State of New South Wales v Amson

1. [1]

   By an Amended Summons filed in Court on 22 June 2023, the State of New South Wales (“the State”) sought orders for an extended supervision order (“ESO”) for a period of 3 years pursuant to ss 5B and s 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) and conditions specified in a Schedule accompanying the Summons pursuant to s 11 of the Act (“the Schedule”) with respect to Chloe Amson, formally known as Aaron Amson (“the defendant”).

2. [2]

   The defendant has advised NSW Corrective Services staff in custody that she identifies as a trans-gender woman and accordingly, female pronouns are used in this judgment, except when referring to a document in which male pronouns are used.

3. [3]

   In support of the application, the State read the affidavits of James Palmer of 15 and 30 May 2023.

4. [4]

   The defendant is currently serving a sentence of imprisonment for an offence of using a carriage service to ‘groom’ a child for sexual activity, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth) (“the index offending”). This sentence was imposed on 24 June 2021 by the Penrith District Court and will expire on 5 July 2023. The non-parole period for the sentence expired on 24 July 2022. The defendant was not granted parole.

5. [5]

   Pursuant to s 7(3) of the Act, a preliminary hearing is required to be held within 28 days of the application for an ESO being filed, or within such further time as the Court allows. A preliminary hearing of the application was listed on 22 June 2023, in which the State sought the orders in paragraphs 1, 2 and 4 of the Summons, by which the State, in substance, sought orders under the Act for the appointment of two qualified psychiatrists or psychologists (or any combination of such persons) to conduct examinations of the defendant and to furnish reports to this Court pursuant to s 7(4); an Interim Supervision Order (“ISO”) pursuant to s 10A for a period of 28 days and; the conditions in the Schedule would operate for the period of the interim orders pursuant to s 11 of the Act and ancillary relief regarding access to the Court’s file.

6. [6]

   In summary, the State sought the first and second of those orders upon the basis that the matters alleged in its supporting documentation would, if proved, justify the making of an ESO. The State submitted that the minimum statutory requirements in s 5B(a)-(c) of the Act were met in the present matter and it would be open to the Court at a final hearing to be satisfied to the requisite standard in s 5B(d) of the Act that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision under the orders.

7. [7]

   The defendant, for the purposes of the preliminary hearing only, conceded that the statutory conditions for the making of an order were met and did not oppose the making of an ISO. Further, the defendant consented to an order restricting access to the Court file.

8. [8]

   The position of the parties shifted during the course of written submissions as to the conditions sought in the Summons such that the areas in dispute were considerably reduced by the time of the hearing. The amendment to the Summons filed on 22 June 2023 reflected the changes in the State’s position. The overarching position of the parties at hearing as to the proposed conditions is reflected in a table of conditions accompanying the State’s written submissions in reply (which is attached to this judgment). There remained a contest for the purposes of the preliminary hearing as to the following conditions in the Schedule: conditions 4-7 (electronic monitoring and a schedule of movements); condition 24 (contact with children); condition 29 (relationships with others); condition 54 (information sharing between agencies) and condition 55 (disclosure of criminal history to healthcare professionals).

ISO and s 7(4) Considerations

1. [9]

   I consider the position reached with the parties with respect to this preliminary hearing to be soundly based and, in particular, warranting the making of an ISO and orders under s 7(4) of the Act. The reasons for that conclusion are two-fold.

2. [10]

   First, the preconditions in s 5B(a)-(c) of the Act have been met in the present case with respect to the defendant, because:

   1. (1)

      The defendant is an “offender” (as defined in s 4A) who is serving a sentence of imprisonment for a serious offence in custody: s 5B(a). Specifically:

   2. (2)

      The defendant is a “supervised offender” within the meaning of s 5I(2): s 5B(b). Specifically, she is an offender who, when the application for the order was made, was in custody while serving a sentence of imprisonment for a serious offence (namely, she was serving the balance of her sentence for the index offence, having not been granted parole): s 5I(2)(a)(i).

   3. (3)

      The application for the order is made in accordance with s 5I: s 5B(c).

3. [11]

   Secondly, the matters alleged in the supporting documentation accompanying the application would, if proved, justify the making of an ESO. The reasons for that second conclusion are five-fold which are discussed below in conjunction with relevant factors in s 9(3).

Criminal History

1. [12]

   First, the defendant has a lengthy criminal history which involves both sexual offences of different types and non-sexual offences with sexual elements or motivations.

2. [13]

   The defendant has a large number of criminal convictions in Western Australian and New South Wales. This is amply set out in the State’s written submission, which substantially forms the basis for that which follows.

3. [14]

   The defendant’s Western Australian criminal history records convictions for 30 offences between 1996 and 2003, including 23 burglary-related offences.

4. [15]

   A psychological report prepared in July 2001 by Denise M Cull recorded that the defendant admitted to her that there was a “sexual component to his current and allegedly previous conviction for burglary” in that he “always remove[d] a pair of female underwear”. The report also stated:

5. [16]

   On 14 November 1996, the defendant was sentenced in the Perth Childrens’ Court for offences of aggravated burglary, deprivation of liberty and indecent assault. The defendant was aged 15 at that time.

6. [17]

   On 3 February 1997, the defendant was sentenced in the Perth District Court for an offence of sexual penetration of a child under 13.

7. [18]

   With respect to these convictions, Ms Cull’s report stated:

8. [19]

   On 3 October 2004, the defendant broke into a neighbouring property by removing a flyscreen and opening an unlocked window, looking for food. She stole four pairs of women’s underwear from the property, and was subsequently charged with breaking, entering and stealing contrary to s 112(1) of the Crimes Act 1900 (NSW) (“the Crimes Act”).

9. [20]

   During a later search of the defendant’s home, police located two CD-ROMs containing a total of 88 images of child pornography, alleged to have been downloaded and ‘burnt’ to the discs. This resulted in two counts of possessing child pornography contrary to s 578B(2) of the Crimes Act. The images were described as depicting:

10. [21]

    It should be noted that counsel for the defendant, Ms G Marsden, submitted that the child pornography was confined to female children only but, that submission cannot be accepted in light of the above Police Fact Statement in the materials before the Court.

11. [22]

    The defendant was sentenced in the Armidale District Court to a total effective sentence of 2 years and 7 months imprisonment with a non-parole period of 20 months, with respect to charges in the charge group H 2230551.

12. [23]

    On 6 September 2004 the defendant gained entry to a house by smashing a locked front window and stealing a VHS video cassette recorder leading to a further charge of break, enter and steal contrary to s 112(1) of the Crimes Act. On 29 August 2005, she was sentenced in the Local Court to 6 months imprisonment for this offence.

13. [24]

    On 3 November 2004, the defendant broke into a church where she stole various food and drink items and a cash box (containing a set of keys but no cash). This resulted in a charge of breaking and entering a place of worship with intent to commit a serious offence contrary to s 106(1) of the Crimes Act. She was sentenced to a further period of 6 months imprisonment in the Sydney District Court.

14. [25]

    As a result of her offending in charge groups H 24390960 and H 24583315 in 2004, the defendant was in custody in New South Wales between 16 December 2004 and 13 January 2008.

15. [26]

    On 9 April 2012 the defendant was charged with committing an act of indecency with a person over the age of 16 years contrary to s 61N(2) of the Crimes Act.

16. [27]

    The offending occurred on 12 February 2011. The defendant sexually assaulted an adult woman while she was unconscious. The defendant and victim had met through Facebook and had socialised together on a number of occasions before the assault. The victim had a disability and suffered from syncopal episodes or blackouts, and lost consciousness while at the defendant’s home. The victim regained her consciousness to find that some of her clothes had been removed and the defendant was masturbating. The defendant was sentenced on the basis that she had partially undressed the victim, masturbated and ejaculated on her body. Prior to the assault, the victim had rejected physical advances from the defendant.

17. [28]

    The defendant was sentenced in the Local Court at Wollongong for the offence (change group H 4836739) to 17 months imprisonment, which was reduced on appeal in the District Court to 12 months imprisonment with a non-parole period of 6 months.

18. [29]

    A pre-sentence consultation report prepared by Daniel Stanton, Acting Senior Forensic Psychologist and Graham Rendell, Coordinator of Sex Offender Programs with the Department of Corrective Services, stated the following:

19. [30]

    On 5 October 2012 the defendant was charged with failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 NSW (“the CPR Act”). The defendant had failed to notify police that she had been residing at a premises with two children (aged 6 and 8) and a further 2 children (aged 10 and 12) that frequently stayed at the premises since late August 2012.

20. [31]

    The defendant was sentenced to 12 months imprisonment by the Local Court on 15 May 2013. On that date she attempted to escape from the courtroom, leading to a charge of escaping or attempting to escape from lawful custody contrary to s 310D(a) of the Crimes Act. She was sentenced to a fixed term of 6 months imprisonment for this offence.

21. [32]

    As a result of the offending between 2011 and 2013, the defendant was in custody in New South Wales between 15 May 2013 and 13 March 2015.

22. [33]

    On 2 July 2018, the defendant was charged with possessing child abuse material contrary to s 91H(2) of the Crimes Act.

23. [34]

    On 30 June 2018 Police had visited her home pursuant to s 16C of the CPR Act and inspected her mobile phone. They found: ‘3 x images of young naked girls with their genitals exposed’ including ‘1 x full body image of girl estimated to be under 10 years of age clearly depicts her exposed vagina’, an image of ‘three young girls estimate to be aged 10-16 years of age in a beach play scene…one of young girls is total naked the image clearly depicts her face, breasts and genitals’ and an image depicting ‘three young girls standing completely naked’.

24. [35]

    The defendant was sentenced to 6 months imprisonment on 12 August 2020 in the Local Court with respect to this offending.

25. [36]

    Between 17 March 2020 and 4 May 2020, the defendant engaged in online communications with an undercover police officer purporting to be a 13-14-year-old female child (referred to as CEIU 41), resulting in a charge of using a carriage service to transmit communications with the intention of making it easier to procure a child to engage in sexual activity, contrary to s 474.27(1) of the Code (‘grooming’).

26. [37]

    The detail of the conversation is set out in the Reasons on Sentence (“ROS”) of Abadee DCJ delivered on 24 June 2021. The conversation took place initially on Facebook and then on the Skype application, and involved the defendant:

    1. (1)

       sending the purported child web links to eBay listings for underwear and asking her about her underwear;

    2. (2)

       asking her whether she would like to be his girlfriend and referring to wanting to cuddle her;

    3. (3)

       asking her about the extent of her sexual experience including asking whether she had ever been touched ‘down there’, about whether her friends had had sex before and if she wanted to try it, and asking her whether she walked around naked;

    4. (4)

       asking explicit questions about the purported child’s mother’s sex life and encouraging her to use her mother’s sex toy to masturbate herself;

    5. (5)

       encouraging her to search on Google for ‘How to use a dildo’;

    6. (6)

       asking about her pubic hair on multiple occasions;

    7. (7)

       discussing what she and the purported child might do if they were to meet in person;

    8. (8)

       discussing the possibility of meeting in early May 2020, including discussing the prospect that the purported child would see the defendant’s penis. In this context the defendant suggested they might have sex, asked her to search on Google for ‘oral sex’ and discussed she and the child performing oral sex on one another.

27. [38]

    On 4 May 2020, the defendant suggested that she may not be able to meet CEIU 41 as planned. The defendant was arrested on 6 May 2020 at her home.

28. [39]

    As mentioned above, the defendant was sentenced to 3 years and 2 months imprisonment commencing on 6 May 2020 and expiring on 5 July 2023, with a non-parole period of 2 years, 2 months and 19 days.

29. [40]

    A ‘pre-release report’ ("The pre-release report”) prepared by James Kyle, Community Corrections Officer, Lauren Sanders, Parklea Parole Unit and Donna Shaw, Director Community Corrections Operations dated 4 March 2022 recorded that the defendant reported experiencing significant emotional distress in the lead up to the offence which he considered affected his thought processes and decision-making, but that he “appeared to deflect blame to his wife at the time”, saying that a breakdown in their marriage had been her fault and that “it had affected his ability to think about his actions and the consequences that would follow”.

30. [41]

    The report went on to state:

31. [42]

    The pre-release report noted, however, that the defendant appeared to contradict herself while discussing the offending behaviour “regarding his sexual desires and the need for his offending” and that she may be saying what she thought Community Corrections would like to hear. The report further stated that the defendant referred to her behaviour as “vile” and “disgusting” but also that she was aware the victim was an undercover officer.

32. [43]

    The defendant was also charged on 6 May 2020 with a further offence of failing to comply with reporting obligations under the CPR Act. This related to a failure to disclose use of a Vodafone prepaid mobile broadband service in 2019.

33. [44]

    The defendant was sentenced to a fixed term of 6 months imprisonment commencing on 25 February 2022 and concluding on 24 August 2022. The result is that the defendant’s earliest possible release date from custody was 24 August 2022 (notwithstanding the expiry of the non-parole period for the index offence on 24 July 2022).

Risk of Reoffending

1. [45]

   Secondly, the Risk Assessment Report (“RAR”) dated 7 February 2023 and prepared by Doctor Parker found that the defendant’s risk of sexual reoffending is “well above average”, using the STATIC-99R risk assessment instrument, and “high” using the STABLE-2007 Actuarial tool. A historical assessment suggests a consistent level of risk over the past 20 years and the nature of the risk that the defendant presents involves potential reoffending against children or vulnerable adults. It was assessed that the defendant had a range of criminogenic needs, including criminal attitudes, antisocial associates, problem solving deficits and a sexual attraction to children.

2. [46]

   Again, the State’s submission adequately summarised the relevant aspects of the RAR in this respect which are incorporated in the following discussion.

3. [47]

   Dr Parker referred to the results of previous risk assessments (noting their limitations) including the following:

4. [48]

   Dr Parker also applied the STABLE-2007 risk assessment instrument, which he described as an “actuarial tool developed to assist clinicians in identifying stable dynamic risk factors for sexual reoffending”. Dr Parker reported that the defendant’s score of 19 places her in the ‘high risk’ category relative to other male sex offenders and that the items of most concern, in terms of stable dynamic risk factors, were:

   1. (1)

      significant social influences;

   2. (2)

      emotional identification with children;

   3. (3)

      lack of concern for others;

   4. (4)

      poor problem-solving skills;

   5. (5)

      negative emotionality;

   6. (6)

      sex as coping, and;

   7. (7)

      deviant sexual preferences.

5. [49]

   Dr Parker reported that the defendant’s combined scores on the STABLE-2007 and STATIC-99R tools resulted in an overall risk level of ‘well above average’.

6. [50]

   Dr Parker also administered an actuarial risk assessment tool designed to assess the risk of violence for serious offenders, the Violence Risk Appraisal Guide – Revised (“VRAG-R”). He reported that the defendant’s score of 32 places her within a group of offenders, 76% of whom reoffended violently within five years and 87% of whom reoffended violently within twelve years.

7. [51]

   Dr Parker identified the following criminogenic needs as possibly relevant to the defendant:

8. [52]

   In his ‘case formulation’, Dr Parker stated that the defendant “suffered a dysfunctional and traumatic childhood where she was subject to abuse, neglect and an absence of stable caregiving” and that as a consequence she developed “an insecure attachment style, where the self is viewed as flawed but others are viewed as ok”. He went on to state:

9. [53]

   Dr Parker opined that the defendant’s ongoing shame “reduced her ability to empathise with others” and that her “dysfunctional upbringing led to a failure to absorb social mores as internalised models of the world and to associations with other marginalised people”. Dr Parker considered that she was therefore:

10. [54]

    Dr Parker stated that the defendant’s sexual deviance was likely to persist throughout her lifetime but is not of itself enough to facilitate offending.

11. [55]

    He opined that the main risk scenario for future offending “is where a temptation presents itself at a time when she is feeling emotionally low and unsupported by prosocial people” and that tempting situations could include underage females or vulnerable or incapacitated adult females (such as in her 2011 offending). He considers that the resolution of her shame proneness, a greater capacity for effective problem solving and a stronger support network of prosocial individuals would reduce the risk of reoffending over the long term.

12. [56]

    Dr Parker suggested that the risk of committing serious sexual offending may be lower than the ‘well above average risk’ of committing further sexual offences because serious sexual offences are a subset of broader sexual offences.

Effective Rehabilitation

1. [57]

   Thirdly, there is a lack of evidence that effective rehabilitation has been undertaken to date, particularly having regard to the underling criminogenic needs, or psychological or psychiatric issues. This is again referenced in the pre-release report. The current participation by the defendant in HISOP is incomplete (allegedly approaching completion) and very recent after two earlier failed attempts in the CUBIT. (For clarity, the State submitted that HISOP is the new name for the CUBIT program).

2. [58]

   The defendant has twice started the CUBIT program without successfully completing it.

3. [59]

   A CUBIT discharge summary from 29 January 2007 indicated that the defendant participated in CUBIT for two months between 1 November 2006 and 29 January 2007, was placed on a Behaviour Management Plan due to poor behaviour and was ultimately suspended from the program. She was allowed back into the program on the condition that she comply with a second Behaviour Management Plan, which she breached, resulting in her discharge from the program.

4. [60]

   The defendant then re started the CUBIT program but was removed a second time in late 2014 or early 2015 due to making racial slurs.

5. [61]

   Progress notes available at the time of writing from the defendant’s current period in the HISOP program indicated that since starting the program on 20 September 2022 she:

6. [62]

   The defendant is projected to complete the HISOP program by the time of her release from custody.

7. [63]

   In oral submissions, it was correctly contended that the defendant had not yet been given the opportunity to participate in the community with the benefit of having successfully completed the HISOP program. However, the capacity to implement the program learnings remains untested.

8. [64]

   The defendant also participated in an offence-specific rehabilitative program in Western Australia. A Treatment Completion Report authored by Mahsa Anderson, Programs Officer at the Western Australian Department of Justice, dated 15 November 2002, indicated that:

   1. (1)

      The defendant commenced a Community Based Sex Offender Treatment Program on 30 July 2002;

   2. (2)

      She adequately completed the written component of the program and attended all but two sessions, but at times behaved inappropriately in the group and blamed being ‘emotionally two years younger’ than her real age,

   3. (3)

      As the program progressed, she was able to identify victims of her offending behaviour and acknowledge the effects on them,

   4. (4)

      She identified internal triggers leading up to the offending as including anger, feeling unloved and abandoned, having low self-esteem and boredom;

   5. (5)

      external triggers as including a lack of family support, walking alone in suburban streets and the possession of pornography,

   6. (6)

      She was able to identify relapse prevention strategies including working on self-esteem issues and removing pornographic material,

   7. (7)

      On the other hand she ‘refused to explore triggers to offences committed when a juvenile and said there was no possibility of his reoffending against young children’, an attitude that the author described as ‘alarming’.

Non-Compliance of Reporting Obligations

1. [65]

   Fourthly, the defendant’s prior breaches of her reporting obligations under the CPR Act are also a factor bearing upon the present application.

Reasons for Sentence

1. [66]

   Lastly, I have taken into account the ROS in relation to the Index Offence provided by District Court Judge Abadee on 24 June 2021. His Honour stated that the defendant required supervision upon release from custody although also remarked that the nature of the sexual activity “was rather oblique” and no further arrangements were made.

2. [67]

   Before turning to a final conclusion with respect to the application for interim interlocutory relief (save for conditions), there are some further considerations which are relevant to that assessment and the setting of conditions.

3. [68]

   The pre-release report referred to the defendant being prohibited from contacting her children due to “ongoing concerning behaviour in custody” whereby she was in frequent contact with “numerous sex offenders via inter-gaol mail” and referred to those offenders as his friends and social circle. In November 2021, the defendant was:

4. [69]

   A note from the Offender Integrated Management System (“OIMS”) dated 22 December 2021 recorded the following conversation between Mr Kyle and the defendant in relation to this conduct:

5. [70]

   The defendant subsequently told Mr Kyle that:

6. [71]

   On 16 February 2022, the defendant wrote to the State Parole Authority stating that she did not feel ready to be released on parole and still had issues to address to ensure she did not re-offend. The defendant told Mr Kyle on 16 March 2022 that she did so in order to feel in control after having been told that her release would not be recommended. On the same date that defendant expressed the view that she “should be able to write to anyone regardless of their charges and this should not matter to anybody” in reference to her correspondence with other offenders.

7. [72]

   The pre-release report recommended against the grant of parole and cited the following:

   1. (1)

      Mr Amson has continued to minimise his offending and lacks insight into the severity of his actions and offending behaviour.

   2. (2)

      Mr Amson has continued to remain in contact with numerous sex offenders while in custody and does not consider this to be of concern.

   3. (3)

      Mr Amson has not completed any offence targeted programs to address his sexualised offending which poses a community safety risk should he be released from custody.

   4. (4)

      Mr Amson appears to continuously display a lack of emotional regulation regarding his sexualised offending and deviancy, and only accepts his behaviour to be of concern when he is challenged regarding his actions.

   5. (5)

      Mr Amson has been deemed well above the average risk of reoffending and as such, poses a significant risk to community safety if he was to be released from custody without undertaking the relevant programs in custody.

8. [73]

   On 29 June 2022, the defendant told Mr Kyle that she had stopped corresponding with known sex offenders and could now identify that remaining in contact with such people would negatively influence and impact on her behaviour.

9. [74]

   The defendant was refused parole on 22 July 2022, with no subsequent reconsideration. The decision-maker cited the nature of the offending, findings of the sentencing judge as to the defendant having poor prospects of rehabilitation, the fact that the defendant had not completed an offence-specific treatment program at that time and the defendant’s ongoing contact with other offenders amongst other matters in their decision.

10. [75]

    In this correspondence, the defendant stated that she worked to learn new skills “to prevent me from reoffending and that she will do anything… required. Including wearing an ankle bracelet.”

11. [76]

    On 21 April 2023, the defendant wrote to a person (whose name was redacted for the Court record) and in that communication referred to another detainee whose name was also redacted. The defendant asked when the author and the other person were “due out” and that she needs “somewhere [sic] to call home” and further, that “you said you and [the other person] might be able to offer me” (accommodation) when out on an ESO. The defendant referred to various forms of intended sexual encounters with those persons and other persons in a sexually explicit manner.

12. [77]

    It is plain that the defendant is writing to persons who are incarcerated and hence that the defendant intends to have a relationship with other offenders and perhaps live with them, upon their release. I accept the submission of the defendant that the Court may not properly draw an inference, on the material presently before the Court, that the recipients of this correspondence were necessarily sexual offenders or persons sharing the defendant’s sexual preferences in children. Nonetheless, the correspondence is relevant to the assessment of risk posed by the defendant as it is suggestive of the desire for the maintenance of anti-social contacts who potentially share the defendant’s sexual proclivities, as I will discuss further below. Apart from the nature of the exchanges and the fact of their incarceration (which are available on the face of the correspondence), the letters were written in a particular context. In November 2021, the defendant stated he could not resist the urge to write to persons in a sexually explicit fashion. In December 2021, the defendant accepted he should not be associating with people who were attracted to children and that he had sent correspondence to “other offenders”. However, she also stated that she was “addicted to writing” to them. In February 2022, she stated that she should be able to write to anyone regardless of their charges. I also accept the submission of the State that, in that light, the Court would treat with caution assurances by the defendant, at this stage, she had eschewed any desire or willingness to connect with sexual offenders.

Conclusion: ISO and s 7(4) of the Act

1. [78]

   In the circumstances, the matter alleged in the supplementary documentation accompanying the application would, if proved, justify the making of an ISO. Further, I observed that on the material presently before the Court it would be open for a Court at a final hearing to conclude, that the defendant represents an unacceptable risk of committing further sexual offences against children or vulnerable adults which would amount to serious offences. That assessment must result in orders by made under s 7(4) of the Act.

CONDITIONS

1. [79]

   The remainder of this judgment is then directed to the question of resolving the disputed conditions. For completeness, I attach to this judgment the table prepared by the parties as to their positions at the time of hearing, with respect to the conditions proposed in the Schedule to the Summons. Both parties made submissions as to the relevant principles in deciding on the conditions to be imposed. Those statements of principles are uncontroversial. For present purposes I propose to briefly dwell upon the applicable principles:

2. [80]

   Despite it not being a final hearing, I adopt the approach set out in my decision in State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 at [119]-[127] in approaching the principles for the imposition of conditions. Those principles are as follows:

Conditions 4 – 7

1. [81]

   As proposed in the Schedule, conditions 4 to 7 inclusive were as follows:

2. [82]

   The State pressed those conditions, which were opposed by the defendant. The State’s submissions were as follows:

   1. (1)

      The State accepted that the defendant’s offending history did not display a clear recent pattern that could easily be identified through electronic monitoring and a schedule of movements, although there was clearly a historical pattern of less serious placed-based offending (such as the break and enters);

   2. (2)

      The defendant has an admitted sexual interest in children, has offended against children in the past and presents a risk of further offending against children. The Risk Management Report (“RMR”) observed that electronic monitoring would assist the ESO Team to identify ‘any concerning patterns in her behaviour that may be related to her identified risk factors’. That would include allowing the identification of movements that may involve contact with children;

   3. (3)

      The index offending involved a contemplated meeting with a person the defendant believed to be a child for sexual purposes (albeit one that did not eventuate);

   4. (4)

      The defendant has previously failed to notify police of ongoing contact with children, resulting in a breach of her obligations under the CPA Act;

   5. (5)

      One of the criminogenic needs identified by Dr Parker in the RAR relates to anti-social influences and the defendant’s lack of pro-social influences. The defendant has recently been in contact with other offenders, and her correspondence in this respect has included references to meeting with them upon her release and their release. The scheduling and electronic monitoring conditions would facilitate the identification of risks arising from the defendant’s associations with others; and

   6. (6)

      In addition, as per the RMR, scheduling may assist in the defendant developing a routine upon being released from custody. Electronic monitoring provides a means of enforcing the schedule of movements, and the conditions of the ESO more generally, noting that the defendant has a history of poor compliance with supervision (under the Child Protection Register and pursuant to community-based sentences in WA). Specifically, the proposed conditions include restrictions on movement in conditions 16-18 which electronic monitoring would assist in enforcing.

3. [83]

   In opposing those conditions, the defendant submitted:

   1. (1)

      These conditions are not sufficiently connected to the mitigation of the risk of her committing a serious sex offence;

   2. (2)

      Electronic monitoring and schedule of movements conditions would do little to address the risk scenarios presented in the RAR, which contends that:

   3. (3)

      Such risk scenarios suggest random and / or spontaneous offending, which is unlikely to be detected through remotely monitoring the defendant’s movements or adherence to a schedule.

   4. (4)

      The defendant’s sexual offending history does not display a clear pattern that could easily be identified through electronic monitoring and a schedule of movements. Specifically:

Considerations: Conclusion Regarding Conditions 4 – 7

1. [84]

   With some relatively insubstantial qualifications, I accept the risk profile of the defendant contended by counsel for the State, Ms C Brain, as follows:

   1. (1)

      The applicant has a sexual interest in children as described in the pre-release report in March 2022 and the RAR. The defendant submitted, the sexual attraction to children is confined to post-pubescent girls. However, this is inconsistent with, as previously mentioned, the child pornography offence in 2004. Dr Parker’s description appears to be apt when he refers to the defendant having an attraction to children “specifically post-pubescent girls”. I note the the index offending involved the defendant grooming a person he believed to be a child.

   2. (2)

      In Dr Parker’s view, the defendant ascribed her offending to the implicit theory that children are sexual beings and competent to consent to sex, even though at interview “she appeared to believe the children did not have the competency”. Dr Parker expressed the view that such sexual preferences are “good predictors of future offending” and that there is “considerable doubt as to whether [this] was changeable”. It is true, as submitted by the defendant, the ROS of the District Court of NSW in 2021 as to the index offending stated that at [110], the nature of future sexual activity was “oblique.” However, the sentencing judge also remarked that the defendant had limited remorse and poor prosects of rehabilitation. The defendant’s offending relevantly dates back to 2004 in NSW (earlier in Western Australia) and, therefore, is of a long duration.

   3. (3)

      Whilst the defendant has shown some insight, he has identified the need for help as late as July 2022 in his correspondence at the Parole Board hearing. Accepting that the breach of the Child Register involved some self-reporting, and occurred some time ago, the breach nonetheless raises real doubts as to the defendant’s capacity to self-regulate. As does the defendant’s correspondence regarding the parole hearing in July 2022. The offender was on the Child Register when he committed the index offence.

   4. (4)

      The defendant intends to associate with other offenders, and potentially, sexual offenders. This has a direct connection to the risk of reoffending as Dr Parker explained that the anti-social associations (and the lack of pro-social associations) constitute criminogenic needs for the defendant and are accordingly dynamic risk factors.

   5. (5)

      As earlier discussed, risk assessment tools show the defendant has overall a well above average risk of reoffending.

2. [85]

   Whilst it may be accepted that the defendant has not historically displayed a clear pattern of offending and his offending may tend to have aspects of spontaneity associated with it, I agree with the submission advanced by counsel for the State that scheduling still offers the prospect of arresting or abating the risk of such offending by the establishment of routines, which reduce the opportunity for reoffending, particularly when combined with electronic monitoring. It may be noted, in that respect that, even though somewhat random in nature, the offending was found by Dr Parker to be connected with periods of time when the offender was emotionally low and lacked pro-social support. The schedule and monitoring may well assist in identifying those changed circumstances.

3. [86]

   Further, conditions 4-7 will, in my view, abate, to some degree, the risks associated with the risk profile of the defendant outlined above, by mitigating the risk of the defendant giving effect to his interest in children when he has difficulties in self-regulation, maintains an interest in anti-social associations or influences and represents a well-above average risk of reoffending.

4. [87]

   Electronic monitoring will enhance and facilitate the scheduling arrangements for the defendant as well as acting as a deterrent. Both controls were recommended by the RMR.

5. [88]

   Counsel for the defendant, did not dispute that scheduling and electronic monitoring may have some connection with the identified risk factors, but contended that the connection was somewhat remote and the resultant benefits small. I do not accept that submission on the basis of the above analysis and my findings as to the risk profile. In any event, the Court should give weight, at this stage, to risk avoidance, until the Court has the assistance of expert opinion provided as a consequence of orders made under s 7(4) of the Act: State of NSW v Partington (Preliminary) [2019] NSWSC 732.

6. [89]

   The orders sought by the State to be made for conditions 4-7 should be made.

Condition 24 – Association with Children

1. [90]

   Condition 24 was expressed in the Schedule as follows:

2. [91]

   The defendant sought to add additional paragraphs to the proposed conditions as follows:

3. [92]

   The State opposed the amendment on the basis that the existing condition would permit contact with the defendant’s sons with prior approval. In oral submissions, that contention was amended to reflect a recognition that the core dispute between the parties concerned whether approval should be obtained from the Department of Communities and Justice (“DCJ”) or the DSO or both.

4. [93]

   Accordingly, the State originally considered the proposed amendments to be unnecessary. It was further submitted that it was important that the DSO be consulted because the DSO’s duties extended beyond that of a case worker to assess the risk of reoffending. In that respect, the DSO had specialised knowledge.

5. [94]

   The defendant pressed the amendment on the following terms:

   1. (1)

      The defendant has two sons who are 3 and 5 years old. They are currently in foster care and are in the process of being adopted. The defendant has had some contact with her sons and their case manager while in custody.

   2. (2)

      Precluding contact between the defendant and her sons is not sufficiently connected to the mitigation of the risk of her committing a serious sex offence in circumstances where her offending history and risk scenarios only involve females.

   3. (3)

      Allowing contact between the defendant and her sons with the prior approval of the DCJ encourages her to undertake rehabilitation in accordance with s 3(2) of the Act. She reported to Dr Parker that “her boys are the biggest driver for her rehabilitation”.

   4. (4)

      Any potential risk that could arise from her having contact with her sons would be mitigated by the proposed amendment, which only permits supervised contact as arranged with the prior approval of the DCJ and the Case Manager in DCJ noting the DSO work in the same Departmental area.

6. [95]

   The defendant has two sons who are three and five years old and currently in foster care. The defendant has had some contact with them and their DCJ Case Manager whilst in custody.

7. [96]

   The gravamen of the dispute between the parties as to this condition, was whether any contact with his sons would require notification to the DSO or would be confined to the Case Manager with the DCJ.

8. [97]

   In my view, and subject to the one qualification, the amendment proposed by the defendant should be granted. Although, as noted earlier in this judgment, the offending history of the defendant does not solely concern females, the only offending concerning boys relates to child pornography and this is non-contact offending. Without further considerations as to this point, the conclusion reached in relation to this condition remains unchanged. Further, I accept the submission by the defendant that contact with her sons, subject to the approval of the Case Manager, will encourage her to undertake rehabilitation. As Dr Parker said, the defendant’s sons are the biggest driver for her rehabilitation.

9. [98]

   The Case Manager has a role in protecting the children. Whilst the Case Manager may not have the specialist knowledge of dealing with high-risk offenders, as held by the DSO, the ultimate task of the Case Manager is to protect the children.

10. [99]

    In my view, the amendment proposed by the defendant should be accepted, save for a further amendment that the DSO must be notified of any application for approval by the DCJ.

Condition 29 – Association with others (not children)

1. [100]

   Condition 29 appears in the Schedule in the following form:

2. [101]

   The defendant proposed an alternative condition as follows:

3. [102]

   This amendment was opposed by the State.

4. [103]

   The State maintained that it was appropriate that the defendant be subject to a condition requiring the timely notification of a relationship or friendship with a woman in light of the nature of her offending history. This is because the defendant has a history of offending in the context of developing friendships and relationships with females. Reference was made to:

   1. (1)

      In 2011, the defendant was convicted of committing an act of indecency on a woman with whom he had developed a friendship over a period of time who he invited to his home.

   2. (2)

      The index offending involved the defendant meeting a person he believed to be a female child online and developing a relationship with them which evolved to ‘grooming’.

   3. (3)

      In both cases the defendant’s need for intimate relationships and feelings of loneliness have been linked to the offending illustrated by:

   4. (4)

      The condition as drafted would mean that those supervising the defendant are on notice of relationships that could potentially become problematic in time to manage these effectively.

   5. (5)

      In his RAR, Dr Parker identified risk scenarios for the defendant as involving underage females or vulnerable or incapacitated adult females. The condition as sought is appropriate to mitigate against such a scenario eventuating, including because it would mean that those supervising the defendant would be notified early of any new contact with children.

5. [104]

   In reply the defendant submitted that the proposed amendment provides a degree of flexibility for the defendant in informing her DSO of a new relationship, which is appropriate in circumstances where it may be difficult to clearly pinpoint the commencement of a new relationship. The concept of “friendship” is difficult to define, and vague expressions should be avoided where the provisions could have significant legal consequences. It also removes the requirement to truthfully answer questions about a relationship given that this unnecessarily duplicates condition.

6. [105]

   The dispute between the parties as to this condition essentially revolves around two issues:

   1. (1)

      Whether the condition would be triggered when the defendant commences a “friendship” with a woman or should be confined to circumstances where the defendant has a “close personal relationship” with a woman;

   2. (2)

      Whether the advice to the DSO should occur within 24 hours or one week.

7. [106]

   The State correctly submitted that the defendant has a history of offending in the context of developing relationships or friendships with females. An illustration is when the defendant committed an act of indecency with a woman, with whom he had developed a friendship with and with whom she had not had a sexual relationship. Consideration also needs to be given to the pre-sentencing report which identified that the defendant does not wish to be left alone for any period of time and is never without a partner for very long. In the case of the index offending, the victim was a friendly ear that listened to her problems when she had been lonely and emotionally unsupported.

8. [107]

   I accept the submission of the State that the proposed condition would mean that those supervising the defendant were on notice of relevant relationships that could potentially become problematic in time to manage those issues effectively. However, I agree with the submission of the defendant that the concept of friendship is difficult to define, and that vague expression in the conditions should be avoided where the provisions could have significant legal consequences. I expect that no entirely adequate form of expression may be found to identify the relationship sought to be caught by the condition but, on balance, the risk being guarded against concerns the defendant having a close, personal relationship with a woman whether with or without a child. In those circumstances, the defendant’s proposed alternative condition, in that respect, is appropriate.

9. [108]

   However, the nature of the risk is that such that the defendant’s conduct could be described as opportunistic or unpredictable and, in the circumstances, the sooner the DSO receives notice of the start of a relationship, the more prospect there is of the circumstances being properly managed. In the result, the condition should require notice within 24 hours.

Conditions 54 and 55 – Medical Intervention and treatment

1. [109]

   As it appeared in the Schedule, condition 54 provides:

2. [110]

   The defendant proposed an amendment (which was not accepted by the State) as follows:

3. [111]

   The State proposed a further (alternative) version of the condition as follows:

4. [112]

   The State submitted:

   1. (1)

      The information required by the condition is relevant to her risk of reoffending and rehabilitation.

   2. (2)

      The State’s further alternative confined the condition to that objective, namely, by the words ‘to the extent that it is relevant to her risk of reoffending or rehabilitation’.

   3. (3)

      As per the annexure to the RMR, the defendant will be supervised by an area of Corrective Services New South Wales (“CSNSW”) if an ESO is made and a “number of CSNSW divisions are involved in their management”. The annexure contemplates a high level of interagency involvement in supervision, as follows:

   4. (4)

      It is appropriate that information be shared between those agencies to ensure that supervision is effective. The plaintiff noted that the condition is confined to “those persons and agencies involved in [the defendant’s] supervision” so is not at large in its current terms.

5. [113]

   As the defendant made a global submission as to conditions 54 and 55, I will set out the defendants after dealing with condition 55.

6. [114]

   Condition 55 appeared in the Schedule as follows:

7. [115]

   The defendant proposed an amendment to the condition, as follows:

8. [116]

   The amended condition was opposed by the State. In reply, the State proposed the following amendment:

9. [117]

   The State submitted that the practical effect of confining the disclosure to psychological or psychiatric professionals as sought by the defendant would be that a GP could not receive the information, notwithstanding that a GP may well be closely involved in the defendant’s treatment and may be liaising with psychological or psychiatric professionals or making referrals to them. The rationale for such a distinction is unclear. It was emphasised that the condition is aimed only at disclosure of the defendant’s criminal history, rather than sharing of sensitive health information.

10. [118]

    The State sought to ameliorate any concern for the defendant’s privacy by the amended condition it proposed in reply.

11. [119]

    The State submitted that its formulation appropriately balanced the defendant’s interest in her privacy with the potential need for those involved in her treatment to be apprised of her criminal offending from a risk management perspective.

12. [120]

    The defendant submitted with respect to conditions 54 and 55:

    1. (1)

       The proposed amendments to these conditions by the defendant are to allow for information sharing only between psychological or psychiatric healthcare practitioners and only where the information is relevant to the defendant’s risk of reoffending or rehabilitation.

    2. (2)

       This appropriately balances the defendant’s supervision needs as against her entitlement to have confidential relationships with her healthcare professionals.

13. [121]

    Furthermore, in oral submissions, specifically in relation to condition 55, the defendant submitted that a condition requiring Ms Amson to disclose her criminal history to “any healthcare professionals that are treating her” may expose her to a risk of being treated adversely by healthcare professionals and discourage her from seeking medical assistance due to the embarrassment of disclosing her criminal history.

14. [122]

    The primary objection by the defendant to the ultimate conditions proposed by the State in this respect was that the proposed conditions were too broad and extended beyond the defendant’s risk of reoffending or rehabilitation and intruded into confidential, private relationships with her healthcare professionals. Further, it was argued there was a risk that healthcare professionals may treat her adversely.

15. [123]

    In my view, the alternative conditions proposed by the State as to conditions 54 and 55, which ultimately found their way into the Amended Summons, are appropriate.

16. [124]

    Condition 54 is confined by the words that condition operates only to the extent that it is relevant to the defendant’s risk of reoffending or rehabilitation. The provision properly recognises represents that there will be a high level of interagency involvement and supervision of the defendant. The sharing of, information between the agencies will optimise that supervision.

17. [125]

    As to condition 55, the defendant’s primary position was to limit disclosure to psychological or psychiatric professionals, rather than a GP. It is not entirely clear why access to the information to a GP would create the breach of privacy referred to by the defendant or necessarily create an adverse response from a healthcare professional. The GP may well be involved in the defendant’s psychological treatment or at least liaise with psychiatrists or psychologists and must be expected to deal with the defendant in accordance with professional obligations. The condition is aimed only at disclosure of the defendant’s criminal history, rather than sharing sensitive health information. The sharing of the information is, in my view, consistent with the management of the risk posed by the defendant. In any event, information is only required to be disclosed where the DSO believes it is needed to address community safety or the safety of health practitioners and that discretion will be exercised reasonably.

Conclusion

1. [126]

   In the circumstances, the Court has determined to grant interim and interlocutory relief sought by the State in prayers for relief 1 and 2(a) and (b) of the Amended Summons. With respect to the prayer for relief 2(c) concerning conditions which would operate for the period of the ISO, pursuant s 11 of the Act, the Court has made rulings in this judgment with respect to the areas of dispute in conditions 4-7; 24; 29 and conditions 54 and 55.

2. [127]

   The State shall bring in Short Minutes of Order reflecting this judgment by 4.00pm Wednesday 28 June 2023.

Directions

1. [128]

   The Court directs that the State of New South Wales bring in Short Minutes of Order reflecting this judgment of the Court, no later than 4.00pm, Wednesday 28 June 2023.