State of New South Wales v Wilson (Preliminary)

[2017] NSWSC 1367

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367
Hearing dates:	7 September 2017
Decision date:	11 October 2017
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	The plaintiff’s summons is dismissed.
Catchwords:	HIGH RISK SEX OFFENDER – preliminary hearing – orders sought by the State – orders opposed – whether matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order – summons dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 61C, 61J, 61K, 90A Crimes (Amendment) Act 1989 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5I, 6, 7, 9, 10A Crimes (Serious Sex Offenders) Act 2006 (NSW)
Cases Cited:	Anderson v State of New South Wales [2016] NSWCA 86 Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales [2016] NSWCA 57 R v Glen Barry Wilson (Court of Criminal Appeal, 20 November 1998, unreported, Wood CJ at CL, James and Adams JJ) R v Glen Barry Wilson (Court of Criminal Appeal, 8 February 1991, unreported, Hunt, Campbell and Newman JJ). State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Sharpe [2017] NSWSC 469 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Wilde [2014] NSWSC 305
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Glen Barry Wilson (Defendant)
Representation:	Counsel: Mr P Coady (Plaintiff) Ms A Hawkins (Defendant)   Solicitors: NSW Crown Solicitor (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2017/00235046
Publication restriction:	Nil

Judgment

1. By summons filed on 2 August 2017, the State of New South Wales (“the State”) seeks an extended supervision order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of Glen Barry Wilson on the basis that he is a high risk sex offender.

2. As required by s 7(3) of the Act, a preliminary hearing was held on 7 September 2017. At the hearing, the State sought orders that that two experts be appointed to examine the defendant and that he be made subject to an interim supervision order (“ISO”) for 28 days from 13 October 2017 under ss 7(4) and 10A of the Act respectively.

3. The State formally read on its application an affidavit of Anders Mykkeltvedt affirmed 28 July 2017 (with the Exhibit AM-1) and affidavits of Kenny Ng affirmed 2 and 23 August 2017 with annexures. This supporting documentation will be considered in some detail below. That material was provided in accordance with s 6(3) of the Act, which provides that an application such as this must be supported by specified documentation that addresses the matters to which s 9(3) of the Act refers and that includes a “report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.”

4. The defendant opposes the orders sought.

5. If I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make the order appointing experts under s 7(4). For the reasons that follow, the State has failed to satisfy me that this is the case. It follows that the application must be dismissed: s 7(5) of the Act.

6. The defendant is a 50-year-old man with a lengthy history of general criminal offending commencing in the Children’s Court when he was 11 years old. Since May 1985, he has spent more than 29 years in custody and just over two years in the community, with the longest continuous period spent in the community being six months.

7. The defendant’s criminal history is varied. Significantly, it includes two instances of serious sexual offending. Those offences occurred in 1989 and 1994 respectively, the latter being committed on another inmate whilst in custody. It is now 23 years since the defendant last committed any sexual offence. His criminal history is complicated by the fact that he was not apprehended for the 1989 offences until 2010. He was sentenced in relation to those offences on 23 March 2012 by Haesler SC DCJ, who imposed an aggregate term of imprisonment for seven years with a non-parole period of four years and six months. The defendant was released to supervised parole on 16 June 2017. His parole period expires on 13 October 2017.

8. Before turning to address the material placed before me on this application, it is pertinent to have regard to the relevant statutory provisions.

Relevant law

9. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of, inter alia, high risk sex offenders so as to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders “to undertake rehabilitation”.

10. The formal requirements for an application for an ESO are set out in s 6 of the Act. The originating summons must specify the nature of the application: s 6(1) of the Act. In this matter the application was specified as being for a high risk sex offender ESO. The State also complied with the requirement in s 6(2) of the Act that the summons be filed within six months of the expiration of an offender's current supervision.

11. Section 5H of the Act provides that the State may apply to the Supreme Court for an ESO in respect of an offender, but only if as at the time of filing the application the offender is a “supervised sex offender”: s 5I(1) of the Act.

12. “Sex offender” is defined in s 4 of the Act as meaning a person over the age of 18 years who has at any time been sentenced to imprisonment following conviction for a “serious sex offence”.

13. Section 5(1) of the Act defines “serious sex offence” as meaning, inter alia, an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for seven years or more and, in the case of an offence against an adult, is committed in circumstances of aggravation. The definition of “serious sex offence” also includes an offence that was not a serious sex offence at the time that it was committed but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order is made under the Act: s 5(1)(c1). The definition of “serious sex offence” also includes an offence under s 61K of the Crimes Act.

14. One of the offences in relation to which the defendant is currently on parole is contrary to s 61C(1)(a) (Sexual assault category 2 – inflicting actual bodily harm etc with intent to have sexual intercourse) of the Crimes Act. That section was repealed in 1989 by the Crimes (Amendment) Act 1989 (NSW) and replaced by s 61K. In any event, the defendant was convicted in 1997 of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act, the circumstance of aggravation being that at the time of, or immediately before or after the commission of the offence, the defendant maliciously inflicted actual bodily harm on the victim.

15. A “supervised sex offender” is a person who, when the application for an ESO is made, is in custody (whether serving a sentence or pursuant to a continuing detention order) or under supervision pursuant to an existing ESO: s 5I(2) of the Act.

16. It is common ground that at the time this application was made the defendant was a supervised sex offender.

17. Section 10A of the Act provides that the Supreme Court may make an ISO if, in proceedings for an ESO, it appears to the Court that the offender’s current custody or supervision will expire before the proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO.

18. The defendant’s current custody will expire on 13 October 2017. The remaining issue is thus whether it appears to me that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO.

19. Section 5B(1) of the Act relevantly provides that an offender can be made the subject of a high risk sex offender ESO as provided for by the Act “if and only if” the offender is a “high risk sex offender”. In Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340, McClellan CJ at CL (as his Honour then was) observed at [34]:

“The caution that an order can only be made “if and only if” the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person’s liberty.”

20. Section 5B(2) of the Act defines a “high risk sex offender” as being an offender who is a “sex offender” and whom a judge of this Court is satisfied to a “high degree of probability” poses an “unacceptable risk” of committing a serious sex offence if he or she is not kept under supervision.

21. It has been held that the test of being satisfied to a “high degree of probability” in s 5B(2) is a standard of proof higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the test is a high one, it is important to note that the Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an “unacceptable risk” of committing a serious sex offence: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].

22. The phrase “unacceptable risk” is not defined in the Act but has received judicial consideration. In Lynn v State of New South Wales [2016] NSWCA 57 (“Lynn”) Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an “unacceptable risk” is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase "unacceptable risk" is to be given its everyday meaning within its context and having regard to the objects of the Act. The evaluation is “…directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection” (at [61]).

23. In State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280, the Court of Appeal (Beazley P, Macfarlan and Leeming JJA) observed at [74] that the concept of “unacceptable risk” is “…apt to involve a wide-ranging evaluative assessment.”

24. The making of an ESO is discretionary. Once satisfied that an offender is a high risk sex offender, s 9(3) of the Act provides a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO. Those matters are as follows:

1. the safety of the community (s 9(3)(a));

2. the reports received from the persons appointed under s 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination (s 9(3)(b));

3. 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 relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment (s 9(3)(c));

4. 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 relevant offence (s 9(3)(d));

5. any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1));

6. 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 (s 9(3)(e));

7. 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 (s 9(3)(f));

8. 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 (s 9(3)(g));

9. 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 (s 9(3)(h));

10. the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1); and

11. any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order) (s 9(3)(i)).

25. As Beazley P observed in Lynn at [48], the mandatory considerations in s 9(3) of the Act are applicable in the exercise of the statutory power to make an ESO and not to the anterior determination of whether an offender poses an unacceptable risk. Despite this, the criteria in s 9(3) are still relevant to the question of whether a person poses an “unacceptable risk” of committing a serious sex offence if not kept under supervision: per Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [48]

Supporting documentation

The facts of the “index” offence

26. Before turning to consider the supporting documentation upon which the State relies, I will first set out the facts of the offence for which the defendant is currently serving a sentence and which enables the State to bring this application.

27. In October 2010, the defendant was charged with sexual offences that occurred in 1989. He was identified as the potential assailant as a result of the Cold Case Project. A judge-alone trial proceeded before Haesler DCJ, who on 27 January 2012 found the defendant guilty of three counts: detain for advantage, namely, sexual intercourse, contrary to s 90A of the Crimes Act, sexual intercourse without consent contrary to s 61D(1) of the Crimes Act, and malicious infliction of actual bodily harm with intent to have sexual intercourse contrary to s 61C(1)(a) of the Crimes Act.

28. His Honour accepted the complainant’s version of events. He summarised her evidence, relevantly, as follows:

“[The complainant’s] version of events was based solely on her memory. Her original statement was lost, the one provided to the defence was prepared in 2010. She told me that on 3 February 1989 she was walking from Leumeah Railway station to the house of her then boyfriend, [name]. As she waited to cross Pembroke Road, a major traffic artery, a man on a motorcycle drove slowly past her. Soon after, she believes the same man, on the same motorcycle, rode alongside her as she walked down the side street, Angle Road. He was wearing a black open-faced helmet. His motorcycle was black and silver. He screamed at her. He accused her of trying to steal his motorbike. She thought he was crazy. He said he would take her to the police station. She agreed to go with him so as to get help or to get to the main road in order to get away from him. She would not hop on his bike. He left it at a house on the corner of Angle Road and Woronora Ave; later identified as number [X]. She did not seek help from people at this house. She said that she could not run as her work shoes were really slippery. She was scared and afraid. She wanted to get to a main road so as to be out in the open.

She and Black Helmet went back up Angle Road towards the shops. He grabbed her and pulled her to his side, away from the roadside and possible assistance from motorists or other pedestrians. Black Helmet kept hold of her and they walked into the park between Pembroke Road and Angle Road beside Anna Creek. She was trying to stay on the footpath which went to Pembroke Road. He was trying to steer or nudge her towards the bushland near the creek. The ended up near a fence behind the houses which backed onto the creek. She was crying. He got angry. He grabbed her by the shoulders and head butted her with his helmeted head. She stopped crying and his mood changed. They sat down near the fence. She cannot now recall the whole conversation.

A man on a pushbike road [sic] past. [The complainant] formed an impression Black Helmet was daring her to ask for help; she did not as she was scared. She said, “No, no it’s all right”. It was then he told her she “sucked cock really well”. He told her that if she gave him a head job he would let her go. She was terrified. She put her head in his lap. His penis was in her mouth. He was pushing her head down. She now has no idea how long this went on for. After it stopped, they stood and he ushered her to a table and bench close to Pembroke Road but also close to the bush.

One part of this conversation that stuck with her was his threat to take of his helmet and use it to break her jaw. She was scared by this because he had not let her go as promised. She screamed, “Just do it then”. Black Helmet’s mood then changed. He became all “lovey dovey” for five minutes. He said he wanted to go for a walk. Again, he tried to steer her to the creek while she was trying to go to Pembroke Road. He succeeded, as her shoes were slipping on the grass. When he got up to the top of the creek bank she “freaked out” and threw herself on her backside. He then went to her front and dragged her down into the creek bed. She could see the tunnel under the road. She feared he would take her into the tunnel and kill her. He had earlier told her he had a weapon in his boot.

[The complainant’s] uniform was open. Her breasts were exposed. He grabbed her mouth. He punched her to the face. He was on top of her. She punched him back but was only able to hit his helmet. She could not feel any pain. She stopped screaming, yelling and punching. He moved up and down on her as if having intercourse. She did not feel anything. He stopped and got off her. She got to the top of the creek bank and her breasts were still exposed. She recalls a passing motorist waving.

Black Helmet’s behaviour changed again. He became affectionate and he spoke of marriage. She thought he was in “Fantasyland” but responded “nicely” so he would let her go. He asked her about herself and her family. He told her his name; “something like David”. He gave her a kiss and let her go.

[The complainant] ran to Leumeah and took refuge in a Fish and Chip shop where she was given a cup of tea. She telephoned her mother.

Her mother arrived. Her then boyfriend, [name] was with her. [The complainant] was taken to Campbelltown Police Station soon after. Later that evening her mother took her to Liverpool Hospital where she spoke to and examined [sic] by a female doctor at the special clinic for rape victims. The underpants she was wearing that day were taken.”

29. The complainant’s underpants tested positive on the presumptive test for semen. The portions of the underpants that were tested were sealed and stored at the Division of Analytical Laboratories (“DAL”). In 2009, the stored sample was tested as part of the Cold Case Justice Project and a male DNA profile obtained. That DNA profile matched the profile of the defendant.

29. The defendant’s case at trial initially focused on testing the plausibility of the complainant’s version of events and possible issues with the records concerning the items collected from the complainant. Later in the trial the defence sought to recall the complainant to put a positive case to her. That positive case was that the defendant engaged in consensual sexual acts with the complainant and her then boyfriend at the same time. The complainant’s former boyfriend had had contact with the defendant in custody. The boyfriend gave evidence in chief, but subsequently resiled from that evidence and gave evidence in the defence case consistent with the defendant’s version. Haesler DCJ completely disregarded that evidence and found that the account of a consensual sexual encounter was a recent invention. His Honour also observed that the accused “appeared to invent things as he went along” and was not prepared to accept anything that the defendant said unless it was supported by other credible evidence or was inherently likely.

30. A letter written by the accused in which he indicated that he had no recollection of the event was tendered in the Crown case. This was inconsistent with the positive case that he ultimately put at trial.

Factors in s 9(3) of the Act

32. I propose to address the material in the supporting documentation under headings that correlate with the mandatory considerations in s 9(3) of the Act, albeit not in the same order. Although the Court is not required to consider all of these factors in a preliminary application such as this, it seems to me that they are nonetheless relevant to my determination.

The offender’s criminal history/pattern of offending behaviour: s 9(3)(h) of the Act

33. The defendant was born on 7 February 1967 in Sydney. A report of Tim Watson-Munro dated 14 March 2012, which was prepared for the defendant’s most recent sentence proceedings before Haesler DCJ, records that he has six sisters, that he has never married, and that he has three children. It is unclear what sort of childhood the defendant had as he has given different accounts on different occasions. What is apparent on the material before me is that the defendant’s criminal history began in the Children’s Court in 1978, when he was 11 years old. Patrick Sheehan, psychologist, observed in a report dated 30 July 2003, which was prepared for a previous parole hearing in 2003, that it is clear from the defendant’s criminal record that he spent a significant part of his adolescence confined to institutions.

34. There are differing accounts as to when the defendant left school. He told Mr Sheehan that he left school at the beginning of Year 9 as soon as he was legally entitled to do so, whereas he told Mr Watson-Munro that he left school when he was 13 years and nine months having only completed Year 7.

35. Since the defendant turned 18, he has been convicted on 15 separate occasions of a total of 35 offences, putting to one side his sexual offences.

36. On 24 September 1985, the defendant was sentenced at the District Court at Campbelltown to a total of two years’ imprisonment for larceny, attempt break, enter and steal and break, enter and steal. On 14 October 1987, he was sentenced at the Local Court at Liverpool to 18 months’ hard labour for two offences of break, enter and steal and one offence of stealing. On 28 July 1987, he received three separate fines at the Local Court at Campbelltown for offensive behaviour and for failing to supply information and stating a false name and place of abode. On that day, he was also sentenced to six months’ hard labour for driving whilst disqualified, refusing a breath test and speeding and three months’ hard labour for resisting arrest and goods in custody.

37. The defendant committed the offences for which he is currently on parole on 3 February 1989.

38. On 1 August 1989, the defendant was sentenced at the District Court at Campbelltown to six years’ imprisonment for break, enter and steal and two years’ imprisonment, which was cumulative upon the sentence of imprisonment for six years, for larceny of a motor vehicle. He was sentenced at the same time in relation to offences to which he had pleaded guilty, namely, escape lawful custody, assault police, and malicious injury. The total term of imprisonment was nine years, with a non-parole period of three years. He unsuccessfully appealed to the Court of Criminal Appeal (“CCA”) against his convictions: R v Glen Barry Wilson (Court of Criminal Appeal, 8 February 1991, unreported, Hunt, Campbell and Newman JJ).

39. On 1 March 1990, the defendant was sentenced at the District Court at Wollongong to a fixed term of imprisonment for one year for stealing a motor vehicle, a fixed term of imprisonment for four years for maliciously discharging a firearm with intent, and a minimum term of six years, with an additional term of two years, for armed robbery.

40. On 16 June 1994, whilst in custody, the defendant sexually assaulted another inmate. He was charged with one count of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act. He pleaded not guilty and appeared for himself at a judge-alone trial before Shillington QC DCJ. He was convicted and, on 18 March 1997, was sentenced to a non-parole period of six years’ imprisonment with an additional term of two years.

41. He unsuccessfully appealed to the CCA against his conviction and applied for leave to appeal against his sentence: R v Glen Barry Wilson (Court of Criminal Appeal, 20 November 1998, unreported, Wood CJ at CL, James and Adams JJ). The facts of the offence were summarised in that judgment as follows:

“At about 4pm on 16 June 1994, the complainant was in his cell at the Junee Correctional Centre. The appellant and another inmate, Owens, entered his cell and informed him that they were going to have sex with him, and that they did not care what he said or did as, they were going to be "tipped"(ie transferred from Junee), the next day.

The complainant replied that he did not want anything to do with such activity and asked them to leave. The appellant punched the complainant in the stomach twice. The complainant pressed the intercom buzzer which was connected to the control pod where unit officers were located. When an officer replied, the complainant said that he was being harassed by two people in his cell and needed help. The line went silent, then the appellant spoke into the intercom saying 'Its [sic] okay chief, we're only mucking around."

The complainant was then forced onto the bed, where he was repeatedly punched to the face and stomach by the two inmates. Owens left the cell, locking the door behind him, and leaving the appellant alone with the complainant. After a struggle, the appellant slammed the complainant's head against the wall of the cell and had forced anal intercourse with him. After he finished he said to the complainant, "How about I let my friend in to have a go at you". When he opened the door, the complainant ran out, whereupon he was punched and kicked by Owens, by the appellant, and by a third person, Singh, who came by the scene.

A prison officer went to the complainant's assistance and broke up the disturbance. The altercation in the corridor was picked up on the Krammer video system, but the tape was re-used when the complainant indicated an initial preference not to press charges. One officer who viewed the tape however, confirmed that Owen and Singh could be seen kicking and punching the complainant.

The complainant was treated in the prison hospital and examined by a prison doctor to whom he gave an account of having been bashed and raped. The doctor noted him to be distressed. The complainant was found to have suffered a cut above his right eye that required sutures, as well as bruising to his face, chest and lower back. Semen was detected on interior and exterior anal smears. It was reported that DNA from that semen could have originated from the appellant. Approximately one person in five thousand had the relevant combination of DNA types found.”

42. Considering the application for leave to appeal against sentence, the CCA observed:

“It is true that the sentence was a heavy one, and that it was backdated to commence from the expiry of the minimum term which the appellant was serving at the time of the offence. It was, however, necessary for his Honour to impose a sentence that reflected the objective criminality of what amounted to a brutal act on the part of the appellant. The available maximum for the offence of aggravated sexual intercourse without consent is penal servitude for twenty years. This case fell into the category of a very serious offence within the broad range of circumstances that might attract S 61J of the Crimes Act.”

43. On 13 January 1999, whilst still in custody serving his sentence for the above offence, he defendant was sentenced at the Local Court at Goulburn to a fixed term of imprisonment for one month for destroying or damaging property. On 28 May 1999, he was sentenced at the Local Court at Goulburn to a fixed term of imprisonment for six months for common assault.

44. On 9 July 2004, the defendant was released on parole. He had been in custody continuously since 23 March 1989.

45. On 13 December 2004, the defendant received fines at the Local Court at Nowra for various traffic offences.

46. He returned to custody on 21 December 2004, having been charged with aggravated break, enter and commit serious indictable offence and other offences. On 30 March 2006, he was sentenced at the District Court at Nowra to imprisonment for three years and four months, with a non-parole period of two years and six months, for the aggravated break, enter and commit serious indictable offence.

47. On 19 November 2008, the defendant was sentenced at the Local Court at Nowra to two years’ imprisonment with a non-parole period of 12 months for break, enter and steal. He received concurrent sentences of nine months’ imprisonment for three traffic offences.

48. On 22 February 2010, the defendant received concurrent sentences of imprisonment for three months for two further traffic offences. On 24 August 2010, he received a suspended sentence of imprisonment for seven months for driving whilst disqualified.

49. On 14 October 2010, the defendant was charged with the 1989 offences. He was in custody from that date until he was granted parole on 16 June 2017.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1) of the Act

50. Judge Haesler noted that even though there “…can be no optimism that the offender will change his ways”, the defendant’s arrest for the 1989 offences following his release in 2010 did not give him a real chance “…to prove himself in the community.” His Honour noted that the defendant had become institutionalised. It was stated:

“Given his past there is a real risk that the State Parole Authority will eschew risk by refusing parole. I would not recommend such a course. The offender must eventually be released into the community. It is very much in the community’s interests that he be closely supervised in the community for as long as possible and given every assistance adapting to or in his case, learning to live a normal community life. He may need a graduated release into the community through something like a COSP centre. Efforts must be made to prevent further recidivism.”

51. It was noted by his Honour that there had been little opportunity for the defendant to demonstrate his capacity for reform given the close proximity of his offending to his release. The defendant expressed in his evidence a wish to rehabilitate himself so that he could “fulfil the role of father” to his daughter. His Honour noted that, in order to do so, the defendant would need to demonstrate that he could be trusted on parole, which he had not done to date. His Honour had no confidence that leniency would lead to reform.

52. His Honour expressed a view that the evidence that the defendant gave on sentence could not be accepted unless independently corroborated.

Expert risk assessment report: s 9(3)(c) and (d)

53. In accordance with s 6(3)(b)(i) of the Act, the State’s application was accompanied by a report of a registered psychologist that assesses the likelihood of the defendant committing a further serious sex offence. Samuel Ardasinski, registered psychologist, prepared a “Risk Assessment Report” dated 15 March 2017, having examined the defendant via AVL from custody on 9 March 2017.

54. Mr Ardasinski noted that the defendant was cooperative and appropriate and oriented to time and place without any signs of major mental illness or disorder of thought or perception. It was noted that, although the defendant was initially measured in his responses, he later suggested that he was being “…more open with the author than he had been with anyone previously about his dislike of prison and his desire to move on with his life.” Mr Ardasinski stated that the defendant impressed as functioning within normal limits of intelligence.

55. Mr Ardasinski recounted the defendant’s background of sexual and non-sexual offending. He set out the facts of the 1989 index offences as found by Haesler DCJ and noted that the defendant denied that version. The defendant gave a version of events that included an assertion that the victim had fabricated the allegation of sexual assault in order to obtain victims’ compensation. He told Mr Ardasinski that he in fact knew the victim and her then boyfriend, and that they had participated in a consensual “gang bang” during which he ejaculated into the victim’s underwear. He said that his denial of the offending conduct was the basis for his refusal to participate in sex offender treatment in custody.

56. The defendant indicated a similar attitude to the serious sex offence committed in 1994 against a fellow prisoner. He reported to Mr Ardasinski that the offence was a consensual “gang bang” between him, the victim, and three or four other prisoners. He again opined that the victim had falsely accused him of sexual assault in order to obtain victims’ compensation.

57. Mr Ardasinski noted that it appeared that the defendant had only been at liberty in the community for periods of a few months before being returned to custody. His parole had been revoked on several occasions. The defendant told Mr Ardasinski that he had been “going good” in the community prior to his arrest in 2010 for the 1989 offences, without the need to resort to criminal activity to fund his lifestyle. Mr Ardasinski stated it appeared that the defendant had indeed demonstrated better compliance with supervision during that period than he had previously. He reported that the defendant expressed a desire to make a “fresh start” in Queensland, where his immediate family resides, without the constraint of supervision in New South Wales.

58. The defendant is considered untreated from the perspective of sexual offending. He has never participated in the custody-based intensive treatment program (“CUBIT”) run by Corrective Services NSW for sex offenders, despite what Mr Ardasinski described as “ample opportunity” to do so. He was most recently offered a place in CUBIT at the MSPC, Long Bay on 16 November 2014. He declined that offender, stating that, “I do not wish to discuss the matter, the offence is old and I don’t believe I would gain anything.” He has, however, completed programs aimed at addressing his substance abuse issues, including “EQUIPS-Addiction” and “Getting SMART”.

59. The defendant has completed little vocational training in custody.

60. As for risk assessment, Mr Ardasinski acknowledged that it is not possible to predict whether or not an individual offender will or will not reoffend. He noted that the risk assessment process combines the use of actuarial approaches and assessment of individual dynamic factors that have contributed to sexual offending.

61. The defendant has recently been assessed as having a high level of risk/needs according to the Level of Service Inventory – Revised (“LSI-R”), an actuarial risk assessment instrument used by Corrective Services NSW to assess risk of re-offending generally.

62. Mr Ardasinski administered the STATIC-99R, an actuarial risk assessment instrument designed to assess risk of sexual recidivism. The result of that assessment, a score of 6, would previously have placed the defendant in the high-risk category relative to other male sex offenders. Following revisions to the STATIC-99R, the category of risk relating to a score of 6 or above is now described as “well above average” risk, or Level IVb. The rate of recidivism for those with a score of 6 is estimated to be four times higher than that of the “typical” sex offender. (Mr Ardasinski noted that the rate of reoffence does not relate only to “serious sex offences” within the meaning of the Act, but rather to sexual offending generally.) Previous STATIC-99 and STATIC-99R assessments placed him in the moderate to high (2000 and 2012) and high (2013) risk categories relative to other male sex offenders.

63. Mr Ardasinski also assessed the defendant’s dynamic, or changeable, risk factors. He administered the Risk of Sexual Violence Protocol (“RSVP”), a structured professional judgment tool that permits the assessor to derive an overall risk estimate from the total “risk information”. Using the RSVP, Mr Ardasinski considered that the defendant presents a “Moderate-High” risk of committing further “sexual violence”.

64. It was noted that the RSVP testing identified the defendant’s risk factors as antisocial lifestyle; substance abuse; relationship deficits; lack of work ethic and skills; denial and minimisation/failure to engage in treatment; and poor cooperation with supervision. After referring to the defendant’s criminal history and limited time spent living pro-socially in the community, Mr Ardasinski opined that:

“The antisocial attitudes which permit the continuance of such a lifestyle would, by now, be quite entrenched and would require some radical difference the next time he is released to shift them – whether this is in the form of high-intensity treatment, intensive supervision or a work placement with a great deal of flexibility and support, it will need to be significantly different to the previous times he has been released from prison.”

65. Mr Ardasinski stated that a return to problematic drug and/or alcohol use would heighten the defendant’s risk of re-offending, although he considered that that risk may be one of general, rather than sexual, re-offending. His lack of education and work skills will render it difficult for the defendant to obtain employment in the community, with the risk that he will again resort to crime to fund his lifestyle. However, the defendant reported to Mr Ardasinski that he had received the Disability Support Pension during his most recent period at liberty and found that level of income adequate.

66. Mr Ardasinski then proceeded to hypothesise as to why the defendant committed the offences that he did and the way in which he may find himself committing further sexual offences. He writes:

“Based on the available information it is hypothesised that Mr Wilson’s sexual violence has occurred when he has been sexually preoccupied, or feels a sense of sexual entitlement, and he has the opportunity for vulnerable victim access. His choice of victims in Mr Wilson’s sexual offending appears opportunistic and impulsive, by and large. Due to his denial of a lack of consent in each of his sex offence convictions, it is difficult to hypothesise further as to the other likely contributors to his risk for future sexual violence. The criminal thinking which has resulted in his lengthy history of imprisonment (eg having the entrenched belief, “I’ll take what I want”) is likely also responsible for his decisions to offend sexually in the past.

If Mr Wilson were again to return to a community existence, a new offence could result from a number of different scenarios, although since Mr Wilson’s recoded [sic] offending history has only involved two sexual offences, the possibilities for repeat serious sexual offences are more limited. Nevertheless, it cannot be discounted that Mr Wilson may engage in a sexual attack upon a random female stranger walking alone at night, as he was convicted of doing in 1989. Since Mr Wilson appears more likely to engage in a Break & Enter-type offence, a novel scenario for possible future sexual violence would involve his encountering a vulnerable female victim within this context and taking the opportunity to offend against her sexually. Such an offence would also possibly involve physical coercion to gain victim compliance, and depending on the type of company Mr Wilson has kept in the lead-up to such a scenario (break into house to steal – encounter vulnerable female – sexually offence), there would be the possibility of offences being committed in company in such a scenario, since Mr Wilson has committed break-ins in company before, and his sexual offending in custody was also committed in company with others.

On the balance of the evidence the above high risk scenarios may result in similar levels of sexual violence to that committed by Mr Wilson previously. Mr Wilson does not appear to be at imminent risk of re-offending by virtue of the fact that he remains incarcerated as at the time of writing. Should Mr Wilson be released to the community without supervision, the risk of his committing a new Break & Enter offence are [sic] significant, and the risk involved in committing break-ins, where victims are encountered within the context of such events (thefts becoming robberies and assaults) may indicated that a new serious sex offence is entirely possible. But a new serious sexual offence may not be the most likely scenario for future criminality, given the length of time since Mr Wilson was last sanctioned for an act of sexual violence, his myriad other needs in relation to reintegrating into the community after so many years in prison, and his existence during his most recent period under community supervision, which suggests that he has the capacity to exist in the community for some months without resorting to new offending.”

67. With respect to the defendant’s overall risk, Mr Ardasinski’s conclusion is stated as follows:

“The overall totality of evidence suggests that the defendant falls in the Moderate-High risk category of sexual offending relative to other adult male sexual offenders. Since his previous sexual offending has been ‘serious’ in nature, it is possible that any future sexual violence or other criminal offending could approach the threshold of a “serious sexual offence” as defined in the Crimes (High Risk Offenders) Act 2006. However, it is considered on the balance of the evidence that The defendant is more likely to engage in non-sexual criminality than a new sex offence upon his release to the community, with his history of Break-and-Enters and other such offending more recent and more prevalent on his record.”

Risk management report: s 9(3)(d1) of the Act

68. Also before the Court was a Risk Management Report under the hand of John Devoy, Extended Supervision Order Team Unit Leader, dated 7 August 2017.  Mr Devoy set out the defendant’s prior management by Community Corrections, his current circumstances, his risk of re-offending with identified risk factors, and his risk management plan.

69. Mr Devoy noted that, after his release from custody on 16 June 2017, the defendant was assessed on 22 July 2017 by a Corrective Services NSW (“CSNSW”) psychologist who proposed ongoing psychological intervention. Mr Devoy also noted that, given the defendant’s history of drug and alcohol use, he is tested for alcohol and drugs as part of his parole conditions. He noted that a drug test on 24 June 2017 returned a positive result for unprescribed Buprenorphine. The defendant was subsequently referred to opiate replacement treatment and is now prescribed suboxone.

70. Mr Devoy proposed a risk management plan in response to the risk/criminogenic needs identified by Mr Ardasinski in his report. The strategies proposed include weekly interviews, field visits (including surveillance and observations), interactions with involved third party contacts, schedule of movements with electronic monitoring and curfews, referral to Forensic Psychology Services for individual risk management sessions, referral to alcohol and other drug services for an assessment of needs in relation to substance abuse, alcohol and drug testing to ensure abstinence, and non-association and place restrictions.

Willingness to participate in rehabilitation programmes (s 9(3)(e))

71. As noted by Mr Ardasinski, the defendant has successfully participated in rehabilitation programs targeting his problematic drug and alcohol use, namely EQUIPS-Addiction and Getting SMART. Mr Sheehan noted in his 2003 report that the defendant had participated in an anger management program in custody. He has refused to participate in CUBIT and in Violent Offender Therapeutic Programs (“VOTP”), which had been considered to be a viable alternative to CUBIT if supplemented by sex offence-specific work.

72. Mr Ardasinski set out the history of the defendant’s refusal to participate in relevant treatment programs in his Risk Assessment Report in detail as follows:

1. On 12 October 2000, the defendant consented to a referral to Sex Offender Programs. He described the 1994 sexual offence in custody as, “We had sex!” As previous cognitive assessments had indicated that the defendant was in the impaired range, further assessment was required.

2. During an assessment for classification, the defendant told a psychologist that he had applied for programs but had not been accepted.

3. On 5 September 2001, Community Corrections was advised by the therapeutic manager of CUBIT that the defendant was unsuitable for placement due to his security classification and assessed cognitive function (which has since been re-assessed and found to be in the average range).

4. In February 2002, the defendant was informed by CUBIT that he could not be transferred to the unit in which CUBIT was run for security reasons.

5. On 24 October 2002, the defendant declined a place in CUBIT.

6. On 27 February 2003, the defendant refused to be referred to Sex Offender Programs.

73. The defendant was in custody for non-sexual offences between 2004 and 2010 and was not approached for participation in sex offender treatment. Mr Ardasinki set out the chronology of his interaction with CUBIT from 2012 as follows:

1. On 13 April 2012, the defendant consented to a referral to Sex Offender Programs. He described the 1989 offences as, “1988 till 2010 she repressed memories we had group sex.”

2. On 7 March 2012, the defendant was assessed as suitable for CUBIT.

3. On 12 September 2012, the defendant was offered a place in CUBIT a Cessnock Correctional Centre. He declined, stating that, “I would like to be offered a place at the Long Bay CC program rather than Cessnock CC.”

4. On 16 November 2014, the defendant was offered a place in CUBIT at Long Bay. He again declined and said that, “I do not wish to discuss the matter, the offence is old and I don’t believe I would gain anything.”

5. On 20 January 2016, the defendant refused to consent to a referral to VOTP.

6. In interview with Mr Ardasinski on 9 March 2017, the defendant confirmed that he would never participate in sex offender programs.

74. A case note on the Offender Integrated Management System (“OIMS”) on 11 April 2017 noted that the defendant had indicated that he did not like groups, but would prefer to undertake intervention on a “one on one” basis.

Compliance with previous parole orders (s 9(3)(f))

75. Mr Ardasinski noted in his Risk Assessment Report that documentation prepared by CSNSW described the defendant’s response to supervision as “unresponsive”. He has had his parole revoked on several occasions. However, Mr Ardasinski acknowledged that:

“His most recent period under community supervision (in 2010) appears to have been a genuine attempt to utilise the supervision process appropriately, and as he was returned to custody on minor offences only, and then charged with a historical sex offence, it may be that Mr Wilson’s history of poor compliance with supervision is over.”

76. The defendant has never committed a serious sex offence or offence of a sexual nature whilst on parole.

77. The defendant became eligible for parole on 13 April 2015. Parole was refused on 13 February 2015 because, among other things, the defendant had not participated in CUBIT, had no suitable post-release accommodation, and did not seek parole. A pre-release report dated 2 February 2016 declined to support the defendant’s release on parole. A further pre-release report dated 6 February 2016 again declined to support release on parole. On 13 February 2017, the defendant was assessed as unsuitable for placement at Nunyara Community Offender Support Program (“COSP”) because of his potential risk to staff and unwillingness to engage with Community Corrections staff. A supplementary pre-release report dated 11 April 2017 requested a standover period pending the outcome of a review of the defendant’s application for accommodation at Nunyara COSP.

78. There was then what was described by counsel for the State as a “rapid turnaround”. On 23 May 2017, the defendant was assessed as suitable for Nunyara COSP. On 25 May 2017, parole was recommended on the basis that the defendant would live at Nunyara COSP and be supervised by the Extended Supervision Order Team (“ESOT”). He was granted parole on 9 June 2017 and released on 16 June 2017.

79. The defendant has been on parole since 16 June 2017. Some of his behaviour on parole has been less than optimal. During a review conducted at Nunyara COSP on 28 June 2017, he claimed that his parole officer was Peter Severin as he was “a special case”. It is to be noted that Peter Severin is the Commissioner of Corrective Services NSW. He also claimed to have no involvement with drugs or alcohol and, when prompted to be honest, said, “Nah, I don’t have to say shit, I am not talking about nothing.” He has expressed displeasure on several occasions about residing at Nunyara COSP. On 20 July 2017, a random room search revealed five undeclared tablets. However, he seems to have been substantially compliant with his parole conditions.

Any other relevant information: s 9(3)(i))

80. There was evidence before Haesler DCJ at sentence that the defendant had formed a relationship and fathered a child with a woman in Nowra. OIMS notes dated 29 June 2017 indicate that that woman would be content for the defendant to reside with her.

81. The defendant has a long history of drug and alcohol abuse. He reported to Mr Sheehan in 2003 that he commenced using large quantities of alcohol at the age of 14 and that he used heroin in custody from 1994 to 1999. He told Mr Watson-Munro in 2012 that he started using cannabis at the age of 13 and “speed” in 16.

82. Mr Ardasinski in his Risk Assessment Report indicated that the defendant had no history of any major mental illness. In interview with Mr Ardasinski, the defendant acknowledged a history of depression and anxiety.

The safety of the community: s 9(3)(a)

83. Section 9(3)(a) requires that I have regard to the safety of the community. I note that s 3 of the Act provides that this is the primary object of the Act.

Submissions on behalf of the State

84. Mr Coady, who appeared for the State on this application, provided detailed written submissions. He emphasised the following matters in his oral submissions.

85. First, the defendant has committed two separate sets of offences involving serious sexual violence. Both of them involved the deprivation of the victim’s liberty. Both involved the infliction of physical violence in addition to sexual violence. In each episode of sexual violence the defendant committed an offence falling within the definition of a “serious sex offence” within the meaning of s 5 of the Act. It was conceded that the offences were committed some time ago, but reliance was placed on the decision of the Court of Appeal in Anderson v State of New South Wales [2016] NSWCA 86 (Bathurst CJ, Beazley P and Leeming JA). In that case, the fact that the defendant’s most recent offences were committed in 2001 did not preclude the making of an ISO.

86. Second, the defendant remains untreated. He denies that either the 1989 or 1994 sexual intercourse was non-consensual and states that he would not be assisted by any treatment such as CUBIT. It was noted that the defendant has described the above incident to Mr Ardasinski as a consensual sexual encounter.

87. Third, the observations of Haesler DCJ in both his Honour’s reasons for finding the defendant guilty and remarks on sentence show that, at the time of the 1989 offences, the defendant was exhibiting bizarre behaviour. It was submitted that this may be relevant to risk. Reliance was also placed on the inconsistency between a letter before Haesler DCJ in which the defendant described not remembering the incident and the fact that he ran a positive case that there was consensual sexual activity. It was submitted that, if he in in fact cannot remember the incident, that suggests problems with drug and alcohol abuse. Although his Honour did not find that the defendant committed the offence under the influence of drugs or alcohol, it was submitted that that is a finding open to this Court. Mr Coady submitted that drugs and alcohol are definite risk factors.

88. Finally, Mr Coady addressed the dynamic risk factors as identified by Mr Ardasinski. He submitted that it is problematic that Mr Ardasinski is not able to identify risk factors with a great deal of specificity because the defendant is untreated and has not discussed the offences in any therapeutic environment. On the contrary, he has given inconsistent accounts of what occurred, which demonstrates a lack of insight into his offending. It also shows a lack of remorse. To the extent that Mr Ardasinski has had to hypothesise various risk scenarios, that is because specific risk factors have never been properly identified.

Submissions on behalf of the defendant

89. Ms Hawkins of counsel appeared on behalf of the defendant. She also filed written submissions. It was noted that the defendant concedes that he meets the criteria of “supervised sex offender”, but that the making of an ISO and the appointment of experts are opposed on the basis that the matters alleged in the supporting documentation would not, if proved, justify the making of an ESO.

90. Ms Hawkins submitted that the evidence at its highest supports the contention that the defendant presents a risk of general re-offending, but that it does not support the contention that the defendant is at risk of re-offending in a manner that meets the criteria of “serious sex offence”. That is, the risk that the defendant poses falls short of the statutory criterion of which the Court is required to be satisfied in order to determine that the defendant is a “high risk sex offender”. It was submitted that if an ESO were imposed to address his unacceptable risk of offending generally, that would not be a proper utilisation of the legislation.

91. It was submitted on behalf of the defendant that the evidence shows that he has a genuine desire to rehabilitate himself. Reliance was placed upon his generally good behaviour during his most recent period in custody, the fact that he has not committed any sexual offences since 1994, the fact that he has not committed any offences of violence since 1999, and the fact that he has no recorded any drug or alcohol violations in custody since 2012.

92. It was pointed out that the defendant is now 50 years old and that the offences for which he is currently serving a sentence occurred 28 years ago, when he was 22 years old.

93. It was acknowledged that the defendant’s criminal history is an “an unenviable one”, but that there are only two entries on his record of serious sex offences. The majority of the defendant’s record pertains to offences that are not of a kind that would attract the notice of the Act.

94. Reliance was also placed on the fact that there is no evidence that the defendant has committed any further criminal offences since he was released to strict parole on 12 June 2017.

95. Ms Hawkins made a number of challenges to the report of Mr Ardasinski, but also placed reliance on aspects of it. For example, the defendant embraced Mr Ardasinski’s observations, extracted above at [76], that his poor history of compliance with supervision may be at an end.

96. Furthermore, it was noted that the RSVP assessment placed the defendant in the “moderate to high” risk category. This is not the highest level of risk of reoffending. Mr Ardasinski also conceded that the primary risk presented by the defendant is of offending of a non-sexual nature, such as break, enter and steal offences.

97. It was noted that the identified risk factors, being antisocial lifestyle, substance abuse, relationship deficits, lack of work ethic and skills, denial and minimisation/failure to engage in treatment, and poor cooperation with supervision, pertain to a previous time in the defendant’s life. Many of these factors arise from the fact that the defendant has been in custody for such a significant part of his life.

98. It was conceded that the defendant continues to deny his prior offending, but it was submitted that that is his right and prerogative. It was submitted that educating a 50-year-old man about sexual offending committed when he was 22 and 27 years old may be of little utility and only serve to alienate him.

99. Criticism was directed at Mr Ardasinski’s opinion as to the various situations in which the defendant may reoffend sexually. That aspect of his report was described as “an extreme and fanciful projection”. Similar criticism was directed at the report of Mr Devoy, which was described as “quite generic” and “rather unhelpful” in relation to specific strategies for the defendant.

Consideration

100. In determining whether this Court should make the orders sought at this preliminary stage the Court is required to take into account all of the supporting documentation and assume it would all be proved at a final hearing, without considering what evidence the defendant might ultimately rely upon at the final hearing. The Court must then ask itself whether it is satisfied to a “high degree of probability” that the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision. The task is an evaluative one undertaken in the overall context of the primary objective of the Act: to ensure the safety and protection of the community. Given the nature of this application, it is important to bear in mind that this objective is confined to ensuring the protection of the community against the risk that the defendant will commit a serious sexual offence; not to ensure the safety and protection of the community against the risk that the defendant will offend generally.

101. As stated above, at this preliminary stage the assessment I am required to make is similar to an inquiry into the existence of a prima facie case. As Harrison J observed in State of New South Wales v Pacey [2015] NSWSC 1983 at [44]:

“…..the difficult task that is to be undertaken necessarily involves a balancing exercise taking into account all of the positive and negative material in the supporting documentation, based upon the assumption that it can ultimately be proved.”

102. I have had regard to the supporting documentation and in particular the matters summarised above. I have also had regard to the submissions of the parties. I have paid particular regard to the Risk Assessment Report of Mr Ardasinski. I am required to give that report appropriate weight. As stated above, such a report must be put before the Court on an application such as this to provide an assessment of the likelihood of the defendant committing a further serious sex offence. It is to be noted that Mr Ardasinki quite properly noted the limitations in predicting risk in his report by observing that it is “not scientifically possible” to accurately predict whether or not an individual offender will or will not actually reoffend.

103. Mr Ardasinski used the STATIC-99R test to conclude that the defendant is in the “well above average” range of risk for committing a sexual offence. This is the highest rating on that scale. That tool uses static factors such as the age of the offender at release, criminal history, number and gender of victims and whether the defendant has lived with an intimate partner for at least two years. It is to be noted that this tool only tests for the risk of sexual offending generally rather than for “serious sex offences” within the meaning of the Act. A person may have a high risk of committing a sexual offence which does not necessarily correlate with a high risk of committing a “serious sex offence“.

104. Mr Ardasinksi properly notes the limitations of actuarial tools that rely on historical factors. He observed that although the actuarial scales have “moderate” predictive accuracy and are useful for evaluating long term risk, they can be insensitive to changes over time. Moreover, actuarial assessments such as the STATIC-99 can only provide information about how similar a given individual is to a group of offenders who did re-offend; it does not provide any indications about whether any particular individual will actually re-offend or not.

102. Mr Ardasinski also assessed the defendant’s level of risk having regard to dynamic risk factors. Using the RSVP, he assessed the defendant as a “moderate to high” risk of committing a sexual offence (rather than a serious sexual offence). That is not the highest level of risk. Again, it is significant that many of the dynamic risk factors used in the RSVP testing date back to a period when the defendant was younger, are a result of his lengthy incarceration or involve some degree of speculation.

103. I accept the submission made on behalf of the State that the defendant’s known risk factors are somewhat difficult for Mr Ardasinski to identify because of the defendant’s denial of both serious sex offences and his refusal to agree to participate in CUBIT. Despite this, it cannot be the case that every sex offender who maintains his or her innocence is to be regarded as a high risk sex offender. Nor can it be the case that every sex offender who refuses to participate in CUBIT is to be regarded as a high risk sex offender. It is to be noted that, as set out above at [72], the defendant refused to undertake the CUBIT program before being released in 2003 and has not committed a further sexual offence since that time.

104. During the hearing of this application, it became apparent that both the State and the defendant were relying upon the difficulty in identifying the defendant’s relevant risk factors to support divergent conclusions. Mr Coady submitted that it is the defendant’s lack of remorse and refusal to enter CUBIT that have resulted in the uncertainty as to risk factors. This was said to militate in favour of the orders being granted. Ms Hawkins, on the other hand, relied upon the fact that there are no known risk factors, only speculative ones, as supporting the defendant’s position that the orders should not be made.

105. It is no doubt of concern that the defendant has failed to acknowledge his prior sexual offending. This goes beyond mere non-acceptance; he has given differing and somewhat implausible accounts in relation to both offences. I accept that acknowledgment of his wrongdoing would be a positive step towards his rehabilitation. Despite this, Mr Ardasinski states in his report that denial of sexual offending has not been linked to increased risk in the “overall empirical literature”. Rather, its relevance, as identified by Mr Ardasinski, is that the defendant’s minimisation and justification for his sexual offending have ultimately limited his opportunities for treatment, which has led to parole not being recommended and his time in custody thus being lengthened.

106. I have had regard to Mr Ardasinski’s suggestion as to how the defendant may re-offend extracted above at [66]. He describes the risk of the defendant committing a further “serious sex offence” in the community as “entirely possible” if he were to commit a break and enter offence and, whilst doing so, encounter “a vulnerable female” in the house. Although at this preliminary stage I am required to presume that the opinions expressed in this report would be accepted, I note that there is also material before me that establishes that neither of the defendant’s two sets of sexual offending were committed in that context, notwithstanding that the defendant has committed a large number of break, enter and steal offences.

107. Taking Mr Ardasinski’s expert opinion expressed in his report at its highest, it is this: in his opinion, the material “suggests” that the defendant’ falls into the moderate to high risk category of sexual offending relative to other adult male sexual offenders. He goes on to state that it is “possible” that any “future sexual violence or other criminal offending could approach the threshold of a “serious sex offence” as defined” in the Act. He then goes on to qualify this even further by accepting that the defendant is “…more likely to engage in non-sexual criminality than a new sex offence upon his release to the community.”

108. It is to be accepted that Mr Ardasinski’s opinion that it is more likely that the defendant will commit a non-sexual offence than a “serious sex offence” does not necessarily lead to a conclusion that he poses no risk of the latter. Despite this, Mr Ardasinski’s conclusion in this regard is “somewhat tepid”, to use the words of counsel for the defendant. Nonetheless, I have taken it at its highest as part of my consideration of the statutory test of whether I am satisfied to a “high degree of probability” that the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision.

109. The most troubling matters in the supporting documentation are the facts of the offences themselves. In 1989, the defendant committed a violent sexual assault on an 18-year-old woman in the community and in 1994 he participated in a violent sexual assault on another inmate in custody. It is of significance that both offences are “serious sex offences” within the meaning of s 5 of the Act.

110. On the other hand, the defendant’s sexual offending is of some antiquity and there is little commonality between the assaults. One of them was committed in custody. Significantly, Mr Ardasinski has opined in his report of 15 February 2017 that the defendant “…does not appear to be at imminent risk of re-offending by virtue of the fact that he remains incarcerated at the time of writing.” If I accept the evidence of Mr Ardasinski on this issue, as I am obliged to, the significance of the 1994 offences to the question of “unacceptable risk” is somewhat diminished.

111. I note in passing that the State would have been unable to seek an ESO in respect of the defendant had he been apprehended, convicted and sentenced for the 1989 offences at a time proximate to their commission. His sentence would have long expired, as would his sentence for the 1994 offences, by the time of the enactment of the Crimes (Serious Sex Offenders) Act 2006 (NSW). It is the fact of the delay between the commission of the 1989 offences and the charging of the defendant in 2010 (at a time when he was apparently doing well on parole) that has enabled the State to seek orders under the Act in respect of the defendant. Although this fact is not relevant to my determination per se, the delay between the 1989 offences and his conviction and sentence for them has rendered the exercise of predicting the risk of sexual offending that he poses 28 years later more difficult.

112. Reliance was placed on the observations of Haesler DCJ extracted above at [50] when he sentenced the defendant in 2012. Although his Honour’s comments concerning the defendant’s prospects of rehabilitation were not optimistic, they were directed at his offending generally rather than sexual offending in particular.

113. It was submitted on behalf of the State that the defendant’s long-term struggles with drug and alcohol abuse may be a risk factor for further sexual offending. The difficulty with this submission is that, although substance abuse is undoubtedly a risk factor for his offending generally, there is no evidence that drugs and alcohol played a role in either of his sexual offences. I was invited by counsel for the State to find that the observations of Haesler DCJ in his reasons for finding the defendant guilty of the 1989 offences about his bizarre behaviour support the State’s position that he must have been under the influence of drugs and/or alcohol at the time. The difficulty with this submission is that Haesler DCJ made no finding in this regard in his remarks on sentence and it was not part of the factual basis of Mr Ardasinski’s risk assessment. Mr Ardasinki observed that “it does not appear that intoxication with drugs or alcohol were directly involved in Mr Wilson’s sexual offending.” He goes on to add, “…so it may be a more indirect link to general criminality which still needs to be monitored.”

114. To summarise, in addition to the report of Mr Ardasinski, the factors pointing most strongly in favour of making the orders sought are that the defendant has committed two serious sexual assaults in the distant past, that he remains untreated and that he is clearly institutionalised, having been incarcerated for most of his adult life and much of his adolescence.

115. These factors must be considered in the light of other more positive circumstances, such as the following.

116. First, apart from the two offences in 1989 and 1994, the defendant has never come to the attention of the authorities for any other sexual offending, whether in custody or in the community. That is, I have not been provided with any intelligence material, or indeed any material at all, to suggest that he has done anything that could amount to sexual misconduct since the commission of the relevant offences.

117. Second, although the defendant remains untreated to the extent that he has never participated in CUBIT, he has completed the 12-session “Getting SMART” programme in relation to his drug and alcohol problems. The reports of his involvement in that program were positive.

118. Third, the defendant has not been diagnosed with any paraphilic disorders nor with any psychiatric condition. He has been assessed as being of average intelligence. Although it was suggested in some of the earlier reports that he had a cognitive deficit, Mr Ardasinski did not detect any and Mr Sheehan noted in 2003 that previous testing may have been affected by external factors, such as test anxiety or alcohol withdrawal.

119. Fourth, in 2010 when he was last in the community prior to his recent release he had not breached his parole conditions. Rather, he was returned to custody due to being arrested for the 1989 offences.

120. Fifth, he has been subject to strict parole conditions since 16 June 2017 and there is no material before the Court indicating that he has breached his parole conditions. Although there were some initial indications of potential illicit drug use in the days after his release, no further material was placed before the Court at the hearing on 7 September 2017 of that nature. In fact, I was informed at the hearing that the defendant had progressed successfully from the COSP accommodation through to private rental accommodation.

121. Finally, the defendant is now 50 years of age. He committed the only sexual offences on his record when he was 22 and 27 years old respectively.

122. I note that in the written material before me it was reported that the defendant previously indicated that he would like to be on an ESO. He had resiled from that position by the time of the hearing because his only relatives reside in Queensland and he wishes to move there to be near them. He could not move to Queensland if an ESO were granted. In any event, even if he still wanted to be made subject to such an order, as this Court has noted on a number of occasions, the determination of whether the relevant statutory preconditions exist involves an evaluative test that is not capable of being resolved by way of consent.

123. I have had regard to the various OIMS notes recording that the defendant repeatedly stated from 2015 that he needed to be properly supervised once released into the community. I am satisfied that he would benefit from a longer period of supervision in the community. It is most unfortunate that, despite the observations by Haesler DCJ that the defendant needed a further period of supervision in the community and his Honour’s finding of special circumstances, the defendant will in effect have had less than four months of supervised parole before his sentence expires. I have set out the reasons why parole was not granted above at [77].

124. In considering the question of whether the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision, I give the words “unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of “unacceptable risk” in State of New South Wales v Pacey at [43] as follows:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. 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.”

128. Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

129. No doubt the consequences of the defendant committing a serious sex offence would be significant and are relevant to the question of unacceptability of risk. On the other hand, the likelihood that the risk will eventuate is also relevant to the unacceptability of that risk and it is that aspect of the evaluative test that gives me pause in this matter. The only material before me that suggests that the risk of the defendant committing a further sexual offence is high is the results of the actuarial testing. Mr Ardasinski acknowledges the limitations of such testing. Furthermore, Mr Ardasinski concedes that the defendant is more likely to commit a non-sexual offence than a sexual offence.

130. Taking all of the material before me at its highest, I am satisfied that the defendant poses a risk of engaging in further general criminal activity if not supervised. This is clearly established in the material before me, given his extensive criminal history and institutionalisation. Despite this, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not supervised.

131. I am mindful that the refusal of the orders sought means that from this Friday, 13 October 2017 the defendant will go from being under strict supervision to no supervision at all. This is most regrettable. It would have been preferable if the defendant had been afforded a longer period of supervised parole, but an ESO is not to be used as a substitute for parole. There is no statutory basis to place the defendant under extended supervision unless I am satisfied he is a high risk sex offender. I am not so satisfied.

ORDERS

132. The plaintiff’s summons is dismissed.

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Amendments

12 October 2017 - Paragraph spacing in [28] corrected.

Decision last updated: 12 October 2017