State of NSW v TD (Final)

1. [1]

   By summons dated 25 June 2020, the State of New South Wales (the plaintiff) seeks an order that the defendant, TD, be subject to a 2 year Extended Supervision Order (“ESO”) under ss 5B, 5I, 9(1)(a) and 11 of the Crimes (High Risk Offenders Act 2006 (NSW) (“the Act”).

2. [2]

   TD is a 25 year old Aboriginal man who has been convicted of two sexual offences concerning 14 year females. One of these offences was committed whilst he was still a juvenile so he is not to be identified: s 15A Children (Criminal Proceedings) Act 1987 (NSW). The first offence involved him having sexual intercourse with a 14 year old girl when he was 17 years of age. The second offences involved him “grooming” a 14 year old girl for the purposes of unlawful sexual activity when he was 21 years old.

3. [3]

   On 3 August 2020, a preliminary hearing was conducted before me. TD did not oppose the making of an interim supervision order (“ISO”) at that time. Nor was there any opposition to orders being made, pursuant to s 7(4) of the Act, that two experts, Mr Patrick Sheehan and Dr Richard Furst, be appointed to conduct examinations of the defendant and produce reports to the court. I was satisfied at that time that it was appropriate for those orders to be made: State of New South Wales v TD (Preliminary) [2020] NSWSC 1034.

4. [4]

   The final hearing in this matter proceeded before me on 14 October 2020. TD opposed the imposition of an ESO.

5. [5]

   The State relied on a folder which was marked Exhibit A which included the summons, an affidavit of Lisa Springer sworn 24 June 2020, an affidavit of Sarah Najjar affirmed 25 September 2020, submissions, short minutes of order, a copy of the preliminary judgment and the sealed expert reports of Dr Richard Furst and Mr Patrick Sheehan dated 13 September 2020 and 28 August 2020, respectively. Both Dr Furst and Mr Sheehan gave evidence concurrently at the hearing. At the conclusion of the hearing I reserved my decision.

6. [6]

   For reasons I have set out below, I am not persuaded that the relevant statutory test has been met in this matter.

The Legislative Scheme

1. [7]

   The primary object of the Act is to provide for the extended supervision and continuing detention of “high risk” sex offenders and “high risk” violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act. Although this is the primary object, s 3(2) of the Act provides that “another” object is to encourage such high risk offenders to undertake rehabilitation.

2. [8]

   The Court’s power to make an ESO is discretionary. Section 5B of the Act provides that the Court “may” make an order for a supervision of a person in the community if four pre-conditions are made out.

3. [9]

   First, the person must be an “offender” who is serving (or who has served) a sentence of imprisonment for a “serious offence” either in custody or under supervision in the community: s 5B(a) of the Act. “Offender” is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a “serious offence”, either by way of full-time detention or intensive correction in the community.

4. [10]

   Section 4(1) of the Act defines “serious offence” so as to include a “serious sex offence”. “Serious sex offence” is comprehensively defined in s 5 of the Act which relevantly provides as follows:

5. [11]

   As stated above, on 5 July 2018 the defendant was sentenced for the offence of groom child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act. That offence is in Division 10 of Part 3 and is thus a “serious sex offence” within the meaning of s 5(1)(a) of the Act. I am satisfied that TD is an “offender” who has served a sentence of imprisonment for a “serious offence”.

6. [12]

   Secondly, the person must be a “supervised offender” (within the meaning of s 5I): s 5B(b) of the Act. The definition includes an offender who, when the application for the order is made, is under supervision while serving a sentence of imprisonment for a serious offence: s 5I(2)(a)(i) of the Act. The defendant was on parole with respect to the index offence when this application was made by the State. I am satisfied that the defendant is a “supervised offender” and he did not contend otherwise.

7. [13]

   Thirdly, an application for an ESO must be made in accordance with s 5I: s 5B(c) of the Act. Section 5I provides that the defendant must be a “supervised offender” at the time that the application is made. Given that the summons was filed before the expiry of the defendant’s term of imprisonment, I am satisfied that an application was made in accordance with s 5I and the defendant did not contend otherwise.

8. [14]

   The fourth statutory pre-condition to the making of an ESO is that the Court must be satisfied to a “high degree of probability” that the offender poses an “unacceptable risk” of committing another “serious offence” if not kept under supervision: s 5B(d) of the Act. It was this fourth statutory pre-condition which was the subject of considerable dispute in this matter and of which I was not ultimately satisfied.

9. [15]

   Section 9(1) of the Act provides that an application for an ESO may be determined by either the making of an ESO or by dismissing the application. Section 9(2) of the Act provides that in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration of the Supreme Court”.

10. [16]

    Section 9(3) of the Act provides that in determining whether or not to make an ESO the court “must” have regard to the matters enumerated in s 9(3) “in addition to any other matter it considers relevant”. Given the mandatory requirements in s 9(3) of the Act, I propose to summarise the material relied upon by the State by reference to those matters. Before I do so, I will first set out a brief chronology of the events in the defendant’s life relevant to this application and then consider them in more detail under the s 9(3) headings.

TD’s background

1. [17]

   TD was born in regional NSW. His parents separated when he was four years old. He is not in touch with either of them. He attended the local primary school. He was of approximately average academic ability but he had difficulty concentrating and was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).

2. [18]

   By the age of 16 years he had also been diagnosed with Asperger's Disorder, Tourette's Syndrome, Tic Disorder, Oppositional Defiant Disorder and Generalised Anxiety. A child psychiatrist also diagnosed complex Post-Traumatic Stress Disorder, apparently arising from acute episodes of bullying at school.

3. [19]

   TD undertook high school studies at the local Catholic College from Year 7 – 11. He did not drink alcohol at high school and did not use illicit drugs, being focused on health and fitness. He started truanting frequently from Year 8 and was expelled during Year 11 when he engaged in a physical fight with a teacher. There were significant problems with his mother, who split from his stepfather and found a new partner when TD was aged between 15-16 years. He was asked to leave the home aged 17 years. He went to live with the family of a school friend.

4. [20]

   He repeated the latter half of Year 10 at another high school but was expelled during the first term of Year 11 after he and several other students assaulted a younger student. He was a keen footballer, including playing in the New England region and more recently playing first division Rugby Union.

5. [21]

   There is a family history of mental illness, his father being diagnosed with schizophrenia.

6. [22]

   TD is currently in a relationship with a woman he met in high school. They have been together since October 2019.

7. [23]

   He has a 4 year old son from a previous relationship.

The s 9 factors

1. [24]

   In 2013, TD was convicted of sexual intercourse with a person aged 14 years or over and under 16 years contrary to s 66C(3) of the Crimes Act. The victim was aged 14 and left school to meet TD. TD encouraged the victim to enter a public toilet in a park where they engaged in penile-vaginal intercourse. After the victim disclosed this to her older brother, she made a complaint to police. Following TD’s guilty plea he was released on a s 33(1)(e) bond under the Children (Criminal Proceedings) Act for 12 months, without recording of the conviction, on 5 November 2015.

2. [25]

   The index offence for which TD is currently serving a sentence is grooming a child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act. The background to this offending was summarised by Mahoney DCJ in R v [TD] [2018] NSWDC 180 at [6]-[12]. In brief, the victim was 14 years of age and TD knew her through her older sister. In mid-March 2017, he made contact with her through Facebook messenger. She told him that she was 14 years of age and he told her that he was 21 years old. Mahoney DCJ summarised the following events this way:

3. [26]

   The two then arranged for TD to stay at the victim’s house between 28 April and 2 May 2017. The two discussed the sexual acts that would occur during that stay. TD then requested nude photographs of the victim. Sixteen of these were sent and were classified as “Category 2, Other Child Abuse Material”. As Mahoney DCJ observed:

4. [27]

   TD was arrested when he arrived at the victim’s residence on 1 May 2017. Whilst in custody, bail refused, he contacted the victim on a daily basis, asking her to send him photographs of herself and to put money into his account. TD was sentenced to 3 years imprisonment with a 2 year non-parole period. This was served concurrently with a 12 month sentence of imprisonment for possessing child abuse material contrary to s 1H(2) of the Crimes Act. The child abuse material was naked photos of the same victim.

5. [28]

   In sentencing TD for the index offence Mahony SC DCJ found that the offending fell within the mid-range of objective seriousness for a charge of that nature. His Honour found that the s 66EB(3) offence was objectively serious, providing the following reasons at [72]:

6. [29]

   TD’s criminal history meant that he was not entitled to leniency. His Honour noted TD’s “troubled childhood” of bullying. However, he noted that, despite TD’s history of mental illness as a child, he could not make a finding of reduced moral culpability because of the paucity of medical evidence at the time of sentencing. He also found that TD was a suitable vehicle for general deterrence.

7. [30]

   His Honour made a finding of special circumstances on the basis that TD required rehabilitation and was young. He also noted that “[g]iven his criminal antecedents, any assessment of his risk of re-offending would have to be guarded. It is clear that previous courses undertaken by the offender, relating to his anger management and risk of re-offending, were entirely unsuccessful.”

8. [31]

   TD was released to parole on 24 August 2019. He was placed on strict parole conditions at that time which included electronic monitoring. He remained on those conditions until the ISO I imposed on him commenced on 24 August 2020. Since that time, his conditions have included wearing electronic monitoring equipment, providing a weekly schedule of movements and seeking approval from a DSO if he needs to deviate from this schedule. He has, thus, been under intense supervision since 24 August 2019.

9. [32]

   As for his compliance with supervision, the affidavit of Ms Najjar dated 25 September 2020 annexed the Offender Integrated Management System (“OIMS”) notes for the period 29 May to 22 September 2020. They relevantly reveal that the defendant regularly informed his supervising team of his whereabouts, including when he would complete his activities early, and sought a permission to depart from his pre-approved weekly schedules of activities when needed. The notes from 29 May 2020 to 22 September 2020 demonstrate that TD continuously sought permission from his DSO whenever he wished to deviate from his agreed schedule. By way of example, the OIMS notes dated 14 June 2020 indicate that TD contacted Corrective Services approximately four times to advise that he was running late to a scheduled activity, that he had completed a scheduled activity early and the expected time of arrival at his residence. On 10 September 2020, he called Corrective Services to query whether they had called him, as he had received a call from a private number.

10. [33]

    The OIMS notes also record that the defendant was polite and presented positively and cooperatively during his reviews and that there were no issues or charges in relation to him. A few minor incidents were noted, namely:

    1. (1)

       TD attended a job interview on 9 September 2019 and was directed to disclose his current circumstances by Community Corrections. He did not abide by this direction.

    2. (2)

       A breach of parole report was submitted on 3 January 2020, outlining a failure to comply with a formal direction to cease social media use and to disable all social media accounts in his name.

    3. (3)

       TD was also reprimanded for evading chores at his Community Offender Support Program Centre ("COSP") in 2019, failing to keep to a pre-arranged budget, and not making payments on time. It was later noted that this had improved.

11. [34]

    Section 6(3)(b) of the Act provides that an application for an ESO must include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) “that assesses the likelihood of the offender committing a further serious offence”.

12. [35]

    A report complying with that requirement was prepared by Mr Samuel Ardasinski, registered psychologist, on 23 December 2019 and headed “Risk Assessment Report” (“RAR”). I considered it in some detail in my preliminary judgment. The Executive Summary of the RAR is in the following terms:

13. [36]

    As for TD’s risk scenario, Mr Ardasinski considered that:

14. [37]

    This RAR was critical to my preliminary consideration of this application and the orders I made on 6 August 2020.

15. [38]

    The additional report of Mr Sheehan and Dr Furst were before me by the time of the final hearing. They can be summarised as follows.

16. [39]

    Mr Patrick Sheehan completed a report on 28 August 2020. He interviewed TD for 2.5 hours. He reported that TD had good concentration, showed good recall of dates, and was “not grandiose, although he did show some haughtiness. At times he would overplay his success or professional standing in a way that was out of keeping with his circumstances.” He further commented that:

17. [40]

    Mr Sheehan then summarised TD’s upbringing, education history and family circumstances. As for his employment, Mr Sheehan noted that:

18. [41]

    Mr Sheehan noted a long history of poor social adjustment. TD had known his current partner since high school, with the relationship becoming romantic from October 2019. Although TD was attracted to the two 14 year old victims, he denied a particular interest in this age group.

19. [42]

    In relation to TD’s “very complex” psychiatric history, Mr Sheehan noted that his early adulthood and adolescent behaviour could be indicative of Antisocial Personality Disorder. Despite this, he noted that the full range of factors indicative of such a disorder was not present. There were also indicators of Narcissistic Personality Disorder. Mr Sheehan observed that:

20. [43]

    Later, when discussing TD’s results as assessed against the RSVP (detailed further at [62] below), Mr Sheehan noted that TD appeared to have a number of psychopathic traits. These were “Superficial, Grandiose, Deceitful, Irresponsible, lacks goals, doesn't accept responsibility, lacks empathy, impulsive, adolescent antisocial behaviour, adult antisocial behaviour, poor behaviour controls, adolescent antisocial behaviour, adult antisocial behaviour”. However, in light of TD’s recent improvement under supervision and historical diagnoses of Autism Spectrum Disorder, Mr Sheehan did not diagnose TD with psychopathy.

21. [44]

    Mr Sheehan then summarised TD’s offending, institutional adjustment and supervision history, highlighting a note from a psychological session on 29 July 2020 that:

22. [45]

    In terms of TD’s overall risk, Mr Sheehan noted the following:

23. [46]

    He opined that the most likely further sexual offending would be in the context of a relationship and occur because of TD’s desire for “adulation, validation and sexual gratification”. In conclusion, he noted that TD had made good use of his parole period, but noted that this was a limited period of positive functioning.

24. [47]

    Dr Furst interviewed TD for 90 minutes on 21 August 2020. In his report, he detailed TD’s demographic details, offence-related issues and criminal history. In terms of recent progress, he noted that TD had been living with his partner for the past few months and intended to obtain a job in the racing industry. Dr Furst assessed him as “alert and engaging throughout the assessment period, being lucid, logical and expansive”.

25. [48]

    After reviewing the offender’s criminal history, Dr Furst assessed TD as not displaying indications of a major mental disorder, signs of a depressed mood or as meeting the criteria for the a diagnosis of a persistent depressive disorder or of a major depressive disorder. He commented that:

26. [49]

    Dr Furst identified TD’s dynamic risk factors as: capacity for relationship stability; lack of prosocial supports; feeling socially rejected/isolated; antisocial peers and impulsivity and “being online”. He noted, however, that these risk factors had “probably diminished somewhat” over the past 12 months. In Dr Furst’s assessment, this was because TD had largely complied with supervision, did not appear to be condoning sexual offending against children, did not appear to have current sexual preoccupation, was not presenting as antisocial or psychopathic, was in a relationship and was socially engaged through playing football. He concluded that:

27. [50]

    Dr Furst was not of the opinion that TD should complete a specific sex offender treatment program such as MISOP/HISOP. Nor was he of the opinion that an ESO was required.

28. [51]

    He stated that further psychological treatment would enable TD to address his personal risk factors and stated that this might be achieved by TD seeing his local GP and being referred to a clinical psychologist pursuant to a mental health care plan, or potentially attending Relationships Australia.

29. [52]

    Mr Sheehan and Dr Furst gave evidence together before me on 14 October 2020. In terms of dynamic risk factors, Mr Sheehan stated that he had taken into account the improvements in TD’s life, which had led to greater stability. He was also of the opinion that such stability would continue if TD was placed on a reduced level of supervision.

30. [53]

    Mr Sheehan stated that his concern was that if TD’s supervision was removed, it is unclear if TD’s stability would continue. He commented that:

31. [54]

    Mr Sheehan accepted that the current supervision regime had resulted in an attenuation of TD’s risk factors. Nonetheless, he stated that, in his experience, the best results are obtained when supervision is curtailed gradually over time. Such a system allows the supervisee to demonstrate their ability to manage their risk over time. He stated that TD was currently under fairly intensive supervision and that he would have more confidence in TD if his autonomy was gradually given back to him. He was of the view that an ESO would be more appropriate than a Child Protection Prohibition Order (“CPPO”) for managing TD’s risk.

32. [55]

    Dr Furst was of the opinion that TD’s risk factors had improved. He attributed this to TD’s current relationship. Like Mr Sheehan, Dr Furst was not confident that his risk had disappeared entirely. He attributed TD’s improvement to the supervision and the disincentive it provided to commit offences as well as TD’s continuous engagement with psychological therapy.

33. [56]

    When questioned by TD’s counsel, Mr Sheehan agreed that TD’s progress would rely on his capacity to remain offence-free, to stay away from antisocial peer groups and to engage in prosocial activities, in addition to any potential supervision. He agreed that TD had demonstrated “real motivation” in these areas.

34. [57]

    Mr Sheehan was presented with Dr Furst’s conclusion that “[a]n assessment of current dynamic risk factors probably places [TD] in the low to moderate risk category relative to other male sex offenders.” He stated that although there were some differences between his assessment and Dr Furst’s assessment, there was a “broadly consensual” view that TD was within the moderate range.

35. [58]

    In terms of TD’s sexual behaviour, Mr Sheehan agreed that if TD had simply committed the earlier “statutory rape” offence (see above at [23]) then TD would not be assessed for paraphilia. However he stated that:

36. [59]

    Mr Sheehan stated that TD’s risk of committing a serious sexual offence would likely involve “a very idiosyncratic specific interest in 14-year-olds”. Dr Furst added that:

37. [60]

    Ultimately, there was very little disagreement as between the experts. That difference could best be described as the exact risk posed by TD, even though both agreed that he fell within a “moderate” category”.

38. [61]

    Mr Sheehan assessed TD against the Static-99R. As he explained in his report, the Static-99R provides an estimate of future risk based on a number of risk factors present in any one individual. The total score (obtained by adding all the items) ranges from 3 to 12. Mr Sheehan assessed TD as having a score of 7, which placed him in the “high risk” or “well above average risk” category.

39. [62]

    Mr Sheehan also assessed TD using the RSVP, which involved judging TD’s risk according to 22 dynamic risk factors. He listed TD’s dynamic risk factors as being:

    1. (1)

       Sexual Violence History;

    2. (2)

       Psychological Adjustment;

    3. (3)

       Mental Disorder;

    4. (4)

       Social Adjustment; and

    5. (5)

       Manageability.

40. [63]

    Dr Furst similarly assessed TD against the Static-99R, while noting its limitations. His total score was 6, which placed him in the “well above average risk” category. When comparing recidivism rates from samples taken from NSW, Dr Furst observed the following:

41. [64]

    Dr Furst also suggested that offenders who only offend online, for example by accessing child pornography, are different to those who physically offend against children. The latter group, according to Dr Furst, had a higher amount of antisocial traits and were a “higher risk group.”

42. [65]

    TD was assessed by Mr Ardasinski on 13 December 2019. Mr Ardasinski used the STABLE-2007, STATIC-2002R, VRAG-R and RSVP as assessment tools. When assessed against the 13 items in the STABLE-2007, TD was found to have a moderate density of criminogenic needs relative to other male sexual offenders.

43. [66]

    TD’s score on the STATIC-2002R was 9 when assessed by Mr Ardasinski. This placed him in the Level IVB (High risk) category. His score on the VRAG-R was 29, using 12 static risk factors. This classified him as high risk when compared to other violent offenders.

44. [67]

    When assessed with the RSVP, TD was estimated as Moderate/Elevated risk category for repeat sexual violence. Mr Ardasinski judged TD as within the “Moderate to Moderate-High” risk category for sexual offending relative to other adult male sexual offenders. He did note that this was based on TD’s dynamic risk profile and that dynamic risk factors are amenable to change through participation in treatment or other intervention.

45. [68]

    TD was not able to complete a structured sex offender program due to the length of his sentence. During his period on remand he undertook an anger management course and re-offending course. TD then completed individual sessions with a psychologist, Ms Kate Solomon. This continued over several months from 12 November 2019.

46. [69]

    As Dr Furst noted in his report, the FPS Psychology Service Progress Notes indicated that TD had made positive progress and was able to reflect on the causes of his offending in the past. In his report, Dr Furst was of the view that TD did not require treatment with psychotropic medication. However, he noted that:

47. [70]

    In her affidavit dated 25 September 2020, Ms Najjar deposed that correspondence received from the Senior Police Lawyer, Senior Sergeant Matthew Price, confirmed that the Child Protection Register Team were no longer considering a CPPO for the defendant.

48. [71]

    A report was prepared for the purposes of the preliminary hearing: State of New South Wales v TD (Preliminary). As I noted at [46] of that judgment, Ms Ashley-Ann Newby, a Community Corrections officers, explained that a management strategy for TD would likely involve comprehensive supervision, including weekly interviews and non-contact orders from Community Corrections.

49. [72]

    It was submitted that although the court-appointed experts are highly significant to the court’s consideration, their evidence is not the only material that the court is to have regard to. The State submitted that the court should look at the matter holistically. Reliance was placed on the nature of the most recent offence which involved a degree of manipulation and emotional abuse and was committed whilst the defendant was on parole.

50. [73]

    It was submitted that it was open to the court to conclude that it is the intensive supervision, including close monitoring and scheduling, that has contributed in a material way to the attenuation of the dominant risk factors. The State accepted that there had been improvement in the defendant, and there had been a continuation, at least to some extent, of those risk factors identified in the various expert reports. It was also accepted that TD had gained motivation.

51. [74]

    The State noted that both experts agreed, even after the conclusion of their oral evidence, that the defendant continues to possess at least some risk factors. As for their evidence generally, it was submitted that their reports were “nuanced”. The State urged the court to have regard to those nuances and not to deal just with their conclusions. By way of example, it was noted that Mr Sheehan took the view that there should be a lower degree of supervision and that this would probably lead to a reduction of risk but he could not be confident as to the result if there was to be no supervision at all. Mr Sheehan also made an observation that the defendant did not seem to have full insight into the offending in connection with the first of the two major offences.

52. [75]

    It was submitted that the statutory test was not satisfied in this matter.

53. [76]

    It was noted that, although the State placed significant reliance on Mr Ardasinski's RAR at the preliminary hearing, the State had backed away from that report to some extent at the final hearing.

54. [77]

    It was submitted that the State had failed to grapple with the finding the court was required to make as to risk based on the expert evidence of both Mr Sheehan and Dr Furst. It is for the State to discharge the application and establish the matters to the court’s satisfaction. It was noted that Mr Sheehan’s evidence was not that Dr Furst's view is unreasonable.

55. [78]

    It was submitted that it was common ground that TD has made gains and that if he continues with these gains his risk is going to be significantly lower than on the actuarial scores. The evidence is not that he cannot maintain those gains without supervision nor has there been a good reason proffered why he would not maintain those gains. It was submitted that the State’s position did not reflect the relevant statutory test; that is, the position of the State was that an ESO should be made unless the court positively found that TD will not maintain the gains he has made without supervision.

56. [79]

    The court’s attention was drawn to sentences imposed for contraventions of an ESO in other cases. It was submitted that the State had been zealous in prosecuting for minor breaches. In 60 cases in the last 12 months, 93 % of offenders have been imprisoned. Counsel for TD submitted that this created the statistical risk that if TD breached an order in a way other than committing an offence he could be returned to prison. If this occurred his positive progress could be derailed and such an outcome could not be consistent with the aims of the legislation which is the protection of the community through successful rehabilitation.

Consideration

1. [80]

   The determination of this application turns on whether I am satisfied to a “high degree of probability” that unless TD is placed on an ESO he poses an “unacceptable risk” of committing a “serious sex offence” as defined. His particular risk has been assessed as engaging in “consensual” sexual interactions within the context of an intimate relationship with a female who is around 14 years of age. Such an interaction would likely follow a period of stress or distress, such as a relationship breakdown. I am required to evaluate the risk of TD re-offending in that particular respect based on the material put before the court.

2. [81]

   It has been held that the term “high degree of probability” constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal observed at [21]:

3. [82]

   The phrase “unacceptable risk” is not defined in the Act, although s 5D provides:

4. [83]

   It has been held that the phrase "unacceptable risk" in the Act should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA).

5. [84]

   In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]):

6. [85]

   These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

7. [86]

   In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J observed the following at [14]-[17]:

8. [87]

   I have had regard to all the mandatory factors in s 9(3) of the Act as well as s 9(2). I have summarised these above. I have had particular regard to the expert evidence of Dr Sheahan and Dr Furst, and the defendant’s recent progress as reflected in the OIMS notes.

9. [88]

   There was ultimately very little disagreement between the two court-appointed experts. I found Mr McGorey’s cross-examination of Mr Sheehan particularly helpful. Mr Sheehan conceded two things in cross-examination. The first was that motivation is required for improvement. Mr Sheehan observed that he has seen a lot of defendants in proceedings such as these in relation to whom he would not have the same degree of optimism that he would be able to succeed without an ESO as TD. To put this another way, Mr Sheehan’s evidence was that, unlike other offenders, he could not state with any certainty that TD would not do well if he was not being supervised.

10. [89]

    Secondly, Mr Sheehan’s evidence was that most defendants on release do not commence pro-social relationships so quickly. TD is in a pro-social relationship with a woman his own age. In this way, two of the factors assisting TD are his own motivation and his pro-social relationship. It could not be said that it is solely the ESO which has been the cause of his rehabilitation.

11. [90]

    Another pertinent aspect of Mr Sheehan's evidence was his observation that if TD had only committed the first of the two sexual offences there would be no reason for concern, or, as he put it, “we wouldn't be here”. That is because a sexual relationship between a 17 year old and a 14 year old is not usually considered an episode of paedophilia. It was the second offence when TD was 21 and the victim was 14 that raises the questions of unacceptable risk in this matter. In this context the fact that TD does not express the same level of remorse for the first offence as for the second is to some extent understandable.

12. [91]

    It was the conclusion of Dr Furst that TD did not require an ESO in order to continue his rehabilitation. Mr Sheehan did not specifically address this question because he considered it to be the legal test for the court. In this context Mr Sheehan ultimately conceded that he, Mr Ardasinski and Dr Furst had reached a broad “consensus”:

13. [92]

    All three relevant experts assess the level of risk as in the moderate range. That assessment is relevant to whether I am satisfied to a “high degree of probability” that unless TD is placed on an ESO he poses an “unacceptable risk” of committing a “serious sex offence.” I accept the submission of the State that the question is not to be determined solely on the reports of the court-appointed experts. The number of mandatory factors in s 9(3) of the Act makes that clear. But the fact remains that the weight of the evidence of the court appointed experts militated against the need for an ESO in this matter and they both had regard to most of the other matters enumerated in s 9(3) of the Act in their evidence. This raises the question of what additional material the State relies upon in order to satisfy the relevant statutory test.

14. [93]

    The statutory test would not be met in this matter if the court was satisfied that the defendant poses an unacceptable risk of committing any type of offence, sexual or otherwise, unless supervised; it must be a “serious” sex offence of the type identified in the State’s application. That risk scenario is very narrow. It is not suggested that TD would force a female under the age of 16 (but above the age of 14) to have sexual intercourse with him. It is not suggested that he is at risk of engaging sexually with females under the age of 14. There is no identified risk that he would use violence or force. His sole risk is that if he was under stress he would groom a female of 14-15 years of age online in order to have sexual intercourse with him.

15. [94]

    TD committed sexual offences when he was 17 and 21 respectively. He is now 25 and in a pro-social relationship. His explanation for the second offending was that he sought admiration and attention and thought that a young partner would look him with more adulation than a partner his own age. The age gap between TD and 14 year old females will widen with the effluxion of time. There is no doubt that there are still aspects of his personality that troubled the court appointed experts, such as his grandiose ideas. But these matters do not address the risk contemplated as unacceptable in the Act.

16. [95]

    I have had regard to all of the defendant’s risk factors and how they are being managed. Taking all of the material before me at its highest, it is possible that the defendant will engage in further general criminal activity if not supervised. But that is not the test. I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not supervised.

ORDERS

1. [96]

   I make the following orders:

   1. (1)

      The summons is dismissed.

   2. (2)

      The Interim Supervision Order due to expire on 14 November 2020 is revoked.

   3. (3)

      The plaintiff is to pay the defendant’s reasonable costs of the proceedings on the ordinary basis.