State of New South Wales v TT (Preliminary)

[2017] NSWSC 1797

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v TT (Preliminary) [2017] NSWSC 1797

Hearing dates:

12 December 2017

Date of orders:

18 December 2017

Decision date:

18 December 2017

Jurisdiction:

Common Law

Before:

Walton J

Decision:

I have determined to make an order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 3 February 2018, which order will operate for a period of 28 days.

 

Pursuant to s 11 of the Act, orders will be made directing the defendant to comply with conditions, the terms of which shall be the terms of the amended schedule to the summons filed 14 November 2017 as further amended in accordance with this judgment.

 Pursuant to s 7(4) of the Act, the Court shall also make orders appointing two qualified psychiatrists to conduct psychiatric examinations of the defendant and furnish reports to this Court. The ancillary orders sought by the State should be also granted.

Catchwords:

HIGH RISK SEX OFFENDER – interim supervision order sought – amendment Act – amended provisions apply – preliminary hearing – mandatory factors – determination under s 5B(d) – extended supervision order – appointment of psychiatrists – conditions – directions

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (High Risk Offenders) Amendment Act 2017 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Customs Act 1901 (Cth)
Statute Law (Miscellaneous Provisions) Act 2000 (NSW)

Cases Cited:

Citie Centre Projects (No 2) Pty Ltd v Council of the Shire Albert and Anor [1992] QPLR 258
Hunter Quarries Pty Ltd v Morrison (no 4) [2016] NSWIC 4
Kennedy v Spratt [1972] AC 83
R v Bronson Mathew Blessington [2005] NSWSC 340
R v Carngham (1978) 140 CLR 487
R v Warfield (1995) 34 NSWLR 200
Re Camel Export Co Pty Ltd Australian Trade Commission (1986) 10 ALD 293
State of New South Wales v Anderson [2015] NSWSC 1515
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 French (Final) [2017] NSWSC 1475
State of New South Wales v Lynn [2013] NSWSC 1147
State of New South Wales v Reed (Preliminary) [2011] NSWSC 625
State of New South Wales v Sines (No 3) [2017] NSWSC 985
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Veen v The Queen (No 2) (1988) 164 CLR 465
Weetra v Beshara (1987) 46 SASR 484
Winsor v Boaden (1953) 90 CLR 345

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11-18 October 2017

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
TT (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
A Cook (Defendant)

  Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2017/344591

Publication restriction:

Pursuant to s 13 Court Suppression and Non-publication Orders Act 2010, the defendant in these proceedings is to be referred in the judgment published in these proceedings on the preliminary hearing of the application as “TT”.

Judgment

1. HIS HONOUR: By a summons filed on 14 November 2017, the State of New South Wales (“the State”) sought an order that the defendant be the subject of a high risk sex offender extended supervision order for a period of five years from the date of the order, pursuant to ss 5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) either in its “current form” or “as amended”. (A related order was sought under s 10 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the summons which schedule was amended during the course of the proceedings.

2. The State further sought an interim supervision order for a period of 28 days from 3 February 2018 pursuant to s 10A of, again, “the current Act or the amended Act”. With the same qualification as to the statutory foundation, the State also sought orders, pursuant to section 7(4) of the Act, appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and furnish reports to this Court on the results of those examinations by a date to be fixed by the Court and directing the defendant to attend those examinations. Ancillary orders were also sought permitting any reports be provided to certain agencies or persons (and order limiting access to the courts file was also sought by the State).

3. The defendant opposed the making of an interim supervision order and contended the defendant was not “a high risk offender” or, to use the form of the Crimes (High Risk Offenders) Act after amendment (as discussed below), the evidence did not establish to a high degree of probability the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision under the order (see the discussion of s 5B(d) below). It was also contended there was not a proper basis for the making of such an order on discretionary grounds (having regard to the matters applicable to a determination as to whether or not to make an extended supervision order). Alternatively, it was submitted that any conditions imposed under the supervision order should be restricted to those akin to supervision arrangement under the recognizance release order.

4. On 13 October 2016, following pleas of guilty, the defendant was convicted and sentenced for three counts of using a carriage service to access child pornography contrary to s 474.19(1) of the Criminal Code (Cth). For the first count, the defendant was sentenced to a term of imprisonment for 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.

5. Hunt J then stated, in sentencing the defendant, “after serving a year and 2 months which will be on 3 April 2017 you are to be released upon you entering a recognizance pursuant to [s 20(1) of the Crimes Act 1914 (Cth)] yourself in the sum of $500 with the following conditions: to be of good behaviour for a period of 10 months from that date and to appear before the Court if called upon to do so in respect of any breach”. In the recognizance executed by his Honour on 3 April 2017 there was added “accept the supervision of the probation service (particularly in relation to offending relapse prevention) for such a period as the service directs.”

6. In the result, the defendant has been in the community under a recognizance release order since 3 April 2017 which was imposed, as noted above, as part of the sentencing of the defendant for what the parties described as “the index offences” (hereafter “the offences”). The defendant’s compliance with the supervision imposed under those orders and the absence of offending and drug or alcohol use during that period were a particular focus of the defendant’s submissions.

7. This judgment concerns the application for an interim supervision order and ancillary or supplementary orders under orders 1, 4 and 5 or the prayers for relief within the context of a preliminary hearing.

CRIMES (HIGH RISK OFFENDERS) AMENDMENT ACT 2017

8. The formulation appearing in the orders sought in the summons (by reference to a current or amended form of the requisite legislation) resulted from amendments to the Act enacted by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW), which came into effect on 6 December 2017 (“the Amending Act”). I shall hereafter refer to the Crimes (High Risk Offenders) Act, after the commencement of the Amending Act, as “the Act” and the terms of that Act before the Amending Act as “the former Act”

9. It was common ground the amendments which were introduced by the Amending Act constituted the relevant law for the determination of the applications brought by the summons including the application for an interim supervision order. That common position is, in my view, well founded.

Clause 19 of the Act

10. Schedule 1, Pt 2, cl 19 of the Act provides as follows:

19   Applications

(1)  An application duly made under Part 2 or 3 of this Act as in force immediately before the amendments made to provisions of those Parts by the amending Act is taken to have been duly made under those Parts as amended.

(2)  The amendments made by the amending Act apply to and in respect of proceedings in relation to an application made under Part 2 or 3 of this Act but not determined before the commencement of the amendments

11. I accept the submission of the plaintiff, in that respect, that cl 19(1) should be construed as meaning:

1. An application made in conformity or regularity with the formal or mechanical requirements of Div 1 of Pt 2 of the Act as in force immediately before the amending Act will be taken to have been made in conformity or regularity with the provisions of the post amending Act;

2. The formal or mechanical requirements of the Div for those purposes are as found in s 6, Div 1, Pt 2 of the former Act.

12. My reasons for those conclusions are as follows:

1. Clause 19(1) is confined in its operation to “an application”. The provisions governing an application for an extended supervision order, appear in Pt 2, Div 1 (the locus standi being governed by s 5H of the Act). The expression “duly made” in cl 19(1) is the adverbial form of the adjective “due” and thereby relates to an application so made. Whilst the expression “duly made” will normally convey the sense of “properly” or “validly”: Re Camel Export Co Pty Ltd Australian Trade Commission (1986) 10 ALD 293 at [9] (per Deputy President IR Thompson and Members F Pascoe and H Trinick) and Citie Centre Projects (No 2) Pty Ltd v Council of the Shire Albert and Anor [1992] QPLR 258 at 261 (per Row DCJ), the expression, when used in its natural sense and in the context used in cl 19(1), refers to the past tense or regularity at the time the application was made: R v Bronson Mathew Blessington [2005] NSWSC 340 at [32] (per Dunford J).

2. This conclusion is reinforced by the surrounding provisions in cl 19(2). In contrast to the provisions of cl 19(1), that provision refers to “proceedings in relation to an application” and to the determination of the same (conveyed by the expression “but not determined before”). Whilst the word “proceedings” is ambiguous, it will generally mean an action or cause of action in totality or a step in proceedings: Hunter Quarries Pty Ltd v Morrison (no 4) [2016] NSWIC 4 at [69]. A distinction is, therefore, drawn by the legislature between the determination of the application by the Court in proceedings of the application and the making of the application itself.

3. This consideration becomes a fortiori under the Act as the determination of whether an application for an order is made in accordance with s 5I becomes a threshold requirement for the Court to determine under s 5B (as to whether an order for supervision in the community of a person should be made).

4. Section 6 is confined in its attention to the subject matter of cl 19(1) because it is concerned with the machinery requirements for the bringing of an application. The heading of the provision is “Requirements with respect to an application” and the respective subss (1), (2) and (3) each concern the pre-requisite conditions for the making of an application (that is, the conditions which must be met at or by the time the application is made). This much is indicated by words such as “must indicate” (in subs (1)); “may not be made” (in subs (2)) and “must be supported by documentation” (in subs (3)).

5. On the other hand, the provisions of s 5I(2) are concerned with a determination by the Court at the outset of the proceedings. Whilst the provisions provide that an application for a high risk sex offender extended supervision order (under the former Act) may be made only in respect of a supervised sex offender, that determination is necessarily one which must be made as a matter of fact or law by the Court having regard to the provisions of s 5I(2). (As noted above, under the Act, the requirements of s 5I(2) becomes a threshold requirement under s 5B).

Satisfaction of the requirements of Section 6 of the former Act

13. The application made by the summons satisfies requirements of s 6 of the former Act for the following reasons:

1. It identifies that it is an application for a high risk sex offender extended supervision order (s 6(1));

2. It was made on 14 November 2017, which is in the last 6 months of the defendant's current supervision (s 6(2));

3. It is supported by documentation that addresses the matters in s 9(3) of the Act (s 6(3)(a)); and

4. The accompanying report of Dr Richard Parker dated 2 August 2017 included a report that assessed the likelihood of the defendant committing a further serious sex offence, (s 6(3)(b)(i)).

14. Further, I note the application also indicates, in the annexure to the summons, the kinds of conditions that are considered appropriate for inclusion under s 11 in the event that the extended supervision order is made (s 6(4) of the Act).

Conclusion: Clause 19

15. Given that the present application has not been determined and was “duly made”, cl 19(2) provides that the amendments made to the former Act will apply to these proceedings such that the criteria for the making of any extended supervision order (or any interim supervision order) and any applicable test the Court must apply in the matter are those provided for in the Act.

DEFENDANT’S STATUS AS A SUPERVISED OFFENDER

16. Section 5I of the Act provides as follows:

5I   Application for extended supervision order

(1)  An application for an extended supervision order may be made only in respect of a supervised offender.

(2)  A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

(a)  while serving a sentence of imprisonment:

(i)  for a serious offence, or

(ii)  for an offence of a sexual nature, or

(iii)  for an offence under section 12, or

(iv)  for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or

(b)  under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

(3)  A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.

17. The Amending Act had the effect of incorporating in a single provision the conditions for the making of an application vis-à-vis a supervised offender with respect to what was formerly a supervised sex offender and a supervised violent offender.

Offender and Serious Sex Offence

18. The first element of the definition of a “supervised offender” under s 5I(2)(a) is that the defendant must be an “offender”. By s 4A of the Act, an offender means a person over 18 years who has at any time been sentenced, inter alia, to imprisonment following his/her conviction for a “serious offence”. For the purposes of these proceedings a “serious offence” is defined in s 4 of the Act as meaning a serious sex offence.

19. The plaintiff submitted that the defendant was convicted of a serious sex offence because in 1988 he was convicted and sentenced to imprisonment by Woods J for, inter alia, a number of counts of the offence of sexual intercourse with a person aged under 10 pursuant to s 66A of the Crimes Act 1900 (NSW) as it was in 1986-1988 which carried a maximum penalty of 20 years imprisonment.

20. The plaintiff contended that offence fell within the definition of a serious sex offence because it fell within s 5(1)(a) as an “offence under Div 10 of Pt 3 of the Crimes Act 1900” or alternatively fell under s 5(1)(c1) of the Act which provides:

5   Definitions of “serious sex offence” and “offence of a sexual nature”

(1)  For the purposes of this Act, a serious sex offence means any of the following offences:

...

(c1)  an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and

21. The 1988 offence at the time it was committed, was not an "offence under Div 10 of Pt 3 of the Crimes Act 1900” (s 5(1)(a)(i)), because at the relevant time the Crimes Act did not have numbered divisions under Pt 3. The numbering of the divisions began from 29 June 2000, with s 66A (which was then expressed in identical terms to its form in 1986-1988) then falling within Div 10 of Pt 3 and thus falling within the s 5(1)(a)(i) definition.

22. Division headings were introduced via the Statute Law (Miscellaneous Provisions) Act2000 (NSW). However, I agree with the submission of the plaintiff that, even if the Divisions were not so numbered at the time, s 66A was still within the tenth division under Pt 3, as the Crimes Act 1900 was similarly ordered into the same number of sub groupings in the relevant period. Further, s 66A continued to appear (but with an increased maximum penalty) as a relevant provision within Div 10 of Pt 3 today. On that basis, the plaintiff submitted, in my view, with some force, that the s 66A offences would be caught by s 5(1)(a), as an offence which continued to be caught under the section, if it were committed today.

23. However, it is unnecessary to finally resolve that question because, if s 5(1)(a) does not apply, s 5(1)(c)(i) plainly does as the offence with which the defendant was convicted was committed in circumstances that would make it a serious sex offence if it had been committed at the time the application under the Act was made.

24. The Second Reading Speech reveals that that provision was intended to correct an anomaly where persons who had certain sex offence convictions pre-1989 would not be caught by the definition of serious sex offender for offences which, post-1989, would constitute aggravated forms of the same offence and would fall within the definition. The wording of the amendment, as it was enacted is, however, sufficiently wide to embrace offences which are not caught by s 5(1)(a) because, for example, the Division headings were not in operation at the relevant time. The wording is sufficiently wide to also embrace offences which have been repealed and replaced by similar, but differently numbered provisions.

25. The plaintiff correctly submitted, that upon that analysis, the offences against s 66A of the Crimes Act 1900, as they stood in 1986-1988, would fall within the extended definition under s 5(1)(cl), being an offence which was committed in circumstances that would make it a serious sex offence, if it had been committed at the time the application under the Act was made.

26. Thus, the defendant is an "offender" for the purposes of s 5I the Act, having been sentenced to imprisonment following a conviction of a "serious offence", being a "serious sex offence".

Section 5I(2): Under supervision while serving a sentence of imprisonment

27. There was no dispute that the offences constituted “offences of a sexual nature” within the extended definition of that expression in s 5(2) having regard to the provisions of s 5(2)(h4). I agree with that assessment.

27. Nor was there a dispute, for the purposes of these preliminary proceedings, that the defendant was a “supervised offender”, albeit that concession was given on the limited basis that a release under a Commonwealth recognizance release order equated to “release on parole” for the purposes of s 5I(3) of the Act. As I will discuss below the concession was properly made for the purposes of the preliminary hearing. However, it is appropriate that I address the further basis advanced by the plaintiff for a finding that the defendant was as supervised offender as my acceptance of the operation of s 5I(3), in this respect, is somewhat provisional having regard of the absence of argument on the question and the requirements of s 5I(2) are jurisdictional in nature.

28. The plaintiff contended that the defendant was a “supervised offender” by virtue of s 5I(2)(a)(ii), namely, that the defendant should be regarded as being, at the time of the application, under supervision, while serving a sentence of imprisonment for an offence of a sexual nature (that is, under s 5(2)(h4)).

29. The defendant was sentenced for three counts of using a carriage service to access child pornography, to a period of imprisonment, after accumulation, from 4 February 2016 to 3 February 2018. In sentencing the defendant, the sentencing court ordered pursuant to s 20(1)(b) of the Crimes Act 1914 that, after 1 year and 3 months, the defendant was to be released upon entering into a recognizance.

30. Section 20(1)(b) provided as follows:

"(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks

fit:

…

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1)".

32. There can be little doubt that the expression “serving a sentence of imprisonment” in s 5I(2)(a) refers to the period in which the defendant is undertaking or going through a term of imprisonment fixed by a judgment, after conviction for an offence, as punishment for the same (see Kennedy v Spratt [1972] AC 83 at 88 (per Lord Diplock); R v Warfield (1995) 34 NSWLR 200 at 205-206 (per Hunt CJ at CL) and Winsor v Boaden (1953) 90 CLR 345 at 347 (per Dixon CJ).

33. It does not follow, however, that the defendant’s release under a recognizance order at the time of the making of the application does not fall within the meaning of the expression “serving a sentence for imprisonment” in s 5I(2)(a).

34. In R v Carngham (1978) 140 CLR 487 (“Carngham”), the High Court considered that the right to appeal existed under s 5D of the Criminal Appeal Act1912 (NSW). The right to appeal was confined to a right to appeal against any sentence pronounced by this Court or the District Court, albeit that the word “sentence” received an extended meaning by virtue of s 2 of that Act. The respondent was convicted, upon a plea of guilty, to a charge of importing prohibited imports contrary to s 233B of the Customs Act 1901 (Cth). He was sentenced to imprisonment for 2 years with an order for release after serving part of that term upon the respondent entering a recognizance to be of good behaviour for the balance of the term pursuant to s 20(1) of the Crimes Act 1914. The Court found the sentence so imposed fell within the meaning of s 5D Criminal Appeal Act.

35. It was in that context that Gibbs ACJ, with whom Stephen and Aickin JJ agreed, came to the conclusion that the sentence imposed under s 20(1) of the Crimes Act 1914 of imprisonment for 2 years coupled with an order for release on recognizance did constitute a sentence for the purposes of s 5D of the Criminal Appeal Act. His Honour’s reasons in that respect (at 492-493) are instructive for the present matter and are extracted below:

There can of course be no doubt that the sentence of imprisonment for two years which was imposed on the respondent in the present case was a sentence within the meaning of the Criminal Appeal Act. The question whether the order that the respondent be conditionally released after 10th October 1977 forms part of the sentence, or is collateral and distinct, although not easy of solution, permits only of brief discussion. In my opinion when a court acting under s. 20 (1) passes a sentence of imprisonment and orders the release of the convicted person after he has served a portion of that sentence it is not possible to sever the order for release and to treat it as something separate and distinct from the sentence of imprisonment. Such an order would be meaningless if it were not made in conjunction with the sentence of imprisonment to which it relates. On the other hand the sentence of imprisonment itself would have a materially different effect if it were not for the order for release. In these circumstances it seems to me that the order for release must be treated as a qualification of the sentence of imprisonment and that it is right to regard it as part of the sentence itself. Although there is some ambiguity in the concluding words of s. 20 (1), the phrase "after he has served any portion of his sentence" in my opinion qualifies "release", not "order". That is to say, the order must be made at the same time as the sentence is imposed, and not after portion of it has been served. From the moment when sentence is pronounced the convicted person is entitled to release after he has served portion of his sentence if he complies with the condition of the order. A sentence of two years' imprisonment simpliciter is quite different in its incidence and severity from a sentence of two years' imprisonment coupled with an order for conditional release after some months. The true nature of the sentence imposed can only be ascertained by looking at the order as a whole.

36. Jacobs J gave a separate judgment agreeing with the orders proposed by the Acting Chief Justice. His reasons are also instructive (at 495) and appear below:

"Sentence" here must mean a prison sentence. It is envisaged that portion of the prison sentence may be served and service of the remainder of the prison sentence may be suspended upon security being given for good behaviour etc. The suspended prison sentence is a familiar concept. It is none the less "an order on conviction with reference to the person convicted" within the meaning of s. 2 of the Criminal Appeal Act even though the person is not incarcerated. There is a sentence of imprisonment even though the sentence is suspended. The last clause of s. 20 (1) envisages a part-suspended sentence; but there is nevertheless a sentence in respect of a defined period and that is "an order on conviction with reference to the person convicted".

37. It might also be noted that in the additional reasons, given by Aickin J, his Honour was concerned with whether the recognizance had served as part of the respondent’s sentence or as a separate and independent order (at 501).

38. The judgment in Carngham offers clear support for the contentions of the plaintiff in this respect. It is true that their Honours were there considering the expression “sentence” in a different legislative context. However, it is clear from the foregoing extracts from Gibbs ACJ and Jacobs J that their Honours understood the use of the word “sentence” in that context to mean a sentence of imprisonment. It may also be noted that the provisions of s 20(1)(b) of the Crimes Act 1914 are in relevantly similar terms to the provisions of s 20(1) of that Act at the time of the judgment in Carngham (albeit that s 20(1) was a composite of the provisions of s 20(1)(a) and (b)).

39. Similarly, in Weetra v Beshara (1987) 46 SASR 484, the Supreme Court of South Australia considered, in the context of an appeal against penalty, a question reserved for the opinion of the Full Court, namely, whether an order for immediate release under s 20(1)(b) of the Crimes Act 1914 was part of a sentence of imprisonment, even though the sentence was not served. Prior J, within whom O’Loughlin J agreed, found (at 490):

In this case a sentence of imprisonment has been passed, even if the "true nature" is different from other sentences of imprisonment because of the order for release forthwith. It is a non-custodial sentence of imprisonment, perhaps, but it is still identified by the Commonwealth Parliament as a sentence of imprisonment, "qualified" no doubt, and having "a materially different effect", because of the order for release forthwith, from sentences of imprisonment fully carried into effect, or carried into effect for a period of time and then "suspended" by an order for release.

40. It follows that the expression “a sentence of imprisonment” does incorporate circumstances where the defendant is released on a recognizance. I agree with the submission of counsel for the plaintiff that the word “serving” used in s 5I(2)(a) is also consistent with that conclusion. In particular, I agree with the submission that, if “serving” a sentence of imprisonment is given its ordinary and grammatical meaning of “to go through” or “work out”, then the defendant “is serving” a sentence while the recognizance release order is in operation regardless of whether it is the pre- or post-release period.

41. Furthermore, s 16F(2)(a) of the Crimes Act1914 provides that a court is to explain the effect of a sentence where that court has made a recognizance release order, and is to explain the following:

that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence...

42. That explanation reflects the Commonwealth Parliament's understanding of the operation of s 20(1)(b) of the Crimes Act 1914 as being a relevant component of a sentence and it supports the conclusion that an offender being released under s 20(1)(b) is nevertheless "serving" a sentence.

43. I accept the submission of the plaintiff that, upon proper construction of s 5I, the interpretation of s 5I(2) in relation to Commonwealth offences should not be read as limited by the operation of s 5I(3). As noted, that provision is intended to give an extended meaning to the expression serving a sentence of imprisonment. It does not purport to be a complete statement of what circumstances would constitute that expression or the wider expression “supervision while serving a sentence of imprisonment” for the purposes of s 5I(2). This conclusion also follows when regard is had to the broader context of the Act. Section 5(2) of that Act expressly applies to offences against the laws of the Commonwealth and there are aspects of the sentencing regime enacted by the Commonwealth Parliament which would fall within the meaning of “serving a sentence of imprisonment” without regard to s 5I(3).

44. That conclusion does not fully resolve the question as to the operation of s 5I(2) as it is necessary to determine whether, when the application for an order was made, the defendant was “in custody or under supervision”. I will return to this concept in considering momentarily the operation of s 5I(3) but, for present purposes, in my view, the condition imposed by Hunt DCJ, that the defendant was to accept supervision as a condition of his release to recognizance is sufficient to qualify the defendant as, at the time of the application, “under supervision” for the purposes of s 5I(2) and that this conclusion is consistent with the broad scope of supervision implicitly contemplated in s 5I(3).

45. The plaintiff correctly submitted that the expression “under supervision” in 5I(2) is intended by the legislature to give a wider scope of operation to the provision than mere custody. Apart from the juxtaposition of the words custody and supervision in the subsection, reference may also be made to the use of the word custody in the case of applications for a continuing detention order in s 13B as being referrable to a “detained offender”.

46. When the construction of the provision as approached in that way the expression “under supervision” in s 5I(2) is wide enough to capture an offender who is on conditional liberty (as part of his/her sentence of imprisonment). This is consistent with the scheme of the Act requiring that applications may not be made until the “last 9 months of the offender’s current custody or supervision” (see s 6(1) of the Act) which for lengthy sentences could often mean that the application was made at a time when the offender was already released on parole.

47. This construction of the expression “serving a sentence of imprisonment” or more broadly “under supervision” while “serving a sentence of imprisonment” is, in my view, also consistent with the objects of the Act in s 3 which make the primary object of the provision for, inter alia, the extended supervision of high risk sex offenders “so as to ensure the safety and protection of the community”. Attributing a wider meaning to the expression is consistent with that purpose as it extends the operation of the Act to supervised offenders on any form of conditional liberty, particularly in the light of the additional Commonwealth offences brought into the definition of an offender and an offence of sexual nature in s 5(2)(h1)-(h5).

48. It follows that, notwithstanding the defendant’s release from prison, that his status as an offender released on a recognizance under s 20(1)(b) of the Crimes Act1914 in the sentence imposed by Hunt J must result in the conclusion that the defendant is a “supervised offender” for the purpose of s 5I.

49. The plaintiff also contended the recognizance release order was caught by the provisions of s 5I(3) which provision extends the meaning of “serving a sentence of imprisonment” to an offender who is “on release on parole”. It is strictly unnecessary to resolve this question in light of the aforementioned conclusion as to the operation of s 5I(2) but some preliminary observations may be made which favour an acceptance of those submissions (for which no demur was received from the defendant for the purposes of this preliminary hearing).

50. My reasons for this preliminary conclusion, may be briefly stated as follows:

1. There is a distinction in the Crimes Act 1914 between a sentence of imprisonment being served whilst released on a recognizance release order and one being served while released on parole. A Court sentencing for Federal offences must impose a non-parole period where the aggregate sentence exceeds 3 years (see s 19AB). Where the aggregate sentence is less than 3 years, the Court must fix a recognizance release order and must not fix a non-parole period (see s 19AC).

2. However, in both circumstances, there is a capacity for the offender after serving some period of a sentence in custody, to continue to serve that sentence in the community whilst under supervision (see ss 19AN and 20(1)(a) or (6)). In both cases, by necessary implication, the offender is thus permitted conditional liberty or conditional release pursuant to the parole order or recognizance release order.

3. If the expression “parole” is read widely as the liberation of a person from prison, conditional on terms, prior to the end of a maximum sentence imposed upon that person or the temporary release of the prisoner, then a “recognizance release order” would be consistent with that wider meaning. In both cases, the offender is permitted conditional liberty or release.

4. A narrow or stricter meaning of the word “parole” in s 5I(3) should not be preferred, notwithstanding the clear distinction between that expression and a recognizance release order under the Crimes Act 1914. This is because to read the expression in this way would be to render all Commonwealth sentences for imprisonment under s 5(2)(h1)-(h5) of the Act, which are less than 3 years in total length, ineligible for consideration under s 5I(2). This would result in the operation of s 5I(2) being hinged on the total length of sentence of imprisonment imposed for a relevant Commonwealth offence with no temporal consideration indicated in s 5(2). It is also inconsistent with a broader or wider reading of the Act having regard to the objects and purposes of the Act.

5. In my view, the defendant is a “supervised offender” within the meaning of s 5I(2)(a)(ii) of the Act.

Preliminary Hearing

51. The test at a preliminary hearing for an application for an extended supervision order is provided in s 7(4) of the Act which is in the following terms:

Pre-trial procedures

(4)  If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a)  appointing:

(i)  2 qualified psychiatrists, or

(ii)  2 registered psychologists, or

(iii)  1 qualified psychiatrist and 1 registered psychologist, or

(iv)  2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b)  directing the offender to attend those examinations.

52. The task of the court at the preliminary stage has been described as one that is similar to the prima facie case test applied by magistrates at committal and one which is "not to weight up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing": State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 per R A Hulme J at [11]. It has also been described as not being a stringent test: State of New South Wales v Lynn [2013] NSWSC 1147 per Button J at [18].

53. In State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 at [16], her Honour McCallum J stated that:

It is no part of the Court’s function in the present stage of the proceedings to assess the probative weight of the matters alleged. The application proceeds on the assumption that the matters would be proved and without regard to any evidence that the defendant may call. It is not a prediction of the final result in the proceedings.

PRINCIPLES REGARDING SECTION 5B

54. The provisions of s 5B of the former Act were amended by the Amending Act. The provisions of the Act now provide as follows:

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.

55. Some immediate observations may be made in consequence of those amendments. First, the provision now contains reference to three additional requirements as expressed in s 5B(a), (b) and (c) although many of those provisions correspond to requirements existing elsewhere under the former Act (as well as the provisions of s 5B(2) of the former Act so far as it was necessary to demonstrate that the offender was a “sex offender”). The earlier discussion in this judgment demonstrates that those conditions have been met, in this matter.

56. Secondly, whilst the title to Pt 1A of the Act continues to refer to “the supervision and detention of high risk offenders”, the phrase “high risk sex offender” no longer appears in the provision. Nor does the definition of the same. However, the second element to the former definition of a high risk sex offender is now reposed in identical terms in the provisions of s 5B(d).

55. It was not submitted by either party that the amendment had the effect of altering the principles which have hitherto been applied to this Court in determining whether an offender falls within that second element of the definition of a high risk offender under the former Act. I consider that position is correct.

56. Thirdly, the provisions of s 5B(1) which prescribe that an offender can only be the subject of a “high risk sex offender” extended supervision order “if and only if” the offender is a high risk sex offender has been replaced such that the provision has now introduced the words, “The Supreme Court may make an order for the supervision in the community of a person (extended supervision order) if”.

57. The word “if” in the preamble to s 5B would suggest, at the least, that the satisfaction of the requirement of s 5B would be required before consideration was given to whether an extended supervision order may be made. The parties submitted, with some force, in conformity with earlier authority, that the requirements of s 5B remained threshold conditions (see the discussion in State of New South Wales v French (Final) [2017] NSWSC 1475 (“French”) at [42]. The implications of amendments to former s 5B(1), however, await further consideration in a matter where there is full argument on this question.

58. Fourthly, the former provisions found in s 5B(3) are now substantially to be found in s 5D of the Act. The plaintiff made submissions as to the principles which should be applied in determining whether the defendant was a high risk offender. Those submissions were accepted by the defendant for the purposes of the determination of the interim supervision order application.

59. There being no demur for the correctness of the stated principles, I propose to adopt the recent discussion of this Court in French as to the relevant principles in determining whether the defendant was a high risk sex offender in the French at [24]-[25] and [40]-[41] to consider, in a manner consistent with a preliminary hearing, the requisite determination for the purposes of s 5B(d).

PRINCIPLES REGARDING THE MAKING OF AN EXTENDED SUPERVISION ORDER

62. As to the general principles in the making of the extended supervision orders I also refer to the judgment in French at [43]-[46].

PRINCIPLES AS TO THE IMPOSITION OF CONDITIONS

63. The principles regarding the making of conditions were discussed at [47]-[53] of French (noting that those observations are made in the context of the making of final orders).

64. In the latter respect, I refer as the defendant did, to the judgment of Wilson J in State of New South Wales v Sines (No 3) [2017] NSWSC 985 at [47] in which her Honour said :

"The imposition of particular conditions, and the assessment of the duration of the order, must be determined in light of the general principle that the defendant's liberty should be constrained to no greater extent than is warranted, having regard to the purposes of the Act and the evidence of his personal circumstances".

65. I also refer, with respect to judgment of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89] as follows:

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

66. The judgment of Beech-Jones J in State of New South Wales v Burns [2014] NSWSC 1014 (at [59]), cited in the above extract from Bugmy, was as follows:

[59] In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender, in this case Mr Burns, to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender.

CONSIDERATION OF FACTORS UNDER S 9(3)

Background Matters

67. The defendant is a 62 year old man who lives with his wife.

Criminal Offending

68. For the purposes of the preliminary hearing, the plaintiff’s summary of the defendant’s criminal history was not disputed, although counsel for the defendant, Ms A Cook, sought to place the history and patterns of offending behaviour it in a particular context. In those circumstances, and in the light of the material in the supporting documents before the Court, I shall adopt the plaintiff’s description of that history.

69. The early history from 1976 to 1988 was described as follows.

70. The defendant's relevant offending commenced in 1976, when he was convicted for the offence of wilful and obscene exposure. 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 the 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.

71. In the period between 1979 and 1987, the defendant was convicted and sentenced to some short periods of imprisonment for various offences of dishonesty and driving offences.

72. On 14 December 1988, the Supreme Court, Central Criminal Court, sentenced the defendant, after he pleaded guilty to nine counts of sexual intercourse with a child between the age of 10 and 16 years, fourteen 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 from 7 August 1988, with a total non-parole period of 10 years and 3 months.

73. That offending related to a series of offences between the years 1986 and 1988 and involved seven female children, variously aged between seven and 14 years at the time of the offending.

74. 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.

75. Two of those counts related an incident where the defendant took his daughter and three other victims to a motel in Parramatta on 5 February 1988. That episode involved, as the sentencing judge found:

[The victims] were required to perform together and separately various activities for his [the defendants] 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 girl extending over some years encompassing a much large history of offending

76. 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 ten 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.

77. The third series of offences concerned the sister of the niece the subject of the second series of offences. Two offences were committed on 5 February 1988 and two counts of sexual intercourse with a child under 10 years.

78. The fourth series of offences relate 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 eleven 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.

79. The fifth series of offences related to another daughter of another friend of the defendant. These offences were committed between 23 March 1986 and 31 December 1987 when the victim was aged between eight and ten years. The offences were two counts of committing an act of indecency.

80. 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.

81. The seventh, and final, series of offences relate to the niece of a woman who was living in a de facto relationship with the defendant at the time. These offences were committed between 1 May 1986 and 1 November 1987, when the victim was aged between 10 and 13 years. The offences consisted of six counts of committing an act of indecency.

82. In sentencing remarks in 1988, Wood J found that in each of the "series of offending" that the identified offences were "representative acts selected out of a wider history of sexual misconduct' directed at each of the victims.

83. In relation to assessing the objective circumstances of the offences, his Honour stated:

[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.

84. His Honour Wood J also remarked in assessing 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."

85. Finally, his Honour, in assessing the defendant's risk of reoffending:

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, lam satisfied that the present case falls within the most serious category of child molestation and that the prisoner must be sentenced accordingly.

86. From 1997-2006, the plaintiff described the offences as follows:   

On 17 January 1997, following pleas of guilty, the defendant was sentenced for two counts of armed robbery and one count of possession of an unlicensed firearm. For those offences the defendant received an effective sentence of imprisonment for a period of 7 years and 6 months, with a total effective non-parole period of 4 years and 3 months. It was noted that this offending occurred in the context of the defendant's addiction to heroin.

On 5 August 2002, following pleas of guilty, the defendant was sentenced for four counts of indecent treatment of a child under 12 and two counts of indecent treatment of a child under 16 in the District Court of Queensland at Beenleigh. 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 had exposed himself to two children, after he had been consuming alcohol.

On 8 June 2006, following pleas of guilty, the defendant was sentenced for three counts of armed robbery, 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. For those offences, the defendant was sentenced to an effective period of imprisonment of 7 years and 7 months, with an effective non-parole period of 5 years and 1 month. 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.

87. As to the offences, some reference should be made to the remarks of Hunt DCJ. His Honour, assessed the objective seriousness of the defendant's offending in relation to the three child pornography offences as follows:

In terms of objective seriousness of the offences 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.

88. Later his Honour also noted that:

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

89. His Honour also commented that, in relation to assessing the effect of specific deterrence:

This is a matter in which, because the offender's previous antecedents and what has dearly 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.

90. The plaintiff also referred in its written submissions to charges laid against the defendant of four counts of assault with a male under 10 years. However these charges were ultimately withdrawn. It appears, however, the defendant was convicted of two offences of having sexual intercourse with a male person under the age of 18 in 1989. Those offences arose in circumstances where the defendant picked up a young male person while hitchhiking.

91. The defendant submitted that this history needs to be seen in perspective; the offences occurred almost two years ago and the serious offence occurred roughly four decades ago.

92. Under the heading “Any other information as to the likelihood of further serious offences” (see s 9(3)(i)) counsel for the defendant also made a submission that the defendant had been supervised in the community and had remained offence free for approximately 8 months. It was further contended that the last offence was not a “contact offence” and, in that respect, there had been some de-escalation in the nature of the offending. That submission is dealt with at this juncture as it is also be relevant under s 9(3)(h) vis-à-vis any pattern of offending behaviour disclosed by the criminal history.

93. I do not consider, however, on the material before the Court, the submission as to “de-escalation” may be accepted either simpliciter or, if it is so advanced, as a diminution in the risk of re-offending for serious sex offences for the following reasons:

1. Whilst the offences are non-contact offences, they are consistent with a pattern of offending in which the defendant appears to have a continuing obsession with children in a sexual context ranging from 1976. The defendant was convicted in 1976 for wilful and obscene exposure to school girls, then a lengthy period of offending during the years 1986-1988 involving seven young girls followed by the offence with a young male in 1989 and the Queensland offences in 2002. The 1986-88 offences were representative offence. The offences were committed in 2016. The largest gap in custody appears to be the years between 2012-2016. Further, in a Risk Assessment Report (prepared for the purposes of s 6(3) of the Act), by Dr Parker, Senior Psychologist with the Serious Offenders Assessment Unit (discussed in detail below), Dr Parker opined that the defendant had “a strong and enduring sexual attraction to children.” A function of supervision would be to act as a barrier to access to children (see Parker report at [65]).

2. Dr Parker opined the gaps between the sexual offences as “illusory” as the defendant spent much of the remaining time in custody for non-sexual offences. The non-offending since 3 April 2017 arises in the context of supervision under a recognizance release order and was proceeded by the last period of imprisonment of the defendant.

3. Dr Parker was privy to the offences (see [12] of his Report), but found, as will be discussed below, the defendant’s risk of re-offending as a sexual offender, using risk assessment instruments, to be high (the Level of Service Inventory – Revised (“LSI-R”) was raised to high given a high score on the Static-99R). He described the defendant as a committed offender who had an extensive history of sexual offences against children with an extensive history of non-sexual offending. After referring to that consideration, the high scores on the actuarial risk assessment instruments and the defendant’s persistence in continuing to offend after numerous court interventions, Dr Parker stated, there was “a cause for concern” regarding the defendant which was referrable to the need for and level of supervision required.

Assessments by qualified psychiatrist and psychologist

94. In addition to referring to the contents of the report of Dr Parker the plaintiff summarised the contents of a number of reports by psychologists and a psychiatrist. A substantial number of those were in the context of sentencing proceedings for various offences. I agree that the reports fall primarily within provisions of s 9(3)(c) but, in any event, are caught by the provisions of s 9(3)(i).

94. The plaintiff’s compendious summary of those reports was uncontentious and, in my view, appeared to conform with the material filed for the purpose of the preliminary hearing. I propose then to adopt it for that purpose. The summary is extracted below:

Fischer report (1976)

This report was prepared by E. Fischer, psychiatrist, for the 1976 indecent exposure offence. It expresses the view that the defendant presents as a young man with a personality disorder", although not "any overt psychiatric illness". It also observes that the defendant "has no insight whatsoever"'. It concludes 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".

Lamb report (1982)

This report was prepared by Audrey Lamb, clinical psychologist, at the request of the defendant and in the context of a "serious count of stealing" with which he was then charged. It describes 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" would appear to be a reference to "consistent strains in [the defendant's] marriage sexually", rather than a reference to any propensity to sexual offending.

Jones report (1989)

This report was prepared by Tracey Jones, psychologist, in the context of a "classification" of the defendant while the defendant was in custody for the 1988 and 1989 sexual offences (the report was prepared shortly after the 1989 convictions). This report expresses 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, the report recorded that "[d]rt/g dependency does not seem a major issue". In this report, it was concluded that "it may be advisable for [the defendant] to attend the Sex Offenders Program at Cooma", although it also appears to imply that this may not be necessary as "he has expressed a great deal of insight into his behaviour

Wallis report (1992)

This report was prepared by Kevin Wallis, a psychologist, seemingly at the request of the convenor of the Sex Offenders Program at Cooma, in which the defendant participated in the early 1990s. This report describes the defendant's offences as "confounding" (because "he has been indoctrinated to the criminal ethic to despise the child molester") and suggests that "[i]t is impossible to come up with an [sic] plausible explanation" as to why they were committed. However, it also expresses 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 assesses the defendant "as having low risk of committing a future sex offence".

Second Newell report (1995)

This report was prepared by Lyndon Newell, psychologist, at the request of the Board of the Maitland Correctional Centre and in the context of the possible release of the defendant on parole. While this report notes the defendant's "tendency to impulsivity in behaviour" and "indicators of a personality type characterised by addiction problems", it also expresses a number of positive views about the defendant, including that: he "has not attempted to minimise nor rationalise his offending behaviour'; he has not shown any reluctance to explore "past behaviour", which is consistent with "acceptance of responsibility and insight concerning the offences"; and he has achieved "apparent emotional stability". Ultimately, the author concludes that "I cannot see any factors that he is particularly a risk of acting out physically toward others nor a risk of similarly reoffending".

Adams/Alto report (1999)

This report (Adams/Alto Report) was prepared by Louise Adams and Zaki Alto, psychologists, in the context of a foreshadowed request from the defendant to participate in a "day leave"/"works release" program while in custody for the armed robbery and related offences for which he was convicted in 1996. The Adams/Alto Report is notably less positive about the defendant than some of the previous psychiatric/psychological reports. In particular, it comments unfavourably on the defendant's "reluctance" to discuss his previous sexual offences and his refusal to participate in the Custody-Based Intensive Treatment (CUBIT) Sex Offenders Program. Further, it uses 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 assess the defendant as posing a "high risk" to the community of engaging in "sexual re-offending". However, it is important to note that this assessment was based in part on information which 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.

First Vidler/Younq report (1999)

This report was prepared by Lyn Vidler and Anne Young, psychologists, in the context of a request from the defendant to participate in a "day leave" program while in custody for the armed robbery etc offences with which he was convicted in 1996. The authors of this report assess the defendant in an even less positive manner than the report of Ms Adams and Mr Alto. The following features of this assessment are particularly worth noting:

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

b. Secondly, the authors of this report specifically disagree with the conclusions of the Jones Report6 and the Wallis Report, on the basis that these reports were based on clinical judgement (rather than actuarial tools) and were affected by the defendant's self-serving and "minimising" accounts of his sexual offending.

c. Thirdly, 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's reoffending".

d. Fourthly, it was noted that the defendant "declined" to participate in the CUBIT Sex Offender Program, which was considered to be "intensive" or "high intensity".

e. Fifthly, the report 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".

f. Sixthly, the report concluded its assessment of the defendant as "a man who has a high risk for sexual and/or violent reoffending".

Second and Third Vidler/Younq Reports (2000)

These two reports, although prepared for different purposes, reach the same basic conclusions, and depend on the same basic reasoning, expressed in the First Vidler/Young Report.

Collins Report (2006)

This report was prepared by Emma Collins, psychologist, seemingly at the request of one of the defendant's solicitors, while the defendant was in custody for the 2005 armed robbery offences. In terms of its conclusions, the Collins Report characterises the defendant as someone affected by "late onset anti-social behaviour after "his relatively good early adjustment'. The Collins Report also states that "risk assessment would suggest that [the defendant] has a high chance [of] relapse" in respect of sexual reoffending. It recommends (among other things) ongoing psychological treatment.

Abdelsaved Report (2010)

This report was prepared by Randa Abdelsayed, forensic psychologist, at the request of one of the defendant's parole officers. It consists of a summary of some of the defendant's "contact" with psychology programs offered by the then NSW Department of Corrective Services. Notably, it records 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". The author further expresses the view that, as of 2010, the Static-99R was "not a suitable instrument in the defendant's case given the time lapsed since the sexual offences". In expressing this view, the author appears to disregard the 2002 exposure offences from Queensland and focus only on the 1988 and 1989 sexual offences. This is in contrast to a Static-99R assessment completed in 2010 and 2011.

Risk Assessment Report of Dr Richard Parker

A risk assessment report was prepared by Dr Richard Parker, psychologist, at the request of Corrective Services NSW and in anticipation of a potential ESO or CDO application. This report is not based on an interview with the defendant conducted by Dr Parker himself, but rather an interview by one of Dr Parker's colleagues (as well as extensive documentary material).

In relation to the task of assessing the risk of the defendant reoffending, Dr Parker made the following observations:

a. First, the Parker Report stresses that "[\]t is not scientifically possible to accurately predict whether or not an individual offender will or will not reoffend'.

b. Secondly, the Parker Report assesses the risk of the defendant reoffending using four "risk assessment Instruments". The results of these assessments may be summarised as follows:

i. 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 suggests that 54% of offenders placed in the "medium" category reoffend within two years.

ii. 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. Indeed, 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.

iii. Stable 2007 — The defendant scored v7" and was placed in the "moderate" risk category relative to other male sex offenders.

iv. Combined Static-99R and Stable 2007 — when the defendant's Static-99R and Stable 2007 results are combined, his "overall risk level" is "high".

c. Thirdly, in respect of the relationship between the defendant's sexual and non-sexual offending, this report observes that, while 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".

d. Fourthly, in respect of the defendant's substance abuse, this report notes that he has "reported that most (if not all) of his sexual offences were committed when he was under the influence of drugs or alcohol', and concludes that "[s]ubstance abuse probably contributes to his risk of sexual offending through its disinhibitory effects... and the necessary associations with antisocial influences".

e. Fifthly, in respect of the defendant's "sexual drive/preoccupation", this report states that he "appears to have a strong and enduring sexual attraction to children". It further states 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'.

f. Sixthly, Dr Parker reports that the significance of the apparently long gaps between the defendant's sexual offences is 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’

g. Seventhly, Dr Parker discusses a range of potential "protective factors".

For example:

i. In respect of the defendant's relationship with his wife — Dr Parker states that it "appears to do little to reduce" his sexual attraction to children. It further states that, while "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".

ii. In respect of the defendant's participation in treatment/rehabilitation programs15, Dr Parker cautions 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 is also noted that, while 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".

h. Finally, in terms of recommendations, while the Parker Report stops short of an outright endorsement of the making of an ESO in respect of the defendant, it does 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. It also notes that, if an ESO is not made, "the defendant would be unable to access services from FPS'.

[Footnotes omitted.]

96. The defendant submitted, as a general proposition, that there were limitations to “Risk Assessment” although led no evidence and made no particular submissions as to the nature of those limitations or any proposed qualifications. Nor was the evidence of Dr Parker tested in any way. It was also submitted that any risks were inherently ameliorated by live and dynamic factors.

97. Clearly, risk assessment tools will vary in the predictive capacities for future sex offending behaviours and it is not scientifically possible to accurately predict whether an individual will re-offend but such methodologies do improve understanding and predictability of what an individual offender may do (see the report of Dr Parker: [33]-[39]).

98. The defendant also submitted that the various assessments made over time resulted in differing risk assessments including assessments that the risk was “low”, “medium” and “high”. That submission must be accepted given the conclusions found in the James and Wallis Reports and the Second Newell Report. However, those assessments do not, in my view, affect the overall conclusion that, on the material presently before the Court, the preponderance of the psychological and psychiatric evidence points to a conclusion that there is high risk of further sexual offending by the offender against children. The Vidler/Young Report in 1999 expressly disagrees with the reports of Jones and Wallace on the basis that these 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 (the Jones report refers to the defendant having expressed a great deal of insight into his behaviour).

99. I will not repeat all the observations of Dr Parker but he assessed, as earlier mentioned (in the most recent assessment of the defendant), the combined Static-99R and Stable 2007 Risk Assessment instruments as indicating the defendant’s overall risk of reoffending being high. (The LSI-R test placed the defendant in a medium category but given the Static-99R results, the assessor who completed the LSI-R used an over-ride feature to raise the level of risk to “high”). Dr Parker also referred to a further factor, namely, that substance abuse probably contributes to the risk of sexual offending and, as previously noted, the defendant had a strong and enduring sexual attraction to children. The defendant is described as one who fits the category of a committed offender; someone who will actively seek opportunities to offend, “gaming” parents and seeking opportunities to be alone with vulnerable children.

100. Counsel for the defendant made a submission that the report of Dr Parker was partially based on an earlier draft risk assessment by Dr Kobylinska who interviewed the defendant for four hours on 13 April 2017. It was observed that Dr Kobylinska’s report was almost completed and that, in the result, Dr Parker did not deem it necessary to re-interview the defendant. Whilst that submission is factually correct, the submission does itself seek to impeach the veracity of Dr Parker’s report or the validity of his conclusions. That is no doubt because there has not, as yet, been any testing of that evidence. The submission must carry, in those circumstances, little weight.

101. Before concluding this consideration it may be observed that the Jones, Wallace and Newell Reports each pre-date the Queensland offences earlier referred to in the history of criminal offending.

102. The preponderance of psychological assessments using risk assessment instruments is that the risk of further sexual offending is high. The risk of sexual recidivism concerns children, and, therefore, despite the last offence being of a non-contact nature, the risk of re-offending concerns sex offences against children (see the discussions of sexual attitudes in Dr Parker’s report). The risk, as assessed, is, therefore, of a further serious sex offences in that respect.

Parole and Recognizance Release Obligations

103. Consistently with the aforementioned submissions of the defendant, it was submitted that the defendant has been fully compliant with the present recognizance order. It was also submitted that the defendant has not been the subject of an earlier ISO. Both of those submissions are correct.

104. The plaintiff contended that some of the defendant’s offending, including the most serious sexual offences in 1988, were committed while the defendant was at conditional liberty. It was also submitted that, whilst there had been reports the defendant had been generally compliant with the supervision when he was on parole, this was, nonetheless, not sufficient to prevent the defendant from using illicit drugs (which will be discussed below).

105. There is some force in this submission. When counterbalanced against the defendant’s present record under supervision, this factor, moderately supports the finding that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision.

Compliance with Child Protection (Offender Registration) Act 2000

106. The defendant has diligently been compliant with requirements of the Registrar.

Rehabilitation and Treatment Programs Participated in by the Defendant

107. As the defendant expressly adopted the submissions of the plaintiff in this respect, I will set them out below.

The defendant participated in the Sex Offender Program at Cooma in the early 1990s when he was serving his sentence of imprisonment in respect of the 1988 offences.

However, it is noted that subsequent psychological risk assessments, including the most recent assessment conducted by Dr Parker, indicate that that program was not of a sufficiently high intensity for an offender with the defendant's profile.

It is also noteworthy that the defendant completed that program many years ago, and has refused to participate in the more intensive program, the CUBIT Sex Offender Program.

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

The plaintiff acknowledges that the defendant has also participated and completed a number of other programs that do not directly address the sexual offending committed by the defendant:

a.. Drug and Alcohol program "Relapse Prevention" (1997; 1999).

b. Drug and Alcohol program "An Introduction to Personal Change" (1997).

c. Drug and Alcohol program "Self Help Group" (1997).

108. It may be accepted that the defendant has benefited from his participation in the Forensic Psychological Service (“FPS”) risk management sessions. However, as Dr Parker observed, the defendant lacks the degree of treatment that might otherwise have been provided for a serious sex offender by taking part and completing the CUBIT Sex Offender Program. This fact casts doubt as to the extent to which the defendant has “implemented protective thinking and actions” to avoid the risk of future offending. (It may be noted that the defendant will be required to leave FPS if an extended supervision order is not made).

109. As to alcohol and other drugs, the defendant submitted he had been assessed as not requiring intervention (reference was made, without particularisation, to the Case Management Notes – Offender Integrated Management System (“OIMS”). Dr Parker reported that the defendant had indicated he has not used illicit substances since 2004 but had been detected with amphetamines on his release in 2013 and later admitted to using the same around the time of his arrest for the offence. As earlier mentioned, Dr Parker also opined that substance abuse probably contributes to his sexual offending by its disinhibiting effects.

110. The OIMS indicated consistent compliance with abstinence from alcohol and all other drugs during the defendant’s supervision under the recognizance release order and that the Canterbury Hospital drug health counselling service had indicated that the defendant would not require “further intervention” (see OIMS 18 September 2017). However, the reporting officer stated that this assessment was not surprising given the defendant was motivated to engage in treatment and that it would be prudent for the defendant to engage in psychological counselling for addiction issues. The Risk Management Plan developed by Mr Andrews Sandercock, as discussed below, specifically targets substance abuse. It is stated that, given the defendant’s significant history of poly substance use and the impact this has on the defendant’s behaviour, he would be referred to a drug and alcohol treatment provider.

Reports prepared by corrective services as to management in the community

111. A report was prepared, in this respect, by Mr Andrews Sandercock, Community Corrections Officer, dated 15 August 2017. The defendant mentioned that, at the time that the proposed interim supervision order came into operation, the defendant will have been under the recognizance release order for 10 months without adverse incident. However, the author, nonetheless, proposed a risk management plan that involved management strategies including the following:

1. Interviews (including face-to-face interviews) with TT.

2. Field visits to TT's home.

3. Liaison with TT's "third party contacts" (eg, his employer, family members, other government services, etc).

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

5. Referral to psychological services (including FPS).

6. Referral to drug and alcohol services.

7. Alcohol and drug testing.

8. Management/limitation of TT's contact with children under 18 years of age.

9. Non-association and place restrictions.

Submissions as to Safety of the Community

112. Both parties made submissions under this heading, notwithstanding the provisions of s 9(3)(a) have been repealed. Nevertheless, it appears that the defendant raised his record under the recognizance release order in this context as it concerned the likelihood that he will commit a further serious offence. It appears to me that the considerations raised in this context may, therefore, be examined under s 9(3)(i). (I also note that these considerations will, to some extent, overlap with considerations as to safety of the community.

113. The defendant submitted, in this respect, that he had been successfully managed in the community for a lengthy period and his conduct had been persistently positive. There was no suggestion, it was submitted, that the safety of the community had not been compromised by the defendant’s release on a recognizance release order. Further, there was no record of any further offending or relapse regarding drug and alcohol).

114. The issue raised by s 9(3)(i) is the actual likelihood, on the material before the Court, the offender will commit a further serious sex offence. On the material presently before the Court, the answer to the question must be substantial.

115. The defendant’s prior criminal history, the pattern of his criminal offending, together with the preponderance of psychological and psychiatric reports suggests an ongoing, strong and enduring sexual attraction to children, which has not been sufficiently abated by treatment programs (such as the refusal of the defendant to participate fully in an appropriate program for his sexual offences, such as CUBIT). Further, the material demonstrates that, whilst improvements have occurred in the defendant’s approach to drug and other alcohol abuse, it may not be concluded that there are insignificant risks arising from the disinhibiting effects of the substances and that ongoing drug and alcohol treatment is required. These cumulatively represent a substantial risk of sexual recidivism with respect to children (thereby a serious risk of re-offending in relation to serious offences).

116. It should be noted, in this respect, that, as Dr Parker mentioned, in ordinary circumstances, the support offered by the defendant’s wife would ameliorate against the risk of the defendant reoffending sexually. However, he expressed the view there is a reasonable basis to doubt that such mitigation may occur in the defendant’s marital circumstances (which seems to be in accordance with material as to his interaction with his partner).

117. The difficulty with the defendant’s submissions, in this respect, is that the defendant’s conduct, such as an absence of re-offending or lapses in relation to alcohol and other drugs since April 2017, has occurred in circumstances where the defendant is subject to a recognizance release order which, on the defendant’s alternative contention, is providing adequate supervision. The logic of that alternative contention is that there is a risk which is being controlled.

118. But even aside from that contention, in order to demonstrate the risk of re-offending were low or even moderate, based on the absence of adverse events since April 2017, it would be necessary to demonstrate that the supervision operating had not substantially moderated or mitigated the defendant’s conduct (contrary to the defendant’s alternative case) or otherwise that the risk had reduced over that time period or another time period, irrespective of supervision. The material presently before the Court would not support such a conclusion and, as I have observed, in fact supports a conclusion that the risk is high.

119. Thus, whilst the defendant’s performance under supervision affected by the recognizance release order during this period will be relevant to the assessment as to whether an extended supervision order should be made and, if so, under what conditions, I do not consider it contradicts the abundance of material identifying the risk of committing a further serious offence is substantial.

CONCLUSION: APPLICATION OF S 5B(b) AND (d) IN PRELIMINARY HEARING

120. The defendant’s present compliance with supervision arrangements is irrelevant in this respect.

121. Having regard to the supporting documentation relied upon by the plaintiff and the consideration of it against the criteria in s 9(3) of the Act, and, in particular, my consideration of prior criminal history (including my rejection of contentions advanced by the defendant as to the pattern of the offending) and the risk or likelihood of reoffending (including psychological and psychiatric assessments as discussed above), I consider that the material before the Court, if proved (and subject to any case, in contradiction, brought by the defendant) would result in the Court reaching the requisite satisfaction for the purposes of s 5B(d), namely, there was a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order .

EXTENDED SUPERVISION ORDER

122. I accept the submission of the defendant that the decision to make or refuse an application for an extended supervision order is discretionary and that an application can be refused, even if the conditions for the making of an extended supervision order are otherwise satisfied. As earlier noted, the decision is an evaluative judgment to be undertaken by the Court according to the individual circumstances of the case and having regard to the objects of the Act: State of New South Wales v Anderson [2015] NSWSC 1515 at [30].

123. In my view, there is an ample basis, on the material presently before the Court, to warrant the making of an extended supervision order. I will not repeat but rely upon my observations made pursuant to the threshold requirements under s 5B. The defendant has an extensive history of sexual offences against children, which pattern of offending has not been demonstrated on the material before the Court, to be decreasing and has high scores on actuarial risk assessment instruments including a high risk of re-offending. Dr Parker opined that the defendant was a committed offender, meaning someone who will actively seek opportunities to offend, grooming parents and seeking opportunities to be alone with vulnerable children. A key role in supervision will be to limit the opportunity to gain access to potential victims as well as assisting the defendant to internalise and strengthen his internal barriers to offending.

124. As Dr Parker opined, one goal for supervision will be to encourage further development and maintenance of stable and sustainable lifestyles so that new habits will be formed that might endure beyond supervision.

125. The absence of re-offending during supervision arrangements under the recognizance release order do not diminish this conclusion, as, at the very least, those circumstances exist under the existence of supervision, albeit at lesser intensity than that under the conditions sought under the interim supervision order in this case. As noted earlier, there is no evidence to suggest the risk of re-offending or the risk to the safety of the community has diminished during this period. I will return to consider whether those existing supervision arrangements are sufficient when dealing with conditions but that is a separate and additional question.

INTERIM SUPERVISION ORDER

126. The plaintiff sought that the Court make an interim supervision order pursuant to s 10A. Section 10A is in the following terms:

10A   Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

(a)  that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b)  that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

127. It is, in my view, appropriate that an interim supervision order be made. The defendant’s sentence will expire on 3 February 2018 and there is ample basis to conclude that the offender’s current custodial supervision will expire before the proceedings are finally determined. The requirements of s 10A(b) are met by the above conclusions that there is an appropriate basis for the making of an extended supervision order.

SECTION 7(4)

128. In those circumstances, the Court must make the orders proposed by the plaintiff in the first prayer for relief under the summons, thereby appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Court.

CONDITIONS

General Considerations

129. The alternative submission of the defendant was that the conditions attached to the interim supervision order should be limited only to those appropriate conditions which:

1. Reflect the present conditions that are imposed upon the defendant.

2. Are required to protect the community.

3. Properly work towards a reduction of the relevant risk of the commission of a serious offence whilst fulfilling the objects of the Act including the encouraging the rehabilitation of the defendant.

4. Are justified considering the individual circumstances of this case.

130. It was submitted that any conditions of an interim supervision order should be limited to those that reflect the present conditions of the recognizance release order and that there is no justification in the evidence for any increase in the conditions from those that presently exist in that order. Further, if there was any increase the conditions, there was no apparent explanation in the evidence as to why the increase would arbitrarily commence on 3 February 2018. Close consideration of the conditions imposed was required in the circumstances, particularly given the defendant’s successful integration into the community and adoption of a normal lawful community life.

131. Further, it was submitted that the Court should note that the supervision afforded the defendant under the recognizance release order has been enforced by Mr Sandercock who is a member of the Metropolitan Extended Supervision team and issued the risk management report in this matter.

132. That supervision included scheduled or unscheduled home visits, scheduled or unscheduled family visits, directions as to who the defendant may or may not associate with including visits with the defendant’s children or step children. The supervision also included directions to attend the FPS and drug and alcohol counselling as well as directions concerning the employment of the defendant.

133. Counsel for the defendant accepted that it was difficult to draw an analogy between supervision by a parole or a recognizance release order and an extended supervision order (or interim supervision order) as the respective orders emanated under different Acts having difference purposes and functions. It was, however, submitted that the Court could be assisted by the comparison of the respective orders because it would enable the Court to consider whether the conditions presently imposed are sufficient. Fundamental to that consideration was the performance of the successful supervision of the defendant and the relevant time period during which there has been an absence of adverse incidents regarding supervision.

134. As to the particular conditions sought, the defendant opposed the following conditions (upon the bases summarised below):

1. Electronic monitoring and schedule of movements (cl 5-9): an objection was taken on the basis that the defendant had not been previously subject to such constraints and that there was nothing in the evidence to point to such an increase in supervision. The supervising officer will be the same as the person who has been supervising the defendant for 10 months at the time the recognizance release order expires. Further, no explanation has been given as to why such a condition, is necessary to deal with risk, given it was not sought to operate from the time of this hearing until 3 February 2018. There was no material indicating the desirability of such controls.

2. Place and travel restrictions (cl 15 and 10): no basis had been identified for the surrender of a passport or that there was a flight risk. As to cl 19 the condition lacked clarity and meaning, and there is a risk of an inadvertent failure as a result of the widespread distribution of drugs in the community. The condition did not really address any risk.

3. Employment, finance and education (cl 20 – 22): these matters are covered by the current supervision arrangements and there has already been an assessment of the defendant’s current employment. The defendant is already the subject of the Child Protection Register.

4. Drugs and alcohol (cl 25): there has been increase in conditions restricting the defendant’s entry to licensed premises whereas presently under supervision arrangements the defendant and his present partner have been permitted to enter an RSL club and other places selling alcohol.

5. Personal details and appearance (cl 47): if the Court was to make an order of this kind greater clarity would be required. That is because it is unclear what changes of an appearance might mean for example a shave, a haircut or the like.

135. As earlier mentioned, the recognizance release order made by Hunt DCJ provided that the defendant was to accept the supervision of the probation service for such period as the service directs.

136. In the affidavit of Mr Kenny Ng affirmed 28 November 2017, there was, as previously mentioned, the OIMS, which revealed some of the elements of supervision determined by Mr Sandercock under the recognizance release order.

137. Those entries and directions concern the following matters:

1. Suitability of employment subject to intelligence

2. Management of alcohol and drug counselling

3. Attendance upon counselling

4. Access visits to family and particular the step son of the defendant

138. I will initially attend upon the general submissions advanced by the defendant as to (in the alternative) existing supervision arrangements being adequate (that is, without the need for increased conditions) before grappling with the particular conditions to which objection was taken.

139. There are four reasons for rejecting the defendant’s general contention that existing supervision arrangements are sufficient if an interim supervision order was to be made.

140. First, I agree with submission of the plaintiff that there are fundamental differences between the purposes for which a Court can impose a sentence upon conviction for a criminal offence and the purposes of, inter alia, extended supervision orders under the Act. So much is demonstrated by comparison between the objects of the Act and s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) or the purposes of criminal punishment in the common law: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 (per Mason CJ, Brennan, Dawson and Toohey JJ). Those respective purposes have some common elements, namely, the provision of the protection of the community from an offender and the promotion of rehabilitation (although in different settings) but the Act is not concerned with the adequacy of punishment, the general deterrence of crime, making the offender accountable for his actions or denouncing the conduct of an offender. Further, the purposes for which a court may impose a sentence on an offender overlap and must be considered together. The functions and purpose of a Court in sentencing, including the provision for conditional liberty, differ substantially from the purposes and functions of the Court in making, where appropriate, an extended supervision order (or interim supervision order).

141. Secondly, the Court is required to make an assessment of appropriate conditions under s 11 of the Act based upon the materials before the Court. Those materials will be necessarily different to those considered by the Court in the sentencing of the defendant (including the imposition of a recognizance release order) because that evidence is produced later in time and for the purposes of these proceedings (in part, in conformity with the provisions of s 6 of the Act). When considering whether to make an extended supervision order, a primary consideration will be the materials which are particular to an offender and brought to bear in the context of these proceedings. The materials provided are not inconsequential in the present case.

138. Thirdly, the recommendations made by Dr Parker for “intensive supervision” were made cognisant of the broader assessment he made as to the need for community supervision of the defendant, as described in his report. He paid particular regard to the actuarial risk assessment instruments as well as his psychological assessment as to drivers of the defendant’s conduct (as a committed offender), which were not before the sentencing court. The Risk Management Report, which contained management strategies including the supervision of the defendant, in conformity with the conditions sought by the State, was constructed by the author of the present supervision arrangements.

139. Fourthly, the present supervision arrangements do not reflect a detailed set of orders, directions or conditions for supervision under arrangements for conditional liberty such as parole orders due to the non-specific form of the second clause of the recognizance release order. The supervision arrangements, such as they are, are largely ad hoc and appear to meet the exigencies of particular circumstances which arise from time to time. They certainly do not consist of the comprehensive set of orders often found in orders for conditional liberty vis-à-vis parole. They were not designed to meet the primary objective of the Act.

140. The defendant argued that the prospective dates for the proposed interim orders sought by the plaintiff may cast doubt upon the extent of the risk proposed by the defendant (in an overall sense) or cast doubt upon the necessity for increased conditions. In the first part, the arguments are somewhat counterintuitive as the submission brings with it, at least implicitly, the notion that the supervision orders are controlling a risk (and by the second contention adequately in the circumstances).

141. As to the second contention it was not proposed that, if the Court found that the risk was sufficient to reach the requisite level of satisfaction under s 5B and warranted the making of an interim supervision order, that any such order should operate forthwith. In my view, given one of the central reasons for the making of a supervision order, as expressed in s 10A(a), is that the offender’s current supervision will expire before these proceedings are determined, it is unremarkable that the proposed commencement of that supervision order should correspond with the expiry of current arrangements for supervision.

142. A further consideration is the purposes for an extended supervision order. The Act provides that the orders are both protective and rehabilitative in nature. As Dr Parker opined, the intensive supervision orders he recommended will, first, have a protective function by acting as a barrier to re-offending but, secondly, they are also designed to affect long term change in lifestyle. Whilst it would be, no doubt, desirable to commence that program as earlier as possible the complaint by the defendant, in this respect, cannot impact upon those second and longer term considerations.

143. Thus, even if it were to be accepted (and I do not, as the material before the Court is the truest guide to the nature and extent of the risk) that the delay in the commencement of orders may reflect upon the gravity of risk as assessed by the State, that contention, so expressed, can only extend to the taking of measures to protect the community (i.e. children) vis-à-vis barriers to access to children. The argument has very little impact upon the secondary purposes of the order which are also protective in nature and which are implemented over a longer term with little concern for immediacy.

144. In my view the schedule of conditions of supervision proposed by the plaintiff should be granted save for cll 15, 19, 22 and 47.

Particular Conditions

Part A

149. I am mindful that the defendant has not offended during the period of his present supervision in the absence of electronic monitoring and the schedule of movements proposed in the conditions sought by the State. However, both the risk management report and the conclusions and recommendations by Dr Parker clearly favour this approach. In Dr Parker’s case, the recommendation is directly aligned with the primary objective of the Act, namely, the safety and protection of the community. When regard is had to the history of criminal offending and the likelihood of re-offending against children there is a strong correlation between substantial measures proposed, especially those found in Part A, of the proposed conditions and the protection to the community and, in particular, vulnerable members of the community, namely, children.

Part C (cll 15 and 19)

150. I agree with submissions of the defendant as to cll 15 and 19 in Part C.

151. Clause 15 should be rejected, not because of a demonstrate link to past offending, but because it lacks, in this matter, the necessary connection to the scope, purpose and objects of the Act.

Part D (cll 20-22)

152. It is difficult to understand the objection of the defendant to Part D. The defendant’s employment is already the subject of supervision and its regulation is recommended by Dr Parker. I approve cll 20 and 21. On the material before the Court, there would not seem to be any basis for cl 22.

Part E (cl 25)

153. There is ample basis for controls over drugs and alcohol (see as earlier discussed). I understand the defendant’s objection to the loss of his present liberties to, for example, visit an RSL with his partner. It should be noted, however, the OIMS indicate that once the extended supervision order conditions are known then a discussion would be required between the supervising officer and the defendant. I consider, therefore, that cl 25 should be granted. Discussions may then occur as contemplated by the supervising officer. I see no reason presently why the existing arrangements would not continue under a license granted by the supervising officer.

Part L (cl 47)

154. I agree that cl 47 lacks clarity as well as a relevant connection, on the present material before the Court, to the satisfaction of the objects of the Act. It is refused.

CONCLUSION

155. I have determined to make an order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 3 February 2018, which order will operate for a period of 28 days.

156. Pursuant to s 11 of the Act, orders will be made directing the defendant to comply with conditions, the terms of which shall be the terms of the amended schedule to the summons filed 14 November 2017 as further amended in accordance with this judgment.

157. Pursuant to s 7(4) of the Act, the Court shall also make orders appointing two qualified psychiatrists to conduct psychiatric examinations of the defendant and furnish reports to this Court. The ancillary orders sought by the State should be also granted.

158. Pseudonym orders shall be made as well as an interim suppression order.

159. The final terms of all such orders shall be reached after the compliance with the directions which shall be made by the Court.

DIRECTIONS

160. The parties made submissions as to ensuring compliance with s 578A of the Crimes Act 1900 and sought that a pseudonym order be made. The Court approved that course and sought that a draft order be provided.

161. The parties will be directed to bring in short minutes of order reflecting this judgment but in doing so they should also address the question of a pseudonym order. In order to ensure compliance with s 578A of the Crimes Act 1900, I will suppress this judgment until the parties have filed the short minutes of order which may include orders requiring redactions from the judgment. For more abundant caution, in the title of the judgment provided to the parties today shall employ a pseudonym.

162. With those considerations in mind I make the following directions and order:

1. The State provide to the Chambers of the Court as presently constituted, short minutes of order reflecting this judgment together with appropriate non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) and reflecting s 578A of the Crimes Act 1900 on or before 12noon, Wednesday, 20 December 2017 (the document supplied should indicate the attitude to the orders of the defendant). Subject to any dispute, the Court will deal with the orders administratively in Chambers.

2. Until the Court makes such orders, this judgment shall not be published or provided or sent to any person, organisation or agency, save for the parties and their legal representatives.

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Amendments

08 February 2018 - Typographical errors corrected.

07 February 2018 - Pursuant to orders made by the Court on 17 January 2018, reference to the name of the defendant was removed and replaced with the pseudonym “TT”.

Decision last updated: 08 February 2018