State of New South Wales v WXN1 (Preliminary)

[2023] NSWSC 883

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v WXN1 (Preliminary) [2023] NSWSC 883

Hearing dates:

20 July 2023

Date of orders:

28 July 2023

Decision date:

28 July 2023

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

See [94]

Catchwords:

HIGH RISK OFFENDERS – Preliminary hearing – application for an interim supervision order – serious sexual offender – defendant currently on an extended supervision order – parties agree that the existing ESO was made prematurely in light of the decision of Cornwall – ESO remains valid and must be followed until it is revoked or expired – no breaches of existing ESO however defendant has made little progress – application granted – scheduling conditions removed

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Crimes Act1914 (Cth)

Cases Cited:

Attorney General (NSW) v Hayter [2007] NSWSC 983

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

Monteiro v R [2022] NSWCCA 37

Papas v Grave [2013] NSWCA 308

State of New South Wales v Burns [2014] NSWSC 1014

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

State of New South Wales v Cornwall (Preliminary) [2022] NSWSC 278

State of New South Wales v Kable (2013) 298 ALR 144; (2013) HCA 26

State of New South Wales v NW [2019] NSWSC 415

State of New South Wales v Pacey (Final) [2015] NSWSC 1983

State of New South Wales v Rush [2022] NSWSC 608

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Thomas [2010] NSWSC 677

State of NSW v WXN1 [2020] NSWSC 993

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
WXN1 (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
J Wilcox (Defendant)

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

File Number(s):

2023/00157725

Publication restriction:

Nil.

JUDGMENT

1. By summons filed on 17 May 2023, the State of New South Wales (“the State”) seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant, referred to here as “WXN1”, including that he be placed on an extended supervision order (“ESO”) for a period of three years.

2. WXN1 is a 32-year-old man who committed a number of child sex offences against his five younger cousins over a two and a half year period when he was a juvenile. He is presently subject to an ESO imposed by Garling J that commenced on 31 July 2020 and will expire on 30 July 2023: State of NSW v WXN1 [2020] NSWSC 993. He has not been returned to custody during that ESO.

3. A preliminary hearing was conducted before me on 20 July 2023. At the hearing, the State sought the following interim and interlocutory relief:

1. The appointment of two qualified experts to conduct examinations of the defendant and to furnish reports to the Supreme Court, and that the defendant be directed to attend those examinations;

2. An interim supervision order (“ISO”) for 28 days from 30 July 2023 under ss 10A and 10C of the Act;

3. An order that the defendant comply with the conditions set out in the schedule to the summons for the period of the ISO pursuant to s 11 of the Act; and

4. An order that the defendant be referred to by a pseudonym used by the court previously in earlier proceedings under the Act.

4. For the purposes of the preliminary hearing only, the defendant accepts that the statutory preconditions for the making of an order are met and does not oppose the making of an ISO and the interim relief. Although a number of the proposed conditions were disputed, after discussion between the parties there was ultimately only one condition that I was required to rule on.

5. The determination of whether the relevant statutory preconditions exist involves an evaluative test that is not capable of being resolved by way of consent. Nonetheless, it is to be accepted that the court process is facilitated by the fact that there is no controversy between the parties to be resolved in this respect.

Preliminary matter

6. As stated above, the defendant is currently subject to an ESO imposed by Garling J that will expire on 30 July 2023. I have set out the relevant chronology leading to that decision below at [37]-[42]. The reckoning of time to commence those proceedings was made by the State based on the decision of Harrison J in State of New South Wales v NW [2019] NSWSC 415 given that the defendant was on a Recognizance Release Order (“RRO”) under s 20 of the Crimes Act 1914 (Cth) at that time.

7. The State raised my decision in State of New South Wales v Cornwall (Preliminary) [2022] NSWSC 278 (“Cornwall”) as a preliminary issue. I held in that decision that where an offender subject to an RRO is under supervision after the expiration of the head sentence, they should be regarded as being “under supervision” while “serving a sentence of imprisonment” if, as a condition, they are liable to return to prison for the remaining period of the order if they breach a condition of the order: at [41]-[45]. In doing so I also found, consistent with the position advanced on behalf of the parties in that matter, that the decision in State of New South Wales v NW [2019] NSWSC 415 was wrongly decided on this discrete issue.

8. The State conceded that in light of Cornwall, the filing of the initiating summons for the defendant’s existing ESO imposed by Garling J had been premature on the erroneous understanding that the expiry of the defendant’s head sentence was the determining date for the nine-month period referred to in s 6 of the Act. It was submitted that as the ESO is an order made by a superior court, it remains valid and must be followed unless or until it is revoked or expires: State of New South Wales v Kable (2013) 298 ALR 144; (2013) HCA 26 at [28], [32], [38]-[39]; Papas v Grave [2013] NSWCA 308 at [68]-[70]; Monteiro v R [2022] NSWCCA 37 at [8].

9. It was the position of both counsel for the State and the defendant in this matter that Garling J’s order was valid until revoked or expired and if I was to place the defendant on an ESO on or before 30 July 2023 that ESO would be validly made because the present application was filed whilst he was subject to an ESO. As I indicated at the preliminary hearing, I accepted the joint position of the parties on this issue.

10. Before I turn to consider the supporting documentation, it is necessary to first outline the relevant legislative scheme.

The legislative scheme

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

12. Section 5B of the Act provides that this Court may make an ESO 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.

13. A “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or “a serious violence offence”. A “serious sex offence” is defined in s 5(1) of the Act and includes, relevantly, an offence against a child carrying a maximum penalty of 7 years imprisonment.

14. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s (2)(a)(ii) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature.

15. Thus, the statutory requirements for making an ESO are that the offender is a serious sexual offender as required by ss 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); and is still in custody or supervision at the time the application was made. In addition, the court must be 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: s 5B(d).

16. Section 7(3)-(5) of the Act provides for a preliminary hearing of an ESO application and is in these terms:

(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(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. (Emphasis added.)

17. Section 10A of the Act provides that this Court may make an order for an ISO if 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. (Emphasis added.)

18. Thus, the statutory test to be applied at the preliminary hearing in order to make the ISO and order the appointment of court experts is that it must appear to the court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

19. The court’s power to make an ESO is discretionary. Section 9(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) and (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 as follows:

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

(2A) (Repealed)

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

(a) (Repealed)

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

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

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

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

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

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

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

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

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

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

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

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

20. The statutory task is an evaluative one undertaken in the overall context of the primary objective of the Act which is to ensure the safety and protection of the community. At this preliminary stage, the court is required to take into account all of the supporting documentation and assume it would be proved at a final hearing. It has been held that the task of the court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983.

The supporting documentation

21. The State relied on two affidavits of Mark McAlary, the solicitor with carriage of the matter at the Crown Solicitor’s Office, affirmed 12 May 2023 and 10 July 2023. A Risk Assessment Report (“RAR”) prepared by Sarah Wright dated 17 February 2023 and a Risk Management Report (“RMR”) prepared by Louise Robinson dated 24 March 2023 were attached as exhibits to the affidavit affirmed 12 May 2023. The defendant relied on the affidavit of Tracy Reynolds, the defendant’s solicitor, affirmed 4 July 2023.

22. This supporting documentation will be considered below. It was tendered 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 must include 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”.

Section 9(3) factors

The offender’s criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

23. The defendant’s convicted sex offending began in 2006 when he was 15 years old. It involved serious sexual assaults on his five younger cousins over a period of two and a half years until the defendant was 17 and a half years old.

24. From around the beginning of 2006, the defendant’s mother looked after her brother’s children and the defendant would often care for them unsupervised.

25. When the defendant was aged 15 (between August and December 2006), he touched his 12-year-old cousin on the breast and bottom while she cried and physically resisted.

26. At age 16 or 17, between October 2007 and October 2008, he digitally penetrated his nine-year-old female cousin’s vagina and anus (the latter offence was taken into account on a Form 1).

27. Between July 2008 and February 2009, the defendant had penile-anal intercourse with his 8-year-old male cousin. He also committed fellatio on the same victim, with a further count of fellatio placed on a Form 1.

28. When he was about 17 years old in January or February 2009, the defendant committed forceful penetration of another seven-year-old male cousin’s anus which caused pain and bleeding. Another count of fellatio was placed on a Form 1.

29. In the period between July-December 2008 and February 2009, at age 17, the defendant offended against his female cousin who was three or four years old. This involved penile/anal sexual intercourse, cunnilingus, digital penetration and attempted penile/vaginal intercourse (which was placed on a Form 1). The latter two acts ruptured the girl’s hymen and tore her posterior fourchette, requiring surgical intervention. Further counts of penile/anal sexual intercourse and vaginal touching were also taken into account on a Form 1.

30. The offences came to the attention of the police when the youngest child, aged four, told her mother that the defendant had put a red thing from the laundry in her anus and the mother saw blood on the child’s leg.

31. The defendant was arrested on 14 February 2009. He disclosed the offences and subsequently made a number of admissions on 16 February 2009.

32. On 23 June 2010, the defendant was sentenced on nine counts, with a further five counts taken into account on a Form 1. He received a term of imprisonment of 9 years and 9 months with a non-parole period of 5 years and 3 months. The head sentence commenced 14 February 2009 and concluded on 13 November 2018. He was released to Nunyara Community Offender Support Program Centre on parole on 20 November 2015.

33. Following his release from custody, the defendant was placed on the Child Protection Register.

34. On 3 August 2016, the defendant was sentenced for two offences under the Child Protection (Offenders Registration) Act 2000 (NSW) for having an undisclosed mobile phone and email address in breach of his reporting obligations. He was placed on concurrent s 9 bonds for a period of 12 months.

35. On 11 August 2017, the defendant was sentenced for an offence of using a carriage service (mobile phone) to access child pornography between 21 July 2016 and 3 August 2016. He received a sentence of 2 years and 3 months imprisonment commencing on 9 February 2017 and concluding on 8 May 2019 with an 18-month recognizance release order with supervision conditions commencing 8 May 2018. No action was taken for the breach of the s 9 bonds. He was released on recognizance on 8 May 2018.

36. On 28 May 2018, the defendant was placed on a five-year child protection prohibition order by the Local Court Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (“CPOPO Act”) on 12 April 2019.

37. On 31 October 2018, the State filed a summons seeking an ESO for the defendant. On 16 April 2019, Harrison J indicated that he would be making an order appointing medical experts to conduct separate examinations of the defendant and furnish their reports upon receipt of their names: State of New South Wales v NW [2019] NSWSC 415. That order was made on 4 September 2019: State of NSW v NW (Preliminary) [2019] NSWSC 999. The defendant was subsequently placed on an ISO for a period of 28 days on 4 November 2019 by Campbell J: State of New South Wales v NW (No 3) (Preliminary).

38. On 12 April 2019, the defendant was arrested and charged with using a carriage service to access child pornography and two counts of contravening his Child Protection Prohibition Orders (“CPPO”) between 31 July 2018 and 2 April 2019. It was alleged that he had loitered around a primary school for 90 minutes and used a mobile phone to access pornography depicting girls aged 13-18 years. The child pornography charge was eventually withdrawn.

39. On 3 March 2020, the defendant was sentenced to an aggregate term of 18 months imprisonment with a non-parole period of 13 months for the two counts of contravening his CPPO.

23. On 8 May 2020, the District Court called up the s 20(1)(b) recognizance and extended it to 7 February 2021.

24. On 11 May 2020, the defendant was released to parole.

25. Given that the defendant had been returned to custody for the CPPO offences, the final hearing of the ESO application filed on 31 October 2018 was delayed until 30 July 2020. On that day, Garling J placed the defendant on a three-year ESO.

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

43. When sentencing the defendant for the serious sex offences on 23 June 2010, Judge Ellis noted the following: the defendant expressed genuine contrition and remorse; he presented as much younger, physically and emotionally, than an 18-year-old; his motivation was to satisfy sexual lust and he acted spontaneously; there is little evidence he attempted to resist his urges; the offences were not isolated; he abused a position of trust; and the offences against the four year old were a high level of criminality.

44. His Honour was unable to conclude that the defendant had good prospects of rehabilitation and acknowledged that, “by reason of his immaturity, his social isolation and his depression, he was not fully aware of the consequences of his actions”. His Honour also noted that the defendant expressed remorse, however this “appears to be based on a realisation of the wrongful nature of his conduct rather than concern for any personal consequence”.

45. When sentencing for the Commonwealth offences, Judge Yehia SC (as her Honour then was) expressed concern “as to whether [the defendant] can desist from this serious criminal conduct” given he was being closely monitored at the time of that offending. Her Honour was guarded about his prospects of rehabilitation and suggested that he will “require very intensive monitoring and treatment upon his release” and a “lengthy period [of] supervis[ion].”

The expert evidence: ss 9(3)(b), 9(3)

46. The defendant has been subject to a number of psychiatric and psychological assessments since 2009. There has not been a significant change in diagnosis since previous reports. In those circumstances, it is not necessary for me to refer to all the reports provided to me on this preliminary application.

47. Ms Wright, a registered psychologist, prepared a RAR in February 2023 for these proceedings. She interviewed the defendant for nearly two and a half hours on 6 February 2023, with further phone contact on 16 February. He presented with flat effect, made intermittent eye contact, and expressed that he wanted to get the interview over with.

48. The RAR author reported that the defendant is currently residing in a studio apartment. He attends various appointments including Forensic Psychology Services, occupational therapy, psychiatric (Dr O’Dea) and medical appointments. He regularly attends an Orthodox Coptic Christian Church and believes that sex outside of marriage and pornography are both sins and he is aiming for celibacy. He has never had meaningful friendships or been in an intimate relationship. He told the RAR author that he has “given up on life” and conceded that without an ESO he would not have much going on at all.

49. Since the ESO was made the defendant gained employment in 2022 but lost the job when the employer learnt of the offending. He is currently unemployed and not interested in obtaining employment. The RAR author noted that this may be in part because of his fear of rejection, particularly after losing his previous job.

50. The defendant currently receives the Disability Support Pension for unknown reasons. Although it was once suspected that he suffered from the genetic disorder known as Pradi Willi Syndrome, that is not the case. A cognitive assessment in 2012 found that his functioning was average and intellectual disability was discounted.

51. The defendant has reported that his father was violent towards his mother and physically and emotionally abusive towards him. He often felt fearful and unsafe as there was no pattern to his father’s behaviour. He felt anger towards his father and directed that anger through violence towards his sister or by hitting walls. When his parents separated when he was 14, he moved to Maitland with his mother and has had little contact with his father since then. Sadly, his mother passed away in 2016.

52. Significantly, the defendant has been diagnosed with paedophilia by four professionals since 2017. He was on anti-libidinal medication at the time of the interview, after first being prescribed it in 2011. The medication has had varying degrees of effectiveness. The defendant has also been diagnosed with depressive disorder, with varying diagnoses of different depressive illnesses or disorders, and has anxiety symptoms.

53. The defendant has consistently acknowledged his sexual offending, accepted responsibility, and presented with shame regarding the behaviour. He has expressed concern on a few occasions about his potential to reoffend and has at least once asked for help. He told the RAR author that if he “dwell[ed] on” his offending it would “bring up an emotional rollercoaster” which he thought may increase his risk. He said that he sought comfort through child pornography when he committed that offence because he felt “messed up” at the time. He also reported his internal struggle with his faith and his sexual desires. He expressed that he wants to remain offence free and keep the “deviant side at bay”. He accepted that his risk factors include being alone with children, seeing children in public, watching pornography, and bottling up his emotions. He relies on distraction techniques and currently does not feel like he will offend.

54. The RAR author assessed that the defendant’s criminogenic needs include deviant sexual interests, usually triggered by seeing a child, and sex as coping during periods of stress, loneliness, or boredom. He has been conflicted about engaging in strategies for sexual self-regulation because of his religious beliefs about sex outside marriage and masturbation being sins. His primary support in the community is his priest, who only supports the defendant in abstinence or celibacy.

55. The defendant’s other criminogenic needs include intimacy deficits, problems with stress or coping (largely using avoidant mechanisms), poor insight and problems with self-awareness, and poor planning and problem-solving skills. He also has poor mental health, deficits in his capacity for developing relationships and low self-esteem arising from child abuse. He did not benefit from treatment designed to address his sexual offending.

56. The protective factors for the defendant include his church and faith, professional supports from the DSO, an occupational therapist and psychiatrist.

57. The RAR author said the most likely scenarios for sexual reoffending would involve accessing child abuse material or penetrative sexual offending against pre-pubescent children. The most likely contact would be opportunistic or grooming children online. Signs of increased risk would include sexual preoccupation, loitering near children, increased masturbation and use of pornography, emotional collapse or change in supports.

58. The RAR author noted that while the defendant has not offended under the current ESO, he continues to have a high density of criminogenic needs, “deviant thoughts” and is socially isolated. She concluded that it was “possible” that future sexual violence could be a “serious sex offence” as defined in the Act.

Previous level of compliance with supervision orders: ss 9(3)(e2), 9(3)(f), 9(3)(g)

59. After his release from custody in November 2015, the defendant complied with reporting obligations and had satisfactory engagement but breached his Child Protection Registration reporting obligations within nine months. As outlined above, his parole was revoked in 2018 and 2019 for further offending and contravening his CPPO. His engagement at that time was considered satisfactory because of his breaches and superficial engagement with Community Corrections. He was given a verbal warning for failing to adhere to his prescribed anti-libidinal medication.

60. The defendant’s Departmental Supervising Officer (“DSO”) noted in a discussion after July 2022 that the defendant was beginning daily living tasks but his capacity to engage in supervision was limited due to his poor motivation. Concerns were also raised about his potential to self-sabotage employment opportunities and provide unreliable information to ESO staff. In 2022, he was offered approved pornographic magazines however he declined, and was later found to be accessing “questionable” pornography (this did not incur breach action). The defendant reported that he has progressed in electronic monitoring.

61. The RMR detailed two formal written warnings for unapproved internet use and data deletion in February 2022 and for purchasing a sim card for a fellow resident at Corrective Services NSW supported accommodation in December 2020.

Statistical testing: s 9(3)(d)

62. The defendant has undergone several actuarial tests to assess his risk of re-offending. The most recent tests administered to him for the purpose of the RAR are as follows:

1. Static Risk Factors (Actuarial Assessment – Sex Offending) – Static-99R. The defendant was in the “Well Above Average” risk. Rates of sexual recidivism for offenders with his score were between 20.9 and 26.7 per cent over five years and 25.1 and 37.0 after five years.

2. Dynamic Risk Factors (Actuarial Assessment) – Sexual Offending – Stable-2007. The defendant was assessed as having a “High density of criminogenic needs”. His Stable-2007 score was combined with his Static-99R score which generated a composite risk/needs level in the “Well Above Average” level.

3. Dynamic Risk Factors (Structured Professional Judgement – Sexually Violent Offending) – RSVP. The defendant fell in the “Moderate/Elevated” risk category for repeat sexual violence.

Treatment and rehabilitation programs/available courses: ss 9(3)(e), 9(3)(e1)

63. The defendant has participated in 99 sessions of individual counselling as part of the Juvenile Justice Sex Offender Program. He also completed the Custody-Based Intensive Treatment program (CUBIT) in 2014 and the related “Maintenance” after-care program in 2015. When he was returned to custody, he was referred again to the CUBIT program in October 2017 but declined it in 2018 as he said he was left in a worse emotional state after the program the first time he undertook it.

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)

64. Ms Robinson, a Senior Community Corrections Officer, prepared a RMR dated 24 March 2023.

65. The RMR noted that the defendant’s community supports are limited to the church, and he is not in contact with any family. He is heavily reliant on professional services, however the Forensic Psychology Services notes recorded that his engagement was superficial. His occupational therapist discharged him from her services due to his lack of progress and failure to follow up with treatment strategies.

66. The RMR author proposed the following risk management strategies:

1. Engagement with Forensic Psychology Services and community-based psychiatrists and maintaining anti-libidinal medication as prescribed;

2. Monitoring (including electronic monitoring and monitoring of internet use), weekly schedules and search and seizure conditions; and

3. Place and travel restrictions (including the imposition of exclusion zones), non-association conditions and a requirement to reside at an approved address.

67. The RMR author considered that the risk management plan is necessary to manage the defendant’s ongoing risk to the community and to assist him in maintaining an offence free, prosocial life.

Other information available: s 9(3)(i)

68. In his remarks on sentence in June 2010, Ellis DCJ noted that the defendant made admissions to a wider context of offending, such as touching his cousins on other occasions. The State submitted that State of New South Wales v Thomas [2010] NSWSC 677 and State of New South Wales v Conway [2011] NSWSC 976 are authority for the proposition that a charged crime which is withdrawn may still be admissible in proceedings under the Act so far as statistical risk assessment issues are concerned.

69. In State of New South Wales v Conway, Davies J found the uncharged acts that were admitted by the defendant would not fall for consideration under the criminal history provision in s 9(3)(h) but may be relevant under the former s 9(3)(a).

70. The State submits that uncharged admissions of sexual misconduct could be taken into account as a relevant consideration as to risk assessment (s 9(3)(i) and s 9(2)).

71. I accept that material of this nature can be considered on an application such as this but, on the facts of this matter, where the offending was so serious and included five young children, it does not advance the State’s case in any significant way.

Consideration

72. The first statutory requirement for the making of an ESO is that the offender is a serious sexual offender as required by ss 5 and 5B of the Act. The defendant was convicted of serious sex offences (sexual intercourse with a child under 10 and digital penetration), he is an offender within the meaning of s 5(1)(a)(i) of the Act: Crimes Act 1900 (NSW), ss 61H(1)(a) and 66A. The defendant did not submit otherwise.

73. The second statutory requirement for the making of an ESO is that the defendant is a supervised offender (within the meaning of s 5I of the Act). Given that he is currently on an ESO, I am satisfied of this requirement as well.

74. The third statutory requirement for the making of an ESO is that the defendant was under supervision at the time the application was made. The application was commenced within the last 9 months of the defendant’s current ESO as required by s 6 of the Act.

75. The fourth and final statutory requirement is that the court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d). Although the defendant also accepted that this statutory test was met (for the purposes of the preliminary hearing), it remains a matter for the court to be satisfied of.

76. The phrase “unacceptable risk” is not defined in the CHRO Act, although s 5D provides:

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.

77. The test of being satisfied to a “high degree of probability” in this context 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].

78. 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, 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]).

79. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43], Harrison J observed:

“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.”

80. This meaning of “unacceptable risk” has been adopted in numerous cases. For example, it was adopted by Hamill J in State of New South Wales v Rush [2022] NSWSC 608 (at [13]) when his Honour observed that “[w]hether a risk is ‘unacceptable’ turns on both the probability of the risk being realised and… the gravity of the consequences of that risk being realised.”

81. I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In particular, I have had regard to the following.

1. The nature, seriousness and extent of the relevant offending against very young children over a lengthy period of time;

2. The fact that the defendant lacks any stable relationships and thus does not enjoy the pro-social factors associated with such relationships. He is estranged from his father, his mother has died, and he has no other family contact. Nor does he have close friends nor any intimate partner;

3. The supporting documentation establishes that the defendant still has an ongoing sexual attraction to children, despite many years on antilibidinal medication. He continues to consider sex as a coping mechanism;

4. The defendant has an ongoing need for intensive supervision given his identified risk factors of poor self-regulation, boredom, loneliness and social isolation;

5. The defendant has made little to no progress in obtaining wider community integration and support. In fact, he appears to be at the same stage in this respect as when the first ESO was made;

6. The defendant appears vulnerable without continued support;

7. The defendant has been assessed as a well above average risk of further sexual reoffending; and

8. Although the defendant has not breached his ESO, there is a history of breaches when subject to parole supervision.

82. The defendant properly acknowledged that the expert evidence suggests there has been no change to his level of risk. He has continued to express sexual thoughts about children, despite not committing further offences under the ESO.

83. In arriving at my conclusion that the statutory prerequisites for an ESO are satisfied, I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and to the s 9(3) factors summarised above.

Conditions of the ISO

84. In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.

85. As Beech-Jones J (as his Honour then was) observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]:

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

86. The defendant initially disputed several conditions but by the time of the hearing the parties agreed on all but one issue: the “dry scheduling”.

87. The State seeks the continuation of the same form of “dry scheduling” conditions that was imposed as part of the 2020 ESO. The defendant seeks the deletion of that condition. This form of scheduling is less onerous than the usual requirement for fixed schedules of movements that must be assessed prior to the activity taking place.

88. The defendant submitted that removing schedules would allow the defendant to engage in prosocial activities without having to go to the trouble of putting it on the schedule. It was contended that reducing this significant restriction on his liberty is consistent with a “general and controlled lessening of restrictions”. Risk could still be managed as he would also be subject to electronic monitoring and place restrictions.

89. The defendant contended that electronic monitoring on its own would be useful because it would allow Community Corrections to monitor the defendant’s movements in real time to ensure compliance with the place and travel restrictions. It would also provide an incentive to the defendant to behave responsibly if granted further liberty.

90. Counsel for the State accepted that the defendant has not been charged with breaching his ESO and that the only scheduling issue of note was the breach of his then CPPO in April 2019. Despite this, it was submitted that the fact that there has been no breach shows the success of scheduling conditions and why they should not be removed. The State’s position was that scheduling and electronic monitoring should go hand in hand; electronic monitoring would confirm that the defendant is complying with his schedule of movements. It was submitted that the condition should remain, and the court appointed experts could advise on whether scheduling is counterproductive before the final orders are made.

91. Having considered the competing arguments in the context of the comments about his lack of progress in the RAR, it seems to me that the defendant may benefit from a lessening of this condition. It is to be accepted that the defendant has not been making progress on his ESO, but it is significant that he has not breached it either. He has been on the ESO imposed by Garling J for three years without any significant lessening of conditions by his DSO.

92. The supporting material suggests that the defendant seems to rarely leave his residence; only to attend his church on Sundays and to attend various appointments. I am satisfied that this condition may be a positive factor that motivates the defendant to move forward with engaging with prosocial activities. I am satisfied that the electronic monitoring condition and other conditions, including place restrictions, adequately meet the identified risks.

93. For these reasons, I do not propose to include the dry scheduling condition.

ORDERS

94. Accordingly, I make the following orders:

1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), the defendant is to be subject to an interim supervision order.

2. Pursuant to s 10C(1) of the Act, the interim supervision order is to be for a period of 28 days commencing on 31 July 2023 and expiring on 27 August 2023.

3. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to these orders for the duration of the order.

4. Pursuant to s 7(4) of the Act:

1. Two qualified psychiatrists or a qualified psychiatrist and a registered psychologist or two registered psychologists are appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; and

2. The defendant is directed to attend those examinations.

5. Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

**********

State of NSW v WXN1 (Preliminary) - Schedule of Conditions - amended 11.9.2023 (101210, pdf)

Amendments

11 September 2023 - Schedule of Conditions amended under the slip rule

Decision last updated: 11 September 2023