State of NSW v Colebrook

By summons filed on 27 July 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Daniel Colebrook (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act. The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing either two psychiatrists or a psychiatrist and a psychologist to examine the defendant and report to the Court on the examinations.

On 12 September 2016 Wilson J made orders under s 7(4) and ordered an ISO to commence on 15 September 2016, being the day on which the defendant’s sentence expired: State of New South Wales v Colebrook [2016] NSWSC 1295.

The ISO has since been renewed twice. The most recent ISO is due to expire on 7 December 2016.

Mr O’Neil, who appeared on behalf of the defendant, ultimately accepted that it was open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, Mr O’Neil contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of two years’ duration would be sufficient. Mr O’Neil also took issue with some of the conditions, which will be referred to in more detail below.

The plaintiff relied on the following evidence:

With one exception, Mr O’Neil did not object to any of the plaintiff’s evidence, much of which comprised material that had been produced pursuant to orders under s 25 of the Act (referred to below) and was therefore admissible under s 25(3). Mr O’Neil objected to the risk assessment report of Caroline Youssef and Danielle Matsuo on the grounds that Ms Youssef was not available for cross-examination. I allowed the report, the weight of which will be considered when its substance is addressed below. Mr O’Neil also required Dr Eagle, Dr Adams and Rebecca Kaye, the defendant’s Departmental Supervising Officer (DSO) to attend for cross-examination. Their oral evidence will be addressed below.

The defendant adduced no evidence, save for documents tendered in cross-examination. It is not appropriate for me to draw any inference against the defendant by reason of his not giving evidence as the Act does not displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts: State of New South Wales v Donovan [2015] NSWCA 280 at [115]-[119] per Beazley P and Macfarlan and Leeming JJA.

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental, as is evident from the wording of s 3(1).

Section 4 of the Act relevantly contains the following definitions:

The definition of “serious sex offence” in s 5(1) includes: an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW), where the offence is punishable by imprisonment for 7 years or more: s 5(1)(a)(i). An offence against s 61J of the Crimes Act (which is contained in Division 10 of Part 3) is punishable by imprisonment for 20 years and is, accordingly, a serious sex offence within the meaning of s 5(1).

Section 5B provides:

Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision provided by an ESO is sufficient to counter what would otherwise be an “unacceptable risk”. Supervision can only be regarded as “adequate” if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.

Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision while serving a sentence of imprisonment (whether in custody or on release on parole) for a serious sex offence is, relevantly, a supervised sex offender: s 5I(2).

Section 7 deals with pre-trial procedures and what is to occur following the preliminary hearing. It relevantly provides:

Section 9(3) provides that the following (as well as any other matter I consider to be relevant) are to be taken into account in determining whether to make an ESO:

Section 10 provides that an ESO can be made for a total of five years. Section 11 provides for the conditions that may be imposed on an ESO. Section 12 provides that a person who fails to comply with the requirements of an ESO or ISO is guilty of an offence. Section 13 provides that an ESO or ISO may be varied or revoked.

These proceedings are civil proceedings and, to the extent to which the Act does not provide otherwise, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: s 21.

Section 25 provides that the Attorney-General, on behalf of the plaintiff, may, by written order, require the production of documents that relate to the behaviour, or physical or mental condition, of any offender. Any document produced in answer to an order is admissible in proceedings under this Act.

If the threshold test in s 5B is met, the matters to be considered are listed in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.

The defendant was born in early 1972. His family background was, as Knox DCJ later described it in remarks on sentence, “volatile and abusive”. According to the defendant (in his evidence before Knox DCJ), his mother used to beat him until he was senseless and he was also sexually abused by a family friend. His father, an alcoholic, died when he was two years old. His mother had five children. He smoked cannabis from his mid-teens. His use was heavy in his late teens. He drank alcohol to excess. He stole to finance his needs.

The defendant’s criminal history began in 1989 when he was convicted of various summary offences including driving with low and mid-range prescribed concentration of alcohol (PCA); driving while disqualified; carrying a cutting weapon; possessing a prohibited weapon; stealing from a motor vehicle and stealing petrol. On each occasion he was dealt with by way of a bond. He continued to offend in the following years as a result of which he was imprisoned for short periods. In about 1992 his first child, a daughter, was born.

In March 1994 he was convicted of assault and placed on a bond. In June 1994 he was convicted of assault again and sentenced to a term of imprisonment for six months. In June 1994 he was convicted of several offences including drug-related offences (possession and cultivation of cannabis); four counts of stealing; assault; and malicious damage. On 17 June 1994 sentences for these offences were imposed in the Local Court, which resulted in a total sentence which commenced on 23 May 1994 and expired on 22 February 1996. The last non-parole period expired on 22 November 1995.

In September 1995 the defendant met Amy with whom he formed an intimate relationship. As a result of their union, Amy became pregnant in early 1996.

While on parole for the offences referred to above, the defendant committed offences of aggravated sexual assault (contrary to s 61J(1) of the Crimes Act 1900) and aggravated break enter and steal. The circumstances of the commission of these offences are set out below.

At about 11pm on 13 January 1996, the victim V2, returned home to her ground-floor unit and went to bed. Her brother and his girlfriend were also at home in bed in another room. In the early hours of the morning of 14 January 1996, the defendant broke into the unit and cut the telephone line. He entered V2’s bedroom with a knife and a tea towel. He put the towel over V2’s head to stop her from seeing his face and put the blade of the knife against her throat. V2 woke up. The defendant instructed her not to scream and told her to remove her pants. He threatened to cut her if she tried to look. V2 removed her pants and underwear. The defendant held the knife against her throat and ordered her to tell him that she loved him. She acceded to his demand. She was crying.

The defendant forced his penis into V2’s vagina and had penile intercourse. He then forced her to suck his penis. The defendant removed two rings from V2’s fingers and told her not to move for a few minutes after he had gone. He said: “If I hear anything I’ll come back and finish it.”

V2 was terrified throughout the ordeal. Although her brother was close at hand she believed that if she called for help she would be killed. She was also concerned not to alert the defendant to the presence of others, whom she did not want to expose to harm. A vaginal swab was conducted and a DNA sample was taken which matched the defendant. He was not apprehended in respect of these offences until nine years later (see below).

From about February 1996 until May 1996 the defendant lived with Amy in a dining room, which was converted into their bedroom, in a house which was occupied by a woman, her three children and her de facto. The woman subsequently became the victim of the offences committed by the defendant in August 1996 which are addressed below in chronological sequence.

At about 9.10pm on Thursday 4 April 1996 V1 went to licensed premises in Bidwill with friends. After some time they moved to another location in the area. Later in the evening V1 had an argument with a friend which resulted in her walking in the street by herself at 1.30am. She walked along King Square, Bidwill, to soccer fields and continued along the fence line to the fields. She noticed that the defendant was following her. He was carrying a tea towel and a knife. He placed the blade of the knife against her throat and grabbed her. He threatened to kill her if she made a noise. He tied the tea towel around her head and told her that he would kill her if she tried to escape. He instructed her to climb over the fence, which she did. V1 said: “I’ve got a daughter, please don’t kill me.” While she was still blind-folded he told her to slide under the gate of the Bidwill High School. He unzipped his pants and instructed her to suck his penis. She complied in the belief that he would kill her if she did not.

He instructed her to remove her clothes. She begged him not to. When she was naked, he instructed her to lie on the ground with her knees up. He had sexual intercourse with V1. He ordered her to tell him that she liked it, which she did because she was so terrified. He then instructed her to stand facing the wire fence and instructed her to bend over. He proceeded to have penile/ anal intercourse with her. He then instructed her to get dressed and directed her to another location. At one point he pulled her by her hair. She begged to be released and told him again that she had a daughter. He asked for her name and address. She provided false details. He then instructed her to pull down her pants and bend over. He again had penile/ anal intercourse with her. He told her to remove her pants and sit down. He then left the scene.

When V1 realised that the defendant might have left, she removed the blindfold and sought assistance. The police were called. V1 attended hospital where a sexual assault investigation kit was completed and swabs taken from V1’s vagina. DNA analysis of the swabs indicated the presence of male DNA.

The defendant was not apprehended in relation to these offences until thirteen years later (see below).

On 6 May 1996 the defendant was charged with break enter and steal. On 30 June 1996 he was charged with assault, which was unrelated to the offences set out above.

The facts relating to the August 1996 offences are taken from the facts as found by the sentencing judge, Holt DCJ in the remarks made on 26 May 1997:

On 16 September 1996 V3’s watch was found in a cassette holder in the defendant’s caravan. As a result the defendant was interviewed by police about the offences. He denied any involvement. He was charged with the August 1996 offences and was refused bail.

In October 1996, Amy’s child, who was the defendant’s second daughter, was born. According to Amy, she and the defendant were engaged to be married.

On 9 December 1996 the defendant was convicted and sentenced for other unrelated summary offences committed before 16 August 1996: assault and breach of an apprehended violence order. The sentences for these offences commenced on 16 September 1996 (being the day on which he was taken into custody following his arrest for the August 1996 offences).

In February and March 1997 the defendant was tried by jury for the August 1996 offences. He gave evidence at the trial in which he denied any involvement. Amy also gave evidence which supported the defendant’s evidence.

On 7 March 1997 the appellant was convicted by a jury of all five counts on the indictment. On 26 May 1997 the defendant was sentenced by Holt DCJ to a total term of 10 years with a minimum term of 7 years, commencing on 12 February 1997 (to take account of the period in custody from 16 September 1996 for unrelated offences), which comprised the following sentences.

The sentencing judge described the seriousness of the offences as follows:

The defendant appealed against his convictions and his sentence. He represented himself in the Court of Criminal Appeal where he continued to maintain that he had no involvement in the offences and had been wrongly convicted.

The Court of Criminal Appeal dismissed his appeals against his convictions and sentences: Regina v Colebrook [1999] NSWCCA 262. Justice Simpson (with whom Mason P and Abadee J agreed) said:

In 1999, while he was in Lithgow Gaol, the defendant married Amy, the mother of his second child. Shortly thereafter Amy stopped seeing him and has since divorced him.

In 2001 a DNA profile was created for the defendant (according to a statement of undisputed facts in the sentence hearing in July 2010 for the April1996 offences).

On 11 February 2004 the defendant’s non-parole period for the sentence imposed for the August 1996 offences expired.

On 8 February 2005, the defendant was charged with the January 1996 offences. He admitted his involvement, in the face of what Knox DCJ (the sentencing judge) described as “overwhelming evidence of guilt in the form of the DNA evidence”.

On 2 March 2005 the defendant was reclassified as A2 (maximum security) as a result of having been charged with further offences of a sexual nature. He was transferred to Goulburn Gaol.

On 9 March 2005 the defendant was interviewed by psychologists, Lyn Vidler and Sharon Kennedy, at the request of the Parole Board. They noted in their report that the defendant continued to deny responsibility for the August offences. They reported:

The defendant gave evidence at the sentence hearing before Knox DCJ. He said that he had undertaken a course of training in the electrical industry in gaol and wanted to get a job in that area when he was released from gaol. He said that at the time of the offences he had consumed alcohol and marijuana extensively. He told the sentencing judge that he was aware that he had ruined V2’s life and that he was still ashamed both of what he had done and of his lifestyle at the time.

In a victim impact statement dated 27 April 2005 (which was tendered at the sentence hearing) V2 described her longstanding fear as a result of the assault and her realisation that her life had been threatened and violated.

The defendant’s sentence for the January 1996 offences was reduced by 25% for his plea of guilty. The sentencing judge, Knox DCJ, noted in respect of the plea:

His Honour noted that, despite the defendant’s lengthy criminal record, this was the first offence of a sexual nature. The sentencing judge also noted that the defendant had, until about June 2002, a consistent history of institutional misconduct which involved violence and threats. However, his behaviour changed when he undertook the training course. His Honour was not, however, persuaded that the defendant had “turned the corner”, although he found that “there may be some prospects of rehabilitation”. His Honour also noted that the defendant was on conditional liberty at the time of the offending in that he was on unsupervised parole, although he was apparently unaware of that fact.

Of the offending conduct, the sentencing judge said:

The sentencing judge imposed the following sentences for the January 1996 offences.

According to a statement of undisputed facts in the sentence hearing for the August 1996 offences, in August 2008, the vaginal swabs obtained from V1 in August 1996 were again analysed and placed through the DNA data bank which resulted in a positive match to the defendant.

On 29 May 2007 the defendant was declared to be a serious offender pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW).

On 3 December 2008 the defendant commenced the PREP Program, which is a 14-16 session motivational program intended to increase an offender’s motivation and readiness to participate in a sex offender treatment program, such as the Custody-Based Intensive Treatment (CUBIT) program. He attended several sessions before his attendance was interrupted by further charges which were laid as a result of the DNA match referred to above.

On 2 February 2009 detectives went to the Metropolitan Remand and Reception Centre (MRRC) where the defendant was in custody. He made some admissions regarding the offences in April 1996 although he did not admit anal intercourse. He told detectives that it was his practice to walk around the streets of Mt Druitt every night, carrying a cloth and a knife and that he formed the intention to sexually assault V1 when he first approached her. He was charged with three counts of aggravated sexual assault of V1 contrary to s 61J(1) of the Crimes Act. He pleaded guilty to the April 1996 offences in the Local Court and was sentenced in the District Court (see below).

On 8 April 2009 Victoria Bel, a specialist psychologist, reported on the defendant’s participation and progress in the PREP program. She said:

On 15 April 2009 the defendant started the CUBIT program. He completed the program on 14 January 2010. The report of his participation said:

The defendant gave evidence at the sentence hearing. According to the remarks on sentence of Quirk DCJ, he said that:

The sentencing judge noted the other offences (January and August 1996) for which the defendant had already been sentenced and considered the issue of totality. Her Honour quoted extensively from the CUBIT report (referred to above) and outlined the defendant’s post-release plans as follows:

The sentencing judge also formed a very positive view of the defendant’s future prospects, as is evident from the following passage from the remarks on sentence:

Her Honour discounted the sentence by 27% to take account of the defendant’s plea of guilty and remorse. After sentencing the defendant, Quirk DCJ told him that she had accepted that he was a “changed man”.

The offences, maximum penalties and sentences imposed are set out in the following table:

In a report on the defendant dated 13 June 2013: Community Corrections officer, Mr Williams reported:

The pre-release anniversary report for the parole hearing on 17 July 2014 noted that the defendant was employed within Centre Maintenance, after obtaining the position in September 2013. His work performance was described in very positive terms. At the time of the report his post-release accommodation had not been arranged. Release at that time was not supported.

A report on the defendant was prepared by the Serious Offenders Review Council (SORC) for the Parole Board’s hearing on 17 July 2014 to determine whether the defendant ought be released to parole. SORC noted that the defendant had committed one offence in custody since the last report: namely on 13 January 2014 he was found to be in possession of a drug implement (syringe). SORC recommended that he not be released to parole because he had not participated in an external leave program and there were concerns about his being found in possession of the drug implement.

A subsequent SORC report dated 23 June 2015 recommended the defendant’s release to parole. It noted his good work performance within the gaol and that accommodation with his aunt had been offered, which was thought to be preferable to his being released to the Nunyara Community Offender Support Program (COSP) residential premises.

On 1 September 2015 a parole order was made in respect of the defendant, who was released to parole on 15 September 2015 after 19 years of incarceration. He went to live with his paternal aunt and uncle and three adult cousins in Blacktown. His parole officer, Rebecca Kaye (who is presently his Departmental Supervising Officer (DSO)) considered them to be supportive of the defendant.

His parole order was subject to various conditions which included that he submit to electronic monitoring; must totally abstain from alcohol; and must not have custody of a knife or other cutting implement in a public place.

In December 2015 the defendant commenced an intimate relationship with Jasmine, a woman he met through an online dating website. Jasmine’s son Dylan lives with her and another son, Benjamin, visits.

On 6 December 2015 Ms Kaye reported that the defendant’s response to the parole order had been satisfactory. He began working in his brother’s business and was pleased to be earning his own money.

On 11 December 2015 the defendant was interviewed by two psychologists, Ms Youssef and Ms Matsuo, for the purposes of a risk assessment in anticipation of these proceedings. Ms Youssef and Ms Matsuo noted that, before being released to parole in September 2015 the defendant had not, since turning 18, spent more than a continuous period of 10 months out of custody. His responses to questions about substance use were summarised in the following passage in the report:

Ms Youssef and Ms Matsuo noted that the defendant scored 5 on the Static 99R scale which placed him in the moderate-high risk category. His dynamic risk factors were assessed by reference to the STABLE-2007. He scored 10, which placed him in the moderate category. When these scores were combined, the resultant score indicated a moderate/ high risk level.

Ms Youssef and Ms Matsuo also administered the Risk of Sexual Violence Protocol (RSVP), which is a structured professional judgment instrument developed to help identify and manage factors identified as associated with sex offending. Ms Youssef and Ms Matsuo examined five domains: sexual violence history; psychological adjustment; mental disorder; social adjustment and manageability. They considered the defendant to present the following risk factors in the domain of sexual violence history: chronicity of sexual violence; diversity of sexual violence (with known and unknown victims, outside and indoors; threats and use of weapon and a range of penetration methods); and physical coercion. When considering the domain of psychological adjustment Ms Youssef and Ms Matsuo noted that, although the defendant acknowledged his sexual offences at the time of interview, he categorically denied the offending from 1996 until 2005 when new charges were brought against him. Accordingly they considered him to meet the criteria for extreme minimisation or denial of sexual violence. They identified the defendant’s attitudes of sexual entitlement and rationalising sexual violence as meeting the criteria for attitudes that support or condone sexual violence. They also considered him to have problems with self-awareness and noted:

Ms Youssef and Ms Matsuo identified the defendant as having problems with stress or coping and noted that he told them of his excessive alcohol use from age 16 and daily cannabis use from age 18. They considered his excessive use of alcohol to highlight “an unhelpful way of dealing with negative emotions”.

In the domain of mental disorder, Ms Youssef and Ms Matsuo identified sexual deviancy as a possible risk factor although they considered it to be unclear whether he had thoughts or fantasies of rape leading up to the offending. They noted depressive tendencies as well as problems with substance abuse, which they concluded was used as a coping mechanism and constituted a risk factor because it has a “disinhibiting effect and facilitates behaviour which could lead to another offence”. In the social adjustment and manageability domains, Ms Youssef and Ms Matsuo also identified problems.

Ms Youssef and Ms Matsuo identified the following potential risk scenarios:

Ms Youssef and Ms Matsuo identified conditions which could be imposed on any ESO which would be beneficial in ameliorating the risk posed by the defendant.

Mr O’Neil required Ms Youssef for cross-examination. For a medical reason which Mr O’Neil accepted to be reasonable and sufficient, she did not attend for cross-examination. He objected to the report on that basis but I allowed it. Although the fact that Ms Youssef was not cross-examined, might in other circumstances affect the weight of the report, the report is consistent with the reports of the court-appointed experts and with other materials. Ultimately the defendant did not press his opposition to an ESO and can be taken to have accepted that the condition precedent for making such an order was established by the plaintiff’s evidence. In these circumstances, I am not persuaded that less weight ought be given to the report on the basis of Ms Youssef’s unavailability. I note that Ms Matsuo, who co-authored the report, was not required for cross-examination.

Ms Kaye, the defendant’s then parole officer, reported his general compliance with his conditions of parole. She said:

Ms Kaye identified risk factors, which she considered could be managed by the following means: weekly face to face contact with the defendant at his home or elsewhere; monthly unscheduled visits to his home; electronic monitoring; referral to Forensic Psychology Services (FPS); maintenance of methadone program; regular and random urinalysis to monitor compliance with methadone program and any return to use of illicit substances; regular and random breath testing to check for alcohol use; and requirement for schedules of movements to be provided.

On 16 March 2016 a Court Attendance Notice was issued to the defendant for the alleged offence of custody of knife in public place. The defendant alleged that he had been carrying a paint scraper to clean paint from the glass of a picture frame for his girlfriend whom he had been to visit. Ms Kaye recommended that the Parole Authority defer any decision pending the results of the court hearing. The charge was dismissed in the Blacktown Local Court on 18 August 2016. Accordingly, no action was taken by the Parole Authority.

On 27 May 2016 the defendant submitted to urinalysis. He admitted to smoking cannabis. Notwithstanding the breach of parole conditions, parole was not revoked. He was directed to engage with a drug and alcohol counsellor. Urinalysis results received on 4 June 2016 noted the presence of cannabis metabolites. Samples taken in July 2016 also revealed cannabis use. He later explained that he took cannabis because he was stressed: he had lost his job and Jasmine had been sexually assaulted.

The defendant discussed living with Jasmine, who lives in Glebe. However, Family and Community Services (FaCS) opposed this course because of its concern about Dylan, Jasmine’s son, who is described as a vulnerable person. In a letter dated 26 April 2016 to Ms Kaye, FaCS said:

As referred to above, on 15 September 2016 the defendant became subject to an ISO. The ISO was renewed twice and is due to expire on 7 December 2016.

On 12 September 2016 the Court ordered that the defendant be examined by Dr Eagle and Dr Adams for the purposes of each preparing a report pursuant to s 7(4) of the Act.

Dr Eagle, a qualified forensic psychiatrist, assessed the defendant on 21 September 2016 and prepared a report dated 4 October 2016. Dr Eagle opined that the defendant did not have a major mental illness at the time of assessment. She considered that he had alcohol use disorder in remission. She considered that the defendant’s history and presentation suggested the possibility of sexual sadism disorder and noted that:

Dr Eagle also considered the defendant to display traits consistent with antisocial personality disorder such as pervasive failure to conform to social norms; deceitfulness; impulsivity; reckless disregard for the safety of others; consistent irresponsibility; lack of remorse; irritability and aggression. Her conclusion was that he has a substance use disorder and an antisocial personality disorder and probably a sexual sadism disorder.

On the basis of historical, clinical and risk management factors, Dr Eagle considered the defendant to pose a high risk of violent sex offending. She identified the following scenarios as being particularly risky:

Dr Eagle considered that the defendant would benefit from a longer period of supervision having regard to the risk factors and the prolonged period of incarceration.

Dr Eagle was cross-examined extensively by Mr O’Neil about her opinion that the defendant posed a high risk of re-offending. However, following the luncheon adjournment, Mr O’Neil announced that the defendant no longer challenged the making of the order and confined his challenge to the duration of any ESO and the conditions to be imposed. Accordingly I do not consider it necessary to refer to Dr Eagle’s opinion about the various indicators of risk which were referred to in her cross-examination.

It was put to Dr Eagle in cross-examination that the positive report that followed the defendant’s completion of the CUBIT program indicated that the risk he posed was substantially reduced. Judge Quirk’s positive findings on his prospects of rehabilitation in the remarks on sentence were also put to Dr Eagle. Her response to the effect of the defendant’s participation in the CUBIT course was as follows:

As to the length of the order, Dr Eagle considered that one would need at least two or three years to be able to assess whether the interventions had been of benefit and whether the risk posed by the defendant had been reduced as a result. However, she said:

I propose to refer to Dr Eagle’s evidence about particular conditions when addressing the conditions to which the defendant, through Mr O’Neil, takes objection.

Dr Adams assessed the defendant on 27 September 2016 and 17 October 2016. He prepared reports dated 24 October 2016 and 23 November 2016.

At the time of the first assessment, the defendant reported that he was working regularly installing shelving and racking for an agency, employed on a casual basis. By the time of the second interview, such work was no longer available, although there is a prospect of its being available in the future.

He gave Dr Adams the following history of substance abuse while on parole and subject to an ISO:

Dr Adams considered the defendant to have a history of mood disorder and severe substance use disorder. Dr Adams noted that these opinions were formed as a result of two interviews and suggested that his Justice Health records might provide a more detailed view of his clinical presentation. These records were provided to him and formed the basis of his second report.

Dr Adams identified the risk factors of concern in the following passage:

Dr Adams considered a “long-lasting” management plan to be appropriate. He said:

Dr Adams prepared a second report dated 23 November 2016 in which he reported his opinion following review of the Justice Health notes. He regarded the notes as consistent with his opinion that the defendant suffers from a recurrent major depressive illness.

In his oral evidence Dr Adams explained his view that an ESO of five years would be appropriate:

Since the commencement of the first ISO on 15 September 2016 the defendant’s Departmental Supervising Officer (DSO) has been Ms Kaye, who was required for cross-examination. As referred to above, she was also responsible for supervising his parole. Ms Kaye gave evidence about her view of particular conditions, which will be referred to below when I address the conditions that are contested by the defendant.

The matters referred to in s 9 are to be taken into account in determining whether to make an ESO. I propose to address each relevant matter in turn, although I will address the safety of the community (s 9(3)(a)) last as this factor largely derives from the others.

The reports of Dr Eagle and Dr Adams are considered above. They both consider the defendant to pose a high risk of sexual re-offending, which can adequately be controlled by an ESO with appropriate conditions such as those proposed by the plaintiff. Although there are some differences between the expression of their views about the appropriate length of any ESO, they both consider the defendant’s risk to be the result of long-standing factors which will require long term management.

The report of Ms Youssef and Ms Matsuo referred to above assessed the risk posed by the defendant to be high by reference to static and dynamic risk factors. The defendant participated in the assessment.

The risk assessment report of Ms Youssef and Ms Matsuo referred to above included the defendant’s scores by reference to various statistical measures. Each such measure indicated that the defendant poses a high or moderate to high risk of future offending, having regard to static and dynamic factors.

Both court-appointed experts also assessed the defendant by reference to such assessment tools, including Static 99R, STABLE 2007 and, in Dr Adams’ case, RSVP. These results consistently put the defendant in a high risk category of offenders by reference to the statistics available for groups of offenders.

In the report referred to above, Ms Kaye addressed the ways in which the offender could reasonably and practicably be managed in the community. She set out the mechanisms that could be put in place through conditions imposed on an ISO or ESO which, in her view, could reasonably and practically manage the otherwise unacceptable risk posed by the defendant. She also gave evidence about her experiences of managing the risk while the defendant was on parole as well as while he has been subject to an ISO.

The narrative set out above indicates that the defendant has undertaken several programs, including the CUBIT Program which he completed in 2010. By and large, at least in recent years the defendant has engaged in such programs and his participation has been regarded as substantial. He has expressed reluctance more recently to engage in FPS sessions because he regards them as repetitive and not helpful. Nonetheless he has attended such sessions and participated in them.

The defendant was on parole when he committed the January 1996 offences. Following his release to parole in September 2015, the defendant has largely complied with his conditions of parole, apart from some substance abuse with marijuana, which constitutes a breach of the term that he must not use illicit substances.

The defendant has a lengthy criminal history which has been detailed above. The circumstances of his offending conduct are summarised in the narrative. Of the past 20 years the defendant has spent about 19 years in custody. For those relatively short periods when he has been out of custody, he has been under supervision (whether on release to parole or subject to an ISO).

The defendant’s offending reveals that at times when he was intoxicated he was prepared to terrorise adult women and sexually assault them in ways which emphasised his dominance over them. That he was prepared to use a knife on each occasion to threaten the woman with murder in order to force her to submit to his sexual desires and other wishes showed a gross lack of empathy. His requirement on occasion that, notwithstanding that they were clearly traumatised, each woman express pleasure or affection or acknowledge by words that she was enjoying it or loved him, is testament to his view of his victims as being objects to service his needs. His offending conduct was both cruel and callous.

His forethought in carrying a towel with which to blindfold his victims and a knife with which to threaten them shows how calculated his offending was.

The sentencing remarks of Holt DCJ, Knox DCJ and Quirk DCJ have been extracted above and indicate the seriousness with which the sentencing judges viewed the defendant’s conduct. Of the sentencing judges, only Quirk DCJ considered him to be a “changed man” since the time of the offending. The other judges were more circumspect and considerably less optimistic. Judge Quirk was particularly impressed with the defendant’s level of participation and engagement in the CUBIT program, which he completed after he had been sentenced by Holt DCJ and Knox DCJ and not long before he first became eligible for release on parole.

Although it might be thought that the defendant’s relationship with Jasmine is a protective factor, this inference is not necessarily available to be drawn when one has regard to the circumstance that the defendant was in a relationship with Amy (who continued to love and support him well into his sentence) at the time of the index offences.

The evidence before me has been sufficiently addressed in relation to the other matters to be taken into account under s 9(3).

The matters referred to above tend to establish that the defendant, if released without supervision, or without adequate conditions as to supervision, would pose an unacceptable risk to the safety of adult women.

The defendant is a sex offender within the meaning of the Act, having been sentenced to imprisonment following his convictions for offences including serious sex offences. The summons was filed on 27 July 2016, which was within six months of the expiry of his sentence on 15 September 2016.

Actuarial and other risk factor tests place him in a high risk category. His history of offending is related to poly-substance abuse.

Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, I am satisfied that the defendant, being a sex offender, poses an unacceptable risk of committing a serious sex offence in the absence of any supervision: State of New South Wales v Donovan at [24] and Lynn v State of New South Wales [2016] NSWCA 57 at [55].

Accordingly, I am satisfied that the defendant is a high risk sex offender within the meaning of s 5B of the Act. I note that, although the extent to which the defendant’s liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions, it is irrelevant to the determination of whether the defendant poses an unacceptable risk: Lynn v State of New South Wales at [44], [55]-[58] (per Beazley P), [128] (per Basten JA) and [148] (per Gleeson JA).

I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to make an ESO pursuant to ss 5C and 9(1)(a) of the Act on the conditions which have been agreed by the parties (referred to below). I am not satisfied that there are any factors personal to the offender which would militate against the making of the order.

It was contended on behalf of the defendant that it was not necessary for an ESO to be made for the maximum period of five years permitted pursuant to s 10(1A). Mr O’Neil submitted that the objects of the Act could be met with a supervision order of two or three years’ duration. He contended that a lesser period would not only be sufficient time to determine the course of the defendant’s rehabilitation but it would also provide the appropriate incentive for the defendant to rehabilitate himself.

Mr O’Neil emphasised the secondary purpose of the Act in s 3(2), namely “to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation.” He submitted that were I to make an ESO of the maximum duration of five years, the defendant would not have any incentive to rehabilitate himself and that this would, in effect, increase the risk he posed.

Mr Fernandez, who appeared on behalf of the plaintiff, contended that there was no warrant for supposing that the risk posed by the defendant would be significantly lessened in a period of five years, having regard to the long-standing causes of his offending conduct. The plaintiff pressed for an ESO of five years, being the maximum permitted under the Act.

The long-term risk that the defendant poses to the community is not to be underestimated. The violence and misogyny of his offending behaviour are important features of the defendant’s offending, as is his intoxication at the time of offending. I regard the prospect that the risk posed by the defendant to the community (and in particular to adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as dubious.

The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. The relevant offences were committed over a relatively short period (from January to August 1996) when the defendant was in his twenties. He is now in his forties. However, the offences were very serious and terrorised the women concerned. Although the defendant pleaded guilty to the April 1996 and January 1996 offences, he did so only in the face of overwhelming DNA evidence from samples extracted from the vaginas of his victims. In relation to the August 1996 offences, where there was no such evidence, he continued to deny his guilt well after the Court of Criminal Appeal had dismissed his appeal against his convictions. He has spent almost all of his adult life in custody. These matters do not augur well for a speedy rehabilitation. The factors that led to the offending behaviour are long-standing and complex. They derive from the defendant’s early life, his attitudes to women and sex; and his long-standing substance abuse. These attitudes and ways of thinking and behaving are not readily amenable to change, particularly as the defendant has been incarcerated for almost all of his adult life.

I note that the defendant is said to be in an intimate relationship which was formed not long after his release on parole. For reasons given above, I do not consider that this can be regarded as a protective factor in the present case as the defendant was in a relatively long-standing, loving relationship with Amy, who was for at least part of the period of his offending pregnant with their child, when he committed the offences in January, April and August 1996. Indeed, Dr Eagle and Ms Youssef and Ms Matsuo have identified as a risk factor the defendant’s perception (irrespective of whether it corresponds with reality) that any current intimate relationship is unfulfilling.

There is no reason to suppose that there will be any significant amelioration of what I have found to be the unacceptable risk posed by the defendant in the next five years. It would not, in my view, be appropriate in these circumstances to grant an ESO for a period less than the five-year maximum permitted by the Act.

As a result of objections raised by Mr O’Neil to conditions proposed by the plaintiff, the plaintiff has amended its summons to propose amended conditions. I propose to address the conditions in the annexure to the amended summons (marked MFI 1) which remain in dispute.

Section 11 of the Act provides for conditions to be imposed. In general terms, to be appropriate, conditions must be germane to the risk posed by the defendant or ancillary to the management of the risk posed by the defendant. Conditions which cannot be characterised in this way might be regarded as ultra vires if they are not related to the purpose of s 11 of the Act in the context of the Act as a whole. Therefore it is necessary to consider the connection between the condition and the risk in order to assess whether the condition ought be imposed: see Lynn v State of New South Wales at [141] and Wilde v State of New South Wales [2015] NSWCA 28 at [53]. It is also relevant that breach of a condition renders the defendant liable to criminal sanctions. Accordingly, there is an additional requirement that a condition must be clear such that breach can be judged objectively.

Although I accept, in general terms, that the defendant ought not be unduly restricted, the primary purpose of an ESO is the protection of the public. Conditions which are related to risk management, including in an ancillary way, are also appropriate, depending on the circumstances. It ought not be assumed that the power of the DSO to make directions will be exercised other than lawfully: that is, for a proper purpose and not capriciously.

Proposed condition 5 provides:

Dr Eagle considered condition 5, which requires the defendant to provide a weekly plan three days in advance, to be reasonable and beneficial because it would tend to encourage the defendant to plan his time and learn how to structure his day so as to integrate into the community.

Mr O’Neil proposed that the words “either in writing or orally” be inserted after the word “provide”. Ms Kaye gave evidence that she accepts an oral schedule from the defendant and, to her knowledge, this is an option which is particularly useful for some persons the subject of ISOs or ESOs who are either illiterate or who would prefer to provide the schedule orally. As the condition does not specify that the weekly plan is to be in writing, I do not regard the amendment as being necessary. However, since it might be thought that the word “schedule” implies writing, I propose to amend the condition as contended for by Mr O’Neil.

Proposed condition 6 provides:

Dr Eagle was asked about condition 6, which requires the defendant to tell give his DSO 24 hours’ notice of any change to the schedule of movements. She considered the requirement to be so “overly onerous” as to adversely affect the defendant’s engagement with ESO staff and engender a sense of injustice.

Ms Kaye gave evidence that, by reason of the shifts worked by DSOs, it is not always possible to make last-minute changes to a schedule since those working on shift, or when Ms Kaye is on leave, would inevitably lack her familiarity with the defendant and his circumstances.

I consider that the lead time required in proposed condition 6 to be reasonable, having regard to the practical realities of the administration of an ESO. Furthermore I consider that it is beneficial for a routine to be established and for plans to be made and adhered to, if possible, for the reasons outlined by Dr Eagle with respect to condition 5. I note that condition 6 contains within it some flexibility in that it is open to the DSO to approve a shorter period.

Proposed condition 13 provides:

Mr O’Neil submitted that condition 13 is otiose as its purpose is fulfilled by condition 24 (the non-association condition). In the alternative, Mr Neil submitted that the condition was unduly restrictive and not appropriate to the risk posed. He contended that none of the offences was committed against anyone who lived with the defendant or who was in an intimate relationship with him. In the alternative, Mr O’Neil proposed that the words “If directed” be added at the beginning of this clause and the words “after 9pm” be added after “remain”.

Ms Kaye considered condition 13 to be problematic in the current circumstances since the defendant resides in a house with five other adults who ought be at liberty to invite people home spontaneously without the requirement that the DSO give prior permission. She expressed concern that he might be in breach of the condition whenever another adult asks someone to the house where the defendant is living.

I do not consider the non-association condition 24 to serve the same purpose as condition 13. For condition 24 to be of utility, the DSO must know in advance of any person with whom the defendant might associate. Condition 13 places the onus on the defendant to obtain permission. I regard this as reasonably necessary in light of the offending conduct. The offences committed in January and August 1996 were committed when there were others in the residence at the time of the assaults. Having regard to the threats made to the victim in the January 1996 offences, she could not even cry out for help to her brother, who was in another room in the unit.

Further, I note that, although the defendant was not living with V3 in August 1996, he and Amy had lived in V3’s house for a period before they moved out earlier that year. His familiarity with the house meant that he knew that the laundry window was not locked and he used it as his means of entry. Thus, I do not accept the submission that the condition is not related to the offending behaviour or the risk posed by the defendant.

I do not consider it to be either necessary or appropriate to refine this condition for the defendant’s present circumstances. The DSO may give conditional approval. For example Ms Kaye’s approval might be subject to the condition that the person who enters, remains or stays overnight, not sleep in the defendant’s room. Alternatively, the DSO might give approval to any person invited onto the premises by any of the five adults in the house. The DSO might give approval for Jasmine to stay overnight. Given the length of the ESO, and the defendant’s stated intention to move to his own accommodation, I consider the condition to be appropriate and reasonable in its current form.

Proposed condition 20 provides:

Mr O’Neil contended that there was no need for an absolute prohibition and that the condition ought be amended to add the words “other than as permitted by the DSO” after the word “alcohol”.

Dr Eagle considered it to be necessary for the defendant to maintain a sustained period of abstinence from consuming any alcohol at all because of the involvement of alcohol in the offending conduct. Ms Kaye said that, while she would not object to the inclusion proposed by Mr O’Neil, she considered that any such permission ought be required to be given in writing so as to avoid ambiguity or misunderstandings about whether permission had been given since it was “such a significant condition”.

In my view, the condition as drafted is both reasonable and necessary. The consumption of alcohol is closely related to the offending conduct. Alcohol tends to disinhibit those who consume it and compromise their capacity to control their impulses. The defendant has shown himself to be particularly prone to its effects. But for his intoxication at the time of the index offences, they might not have been committed at all. Moreover, a blanket prohibition is more readily able to be enforced. Unlike cannabis metabolites, which remain in the blood for a longer period, alcohol is relatively quickly metabolised and alcohol intoxication can only be detected relatively contemporaneously.

Proposed condition 22 provides:

Dr Eagle’s evidence was that not only was the condition beneficial for the defendant, but it was also important to protect those in the licensed premises since their judgment as to risk might be impaired by alcohol, even if he were abstinent.

Mr O’Neil submitted that to place such a restriction on the defendant would interfere unduly with social activities and retard his integration into the community. He contended that the prohibition on alcohol use would be sufficient to ensure the defendant’s abstinence in licensed premises.

I reject Mr O’Neil’s submission. The defendant has been unable to be abstinent from cannabis use during the parole period in circumstances where Jasmine was using cannabis regularly. There is no reason to suppose that he would be able to remain abstinent when surrounded by people drinking alcohol. Having regard to the very close connection between intoxication and the offending conduct (by reason of the consequent reduction in judgment and disinhibition of impulse control), intoxication is a significant risk factor. I regard this as a matter which ought be within the discretion of the DSO, who is in a position to adjudge the risk by reference to the particular occasion or premises. Ms Kaye gave evidence that she had given her permission for the defendant to stay at licensed premises having inspected them first to ascertain their suitability.

Proposed condition 26 provides:

Mr O’Neil proposed that the word “intimate” be inserted before the word “relationship”. It was accepted on behalf of the plaintiff that that was the way in which the condition was interpreted. Mr Fernandez did not oppose the amendment. In my view, in order to avoid doubt, the word “intimate” ought be inserted into condition 26.

Proposed conditions 29-33 provide as follows:

Mr O’Neil submitted that these conditions were irrelevant since there was no evidence that the defendant’s offending conduct was in any way related to the telephone or the internet. Mr Fernandez pressed the conditions on the basis that the internet was in such an early stage of its development when the defendant was taken into custody in 1996 that no inference ought be drawn that the internet would not create or enhance the risk posed by the defendant. He also submitted that mobile phones with internet access were not available when the defendant went into custody in 1996. He also submitted that, having regard to the violent and sadistic features of the defendant’s offending, it was important that the DSO be in a position to monitor any devices the defendant might have to ascertain whether he was accessing material which depicted such behaviour.

I am persuaded that the conditions are reasonable and appropriate. The potential for the internet to arouse those who are stimulated by violence or sadism as well as identify those who might be in the area and available for sexual intercourse are both factors which make the conditions appropriate. To deprive the DSO of access to the defendant’s devices could put the DSO at a significant disadvantage in managing the risk which the defendant poses to the community. Furthermore conditions 29-33 are ancillary to the enforcement of condition 39 (prohibition on access to pornographic, violent and classified material).

For the reasons set out above, I make the following orders: