State of New South Wales v Dillon (Final)

1. [1]

   HIS HONOUR: By a further amended summons filed in Court on 10 August 2018 (“the application”), the State of New South Wales (“the State”) sought an order that James Gilbert Scott Dillon (“the defendant”) be subject to a further extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the amended summons which is attached to this judgment as “Annexure A”.

BACKGROUND

1. [2]

   Prior to turning to a consideration of the relevant legal principles, it is necessary to set out the relevant background to the application and, in particular, the circumstances of the extended supervision order that expired on 16 August 2018.

The 2014 Final Hearing

1. [3]

   On 25 August 2014, the Court made an order pursuant to s 9(1)(a) of the Act for an extended supervision order in respect of the defendant for a term of three years from that same date (“the 2014 extended supervision order”). The Court further ordered that for the period of the extended supervision order, pursuant to s 11 of the Act, the defendant comply with the conditions set out in the Schedule annexed to the decision: see The State of New South Wales v Dillon [2016] NSWSC 256 (“Dillon No 1”) (It should be noted, Hidden J made orders on 25 August 2014 and published his reasons for decision on 15 March 2016). I will return to the details of the defendant’s past offending momentarily.

2. [4]

   The 2014 extended supervision order expired on 16 August 2018. The expiry date extended beyond 3 years as a result of four separate occasions of the defendant failing to comply with a condition or conditions of the 2014 extended supervision order followed by convictions and periods of time spent in custody with respect to the same (see s 10(1A)( and (2) of the Act). A consideration of these breaches will occur in the context of the parties’ submissions later in this judgment.

3. [5]

   The defendant has been out of custody since 16 February 2018.

The 2018 Preliminary Hearing

1. [6]

   By a summons filed on 28 March 2018 (“the summons”), the State sought the following relief:

2. [7]

   The summons was listed for preliminary hearing before Schmidt J on 28 May 2018. During the course of the hearing, consent orders were put before the Court. By consent, the parties sought:

3. [8]

   In considering the proposed orders, her Honour noted the following concessions by the defendant (State of New South Wales v Dillon [2018] NSWSC 780 (“Dillon No 2”) at [6]):

4. [9]

   Schmidt J delivered judgment that same day and orders were made in terms of the proposed consent orders (see Dillon No 2 at [7]).

The 2018 Final Hearing

1. [10]

   At the final hearing on 10 August 2018 before the Court as presently constituted, the State sought and was granted leave to further amend the amended summons, with respect to particular conditions set out in the Schedule to the amended summons (I will return to this issue within the discussion of conditions later in this judgment).

2. [11]

   An interim supervision order was sought, by consent, on the same conditions contained with the Schedule attached to the further amended summons pursuant to ss 10A and 10C(1) of the Act for a period of 28 days effective from 16 August 2018. The order was made in Chambers on 15 August 2018.

3. [12]

   That interim supervision order was renewed on the same conditions on two occasions pursuant to s 10C(2) of the Act for a period of 28 days from 13 September and 11 October 2018, respectively. Those orders were made in Chambers on 11 September and 8 October 2018, respectively.

4. [13]

   At this juncture I now turn to the offences relevant to the application.

The Offences

1. [14]

   The sexual offences relevant to the grant of the 2014 extended supervision order were set out succinctly by Hidden J in Dillon No 1 at [5]-[9] (“the offences”). I extract his Honour’s summary:

2. [15]

   On 9 October 2003, the defendant was convicted and sentenced in relation to the incidents that occurred on 6 December 2001 and 27 November 2002, respectively. Justice Phelan of Wollongong District Court sentenced the defendant as follows:

   1. (1)

      sexual intercourse with person under 10 years – 3 years imprisonment;

   2. (2)

      detain person with intent to obtain advantage – 6 years imprisonment with a non-parole period of 4 years (cumulative to sequence 1);

   3. (3)

      possession of a prohibited weapon – 2 years imprisonment (concurrent with sequence 2); and

   4. (4)

      common assault – 6 months imprisonment (concurrent with sequence 2).

3. [16]

   Further details as to the defendant’s criminal history and patterns of offending behaviour will considered below as part of the Court’s discretionary considerations under s 9(3).

Objects of the Act

1. [17]

   The primary object of the Act, as stated in s 3(1) is, relevantly for the purposes of these proceedings, “to provide for the extended supervision … of high risk sex offenders … so as to ensure the safety and protection of the community”. Section 3(2) provides that another object of the Act is to encourage such offenders to undertake rehabilitation.

2. [18]

   The word “ensure”, which is referred to in the object of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

Application of the Act

1. [19]

   The State may apply for an extended supervision order against “an offender” pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act.

Legal Principles

1. [20]

   For the purpose of this judgment I will adopt and apply the principles set out in State of New South Wales v TT (Preliminary) [2017] NSWSC 1797(“TT”) at [8]-[66], without repetition, save to the extent to particular passages that might assist in elucidating the resolution of particular issues in the judgement. Neither party raised any objection to the principles in TT being applied in this matter. (See also, State of New South Wales v French (Final) [2017] NSWSC 1475 (“French”) at [43]-[53], which was cited and applied in TT).

2. [21]

   The application satisfies the requirements of s 6 of the Act for the following reasons:

   1. (1)

      It identified that it is an application for an extended supervision order against an offender. Further, the defendant conceded that the application was made within 9 months of the expiration of the 2014 extended supervision order, having been originally brought by the summons filed 28 March 2018 (a date within the last 6 months of the defendant's current supervision), in accordance with s 6(1).

   2. (2)

      It was supported by documentation that addresses the matters in s 9(3) of the Act (s 6(3)(a)); and

   3. (3)

      The accompanying report of, inter alia, Dr Andrew Ellis, forensic psychiatrist, dated 29 July 2018 included a report that assessed the likelihood of the defendant committing a serious offence, (s 6(3)(b)).

3. [22]

   Further, I note the application also indicated, in the Schedule to the further amended summons, the kinds of conditions that are considered appropriate for inclusion under s 11 in the event that the extended supervision order is made (s 6(4) of the Act).

4. [23]

   The State may only apply for an extended supervision order where at the time of the filing of the application the offender is a “supervised offender” for the purposes of s 5I of the Act.

5. [24]

   Section 5I of the Act is extracted below:

6. [25]

   The defendant, in this respect, made the following concessions, albeit by reference to provisions of the Crimes (High Risk Offenders) Act prior to its amendment by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) (“the Amendment Act”)), namely:

   1. (1)

      the defendant is a “sexual offender” as a consequence of his sexual offending against a child in 2001 (for which he was convicted) (as previously defined in s 4 of the Act); and

   2. (2)

      the defendant is a “supervised sexual offender” as a consequence of being subject to the 2014 extended supervision order (as previously defined in s 5I of the Act).

7. [26]

   In light of the above submissions, notwithstanding the defendant’s reference to former provisions of the Act, there was no dispute that the defendant was a “supervised offender” for the purposes of s 5I of the Act. Nevertheless, for completeness, I observe that the requirements for an application under s 5I, in my view, have been met for the following reasons.

8. [27]

   The first element of the definition of a “supervised offender” under s 5I(2)( is that the defendant must be an “offender”. By s 4A of the Act, an offender means a person over 18 years who has at any time been sentenced, inter alia, to imprisonment following his/her conviction for a “serious offence”. For the purposes of these proceedings a “serious offence” is defined in s 4 of the Act as meaning a “serious sex offence”.

9. [28]

   It may also be noted, as observed in TT at [17], the Amendment Act had the effect of incorporating in a single provision the conditions for the making of an application vis-à-vis a supervised offender with respect to what was formerly a “supervised sex offender” and a “supervised violent offender”.

10. [29]

    In the context of these proceedings, the State submitted the defendant had been convicted of a “serious sex offence” (namely, sexual intercourse with a child under 10) and is therefore an “offender” within the meaning of the Act. In 2001, at the time of the offence, the Crimes Act 1900 (NSW) provided for a maximum penalty of 20 years imprisonment for sexual intercourse with a child under 10 (see s 66A). Although no indictment was provided pursuant to s 25 requests, the State submitted, it is reasonable to conclude that s 66A offence was charged when regard is had to the sentencing remarks of Phelan DCJ’s in 2003. It should also be noted “sexual intercourse” includes digital penetration: s 61H(1)(a) of the Crimes Act. For completeness, as to the offence against the 15 year old girl, the State submitted that offence does not appear to meet the requirements of s 5(1)(b) of the Act (noting, in that respect, “sexual gratification” is not a defined offence under Div 10 of the Crimes Act).

11. [30]

    I agree with the above contention of the State.

12. [31]

    Further, as the defendant was subject to the 2014 extended supervision order at the time of the application, the State correctly submitted the defendant was thus a “supervised offender” within the meaning of s 5I(2)(b) the Act and that the requirements for an application under s 5I were satisfied (as required by s 5B).

13. [32]

    Section 5B of the Act empowers the Court to make orders for an extended supervision order. It is extracted below:

14. [33]

    The relevant principles regarding s 5B were dealt with in TT, in the light of the Amendment Act, at [55]-[60] and are extracted in full:

15. [34]

    The judgment then adopted the discussion of relevant principles, with respect to whether the defendant was a “high risk sex offender”, of this Court in French at [40]-[41] as follows:

16. [35]

    Once the discretionary power to make an order has been enlivened pursuant to s 5B, s 9(3) sets out a non-exclusive list of mandatory matters the Court must have regard to when making its determination and in exercising its discretion. This may include the fact that the proposed order will place constraints on the individual's liberty and privacy (Lynn at [48], [131] and [149]).

17. [36]

    Acts of an offender which have been charged but have not resulted in conviction or tested at trial (and acts which have not been charged) may not properly be considered within the terms of "criminal history" within s 9(3)(h). However, evidence of those acts might be relevant when the Court considers the matters identified in s 9(3)(a) (the safety of the community) and s 9(3)(i) insofar as there is any information available concerning the likelihood of the offender committing offences of a serious nature in the future: Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27] and [124] (per Adamson J).

18. [37]

    As to the general principles in the making of the extended supervision orders I also refer to the judgment in French at [43]-[46].

19. [38]

    The principles regarding the making of conditions were also discussed in French at [47]-[53], as follows:

20. [39]

    It may be noted that s 12 of the Act provides that a person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence.

Evidence before the Court

1. [40]

   The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included, inter alia, the following:

   1. (1)

      reports and records produced by Corrective Services NSW (“CSNSW”);

   2. (2)

      two expert reports from court appointed forensic psychiatrists: Dr Samson F Roberts (dated 3 July 2018) and Dr Ellis (dated 29 July 2018); and

   3. (3)

      a Risk Assessment Report (dated 13 November 2017) produced by Mr Samuel Ardasinski, Senior Specialist Psychologist with the Serious Offenders Assessment Unit of CSNSW, which was annexed to his affidavit sworn 30 July 2018.

2. [41]

   The State also relied upon the following evidence by affidavit:

   1. (1)

      Mr Christopher Butler, solicitor for the Crown Solicitor’s Office, affirmed 28 March (with Exhibit CB-1 vol 1 & 2) and 11 May 2018, respectively;

   2. (2)

      Ms Angela Rybak, Senior Electronic Monitoring Officer with the External and Electronic Monitoring Group at CSNSW, sworn 26 July 2018; and

   3. (3)

      Ms Janelle Farroway, High Risk Offender Application and Operational Governance Officer of the Extended Supervision Order Team at CSNSW, affirmed 31 July 2018.

3. [42]

   The defendant relied upon two affidavits, which were admitted into evidence without objection:

   1. (1)

      Mr Andreas Aegler, Alcohol and Drug Transition Worker at the Community Restorative Centre (“the CRC”), affirmed 10 August 2018; and

   2. (2)

      Ms Lara Samway, Transition Worker (caseworker) at the CRC, affirmed 10 August 2018.

4. [43]

   During the course of proceedings, only Dr Ellis, Mr Ardasinski and Ms Farroway were required for cross-examination.

Background Matters

1. [44]

   The defendant is a 50 year old man who was born on 9 February 1968.

2. [45]

   He has five adult children, aged between 24 and some point in their 30s, from three different mothers. He is not in contact with any of them. He currently lives in a boarding house in Croydon with seven other residents, five men and two women. He has been living there the past six months and prior to that spent two weeks at the Community Offender Support Program (“COSP”) CSNSW hostel. He has an exemption from job searching as he was awaiting an operation for gallstones and a hernia (the defendant’s status, in that respect, appeared unchanged at the time of the final hearing). He takes salbutamol (asthma medication) on an as needed basis.

3. [46]

   He is subject to a GPS monitor, a weekly schedule, drug testing and attends a weekly CSNSW psychology group. He attends Alcoholics Anonymous five nights every week and has a sponsor. He sees two professional drug and alcohol workers from the Exodus Foundation and the CRC.

Criminal Offending

1. [47]

   The defendant’s criminal history consists of an extensive history of non-sexual criminality, with multiple convictions for property theft, motor vehicle offences, interpersonal violence, escape custody, armed robbery and other offences dating back to when he was 13 years old. Details of the defendant's criminal history are recorded in the following documents:

   1. (1)

      Criminal History - Bail Report document;

   2. (2)

      Inmate Profile document; and

   3. (3)

      Conviction, Sentences and Appeals document.

2. [48]

   The defendant’s only sexual offence convictions relate to the offences which occurred in 2001 and 2002 against two female children aged 6 and 15, respectively (as discussed above). He has not committed any further sexual offending.(.

3. [49]

   In support of the application, the State also relied upon evidence of two offences dating back to 1990 and 1996, respectively, that did not result in a conviction or were otherwise “not proven”.

4. [50]

   The circumstances of the alleged offences were as follows:

   1. (1)

      In 1990, the defendant was charged with one count of indecent assault of a female under 16 years. The allegation involved the touching of his 10 year old niece on the chest and groin on the outside of her clothing. He denied the allegation in a police interview. The defendant was later found not guilty by verdict at Wollongong District Court on 25 October 1991.

   2. (2)

      On 27 October 1996, the defendant was charged with one count of aggravated indecent assault and one count of assault. The allegation was that the defendant had approached a 17 year old girl on a street with a knife and threatened to cut her head if she did not comply. He was alleged to have made her take him to her home, where he rubbed his clothed groin against her similarly clothed groin before she managed to escape. However, the charges were dismissed on 23 April 1997.

5. [51]

   The State relied on its preliminary written submissions with respect to the relevance of the two “not proven offences”:

6. [52]

   Mr Ardasinski also observed that both “charges” (in 1990 and 1996, respectively) were “seen to be of some significance during his previous [risk] assessments” by Mr Patrick Sheehan, Senior Specialist Psychologist, in reports dated 19 August 2011 and 5 December 2013, respectively (both reports were included within Exhibit CB-1 to the affidavit of Mr Butler).

7. [53]

   The Court is not in a position to make a finding of fact in relation to the unproven allegations against the defendant. That evidence may only establish two allegations of indecent assault were made, with respect to two young females aged between 16 and 17, and to that end, it is limited to the defendant’s risk of re-offending. This will also be relevant to the application of the paramount consideration in s 9(2) of the Act. Thus, the evidence with respect to the “unproven charges” is applicable to the assessment in that limited respect and for the purposes of making the evaluative judgment. As this Court observed in French at [72]:

Parole

1. [54]

   The defendant was released to parole on 18 February 2011 (to expire in 27 November 2011) and was subsequently placed on a Child Protection Prohibition Order (“CPPO”) on 20 December 2011 (discussed below).

2. [55]

   On 23 May 2011, Ms Hollie Foster, Compliance and Monitoring Officer, produced a report to the State Parole Authority following an alleged breach of parole. Reference was made to urinalysis results which provided, inter alia, a positive outcome for cannabis. Ms Foster recommended that “a formal warning be given to the offender due to a negative result in his recent urinalysis, and his attendance to an alcohol and drug counselor [sic] to address his drug related issues”.

3. [56]

   On 2 June 2011, the defendant received a formal warning reminding him of his obligations towards his parole (particularly that regarding drug use).

4. [57]

   On 17 July 2011, Ms Ziggy Abedine, A/Senior Compliance and Monitoring Officer, produced a report to the Commissioner of Corrective Services following another alleged breach of parole (again, in relation to cannabis use). Ms Abedine recommended:

5. [58]

   The defendant’s parole was suspended on 17 July 2011. The Parole Authority officially revoked his parole on 28 July 2011, citing breach of conditions 3 and 16, namely, “adapt to normal lawful community life” and “the offender must not use, or be in possession of, a prohibited drug or substance”. He returned to custody.

6. [59]

   In a subsequent Risk Assessment Report dated 19 August 2011, Mr Sheehan gave a synopsis of the defendant’s parole performance. He opined:

7. [60]

   Following subsequent convictions and a further period of custody, the defendant was subsequently released on parole on 8 August 2013. He was found to be intoxicated in his COSP accommodation (in breach of his parole) and was charged on 7 October 2013 with consequential assault and resist police and intimidate offences (arising from the physical resistance he displayed when arrested and from a threat made towards a staff member of the COSP). It may be noted, the day following his arrest, the defendant told a Dr Madiha Cheema that he had become aggressive with police so that they would shoot him, and that he had had ongoing suicidal thoughts for six months.

8. [61]

   These offences resulted in a further period in custody commencing 6 October 2013 and concluding 5 February 2014, with a parole period of 6 months concluding 5 August 2014.

2011 Child Protection Prohibition Order

1. [62]

   As mentioned earlier, on 20 December 2011, the defendant was made subject to a CPPO. The order stipulated, inter alia, that the defendant was restricted from unsupervised contact with persons aged under 18 years. The defendant breached the CPPO on several occasions.

2. [63]

   A further charge of “threaten person with intent to influence witness” resulted in a partially cumulative sentence of 14 months imprisonment concluding 8 March 2013. This charge involved a letter sent to a witness threatening payback against her and two girls if he received a gaol sentence “because of them” (see summary of facts below, in particular, [64(4)]). The defendant was subsequently released to parole on 8 August 2013.

3. [64]

   The facts of the contraventions were summarised by the State as follows:

   1. (1)

      In March 2012, the defendant had let a young woman and her 3 year old male child share his bedsit. He was found at home with the child by attending police. He told police that the day police had arrived was the first time he had been left alone with the child and that he had not told the woman about the CPPO;

   2. (2)

      On 8 May 2012, the defendant was seen in the company of a 15 year old boy for about 30 minutes in the Cabramatta CBD, including near the TimeZone Arcade (a place where children congregate to play video and other games). This gave rise to the offences of contravene order and loiter in a public place;

   3. (3)

      On 30 May 2012, the defendant was again seen in public in the company of the 15 year old for about 30 minutes; and

   4. (4)

      In May 2012, the defendant began associating with two 14 year old girls, including let them stay overnight at his home on three occasions. A separate charge of assault for slapping the bottom of one of the girls was also dealt with on sentence.

4. [65]

   The following summary is extracted from the Risk Assessment Report of Mr Ardasinski:

5. [66]

   In summary, the defendant was charged in March and June 2012 with four contraventions of the CPPO, along with a charge of convicted sex offender loiter near public place. He was sentenced on 28 August 2012 to partly cumulative terms of imprisonment commencing 8 June 2012 and ending 8 January 2013, with a further parole period of 9 months ending 8 October 2013.

2014 Extended Supervision Order

1. [67]

   As mentioned earlier, the defendant failed to comply with the conditions of the 2014 extended supervision order on four occasions. A summary of each occasion follows:

   1. (1)

      On 24 February 2015, the defendant was charged with three breaches under s 12 of the Act (fail to comply with a requirement of the 2014 extended supervision order), which each related to detection of cannabis by way of testing. He was sentenced to periods of 75 and 100 hours community service orders at Central Local Court on 8 April 2015. A call-up on 15 June 2016 extended the period to complete the community service orders by a further four months.

   2. (2)

      On 3 June 2015, the defendant tested positive for cannabis metabolite. He was charged with a further breach pursuant s 12 of the Act, it being a condition of the 2014 extended supervision order that he must not possess or consume illicit drugs. He was subsequently convicted and sentenced to 60 hours community service order at Burwood Local Court on 6 August 2015.

   3. (3)

      On 17 November 2015, the defendant was charged with two further s 12 breaches, this time for deviating from his approved schedule of movements two days earlier and associating with a person convicted of a serious sex offence. On 11 January 2016, at Burwood Local Court, the defendant was sentenced for these offences to a fixed term of 4 months imprisonment, commencing from 17 November 2015, when he was bail refused.

   4. (4)

      The defendant was released to the community on 16 March 2016. On 9 August 2017 a saliva sample tested positive to methylamphetamine and cannabis. He was charged with a s 12 breach. The same date he was found in possession of R18+ restricted material contrary to a condition of the 2014 extended supervision order and he was charged with a second s 12 breach. He was also charged with possession of equipment for the administration of cannabis, namely a bong and bowl with residual green vegetable matter. The defendant was convicted on 5 October 2017 of these offences and sentenced to 6 months imprisonment. He was released from custody on 16 February 2018.

2. [68]

   On 25 July 2017, an extended supervision order completion report was prepared for the Attorney-General pursuant to s 13(2) of the Act. In that report Ms Amanda Carden, Community Corrections Officer of CSNSW, spoke to those breaches and provided an opinion as to the defendant’s response to the 2014 extended supervision order (at that time)

Behaviour in Custody

1. [69]

   The following summary is drawn from the pre-release report dated 22 September 2010 of Ms Susan Ayres, A/ Unit Leader at the Long Bay Parole Unit:

2. [70]

   An incident report was also produced by CSNSW dated 24 February 2015 relating to “self harm”. In summary, it was noted that the defendant had “indicated he had self harmed in the past by cutting his wrist”, he was experiencing depression and as a result of being bail refused stated he was going to “finish his life”. In response to that information the defendant was “placed on ISP for the purposes of management”.

3. [71]

   In the extended supervision report to the Attorney-General dated 13 March 2017, Ms Carden observed the following with respect to the defendant’s behaviour in custody:

Reports of Court Appointed Experts

1. [72]

   The defendant was examined by Dr Ellis on 15 May 2018 for a period of two hours. Dr Ellis issued a report dated 29 July 2018.

2. [73]

   Dr Ellis opined that the defendant met the criteria for a paraphilic disorder, fetishism, transvestic fetishism, personality disorder and substance use disorder. He further suggested the possibilities of paedophilia and sexual sadism. He noted that the defendant denied attraction to children and sexual arousal to pain, fear or humiliation. However, he opined: “[i]t is common that persons with paraphilic arousal deny the arousal, or can be less consciously aware of it as motivating their behaviour. Paraphilias are chronic relapsing conditions”.

3. [74]

   Dr Ellis formed the view that clinical considerations regarding risk included deviant sexual arousal or paraphilia, personality disorder, substance use disorder and treatment setting. In particular, deviant sexual arousal was consistently identified as the most prominent risk factor for sexual re-offence. In this same context, Dr Ellis opined:

4. [75]

   During the final hearing, Dr Ellis expanded upon that opinion:

5. [76]

   Further, as to “treatment setting”, during cross-examination, Dr Ellis referred to the benefits of “pro-social relationships”, which are “[r]elationships with people who are not professionals but have a pro-social routine and lifestyle is also a protective factor”. As to the difficulties in the context of an extended supervision order, he opined:

6. [77]

   Dr Ellis reported that antisocial personality orientation was another factor consistently identified with sexual re-offence, as was substance use disorder. In respect of the defendant’s diagnoses of antisocial and borderline personality disorder, Dr Ellis opined:

7. [78]

   In relation to the defendant’s diagnosis of substance use, Dr Ellis opined it is “modestly correlated with sexual offending and may serve to disinhibit underlying sexual arousal towards objectification, violence and humiliation”.

8. [79]

   Dr Ellis also had regard to the defendant’s participation in a group sex offender treatment program in custody. He opined:

9. [80]

   Specifically, in terms of risk assessment, Dr Ellis made the following observation:

10. [81]

    Overall, in light of the above assessment, Dr Ellis considered “in the absence of any treatment or supervision, [the defendant], would fall into a group of persons with a risk for sexual offending that is statistically high in frequency, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce the risk”.

11. [82]

    Dr Ellis reviewed the proposed community treatment plan contained in the Risk Management Report. He opined:

12. [83]

    The defendant was examined by Dr Roberts on 15 June 2018 at the rooms of MedicoLegal Psychiatry in Sydney. He produced a report dated 3 July 2018. Dr Roberts had previously prepared a report in relation to the defendant dated 10 July 2014, following an assessment of the defendant on 16 June 2014.

13. [84]

    Notwithstanding the receipt of a further history from the defendant and additional documents reviewed in preparation for his most recent report, Dr Roberts affirmed the diagnosis reached on 10 July 2014:

14. [85]

    As to the defendant’s involvement and progress with therapy and counselling within the community, Dr Roberts opined:

15. [86]

    In relation to the issue of risk, Dr Roberts opined:

16. [87]

    Dr Roberts observed that the defendant’s “risk of committing a further serious sex offence is moderated by the supervision… but remains high in particular in the context of a diminished degree of vigilance with respect of [the defendant’s] participation in therapy, the support groups which he attends and the supervision under which he remains. Relapse to substance use would be expected to confer a significant escalation in his risk”.

17. [88]

    Dr Roberts also identified substance use as “the most prominent risk factor for re-offending” in the case of the defendant. He opined that a CPPO “is unlikely to mitigate his risk [in that respect]”. However, he noted a CPPO “[does] reduce the likelihood that he will place himself in [a] circumstance in which he might be tempted to indulge in fantasies or engage in relationships with young people”.

18. [89]

    As to ongoing treatment, Dr Roberts opined, “the most appropriate approach is that [the defendant] continue with the therapy in which he is currently engaged and with his attendance at Alcoholics Anonymous and SMART Recovery for an indefinite period”.

19. [90]

    Dr Roberts did not observe “anti-libidinal medication” to be beneficial in the case of the defendant. He stated:

20. [91]

    Dr Roberts was not required for cross-examination.

Psychologist Assessment by Registered Psychologist

1. [92]

   On 13 November 2017, Mr Ardasinski prepared a Risk Assessment Report in relation to the defendant pursuant to s 6(3)(b) of the Act.

2. [93]

   Mr Ardasinski interviewed the defendant for two hours on 30 October 2017 at the Metropolitan Remand & Reception Centre (“MRRC”) to discuss with him the potential for a further application by the Attorney-General for an extended supervision order under the Act.

3. [94]

   In preparation for the report Mr Ardasinski also reviewed cases notes contained in the Offender Integrated Management System (“OIMS”). He also reviewed the reports of Drs Ellis and Roberts and stated that he “concur[red] with their opinions”. (He observed the main point of difference between the two reports “related to the recommendation for anti-libidinal medication assessment and treatment”. Mr Ardasinski also noted that he is not a medical practitioner and that it is out of his area of expertise to comment on any impact of medications on recidivism of risk).

4. [95]

   The defendant’s performance under community supervision was summarised comprehensively by Ms Therese Britton in her Psychological Report dated 24 June 2017. That summary was adopted by Mr Ardasinski and is extracted below:

5. [96]

   In light of the above summary, Mr Ardasinski observed that the defendant’s “participation in the supervision process lends weight to the notion that he has started on a trajectory of desistance from crime”. However, he also noted, “there is still evidence that [the defendant’s] judgement is compromised in relation to his choices to use and abuse illicit substances, and to engage in poor coping responses at times of distress”.

6. [97]

   Mr Ardasinski made the following observations:

   1. (1)

      As the defendant has not committed any further serious, or other, sexual offences since being made the subject of the 2014 extended supervision order, “consideration must be given to the extent to which the conditions of his ESO have contained the risk of his committing new sexual offences, and whether [the defendant] has developed the capacity to manage his own risk of sexual reoffence”.

   2. (2)

      As to the defendant’s compliance with conditions, “it was noted by his supervising officers that he has never progressed through his stages of electronic monitoring ("EM") from Stage 1, the first stage [original emphasis]. The staged progression process allows for compliance and positive reintegration efforts to be rewarded, but also allows for more intensive monitoring at times when it is identified that risk is heightened for an individual. [The defendant] reports in interview that it was his experience on an ESO that being supervised did not impede him from engaging in a full and relatively autonomous existence in the community provided his risks were well-managed. More years on an ESO would allow for this staged reduction in EM for Mr Dillon, giving him the best possible chance of success”.

   3. (3)

      As to the CPPO, “[i]t may be considered that [the defendant] has, by now, progressed far enough along his desistance trajectory to be able to exist in the community under a less-stringent supervision regime such as that entailed by a CPPO. This could limit his access to children and limit his abilities to seek out children, however it may not have sufficient monitoring capability to restrict [the defendant’s] capacity to return to drug use impulsively. It is also conceivable that a CPPO may serve to follow on from any further ESO to assuage ongoing fears about a return spiral into drug use and criminality”.

   4. (4)

      At the time of the application for the 2014 extended supervision order, which was for a period of three years, the court-appointed experts in the matter suggested that any “management program” should be “at least 5 years duration (and monitored regularly dependent on the defendant's progress... The doctors' approval of an order for 5 years is, of course, a therapeutic assessment” (see Dillon No 1). The arguments for a longer extended supervision order “centred on the chronic nature of [the defendant’s] diagnosed personality disorders”.

7. [98]

   Mr Ardasinski applied two actuarial assessments in order to predict the risk of the defendant engaging in further sex offending behaviours in the community in the long term, namely, Static Risk Factors (STATIC-2002R) and Dynamic Risk Factors: STABLE-2007. The results of each assessment are discussed in turn below.

8. [99]

   The STATIC-2002R is an empirical actuarial risk assessment tool for adult male individuals convicted of sexual offences. The scale has 14 items grouped into 5 main subscales: age at release, persistence of sex offending, sexual deviance, relationship to victims and general criminality. The total score for STATIC-2002R can range from -2 to 13. The STATIC-2002R also has moderate predictive accuracy in ranking offenders according to their relative risk for sexual recidivism.

9. [100]

   The defendant’s score on the STATIC-2002R was 7, which placed him in the "Moderate-High" risk range. This aligns with his LSI-R risk category. Mr Ardasinski noted:

   1. (1)

      the rates of sexual recidivism for sexual offenders within the STATIC-2002R “routine” normative samples who had the same total score as the defendant were between 22.6 and 29.8 per cent over five years;

   2. (2)

      another normative sample, pre-selected for its high risk/needs, saw individuals who had the same total score as the defendant re-offending at a rate of between 21.9 and 32.3 per cent over five years; and

   3. (3)

      91.9 per cent of sexual offenders in the routine sample would score below the defendant’s STATIC-2002R score.

10. [101]

    Mr Ardasinski observed, “[t]he rate of recidivism for individuals with a STATIC-2002R score of 7 is estimated to be about three-and-a-half times higher than that of the “typical” sex offender.

11. [102]

    Mr Ardasinski also accepted the limitation of “instruments such as the STATIC-99R or STATIC-2002R”. He said:

12. [103]

    The STABLE-2007 is a tool developed to assist clinicians in identifying stable dynamic risk factors. Several reliable dynamic factors have been consistently found to be related to sexual re-offending. These factors are intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation.

13. [104]

    The STABLE-2007 consists of 13 items related to psychological, interpersonal and sexual functioning, which are added together to create a total score. These stable risk factors are persistent characteristics that remain relatively stable over time, but are amenable to change through effortful intervention, such as treatment and supervision. These factors are specifically addressed within the treatment program structure within CSNSW Sex Offender Programs.

14. [105]

    Mr Ardasinski recorded a risk rating of “moderate” to be “consistent with [the defendant’s] current predicament and time offence free”. He further observed:

15. [106]

    Mr Ardasinski reported that the STATIC-2002R can be combined with the STABLE-2007 to generate a “composite assessment of risk/needs”. The combination of both scores, in the case of the defendant, placed him in “Level IVb”. Mr Ardasinski opined “[i]n accordance with CSNSW policy, this combined assessment of risk/needs level would suggest [the defendant] still requires a High level of intervention and/or supervision, according to the principles of Risk/Needs/Responsivity” (original emphasis).

16. [107]

    Mr Ardasinski identified the following “dynamic factors” as relevant, or potentially relevant, when considering the defendant’s risk of sexual re-offending:

    1. (1)

       Personality disorders (borderline and antisocial), with chronic course and limited current insight into attachment issues;

    2. (2)

       Emotional identification with young people (children), a need to belong and feel respected and “in charge”;

    3. (3)

       Deviant sexual interest, sexual preoccupation at times of distress and use of sex as coping; and

    4. (4)

       Substance abuse, specifically alcohol use and methamphetamine abuse.

17. [108]

    As to those factors, Mr Ardasinski provided a comprehensive review in relation to the defendant. Some of his observations included:

    1. (1)

       “[The defendant] appears to have made some progress over the course of his ESO into developing better coping strategies and building relationships, but he lacks awareness of how the problematic behaviours he engages in have their basis in his diagnosed personality disorder and the chronic course that such disorders take. Therefore, if [the defendant] experiences rejection or abandonment, or is otherwise unable to regulate his emotional distress, he lacks the skills to confront such challenges in the future without avoiding the problem or seeking help from others.”

    2. (2)

       The defendant has previously acknowledged, during a previous assessment, that he sought out the company of younger people at times in order to feel important and “in charge”. Mr Ardasinski noted “this is the most salient factor for potentially bringing him into contact with a potential child victim in the future”. The three breaches of his CPPO were each “due to his wanting to connect and feel 'in control' of his social interactions”. Further, “[that] factor also relates to his chronic 'anger issues' and his lapse into drug use, when it could be seen that in a desire to belong, [the defendant] impulsively partook in drug use without considering the likely negative consequences, given the strict nature of his ESO”.

    3. (3)

       “While he denied any ongoing sexual identity issues, stating that he is proudly 'out' as gay, it remains likely that the combination of [the defendant’s] interpersonal relationship skills deficits will combine with this newly discovered sexuality and may have unfortunate outcomes, such as increased loneliness and sexual frustration, which if combined with drug use and the presence of a potential vulnerable person, could trigger a new sexual offence”.

    4. (4)

       The defendant “appreciates that he will need long-term assistance to remain abstinent from the substances which have brought him into contact with the criminal justice system for the majority of his adult life”.

18. [109]

    Mr Ardasinski concluded:

19. [110]

    Mr Ardasinski was cross-examined with respect to his assessment. As to his earlier opinion that the defendant “has by now progressed far enough along his desistance trajectory to be able to exist in the community under a less stringent supervision regime such as that entailed by a CPPO”, Mr Ardasinski expanded upon his initial opinion:

20. [111]

    That opinion was expanded upon in re-examination by the State:

21. [112]

    Mr Ardasinski also opined, during cross-examination, if the Court were minded to impose an extended supervision order, “I would envisage [it]… to have less conditions and more liberties mandated by the Court such that he is able to progress to a pro-social existence without any external constraints at all”.

Other Reports by Psychiatrists and Psychologists

1. [113]

   Over the years the defendant was assessed by a number of health professionals, particularly with respect to his risk to the community and response to supervision. In addition to the earlier referred to reports of Drs Ellis and Roberts and Mr Ardasinski, the following reports were before the Court as an annexure to the affidavit of Mr Butler dated 28 March 2018:

   1. (1)

      Psychological pre-sentence report, dated 25 September 2003;

   2. (2)

      Psychological report of Nick Marcon, GEO Group, dated 18 July 2005;

   3. (3)

      Risk assessment report of Mr Sheehan, dated 19 August 2011;

   4. (4)

      Report of Dr Cheema, dated 8 October 2013;

   5. (5)

      Psychiatric Report of Dr David Greenberg, dated 18 November 2013;

   6. (6)

      Risk assessment report of Mr Sheehan, dated 5 December 2013;

   7. (7)

      Expert report of Dr Roberts, dated 10 July 2014; and

   8. (8)

      Expert report of Dr Jeremy O’Dea, dated 1 August 2014.

Response from CSNSW as to Management in the Community

1. [114]

   On 15 December 2017, Ms Carden, prepared a Risk Management Report pursuant to s ((9(3)(d1) of the Act that was endorsed by Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer (“the Risk Management Report”). Ms Carden is also the defendant’s current Departmental Supervising Officer (“DSO”) (a role that would likely continue, as deposed by Ms Farroway, if the Court were minded to make a further extended supervision order).

2. [115]

   The Risk Management report provided a summary of the defendant’s previous management by Community Corrections at CSNSW whilst on release to parole. Part of that report is extracted as follows:

3. [116]

   The report also set out in detail the nature and circumstances surrounding each of the defendant’s breaches of the 2014 extended supervision order, which I have earlier noted.

4. [117]

   In terms of potential community support on release the Risk Management Report recorded:

5. [118]

   The risk management plan outlined in the Risk Management Report was informed by, inter alia, the risk factors identified by Mr Sheehan, Ms Britton and Mr Ardasinski (each of whom produced a risk assessment report on 5 December 2013, 24 July 2017 and 13 November 2017, respectively); an earlier risk management report dated 24 February by Ms Vicki McCarthy; the remarks on sentence, police facts and criminal history; CSNSW records and interviews with the defendant.

6. [119]

   In light of that material, the Risk Management Report set out a risk management plan for the defendant. It addressed the details and limitations with respect to the following suggested management strategies:

   1. (1)

      interviews with the defendant;

   2. (2)

      field visits;

   3. (3)

      third party contacts;

   4. (4)

      monitoring, schedules and curfews;

   5. (5)

      referral to CSNSW psychological services;

   6. (6)

      referral to psychiatric services;

   7. (7)

      referral to alcohol and other drug services;

   8. (8)

      alcohol and other drug testing;

   9. (9)

      contact with children under 18 years of age; and

   10. (10)

       non-association and place restrictions.

7. [120]

   Each management strategy sought to manage and/or monitor four risks associated with the defendant, namely, personality disorders (borderline and antisocial), with chronic course and limited current insight into attachment issues; emotional identification with young people (children), a need to belong and feel respected and in charge; deviant sexual interest, sexual preoccupation at times of distress and use of sex as coping; and substance abuse, specifically alcohol use and methamphetamine use.

8. [121]

   It was further recommended that, following implementation, the risk management plan be subject to review every two months and updated as necessary to reflect any significant changes to the defendant’s circumstances.

Treatment and Rehabilitation Programs

1. [122]

   The defendant participated in the Custody-Based Intensive Treatment program (“the CUBIT program”) and completed it between 15 July 2009 and 6 September 2010. The CUBIT program provides custody-based residential therapy for men who have sexually abused adults and/or children. It balances risk management with a strengths based approach to treatment for individuals with moderate to high risk and/or needs. It is facilitated in an open group format.

2. [123]

   The defendant’s involvement in the CUBIT program was suspended on 7 December 2009 following allegations of a sexual assault against another inmate. The allegations were investigated by NSW Police and a decision was made by the police not to proceed with legal action in relation to the allegations. The defendant returned to the CUBIT program on 9 May 2010 and, as noted above, completed it on 6 September 2010.

3. [124]

   At the completion of the program, a Treatment Report was produced by Mr Michael McElhone, Specialist Psychologist (and supported by Ms Kristy Murphy, Therapeutic Manager) dated 15 September 2010 (“the CUBIT report”). In addition to the defendant’s participation within the CUBIT community, Mr McElhone reviewed, inter alia, the defendant’s bail report, psychology file, pre-sentence reports, parole reports and the sentencing remarks of Judge Phelan.

4. [125]

   Mr McElhone described the defendant’s participation as “positive” and noted:

5. [126]

   As to the defendant’s understanding of offending behaviour, as well as his current and future behaviour, Mr McElhone observed:

6. [127]

   Mr McElhone identified five dynamic risk factors with respect to the defendant: social influences, intimacy deficits, general self-regulation, sexual self-regulation and cooperation with supervision. Those factors are related to sexual recidivism and are amenable to change

7. [128]

   As to the defendant’s general and sexual self-regulation, he opined:

8. [129]

   Turning to cooperation with supervision, Mr McElhone observed, despite previous breaches and/or revocation of parole orders, “[w]hile in CUBIT, [the defendant] participated in a positive manner in the treatment process. His involvement in treatment suggested that he recognised the importance of his specific risk factors and that he was committed to managing them in an effective manner”.

9. [130]

   Mr McElhone concluded his report with the following observations and recommendation:

10. [131]

    While in the CUBIT program, the defendant also completed the Getting Smart program. The Getting SMART program is offered to those in CUBIT who identify “addictive behaviours” as an area of treatment need. The programme is “aimed at helping offenders for whom addiction has been a contributing factor to their offending, gain independence from their addictive behaviours (substances or activities)”. The program addresses four key treatment areas: enhancing and maintaining motivation to abstain; coping with urges; managing thoughts, feelings and behaviours; and, achieving a lifestyle balance.

11. [132]

    In the defendant’s Probation and Parole Service Pre-Release Report dated 22 September 2010, it was reported that “[n]otably, he reported to have found the program beneficial and stated he had retained his course materials to assist him in the community”.

12. [133]

    Dr Roberts reported that the defendant currently attends SMART Recovery groups “every Monday at a private hospital on Liverpool Road in Ashfield”. He reported that “[the defendant] stated that he enjoys attending. He feels that he can talk about how he is progressing and he also gets to listen to other members and give them support”.

13. [134]

    The defendant previously participated in the Community Maintenance program following the completion of the CUBIT program and his release to parole on 17 May 2011. He attended eight sessions before his parole was suspended on 17 July 2011 (as earlier mentioned). The progress notes taken by the psychologist, Mr Craig Baird, reflect positively on the defendant’s participation in the group sessions. The defendant was observed to disclose personal information and contribute well to group discussion, including being open to feedback from others.

14. [135]

    As to the defendant’s response to supervision at that time, Ms Abedine reported:

15. [136]

    Since the 2014 extended supervision order, the defendant has re-engaged with psychological “Maintenance” sessions at Forensic Psychology Service (“FPS”).

16. [137]

    Dr Ellis reported:

17. [138]

    Dr Ellis was cross-examined with respect to the defendant’s attitude towards the group therapy offered by FPS. He gave the following evidence:

18. [139]

    The defendant has engaged with Alcoholics Anonymous, as well as other counselling to manage his risk factors of alcohol and other drug use.

19. [140]

    He commenced participation in Alcoholics Anonymous following his release in 2014. Dr Roberts reported that, whilst the defendant was not as active initially upon his release, his participation increased in 2015 and documents from 2016 support the defendant’s assertion that he attends on a weekly basis. The defendant described his participation in Alcoholics Anonymous as “the best thing [he] could have done”. He has become the secretary of the Summer Hill Wednesday night meeting. He helps at the Tuesday, Thursday and Friday night meetings.

20. [141]

    In addition, he sees two professional drug and alcohol workers from the Exodus Foundation and the CRC. CRC aims to change lives positively by supporting people affected by the criminal justice system. CRC’s primary goal is to improve clients’ quality of life by providing practical and emotional support through case management and counselling, which can reduce recidivism. Mr Aegler deposed that the defendant’s participation in treatment “is purely voluntary”. He opined that “[the defendant] engaged very well in counselling and attends our weekly appointments. So far he has appeared to be open, honest, motivated and willing to discuss difficult issues”.

21. [142]

    Mr Aegler also deposed that the defendant was seeing another counsellor through the Exodus Foundation “to work on anger management, primarily due to the possibility of anger arising from discussing his traumatic childhood. He appears to be motivated and optimistic of his future, and thus far, has given me no reasons to doubt his drive”. He expects to continue to work with the defendant and “to meet each week for the foreseeable future”.

22. [143]

    Dr Roberts noted, as to the defendant’s participation in counselling at the CRC, the defendant “stated that he has developed a positive bond with [Mr Aegler], the AOD worker from CRC”.

23. [144]

    Ms Samway, a caseworker at the CRC, also meets with the defendant. She provides the defendant case management services with respect to “accommodation and other support services”. She described his approach to participation as “pro-active in making appointments ahead of schedule and following up on tasks. He has never missed an appointment”. In her affidavit, Ms Samway also deposed: “I assisted him in finding accommodation at the boarding house where he currently resides. I have also provided support in his priority housing assessment with [the] Department of Housing”.

24. [145]

    Dr Roberts reported that the defendant has developed a support network with the participants at Alcoholic Anonymous and through counsellors and officers he met through the CRC.

25. [146]

    Dr Roberts also reported:

26. [147]

    During cross-examination, Dr Ellis agreed that the defendant was “positive about his counselling” with the Exodus Foundation and the CRC.

The State

1. [148]

   The State made the following submissions:

   1. (1)

      The Court could reasonably conclude that the defendant's ongoing supervision under the extended supervision order, including being required to be abstinent from substance use and to participate in counselling and therapy, along with monitoring, has significantly mitigated his risk of committing a further serious offence. The plaintiff submits that appropriate weight should be given to Dr Ellis' suggestion that incarceration and supervision since the last serious sex offence may explain why the defendant has not offended with a serious sex offence since 2002.

   2. (2)

      Having regard to (i) the nature of the overall offending history; (ii) the lengthy (including recent) history of substance abuse apparently connected with previous sexual offending; (iii) assessment of being at moderate-high risk of sexual re-offending (Ardasinski) and high risk (Drs Roberts and Ellis); (iv) recommended ongoing need for intensive supervision by all experts, and (v) the risk factors identified in Mr Ardasinski's Risk Assessment Report and the expert reports from 2018, the plaintiff submits that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

   3. (3)

      In that last respect, the assessed risk, when balanced against the likely serious results if offending in the nature of a serious (sexual) offence were to occur, ought be regarded as unacceptable.

   4. (4)

      Based on Mr Ardasinski's Risk Assessment Report recommendation and the concurring views of Drs Roberts and Ellis, a further extended supervision order of 3 years duration would be appropriate to address the long-term risk, both from a legal and from a clinical perspective (including the chronic or enduring nature of the defendant's disorders), applying the conditions sought.

   5. (5)

      In the light of the reports of Drs Ellis and Roberts, whilst the defendant has shown some insight into his substance abuse and need for treatment, “he continues to show little insight into his need to address his sexual offending and paraphilic tendencies through psychological engagement”.

   6. (6)

      Both Drs Ellis and Roberts recognised substance abuse via drugs and alcohol as a current risk, with Dr Roberts identifying it as the defendant’s “most prominent” risk factor.

   7. (7)

      Dr Roberts noted that the risk of committing a further serious offence remains high in the context of any diminished vigilance of the participation in therapy and support groups or of supervision, whilst Dr Ellis specifically identified poor or partial co-operation with treatment and rehabilitation in relation to sexual deviance as an ongoing issue.

2. [149]

   The State acknowledged that he defendant had not committed a serious sex offence for over 15 years. However, it was submitted, that consideration should be given to the large part of that time the defendant spent in custody, in particular, up until February 2011. Further periods in custody, since that date, and the intensity of subsequent supervision, it was submitted, were also likely to have “significantly” contributed to mitigation of risk. This was supported with reference to the opinion of Dr Ellis.

3. [150]

   Further, notwithstanding the “positive steps towards alcohol and other drug rehabilitation” taken by the defendant, during oral submissions it was contended such “progress” must be considered “in the context of 30 or 40 years of drug use”. The State accepted that the efforts of the defendant are addressing the risk but emphasised that it does not “complete the picture” in terms of addressing risk. It was contended that the progress of the defendant was “a good start, it’s not the finish”. This was supported with reference to Dr Ellis, he identified that “the proper engagement and insight into the need for psychological treatment of the sexual issues, the sexual therapy, is an equally important aspect of addressing risk”. The State contended, “that’s the area that is neglected at present, or perhaps not engaged in the way that would result in the same positive outcome presently before the court with the alcohol and other drug use”.

4. [151]

   Taking all of the mandatory considerations into account, the plaintiff contended that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious (sex) offence, if not kept under the supervision of a further extended supervision order. These include:

   1. (1)

      the history and diverse pattern of sex offending (including those offences with sexual components to them);

   2. (2)

      lack of effective support from, or existence of, stable relationships (the defendant has one friend with whom he associates);

   3. (3)

      ongoing sexual preoccupation with possible paraphilia involving children which has not been adequately addressed;

   4. (4)

      recommended need for high level of intensive supervision flowing from these factors and others, including impulsivity, maladaptive coping strategies and personality disorders;

   5. (5)

      assessed moderate-high/high risk of further sexual re-offending and current expert psychiatric opinion that long term supervision was appropriate, in the context of long-term supervision having already been occurring;

   6. (6)

      substance abuse history linked to offending and ongoing with breaches under the current extended supervision order;

   7. (7)

      increasing risk of inappropriate association with children when not under supervision (the CPPO breaches in 2012);

   8. (8)

      poor responses to less intensive supervision than under an extended supervision order; and

   9. (9)

      poor insight into the sexual deviance and need for psychological engagement with treatment and counselling, identified by the expert psychiatrists.

5. [152]

   Finally, as to anti-libidinal medication, the State did not press any submission as such medicine requires the consent of the individual and cannot be coerced or forced upon the individual.

The Defendant

1. [153]

   The defendant relied upon written submissions dated 8 August 2018 and oral submissions made on 10 August 2018. As to the extent the written submissions made reference to and/or relied upon earlier written submissions filed in relation to the preliminary hearing, counsel for the defendant, on the final day of hearing, placed little reliance upon its earlier written submissions filed 21 May 2018 for the purpose of the preliminary hearing.

2. [154]

   The written submissions of the defendant may be summarised as consisting of two contentions:

   1. (1)

      The defendant opposes the making of an extended supervision order.

   2. (2)

      The defendant does not concede that he is a “high risk sex offender”. The evidence does not establish to the required standard that the defendant poses an unacceptable risk of committing a “serious sexual offence”.

3. [155]

   Notwithstanding the incorrect application of the test pursuant to s 5B, during oral submissions, the defendant conceded that if the Court was minded to make a positive finding with respect to s 5B of the Act it would follow that an extended supervision order, subject to conditions, should be made in the circumstances.

4. [156]

   The remaining dispute concerned the duration of the extended supervision order to be imposed and the conditions therein. The defendant made the following submissions:

   1. (1)

      the Court would only make an extended supervision order for the minimum period that is required to reduce the relevant risk and ensure the objects of the Act. It was submitted that the duration of the order should not exceed 2 years; and

   2. (2)

      the Court would only make the order regarding to the conditions of the extended supervision order that are required to reduce the relevant risk and fulfil the objects of the Act. It was submitted that the Court would not be satisfied to the requisite standard that all of the conditions that are sought by the State are justified.

5. [157]

   As to the mandatory criteria under s 9(3) of the Act, the following submissions were advanced by the defendant:

   1. (1)

      As to “the paramount consideration”, namely, the safety to the community, it was conceded that the defendant “failed on a number of occasions to comply with the conditions of his ESO prior to his release from custody [having served custodial sentences for such breaches] on 18 February 2018”. However, since his release the defendant had resided at the COSP residence at Long Bay before transitioning to boarding accommodation at Concord (his current residence). It was contended that “[t]here is no suggestion that the safety of the community has been compromised in any way since [the defendant’s] release”.

   2. (2)

      Reliance was placed upon the OIMS case notes for the period 16 April to 26 July 2018 attached as "Annexure B" to the affidavit of Ms Farroway dated 31 July 2018, which outline the defendant's response to supervision since his release. In particular, the defendant sought to distinguish those reports from the opinion of Dr Ellis as to the characteristics he observed of the defendant (which included, inter alia, poor insight around motivations for offending, which is relevant as it has led to poor or partial cooperation in treatment and rehabilitation attempts, poor self-awareness, difficulties with stress and coping, impoverished relationships, previous lack of cooperation with supervision, attitudes towards supervision remain equivocal, with a negative attitude towards psychological treatment directed at sexual offending).

   3. (3)

      Emphasis was placed upon the fact that “the vast majority of [the defendant’s] therapeutic treatment was initiated of his own volition and not dictated as being compulsory under his current ESO”.

   4. (4)

      Reference was made to the conclusions of Ms Carden in the Risk Management Report, whilst it was conceded that, having regard to the available OIMS case notes “the conclusions she draws as to [the defendant’s] compliance and risk assessment are largely negative”, it was submitted that the Court should have regard to the timing of the report and the OIMS case notes relied upon therein. Those entries, it was contended, should be contrasted against the later entries “that commence on 21 February 2018 and conclude on 26 July 2018”. It was submitted that “all the entries made in relation to the defendant during this period show that he is engaged in the rehabilitative process, has a stable lifestyle, and complies wholeheartedly with the current conditions of his ESO”. In particular, the defendant relied upon the following summary of relevant extracts (as well as the references referred to during the course of the cross-examination of Dr Ellis, Mr Ardasinski and Ms Farroway):

   5. (5)

      It was also submitted “that the evidence shows that the defendant has diligently complied with the ISO since his release from prison on 18 February 2018”. Further, the defendant has not failed to comply with the conditions since his release from custody.

6. [158]

   The remainder of the defendant’s submissions concerned conditions and the duration of the proposed extended supervision order to which I will return to under a discussion of the conditions and duration, respectively.

Section 5B(d)

1. [159]

   As earlier noted, the decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51].

2. [160]

   Section 5B of the Act provides this Court may make an extended supervision order if: the person is an “offender” who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); a “supervised offender” (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this Court is satisfied to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.

3. [161]

   As to the question of whether the defendant is an “offender” and “supervised offender”, for the purposes of the Act, that was answered affirmatively, with the concurrence of the defendant, earlier in this judgment. Further, in my view, the defendant poses an unacceptable risk of committing another serious offence, namely, a sex offence, if he is not kept under supervision. I am satisfied that he does so to a high degree of probability. My reasons for coming to that conclusion are as follows.

4. [162]

   It is true the defendant has shown substantial improvements in his behaviour and response to ongoing treatment, with no incidents of re-offending since his most recent release on 18 February 2018. In particular, with respect to his attitude towards therapeutic treatment, it was contended that the majority were initiated at the volition of the defendant (as opposed to a compulsory requirement of an extended supervision order). That submission by the defendant, may be accepted, but must be understood in the light of the evidence before the Court to which I now turn (but note, in that respect, a more comprehensive outline of the evidence was set out earlier in this judgment under the heading: “Findings of Fact and Conclusions as to Factors in s 9(3)”.

5. [163]

   It is also true that both court appointed experts acknowledged “positive aspects” of the progress of the defendant under supervision. In particular, both experts recognised the defendant had demonstrated some insight into his substance abuse and the need for treatment and expressed enthusiasm towards his treatment in that respect. Reference was also made to his participation in counselling sessions at the Exodus Foundation, the CRC and Alcoholics Anonymous.

6. [164]

   Dr Roberts also recognised the “significant step” taken by the defendant to acknowledge his homosexuality. He opined that step could represent “a level of openness and trust in therapy and a personal acknowledgement of a psychologically uncomfortable issue”.

7. [165]

   In the same light, Mr Ardasinski observed that the defendant’s participation in supervision process “lends weight to the notion that he has started on a trajectory of desistance from crime”. He opined that the defendant’s progress may indicate that the defendant could “exist in the community under less-stringent supervision regime such as that entailed by a CPPO” (as at 13 November 2017).

8. [166]

   Mr Ardasinski also opined that the defendant had made progress over the course of the 2014 extended supervision order with respect to “developing better coping strategies and building relationships”. This aligned with the observations of Ms Carden on 25 July 2017: “[the defendant] appears to be progressing well overall and has formed relationships with pro-social individuals who are aware of his history of offending and remain supportive of him”.

9. [167]

   The defendant has previously participated in and responded positively to the Community Maintenance program. As earlier noted, he attended eight sessions in 2011 (before his parole was suspended on 17 July 2011) and since the 2014 extended supervision order, he has re-engaged in maintenance sessions at FPS. Mr Baird observed in progress notes the defendant contributed well to group discussions, including being open to feedback from others. Additionally, whilst Dr Ellis noted the defendant was of the opinion “that the program was not effective for him”, he also described the defendant as being “quite enthusiastic about treatment about his own experiences of sexual abuse”.

10. [168]

    Dr Roberts also gave evidence that the defendant appeared to respond positively to SMART Recovery. He reported that the defendant “enjoys attending” and, in speaking to his participation in the group sessions, “feels he can talk about how he is progressing and he also gets to listen to other members and give them support”.

11. [169]

    There are significant countervailing considerations which constitute the basis for the conclusion I have reached under s 5B(d).

12. [170]

    The history and diverse pattern of sexual offending or offences with a sexual component are a factor in such a finding. The nature of the sexual offending concerned two young female victims of 6 and 15 years of age, respectively, at two separate locations. The offence on 6 December 2001, namely, sexual intercourse with person under 10 years was the “serious sex offence” for the purposes of this application; the defendant was a visitor at the victim’s home and reported “he had been sexually aroused by her sitting on his lap”. The second offence, detain person with intent to obtain advantage, namely, sexual gratification, was committed amongst a series of offences on 27 November 2002, whilst the defendant was on bail with respect to the 2001 offence. The State correctly submitted, notwithstanding this second offence did not meet the definition of “serious sex offence” under s 5 of the Act, the offending was of an “inherently sexual nature”. Dr Ellis also opined, whilst the defendant’s offences are “varied”, they “show a pattern of threat to victims, or a child victim” and “have been associated with wearing female underwear for arousal”.

13. [171]

    I note at this juncture, within the limits previously described, the evidence of the not proven offences adds to the conclusion there is a risk of re-offending.

14. [172]

    Notwithstanding the progress observed by both the psychiatrists and psychologists that observed the defendant over the course of his supervision, the overall consensus was that the defendant would not only benefit from ongoing and further supervision, but that in the absence of such supervision the defendant presents an unacceptable risk of re-offending.

15. [173]

    Whilst the defendant demonstrated a positive attitude with respect to counselling, in particular alcohol and other drug counselling, the defendant’s response was not “uniformly positive”. In particular, Dr Ellis described the defendant’s attitude to psychological treatment directed at sexual offending, which he described as a “crucial” component to combat sexual recidivism in that respect, as “negative”. At the time of his interview, in this respect, Dr Ellis observed: “[the defendant] displayed little understanding of his motivations to offend, and limited strategies to desist from offending in the future. His participation in treatment would be considered marginal”. In that light, he also opined that the defendant’s attitudes towards supervision remained “equivocal”.

16. [174]

    Both Drs Ellis and Roberts reported that the defendant has shown some insight into his substance abuse and need for treatment. However, Dr Ellis opined that the defendant continues to show little insight into his need to address his sexual offending and paraphilic tendencies through psychological engagement. He opined that the defendant: “had limited understanding of his prior motivations for sexual offending” and reported:

17. [175]

    Dr Roberts also suggested that the defendant’s insight into his previous sexual offending may be limited in light of the defendant’s account. He opined:

18. [176]

    During cross-examination, as to the defendant’s progress, Dr Ellis ultimately opined that “six months of stability isn't enough”. He gave the following evidence:

19. [177]

    Dr Ellis accepted, during cross-examination, that the defendant’s conduct over the past six months could be described as “complying with the conditions” and that “he's engaging in suitable behaviour and he is staying away from drug use”. He opined that such conduct is indicative of a “positive response to what is being applied to him”. However, he also opined that “the type of management and supervision that [the defendant] is currently receiving is in my opinion address[ing] the risk factors that he presents with”.

20. [178]

    Whilst Dr Ellis opined the defendant “certainly was attending on everything that was being required of him, which I think is insight into the need [for such treatment]”, he maintained, in the absence of any treatment, the defendant would fall into a category of person with a risk for sexual offending that is “statistically high in frequency”. Dr Ellis considered the risks of sexual re-offence arose from the presence, in the defendant’s case, of sexual arousal or paraphilia. Dr Ellis also reported that antisocial personality orientation was another factor consistently identified with sexual re-offence, as was substance use disorder (which he described as “modestly correlated with sexual offending”). He opined that specific treatment and supervision would likely reduce the risk.

21. [179]

    Additionally, Dr Ellis opined that is was plausible that the defendant’s time spent in incarceration and under supervision since the last serious sex offence may explain why the defendant has not offended with “a serious category offence” since 2002.

22. [180]

    The “relative brevity of his current period in the community” also tempered the opinion of Dr Roberts. He opined the risk of engaging in a further serious sex offence is significantly mitigated by the defendant’s participation in counselling and therapy.

23. [181]

    As to the defendant’s motivation to seek further therapy, in particular with respect to childhood issues, Dr Roberts expressed concern that “such a course of therapy should not be viewed as being without risk”. This is because whilst it has the “significant potential to benefit” it could also be “distressing, destabilising and harmful”.

24. [182]

    Even with improvements, both Drs Ellis and Roberts recognised substance abuse via drugs and alcohol as a current risk, with Dr Roberts identifying it as the defendant’s “most prominent” risk factor. Dr Roberts also opined that relapse to substance use would be expected to confer a significant escalation in his risk.

25. [183]

    Dr Roberts noted that the risk of committing a further serious offence remains high “in the context of a diminished degree of vigilance with respect of [the defendant’s] participation in therapy, the support groups which he attends and the supervision under which he remains”. Dr Ellis also specifically identified poor or partial co-operation with treatment and rehabilitation in relation to sexual deviance as an ongoing issue.

26. [184]

    Overall, both Drs Ellis and Roberts considered the risk for serious sexual offending by the defendant to be statistically “high” in frequency.

27. [185]

    Turning to then to the Risk Assessment Report of Mr Ardasinski. Mr Ardasinski opined that “consideration must be given to the extent to which the conditions of the defendant’s extended supervision order have contained the risk of his committing new sexual offences, and whether the defendant has developed the capacity to manage his own risk of sexual re-offence”.

28. [186]

    In a similar light, Mr Ardasinski described the defendant’s progress in the past six months as “a very good start”. He accepted that the defendant’s participation in therapeutic programs and counselling, much of his own volition, was “definitely progress” towards managing his risk. However, “[w]eighed against, you know, a 30 to 40 year history of drug use though, six months of intervention doesn't necessarily mean that he's fixed”. The highest Mr Ardasinski put his opinion was as follows: “[i]t's very promising that he has taken initiative to avail himself of the intervention to avoid a return to drug use, which is what brought him back into custody the last time” (particularly in circumstances where “he is unable to work”).

29. [187]

    In that respect I note the following opinions of Mr Ardasinski:

    1. (1)

       The defendant “never” progressed through his stages of electronic monitoring from “Stage 1”. He opined that more years on an extended supervision order would allow for a staged reduction in electronic monitoring and give him “the best possible chance of success”.

    2. (2)

       The disorders of which the defendant suffers are “chronic”. Another factor supportive of a longer extended supervision order.

    3. (3)

       “[I]t remains likely that the combination of [the defendant’s] interpersonal relationship skills deficits will combine with this newly discovered sexuality and may have unfortunate outcomes… which if combined with drug use and the presence of a potential vulnerable person could trigger a new sexual offence”.

30. [188]

    As to actuarial risk assessment, the defendant scored within the moderate-high risk range. Mr Ardasinski opined that a risk rating of “moderate” was consistent with the defendant’s “current predicament and time offence free”. However, he opined “there were still a number of outstanding criminogenic needs related to sexual offending which would require intervention through further treatment or supervision”. Whilst it is true that the defendant made some progress, Mr Ardasinski opined “he lacks awareness of how the problematic behaviours he engages in have their basis in his diagnosed personality disorder and the chronic course that such disorders take”.

31. [189]

    At this juncture, I note that Mr Ardasinski in part modified his earlier opinion, with respect to the defendant’s progress and the possibility of existing in the community under less stringent supervision. Whilst maintaining his opinion as to “less stringent supervision”, he opined that the supervision offered by an extended supervision order “with less conditions” would be preferred to a CPPO. This is because, under an extended supervision order police have the authority to drug test, whereas the same authority is not provided by the CPPO.

32. [190]

    Thus, having regard to the history and nature of the overall offending of the defendant; the lengthy history of substance abuse connected with previous sexual offending and noting, in that respect, relapse to substance use would be expected to result in a significant escalation in the defendant’s risk; his limited insight into his previous sexual offending; his participation and attitude towards counselling and treatment, in particular his marginal progress with respect to psychological treatment directed at sexual offending; his assessment of being at “moderate-high” risk of sexual re-offending by Mr Ardasinski and “high” risk by Drs Roberts and Ellis; the recommended ongoing need for intensive supervision by all experts; and, the risk factors identified in the Risk Assessment Report (see above from [92]) (as well as the expert reports from 2018), I confirm that I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

Extended Supervision Order

1. [191]

   The defendant accepted that, if a conclusion was reached that the Court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order, it would be appropriate to make an extended supervision order. I accept that was an appropriate concession. In particular, I note that the following additional considerations warrant the adoption of the same:

   1. (1)

      the nature the offences;

   2. (2)

      the likelihood of re-offending;

   3. (3)

      the potential type and nature of any offence committed in the event of re-offending;

   4. (4)

      the opinion of the court appointed experts, based upon clinical assessments, as to the necessity for supervision (including appropriate conditions) and ongoing treatment of the defendant;

   5. (5)

      non-compliance and failures by the defendant whilst on parole, subject to the CPPO and the 2014 extended supervision order;

   6. (6)

      the negative attitude towards FPS sessions directed at sexual therapy and the equivocal attitude to supervision; and

   7. (7)

      risks occasioned by alcohol and other drug use.

2. [192]

   Hence, I determine an extended supervision order should be made and turn to the question raised in the proceedings as to what conditions should attach to the same.

Submissions – General

1. [193]

   The parties made general submissions regarding the making of conditions with respect to an extended supervision order.

2. [194]

   The State relied upon the clinical perspective of Drs Ellis and Roberts and submitted that the conditions sought to be imposed were appropriate to address the long-term risk, both from a legal and from a clinical perspective (including the chronic or enduring nature of the defendant's disorders). It was submitted that, in light of the opinion of Dr Ellis, “[a]ll the proposed supervision conditions were considered necessary and desirable from a clinical point of view of managing risk”. Similarly, Dr Roberts had opined “they were appropriate to the defendant's circumstances”.

3. [195]

   In the event the Court was minded to grant the extended supervision order sought, the defendant advanced the following general submissions in its earlier written submissions with respect to the appropriateness of the conditions proposed by the State:

   1. (1)

      The Court should only make an order with conditions that are appropriate to further the objects of the Act and reduce the risk of further serious sexual offending.

   2. (2)

      The 64 conditions proposed are “somewhat generic/standard” and it was contended that they, “appear to have no particular application to this defendant”. In this respect, reliance was placed on State of New South Wales v Burns [2014] NSWSC 1014 at [59].

   3. (3)

      Conditions cannot be “unjustifiably onerous or simply punitive”: State of New South Wales v Green (Final) [2013] NSWSC 1003. It was contended that 64 conditions meets the definition of onerous.

   4. (4)

      Given that it is a statutory offence to breach an order, there is a need for a proper basis to be demonstrated for the condition to be made: State of New South Wales v Ali [2010] NSWSC 1045 at [88].

4. [196]

   During oral submissions, the defendant also confirmed it relied upon the authority of TT, namely, that the onus falls upon the State to demonstrate that the proposed conditions are appropriate to mitigate the risk (see also State of New South Wales v Bugmy [2017] NSWSC 855).

5. [197]

   I do not consider the conditions sought by the State in this matter encroach on those principles. Where particular issues were raised there is, as will be discussed below, ample basis on the evidence to make the conditions proposed.

Submissions – Particular Issues

1. [198]

   The defendant challenged the appropriateness of particular conditions in Annexure A in his written submissions. The primary focus of the defendant’s contentions, in that respect, concerned curfew (condition 11) as well as a minor reference to employment (condition 20). During, the course of oral submissions, the defendant also advanced submissions with respect the restrictions upon access to pornographic material (condition 50).

2. [199]

   Additionally, at this juncture I note, whilst no specific submissions were advanced in objection to the imposition of electronic monitoring (condition 5), beyond the general submissions summarised above, it attracted significant attention during the cross-examination of Dr Ellis and Mr Ardasinski and will be discussed in turn below.

3. [200]

   During the course of oral submissions, the parties reached an agreement to modify the curfew condition in two respects: firstly, deletion of the words “unless other arrangements are approved by his DSO” and, secondly, the curfew commences at 11pm (as opposed to 9pm).

4. [201]

   Notwithstanding that agreement, counsel for the defendant contended in oral submissions that, in light of the proposed conditions for electronic monitoring and schedule of movements (see conditions 5 and 7 in Annexure A), if the Court was minded to impose those conditions, the “additional” requirement of a curfew condition – whether it commenced at 9pm or 11pm – would not meet the test prescribed by the Act, namely, it was submitted, “[s]uch a condition does not mitigate risk in circumstances where Community Corrections are aware where he is and who he is with and must provide their approval”.

5. [202]

   As to the form of the condition, whether it be construed as an “opt in” or “opt out” clause, the primary consideration, it was submitted by the defendant, was “whether it in fact mitigates risk in circumstances where [the defendant] has the schedule, he has to get approval to be with whoever he is going to be with and certainly he is not going to be aimlessly walking the streets and getting into trouble or engaging in actions that could lead to relapse which is the concern and surely what the clause is for”.

6. [203]

   The defendant, in this respect, relied upon the authority of Bugmy (as cited in TT at [65]) that the onus rests with the State to prove the condition is necessary such that it mitigates risk. It was contended that the evidence before the Court does not demonstrate that, in addition to electronic monitoring and a schedule of movements, that a curfew condition has the effect of “incrementally add[ing] to the mitigation of the risk”.

7. [204]

   Reference, in this respect, should also be made to the evidence of Dr Ellis and Ms Farroway at the final hearing.

8. [205]

   During cross-examination, Dr Ellis opined:

9. [206]

   Ms Farroway gave the following evidence, with respect to previous negotiations, with the defendant, to modify the curfew condition:

10. [207]

    The State also referred to a selection of instances in the OIMS case notes in which the defendant’s curfew and/or location of his residence were modified (see pages 31 and 72 of the OIMS case notes, entries on 7 May and 13 July, respectively). Those examples, combined with the evidence of Ms Farroway, support the inference that the curfew condition is not unduly onerous and affords appropriate flexibility to the defendant.

11. [208]

    Regard was also had to the affidavit of Ms Farroway. She deposed that the imposition of a curfew “can assist in providing structure and stability and is useful in trying to minimise exposure to environments related to risk of re-offending. In the case of the Defendant, this would be about minimising access to high risk scenarios that may cause him to relapse into the use of alcohol and illicit drugs" (at para 70). That opinion, it was submitted, was supported by the evidence of Dr Ellis.

12. [209]

    On balance, and noting the modifications to the proposed conditions, I do consider that this condition would mitigate the risk in a material way. The aforementioned evidence of Dr Ellis and Ms Farroway supports a conclusion that the condition would do more than marginally mitigate the risk and, in fact, constitute an effective control against re-offending. There is ample and demonstrated latitude or flexibility in the application of the curfew if required.

13. [210]

    Condition 20 is extracted below:

14. [211]

    In written submissions, counsel for the defendant opposed condition 20. However, in this respect, very little was advanced, save for a reference to authority relating to “appropriateness”: State of New South Wales v Banks [2016] NSWSC 926 (“Banks”) at [68(d)] (per Rothman J).

15. [212]

    The remarks of Rothman J in Banks at [68(d)], relied upon by the defendant, are extracted below:

16. [213]

    Despite the absence of a developed submission by the defendant, the remarks of his Honour are relevant to the present form of condition 20, which requires that “the defendant must make himself available for employment … as directed by the DSO”.

17. [214]

    In relation to the same issue, namely, a condition with respect to a direction to enter available employment, Adamson J took a different approach (State of New South Wales v Fernando [2016] NSWSC 1665 (“Fernando”) at [120]):

18. [215]

    I recognise the defendant has experienced difficulties in taking up employment, owing to medical issues, and as a result of being subject to the conditions of an extended supervision order. However, he has also successfully obtained employment since committing the offences, including during the period whilst he was subject to the 2014 extended supervision order. I would not, therefore, readily conclude it is unlikely the defendant would never be able to attain remunerative employment. No contrary suggestion was made by the defendant.

19. [216]

    The evidence revealed that the absence of employment was a factor contributing to his risk of re-offending, by virtue of the absence of employment causing the defendant to re-engage in patterns of behaviour that contribute to the risk.

20. [217]

    The corollary is that, as described by Schmidt J in Amohanga at [52], the attainment of work may result in the defendant being possessed of “the dignity, occupation, income and other benefits” that go with employment, which would, if availed of, improve the defendant’s overall prospects.

21. [218]

    It might also be noted that condition 20 not only relates to employment, per se, but “education, training or participation in a personal development program”, which I consider could also contribute to the avoidance of risk for the same reasons as found in [216] and [217] above.

22. [219]

    All of those considerations result in a conclusion that condition 20 is appropriate to manage the risk; provided it is expressed in a form, as it is, that gives the DSO an appropriate discretion.

23. [220]

    I note, for completeness, that it would appear that that discretion is presently being properly exercised by the DSO as evident by the defendant being made exempt from searching for work (as at the time of the final hearing), for example, whilst he awaited an operation for gallstones and a hernia.

24. [221]

    As to the appropriateness of condition 50, the defendant contended that the State was required to produce “positive evidence, that access to… normal consenting adult pornography would somehow increase the risk factors in terms of the defendant committing a serious sex offence”. In the absence of such evidence, it was submitted, by counsel for the defendant, that such a finding could not be made.

25. [222]

    In alternative, if the Court was minded to impose condition 50, because reference had been made to “preoccupation with sexual matters as being a risk factor”, it was contended that the exclusion of “X18+” would be appropriate provided that the words “or any other material as directed by the DSO” remained. In other words, the defendant contended for a construction of an “opt out” clause, that is, “if the DSO considers that it's inappropriate that the defendant access normal adult pornography, then it can be stipulated that he not have access to that in those circumstances”. This construction, it was submitted, was the more appropriate order in the absence of any direct evidence upon which the Court could draw a conclusion that access to normal adult pornography increases his risk factor of committing a serious sexual offence.

26. [223]

    The State opposed the removal of “X18+” classification from condition 50. In doing so, the State also turned to the phrasing of the condition, namely the terms, “without the prior permission of the DSO”. It was contended that that phrase allows for the “possibility at least that if there were the appropriate expert input into whether that was a good thing to take out of that condition then consideration could be given to it in the future” (the State acknowledged that such a submission was advanced without the benefit of expert opinion or instruction in that respect).

27. [224]

    The State also relied upon the authority Wilde v State of New South Wales [2015] NSWCA 28 (“Wilde”). In Wilde, the Court observed: “the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order” (at [53]). It was contended that condition 50 was “precisely” proposed in its present form “to address the risk of future offending of the type which was the basis of the order”.

28. [225]

    Additionally, as to the connection of condition 50 to the mitigation of risk, reference was made to the affidavit of Ms Farroway. She deposed: “[p]roposed Conditions 50 to 53 are required to managed the Defendant’s identified risk factors around identification with young people, sexual preoccupation and the use of sex as coping” (at para 92).

29. [226]

    On balance. I find that it is appropriate to impose the condition in the terms proposed by the State and without further modification. I reach this conclusion having regard to the content of the condition and its clear purpose to address specific risk factors, such as factors around sexual preoccupation and the use of sex as a coping mechanism, in order to mitigate the risk of future sexual offending.

30. [227]

    During the course of evidence, reference was made by both parties to the “stages” of electronic monitoring. It was accepted that the defendant had not moved beyond “stage 1” during the 2014 extended supervision order. In this respect, the State submitted that “whilst that might normally be expected to go through 12 month stages for each of the stages, it would obviously have to be telescoped in a three year period”. As to its impact upon the risk of recidivism I turn to the evidence of the court appointed experts below.

31. [228]

    Dr Ellis gave evidence that whilst electronic monitoring itself does not reduce the risk, “it may motivate people to attend upon rehabilitation activities more diligently... [and] people who attend diligently on their rehabilitation activities do better”. He opined:

32. [229]

    As to the defendant’s apparent commitment to continue to attend upon his rehabilitation activities even in the absence of an extended supervision order, Dr Ellis opined:

33. [230]

    A similar opinion was reached by Dr Roberts, in this respect: “[e]lectronic monitoring will reduce [the defendant’s] risk of re-offending by acting as a reminder that he is under supervision and it diminishes the risk that he will seek to evade supervision during periods of heightened emotion or lapses of judgement”.

34. [231]

    Additionally, as to the “weekly schedule” that would accompany electronic monitoring, Dr Ellis opined:

35. [232]

    Whilst the Risk Management Report noted that the combination of electronic monitoring, schedule of movements and curfew assist in monitoring the whereabouts of the defendant, the limitations of the management strategy was also recognised: “it is noted that these risk management strategies did not prevent him from engaging in problematic behaviours such as drug use. Furthermore, it is noted that these strategies did not assist in detecting this behaviour due to him engaging in illicit substance abuse and associating with the anti-social individuals at his approved place of residence”. Nonetheless, both Ms Britton and Mr Ardasinski had acknowledged that “intensive supervision appears to have not only restricted his opportunities to offend, but created a stabilising influence".

36. [233]

    In my view, when that evidence as to electronic monitoring is taken together with the evidence of the defendant’s previous behaviour on parole and under the 2014 extended supervision order, as well as the opinions of Dr Ellis and Mr Ardasinski, the condition providing for electronic monitoring sought by the State is appropriate. The measure will enhance the safety to the community by guarding against or encouraging compliance and the avoidance of deceptive behaviour as well as improving the prospects of engagement with rehabilitation, thereby, reducing the risk of re-offending.

Duration

1. [234]

   As to the duration, the State submitted that based on the Risk Assessment Report and the concurring views of Drs Ellis and Roberts, a further extended supervision order of 3 years would be appropriate to address the long-term risk, both from a legal and from a clinical perspective (including the chronic or enduring nature of the defendant’s disorders), applying the conditions sought.

2. [235]

   It was further submitted, “the expert opinion as to the chronic and enduring nature of the defendant's disorders, the mixture of progress and breaches under the current extended supervision order, and the continuing concerns about lack of insight into the sexual component of the offending history, all support an extended supervision order of 3 years duration, applying the conditions as presently sought”.

3. [236]

   Whilst the two court appointed experts generally support an extended supervision order for 3 years on the conditions proposed, counsel for the defendant submitted, the determination is a legal question and remains at the discretion of the Court: State of New South Wales v Darrego [2011] NSWSC 1449 at [87]; State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [85]. Reference, in this respect, was also made to the observations of Hidden J in State of New South Wales v Conway [2011] NSWSC 925 (at [28]):

4. [237]

   Turning to the Risk Assessment Report, Mr Ardasinski opined that the defendant needed at least three more years to progress through the stages of electronic monitoring and develop a support network outside of CSNSW that can help him to manage his outstanding personality deficits which continue to relate to risk.

5. [238]

   As to the recommendation of Mr Ardasinski, counsel for the defendant emphasised that his opinion was formulated back in November 2017. Additionally, consideration should be given, it was contended, to the length of time since the commission of a serious sex offence, the level of risk that is involved and the positive steps that have been taken in the last six months (namely, the period since his release from custody in February 2018) and determine that a shorter time is appropriate. It was submitted that the duration of the order should not exceed two years.

6. [239]

   Notwithstanding the progress of the defendant, the State contended, in light of the material before the Court, the Court would not “have the necessary level of confidence, even with that six months demonstrated progress, to be able to say, well, I think two years would be sufficient, notwithstanding these clinical opinions”.

7. [240]

   Additionally, whilst acknowledging the pro-social connection that the defendant presently has a friend, Steven, the State submitted there is “a fragility inherent in having only a small group of friends or a friend to rely on as part of your pro-social connections”. Hence, it was contended, the length of the proposed extended supervision order takes into account “the continued promotion of that so that we’re not just reliant on one person for our support and stability in the community”

8. [241]

   Given the nature of the risk posed by the defendant, which, as I have earlier found, is unacceptable if not kept under supervision, I consider the appropriate period for an extended supervision order to be that proposed by the State, with the concurrence of the court appointed experts, namely, 3 years.

9. [242]

   Whilst the recent progress of the defendant, with respect to his behaviour and participation in rehabilitative activities may be properly described as “promising” and “positive”, that progress, particularly in the light of its relative brevity and the nature and severity of the risks I have earlier discussed, does not warrant a conclusion that the duration of the order imposed should be other than that proposed by the State. The defendant’s psychiatric disorders are chronic and likely to persist even beyond any period of supervision. Both Drs Ellis and Roberts also referred to the relevant risk of relapse. Thus, I find that a further extended supervision order of three years duration, applying the conditions set out in Annexure A, appropriate to address the risks of re-offending as well as encourage the defendant to continue to undertake rehabilitation.

CONCLUSION

1. [243]

   I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under an extended supervision order.

2. [244]

   An order shall be made pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 3 years from the date of this judgment. I also propose to make an order directing the defendant comply with the conditions set in the Schedule marked Annexure A attached to this judgment for the duration of the order pursuant to s 11 of the Act.

DIRECTION

1. [245]

   In order to facilitate the disposition of the matter the State shall file and serve short minutes of order, reflecting this judgment, within 7 days of the publication of this judgment. The defendant shall either confirm the order proposed by the State or submit an alternative form of order within 14 days of the publication of this judgment. The Court will then make orders administratively in Chambers.