant related to a series of offences between the years 1986 and 1988 and involved seven girls, variously aged between seven and 14 years at the time of the offending.

27. The first series of offences relate to the Defendant's daughter when she was aged between seven and nine years of age, and occurred between 23 March 1986 and 5 February 1988. Within this series, there were:

1. five counts of sexual intercourse with a child under the age of 10 years;

2. one count of attempted sexual intercourse;

3. two counts of inciting his daughter to an act of indecency; and

4. one count of committing an act of indecency.

34. Two of those counts related to an incident where the Defendant took his daughter and three other victims to a motel in Parramatta on 5 February 1988. Wood J described that episode as follows:

“[The victims] were required to perform together and separately various activities for his [the Defendant's] sexual gratification and at the same time he interfered with them in a variety of ways.

I am satisfied that the offences charged in respect of this victim were representative of a prolonged and exceedingly serious sexual invasion of the girt extending over some years encompassing a much larger history of offending.”

35. The second series of offences related to the niece of the Defendant, and occurred between 1 June 1987 and 5 February 1988, when the victim was approximately 10 years of age. This group of offences consisted of:

1. two counts of sexual intercourse with a child between 10 and 16 years; and

2. two counts of inciting the victim to an act of indecency.

36. The third series of offences concerned the sister of the niece, the subject of the second series of offences. Two offences of having sexual intercourse with a child under 10 years were committed on 5 February 1988.

37. The fourth series of offences related to the daughter of a friend of the Defendant. These offences were committed between 1 April 1986 and 31 January 1988 when the victim was aged between nine and 11 years of age. These offences consisted of:

1. three counts of committing an act of indecency; and

2. three counts of inciting the victim to an act of indecency.

38. The fifth series of offences related to the daughter of another friend of the Defendant. Two offences of committing an act of indecency were committed between 23 March 1986 and 31 December 1987 when the victim was aged between eight and 10 years.

39. The sixth series of offences relate to yet another daughter of a friend of the Defendant. These offences were committed between 1 January 1987 and 28 February 1987 when the victim was aged 14 years. These offences consisted of:

1. one count of committing an act of indecency; and

2. one count of sexual intercourse with a child between 10 and 16 years.

40. The seventh, and final, series of offences related to the niece of a woman who was living in a de facto relationship with the Defendant at the time. Six offences of committing an act of indecency were committed between 1 May 1986 and 1 November 1987, when the victim was aged between 10 and 13 years.

41. In sentencing the Defendant, Wood J observed that:

"[t]he number of offences charged and the wider history proved ... graphically show that these were not mere isolated lapses on the part of the prisoner ... the statements placed into evidence ... also reveal that a number of other children who have not been the subject of specific charges either witnessed or were involved in the disgraceful activities of the prisoner.”

42. On 10 May 1989, The Defendant was sentenced by his Honour Judge Court QC at the Parramatta District Court for a range of offences including two offences of having sexual intercourse with a male under 18 years of age contrary to s.78K Crimes Act 1900, break, enter and steal (four counts), larceny (five counts), break and enter with intent to steal and entering a building with intent to steal. The sexual offences were committed on 10 February 1986, when the Defendant picked up a 13-year old boy who was hitchhiking in Mudgee. The Defendant drove him to his own home at St Clair where the child stayed the night. The following day, the Defendant showed him a “Playboy” magazine and committed fellatio on him. The following night, the same thing occurred. The child stayed until 15 February 1986, when he was driven to Lithgow and caught a bus back to Mudgee. The Defendant pleaded guilty to the charges. The sentencing Judge was aware of the sentences imposed on the Defendant by Wood J on 14 December 1988. For the sex offences, the Defendant was sentenced to concurrent terms of imprisonment for four years to date from 4 April 1988.

43. On 17 January 1997, following pleas of guilty, the Defendant was sentenced by his Honour Judge Mitchelmore at the Sydney District Court for two counts of armed robbery and one count of possession of an unlicensed firearm committed by the Defendant in September 1996. The sentencing Judge noted that the Defendant had been released on parole in June 1995. The offences were committed whilst the Defendant was on parole. For those offences, the Defendant received an effective sentence of imprisonment for a period of seven years and six months commencing on 9 September 1996, with a total effective non-parole period of four years and three months. It was noted that this offending occurred in the context of the Defendant's addiction to heroin.

44. On 5 August 2002, following pleas of guilty, the Defendant was sentenced in the District Court of Queensland at Beenleigh by his Honour Judge Nase for four counts of indecent treatment of a child under 12 years of age and two counts of indecent treatment of a child under 16 years of age. For those offences, the Defendant was sentenced to a probation order for a period of three years. The facts underpinning the offending were that on 29 July 2001, the Defendant (aged 46) had exposed himself to two children, after he had been consuming alcohol.

45. On 8 June 2006, following pleas of guilty, the Defendant was sentenced by his Honour Judge Ellis at the Parramatta District Court for three counts of armed robbery with a dangerous weapon (pistol), one count of break, enter and steal, one count of obtaining a benefit by deception, and one count of take and drive conveyance without consent. Seven further counts of larceny, two further counts of break, enter and steal, four further counts of take and drive conveyance without consent, and one further count of obtain money by deception were taken into account on a Form 1 in relation to the sentence imposed for one of the primary counts of armed robbery. The offences were committed between January and August 2005. The offences involved armed robberies of cash from clubs and a hotel where the Defendant was armed with a firearm and threatened staff. For those offences, the Defendant was sentenced to an effective period of imprisonment of seven years and seven months commencing on 4 August 2005, with an effective non-parole period of five years and one month expiring on 3 September 2010. It was noted in the remarks on sentence, that the Defendant had been affected by drugs at the time of the offending, and was also involved with other criminal associates.

46. On 11 October 2011, the Defendant was sentenced at the Burwood Local Court for shoplifting by way of a two-year good behaviour bond.

47. On 30 November 2011, the Defendant was sentenced at Cessnock Local Court to a term of imprisonment for six months for larceny.

48. Finally, reference should be made to the index offences to which brief mention was made earlier in this judgment.

49. On 13 October 2016, following pleas of guilty, the Defendant was sentenced by his Honour Judge Hunt at the Campbelltown Local Court for three counts of using a carriage service to access child pornography contrary to s.474.19(1) Criminal Code (Cth). The offences were committed in December 2015. Two of the offences related to child pornography containing short stories concerning boys and girls which were categorised on the Child Exploitation Tracking System (“CETS”) scale as being Category 4 (penetrative sexual activity involving children or both children and adults) or Category 5 (sadism or bestiality). The third offence involved the Defendant viewing 167 child pornography images which depicted minors naked, exposing their genitals and sexual activity between children including oral and penetrative intercourse. Some 24 images were Category 4 images.

50. The police investigation of the Defendant involved the use of listening devices to record conversations involving the Defendant in January 2016. On an occasion on 16 January 2016 when the Defendant was alone in his vehicle, he said to himself:

“…That’s a little kid obviously, what a … kid kid, I’d stick a dick dick out I would, I would, If I could, I would.”

51. On the first count, the Defendant was sentenced to a term of imprisonment for a period of 18 months commencing on 4 February 2016 and expiring on 3 August 2017. For the second count, the Defendant was sentenced to a further term of imprisonment for a period of 18 months commencing on 4 May 2016 and expiring on 3 November 2017. For the third count, the Defendant was sentenced to a further term of imprisonment for 18 months commencing on 4 August 2016 and expiring on 3 February 2018. The Defendant was sentenced to a total effective period of imprisonment of two years. In sentencing the Defendant, the sentencing court ordered, pursuant to s. 20(l)(b) Crimes Act 1914 (Cth), that after one year and two months, the Defendant was to be released upon entering into a recognisance.

52. The recognisance had three conditions attached to it by the sentencing court:

1. to be of good behaviour for the term of 10 months;

2. to accept the supervision of the Probation Service (particularly in relation to offending relapse prevention) for such period as that Service directs; and

3. appear before the Court if called upon to do so in respect of any breach.

53. The Defendant has been under supervision of Community Corrections officers (including taking part in Forensic Psychology Services counselling) since 3 April 2017 when he was released on a recognisance.

Section 9(3)(h1) - Views of Sentencing Courts

54. In sentencing remarks on 14 December 1988, Wood J found that each of the series of offences were representative acts selected out of a wider history of sexual misconduct directed at each of the victims. His Honour noted that the conduct was spread over a period of two years and that a number of the offences were committed whilst the Defendant was on bail.

55. Wood J described the offences in the following way:

“On any view, the conduct of the prisoner in defiling these young children was quite appalling. His self-indulgent molestation was spread over two years and the enormity of what he did can only attract the strongest condemnation. Each of the young children was under his authority at the time of the offences, yet he betrayed the trust imposed in him as the father of one victim, as the uncle of two victims and as the person allowed by the parents of the remaining four children to have them in his care.”

56. With respect to the objective seriousness of the offences, his Honour said:

"[T]hey must all be regarded as being at the very upper end of the scale of seriousness. The objective circumstances demand salutary sentences not only for the punishment of the prisoner but to provide a personal deterrent to him in case he is minded to re-offend and as a general deterrent to others.

As I have already pointed out, serious aggravating circumstances arise in that many of the offences were conducted in a group context in which young children were recruited and initiated in all manner of sexual acts for his gratification and by the fact that a number of them occurred while he was on bail."

57. Wood J said with respect to the Defendant's subjective case:

"His criminal record now, however, reads very poorly and indicates an anti-social and irresponsible attitude ...

The prisoner has been variously released on probation, placed on recognizance, fined, disqualified from driving, given community service and sentenced to imprisonment, yet he has continued to offend.

The pre-sentence report records that the prisoner described himself as depressed and helpless in the deteriorating marital situation at the time of the offences. It also records a suggestion that the children were willing partners and participated in his activities to 'cheer him up'.

The child, BC, he suggested enticed him into having sexual intercourse with her. This is a contention I reject as untrue and as reflecting adversely to the prisoner's honesty and on the extent of his hindsight into the criminality involved. There are other indications of this in the pre-sentence report, noticeably the prisoner's attempts to rationalise or minimise the seriousness of his behaviour and his initial refusal to acknowledge his use of drugs."

58. Wood J said with respect to the Defendant's risk of re-offending:

"By reason of the history of the present offences, the prisoner must be considered as posing some risk of possessing paedophiliac tendencies and on that account of re-offending. Although preventative detention is not permissible, I am satisfied that the present case falls within the most serious category of child molestation and that the prisoner must be sentenced accordingly."

59. In his sentencing remarks delivered on 13 October 2016, his Honour Judge Hunt assessed the objective seriousness of the Defendant's offending in relation to the three child pornography offences as follows:

"In terms of objective seriousness, the offences are above the middle range of seriousness. That is because in relation to the literature the number of matters that fall at level five on the CETS scale and sadism and humiliation together with the age of the children involved, whilst in relation to the matter that involved access of images, compared to some matters the number of images is not as extensive as some matters.

There are still a significant number of images including a number of them objectively disturbing and rated four in the CETS scale."

60. His Honour concluded that the seriousness of the offences included the number of images at Level 5 on the CETS scale (including sadism and humiliation) together with the age of the children. A little later, his Honour noted:

"I agree with the Crown's characterisation of the stories as being graphic and disturbing and that is one of the reasons that I find the objective seriousness of the offences that involve literature is above the middle range."

61. The sentencing Judge observed that there was “a level of compulsion” about the Defendant’s offending.

62. His Honour Judge Hunt observed with respect to specific deterrence:

"This is a matter in which, because the offender's previous antecedents and what has clearly been, to be euphemistic, a long running problem in terms of a predilection for offending In some way against children, specific deterrence is particularly important in the circumstances of this case."

Section 9(3)(b) - Reports of Psychiatrists Appointed by the Court to Examine the Defendant

63. Section 9(3)(b) requires the Court to have regard to the reports received from persons appointed under s.7(4) HRO Act.

Report of Dr Adam Martin Dated 6 February 2018

64. Dr Martin said that he conducted a 90-minute interview with the Defendant on 24 January 2018. The Defendant claimed to have no urge to re-offend. The Defendant said that he worked 10-12 hours a day and would have to get up earlier than 4.00 am to charge the monitoring anklet if such a condition was imposed. He said he willingly attends non-compulsory psychology sessions every three weeks. He claimed that he had been told by a drug and alcohol “psychiatrist” at an assessment at Canterbury Hospital four or five months before that he did not need to re-attend.

65. The Defendant told Dr Martin that he had attended a sex offenders program in Cooma and Cessnock gaols many years ago, which was why he had refused to undertake the Custody-Based Intensive Treatment (“CUBIT”) Sex Offender Program "because I knew all about it, done it all before". He described drinking half a dozen beers at the weekend or three stubbies at the club occasionally. He reported a history of using cannabis in the 1980s and then amphetamines and heroin that led to his robbery offending from after 1995. He claimed that he had been affected by amphetamines during his indecent exposure offending in Brisbane (the 2001 offences, the facts for which referred to drinking alcohol) and had used methylamphetamine intravenously for about two weeks leading up to the offending involving child pornography in December 2015. He said his browsing of pornography occurred over a period of about 10 days.

66. The Defendant denied any childhood history of trauma including sexual abuse. He claimed his offending against children occurred whilst he was on drugs and that he does not allow himself to think about sex with children or look at internet pornography. He said that his browsing of under-age internet pornography lasted about 10 days.

67. Dr Martin noted that there was no evidence of more recent anti-social behaviour in the case notes. He noted the comments that the Defendant had made to a parole officer in 1988 about his child sex offending that a child had enticed him into having sexual intercourse and that she was a consenting partner. Dr Martin observed that these comments "are consistent with cognitive distortions seen in paedophilic sex offending".

68. Dr Martin expressed the following diagnosis concerning the Defendant (report, 6 February 2018, pages 16-17):

“[TT] fulfils DSM-5 diagnostic criteria for paedophilic disorder, where there is evidence of previous and sustained sexual interest and behaviours involving sexual activity with pre-pubescent children, and acting on sexual urges, as evidenced by his criminal history and the supporting documentation referred to above. This condition is likely to be enduring, based on the history of more recent child abuse material offending (using the internet to search for child pornography and making comments demonstrating sexual interest in children) on a background of previous contact offending of pre-pubescent children in a variety of settings.

[TT] has a substance use disorder involving amphetamines and opiates although this is apparently currently in relative remission in that he is not currently using illicit substances (under supervision), and is not using alcohol in a harmful manner [based on his self- account].

[TT] fulfils DSM-5 diagnostic criteria for anti-social personality disorder given his offending history and his description of anti-social behaviour going back to his adolescence. Anti-social personality disorder is described as ‘a pervasive pattern of disregard for and violation of the rights of others, occurring since age fifteen years’.

In my opinion, [TT] does not have a major mental illness such as schizophrenia or a major mood disorder such as major depression or bipolar disorder. However, he has previously been depressed and suicidal in the context of legal stressors. He is not currently engaged in psychiatric treatment but is engaged in psychological counselling.

The conditions referred to above should be considered chronic and enduring. Personality disorder by definition is a description of enduring character traits and behaviours not generally amenable to treatment. Paraphilias, such as paedophilia, represent chronic vulnerability to sexual deviance. His substance abuse issues should be considered a longterm vulnerability given that he has previously used over a protracted period despite harmful consequences, and given that his most recent offending apparently occurred in association with illicit drug use.”

69. Dr Martin reached the following conclusion concerning the Defendant’s risk of reoffending (page 17):

“In my opinion, [TT] should be considered at high risk of future re-offending given the material which is evidence of previous serious sexual offending in the 1980s, more recent material around child pornography, and his history of anti-social behaviour including violent offending involving weapons and his substance use issues.

He would be considered to have a high loading of historical risk factors, which are by definition static and unchangeable, which would be seen in actuarial terms as contributing to him being in a group of people considered at high risk of re-offending. It might be argued that as he gets older that his risk of re-offending might diminish. Against this, he has only relatively recently been incarcerated for sex offences, had used methamphetamine, and in my opinion shows fairly limited insight into the nature of the sexual problems, with some evidence of cognitive distortions around minimising or rationalising the sexual offending. He expressed some responsibility for previous offending but some comments that he made were consistent with ongoing cognitive distortions frequently seen in people who have sexually offended. His narrative was that sexual offending had occurred in the context of substance abuse. He expressed that he is able to control unacceptable sexual behaviour by not thinking about it.

It is likely that further substance abuse might be associated with this inhibition and potentially sexual and other offending. Abstinence from substances will be a protective factor mitigating risk of future offending. However, independent of substance use, [TT] is likely to have an ongoing vulnerability to engaging in sexual offending in that there does not appear to be objective evidence of paedophilic tendencies having altered, and he has a background of maladaptive personality traits and a history of antisocial behaviour.”

70. Dr Martin applied the HCR-20 (version 3), a tool for assessing the risk of violence. Using the HCR-20, Dr Martin concluded that the Defendant constituted a high risk of offending. Using the Risk of Sexual Violence Protocol (“RSVP”) the Defendant showed factors associated with an increased risk of offending.

71. Dr Martin addressed the term and conditions of any ESO (page 20):

“In my opinion, the proposed conditions of an ESO would serve to mitigate the risk of offending. I think it is likely that [TT] has fairly limited insight and coping abilities around vulnerability for future offending. The proposed conditions of the ESO would serve as external inhibitors and limiting factors that would moderate opportunities for future offending by providing significant supervision and monitoring, would minimise the likelihood of him abusing substances and act as an external safeguard against inappropriate or illegal behaviour.”

Report of Dr Andrew Ellis Dated 18 February 2018

72. Dr Ellis stated that he examined the Defendant on 30 January 2018 for two hours. The Defendant reported usually getting eight hours sleep a night. He said that he had been prescribed antipsychotic and antidepressant medications in custody, but only to assist with feelings of shame, stress and being on drugs. The Defendant claimed to have good insight from the psychological programs he had taken part in, including about the effects of child sexual abuse on children.

73. In terms of substance use, the Defendant said he drank two-to-three schooners once a fortnight, used cannabis until the early 2000s, used amphetamines from his late 20s for four-to-five years intravenously, ice (methylamphetamine) from 1995 and last used it in 2015 (for two weeks, when viewing pornography which he said was not limited to child pornography). It should be noted that the Defendant’s substance use history provided to Dr Ellis differs in some respects from that provided to Dr Martin, including current alcohol intake and the time when cannabis use ceased. The Defendant said he had never attended drug and alcohol rehabilitation.

74. The Defendant claimed to have been intoxicated on the two occasions he exposed himself to children (once aged 21 and once aged 48). He claimed only to have been interested in children when on "heavy drugs". He claimed to have little recall of the sexual and robbery offences, providing an "impoverished account” and saying that "one thing leads to another".

75. The Defendant said he had revised his view that child pornography did no harm, after therapy, and that he would miss psychological therapy if not subject to an order, although he wished to continue with that therapy. The Defendant was of the view that he was not a risk to anybody.

76. Dr Ellis expressed the following diagnosis (report, 18 February 2018, pages 11-12):

“The diagnosis of primary concern is the paraphilic disorder, paedophilia. The pattern is directed primarily at female children, however there is an indication by adjudicated and charged acts that male children are also a target for arousal. There is clear evidence of attraction to female children by his adjudicated behaviour, despite his self report of this being a purely intoxication related arousal. The offences are prolonged, repeated and indicate planning and interest in offending at odds with sexual arousal that might be related to substance intoxication. This appears to have onset in his early twenties, with an exposure offence directed towards children. The repeated engagement in this behaviour over years indicates that the disorder is typically chronic. He has reported cessation of fantasy and urges with abstinence from drugs. The finding of child related images on his phone indicates the interest has persisted after the period of contact offending, which is now decades ago. An additional paraphilia of concern is exhibitionism (sexual arousal at exposing himself) which could be diagnosed by his adjudicated behaviour. Paedophilia and exhibitionism are typically chronic, relapsing conditions but can be managed with both medical and psychosocial treatment.

He would meet criteria for antisocial personality disorder. There is a history of childhood conduct disorder with behavioural disturbance at school and juvenile arrests. In adulthood he has persisted in a diverse range of criminal behaviour, with irresponsibility in work and relationships and some impulsive self injury. His personality function has moderated marginally with time with stable employment and relationship function (by self report) for the past 9 months.

He would meet criteria for a substance use disorder, primarily stimulants, cannabis and opioids. He describes tolerance to substances, salient use of substances and use despite ongoing psychological, physical health, relationship and legal problems. This has been in remission under recent supervision. He may meet criteria for a comorbid gambling disorder, also currently in remission. His report of psychotic symptoms when intoxicated (persecutory beliefs) is more consistent with intoxication phenomena rather than a substance induced psychotic disorder.”

77. Dr Ellis pointed out that the STATIC 99R instrument does not discriminate by type of offending and would include sexual offending that was not serious sex offending. He agreed with the assessment of a score of “6” provided by Dr Richard Parker in a risk assessment report dated 2 August 2017, to which reference will be made later in this judgment.

78. Dr Ellis referred to risk factors for the Defendant (page 13):

“Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. [TT’s] offence history indicates this pattern of arousal, for contact child offences, indecent exposure offences and internet child abuse material offences. The pattern has been present across his adult life. His sets of offences are likely reflective of this sexual arousal. Psychological coercion was employed in order to lure victims. He shows diversity in victim gender, which is associated with worse outcomes than persons who offend against female victims alone. Anti-libidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal.

Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is diagnosed with antisocial personality disorder, and shows poor interpersonal function which has been associated with periods of offending. Disturbance in personality function can interfere with honesty in treatment, cooperation with restrictions, passive-aggressive sabotaging of treatment progress, and be a risk for development of at risk mental states such as anxiety and depression. Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. His institutional adjustment has been superficially good, and at times impresses evaluators with his insight and motivation to change. This has previously been either insincere or subject to lapse. There is therefore need to continually address personality function as part of any ongoing treatment process. His personality style would likely be coarsened while using substances.

While substance use per se is more modestly correlated with sexual offending, in this case it is related to the sexual offences and may serve to disinhibit underlying sexual arousal towards objectification of children.”

79. Dr Ellis said (pages 13-14):

“He has participated in some sex offender treatment programs while in custody and more recently in the community. Studies show that persons who reinforce gains made in custodial programs with ongoing work in the community, may display lower rates of recidivism. It is not clear whether this is an effect of treatment itself, or that persons who complete treatment tend to have more control over their behaviour, than those who do not. At this review he displayed little understanding of his motivations to offend, and basic avoidance strategies to desist from offending in the future. His age is not considered protective for sexual offences, as he has continued to display interest in paedophilic material in recent years, and his older age has already been factored in to his STATIC 99 evaluation.

A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of [TT], given the particular pattern of sexual arousal, the likely type of victim would be a child in a situation where they were alone or in a position of vulnerability. The associated intimidation, shame and loss of a sense of bodily integrity would be of the type where serious physical and psychological injury is foreseeable.”

80. Dr Ellis noted that the Defendant had reasonable family, accommodation and employment supports but limited professional supports if unsupervised. His ability to cope with stress without resorting to lapses into substance use has yet to be significantly tested, and "this indicates a moderate-high need for professional services and plans to contain the potential for violence", but maturity may impact on reducing physical violence risk.

81. Dr Ellis said with respect to the need for supervision (page 15):

“In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, [TT] would fall into a group of persons with a risk for serious sexual offending that is statistically high in frequency, of a type with serious consequence, and greater than a theoretical average offender. He would fall into a group of persons with a risk of violent offending that is statistically moderately high in frequency and greater than a theoretical average offender. His previous use of firearms indicates that violence he engages in can rise to a level where serious injury is foreseeable. Specific treatment and supervision would likely reduce both risks, evidenced by currently remaining offence free in the community with high forms of support and supervision.”

82. With respect to the term and conditions of an ESO, Dr Ellis said (page 15-16):

“From a psychiatric perspective if an ESO is applied a period of three years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid personality disorder impacts upon likely treatment and supervision response. Although considerable time has passed from prior contact sexual offences, much of this has been while in custody or supervision, and a stable pattern of behaviour under supervision has only begun to emerge. If this stability is maintained then a review of the risk could be considered.

He requires significant monitoring to support for safe living in the community. This period is estimated based on his current mental state, paraphilia, personality disorder and current attitudes to supervision that will be unlikely to change in the short term.

He would likely benefit from evaluation for antilibidinal medication due to paraphilic nature of his past offences, however at this point is not likely to accept this type of treatment.

He should be encouraged to continue employment. His wife and mother-in-law should be apprised of his previous risk behaviour and know how to report concerns to his supervisors.

I agree that generic substance use counselling is not required at this point, but should form part of his ongoing counselling [regarding] risks of sexual and violent offending.

His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point. He may show further maturity with advancing age.”

Section 9(3)(c) - Other Assessments Prepared as to the Likelihood of the Defendant Committing a Further Serious Offence

83. Section 9(3)(c) requires the Court to have regard to the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing a further serious offence, the willingness of the Defendant to participate in any such assessment and the level of the Defendant’s participation in any such assessment.

84. Assessments have been conducted with respect to the Defendant on a number of occasions since 1976.

Assessments of Defendant Between 1976 and 2010

85. On 26 October 1976, a report was prepared by Dr E Fischer, senior psychiatrist, Prison Medical Service, for the Defendant’s 1976 wilful and obscene exposure offence. Dr Fischer expressed the view that the Defendant "presents as a young man with a personality disorder'', although not "any overt psychiatric illness". He also observed that the Defendant "has no insight whatsoever". Dr Fischer concluded that the Defendant's case should be treated "purely and simply on its legal merits", rather than by reference to any "psychiatric disturbance or symptomatology".

86. On 14 October 1982, a report was prepared by Ms Audrey Lamb, clinical psychologist, at the request of the Defendant in the context of a "serious count of stealing" with which he was then charged. Ms Lamb described the Defendant as "a man suffering from depression and low self-esteem who has problems in accepting his sexuality" and who is "unable in times of stress to foresee the consequences of his actions". The reference to the Defendant's "sexuality" appears to be a reference to "consistent strains in [the Defendant's] marriage sexually", rather than a reference to any propensity for sexual offending.

87. On 23 May 1989, a report was prepared for the Classification Committee by Ms Tracey Jones, psychologist, Department of Corrective Services with respect to the Defendant’s prison classification for the sentences passed by Wood J on 14 December 1988. This report expressed a number of positive views about the Defendant, including that he was "obviously distressed about the offences", he "exhibited a great deal of insight into his behaviour", "[Rationalisation] for the offences was limited" and he "seems to accept responsibility for both the crimes and the length of sentence he was given". Contrary to some of the Defendant's claims about his sexual offending at this point, Ms Jones recorded that "[d]rug dependency does not seem a major issue". Ms Jones concluded that "it may be advisable for [the Defendant] to attend the Sex Offenders Program at Cooma", although she noted that this may not be necessary as "he has expressed a great deal of insight into his behaviour".

88. On 6 December 1992, a report was prepared by Mr Kevin Wallis, psychologist, seemingly at the request of the convenor of the Sex Offenders Program at Cooma, in which the Defendant participated in the early 1990s. Mr Wallis described the Defendant's offences as "confounding" (because "he has been indoctrinated to the criminal ethic to despise the child molester") and suggested that "[I]t is impossible to come up with an [sic] plausible explanation" as to why they were committed. Mr Wallis expressed a number of positive views about the Defendant, including that he "does not present as being amoral”, he "has never tried to excuse his offences", he "has been candid about his offences and accepts he is totally responsible for [them]" and he "says he is ashamed of what he has done". Ultimately, Mr Wallis assessed the Defendant "as having low risk of committing a future sex offence".

89. On 7 March 1995, a report was prepared by Mr Lyndon Newell, psychologist, Department of Corrective Services. Whilst Mr Newell noted the Defendant's "tendency to impulsivity in behaviour" and "indicators of a personality type characterised by addiction problems", he also expressed a number of positive views about the Defendant, including that he "has not attempted to minimise nor rationalise his offending behaviour", he had not shown any reluctance to explore "past behaviour", which was consistent with "acceptance of responsibility and insight concerning the offences" and he had achieved "apparent emotional stability". Mr Newell concluded that “I cannot see any factors that he is particularly a risk of acting out physically toward others nor a risk of similarly reoffending".

90. On 12 May 1999, a report was prepared by Ms Louise Adams and Ms Zaki Alto, psychologists at the Long Bay Correctional Centre, with respect to a request from the Defendant to participate in a "day leave/works release" program whilst in custody for the armed robbery and related offences for which he was convicted in 1996. This report is notably less positive about the Defendant than some of the previous psychiatric/psychological reports. In particular, the authors comment unfavourably on the Defendant's "reluctance" to discuss his previous sexual offences and his refusal to participate in the CUBIT Sex Offender Program. Further, the authors used an actuarial tool (the Actuarial Risk Assessment (“RRASOR”)) to estimate the Defendant's risk of sexual recidivism as being 49.8% within a five-year period and 73.1% within a 10-year period. Ultimately, the authors assessed the Defendant as posing a "high risk" to the community of engaging in "sexual re-offending". However, this assessment was based in part on information that suggested that the Defendant had never participated in a treatment/rehabilitation program for sex offenders, when in fact, he had participated in the Sex Offenders Program at Cooma in the early 1990s. In a short report dated 7 June 1999, Ms Adams and Ms Alto clarified this aspect, noting the contents of the report of Mr Wallis dated 6 December 1992.

91. A report dated 1 November 1999 was prepared by Ms Lyn Vidler and Ms Anne Young, psychologists, Department of Corrective Services, in the context of a request from the Defendant to participate in a "day leave" program whilst in custody for the armed robbery and other offences for which he was sentenced in 1996. The authors of this report assessed the Defendant in an even less favourable manner than the report of Ms Adams and Ms Alto. The following features of this assessment should be noted:

1. the Defendant's risk of sexual recidivism was assessed using three actuarial tools - the Sex Offender Risk Appraisal Guide, Static 99 and the Thornton Travers Risk Algorithm - all of which indicated that the Defendant had a high risk of re-offending sexually or otherwise violently;

1. the authors specifically disagreed with the conclusions of Ms Jones (see [87] above) and of Mr Wallis (see [88] above) as those reports were based on clinical judgment (rather than actuarial tools) and were affected by the Defendant's self-serving and "minimising" accounts of his sexual offending;

2. the authors stated that the Sex Offenders Program at Cooma (in which the Defendant participated in the early 1990s) was "low intensity" and so would not have been "enough to reduce the risk of the Defendant reoffending";

3. it was noted that the Defendant "declined" to participate in the CUBIT Sex Offender Program, which was considered to be "intensive" or "high intensity”;

4. the authors stated that the Defendant "is not being truthful regarding his drug abuse and some of the issues surrounding the sexual offences", "continues to deny the need to address his sexual offences", "minimises the sexual offences" and "demonstrates limited insight into his offending behaviour with no knowledge of his offence cycle";

5. the authors concluded the assessment of the Defendant as being "a man who has a high risk for sexual and/or violent reoffending".

92. Two further reports dated 7 February 2000 and 30 May 2000 were prepared by Ms Vidler and Ms Young. Although prepared for different purposes, they reached the same conclusions, and depend upon the same basic reasoning, as expressed in the report of 1 November 1999.

93. On 6 March 2006, a report was prepared by Ms Emma Collins, psychologist, at the request of the Defendant's solicitor, whilst the Defendant was in custody for the 2005 armed robbery offences. Ms Collins characterised the Defendant as someone affected by "late onset anti-social behaviour" after "his relatively good early adjustment”. She also stated that "risk assessment would suggest that [the Defendant] has a high chance [of] relapse" in respect of sexual re-offending. It recommended (amongst other things) ongoing psychological treatment.

94. A report dated 14 May 2010 was prepared by Ms Randa Abdelsayed, forensic psychologist, Dawn De Loas Centre, at the request of the Defendant's parole officer. The report contained a summary of some of the Defendant's "contact” with psychology programs offered by the then Department of Corrective Services. Notably, it recorded that the referral of the Defendant to "the Sex Offender Programme (SOP) ... has been explored with [him] in the past”, but that "[h]e does not wish to participate in an assessment for the programme as he feels that his historical offences have been dealt with during the sentence in question". Ms Abdelsayed expressed the view that, as at 2010, the Static-99R was "not a suitable instrument in the Defendant's case given the time lapse since the sexual offences". In expressing this view, Ms Abdelsayed appeared to have overlooked the 2002 exposure offences in Queensland, and to have focused on the 1988 and 1989 sexual offences. This may be contrasted with the Static-99R assessment completed in 2010 and 2011.

Assessment Made in 2017 Concerning the Defendant

95. A risk assessment report dated 2 August 2017 was prepared by Dr Richard Parker, psychologist, at the request of Corrective Services NSW in anticipation of the present application. Dr Parker did not himself interview the Defendant for the purpose of this report. He relied upon an interview with the Defendant by one of his colleagues (as well as Dr Parker’s examination of extensive documentary material).

96. In relation to the task of assessing the Defendant’s risk of re-offending, Dr Parker made the following observations:

1. he stressed that "[I]t is not scientifically possible to accurately predict whether or not an individual offender will or will not reoffend";

2. he assessed the risk of the Defendant re-offending using four "risk assessment instruments". The results of these assessments was summarised as follows:

1. Level of Service Inventory-Revised (“LSI-R”) - the Defendant was assessed on 24 February 2017 and placed in the "medium" category. Data collected by Corrective Services NSW suggested that 54% of offenders placed in the "medium" category re-offend within two years;

2. Static-99R - the Defendant was assessed on 26 April 2017 and placed in the "Level IV-b" category (the category formerly known as "high"). Offenders in this category are "perceptibly higher risk than the typical offender". The Defendant's score is in the 94th percentile and he would be expected to have a "recidivism rate" 3.77 times higher than the "typical sex offender”;

3. Stable 2007 - the Defendant scored "7" and was placed in the "moderate" risk category relative to other male sex offenders;

4. Combined Static-99R and Stable 2007 - when the Defendant's Static-99R and Stable 2007 results were combined, his "overall risk level” is "high";

3. with respect to the relationship between the Defendant's sexual and non-sexual offending, Dr Parker observed that, whilst the "prime drivers" for each type of offending "are likely to be somewhat separate", "it is also likely there is some overlap between the drivers".

4. with respect to the Defendant's substance abuse, Dr Parker noted that the Defendant had "reported that most (if not all) of his sexual offences were committed when he was under the influence of drugs or alcohol”, and concluded that "[s]ubstance abuse probably contributes to his risk of sexual offending through its disinhibitory effects ... and the necessary associations with antisocial influences".

5. with respect to the Defendant's "sexual drive/preoccupation", Dr Parker stated that he "appears to have a strong and enduring sexual attraction to children" and that he "fits the category of a committed offender, someone who will actively seek opportunities to offend, grooming parents and seeking opportunities to be alone with a vulnerable child".

6. Dr Parker reported that the significance of the apparently long gaps between the Defendant's sexual offences was diminished in this case. In Dr Parker's opinion, those gaps are "more illusory, as he has spent much of the remaining time in custody for non-sexual offences" and that, in any event, "[c]hild sexual offenders often go significant periods without molesting a child ..., so the absence of formal complaints over a period of months or a year is not a basis for amending a risk assessment”.

7. Dr Parker discussed a range of potential "protective factors" including:

1. the Defendant's relationship with his wife - Dr Parker stated that it "appears to do little to reduce" his sexual attraction to children. He stated that, whilst "living with his wife ... would normally be counted as a protective factor", "the fact that she [his wife] failed to recognise clear warning signs about his ongoing fascination with children suggests that this relationship may not provide the level of protection normally associated with such relationships";

2. with respect to the Defendant's participation in treatment/rehabilitation programs, Dr Parker cautioned that the Sex Offenders Program at Cooma, in which the Defendant participated in the early 1990s, "was designed for lower risk offenders and he has not completed a program of sufficient intensity to impact upon his risk of reoffending". It was also noted that, whilst it is a "good sign" that the Defendant "has been participating in risk management sessions with Forensic Psychology Services (FPS)" since his release on parole in April 2017, "it remains to be seen whether he will internalise the attitudes and beliefs needed to make acting upon his [sexual] desires as disdainful to him as it is to most other people";

8. finally, in terms of recommendations, whilst Dr Parker stopped short of an outright endorsement of the making of an ESO in respect of the Defendant, he did note that, if an ESO is made, it is likely that the Defendant “will benefit from intensive supervision and case management by Corrective Services NSW”. Dr Parker also noted that, if an ESO is not made, “the Defendant would be unable to access services from FPS”.

Section 9(3)(d1) - Report Prepared by Corrective Services NSW Concerning Management of Defendant in the Community

97. A report was prepared by Mr Andrew Sandercock, Community Corrections Officer, dated 25 August 2017. In that report, Mr Sandercock proposed that a risk management plan would require a number of "management strategies" which could be tailored to the particular "risks" in the Defendant's case. Those strategies included:

1. interviews (including face-to-face interviews) with the Defendant;

2. field visits to the Defendant’s home;

3. liaison with the Defendant’s "third party contacts" (for example, his employer, family members, other government services, etc);

4. monitoring (including electronic monitoring), schedules and curfews;

5. referral to drug and alcohol services;

6. alcohol and drug testing;

7. management and limitation of the Defendant’s contact with children under 18 years of age;

8. non-association and place restrictions.

Section 9(3)(e) - Rehabilitation and Treatment Programs Participated in by the Defendant

98. The Defendant participated in the Sex Offenders Program at Cooma in the early 1990s when he was serving sentences of imprisonment imposed on 14 December 1988.

99. However, subsequent psychological risk assessments, including the most recent assessment conducted by Dr Parker, indicated that the Cooma program was not of a sufficiently high intensity for an offender with the Defendant's profile.

100. The Defendant completed that program many years ago, and has refused to participate in the more intensive program, the CUBIT Sex Offender Program.

101. Since being released on the recognisance release order in April 2017, the Defendant has participated and engaged with the Forensic Psychological Service Risk Management sessions.

102. The Defendant has also participated in and completed a number of other programs that do not directly address his sexual offending:

1. a drug and alcohol program "Relapse Prevention" (1997; 1999);

2. a drug and alcohol program "An Introduction to Personal Change" (1997);

3. a drug and alcohol program "Self Help Group" (1997);

4. other drug and alcohol programs, including the methadone program and individual and group counselling for substance abusers;

5. a psycho-education course for perpetrators of armed robbery (2000);

6. an Anger Management Program (2008).

Section 9(3)(f) - Compliance with Parole Obligations

103. The Plaintiff submitted (and I accept) that despite some reports that the Defendant has been generally compliant with supervision when subject to parole, this had not been sufficient to prevent him from using illicit drugs and re-offending.

104. It is also notable that at least some of the Defendant's offending, including the most serious sexual offences in 1988 and the armed robbery offences in 2005, were committed whilst he was subject to conditional liberty. A number of the sex offences for which the Defendant was sentenced in 1988 were committed whilst he was on bail. The armed robbery offences, charged in September 1996, were committed whilst the Defendant was on parole for the sex offences charged in 1988.

105. These factors do not assist the Defendant on the present application.

Section 9(3)(g) - Compliance with Child Protection Legislation Obligations

106. There is nothing to suggest that the Defendant has not complied with these obligations.

Section 9(3)(i) - Any Other Information as to the Likelihood of Committing Further Sex Offences

107. Whilst the Defendant was serving his 1988 sentence for sex offences, he was further charged on 3 August 2000 with four counts of sexual assault, two counts of attempted homosexual assault with a male under 10 years and four counts of homosexual assault with a male under 10 years. However, those charges were ultimately withdrawn.

108. I accept the Plaintiff’s submission that a charged crime which is withdrawn (or even where the accused is acquitted) may still be admissible in proceedings under the HRO Act so far as statistical risk assessment issues are concerned: State of New South Wales v Thomas [2010] NSWSC 677 at [39]; State of New South Wales v Conway [2011] NSWSC 976 at [27]-[39].

109. As Davies J observed in State of New South Wales v Conway, although these matters would not fall for consideration under the criminal history provision in s.9(3)(h), they may be relevant under factors now contained in ss.9(2) and 9(3)(i), being the safety of the community and other available information as to the likelihood that the Defendant will commit further offences of a sexual nature. Relying on these authorities, the Plaintiff submits (and I accept) that charged but unproved allegations of sexual misconduct for which the Defendant has not been tried (and which are not admitted) could similarly be taken into account at least as a relevant consideration as to risk assessment under ss.9(2), 9(3)(d), and 9(3)(i), but could not be relied on as part of the Defendant’s criminal history under s.9(3)(h) HRO Act.

Section 9(2) - The Safety of the Community

110. All of the factors considered so far relate to the paramount consideration under s.9(2) HRO Act being the safety of the community. The Defendant has presented with an ongoing, strong and enduring sexual attraction to children. Despite the early psychologists’ reports suggesting that the Defendant had displayed some insight into his attraction to children, the Defendant has refused to further participate in appropriate treatment programs such as the CUBIT Sex Offender Program and has a long history of substance abuse which gives rise to serious concern for the safety of the community if the Defendant was to be released without supervision.

111. The offences committed by the Defendant in Queensland in 2001 indicate that the confidence placed by psychologists in the 1990s in the Defendant (his not being likely to re-offend) was misplaced, albeit that his sex offending was at a lower level of seriousness than his offending in the 1980s.

112. The Defendant’s recent offending with respect to child pornography adds a new dimension to his earlier history of child sex offences. The Courts have observed that child pornography offences are frequently committed by persons of otherwise good character: R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 at 43-44 [63]; Mouscas v R [2008] NSWCCA 181 at [37]; R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at 318 [126]. In this case, the Defendant has a very substantial criminal history including child sex offences committed repeatedly against girls and boys. His recent use of child pornography (and his associated thought processes) is a real cause for concern with respect to the protection of children within the community.

113. The reports of Dr Martin and Dr Ellis provide a cogent foundation for contemporaneous concerns with respect to the safety of the community if the Defendant was to be at large in the community without supervision. A further troubling feature is that the Defendant’s wife does not seem to have provided a level of support and control, in that there has been an inability on her part to recognise the clear warning signs of the Defendant’s sexual fascination with children. Accordingly, this subjective feature (which may be a significant one in other cases) does not provide any assistance to the Defendant in this case.

Has the Plaintiff Established that an ESO Should be Made in this Case?

114. Section 5B HRO Act provides:

“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.”

115. I have already expressed my satisfaction that the Defendant falls within each of s.5B(a), (b) and (c) HRO Act (see [16]-[19] above). The remaining question is whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

116. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, the Court of Appeal observed that determination whether a risk is unacceptable involves an evaluative task (at 646 [51]). The Court held that the evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection (at 648-649 [61]).

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

118. Section 5D HRO Act makes clear that the Court is not required to determine that the risk of the Defendant 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. Accordingly, an unacceptable risk of committing a serious offence can be a risk which is less than 50%: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at 396 [21].

119. In determining whether a proper foundation has been demonstrated for the making of an ESO, I have regard to all the evidence before the Court which I have summarised under the various headings contained in ss.9(2) and 9(3) HRO Act. The following features with respect to the Defendant are pertinent to this question:

1. his history and pattern of offending;

2. his lack of effective support from his relationships;

3. his ongoing and chronic sexual attraction to children;

4. the recommended need for intensive supervision referred to in the reports of Dr Martin, Dr Ellis, Dr Parker and Mr Sandercock;

5. the assessment that the Defendant has a high risk of further sexual re-offending;

6. the assessed risk of further violent offending on the part of the Defendant who has a history of possessing weapons during robberies;

7. the Defendant’s substance abuse history (as recent as 2015) which has been associated with his offending in the form of sex offences and robbery;

8. the Defendant’s poor responses to supervision;

9. the Defendant’s limited insight into his motivation for offending and his poor coping strategies;

10. the assessed likely serious consequences for members of the community of any further serious sex offending on the part of the Defendant.

120. I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing further serious sex offences (in particular) if he is not kept under supervision by way of an ESO.

Duration of the ESO

121. I am satisfied that an ESO should be made for a period of three years as sought by the Plaintiff. The Defendant does not oppose the making of an ESO of this duration.

122. I am satisfied that a period of three years constitutes the minimum period of time for which supervision is required to address the unacceptable risk posed by the Defendant. In reaching this conclusion, I have been greatly assisted by the reports of Dr Martin and Dr Ellis as well as the earlier reports of Dr Parker and Mr Sandercock. A period of three years is appropriate to address the risk and provide for the safety of the community.

123. I am satisfied that an ESO for three years will serve the primary object of the HRO Act of ensuring the safety and protection of the community whilst also promoting a further object of the legislation being encouragement of the Defendant to undertake rehabilitation: s.3(1) and (2) HRO Act.

Conditions of the ESO

124. A number of conditions have applied to the ISO for the Defendant which has been in operation since 3 February 2018.

125. The Plaintiff applies to have all existing conditions attached to an ESO subject to one variation to which I will turn shortly. Ms Cook made submissions concerning Condition 5 with respect to electronic monitoring. Ms Cook submitted that Condition 49, which relates to information sharing, should be modified in its terms.

126. At the final hearing, Ms Cook also sought a modification of Condition 16(a) which relates to the ability of the Defendant to go to a school without the prior approval of his Department Supervising Officer (“DSO”).

127. With respect to conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached. A proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v Ali [2010] NSWSC 1045 at [88]; State of New South Wales v Fisk at [96].

Condition 49 Concerning Information Sharing

128. Condition 49 of the ISO states:

“The Defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW [Corrective Services NSW].”

129. Ms Cook submitted that a modification should be made to Condition 49 and the Plaintiff did not oppose this amendment. I am satisfied that the amended form of Condition 49 should be made in this case.

130. In the form it will take as a condition of the ESO, Condition 49 will state:

“The Defendant must agree to any information being shared between those supervising him within the agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.”

Condition 5 - Electronic Monitoring - s.11(e) HRO Act

131. The Plaintiff seeks the inclusion of Condition 5 concerning electronic monitoring which states:

“The Defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.”

132. Condition 5 has been in place as part of the ISO since 3 February 2018.

133. Ms Cook opposed the making of a condition requiring electronic monitoring. In a supplementary submission dated 19 March 2018, Ms Cook submitted that, if the Court was minded to include an electronic monitoring condition, then a sunset clause ought be included as used in State of New South Wales v Kay [2017] NSWSC 254 and State of New South Wales v Weribone [2016] NSWSC 1474.

134. Ms Cook submitted that the Defendant had been at liberty in the community subject to the recognisance release order between 3 April 2017 and 3 February 2018 without any requirement that he wear electronic monitoring equipment. Whilst acknowledging the matters raised in the reports of Dr Martin and Dr Ellis arising from their examination of the Defendant in January 2018, Ms Cook noted that electronic monitoring was not urged strongly by either psychiatrist.

135. It was submitted for the Defendant that a proper basis must be demonstrated for the imposition of conditions which cannot be unjustifiably onerous or simply punitive: State of New South Wales v Green (Final) [2013] NSWSC 1003. It was submitted, as well, that it will usually be necessary for such a condition to be related to the mitigation of the unacceptable risk arising with respect to the Defendant: State of New South Wales v Burns [2014] NSWSC 1014 at [59]. Relying upon the decision of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89], counsel submitted that the imposition of conditions should not simply be an expression of State paternalism nor should they be imposed to meet what might be thought to be in the public interest in some generalised sense, or because they might be a convenient or resource efficient means of Corrective Services NSW exercising supervision under an ESO.

136. Ms Cook submitted that a proper basis had not been demonstrated by the Plaintiff for the imposition of an electronic monitoring condition.

137. Alternatively, Ms Cook submitted that a sunset clause should be included if the Court was to order an electronic monitoring condition. It was submitted that setting such a limit would promote the rehabilitation of the Defendant and provide for transparency of the requirements of the ESO whilst achieving the paramount consideration of the safety of the community.

138. Mr Aitken submitted that there were particular features of this case which made an electronic monitoring condition highly appropriate. He pointed to the strength of the assessments made in the recent reports of Dr Martin and Dr Ellis as well as the risk management report dated 25 August 2017 of Mr Sandercock which explained the management strategy with respect to electronic monitoring. Mr Sandercock explained that electronic monitoring would allow Community Corrections (and the Electronic Monitoring Unit staff) to closely monitor the Defendant’s movements and his adherence to schedules and curfews. This would operate to minimise opportunities for impulsive behaviour on his part.

139. Mr Aitken emphasised the need for electronic monitoring given the occupation of the Defendant as a driver. This work takes the Defendant to different parts of the city of Sydney and sometimes out of Sydney. It is not static work at one place of employment. Whilst noting the desirability of the Defendant being employed, it was emphasised for the Plaintiff that the Defendant’s capacity to place himself in risky circumstances was substantial given his mobile employment. Against this background, it was submitted that electronic monitoring was an important feature of the conditions of an ESO intended to operate in the interests of the safety of the community.

140. In a supplementary submission dated 19 March 2018, Mr Aitken opposed the use of a sunset clause as part of any electronic monitoring condition. He submitted that electronic monitoring is intended to function as an ongoing aid to ameliorating the risk of further serious offending posed by the Defendant. Flexibility is said to be required as part of the risk management process. The Plaintiff submitted that a sunset clause removes the inherent flexibility in the present arrangement and replaces it with a predetermined decision which presupposes the likely assessment of risk in 12 months’ time. Mr Aitken submitted that orders made in other cases are of limited assistance as each case turns on its own facts.

141. I accept that a condition requiring the wearing of electronic monitoring equipment should not be imposed lightly. A condition of this type involves a measure of interference and inconvenience for a person in the Defendant’s position.

142. However, the evidence reveals that, even at the age of 63 years, the Defendant is a significant risk of further offending, in particular with respect to sex offences against children. The capacity for opportunistic sex offending against children will be reduced significantly by the use of appropriate electronic monitoring equipment. This is especially so given the Defendant’s employment which takes him to different places at different times throughout the working day. Indeed, the present case is a good example of the effective use of electronic monitoring in a manner which is intended to operate in the interests of community safety whilst allowing the Defendant to maintain his employment in the community.

143. I accept that there is a measure of inconvenience for the Defendant in having to wear electronic monitoring equipment. That said, the equipment may be worn under clothing so that it is not obtrusive. I am satisfied that the electronic monitoring equipment condition should be imposed in this case.

144. I have given consideration to the use of a sunset clause in this case. I am not satisfied that such a clause should be included with respect to the Defendant. The electronic monitoring condition will itself have a measure of flexibility as its continuation is at the discretion of the DSO. Further, there will be an assessment of the Defendant’s monitoring stage which will be undertaken every two months. To impose an outer limit of 12 months by way of a sunset clause is not appropriate in this case.

Condition 16(a) - Limits Upon the Defendant Going to Schools - s.11(f), (g) and (h) HRO Act

145. Conditions 15 and 16(a) as in place under the ISO provide as follows:

“15.    The Defendant must not go to a place if his DSO tells him he cannot go there.

16.   Without limiting condition 15 above, the Defendant must not go to any of the following without prior approving of his DSO:

(a)   Day-care centres, pre-schools and schools;

… .”

146. The evidence before the Court reveals that the Defendant’s employment as a driver involves his attendance for work purposes every two months at a school. The Defendant has been subject to Conditions 15 and 16(a) since the commencement of the ISO on 3 February 2018. Conditions of this type did not operate prior to that date when the Defendant was subject to the conditions of his recognisance release order.

147. It appears that the Defendant’s employer was aware of his parole-type conditions which operated under the recognisance release order up to 2 February 2018, but that he is not aware of the conditions of the ISO or of the prospect that there may be an ESO with conditions.

148. On 14 March 2018, a direction was given to the Defendant for the purpose of Conditions 15 and 16(a) that he must not go to a school including in the course of his employment as a driver. At the final hearing on 15 March 2018, Mr Sandercock gave evidence concerning this issue. Arising from that evidence, it was submitted for the Defendant that there had been no need for such a condition or restriction upon the Defendant in the period between 3 April 2017 and 3 February 2018 whilst he was subject to the recognisance release order. Ms Cook submitted that Condition 16(a) should be varied so that it would operate during the currency of the ESO to allow the Defendant to go to the school for the purpose of his employment as a driver only whilst he was in the direct company of a staff member employed by the Defendant’s employer or a member of school staff (T30-31, 15 March 2018).

149. The Defendant has expressed concern to the DSO, and through his counsel to the Court, that if he was unable to attend the school, his employment would be in jeopardy. There is no evidence from the Defendant or his employer on this issue. The Court was informed that the employer is unaware of the present circumstances affecting the Defendant including this application.

150. Mr Aitken submitted that the evidence did not provide a foundation for a finding that the Defendant would lose his employment if he could not attend the school. He submitted that the evidence indicated that the Defendant’s work related to one school every two months so that it was not a major part of his employment.

151. The evidence does not permit a finding that the Defendant would lose his employment if he was unable to attend a single school every two months for work purposes. This is a minor part of his employment. The evidence indicates as well that the Defendant’s employer thinks highly of him and considers him to be a hard worker.

152. It appears, as well, from the evidence that the authorities at the school in question are unaware of the Defendant’s background, let alone the making of the present application. Further, without the employer knowing what is happening, it is not possible for the DSO to confirm with the employer the circumstances surrounding any attendance by the Defendant at the school, including the time of attendance and ensuring that a member of the school staff is with the Defendant at all times when he is on school premises.

153. On the face of it, it is not appropriate for the Defendant to be entering school premises unescorted without the school authorities having some knowledge of the position so as to permit those authorities to discharge their duty of care to their own students.

154. I accept that the Defendant is placed in a position of difficulty with respect to this aspect if he does not inform his employer of the true position. However, I do not consider that this aspect should militate against the imposition of what is a clearly appropriate condition, designed to operate in the interests of community protection and the safety of children.

155. The Defendant has a history of predatory sex offending against children of both sexes. Although his physical sex offending against the persons of children occurred some years ago, the Defendant has committed child pornography offences in recent times which confirm his pervasive interest in sexual activity with children.

156. The reports of Dr Martin and Dr Ellis indicate with some force the contemporary nature of concerns with respect to the Defendant in the area of child sex offending and the need to take substantial steps to mitigate risk in that regard.

157. In my view, it is quite inappropriate to allow the Defendant to enter a school in circumstances where neither his employer nor the school authorities have knowledge of the true position with respect to him.

158. Although the Defendant is concerned that his employment may be at risk, I am not satisfied that there is any objective foundation for that concern given the minor part of his employment which involves attendance at one school every two months. The responsible answer for the Court to give to the Defendant’s concern in this area is to fix a condition which will promote the safety of the community.

159. I am satisfied that Conditions 15 and 16(a) should form part of the ESO. These conditions are entirely appropriate having regard to the risk posed by the Defendant and the need for the relevant authorities to take appropriate steps to supervise the Defendant in circumstances of risk.

160. I am satisfied that all conditions proposed by the Plaintiff for the ESO in this case are appropriate and should be fixed for the purpose of s.11 HRO Act.

Conclusion

161. I am satisfied that the statutory requirements for the making of an ESO have been established in this case. I am likewise satisfied that an ESO for a period of three years should be made.

162. I am satisfied that the ESO should be subject to Conditions 1-49 as sought by the Plaintiff with Condition 49 being amended in the manner referred to earlier (at [130]) above).

163. With respect to the contested conditions, for the reasons contained in this judgment, I am satisfied that an electronic monitoring condition should be included (without a sunset clause) and that Conditions 15 and 16(a) should apply so that the Defendant must not go to any school without the prior approval of his DSO.

164. I make the following orders:

1. pursuant to s.9(1)(a) Crimes (High Risk Offenders) Act 2006, I order that the Defendant be subject to an extended supervision order for a period of three years from today, subject to Conditions 1-49 which follow as a Schedule to this judgment;

2. pursuant to s.11 Crimes (High Risk Offenders) Act 2006, I direct that the Defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment;

3. I make an order permitting the reports prepared by Dr Adam Martin and Dr Andrew Ellis to be provided to Corrective Services NSW, any agency involved in the Defendant’s supervision and the Defendant’s treating clinician(s) or health care practitioner(s);

4. I make an order that access to the Court file in respect to any document shall not be granted to a non-party without the leave of a Judge of this 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.

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SCHEDULE

EXTENDED SUPERVISION ORDER

CONDITIONS APPLICABLE TO TT

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.    The Defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2.    The Defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3.    The Defendant must follow all reasonable directions by his DSO or any other person supervising him.

4.    The Defendant must attend the police station nearest to his approved accommodation within three days of 22 March 2018 and provide a copy of this order.

Electronic Monitoring

5.    The Defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

6.    If directed, the Defendant must provide a weekly plan (called a schedule of movements) and this is to be provided three days before it is due to start.

7.    If the Defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

8.    The Defendant must not deviate from his approved schedule of movements except in an emergency.

9.    The Defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

10.    The Defendant must live at an address approved by his DSO.

11.    The Defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

12.    The Defendant must not spend the night anywhere other than his approved address without the approval of his DSO.

13.    The Defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, unless 24 hours’ notice has been given to his DSO.

Part C: Place and travel restrictions

14.    The Defendant must not leave New South Wales without the approval of CSNSW.

15.    The Defendant must not go to a place if his DSO tells him he cannot go there.

16.    Without limiting Condition 15 above, the Defendant must not go to any of the following without prior approval of his DSO:

(a)    day-care centres, pre-schools and schools;

(b)    amusement parlours, amusement parks and theme parks;

(c)    cinemas;

(d)    libraries and museums;

(e)   camping grounds and caravan parks;

(f)    children’s playgrounds, parks, and areas with play equipment provided for the use of children;

(g)    pools, playing fields and sporting facilities;

(h)    concerts, theatre shows, movies, events and activities intended for the entertainment of children; or

(i)   residences where the Defendant knows that persons under 18 ordinarily reside;

(j)    Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

17.    The Defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without prior approval from his DSO.

Part D: Employment, finance and education

18.    If the Defendant is unemployed, the Defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

19.    The Defendant must not start any job, volunteer work or educational course without the approval of his DSO.

Part E: Drugs and alcohol

20.    The Defendant must not possess or use illegal drugs, or use prescription medication other than as prescribed.

21.    The Defendant must submit to testing for drugs and alcohol as directed by his DSO.

22.    The Defendant must not enter any licensed premises, use, or possess alcohol without the approval of his DSO.

23.    The Defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association

Association with Children

24.    The Defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.

Associations with Others (not children)

25.    The Defendant must not associate with people that his DSO tells him not to.

26.    The Defendant must not, without prior approval of his DSO, associate with people who are consuming or under the influence of illegal drugs.

27.    The Defendant must not, without prior approval of his DSO, associate with people who are consuming or under the influence of alcohol.

28.    If the Defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

29.    The Defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Access to the internet and other electronic communication

30.    The Defendant must give his DSO a list of all communication and data storage devices in the Defendant’s possession and advise the DSO of any change to the inventory immediately. This includes, but is not limited to:

(a)    details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the Defendant and the nature and details of the internet connection, as directed; and

(b)    services and applications he uses to communicate with or to access the internet such as phones, tablet devices, storage devices, or computers.

31.    The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the Defendant, including the Defendant's email addresses, in monitoring compliance with this order.

32.    The Defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

33.    The Defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

34.    The Defendant must provide a list of communication devices and data storage devices in the Defendant’s possession and advise the DSO of any change to the inventory immediately.

Part J: Search and seizure

35.    If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs (d) to (g) below) is necessary:

(a)    for the safety and welfare of residents or staff or persons present at the Defendant’s approved address;

(b)    to monitor the Defendant’s compliance with this order; or

(c)    because the DSO reasonably suspects the Defendant of behaviour or conduct associated with an increased risk of the Defendant committing a serious offence;

then the DSO may direct, and the Defendant must submit to:

(d)    search and inspection of any part of, or anything in, the Defendant’s approved address;

(e)    search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the Defendant;

(f)    search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the Defendant; and/or

(g)    search and examination of his person.

36.    For the purposes of the above condition:

(a)    a search of the Defendant means a garment search or a pat-down search.

(b)    to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the Defendant, or by an Officer of CSNSW of the same sex as the Defendant under the direction of the DSO.

NOTE:

"Garment search" means a search of any article of clothing worn by the Defendant or in the Defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

37.    During a search carried out pursuant to Condition 35 above, the Defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the Defendant's possession or not, which the DSO reasonably suspects will compromise:

(a)    the safety of residents or of staff at the Defendant's approved address;

(b)    the welfare or safety of any member of the public or any other person; or

(c)    the Defendant's compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the Defendant committing a serious offence.

38.    The Defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

39.    The Defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to Condition 35 sub paragraphs (a) to (g) above.

Part K: Access to pornographic, violent and classified material

40.    The Defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, or any other material as directed by the DSO.

41.    The Defendant must not possess or access material classified as X18+, Restricted Category 2, or Restricted Category 1, without approval of his DSO.

Part L: Personal details and appearance

42.    The Defendant must not change his name from [TT] or use any other name without the approval of his DSO.

43.    The Defendant must not use any alias, log-in name, or a name other than [TT] or use any email address other than those known to the DSO under Condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

44.    The Defendant must let CSNSW photograph him.

45.    If the Defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part M: Medical intervention and treatment

46.    The Defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

47.    The Defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

48.    The Defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

49.    The Defendant must agree to any information being shared between those supervising him within agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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Decision last updated: 22 March 2018