State of New South Wales v Russell (Final)

1. [1]

   By way of an amended summons filed in Court on 19 September 2022, the State of New South Wales (the State) brings proceedings against the defendant, Brett Russell, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   Having already obtained preliminary and interim orders on 28 June 2022, [1] the State seeks final relief in the nature of a continuing detention order (CDO) followed by an extended supervision order (ESO).

3. [3]

   This is the judgment in respect of the final hearing.

4. [4]

   In the original summons, the State did not seek a CDO but has amended the summons to seek a CDO for a period of 12 months prior to the imposition of the ESO.

5. [5]

   The defendant has already been subject to three CDOs, being:

   1. (1)

      A CDO imposed by Button J for 12 months commencing 12 December 2018 (the first CDO); [2]

   2. (2)

      A CDO imposed by N Adams J commencing 15 April 2020 (the second CDO); and [3]

   3. (3)

      A CDO imposed by Harrison J for a period of 12 months commencing 6 July 2021 (the third CDO). [4]

6. [6]

   The defendant remains in custody on an interim detention order (IDO) in accordance with orders made by Button J on 28 June 2022, as extended by Davies J on 2 August 2022 and Bellew J on 29 August 2022.

7. [7]

   The IDO expires on 27 September 2022.

8. [8]

   If I do not make orders for a CDO or ESO or extend the IDO prior to that day then the defendant will be eligible for general release into the community.

9. [9]

   Following the preliminary hearing, Button J made orders for the appointment of a psychiatrist and/or psychologist. The State obtained two expert reports as follows:

10. [10]

    The State submits that, particularly in view of an alleged recent assault perpetrated by the defendant in prison, the defendant should remain subject to a further CDO for a period of 12 months and then an ESO for a period of 5 years. The State’s alternative position is that the defendant should be subject to an ESO for 5 years with very stringent conditions.

11. [11]

    The defendant accepts that he poses an unacceptable risk and that he should be subject to an ESO on some conditions but disputes that:

    1. (1)

       He should be subject to a further CDO; and

    2. (2)

       That the term of any ESO should be 5 years; and

    3. (3)

       That the conditions should be as stringent or extensive as the State seeks.

12. [12]

    On the application, Katrina Curry of counsel appeared on behalf of the State and Juliet Lucy of counsel appeared on behalf of the defendant. Both parties provided helpful written and oral submissions. The evidence on the hearing included both oral and documentary evidence.

Legislative Scheme

1. [13]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.

2. [14]

   Section 5B of the Act specifies the circumstances in which the Court may make an ESO:

3. [15]

   Section 5C of the Act specifies the circumstances in which the Court may make a CDO:

4. [16]

   Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex or violence offence, does have to be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. [5]

5. [17]

   The meaning of “unacceptable risk” was considered in Lynn v State of New South Wales: [6]

6. [18]

   Importantly, the impact that an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, but the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [7]

7. [19]

   Section 9(2) of the Act requires that, in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.

8. [20]

   Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

9. [21]

   Similarly, an application for a CDO must be made in accordance with s 13B of the Act and must be supported by the matters referred to in s 14.

10. [22]

    As set out in s 17, the Court may determine an application for a CDO by making either an ESO or CDO or by dismissing the application.

11. [23]

    Again, the safety of the community must be the paramount consideration of the Court. Further, in determining an application for a CDO, the Court must have regard to the factors set out in s 17(4).

Threshold requirements

1. [24]

   The defendant accepts that the threshold requirements set out under ss 5B and 5C are satisfied, except that he does not accept that he poses an unacceptable risk of committing another serious offence if not kept in detention (s 5C(d)).

2. [25]

   Although the defendant accepts that the requirements for an ESO are satisfied, I must be independently satisfied that he would pose an unacceptable risk if not kept in detention or under supervision in the community.

The central issues

1. [26]

   The central issues of dispute between the parties are:

   1. (1)

      Should the defendant be subject to a CDO for a period of 12 months commencing on 27 September 2022?

   2. (2)

      Should he then be subject to an ESO for a period of 5 years commencing 27 September 2023?

   3. (3)

      If not, for what period should he be subject to an ESO?

   4. (4)

      What are the conditions which should be imposed on the making of an ESO?

Background facts/defendant’s criminal history

1. [27]

   In each of the earlier judgments involving the defendant, the Court has summarised the defendant’s criminal history and background. It is not necessary that I repeat everything that has been said in this judgment.

2. [28]

   By way of summary, the defendant is a 59 year old Aboriginal male. He has been in custody for most of his adult life. Indeed, he has been in custody almost continuously since his first sentence of imprisonment at the age of 14. He was last in the community on parole in 2008.

3. [29]

   On 5 April 2008, he sexually assaulted a 19 year old girl. He returned to custody on 7 April 2008 and has remained in custody since that time.

4. [30]

   In July 2009, he was sentenced on two counts of sexual intercourse without consent and two counts of indecent assault. He was sentenced to a term of imprisonment of 9 years (which ended on 3 October 2018) with a non-parole period of 7 years. His sentence in respect of this offending expired 4 years ago.

5. [31]

   As observed by the sentencing judge (Woods QC DCJ) on 2 July 2009, the defendant had a long and tragic history of criminality flowing from deprived family circumstances and exposure to violence. The defendant’s exposure to trauma and violence as a young boy in the family was significant. He took to running away from the age of 10 and ultimately ended up in another institution where he was abused.

6. [32]

   Prior to 2008, the defendant had a long history of violent offending and the index offence constitutes a serious instance of offending of a sexual nature within the meaning of the Act.

7. [33]

   The defendant opposes the imposition of a further CDO on the basis that, despite his long period of institutionalisation and the allegation of recent violence against another prisoner, he is in a different position now from the last occasion when the State sought and obtained a CDO. For example, the defendant points to his improvement, his undertaking of treatment programmes and his demonstrated recognition for that which he has done.

8. [34]

   At least on one view of the evidence, that appears to have been accepted by the State until such time as the defendant was allegedly involved in the assault on a fellow prisoner. This appears to have altered the State’s position, such that the summons was amended to seek a further CDO rather than simply an ESO.

The evidence

1. [35]

   The State relies on the following affidavits:

   1. (1)

      Four affidavits of David Yang, a solicitor employed on behalf of the solicitor for the State dated 15 March 2022, 26 May 2022, 6 June 2022 and 14 September 2022.

   2. (2)

      Three affidavits of Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer employed by Corrective Services NSW (CSNSW) dated 15 March 2022, 6 June 2022 and 14 September 2022.

   3. (3)

      An affidavit of Angela West, the General Manager of Inmate Classification and Placement employed by CSNSW dated 29 August 2022.

   4. (4)

      An affidavit of Nicole Ahern, the Chief Psychologist in Intensive Therapeutic Programs employed by CSNSW, dated 30 August 2022.

2. [36]

   The defendant relies on:

   1. (1)

      An affidavit of Theo Voros, the solicitor for the defendant, dated 17 June 2022; and

   2. (2)

      Affidavits of Laura Campbell, a clerk employed by the solicitor for the defendant dated 21 June 2022 and 9 June 2022.

3. [37]

   The material relied upon by the parties as exhibited to those affidavits includes extensive medical evidence, the criminal records and the Offender Integrated Management System (OIMS) case notes.

4. [38]

   In addition to the two recent expert reports, the State has obtained a risk assessment report from Samuel Ardasinski, Senior Psychologist, within the Serious Offenders Assessment Unit, dated 13 December 2021 and a risk management report prepared by Mick Glover, Senior Community Corrections Officer in the Metropolitan Extended Supervision Team, dated 5 January 2022.

5. [39]

   Both Dr Youssef and Dr Dayalan were required for cross-examination. They gave evidence concurrently.

6. [40]

   Ms Grabham was also required for cross-examination and gave further oral evidence.

Should the defendant be subject to a CDO?

1. [41]

   Although the defendant accepts that he should be subject to an ESO (but not a CDO), it is necessary that I be independently satisfied that the defendant poses an unacceptable risk of committing another serious offence, if not kept under supervision under an ESO. For the reasons set out in this judgment, I am so satisfied.

2. [42]

   Both Dr Youssef and Dr Dayalan consider that the defendant remains a high risk of committing a further serious offence (either sexual and/or violent), albeit both experts observed that there were limitations on the use of risk assessment tools in a case such as this.

3. [43]

   Dr Youssef summarised the risk as follows:

4. [44]

   Dr Dayalan came to a somewhat similar conclusion as to the risk level, particularly having regard to his use of the risk assessment tools. He considered that the defendant continued to present with cognitive distortions which were persecutory in nature. This placed him at increased risk of interpersonal conflicts. Because he has been institutionalised for such a long period, he has a known repertoire of adaptive coping strategies. Dr Dayalan anticipated that the defendant would be exposed to increased stress following his release into the community.

5. [45]

   Further, he identified a number of dynamic risk factors most relevant to the defendant’s risk of committing a serious offence, being:

   1. (1)

      Substance abuse;

   2. (2)

      Sexual preoccupation/drive;

   3. (3)

      Emotional, behavioural and cognitive instability;

   4. (4)

      Compliance with treatment and supervision;

   5. (5)

      Living circumstances;

   6. (6)

      Personal support;

   7. (7)

      Psychosocial stresses; and

   8. (8)

      Access to potential victims.

6. [46]

   The State also relied on a risk assessment report prepared by Mr Ardasinski, dated 13 December 2021. Mr Ardasinski referred to the same key risk factors as Dr Dayalan. He considered that the defendant continues to fall into the high risk category for both sexual and violent reoffending.

7. [47]

   These reports are consistent with the expert reports of Dr Marcello Rodrigeuz, a psychologist, and Dr Richard First, a forensic psychiatrist, obtained for the purposes of the third CDO application as referred to by Harrison J in his judgment in respect of that application. [8]

8. [48]

   It is important to observe that the defendant has not entered a plea of guilty to the recent assault charge against him. However, for the purposes of this application, I am entitled to have regard to the allegations.

9. [49]

   The alleged incident involved a fellow inmate who it is said may have been providing sexual favours to the defendant. At some point, the victim approached the defendant, passing him a note to the effect that they should keep their distance. This caused the defendant to become angry. He then threatened the victim. At approximately 1.10pm on the same day, the defendant is alleged to have approached the victim, accusing him of causing him to have lost his job. He punched the victim in the face causing the victim to lose consciousness and fall onto the floor. As a result, he was charged. Further, his classification regressed from a C2 to a B classification.

10. [50]

    On the State’s case, this alleged incident is significant because it demonstrates that the defendant should remain in custody and undertake a further programme or programmes to assist him in managing his tendency for violence.

11. [51]

    Dr Youssef supports the imposition of a further CDO for 12 months followed by an ESO. Having said that, in her report, Dr Youssef suggested that there were no further programmes in custody that she believed would be helpful in reducing the defendant’s risk or preparing for community re-entry. She stated:

12. [52]

    Dr Youssef was initially of the view that the defendant should be subject to some form of gradual exposure to the community, such as through a work release programme. Her opinion was that the defendant should gradually re-enter the community, which would assist in managing his risk.

13. [53]

    However, on his current classification, the defendant would not be eligible for such day release. According to Angela West, the defendant would be required to progress through the classification system and obtain a category C2 classification. The defendant’s next classification review is on 29 April 2023. There is of course no certainty that his classification will be changed. It seems likely that if a CDO is imposed, the defendant would not be eligible for day leave at least before the very end of the 12 month period.

14. [54]

    In support of its application for a CDO, the State suggests that there is a need for further treatment whilst in custody. This proposition is based on the opinion of Nicole Ahern. She observes that the defendant’s primary issues relate to his impulse control. She says that he has an outstanding need for violence offending specific treatment. She considers that the defendant would need six to eight months for further treatment. He would commence one-on-one treatment with a senior psychologist from the Violent Offenders Therapeutic Programme (VOTP). On completion of that treatment, he would commence treatment with the senior psychologist from the Sex Offenders Programme (SOP).

15. [55]

    She accepted that the idea of the defendant being monitored, supported and receiving treatment on a less restrictive environment, such as in the community, would be generally advantageous but that there were some benefits associated with treatment in custody. She thought a short-term CDO would be meaningful.

16. [56]

    Dr Youssef generally supports that approach. Dr Youssef suggested she had two primary concerns, being:

    1. (1)

       The dosage of treatment, meaning that whilst the defendant had completed a number of programmes in custody, she was not satisfied that the level of treatment was necessarily sufficient; and

    2. (2)

       That he would face difficulties in reintegrating into the community after a long period of incarceration.

17. [57]

    It is for this reason that she favoured the idea of a graduated release into the community through something such as a return to work programme.

18. [58]

    Having said that, she accepted in cross-examination that, perhaps differently from earlier occasions, there were now a number of protective factors available to the defendant which would reduce his risk of both sexual and violent reoffending, including:

    1. (1)

       He will be enrolled in a training course to obtain a forklift licence and obtain employment;

    2. (2)

       He intended to participate in an Aboriginal smoking ceremony as part of the process of reintegration;

    3. (3)

       He intended to make contact with his family and children;

    4. (4)

       He would be engaging in a number of creative and leisure activities; and

    5. (5)

       He was currently demonstrating an enthusiasm for release and determination to be “a citizen” rather than “a criminal”.

19. [59]

    Further, she accepted that, in circumstances in which her original idea of a graduated reintegration would not be possible, there was a risk that keeping the defendant in custody any further would be counter-productive to reducing the risk.

20. [60]

    Dr Dayalan was supportive of the defendant being released into the community under an ESO with the conditions suggested by the State. He considered that there were appropriate forms of intervention and treatment in the community and, if some form of graded reintegration was not available, then there would be little benefit in keeping him in prison for a further short period at this time. He was not satisfied that the defendant had not undergone the treatment for violent offending available in prison already.

21. [61]

    Dr Dayalan referred to the views of Mr Ardasinski that the defendant had completed most of the programmes available to him in custody. Dr Dayalan believed that ongoing treatment could be provided in the community. Dr Dayalan noted that the defendant had completed all available sex offender treatment. Further, he did not agree that the defendant had not participated in the relevant violent offender programmes.

22. [62]

    Dr Dayalan said in his oral evidence that, having regard to the defendant’s progress over the past year, including treatment, completion of programmes and what seemed to be a general change of attitude, it was appropriate that he be released into the community under an ESO.

23. [63]

    Dr Dayalan agreed that further incarceration for a period of 12 months could be counter-productive in that it could destroy the defendant’s enthusiasm and willingness to engage in treatment.

24. [64]

    I observed in my judgment on the preliminary application for the third CDO: [9]

25. [65]

    In State of New South Wales v Kaiser, [10] Simpson AJA (Bell CJ and Beech-Jones JA agreeing) observed at [61]:

26. [66]

    Further, the importance of the right to individual liberty has most recently been emphasised by the High Court in Garlett v Western Australia (“Garlett”). [11] As Kiefel CJ, Keane and Steward JJ commented at [73]:

27. [67]

    Further, Edelman AJ stated that a continuing detention order under similar legislation in WA would likely be rare because of the almost unlimited range of possible conditions beyond the standard supervision order conditions which might be imposed on an ESO. As his Honour said at [233]:

28. [68]

    The fact that the defendant’s risk factors still remain high might suggest that he remains an unacceptable risk if released into the community, although there is some dispute about that. Having said that, in my view, the time has come where the objects of community safety and rehabilitation are best served by supervising the defendant’s reintegration into the community. This is particularly so, having regard to the defendant’s current enthusiasm and determination to reintegrate into the community as well as his willingness to undertake ongoing treatment in the community.

29. [69]

    The defendant points to his general cooperation and participation in all appropriate programmes. He refers to an OIMS note dated 14 June 2022 which refers to him as being a “model inmate”. The alleged assault on 4 April 2022 might suggest otherwise but the defendant emphasises the difference between the prison culture and living in the community.

30. [70]

    Further, the defendant does not accept that he has not completed appropriate violent offender programmes and points to the availability of treatment programmes through Forensic Psychology Services (FPS) if he were to be released. To a certain extent, this contention is supported by the opinion of Dr Dayalan.

31. [71]

    Although I have some concern about the recent alleged assault on another inmate, it is clear that there has at least been some change of attitude on the part of the defendant towards participation in treatment programmes and he has at least some better insight into those conditions which cause him to act impulsively and lose control.

32. [72]

    Dr Dayalan considers that he can be adequately managed in the community under an ESO. Dr Youssef’s somewhat altered opinion seems to have been very much influenced by the recent incident as well as the further evidence from Ms Ahern that he could undertake a further programme in custody. However, he has demonstrated a willingness to undergo appropriate treatment and programmes through FPS.

33. [73]

    On 21 June 2022, the defendant told Tania Martin, a Services and Programs Officer at CSNSW, that he is ready to enact positive change and make a contribution to the community. He wants to start a band, pursue his art and obtain employment as a forklift driver. The defendant submits that being in the community is critical to his rehabilitation.

34. [74]

    In determining whether or not to make a CDO, I must have regard to the factors set out in s 17(4) of the Act and any other matters which may be relevant.

35. [75]

    In this regard, it is notable that:

    1. (1)

       Only one of the experts retained by the State for the purpose of this application supports the imposition of a further CDO.

    2. (2)

       The imposition of an ESO is supported by Mr Ardasinski, the Senior Psychologist in the Serious Offenders Assessment Unit.

    3. (3)

       Whilst on a statistical risk assessment analysis, the defendant continues to present in the high risk category, there are limitations to that type of analysis.

    4. (4)

       The defendant, perhaps differently from earlier occasions, has demonstrated a willingness to participate in community-based programmes, expressed enthusiasm for release and a desire to become a good citizen rather than a criminal and has a number of important protective factors available to him at this stage.

    5. (5)

       I also accept that a continuing detention of the defendant may ultimately be counter-productive. I have regard to the initial comments of Dr Youssef in her report to the effect that continuing detention at this stage may serve little purpose other than continuing containment.

36. [76]

    In the circumstances, I am not satisfied that the defendant should be subject to any further CDO. He should be released into the community and subject to an ESO.

The conditions

1. [77]

   The conditions which the State proposed are attached to the amended summons. There is limited dispute as to the conditions. I am satisfied that the conditions not in dispute are appropriate. I will deal with the conditions in dispute.

2. [78]

   In considering the conditions which should be imposed, I have regard to a number of important principles, including:

   1. (1)

      The condition should address the identified risk. As stated by Edelman J in Garlett at [230]:

   2. (2)

      The Court should seek to impose the least intrusive conditions that are most likely to be effective. [12] Too stringent conditions may be counter-productive, both in terms of the general rehabilitation of the defendant and the defendant’s relationship with his DSO or those persons with whom he is required to work with to ensure successful reintegration into the community. [13]

3. [79]

   The conditions to which the defendant consents are extensive. They include electronic monitoring, restrictions on accommodation, place and travel restrictions, restrictions on the use of drugs and alcohol, access to the internet and various obligations in respect of ongoing treatment.

4. [80]

   However, the defendant does dispute the appropriateness of a number of conditions which he says will not assist in reducing the risk of either violent and/or sexual offending, which do not otherwise address the risk factors and are unnecessarily onerous.

5. [81]

   Although the defendant consents to electronic monitoring, he does not consent to the conditions relating to the schedule of movements as proposed by the State. The State proposes that the defendant must provide a weekly plan and that he must not deviate from his approved schedule of movements except in an emergency.

6. [82]

   The State relies on the evidence of Ms Grabham as to the benefits of the proposed schedule of movements in addition to electronic monitoring. As Ms Grabham says, monitoring of the defendant can be in real-time. Any deviations from the defendant’s approved moments can be immediately detected and the DSO can be made aware.

7. [83]

   Ms Grabham also emphasises that the condition relating to electronic monitoring is in terms that the defendant must wear the monitoring equipment as directed by a DSO. She says that there is generally a graduated reduction in the use of electronic monitoring. For example, the imposition of a 5 year ESO would not necessarily result in the defendant being required to wear monitoring throughout that entire period. As I understand it, the ESO team will continue to assess the risks and the defendant’s compliance with his schedule and may reduce the monitoring requirement accordingly.

8. [84]

   The defendant does not oppose the imposition of a schedule of movements but says that the condition should be in the form of a “dry schedule”. A dry schedule imposes a somewhat less onerous condition. The defendant is not required to precisely identify his planned movements for each day. [14]

9. [85]

   Ms Grabham says that if there is a dry schedule, there cannot be real-time tracking. Ms Grabham agrees that most offenders find electronic monitoring schedules and movements frustrating but she does not consider this to be a negative. Most offenders have spent a substantial time in custody and a certain level of structure upon release is positive for them.

10. [86]

    There may be merit in Ms Grabham’s views, expert as they are. However, the Court should seek to impose the least intrusive conditions that are most likely to be effective. [15]

11. [87]

    I consider it appropriate that the defendant commences with the State’s condition but that after 12 months the defendant only be required to provide a dry schedule. The conditions will be amended to reflect that.

12. [88]

    The defendant seeks modification to these conditions to permit him to see his grandchildren and other family members. The defendant points out that there is no history of abuse of children. At least according to the defendant, one of the things he intends to do is reconnect with his family. Dr Youssef considers this would be of benefit to him and a protective factor. He should be permitted to be in the company of his grandchildren without seeking prior approval of the DSO.

13. [89]

    Conditions 17 and 27 will be amended to include the words “except family members under the age of 18”.

14. [90]

    The State maintains that Condition 22 (which requires the defendant to provide any information relating to his financial affairs if directed by the DSO) is necessary because of the defendant’s gambling disorder.

15. [91]

    Dr Youssef opines that substance abuse, gambling and financial stresses “are likely to contribute to emotional dysregulation for Mr Russell and may increase the risk”. If he reverts to stealing to support himself, it is possible there may be associated violence with that stealing, but I am uncertain as to how requiring the defendant to provide his financial information to the DSO would necessarily reduce the risk of that occurring.

16. [92]

    It is a long time since the defendant has gambled. The relationship between gambling and the offending is unclear. It might be said that the stress caused by losing money on gambling may lead to violence but it is not clear how allowing the State to have access to the defendant’s bank accounts would necessarily reduce that risk.

17. [93]

    I am not satisfied that the State has established that this condition is necessary.

18. [94]

    The defendant is required to inform the DSO if he starts or seeks to start a relationship with a woman (friendly or intimate). The defendant submits that the condition is too broad and should be limited to intimate relationships. The State relies on the evidence of Ms Grabham who notes that many of the defendant’s earlier offences were committed against female acquaintances.

19. [95]

    The risk assessment report dated 13 December 2021 suggests that one likely scenario for further violent and sexual offending would be against a known female acquaintance or intimate partner.

20. [96]

    I am satisfied that Condition 34 is specifically directed at the risk and that it should be imposed.

21. [97]

    The defendant seeks search and seizure conditions on the basis (as stated by Ms Grabham) that the conditions are used in risk management to guard against the possibility of the defendant possessing inappropriate material, including alcohol, drugs, or weapons. The State submits that it is necessary that the DSO have the power to search as part of the process of managing the risk.

22. [98]

    The defendant points out that the State retains all its usual powers of surveillance and arrest, albeit in State of New South Wales v AA, [16] Hoeben CJ at CL observed the rights and obligations of the Police and citizens are quite different from the supervisory obligations arising in this type of matter.

23. [99]

    In the end, I am satisfied that the defendant’s sexual and violent crimes have been opportunistic and impulsive rather than planned. I am not satisfied that these conditions address the particular risk in this matter and thus I do not accept that they should be imposed.

The length of the ESO

1. [100]

   The State seeks an ESO of 5 years. The defendant maintains that an ESO of 3 to 4 years would be sufficient. This appears to be based on in part on the opinion of Mr Ardasinski.

2. [101]

   It is not clear to me why an ESO for 5 years rather than something less is appropriate. Dr Youssef suggested a 5 year period but on the basis that there would be a greater reduction in conditions over time. She understands that an ESO has four stages with the conditions being reduced gradually over each year. Hopefully, should the risk reduce, those responsible for the monitoring of the defendant will adopt that approach but there is nothing in the conditions proposed by the State that mandates such an approach.

3. [102]

   Mr Ardasinski suggested that a very lengthy ESO may not be required as the defendant may have reached “the burnout age” in terms of his personality disorder and potential to reoffend. He considered that an ESO for 3 or 4 years would be appropriate.

4. [103]

   The defendant emphasises that he is now 59 and that the risk reduces after 60. The defendant pointed to the life expectancy tables for Aboriginal men, raising the prospect that on those life tables, he does not have that many years left to live. I am not sure that pointing to life tables provides a basis for either reducing the term of the ESO or changing the conditions, bearing in mind the purposes of the Act.

5. [104]

   In the end, I am not satisfied that the State has established why a 5 year rather than a 4 year period is necessary.

Orders

1. [105]

   I thus impose an ESO for a period of 4 years on the conditions set out in the amended summons, subject to the variations which I have directed.

2. [106]

   In the circumstances, I make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Act, the defendant is subject to an extended supervision order for a period of 4 years from 27 September 2022 to 26 September 2026.

   2. (2)

      Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, is to comply with the conditions set out in the Schedule to this judgment.

   3. (3)

      Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.