State of New South Wales v Wilkinson (Final)

[2021] NSWSC 782

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Wilkinson (Final) [2021] NSWSC 782

Hearing dates:

5 and 26 March 2021

Decision date:

02 July 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of this order;

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule of Conditions attached to this judgment;

(3)   Access to the Court’s file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:

HIGH RISK OFFENDERS – Extended supervision orders – Application – Serious sex offender – Where defendant alleged to have committed a further sexual offence in breach of interim supervision order – Whether unacceptable risk of committing another serious violent or sexual offence – Where defendant assessed as being in high risk category for re-offending – Whether unproved criminal charges a consideration under s 9(3)(h) of Crimes (High Risk Offenders) Act 2006 (NSW) – Whether unproved criminal admissions a consideration under s 9(3)(h) of Crimes (High Risk Offenders) Act 2006 (NSW) – Where extended supervision order not opposed – Where conditions of extended supervision order in dispute

Legislation Cited:

Crimes Act 1900 (NSW), ss 33, 61KC

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5D, 9, 11, 21A

Crimes (Serious Sex Offenders) Act 2006 (NSW), s 9

Cases Cited:

State of New South Wales v Conway [2011] NSWSC 588

State of New South Wales v Conway [2011] NSWSC 976

State of New South Walesv Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280

State of New South Wales v Haouchar [2018] NSWSC 1436

State of New South Wales v Veeran [2015] NSWSC 75

State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813

State of NSW v Thomas [2010] NSWSC 677

State ofNSW v Vincent [2017] NSWSC 858

Weininger v R (2003) 212 CLR 629; [2003] HCA 14

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Brian Wilkinson (Defendant)

Representation:

Counsel:
Mr P Aitken (Plaintiff)
Ms L Jardim (Defendant)

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

File Number(s):

2020/258055

Judgment

1. HIS HONOUR: The State of New South Wales (“the State”) commenced proceedings by a further amended summons, filed 3 December 2020, seeking an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for the supervision of the defendant (also known as “Brian Antney”) for a period of two years from the date of the Order (“the application”).

2. On 16 December 2020, Hoeben CJ at CL made preliminary orders pursuant to s 7(4) of the Act and an Interim Supervision Order (“ISO”) for a period of 28 days from 3 January 2021, which is the date that the total sentence for the index offence expired: State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813. The ISO was subsequently renewed on 18 January 2021 and 18 February 2021.

3. The application, which is for determination of final orders pursuant to ss 5B and 9 of the Act, was heard on 5 March 2021, at which time the applicant was residing in the community pursuant to the ISO. Judgment was reserved.

4. By a notice of motion filed on 23 March 2021, the State sought leave to reopen the hearing. An affidavit in support of the notice of motion affirmed by the solicitor of the Crown Solicitor’s Office with carriage of the matter had annexed to it documentation from which it was apparent that the defendant had been arrested on 11 March 2021 and charged with an offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW), that on 5 March 2021 he had sexually touched another person without consent. The defendant had been remanded in custody. On 26 March 2021, leave was granted and the hearing was reopened. Judgment was again reserved. The defendant’s ISO is suspended whilst he is in custody.

The defendant’s background

5. The defendant is a 58 year old single man with no dependents. The following account of his background is taken from the report of Dr Richard Furst, forensic psychiatrist, dated 11 February 2021. Dr Furst was one of the two forensic experts who were appointed pursuant to the preliminary orders. The other was Patrick Sheehan, forensic psychologist, who provided a report dated 13 February 2021. Dr Furst reported:

“[The defendant] was born in Leeton. There were no apparent birth complications. He has one older brother, one younger brother and one younger sister. He lived in Leeton in his early childhood. His parents separated when he was about 6 years of age. [The defendant’s] biological father currently lives in Cairns. His mother lives in Penrith.

[The defendant] attended Revesby Public School. He had learning difficulties from the outset of his schooling, with particular deficits in reading and writing. [The defendant] was placed in special classes at Whalan Public School. He repeated Year 6. and when attending Mt Druitt/Whalan High School. He left school in Year 8, being 15 years of age at the time.

[The defendant] has a history of juvenile conduct problems/juvenile delinquency, which included getting into trouble with police from the age 15 years for break and enter charges. He spent time in juvenile detention between the ages of 16 and 17 years and was also subject to supervision through juvenile justice officers pursuant to bonds/community-based juvenile sentences.

His mother remarried in the 1970s. She was working in a bakery at the time. His stepfather was a carpenter. He said that life at home was ‘pretty good’ and denied being physically or sexually abused at home. However, information from his Corrective Services files suggests he felt rejected and abandoned by his mother and treated differently to his siblings.

[The defendant] was emotionally disturbed in his childhood/early teens. He apparently attempted suicide when he was 11 or 12 years of age by taking an overdose of pills. He said he could not recall the reason for his apparent suicide attempt at the time of recent assessment. He was referred to a counsellor/psychologist at the time, but he said he could not recall what was discussed.

[The defendant] has a very limited history of employment. He worked in a fruit shop and in a supermarket for a combined total of about 12 months between the ages of 13 and 14 years. He worked in a factory manufacturing taps for a couple of months only when he was 15 years of age. His only other employment was a 3-week period of work on a prawn trawler with his father when living in Cairns at the age of 16 years.”

6. Dr Furst noted that the defendant was involved in a relationship from about 2005 with a woman who had three children. It had broken down by the time he was released from prison in 2010 and the defendant has not been in a relationship since then. In his report, Mr Sheehan noted that serious criminal offending by the defendant against the partner of his older brother alienated his family, although his mother and youngest brother maintained some contact until the index offence. After the index offence, the defendant’s mother wrote to him, withdrawing any further contact.

The defendant’s criminal record

7. Between the ages of 15 and 17, the defendant had findings of guilt made against him in the Children’s Court for breaking, entering and stealing; unlawful possession of a firearm; malicious injury; stealing; and driving offences.

8. The defendant has spent most of his adult life in prison, consequent to a criminal history of multiple serious offences.

9. In the early hours of 4 June 1980, the defendant, then aged 17, went to the home of a 15 year old girl who resided with her mother, who he had known for the previous three weeks. He abducted the girl at knifepoint. He was also armed with an iron bar and had with him a container of petrol which, he said, was to make good his escape if he was detected in the house. He took her into bushland where he held her for a period of 10 hours. He tied her to a tree and tried to gag her. The girl twice attempted to escape and on the second occasion sustained a knife wound to her thigh. At that point, the defendant applied first aid, led her to safety and released her. He was arrested the following day and detained in custody.

10. On 14 July 1980, the defendant escaped from custody. As to what then occurred, the sentencing judge remarked as follows:

“He then walked to his home … [and] removed a long bladed kitchen knife from a drawer … He walked to the vicinity of the girl’s home and hid himself in the rear yard of neighbouring premises. There he waited for what must have been some considerable time. In the meantime, the police had been alerted to the escape and also [the defendant’s] intentions, removed her family, and took their place in the home.

At about 12:30am on 15 July, 1980, [the defendant] went to the rear of the girl’s home, opened a flyscreen door and then opened a rear door a few inches. He was at that stage carrying the previously mentioned knife. Having made that gesture of opening the door, he abandoned the back door and walked back into the yard of the premises carrying the knife, where he was arrested after having thrown the knife on the ground.

[The defendant] was then taken to the … police station where he was interviewed by way of record of interview. In the course of that … interview … [the defendant] stated that his intention in going to the house armed with the knife was to kill the girl, and he had no compunction in stating that to the police.”

11. The defendant was sentenced in the District Court on 24 November 1980 for counts of abduction, escape lawful custody and possession of knife with intent to murder. He received wholly concurrent sentences of 18 months, 3 months and 2 years imprisonment respectively with a non-parole period which expired on 24 July 1981.

12. In 1981, the defendant was convicted of common assault and sentenced in the District Court to a recognisance to be of good behaviour for 4 years and to accept supervision. The police facts were to the effect that he walked across the road to his neighbour’s house and asked the neighbour for the use of a telephone book. When the neighbour said she was unable to find the telephone book, he became aggressive and pushed her to the floor. She screamed and ran to the rear door of her house. He gave chase and caught her as she was trying to unlock the door. He pulled her back by grabbing her around her shoulders, pushed her up against a wall and pulled out a knife from the rear of his trousers and threatened her with it. He then ran back to his house, throwing the knife away as he did so. The knife was recovered by police and was described as a kitchen knife with an 8-inch blade.

13. On 19 February 1983, the defendant was arrested and charged with counts of robbery and assault with intent to rob. The police facts were to the effect that, four days prior, the defendant entered a bottle shop and held up the female cashier at knifepoint. Upon leaving the bottle shop, he ran to a nearby car park where he approached an elderly male who was seated in his vehicle and ordered him from it at knifepoint. The defendant got into the vehicle but was unable to start it and then ran off. He received concurrent sentences of 3 years and 6 months imprisonment with a non-parole period of 12 months.

14. For a period of six weeks in April and May 1984, the defendant was a patient at Morisset Hospital, it being a condition of his parole that he present there. On 24 May 1984, he left the hospital and went to the apartment of his brother and his sister in law in the western suburbs of Sydney, where he waited for his sister in law to arrive. When she did, she let him in. He grabbed her from behind by her throat, saying “Don’t scream or I’ll kill you” and that he intended to have sexual intercourse with her. He twisted her arm behind her back and used a fishing knife to force her to take off her clothes. When she hesitated in taking her clothes off, he punched her to the stomach. He then had penile-vaginal sexual intercourse with her without her consent. He punched her face, breaking her nose. He was convicted of “maliciously inflict [grievous bodily harm] with intent to have sexual intercourse” and sentenced to a period of imprisonment of 8 years with no non-parole period.

15. On 14 December 1988, when aged 26, while in custody at Parramatta Correctional Centre, the defendant grabbed a female welfare officer by her throat with one hand and held a knife with a 10cm blade to her throat with the other. He started to drag her up a flight of stairs towards the roof, but another inmate tackled him. Prison officers intervened when the victim screamed. On 9 August 1989, the defendant was convicted of the offence “detain for advantage” and sentenced to 2 years imprisonment with a non-parole period of 18 months.

16. In 1992, the defendant was living with a woman and her 13 year old daughter. The daughter alleged that one afternoon in that year, she and the defendant were riding bicycles to bushland, ostensibly to gather some plants. When they arrived at the bushland, the defendant placed his arm around her and pushed her to the ground. He removed her pants and inserted a finger into her vagina. The police facts state:

“The victim heard and then saw people on bikes and when she tried to scream out [the defendant] slapped her in the face and placed his hand around her throat. [The defendant] threatened the victim and then stood up to check the people on bikes had left. When standing he took his pants down and lay back on top of the victim where he attempted to push his penis into her vagina. The victim continued to move and struggle preventing penetration. [The defendant] then ejaculated over the victims [sic] stomach and lower region.”

17. She did not complain to police until October 1996. The defendant was interviewed by police in April 1997 and denied the allegation. The matter proceeded to trial in the District Court in December 1998. The defendant was indicted on three counts, being sexual intercourse with a child between 10 and 16 years; attempted sexual intercourse with a child between 10 and 16 years; and common assault. The defendant was acquitted of all three counts.

18. On 21 December 1992, when aged about 30, the defendant went to the house of a sister of a former partner, at about 9:00pm. Her husband was at work and her two children, aged five and two, were asleep. The defendant forced the front door open, took hold of the victim around her neck, squeezed it and dragged her backwards. He told her to get her car keys, with the intention of taking her away. She refused to leave her children unattended. He struck her to the face, causing her to scream. He threatened to hit her harder if she screamed again and then pushed her out of the house. She tried to escape to a neighbour’s house but he gave chase, tackled her, held her by her throat, hit her to her face and pulled her over to her car. He forced her with further assaults to drive to a reserve area, where he had digital and penile-vaginal intercourse on pain of not seeing her children again, if she screamed. The defendant was convicted of aggravated sexual assault and kidnapping and sentenced on the former count to 12 years imprisonment with a minimum term of 9 years, and on the latter a fixed term of 3 years, to be served concurrently.

19. In about 2005, the defendant married a woman who had three children. According to police facts, in mid-September 2006, following repeated acts of violence, she told him to move out, which he did. On 24 September 2006 at about 11:30pm, she went with her three children to local shops to make a phone call. On her return, she found the defendant was in the home. He grabbed her by her arms and “king hit” her to the back of her head, then in her chest. He went to a bedroom and returned with a fishing knife that he had left under a bed during a previous stay, which he held to her throat. She became compliant and the defendant relented. Two days later, she complained to officers of the New South Wales Department of Community Services, who contacted police. He was charged with common assault and being armed with intent to commit an indictable offence. However, when the matters came to court, no evidence was offered by the prosecution in relation to those charges. When the defendant was arrested, which was six months later at his place of residence, police seized a stun gun from his beside dresser. He was fined $100 for possessing a prohibited weapon without a permit.

20. In 2008, when the defendant was aged 45, he was convicted of destroying or damaging property, stalking/intimidation with fear of physical or mental harm and common assault. According to police facts, on 26 May 2008, he was residing with his wife and her three children. In the course of a domestic violence incident, he threatened to kill his wife and one of her children, threw a knife at her which narrowly missed her and stuck into the wall behind her, grabbed her by her hair and repeatedly slapped and punched her face. She contacted the father of her children who attended with her brother and removed them. The defendant approached his wife at another address where she had sought refuge and again slapped her and punched her face with a closed fist. He then took a machete that he was carrying in a bag and smashed the windscreen and passenger windows of the children’s father’s car. On the first charge (destroying or damaging property) the defendant was sentenced to 9 months imprisonment with a non-parole period of 6 months, subject to supervision. For the other two offences he received wholly concurrent sentences of 6 months imprisonment.

21. On 7 August 2008, police patrolling the suburb of Whalan observed the defendant in the company of his wife, in contravention of an apprehended violence order (“AVO”) and conditions of bail arising from the charges concerning the incidents of 26 May 2008. He was arrested and searched. A 30cm kitchen knife was found secreted in the front of his pants. He was convicted of contravening a prohibition or restriction in an AVO and custody of a knife in a public place. For the former offence he received a bond for a period of 2 years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and for the latter offence, a fine of $400.

22. On 6 February 2009, the defendant was released from custody following the handing down of a s 9 bond for the 7 August 2008 offences. He immediately contacted his (by then) ex-wife to attempt a reconciliation, which she refused. On 19 February 2009, the defendant phoned his ex-wife and threatened to kill her. On 5 June 2009, the defendant was sentenced to 12 months imprisonment with a non-parole period of 6 months for the offence of use carriage service to threaten serious harm. He received an identical sentence for breaching the AVO. Both sentences were wholly concurrent with a sentence imposed on 16 April 2009, for one count of steal from the person (committed on 26 June 2008). For that offence, the defendant was sentenced to 16 months imprisonment with a non-parole period of 12 months.

The index offence

23. On 18 November 2011, when he was aged 49, the defendant was sentenced by English DCJ following a plea of guilty to a count of wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act. The facts were to the following effect. On the afternoon of Saturday 26 June 2010, shortly before sunset, the complainant was walking along a track near her home, known as the Florabella Pass, in the Blue Mountains between Blaxland and Warrimoo. As she descended the track to the valley floor, she passed the defendant walking up. They exchanged pleasantries as they passed. At the bottom, she noticed an illegal bush camp and continued on the track, but became concerned by the campsite and decided to head back up the track to her home. She saw the defendant walking towards her. He engaged her in conversation and she left. He followed her closely behind as she made her way up from the valley and after a while passed her. Further up the path, she came upon him sitting on a rock. He again followed her. In her remarks on sentence, English DCJ related what happened thereafter:

“… at that moment [the defendant] punched the complainant a forceful blow directly into the face. The blow struck her around the eye and he immediately punched her a second time. She is not specifically aware of where the second blow landed except to say it was to her face following which she ‘just saw lights’. She fell to the ground and her next recollection is being face down on the ground with [the defendant] on top of her, he had one hand over her mouth and the other on her throat. She was experiencing difficulty breathing, she tried to scream and [the defendant] said ‘Stop screaming, stop screaming, if you struggle I’ll kill you’. He then asked ‘Are you going to stop struggling?’ and she indicated her assent by nodding, she could not speak at that stage. [The defendant] started to let go of her and she tried to turn over but he took hold of her again and said ‘Stop struggling, are you going to stop struggling?’ [The defendant] had taken his hand away from her throat so that she could answer ‘Yes, yes’.

She was however determined to try and get away and as soon as [the defendant] released his grip on her she managed to turn herself over and she scratched [the defendant’s] face with her nails. She was also trying to kick out at him with her feet. She noticed at that point that [the defendant’s] jumper and a knife were on the ground next to him. She grabbed for the knife and took hold of it but [the defendant] said ‘no, no, no’ and he put his hand over her hand on the knife and struggled to free it from her grasp. Her grip on the knife slipped to the blade and at that point she received a large gash to the palm of her hand. [The defendant] arrested the knife from the complainant’s grasp and then grabbed hold of her by her ponytail. He swung her around so she was facing towards the ground again and [the defendant] put the knife under the complainant’s jawline, he repeated to her ‘If you struggle I’m going to kill you’. She attempted to struggle free of [the defendant] and he put the knife into her neck or jaw. She described [the defendant] as actually jerking the knife up into her neck that caused a large wound at her jawline which immediately bled profusely. The offender said ‘See, this is what happens if you struggle, if you struggle I’ll kill you’. She kicked out and was still struggling with [the defendant] who maintained his hold on the knife. She struggled to keep the knife away from her. She managed to almost regain her footing at which point she felt dizzy and short of breath. [The defendant] suddenly backed off from her a short distance and she screamed ‘Fuck off’ as loudly as she could. [The defendant] turned, grabbed some of his things and ran back down the path. One of the things which he took with him was the knife.”

24. The complainant rang her mother on her mobile phone and then called Triple Zero. The complainant’s father came down the track and stayed with her until police arrived. Ambulance officers arrived, provided first aid and carried her up the track. She was taken to hospital and was in intensive care for several days. Her injuries included severe wounds to her hand and neck, both requiring operative intervention. In surgery, it was discovered that the wound to her neck had lacerated her internal jugular vein, which required surgical repair, and which caused an extensive scar along her jawline. She was also required to have ongoing surgical treatment for the injury to her hand. When the defendant was arrested some days later in a suburb in Western Sydney, he was found to have a knife secreted in the front of his trousers.

25. The defendant received a sentence of 10 years and 6 months, with a non-parole period of 7 years and 10 months. He became eligible for release to parole on 18 May 2018, although he was not directed by the State Parole Authority (“the SPA”) to be released to parole until 6 February 2020.

26. A statement by the victim was tendered pursuant to s 21A of the Act, for consideration in respect of the plaintiff’s application. A copy was provided by the plaintiff to the defendant’s legal representatives. I have taken the contents of the statement into account on the application, pursuant to s 21A(4). The statement discloses, in my view, a remarkable degree of forbearance of the victim’s own suffering and continuing disabilities as a result of the attack, and insight as to where the interests of the community lie in the application. I commend her for it.

Claimed admissions of other offences

27. The defendant has claimed to forensic experts, and to some of his victims in the course of his assaults, that he has committed numerous other offences of a violent and/or sexual nature over the years for which he has not been apprehended. An example is contained in a report by forensic psychologist Dr Graeme Robbie, dated 8 May 1985. Dr Robbie interviewed the defendant in 1980, 1982 and 1985. In relation to the 1985 examination, Dr Robbie stated:

“I asked [the defendant] to elaborate on the sort of fantasy he has, but he was not prepared to be too explicit. However, he suggested he might take them to the bush, and ‘make them suffer a bit, scare them, and make threats.’ Then he admitted that he actually has, since he was fourteen, behaved violently and threateningly towards around thirty women. He may break in on them, threaten them with a knife, and carry through an enforced intercourse. He has never actually cut any, but he does think about stabbing them, and about killing them. He denies the thoughts of stabbing and killing cause sexual excitement. He more has a fantasy of wanting to get back at them. Only minor events can set him up in this way. The day he was discharged from gaol last year to go to Morisset he put his arm around a girl passing in the street and dragged her into an alleyway, and then decided to let her go. She screamed, so he knocked her out.

He told me all this matter-of-factly, and I would assume there is much more. However, I cannot guarantee that he was telling me the truth, and not just experimenting with a line. However, obviously he has to be taken seriously.”

The defendant’s mental health history

28. The defendant was assessed by Dr Alex Gilandis, clinical psychologist, when he was aged 19. Dr Gilandis administered the Wechsler Adult Intelligence Scale, which recorded a verbal IQ of 86, a performance IQ of 98 and a full-scale IQ of 91. Dr Gilandis concluded: “These scores suggest that current general intellectual functioning falls within the low average range (27^th percentile)”. I note that Dr Furst and Mr Sheehan, who examined the defendant in February 2021, both accepted that the defendant does not have a cognitive impairment and that his level of intellectual functioning is in the low average range.

29. As noted, in May 1984, when he was aged 21, the defendant was admitted as a patient to Morisset Hospital. There is no material before me as to the medical basis, if any, for the admission, only that it was apparently a condition of parole.

30. In 1990, the defendant was diagnosed by Angelo Virgona, forensic psychiatrist, as having a “severe antisocial personality disorder”.

31. There are references in medical reports concerning the defendant to suicide attempts. I have already mentioned his attempt when aged 11 or 12, reported to Dr Furst. Another example is in report by John Tonkin, psychologist, dated 28 July 1993, which refers to the defendant attempting suicide by cutting his neck in his prison cell two days earlier, and to there being an earlier similar incident in 1993.

32. In 2019, the defendant was prescribed an antidepressant (Zoloft) by a psychiatrist, while he was participating in the Custody-based Intensive Treatment (“CUBIT”) program.

The defendant’s drug and alcohol history

33. The defendant told Dr Furst that he did not use prohibited drugs in his childhood and teens. He said that he started using heroin from around the age of 22 whilst in prison. When released from custody in 2005, he used heroin every few months, although his drug of choice was amphetamine, using 1g every two days. At that time, he was also consuming a 700ml bottle of bourbon every two days. Following his arrest for the index offence, he engaged in ongoing use of amphetamines, methylamphetamine and non-prescribed buprenorphine. Prior to his release in 2020, he commenced monthly injections of buprenorphine as part of an opioid substitution program, which he continues to receive.

34. The defendant told Mr Sheehan that he began injecting amphetamine between 2005 and 2008, at one stage using 1g per week for a period of five months. He began injecting non-prescribed buprenorphine in custody. He said that his use of buprenorphine was not habitual until 2018-2019, when he was struggling to cope with the emotional demands of an intensive sex offender program. His persistent drug use resulted in his removal from the program prior to completion.

35. As noted, the defendant was released to parole following his sentence for the index offence on 6 February 2020. Mr Sheehan noted:

“[The defendant] returned a positive urinalysis test to methylamphetamine on 31 March 2020. Whilst file information shows that he emphatically denied any use to parole and psychology staff, he acknowledged this to me during interview. He said that he had spontaneously chosen to inject methylamphetamine at the [Community Offender Support Program] approximately four days prior to his relocation to Newcastle. He said: ‘It was a stupid decision, I wasn’t thinking clearly’. He denied subsequent use of any non-prescribed substance or any desire to do so.”

36. The defendant has tendered negative drug test results for the period 26 June 2020 to 3 March 2020.

The defendant’s history as a supervised offender

37. Mr Sheehan and Dr Furst concluded that the defendant has a poor history of compliance with supervision in the community, noting that he has offended on parole in 1981, 1983, 1984, 2008 and 2009. Dr Furst noted that the defendant often committed a serious offence shortly after release from prison, most notably his commission of the index offence in 2010, having been released from custody a month earlier, which was also committed whilst on bail.

38. The defendant was released to parole for the index offence to the Nunyara Community Offender Support Program (“COSP”) Centre. Mr Sheehan noted that on the day of release, the defendant acknowledged having used non-prescribed buprenorphine in custody the day before but did “not think he had an issue with drugs”.

39. Mr Sheehan reviewed the defendant’s progress in positive terms, since his release on parole:

“He has attended appointments as directed, including seeing a correctional psychologist. He has appeared motivated and cooperative. He was always polite and never aggressive towards staff. He has engaged well in the case management process. He sought alternative accommodation and was successful in finding a boarding house in Newcastle, relocating on 31 March 2020. However, he failed drug test on 31 March 2020, testing positive for methylamphetamine. [The defendant] was directed back to the COSP. He denied use and was teary, saying: ‘What’s the point? I should just go back to gaol’ (1 April 2020). He did stabilise and returned to seeking accommodation. He successfully relocated to a boarding house in Newcastle on 21 April 2020, but was exited from the address within the first week due to an incident where [the defendant] was allegedly ‘staring outside the property at 2 girls’ who were known to be under 16 years. He was resettled at another location. [The defendant] was investigating employment opportunities through a labour hire company. The [Offender Integrated Management System] case notes end on 16 November 2020.

[The defendant’s] sentence expired on 3 January 2021 and he has been managed under an ISO since that time. During interview, [the defendant] told me that he continues to have no problems with supervision. He continues to be managed by the same parole office in Newcastle. He said that his scheduling requirements have loosened, now consisting primarily of pre-approved locations. A 10pm curfew remains. He remains subject to GPS monitoring.

In all, [the defendant’s] response to supervision over the past year has been favourable, showing not only compliance but positive engagement in the case management process. This can only be seen as a marked improvement from previous episodes of release. As is common with supervised offenders, he feels that supervision is holding him back from achieving more in his life, rather than feeling that supervision has played a role in facilitating his current period of community stability.”

40. The defendant tendered selected case notes in relation to the defendant’s supervision since late 2020, generated by the Offender Integrated Management System (“OIMS”) and by Forensic Psychology Services, which is a community-located service provided by the Department of Corrective Services (“Corrective Services”). The reports indicate a reasonably active and positive attitude by the defendant towards his responsibilities as a supervised offender.

An alleged breach of supervision

41. It is alleged that, on 5 March 2021, which was the day of the hearing of this application, the defendant committed a criminal offence of a sexual nature. He was arrested and charged with a count of “sexually touch another person without consent”, contrary to s 61KC(a) of the Crimes Act. He was, and remains, bail refused, so that his ISO is suspended until such time as he is released back into the community.

42. This application was relisted for 26 March 2021 so that the plaintiff could seek to tender material in relation to the alleged offence and the defendant respond, given its relevance to the application.

43. The police facts allege that the defendant assaulted a fellow resident, a 23 year old male (“the resident”), at their place of low-cost accommodation. The resident and defendant were known to each other, having engaged in recreational activities together. The defendant was a member of caretaker staff at the facility, which gave him access to a master key for all doors. On the morning of 5 March 2021, the resident was asleep in his unit in the complex and awoke to the sound of his locked bedroom door opening. The defendant entered with a vape, saying “I bought your vape up for you”. He placed it on a desk and then lay down next to the resident. The defendant:

“… placed his right arm over [the resident] like a cuddle. They both lay together for about 20 seconds just staring at each other until [the defendant] got out of bed, walked out of the room closing the door behind him.”

44. In the afternoon of the same day, the resident was standing outside a window talking to another resident on the other side. The police facts continued:

“[The resident] saw [the defendant] approaching him from his left, [the defendant] wrapped his right arm around [the resident’s] waist and placed his right hand on [the resident’s] genitals. [The resident] immediately felt uncomfortable and fearful of [the defendant], so stepped away from [the defendant] and said, ‘That’s sexual harassment.’ [The defendant] said, ‘Well there’s no cameras.’ [The defendant] moved back towards [the resident] and again placed his right [arm] around [the resident] and rubbed his right nipple and then his left nipple. [The resident] felt extremely uncomfortable due to [the defendant’s] behaviour, so stepped backwards and turned his body to the left away from [the defendant]. [The defendant] and [the resident] had a short conversation about [the defendant] getting back the vape he gave [the resident] earlier. [The resident] and [the defendant] walked to [the resident’s] room where [the defendant] took back possession of the vape.”

45. The police facts state that when arrested, the defendant accepted an offer to partake in an electronically recorded interview, during which he “denied having ever touched [the resident] in an inappropriate manner”.

Relevant provisions of the Act

46. The Act relevantly provides as follows:

Part 1A   Supervision and detention of high risk offenders

…

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.

…”

47. A “serious offence” is defined in the Act as follows:

“4   Definitions

(1)   In this Act:

…

serious offence means:

(a)   a serious sex offence, or

(b)   a serious violence offence.

…

serious violence offence—see section 5A.

…

5A   Definition of ‘serious violence offence’

(1)   For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person:

(a)   engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(b)   attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a).

(2)   An offence that includes the elements referred to in subsection (1)(a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(2A)   A reference in subsection (1)(a) to:

(a)   conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and

(b)   conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and

(c)   conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.

(3)   A serious indictable offence is:

(a)   an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or

(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or

(c)   an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.”

48. In relation to the meaning of “a high degree of probability that the offender poses an unacceptable risk” in s 5B(d), I take into account s 5D:

“5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

…”

49. Another requirement is that the offender is a “supervised offender”:

“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 defendant] 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.”

50. Sections 5B(a)-(c) of the Act oblige the plaintiff to satisfy certain threshold requirements in their application for an ESO. The defendant does not contest, and I am satisfied, that ss 5B(a), (b) and (c) are established.

51. At the time of the application, the defendant was serving a sentence of imprisonment (defined in s 5I(3) to include being released on parole) for a serious violence offence, as defined in s 5A(1), being the index offence of wound with intent of causing grievous bodily harm: s 5B(a). The defendant does not dispute, and I am satisfied, that he qualifies as a “supervised offender”, within the meaning of s 5I: s 5B(b).

52. With respect to s 5B(c), the Act requires pursuant to s 6(3) that an application for an ESO be supported by documentation that (a) addresses each of the matters referred to in s 9(3); and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing, in the case of an ESO application, a serious offence: s 6(3)(b). I note that the latter requirement has been complied with. I will consider each of the matters referred to in s 9(3) below.

53. The Act stipulates objects and a paramount consideration, when determining an application:

“3   Objects of Act

(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

…

9   Determination of application for extended supervision order

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

(a)   by making an extended supervision order, or

(b)   by dismissing the application.

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

…

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

…

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

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

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

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

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

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

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

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

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

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

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

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

(4)   In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

54. I note that, pursuant to s 5C, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites are satisfied.

Sections 9(3): forensic reports

55. The determination of an ESO application requires certain material to be taken into account, that is identified in s 9(3). Reports have been prepared pursuant to ss 9(3)(b), (c) and (d1) which also address the requirements of ss 9(3)(d), (e), (e1) and (i).

The forensic reports pursuant to s 7(4)

Dr Furst’s report

56. Dr Furst prepared a report dated 11 February 2021. Dr Furst considered that in his examination, the defendant was “superficially cooperative” and:

“… appeared to minimise his previous emotional/mental health problems and his offending behaviour, indicative of poor insight and possibly elements of denial.”

57. Dr Furst diagnosed the defendant as meeting the criteria for three mental disorders: antisocial personality disorder; alcohol/substance use disorder; and paraphilic disorder, not otherwise specified. Dr Furst elaborated on each of these disorders as follows:

“[The defendant] has a history of emotional and behavioural problems dating back to his childhood. He has a history of childhood conduct disorder, an ongoing pattern of criminal offending, manipulation of others, low self-esteem, lack of trust in others, deficits in terms of responsibility, lack of empathy, tendencies towards emotional dysregulation and anger, and vengeful tendencies. He has also been incapable of forming meaningful intimate relationships and is alienated from his family. Those features are indicative of antisocial personality disorder, which is his primary psychiatric diagnosis.

He has apparently experienced periods of depression, mood instability, suicidal ideation and self-harming tendencies/actual self-harm over many years, suggestive of the mood instability often seen [in] people with severe [personality disorders] of the antisocial and/or borderline type.

Alcohol/Substance Use Disorders are characterised by excessive habitual use of alcohol and/or drugs of abuse, often associated with psychological dependence on alcohol/drugs, patterns of tolerance to increasing amounts of alcohol/drugs to achieve the same effect, difficulty controlling the use of alcohol/drugs, failed attempts to stop using alcohol/drugs, and ongoing use of alcohol/illicit drugs despite the harmful consequences.

[The defendant] also has a history of sexual and violent fantasies about women in general, and his victims in particular, planning of prior offences, stalking of victims, manipulating others to gain information about victims; and the use of physical coercion and violence. Additionally, [the defendant] reported the onset of his sexually aggressive behaviour commencing at approximately 7-8 years of age. He also disclosed committing numerous unreported sexual offences from approximately 18 years of age, and acknowledged sexual aggression within his own ex-de facto relationship [in the early 1990s].

A review of his offending history is indicative of [the defendant] being sexually aroused by choking, punching, overpowering and threatening victims, typically threatening to kill his victims and usually with the use of a weapon/knife, indicating a desire to gain power and control over his victims, including by raping his victims. Therefore, he meets criteria for the diagnosis of a paraphilic disorder, not otherwise specified, characterised by violent and rape fantasies. In view of his long-standing tendency to minimise and/or deny previous actions and sexual motivations in this respect, his current assertions that he is ‘not interested in women’ and has ‘no sexual urges or fantasies’ ought to be considered unreliable. The lack of transparency about his true motivations for offending [e.g. at Blaxland in 2010] increases the difficulty in relation to effectively monitoring and managing [the defendant], as his self-report is unreliable. A similar pattern was seen when he was using drugs in the [Metropolitan Special Programs Centre] and denied using drugs to his therapists, despite ongoing drug use, an example of his tendencies to lie/be deceitful.

Paraphilic disorders are defined by recurrent and intense sexual arousal from sexual behaviour against a nonconsenting person, as manifested by fantasies, urges, or behaviours indicative of the disorder. The individual has acted on the sexual urges with another consenting person, or the sexual urges or fantasies cause clinically significant distress or impairment in social, occupation or other important areas of functioning.” (emphases in original)

58. As to how these disorders contribute to the defendant’s risk of committing a further serious offence, Dr Furst said:

“The primary risk factors in relation to future sexual offending, and future violent offending, and/or both a sexual and serious violent offence taking place at the same time are his antisocial personality disorder coupled with sexual deviance involving violent fantasies against women. His previous behaviour/past sexual and violent offending against women in particular, is also a strong predictor of future offending.

Furthermore, [the defendant] experiences periods of emotional dysregulation, likely exacerbated by drinking [and] drug use, but also exacerbated by adverse life circumstances, real or perceived, such as being rejected, humiliated or when angry. Given his criminal history thus far and observations by various psychologists working for a Corrective Services New South Wales, such tendencies have not been adequately addressed/treated, and are likely to continue long-term, meaning that [the defendant] poses a long-term risk to the community, both to people that he knows and to strangers.

[The defendant’s] propensity towards serious sexual violence upon female victims, both related and strangers, and his propensity to use weapons and threaten victims make him an extremely dangerous individual, consistent with the way he was described by police as far back as May 1984 after he violently raped his sister-in-law.”

59. Dr Furst considered that the defendant poses “a very high risk of committing a further ‘serious offence’ of sexual nature and a very high risk of committing a further ‘serious offence’ of violent nature”. He concluded:

“Past offending history, antisocial personality disorder and sexual deviance are the strongest three predictive factors in relation to future risk of re-offending. When clinical, static, historical and dynamic factors are combined, [the defendant] is a sex offender who is well above average risk of re-offending compared with the typical offender. He is also at high risk of re-offending in a violent manner. Therefore, in my opinion, [the defendant] poses a high risk of committing a further ‘serious offence’ of a sexual nature and poses a high risk of committing a further ‘serious offence’ of a violent nature.”

60. Dr Furst nevertheless was of the opinion that the risk of committing a further serious offence posed by the defendant could be managed in the community under an ESO:

“… [the defendant] fits the profile of sex offenders who would likely benefit from the more intensive level of supervision and treatment that an ESO offers, in accordance with the proposed risk management plan in the risk management report of Ms Erin Kirkwood, dated 17/06/20.

His identified clinical, static, historical and dynamic factors, lack of social supports, impulsivity, tendencies to drink and abuse drugs and breaches of previous supervision requirements are all features that warrant an ESO and would make voluntary treatment inadequate in relation to managing his risk of future offending in the community.”

61. Dr Furst considered that the conditions of supervision outlined in the further amended summons are appropriate for the defendant’s management pursuant to an ESO, including provisions in relation to the sharing of information between healthcare professionals. He continued:

“The identified risk factors suggest the need for careful monitoring of [the defendant], ongoing psychological treatment and a low threshold for the use of antilibidinal medication, such as Androcur (Cyproterone Acetate), especially if there is ongoing evidence of sexual deviance/a paraphilic disorder.

…

Unfortunately, the evidence in relation to the psychological and pharmacological treatment of antisocial personality disorder is lacking, suggesting his deficient and antisocial personality and his borderline tendencies will be ongoing problems. The ongoing use of Zoloft (Sertraline), currently prescribed by his GP, is a reasonable medication choice in the circumstances in relation to mood instability and impulsivity. There is also evidence that Sertraline can reduce libido/sexual urges.

Measures to include abstinence from alcohol and drugs of abuse are also indicated, including ongoing drug and alcohol specialist input, currently involving monthly injections of Buvidal (Buprenorphine).

Stable accommodation and a meaningful routine, preferably a work routine, are also indicated.”

62. As to the appropriate length of an ESO, Dr Furst said:

“The clinical, management and risk concerns in relation to [the defendant] are, in my opinion, on the upper end of the spectrum, even relative to another high-risk offenders coming before the Supreme Court of New South Wales for ESO applications. His multitude of the criminogenic problems, personality disorder and offending behaviour have a very long history, in fact dating back to his childhood and early teens. Unfortunately, [the defendant] has learnt little from previous offences, lacks insight, has negative/pro-criminal attitudes, and lacks empathy towards prior victims. He will require long-term supervision/management and the problems identified are enduring. Therefore, I would regard a minimum period of ESO supervision of 5 years as being appropriate.”

Mr Sheehan’s report

63. Mr Sheehan’s report is dated 13 February 2021, which pre-dates the recent alleged offence. Mr Sheehan noted that the defendant acknowledged some same-sex activity when he was aged 17 and on one occasion in prison in his twenties. Mr Sheehan said:

“[The defendant] was highly sexually motivated when he was younger, but reported nil sexual interest over the past year which he accounted for as a combination of his [Selective Serotonin Reuptake Inhibitors] and Suboxone medications. He denied having had an erection or having masturbated over the past year, although he told his psychologist he had masturbated ‘about twice’ since release.”

64. Mr Sheehan noted that the defendant had failed to complete any Alcohol or Drug programs (“AOD”) and that he seemed to underplay the significance of his substance use history.

65. Mr Sheehan also diagnosed the defendant as having an antisocial personality disorder, and thought it was abating. He said:

“In my opinion [the defendant’s] antisocial personality characteristics have played a strong contributing role in his maladjustment. [The defendant’s] insecurity and fears of inadequacy are also personality based and have combined with antisocial features to generate outward aggression towards women. The outward expression of antisocial personality disorder is known to attenuate as the individual moves into middle age as processes of maturation occur. At 58 years, [the defendant] is entering a phase of life where his antisocial features might be expected to lessen progressively. Despite some episodes of impulsivity and recklessness (such as using methylamphetamine in March 2020), [the defendant’s] steady functioning over the past 12 months does point towards the presence of the maturation effect.”

66. Mr Sheehan noted that the defendant has never engaged in an intensive treatment program specifically addressing violence but has participated in intensive sex offender programs on several occasions. Mr Sheehan considered that it made little difference whether the defendant participated in sex offender or violence offender programs, given the significant overlap in content. He said:

“[The defendant] participated in the [CUBIT] program during a previous sentence. He entered the program on 2 July 1999 and was discharged on 7 January 2000 due to ‘threatening and aggressive behaviour’, which was observed to escalate as he progressed through treatment. He was noted to ‘make inappropriate comments to female staff about their appearance, touching of female staff by putting his hand on their shoulders, verbally attacking a therapist and making a covert threat towards a therapist’ ... [The defendant] re-entered CUBIT on 4 February 2003, but was discharged one week later when another inmate complained that [the defendant] had fondled the man’s genitals (denied by [the defendant]). Despite this his participation was described as satisfactory and he was noted to acknowledge extensive sexual and violent fantasising about women ...

[The defendant] participated in the High Intensity Sex Offender Program (HISOP) during his most recent sentence. This is ostensibly the same as the CUBIT program but with a different name. The treatment report … and Addendum Report … reveal that [the defendant] entered HISOP on 3 September 2018. He initially presented as ambivalent, noting his current offence was not a sexual offence and saying: ‘It’s not a problem anymore’. His ability to accept feedback and engage in treatment was seen to fluctuate with his emotional regulation, showing defensiveness and outward blame when he was struggling. He was occasionally verbally aggressive and then apologetic. His ability to empathise, perspective take [sic] and self-monitor were seen to fluctuate. [The defendant] incurred a two week suspension from HISOP in March-April 2019, in relation to use of non-prescribed buprenorphine (revealed through urinalysis). A further two week suspension was made in May-June 2019 for another positive urinalysis result. He was subject to a behaviour management plan to contain his behaviour. However, [the defendant] was discharged from HISOP (one week prior to completion) on 16 August 2019 due to another failed drug test. The addendum report described [the defendant] as having an ‘adequate intellectual understanding’ of treatment goals but a fluctuating ability to modify his behaviour.”

67. Mr Sheehan continued:

“In all I would regard the treatment reports as partially unflattering, describing only tepid progress. Positively, I note that subsequent file records reveal limited evidence of the risk factors identified in the report such as: hostility towards women, impulsivity, poor problem solving, negative emotionality (feeling victimised and ruminating over others’ behaviour towards him) or non- compliance with supervision. In interview with me, [the defendant] acknowledged that he had found HISOP overwhelming, particularly having to ‘talk about the past’. He said that the program had been beneficial in terms of ‘learning to accept and respect others’, ‘learning to listen’ and ‘not putting myself down’. He said that these practices have assisted him in his community adjustment since release.”

68. Mr Sheehan recorded that the defendant had partaken in 11 sessions with correctional psychologists with expertise in the assessment and treatment of sexual offenders. The psychologists’ notes suggest that he engaged well.

69. Mr Sheehan assessed the defendant’s risk of sexual re-offending by using static and dynamic risk assessment tools, known as the Static-99R and the Risk of Sexual Violence Protocol (“RSVP”) respectively. He also assessed the defendant’s risk of violent (other than sexual) re-offending using a tool known as the Violence Risk Scale (“VRS”) that combines an assessment of static and dynamic risk factors. Mr Sheehan concluded:

“Review of [the defendant] against actuarial factors for sexual offending places him within the Above Average range, relative to other sexual offenders. Consideration of known dynamic risk factors for sexual offending reveals the presence of a range of factors, pertaining to his antisocial personality orientation, psychological adjustment (particularly the presence of sexually violent ideation), social adjustment, and manageability problems. The background risk factors are chronic, embedded in broader hostility towards women that has part of his life since adolescence. Similarly, [the defendant’s] history of non sexual violence is chronic and underpinned by broadly the same risk factors, minus the sexual motivation. Assessment against the VRS criteria places [the defendant] in the medium risk category for violence reoffending relative to other violence offenders.

In examination of the dynamic (changeable) risk factors for sexual and nonsexual violence, a recurring theme has been to identify the factor with the caveat that [the defendant’s] behaviour over the past year has shown early signs of amelioration across the range of dynamic risk factors. The key question is how much weight to attach to [the defendant’s] recent favourable self-management in the context of many years of repeated acts of violence towards women. Further: to what extent the presence of externally imposed intensive supervision is contributing to [the defendant’s] current stability. Without invalidating the positive efforts of [the defendant] over the past year, my view is that the evidence does not yet support a reduction of estimated risk below that arrived at using empirically based tools.

In all, the evidence leads me to estimate [the defendant’s] overall risk of sexual violence against women to be in the moderate to moderate-high range relative to other male sex offenders. I would regard his risk of non-sexual violence to be in the moderate range (that is, within the mid range of the risk spectrum) relative to other violence offenders. Consistent with his history, I would find it more likely that [the defendant] would be at risk of non-sexual violence than sexual violence. This is influenced by the varying base rates of offending between sex offending and violent offending (with violent offending having a higher base rate).

The type of offending that [the defendant] is at risk of would seem to pertain to sexual or non-sexual violence against adult females, most likely known to him, less likely a stranger. Substance use may or may not be a precipitant. An episode of violence would most likely be precipitated by a period of poor self regulation, life instability, anger and violence fantasies. The likelihood of weapon use, injury and confining the victim extends to a serious offence as defined in [the Act], but may also be expressed as less serious violence such as common assault or intimidation.”

70. Mr Sheehan concluded with guarded optimism:

“Although [the defendant] has a past history of falsely presenting as reformed, in this instance the evidence suggests that his progress is real and his intentions genuine. His age may be a relevant factor in his increased stability as may be his combination of medications. In my view the system of externally imposed supports (through parole and more recently through ISO) are playing a substantial role in [the defendant’s] ongoing stability. Given the longevity and seriousness of [the defendant’s] problems with community-based violence, I would not think it probable that he has developed sufficient skills to independently self manage in the absence of supports. In my view [the defendant] would be vulnerable to poor decision making in the absence of assertive external supervision at this time, which would lead to increased risk of aggression and increased risk of a serious offence. In this sense it is my view that [the defendant’s] risk of a serious offence cannot be managed adequately without an extended supervision order being imposed. In my view an extended supervision order has the capacity to adequately manage [the defendant’s] risk.

I understand that the State of NSW seeks an extended supervision order of two years duration. In my view this is adequate, striking a balance between the need for supervision and the need to avoid discouraging [the defendant] in his process of rehabilitation. This would bring [the defendant’s] period of community supervision to three years, allowing longitudinal observation of his progress, allowing time to develop a network of supports outside of that coordinated by [Corrective Services], and allowing for [the defendant] to continue to practice his new way of life with the scaffolding of support and supervision around him.”

71. Mr Sheehan could not exclude a possible diagnosis of sexual sadism.

The Risk Assessment Report pursuant to s 9(3)(c)

72. A Risk Assessment Report, dated 11 May 2020, was prepared by Samuel Ardasinski, a senior forensic psychologist. Mr Ardasinski reviewed the defendant’s criminal history in detail, and concluded:

“As can be seen from the above summary of [the defendant’s] history of sexual and domestic violence, as well as the index serious violence [offence], the majority of [the defendant’s] violence has been committed against adult females, most of whom had been known to him prior. The index offence committed in the Blue Mountains in 2010 demonstrates that, far from slowing down his offending trajectory as [the defendant] entered his forties, he retained the capacity for significant violence against any females whom he perceived threatened him.”

73. And later:

“It has been noted that offenders diagnosed with [antisocial personality disorder (‘ASPD’)] typically begin to remit in their forties, a phenomenon colloquially referred to as ‘burnout’. The current version of the DSM (DSM-5) has retained this notion … that antisocial individuals tend to remit by their fourth decade: ‘ASPD has a chronic course but may become less evidenced or remit as the individual grows older, particularly by the fourth decade of life. Although this remission tends to be particularly evident with respect to engaging in criminal behaviour, there is likely to be a decrease in the full spectrum of antisocial behaviours and substance use’. (DSM-5, p.661) Based on the fact that [the defendant] was returned to custody for new offences committed in 2010 when he was aged 47, it may be considered that he had not yet reached the ‘burnout’ stage for his potential for enacting serious criminal violence at that time. However, he is now aged 57. The theory of desistance (Maruna, 2001) posits that as offenders age, they eventually stop offending. The defendant stated in interview that he felt he was ‘very much … a changed man … I’m slowing down, I don’t want to commit crime.’”

74. Mr Ardasinski noted that the defendant has a poor history of compliance with community supervision. However, at the time of his interview of the defendant, he had been at conditional liberty for three months and at that stage he appeared to be complying reasonably well with his parole conditions.

75. Mr Ardasinski noted that the defendant had previously been assessed using the Level of Service Inventory - Revised (“LSI-R”), which he described as an actuarial risk instrument that provides an indication of a level of risk of general and violent recidivism within 12 months post-release, an individual’s needs in terms of supervision if released on parole and criminogenic needs, which can be targeted in treatment programs. It comprises both static and dynamic factors related to general offending. The defendant had been last assessed using the LSI-R in March 2020 by Community Corrections staff. His risk and needs were assessed as falling within the medium/high risk-needs category for general and violent offending. Mr Ardasinski noted that the defendant had been assessed using the VRS in 2016 and assessed as being within the high risk range of being convicted of further violent offences within five years of release.

76. Mr Ardasinski decided to administer further assessment tools, explaining:

“I have undertaken a full administration of this risk measure, since [the defendant] has now completed the bulk of a high-intensity treatment program and he is now in a community setting, which constitutes a significant change from 2016 when this assessment was scored in custody using file materials.”

77. Mr Ardasinski’s assessment was summarised by Hoeben CJ at CL in the course of the preliminary judgment, at [36], which I adopt:

“…

(a)   the defendant has been assessed as posing a high risk of sexual re-offence and a high risk of violent re-offence using actuarial instruments, but his current dynamic risk is lower than that (Executive Summary, Ex BO-1 at 46). Specifically, Mr Ardasinski recorded the following results using actuarial instruments:

(i)   pursuant to the LSI-R, the defendant is in the ‘medium-high’ category for risk and needs for general and violent reoffending (at [51]);

(ii)   pursuant to the Violence Risk Scale (VRS), the defendant's pre-treatment risk of being convicted of further violent offences in 2016 was in the ‘high risk’ range: at [52]-[53]; but when assessed in 2020 it was assessed as being in the ‘moderate risk’ range: at [67];

(iii)   pursuant to the STATIC-99R, the defendant was in the ‘above average’ risk range (as assessed in 2020: at [56];

(iv)   pursuant to the STABLE-2007, the defendant has a ‘high density of criminogenic needs’ and, when this is combined with STATIC-99R, the defendant is in the ‘well above average risk level’: at [61];

(v)   pursuant to the VRAG-R, the defendant is in the ‘high risk’ category: at [62];

(vi)   pursuant to the STATIC-2002R, the defendant is in the ‘above average’ risk category: at [64];

(vii)   when STABLE-2007 and STATIC-2002R are combined, the defendant is in the highest risk category and, in accordance with Corrective Services policy, suggests that the defendant requires a high level of intervention and supervision: at [66];

(viii) pursuant to the Risk of Sexual Violence Protocol, the defendant is in the ‘moderate/elevated risk category’ for repeat sexual violence: at [68].

(b) the most likely scenario for further serious violence or sexual violence would involve [the defendant] perceiving that he had been disrespected, challenged or threatened by a female. If he were carrying a knife at the time, the offence might be spontaneous; however he might also engage in a premeditated attack in retaliation or as a ‘pre-emptive strike’ if he perceived that he was threatened: at [77].

(c)   in Mr Ardasinski’s opinion at [78], the totality of the evidence suggests that the defendant is in the moderate-high risk category for sexual offending and the moderate-high risk category for violent offending. Mr Ardasinski went on to say at [78]:

‘However, [the defendant] has now survived in the community for longer than he did in 2010 prior to the index violent offence, and has not come to Police attention. If [the defendant] continues on his more prosocial, compliant trajectory over the coming months until the expiry of his sentence, consideration must be given to the prospect that these assessment results may represent an over-estimate of [the defendant’s] ‘true’ risk.’

(d) Mr Ardasinski considered that the defendant’s risks were able to be managed in the community, since, with intensive supervision and the support of relevant agencies, the defendant is less likely to feel that he needs to resort to crime to survive, and his progress can be monitored and support boosted if it is determined that he is at increased risk: at [80].

(e)   Mr Ardasinski concluded at [82]-[83]:

‘82   The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when [the defendant] is not under any form of legal restraint. [The defendant] has commenced on a prosocial trajectory, and there is hope. His current community supervision regime ought to be able to support him to maintain that until his sentence expires.

83   In the event that no order is imposed, after 3/01/2021, [the defendant] would be at unconditional liberty. He would have no support from, or any monitoring by, CSNSW. He would be able to source further psychological assistance, to work through some of his trauma history, and engage an appropriate service provider to work on his substance abuse issues (which is the recommendation of his FPS therapist), however I consider it unlikely that [the defendant] would do so without the spectre of supervision and direction from CSNSW. Whether this would be considered ‘unacceptable’ ... is a matter to be determined by the Court.’”

The Risk Management Report pursuant to s 9(3)(d1)

78. A Risk Management Report, dated 17 June 2020, was prepared by Erin Kirkwood, a senior Community Corrections Officer with the ESO Team of Corrective Services. Ms Kirkwood proposed a plan for managing the defendant in the community so as to minimise the risk of him committing further serious offences. The plan included weekly interviews to be conducted in the context of home and field visits or when he reported to a community corrections office. The visits would be both scheduled and unannounced. Surveillance would be conducted by Community Corrections and the ESO Investigations Team at least once per month. Electronic monitoring would be deployed, subject to approval by this Court. It would allow for the imposition of exclusion zones around high risk locations and those relative to the defendants known risk factors, such as alcohol use. The defendant had reported a willingness to continue to engage with Corrective Services Psychological Services, and contact would be maintained with his treating therapists in order to confirm his attendance, level of engagement, and to discuss his progress or to identify and manage any concerns that may arise.

79. The case notes pertaining to the period that the defendant has been under supervision in the community, when subject to parole until his total sentence expired on 3 January 2021 and thereafter to the ISO, are generally positive. It is clear that the defendant has been making a significant effort to maintain a law-abiding lifestyle, and cope with the demands of conditions of parole and the ISO.

The views of the sentencing court for the index offence: s 9(3)(h1)

80. In the course of her Honour’s remarks on sentence for the index offence, English DCJ said:

“I am unable to find [the defendant] truly remorseful or contrite, he entered his plea on the grounds that he had ‘no chance of contesting the charge in court.’ Although he entered his plea, according to him [it was] to the facts which were not ‘his facts’. I am asked to find that by taking the police to the location where he disposed of the knife, that in some way demonstrates remorse and contrition. I find he did so as a recognition of the inevitable and in the hope of some sort of discount on penalty. He is experienced when it comes to being sentenced for serious matters and I have no doubt he would have used to best advantage his knowledge in reducing any penalty if at all possible. At no stage has he demonstrated true remorse or victim empathy. I can make no positive findings in regard to rehabilitation and I can make no findings regarding the likelihood of him reoffending.”

The offender’s criminal history and any other information: ss 9(3)(h) and (i)

81. I have earlier reviewed the defendant’s history of convictions and findings of guilt. As to whether there are any “patterns of offending behaviour disclosed by that history” (s 9(3)(h)), there are recurring elements in the defendant’s serious criminal convictions as far back as his first serious offence when he was aged 17. His victims are females who he often grabbed by their throat or hair, threatening them with a knife that he was carrying on his person or had nearby, often holding it to their throat. He would punch his victims, particularly to their face. In relation to his sexual offences, he sometimes told his victims in advance that he intended to “rape” them and otherwise taunted them, suggesting to me that he deliberately inculcated terror, deriving pleasure from that misogynistic exercise.

82. There are three categories of other material of a criminal character that has been tendered on the application and which is of questionable relevance to the matters to be taken into account pursuant to the Act.

83. The first such category comprises two sets of criminal charges that did not result in a conviction or finding of guilt. As noted, the defendant was acquitted in December 1998 of the child sexual assault charges (“the 1988 matters”). In 2007, no evidence was offered in court in respect of charges of common assault and being armed with intent to commit an indictable offence (“the 2007 matters”).

84. No objection was taken to the admissibility of that material, but a question remains as to its relevance. In State of New South Wales v Conway [2011] NSWSC 588, Simpson J, as her Honour then was, considered in a hearing for preliminary orders pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) whether unproven criminal admissions made by a defendant with a borderline intellectual disability came within s 9(3)(h) or (i) of that Act, which were in the same terms as their current counterparts in the Act. Her Honour said:

“19   … The material indicates that, during his period of incarceration, the defendant has been the subject of quite intense assessment and scrutiny. There are records indicating that he has admitted that, on a number of occasions over the years, he has engaged in conduct that, subject to questions of mens rea , would constitute sex offences. …

…

21 On behalf of the defendant it was argued that, in considering the matters itemised in s 9(3) as relevant to the determination whether to make an order ought be made or not, the consideration specified in s 9(3)(h) (the offender’s criminal history) ought not to include any offences other than those that resulted in conviction or finding of guilt. I do not accept this construction. If it were correct, the words ‘criminal history’, which are the principal subject of the sub-paragraph, would add nothing to that which appears in parentheses; and nor would the words ‘and any pattern of offending behaviour’ that follow the parentheses.

22   In my opinion, it is appropriate to take into account those instances of sexual misconduct to which the defendant has admitted. Having regard, particularly, to the defendant’s intellectual disability, it was submitted that an issue arises whether those instances could properly be labelled part of his ‘criminal history’. This was because it could not be assumed that the necessary mens rea accompanied the actions said to constitute the offences. Some of the instances appear to have occurred before the defendant acquired the age of criminal capacity (10 years), and others during the period of doli incapax , in which it is necessary for the prosecution to establish a capacity in the alleged offender to understand the nature of the conduct in question.

23   I accept that a question arises, and may well arise on a final hearing, concerning the extent to which some of the conduct referred to may be taken into account. However, as was conceded on behalf of the defendant, even if it cannot be shown that the defendant could have been convicted of offences in respect of those episodes of misconduct, and that they therefore may not be taken into account as ‘criminal history’, that he engaged in the conduct is clearly relevant to sub-para (i), and, I would add, to sub-para (a). In my opinion, the whole of the conduct that is attributed to the defendant is relevant to the present consideration.”

85. At the hearing for final orders in the same matter (State of New South Wales v Conway [2011] NSWSC 976), Davies J considered Simpson J’s finding that the unproved admissions of criminal liability came within the term “criminal history” in s 9(3)(h). His Honour found some support for that approach in Weininger v R (2003) 212 CLR 629; [2003] HCA 14, in which the High Court in a majority judgment considered that a sentencing judge had not erred in declining to afford an offender who had no prior convictions the usual degree of leniency that followed that fact, because of admissions by him to uncharged criminal acts. Davies J also referred to State of NSW v Thomas [2010] NSWSC 677, which was an application pursuant to the Crimes (Serious Sex Offenders) Act 2006 for an ESO. In State of NSW v Thomas, Buddin J noted that the parties accepted that evidence of offences for which the defendant had been acquitted were relevantly taken into account by forensic experts for the purpose of a STATIC 99 assessment of the defendant’s level of risk of committing a further serious sexual offence.

86. Davies J concluded that State of NSW v Thomas did not assist in determining whether unproven admitted criminal acts came within s 9(3)(h) and approached the issue as one of construction, determining that although the word “including” might be thought to suggest a non-exhaustive listing by what is contained within the parentheses, that was not necessarily so, and in this instance denoted “means and includes”. Davies J concluded:

“37   In my opinion, the words ‘criminal history’ do not include matters that have not resulted in a determination by a Court of at least a finding of guilt. If the Legislature had intended that matters not so determined were to be included it is likely it would have used a different word from ‘criminal’, perhaps the word ‘offending’. If it was thought to include matters charged but where no finding of guilt was made nor conviction recorded, one would have expected it to say so. A fortiori, where a person was not even charged with a crime, it would be expected that such a matter would have been referred to explicitly, probably inside the parentheses. Except in the most colloquial use of the term ‘criminal’, the word is ordinarily associated with a determination by a Court that a particular behaviour has been found to be a crime or criminal.

38   None of this is inconsistent with what was said in Weininger which was concerned with what might be taken into account in sentencing a person for a charged offence. That is highlighted by the fact that a sentencing court takes into account more than offences found to be proved or in respect of which there has been a conviction. The sentencing court looks also to the character and antecedents of the offender to the extent that they are relevant and known to the sentencing court, as the joint judgment makes clear. Form 1 offences are an obvious example, although whether they would then form part of the ‘criminal history’ for the purposes of s 9(3)(h) remains part of the present enquiry.

39 In one sense this is an arid enquiry because the other offending behaviour admitted by the Defendant and found to be supported by external evidence (for the reasons I have given) would be required to be considered under s 9(3)(a) and (i) (as Simpson J suggested) because they all go to the likelihood of the offender in future committing offences of a sexual nature.”

87. I agree with Davies J’s reasoning. In relation to his Honour’s reference, at [39], to s 9(3)(a), the Crimes (Serious Sex Offenders) Act 2006 included s 9(3)(a): “the safety of the community”. An identical provision in the Act was repealed and, in its stead, s 9(2) was introduced.

88. I would add that my reading of the subsection is that the only apparent purpose of the words in brackets is to extend the matters that can be taken into account as part of the offender’s criminal history to extra-jurisdictional proven criminal offences:

“… the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere) …”

89. I note that at [39] of State of New South Wales v Conway, Davies J found that the offending behaviour admitted by the defendant would only be relevant to s 9(3)(a) and (i) if was also “supported by external evidence”.

90. In State of New South Wales v Veeran [2015] NSWSC 75, which was an application made pursuant to the Act for an ESO at a time prior to s 93(a) being repealed, R A Hulme J said, at [16]:

“I was invited by counsel for the State to take into account the sexual intercourse without consent and related charges that were dismissed in 2006. They were withdrawn rather than being dismissed after a contested hearing. While these matters, being matters that have not resulted in a finding of guilt or a conviction, are not relevant to Mr Veeran’s criminal history pursuant to s 9(3)(h) of the Act, they may be taken into account under ss 9(3)(a) and 9(3)(i) as held by Davies J in State of New South Wales v Conway … at [28]-[39].”

91. With respect to his Honour, I note that Davies J in State of New South Wales v Conway had only given weight to matters that were admitted and “supported by external evidence”.

92. In State of New South Wales v Haouchar [2018] NSWSC 1436, which was an application for an ESO made pursuant to the Act, R A Hulme J rejected an application by the plaintiff to take into account on the application a charge against the defendant of “wound with intent to murder” although no evidence had been offered by the prosecution when the complainant failed to attend court. His Honour said, at [34]:

“There is no principled basis upon which this matter may be taken into account in a manner adverse to Mr Haouchar who is entitled to the presumption of innocence.”

93. In State of New South Wales v Haouchar the plaintiff also sought to rely upon parts of a recorded conversation between the defendant, whilst he was being held in prison, and a visitor, in which the visitor made admissions about a shooting that had occurred the day before, and they discussed how the visitor might avoid apprehension. The defendant was charged with accessory after the fact to attempted murder; concealing a serious indictable offence; and participating in a criminal group. He was tried and found not guilty. R A Hulme J said:

“37   The acquittals must be respected but that does not mean that Mr Haouchar’s conversation with his visitor, which was lawfully recorded, cannot be taken into account if care is taken not to infer guilt. …

…

39   The State submitted that these conversations showed a number of things including that Mr Haouchar claimed to have access to a large amount of money; he had access to a firearm when he was out of custody on parole; he still associated with and advised (falling short of assisting as an accessory) people involved in violent crime; and generally that Mr Haouchar was unable to extricate himself from the lifestyle he had when committing the index offences in 2003.”

94. In my view, his Honour’s reasoning in State of New South Wales v Haouchar, with which I agree, is consistent with that of Davies J in State of New South Wales v Conway. Applying that reasoning to the question in the instant case of whether material concerning the 1988 and 2007 matters, being matters that were not admitted by the defendant and for which there was no finding of guilt, is relevant to any of the considerations pursuant to s 9(2) or (3), I am of the view that that material should be disregarded.

95. As noted, the defendant claimed to have committed sexual offences for which he has not been investigated or charged. None of those admissions were specific as to a named person, place or time. Applying the reasoning of Davies J in State of New South Wales v Conway, in the absence of objective corroboration of any of the claims, I disregard them.

96. A third category of material that involves an unproven criminal allegation is the recent charge of sexual touching, which is denied by the defendant and has not yet been resolved (“the 2021 allegation”). In my view, this matter falls into a different category from the other two. Although the defendant has not been charged with a breach of the ISO, it is nevertheless relevant to his compliance with conditions of the ISO.

The parties’ submissions and consideration

97. In written and oral submissions, the defendant has not resisted the making of an ESO for two years as sought by the plaintiff, if the Court is satisfied that the material justifies such an order.

98. I am satisfied that the case for an ESO is made out by the material that has been tendered by the plaintiff. In the terms of s 5B(d), I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision pursuant to an ESO.

99. The history of the defendant’s criminal convictions is profoundly concerning. I accept the diagnosis of antisocial personality disorder and its central role in explaining the defendant’s serious offending. I note the expert opinion expressed in the DSM-5, as noted by Mr Ardasinski, that offenders with an antisocial personality disorder frequently “burn out” in their fourth decade, in that their criminal behaviour tends to become less serious. However, the defendant did not fit that scenario. He committed the index offence when he was aged 49.

100. Mr Sheehan summarised the defendant’s progress in custodial treatment programs as “tepid”. He did not complete the CUBIT program in 2000 and lasted only a week when he tried again in 2003. He failed to complete the HISOP program in 2019 due to a failed drug test, although he was only a week short of the program’s end. The defendant’s progress in community-based therapy since February 2020, as summarised by Mr Sheehan, is also problematic; he engaged well with his therapist but denied failed drug tests and struggled with a candid discussion of his offences, which I note has been a recurrent issue.

101. Although in the 13 months the defendant resided in the community he did not commit a serious sexual or violent offence, that is to be assessed in the context that he was closely supervised over that period. The 2021 allegation, discussed at [41]-[45] above, is disturbingly similar behaviour to that which prompted his removal from the CUBIT program in 2003.

102. Nevertheless, there is also evidence in the form of the OIMS notes that, since his conditional release into the community, he has demonstrated a positive attitude to rehabilitation and has made a concerted effort to live within the restrictions of parole and, since January 2021, the conditions of the ISO. From this perspective, the positive drug test in March 2020 and the 2021 allegation are missteps in an otherwise encouraging trajectory towards rehabilitation.

103. I accept Dr Furst’s opinion that the defendant is at a very high level of risk of committing a further serious offence of a sexual and/or violent nature. I am satisfied that the length of the ESO should be the maximum period that has been sought by the plaintiff, which is two years.

104. The remaining issues for determination are the conditions of the ESO.

Conditions of the ESO

Relevant principles

105. Section 11 of the Act provides that an ESO may direct an offender to comply with such conditions as this Court considers appropriate, including, but not limited to, certain stated directions. I accept that, in determining which conditions are appropriate, guidance may be obtained from the terms of s 3, which require the Court to balance the primary object of the Act to ensure the safety and protection of the community, with another object of the Act to encourage the offender’s rehabilitation.

106. In State of New South Walesv Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 the Court, referring to the power to make orders, said, at 408:

“The expressed primary purpose of the Act is amply fulfilled by the fact that it confers power to curtail, and in relatively extreme circumstances deny, liberty to an offender who has served the entirety of his or her sentence. The precise circumstances when the powers to make an extended supervision order or a continuing detention order may be exercised, and the terms of those orders, are governed by the particular provisions conferring such power and the interrelationship between them. As already noted, the operative provisions are nuanced, including by expressly referring to different levels of satisfaction.

That said, as noted above, and as recognised by the primary judge, the evaluative judgment as to whether an extended supervision order will provide adequate supervision will have regard to the safety and protection of the community, and therefore necessarily involve an assessment of the likelihood of re-offending and the consequences of any re-offending.”

107. I am conscious that, as well as conditions to an ESO being infringements on the liberty of an offender, a breach of a condition may be prosecuted as a criminal offence, which in my view necessitates an approach to the fixing of conditions that ensures that they are crafted so as to avoid, as far as possible, an inevitable breach by the defendant.

The conditions in dispute and my determination

108. Some of the draft conditions of an ESO that were scheduled to the further amended summons were reformulated following negotiations between the parties prior to and during the final hearing. I approve of all the agreed conditions. Those few conditions that remained in dispute are now considered.

Electronic monitoring

109. The plaintiff sought a condition to the effect that the defendant must wear electronic monitoring equipment as directed by a Departmental Supervising Officer (“DSO”) and must not tamper with, or remove, the equipment. The defendant sought a sunset clause, so that he would not be subject to it for the entire period of the ESO.

110. There was evidence to the effect that such a condition is reviewed in set stages, the first stage being lengthy. The defendant had been subject to this condition since his release on parole and, throughout that 13 month period, he remained in the first stage. Coincidentally, his level of electronic monitoring was due for review on 10 March 2021, being the day before his arrest.

111. I was initially attracted to the submission that the condition of electronic monitoring should be subject to a sunset provision, but having considered the material that bears on the degree to which the defendant poses a risk of committing another serious offence, I am of the view that the defendant should be subject to this condition throughout the period of the ESO. In so deciding, I take into account that there have been extended periods of time over the defendant’s adulthood in which he has lived an apparently law-abiding life in the community, but then committed another serious offence. This demonstrates to me that he is capable of complying with conditions of liberty for extended periods and then seriously relapsing, in which case a continuing condition permitting the authorities to utilise electronic monitoring as long as they deem it appropriate is justified.

Compliance with the rules or by-laws or both of approved accommodation

112. At the hearing on 5 March 2021, the defendant expressed concern that if compliance with the rules or by-laws or both of approved accommodation is made a condition of the ESO, a breach would have the status of a criminal offence. Counsel for the defendant noted that this is so “in the circumstances where he has been complying and showing cooperation”. The proposed condition overlapped with another general condition, to the effect that the defendant is obliged to obey the reasonable directions of the DSO, and compliance with house rules would clearly be such a direction.

113. The plaintiff submitted that the condition ensures compliance by the defendant and a breach would not automatically require “high level breach action”; there is an element of discretion. The defendant countered that police may independently take action.

114. In view of the 2021 allegation, which is alleged to have occurred at the defendant’s place of residence, I will make the condition as sought by the DSO.

The DSO’s authority to geographically restrict the defendant

115. The plaintiff sought a condition in the following terms: “The defendant must not frequent or visit any place or district specified by a DSO”. The relevant condition in the ISO was modified in accordance with terms sought by the defendant, as follows:

“The defendant must not frequent or visit any place specified by a DSO if the DSO has reasonable grounds to think visiting that place will increase the defendant’s risk of committing a serious offence or increase the risk of failing to comply with another condition of this Order.”

116. The plaintiff submitted that in the circumstance that the DSO is not familiar with a place that the defendant proposes to visit, the DSO would be obliged to let him visit that place. It may later transpire that the place is inappropriate for the defendant to visit. The defendant submitted that it unnecessarily constrains his movements, although his counsel proposed some variation in the wording to address the plaintiff’s concern.

117. Acting on the defendant’s proposal, I will impose a condition in the following terms:

“The defendant must not frequent or visit any place or district specified by a DSO. If the DSO is unfamiliar with a place or district that the defendant wishes to visit, the DSO will make inquiries to determine whether there are reasonable grounds to think visiting that place or district will increase the defendant’s risk of committing a serious offence or of failing to comply with another condition of this Order. The DSO will then advise the defendant whether they may visit that place or district and if so, any conditions that apply to that visit.”

118. The intended effect of the condition, as drafted, is that it avoids the concern expressed by the plaintiff of a presumption in favour of the defendant being permitted to make such a visit when the DSO has insufficient information as to the proposed visit’s impact on risk and other ESO conditions.

Access to the defendant’s financial information

119. The plaintiff sought a condition that the defendant be obliged to provide information to the DSO, if sought, as to his financial affairs, including his income and expenditure. The relevance of the condition is that it would provide a means to check that the defendant was not purchasing prohibited drugs or alcohol.

120. I am inclined to include the condition, in view of the defendant’s drug use in prison, the positive drug test early in March 2020 and the defendant’s continuing dependence on prescribed buprenorphine in order to deal with his issues of drug addiction.

The authority of the DSO to disclose the defendant’s criminal history to others

121. The plaintiff sought a condition in the following terms:

“The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.”

122. The defendant submitted that the need for the defendant’s criminal history to be disclosed was sufficiently covered by another condition (condition 59 of the ISO conditions), that obliged the defendant to disclose his criminal history to treating health care professionals. I accept that there may be persons other than treating health care professionals who have a need to be aware of the defendant’s criminal history and I am satisfied that the condition is appropriate.

Whether written permission is required prior to joining a club

123. The defendant submitted that prior notification was sufficient for this purpose, whereas the plaintiff submitted that some clubs may be inappropriate for the defendant to join, such as clubs with predominantly young women as members. The defendant withdrew its objection on the basis that “writing” is defined in the conditions to include text messages.

124. I am satisfied that prior approval is appropriate.

Whether the defendant be obliged to notify the DSO of electronic devices, services and applications he uses “immediately” or “as soon as possible”

125. I am of the view that the condition should require the defendant to do so immediately.

Whether the defendant is obliged to notify the DSO of the identity and address of any healthcare practitioner that he consults

126. The plaintiff submitted that without such a condition, the defendant may seek to attend a female practitioner in circumstances deemed by the DSO to be unsuitable. The defendant submitted that another condition, which obliges him to inform treating healthcare professionals of his criminal history, is sufficient. I am satisfied that the condition is necessary.

The sharing of information

127. The plaintiff sought a condition that the defendant be obliged to permit the sharing of information between agencies that are involved in his supervision. The defendant resisted such a condition in broad terms, because it would permit information to be shared with the NSW Police Force and Corrective Services as a whole, rather than only those officers who have a supervisory function in relation to the ESO. The plaintiff submitted that there are many aspects of Corrective Services beyond the ESO team who are involved in the provision of services and supervision of offenders who are subject to an ESO and who thus should be able to receive relevant information. Further, there are police officers attached to an agency known as the Extended Supervision Order Investigation Team (“ESOIT”) who carry out related duties such as surveillance of offenders, to ensure their compliance with the conditions of an ESO, and who therefore have a reasonable need for updated information.

128. I am satisfied that the need for such a condition is made out, but insofar as police are concerned the sharing of information is to be limited to members of the ESOIT, except for the purpose of the ESO team reporting a suspected criminal offence by the defendant.

Orders

129. I make the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of this order;

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

3. Access to the Court’s file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

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Schedule of Conditions of Supervision (115392, pdf)

Decision last updated: 02 July 2021