State of New South Wales v Wilkinson (Final)

1. [1]

   HIS HONOUR: The State of New South Wales (“the State”) commenced proceedings by a further amended summons, filed 3 December 2020, seeking an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for the supervision of the defendant (also known as “Brian Antney”) for a period of two years from the date of the Order (“the application”).

2. [2]

   On 16 December 2020, Hoeben CJ at CL made preliminary orders pursuant to s 7(4) of the Act and an Interim Supervision Order (“ISO”) for a period of 28 days from 3 January 2021, which is the date that the total sentence for the index offence expired: State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813. The ISO was subsequently renewed on 18 January 2021 and 18 February 2021.

3. [3]

   The application, which is for determination of final orders pursuant to ss 5B and 9 of the Act, was heard on 5 March 2021, at which time the applicant was residing in the community pursuant to the ISO. Judgment was reserved.

4. [4]

   By a notice of motion filed on 23 March 2021, the State sought leave to reopen the hearing. An affidavit in support of the notice of motion affirmed by the solicitor of the Crown Solicitor’s Office with carriage of the matter had annexed to it documentation from which it was apparent that the defendant had been arrested on 11 March 2021 and charged with an offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW), that on 5 March 2021 he had sexually touched another person without consent. The defendant had been remanded in custody. On 26 March 2021, leave was granted and the hearing was reopened. Judgment was again reserved. The defendant’s ISO is suspended whilst he is in custody.

The defendant’s background

1. [5]

   The defendant is a 58 year old single man with no dependents. The following account of his background is taken from the report of Dr Richard Furst, forensic psychiatrist, dated 11 February 2021. Dr Furst was one of the two forensic experts who were appointed pursuant to the preliminary orders. The other was Patrick Sheehan, forensic psychologist, who provided a report dated 13 February 2021. Dr Furst reported:

2. [6]

   Dr Furst noted that the defendant was involved in a relationship from about 2005 with a woman who had three children. It had broken down by the time he was released from prison in 2010 and the defendant has not been in a relationship since then. In his report, Mr Sheehan noted that serious criminal offending by the defendant against the partner of his older brother alienated his family, although his mother and youngest brother maintained some contact until the index offence. After the index offence, the defendant’s mother wrote to him, withdrawing any further contact.

3. [7]

   Between the ages of 15 and 17, the defendant had findings of guilt made against him in the Children’s Court for breaking, entering and stealing; unlawful possession of a firearm; malicious injury; stealing; and driving offences.

4. [8]

   The defendant has spent most of his adult life in prison, consequent to a criminal history of multiple serious offences.

5. [9]

   In the early hours of 4 June 1980, the defendant, then aged 17, went to the home of a 15 year old girl who resided with her mother, who he had known for the previous three weeks. He abducted the girl at knifepoint. He was also armed with an iron bar and had with him a container of petrol which, he said, was to make good his escape if he was detected in the house. He took her into bushland where he held her for a period of 10 hours. He tied her to a tree and tried to gag her. The girl twice attempted to escape and on the second occasion sustained a knife wound to her thigh. At that point, the defendant applied first aid, led her to safety and released her. He was arrested the following day and detained in custody.

6. [10]

   On 14 July 1980, the defendant escaped from custody. As to what then occurred, the sentencing judge remarked as follows:

7. [11]

   The defendant was sentenced in the District Court on 24 November 1980 for counts of abduction, escape lawful custody and possession of knife with intent to murder. He received wholly concurrent sentences of 18 months, 3 months and 2 years imprisonment respectively with a non-parole period which expired on 24 July 1981.

8. [12]

   In 1981, the defendant was convicted of common assault and sentenced in the District Court to a recognisance to be of good behaviour for 4 years and to accept supervision. The police facts were to the effect that he walked across the road to his neighbour’s house and asked the neighbour for the use of a telephone book. When the neighbour said she was unable to find the telephone book, he became aggressive and pushed her to the floor. She screamed and ran to the rear door of her house. He gave chase and caught her as she was trying to unlock the door. He pulled her back by grabbing her around her shoulders, pushed her up against a wall and pulled out a knife from the rear of his trousers and threatened her with it. He then ran back to his house, throwing the knife away as he did so. The knife was recovered by police and was described as a kitchen knife with an 8-inch blade.

9. [13]

   On 19 February 1983, the defendant was arrested and charged with counts of robbery and assault with intent to rob. The police facts were to the effect that, four days prior, the defendant entered a bottle shop and held up the female cashier at knifepoint. Upon leaving the bottle shop, he ran to a nearby car park where he approached an elderly male who was seated in his vehicle and ordered him from it at knifepoint. The defendant got into the vehicle but was unable to start it and then ran off. He received concurrent sentences of 3 years and 6 months imprisonment with a non-parole period of 12 months.

10. [14]

    For a period of six weeks in April and May 1984, the defendant was a patient at Morisset Hospital, it being a condition of his parole that he present there. On 24 May 1984, he left the hospital and went to the apartment of his brother and his sister in law in the western suburbs of Sydney, where he waited for his sister in law to arrive. When she did, she let him in. He grabbed her from behind by her throat, saying “Don’t scream or I’ll kill you” and that he intended to have sexual intercourse with her. He twisted her arm behind her back and used a fishing knife to force her to take off her clothes. When she hesitated in taking her clothes off, he punched her to the stomach. He then had penile-vaginal sexual intercourse with her without her consent. He punched her face, breaking her nose. He was convicted of “maliciously inflict [grievous bodily harm] with intent to have sexual intercourse” and sentenced to a period of imprisonment of 8 years with no non-parole period.

11. [15]

    On 14 December 1988, when aged 26, while in custody at Parramatta Correctional Centre, the defendant grabbed a female welfare officer by her throat with one hand and held a knife with a 10cm blade to her throat with the other. He started to drag her up a flight of stairs towards the roof, but another inmate tackled him. Prison officers intervened when the victim screamed. On 9 August 1989, the defendant was convicted of the offence “detain for advantage” and sentenced to 2 years imprisonment with a non-parole period of 18 months.

12. [16]

    In 1992, the defendant was living with a woman and her 13 year old daughter. The daughter alleged that one afternoon in that year, she and the defendant were riding bicycles to bushland, ostensibly to gather some plants. When they arrived at the bushland, the defendant placed his arm around her and pushed her to the ground. He removed her pants and inserted a finger into her vagina. The police facts state:

13. [17]

    She did not complain to police until October 1996. The defendant was interviewed by police in April 1997 and denied the allegation. The matter proceeded to trial in the District Court in December 1998. The defendant was indicted on three counts, being sexual intercourse with a child between 10 and 16 years; attempted sexual intercourse with a child between 10 and 16 years; and common assault. The defendant was acquitted of all three counts.

14. [18]

    On 21 December 1992, when aged about 30, the defendant went to the house of a sister of a former partner, at about 9:00pm. Her husband was at work and her two children, aged five and two, were asleep. The defendant forced the front door open, took hold of the victim around her neck, squeezed it and dragged her backwards. He told her to get her car keys, with the intention of taking her away. She refused to leave her children unattended. He struck her to the face, causing her to scream. He threatened to hit her harder if she screamed again and then pushed her out of the house. She tried to escape to a neighbour’s house but he gave chase, tackled her, held her by her throat, hit her to her face and pulled her over to her car. He forced her with further assaults to drive to a reserve area, where he had digital and penile-vaginal intercourse on pain of not seeing her children again, if she screamed. The defendant was convicted of aggravated sexual assault and kidnapping and sentenced on the former count to 12 years imprisonment with a minimum term of 9 years, and on the latter a fixed term of 3 years, to be served concurrently.

15. [19]

    In about 2005, the defendant married a woman who had three children. According to police facts, in mid-September 2006, following repeated acts of violence, she told him to move out, which he did. On 24 September 2006 at about 11:30pm, she went with her three children to local shops to make a phone call. On her return, she found the defendant was in the home. He grabbed her by her arms and “king hit” her to the back of her head, then in her chest. He went to a bedroom and returned with a fishing knife that he had left under a bed during a previous stay, which he held to her throat. She became compliant and the defendant relented. Two days later, she complained to officers of the New South Wales Department of Community Services, who contacted police. He was charged with common assault and being armed with intent to commit an indictable offence. However, when the matters came to court, no evidence was offered by the prosecution in relation to those charges. When the defendant was arrested, which was six months later at his place of residence, police seized a stun gun from his beside dresser. He was fined $100 for possessing a prohibited weapon without a permit.

16. [20]

    In 2008, when the defendant was aged 45, he was convicted of destroying or damaging property, stalking/intimidation with fear of physical or mental harm and common assault. According to police facts, on 26 May 2008, he was residing with his wife and her three children. In the course of a domestic violence incident, he threatened to kill his wife and one of her children, threw a knife at her which narrowly missed her and stuck into the wall behind her, grabbed her by her hair and repeatedly slapped and punched her face. She contacted the father of her children who attended with her brother and removed them. The defendant approached his wife at another address where she had sought refuge and again slapped her and punched her face with a closed fist. He then took a machete that he was carrying in a bag and smashed the windscreen and passenger windows of the children’s father’s car. On the first charge (destroying or damaging property) the defendant was sentenced to 9 months imprisonment with a non-parole period of 6 months, subject to supervision. For the other two offences he received wholly concurrent sentences of 6 months imprisonment.

17. [21]

    On 7 August 2008, police patrolling the suburb of Whalan observed the defendant in the company of his wife, in contravention of an apprehended violence order (“AVO”) and conditions of bail arising from the charges concerning the incidents of 26 May 2008. He was arrested and searched. A 30cm kitchen knife was found secreted in the front of his pants. He was convicted of contravening a prohibition or restriction in an AVO and custody of a knife in a public place. For the former offence he received a bond for a period of 2 years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and for the latter offence, a fine of $400.

18. [22]

    On 6 February 2009, the defendant was released from custody following the handing down of a s 9 bond for the 7 August 2008 offences. He immediately contacted his (by then) ex-wife to attempt a reconciliation, which she refused. On 19 February 2009, the defendant phoned his ex-wife and threatened to kill her. On 5 June 2009, the defendant was sentenced to 12 months imprisonment with a non-parole period of 6 months for the offence of use carriage service to threaten serious harm. He received an identical sentence for breaching the AVO. Both sentences were wholly concurrent with a sentence imposed on 16 April 2009, for one count of steal from the person (committed on 26 June 2008). For that offence, the defendant was sentenced to 16 months imprisonment with a non-parole period of 12 months.

19. [23]

    On 18 November 2011, when he was aged 49, the defendant was sentenced by English DCJ following a plea of guilty to a count of wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act. The facts were to the following effect. On the afternoon of Saturday 26 June 2010, shortly before sunset, the complainant was walking along a track near her home, known as the Florabella Pass, in the Blue Mountains between Blaxland and Warrimoo. As she descended the track to the valley floor, she passed the defendant walking up. They exchanged pleasantries as they passed. At the bottom, she noticed an illegal bush camp and continued on the track, but became concerned by the campsite and decided to head back up the track to her home. She saw the defendant walking towards her. He engaged her in conversation and she left. He followed her closely behind as she made her way up from the valley and after a while passed her. Further up the path, she came upon him sitting on a rock. He again followed her. In her remarks on sentence, English DCJ related what happened thereafter:

20. [24]

    The complainant rang her mother on her mobile phone and then called Triple Zero. The complainant’s father came down the track and stayed with her until police arrived. Ambulance officers arrived, provided first aid and carried her up the track. She was taken to hospital and was in intensive care for several days. Her injuries included severe wounds to her hand and neck, both requiring operative intervention. In surgery, it was discovered that the wound to her neck had lacerated her internal jugular vein, which required surgical repair, and which caused an extensive scar along her jawline. She was also required to have ongoing surgical treatment for the injury to her hand. When the defendant was arrested some days later in a suburb in Western Sydney, he was found to have a knife secreted in the front of his trousers.

21. [25]

    The defendant received a sentence of 10 years and 6 months, with a non-parole period of 7 years and 10 months. He became eligible for release to parole on 18 May 2018, although he was not directed by the State Parole Authority (“the SPA”) to be released to parole until 6 February 2020.

22. [26]

    A statement by the victim was tendered pursuant to s 21A of the Act, for consideration in respect of the plaintiff’s application. A copy was provided by the plaintiff to the defendant’s legal representatives. I have taken the contents of the statement into account on the application, pursuant to s 21A(4). The statement discloses, in my view, a remarkable degree of forbearance of the victim’s own suffering and continuing disabilities as a result of the attack, and insight as to where the interests of the community lie in the application. I commend her for it.

23. [27]

    The defendant has claimed to forensic experts, and to some of his victims in the course of his assaults, that he has committed numerous other offences of a violent and/or sexual nature over the years for which he has not been apprehended. An example is contained in a report by forensic psychologist Dr Graeme Robbie, dated 8 May 1985. Dr Robbie interviewed the defendant in 1980, 1982 and 1985. In relation to the 1985 examination, Dr Robbie stated:

24. [28]

    The defendant was assessed by Dr Alex Gilandis, clinical psychologist, when he was aged 19. Dr Gilandis administered the Wechsler Adult Intelligence Scale, which recorded a verbal IQ of 86, a performance IQ of 98 and a full-scale IQ of 91. Dr Gilandis concluded: “These scores suggest that current general intellectual functioning falls within the low average range (27th percentile)”. I note that Dr Furst and Mr Sheehan, who examined the defendant in February 2021, both accepted that the defendant does not have a cognitive impairment and that his level of intellectual functioning is in the low average range.

25. [29]

    As noted, in May 1984, when he was aged 21, the defendant was admitted as a patient to Morisset Hospital. There is no material before me as to the medical basis, if any, for the admission, only that it was apparently a condition of parole.

26. [30]

    In 1990, the defendant was diagnosed by Angelo Virgona, forensic psychiatrist, as having a “severe antisocial personality disorder”.

27. [31]

    There are references in medical reports concerning the defendant to suicide attempts. I have already mentioned his attempt when aged 11 or 12, reported to Dr Furst. Another example is in report by John Tonkin, psychologist, dated 28 July 1993, which refers to the defendant attempting suicide by cutting his neck in his prison cell two days earlier, and to there being an earlier similar incident in 1993.

28. [32]

    In 2019, the defendant was prescribed an antidepressant (Zoloft) by a psychiatrist, while he was participating in the Custody-based Intensive Treatment (“CUBIT”) program.

29. [33]

    The defendant told Dr Furst that he did not use prohibited drugs in his childhood and teens. He said that he started using heroin from around the age of 22 whilst in prison. When released from custody in 2005, he used heroin every few months, although his drug of choice was amphetamine, using 1g every two days. At that time, he was also consuming a 700ml bottle of bourbon every two days. Following his arrest for the index offence, he engaged in ongoing use of amphetamines, methylamphetamine and non-prescribed buprenorphine. Prior to his release in 2020, he commenced monthly injections of buprenorphine as part of an opioid substitution program, which he continues to receive.

30. [34]

    The defendant told Mr Sheehan that he began injecting amphetamine between 2005 and 2008, at one stage using 1g per week for a period of five months. He began injecting non-prescribed buprenorphine in custody. He said that his use of buprenorphine was not habitual until 2018-2019, when he was struggling to cope with the emotional demands of an intensive sex offender program. His persistent drug use resulted in his removal from the program prior to completion.

31. [35]

    As noted, the defendant was released to parole following his sentence for the index offence on 6 February 2020. Mr Sheehan noted:

32. [36]

    The defendant has tendered negative drug test results for the period 26 June 2020 to 3 March 2020.

33. [37]

    Mr Sheehan and Dr Furst concluded that the defendant has a poor history of compliance with supervision in the community, noting that he has offended on parole in 1981, 1983, 1984, 2008 and 2009. Dr Furst noted that the defendant often committed a serious offence shortly after release from prison, most notably his commission of the index offence in 2010, having been released from custody a month earlier, which was also committed whilst on bail.

34. [38]

    The defendant was released to parole for the index offence to the Nunyara Community Offender Support Program (“COSP”) Centre. Mr Sheehan noted that on the day of release, the defendant acknowledged having used non-prescribed buprenorphine in custody the day before but did “not think he had an issue with drugs”.

35. [39]

    Mr Sheehan reviewed the defendant’s progress in positive terms, since his release on parole:

36. [40]

    The defendant tendered selected case notes in relation to the defendant’s supervision since late 2020, generated by the Offender Integrated Management System (“OIMS”) and by Forensic Psychology Services, which is a community-located service provided by the Department of Corrective Services (“Corrective Services”). The reports indicate a reasonably active and positive attitude by the defendant towards his responsibilities as a supervised offender.

37. [41]

    It is alleged that, on 5 March 2021, which was the day of the hearing of this application, the defendant committed a criminal offence of a sexual nature. He was arrested and charged with a count of “sexually touch another person without consent”, contrary to s 61KC(a) of the Crimes Act. He was, and remains, bail refused, so that his ISO is suspended until such time as he is released back into the community.

38. [42]

    This application was relisted for 26 March 2021 so that the plaintiff could seek to tender material in relation to the alleged offence and the defendant respond, given its relevance to the application.

39. [43]

    The police facts allege that the defendant assaulted a fellow resident, a 23 year old male (“the resident”), at their place of low-cost accommodation. The resident and defendant were known to each other, having engaged in recreational activities together. The defendant was a member of caretaker staff at the facility, which gave him access to a master key for all doors. On the morning of 5 March 2021, the resident was asleep in his unit in the complex and awoke to the sound of his locked bedroom door opening. The defendant entered with a vape, saying “I bought your vape up for you”. He placed it on a desk and then lay down next to the resident. The defendant:

40. [44]

    In the afternoon of the same day, the resident was standing outside a window talking to another resident on the other side. The police facts continued:

41. [45]

    The police facts state that when arrested, the defendant accepted an offer to partake in an electronically recorded interview, during which he “denied having ever touched [the resident] in an inappropriate manner”.

Relevant provisions of the Act

1. [46]

   The Act relevantly provides as follows:

2. [47]

   A “serious offence” is defined in the Act as follows:

3. [48]

   In relation to the meaning of “a high degree of probability that the offender poses an unacceptable risk” in s 5B(d), I take into account s 5D:

4. [49]

   Another requirement is that the offender is a “supervised offender”:

5. [50]

   Sections 5B(a)-(c) of the Act oblige the plaintiff to satisfy certain threshold requirements in their application for an ESO. The defendant does not contest, and I am satisfied, that ss 5B(a), (b) and (c) are established.

6. [51]

   At the time of the application, the defendant was serving a sentence of imprisonment (defined in s 5I(3) to include being released on parole) for a serious violence offence, as defined in s 5A(1), being the index offence of wound with intent of causing grievous bodily harm: s 5B(a). The defendant does not dispute, and I am satisfied, that he qualifies as a “supervised offender”, within the meaning of s 5I: s 5B(b).

7. [52]

   With respect to s 5B(c), the Act requires pursuant to s 6(3) that an application for an ESO be supported by documentation that (a) addresses each of the matters referred to in s 9(3); and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing, in the case of an ESO application, a serious offence: s 6(3)(b). I note that the latter requirement has been complied with. I will consider each of the matters referred to in s 9(3) below.

8. [53]

   The Act stipulates objects and a paramount consideration, when determining an application:

9. [54]

   I note that, pursuant to s 5C, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites are satisfied.

10. [55]

    The determination of an ESO application requires certain material to be taken into account, that is identified in s 9(3). Reports have been prepared pursuant to ss 9(3)(b), (c) and (d1) which also address the requirements of ss 9(3)(d), (e), (e1) and (i).

The forensic reports pursuant to s 7(4)

1. [56]

   Dr Furst prepared a report dated 11 February 2021. Dr Furst considered that in his examination, the defendant was “superficially cooperative” and:

2. [57]

   Dr Furst diagnosed the defendant as meeting the criteria for three mental disorders: antisocial personality disorder; alcohol/substance use disorder; and paraphilic disorder, not otherwise specified. Dr Furst elaborated on each of these disorders as follows:

3. [58]

   As to how these disorders contribute to the defendant’s risk of committing a further serious offence, Dr Furst said:

4. [59]

   Dr Furst considered that the defendant poses “a very high risk of committing a further ‘serious offence’ of sexual nature and a very high risk of committing a further ‘serious offence’ of violent nature”. He concluded:

5. [60]

   Dr Furst nevertheless was of the opinion that the risk of committing a further serious offence posed by the defendant could be managed in the community under an ESO:

6. [61]

   Dr Furst considered that the conditions of supervision outlined in the further amended summons are appropriate for the defendant’s management pursuant to an ESO, including provisions in relation to the sharing of information between healthcare professionals. He continued:

7. [62]

   As to the appropriate length of an ESO, Dr Furst said:

8. [63]

   Mr Sheehan’s report is dated 13 February 2021, which pre-dates the recent alleged offence. Mr Sheehan noted that the defendant acknowledged some same-sex activity when he was aged 17 and on one occasion in prison in his twenties. Mr Sheehan said:

9. [64]

   Mr Sheehan noted that the defendant had failed to complete any Alcohol or Drug programs (“AOD”) and that he seemed to underplay the significance of his substance use history.

10. [65]

    Mr Sheehan also diagnosed the defendant as having an antisocial personality disorder, and thought it was abating. He said:

11. [66]

    Mr Sheehan noted that the defendant has never engaged in an intensive treatment program specifically addressing violence but has participated in intensive sex offender programs on several occasions. Mr Sheehan considered that it made little difference whether the defendant participated in sex offender or violence offender programs, given the significant overlap in content. He said:

12. [67]

    Mr Sheehan continued:

13. [68]

    Mr Sheehan recorded that the defendant had partaken in 11 sessions with correctional psychologists with expertise in the assessment and treatment of sexual offenders. The psychologists’ notes suggest that he engaged well.

14. [69]

    Mr Sheehan assessed the defendant’s risk of sexual re-offending by using static and dynamic risk assessment tools, known as the Static-99R and the Risk of Sexual Violence Protocol (“RSVP”) respectively. He also assessed the defendant’s risk of violent (other than sexual) re-offending using a tool known as the Violence Risk Scale (“VRS”) that combines an assessment of static and dynamic risk factors. Mr Sheehan concluded:

15. [70]

    Mr Sheehan concluded with guarded optimism:

16. [71]

    Mr Sheehan could not exclude a possible diagnosis of sexual sadism.

The Risk Assessment Report pursuant to s 9(3)(c)

1. [72]

   A Risk Assessment Report, dated 11 May 2020, was prepared by Samuel Ardasinski, a senior forensic psychologist. Mr Ardasinski reviewed the defendant’s criminal history in detail, and concluded:

2. [73]

   And later:

3. [74]

   Mr Ardasinski noted that the defendant has a poor history of compliance with community supervision. However, at the time of his interview of the defendant, he had been at conditional liberty for three months and at that stage he appeared to be complying reasonably well with his parole conditions.

4. [75]

   Mr Ardasinski noted that the defendant had previously been assessed using the Level of Service Inventory - Revised (“LSI-R”), which he described as an actuarial risk instrument that provides an indication of a level of risk of general and violent recidivism within 12 months post-release, an individual’s needs in terms of supervision if released on parole and criminogenic needs, which can be targeted in treatment programs. It comprises both static and dynamic factors related to general offending. The defendant had been last assessed using the LSI-R in March 2020 by Community Corrections staff. His risk and needs were assessed as falling within the medium/high risk-needs category for general and violent offending. Mr Ardasinski noted that the defendant had been assessed using the VRS in 2016 and assessed as being within the high risk range of being convicted of further violent offences within five years of release.

5. [76]

   Mr Ardasinski decided to administer further assessment tools, explaining:

6. [77]

   Mr Ardasinski’s assessment was summarised by Hoeben CJ at CL in the course of the preliminary judgment, at [36], which I adopt:

The Risk Management Report pursuant to s 9(3)(d1)

1. [78]

   A Risk Management Report, dated 17 June 2020, was prepared by Erin Kirkwood, a senior Community Corrections Officer with the ESO Team of Corrective Services. Ms Kirkwood proposed a plan for managing the defendant in the community so as to minimise the risk of him committing further serious offences. The plan included weekly interviews to be conducted in the context of home and field visits or when he reported to a community corrections office. The visits would be both scheduled and unannounced. Surveillance would be conducted by Community Corrections and the ESO Investigations Team at least once per month. Electronic monitoring would be deployed, subject to approval by this Court. It would allow for the imposition of exclusion zones around high risk locations and those relative to the defendants known risk factors, such as alcohol use. The defendant had reported a willingness to continue to engage with Corrective Services Psychological Services, and contact would be maintained with his treating therapists in order to confirm his attendance, level of engagement, and to discuss his progress or to identify and manage any concerns that may arise.

2. [79]

   The case notes pertaining to the period that the defendant has been under supervision in the community, when subject to parole until his total sentence expired on 3 January 2021 and thereafter to the ISO, are generally positive. It is clear that the defendant has been making a significant effort to maintain a law-abiding lifestyle, and cope with the demands of conditions of parole and the ISO.

The views of the sentencing court for the index offence: s 9(3)(h1)

1. [80]

   In the course of her Honour’s remarks on sentence for the index offence, English DCJ said:

The offender’s criminal history and any other information: ss 9(3)(h) and (i)

1. [81]

   I have earlier reviewed the defendant’s history of convictions and findings of guilt. As to whether there are any “patterns of offending behaviour disclosed by that history” (s 9(3)(h)), there are recurring elements in the defendant’s serious criminal convictions as far back as his first serious offence when he was aged 17. His victims are females who he often grabbed by their throat or hair, threatening them with a knife that he was carrying on his person or had nearby, often holding it to their throat. He would punch his victims, particularly to their face. In relation to his sexual offences, he sometimes told his victims in advance that he intended to “rape” them and otherwise taunted them, suggesting to me that he deliberately inculcated terror, deriving pleasure from that misogynistic exercise.

2. [82]

   There are three categories of other material of a criminal character that has been tendered on the application and which is of questionable relevance to the matters to be taken into account pursuant to the Act.

3. [83]

   The first such category comprises two sets of criminal charges that did not result in a conviction or finding of guilt. As noted, the defendant was acquitted in December 1998 of the child sexual assault charges (“the 1988 matters”). In 2007, no evidence was offered in court in respect of charges of common assault and being armed with intent to commit an indictable offence (“the 2007 matters”).

4. [84]

   No objection was taken to the admissibility of that material, but a question remains as to its relevance. In State of New South Wales v Conway [2011] NSWSC 588, Simpson J, as her Honour then was, considered in a hearing for preliminary orders pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) whether unproven criminal admissions made by a defendant with a borderline intellectual disability came within s 9(3)(h) or (i) of that Act, which were in the same terms as their current counterparts in the Act. Her Honour said:

5. [85]

   At the hearing for final orders in the same matter (State of New South Wales v Conway [2011] NSWSC 976), Davies J considered Simpson J’s finding that the unproved admissions of criminal liability came within the term “criminal history” in s 9(3)(h). His Honour found some support for that approach in Weininger v R (2003) 212 CLR 629; [2003] HCA 14, in which the High Court in a majority judgment considered that a sentencing judge had not erred in declining to afford an offender who had no prior convictions the usual degree of leniency that followed that fact, because of admissions by him to uncharged criminal acts. Davies J also referred to State of NSW v Thomas [2010] NSWSC 677, which was an application pursuant to the Crimes (Serious Sex Offenders) Act 2006 for an ESO. In State of NSW v Thomas, Buddin J noted that the parties accepted that evidence of offences for which the defendant had been acquitted were relevantly taken into account by forensic experts for the purpose of a STATIC 99 assessment of the defendant’s level of risk of committing a further serious sexual offence.

6. [86]

   Davies J concluded that State of NSW v Thomas did not assist in determining whether unproven admitted criminal acts came within s 9(3)(h) and approached the issue as one of construction, determining that although the word “including” might be thought to suggest a non-exhaustive listing by what is contained within the parentheses, that was not necessarily so, and in this instance denoted “means and includes”. Davies J concluded:

7. [87]

   I agree with Davies J’s reasoning. In relation to his Honour’s reference, at [39], to s 9(3)(a), the Crimes (Serious Sex Offenders) Act 2006 included s 9(3)(a): “the safety of the community”. An identical provision in the Act was repealed and, in its stead, s 9(2) was introduced.

8. [88]

   I would add that my reading of the subsection is that the only apparent purpose of the words in brackets is to extend the matters that can be taken into account as part of the offender’s criminal history to extra-jurisdictional proven criminal offences:

9. [89]

   I note that at [39] of State of New South Wales v Conway, Davies J found that the offending behaviour admitted by the defendant would only be relevant to s 9(3)(a) and (i) if was also “supported by external evidence”.

10. [90]

    In State of New South Wales v Veeran [2015] NSWSC 75, which was an application made pursuant to the Act for an ESO at a time prior to s 93(a) being repealed, R A Hulme J said, at [16]:

11. [91]

    With respect to his Honour, I note that Davies J in State of New South Wales v Conway had only given weight to matters that were admitted and “supported by external evidence”.

12. [92]

    In State of New South Wales v Haouchar [2018] NSWSC 1436, which was an application for an ESO made pursuant to the Act, R A Hulme J rejected an application by the plaintiff to take into account on the application a charge against the defendant of “wound with intent to murder” although no evidence had been offered by the prosecution when the complainant failed to attend court. His Honour said, at [34]:

13. [93]

    In State of New South Wales v Haouchar the plaintiff also sought to rely upon parts of a recorded conversation between the defendant, whilst he was being held in prison, and a visitor, in which the visitor made admissions about a shooting that had occurred the day before, and they discussed how the visitor might avoid apprehension. The defendant was charged with accessory after the fact to attempted murder; concealing a serious indictable offence; and participating in a criminal group. He was tried and found not guilty. R A Hulme J said:

14. [94]

    In my view, his Honour’s reasoning in State of New South Wales v Haouchar, with which I agree, is consistent with that of Davies J in State of New South Wales v Conway. Applying that reasoning to the question in the instant case of whether material concerning the 1988 and 2007 matters, being matters that were not admitted by the defendant and for which there was no finding of guilt, is relevant to any of the considerations pursuant to s 9(2) or (3), I am of the view that that material should be disregarded.

15. [95]

    As noted, the defendant claimed to have committed sexual offences for which he has not been investigated or charged. None of those admissions were specific as to a named person, place or time. Applying the reasoning of Davies J in State of New South Wales v Conway, in the absence of objective corroboration of any of the claims, I disregard them.

16. [96]

    A third category of material that involves an unproven criminal allegation is the recent charge of sexual touching, which is denied by the defendant and has not yet been resolved (“the 2021 allegation”). In my view, this matter falls into a different category from the other two. Although the defendant has not been charged with a breach of the ISO, it is nevertheless relevant to his compliance with conditions of the ISO.

The parties’ submissions and consideration

1. [97]

   In written and oral submissions, the defendant has not resisted the making of an ESO for two years as sought by the plaintiff, if the Court is satisfied that the material justifies such an order.

2. [98]

   I am satisfied that the case for an ESO is made out by the material that has been tendered by the plaintiff. In the terms of s 5B(d), I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision pursuant to an ESO.

3. [99]

   The history of the defendant’s criminal convictions is profoundly concerning. I accept the diagnosis of antisocial personality disorder and its central role in explaining the defendant’s serious offending. I note the expert opinion expressed in the DSM-5, as noted by Mr Ardasinski, that offenders with an antisocial personality disorder frequently “burn out” in their fourth decade, in that their criminal behaviour tends to become less serious. However, the defendant did not fit that scenario. He committed the index offence when he was aged 49.

4. [100]

   Mr Sheehan summarised the defendant’s progress in custodial treatment programs as “tepid”. He did not complete the CUBIT program in 2000 and lasted only a week when he tried again in 2003. He failed to complete the HISOP program in 2019 due to a failed drug test, although he was only a week short of the program’s end. The defendant’s progress in community-based therapy since February 2020, as summarised by Mr Sheehan, is also problematic; he engaged well with his therapist but denied failed drug tests and struggled with a candid discussion of his offences, which I note has been a recurrent issue.

5. [101]

   Although in the 13 months the defendant resided in the community he did not commit a serious sexual or violent offence, that is to be assessed in the context that he was closely supervised over that period. The 2021 allegation, discussed at [41]-[45] above, is disturbingly similar behaviour to that which prompted his removal from the CUBIT program in 2003.

6. [102]

   Nevertheless, there is also evidence in the form of the OIMS notes that, since his conditional release into the community, he has demonstrated a positive attitude to rehabilitation and has made a concerted effort to live within the restrictions of parole and, since January 2021, the conditions of the ISO. From this perspective, the positive drug test in March 2020 and the 2021 allegation are missteps in an otherwise encouraging trajectory towards rehabilitation.

7. [103]

   I accept Dr Furst’s opinion that the defendant is at a very high level of risk of committing a further serious offence of a sexual and/or violent nature. I am satisfied that the length of the ESO should be the maximum period that has been sought by the plaintiff, which is two years.

8. [104]

   The remaining issues for determination are the conditions of the ESO.

Conditions of the ESO

1. [105]

   Section 11 of the Act provides that an ESO may direct an offender to comply with such conditions as this Court considers appropriate, including, but not limited to, certain stated directions. I accept that, in determining which conditions are appropriate, guidance may be obtained from the terms of s 3, which require the Court to balance the primary object of the Act to ensure the safety and protection of the community, with another object of the Act to encourage the offender’s rehabilitation.

2. [106]

   In State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 the Court, referring to the power to make orders, said, at 408:

3. [107]

   I am conscious that, as well as conditions to an ESO being infringements on the liberty of an offender, a breach of a condition may be prosecuted as a criminal offence, which in my view necessitates an approach to the fixing of conditions that ensures that they are crafted so as to avoid, as far as possible, an inevitable breach by the defendant.

The conditions in dispute and my determination

1. [108]

   Some of the draft conditions of an ESO that were scheduled to the further amended summons were reformulated following negotiations between the parties prior to and during the final hearing. I approve of all the agreed conditions. Those few conditions that remained in dispute are now considered.

2. [109]

   The plaintiff sought a condition to the effect that the defendant must wear electronic monitoring equipment as directed by a Departmental Supervising Officer (“DSO”) and must not tamper with, or remove, the equipment. The defendant sought a sunset clause, so that he would not be subject to it for the entire period of the ESO.

3. [110]

   There was evidence to the effect that such a condition is reviewed in set stages, the first stage being lengthy. The defendant had been subject to this condition since his release on parole and, throughout that 13 month period, he remained in the first stage. Coincidentally, his level of electronic monitoring was due for review on 10 March 2021, being the day before his arrest.

4. [111]

   I was initially attracted to the submission that the condition of electronic monitoring should be subject to a sunset provision, but having considered the material that bears on the degree to which the defendant poses a risk of committing another serious offence, I am of the view that the defendant should be subject to this condition throughout the period of the ESO. In so deciding, I take into account that there have been extended periods of time over the defendant’s adulthood in which he has lived an apparently law-abiding life in the community, but then committed another serious offence. This demonstrates to me that he is capable of complying with conditions of liberty for extended periods and then seriously relapsing, in which case a continuing condition permitting the authorities to utilise electronic monitoring as long as they deem it appropriate is justified.

5. [112]

   At the hearing on 5 March 2021, the defendant expressed concern that if compliance with the rules or by-laws or both of approved accommodation is made a condition of the ESO, a breach would have the status of a criminal offence. Counsel for the defendant noted that this is so “in the circumstances where he has been complying and showing cooperation”. The proposed condition overlapped with another general condition, to the effect that the defendant is obliged to obey the reasonable directions of the DSO, and compliance with house rules would clearly be such a direction.

6. [113]

   The plaintiff submitted that the condition ensures compliance by the defendant and a breach would not automatically require “high level breach action”; there is an element of discretion. The defendant countered that police may independently take action.

7. [114]

   In view of the 2021 allegation, which is alleged to have occurred at the defendant’s place of residence, I will make the condition as sought by the DSO.

8. [115]

   The plaintiff sought a condition in the following terms: “The defendant must not frequent or visit any place or district specified by a DSO”. The relevant condition in the ISO was modified in accordance with terms sought by the defendant, as follows:

9. [116]

   The plaintiff submitted that in the circumstance that the DSO is not familiar with a place that the defendant proposes to visit, the DSO would be obliged to let him visit that place. It may later transpire that the place is inappropriate for the defendant to visit. The defendant submitted that it unnecessarily constrains his movements, although his counsel proposed some variation in the wording to address the plaintiff’s concern.

10. [117]

    Acting on the defendant’s proposal, I will impose a condition in the following terms:

11. [118]

    The intended effect of the condition, as drafted, is that it avoids the concern expressed by the plaintiff of a presumption in favour of the defendant being permitted to make such a visit when the DSO has insufficient information as to the proposed visit’s impact on risk and other ESO conditions.

12. [119]

    The plaintiff sought a condition that the defendant be obliged to provide information to the DSO, if sought, as to his financial affairs, including his income and expenditure. The relevance of the condition is that it would provide a means to check that the defendant was not purchasing prohibited drugs or alcohol.

13. [120]

    I am inclined to include the condition, in view of the defendant’s drug use in prison, the positive drug test early in March 2020 and the defendant’s continuing dependence on prescribed buprenorphine in order to deal with his issues of drug addiction.

14. [121]

    The plaintiff sought a condition in the following terms:

15. [122]

    The defendant submitted that the need for the defendant’s criminal history to be disclosed was sufficiently covered by another condition (condition 59 of the ISO conditions), that obliged the defendant to disclose his criminal history to treating health care professionals. I accept that there may be persons other than treating health care professionals who have a need to be aware of the defendant’s criminal history and I am satisfied that the condition is appropriate.

16. [123]

    The defendant submitted that prior notification was sufficient for this purpose, whereas the plaintiff submitted that some clubs may be inappropriate for the defendant to join, such as clubs with predominantly young women as members. The defendant withdrew its objection on the basis that “writing” is defined in the conditions to include text messages.

17. [124]

    I am satisfied that prior approval is appropriate.

18. [125]

    I am of the view that the condition should require the defendant to do so immediately.

19. [126]

    The plaintiff submitted that without such a condition, the defendant may seek to attend a female practitioner in circumstances deemed by the DSO to be unsuitable. The defendant submitted that another condition, which obliges him to inform treating healthcare professionals of his criminal history, is sufficient. I am satisfied that the condition is necessary.

20. [127]

    The plaintiff sought a condition that the defendant be obliged to permit the sharing of information between agencies that are involved in his supervision. The defendant resisted such a condition in broad terms, because it would permit information to be shared with the NSW Police Force and Corrective Services as a whole, rather than only those officers who have a supervisory function in relation to the ESO. The plaintiff submitted that there are many aspects of Corrective Services beyond the ESO team who are involved in the provision of services and supervision of offenders who are subject to an ESO and who thus should be able to receive relevant information. Further, there are police officers attached to an agency known as the Extended Supervision Order Investigation Team (“ESOIT”) who carry out related duties such as surveillance of offenders, to ensure their compliance with the conditions of an ESO, and who therefore have a reasonable need for updated information.

21. [128]

    I am satisfied that the need for such a condition is made out, but insofar as police are concerned the sharing of information is to be limited to members of the ESOIT, except for the purpose of the ESO team reporting a suspected criminal offence by the defendant.

Orders

1. [129]

   I make the following orders: