State of NSW v CD

[2022] NSWSC 61

Supreme Court

New South Wales

Medium Neutral Citation:

State of NSW v CD [2022] NSWSC 61

Hearing dates:

2 February 2022

Date of orders:

4 February 2022

Decision date:

04 February 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

The Court makes the following orders:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant shall be subject to an Extended Supervision Order for a period of two years from 5 February 2022;

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed, for the period of the Extended Supervision Order, to comply with the Conditions as set out in in the Schedule of Conditions of Supervision (attached);

(3)   An order that access to the 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.

Catchwords:

HIGH RISK OFFENDERS – Extended Supervision Order – unacceptable risk – burden and onus of proof – importance of defendant’s perception as to level of regulation - in the particular facts an Extended Supervision Order appropriate for a period of 2 years.

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

State of New South Wales v CD (preliminary) [2021] NSWSC 1396

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
D Bhutani (Defendant)

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

File Number(s):

2021/251069

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the publication or disclosure of any information revealing or tending to reveal the identity of the defendant is suppressed on the grounds that (pursuant to s 8(1)(a) of the Act), the order is necessary to prevent prejudice to the proper administration of justice.

(2) In furtherance of the suppression order in respect of the defendant’s identity, the defendant will be referred to in the proceedings under the pseudonym “CD”.

Judgment

1. HIS HONOUR: The State of New South Wales (hereinafter "the State”) applies to the Court for an Extended Supervision Order (hereinafter "ESO") against the defendant, who, as a result of suppression orders earlier issued by the Court, in these reasons is referred to as CD. The defendant is currently the subject of an Interim Supervision Order ("ISO") and was prior thereto subject of an earlier ESO.

2. The application by the State was commenced by summons and an amended summons was filed on 21 October 2021. Subsequent to the filing of the amended summons, the State sought leave to file and was granted leave to file in Court a Further Amended Summons of 28 January 2022. By that Further Amended Summons (hereinafter “the Summons"), the State sought interim and interlocutory relief and final relief. The interim and interlocutory relief was granted by Lonergan J on 1 November 2021. [1]

   1. State of New South Wales v CD (preliminary) [2021] NSWSC 1396.

3. The orders issued by her Honour appointed a psychiatrist and psychologist to conduct separately psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court. Those reports have been completed and filed and the State relies upon them for the purposes of the making of final orders.

4. Further, Lonergan J issued an ISO which subsists at the time of this judgment and subsisted at the time that the proceeding for the final order were agitated.

5. There are procedural requirements for the making of an ESO which relate to the timing and circumstances applicable to the defendant at the time the application was made. The defendant does not take issue that those procedural requirements have been satisfied.

6. Later in these reasons, the Court will, briefly, deal with the procedural requirements. The defendant does take issue with the allegation of the State that the defendant represents an unacceptable risk/or that the Court could be satisfied to a high degree of probability of the unacceptable risk posed by the defendant.

7. If, contrary to its primary submission, the Court was of the view that there was an unacceptable risk posed by the defendant and was satisfied of the existence of the unacceptable risk to a high degree of probability, the defendant takes issue with a number of the conditions that the State seeks to impose upon the defendant pursuant to the terms of s 11 of the Crimes (High Risk Offenders) Act 2006 (hereinafter "the Act").

Factual and procedural history

8. The defendant is 23 years of age. He had experienced a significantly disrupted childhood and adolescence marked by family instability and drug use. At the time of the application for an ESO, the defendant was serving a sentence imposed upon him by Girdham SC DCJ. That sentence was 3 years and 6 months, commencing on 6 May 2018 and it expired on 5 November. 2021. The non-parole imposed by her Honour was for a term of imprisonment of 3 years and 6 months, expiring on 5 September 2020.

9. The defendant was granted parole on 14 October 2021. As earlier stated, on 2 November 2021, Lonergan J issued orders imposing an ISO on the defendant and ordering reports. Those reports are from Mr Patrick Sheehan, forensic psychologist, [2] and Dr Richard Furst, forensic psychiatrist. [3]

   2. Report of Patrick Sheehan, Forensic Psychologist, 10 December 2021, Exhibit A.

   3. Report of Dr Richard Furst, Forensic Psychiatrist, 16 December 2021, Exhibit A.

10. The index offences upon which the State relies for the purposes of satisfying the requirements for an ESO are five counts of sexual intercourse with a child aged between 14 and 16, occurring in April 2017. At the time, the defendant was 18 years of age. The victim was 15.

11. The index offences arose out of two sexual encounters between the defendant and the victim who were in a relationship of the time. The defendant was on parole at the time for offences committed in 2016.

12. The sentence imposed upon the defendant by Girdham SC DCJ occurred after a plea of guilty and agreed facts were tendered to her Honour. Her Honour’s remarks on sentence detail and/or summarise those agreed facts. There are two aspects that require repetition.

13. As already stated, the defendant was 18 at the time of the offences and the victim was 15. The defendant and the victim were in a relationship. The submissions of the defendant will be summarised later in these reasons, but it is necessary as a consequence of one of those submissions, to deal with the circumstances of the sexual encounter.

14. The defendant requested that the victim sit on top of him so that he could have intercourse with her. The victim responded that she did not know if she wanted to do this. Nevertheless, the victim sat on top of the defendant and he inserted his penis into her vagina, causing her to feel immense pain. She said: "[CD], that really hurts, it really hurts" and "I feel uncomfortable".

15. At that point, the defendant placed the victim onto her back; got on top of her; and put his penis into her vagina, whereupon she again experienced pain. The defendant told her that he was "almost there". The offender continued to thrust his penis into the victim's vagina causing her to bleed. After this occurrence, the defendant removed his penis and lay beside the victim. They started to watch a movie.

16. Whilst watching the movie, the offender said he wanted to cuddle. The victim said that is okay and put her computer on the bedside table. After doing this she lay on her right side and the offender cuddled her from behind. During this time, the defendant inserted his penis into her vagina and began thrusting. The victim said, "what are you doing?". The defendant ejaculated.

17. After a while, the offender put his penis into the victim's anus. He had not asked the victim whether he could and the victim said, "I want you to stop. I don't want to do this anymore". The defendant stopped. The defendant and the victim went to a chemist and purchased an emergency contraceptive pill, because the victim was afraid of becoming pregnant.

18. One week later, the offender and another person met up at the other person's friend’s house. The defendant bought some alcohol. The victim was in attendance and she, the defendant and two other people were drinking alcohol. While sitting on the bench at the park, the defendant began to penetrate the victim digitally through a hole in her leggings. She asked the defendant what he was doing and the defendant replied, "what do you think I'm doing, I'm going to finger you ". The victim said, "oh okay".

19. Shortly after the offender took his penis out of his pants and the victim performed oral sex on him, which was witnessed by one of those persons present.

20. Shortly after the incident referring to oral sex the defendant invited the victim to go to the public toilet and “have sex". The defendant and the victim entered the disabled toilet together and, when inside, the defendant and the victim lay on the floor. The defendant put his penis into the victim's vagina as she lay on her back. The victim recalls that the offender withdrew his penis, removing a condom, saying that it broke, before throwing it on the ground. The defendant opened the door and walked away.

21. All of the offending described above is criminal, because the victim was under the age of 16 and unable to consent, as a matter of law. Nevertheless, some of the conduct, in my view, would at least involve recklessness as to the consent of the victim, even were the victim of an age where consent was possible.

22. As earlier stated, at the time that the index offences occurred, the defendant was on parole for offences committed in 2016. The defendant has a significant criminal history. Apart from this criminal history, the defendant was involved in a sexual encounter with an older woman when he was under the age of consent, but informed Police, in relation to that conduct, that he did not consider himself a victim of sexual abuse. This was in circumstances where it was alleged that the sexual partner of the defendant was guilty of an offence relating to the defendant, who was under age.

23. The defendant, as is obvious from the foregoing, has a criminal history apart from the index offences. That criminal history commenced in 2011 and there were a number of assault and property damage offences that occurred between 2011 and 2016. Most of those offences were dismissed pursuant to the terms of s 32 of the Mental Health (Forensic Provisions) Act 1990. Some were the subject of a bond order; some were dismissed with caution; and in relation to some, the defendant was put on probation. The State has provided a summary of the juvenile offending to May 2016 which is contained in the Court Book. [4]

    4. Exhibit A.

24. In 2016, when the defendant was 18 years of age, he was charged with a series of sexual offences relating to two other complainants, not being the complainant in the index offences. Those complainants were 14 years of age. One was his then girlfriend and one was a friend of his then girlfriend. The defendant also pleaded guilty to those charges. [5]

    5. Exhibit B, being Exhibit DY-1 to the Affidavit of David Yang, affirmed 1 September 2021, tab 16.

25. For those offences, the defendant was sentenced by a Magistrate to a term of imprisonment of 12 months, which was wholly suspended with conditions. This was after noting that the defendant had already spent seven months in custody. [6]

    6. Exhibit B, tab 16.

26. Subsequent to the imposition of the suspended sentence or the commission of the offence that gave rise to it, the defendant was involved in an assault occasioning actual bodily harm, committed on 31 January 2018, while he was in custody.

27. As already stated, the defendant was, prior to the issuing of these orders, subject to an ISO which issued after (or just prior to) the expiry of the previous ESO. The original ISO, imposed by Lonergan J, was extended on three occasions, being 1 December 2021, 31 December 2021, and 18 January 2022 by the Court differently constituted. The ISO is due to expire on 5 February 2022.

28. Over and above the foregoing, the Court, differently constituted, made an order restricting access to the court file. That order is extant, will continue and will be re-issued. The order requires leave of a judge of the Court in order to gain access to the file of the Court and, if any such application were to be made, the parties to the proceedings are required to be notified and given an opportunity to be heard. That order was sought by the State and the defendant consented to it. Similarly, the State and we defendant consented to the suppression orders issued by Lonergan J.

Summary of evidence

Plaintiff's evidence

29. The State relies upon three affidavits and two expert reports. It relies upon the affidavit of David Yang, affirmed 1 September 2021, to which was attached Exhibit DY-1, the latter becoming Exhibit B in the proceedings. The exhibit contains, amongst other things, a Risk Assessment Report authored by Ms Sarah Wright, dated 31 March 2021, and a Risk Management Report by Ms Shantelle Hodgkinson, dated 5 May 2021.

30. The State also relies upon a second affidavit of David Yang, affirmed 21 October 2021; and a third affidavit of David Yang affirmed 20 December 2021. As earlier stated, the State relies upon the two expert reports being the reports of Dr Furst and Mr Sheehan, to which earlier reference has been made.

31. Before dealing in more detail with the expert reports, it is necessary to deal more fully with the defendant's early childhood. The defendant has an older brother, who was approximately three years older than the defendant. His mother fell pregnant with the defendant unexpectedly and she and the defendant’s father separated when the defendant was six months old. The defendant’s mother had an extensive history of mental health issues and also suffered from untreated post-natal depression for many years, exacerbated by the father's decision to leave.

32. As a consequence of that post-natal depression, the defendant’s mother found it very difficult to bond with the defendant, at least during the first six months of his life. The defendent’s mother has been diagnosed with bipolar disorder and in sessions with a psychiatrist disclosed symptoms of trauma relating to episodes of abuse.

33. The defendant’s mother entered a relationship when the defendant was 18 months old. Shortly after, the mother gave birth to 2 children. The new partner was emotionally and physically abusive towards the defendant, his older brother and his mother.

34. It seems that the defendant was sexually abused by a family acquaintance at four years of age. The matter was not investigated or charged, however, according to the mother, a medical practitioner confirmed there had been anal penetration of the defendant with utensils. It is possible, if not likely, that the sexual abuse was on more than one occasion.

35. In 2007, when the defendant was 9 or 10, he was accused of molesting his younger sister and engaging in digital penetration and in 2009, around Easter, there were two substantiated claims of a sexual nature, where the defendant was the perpetrator and his two younger sisters, three and four years younger than the defendant, who was 10 at the time, were the victims of separate incidents that occurred several times.

36. Further, during his childhood, at least from 2007, the defendant displayed antisocial behaviour, including: lighting fires; playing with knives; and hurting others. As a consequence of that behaviour the defendant was sent to live with his father.

37. During the period that the defendant lived with his father, the defendant's aggression escalated. In 2011, as a consequence of the escalating aggression displayed by the defendant, the father returned the defendant to his mother. From about 2011, shortly after the return of the defendant to his mother, the defendant commenced visiting a clinical psychologist. [7]

    7. Report of Dr Kenneth Nunn, Senior Consultant, Child and Adolescent Psychologist, Department of Psychological Medicine, Exhibit B, Court Report, 26 July 2011, Tab 38.

38. It is necessary to deal with the report of Mr Sheehan and the report of Dr Furst. Each of the experts assesses the risk associated with the defendant's mental state and history of offending.

39. Dealing first with the report of Mr Sheehan, he notes[8] that the index offences against a 14 or 15-year-old girl (or a number of them) do not involve Paedophilic Disorder. He states:

“The age difference of only 3-4 years between [CD] and the complainants is a relevant consideration in understanding the pathology of his sexual behaviour. The age difference could still be considerably within the realm of peer sexual encounters, which in itself does not constitute a paraphilic disorder. However, the number of complainants within a short period, the earlier reports of sexual acting out (when [CD] was aged as young as 10 years), his indifference to clear indicators that the complainants were uncomfortable, and the persistence of offending despite being charged, are all suggestive of sexual psycho pathology. His history is more in keeping with sexual disinhibition underpinned by hypersexual arousal and absence of internal boundaries. There may be scope for a diagnosis of Unspecified Paraphilic Disorder, but I am not confident that the disorder will persevere into adulthood."

8. Expert Report of Mr Patrick Sheehan, 10 December 2021, Exhibit A, Tab 9 at [27].

40. In referring to the treatment of the defendant for sexual offending under the High Intensity Sex Offending Program (HISOP), the report of Mr Sheehan notes that the final treatment sessions were undertaken individually as a result of the COVID 19 precautions. He refers, in particular, to the final treatment notes which refer to the defendant's "negative attitudes towards women, his negative view of himself, and his hostile attributions to the world, with these factors working to impede his empathy and perspective taking. He continued to question whether his sexual behaviour had constituted an offence, and could not understand why others perceived that he could be a risk of reoffending, which was seen as an artefact of his fragile self-esteem. He felt he was being 'set up to fail'. When I asked [CD] about his experience in HISOP he said that he did benefit from the program despite his difficulties. When asked to be specific he said: 'learning how to cope with emotions'."

41. Mr Sheehan undertook a risk assessment using both static and dynamic tools. The dynamic tools included a rating on established risks factors ("RSVP). The static assessment, which does not vary according to developments in the patient or treatment programs, scored the defendant at 9, which is a score which puts him in the "well above average risk" category. This is a relative category measured against other male sexual offenders.

42. Mr Sheehan, as is well known to anyone dealing with these issues, states the limitations associated with static testing and makes it clear that it is impossible accurately to predict whether a person will reoffend. Nevertheless, the use of RSVP, which is a structured professional judgement tool, measures the patient against 22 dynamic risk factors that have been noted as important in studies and scientific and professional literature. Those factors relate to the 5 domains of Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment, and Manageability. Those factors overlap.

40. Mr Sheehan assessed the defendant's sexual violence history as chronic and noted the credible reports of abusive sexual behaviour throughout his early development from the age of 10. He notes, however, that it remains to be seen whether the chronicity of that offending and behaviour will persist into adulthood. Mr Sheehan notes the presence of psychological coercion, but not physical coercion in relation to the offending and notes the allegations of the early intrafamilial offences.

41. As to the psychological adjustment, Mr Sheehan notes that the defendant acknowledged sexual contact with the complainants but has always struggled to accept his behaviour as sexual offending, even after intensive sex offender treatment programs. Mr Sheehan considered this as minimisation of offences and a barrier to engaging effectively in treatment. Mr Sheehan noted that there had not occurred any sexual violence, but that the defendant has a history of hostile attributions towards women, considering that they are untrustworthy or sexually available.

42. The defendant also has chronic problems with self-awareness and self-appraisal and has had such problems at least since childhood. The defendant struggles to understand his own motivation and that of others.

43. In dealing with the factor of mental disorder, Mr Sheehan notes that sexual deviants are strongly and specifically associated with sexual violence. The other risk factors are associated with the risk of violence and criminality and appear to play an indirect role by contributing to an offender's vulnerability towards antisociality.

44. Once more, Mr Sheehan notes that, while there may be an available diagnosis of Unspecified Paraphilic Disorder, there is no clear evidence that this will persist into adulthood. Mr Sheehan then notes the history of major mental illness diagnoses.

45. The defendant has been diagnosed in the past with Bipolar 1 Disorder and chronic PTSD (Post Traumatic Stress Disorder). Mr Sheehan explains the diagnosis of Bipolar Disorder is of relevance in cases of sexual offending, given the association between mania and sexual hyperarousal and sexual recklessness.

46. The defendant also has a history of serious problems with substance abuse. While the defendant denies any link between his substance abuse and the offending, Mr Sheehan expresses the view that this is clearly a risk factor for sexual offending. His Substance Use Disorder is currently in remission. Further, Mr Sheehan notes a history of both violent and suicidal ideation.

47. Next, Mr Sheehan deals with the factor associated with Social Adjustment. He notes in his report that the defendant has serious problems with intimate relationships, having a history of age-inappropriate partners. There were problems with non-intimate relationships; problems in his relationships with family, including violence and inappropriate sexual behaviour; problems with employment; and a history of persistent and frequent criminality.

48. Lastly, in dealing with Manageability, Mr Sheehan refers to the defendant's history of serious problems with planning, and, in particular, an inability to devise and follow prosocial plans and goals.

49. Mr Sheehan then refers to the significant history of non-sexual violence in the defendant's background. However, he notes that none of the violent offences are convictions for a "serious violent offence" which would allow the Act to operate on those offences.

50. In dealing with the defendant's rating on the Violence Risk Scale (VRS), Mr Sheehan scored the defendant and noted that 44.5% of the control group upon which the score is based with a similar score, were criminally convicted for a new violent offence within five years after release to the community. This was in comparison with the reconviction rate for violent offences in the sample population of 39.5% within 5 years.

51. Mr Sheehan considers that the score accurately identifies the defendant's risk of violence and suggests that he would more likely reoffend through violence than through sexual offending.

52. Overall, Mr Sheehan repeats that the defendant on static factors is in the well above average range for sexual offending and also in the upper range for violence offending. Further, an examination of known dynamic risk factors for sexual offending reveals, in the defendant, the presence of a range of factors, mostly pertaining to his personality orientation; psychological adjustment; substance abuse; and poor social adjustment.

53. Mr Sheehan states that the evidence before him has led him to estimate the defendant's overall risk of sexual offending to be in the above average or medium-high range of the risk spectrum. That sexual offending would seem to pertain to young vulnerable females who are known to him. The fundamental risk is that the defendant would be indifferent to the age of a potential victim, being more focused on having his needs met (both sexual and positive attention), feeling more secure and confident in the company of younger girls due to his insecurity and low maturity and disregarding the possible consequences of his choices.

54. In dealing with the proposed supervision, Mr Sheehan considers the conditions sought by the State as reasonable and appropriate. There are two more aspects that need to be emphasised.

55. First, Mr Sheehan takes the view that there should be a timeframe specified for the removal of scheduling and electronic monitoring because there is a perception amongst offenders that conditions are arbitrary and that there is no transparency as to when the conditions might be removed.

56. Secondly, Mr Sheehan notes the conditions imposed by Lonergan J on 2 November 2021 and describes them as effective, with the advantage of being less lengthy. In particular, Mr Sheehan expresses the view that it is important that the transition from ISO to ESO is not experienced by the defendant as a backward step in terms of tightened supervision.

57. In his view all the supervision should follow a path of attenuating restriction and added restriction should be introduced only in response to escalating risk. However, he takes the view that a three-year duration for the ESO is an appropriate length as one that will work towards long-term stabilisation of the defendant in the community.

58. During the course of the report, Mr Sheehan notes the treatment of the defendant with medication and his visits to a psychologist under the GP Mental Health Care Plan every three weeks. Mr Sheehan expresses the view that the defendant meets the criteria for Polysubstance Use Disorder (Moderate-Severe, in sustained remission, on opioid agonist-antagonist therapy). He notes the history of the defendant and considers that it is consistent with Antisocial Personality Disorder, noting that he has had and still exhibits a conduct disorder and a pervasive pattern of disregard for and violation of the rights of others, which has occurred since the age of 15, with a failure to conform to social norms, deceitfulness, impulsivity, aggressiveness, recklessness, irresponsibility, and limited remorse. Notwithstanding the earlier diagnosis of Dr Nunn of Bipolar Disorder, Mr Sheehan takes the view that it is more likely that he suffers from Borderline Personality Disorder, which diagnosis he confirms.

59. Much of the report of Dr Richard Furst is consistent with the reported opinions expressed by Mr Sheehan. After reciting the defendant's early history, Dr Furst notes certain courses that have been undertaken by the defendant and the availability of programs funded through the NDIS and other programs. Dr Furst also describes the index sexual offending.

60. It is unnecessary to repeat that description. It is unnecessary to repeat at length the findings and views expressed by Dr Furst. Nevertheless, the whole of the report has been taken into account in the determination of those matters.

61. Dr Furst identifies the level of risk by reference to factors specific to the defendant that he assessed as giving rise to a risk. Dr Furst expressed the opinion that the defendant posed a risk of committing further serious offence, as defined in the Act. The risk factors are set out in the Report. [9]

    9. Report of Dr Richard Furst, 16 December 2021, Exhibit A, Tab 10.

62. In detailing the dynamic or variable risk factors that correlate with a higher risk of sexual offending and reoffending that are present in the defendant, Dr Furst noted the following dot points:

"Attitudes condoning sexual violence: the psychology notes from his HISOP files, as recent as August and September 2021, contained reference to descriptions of women as 'whores' who 'only want one thing' and cognitive distortions/rules around how women should behave. [The defendant], viewed women as wanting sex if they are flirtations (e.g. laughing, smiling, touching, flicking their hair). He also has rigid [distorted] ideas of consent, such as 'if they don't say no or stop then he won't think about whether they consent.’ Because that will 'do his head in' and 'it's their fault if they don't make these overt statements'.

Antisocial attitudes/behaviour: [the defendant] has antisocial and resistant attitudes towards authority … those attitudes contributed to a history of defiant behaviour in the community and previous supervision difficulties as a juvenile.

Hyper-sexuality: Dr Nunn observed his precocious attitude/sexual interest from an early age, a pattern that appears to be enduring having regard to his HISOP case notes.

Intimacy deficits: [the defendant] has interpersonal and intimacy deficits and lacks the capacity for meaningful/healthy relationships …

Lack of victim empathy: empathy has been observed as a deficit in HISOP and he tends to dismiss away the impact of his actions by falsely maintaining that the victims told him they were 16 at odds with the facts you bring to one sentence in the Parramatta Local Court …

Negative attitude toward supervision: [CD] has a long history of being difficult to engage and hard to supervise. Similar patterns emerged in HISOP where he was frequently argumentative and/or blamed staff. It is likely he will present supervision difficulties to his DSo and other agencies when managed on an ISO/ESO.

Access to victims: [the defendant] has offended in an opportunistic manner against teenage girls. He has befriended and then exploited sexually. He has good verbal skills and seems personable/sociable, at least superficially, meaning teenage girls he meets in the future would be at risk without him being adequately supervised/monitored.

Substance abuse: [CD] has a lengthy history of alcohol and substance abuse/dependence. He is currently managed on Buprenorphine but there remains a high risk of relapse into drinking and/or drug use in the future, especially if not adequately supervised.

He does not have cognitive impairment."

66. Dr Furst then notes that the dynamic risk factors that he describes are consistent with previous risk assessments that were performed on the defendant. He notes that the defendant is a person having high density of criminogenic needs.

67. In describing how the defendant’s risk factors might change or fluctuate and what effect this might have on his likelihood of committing further serious offences, Dr Furst notes high risk scenarios in relation to the defendant most likely relating to periods in which he was experiencing high levels of emotional stress dysregulation, using drugs again and/or associating with antisocial peers. In that scenario, Dr Furst expresses the opinion that it would be easy to envisage the defendant exploiting young teenage girls for sex and caring little about the consequences of any such actions on himself or the potential victim.

68. Dr Furst also refers to another potential high-risk scenario for committing of an offence of serious violence of a nonsexual nature being in a period of emotional instability associated with drug use. His problems and risks in relation to drinking and/or drugs are considered by Dr Furst as long-term.

69. It is necessary to refer to the view expressed by Dr Furst as to the appropriateness of the conditions imposed by Lonergan J in the ISO and the appropriateness of the conditions sought in the ESO. As to the conditions in the ISO, which mirror the conditions on parole, Dr Furst considers that the conditions do not provide adequate specific conditions of supervision to protect potential people, places and victims. Dr Furst expressed the view that the conditions endorsed by Lonergan J are less likely to ensure that the defendant has adequate monitoring and supervision in relation to identifying individual risk factors that may need to be managed in the community.

70. On the other hand, Dr Furst considers the conditions outlined in the schedule to the amended summons of 27 October 2021 to be very comprehensive and more appropriate in the circumstances as they relate to the defendant. Dr Furst also considers the three-year period sought to be appropriate in all circumstances.

71. Lastly, Dr Furst expresses the opinion that the defendant’s long term prognosis is poor. Given that the longer term effects of childhood abuse and neglect tend to be enduring, he recommends longer-term psychotherapy for the PTSD, and that some benefit may be gained by medication which he recommends and which it is unnecessary to recite.

72. In the course of his report, Dr Furst summarises in detail the psychiatric report of Dr Nunn, to which earlier reference has been made. He also summarises the reports of Ms Baker, psychologist, and other relevant assessments.

73. As to the diagnosis, Dr Furst expresses the opinion that the defendant meets the diagnostic criteria for the following psychiatric or psychological conditions: Borderline Personality Disorder; Post-Traumatic Stress Disorder (Complex type); and Alcohol and Substance Use Disorder. Dr Furst assessed the defendant's risk of committing a further serious offence, especially an offence of a sexual nature, as well above the risk posed by the average sex offender in New South Wales; it being a risk that cannot be effectively or adequately managed in the community without supervision involving an appropriate order.

74. Further, Dr Furst expresses the view that without an order of that kind the defendant would likely disengage from services that are otherwise available voluntarily. This is evidenced by his conduct during his teens, his association with antisocial peers, his use of drugs and the likelihood that he would be involved in scenarios in which young teenage girls would be exposed to an unacceptable risk of being exploited and sexually assaulted by the defendant. In particular, he refers to the dynamic and static risk factors in the report being the risk assessment report, of Ms Wright. [10]

    10. Exhibit B, Tab 4.

75. Lastly, as earlier stated, Dr Furst expresses the view that an ESO would provide an appropriate framework for supervision, monitoring and management of the defendant.

Submissions of the State of New South Wales

76. The State of NSW submitted that the defendant had a history of sexual misconduct and inappropriate behaviour from a young age, including a criminal history, commencing at the age of the 13. An appendix [11] outlined the juvenile offending.

    11. Exhibit A, Appendix B, Tab 11.

77. In the submission of the State, the defendant has exhibited significant mental illness and/or personality disorder from an early age and, although there is some difference in the specific diagnoses that have been applied, there is unanimity that the defendant suffers from a psychiatric disorder and/or personality disorder. These reasons have already recited the diagnoses of Mr Sheehan and Dr Furst and the earlier diagnosis of Dr Nunn.

78. Other diagnoses of the defendant have included Schizophrenia, Oppositional Defiant Disorder and Antisocial Personality Disorder.

79. The State concedes that none of the experts support a conclusion that the defendant has a Paedophilic Disorder or Paraphilic Disorder, owing to the minimal age gap between the defendant and his victims (a maximum of four years).

80. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) refers to three diagnostic criteria for paedophilia. First, there should be, for a period of at least six months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children, generally under the age of 13. Secondly, the individual should have acted on these sexual urges, or the sexual urges or fantasies should have caused marked distress or interpersonal difficulty. Thirdly, the individual, in order to be diagnosed with a paedophilic disorder, should be at least 16 years of age and at least 5 years older than the victim referred to in the first of the criteria.

81. Plainly, the sexual offences of which the defendant has been convicted, do not relate to conduct that would meet the criteria for paedophilia under DSM-5. On the material before the Court, if there were a paraphilic disorder, it is likely more consistent with hypersexuality than with paedophilia.

82. In its submissions, the State relies, in particular, on the following evidence regarding the behaviour of the defendant:

1. In 2015, the treating psychiatrist reported the defendant was "difficult to engage in psychological treatment" [12] and that drug and alcohol use, of which the defendant has an extensive history, "have a major destabilising effect on his mental illness";

   12. Written Submissions of the Crown, p 7.

2. The sustained and consistent pattern of offending of the defendant involves primarily violent offending, many occurring in a domestic context;

3. The defendant is prone to violent and aggressive outbursts;

4. The defendant has a poor history of compliance with court orders, having breached many of the bonds, AVOs and probation orders imposed with respect to juvenile offending;

5. The attitude of the defendant to his offending is characterised by “minimisation, attribution of blame to victims, and denial of serious consequences to victims";

6. The Risk Assessment Report undertaken by Ms Wright on 31 March 2021 reports that the defendant poses a “well above average/needs level and falls within the moderate/elevated risk category for sexual violence;

7. The defendant does not have good prospects of community support and stability.

83. The State submitted that the defendant "poses an unacceptable risk of committing another serious offence if he is not detained for a period of time sufficient for him to complete the High Intensity Sex Offenders Program (HISOP) and then supervised in the community following his release.” The HISOP program has now been completed and the supervision to which the State refers is the ESO. Lastly, the State submits that the conditions sought in the ESO involve measures to manage the identified risks regarding living arrangements, relationship management, mental health treatment and substance use.

84. The written submissions deal with all the matters relevant to the application for an ESO, most of which, if not all of which have been detailed earlier in these reasons. It also summarises and recites the diagnoses contained in the reports of the two experts, Dr Richard Furst and Mr Patrick Sheehan.

Defendant’s submissions.

85. The defendant opposes the making of an ESO. The defendant submits that the defendant does not pose an unacceptable risk of a kind that would allow the Court to bind the defendant TO conditions under s 11 of the Act or make an order binding on him at all.

86. The defendant does not take issue with the statutory preconditions for making an order, other than the determination of an unacceptable risk, and, in particular, concedes that the defendant has served a period of imprisonment for a serious sexual offence; [13] the defendant is a supervised offender; [14] and the application is made in accordance with the requirements set out in s 5I, of the Act. [15] Those concessions are properly made. The history of the applications, earlier recited, together with the custodial and parole arrangement applicable to the defendant satisfy those conditions.

    13. Crimes (High Risk Offenders) Act, s 5B(a).

    14. Crimes (High Risk Offenders) Act, s 5B(b).

    15. Crimes (High Risk Offenders) Act, s 5B(c).

85. Essentially, the defendant opposes the making of an ESO on the basis that the Court should not be satisfied, to a high degree of probability, that the defendant presents an unacceptable risk of committing a further serious sex offence if not kept under an ESO. [16]

    16. Crimes (High Risk Offenders) Act, s 5B(d).

86. In the alternative, if the Court were of the view that an ESO is required and the criterion in s 5B(d) is satisfied, the defendant resists the imposition of conditions sought by the State and presses, instead, for the current conditions in the ISO (which continue the parole conditions) to continue. That submission is subject to amendment relating to electronic monitoring and the schedule requirements.

87. Further, the defendant opposes the imposition of an ESO over a period of 3 years and seeks a shorter timeframe.

88. The submissions of the defendant details his background, which has been recited by the Court earlier in these reasons. He also notes that the defendant has undertaken a number of courses and treatments while in custody. These include: EQIPS-Addiction; EQIPS-Foundation; Real Understanding of Self-Help Program; and the High Intensity Sex Offender Program (HISOP).

89. The defendant refers to the failure to grant parole when it was due, notwithstanding the comments of the sentencing judge in finding special circumstances so that the defendant could engage in supervision in the community. The parole was refused because the defendant remained "untreated" in relation to his sex offending.

90. However, the defendant had expressed an interest in completing a sex offender program on 13 December 2018, only two months after he had been sentenced by the District Court. Notwithstanding that request, the program had not been completed by the time he was first eligible for parole and he was considered "untreated".

91. Further, the defendant points to the proposition that the defendant was granted parole as late as approximately two weeks prior to the completion of his head sentence. As a consequence, the State, in one or other of its emanations, was treating the ESO as a form of parole.

92. There is no contest between the parties as to the summary of the test for determination of whether a person poses an unacceptable risk.

93. The defendant submitted that any suggestion that a future offence would amount to a “serious offence” is merely speculative and the Court could not be satisfied of the likelihood of that occurrence to the required standard, being a high degree of probability. The defendant sets out the nature and seriousness of the index offending, and asserts that "had the victim of been one year older, the defendant's conduct would not be a criminal offence, leave alone serious sex offence.”

94. That submission is true of some of the counts for which the defendant was sentenced. It may or may not be true of the more serious counts. At the very least, there is an inference available, notwithstanding that it was not an element of the offences involved, that the defendant was reckless as to the existence of consent and ignored the expressions of reluctance or opposition or lack of comfort to the conduct being perpetrated.

95. Nevertheless, the defendant's submissions point to the fact that the defendant is now 22, not 18 and any sexual contact is likely to be with a person more closely aligned with his age rather than someone more than six years younger.

96. The defendant submitted that the reports of Mr Sheehan and Dr Furst contain an inconsistency in relation to the risk for future sexual offending. Dr Furst expresses the opinion that the risk of reoffending in a sexual matter is well above the average sex offender. The defendant submitted that this contrasts in a manner inconsistent with the determination of Mr Sheehan that the defendant's overall risk of sexual offending is “above average or medium-high range of the risk spectrum".

97. It is accurate that Dr Furst expresses his opinion in words that are different from that of Mr Sheehan. The assessment of risk of future offending is not an exact science as each of Dr Furst and Mr Sheehan attest. Nevertheless, in my view, there is no inconsistency or necessary inconsistency between an assessment of “well above the risk of the average sex offender" and an assessment that is "above average or medium-high range of the risk spectrum”.

98. The whole of the submissions of the defendant have been taken into account. Other aspects of the reports of each of the experts are the subject of submission. The defendant also submits, as earlier stated, that the ESO regime should not act as a pseudo-parole mechanism. I agree with that submission.

99. Apart from the treatment programs to which earlier reference has been made and which were completed in prison, the defendant points to the completion or engagement in Weekly Forensic Psychology Service; private psychologist appointments every three weeks; National Disability Insurance Scheme; the Buprenorphine program to which earlier reference has been made; and the medication regime overseen by a psychiatrist.

100. The defendant relies upon a passage in the Second Reading Speech to the Crimes (Serious Sex Offenders) Bill relating to the Bill applying to a “handful of high-risk, hard-core offenders who have not made any attempts to rehabilitate whilst in prison". The circumstances of the treatment both in prison and out of prison which the defendant has undertaken point to the defendant not being in the foregoing category.

101. Further, the defendant points to all the support mechanisms available in the absence of an ESO, which include: the Child Protection Register (currently in place); the Child Protection Prohibition Order, which can be sought but is not currently in place; Community Treatment Order, which can be sought but is not currently in place; scheduling under the Mental Health (NSW) 2007, which can occur; a NDIS inclusive program coordinator, psychologist and psychiatrist, currently in place; and the Buprenorphine program, which is currently in place.

102. The defendant submits that the support mechanisms associated with those programs are sufficient to allow the Court to determine that there are other less restrictive means to deal with the issues of the defendant and his risk of reoffending, if there were one.

103. The defendant also points to the generally good compliance with the regime of supervision that has been in place since October 2021. While conceding that this is not a significant amount of time, it points to the defendant taking positive steps to develop stability in his life through employment, accommodation and healthy relationships.

104. The reference relationship is a reference to the relationship the defendant currently has with his partner. The person, who is the subject of a report arising from a conversation with a relevant officer, was aware of some, but, seemingly not all, of the limitations imposed upon the defendant. It is a person with whom the defendant had a prior relationship, but the current relationship, for obvious reasons associated with the defendant's conditional liberty, has not subsisted for very long. Currently, there are restrictions limiting the contact between the defendant and his partner.

105. Lastly, the defendant takes issue with the conditions sought by the State and seeks with some variations, a continuation of the conditions imposed by Lonergan J in the ISO, being a continuation of the Parole Conditions.

106. Those conditions workable, easily understood and working well. There have been no breaches and there have been no warnings issued in the short time since they have been imposed. I have otherwise dealt with the issues associated with the duration of the orders.

Consideration

109. In many respects having commented, in the course of the foregoing on the nature and extent of the defendant's issues and the assessment of the experts, this consideration and this aspect of the reasons can be relatively briefer than might otherwise be the case. As earlier stated, the parties are in agreement as to the principles to be applied.

110. However, it is necessary to repeat one aspect of the principles that are applicable.

111. Relevantly, the issue in contention between the parties, is whether the Court can be 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. [17] Pursuant to the terms of s 5D of the Act, the 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.

     17. Crimes (High Risk Offenders) Act, s 5B(d).

112. As has been stated on a number of occasions, the assessment of unacceptable risk involves a matrix. It involves, first, an assessment that there is a likelihood, being something more than a mere possibility and something more than insignificant, that a serious offence will be committed. Secondly, it involves an assessment of the damage that would be caused if the serious offence were committed.

113. The Court is not required to determine to a high degree of probability that an offence will be committed. [18] Rather, having come to an assessment that there is a likelihood of the commission of a serious offence, the Court assesses that likelihood, together with the effect of the commission of such an offence, and determines whether the offender, as a consequence of that combination, poses an unacceptable risk of committing another serious offence.

     18. Ibid.

114. As the Court, as presently constituted, has stated on another occasion relating to this Act and in relation to the Terrorism (High Risk Offenders) Act, a high degree of probability for the commission of an offence the effect of which would be a minor injury may not be an unacceptable risk. However, where there is a likelihood, being something more than a mere possibility, that an offender will commit an offence the effect of which would be horrendous or heinous, the mere fact that the likelihood of the commission of the offence is low does not, in and of itself, render the risk otherwise than unacceptable.

115. The submission of the defendant as to the inability of the Court to be satisfied "to a high degree of probability" deals, essentially, only with the likelihood that a serious offence will be committed. It does not involve an assessment of the matrix, which includes the manifestation of the commission of such an offence.

116. The expert reports make clear that there is a likelihood that the offender will commit a further serious sexual offence and, probably, serious violent offence. The defendant is assessed as well above average in terms of risk factor, compared with the average sex offender, or, above-average or medium-high range of risk of the commission of such offences. That is the view of the experts in the evidence that is before the Court.

117. Plainly, the view expressed by the experts is a view which is consistent only with there being a likelihood, more than a mere possibility, of the commission of a serious offence. If such a serious offence were committed, it would have, as has been stated most eloquently by Girdham SC DCJ, significant life-long effects on any victim.

118. The combination of the above average risk of an offence being committed together with the effect of the risk on one or more victims of such offending leads me to the view that there is an unacceptable risk of committing another serious offence and I determine that view to a high degree of probability. I am not required to determine that the risk of an offence being committed is more likely than not.

119. Further, as recited above in summary of the reports of the experts, it is unlikely that the defendant would continue with voluntary services that are available under NDIS and other such programs.

120. As I have expressed on other occasions, the process available under the Child Protection Registry and/or the Child Protection Prohibition Order scheme and/or under Community Treatment Orders is a process that is geared to the therapeutic needs of the patient and is not a process which sufficiently supervises those persons who pose an unacceptable risk of committing another serious offence. While there is available involuntary scheduling under the Mental Health Act, if, in a worst case scenario, it was necessary to schedule the defendant, such a regime or occurrence would not be less restrictive than the conditions imposed under the current ISO or proposed by the State for the ESO that it seeks.

121. I have reached the conclusion, as earlier stated, that an ESO should issue. I am 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 an ESO.

122. Notwithstanding the foregoing determination, I am mindful of the nature of the offending that has occurred and the submissions that have been made in relation to the growing maturity of the defendant and his behaviour under the current ISO and/or for the short period beforehand, under parole.

123. I raised with the legal representatives of the defendant, during the course of the proceedings, an aspect that is of some concern. The general nature of the conditions imposed under the ISO and previously imposed under the parole order, provide to the DSO a significant degree of flexibility in determining the conditions that should apply to the subject matters that are recited in the conditions.

124. The only limitation on the conditions that may be imposed in relation to those subject matters is that the condition needs to be imposed in circumstances where the DSO was acting reasonably. In many respects, a more detailed set of conditions would operate to limit the capacity of the DSO to give directions of a particular kind or that may be inconsistent with the interests of the defendant as the defendant perceives them. The current limitations of the DSO as to the contact between the defendant and his partner is a prime example.

125. Notwithstanding the Court having raised that issue with the defendant, the defendant persevered with the submission that the terms of the ISO should continue in an ESO. The foregoing summary is subject to the variation in relation to monitoring and schedules to which earlier reference have been.

126. The first issue is the duration of the order. The defendant has been under the ISO conditions for a few months. That is hardly sufficient time to determine that the defendant's circumstances have stabilised and his regime sufficient to allow a voluntary regime to overtake the ESO.

127. Nevertheless, I consider that a three-year period, being the period sought by the State, is a period that is too long. I am mindful of the fact that the State has the capacity to renew the ESO or more accurately to seek a new ESO at the conclusion of this ESO.

128. However, I am also mindful of the fact that, after a period of two years, the conduct of the defendant in the community and his attitude towards women, including any hypersexuality, would be easily assessed. In my view, the duration of the ESO should be for a period of 2 years commencing 5 February 2022.

129. Notwithstanding my view that the current ISO permits a degree of flexibility that is not necessarily appropriate, I am also mindful of the comments made in the expert reports to the effective that the defendant's transition from the ISO to the ESO ought not be seen as one that imposes a stricter regime. A set of more detailed conditions, under s 11 of the Act, even if they, as a matter of construction, reduce the flexibility of the DSO to make directions of a particular kind, may be perceived to be a more onerous regime and I consider that perception would be counter-productive. I take account of the fact that if there are difficulties associated with the issuing of directions by the DSO, the State has the capacity to seek to vary ESO during its operation. [19]

     19. Crimes (High Risk Offenders) Act, s 13.

130. Thus far, the State has been unable to establish that any difficulty has arisen as a consequence of the general nature of the conditions imposed under s 11 and operating as a consequence of the making of ISO by Lonergan J. In those circumstances, it is preferable for the Court to continue the conditions that are currently applying.

131. I turn then to the proposals of the defendant in relation to two issues. First, the defendant proposes a far more detailed condition relating to the provision of a weekly plan. The proposal requires the defendant to submit such a schedule three days before it is due to start; allows for amendment by notification 24 hours in advance and, implicitly, provides for disapproval for such an amendment. It provides that the DSO cannot withhold approval of the defendant's attendance at a location unless such attendance would give rise to a risk of committing a serious offence and prohibits the defendant from deviating from the approved schedule, other than in the case of an emergency. Further, there is a sunset provision that the condition will cease to operate after 12 months.

132. Generally, I agree with the defendant's proposal. There are two detailed exceptions to that agreement. It seems to me that the withholding of approval may occur not only on the basis of a risk of committing a serious offence or a risk of breach of another condition of the order, but also as a consequence which detracts from the rehabilitation process and stability that is otherwise necessary as a consequence of the conditions. I will, in the orders, reword condition 10(b).

133. Lastly, I do not consider that there should be a sunset provision requirement on the defendant to provide a schedule or weekly plan. Such a process should occur during the whole of the ESO.

134. Electronic monitoring is different issue. In my view, there should be, as recommended by the expert a timeframe, after which electronic monitoring cannot be imposed. Again, I am mindful of the fact that the State has the ability to vary the order, if there is a serious issue associated with the conduct of the defendant. However, I am concerned that the exception provided by the defendant in his proposal is too narrow.

135. In my view, the sunset clause should not operate if there have been breaches, as is proposed by the defendant, but also if there has been conduct which, on a reasonable basis, increases the risk of the commission of a serious offence or inhibits rehabilitation. I will alter the proposal of the defendant in relation to condition 11(a) to reflect that view.

136. Otherwise, the conditions imposed a consequence of this ESO, pursuant to the terms of s 11 of the Act will be in the terms imposed in the ISO.

137. The Court makes the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act2006 (NSW), the defendant shall be subject to an Extended Supervision Order for a period of two years from 5 February 2022;

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed, for the period of the Extended Supervision Order, to comply with the Conditions as set out in in the Schedule of Conditions of Supervision (attached);

3. An order that access to the 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.

220204 - ESO Schedule - State of NSW v CD (2021-251069) (125283, pdf)

**********

Endnotes

Decision last updated: 04 February 2022