State of New South Wales v Atkins

1. [1]

   By a summons filed on 12 December 2018, the plaintiff, the State of New South Wales, relevantly applies for an order that the defendant, Bruce Atkins, be subject to an extended supervision order (ESO) for a period of two years from the date of the order, under ss 5B, 5I and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (HRO Act), and an order directing the defendant to comply with the conditions set out in the schedule to the summons, under s 11 of the HRO Act.

2. [2]

   The State also seeks in prayer 4 of the summons the following:

3. [3]

   The defendant did not consent to the making of the ESO or to the conditions set out in the schedule. He did, however, consent to the making of an order in terms of prayer 4.

Preconditions for the application

1. [4]

   The defendant, through his counsel, accepted that he is a person in respect of whom an ESO may be made under ss 5B(b) and 5I of the HRO Act. Further, there was no real contest that the relevant requirements under ss 5B(a) and (c) and 6 of the HRO Act had been satisfied and I accept that they have been.

Evidence

1. [5]

   The supporting documentation relied upon by the State on its application for an ESO was as follows:

   1. (1)

      the affidavits of Ms McCrossin affirmed 12 December 2018 (and exhibit KM1), 15 February 2019, 7 May 2019 and 21 May 2019;

   2. (2)

      the affidavit of Mr Glenn Harrison affirmed on 6 May 2019;

   3. (3)

      the report of Dr Kerri Eagle of 24 April 2019;

   4. (4)

      the report of Dr Ellis of 25 April 2019; and

   5. (5)

      two victims’ statements, one dated 21 December 2018 and the other undated.

2. [6]

   The defendant did not adduce any evidence.

3. [7]

   The reports of Dr Eagle and Dr Ellis, who are both forensic psychiatrists, were the reports provided after examinations, under s 7(4) of the HRO Act.

The background to the present application

1. [8]

   On 28 August 2008, the defendant was sentenced to imprisonment for 5 years and 6 months, with a non-parole period of 3 years and 6 months in respect of the following offences (the index offences):

   1. (1)

      one count of aggravated indecent assault on a victim under 10 years of age; and

   2. (2)

      two counts of indecent assault on a victim under 16 years of age.

2. [9]

   On 20 December 2013, Rothman J granted an interim supervision order (ISO) and on 21 March 2014, Johnson J made an ESO for 5 years which required the defendant to comply with 58 conditions. That ESO was due to expire on 20 March 2019. However, on the application of the plaintiff by the summons filed on 12 December 2018, ISOs were made by Fagan J and Bellew J so that the last ISO expires on 10 June 2019.

3. [10]

   The application before me concerned whether a further ESO for a period of 2 years should be made and, if so, on what conditions.

The relevant statutory provisions and principles

1. [11]

   There was no substantial dispute between the parties as to the applicable statutory provisions and principles.

2. [12]

   The relevant requirement for making an ESO, if the other precondition have been met, is found in s 5B(d) of the HRO Act, which is in following terms:

3. [13]

   The standard of proof required by the words a “high degree of probability”, in s 5B(d) of the HRO Act, is a higher standard than “more probably than not” but not as high as “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales (2016) 91 NSWLR 636 (Lynn) at [44] and [55]-[58]; [2016] NSWCA 57.

4. [14]

   In performing this task, the Court is also to have regard to the objects of the HRO Act, set out relevantly in s 3 in the following terms:

5. [15]

   In addition, I am bound to apply s 9(2) of the HRO Act which provides:

6. [16]

   Nonetheless, the purpose of the HRO Act, like the earlier Crimes (Serious Sex Offenders) Act 2006 (NSW), is protective and rehabilitative not punitive: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21] (McClellan CJ at CL).

7. [17]

   It should also be noted that, when the Court is considering an application for an ESO, by virtue of s 5D of the HRO Act, it:

8. [18]

   Unacceptability depends on a range of factors which must be balanced against one another. There may be circumstances where a person may be held to pose an unacceptable risk of committing another serious offence even if the risk of recidivism is low but the consequences, for example to a victim, are likely to be drastic: see the comments of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128].

9. [19]

   The evaluation to be made under s 5B(d) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection, and such an assessment is to be made assuming the absence of any supervision: Lynn at [61].

Issues on this application

1. [20]

   The principal issue, then, is whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

2. [21]

   If so, it will then be necessary to consider what conditions should be imposed under any ESO.

The defendant’s background

1. [22]

   The defendant is a 64 year old single man, who was apparently born in Victoria and principally raised in a child welfare institution. He has reported witnessing abuse and may have suffered abuse there himself.

2. [23]

   The defendant moved to Cootamundra in about 1979 and has had two longer relationships with women. The first woman was in the house to which he set fire in 1983 and the second was the mother of his victim in 1992. He also has a daughter whom he reported had been born from a brief relationship.

3. [24]

   He reported that he could read and write when he was younger but could no longer do so because he was bashed in gaol. The defendant was found to have a full scale IQ in 1992 of 70, and in 2008 of 65. In 1983, he had been found to be in the 2nd percentile. Dr Eagle was of the view that he has a mild intellectual developmental disorder, is illiterate and demonstrates poor impulse control, low frustration tolerance and deficits in social cognition. Dr Ellis was of the opinion that the defendant meets the criteria for a diagnosis of intellectual disability and that he requires significant support with activities of daily living in order to live independently. I accept their opinions.

4. [25]

   The defendant has no reported history of significant alcohol abuse or illicit drug use.

5. [26]

   The defendant has only had limited employment which included working in a meat processing plant for 12 months and in barbeque and furniture stores.

6. [27]

   Apart from seeing Dr O’Dea, forensic psychiatrist, since the commencement of his ESO in 2014, it does not appear that the defendant had any past contact with mental health services.

7. [28]

   The defendant currently lives alone in private rental premises in Mount Druitt. He is in contact with his daughter who is 24 years old and who, according to the defendant, has schizophrenia. His daughter is currently in a relationship with a sex-offender. She has contacted the defendant concerning re-locating to the Sydney metropolitan area and the defendant meeting her partner.

8. [29]

   The defendant has a significant criminal history prior to the index offences which was referred to by Johnson J when the original ESO was made in 2014 in State of New South Wales v Atkins [2014] NSWSC 292 at [21]-[26]. Those paragraphs and other material before me indicate that some significant elements of the defendant’s prior criminal history can be adequately summarised for present purposes as follows:

   1. (1)

      In January 1977, the defendant (then aged 22 years) and a co-offender broke into a school and stole various items including a portable television and 10 pairs of pantyhose. He was sentenced to a three-year good behaviour bond.

   2. (2)

      In May 1981, the defendant stole four pairs of ladies’ and children’s underwear from a clothesline. He was sentenced to a three-year good behaviour bond.

   3. (3)

      In January 1983, the defendant set fire to premises at Cootamundra, in which he was then living with other persons. The fire was discovered and no persons were injured. It was said that the fire was the defendant’s response to his being tormented by some of the children of his then partner about his relationship with their mother and the situation which had arisen in consequence of her beginning to associate with another man. Roden J sentenced him to imprisonment for seven years and six months dating from 13 May 1983 with a non-parole period expiring on 12 November 1985.

   4. (4)

      In April 1986, the defendant stole one pair of boy’s underpants and was in possession of a restricted substance. He was fined for these offences.

   5. (5)

      In December 1991, the defendant committed an act of indecency upon a six-year-old female by exposing his penis and rubbing it on the top of the victim’s legs. The defendant had commenced a relationship with the mother of the child in July 1991. Shillington QC DCJ sentenced him to imprisonment for 18 months with a non-parole period of six months expiring on 2 March 1993. The defendant continued to maintain his innocence with respect to the 1991 offending and he continued to have a relationship with the child victim’s mother, Ms R.

9. [30]

   The circumstances of the index offences were set out in Judge English’s remarks on sentence of 28 August 2008 as follows:

10. [31]

    On 25 February 2008, the defendant pleaded guilty to 3 counts on the indictment and the Crown accepted those pleas in full satisfaction of all seven counts. The charges to which he pleaded guilty were as follows:

    1. (1)

       count 1, on or about 15 February 2007 at Cootamundra in the State of New South Wales did assault [victim 2] and at the time of such assault committed an act of indecency on [victim 2], a child under the age of 10 years, namely nine years, contrary to s 61M(2) of the Crimes Act 1990 (NSW), which attracted a maximum penalty of 10 years imprisonment;

    2. (2)

       count 4, on about 16 February 2007 at Cootamundra in the State of New South Wales did assault [victim 1] and at the time of the assault committed an act of indecency on [victim 1] she being then under the age of 16 years, namely 12 years, contrary to s 61M(1) of the Crimes Act, which attracted a maximum penalty of seven years imprisonment;

    3. (3)

       count 7, on about 16 February 2007 at Cootamundra in the State of New South Wales did assault [victim 1] and the time of the assault committed an act of indecency on [victim 1] she then being under the age of 16 years, namely 12 years, also contrary to s 61M(1) of the Crimes Act.

11. [32]

    As noted above, he was sentenced to a total of five years and six months imprisonment with a non-parole period of three years and six months.

Section 9(3) factors

1. [33]

   The reports provided under s 7(4) of the HRO Act were:

   1. (1)

      the report of Dr Kerri Eagle, forensic psychiatrist, of 24 April 2019;

   2. (2)

      the report of Dr Ellis, forensic psychiatrist, of 25 April 2019.

2. [34]

   Their evidence was not challenged and was substantially consistent, as between them. Their views were supported by the material before the Court and their conclusions were supported by their expertise and reasoning. I have no hesitation in accepting in full their evidence.

3. [35]

   Dr Eagle conducted a face-to-face assessment with the defendant on 29 March 2019. She reviewed the defendant’s criminal history. She also noted a number of complaints or charges in respect of which the defendant had been found not guilty, referred to in the SNRG profile of the defendant. These included a number of accusations or charges of sexual offending in relation to children between 1977 and 2006. They were described under the heading “Untested and Unsubstantiated Complaints”. In addition Dr Eagle reviewed a substantial number of psychological and psychiatric reports concerning the defendant dating from between September 1983 and February 2014, as well as Corrective Services’ risk assessment reports prepared in November 2018, presentence reports, parole reports and other notes and material concerning the defendant and his offending and treatment.

4. [36]

   Dr Eagle’s diagnosis was that:

   1. (1)

      the defendant did not display any signs or symptoms of a major mental illness such as psychotic disorder or severe mood disturbance;

   2. (2)

      he has an intellectual developmental disorder, mild in severity;

   3. (3)

      he likely has a “pedophilic disorder, non-exclusive type”. In particular she noted:

5. [37]

   As to the risk of reoffending, Dr Eagle’s opinions included:

   1. (1)

      On the Static 99R actuarial risk assessment tool, the defendant’s score placed him in the above average risk category for sexual reoffending. It was also noted that he falls into a high risk/high need group of offenders.

   2. (2)

      Using the Stable 2007 structured professional judgement tool for the assessment of sexual offenders, the defendant’s risk factors included problems with: significant social influences; capacity for relationship stability; emotional identification with children; general social rejection; impulsivity; problem-solving skills; negative emotionality; deviant sexual preferences; and cooperation with supervision. The defendant’s score placed him in the category of offenders considered at highest risk of reoffending sexually.

   3. (3)

      An additional cause for concern was identified as the defendant’s fire setting behaviours. However it was noted that the defendant had not engaged in any alleged fire setting behaviours since 1983.

   4. (4)

      The defendant has been subject to intensive supervision and monitoring that has included scheduling, exclusion zones, random searches, clinical monitoring and support and electronic monitoring. During that period of supervision and monitoring he has remained offence free. However, due to the intensity of the supervision and monitoring, caution should be exercised in attributing any reduction in his overall assessment of risk to his offence free period given that this likely reflects the effectiveness of the supervision of monitoring that has been in place.

6. [38]

   Dr Eagle recommended that the defendant would benefit from: ongoing psychosocial support and ongoing supervision regarding his relationships and his social cognitions: psychological interventions aimed at regular exploration, challenge and monitoring of offence related cognitions and ongoing treatment and monitoring by a forensic psychiatrist, including a trial of anti-libidinal medication if considered appropriate by the treating psychiatrist. In this context, Dr Eagle noted that the defendant did not accept the need for ongoing psychological or psychiatric interventions or monitoring of his sexual behaviours because he did not accept any responsibility for his sexual offending. She was also of the view that it was highly likely that he would not voluntarily attend ongoing psychological or psychiatric clinical reviews unless mandated under an ESO.

7. [39]

   Dr Eagle was of the view that, if a further ESO was to be imposed, the conditions in the schedule to the summons were sufficiently broad and comprehensive to manage the risk. It was noted that the defendant had shown the capacity to tolerate these conditions but it was also observed that it would be appropriate to gradually lessen the restrictions over time and to observe his ability to make more independent decisions or demonstrate his capacity to accept voluntarily support but still avoid problematical risk-taking behaviours.

8. [40]

   Dr Eagle recommended against the defendant residing in accommodation with his daughter and was of the opinion that he should have no unsupervised contact with children, adolescents or those who may be vulnerable due to mental or cognitive disorders. In her opinion he was unlikely to completely avoid contact with children in future unless it was mandated.

9. [41]

   Dr Eagle thought that a period of two years for a further ESO would be appropriate as it would allow for observation in the context of a gradual lessening of restrictions over time.

10. [42]

    Dr Ellis conducted a clinical interview with the defendant on 12 April 2019. He reviewed a similar range of documents to that reviewed by Dr Eagle and in addition he had a telephone discussion with Dr Jeremy O’Dea, the treating psychiatrist, on 23 April 2019.

11. [43]

    Dr Ellis was of the view that the defendant meets the criteria for a diagnosis of intellectual disability, noting that he has required significant support to live independently. This was a chronic condition but with ongoing support incremental adaption may occur. In addition he was of the view that a diagnosis of a paraphilia disorder was warranted and the specific diagnoses were fetishistic and paedophilic disorder. It was noted that paraphilias are chronic and relapsing conditions but the sexual arousal pattern may not be present if the opportunity to access the stimulus is not available.

12. [44]

    In relation to the risk of reoffending, Dr Ellis found, applying the STATIC 99R actuarial measure, that the defendant’s score placed him in the above average risk category. He noted that this score was lower than those of the previous ESO assessments as the defendant had moved into an older age category. In summary, Dr Ellis was of the view that:

13. [45]

    Dr Ellis was of the view that the restrictions contained in the conditions proposed by the plaintiff were necessary and desirable as the defendant’s risk stemmed from a number of the areas covered by those conditions. It was noted that the defendant’s risk profile was chronic but it was currently contained by the present regime of conditions under the ESO. Dr Ellis also recommended that he continue to see his forensic psychiatrist for medication assessment and psychosocial support. It was also recommended that consideration of anti-libidinal medication be revisited if any evidence of paraphilic sexual arousal becomes apparent and specific psychological therapy for sexual offending and disability support also be provided.

14. [46]

    Dr Ellis considered a period of two years for a further ESO, if one were to be imposed, would be reasonable “in order to consolidate function in the community, consider future supervision structures such as a combination of guardianship and the Child Protection Register and refine the appraisal of risk.” It was specifically noted that:

15. [47]

    Dr Eagle and Dr Ellis were cross-examined. During that cross examination, both expressed the view that electronic monitoring in the defendant’s case might be withdrawn given the significant amount of human monitoring that was present. However, if there was any non-compliance with scheduling or other conditions, it should be re-introduced. They also agreed that it would be useful if directions could be in writing with written reasons in order to assist the defendant’s understanding and compliance, especially given his intellectual disability. In relation to pornographic, violent and classified material, it was accepted that use of pornography in general with persons who have a paraphilic disorder is problematic. Dr Eagle was of the view that this would also extend to sexually explicit television and movies, although it would be difficult to define what might or might not be included in that category. Dr Eagle suggested that it could be appropriately assessed and managed by a supervising Corrective Services Officer who had experience in managing these types of offenders.

16. [48]

    During the cross examination, Dr Ellis noted that although it was not likely that the defendant would obtain exposure to children as part of employment or volunteering, a risk in the defendant’s case was that he would strike up a relationship with other vulnerable persons who have children and thereby gain access to children indirectly. Dr Eagle agreed and thought that this was an area that required monitoring, but reasons for any decision should be provided as this would help him to understand what he needs to do to comply with his conditions and develop a prosocial lifestyle that didn’t involve reoffending.

17. [49]

    As to his relationships with other persons, particularly those with children and his intimate relationships, Dr Eagle was of the view that it was necessary that all of his relationships be monitored or able to be monitored. Dr Eagle could not think of another mechanism that would adequately manage the issue other than a condition that the defendant not associate with people whom his DSO tells him not to. In relation to the suggestion that the times when the defendant could be visited and his premises entered and inspected should be limited to 8 AM to 8 PM, the doctors were both of the view that this would not be appropriate as it would tend to set up some temptation to engage in problematic behaviours during the period when there could be no random visits.

18. [50]

    The other psychiatrists’ and psychologists’ assessments which had been carried out in relation to the defendant, were, in large measure, reviewed and, where necessary, commented upon and taken into account by Dr Eagle and Dr Ellis.

19. [51]

    In any event, I do not believe there is anything in those other reports which would call into question Dr Ellis’s and Dr Eagle’s opinions or conclusions. Rather, they support those opinions and conclusions.

20. [52]

    Dr Eagle’s and Dr Ellis’s assessments as to the likelihood of the defendant reoffending have been referred to above.

21. [53]

    In addition there was a risk assessment report dated 5 November 2018 prepared by Dr Richard Parker, a senior psychologist with the Serious Offenders Assessment Unit. In that report Dr Parker concluded that combining the STABLE – 2007 and STATIC – 99R scores for the defendant yielded an overall risk level of well above average risk. Further, it was his opinion that: “[t]ime at risk adjustments to the actuarial risk assessment instruments leaves him in the ‘well above average’ category”.

22. [54]

    Dr Parker also opined:

23. [55]

    Dr Parker’s views were essentially consistent with those of Dr Eagle and Dr Ellis.

24. [56]

    On 7 November 2018, Ms Rangelov, Community Corrections Officer, provided a risk management report concerning the defendant. The purpose of the report was to inform the Court as to the extent to which the defendant could reasonably and practically be managed in the community, as specified in s 9(3)(d1) of the HRO Act.

25. [57]

    Ms Rangelov identified the elements of a Risk Management Plan for the defendant so that he could be reasonably and practically managed in the community. She identified the risks to be managed or monitored under each element and explained why the nature of the management or monitoring was required in the defendant’s specific circumstances. I have taken all of this material into account but it is sufficient to note the following matters here, generally under the headings used by Ms Rangelov.

26. [58]

    These would be weekly face-to-face interviews with the defendant at his approved residence or another location. The interviews would focus on case management intervention strategies relevant to the identified risks. The limitation on the effectiveness of this element was that it was unclear how much information the defendant understands or retains during interviews due to his cognitive impairment.

27. [59]

    Field visits would include scheduled and unannounced field visits to his residence to monitor compliance. Covert observations would continue as well as ESO Investigation Team (ESOIT) monitoring of his behaviour in the community including his interaction with members of the public such as the possibility of grooming parents or staff in shopping centres. Searches of the defendant’s home and mobile device would also continue during field visits if permitted by the conditions of the ESO to ensure compliance and to identify any potential risks to the community such as his forming relationships with carers of children under the age of 18 years. The limitations of this strategy were that the defendant could not be monitored 24 hours per day and he may engage in inappropriate behaviour when not being monitored.

28. [60]

    Contact would be maintained with third parties to monitor compliance and treatment in addition to identifying concerns. The ongoing contact would include the defendant’s disability support provider and treating psychiatrist. Regular liaison with ESOIT and Corrections Intelligence Group would continue as well is electronic monitoring, if permitted, to monitor compliance.

29. [61]

    Electronic monitoring would assist in managing the defendant’s movements, and assist with detecting any access to or loitering in places frequented by children as well as alerting Community Corrections to unscheduled departures or deviations. The defendant would continue to be assisted by his disability support worker and/or Community Corrections Officer to plan appropriate and meaningful activities for his weekly schedule of movements and the schedule would then be reviewed and approved by Community Corrections to assess for any high risk activities and locations. The implementation of schedules was thought to be useful in assisting the defendant to plan structured and supported activities to minimise contact with children. The limitation on this element was that it could prevent neither high-risk situations nor offending behaviours, whilst he was engaging in an approved activity or in his home.

30. [62]

    Referral to Forensic Psychology Services would assist should any future issues arise. The limitations on this strategy included that the defendant may refuse to reengage with the service if re-referred, as apparently recently occurred.

31. [63]

    Contact with the defendant’s psychiatrist would continue to monitor his attendance and to gauge progress and stability..

32. [64]

    Requests for such contact would be scrutinised by Community Corrections and regular liaison with the disability support providers would continue in order to identify any incidental contact with children during outings. Schedules of movements would also be reviewed with regard to proposed activities that could bring the defendant into contact with children. Covert observations would also be undertaken by the ESOIT to monitor behaviour whilst not in the company of a disability support worker. The limitation on this strategy is that the defendant may not be truthful about any contact he may have with persons under 18.

33. [65]

    Approval would be required to attend places he wishes to frequent and these would have to be added to his schedule of movements. He may be prohibited from entering areas identified as being high risk in terms of his offending such as places frequented by children or locations where children may congregate at certain times. Disclosure of details of any person with whom he wishes to associate or reside would also be required and this would allow for appropriate risk assessments to be conducted. In addition, searches of the defendant’s mobile device would continue to determine with whom is in contact and the level of contact. The limitation on this strategy is that he may elect to have contact with non-approved persons and this may not come to the immediate attention of Community Corrections. There have been indications that the defendant has in the past disclosed that he was having contact with a known sex offender also subject to an ESO along with his family and had expressed his intention to recommence contact following the completion of his ESO.

34. [66]

    The risk management plan, following implementation, would be scheduled for review every two months and updated as necessary to reflect any significant changes to the defendant’s circumstances.

35. [67]

    The defendant has been under the care of Dr O’Dea, psychiatrist, since his release into the community under the previous ESO. It has not been suggested that he has not been compliant with his treatment regime.

36. [68]

    His referral to the Forensic Psychology Services has been noted above.

37. [69]

    From the reports and evidence of Drs Eagle and Ellis, it appears to me that the options available to reduce the likelihood of reoffending over time are effectively limited to the imposition of a further ESO with gradual lessening of the restrictions.

38. [70]

    I accept that the defendant has been compliant with the first ESO and current ISO and has not further offended since being subject to these orders.

39. [71]

    It was not disputed that the defendant’s reporting obligations pursuant to s 15(1)(d) of Child Protection (Offenders Registration) Act 2000 (NSW) are suspended for the period during which the defendant has been the subject of the ESO and the ISOs and that there is no prohibition order in place under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

40. [72]

    The defendant’s criminal history and pattern of offending behaviour have been set out, in summary, above and have been considered in some detail by Drs Eagle and Ellis. I accept the two psychiatrists’ conclusions based upon that history and pattern of offending.

41. [73]

    In her remarks on sentence, English DCJ said:

42. [74]

    These comments indicate that her Honour had in mind that some continuing monitoring in the nature of an ESO would be appropriate and put in place in the defendant’s case.

43. [75]

    There were in addition, before the Court, victims’ statements from victim 1 and victim 2. They gave a moving account of the devastating and enduring effect upon them of the offences committed by the defendant in 2007. The Court acknowledges their anguish and fears and takes very seriously their requests for the continued supervision and monitoring of the defendant so that they and the community can feel safe.

44. [76]

    The State’s evidence also included a substantial amount of documentation concerning the defendant’s background, offending, custody and treatment. The documentation, to which I was taken or which I reviewed, supported to a significant extent the views of the victims and the expert psychiatric opinions of Dr Eagle and Dr Ellis.

State’s submissions

1. [77]

   Mr Fernandez, of counsel, who appeared for the plaintiff, provided very helpful written and oral submissions on behalf of the State. I have considered all of the matters raised in those submissions.

2. [78]

   Based on the material referred to in those submissions, much of which has been referred to above in these reasons, it was submitted that, in all the circumstances, the Court would be satisfied to a high degree of probability that there was an unacceptable risk of a further serious sexual offence occurring if the defendant were to be unsupervised. In these circumstances, it was contended that an ESO should be made. The conditions to be included in such an order were also the subject of submissions, both written and oral.

The defendant’s submissions

1. [79]

   Ms Goodhand, of counsel, who appeared for the defendant, also provided detailed and helpful written submissions and made oral submissions on the defendant’s behalf. Although I have had regard to all the submissions made, it is sufficient to note here that, on this hearing, the defendant’s submissions were focused upon the conditions to be imposed.

Consideration of whether an ESO should be made

1. [80]

   I have taken into account the evidence as a whole and in particular, the matters I have set out above.

2. [81]

   Having regard to those matters, and the applicable principles and considerations under the relevant provisions of the HRO Act, I am satisfied, especially based upon the opinions of Dr Eagle and Dr Ellis, to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

3. [82]

   It is now necessary to consider what conditions should be imposed under the ESO and for what period it should apply.

Period of the ESO

1. [83]

   Dr Eagle and Dr Ellis were both of the view that a term of 2 years would be appropriate for the reasons given in their reports and referred to briefly above. Given those views, the defendant’s age and his commendable compliance with the previous ESO and ISOs, I accept that 2 years is an appropriate period for a further ESO.

Conditions of the ESO

1. [84]

   Conditions imposed in respect of an ESO ought not be imposed if they are unjustifiably onerous or simply punitive, but it may be appropriate to impose conditions that do not themselves directly relate to an offender's risk but are appropriate nonetheless because they promote the efficacy of an order containing other conditions which do: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [100]. In determining the conditions that are appropriate, I also take into account the comments of Adams J in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]:

2. [85]

   Counsel for both parties made useful submissions concerning the appropriate conditions that should be imposed under an ESO. A very substantial measure of agreement was reached as to the form of the appropriate conditions, if it was decided that an ESO should be made. My reasons are, accordingly, limited to those conditions in relation to which there was no substantial agreement or acceptance. The conditions that I have decided to impose are set out in the schedule to the orders I propose to make. They generally take the form of the conditions proposed by the parties, subject to minor grammatical and stylistic changes.

3. [86]

   Condition 4: This condition concerns electronic monitoring. The plaintiff sought electronic monitoring for the whole period of the ESO. The defendant opposed such monitoring outright but, if that was not acceptable, proposed that he be given an opportunity to demonstrate that electronic monitoring was not necessary, after a period of 6 months, but, if there was any breach of any condition of the ESO, electronic monitoring could be re-introduced. The defendant’s proposal was endorsed by both Dr Ellis and Dr Eagle in cross examination (T8.13-40), on the basis that there would be sufficient support in place otherwise adequately to monitor and ensure compliance. It was seen as being beneficial for his rehabilitation without compromising the security of the community or individuals.

4. [87]

   On the basis that other forms of supervision will be available and adequate to monitor the defendant and ensure protection of the community, I am prepared to impose a condition that requires electronic monitoring only for the first 6 months of the ESO, except if the defendant breaches any condition of the ESO, in which case the DSO may require the defendant to wear electronic monitoring equipment until the expiration of the ESO.

5. [88]

   Condition 16: This condition concerned the defendant not going to a place if the DSO tells him not to. Ms Goodhand contended that, in accordance with other decisions in similar matters, the condition should provide that such a direction could only be given if the DSO formed the reasonable belief that the defendant might come into contact with children at that place. In addition, she sought that the DSO be required to provide reasons for any such direction.

6. [89]

   In my view, it would be too narrow to permit a direction to be given only if the DSO formed the reasonable belief that the defendant might come into contact with children at the place that was to be forbidden. As Dr Eagle and Dr Ellis explained, the conditions appropriate in the defendant’s case included one which would prevent him forming relationships with vulnerable persons who might have children and thus gaining indirect access to children in that way. In addition I also take into account the victims’ statements which indicated that if the defendant were to travel to places where those victims were located this would cause distress and, potentially, harm to those victims. In the circumstances, I propose to adopt the condition proposed by the plaintiff but require, as the defendant submitted, that the DSO should be required to provide written reasons for any direction he gives, where practicable.

7. [90]

   Condition 32: This condition concerned the defendant informing his DSO of all his communication and storage devices. The defendant had sought a form of condition which would have allowed him to acquire devices and then inform his DSO within 24 hours or as soon as practicable. Dr Eagle and Dr Ellis commented on this condition in their oral evidence. In effect their view was that it was not onerous to require prior approval and to do so would provide more effective monitoring compared to being required to advise of any change to those devices, either immediately or as soon as practicable after a device was acquired or disposed of. For those reasons, the condition I propose to include requires the defendant to obtain prior approval.

8. [91]

   Conditions 33 to 35: These conditions concern searches and seizures. In broad terms, the defendant objected to the plaintiff’s proposed conditions as involving too significant an impingement on his rights. It was submitted that the court should adopt the reasoning of Hamill J in State of New South Wales v Single [2019] NSWSC 176 (Single) at [33]-[54]. In particular, it was contended in effect that the use of “reasonable suspicion” rather than “reasonable belief” in relation to certain parts of proposed conditions 33, 34 and 35 was not necessary for the effectiveness and proper implementation of the ESO.

9. [92]

   I accept that there is considerable force in the defendant’s submission but I am not persuaded to adopt the form of conditions from Single concerning search and seizure in their entirety. In the present case, the experts emphasised, albeit in a different context, the importance of not providing a time or place where the defendant would be certain that his conduct or possessions could not be examined. If such a situation were created, it could lead to temptation which significantly increased the risk of the offender engaging in activities which made reoffending more likely.

10. [93]

    Accordingly, while I accept that there is a proper basis for requiring “reasonable belief” of relevant matters before the powers are exercisable, I do not accept that the number of searches should be limited as a proposed.

11. [94]

    Other Conditions: Other conditions were, in some cases, the subject of drafting suggestions during submissions or minor disputes but I did not understand that there was any substantial dispute as to the substance of the conditions and, accordingly, it is not necessary to deal with them in detail here.

Orders

1. [95]

   For these reasons, the orders of the Court are:

   1. (1)

      The defendant is to be the subject of an extended supervision order from 11 June 2019.

   2. (2)

      The extended supervision order is for a period of 2 years and expires on 10 June 2021.

   3. (3)

      The defendant is to comply with the conditions set out in the schedule to the extended supervision order for the period of the extended supervision order.

   4. (4)

      Access to the Court's file shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.