State of New South Wales v Hudson (Final)

1. [1]

   By Summons, dated 13 October 2022, the State of New South Wales (the plaintiff) seeks a two-year Extended Supervision Order (ESO) against Ian James Hudson (the defendant), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. [2]

   By way of final relief, the plaintiff seeks the following orders:

   1. (1)

      pursuant to ss 5B and 9(1)(a) of the Act, that the defendant be the subject of an ESO for a period of two years;

   2. (2)

      pursuant to s 11 of the Act, that the Court direct the defendant, for the period of the ESO, to comply with the conditions set out in the Schedule annexed to the Summons; and

   3. (3)

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

3. [3]

   The defendant does not oppose the making of an ESO for a period of two years and concedes that the Court would be satisfied, to a high degree of probability, that he poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

4. [4]

   The present dispute between the parties is of limited compass and concerns two conditions of the ESO:

5. [5]

   The following table details the plaintiff’s proposed conditions, the defendant’s position, and the plaintiff’s response:

6. [6]

   Although the defendant does not oppose the making of an ESO for two years and the issues are of narrow compass, it is necessary that the Court be satisfied, on the material tendered in the hearing, that the statutory test is met.

Legislative Framework

1. [7]

   In determining whether final supervision orders should be made, regard must be had to the objects enunciated in s 3 of the Act. The primary object of the Act, stated in s 3(1), is to:

2. [8]

   Although this is the “paramount consideration”, s 3(2) of the Act provides that a secondary object is to encourage such offenders to “undertake rehabilitation”. In making orders, I must have full regard to the various objects of the Act.

3. [9]

   It is important to note that the Court’s power to make an ESO is discretionary. Section 5B of the Act provides that the Court “may” make an order for the supervision in the community of a person.

4. [10]

   Section 5B of the Act further sets out a four-tier test for the making of an order:

5. [11]

   For the purposes of s 5B(a) of the Act, an “offender” is defined under s 4A as a person who:

6. [12]

   A “serious offence” is defined in section 4 of the Act as being either a “serious sex offence” or a “serious violence offence”. These two categories of offences are further defined in ss 5 and 5A of the Act respectively.

7. [13]

   Secondly, a person is deemed to be a “supervised offender” within the meaning of s 5I of the Act. The definition includes an offender who, when the application for the order is made, is in custody or under supervision –

8. [14]

   Thirdly, an application for an order must be made in accordance with s 5I of the Act. This includes satisfying the Court that the offender is a “supervised offender” at the time the application was made.

9. [15]

   The final statutory pre-condition requires the Court to 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.

10. [16]

    In determining whether an ESO ought to be made, I must also consider the factors set out in s 9 of the Act. Section 9(1) provides that an application for an ESO may be determined by either making an order or by dismissing the application. Section 9(2) once again mandates that the “paramount consideration” when making a determination is to ensure the “safety of the community”.

11. [17]

    Section 9(3) of the Act goes on to provide that in determining whether or not to make an ESO, the Court “must” have regard to a list of matters contained within the section. This list is non-exhaustive, and the Court may also have regard to “any other matter it considers relevant”. I intend to address the matters to be considered under s 9(3) of the Act more completely below.

Background

1. [18]

   On 22 February 2019, the State of New South Wales filed an amended Summons seeking an ESO of three years duration to be made in respect of the defendant.

2. [19]

   On 13 December 2019, Button J ordered that the defendant be subject to an ESO (the previous ESO) for a period of three years from 13 December 2019, and made orders directing the defendant to comply with the schedule of conditions set out in Schedule A of his Honour's judgment: see State of NSW v Hudson [2019] NSWSC 1761.

3. [20]

   On 23 December 2019, the defendant was released from custody in Victoria and returned to New South Wales to commence the first extended supervision order. The defendant was serving an aggregate term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, for one count of having sexual intercourse with a person aged between 14 and 16 years. An identical count was taken into account on a Form 1. In 2008 or early 2009, an interposing event occurred, and the defendant was sentenced to an aggregate term of 6 years and 4 months imprisonment, with a non-parole period of 4 years and 4 months, for offences of sexual penetration of a child under 16 years of age. The defendant then breached his obligations as a convicted child sex offender. As a result, he was placed on a suspended sentence. The defendant’s parole was then revoked, with the result that he served the balance of his parole in custody until 23 December 2019, on which date all his custodial sentences expired: see State of New South Wales v Hudson [2019] NSWSC 1761 at [8], [9].

4. [21]

   The first extended supervision order expired on 22 December 2022.

5. [22]

   On 16 December 2022, Davies J made interim orders pursuant to s 7(4) of the Act, appointing experts to examine the defendant and directing the defendant to attend the examinations. Davies J also imposed an interim supervision order (ISO) on the defendant pursuant to ss 10A and 11 of the Act: see State of New South Wales v Hudson (No 2) (Preliminary) [2022] NSWSC 1655 (Hudson (No 2) (Preliminary)).

6. [23]

   At that time, the defendant was remanded in custody awaiting sentence for pending criminal charges, namely two counts of failing to comply with the Previous ESO. Pursuant to s 10(2) of the Act, the ESO was suspended as the defendant was in “lawful custody”.

7. [24]

   The previous ESO was revoked with effect from 26 January 2023 by Davies J, at which point the ISO commenced.

8. [25]

   Since his release from custody, having served a three month sentence of imprisonment imposed for the November Charges, the defendant has been subject to an ISO. The ISO was imposed on 16 December 2022 and commenced on 11 February 2023, when the defendant was released from custody, having served the three month sentence.

9. [26]

   Until early 2022, the defendant was compliant with the previous ESO. He participated in treatment, completed sex offender programs, commenced employment, and was (and continues to be, subject to what is said below) in an intimate relationship with Rebecca Norris.

10. [27]

    Ms Norris has children, including teenage daughters. Since early 2022, there have been several concerns about the defendant’s concealed attempts to contact Ms Norris’s teenage daughters, including on at least one occasion, an attempt to be alone with one of Ms Norris’s teenage daughters.

11. [28]

    On 17 March 2022, an allegation was made that the defendant had concealed contact with Ms Norris’ children. The subsequent events are set out in the risk management report of Wendy Dryden dated 12 September 2022, and in the OIMS notes.

12. [29]

    The allegation caused the ESO team to conduct several home, vehicle, and device searches. During an inspection on 23 March 2022, the ESO team identified that messages had been sent between the defendant and Ms Norris’ 14 year old daughter, encouraging her to spend time alone with him.

13. [30]

    The defendant was issued with a warning for the messaging in circumstances where he had been directed not to contact Ms Norris’ children. There were also messages between Ms Norris and the defendant when she discovered that the defendant had been messaging Eileen.

14. [31]

    On 1 September 2022, the defendant was issued with a formal written warning concerning alleged non-compliance with certain conditions of his ESO. The warning related to the following matters.

15. [32]

    On 11 November 2022, the defendant was arrested and charged with two counts of failing to comply with his ESO (November Charges).

16. [33]

    The first offence alleged that the defendant, between 31 October 2022 and 1 November 2022, was in the presence of Rebecca Norris at his home address. The second offence alleged that between 1 October 2022 and 8 November 2011, whereby the defendant failed to comply with the non-association direction, namely that he was in the company of Rebecca Norris.

17. [34]

    The November Charges first came before the Gosford Local Court on 11 November 2022. The defendant was refused bail and was remanded in custody on that date. The proceedings were adjourned to 24 November 2022. The defendant pleaded guilty to the charges, and on 24 November 2022, the matter was adjourned for sentence to 2 February 2023. On 2 February 2023, the defendant was sentenced to 3 months imprisonment. He was released on 11 February 2023, and his ISO came into effect.

18. [35]

    In 2008 and early 2009, when the defendant was 27 and 28 years of age, the defendant committed sexual offences against two child victims, the first in New South Wales (the Index Offending) and the second in Victoria (the Victorian Offending).

19. [36]

    On 31 July 2009, the defendant was sentenced by her Honour Judge Pullen at the Melbourne County Court in relation to the Victorian offending. The defendant pleaded guilty to:

    1. (1)

       six counts of sexual penetration with a child under 16;

    2. (2)

       one count of production of child pornography;

    3. (3)

       one count of procuring a minor for child pornography; and

    4. (4)

       one count of committing an indecent act with a child under the age of 16 and one count of theft.

20. [37]

    The defendant was sentenced to an aggregate sentence of six years and 4 months imprisonment, commencing on 31 July 2009, with a non-parole period of 4 years and 4 months imprisonment.

21. [38]

    On 9 September 2016, following his release on parole in Victoria and extradition to New South Wales, the defendant was sentenced by Lerve DCJ at the Dubbo District Court in relation to the Index Offending, which comprised two charges of having sexual intercourse with a 14 year old female in April 2008. Following pleas of guilty, the defendant was sentenced to a term of imprisonment of 3 years and 6 months, commencing 9 September 2015, and expiring 8 March 2019. A non-parole period of 2 years and 3 months imprisonment was imposed, expiring on 8 December 2017.

Submissions

1. [39]

   The plaintiff submitted that the defendant poses an “unacceptable risk” of committing a serious sex offence unless he is kept under supervision under an ESO. The plaintiff contended that this is consistent with the views previously reached by this Court in relation to the previous ESO. The plaintiff relies upon the defendant’s criminal history involving serious sex offences against female minors. The plaintiff contended that the consequences of repeat offending would be extremely grave, and the Court is faced with circumstances where the defendant’s present partner has three minor female children.

2. [40]

   The plaintiff contended that whilst there is no doubt that the defendant has shown he has worked at addressing his dynamic risk factors, given the risk assessment tools and the elevated non-compliance with authorities exhibited towards the end of the previous ESO, it is too early to be confident that, without supervision, the defendant does not pose an unacceptable risk of repeat offending. The plaintiff contended that the defendant’s personality traits make him vulnerable to impulsivity, and the statistical assessment tools categorise him in the high-risk category of repeat offending with moderate criminogenic needs.

3. [41]

   The plaintiff submitted that if the Court is satisfied that the defendant poses an unacceptable risk of committing a serious sex offence it nonetheless retains a discretion as to the making of an ESO: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 2016 (Lynn) at [47]–[48], [64], [82], [149].

4. [42]

   The Court may take into account matters such as the impact of the ESO on an offender’s liberty and privacy: see New South Wales v Ibrahim (Final) [2021] NSWSC 793 at [336]. However, in the context of the Act, and the paramount importance of the safety of the community, “it would be an unusual case before the [C]ourt would decide in its discretion not to make an ESO”: see Kamm v New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [57]; New South Wales v Ibrahim (Final) [2021] NSWSC 793 at [333].

5. [43]

   The plaintiffs submitted that there is no reason this Court would not exercise its discretion to make an ESO in the event it was satisfied that the threshold requirements under the Act were satisfied.

6. [44]

   In relation to condition 5, the plaintiff submitted that the condition proposed by the defendant is not sufficient because it does not allow the DSO to impose scheduling in response to or to prevent an escalation in the defendant’s risk.

7. [45]

   In relation to condition 19, the proposed amendment has the effect that the defendant’s DSO cannot tell the defendant not to associate with Ms Norris, even in circumstances where that association may be connected with an increase or potential increase in the defendant’s risk, including a risk to the safety of Ms Norris or her children.

8. [46]

   The plaintiff contended that arrangements are on foot to formulate a “relationship integration plan” to commence a staged approach whereby the defendant and Rebecca Norris can associate.

9. [47]

   The defendant submitted that the conditions sought by the plaintiff could be adapted to enable the defendant to have contact and association with Ms Norris and to overcome difficulties concerning last-minute deviations from any schedule of movements.

10. [48]

    The defendant’s submissions can be summarised as follows:

    1. (1)

       the defendant does not oppose the making of an ESO as sought by the plaintiff for a period of 2 years from the date of the order;

    2. (2)

       the defendant concedes that the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision under the order;

    3. (3)

       in the event that the Court makes an ESO, the Court would not make an order in respect of all of the conditions sought by the plaintiff;

    4. (4)

       the defendant agrees to an order in terms of prayer 4 of the Summons concerning the restriction of access to the Court’s file in the proceedings; and

    5. (5)

       The defendant seeks amendments to conditions 5 and 19.

Evidence

1. [49]

   Given the confined issues on this application, I intend to summarise the evidence in relatively brief form. Much of what follows is taken from the summary of evidence, which was very helpfully provided in the plaintiff’s written submissions.

Section 9(3) Factors

1. [50]

   In compliance with the orders made by Davies J, the defendant was examined by Dr Gordon Elliott and Patrick Sheehan, the reports were furnished to the Court on 4 February 2023 and 17 February 2023 respectively.

2. [51]

   Dr Elliott conducted a psychiatric assessment of the defendant by video link on 3 February 2023.

3. [52]

   Dr Elliott considered that the defendant was “forthcoming about his psychosexual history”, although noted that elements of his account were inconsistent with the documentation. Dr Elliott observed that “Mr Hudson was initially confident and assured as well as forthcoming about his sexual offending, but as the discussion progressed his account grew to be considerably at odds with his criminal record”. He was “keen to recount the benefits of his sex offender treatment programs, and also keen to tell me that he has identified now why his problems and sexual offending occurred”. Dr Elliott recorded:

4. [53]

   The defendant described the Previous ESO as “a very tough struggle”. In relation to the present proceedings, Dr Elliott opined:

5. [54]

   Dr Elliott considered that there was no evidence that the defendant suffers from a major mental illness. He identified that the defendant’s childhood and adolescent Tourette’s and obsessive-compulsive disorder (OCD) were in long-term remission. He observed that the collateral documentation indicated that the defendant’s intellectual functioning falls within the borderline range. Dr Elliott went on to state:

6. [55]

   In relation to the question of whether the defendant poses a risk of committing a further “serious sex offence” or “serious violence offence” (as defined in the Act), Dr Elliott opined:

7. [56]

   Dr Elliott considered that the defendant’s risk may fluctuate over time, and that social isolation, stress, relationship conflict and access to victims were all “potential red flags”. He did not consider that the defendant’s risk could be managed in the community without an ESO and opined:

8. [57]

   Dr Elliott concluded that the defendant should be managed under the conditions in force under the ISO. He considered that a minimum further period of two years was suitable.

9. [58]

   Mr Sheehan interviewed the defendant for 2 hours and 30 minutes in person. Mr Sheehan noted that “[u]nsurprisingly, he tended towards positive impression management, seeking to present favourably and avoiding information that was unflattering to him unless specifically prompted”. Mr Sheehan opined that the defendant “reported feeling frustrated, exasperated and undermined by his ESO”. The report given by the defendant about his family history was “roughly consistent” with previous reports, with some differences.

10. [59]

    Mr Sheehan observed:

11. [60]

    Mr Sheehan further opined:

12. [61]

    Having considered the defendant’s criminal and custodial history, Mr Sheehan opined:

13. [62]

    Although the defendant expressed frustration with how his previous ESO “played out”, and felt that he was treated unfairly and arbitrarily, he was able to state that he had also made poor decisions that contributed to his situation.

14. [63]

    Mr Sheehan considered that the defendant’s current score on the STATIC-99R was 6, consistent with Mr Ardasinski’s assessment in September 2022, which is the highest risk range on that instrument. Mr Sheehan acknowledged that the STATIC-99R has limitations.

15. [64]

    In relation to the Risk of Sexual Violence Protocol Tool (RSVP), Mr Sheehan noted that he would regard the defendant’s history of sexual violence as “chronic in terms of persistence and at times frequency”. He noted that “[t]here is clear evidence of escalation during the defendant’s juvenile sex offending but this would appear to have plateaued in his adult offending”. Mr Sheehan stated that the defendant acknowledged his sexual offending but showed a tendency to focus on nonsexual motivations and “avoids dealing with the sexual deviancy evident in his offending”, although he did not engage in extreme minimization or denial. Mr Sheehan opined:

16. [65]

    Mr Sheehan observed that “sexual deviance is strongly and specifically associated with sexual violence, although on its own may be unnecessary or insufficient for the perpetration of sexual violence”. Mr Sheehan noted that the defendant has a history of sexual deviance, with diagnostic criteria for paraphilia being met (although it is a non-exclusive type of paraphilia). Mr Sheehan did not consider that the evidence supported a diagnosis of major mental illness. Mr Sheehan stated that the defendant has a long history of “serious problems” in intimate relations, and in establishing sexual relationships with minors. He observed that “[d]uring his ESO, his social reintegration was hampered by a combination of his reticence, COVID-19, and the difficulties of establishing friendships whilst subject to intensive supervision”.

17. [66]

    In relation to manageability, Mr Sheehan made the following comments:

18. [67]

    In terms of serious violent offending (as opposed to serious sexual offending), Mr Sheehan concluded that the defendant was at low risk of violence. In relation to risk scenarios and overall risk, Mr Sheehan opined:

19. [68]

    Mr Sheehan concluded that the proposed conditions were adequate to reasonably manage the defendant’s risk of sexual recidivism. He noted that the “primary means of managing the defendant’s risk will be through managing his associations, promoting stability, self-regulation, transparency and positive social engagement that might reduce his sense of social rejection”. He made the following specific comments:

20. [69]

    Mr Sheehan concluded:

21. [70]

    Both appointed experts identified that the defendant poses a risk of committing a serious sex offence if he is not the subject of supervision, and both experts consider that this risk can be managed in the community. These reports support the making of an ESO.

22. [71]

    Samuel Ardasinski prepared a risk assessment report on 5 September 2022 (RAR), and a supplementary risk assessment report on 23 September 2022 (supplementary RAR). Mr Ardasinski interviewed the defendant for approximately 2 hours on 29 July 2022. In the interview, the defendant accepted responsibility for his offences and “presented with relatively good insight into his risk profile and the differences between his current situation and the situation he was in when he offended in 2008”.

23. [72]

    Mr Ardasinski commented:

24. [73]

    The RAR states that the defendant reached his 300 hours of treatment by the time he was released to the community in 2019, and after this, the defendant continued to participate in psychological interventions. The RAR stated:

25. [74]

    Mr Ardasinski’s key opinions on risk included:

26. [75]

    The RAR noted the defendant’s engagement with intervention and compliance with his ESO has been “adequate”. Mr Ardasinski considered the totality of evidence suggested that the defendant falls in the high-risk category for sexual offending relative to other adult male sexual offenders, with a moderate level of criminogenic needs. It was unclear to Mr Ardasinski how the risk may materialise, whether it was a repeat of how he committed his past offences or whether it may be a “third scenario” within the family unit. Mr Ardasinski acknowledged the uncertainty around predicting the risk of that third scenario eventuating.

27. [76]

    Holly Cieplucha prepared a report dated 24 August 2018.

28. [77]

    Ms Cieplucha opined that the defendant posed a high risk of repeat sexual offending because of his impulsivity, general social rejection, and history of sexual deviance (although Ms Cieplucha noted that the defendant denied that he had such thoughts anymore) and that he has used sex as a coping mechanism. Ms Cieplucha noted that while the defendant “purports to have developed prosocial coping strategies over the course of the sex offender treatment these strategies lack depth”. Given his history of problems in this area it should be considered an ongoing risk factor until there is further evidence of his ongoing ability to cope. Ms Cieplucha acknowledged protective factors in the defendant’s life which included his stable relationship with his partner, Ms Norris, and that he was committed to work and continued to engage and show a willingness for offence-targeted treatment.

29. [78]

    Ms Lau, Forensic Psychologist at the Serious Offenders Assessment Unit, prepared a report dated 15 February 2022 (ESO Completion Report).

30. [79]

    The ESO Completion Report noted child protection concerns:

31. [80]

    Although FACS recommended that the defendant could gradually have increased contact with Ms Norris’ children, this position changed when it was discovered the defendant had been contacting Ms Norris’ 14 year old daughter in early 2022.

32. [81]

    The ESO Completion Report summarises the defendant’s sessions with Forensic Psychology Services (FPS), which he attended from March to December 2020. Ms Lau stated that she observed that the sessions with FPS focused on emotion regulation, self-esteem, interpersonal skills, particularly in an intimate context, and attitudes towards young females and women. As for any treatment gains, Ms Lau opined:

33. [82]

    Ms Lau was the defendant’s treating psychologist from April 2021. Ms Lau stated that her sessions focused on supporting the applicant to develop a comprehensive self-management plan which focused on mediating his risk to children and on his thoughts, feelings and attitudes around his offending. In relation to Mr Hudson’s treatment gains, Ms Lau opined:

34. [83]

    Ms Lau looked at the risk factors identified in the risk assessment report of 2018 (presented for the first ESO application) and assessed whether those dynamic risk factors had been mitigated or were present at all. Ms Lau’s findings included the following.

35. [84]

    Ms Lau did not recommend a further ESO and opined:

36. [85]

    The recommendation of Ms Lau, however, was during the period of February 2022, and was premised on the defendant maintaining stability. It was also prior to learning that the defendant had been contacting Ms Norris’ children without her knowledge and in breach of his ESO. There were still some concerns regarding the defendant’s risk factors and there was also an overall impression that Ms Lau was not confident that the defendant could manage his risks with stressors or instability in his life.

37. [86]

    Although Ms Lau did not consider a further ESO was required, she expressed the view before the defendant’s non-compliance with the previous ESO and contact with Ms Norris’ children.

38. [87]

    The primary other reports of relevance are the RAR and the supplementary RAR which support the making of an ESO.

39. [88]

    Ms Dryden, Corrections Community Officer, furnished the Court with a report dated 12 September 2022 (the RMR).

40. [89]

    The RMR sets out that the defendant commenced treatment with FPS on 14 February 2020, within individual risk management sessions on a fortnightly basis. Ms Dryden commented on the defendant’s satisfactory response to supervision, engagement with FPS and progression to stage 3 electronic monitoring (electronic monitoring, no schedules and no curfew).

41. [90]

    The defendant commenced treatment with the Serious Offender Assessment Unit – High Risk Offenders (SOAU-HRO) around April 2021, which was to support the defendant in developing a comprehensive self-management plan which focused on mediating his risk to the children if he were to live with Ms Norris (Ms Lau was the treating psychologist). Ms Dryden stated that her contact with his psychologist revealed that the defendant engaged well in his treatment sessions and appeared to have maintained gains that he made during his participation in custody-based treatment. This ended in April 2022 and the defendant returned to sessions with FPS.

42. [91]

    In July 2022, the defendant was resistant to sessions with FPS, which saw the need for him to be issued with a direction to attend and participate. The defendant has not breached that direction.

43. [92]

    Ms Dryden raised the following concerns relevant to assessing the defendant’s risk:

44. [93]

    The RMR sets out that the defendant engaged with his partner’s Family and Community Services (FACS) centre with the aim of being permitted access to his partner’s children. As set out above, contact was about to be given when on 17 March 2022, there was an allegation made to FACS that the defendant was having concealed contact with Ms Norris’ children since January 2022.

45. [94]

    The RMR also noted that warnings had been issued to the defendant (since June 2022) for failing to declare the possession of laptops to his DSO, failing to provide updated passwords and passcodes, and that the Google browser had the setting for recording the search history turned off. In September 2022, the defendant was issued another warning for failing to charge his tag as directed and being increasingly hostile to ESO officers.

46. [95]

    The RMR suggests a management plan that could mitigate the defendant’s current risks which include non-association with children without being in the presence of a responsible adult, monitoring access to the internet and conditions regarding accommodation.

47. [96]

    The Court was furnished with a High Intensity Sex Offender Treatment Report (HISOP) dated 19 March 2019.

48. [97]

    The defendant participated in, and completed the HISOP, from 28 May 2018 to 28 February 2019. This custody-based program is for men who have sexually abused adults and/or children. The defendant also participated in 52 sessions of the Victorian equivalent from 16 May 2013 to 5 December 2013. The defendant was observed to find the initial stages of HISOP difficult and responded aggressively in those situations, but later showed a “positive behaviour change”. The defendant was “actively seen implementing strategies within the wing regarding his general behaviour and relationships with others”. The author of the HISOP report considered that the test for the defendant will be how he fares in the community. The identified dynamic risk factors at that time included intimacy deficits and making meaningful connections with others, impulsivity and sexual self-regulation. The Maintenance program was recommended to address these factors. Warning signs identified included:

49. [98]

    Ordinarily, positive participation in treatment programs might weigh against the making of an ESO. However, the RAR author and the court-appointed experts all considered that the defendant continues to pose a risk of serious sexual offending that cannot be managed without supervision in the community, notwithstanding his positive participation. Although the defendant’s history demonstrates that he has made progress under the Previous ESO, and gained insight into his offending, this has not mitigated the risk posed by the defendant.

50. [99]

    The defendant has an inconsistent history of compliance with obligations while under supervision. Until mid-2022, the defendant had been generally compliant with his ESO. However, since that point in time, he has been issued with a number of warnings and was charged with, and convicted of, breaching the ESO by interacting with Ms Norris. He has previously breached parole.

51. [100]

    The defendant has expressed frustration with the ESO, including the perception that he has been treated unfairly. However, he also acknowledged to Dr Elliot that he understood that the authorities were “doing their job” in seeking a new ESO. It appears that a key issue for managing compliance will be managing the defendant’s relationship with Ms Norris.

52. [101]

    The defendant’s criminal history was summarised by N Adams J in State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194. That summary was adopted by Davies J in Hudson (No 2) (Preliminary). It is as follows:

53. [102]

    Lerve DCJ, in passing sentence in relation to the New South Wales serious sex offence committed by the defendant in April 2008, made the following remarks relevant to assessing prospects of a further ESO.

    1. (1)

       The defendant, in his oral testimony to the Court, said he was sorry for what he put the victim through and his Honour found the defendant showed genuine remorse.

    2. (2)

       Whilst serving his sentence in Victoria, the defendant was a compliant prisoner and placed in an “open camp” where he was permitted day leave and worked as a tractor driver. That ended because the defendant was extradited to NSW.

    3. (3)

       The defendant completed the sex offender’s program in Victoria which the defendant said had a “very positive effect” on him.

    4. (4)

       The defendant showed “some very positive signs about long term rehabilitation” but his Honour, at that time, could not find there were good prospects of rehabilitation. His Honour said the situation was “not hopeless”.

    5. (5)

       His Honour found that there was a real need for specific deterrence.

54. [103]

    Her Honour Judge Pullen, in passing sentence for the serious sex offence committed in Victoria between December 2008 and January 2009, made the following relevant remarks:

    1. (1)

       at that time, the defendant denied any sexual attraction to children and denied any deviant sexual interests;

    2. (2)

       Dr Sullivan noted that the defendant’s diagnoses of Tourette’s syndrome, OCD and possible attention deficit hyperactivity disorder (ADHD) were unrelated to the offending;

    3. (3)

       the sex offender program was recommended; and

    4. (4)

       the defendant’s prospects of rehabilitation were reasonable if he completed such a program.

Unacceptable Risk Test

1. [104]

   As stated earlier, the determination of this application turns on whether I am satisfied to a “high degree of probability” that the offender poses an “unacceptable risk of committing another serious offence if not kept supervised”: see s 5B(d) of the Act.

2. [105]

   The term “to a high degree of probability” has been held to indicate a higher standard of proof than the normal civil standard, although not to the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]:

3. [106]

   At present, the legislation does not define the term “unacceptable risk”. Some insight into the term is provided by s 5D of the Act, namely, that in determining risk:

4. [107]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the Act: see Lynn v State of New South Wales (2016) 91 NSWLR 636. Noting the paramount concern for community safety, in State of New South Wales v Holschier (No 3) [2019] NSWSC 341, Campbell J observed at [49]:

5. [108]

   The meaning of an “unacceptable risk” in section 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows:

6. [109]

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

7. [110]

   These observations were affirmed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, who observed at [71], that “unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

8. [111]

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

9. [112]

   Accordingly, the seriousness of an index offence is a particularly significant factor in making any determination under the Act. The unacceptability of risk is not a discretionary matter. I must make an assessment based on the likelihood of a risk eventuating and the potential consequences if it does eventuate. Thus, an offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low if the likely consequences of such an offence are very grave: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 (Devaney) at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43].

10. [113]

    It is apt to note that the right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk”. However, consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] (Beazley P, Basten JA and Gleeson JA).

11. [114]

    I am satisfied that the statutory test has met and that an ESO for a period of two years should be made. I turn to consider the areas of dispute with respect to conditions 5 and 19.

Imposition of Conditions

1. [115]

   Section 11(1) of the Act states that in determining to impose an ESO, the Court:

2. [116]

   The section includes a list of directions that the Court can impose, however, this list is not exhaustive.

3. [117]

   A mandatory condition is accounted for in s 11(2) of the Act, whereby an offender must comply with a condition to not leave New South Wales except with the approval of the Commissioner of Corrective Services.

4. [118]

   The Court’s power to impose particular conditions depends in turn upon the scope of the Act: see Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. When determining such conditions, not only are the considerations in s 11(1) relevant, but the Court must have regard to the objects of the Act, as stated earlier.

5. [119]

   Important principles to be considered in relation to the imposition of conditions were set out in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 (Hoeben CJ at CL at [44). They are as follows:

6. [120]

   It is important to note that while the paramount consideration of the Act is to ensure the protection of the community. The Act also encourages the successful rehabilitation of an offender. Any conditions attaching to an order ought to specifically address issues relevant to currently identified risk factors in relation to future offending. Accordingly, conditions must not be fashioned that are unjustifiably onerous or simply punitive: see State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]; State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

7. [121]

   It is a legitimate concern to see an offender’s progress “recognised, encouraged, and not stunted”: see State of New South Wales v Nikua (Final) [2021] NSWSC 1240 at [90] (Dhanji J). Having noted all of the above matters, in Devaney, Dhanji J at [93], further affirmed that:

8. [122]

   I now turn to consider the specific conditions to be imposed. In the course of the proceedings, Mr Sheehan and Ms Grabham (Community Corrections) were cross-examined.

9. [123]

   Mr Sheehan is aware that a significant issue for the defendant is his relationship with Rebecca Norris, and in particular his frustration at not being able to associate with her. That relationship is said to be a protective factor. The risk identified is in relation to the children of Rebecca Norris, particularly having regard to the escalation of risk demonstrated by the defendant’s attention towards Ms Norris’s teenage daughter. Mr Sheehan stated that in his opinion there is no impediment to the defendant having immediate contact with his partner. The concern relates to contact with her children.

10. [124]

    Ms Grabham was also cross-examined. She has had some contact with the defendant, albeit only once face-to-face. Ms Grabham also confirmed the defendant’s desire to have contact with his partner and that the non-association direction has been the source of frustration on his part. It was conceded that his frustrations may be counter-productive to his rehabilitation.

11. [125]

    A “relationship integration plan” is being considered, although it is uncertain at this stage as to when that plan will commence. The proposal is that there be a staged plan with initial contact being by telephone only.

12. [126]

    I proceed upon the basis of the power conferred on a DSO is exercised reasonably and in good faith: State of New South Wales v Burchell (No 2) [2017] NSWSC 1191 at [76]; State of New South Wales v Cannon [2022] NSWSC 1622 at [58]; State of New South Wales v Bieber (No 2) [2021] NSWSC 104.

13. [127]

    In respect of condition 19, there are competing considerations which must be addressed. I bear in mind that the paramount consideration is the safety of the community and the safety, in particular, of children.

14. [128]

    On the one hand, a condition that the defendant must not associate with people that a DSO tells him not to, confers a total discretion on a DSO with respect to the defendant’s capacity to associate with his partner. On the other hand, the non-association condition that has been in place for some time has been the source of frustration for the defendant which is counter-productive to his rehabilitation. The relationship with Rebecca Norris is said to be a protective factor. While some steps have been taken to consider a “relationship integration plan”, the evidence about when such a plan would commence and the details of the plan, are vague at this stage.

15. [129]

    The defendant has been successful in arranging his own accommodation and employment. There are a number of conditions that will attach to the ESO which serves to protect the community and in particular, the children of Rebecca Norris. For example, the defendant must not approach or have contact with anyone who he knows and reasonably believes is under the age of 18, other than incidental contact in a public place with a person in the course of that person’s duties, unless a DSO tells him he can, and he is with someone who has been approved in writing by a DSO for that purpose.

16. [130]

    The defendant must not go to a place if a DSO tells him he cannot go there. The defendant will still be subject to a direction, if a DSO sees fit, that he not attend the home of Rebecca Norris, thereby avoiding any contact with her children. The defendant will be subject to a condition that he does not go to any residences where he knows that persons under 18 ordinarily reside, without the approval of a DSO.

17. [131]

    The defendant is subject to electronic monitoring and his electronic devices can be examined. The details of his communication devices and data storage devices must be provided to a DSO and any change to that inventory notified immediately.

18. [132]

    Several onerous conditions exist which serve the paramount purpose of the safety of the community. In light of the fact that his relationship with Rebecca Norris is a protective factor, continuing non-association with her will only serve to increase the defendant’s frustration and sense of injustice, which may compromise his rehabilitation.

19. [133]

    I am persuaded that condition 19 should be amended so as to read:

20. [134]

    I am not, however, persuaded that condition 5 should be amended as proposed by the defendant. The proposed amendment is not sufficient because it does not allow a DSO to impose scheduling in response to, or to prevent, an escalation in the defendant’s risk. I prefer the alternative proposed by the plaintiff, which reads:

21. [135]

    Accordingly, I make the following orders.