State of NSW v Johnson

[2010] NSWSC 990

CITATION:	State of NSW v Johnson [2010] NSWSC 990
HEARING DATE(S):	17 and 19 August 2010
JUDGMENT DATE :	2 September 2010
JUDGMENT OF:	Latham J at 1
DECISION:	I make an extended supervision order pursuant to section 9(1)(a) of the Act, for a period of five years from 3 September 2010. I direct that pursuant to section 11 of the Act, the defendant comply with the conditions set out in the Schedule to the Amended Summons dated 16 August 2010 and attached to these reasons.
CATCHWORDS:	CRIMINAL LAW - Crimes (Serious Sexual Offenders) Act 2006 - Extended supervision order for a period of 5 years - where defendant has lengthy criminal history for offences of sexual assault - where defendant has problem with alcohol abuse and history of non-compliance with parole and supervisory conditions - where evidence of high risk of recidivism
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1998 Child Protection (Offenders Registration) Act 2000 Child Protection (Offenders Prohibition Orders) Act 2004
CATEGORY:	Principal judgment
PARTIES:	The State of NSW - (Plaintiff) Keith William Johnson - (Defendant)
FILE NUMBER(S):	SC 2010/114193
COUNSEL:	Mr Kell - (Plaintiff) Mr Hoenig/Ms Ramsay - (Defendant)
SOLICITORS:	IV Knight - Crown Solicitor - (Plaintiff) Aboriginal Legal Service

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

2 SEPTEMBER 2010

2010/114193 THE STATE OF NSW v KEITH WILLIAM JOHNSON

JUDGMENT

1 HER HONOUR : By Amended Summons dated 16 August 2010, the plaintiff seeks orders against the defendant, Keith William Johnson, pursuant to the Crimes (Serious Sex Offenders) Act 2006 (“the Act”), that the defendant be subject to an extended supervision order under s 9(1)(a) of the Act for a period of 5 years.

2 Until 3 June 2010 the defendant was in custody at the Long Bay Correctional Centre serving a sentence of imprisonment of two years for the offence of indecent assault (pursuant to section 61L of the Crimes Act1900). The defendant committed the index sexual offence approximately two months after his release from custody, for a sexual offence he committed in 2006.

3 On 31 May 2010, I made an order under s 7(4) of the Act for the appointment of two psychiatrists (Dr Stephen Allnutt and Dr Jeremy O’Dea) to examine the defendant and furnish separate reports. I also made an order under section 8(1) of the Act for the defendant to be subject to an interim supervision order for a period of 28 days from 3 June 2010, the date on which the defendant’s sentence of imprisonment expired.

4 On 25 June 2010, an order was made pursuant to s 8(3) of the Act, renewing the interim supervision order for a 28 day period until 28 July 2010. On 26 July 2010 a further order was made renewing the interim supervision order for a further 28 day period until 24 August 2010. On 19 August 2010 I extended the interim order until 3 September 2010.

5 The defendant is 70 years old. He has a history of sexual offences. For the main part, the defendant’s victims have been males aged 16 years or under. The defendant has been convicted of sexual offences in New South Wales in 1992, 1998, 2001, 2007 and 2008. He has also been convicted of a sexual offence in South Australia in 1974.

6 In addition, the defendant has been convicted in 1972 in Queensland of the offence of aggravated assault on a male child and, in 1982 in New South Wales, of the offence of assault on another male child. The circumstances of each of these offences, although not charged as sexual offences, involved a sexual context.

7 In support of the present application, the State relies upon a number of affidavits and expert reports, most relevantly the report of Dr Stephen Allnutt dated 20 July 2010 and the report of Dr Jeremy O’Dea dated 12 July 2010.

8 Sections 6 and 9 of the Act are relevant to an application for an extended supervision order. Section 6 which is headed “Application for extended supervision order” stipulates the circumstances under which the State may apply to this Court for an extended supervision order against a sex offender.

9 Section 6(3) provides that an application must be supported by documentation that addresses each of the matters referred to in section 9(3). Section 9 is headed “Determination of Application for extended Supervision Order” and provides that an extended supervision order may be made “only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.” In determining whether or not to make an extended supervision order, the court must have regard to a number of factors that are listed from (a) to (i) in subsection (3).

10 Turning to the defendant’s offending history as required by section 9(3)(h) of the Act, as indicated above, the defendant has a number of convictions for sexual offences and other offences committed in a sexual context. The index sexual offence was committed on 16 May 2008, little more than two months after being released from custody at the expiry of his sentence for the sexual offence committed in 2006. The offence was assault with an act of indecency under s 61L of the Crimes Act 1900, to which the defendant pleaded guilty.

11 At the time of the offence the defendant was 67 years of age. The defendant befriended the victim at Central Railway station and assisted him in buying cigarettes. The defendant told the victim that he was an Aboriginal Elder in Western Australia and also that he was ex-Army. When the victim’s train arrived, the defendant offered to travel with the victim. During the journey, the defendant moved close to the victim and twice placed his hand on the victim’s leg. When the victim raised objection, the defendant said: “It’s alright sonny.” Shortly after, the defendant forcibly placed his right hand down the front of the victim’s jeans and underpants and squeezed the victim’s testicles and penis. The victim then stood up and the defendant blocked his path. The victim then kneed the defendant to the leg and ran to get assistance from a guard. In the meantime, the defendant got off the train when it stopped at Hurstville station.

12 Subsequently, the defendant was interviewed by police and denied having left Central Railway station. He said he had assisted the victim at Central Railway station and walked him to his train. The defendant was unable to explain images of him at Hurstville railway station shortly after the offence.

13 On 3 November 2008 the defendant was sentenced to imprisonment for a term of 2 years with a non-parole period of 18 months. The term of imprisonment commenced on 4 June 2008 and expired on 3 June 2010. Pursuant to section 50 of the Crimes (Sentencing Procedure) Act 1998, the Court made an order directing that the defendant be released on parole on 3 December 2009 subject to conditions and supervision during parole particularly in respect to sex offender programs.

14 A pre sentence report from Probation and Parole (Danielle Lewin) dated 31 October 2008 reported that the defendant described feeling “…disassociated from the physical circumstances of the offence by citing experiencing a “blackout” during the offence” primarily as a result of excessive alcohol consumption prior to the offence. A similar note appears in a departmental record dated 18 November 2008. In the course of that record, it is noted that the defendant declined to be assessed for the CUBIT program stating that he denied the charges and had no recollection of the events.

15 In a psychological risk assessment report dated 6 April 2010, Ms Jillian Mears, a senior specialist psychologist with the Department of Corrective Services, reported the defendant as asserting, in respect of the index offence, that the contact had been consensual and that the victim had lied about the defendant forcing his hand down the victim’s pants. The defendant also asserted that he was “pretty drunk” at the time. Ms Mears reported the defendant was bitter at having to plead guilty in order to avoid embarrassment for the victim and that he was in gaol at the victim’s expense.

16 In his report dated 20 July 2010, Dr Allnutt records the defendant as claiming that he had been ‘manipulated’ by the victim, by which he meant that the victim had made a sexual gesture towards him. The defendant also told Dr Allnuttt that he was intoxicated when he met the victim at Central Station and that, when sitting beside the victim on the train, he “misjudged the elements of consent”.

17 The offender’s criminal record discloses that all the defendant’s offences, but for an offence committed at Goulburn in January 2001, involved prepubescent and pubescent boys who were befriended by the defendant and sexually assaulted by him, generally by fondling of their genitalia, either inside or outside their clothing. In every case, the defendant claimed that the offences arose out of his excessive consumption of alcohol.

18 The first offence that was not charged as a sexual offence, but involved a sexual context, was an assault upon a 9 year old boy in 1972. On the evening in question, while his parents worked (as caterers at a Lodge), the boy played draughts with the defendant in the recreational area of the Lodge. Afterwards the defendant asked the boy to sit on his knee. While the boy was sitting there, the defendant placed his hands down the front of the boy’s pants and touched his genitals. The defendant reported that he had consumed alcohol at the time of the offence and this was the only reason he could offer for his actions.

19 The second offence was in 1982 when the defendant was convicted in the Moree Local Court of the offence of assault (pursuant to section 493 of the Crimes Act 1900). The circumstances were that the defendant employed a 12 year old boy to sweep the workshop floor after school. On 25 October 1982, after the boy started work, the defendant placed his arm around the boy’s shoulder. He then lowered his hand down near the boy’s penis and the boy pulled away. Later in the afternoon the defendant said to the boy “If you let me play with you I’ll give you an extra five dollars.” The boy did not reply and kept sweeping the floor. The boy later reported the incident to his parents.

20 In her psychological risk assessment report dated 6 April 2010, Ms Mears reported that the defendant could not exactly recall the details of the offence but acknowledged that it occurred. He also told Dr Allnutt that he was intoxicated at the time of the offence.

21 In his recent interview with Dr O’Dea, psychiatrist, the defendant said that he did not remember the details of the offence but acknowledged that he had been drinking alcohol at the time. In his report dated 12 July 2010 Dr O’Dea reported that: “At a later time in our interviews he [the defendant] did refer to awareness of a sexual attraction to the child.”

22 The defendant’s counsel submitted that this offending background does not disclose “serious” sexual offences as required by the Act. The definition of “serious sex offence” is contained in section 5(1) of the Act and although the index offence does not fall within the definition, an offence for which the defendant has been convicted (e.g. the conviction in 1998 for two counts of indecency with persons under 10 years, pursuant to section 61O(2) of the Crimes Act 1900) does so qualify.

23 I turn to the matter provided by section 9(3)(f) of the Act, namely non-compliance with parole conditions and other supervision obligations.

24 The defendant has a history of failure to appear, and of non-compliance with conditions of parole and good behaviour bonds. He has demonstrated a generally poor response to supervision. He has two convictions for failure to appear in court, in October 1981 and May 1998. In addition, when the defendant committed the offence in 1982, he was in breach of his recognisance to be of good behaviour for two years (imposed on 26 November 1981). That recognisance had been imposed in respect of an earlier offence of take and use a motor vehicle without consent.

25 The defendant’s NSW Criminal History also records a numbers of entries where he has not appeared in court and a bench warrant was issued (namely on 23 March 1981, 8 October 1982, 17 August 1983, 25 March 1986 and 1 November 1995).

26 On 23 February 2007 the defendant was convicted of indecent assault (on a 15 year old boy) and sentenced in the Mudgee Local Court to imprisonment for 18 months with a non-parole period of 12 months. He was ordered to be released on parole on 11 September 2007, subject to conditions and supervision.

27 On 25 October 2007, less than two months after the defendant’s release on parole, the State Parole Authority ordered that the defendant’s parole be revoked on the basis he had breached conditions of supervision by: (a) failing to obey reasonable directions of his supervising officer; (b) failing to reside at an agreed address; and (c) failing to observe a condition not to associate with specified persons.

28 Following the revocation of parole on 25 October 2007, a warrant was issued and the defendant was returned to custody. He served the remainder of that sentence in custody.

29 Turning to the issue of the defendant’s compliance with reporting obligations under the Child Protection (Offenders Registration) Act of 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, there are no complaints that have been made regarding the defendant’s compliance with reporting obligations in this respect.

30 Turning to section 9(3)(e) of the Act and the issue of the defendant’s compliance with sex offender treatment, prior to his entry into CUBIT, the defendant’s attitude towards treatment for his sexual offending was described as being “ambivalent to negative” and the defendant had on occasions indicated a disinterest in undertaking sex offender treatment.

31 On 29 April 2009 the defendant commenced the PREP preparatory (pre-treatment) program for sex offenders. The defendant attended 12 sessions of the program, however, he was noted as refusing a referral to treatment programs.

32 On 19 October 2009 the defendant commenced treatment in the custodial-based CUBIT program designed for high risk sex offenders and completed the program on 26 May 2010. In order to undertake the CUBIT program the defendant signed documentation consenting to decline parole until completion of the treatment program. The defendant would otherwise have been released on parole on 3 December 2009.

33 On 26 November 2009, at his request, the State Parole Authority revoked the defendant’s parole order. A report dated 12 November 2009 supported the defendant’s request for revocation of parole.

34 After the defendant commenced the CUBIT program, a treatment update report dated 2 March 2010 was prepared which stated that the defendant’s participation in group sessions had varied between poor and satisfactory. The report also stated that the defendant’s work in CUBIT on issues directly related to him had been problematic. The defendant was said to have displayed a pattern of avoidance that appeared to be long standing. The report further stated that the defendant’s treatment progress to date had been very slow because his responses to questions either in group or in written homework were often not related to his particular situation or were so generalised that they were irrelevant.

35 In her report dated 6 April 2010, Ms Mears recorded discussions with a Mr McElhone on 2 and 24 March 2010 relating to the defendant’s progress in CUBIT. The defendant was reported to be experiencing difficulty engaging in a number of treatment related issues. Mr McElhone reported a concern about the defendant’s emotional regulation and stated that avoidant and defensive behaviours by the defendant was a repetitive theme in treatment. Mr McElhone indicated that, given the defendant’s slow progress, this was likely to be the case just prior to his release from custody.

36 As indicated above, the defendant completed the CUBIT program on 26 May 2010. Mr McElhone provided a Treatment Report dated the same day which reported that the defendant’s participation improved to a limited extent during his time in CUBIT.

37 I turn to the issue of the defendant’s abuse of alcohol (section 9(3)(i) of the Act).

38 The defendant has a long-standing problem with the abuse of alcohol and has identified himself as a chronic alcoholic. He has reported that he began drinking alcohol from age 10. Furthermore, alcohol has been identified as a factor in respect of a number of his sexual offences and the defendant himself has identified a link between his sexual offending and his alcohol use. Alcohol is linked to the circumstances of, at least, the offences in 1972, 1992, 2001, 2006 and 2008.

39 In an early psychiatric report (of Dr Arnauld Reid) dated 8 October 1980, the defendant was described as having a “severe drinking problem”. Dr Reid further reported the defendant as experiencing frequent ‘black-outs’ after heavy drinking. The defendant also described himself as drinking mostly bourbon, but also beer, spirits and some wine.

40 A report dated 6 July 1992 prepared for the Moss Vale Local Court by Dr Yolande Lucire, consultant psychiatrist with the Prison Medical Service, described the defendant as a “chronic alcoholic.” Dr Lucire further said that: “He has been a heavy drinker for thirty five years and he is not likely to change.”

41 In May 1998, when interviewed by Police in relation to the two sex offences committed by him involving a 9 year old boy at Telopea, the defendant relevantly reported that he was an alcoholic and suffered from short term memory loss. A court report dated 15 May 1998 describes the defendant as a self-confessed alcoholic and a departmental document dated 10 September 2001 records the defendant as stating that he had previously been a full-on drinker, at one time drinking “Metho” until going into a coma.

42 Dr Allnutt provided a psychiatric report dated 20 February 2002 for the District Court in which he details the defendant’s abuse of alcohol. There are many other references to the defendant’s alcohol abuse in pre-sentence reports in March 2002 and September of 2007. The defendant’s problems with abuse of alcohol have continued notwithstanding his attendance at rehabilitation facilities (as reported by the defendant) and his participation in custody based drug and alcohol education.

43 Since the defendant’s release from custody, he has commenced participating in the SMART (drug and alcohol) programme held at the Nunyara COSP centre on a weekly basis and (since 24 July 2010) has attended AA meetings twice weekly. All breath analysis testing for alcohol since his release have revealed negative results. However, Dr O’Dea’s view is that the defendant continues to be at risk of abusing alcohol in light of his history of alcoholism.

44 I turn to the issue of risk assessment addressed under section 9(3)(c) and (d) of the Act.

45 In his psychiatric report dated 20 February 2002 Dr Allnutt diagnosed the defendant as suffering from Substance Abuse Disorder and Dependence. In this respect, Dr Allnutt referred to the defendant’s history of substance abuse, predominantly alcohol, dating back to age 10, which had significantly impacted on his occupational and social functioning. Dr Allnutt also stated that a history of convictions for sexual activity with young boys suggests possible paedophilia.

46 In the pre sentence report dated 31 October 2008 from Probation and Parole in respect of the index offence, Ms Lewin, the probation and parole officer stated:

“ Mr Johnson’s paucity of insight into his offending behaviour and contributing factors cogently highlights to this Service the need for intensive monitoring and specific offending behaviour treatment requirements of this offender .”

47 For the purposes of her psychological risk assessment report Ms Mears interviewed the defendant on 2 and 24 March 2010 at the Long Bay Correctional Centre. She assessed the defendant by reference to both actuarial risk assessment (STATIC-99R) and dynamic risk factors. Ms Mears scored the defendant as a “5” on the STATIC-99R, thus placing him in the moderate-high-risk category relative to other adult male sex offenders (rather than the high risk category). Ms Mears also considered the defendant’s score of 5 on the STATIC-99R by reference to relative risk. In this respect, Ms Mears stated that in the STATIC-99R sample population, sexual offenders with a score of 5 showed 2.42 times the recidivism rate of a ‘typical’ sexual offender.

48 In terms of the defendant’s age, Ms Mears regards the STATIC-99R as underestimating his risk of sexual recidivism, having regard to the fact that the defendant has sexually offended at 67 years of age and previously at 66 years of age. Dr Allnutt adopts a similar approach in his report dated 20 July 2010. Dr O’Dea was not persuaded that the defendant’s risk of sexual recidivism should be discounted because of the defendant’s age.

49 In addition to the Static 99 R assessment, Ms Mears considered both ‘stable dynamic risk factors’ and ‘acute dynamic risk factors’. In relation to the stable dynamic risk factors Ms Mears had regard to intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. Ms Mears identified a number of ‘stable dynamic risk factors’ for the defendant which, in summary, indicate that the defendant has limited capacity to invest in intimate and stable relationships; that he remains isolated and lonely with very limited social networks; that he has cognitive distortions associated with his offending; a lifelong problem with general self-regulation and difficulty with sexual self-regulation.

50 In terms of potential acute dynamic risk factors, Ms Mears identified substance abuse, emotional collapse, victim access and collapse of social supports as key risk factors. Ms Mears stated that while the defendant recognises these factors he has not yet developed the skills to manage them.

51 Having regard to both actuarial and dynamic risk assessment, Ms Mears assessed the defendant as presenting a high risk of sexual re-offending:

“… In my view, Mr Johnson presents as a high risk of sexually re-offending if he is released from custody without supervision.
In this respect, Mr Johnson is likely, in my view, to commit a further serious sex offence if he is released from custody and not kept under supervision. Based on Mr Johnson’s recent history, such an offence would likely be that of aggravated indecent assault with the victim being an adolescent male youth from a disadvantaged background or in a vulnerable situation. Mr Johnson could well also commit an offence of indecent assault if released without supervision .”

52 Ms Mears also gave the following oral evidence:

Q. So your opinion is that there is, correct me if I am wrong, there is a possibility he might commit a further sex offence [if] not kept under supervision and it could involve a person under 16?
A. I would use a stronger word than "possibility". There is a likelihood that he could commit another sexual offence. It is likely he could commit another sex offence in certain contexts. The victim could be someone who is underage.

Q. Could be?
A. Could be someone who is under age.

Q. But not likely?
A. Likely to be someone who is under age but not categorically someone who is under age.

53 I turn now to section 9(3)(b) of the Act and the reports and oral evidence of the court appointed expert psychiatrists, Dr O’Dea and Dr Allnutt.

54 Dr Allnutt examined the defendant on 16 and 29 June 2010 and provided a report dated 20 July 2010. Dr Allnutt reported that the defendant meets the diagnostic criteria for paedophilia and he also manifested hebophilic behaviour (sexual interest in pubescent and post-pubescent children). Dr Allnutt also viewed the defendant’s offending history as consistent with a diagnosis of Antisocial Personality Disorder. Dr Allnutt regarded the defendant as engaging in excessive minimalisation of his sexual offences and evidencing distorted cognitive beliefs that supported or condoned sexual offending.

55 In his clinical assessment of the high level of risk of sexual recidivism posed by the defendant, Dr Allnutt reported that:

“ He has problems with self-regulation to the extent that he has throughout his life continued to offend and has continued to offend into late adulthood, which is less common among recidivist offenders.
There is reason for concern about ongoing difficulties with sexual self regulation, in particular given his ongoing minimisation and attitudes to his prior sexual offending; at this stage significant emphasis should not be placed on his self report of impotence given his prior offending history; in my view at this stage the court should assume that he remains interested in sex; given his age he is likely to have difficulty finding intimate relationships; he stated that he has difficulty in attaining erection but nonetheless pursues sexual interactions with men acting as a recipient and this does not require the ability to penetrate; this has been the case for many years and it is likely that his sexual interest continues.
He has a poor history of establishing significant long term and stable intimate relationships.
He is relatively unsupported with no family or close friends and given his age is likely to continue to have difficulty developing social relationships.
He is unlikely to be able to find employment in the future.
My impression was that while he has some cognitive understanding of his offending, probably acquired through engagement in a sex offender rehabilitation program, I am concerned about his appreciation and his level of insight into his offending at a deeper level and on this basis I am concerned about his potential level of engagement in future treatment program[s] .”

56 Having regard to actuarial and clinical assessment, Dr Allnutt regarded the defendant as having “a strong propensity to re-offend in the longer term” and as being “at high risk of committing a further serious sex offence if released into the community and not kept under supervision”.

57 Dr O’Dea examined the defendant on 21 and 28 June 2010 and provided a report dated 12 July 2010. Dr O’Dea also reported a psychiatric diagnosis of paedophilia in respect of the defendant. In considering the defendant’s risk of sexual recidivism, Dr O’Dea made reference to the specific sexual attraction to male children, the defendant’s vulnerable personality and the disinhibiting effect of alcohol in the context of a history of chronic severe alcohol abuse:

“ It would appear that Mr Johnson’s sex offending behaviours, particularly towards make children, could be best understood as driven by his specific sexual attraction to male children and facilitated by the disinhibiting effect of his chronic severe alcohol abuse, including with acute intoxication with alcohol at the time of at least some of the sex offences, in addition to his vulnerable personality. As such, ongoing alcohol abuse in the context of ongoing sexual attraction to male children are likely to be specific risk factors that would need to be successfully addressed in order to manage and minimise his risk of engaging in sex offending behaviours in the community in the long term. With these risk factors not successfully managed, Mr Johnson’s risk of engaging in a further serious sex offence as defined by the Act would be considered from a forensic psychiatric risk assessment and management perspective as significant, and require active management in the community .”

58 In his oral evidence, Dr O’Dea accepted that past behaviour by an offender is one of the most useful predictors of future behaviour and recidivism. Dr O’Dea further stated his view that the defendant has an ongoing sexual attraction to male children and that: “…if specific intervention…were not provided and…if he continued in his old lifestyle that risk of reoffending in a similar manner would be significantly high and what we are specifically looking at in that regard of course is his history of alcohol abuse and poor support in the community on the basis of what appears to be a fairly itinerant and homeless lifestyle, at least at times.”

59 The remaining matter is that referred to under section 9(3)(a) of the Act, namely the safety of the community. All of the above factors that have been discussed are relevant to this matter.

60 In summary, the defendant has a lengthy history of committing sexual offences over a span of four decades. He committed the index sexual offence within a short period of time after his release from custody for a similar offence. He has a longstanding problem with alcohol abuse and a history of non-compliance with parole and supervisory conditions. While he has undertaken the CUBIT Treatment Program, his progress was described as “slow” and he was assessed as presenting a high risk of sexual re-offending and requiring a high need to continuing supervision.

61 Although the defendant’s counsel submitted that the Court cannot be satisfied to a high degree of probability that the defendant is likely to commit a further serious sexual offence if not kept under supervision, taking into account all of the above matters, I am so satisfied. Accordingly an order for an extended supervision order should be made.

62 In relation to the period of the order, Dr O’Dea’s report dated 12 July 2010 provides support for the making of an order for a five year term:

“ Mr Johnson’s risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community are likely to be relatively long term and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, this management program should be long term and at least of 5 years duration, but should be regularly monitored and reviewed every 6 to 12 months dependent on progress .”

63 In her oral evidence, Ms Mears was asked whether she agreed with this paragraph of Dr O’Dea’s report. Ms Mears said:

“Look, I would agree that the risk of committing a further serious sex offence in the community would be relatively long term and of at least five years duration. In terms of the management program or the longevity of the management program I would see that predominantly as a matter for the court but if you’re [asking] me for my opinion, somewhere between three and five years. “

64 In his report dated 20 July 2010 Dr Allnutt stated that:

“ In the absence of a major mental condition it is difficult to offer a “psychiatric perspective” on the appropriateness of the duration of the extended supervision order because this is a legal issue not a psychiatric issue; it might assist the court to know that he has a paraphilia that seems to persist and could persist longer than 5 years; on the other hand he does suffer medical problems and is aged and this might change his risk status in less than 5 years, through a combination of the effects of the ageing process on his physical ability and to some degree his sex drive, but this is difficult to predict now .”

65 This, taken together with all of the evidence detailed above regarding the high risk of sexual recidivism presented by the defendant, the chronic nature of his offending history, his history of sexually deviant behaviour and his continuing cognitive distortions, support the making of an order for supervision for a five year term.

66 Finally, I turn to the issue of conditions that may be imposed pursuant to section 11 of the Act. The defendant’s counsel objected to four of the conditions sought by the plaintiff in the Schedule attached to the Amended Summons namely, an electronic monitoring order (number 5), a curfew order (number 9), a non-association order (number 12) and an order restricting his movements (numbers 15 and 16).

67 It is clear from the evidence that the defendant is unable to respond to supervision unless he is intensively managed. More importantly, the management he has received in the last few months has dramatically improved his health and prospects. Indeed, it was accepted that the defendant was unlikely to be able to survive in the community without a structured environment, and that when the defendant has somewhere to live, and therapeutic intervention, the risks he presents are minimised substantially. Further, there is a discretion contained within the Schedule for the Commissioner to review and adjust, and if appropriate, apply to vary the conditions. Ms Cheryl White, senior compliance and monitoring officer with the Community Compliance Group, gave evidence that a case management meeting takes place each month at which the defendant’s progress is discussed and normally the issue of electronic monitoring is reviewed after six months.

68 I am therefore satisfied that the conditions sought by the plaintiff are appropriate, having regard to the defendant’s prospects of rehabilitation and the protection of the community, and that if the defendant continues to improve there is flexibility for them to be varied.

69 Taking all of these matters into account, I am satisfied that the orders requested by the plaintiff are justified. Accordingly, I make an extended supervision order, pursuant to section 9(1)(a) of the Act, for a period of five years from 3 September 2010. I also direct that pursuant to section 11 of the Act the defendant comply with the conditions set out in the Schedule to the Amended Summons dated 16 August 2010.

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Schedule

EXTENDED SUPERVISION ORDER: CONDITIONS APPLICABLE TO KEITH WILLIAM JOHNSON

For the purpose of these conditions, the Departmental supervising officer is the person authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Justice and Attorney General ("the Department"). Corrective Services NSW is a division of the Department. The Community Compliance Group ("the CCG") and Probation and Parole are each part of Corrective Services NSW.

Reporting and monitoring obligations
1. For the duration of the extended supervision order, the defendant must accept the supervision of the CCG.
2. The defendant must report personally once a week to the Departmental supervising officer or otherwise as directed by that officer.
3. The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other Departmental officer who may from time to time be allocated to the defendant's case.
4. The defendant must not, for the period of the supervision order, commit any offence punishable by a period of imprisonment.
5. The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a CCG officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.
6. If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements 48 hours in advance by providing a schedule in writing (or as otherwise directed by the Departmental supervising officer) and must obtain prior approval from the Departmental supervising officer for any proposed change.

Accommodation

7. For the duration of the order the defendant must reside at accommodation approved by the Departmental supervising officer.

Note

It is envisaged that the defendant will reside at a Community Offenders Support Program (COSP) centre for a period of up to six months.

8. The defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other Departmental officer who may from time to time be allocated to the defendant's case.

9. If directed by his Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified) unless his presence at another place during those hours has been approved by his Departmental supervising officer.

10. The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner").

Restrictions on employment and other activities

Employment

11. The defendant must not undertake employment other than that which has been approved by the Departmental supervising officer.

Non-association generally

12. The defendant must not associate with any persons specified by the Departmental supervising officer.

13. Without limiting paragraph 12 above, the defendant must not, without the prior permission of the Departmental supervising officer, contact or communicate by any means with, or attempt to contact or communicate by any means with, the victims of the sexual offences for which the defendant was sentenced on 9 July 1992, 15 May 1998, 6 September 2001, 23 February 2007 and 3 November 2008.

Non-association with children

14. The defendant must not approach, associate or have any contact with children under the age of 16 years unless in the presence of an appropriate adult (being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition).

15. The defendant must not, without the prior written permission of the Departmental supervising officer, attend any schools, pre-schools, day care centres, amusement parlours, caravan parks, children's playgrounds, parks and playing fields.

16. Without limiting paragraph 15 above, the defendant must not attend any such further place, where children or a child may from time to time be present, as the Departmental supervising officer may direct, unless the defendant is accompanied by a person approved in advance for such purpose by the Departmental supervising officer.

Alcohol and illicit drugs

17. (a) The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits);

(b) The defendant must not abuse prescription medication or other forms of medication;

(c) The defendant must not possess or consume any illicit drugs; and

(d) The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer.

18. The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer.

Internet and pornography

19. (a) The defendant must not possess or view pornography (including child pornography) and must not access, or attempt to access, pornography by any means.

(b) Without limiting sub-paragraph (a), the defendant must not access the internet to view or to download pornography.

20. The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to the internet by him, and without limitation the Departmental Supervising Officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain web sites.

21. The defendant must not attempt to or access the internet by the use of any computer available in any internet cafe or internet kiosk or other public area without the prior approval of the Departmental Supervising Officer.

22. If and as directed by the Departmental Supervising Officer, the defendant must:

(b) permit the Departmental Supervising Officer, and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental Supervising Officer, to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection;

(c) take all available steps to permit the Departmental Supervising Officer and the computer technician to have access to and inspect any computer used by but not owned by the defendant;

(d) provide the Departmental Supervising Officer and the computer technician with any requested assistance to enable them to access and inspect .any computer owned or used by the defendant, including providing them with any required passwords;

(e) permit the Departmental Supervising Officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending.

Personal details and appearance

23. The defendant must not change his name from Keith William Johnson without the prior approval of the Departmental supervising officer.

24. The defendant must not, without the approval of the Departmental supervising officer, change his facial appearance (including facial hair) or the colour of his hair and must not alter the length of his hair to the extent that he cannot be easily recognised.

25. If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer.

Further matters

26. Should the defendant propose to enter into a relationship with a woman or man ("the other person"), which the defendant anticipates or hopes will develop into an ongoing relationship involving sexual or intimate contact, he must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may disclose the defendant's offence history to such other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person or any children of or related to that person.

27. The defendant must comply with all requirements under the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004 applicable to him.

Treatment obligations

28. The defendant must undergo a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted and/or arranged by the Community Forensic Mental Health Service (CFMHS) or the Area Mental Health Service (AMHS), to determine what is required for treatment, including in respect of the defendant's potential for alcohol and/or drug abuse and potential for sex offending.

29. The defendant must accept psychological and psychiatric treatment as may be provided by an AMHS (or CFMHS or Justice Health), including counselling, psychological therapy, and must take any psychiatric medication if and as prescribed (excluding any testosterone-lowering anti-libidinal or anti-psychotic medication).

30. Without limiting paragraph 29 above, the defendant must accept such medical treatment or any other therapy, if prescribed by a medical practitioner, as may be provided by CFMHS, Justice Health, an AMHS or any medical practitioner.

31. (omitted)

32. The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service, CFMHS or Justice Health.

33. The defendant must attend consultations with the Area Health Service or CFMHS, at such frequencies, venues and times as directed by his treating clinicians.

34. If directed by his Departmental supervising officer, the defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him, including the maintenance program provided by the Forensic Psychology Services and must participate in all such rehabilitation treatment and programs as may be directed by the Departmental supervising officer.

35. The defendant must consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer.

36. The defendant must forthwith disclose to the Departmental supervising officer the identity of any other medical or mental health practitioner that he consults.

Disclosure of information

37. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors (including any specialist) and any psychologist.

38. The defendant must consent to his Departmental supervising officer and other Departmental officers (including from the CCG) accessing all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment.

39. The defendant must agree to the sharing of all information between his Departmental supervising officer, other Departmental officers (including from the CCG), officers from Justice Health/CFMHS, the defendant's general practitioner and any treating psychologist or psychiatrist.

40. The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may provide to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and of the terms of the order.

Review

41. At the expiration of 6 months from 3 June 2010 (and at the end of each six monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear the electronic monitoring equipment will be reviewed by the Departmental supervising officer and, for this purpose, the departmental supervising officer may consult with (either jointly or separately) any treating psychiatrist or psychologist and the defendant.

42. At the expiration of 12 months from 3 June 2010 or such shorter period as the Commissioner may advise (and at the end of each 12 month period thereafter), the conditions the subject of the defendant's risk management plan, being the conditions contained within the schedule to the orders made by the Court, will be reviewed by the Commissioner with a view to possible adjustment of such plan and/or consideration by the State of an application to the court to vary the conditions if considered appropriate. For the purpose of the review, the Commissioner may consult with (either jointly or separately) any treating psychiatrist or psychologist and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer.

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