State of New South Wales v Williamson (No. 1)

[2019] NSWSC 812

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	State of New South Wales v Williamson (No. 1) [2019] NSWSC 812
Hearing dates:	26 June 2019
Date of orders:	02 July 2019
Decision date:	02 July 2019
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Summons dismissed.
Catchwords:	HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – serious sex offender – defendant currently subject to extended supervision order – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision - where the defendant had complied with all the conditions of his existing ESO – where the defendant demonstrated insight into his ongoing need for pharmaceutical, psychiatric and psychological treatment – where the only risk assessment conducted in the last four years rated the defendant’s risk of reoffending as average and recommended that no further application be made – application dismissed.
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) s 8 Court Suppression and Non-publication Orders Act 2010 (NSW) s 10 Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5D, 5I, 7, 9, 10A Mental Health (Forensic Provisions) Act 1990 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 Attorney General for New South Wales v Tillman [2007] NSWCA 119 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of NSW v Ceissman [2018] NSWSC 508 State of NSW v Clarke [2019] NSWSC 411 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 State of New South Wales v Williamson [2014] NSWSC 519 State of New South Wales v Williamson [2014] NSWSC 939
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Terry John Williamson (Defendant)
Representation:	Counsel: J Single (Plaintiff) J Stratton SC & T Hennessy (Defendant)   Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/166590

Judgment

1. On 28 May 2019, the State of New South Wales (the State) filed a summons seeking (inter alia) an extended supervision order (ESO) for a period of three years under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). The defendant is currently subject to an ESO, which is set to expire on 3 July 2019.

2. Under s 7(3) of the CHRO Act, this Court must conduct a preliminary hearing into the application within 28 days from the date it was filed. The Court has discretion to allow further time if required: s 7(3) CHRO Act. The preliminary hearing came before the Court 29 days after the filing of the summons, on 26 June 2019. The Court exercised its discretion in holding the preliminary hearing at that time.

3. At the preliminary hearing, the principal orders sought by the State were as follows:

1. An order pursuant to s 7(4) of the CHRO Act appointing two qualified psychiatrists (or a qualified psychiatrist and a registered psychologist) to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations; and

2. An interim supervision order (ISO) pursuant to s 10A of the CHRO Act for a period of 28 days.

Legislation

4. Section 5B of the CHRO Act provides:

5B Making of extended supervision orders - unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

5. Section 5I(2) defines a supervised offender in the following way:

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

(a) while serving a sentence of imprisonment:

(i) for a serious offence, or

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

(iii) for an offence under section 12, or

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

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

6. As noted at the outset, the defendant is currently under an existing ESO and therefore is a supervised offender pursuant to s 5I(2)(b) of the CHRO Act.

7. Section 5D of the CHRO Act provides:

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.

8. Section 9(2) of the CHRO Act now provides:

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.

9. The State seeks an ISO under s 10A of the CHRO Act. That section provides:

10A Interim supervision order

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

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

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

10. Section 7 provides for what is to happen at the preliminary hearing:

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

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

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

(iv) 2 qualified psychiatrists and 2 registered psychologists,

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

(b) directing the offender to attend those examinations.

(5)    If, following the preliminary hearing, it is not satisfied that the matters

alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.

Legal principles

11. The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

12. In State of NSW v Clarke [2019] NSWSC 411 Fullerton J said:

[7]   The question for determination on the State’s application for an extended supervision order is whether the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. At the preliminary hearing it is not for the Court to assess the weight of the supporting documentation bearing on that question or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by a defendant) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an extended supervision order. That obliges the State at the preliminary hearing to allege certain facts which, if proved, would lead to a conclusion that the making of an extended supervision order is justified, or, to put it another way, the State bears the burden of persuading the Court that the assumed facts establish to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not supervised.

[8]   In determining whether to exercise its discretion in favour of making interim orders, the Court needs to be persuaded not simply that an unacceptable risk of the relevant kind will manifest if the defendant is not subject to supervision, but also of the seriousness of the harm that will ensue in the absence of protective measures in the form of supervision orders (see State of NSW v Ceissman [2018] NSWSC 508 at [26]).

[9]   It follows that if the Court is unable to reach that level of satisfaction at the preliminary hearing the Summons must be dismissed.

[10] It is also clear that in undertaking that evaluative task the protection and safety of the community from the dangers posed by high risk sex offenders or violent offenders is paramount (see s 9(2) introduced by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The Act is not concerned with addressing rates of recidivism in the prison population per se or the risk of prisoners reoffending against the general criminal law. Neither is the Act concerned with how rates of recidivism might be addressed in the interests of community safety. In exercising the jurisdiction under the Act, this Court is not exercising the powers or function of a de facto parole authority.

[11]   The observations of Harrison J in State of NSW v Pacey [2015] NSWSC 1983 at [53] have particular resonance in that connection and on this application:

It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.

13. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase “unacceptable risk”:

[50]   As the respondent pointed out in its submissions, by reference to dictionary definitions, the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

[51]   What the court, therefore, must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision”. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.

…

[58] …[T]he proper approach is to give the words of s 5E(2) [now s 5B(d)]:

“… their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act”

as stated by R A Hulme J in Thomas (Final) at [38], and as I have explained above.

14. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]:

Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate.

The offending

15. In 1991 the defendant was sentenced to a period of imprisonment for 24 years with a non-parole period of 14 years as a result of pleading guilty to 19 offences of a sexual and related nature. Although he became eligible for parole on 16 May 2004 he was refused parole on six occasions before being released to parole on 16 February 2012. His sentence expired on 15 May 2014.

16. Prior to that time the State of New South Wales made an application under the Crimes (High Risk Offenders) Act for an ESO in respect of the defendant. An ISO was made by Button J on 7 May 2014 (State of New South Wales v Williamson [2014] NSWSC 519) and an ESO for five years was made by Johnson J on 3 July 2014 (State of New South Wales v Williamson [2014] NSWSC 939). As noted earlier, that ESO expires on 3 July 2019.

17. The facts surrounding the offending by the defendant were summarised by Button J at [3]-[34] as follows:

[3]   The foundation of these proceedings is the fact that, over 20 years ago, the defendant committed a number of exceptionally serious sexual offences. I shall recount their objective features briefly. This recitation is founded on the agreed facts that were tendered in proceedings on sentence in 1991.

[4]   At about 11 PM on 5 August 1989, a 13-year-old girl was walking home from a social event in Bulli, near Wollongong. The defendant observed her from his motor vehicle. He parked the vehicle, and dressed himself in a balaclava and a pair of gloves that he had with him in the car. He also armed himself with a folding knife. He lay in wait for the victim in the grounds of a high school. She became aware of his presence and tried to run away, but he chased and captured her. She was marched at knife point into the grounds of the high school. There the defendant ordered her to remove her clothes and lie on the ground. He blindfolded her with her own clothing. The defendant then performed oral sex upon the victim and had penile/vaginal sexual intercourse with her. He ejaculated on the ground near her person. After that he permitted her to dress herself, and marched her out of the school grounds. Eventually he released her, but not before ordering her not to tell anybody what had happened or he would "come and get her". On returning home the victim made an immediate complaint to her mother. During her ordeal the victim was in fear for her life.

[5]   On the evening of 17 September 1989, the second victim, a 15-year-old girl, was staying at an address in Bulli. Some time after she went to bed at 9 PM, the defendant gained entry to her bedroom and woke her. He was wearing a balaclava and gloves, was in possession of a torch, and was armed with a knife. A struggle ensued, and the defendant threatened the victim by holding the knife to her throat. He dragged her away from the premises to a park about one kilometre from the point of abduction.

[6]   There she was ordered to undress, and was blindfolded with articles of her clothing. While still holding the knife to the throat of the victim, the defendant performed oral sex upon her, and thereafter had penile/vaginal sexual intercourse with her. He ejaculated on the grass nearby. The defendant decamped. He left the victim lying on the ground, partly clothed, still blindfolded, and with her hands tied by a portion of her clothing. After some time she freed herself, ran to the nearest house, and complained to the occupant. During the attack, the victim had received a number of cuts to her hands and left breast from the knife wielded by the defendant.

[7]   In the early hours of 6 November 1989, the third victim, an 11-year-old boy, was sleeping in his bed at his home in Bulli. The defendant drove to the premises in a motor vehicle that he had stolen in the preceding days, and gained entry through a closed window. He was wearing a balaclava and gloves, was carrying a torch, and was armed with a folding knife. The defendant ordered the victim from his bed, took him to the motor vehicle that was parked nearby, and placed him into its boot. The defendant drove to bushland in the area of Mount Kembla.

[8]   There he removed the victim from the boot, blindfolded him with an item of his own clothing, and placed him in the backseat of the car. The defendant masturbated the victim, performed oral sex upon him, and then forced the young boy to perform oral sex upon the defendant. Later the defendant attempted to have penile/anal sexual intercourse with the victim.

[9]   The victim was then placed in the boot again, driven around the Mount Kembla area, and ultimately left in bushland. The boy walked for some distance in darkness before coming to a home; there he informed the occupants of his ordeal.

[10]   In the early hours of 5 February 1990, the fourth victim, a 26-year-old woman, was sleeping in her bedroom. With her was her four-year-old son.

[11]   The defendant gained entry to the premises by manipulating the security chain on the rear door. He woke the victim from her sleep. He was wearing a balaclava and gloves, and was armed with a folding knife.

[12]   The defendant ordered the victim to roll onto her back and undress. He then bound her hands behind her back and blindfolded her with articles of her clothing. He informed the victim that he was looking for money and that he intended to have sexual intercourse with her. The victim requested that her son be taken from the room. The defendant complied with that request, but whilst doing so indicated that the child would be harmed if he screamed.

[13]   The defendant returned to the victim and had penile/vaginal sexual intercourse with her. Thereafter he forced her to perform oral sex upon him, and he ejaculated in her mouth. The victim became physically sick, and was ordered by the defendant to go to the bathroom and wash out her mouth. She complied with that order. By that stage her hands had been unbound but she was still blindfolded.

[14]   Upon her return, the defendant again forced the victim to perform oral sex upon him. He then fled. The victim informed her next-door neighbour of what had happened. During the crimes, she was "extremely terrified" for her own safety and that of her son.

[15]   On 15 February 1990, the fifth victim, a 13-year-old girl, was alone in her family home. She went to bed at about 11 PM. At about 2 AM she heard noises outside her house. She investigated but found nothing, and returned to bed. The noises were caused by the defendant, who had been outside the home and keeping the victim under observation. He established that she was alone in the house, and gained entry by manipulating the lock on the rear screen door. He entered the bedroom of the victim. At the time he was wearing a balaclava and gloves, and was armed with a folding knife.

[16]   The defendant demanded money from the victim, and searched her room. The victim was blindfolded with her own clothes. The defendant told the victim that he was armed, and instructed her to remove her clothing. She did so. The defendant then had penile/vaginal sexual intercourse with the victim. After that he forced her to perform oral sex upon him. At a later stage he had penile/vaginal sexual intercourse with her again. He left the victim still blindfolded and highly distressed. The victim complained to her mother upon the latter's return to the home early the next morning.

[17]   Early in the morning of 22 March 1990, the sixth victim, a woman then aged 24 years, was at home with the seventh victim, her five-year-old daughter, along with her two-year-old son. At the time, the sixth victim was seven months pregnant. The sixth victim was in one bedroom with her son. The seventh victim was lying in another, smaller bedroom. At about 3 AM the defendant stood on a garbage can at the side of the house and used a folding knife to manipulate the lock on a window. He entered the home and went to the bedroom of the sixth victim. At the time he was wearing a balaclava and gloves, and was in possession of the knife.

[18]   The defendant threatened the sixth victim, blindfolded her with material found in the room, and bound her hands behind her back. The defendant then pulled up the sixth victim's nightdress, and cut her pants from her body. He placed his hand on the outside of her vagina. The defendant then left the room to search the house for valuables. While the defendant was absent, the sixth victim worked her hands free and removed the blindfold. The defendant subsequently returned to the sixth victim's bedroom, rebound her hands, and blindfolded her again. While doing this he repeatedly poked the sixth victim with the point of his knife.

[19]   The defendant then went to the smaller bedroom where the seventh victim, the five-year-old daughter, was sleeping. Her (sic) woke her up, and told to (sic) take off her nightdress. She did so. The defendant then attempted to have penile/vaginal sexual intercourse with the seventh victim, but was unable to do so because of the size of her body. The seventh victim began to cry. After dressing and undressing the seventh victim, the defendant inserted his penis into her mouth, and ejaculated onto a towel in the bedroom. At a later time he again inserted his penis into the mouth of the seventh victim, while he was alone with her in the smaller bedroom.

[20]   The defendant then left the premises. At this stage the sixth victim was still bound and blindfolded. After approximately 15 minutes the sixth victim was able to work her hands free and remove the blindfold. She then alerted the local police. Throughout the ordeal the sixth victim feared for the safety of her two children, her own safety, and the safety of her unborn child.

[21]   Around this time, police investigations had led to the defendant becoming one of a number of suspects. On 30 March 1990 two police officers attended the home of the defendant and spoke with his parents, who permitted the police officers to search the defendant's room. The defendant was also asked to supply police with a blood sample. He obliged, and was conveyed to Wollongong District Hospital for this purpose.

[22]   Soon after midnight on 15 April 1990 the eighth victim, a 43-year-old woman, was at home alone. Whilst she was bathing, the defendant gained entry to the premises by using his knife to manipulate the lock of a window in the front bedroom. When the victim got out of the bath, she saw the defendant outside the bathroom wearing a beanie (fashioned into a balaclava) and gloves. He was also holding his knife. She closed and bolted the bathroom door, but the defendant quickly forced it open. The victim began to scream and a struggle ensued. In the course of the struggle the victim received a deep laceration to her left hand. The defendant ran from the house. Police attended the premises a short time later to find the victim "totally distraught". She was later conveyed to hospital via ambulance.

[23]   Later that morning, the defendant attended another house nearby. The ninth victim, a 21-year-old woman, and the tenth victim, a woman aged 18 years, were staying in the house while the occupants were away. The defendant placed a garbage container under a downstairs window, climbed onto it, removed the flyscreen, opened the window, and climbed through it. He was wearing gloves and a beanie pulled over his face, and was armed with a knife.

[24]   The defendant went upstairs to the bedroom where the ninth victim was sleeping. She woke up to see the defendant just outside the bedroom door, and began screaming. The defendant placed his hand over her mouth, and a struggle ensued. The defendant eventually overpowered the victim, and bound her hands with clothing. He asked her for money, and searched a number of rooms on the first floor of the house. He later returned to the bedroom where the ninth defendant was lying with her hands bound, and proceeded to bind her feet. He then continued to search for money.

[25]   At this time the ninth victim managed to free her hands and telephone her 22-year-old brother, who lived nearby. Her brother armed himself with a "kendo sword" and ran to the premises.

[26]   Meanwhile, the defendant entered the ground floor bedroom where the tenth victim was sleeping. He woke her up and was in the process of binding her hands when the ninth victim's brother disturbed him. After a short confrontation, the defendant ran from the premises. The ninth victim's brother pursued him for some distance before losing sight of him.

[27]   Police attended the premises shortly afterwards, but were unable to locate the defendant. Neither of the victims was physically injured, but the ninth victim was "in a state of hysteria" and the tenth victim was "distressed".

[28]   On 27 April 1990 the defendant stole a motor vehicle from outside a home in Corrimal and drove it to Wollongong. On 4 May 1990 he drove the vehicle to the Balgownie area. While driving in that vicinity at about 10:15 PM, the defendant saw the eleventh victim, a 16-year-old girl, walking along the side of the road. He pulled over, grabbed hold of the victim, and attempted to drag her into the motor vehicle. At the time the defendant was wearing a stocking mask and gloves, and was armed with a knife. The victim screamed, and a struggle ensued. During the struggle the leather jacket worn by the victim was slashed across its back, and she suffered injuries to her face, neck, and back. Neighbours were alerted to the struggle by the screams of the victim, and the defendant drove away. Police attended and searched the area without success.

[29]   Some hours later, at about 12:15 AM on 5 May 1990, police pursued the defendant, who was still driving the stolen motor vehicle, throughout the Corrimal area. The defendant abandoned the motor vehicle and ran into a large building site. He was eventually located and arrested. He was then conveyed to Corrimal Police Station and interviewed with regard to the attack on the eleventh victim. The defendant made full admissions in relation to this incident.

[30]   The defendant was also interviewed in relation to the attacks committed on the eighth, ninth, and tenth victims. The defendant initially admitted responsibility for these offences, but feigned an inability to give pertinent details in response to questioning. Later in the interview he denied any involvement in those attacks, claiming that he had wanted the "kudos" of being the [perpetrator]. In a subsequent interview conducted after his second arrest, he told police that he had purposely given incorrect details of these attacks in an effort to divert the investigation away from himself.

[31]   After the interview on 5 May 1990 the defendant was charged only with the offence committed against the eleventh victim. He appeared at Wollongong Local Court on 7 May 1990. He was granted bail, and released into the custody of his parents on 8 May 1990.

[32]   On 13 May 1990 the defendant breached bail and stole a motor vehicle. He later abandoned it and stole another one. On 14 May 1990 he stole food and items suitable for camping from a home in the Mount Kembla area, and "went bush". The defendant was rearrested on 17 May 1990. At the time he was in possession of items that were undoubtedly possessed with the intention of committing further offences of sexual violence.

[33]   With regard to all offences, the defendant used a police scanner that was in his possession in order to evade detection.

[34]   Eventually the defendant admitted to the commission of all offences, and pleaded guilty to them.

The earlier ESO

18. In his judgment, Johnson J noted at [36] that the defendant had commenced a community-based therapeutic program with Forensic Psychology Services (FPS) in March 2012 and that he had begun to take anti-libidinal medication whilst in custody in 2004. He continued to take that medication thereafter including whilst he was subject to parole.

19. Justice Johnson noted at [37] that in the two years the defendant was on parole his accommodation and employment was stable, and no breaches of parole were reported. He had remained compliant since his release on parole with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

20. Justice Johnson noted at [42] that the defendant had participated in the CUBIT program from March 2000 to January 2001. In February 2001, he was assessed as having made good progress in CUBIT, having begun to address a number of his risk factors and having developed a useful relapse prevention plan. His Honour noted at [47] that since the defendant’s release to parole in 2012, he had participated in the community-based maintenance program conducted by FPS with the treatment records indicating a positive response by the defendant.

21. The two psychiatrists who examined the defendant for the purposes of the ESO in 2014 were Dr O’Dea and Dr Ellis. In addition, the defendant was being treated by Dr Stephen Allnutt who prescribed his anti-libidinal medication. All of those doctors stressed the importance of the defendant remaining on the anti-libidinal medication. This was chiefly because of the diagnosis that that had been made by the psychiatrists of multiple paraphilias including sexual sadism, voyeuristic disorder, frotteuristic disorder, fetishistic disorder, exhibitionism and telephone scatologia.

22. Justice Johnson said this in relation to the evidence from the psychiatrists:

[51]   The Defendant commenced taking Androcur, an anti-libidinal medication, in May 2004 upon the recommendation of Dr Stephen Allnutt, a most experienced forensic psychiatrist. The Defendant has continued to take that medication. It is clear on the evidence that this is an important aspect of the management of the Defendant's risk of further sexual offending. There is evidence which indicates that since he has been on Androcur, sexual thoughts are less prominent and intrusive. That, of course, is one of the purposes of medication of this type.

[52]   Dr Allnutt has been treating the Defendant in relation to his anti-libidinal therapy since his release on parole, and has monitored and reported in this respect.

[53]   Dr Ellis has observed that the Defendant's anti-libidinal treatment is medically monitored in line with international best practice standards, and there are no contraindications to continuing with Androcur. He noted that with appropriate monitoring, side effects of the medication can be avoided and that the effects of anti-libidnals are reversible with cessation.

[54]   Both Dr O'Dea and Dr Ellis have addressed the importance of the Defendant's continuation with anti-libidinal medication.

[55]   Dr Ellis has recommended that the medication be continued indefinitely. Dr Ellis states that "Anti-libidinal medication is the best treatment to address deviant arousal" and that, in general, "anti-libidinal medication shows the greatest effect sizes in recidivism reduction of all strategies".

[56]   Dr O'Dea considered that:

"The ongoing prescription of testosterone-lowering medication at a therapeutically adequate and appropriate dose is likely to prove the most effective clinical therapeutic intervention in managing and minimising [the Defendant's] risk of engaging in further sex offending behaviours and committing a further serious sex offence in the community in the long term."

[57]   The evidence reveals that there is a significant and increased risk of the Defendant reoffending if anti-libidinal medication ceased. There is some material before the Court which suggests that the Defendant had expressed a desire to not maintain anti-libidinal medication into the future. Mr Johnston submitted, correctly in my view, that there is no evidence that the Defendant had demonstrated an intention to abruptly cease taking the medication. It is the case that there have been discussions with a number of doctors as to medication and its ongoing use, but there has been nothing to indicate an intention by the Defendant to stop using it.

[58]   The use of anti-libidinal medication by the Defendant is an important part of the management of the risk he poses to the community. The State submitted that if there was cessation of the use of anti-libidinal medication by the Defendant, then the level of risk to the community would be greatly heightened. I accept that submission. However, the evidence does not reveal any apparent unwillingness on the part of the Defendant to take the medication. I approach this application upon the basis that the Defendant will continue to use such medication and that his medical advice will be that that should occur.

…

[60]   In addition to anti-libidinal medication, the Defendant has been treated since 2004 with a class of medication known as Selective Serotonin Reuptake Inhibitors (SSRI). This medication is directed essentially to control mood and anxiety. It would seem, on the evidence, that this is an important aspect of the treatment of the Defendant as well.

[61]   Given that the Defendant's dynamic risk factors of reoffending have included "feeling lonely and isolated", "problems with social adjustment", "social anxiety" and "experiencing acute mood swings and coping with this by blaming others", the Defendant's use of SSRIs assists to prevent the emergence of certain risk factors that may contribute to relapse or reoffending. Dr Ellis in his report emphasised this aspect.

23. When dealing with risk assessment, Johnson J said this:

[66]   Risk assessment concerning the Defendant dates back to an examination by Dr Jonathan Phillips in November 1991. Thereafter, there have been psychiatric reports prepared with respect to the Defendant in custody in 2003 and 2004, and a recent psychological report prepared by Ms Anna Woodrow in August 2011. That report assessed the Defendant as constituting a moderate to high risk of reoffending.

[67]   Mr Patrick Sheehan, forensic psychologist, prepared a report dated 11 February 2014 which assessed the Defendant as presenting a moderate to low risk of sexual offending, having regard to actuarial assessment and dynamic risk factors. This assessment was made, in part, by reference to the Static-99 measuring method.

[68]   Mr Sheehan identified a number of risk factors, including the Defendant's sexual violence history, difficulties with psychological adjustment as well as mental disorder in the form of paraphilic disorder and problems with social adjustment. In terms of established dynamic risk factors, Mr Sheehan identifies the Defendant's intimacy deficits, social influences, distorted attitudes, deficits in capacity to self-regulate and poor sexual self-regulation as evidenced by his offending history. In terms of acute dynamic risk factors, Mr Sheehan identified issues in relation to particular victims, hostility, sexual preoccupation, collapse of social supports and rejection of supervision as key risk factors for the Defendant.

[69]   Having regard to both actuarial and dynamic risk assessment, Mr Sheehan assessed the Defendant as being in the moderate-to-low risk category of sexual offending relative to other adult male sex offenders.

[70]   A further risk assessment was undertaken by Professor David Greenberg in his report of 29 March 2014. It should be noted that Professor Greenberg's very thorough report did not involve any recent examination of the Defendant, as the Defendant did not agree to being examined by Professor Greenberg for the purpose of the 2014 report. The position may be contrasted with the reports of Dr O'Dea and Dr Ellis, each of whom (of course) examined the Defendant in accordance with the orders of the Court.

[71]   Professor Greenberg noted the Defendant's considerable progress whilst on parole, and the fact that he was responding positively and co-operatively to his parole conditions and that is certainly a consistent aspect of the evidence before the Court.

[72]   Professor Greenberg identified anti-libidinal medication and psychological therapy as being key components in risk management for the Defendant. Professor Greenberg noted that the Defendant himself reported that he acknowledged the beneficial effect of the medication in assisting him in controlling his deviant fantasies and urges. Professor Greenberg expressed the view that should he discontinue the medication, the Defendant's risk of sexual reoffending will be moderately elevated.

[73]   Professor Greenberg concluded that the Defendant's successful reintegration back into the community will depend upon compliance with ongoing psychological maintenance therapy, compliance with psychiatric medications to suppress his deviant sexual drive and motivation to seek and utilise available supports within the community.

...

[75]   Dr Ellis provided a report dated 10 June 2014. He expressed the view that the Defendant met the diagnostic criteria for multiple paraphilias, including sexual sadism and noted that paraphilic disorders are chronic relapsing conditions. Dr Ellis stated that consideration of the type of possible sexual offence forms part of an estimation of risk and, given the Defendant's history, the likely type of victim would be a child or woman in a situation where they are alone or in a position of vulnerability, and that the likely offence would occur without warning.

[76]   Both Dr Ellis and Dr O'Dea pointed to the limitation of Static-99 actuarial measures in this case because the very passage of time since the commission of the offences in 1989 and 1990 tended to reduce the statistical prospect of reoffending. However, the fact is that until 2012, the Defendant had been in prison. Thus, the passage of time itself provided very limited assistance in any risk assessment.

[77]   Addressing the issue of risk Dr Ellis said:

"The Defendant would fall into a group of persons with a risk for serious sexual offending that is statistically moderate in frequency but of a type with catastrophic consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk."

[78]   Dr O'Dea's report of 18 June 2014 also diagnosed paraphiliac disorder.

[79]   With respect to the Defendant's risk of reoffending, Dr O'Dea said:

"From a full psychiatric risk assessment and risk management assessment, and on the basis of [the Defendant's] reported sexually deviant urges, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence."

[80]   Dr O'Dea emphasised that the risk of the Defendant committing further serious sex offences was heightened significantly if treatment intervention was not continued in the context of community supervision and monitoring.

24. When dealing with the safety of the community, Johnson J said this:

[85] As noted earlier at [18], ensuring the safety and protection of the community is the primary object of the statute itself. All other statutory criteria mentioned so far, viewed together, bear upon the primary question of the safety of the community. Everything that I have said so far by reference to the s.9(3) criteria can be brought together in considering this aspect.

[86]   There are a number of aspects of the Defendant and his history which are advanced by the State and which, in my view, have force on this application.

[87]   The Defendant's offending history indicates that he is a versatile offender. His victims have been young and old, mainly female, but with an 11-year old boy included. The victims have been persons offended against in their own homes, or persons targeted in other circumstances.

[88]   Accordingly, there is no single fixed category of victims or fixed category of circumstances in which any risk of recidivism could arise. This is a significant factor. There is difficulty in isolating a likely victim profile or likely offence profile. In these circumstances, supervision conditions are important with respect to monitoring the whereabouts and psychological processes of the Defendant.

[89]   Other aspects of the Defendant's make up are also relevant. As Button J observed, there are still deep unresolved issues with regard to women and aspects of the Defendant's sexuality. There is material that indicates that he can be moody and unpredictable.

[90]   The State emphasises, as well, that although the index offences occurred a long time ago, they demonstrated a sustained and very serious set of offences. If there was repetition of sexual offending by the Defendant, there is the prospect that it would be grave. Dr Ellis used the term "catastrophic" in describing the consequences of further offending (see [77] above). This term is apt and is a significant feature of the application.

Current assessments

25. Three documents of significance were put forward by the plaintiff on the present application.

26. First, the defendant was assessed on 16 November 2018 by Mr Samuel Ardasinski, a well-known senior psychologist at the Serious Offenders Assessment Unit. Mr Ardasinski prepared a report on 22 November 2018, and the recommendations he made were supported by the Acting Chief Psychologist of the Risk Management Programs.

27. In the Executive Summary to his report Mr Ardasinski said this:

Over the course of Mr Williamson’s parole and ESO, his level of compliance with supervision has been exemplary. He has never breached his parole nor has he been charged with any Fail to Comply offences for neglecting to adhere to his ESO conditions. He sought, and was prescribed, antilibidinal therapy (chemical castration) whilst still in custody in 2004, and has adhered to this medical regime ever since. He has also completed all forms of psychological intervention available to him in custody and since release to the community. He is subject to the obligations of the Child Protection Register.

According to an actuarial instrument based on static factors alone, Mr Williamson falls in the 'Above Average' risk category for sexual offending. A current reassessment of his dynamic risk for sexual violence sees Mr Williamson now fall in the lower end of the Moderate risk range for sexual reoffending.

While Mr Williamson has not breached his ESO since it was imposed, he has only very gradually engaged in more prosocial aspects of community living, including a walking group and socialising with other adults. Social isolation and his avoidant personality were considered risk issues for him, and so it may be considered that "if something in the Defendant's life at this point started to unravel, his response may well include serious sexual recidivism" (from Johnson J, 3/7/14). However, I consider that a Court would be unlikely to support a further ESO since there is insufficient evidence of continuing 'live'

risk. Even if Mr Williamson were to cease taking his antilibidinal medications and his situation destabilise, there are other, less restrictive options available to monitor his risks (e.g. a CPPO), which given his compliance with supervision for almost seven years, would likely suffice to provide some level of protection against any residual risk of repeat offending. Consequently, it is recommended that no further application be made.

28. Mr Ardasinski noted the defendant’s continuing employment throughout the years of his existing ESO. Although that employment was part time and the defendant acknowledged that he was capable of working more hours, he did not want to lose his health pension card which allowed him to access medications more cheaply. He told Mr Ardasinski that this matter was critical because he had continued his anti-libidinal therapy for some years and without the concession he would be unable to support it.

29. Mr Ardasinski noted the defendant’s continuing involvement in the Maintenance program run by FPS. He told Mr Ardasinski that he had sought an initial appointment with a private provider (LSC Psychology) who may be able to provide ongoing psychological support once he was no longer under the supervision of an ESO.

30. Mr Ardasinski noted that apart from the relationship with his mother, the defendant had a small but valuable support circle. He had attempted to make more friends through walking groups and a motorcycle group. He had struggled with having to disclose his history to new people he met but he had made a number of successful disclosures including to his employer who had remained very supportive of him.

31. In relation to electronic monitoring, Mr Ardasinski noted that the defendant was on Stage 3 of the EM process. Mr Ardasinski said that if a decision was made by the clinical sub-committee that no further ESO was warranted, the defendant would be progressed to Stage 4 (supervision without any electronic monitoring). Mr Ardasinski noted that the defendant had progressed through Stages 1 and 2 through “his excellent compliance reports at appropriate times”. Mr Ardasinski said:

Based on his performance under supervision to date, this does appear to be appropriate in all the circumstances.

32. I note, in passing, that despite that recommendation, the defendant was not progressed to Stage 4, but I will further discuss this matter later in the judgment.

33. Mr Ardasinski made references to various risk assessments that had been conducted on the defendant over the years. When first assessed he was found to be in the moderate-high risk range. The next assessment placed him in the moderate-low risk category (assessment by Mr Sheehan) but Mr Ardasinski considered that this was an incorrect assessment and that the defendant ought to have been scored at 4 which placed him in the moderate to high risk.

34. In the STATIC-2002R assessment, he was assessed at moderate to high risk.

35. Mr Ardasinski assessed the defendant under the STABLE-2007 protocol. This protocol was developed to assist clinicians in identifying stable dynamic risk factors for sexual reoffending. The defendant’s score of 6 placed him in the lower end of the moderate risk category.

36. Mr Ardasinski noted his risk factors as being:

• Capacity for relationship stability (intimacy deficit);

• Deviant sexual preference;

• Impulsivity; and

• Hostility towards women.

37. Mr Ardasinski commented at [20]:

Mr Williamson has made progress on each of his risk factors, psychologically, but there have also been powerful impediments to his reoffending whilst subject to an ESO – his antilibidinal and antidepressant medications have assisted him chemically, and his being electronically monitored and curfewed for much of his ESO has limited his capacity to reoffend. Mr Williamson acknowledged he still has a fear of rejection and intimacy deficits.

38. Mr Ardasinski said that the STABLE-2007 can be combined with the STATIC-99R or STATIC-2002R to generate a composite assessment of risk/needs. When they were combined, the defendant’s level was IVa – above average risk.

39. Mr Ardasinski then went on to refer to further research in these terms:

22.   Further, recent research (Hanson, Harris, Helmus & Thornton, 2014) suggests that, "If high-risk sexual offenders do not reoffend when given the opportunity to do so, then there is clear evidence that they are not as high risk as initially perceived. The current study found that, on average, their recidivism risk was cut in half for each 5 years that they remained offense-free [sic] in the community". The rates of sexual recidivism for sexual offenders who had a score of 4 on STATIC-99R were between 10.0 and 12.1 per cent over five years. For Mr Williamson, this research would indicate that his current risk of his reoffending sexually could be as little as half that (the rates halve on average, so it cannot be said declaratively whether this would be the case for specific individuals such as Mr Williamson).

23.   Lastly, more recent research by the STATIC-99R Development Team has also looked at the reductions in risk which need to be calibrated for time offence-free post-release. According to this research (Hanson, Harris, Letourneau, Helmus & Thornton, 2017), after six years offence free post-release, for an individual with a STATIC-99R score of 4, the more appropriate risk category for Mr Williamson at the time of the current assessment, as his ESO is due to expire, would be Level III ('Average' risk).

40. Mr Ardasinski’s conclusions and recommendations were these:

24.   Mr Williamson is in the final nine months of his ESO. Mr Williamson has never breached his. This demonstrates a marked change from 'the Monster …' who was apprehended on bail with a 'rape kit' in his possession within ten days of being released from custody in 1990 after his initial charges. There may be some speculation that the moderation of his risks has been in large part due to his antilibidinal therapy and the imposition of EM as part of his ESO. However, the fact is that he has developed a comprehensive support network around him, not just a psychiatrist administering Androcur; he has sustained gainful employment for an employer who knows who he is and has supported him in the workplace when Mr Williamson has felt unsafe; he has looked after his mother's affairs as she has entered an aged care facility and he says he is prepared as well as he can be for her eventual passing; he has started the process of transferring from CSNSW psychological support through FPS to a private provider (LSC Psychology), and he has developed appropriate adult interests such as motorcycles and walking groups.

25.   He remains a risk - as do many offenders when their sentences or ESOs ultimately expire. However, the risks of a return to the types of violent sexual offending he committed thirty years ago can likely be managed through oversight by the Police under the CPR and a CPPO. Any breach of a CPPO is an 'offence of a sexual nature and the State would be at liberty to reapply for an ESO were Mr Williamson to be detained or supervised for such an offence.

41. The second document of significance put forward by the plaintiff was an Extended Supervision Order Completion Report prepared by Recquel Smith, the Senior Community Corrections Officer in the Metropolitan Extended Supervision Team. The report was dated 1 December 2018.

42. Ms Smith noted that the defendant had resided in private rental accommodation with nil known adverse effects to the community, and had lived at the same address since 21 August 2016. She noted that he continues to visit his mother on a weekly basis at a nursing home where she has resided since November 2016, and continues to have contact with extended family members, especially his mother’s sister.

43. Ms Smith noted that the defendant had been employed since April 2016 as a part time labourer in the commercial fruit industry. Ms Smith said, when discussing his employment, that the defendant showed genuine pride in his work and expressed his passion for his employment. She noted that he continued to engage with social walking groups on the weekends as well as a motorcycle group. Both these groups consist of adults only.

44. Ms Smith said, under the heading “Response to Extended Supervision Order”, the following:

Since the commencement of his order 3 July 2014 Mr Williamson has progressed well in building a pro-social lifestyle and re-integrating into the community. Mr Williamson has complied well with the conditions on his order and his willingness to engage with the ESO unit and assigned supervising officer openly has made the case management of his re-integration into the community a positive working relationship between Mr Williamson and Community Corrections staff.

Mr Williamson has not received any breach warnings or written directions since the commencement of his order. He attends all psychological and psychiatric appointments as directed to address his offending behaviour and to assist him in coping strategies with day to day personal issues as well.

45. Ms Smith said that covert observations of the defendant had also been conducted from time to time by the ESO team and the ESO investigation team whilst the defendant had been in the community on approved outings. No issues or concerns were observed during those times.

46. Ms Smith noted that the defendant had progressed to Stage 3 of his electronic monitoring order. Stage 3 entails electronic monitoring without weekly schedules.

47. Ms Smith noted that the defendant had been attending psychological intervention with FPS to address his assessed risk factors and to assist him reintegrate back into the community. She said discussions with his treating psychologist had indicated that the defendant continued to engage well, that he presented as stable, and continues to address his assessed risk factors. She said that during interviews with the defendant, it was clear that he was fully aware of his risk factors and of identifying triggers associated with those risk factors.

48. Ms Smith noted also that the defendant had been attending appointments with his treating psychiatrist, Dr Allnut, whom he had been seeing for more than ten years for anti-libidinal medication treatment. That medication had recently reduced from 100mg to 50mg.

49. In the conclusion to her report involving her assessment and recommendation, Ms Smith said this:

At the commencement of his Extended Supervision Order, Mr Williamson was assessed on the STATIC-99R to fall into the "Moderate to High" risk of sexual re-offending, however a recent assessment on the STATIC-2002R and the STABLE-2007 conducted by Senior Psychologist Samuel Ardasinski on 20 November 2018, indicated that Mr Williamson now falls "in the lower of the Moderate" risk category.

Mr Williamson has demonstrated a stable community lifestyle. He has maintained constant employment with the same employer since 2016 and has maintained stable rental accommodation as well.

He continues to have weekly contact with his mother at the nursing home where she resides and remains in contact with his extended family. Mr Williamson continues to attend social activities with his approved walking group and motorcycle group. He has recently expressed an interest in volunteering at a local animal shelter to assist in the day to day care of sheltered animals.

Mr Williamson continues to address his assessed risk factors through psychological Intervention with FPS and medical intervention through drug treatment "anti-libidinal" with his treating psychiatrist Dr Allnut.

During interviews, Mr Williamson he [sic] has shown insight into his offending behaviour, assessed risk factors and triggers associated to [sic] his risk. He will only search out social activities where he knows people over 18 years of age can only attend. When on social outings he stays away from negative people as he only wants to surround himself with positive people in his life. He is fully aware that his aliases as the "the … Rapist" will always have a negative impact on his life event though 20 years plus has passed.

…

Given the above information it is recommended that no further orders be sought. Community Corrections will continue to work with Mr Williamson to implement an effective exit plan to assist him to continue to live a positive and pro-social lifestyle.

50. The third document was a report from Dr Stephen Allnut of 20 May 2019 which dealt with the provision by Dr Allnut of anti-libidinal medication to the defendant. Dr Allnut said that the defendant had been seeing him at intervals of approximately six to eight weeks. Dr Allnut said that the defendant had remained mentally stable as far as his general mental health was concerned. There had been some fluctuations in mood and anxiety but not to the extent that the defendant would have manifested a diagnosable psychiatric disorder. Dr Allnut thought that that was probably because the defendant maintained his adherence to Aropax which kept his anxiety in relative remission. Dr Allnut said that he had not identified any major depressive episodes.

51. Dr Allnut considered that the defendant had maintained compliance with medication. Although there had been fluctuations in his testosterone levels, the absence of persistence in fluctuations meant that the fluctuations did not cause Dr Allnut significant concern. Dr Allnut said that his Androcur (the anti-libidinal medication) which had been increased to 100mg daily in July 2014 was reduced in November 2016 to 75mg after a second opinion from Dr O’Dea. The defendant denied breakthrough symptoms of paraphilia at 75mg.

52. After a further discussion with FPS in August 2018 and after consultation with Dr O’Dea, the Androcur was reduced in August 2018 to 50mg a day. There had been some increase in his testosterone levels but they remained below normal, and there had been no reported increases in paraphilic symptoms. Dr Allnut said that it was difficult to determine whether the defendant should remain indefinitely on the medication but Dr Allnut would recommend a gradual reduction in dose with ongoing monitoring for six to 12 months after discontinuing the Androcur.

53. Dr Allnut said that the defendant needed ongoing psychological support if the ESO came to end. That would need to be by a psychologist with expertise in treating sexual offenders, possibly LSC Psychology.

Submissions

54. The plaintiff submitted that at a hearing such as the present there is a two stage test to be employed. The first limb of the test concerns whether or not under s 7(4) the Court is satisfied the matters in the documentation would, if proved, justify the making of an ESO. The second limb is the discretion whether or not an ISO should be imposed if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

55. The plaintiff submitted that there was no doubt that the defendant had made remarkable steps towards his rehabilitation. He had complied with his parole and the ESO, he had gained and maintained employment, he had a stable living situation and he had pro-social friends and activities. The plaintiff submitted, however, that concerns arise on the evidence and with the defendant's current situation which support a further ESO being made.

56. The plaintiff submitted that care must be taken in placing weight on the fact that the defendant's assessed risk of sexual reoffending has decreased with him now being assessed as being "in the lower end of the moderate range" by Mr Ardasinski. The plaintiff drew attention to what was said in Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [90]-[93] to suggest that the mere passage of time was not a basis for reducing the risk assessment.

57. The plaintiff submitted that for the seven years the defendant has been in the community he has been subject to very strict conditions including electronic monitoring, regular meetings and assessments as well as his medication. The plaintiff submitted that the defendant had not moved to Stage 4 in relation to electronic monitoring and that there had not been a sufficient amount of time on the reduced dosage of Androcur to see its long term efficacy.

58. The plaintiff submitted that there has been no testing of how the defendant will cope with a substantial reduction in the assistance he has received whilst subject to the ESO and that there has been no testing of whether he can live in the community without the intense level of supervision that the electronic monitoring, amongst other things, provides. The plaintiff submitted that the defendant has very few social networks. The plaintiff submitted that there is a real concern that the defendant has no social network that can assist him especially at times of increased stress.

54. The plaintiff submitted that the defendant continues to be diagnosed as suffering from multiple paraphilias which are lifelong conditions.

55. The plaintiff submitted that a further extension of the ESO should be imposed to facilitate a continuation in the stepping down of restrictions and a decrease in the level of supervision to which the defendant is currently subject, in order to address the risk that he poses to the community should his supervision be withdrawn completely.

Determination

61. The matter that must be determined on the present hearing is whether the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In doing so, it must be remembered that an ESO may only be made if the Court is satisfied to a degree of high probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. However, the Court is not required to determine that the risk of the defendant committing a serious offence is more likely than not.

62. The evidence on which the plaintiff chiefly relies is to be found in the report of Dr Ellis of 10 June 2014 and the report of Dr O’Dea of 18 June 2014.

63. Dr Ellis in his report diagnosed the defendant as meeting the criteria for multiple paraphilic disorders. Dr Ellis said that paraphilic disorders are chronic, relapsing conditions. He did not diagnose the defendant as suffering from a paedophilic disorder despite two of the victims being prepubescent. That was because the victim type was opportunistic rather than being the primary goal of offending.

64. Dr Ellis said further:

A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr Williamson, given the particular pattern of sexual arousal, the likely type of victim would be a child or woman in a situation where they were alone or in a position of vulnerability. A likely offence would be without warning. The associated intimidation and loss of a sense of bodily integrity would be of the type where physical and psychological injury are foreseeable. He was engaged in a pattern of escalating behaviour which may have led to more risk of physical injury.

In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr Williamson would fall into a group of persons with a risk for serious sexual offending that is statistically moderate in frequency but of a type with catastrophic consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk.

65. In his report, Dr O’Dea discussed the limitation of assessment tools such as STATIC-99 or STATIC-99R in assessing risk for the purpose of treatment or supervision. He noted that the STATIC-99 focuses on measuring the risk of an individual engaging in a further sexual offence rather than a further serious sex offence as defined in the CHRO Act. Dr O’Dea stressed the importance of the making of clinical judgments of risk when using assessment tools such as those discussed. He went on to say this:

With this in mind, from a full clinical psychiatric risk management perspective, Mr Williamson’s risk of engaging in further sex offending behaviours, and of committing a further serious sex offence, in the community in the long term, would be considered significantly high and appropriate for specific psychiatric treatment as outlined above.

Although Mr Williamson’s score on the Static-99R has placed him in the moderate-low risk category relative to other male sexual offenders, the fact that the index sex offences were his first set of sex offences and committed at an early age would minimise the total score on this instrument, and his history of multiple paraphilias from his teenage years and the nature of the index sex offences would point to a more significant clinical risk of Mr Williamson engaging in further sex offending behaviours and of committing a further serious sex offence in the community in the long term, particularly without ongoing psychiatric and psychological treatment and supervision and monitoring.

In addition, it would seem reasonable to consider that there would be a significantly

high degree of probability that Mr Williamson would be likely to commit a further "serious sex offence" (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if these above outlined treatment interventions were not continued in the context of community supervision and monitoring. Whilst it is not possible, or clinically appropriate from a psychiatric perspective, to place a percentage likelihood of Mr Williamson committing a further "serious sex offence", the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in Tillman v Attorney General for New South Wales [2007] NSWCA 327.

It would seem reasonable to assume that Mr Williamson would require successful implementation and continuation of the above psychiatric risk management program in the community in the long term, including the successful prescription of testosterone lowering medication, in order to adequately and appropriately manage his risk.

Mr Williamson’s risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community, is likely to be long term, and of at least 3 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 3 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress.

66. Those opinions were expressed five years ago. The only material I have subsequent to that time consists of the three reports earlier mentioned, of Mr Ardasinski, Ms Smith and Dr Allnut, together with the case notes from 2014 to the present time. I have already set out in detail what appears in Mr Ardasinski’s report but it may be summarised as follows:

1. His score on the STATIC-99R placed him in risk category IVa (formerly “moderate/high” risk);

2. His total score on the STABLE-2007 placed him in the lower end of the moderate risk category, suggesting a moderate density of criminogenic needs;

3. The composite assessment of the STABLE-2007 and the STATIC-99R placed him in level IVa (above average risk);

4. By reason of the recent research showing that recidivism risk was cut in half for each five years that an offender remained offence-free in the community, this resulted in the appropriate risk category for the defendant at the current time as being III (average risk);

5. The defendant remains a risk but that risk can likely be managed through oversight by the police under the CPR and CPPO;

6. Although the defendant has made progress on each of his risk factors, there have been powerful impediments to his reoffending, being his medication, his electronic monitoring and his curfews;

7. A court would be unlikely to support a further ESO since there is insufficient evidence of continuing “live” risk;

8. A recommendation that no further application be made.

67. In relation to the finding at (4) above, as I have noted, the plaintiff pointed to what was said in McGuire. I do not consider that the decision in McGuire has any relevance in the present case. The application in that case was made under the Mental Health (Forensic Provisions) Act 1990 (NSW). The defendant was diagnosed as having a mild range intellectual disability, alcohol use disorder and antisocial personality traits. The studies relied upon by Mr Ardasinski in the present matter were said in McGuire to be treated with caution because the studies were not dealing with people with intellectual disabilities. That is not the position in the present case, and there is no evidence contrary to what Mr Ardisinski says about the studies and his application of them.

68. In the report from Recquel Smith, on the basis of the progress the defendant had made and the absence of any breaches during the existing ESO, it was recommended that no further order be sought.

69. Dr Allnut’s report said that the defendant was mentally stable, that Dr Allnut had no significant concern that there had been non-adherence to the anti-libidinal medication, and that there were no reported increases of paraphilic symptoms.

70. The plaintiff pointed to two matters in Mr Ardasinski’s report that suggested that he had made an error in his executive summary in concluding that a court would be unlikely to support a further ESO. First, the plaintiff submitted that there was a real question whether Mr Ardasinski had applied the correct test, particularly in light of the material in paragraph 20 of his report ([37] above). Secondly, the plaintiff submitted that Mr Ardasinski erred in his conclusion at paragraph 25 ([40] above), that the defendant could be managed through oversight by the police under the CPR and CPPO. The plaintiff submitted that Mr Ardasinski’s understanding of the oversight under the CPR and CPPO was incorrect in that the police under those two Acts could not manage the risk which had been identified.

71. The plaintiff submitted that Mr Ardasinski accepts that there is a risk. In the light of what is said, particularly in Dr Ellis’ report, that the paraphilic conditions are chronic and only treatable but not curable, there was an unacceptable risk of a further serious offence being committed.

72. It may be accepted that Mr Ardasinski considers that the defendant remains a risk. He classifies that risk, on the basis of the recent research in relation to reduction in recidivism risk after five years, as the defendant being an average risk. He accepted that many offenders remain a risk when their sentences or ESO ultimately expire.

73. However, Mr Ardasinski is a very experienced senior psychologist with the Serious Offenders Assessment Unit. His is the only risk assessment conducted within the last four years and it is the only risk assessment put forward by the plaintiff following completion by the plaintiff of four and a half years of the existing ESO. I do not accept that Mr Ardasinski is mistaken as to the correct test which the Court applies under the CHRO Act.

74. Section 8 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) gives wide powers to the Local Court to limit a person’s conduct, whether as to contact with people or as to exclusion from stipulated areas. I do not accept that Mr Ardisinski is in error in considering that the defendant is not free from supervision by reason of his registration under child protection legislation. However, I do not consider this opinion of Mr Ardisinski’s is germane to consideration of any risk which the defendant presents.

75. It is significant that both Dr Ellis and Dr O’Dea considered in their 2014 reports that three years from June 2014 was a reasonable period for the imposition of the first ESO. I accept that both of those psychiatrists appeared to contemplate that at the end of the three year period, the defendant should be reappraised. However, five years now having elapsed, the position is that the reappraisal by Mr Ardisinski, Ms Smith and Dr Allnut results in findings that the defendant has been completely compliant with all the conditions of his ESO and his prescribed medication. That compliance is established notwithstanding covert surveillance of him throughout the five year period.

76. It would have been open to the plaintiff, pursuant to the existing ESO (Part M, clauses 1, 2, 7) to have had the defendant re-examined by either or both of Dr Ellis and Dr O’Dea (noting that Dr O’Dea has remained involved in the defendant’s treatment throughout that period) or by any other psychologist or psychiatrist to demonstrate that the defendant remained an unacceptable risk. No such evidence was put forward at the hearing and there was no explanation for its absence when I raised the matter with counsel for the plaintiff.

77. The plaintiff submitted that the stage at which the defendant now was, in relation to supervision, demonstrated that more time was needed so that the level of supervision could be gradually stepped down. That submission seems to me, in all the circumstances, to be disingenuous. The plaintiff was aware that an ESO was put in place for five years from 3 July 2014. That order was made although the plaintiff had only sought an ESO for three years. Seeking an order for only three years can be taken to constitute some support for the view that the plaintiff, based on the reports of Dr Ellis and Dr O’Dea, then considered that a three year period would be sufficient. I have some difficulty in understanding how the plaintiff can now assert, on the basis of those same reports, that a further three year ESO is needed in the face of the defendant’s unblemished compliance with the ESO, and the risk assessment in Mr Ardisinski’s report.

78. Despite a five year order being made, it does not appear that the plaintiff has taken appropriate steps to reduce the level of supervision of the defendant to the point where a proper reappraisal of the defendant’s risk of reoffending can be made.

79. A significant example of this failure concerns the progression of the defendant through the Stages of electronic monitoring. As Mr Ardasinski observed at paragraph 11 of his report, the defendant progressed through Stages one and two (which both require schedules of movements) to Stage three through his “excellent compliance reports”.

80. There is an entry in the Corrective Services case notes on 7 December 2016 where the following appears:

Agreed on plan is to progress to stage 4 of monitoring in July 2017.

Nothing occurred in July 2017 or thereafter. No explanation was provided about the absence of any action in that regard. It was not until Mr Ardasinski recommended in his report of November 2018 that it would be appropriate to move him to Stage 4 that anything was done about that matter.

81. What was then done is set out in an affidavit of Annette Caffery sworn 25 June 2019. It appears that at a meeting of the High Risk Offender Assessment Committee on 5 December 2018, following receipt of Mr Ardasinski’s report, it was decided that a report needed to be obtained from Dr Allnut for the purpose of detailing compliance and plans to continue with his anti-libidinal treatment. There is then conflicting information about what happened, if what Ms Caffery says is compared with another affidavit of Bernhard Ripperger of 24 May 2019. Mr Ripperger says that Dr Allnut was contacted on 25 January and asked for a report but he was overseas until 4 February. Ms Caffery says that Dr Allnut contacted the ESO team on 29 January in relation to providing a report. Ms Caffery then says that on 16 April 2019, a report was requested from Dr Allnut.

82. Neither deponent explains the delays. By the time the report of Dr Allnut was received, a decision had been made not to support the removal of electronic monitoring because of the present application.

83. The effect of the plaintiff’s submission was that at present the defendant had not, whilst under the supervision of an ESO, been progressed to Stage 4 of electronic monitoring, and that there was a risk of the defendant committing a further serious offence if the absence of monitoring occurred without the supervision afforded by an ESO. In that regard, the plaintiff pointed to what Mr Ardasinksi said in paragraph 20 of his report that although the defendant had made progress on his risk factors there were two powerful impediments to his reoffending, being his medication and his electronic monitoring. The plaintiff submitted that, in circumstances where the defendant was under no obligation to be monitored and to take his medication, there was an unacceptable risk.

84. I accept that, in the absence of an ESO, the defendant may not be compliant with his medication and that the risk of reoffending might be increased by the absence of monitoring when considered in conjunction with non-compliance with his medication. However, this situation could have been avoided by steps being taken from 7 July 2017 as the Corrective Services case notes contemplated. In any event, nothing in the case notes nor in the three current reports to which I have referred suggests other than that the defendant is complying willingly and has insight into his condition and the continuing need for the medication. His decision to remain working part-time to avoid losing his health pension card and thereby be deprived of obtaining his medication at a much reduced cost was a significant example of his motivation in that regard.

85. The Corrective Services case notes make clear that arrangements have been made, at the suggestion of Dr Allnut, for the defendant to see Luke Brabant of LSC Psychology for ongoing psychological treatment if no further ESO is ordered. Mr Brabant knows the defendant through Mr Brabant’s past work with Corrective Services. The defendant will continue to see Dr Allnut in relation to his anti-libidinal medication. Counsel for the plaintiff informed me during the hearing, without objection, that Dr Allnut is prepared to continue to see the defendant with Medicare being responsible for the cost.

86. The measure of stability in the defendant’s life over the past three years or more in terms of his accommodation, his employment and his small social network, together with the insight the defendant appears to have gained into the need for ongoing pharmaceutical, psychiatric and psychological treatment, all lead me to the conclusion that the defendant will not cease to take his medication and will not alter his pattern of living established over the past five to seven years in any significant way.

87. The plaintiff appears to accept, on the basis of the defendant’s conduct during the time since he has been out of prison on parole, that the risk of his reoffending might be low. However, the plaintiff submits that if the risk manifests itself, serious harm will be caused. The plaintiff points to what was said by Rothman J in State of NSW v Ceissman [2018] NSWSC 508. His Honour was there dealing with the Terrorism (High Risk Offenders) Act 2017 (NSW), but it may be accepted that similar principles are involved under that Act as are involved under the CHRO Act. Indeed, the Terrorism (High Risk Offenders) Act was based to a large extent on the approach taken in the CHRO Act.

88. In Ceissman, Rothman J said this:

[26]   It is further necessary for the Court to deal with the construction of the term, “unacceptable risk”, within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of “harm, hazard or loss”. In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.

[27]   The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk. Conversely, where the manifestation of a risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of its manifestation is low, but not insignificant.

[28]   A risk that is insignificant is not an unacceptable risk, and therefore not a risk in my view, with which the Court should be concerned: see State of NSW v Pacey [2015] NSWSC 1983, per Harrison J who said:

“A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

[29]   With respect to Harrison J, I adopt this eloquent encapsulation, except I would utilise the term “insignificant” instead of “very low”.

89. In that regard, the plaintiff pointed particularly to what was said by Dr Ellis in the passage set out at [64] above, that,

Mr Williamson would fall into a group of persons with a risk for serious sexual offending, offending that is statistically moderate in frequency but of a type with catastrophic consequence.

90. Accepting that that opinion was correct in 2014, reliance on it for present purposes ignores the progress that the plaintiff accepts the defendant has made in the last five years. He has now been on anti-libidinal medication for some 15 years and, on the evidence I have, has been entirely compliant with it. He was on parole for two years and on an ESO for five years and has been compliant in every respect with the conditions of those forms of conditional liberty. The only current risk assessment that I have rates his risk of reoffending as average. The evidence I have from the very experienced psychologist who so rates him is that his dynamic risk falls in the lower end of the moderate risk range for sexual reoffending. I also take into account the fact that the offending forming the basis for the present application took place over a nine month period some 29-30 years ago when the defendant was aged 20.

91. I do not overlook the enormity of the crimes committed by the defendant, and I do not overlook the paramount consideration the CHRO Act requires, being the safety of the community.

92. There is certainly evidence suggesting that the defendant is at risk of committing further serious offences but that is not the test the CHRO Act stipulates. Any judge before whom an application for an ESO comes must be satisfied to a high degree of probability that the defendant is an unacceptable risk of committing a further serious offence. Whilst my task dealing with an ISO is not to predict the result for the outcome of an ESO application I have to be satisfied on a prima facie basis that the order should be made. That is, I must be satisfied that the facts, if proved, would justify the making of an order because the defendant is found to be an unacceptable risk to that high degree of satisfaction.

93. In my opinion, the matters alleged in the supporting documentation put forward on the present application would not, if proved, justify the making of an extended supervision order because the Court could not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence.

Conclusion

94. I make the following order:

1. Summons dismissed.

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Amendments

25 July 2019 - The interim orders made by Davies J on 26 June and extended on 2 July and 11 July 2019 vacated.

25 July 2019 - The interim non-publication orders made by Davies J on 26 June and extended on 2 July and 11 July 2019 vacated.

Decision last updated: 25 July 2019