Attorney General for the State of NSW v Steadman (No 2)

By amended summons filed on 6 May 2016, the Attorney-General for the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) in respect of the defendant for a period of five years under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Except where otherwise stated all references to legislative provisions in these reasons are to the Act.

The plaintiff also sought, in the summons filed on 9 February 2016, an interim supervision order (ISO) against Robert Steadman (the defendant) pursuant to s 10B pending the final hearing of this matter and an order pursuant to s 7(4) appointing two psychiatrists to examine the defendant and report to the Court on the examinations.

On 29 February 2016 I heard the plaintiff’s application for an ISO and for orders under s 7(4). On 3 March 2016 I made orders, including an ISO, and published reasons: Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174. The ISO has since been renewed twice. It is due to expire on Sunday 29 May 2016. The conditions of the ISO were the same as those that applied to a previous ESO to which the defendant had been subject except that a condition was added authorising the defendant’s Departmental Supervising Officer (DSO) to tell the family of the defendant’s spouse (whom he married in October 2015) about his criminal history.

At the hearing of the substantive application on 6 May 2016 Mr Denman, who appeared on behalf of the plaintiff, sought leave to amend the summons to seek an ESO for a period of five years, being the maximum period for which the Act provides (instead of for a period of three years as sought in the summons which was filed on 9 February 2016). Ms Mathur, who appeared on behalf of the defendant, did not oppose leave to amend the summons being granted.

The defendant opposed the making of an ESO. In the alternative, he contended that, if an ESO was made, it ought not be for a period longer than three years.

The plaintiff relied on the following evidence:

Dr Jones attended Court to give evidence (under the mistaken apprehension that the defendant still required him for cross-examination) and remained in Court while Mr Van Ryn and Mr Ardasinski gave oral evidence. He gave some brief oral evidence to supplement his report in light of their oral evidence.

Subject to one exception, Ms Mathur 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).

The defendant adduced no evidence. 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: New South Wales v Donovan [2015] NSWCA 280 at [11]-[119] per Beazley P and Macfarlan and Leeming JJA. The defendant did not call his present wife to give evidence. Mr Denman confirmed that the plaintiff did not ask me to draw any Jones v Dunkel inference (after Jones v Dunkel (1959) 101 CLR 298) that her evidence would not have assisted the defendant’s case.

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873 at [10]; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [10].

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

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.

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 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, 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. As the matters the subject of the narrative touch on personal details of those associated with the defendant in a personal capacity, I will not use the real names of his partners, their children or associates in these reasons.

To the extent to which the evidence at the ESO hearing on 6 May 2016 does not differ from that at the ISO hearing before me on 29 February 2016, I have replicated some of the narrative from my earlier judgment where it is relevant to the question whether to grant an ESO, and, if so, for what period.

The defendant was born in 1944. His criminal history began in 1953 with offences of stealing. The first conviction of present relevance was a conviction in 1958 (when he was 14) for indecent assault on a female aged six years. In 1960 he was committed to a psychiatric institution for treatment following a charge of indecent assault on an 11-year old female (when he was 16) which was replaced with a charge of common assault. Both of these offences constituted “serious sex offences” as defined by the Act.

The defendant was married for the first time in the 1960’s and had three children. After about five years this marriage ended in divorce. He remarried in about 1980. His second wife died in 1991. At some time prior to March 1993 the defendant formed a de facto relationship with a woman, who had a daughter, AV1.

In an electronically recorded interview AV1 said that in March 1993 she woke up one night in bed to discover that the defendant had his hands down the front of her underpants and was touching her on her vagina. According to AV1, he said: “If you let me touch you more I’ll give you a horse for your birthday.” She did not tell her mother what had happened until about June 1993. The defendant was charged in relation to the alleged conduct. At that time her mother was planning to marry the defendant. Subsequently, and notwithstanding the charge, AV1’s mother resumed her relationship with the defendant and they became engaged to be married again. The defendant was acquitted of the charge with respect to his alleged conduct in respect of AV1.

During the school holidays in September 1993, V3, one of AV1’s friends, was staying overnight at AV1’s place. One evening the children had been watching television in the bedroom the defendant shared with AV1’s mother. AV1 had fallen asleep in the bed, woken up and moved to a bunk bed in another room, leaving V3, AV1’s mother and the defendant in the same bed. V3 woke up to find the defendant’s hand down her underpants and his middle finger in her vagina. V3 started screaming and hitting him, after which she went to the bunk bed where her friend, AV1, was sleeping.

As a result of these events, the defendant was charged with aggravated sexual intercourse without consent. This charge proceeded by way of indictment in the District Court in 1994. The defendant was convicted. He was sentenced by Armitage DCJ to a minimum term of two years with an additional term of eight months. His appeal against conviction and sentence was dismissed.

The defendant was released to parole on 17 November 1996 on an 8-month parole order. Although he was generally compliant with reporting (according to a pre-sentence report prepared in 2011), he refused to engage in any “interventions” in the community and maintained his innocence.

After his release from gaol the defendant formed a de facto relationship with a woman who, in 1998, became his third wife. The defendant’s third wife had two daughters: one, who was herself the mother of five daughters (including V4, V5 and V6); and a second, TC, who was disabled. The defendant’s third wife was not aware of the defendant’s previous offending.

At Easter 2007, the defendant and his third wife went to visit her grandchildren on the North Coast of New South Wales. They took TC with them. They stayed in a caravan at the rear of the house where the defendant’s third wife’s daughter lived with her family (including V4, V5 and V6).

The transcripts of recorded interviews with V4, V5 and V6 were tendered. In addition to matters that concerned the index offences, the transcripts included the girls’ versions of other (uncharged) sexual acts alleged to have been perpetrated against them by the defendant as well as reference to alleged offending against other children during the same period. The conduct described by the victims and alleged victims (each of whom was a young girl to whom the defendant had access through family relationships) was largely opportunistic in the context of a family situation. For example, the defendant drove one of the victims to the tip to fossick for toys and asked her not to wear underpants. He assaulted her while they were there and took photographs of her vagina and asked her to take a photograph of his erect penis.

According to V5’s statement, the defendant’s conduct affected several girls, as demonstrated by the following passage in the transcript:

V5 also said in the interview:

The defendant was arrested on 11 July 2007 and remained in custody pending his trial.

On 22 October 2008 the Director of Public Prosecutions presented an indictment in which the defendant was charged with the following counts:

The defendant pleaded guilty to the three counts. The following extract is taken from the statement of facts:

A further matter (possession of child pornography contrary to s 91H(3) of the Crimes Act) was included on the Form 1 in the following terms:

An offender intake data form in respect of the defendant (which was filled in when he was admitted to Wellington Gaol in February 2009) recorded much of the relationship history set out above. On 23 February 2009 he underwent a Static-99 assessment (an instrument designed to help predict sexual and violent recidivism in sexual offenders) and scored 6, which placed him in the high risk category.

In April 2009 the defendant was assessed by Professor Greenberg, a forensic psychiatrist, who prepared a report for the sentence hearing on 6 April 2009. Professor Greenberg opined that the defendant probably suffered from paedophilic disorder and that he would benefit from Custody-Based Intensive Treatment (CUBIT).

On 17 April 2009 Judge Williams imposed a sentence of five years and five months imprisonment with a total non-parole period of four years and two months, to date from 11 July 2007, being the date on which he was taken into custody.

In the remarks on sentence, Williams DCJ said, of the defendant’s third wife:

The sentencing judge also said:

The defendant’s wife continued to support the defendant throughout most of his sentence. However, in about early 2011, TC told her mother that the defendant had been sexually abusing her for years, including before they were married. This led to their divorce on 10 May 2011. A probation and parole pre-release report dated 29 June 2011 said:

The report concluded:

On 21 June 2011 a risk assessment report was prepared for the purpose of determining whether an application for an ESO ought be made under the Act, as the defendant’s sentence was due to expire on 10 December 2012. The assessment was conducted by Patrick Sheehan (senior specialist psychologist) and Danielle Matsuo (Acting Director Sex and Violent Offender Programs). The defendant was assessed as remaining in the moderate-high risk category of sexual offending relative to other male sexual offenders.

On 10 September 2012 the defendant was released from custody on parole. At first, he resided in a Community Offender Support Program (COSP) facility. On 19 September 2012 he was registered under the Child Protection (Offenders Registration) Act 2000 (NSW) (the 2000 Act). As such he is a registrable person within the meaning of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (the 2004 Act).

On 22 November 2012 the defendant was charged with failing to comply with his reporting conditions under the 2000 Act as he had a mobile phone with internet access which he had not disclosed to police. He explained that he thought that he was complying with the relevant reporting condition when he told police that he had a new phone. There was no allegation that he had in fact used the Internet for illicit purposes.

In 2012, prior to the defendant’s release, orders were obtained from this Court, appointing Drs Allnutt and Roberts to examine the defendant and report to Court. Both experts considered him to pose a high risk of sex offending. Dr Robert’s expressed his opinion in the following summary:

Dr Roberts opined that an ESO of the maximum duration was called for. He noted that the defendant had not availed himself of any therapy and was “insightless”. Dr Roberts also observed of the defendant that:

The plaintiff’s first application for an ESO against the defendant was made in 2013 and was granted by Button J who made an ESO against him which commenced on 7 March 2013 for a term of three years: Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170. In those proceedings the defendant did not oppose the making of an ESO for that duration; the plaintiff contended that it should be for the maximum duration of five years. His Honour was satisfied that the defendant had a “chronic tendency to commit sexual offences against female children that has existed for well over 50 years” ([68]). His Honour also said, at [72]:

Of present relevance the first ESO contained the following conditions:

Condition 22 provided that the defendant was not to approach or have contact with a child under the age of 16 years, or attend certain nominated locations such as schools, playgrounds and day-care centres, unless he has prior written permission of the Department and is in the presence of an “appropriate adult”, being a person previously approved in writing by the Department for the purposes of the condition.

From at least 21 April 2013, the defendant began to complain about the anklet he was required to wear as a condition of the ESO (to provide continuous monitoring of his whereabouts). He said that it was not working for various reasons. The case notes (sometimes referred to as OIMS – Offender Integrated Management System – notes) prepared by Community Corrections officers (and produced to the plaintiff pursuant to an order under s 25(1)) are redolent with issues concerning the anklet, its charging and its operation. Such complaints have been a consistent theme and have been characterised as “diversionary tactics”, in that they are raised to thwart attempts by therapists to engage in a deeper discussion about the reasons for his offending behaviour and his proclivities. The complaints continue, as the most recent OIMS notes record.

On 23 April 2013 the defendant attended his first appointment at Forensic Psychology Services (FPS), as required by a condition of his ESO. His psychologist was Craig Baird. From the outset, the defendant persistently maintained that he had been falsely accused and wrongly convicted. From that time onwards he gave elaborate explanations as to how and why he had been wronged.

On 20 May 2013, in the Waverley Local Court, the defendant was acquitted of the charge of failing to comply with reporting conditions (arising from the charge in November 2012 referred to above).

In a counselling session on 24 May 2013, the defendant raised that he suffered from Post-Traumatic Stress Disorder (PTSD) as a result of assistance he provided for the Granville train disaster as a reason for his aversion to attending appointments in the city or travelling by train in any circumstances. At several consultations it became the main topic of discussion. On 22 July 2013 Mr Baird recorded that, although the defendant asserted that he had been diagnosed with PTSD, an earlier report had noted that there was no official documentation to that effect. It was decided that he ought be referred to another psychologist with a view to determining the existence (or otherwise) of PTSD and appropriate treatment.

In August 2013 the defendant moved out of the COSP facility to a private address in Rossmore. On 20 August 2013 the Community Corrections officers conducted an unscheduled home visit at the defendant’s new residence. There was discussion about the defendant’s inadequate response to therapy. The following was also noted:

When Community Corrections officers visited the defendant at home they noticed that, in relatively close proximity to the granny flat where the defendant lived, there was a pool which was used by children (a fact which he did not disclose to the officers). Indeed, the pool was about 20ms from the vegetable patch which the defendant looked after. This led to the placement of an electronic monitoring boundary and a written direction (given on 13 October 2013) that he not associate with the neighbours.

On 13 October 2013 the defendant was interviewed at his home by a Community Corrections officer. The note about the portion of the interview which related to the defendant’s offending history read:

In October 2013 the defendant’s landlord, Tony (not his real name), approached him to renovate a nearby property in return for reduced rent. The two became friends.

On 9 December 2013 Mr Baird noted that the defendant continued to be “fundamentally opposed to openly engage in treatment”. At the conclusion of the consultation, Mr Baird told the defendant that he would not continue working with him if he did not focus on the treatment.

On 16 December 2013 the Community Corrections officers visited the defendant and met Tony. After Tony left, the defendant confirmed that he had not told him that he was subject to an ESO. The defendant told Community Corrections officers that he could not recall if Tony had any grandchildren. However, the officers later learned (in about February 2014) that Tony not only had three grandchildren but they lived with their father next door to the defendant’s residence. On 16 December 2013 the defendant told the officers that he would “go to the grave” claiming his innocence. He blamed the “poor legal aid team and two bad barristers for the fact that he was found guilty”.

On 10 January 2014 Mr Baird noted, in the clinical notes of his consultations with the defendant:

By February 2014, the friendship between the defendant and his landlord had developed to the point where Tony, who was unaware of either the defendant’s history or the ESO, invited the defendant to his home. On at least some of those occasions, Tony’s grandchildren were present. The Community Corrective officers told the defendant that he must either disclose his history and ESO to Tony, or move house. Eventually, on 7 February 2014, the defendant was given a written direction to disclose to Tony that he was subject to an ESO. On 9 February 2014 the defendant informed Tony of this matter. The Community Corrections officer spoke with Tony directly to make sure that he understood the potential risks to his grandchildren. When the officer spoke with Tony on 13 February 2014, he told them that he did not have the “heart to evict [the defendant]”, in part because Tony was grateful for the renovations the defendant had performed on his properties, including the one to which the defendant was about to move.

On 24 February 2014 Mr Baird noted that:

I accept that the note should not be read as indicating that the defendant actually confessed responsibility for his sexual convictions; he has never done so (except to the limited extent indicated by his pleas of guilty) and continues to maintain his innocence.

In late February 2014 the defendant began seeing Raymond Hudd, psychologist, in lieu of Mr Baird, for the purposes of obtaining treatment for PTSD. At about this time the defendant moved to the property in Austral which he had been renovating for Tony. The defendant constructed an aviary on the property in which he housed several birds, including chickens.

As is revealed by the clinical notes, the sessions with Mr Hudd were not productive. Indeed, in March 2014, Mr Hudd told Community Corrections that the defendant was the “most difficult sex offender he has been required to deal with”.

In April 2014 a Community Corrections officer made an unscheduled visit to the defendant’s home. In the course of the discussion about treatment, the defendant’s attitude to his offending was raised. The officer made the following note:

In early September 2014 a Community Corrections Officer suggested that the defendant might socialise at a club, either the local bingo club or a bird breeders club. He mentioned that he used to sing for the elderly in their retirement homes and he would consider this.

On 7 October 2014, following discussions between Corrective Services and FPS, approval was given for the defendant to join a local bowling club. According to Kay (not her real name), she and the defendant met in October 2014 at Karaoke in Wallacia. Kay looked after four of her grandchildren on a regular and extended basis, including two girls under ten years of age. Three of the grandchildren whom Kay looked after were the children of her son Bill (not his real name), who worked full-time and needed his mother’s assistance to look after his children, including before and after school, as his own marriage had ended.

On 13 October 2014, Mr Hudd contacted Mr Baird to inform him that the sessions with the defendant had ended and that he did not consider there to be any benefit in any future sessions. The note recorded:

The defendant and Kay soon became good friends and a relationship between them developed around Christmas 2014. Notwithstanding the terms of condition 19 of the first ESO, the defendant did not disclose this relationship to Community Corrections.

On 2 January 2015 the defendant made an unscheduled deviation to Kay’s residence, which then became the subject of an exclusion zone.

On 23 and 30 January 2015 the defendant deviated from his scheduled movements by visiting Kay’s home.

On 1 February 2015 the defendant was seen affectionately kissing a woman, who was later identified as Kay. She waited in the defendant’s car while he went to Aldi. He subsequently drove her to her home (a movement which was not included in his schedule of movements) and then returned to his own residence. The Community Corrections officers followed him home and noted women’s shoes under the bed in the spare room and a pink dressing gown.

On 2 February 2015 a Community Corrections officer visited the defendant at home. The officer noticed cigarette butts in an ashtray, which aroused his suspicions as he knew that the defendant did not smoke. He asked the defendant about a deviation to his scheduled movements on the previous day. He said that he had visited a friend whom he had met at karaoke and that she was a “friend”. He gave her first name but refused to provide her last name. He admitted that she had come to his home but said that she had come with a number of friends from karaoke. The defendant was reminded of the terms of condition [19] of the ESO, to which he responded that he and this woman were “just friends”.

On 2 February 2015 the defendant was given a written warning about the deviations from his scheduled movements on 23 January, 30 January and 1 February 2015. It was noted that he was detected at Kay’s address.

In February and March 2015 the defendant and Kay were sighted together regularly. For example, he was seen with her in the centre of the Trash and Treasure Markets at Camden Valley Way. Kay was seated in a wheelchair with her foot bandaged and the defendant was pushing her around. Although the defendant was regularly questioned by Community Corrections officers about this relationship he maintained that they were just friends with common interests. The defendant did not, at that stage, mention Kay’s grandchildren.

On 8 March 2015 the defendant was asked why he had left his property earlier that day without notifying the electronic monitoring unit. He said that he had had friends to stay for the weekend and they had gone to the markets that morning and he had to take them home. He told Community Corrections that he knew that it was the wrong thing to do but he “felt he had no choice as the friend does not know that he is monitored”. On 9 March 2015 he was issued with a final written warning regarding the deviation from his schedule.

On 13 March 2015 Community Corrections officers visited the defendant at home. Kay was sitting on the front porch, smoking. The defendant told the officers, who observed a walking frame, that Kay had Parkinson’s and diabetes. The defendant continued to deny the relationship. He informed the officers that, although he had not yet told Kay about the ESO, he would do so.

On 21 March 2015 Community Corrections officers spoke to the defendant who was again seen with Kay. The defendant told the officers that Kay did not even know that he had been in custody. He also reported that she had many problems and that he really only saw her on the weekend as she minded her grandchildren during the week. He denied that he had visited her place. The notes recorded:

On 24 March 2015 the defendant told the Community Corrections officers that he had told Kay that he was on an ESO and that “she understands about his circumstances”. On 29 March 2015 the Community Corrections officers spoke with Kay. The notes record that “she did not have any issue and would continue to support the offender” and “she is aware offender is not to have any contact with children unless supervised”. She asked them whether the defendant could come to her place as she “has some health issues and may require the assistance of the offender”.

In April 2015 it was mooted that the defendant be permitted to attend Kay’s residence; however, this proposal was not approved by the Community Corrections manager on the basis that Kay’s son, Bill, was unaware of the defendant’s circumstances (prior convictions and ESO) and there was a possibility that Bill’s children (Kay’s grandchildren) would be there. However, approval was given for him to spend the weekend at her place. The defendant was given a written direction dated 8 April 2015 that he was not to approach or have contact with a child under the age of 16 years, or attend certain nominated locations such as playgrounds, day-care centres, unless he had prior written permission of the Department and was in the presence of an “appropriate adult” being a person previously approved in writing by the Department for the purposes of the condition.

On 26 April 2015 Community Corrections officers encountered the defendant in Casula Mall. He was pushing Kay in a wheelchair. Kay explained that she needed to be pushed in a wheelchair because her left leg was in constant pain.

On 5 May 2015 Kay spoke to Community Corrections officers and expressed a wish that the defendant be permitted to attend her home on her birthday and mother’s day. Both visits were approved. The notes record:

In May 2015 the requirement that the defendant submit schedules of his movements to the Community Corrections was lifted (and remained lifted until it was reinstated in May 2016 as a result of breach of a formal written direction: see further below). On 24 May 2015 Community Corrections officers made an unscheduled visit to the defendant’s home. They found him in Kay’s company and were told that she had just been diagnosed with cancer. The couple informed the officers that they intended to marry in a few months. On 26 May 2015 the defendant was given a written direction in similar terms to the earlier one that he not associate with children except with prior Departmental consent and in the presence of an “appropriate adult”. He was also directed that he was permitted only to attend Kay’s residence in order to pick her up and drop her off as required but that he was not to stay there.

On 1 June 2015 the defendant confirmed that he had not yet told Kay’s son about the ESO.

On 7 June 2015 Kay told Community Corrections officers that she was having difficulty performing household chores as Bill had been away and the defendant was helping her with these. When Community Corrections officers visited the defendant at home on 21 June 2015, Kay told them that they had set a wedding date of 2 October 2015 and that they were “just looking for the right time” to tell her son of the defendant’s antecedents and his ESO. On 5 July 2015 Community Corrections officers encountered the defendant and Kay at Casula Mall. She told them that her granddaughter was doing a “child protection awareness course” at school and Kay “spoke of the benefits of this”.

On 15 July 2015 the defendant told Community Corrections officers that they were no closer to telling Kay’s son, Bill, due to his “personal issues”. A summary Community Corrections note dated 25 July 2015 recorded:

An ESO Completion report dated 24 July 2015 was prepared by Kevin Makar, a Senior Community Corrections Officer. He recommended that a further ESO be sought. He concluded:

The case note for 26 July 2015 recorded in part:

Mr Van Ryn became the defendant’s DSO at the end of July 2015. His case note for 30 July 2015 recorded that the defendant needed to travel to the Family Court in Armidale in August 2015 for the purposes of a property settlement with his ex-wife (his third wife) and that he also proposed to travel to Scone. The defendant returned home on 6 August 2015. His DSO was informed that he was to be married on 3 October 2015.

On 30 August 2015 the defendant was informed that the plaintiff was intending to apply for a further ESO when his current ESO expires. He was told that the reasons for the application included: his continued denial of the offence; his refusal to engage in counselling; and the concern about his relationship with a woman who had young grandchildren in her care and whose son (Bill, the children’s father) was unaware of either the defendant’s offences or the ESO.

On 3 October 2015 the defendant and Kay married.

On 6 October 2015 a risk assessment report on the defendant was prepared by Mr Ardasinski and Ms Matsuo, forensic psychologists. They identified the following risk factors: sexual deviance; denial and resultant problems with self-awareness and insight; refusal to participate in treatment; social isolation; and being in a relationship which may give the defendant access to female children. They concluded:

As referred to above, the case notes prepared by Community Corrections officers contain many references to the defendant’s complaints about the anklet and, in particular, the need to charge it and difficulties with charging. A note dated 14 October 2015 recorded:

A further risk management report dated 20 October 2015 was prepared by Mr Van Ryn, who noted that, as at the date of the report, Kay did not believe that the defendant was guilty of any offences and shared his view that he was wrongly accused. He described their living arrangements: they live separately during the week, while she has care of the grandchildren (before and after school) but live together on the weekend. At that stage they had not disclosed either his history or the ESO to her family. He noted:

When addressing the risk of future offending, Mr Van Ryn noted that:

On 24 October 2015 Mr Van Ryn conducted an unscheduled home visit to the defendant. Kay was also there. Mr Van Ryn raised with the defendant that the electronic monitoring revealed that he had spent more than an hour at Kay’s residence on several occasions notwithstanding that permission extended only to dropping her off and collecting her. The defendant said that such quick intervals would tend to raise the suspicions of Kay’s son, who lived at the house. Mr Van Ryn noted:

On 26 October 2015 Community Corrections received a call from the Department of Community Services (DOCS) in which DOCS expressed its concern about the defendant’s attending Kay’s residence at all and wanted him to be directed not to attend. Community Corrections directed the defendant not to attend Kay’s residence. The case note recorded that the defendant became very upset and accused the officer of denying him his right to see his wife. He was told that he was not permitted to see her at home or when she was around her grandchildren and that the reason for this was that he and his wife refused to inform the parents of the children of his offending history. The defendant became angry and ended the phone call.

On 29 October 2015 Community Corrections decided to allow the defendant to attend Kay’s house for a few minutes to pick her up and drop her off. It was noted that the defendant had signed up with the Mt Pritchard Community Club and that there was a children’s gym and a swimming pool on the premises.

On 5 November 2015 the defendant told Community Corrections that he intended to tell Kay’s son about his offending history and the ESO that day but he wanted permission to have the discussion at her house. Permission was refused. Before the disclosure to Bill occurred, Department of Family and Community Services (FACS) (the successor to DOCS) independently contacted Bill and told him that the defendant was a person of interest to them because of his long history of harming young children. Bill told FACS that he was unaware of the history and that now that he knew he would not allow the defendant to have any contact with his children. Bill also said that he would ask his mother (Kay) about her knowledge of her new husband’s (the defendant’s) offences.

Bill told his former partner (the mother of the children) about the defendant’s offending. She then told Bill’s brother, who went straight to Kay’s house and told her to divorce the defendant straight away or he would have nothing more to do with her. Kay chose to continue her relationship with the defendant; as a consequence, she became estranged from one of her sons (Bill’s brother).

A Community Corrections case note dated 22 November 2015 said:

A Community Corrections case note dated 25 November 2015 recorded that the defendant blamed Community Corrections for the delayed disclosure to Bill because they would not permit it to occur at Kay’s house. When the defendant was reminded that the need for such a disclosure had been raised five months previously, he blamed Kay and said that she wanted to defer disclosure because her son was already under too much stress from work.

The defendant sought approval to attend Kay’s house on Christmas Day. Bill confirmed that he would ensure that his children were not left in the defendant’s company at any time during the day. The defendant was granted permission to attend from 10am to 2pm and was directed not to have any physical contact with the children.

The defendant and Kay wanted to travel to western New South Wales in early 2016 and stay in caravan parks along the route. Permission for him to go was refused on the grounds that Kay had not been approved as a “responsible adult supervisor” for the purpose of supervision around children.

On 17 February 2016 Mr Van Ryn interviewed Kay at her home for the purposes of risk assessment. She was asked to describe her health problems, which she confirmed did not presently require hospital admission. She said that she did not take naps during the day. When asked what her attitude was to the defendant’s offending behaviour she said (according to the OIMS note):

Kay also informed Mr Van Ryn that Bill will be moving with his fiancée to Newcastle in December 2016 and that she intended to move in with the defendant when that happened. She said that the defendant wanted to move to Gilgandra but that she wanted to stay in the local area near her doctors and the hospital.

Mr Van Ryn also interviewed Bill on the same occasion as he was home at the time. When asked about the defendant’s criminal history Bill said:

On 25 February 2016 Mr Van Ryn conducted a home visit. He asked the defendant similar questions to those he had asked Kay on 17 February 2015. When asked to describe Kay’s health problems he said that she had diabetes, bad knees and curvature of the spine which causes breathing problems. He said she has a nebuliser and most days needs to sit down and rest.

On 3 March 2016 the case notes record that Kay was assessed as a “responsible adult supervisor” if the defendant comes into contact with children. Ms Gilmour (the Community Corrections staff member) noted that both Kay and Bill have stipulated that the defendant is not allowed at Kay’s home when the children are present unless Bill is also there. The effect of this was to remove Kay’s house as an “exclusion zone”.

On 6 March 2016 a Community Corrections meeting took place, at which Mr Van Ryn was present. The conditions of the ISO were discussed, including whether electronic monitoring was still required. It was decided that the curfew (that the defendant be at his home between 9pm and 6.30am) would be removed but that electronic monitoring would continue so that the defendant’s attendance at the home where Kay, Bill and his children reside could be monitored. The defendant was also permitted to be at Kay’s house from 9.30am until 2.30pm when Bill’s two younger children were at school.

The case notes record that on 18 March 2016 Mr Van Ryn spoke with Bill who said that he did not mind the defendant being at his home as long as the children were not present. Bill said that he usually arrived home between 3.30 and 4pm on Fridays and would remain at home on Monday mornings until the defendant returned Kay to her home.

On 20 March 2016 Mr Van Ryn observed the defendant and Kay at Casula Mall. She was in a wheelchair. Mr Van Ryn visited the defendant and Kay at his home on 25 March 2016 (Good Friday). The defendant told him that he would be attending Kay’s home at about lunch time on Sunday to give Kay’s grandchildren their Easter eggs. Mr Van Ryn noted that enquiries were to be made with Bill about this activity.

On 27 March 2016 (Easter Day), Ms Roberts, a Community Corrections staff member recorded that she rang the defendant when he was detected at Kay’s home (where he was not permitted to be on the weekend). The defendant informed her that it had been organised with Mr Van Ryn previously and that, in any event, neither Bill nor his children were present at the time of the visit. Mr Van Ryn’s evidence, which I accept, was that the defendant had told him that he wanted to go to Kay’s home on the Easter Sunday but had not nominated the time of such a visit before Mr Van Ryn went on leave for Easter. Mr Van Ryn told the defendant that he would have to provide advance notice of his proposed visit to the Community Corrections office or to the electronic monitoring room. There is no record in the case notes of the defendant’s having notified Community Corrections or the electronic monitoring room of his proposed visit (which is why Ms Roberts rang him when his presence was detected at Kay’s home).

On 7 April 2016, Mr Ardasinski prepared a further risk assessment report (supplementary to the report dated 6 October 2015 referred to above) with respect to the defendant. The content of the report was supported by Ms Cieplucha, Acting Chief Psychologist in the Serious Offenders Assessment Unit. Mr Ardasinski specifically addressed the fact that both Kay and Bill had been assessed as “responsible adult supervisors” for the defendant and considered whether this matter would materially affect the risk he had previously been assessed as posing.

Mr Ardasinski was also asked to provide his opinion regarding the risks posed by the defendant to persons other than Kay’s grandchildren. His view was that Kay’s grandchildren may well be protected by her knowledge and that of their father, Bill (subject to the rider expressed in the quotation set out below) but that it was not known whether other children would be subject to the same protection. Moreover Mr Ardasinski pointed to the circumstance that the defendant’s relationship with Kay may not endure in any event. If it were to end, this would leave open the potential for the defendant to “commence a new relationship with similar characteristics to his current marriage”, which I take to mean that he might form another relationship with a woman who has caring responsibilities for young girls of a similar age to those to whom the defendant has, in the past, been sexually attracted (pre-pubescent).

Mr Ardasinski also made the point (as to supervision by Kay and Bill):

On 13 April 2016 Mr Van Ryn interviewed Mrs Steadman, the defendant’s third (now ex-) wife. Ms Mathur objected to the tender of this case note. I allowed it to be tendered by reason of s 25(3) of the Act, which makes it admissible. I do not, however, subject to a single exception referred to below, regard it as being of sufficient weight to take it into account in deciding any of the issues in the present case. The chronology and Mrs Steadman’s change in attitude towards the defendant and his guilt of prior offending is, in any event, set out above and is derived from other evidence to which the defendant has taken no objection. The single exception referred to above is that Mrs Steadman confirmed in the interview that she was in good health at the time of the offences. Mr Denman said that, because the plaintiff is a model litigant, it was important that this fact be noted, since it goes (in the defendant’s favour) against the proposition that he selects vulnerable woman (with grandchildren or young children) with some physical impairment, since Mrs Steadman’s health was not compromised at the time of the offending.

The case notes record that the defendant proposed to take a trip to country areas, including Wellington, Gilgandra and Coonamble for a period from 19 April 2016 to 26 April 2016. The case notes record the concern of Community Corrections about children who might be in caravan parks on the route where the defendant and Kay might choose to stay the night.

On 14 April 2016 the defendant and Kay attended the Community Corrections office. During the course of their attendance Kay expressed her reluctance to go on a trip because of her poor health and her need to attend medical appointments. She informed Community Corrections that her health had deteriorated and that she was unable to stand for long periods of time. An officer noted that she had difficulty moving from her wheelchair to an office chair.

Following this discussion, the defendant was issued with formal written directions, which included a direction that he was permitted to attend Kay’s home between 9.30am and 2.30pm on school days when none of three (identified) children were present. If any of the three returned to Kay’s home, the defendant was to leave immediately. He was also permitted to attend her home to drop her off on Monday mornings between 6 and 6.30am and allowed to collect her on Friday afternoons between 3.30 and 4pm. On all other occasions the defendant was not entitled to be at Kay’s home except with prior approval of his DSO. Mr Van Ryn explained that the purpose of these times on Friday afternoon was to ensure that Bill had arrived home from work by the time the defendant came to collect Kay from her home (to take her to his home for the weekend) so that the defendant would not be at Kay’s home on Friday afternoons when the children were present if their father was absent.

There was further discussion within Community Corrections following this interview, as a result of which the defendant’s request to travel to the country was declined. According to the case note, this decision was principally made on the basis that Kay’s mobility was such as to diminish her physical capacity to fulfil the demands of a responsible adult supervisor with the responsibility of supervising the defendant.

The defendant was advised of the decision to decline his request for a country trip unless Kay obtained a certificate from her own doctor saying that she is physically capable of supervising his contact with children. Kay was told that it would be necessary for her doctor to be told of the defendant’s offences so that she could make an informed decision whether to give such a certificate. The defendant responded to the news in an aggressive manner and demanded a written statement with reasons for his trip not being approved. As a result of his conduct he was required to report to the Blacktown office of Community Corrections on 22 April 2016 for his weekly interview (which would otherwise have taken place at his home).

On 21 April 2016 Community Corrections visited the defendant’s house and found him at home. He was reminded that he was not to be at Kay’s house without approval during the school holidays. The defendant reported that Kay’s health has not actually changed in the past 20 years and that the only problem was that she had bad knees.

On 22 April 2016 the defendant was given a copy of the review conducted on his electronic monitoring (which decided that it be continued). He told Community Corrections that he would not be dropping Kay off at her house on Monday as it was ANZAC day and the children were not going back to school until Wednesday (27 April 2016).

On Friday 29 April 2016 the defendant’s presence was detected (by the electronic monitoring room) at Kay’s house between 3.56pm and 4.28pm, although he was not permitted to be there beyond 2.30pm and was only permitted to collect her for the weekend between 3.30pm and 4pm. The following day Community Corrections spoke to Bill who confirmed that he was present at the time the defendant was there beyond 4pm the previous day. I decline to draw the inference for which Ms Mathur contended that the delay was “entirely inadvertent” as there is no evidence to support her submission.

On 30 April 2016 his DSO gave the defendant a verbal warning regarding the previous day’s breach of the written direction given on 14 April 2016. On 2 May 2016, as a result of the breach, it was determined that the condition of the ISO relating to provision of schedules of movements would be reinstated. A written direction to that effect was delivered to the defendant at home on 3 May 2016. The case note recorded in part:

The defendant meets the definition of “sex offender” in s 4 of the Act, having been sentenced for a “serious sex offence” (aggravated indecent assault on a child under the age of 10). The sentence imposed was five years and five months with a total non-parole period of four years and two months.

In these circumstances he is a “high risk sex offender” if I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2).

I shall address each of the matters in s 9(3) in turn, in so far as each is relevant. However, I propose to address safety of the community (s 9(3)(a)) in a compendious way at the end since many of the other factors are relevant to this matter.

In his report Dr Jones set out in detail the history he had taken from the defendant in the course of the examination which lasted for about three and a half hours. He included the defendant’s continued protestations of innocence which led Dr Jones to conclude that he lacked insight into his offending behaviour. Dr Jones considered that the defendant probably had a paraphilic disorder (paedophilic sub-type). He opined that the defendant’s preoccupation, attraction and sexual predilection for young girls is probably lifelong given his “extended history of sexual offending”. Dr Jones agreed with other assessments that the risk of his committing another serious offence (as his sexual offences are likely to be, having regard for his predilection for pre-pubescent girls) is moderate to high. Dr Jones noted the defendant’s refusal to consent to anti-libidinal medication (which has the effect that it cannot be prescribed). Dr Jones considered that a high level of supervision (such as would be provided by an ESO) is required to manage his risk of re-offending.

Dr Jones considered the level of risk which the defendant continues to pose to be “likely to remain persistently high” and unlikely to diminish in the foreseeable future.

Dr Ellis took a history from the defendant that he did not wish to be subject to an ESO; he would not engage in treatment; he would not consider (anti-libidinal) medication; and would prefer to live an itinerant rural lifestyle and return to organising music performances. Dr Ellis considered the defendant to exhibit “extreme psychological denial for his offences”. He considered the defendant to meet the diagnostic criteria for paedophilic disorder, attracted to females, which is a chronic relapsing condition. Dr Ellis also diagnosed a personality disorder.

Dr Ellis said:

I note that, at the time Dr Ellis was asked to give his opinion as to the length of term of any further ESO, the summons sought (for reasons not apparent) an ESO for a period of three years. As Dr Ellis was not required for cross-examination, I have not heard his response to the amended summons which seeks an ESO for the maximum term of five years. Although Dr Ellis referred to three years and suggested that this was an appropriate term during which the risk could be monitored, I do not regard this assessment (the length of an ESO) as a matter for psychiatric opinion, or, indeed, one which is necessarily consistent with Dr Ellis’s views about the intransigence of the condition and the risk posed by the defendant.

As referred to above, the defendant was assessed by reference to Static-99 in 2009, at which time he was assessed as being moderate to high risk. I note that he was able to answer affirmatively the question whether he had ever lived with a lover for at least two years. While in other cases an affirmative answer to that question may properly be regarded as reducing the risk, in the present case I do not regard it as having that effect because of the defendant’s pattern of offending (which is addressed in more detail below in the context of s 9(3)(h)).

In June 2012 Mr Sheehan considered the defendant to fall within the moderate to high risk category and did not regard his increasing age as mitigating the risk in any material way. Dr Allnutt in 2012 considered him to be at high risk for serious sexual recidivism. The report of Mr Ardasinski and Ms Matsuo dated 6 October 2015, sets out their opinion that the defendant’s present situation is “high risk” and that although the risk of re-offending is “moderate”, his lack of treatment during the ESO and the similarity between his current personal situation and the previous context in which his offending occurred presented a high risk.

In his most recent report (dated 7 April 2016) Mr Ardasinski confirmed his view that the defendant still posed a moderate-high sexual violence risk generally and that there was an increased risk within Kay’s family unit. He said that his earlier risk assessment has not been affected by any recent change in circumstances and was based on both static and dynamic risk factors. He reiterated the view he had earlier expressed that the defendant had no real capacity to manage his own risk and was reliant on external risk management.

The defendant was regarded as generally compliant with reporting for parole in the period from his release to parole on 17 November 1996 (according to a pre-sentence report prepared in 2011), although he refused to engage in any “interventions” in the community and maintained his innocence.

The report of Mr Makar dated 24 July 2015 referred to above deserves substantial weight; it records Mr Makar’s assessment that a further ESO should be sought because of the continuing risk posed by the defendant. I note that the report pre-dated the defendant’s marriage to Kay, at a time when his non-disclosure to Community Corrections officers of the relationship was more recent.

As to the defendant’s level of compliance with the ESO, the lengthy recitation of the narrative largely derived from the OIMS notes (set out above) provides a picture of the defendant as a man who resents any management or intervention by Community Corrections. He showed himself on occasions to be prepared to mislead the officers who were responsible for his monitoring. For example, he appears to have deliberately downplayed his relationship with Kay until such a time as he had engendered such hope for the future and affection in her (as well as a degree of physical dependency, having regard to her difficulties with mobility) that she married him. Moreover, the defendant prevaricated for many months about telling Bill, who eventually learned the truth only when FACS told him.

Although the defendant has been subject to electronic monitoring, he has (throughout the entire period) frequently complained about the device, allowed it to exhaust the charge and not answered his mobile phone when officers have called.

Mr Van Ryn’s reports (the content of which is outlined above) referred to these matters as well as the Community Corrections’ concerns about his living arrangements; his continual denial of the offending conduct; and the need to manage the risk. The defendant has been compliant to an extent with the ESO and has not been “breached”. However, he has sought to test the boundaries of several conditions, particularly those that relate directly to the risk (failure to inform Community Corrections of his relationship with Kay; deferring telling Kay or Bill of the ESO or his offending conduct; and visiting Kay’s house and staying for longer than permitted).

I have set out in some detail in the narrative above the events that have occurred in recent months. Ms Mathur, who appeared on behalf of the defendant, submitted in substance that any breaches were of little moment. She insinuated that they reflected a pedantry on the part of the defendant’s DSO. I am satisfied that, to some extent, the defendant, who was resentful of the application for a further ESO and wants to be rid of electronic monitoring and would like to be able to travel to the country, has sought to test the limits of the Community Corrections’ resolve to control him by being present at Kay’s residence on 29 April 2016 largely outside the time permitted. This incident (which was otherwise unexplained since neither he nor Kay gave evidence) is an example of his resistance to authority and his preparedness to breach conditions of an ISO or ESO to test the boundaries. In these circumstances, it is not particularly to the point that, as it happened, no child appears to have been at risk, since Bill was present at the relevant time.

The defendant attended FPS consultations with Mr Baird and also attended Mr Hudd to obtain treatment for PTSD. His participation was colourable in both. He appears to have no insight into the effect of his criminal conduct on others and refuses to acknowledge either his guilt or his responsibility. There was no active engagement with the therapy. I accept the clinicians’ reports that he engaged in diversionary tactics on a regular basis. His preparedness to blame others (his legal team, his family, etc.) does not augur well for any prospect of rehabilitation.

Ms Mathur accepted that the defendant could not be rehabilitated. Indeed she put as a positive proposition (to Mr Ardasinski, in cross-examination) that the defendant has a personality disorder which acts as a barrier to engagement in therapy. The personality disorder manifests itself in an anti-authoritarian stance, as well as aggressive and obstreperous behaviour.

The only matter relied on by the plaintiff as relevant to this factor was the defendant’s alleged failure to comply with reporting conditions relating to a new phone with Internet capacity in 2012. He was acquitted of the charge. There is, accordingly, nothing to suggest that he has not complied with his obligations under this legislation.

The defendant’s criminal history as set out more fully in the narrative above spans several decades. Age does not appear to have diminished his sexual urge. He remains lacking in insight.

The defendant’s past offending has involved his obtaining access to young girls through (age-appropriate) women with whom he has been in apparently intimate relationships. Such women have been either the mother (in the case of the earlier offending in 1993) or the grandmother (in the case of the index offences in 2007) of the victims.

The children under the care of their mother or grandmother (as the case may be) appear to have been lulled into a false sense of security by their mother’s, or grandmother’s, relationship with the defendant. With respect to the 1993 offences, the reason V3 was in the same bed as the defendant was that her friend, AV1, had been comfortable to watch television there as her mother (the defendant’s then partner) was also in the bed. In relation to the offences in 2007, the defendant was apparently able to engage in conduct (not all of which was charged) with several young girls in the context of a family environment where the defendant was called “Poppy” by his then wife’s grandchildren.

Although no judgment can be made whether the defendant entered into the relationships with the mother, or grandmother, of his victims with a view to obtaining access to young girls to whom he was sexually attracted, this has been the effect of such past relationships. He has recently married Kay, a woman who has caring responsibilities for her grandchildren, and who, though the grandmother, effectively stands in the position of mother. But for the ESO and the constant surveillance and enforcement of its conditions by the Community Corrections officers, the defendant’s relationship with Kay would have given him unfettered access to young girls: those in her care and any of their friends who might visit them.

It is also noteworthy that the defendant has demonstrated a substantial capacity to affect the judgment of the women with whom he is intimate. His third wife preferred to lose contact with her daughter and grandchildren and align herself with the defendant, notwithstanding his plea of guilty to serious sexual offences involving them. It was only when TC, her own daughter, told her of the sexual assaults which the defendant had perpetrated against her, that the defendant’s third wife was prepared to acknowledge that his claims of innocence were false.

Kay, his fourth wife, was induced to believe that the defendant was innocent of all of the offences with which he had been convicted (and to some of which he had pleaded guilty). For a significant period she preferred to keep her own son, Bill, in the dark about the defendant’s criminal history, than disclose it and jeopardise her own relationships both with Bill and with the defendant. Kay has lost contact with her second son (Bill’s brother) as a consequence of her continued association with the defendant, on whom she depends for physical assistance and support. In the course of Mr Van Ryn’s interview on 17 February 2016 (less than a fortnight before the preliminary hearing) Kay indicated that she accepted that he was guilty of the offences for which he has been convicted. However, she has earlier said that she believes in “second chances”, which provides little assurance that she would be willing to control the defendant, even if she were physically able to do so.

Ms Mathur relied on the 33-year gap between the second offence in 1960 and the third offence in 1993, followed by a 14 year gap until the commission of the index offences in 2007. I am not persuaded that these gaps between offences have the effect of diminishing the risk. There is no evidence that suggests that the defendant is presently within a period where he would not offend but for the imposition of an ESO

The concerns of Williams DCJ are set out above. They relate principally to the defendant’s lack of insight, pattern of offending and ability to groom his partner to take his side in the face of what might be regarded as overwhelming evidence (including his plea of guilty).

I have referred to the transcripts of interviews with children who spoke of the defendant’s conduct at about the time of the index offences. I have taken these matters into account with respect to the pattern of offending conduct referred to above, with allowance for their weight (since they were not the subject of charges and were not tested at trial).

Ms Mathur submitted that no assumption ought be made that the marriage between the defendant and Kay would endure and that therefore such protection as was afforded by her presence would not necessarily continue. She put a submission in the following terms:

However, she submitted that there were other protective mechanisms available under the Child Protection legislation (the 2000 Act and the 2004 Act), pursuant to which the defendant was registered. She submitted that, for these reasons, although there was a risk, I ought not be satisfied that it was an unacceptable risk. Ms Mathur referred to the following passage from the Second Reading Speech for the Bill that became the 2004 Act:

Ms Mathur referred to the provisions in the 2004 Act which enable the Commissioner of Police to apply to the Local Court for a prohibition order prohibiting the defendant from engaging in specified behaviour within the meaning of s 8(1)(c) of the 2004 Act.

Ms Mathur submitted that, because the Minister described the Bill as intended to be a means of “managing offenders of the highest risk to children”, I should infer that an ESO is not required if a prohibition order can be made under the 2004 Act. When I raised the mechanism of enforcing such orders (through the New South Wales Police Force), Ms Mathur submitted that I “would comfortably infer from that [the 2004 Act and s 8 in particular] that there is a practical means by which that management can be facilitated”. I reject that submission.

Further, Ms Mathur submitted in the following terms: that because the defendant could not be rehabilitated, a prohibition order under s 8 was more appropriate than an ESO:

As referred to above, the primary purpose of the Act is the protection of the public: s 3(1). Another object is rehabilitation: s 3(2). I do not regard the defendant’s incapacity to be rehabilitated (as accepted by Ms Mathur) as a reason for declining to make an ESO. Rather, I consider that the fact that he cannot be rehabilitated is a factor that tends towards the conclusion that he poses an unacceptable risk because he is unable to manage the risk himself.

The safety of the community in the present case is, in substance, the safety of pre-pubescent girls to whom the defendant is sexually attracted, and in particular those who are within a family circle to which the defendant belongs. The defendant has no insight into the danger he poses and is unwilling to restrain himself from indulging his sexual urges. The safety of the community would appear to be jeopardised except to the extent to which he can be controlled by external forces. Absent an ESO, there are no readily identifiable external forces that would apply, or be effective, to restrain the defendant. The Child Protection legislation does not include surveillance or electronic monitoring of the sort available under an ESO. Moreover any application for a prohibition order under the 2004 Act is made by the Commissioner of Police, not the plaintiff. Accordingly I cannot be satisfied that any such application would be made if no ESO were ordered.

It is difficult to see how a prohibition order (even if one were applied for) would materially reduce the risk since its enforcement would depend on the resources available to the New South Wales Police Force, which, as referred to above, would not permit the use of electronic monitoring or many of the other conditions which are authorised by the Act if an ESO is granted.

The defendant has shown remarkable skill in insinuating himself into the affections of women who, by reason of their standing as mothers or grandmothers, have close relationships with (and play caring roles with respect to) young girls. Although Kay’s attitude appears (from the documentary material, particularly the case notes referred to above) to have changed somewhat, I do not consider that she would necessarily provide any real protection for girls in the defendant’s presence, having regard to her undoubted love and devotion to him, as well as her physical infirmities. Although access to Kay’s grandchildren is likely to be much diminished when Bill moves his family to Newcastle, it cannot reasonably be contemplated that Kay will not have contact with her grandchildren, particularly as she has performed the role of mother for them for some years.

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: 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 a defendant’s liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions (addressed below), it is irrelevant to the determination of whether he 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 order a further ESO pursuant to ss 5C and 9(1)(a) of the Act on the conditions considered in more detail 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 for the maximum period of five years pursuant to s 10(1A). Ms Mathur submitted that the objects of the Act could be met with a supervision order of no longer than three years with a view to determining whether he continues to pose an unacceptable risk at the conclusion of that period. I reject this submission. In the circumstances of the present case 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. I am satisfied that it is appropriate that the ESO be made for the maximum duration permitted by the Act, namely five years.

I note the terms of s 13 of the Act, which make provision for an application for variation or revocation where there is a sufficient change in circumstances. An application under s 13 could be made if the defendant became so substantially incapacitated (by age, dementia, accident or other cause) that the risk he poses was materially reduced such that it was no longer an unacceptable risk.

Since the previous ESO, the plaintiff has reviewed the conditions which are generally sought in relation to an ESO and added or modified conditions, to which the defendant takes exception.

Some of the defendant’s objections are substantive, such as the objection to electronic monitoring and scheduling, while others are more formal and can be dealt with more briefly. I propose to set out my decision on the conditions to which the defendant objects (and which are pressed by the plaintiff) in the following table and provide further reasons below where I consider this to be necessary to explain my rulings.

The way in which electronic monitoring operates is set out in Ms Rybak’s evidence, which was uncontroverted. Mr Van Ryn, the defendant’s DSO, gave evidence in support of a condition authorising electronic monitoring. He explained that such monitoring allowed Community Corrections to know “where he is and where he has been”. It also assists with covert surveillance because it allows his DSO to go directly to the location where he has been detected or to confront him with definite evidence of his location at a particular time. The requirement that he submit schedules is associated with the condition regarding electronic monitoring: both are expressed to be subject to the direction of his DSO.

Mr Ardasinki considered electronic monitoring (which imposes boundaries on his movements) to be particularly effective for an offender such as the defendant who is, relevantly, untreated and does not have internal constraints to re-offend (because he denies any wrongdoing). Ms Mathur put to Mr Ardasinki that the defendant had been electronically monitored for a period of three and a half years and, in substance, it had been sufficient. He responded, as follows:

Mr Ardasinki said that, from the point of view of rehabilitating an offender, best practice would be to wean someone off very restrictive conditions such as electronic monitoring, with a view to reaching a stage where the risk could be managed by unconditional liberty. However, he opined that, as the defendant is entirely depended on external supervision since he does not have his own internal mechanisms to stop himself from placing himself in risky situations (by being in the company of pre-pubescent children), there was no “self-management plan” that could be trusted to manage the risk.

Dr Ellis said, in his report of 2 April 2016, that there is evidence that the defendant has a capacity for “deceitful behaviour” and that electronic monitoring should be considered “within the whole framework of risk management”.

By reason of the risk posed by the defendant and his incapacity to manage his own risk (or even to admit that he poses a risk) I am persuaded that the conditions with respect to electronic monitoring and scheduling of movements are warranted.

The defendant opposed the condition that he abide by a curfew that he be at his approved address between 9pm and 6am unless his DSO has given prior approval for another arrangement. Mr Van Ryn explained in his evidence the importance of knowing that the defendant is at home between those hours in an environment which is regularly monitored. It was put to Mr Van Ryn in cross-examination that six to 11-year olds (that category to whom the defendant poses a risk) would generally be home in bed by 9pm. He responded:

But for this condition, the defendant could, for example, stay late or overnight at a friend’s place where young children might be sleeping overnight. His prior offending has been committed in the home environment in situations where he has been able to engender trust in his victims before the commission of offences. Any relationship of friendship he (or Kay) might have with adults who are grandparents is likely to engender trust in the grandchildren, thereby exposing the children to the risk of sexual assault by the defendant.

The OIMS notes disclose that the curfew requirement was removed for a period before it was reinstated recently when the requirement that he submit schedules of movements was also reinstated. That it was regarded as unnecessary by the defendant’s DSO for a period does not mean that it is generally unnecessary. I regard the ability of a DSO to adjust conditions to suit the day-to-day circumstances of a sex offender as a significant part of managing the risk. I consider this condition to be appropriate.

Condition 2 provides that the defendant must follow all reasonable directions by his DSO or any other person supervising him. Ms Mathur contended that some of the conditions sought by the plaintiff were unnecessary since such directions could be given by the DSO under condition 2 in any event. In my view, it is fairer to the defendant to include some detail as to what prohibitions apply and what the discretion of the DSO is, rather than to leave such matters to fall within condition 2.

In the schedule to the reasons I have included all the orders sought in the amended summons (although some have been slightly amended due to concessions made by the plaintiff). Some, which have been struck through, are no longer pressed (such as conditions 24 and 25) or have been rejected (such as condition 3). However, in order to preserve the integrity of the numbering for the purposes of these reasons, I have not renumbered the conditions.

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