State of New South Wales v Lett (Final)

1. [1]

   HIS HONOUR: By a further amended summons filed in Court on 29 August 2019 (“the application”), the State of New South Wales (“the State”) sought, by way of final relief, an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that Phillip Wayne Lett (“the defendant”) be the subject of an extended supervision order for a period of 5 years from the date of the order upon conditions set out in a Schedule to the application entitled “Schedule of Conditions of Supervision Philip Wayne Lett”.

2. [2]

   By an earlier amended summons the State sought interim relief. Interim orders were made following a preliminary hearing by Wilson J on 21 May 2019: State of New South Wales v Lett [2019] NSWSC 593 (“Lett No 1”). Those interim orders included an interim supervision order for a period of 28 days, commencing on 23 June 2019. The interim supervision order has been renewed on two subsequent occasions, by consent, for a further 28 days on 21 July and 18 August 2019, respectively.

3. [3]

   Her Honour appointed a psychiatrist and psychologist to assess the defendant’s risk of reoffending and to furnish reports. Those experts and the reports furnished were as follows:

   1. (1)

      Dr Kerri Eagle, consultant forensic psychiatrist, was appointed and furnished her report to the Court dated 19 July 2019; and

   2. (2)

      Jenny Howell, forensic psychologist, was appointed and furnished her report to the Court dated 17 July 2019.

4. [4]

   Dr Eagle has experience in the assessment, diagnosis and treatment of patients with problematic sexual behaviours involving young people and paedophilic disorders in public and private practice. She was required for cross-examination.

The Application

1. [5]

   There was, properly, no issue that the application conformed with the requirements of the Act for the bringing of these proceedings. The application was made within the last 9 months of the defendant’s custody and was supported by documentation that addressed the factors in s 9(3) of the Act, including a risk assessment report. A Risk Assessment Report was prepared by Ms Rachel Terry, psychologist, dated 30 November 2018 (“the RAR”). It may also be noted that a Risk Management Report was prepared by Marc Corcoran, Community Corrections Officer, dated 23 December 2018 (“the RMR”).

The “Serious Offences” of the Defendant

1. [6]

   On 22 December 1992 the defendant had been drinking beer, smoking marijuana and had taken Valium. At about 7.30pm that evening he drove past a park in Penrith where he spoke to the victim, Damien, a 6 year old boy, and invited Damien into his car. At the time, Damien was playing with his younger brothers in the park opposite his home.

2. [7]

   The defendant drove the victim to the carpark of Penrith Railway Station. The following morning, in that carpark, Damien was found dead. Damien was naked (apart from wearing shoes) with the boys’ underpants tied around his neck and on top of them Damien’s board shorts knotted and tied around his neck.

3. [8]

   The cause of death was strangulation and inhalation of blood caused from facial injuries Damien sustained. The facial (and other) injuries Damien sustained were caused by the defendant driving his car more than once over Damien’s body, after the defendant tossed Damien’s body from the car. Damien’s body had been dragged under the defendant’s car.

4. [9]

   During the police interview, initially the defendant denied any knowledge of the offence but when confronted with the fact that police enquiries showed he picked up Damien and had driven off with him, the defendant admitted his involvement. Those admissions included:

   1. (1)

      that he picked up Damien and his motivation was a sexual one;

   2. (2)

      that he tied Damien’s clothes around the victim tightly;

   3. (3)

      that when he threw Damien out of his car, the victim was limp; and

   4. (4)

      that he knew he drove his over Damien’s body twice but did not concede it was done intentionally.

5. [10]

   On 31 January 1994, the defendant was indicted and, in this Court, pleaded not guilty to the murder of Damien. The defendant accepted he had caused the death of Damien and did so intentionally but argued that the partial defence of diminished responsibility applied (and, therefore, amounted to manslaughter).

6. [11]

   The basis of that defence was that the defendant was also a victim of sexual assault when he was 8 years old. He was abused by a Sunday school teacher and later by his brother for approximately four years. The defendant claimed that, at the time, he had Damien in his vehicle and was going to sexually assault Damien, the defendant relived his own experiences. The psychiatric basis asserted by the defendant was that this amounted to an abnormality of the mind which substantially impaired his ability to control his actions and caused the defendant to strangle Damien.

7. [12]

   The defence failed and the jury returned a guilty verdict for murder.

8. [13]

   On 4 March 1994, Ireland J sentenced the defendant to 26 years’ imprisonment (19 years and 6 months non-parole). His Honour made the following findings of fact:

   1. (1)

      the abduction of Damien was sexually motivated;

   2. (2)

      the defendant deliberately drove his car over the victim to kill the boy to avoid being incriminated for the sexual assault;

   3. (3)

      as there was no evidence of interference with Damien’s genitalia or penetration to the victim’s anus, any sexual assault “was not of a gross physically harmful or penetrative nature”; and

   4. (4)

      at the time Damien was run over by the defendant’s vehicle, Damien was alive but unconscious.

9. [14]

   His Honour’s remarks on sentencing included:

   1. (1)

      the facts of the murder “are appalling and… it falls as to be characterised as within the worst class of case”;

   2. (2)

      the defendant exhibited genuine remorse at sentence;

   3. (3)

      alcohol was a “pervading” factor at the time of the offence; and

   4. (4)

      the defendant had some prospects of rehabilitation as Ireland J found no evidence which supported premeditation.

10. [15]

    The defendant appealed his sentence to the Court of Criminal Appeal. That appeal was dismissed: R v Lett (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Sully and Levine JJ, 27 March 1995). Hunt CJ at CL (with whom Sully and Levine JJ agreed), concurred with the trial judge’s findings and further found that the defendant removed Damien’s clothes and it was when Damien was attempting to escape from the defendant that the defendant decided to kill Damien.

11. [16]

    This Court and the Court of Criminal Appeal described this murder as one of the worst cases of its kind which warranted a lengthy period of imprisonment commensurate to that crime. Hunt CJ at CL stated that the sentencing judge was entitled to conclude that the “objective circumstances were appalling”. The objective gravity of the murder was found to be high. His Honour did not find the defendant’s history of being sexually abused as a child mitigated the murder and that the murder was committed to cover up the sexual behaviour. The defendant intended sexual assault. Alcoholism was not a mitigating factor.

12. [17]

    Hunt CJ at CL also observed (at 7):

13. [18]

    The Court of Criminal Appeal considered that the defendant required a period of supervision to assist his rehabilitation back into the community but that the statutory ratio at that time (which produced a period of parole of six and a half years) was “ample”.

14. [19]

    This is relevant in the present context given the defendant has refused parole and not spent any period in the community under supervision.

15. [20]

    The murder of Damian was a serious violence offence pursuant to s 5A(1)(a) of the Act (“the serious violence offence”). An indecent assault is a “serious sex offence”.

16. [21]

    Between November 1988 and 1992 the defendant had anal and oral intercourse repeatedly with the victim (“V2”), when V2 was between 8 and 12 years old. V2 was a friend of the defendant’s de facto partner’s children and would visit the defendant’s home regularly. When opportunities were presented where the defendant was alone with V2, the defendant sexually assaulted V2.

17. [22]

    On 26 January 1994, V2 reported the matter to Police after learning that the defendant was charged for the murder of Damien. On 5 July 1995, the defendant was interviewed by Police and admitted to the allegations V2 reported. The defendant claimed he was a heavy drinker of alcohol at the time.

18. [23]

    On 5 July 1995, the defendant was arrested and charged with 8 counts of intercourse when V2 was under 10 years old and when the victim was over 10 but under 18 years of age.

19. [24]

    On 16 November 1995, in East Maitland District Court, the defendant was indicted with two representative counts of homosexual intercourse relating to when V2 was under 10 years of age (8 or 9 years old, being count 1) and when V2 was between and 10 and 18 years old (12 years old, being count 2). He pleaded guilty to both counts that day.

20. [25]

    These are serious sex offences pursuant to ss 5(1)(c) and 5(1)(a)(i) of the Act (“the serious sex offences”).

21. [26]

    The defendant is 58 years of age. He has served 26 years and 6 months imprisonment. He refused parole. Except for the interim orders made by Wilson J, the defendant has had no supervision in the community.

FURTHER FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN SECTION 9(3)

1. [27]

   The State relied upon the following evidence given by affidavit:

   1. (1)

      Two affidavits of Mr David Stevens sworn 22 February 2019, including the material exhibited to that affidavit (which included the RAR and RMR), and 11 April 2019, respectively; and

   2. (2)

      Two affidavits of Ms Kelli Grabham sworn 11 April 2019 and 2 August 2019, respectively.

2. [28]

   The defendant relied upon the evidence of Ms Margaret Sweeney given by an affidavit sworn 29 August 2019.

Risk Assessment and Risk Management

1. [29]

   Wilson J gave a comprehensive summary of the RAR and RMR in Lett No 1 (at [54]-[80]), which, with respect, I adopt, as follows:

2. [30]

   I interpose to note that Ms Terry also observed, with respect to emotional control, that the defendant has a history of difficulty managing his emotions. Triggers to poor emotional control include mental health decline, feelings of rejection or low self-esteem and rumination of his childhood experiences. Ms Terry commented that Custody-based Intensive Treatment (“CUBIT”) has shown that the defendant has the skills to talk through his problems and regulate his emotions. However, she reported in the RAR:

3. [31]

   I continue with the extract from the judgment of Wilson J in Lett No 1 (at [81]-[83]):

4. [32]

   The RMR proposed a plan that addressed the defendant’s criminogenic needs identified in the RAR including monitoring his potential for a return to substance abuse, supporting his reintegration, holding to mind his level of institutionalisation and encouraging the defendant’s planned prosocial lifestyle.

5. [33]

   The RMR proposed to have the defendant attend Forensic Psychology Services to address his sexual deviance and trauma history. The Offender Integrated Management System (“OIMS”) case note of 14 July 2019 shows the defendant had consented to the referral.

6. [34]

   The RMR also proposed to monitor the defendant’s mental health and his compliance with medication.

7. [35]

   The measures proposed while on the extended supervision order would be protective and directly monitor and reduce with rehabilitation the re-emergence of acute high risk scenarios.

Treatment or Rehabilitation Programs (s 9(3)(e))

1. [36]

   In its written submissions, the State contended:

2. [37]

   That contention, which may be accepted, should be the subject of some elaboration (which also expands upon the summary of the RAR provided by Wilson J).

3. [38]

   The defendant commenced and completed the CUBIT program from 11 September 2013 to 13 April 2015. The CUBIT completion report dated 17 April 2015 reported that the defendant participated positively and addressed most of his dynamic risk factors.

4. [39]

   The report noted that the defendant showed insight into the pathways to his offending and learnt and displayed empathy towards the victims of his offending.

5. [40]

   The author of the CUBIT report noted that the defendant had addressed dynamic risk factors but further commented that there was no evidence of the defendant managing these risks in an unrestricted environment so the risk of them re-emerging remains. Those dynamic risk factors were as follows:

   1. (1)

      intimacy deficits;

   2. (2)

      hostility towards women;

   3. (3)

      loneliness;

   4. (4)

      emotional identification with children;

   5. (5)

      impulsivity;

   6. (6)

      poor problem solving; and

   7. (7)

      his sexual deviance.

6. [41]

   Areas of concern, noted in the CUBIT report as requiring further treatment, included the following:

   1. (1)

      the need for trauma counselling to address his childhood trauma which appears to be the source of his Post Traumatic Stress Disorder (“PTSD”) and negative emotionality; and

   2. (2)

      sexual self-regulation, noting that the defendant appeared confused and lacked insight regarding his sexual interests and functioning.

7. [42]

   The CUBIT report concluded:

8. [43]

   The defendant participated in further custody-based maintenance programs from 27 May 2015 to 18 October 2017 and reliably attended all 53 sessions. At the completion of the program, a report entitled “Custody-Based Maintenance Participation Summary/Review” (“the participation summary”) dated 22 January 2018 was produced by Ms Victoria Cohn, Psychologist, and Ms Aimee Press, Senior Psychologist. The participation summary noted the focus of the sessions was to solidify and practice learnt treatment strategies, which was described as the defendant’s “identified goals” and included, inter alia, the following:

   1. (1)

      emotional regulation strategies, which the defendant demonstrated he had learnt and could utilise; and

   2. (2)

      assertive communication skills, which gave the defendant tools to resolve conflict and develop healthy adult attachments.

9. [44]

   The participation summary concluded that the defendant demonstrated insight into core treatment concepts and increased in his ability to apply emotion regulation strategies, developed his assertive communication skills and develop healthy adult attachments. Having achieved his identified goals for custody-based maintenance, it was recommended that the defendant would benefit from community-based maintenance programs upon release to continue to develop those skills and practice them in a community setting (another evidentiary reason corroborating the need for an extended supervision order).

Overview Criminal History, Custodial record and CUBIT

1. [45]

   A useful chronological overview of the defendant’s offending, custodial record and CUBIT participation was provided by the State in tabular form, which I extract below:

Results of Other Expert Assessments (s 9(3)(c))

1. [46]

   I adopt, with respect, the summary provided by Wilson J in Lett No 1 (at [29]-[53]) as to assessments made by experts other than the independent court appointed experts:

Reports of Court Appointed Experts (s 9(3)(b))

1. [47]

   The report of Ms Howell was the subject of uncontentious summary in the written submissions of the State, from which I draw in the following summary.

2. [48]

   Ms Howell interviewed the defendant face-to-face for 150 minutes on 5 July 2019 as well as considering the material sent to her (detailed at page 3 of her report). Ms Howell also noted the defendant’s childhood sexual abuse experiences.

3. [49]

   Ms Howell diagnosed the defendant with PTSD, bipolar disorder, anxiety and depression.

4. [50]

   Ms Howell considered the PTSD was not just related to his childhood sexual abuse but that his loss of relationship with his mother, and observed that the defendant’s distant and abusive relationships with his father and paternal grandmother may also underpin his PTSD.

5. [51]

   Ms Howell diagnosed the defendant with bipolar disorder, anxiety and depression because of the defendant’s fluctuating moods and his heightened anxiety with his current circumstances.

6. [52]

   When discussing the murder and the serious sex offences with the defendant, and in considering the defendant’s motivation for them, Ms Howell observed that:

   1. (1)

      the offences occurred when the defendant’s relationship with his partner deteriorated; and

   2. (2)

      the murder occurred while the defendant was using drugs and alcohol and had a gambling problem.

7. [53]

   Ms Howell utilised statistical assessment tools and professional judgment tools to categorise the defendant in the average overall risk category for sexual reoffending.

8. [54]

   Ms Howell found that the defendant’s scores on the Static-99R placed him in the “Average” range of a further serious sex offence. The risk of recidivism with that score is estimated to be around 1.4 times higher than that of a typical such offender. On the other hand, using the Violence Risk Scale, the risk of the offender reoffending is in the low range.

9. [55]

   Ms Howell opined that the defendant’s risk of recidivism may escalate in the event he returns to alcohol abuse on release, or his current mental health is compromised or his supportive relationships breakdown.

10. [56]

    Ms Howell commented on the benefit of an extended supervision order. In particular, that:

11. [57]

    As mentioned Dr Eagle was the subject of cross-examination. She also gave evidence led in chief. I will commence with a summary of her report as elaborated upon in evidence-in-chief.

12. [58]

    Dr Eagle interviewed the defendant face-to-face for 120 minutes on 10 July 2019 as well as considered the material sent to her (detailed at para 8 of her report).

13. [59]

    Dr Eagle observed that the defendant had a childhood trauma history of sexual abuse, having been abused by his Sunday School teacher when he was 7 years old until he was 12 years old, and that the defendant’s brother also sexually abused the defendant when the defendant was around 9 years old until 12 years old.

14. [60]

    At the time of the interview Dr Eagle noted the following about the defendant’s current circumstances:

    1. (1)

       he is living at Nunyara Community Offender Support Program (“COSP”) in Malabar;

    2. (2)

       he is unemployed and not wanting employment as yet;

    3. (3)

       he is trying to adjust to life in the community including how to catch a bus and use a phone;

    4. (4)

       he is on antipsychotic and mood stabilising medication (quetiapine) and antidepressants (ciprimil); and

    5. (5)

       the defendant stated he still hears inner voices of his Sunday School teacher (who sexually abused him for 5 years as a child).

15. [61]

    Dr Eagle opined:

16. [62]

    In her account of the “first sexual offences”, Dr Eagle recorded:

17. [63]

    Further, under the heading “Psychosexual History”, Dr Eagle stated:

18. [64]

    Dr Eagle emphasised that, even apart from the defendant’s offending behaviour, he had been attracted to children with occupying thoughts and fantasies from when he was 18 years of age regarding children in the 8 to 9 year old range and had masturbated to those. This was taken into account in the diagnosis of the defendant regarding paedophilia.

19. [65]

    Under the heading “Mental State Examination”, Dr Eagle observed:

20. [66]

    The understanding of psychological processes referred to by Dr Eagle concerned the defendant addressing his deviant sexual arousal patterns and his psychological vulnerabilities and an emotional dysregulation, problems with intimacy and impulsivity. Those vulnerabilities are risk factors.

21. [67]

    Dr Eagle distinguished “sexual deviance” from “paedophilia”, the former being any pattern of sexual arousal that is atypical and the latter being a pattern of sexual arousal that involves pre-pubescent children.

22. [68]

    Dr Eagle considered that Ms Terry had identified, as a psychologist, sexual deviant disorder in the case of the defendant. Her emphasis was upon risk assessment instruments which referred, in the case of STABLE-2007, to sexual deviancy.

23. [69]

    Dr Eagle commented on the RAR and the observations by Ms Terry as to Mr Green which it was said included the following:

24. [70]

    Dr Eagle provided a number of diagnoses of the defendant.

25. [71]

    The defendant was diagnosed with PTSD whereby the defendant continued to experience with flashbacks and voices of his Sunday School Teacher triggered by certain noises. Dr Eagle opined:

26. [72]

    The defendant was diagnosed with paedophilia because the defendant has described recurrent sexually arousing fantasies with pre-pubescent boys. Dr Eagle considered this the “strongest risk factor which does not appear to have been adequately addressed in [the defendant’s management and rehabilitation”.

27. [73]

    Dr Eagle opined:

28. [74]

    This opinion was based upon the defendant having sexual fantasies in relation to children between 8 and 12 years of age. The defendant had acted on those fantasies with pre-pubescent children.

29. [75]

    Further, in answering the question, “Does the defendant pose a risk of committing a further serious offence?”, Dr Eagle further opined:

30. [76]

    Dr Eagle opined that the defendant’s goals were superficial in the sense that he simply intended to avoid thoughts of sexual arousal towards children. Whilst the defendant had various objectives, such as developing a genuine relationship with a woman, he had “no real strategies or steps or building blocks to demonstrate how he was going to achieve those goals”. He did not have an adequate strategy to deal with triggers such as exposure to children including adequate coping mechanisms after a lengthy period of incarceration.

31. [77]

    Dr Eagle also provided the following diagnoses:

    1. (1)

       Severe substance use disorder, in remission but in the context of a highly controlled environment. Dr Eagle considered the defendant is “highly susceptible to relapse… as he reintegrates into the community, is exposed to stressors and has access to substances”.

    2. (2)

       Borderline personality disorder which manifests with traits such as severe affective instability; a pattern of unstable interpersonal relationships; a markedly unstable self-image; recurrent suicidal gestures; impulsivity and inappropriate, intense anger.

32. [78]

    When discussing the murder and the serious sex offence with the defendant and considering the defendant’s motivation for the offences, Dr Eagle observed that:

    1. (1)

       the murder and the serious sex offences occurred when the defendant’s relationship with his partner at the time deteriorated;

    2. (2)

       the murder occurred while the defendant was intoxicated (cannabis, alcohol and Valium);

    3. (3)

       the defendant explained to her that at the time of the murder he was having flashbacks of his Sunday School teacher and was angry at his Sunday School teacher; and

    4. (4)

       the defendant exhibited cognitive distortions at the time of the offences that enabled him to justify his behaviours, such as identifying with the victims and wanting love from them.

33. [79]

    Dr Eagle commented that the primary motivation for the murder and the serious sex offences was sexual arousal.

34. [80]

    In relation to the risk of sexual reoffending, Dr Eagle applied the Static-99R and found, as Ms Howell did, that the defendant fell into the category considered an average risk of reoffending.

35. [81]

    As to the defendant’s scoring, Dr Eagle also opined:

36. [82]

    As to the structural professional judgment tool, “Stable 2007”, Dr Eagle opined:

37. [83]

    Dr Eagle utilised statistical assessment tools and professional judgment tools to categorise the defendant in the moderate overall risk category for sexual reoffending. The risk of recidivism being between 9.7% and 23.9% over a five year period.

38. [84]

    Assessing the defendant’s risk of violence, Dr Eagle found the defendant had:

    1. (1)

       several historical risk factors empirically linked to risk of violent reoffending including history of violence, substance use, relationships and personality disorder;

    2. (2)

       clinical risk factors associated with violent reoffending including problems with insight; and

    3. (3)

       potential future risk factors in the absence of an extended supervision order:

39. [85]

    Dr Eagle observed that the defendant has “consistently explained his offending behaviour in the context of memories of the childhood sexual abuse”. Appreciating that the defendant’s childhood trauma has caused severe psychological vulnerabilities Dr Eagle caveats that:

40. [86]

    Dr Eagle considered that the defendant’s risk factors empirically linked to a risk of serious offending could be reduced if he secured employment, established stable accommodation and social supports, tolerated stressors without resorting to substance use or inappropriate sexual behaviour and recognised his paraphilia.

41. [87]

    As to the management of risks in the community under an extended supervision order, Dr Eagle opined:

42. [88]

    In cross-examination, Dr Eagle repeated that the defendant, whilst having an intellectual insight into his offending, lacked a true insight or a genuine understanding of some of the factors associated with his offending.

43. [89]

    Dr Eagle distinguished between a deviant sexual interest and a paedophilic disorder, describing the latter as a clinical diagnosis, rather than a description. The defendant was diagnosed with a paedophilic disorder not only because he had engaged in repeated sexual offences with a child under 13 but because those acts amounted to sexual arousal with respect to a child, an inclination the defendant has accepted he possessed. He had identified to Dr Eagle that he had sexual arousal with respect to pre-pubescent children and masturbated in respect of the same.

44. [90]

    Dr Eagle accepted that earlier psychiatric or psychological reports had not diagnosed paedophilia although she stated that Ms Terry’s report had referred to sexually deviant behaviour in the context of a preference for pre-pubescent males which, in substance, amounted to the diagnosis of a paedophilic disorder.

45. [91]

    However, some earlier psychiatric reports were given in circumstances where the author was not aware of the defendant’s sexual offending with respect to a pre-pubescent male child. That observation applies to Dr Westmore (to whom the defendant had made dishonest denials) and Dr Clark (he had no legal information regarding the charges, court proceedings or sentencing of the defendant and did not do a sexual history). Dr Lambeth did make a reference to paraphilia or paedophilia but did not refer to the defendant repeating his experience as a child and found his offending as sexually motivated.

46. [92]

    As to the appropriateness of supervision, Dr Eagle opined:

47. [93]

    The conditions of the extended supervision order sought by the State aim to arm the defendant with these protective factors. The defendant needs a psychologist who can assess his thoughts, monitor his sexual arousal patterns, discuss risk scenarios and manage behaviours that might be of concern.

Level of Defendant’s Compliance with Obligations under Previous Orders (s 9(3)(f))

1. [94]

   The latest OIMS notes suggest the defendant is compliant with the conditions of the interim supervision order to date. There is no evidence to suggest the defendant would not comply with conditions of the extended supervision order.

2. [95]

   However, there have been incidents at Nunyara COSP, with the schedules required for clients causing the defendant some stress. There has been an assurance by the Nunyara COSP staff that the schedules are there to assist the defendant to become more confident in the community.

3. [96]

   Prior to the interim supervision order, the defendant had been compliant in custody and shown he posed no issue with escorted day leave. I agree with the submissions for the State that this suggests he is capable of being supervised on an extended supervision order and would be unlikely to deliberately evade conditions of an extended supervision order.

4. [97]

   The pre-release report of Corrective Services NSW dated 18 April 2018 noted that the defendant had completed six excursions and two day leaves without incident or issue.

Objects

1. [98]

   The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

Preconditions

1. [99]

   Section 5B of the Act is in the following terms:

2. [100]

   I accept that the first three preconditions (s 5B(a)-(c) above) were met in the present matter. The defendant is over 18 years old, has been sentenced to imprisonment for two “serious offences” and when the application was filed the defendant was a “supervised offender” as he was in custody for a serious sex offence.

Section 5B(d): Principles

1. [101]

   The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk violent offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60]).

2. [102]

   As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[54])). By way of emphasis or elaboration, some further observations may be made.

3. [103]

   First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

4. [104]

   Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 (“Pacey”) and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

5. [105]

   Reference may also be made to the discussion of the test under s 5B(d) in State of New South Wales v Ceissman [2018] NSWSC 508 at [26] as follows:

6. [106]

   Thirdly, the requisite finding under s 5B(d) may be made, in an appropriate case involving a single serious offence. In Kamm, Harrison J observed (at [44]):

7. [107]

   Finally, I refer to the judgment of Harrison J in Pacey (at [53]):

8. [108]

   The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”.

Unacceptable Risk

1. [109]

   It is true that the offending which constituted a serious violence offence and serious sex offences occurred a considerable time ago. The earliest offending occurred over 30 years ago. I also acknowledge the efforts of the defendant in engaging with programs such as CUBIT and the custody-based maintenance program to ameliorate risks and that his efforts demonstrate remorse and contrition as to his offending. I also note his exceptional record in custody.

2. [110]

   Nonetheless, I consider that there remains dynamic risk factors which are exacerbated by the defendant’s untreated childhood trauma and PTSD, institutionalisation and other factors discussed below. Those factors combine to provide satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

3. [111]

   The professional judgment tools and statistical assessment tools categorised the defendant in the moderate or average category for the risk of sexually reoffending and the low category of violence recidivism.

4. [112]

   I accept the diagnosis of a paedophilic disorder by Dr Eagle, which is the principal and significant risk factor.

5. [113]

   As Dr Eagle pointed out, the defendant admitted sexual arousal to pre-pubescent children and had acted upon that urge by masturbation and later offending.

6. [114]

   As Dr Eagle opined, the defendant has developed an intellectual understanding of his sexually deviant behaviours but not a true insight into the psychological processes which link to his offending or the means of managing those behaviours.

7. [115]

   Dr Eagle’s evidence was not diminished in cross-examination. It was a cogent assessment based on historical contemporary records including demographic information, histories of previous illness, psychiatric history, clinical custody records, a substance abuse history, accounts of the index offence, the defendant’s “forensic history” including the serious sex offences, personal history, psychosexual history and a mental state examination. Dr Eagle also undertook a clinical assessment. Her expert evidence may be distinguished, in this respect, from many earlier psychiatric and psychological reports in which a paedophilic disorder was not diagnosed because their authors did not have the full relevant history available. I also accept Dr Eagle’s assessment that, in substance, Ms Terry’s assessment as to sexual deviancy does not significantly depart from her diagnosis of paedophilic disorder.

8. [116]

   I also note the CUBIT report pointed to a continued concern over the defendant’s unresolved childhood trauma which is a source of not only distress and anger but arousal. It was explained that it was unclear how the defendant will function in the community with infrequent sexual thoughts and behaviour potentially changing in a significant way.

9. [117]

   As mentioned, this diagnosis is a very strong factor indicating a risk of recidivism.

10. [118]

    I accept the submission advanced by Ms D New of counsel for the State that this dynamic factor is compounded, in terms of risk, by the institutionalisation of the defendant, his historical and high vulnerability to the use of drugs and alcohol as a coping mechanism and his impaired educational functioning skills. (Ms Howell did not diagnose a paedophilic disorder but did identify the risk associated with a return to alcohol abuse and compromise to his mental health upon release from custody).

11. [119]

    Those concerns incorporate the defendant’s unresolved childhood trauma and the diagnosis of PTSD stemming from that childhood sexual abuse. The symptoms associated with the defendant’s trauma history require further treatment (the PTSD was not addressed in the custody based programs) and remains untreated. Flashbacks are current (Ms Howell also diagnosed the defendant with PTSD).

12. [120]

    The defendant is highly vulnerable to dynamic risk factors, especially because of his institutionalisation. Risks are elevated in this context because of the high degree of probability the defendant will find it difficult to cope with the stress of returning to the community. There is a prospect of a decline in his mental health and he may seek connection with children with whom he identifies. He may revert to sex to cope. He needs psychiatric and psychological treatment to manage his PTSD and sexual deviance.

13. [121]

    I accept the proposed support by Ms Sweeney and the defendant’s sister is pro-social but it is not sufficient to manage the risks arising in this respect, particularly as the experts opined the defendant needs structural support, rehabilitation and treatment. That pro-social support needs to be balanced against the protection of the community.

14. [122]

    The defendant committed the serious violence offence and serious sex offences when he was abusing illicit drugs and alcohol, was feeling lonely, his mental health declined and he was unable to control his emotions.

15. [123]

    By way of illustration, the serious sex offending occurred when the defendant had an attraction to a boy between the ages of 8 and 12 years, was drinking heavily, had relationship instability and had the opportunity to offend by access to the boy through a friend and, particularly, given he identified with children. Hence, sexual deviance, stress and the use of drugs and alcohol were prevalent during the serious sex offences. There is a risk that, if the defendant offends again, he may violently offend against a young boy he sexually assaults.

16. [124]

    There is a further consideration bearing upon my judgment as to the existence of unacceptable risk. If the risk factors re-emerge or elevate, the gravity of the offending presented and the consequence for the victim are grave; as Wilson J observed in Lett No 1 – “too terrible to ignore” (at [104]).

Extended Supervision Order

1. [125]

   Having regard to the factual background of this matter, the various factors discussed under s 9(3) of the Act and the aforementioned conclusion reached under s 5B(d), an extended supervision order should be made.

2. [126]

   There is a clear basis on the evidence for the Court to make an extended supervision order. The making of such an order will, on the evidence, provide for the monitoring and management of the potential re-emergence of the dynamic risk factors I have described above.

3. [127]

   Supervision will, in my view, reduce the risk of reoffending and both protect the community and encourage rehabilitation. The circumstances of the defendant’s offending and the possible drastic consequences of the same warrant orders for the safety of the community.

4. [128]

   I note that I have had regard to the victim impact statement of Bridget Coen generally, in this respect, but not as to the proof of matters of fact raised in the statement particularly paras 5 and 7 thereof.

Conditions and Duration

1. [129]

   The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). The purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

2. [130]

   Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

3. [131]

   The Court of Appeal further held at [53]-[54]:

4. [132]

   In State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”), the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

5. [133]

   In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).

6. [134]

   His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):

7. [135]

   With respect, I accept Button J’s statement of principles in Farringdon.

8. [136]

   There was no dispute as to the conditions proposed save as to proposed conditions 5 to 8. The defendant submitted that, if his objection to conditions 5 to 8 was not accepted by the Court, then he would seek amendment to condition 7A. Proposed condition 7A is in the following terms:

9. [137]

   The defendant proposed the provision operate with respect to “any 12 month period” during the operation of an extended supervision order.

10. [138]

    In my view, conditions 5 to 8 should be incorporated in the conditions operating under the extended supervision order.

11. [139]

    I acknowledge that the defendant does feel anxious when met with scheduling requirements, even feeling overwhelmed at times, and, as the defendant submitted, the defendant will struggle with scheduling given his limited executive functioning and period in custody. However, I accept Dr Eagle’s evidence that the scheduling conditions do not elevate the risk of reoffending but are rather therapeutic in that they will assist the defendant in developing coping strategies. I note Ms Howell did refer to scheduling being stressful for the defendant and that such stress may impact his mental health and his risk of offending. However, Ms Howell did not refer to parts of the OIMS notes which detail the defendant’s actual experience in scheduling to date. That evidence suggests that, with reasonable assistance, the defendant was able to adapt to the scheduling requirements.

12. [140]

    In my view, these conditions should be understood in the light of the Departmental Supervising Officer (“DSO”) adopting a practical, common sense approach to the scheduling requirements and providing a reasonable opportunity for the defendant to adjust to such arrangements particularly if he moves to independent accommodation. I do not consider, as the defendant submitted, the scheduling arrangement would be set up for the defendant to fail. Rather I consider them rehabilitative.

13. [141]

    The addition of condition 7A, as proposed by the State, is reasonable in the light of the opinion expressed by Dr Eagle and offers an incentive to comply with condition 7. It is consistent with a rehabilitative approach. I do not consider the variation proposed by the defendant to be appropriate in the circumstances.

14. [142]

    Dr Eagle and Ms Howell consider the duration proposed is appropriate to address risk and that the suite of conditions proposed is appropriate from a clinical perspective.

15. [143]

    There was no dispute as to the duration proposed by the State and I consider it appropriate having regard to the opinion of the independent experts.

CONCLUSION

1. [144]

   In the circumstances, I consider the requirements of s 5B of the Act have been satisfied and pursuant to s 9(1)(a) an extended supervision order should be made effective from 13 September 2019 for a period of 5 years. Further, I consider that pursuant to s 11 of the Act, the conditions set out in the Schedule to the further amended summons should apply and the defendant should be directed to comply with those conditions.

2. [145]

   The State shall bring in short minutes of order reflecting this judgment by 4pm on 13 September 2019.