State of New South Wales v Russell

The State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Anthony Russell (the defendant) for a period of five years from 21 July 2015, being the date on which the interim supervision order made by Adams J expires. I have made a further interim supervision order which expires on 28 July 2015 to allow time for the decision to be made whether, and on what terms and for what period, an extended supervision order ought be made.

The plaintiff relied on the following evidence:

Mr Baird and Drs O’Dea and Furst were called as witnesses in the proceedings and were cross-examined.

The defendant did not adduce any evidence in opposition to the plaintiff’s application.

The defendant was born in 1964. He grew up in the Tumut/ Brungle area of New South Wales. His background is indigenous and he has a large extended family.

In addition to the history of sex offences set out below, the defendant has a criminal history that began with a conviction for stealing in 1977 when he was 13. His history includes, while still a minor, illegal use of a motor vehicle, various counts of stealing, receiving stolen petrol and assault. On 4 February 1982 he was committed by the Children’s Court to an institution until he turned 18 years of age as a result of various counts of assault and stealing.

His adult criminal history includes assault (1983); malicious damage to motor vehicle (1983); driving while unlicensed (1985) as well as the offences which are referred to in the narrative set out below.

The defendant has been convicted of the following “sex offences” or “offences of a sexual nature” (as defined by the Act), the facts of which are set out in more detail below. The “serious sex offences” are highlighted in bold type.

In respect of the first offence, on 13 August 1980, the defendant followed a 13-year old girl home from school and grabbed her genitals and buttocks outside her clothing. He was questioned by police on 18 August 1980 about the circumstances of the offending. He could not say why he had attacked the girl but admitted that he often had the urge to do “this type of thing”. He was assessed, in the company of his parents, by a psychologist, who opined:

On 26 October 1989 the defendant broke into a neighbour’s house and sexually assaulted an adult woman in the presence of her child and threatened both with a knife. The defendant was interviewed by police the following day. He admitted that he had started drinking at 10.30am on 26 October 1989 and had continued drinking until about midnight that night before going to the victim’s house to have sex with her. He could remember some details of the offence but could not remember the knife. He admitted that he had never been in the victim’s house before.

The defendant pleaded guilty to the offences and was sentenced by Solomon DCJ on 14 December 1990. A pre-sentence report referred to his alcoholism and the desirability of alcohol treatment. Solomon DCJ said of the offending conduct:

His Honour regarded the plea of guilty as indicating contrition. His Honour also accepted that the defendant was intoxicated “to an extensive degree” and that there was no premeditation.

While the defendant was in custody serving his sentence he undertook courses, including in anger management, controlled drinking and relapse prevention. A statement made by a Drug and Alcohol Worker dated 17 August 1994 (presumably prepared in support of his application for parole) said:

A parole report dated 23 August 1994 recorded that the defendant proposed, if released on parole, to reside with his new de facto, whom he met while in custody, and her three children in Tumbarumba. In a statement made in support of his application for parole the defendant said:

The defendant was released to parole on 6 November 1994. It was a condition of his parole that he abstain from alcohol.

On 4 May 1995 the defendant presented at the Tumut Police Station while heavily intoxicated and abusive. Later that evening he was found by police on a footpath in Tumut. He was conveyed to the local hospital by ambulance. When questioned by his parole officers he admitted that he had been intoxicated on that, and another occasion. He explained the lapse on the ground that he and his de facto had been fighting and he was depressed about the conflict as well as his lack of full-time work.

On 31 July 1995 an allegation was made to the Department of Corrective Services that the defendant had sexually assaulted the 13-year old daughter of his de facto partner. The Department learned that the defendant’s de facto had seen an occasion of such abuse. However, as neither the alleged victim, nor the defendant’s de facto was initially prepared to make statements against the defendant, the matter did not proceed further at that stage.

Subsequently, after the complainant and her mother were prepared to make statements to the police about what had occurred, the defendant was charged with two counts of aggravated sexual intercourse (sexual intercourse with his de facto’s 13-year old daughter) and one count of aggravated indecent assault (laid the top of his head in the vicinity of the victim’s vagina). The defendant later admitted to his de facto that he had had sex with her daughter twice.

On 24 August 1995 an order was made for the revocation of the defendant’s parole to date from 4 May 1995 on the basis of his breach of the condition that he abstain from intoxicating liquor.

On 25 November 1996 the defendant pleaded guilty to one charge of aggravated sexual intercourse without consent with the 13-year old daughter of his de facto partner. A report was prepared by Dr Koller, a psychiatrist, on 10 February 1997, who recorded:

Judge Shillington, in his remarks on sentence delivered on 21 March 1997, said in part:

His Honour, after taking into account the plea of guilty; the past history of sexual abuse (of which the defendant had been the victim); and the defendant’s indigenous background, imposed a total sentence of eight years with a non-parole period of three years, to date from 25 November 1996.

The defendant applied for parole in 1999 but his application was refused on the ground that he needed to address his risk of re-offending by undertaking a therapeutic program. On 7 March 2000, the defendant signed a form indicating that he was not interested in participating in an institutional program for sex offenders.

Later, in 2000, the defendant enrolled in the Introductory Sex Offender Re-direction Training program and began the program. However, it was reported on 6 December 2000 that he had withdrawn from the program after four weeks. The reason he gave was that he was both unable and unwilling to address sensitive issues in his past.

As at 7 December 2001, the defendant’s risk of re-offending was assessed by reference to Static-99. His score was 6, which put him in a high risk category.

The defendant continued to refuse to participate in sex offender programs while in custody. As a consequence the Parole Board continued to refuse parole. The defendant was, accordingly, not released from custody until the expiry of his sentence on 24 November 2004.

Upon his release, the defendant was subject to the constraints imposed by the Child Protection (Offenders Registration) Act (which had commenced in 2000) by reason of his prior offences. The Act imposed reporting conditions, which obliged him to report where he was living and any employment undertaken.

On 10 April 2006 the defendant was convicted of behaving in an offensive manner near a public place. The offence was committed on 26 February 2006 when he consumed alcohol in front of a house in Peel Street, Walgett and engaged in a boxing fight with another male. As a consequence he was placed under a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behavior for twelve months.

On 11 April 2006 an Apprehended Violence Order (AVO) was made against the defendant in respect of his de facto partner for the period of one year. The conditions of the AVO included that he not intimidate, stalk, assault or otherwise molest the person or any people (including her children) in a domestic relationship with her.

In 2006 the defendant was convicted of failing to comply with the reporting requirement imposed by the Child Protection (Offenders Registration) Act to report his living arrangements to police. At the time he was working at Walgett but his registered address was Brungle. Other convictions were recorded in this period which related to disorderly conduct and behaving in an offensive manner towards police. He was also apprehended for driving with excessive alcohol in his blood (0.155g/100ml) at a time when he was on bail for other offences.

A pre-sentence report dated 26 September 2006 noted that the defendant was in a de facto relationship with a woman who had five children. This woman was the person for whose protection the AVO was granted. It was noted that his partner had no knowledge of his prior offending. The author of the report noted:

According to a Police Facts Sheet, on 14 December 2006, at about 2.10am the defendant, who was apparently intoxicated, was in the front yard of premises in Walgett yelling at his de facto partner in breach of the AVO that had been made in April 2006. On 9 January 2007 the matter was dealt with in the Walgett Local Court. Although the Court found the defendant guilty of the offence it did not record a conviction and imposed a six- month good-behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act. During the period of the bond, the defendant maliciously damaged a window in Housing Commission premises (being the home of his de facto partner). According to the Police Facts Sheet, the defendant broke the window after he and his partner had had an argument and his partner had locked him out of her house. He was heavily intoxicated at the time.

As a result of the breach of the AVO and other offences which were also dealt with in the Walgett Local Court (intimidating police, failing to comply with reporting obligations etc.) he was sentenced and was imprisoned from 24 February 2007 until 23 November 2007. On 4 March 2007, while he was in custody he was interviewed by Justice Health. He gave the following history of alcohol use:

On 19 September 2007 he was assessed by Mr Rendell, a psychologist with the Department, with a view to an application being made for an ESO at the end of his sentence (on 23 February 2008, after the expiry of the parole period).

On 23 November 2007 the defendant was released to parole on conditions that included that he abstain from alcohol, that he have no contact with children under the age of 18 and that he undertake urinalysis when directed to do so.

In April 2008 the defendant was observed working on the “Superslide” ride at the Newcastle Show. In the course of his duties he was observed to pick up children of ages between 5 and 12 and assist them to get on and off the ride. As a result he was charged with failing, without reasonable excuse, to comply with his reporting obligations under the Child Protection (Offenders Registration) Act (which required him to report his employment). He pleaded guilty to the offence. He said that he had wanted to earn some money to support himself and that he meant no harm. He was sentenced to a term of imprisonment of 12 months with a non-parole period of 6 months to commence on 4 August 2008.

When the defendant was released to parole on 3 February 2009 he was directed to abstain from alcohol. He was to reside at the Edel Quinn Men’s Shelter. However, when his residence was checked on 2 April 2009 his parole officer was advised that he had been absent from this residence on 10 separate occasions. By order of the Parole Authority made on 16 April 2009, the defendant’s parole was revoked on 8 April 2009 as a result of these breaches and a warrant issued for his apprehension and detention for the balance of his parole of 3 months and 27 days. He was interviewed by Justice Health on 17 April 2009 for the purposes of managing his alcohol withdrawal risk. He informed the clinician that he generally drank 12 cans of beer on the weekend and that he had last drunk alcohol 48 hours ago.

On 26 May 2009 the Parole Authority reviewed the revocation of his parole and determined that the revocation ought stand. He was released on 12 August 2009. On his release he was subject to the ESO which is referred to below.

An interim ESO was made in respect of the defendant under the Crimes (Serious Sex Offenders) Act 2006 (as the Act was then known) on 10 August 2009: State of New South Wales v Russell [2009] NSWSC 810 (Johnson J). An ESO was made on 8 October 2009 (the First ESO): State of New South Wales v Russell [2009] NSWSC 1081 (Buddin J). Accordingly the defendant was subject to the conditions of that ESO. Initially he lived at Nunyara Community Offender Support Program Centre (COSP).

Permission was given to him from time to time to travel to Brungle and Tumut during that period to see his family. The first such visit occurred at Christmas 2009. The notes kept by the Department are redolent with references to the defendant’s statements that he becomes lonely and depressed while in Sydney and would prefer to live in the country close to his extended family.

In February 2011 the defendant moved out of COSP and into private rental accommodation.

A Christmas visit was also permitted in 2011. The defendant was approved to travel to Brungle with his sister, Rebecca, and her daughter, and Sharon Castles, his then girlfriend, who lived in Wagga Wagga. He was to leave Sydney on 23 December 2011 and return on 26 December 2011. As it turned out, the defendant changed his mind about going and stayed in Sydney instead.

In April 2012 the defendant sought permission to go “home” for a fortnight to stay for a week with Ms Castles and visit his mother in Brungle. He foreshadowed returning to Sydney with Ms Castles where he proposed to live with her.

In July 2012 the defendant sought permission to move back to Brungle to live with his mother who was unwell. At that time he said he was with a “partner”, Leanne Duncan. He relied, in support of his application on his “support network in and around Tumut”. The defendant was given permission to travel to the country to be with his mother in four-week blocks. While in the country he was supervised by the Community Compliance and Monitoring Group at Wagga Wagga.

In February 2013 the defendant moved to Brungle with a view to living permanently with his mother.

A report to the Attorney-General dated 31 March 2013 pursuant to s 13(2) of the Act noted that the defendant had been subjected to random urinalysis and breath testing and had not returned any positive results.

In April 2013 the defendant saw a community psychologist in Wagga Wagga. He saw the psychologist relatively infrequently, about once every six weeks. These sessions were not designed to address his offending behavior.

In April 2013 the defendant started work as a cabinet maker with a local kitchen manufacturer. However, he stopped in about June 2013 due to his frustration that he was not allowed to help install the kitchens in customer’s homes. After the defendant stopped work, Departmental supervising staff noted a deterioration in his behavior and attitude. He appeared to lose motivation. Although he returned to work for short periods between August 2013 and December 2014, he continued to voice his frustrations with the constraints imposed on him by his DSO.

The defendant received a warning in July 2013 that he had deviated from the schedule he had provided to the DSO in that he was seen coming out of a dwelling in Brungle which had not been on his schedule.

On 19 December 2013 the defendant was seen in South Gundagai at 11.40pm (outside his curfew hours). He appeared to be heavily intoxicated and abused police officers who approached him. He was arrested on 23 December 2013 and charged with breaching the First ESO (the relevant conditions being that he abstain from alcohol, that he observe the curfew and that he not attend licensed premises). He was convicted of the breaches and entered unto a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The defendant was subsequently charged with another breach of his First ESO. He pleaded guilty to failing to comply with a condition in that he had contact with children under the age of 16 years. The circumstances of the offence were that, on 31 January 2014 and 1 February 2014, he was living with his mother at Brungle when three of her grandchildren aged 13, 11 and 6 came to visit. The defendant had contact with the children while not in the presence of an “appropriate adult”.

The Police Facts Sheet recorded that the defendant had inappropriately touched the 13-year old girl who became so uncomfortable about the defendant’s conduct that she left her grandmother’s house and got a lift home. On arrival she told her father who reported the matter to police. The child also informed police that the defendant’s mother was principally confined to her bedroom and that the defendant was, at times, the only adult who was physically proximate to the three children. Police applied for an AVO against the defendant in respect of the 13-year old girl. The defendant was arrested on 4 February 2014. He told police that he had done nothing wrong, that he had paid for what he had done in the past and that he was “the victim of police picking on him”.

The defendant pleaded guilty to the breach of ESO (being with children other than in the company of an appropriate adult) but otherwise disputed that he had done anything wrong and denied any inappropriate touching. He was sentenced to a term of imprisonment of 18 months with a non-parole period of 6 months to commence on 30 January 2014. As a result of the breach of his s 12 bond he was sentenced to a fixed term of three months commencing 6 June 2014; and a concurrent term of four months commencing on the same date.

As a result of these sentences, the defendant was in custody from 30 January 2014. He was released from custody on 5 October 2014. The effect of the Act was that his First ESO was in abeyance while he was in custody and came back into effect on his release. Accordingly, the original expiry date of the First ESO of 7 October 2014 (5 years from its commencement date of 8 October 2009) was extended.

On his release, the defendant resided at Nunyara COSP and was subject to the supervision of the ESO Team. Ms McCarthy began supervising him from about the time of his release. She found him to be uncommunicative, unwilling to leave the COSP facility and reluctant to work because of what he appeared to regard as the unreasonable constraints on him. He did not look for alternative accommodation. Sometimes he failed to attend to his chores at the facility.

On 24 November 2014 Ms McCarthy prepared a “Completion Report” in respect of the defendant, as his First ESO was due to expire in 2015. The report concluded:

Ellen McCarroll, the Acting Manager of the ESO Team added the following to the report:

On 27 November 2014 the defendant began counseling with Uplift Psychology with a view to treating and ameliorating his depression, anger and anxiety.

On 10 December 2014 Ms McCarthy spoke to the defendant and told him that consideration was being given to applying for a further ESO. His initial response was, “I may as well go back to goal”. However, after some discussion, he agreed to sign a referral to FPS. The following day he was admitted to the Emergency Department of Prince of Wales Hospital after admitting to having suicidal thoughts. He was discharged the next morning.

On 19 December 2014 the defendant attended his first appointment with FPS. His psychologist was Craig Baird. Although the defendant initially refused to attend group sessions, he revised his view and has attended group sessions since late January 2015. The defendant’s first individual session with Mr Baird took place on 21 January 2015. Mr Baird gave oral evidence that the defendant was making progress and that he expected him to finish the course in December 2015.

Ms Sutton prepared a risk assessment report with respect to the defendant. She regarded his static and dynamic risk factors as high. She assessed his static risk by reference to STATIC-99R and noted that his score was six, which put him in the high risk category. She also regarded him as falling within the high risk category on the basis of dynamic factors, using the Risk of Sexual Violence Protocol (RSVP). Ms Sutton identified as significant: alcohol abuse; “emotional dysregulation”; and a poor understanding of boundaries relevant to contact with young adolescent girls. She noted employment as a protective factor which ought, accordingly, be encouraged.

On 20 February 2015 Ms McCarthy prepared a Risk Management Report pursuant to s 9(3)(d1) of the Act. She noted that the defendant had lived in COSP since he was released from custody on 5 October 2014 and was consistently expressing the desire to return to the country. Ms McCarthy recorded that the defendant was unemployed and showed no interest in seeking employment. She set out a risk management plan, to be reviewed every two months to reflect any changes in the defendant’s circumstances.

In her affidavit, Ms McCarthy deposed that she noted a significant change in the defendant’s behavior from about early February 2015. She found him to be more compliant and more willing to engage with her.

By letter dated 17 March 2015 the defendant was formally notified that the plaintiff intended to apply for a further ESO on the expiry of the then current ESO on 25 June 2015.

On 23 March 2015 the defendant moved into private boarding house accommodation in Croydon. According to Ms McCarthy, the defendant keeps the accommodation in a clean and tidy state and has told her that he would like to have friends and family to stay, including Ms Castles, a former girlfriend.

In April 2015 the defendant was visited by his sister, Rebecca. Ms McCarthy recorded that Rebecca had noted that the defendant’s demeanour and attitude had improved markedly in recent times. There was also discussion of the defendant’s having a relationship with a woman whom he had known previously who might become his girlfriend (Ms Castles).

If the defendant is subject to electronic monitoring, he will be required to remain in the Sydney metropolitan area because of technical difficulties and the lack of resources in country locations. The decision whether a particular offender is to be subject to continued electronic monitoring is reviewed every six months. Currently, electronic monitoring is administered in four stages of decreasing constraint from the first stage in which the offender’s movements are limited to essential activities which are scheduled to the last stage where there is no electronic monitoring at all.

The metropolitan ESO Team provides 24-hour coverage to the Sydney metropolitan area. However Tumut, which is the closest centre to Brungle, does not have coverage outside business hours. Brungle is about 20kms from Tumut and it takes about 20 minutes to get there by car.

The FPS is located in Sydney. If the defendant were to live in the country, although he would be able to be in contact with the service, he would be unable to attend the weekly maintenance group sessions.

Ms Roberts, the Unit Leader of the ESO Team, said of the proposed conditions regarding search and seizure (which are addressed in more detail below) that, if the conditions were imposed on any ESO, a DSO would be authorised to search the defendant if the DSO suspected any inappropriate behavior, such as alcohol consumption, contact with a child aged less than 18 years or using the internet to access pornography.

In her affidavit of 1 June 2015 Ms Sutton considered the defendant to be making “good progress” and “more open to help and accepting information given to him”. She recommended that the defendant not move to Brungle until after he has completed the FPS program, which is due to be completed in December 2015.

Mr Baird gave oral evidence that the defendant had made steady progress in both the group and individual FPS sessions. He had improved in that he was now able to make eye contact with other members of the group and pay attention to “large and complex conversations” involving up to 10 men. Mr Baird has not yet addressed the defendant’s sexual offending in the individual sessions although sexual offending has arisen in the group discussions. Mr Baird described the goals and methodology of the FPS treatment as identical to CUBIT (Custody Based Intensive Treatment) but of lesser intensity.

By order made by Adams J on 23 April 2015 Drs O’Dea and Furst were appointed to conduct psychiatric assessments of the defendant and provide a report to the Court. They both gave oral evidence and were cross-examined.

Dr O’Dea’s opinion in summarized in the following paragraphs of his report:

In his oral evidence Dr O’Dea considered that, in light of the defendant’s age and history, the most that could be done was to manage the long-term, indefinite, risk he posed, since the prospects of rehabilitation were dim and no available treatment would be capable of ameliorating the risk he posed. Dr O’Dea noted that the defendant had been subject to supervision or conditional liberty of one form or another since his release from custody in 2003 but that he had still put himself in breach of the conditions in a way that was relevant to offending conduct.

Dr O’Dea noted that the second breach of the First ESO had (according to the narrative in the Facts Sheet) a “sexual element”, although he accepted that the sexual aspects (touching his niece inappropriately) was not proved to the requisite standard, since the breach relied upon was confined to the charge of being in the company of children without an appropriate adult there to supervise, as opposed to inappropriate sexual contact or sexual assault. However, Dr O’Dea considered that the allegations in themselves raised “significant concerns in terms of risk management”. Dr O’Dea referred to the history that the defendant gave to him in the examination which was:

Dr O’Dea placed weight on the fact that the defendant did not deny that he had physical contact with his niece but wished to place a different gloss on it. Dr O’Dea considered that the defendant might have a different idea of what was “normal” conduct for an uncle, having regard to his compromised insight.

It was put to Dr O’Dea that the defendant had been abstinent from alcohol from 2009 until 2013 and that this augured well for the risk he would otherwise pose. Dr O’Dea responded that, with alcohol, it is “the bad periods that usually define the problem”. Dr O’Dea added:

One of the few differences between Drs O’Dea and Furst was that Dr O’Dea diagnosed paedophilia. He did so on the basis of a history of repeated sexual behavior with pubertal and prepubertal female children as well as statements the defendant had made about his particular sexual interest in female children.

Dr O’Dea accepted that the defendant suffers from anxiety and depression and that, for the purposes of these conditions, it would be better for him to be closer to his family in the Tumut area. However, Dr O’Dea said that this did not necessarily mean that he should be permitted to live in the country since there were other factors, including the potential for increased risk away from supervision, which militate against the defendant moving to live in the country.

As to the duration of any ESO made in respect of the defendant, Dr O’Dea said:

In assessing present and future risk, Dr Furst took into account the history the defendant gave of his past offending conduct in the course of the examination on 15 June 2015. He regarded this history as providing insight into the extent (which he regarded as limited) to which the defendant either appreciated that his offending conduct was wrong or was prepared to take responsibility for it. Dr Furst recorded that the defendant gave the following history to him in May 2015 in respect of the offences committed against the 13-year old daughter of his then partner:

Dr Furst noted that the defendant admitted that he found the victim attractive and that he was mostly sober at the times of these particular offences. In his oral evidence Dr Furst said of this history:

Dr Furst regarded the defendant’s version as showing a lack of insight and demonstrating that his personality was intractable and that he had not benefited in any material sense from his periods of incarceration or more recent treatment with FPS. Although Dr Furst considered that treatment could reduce the risk, he opined that the risk, even if reduced, would still remain high because of the static and dynamic risk factors.

Dr Furst considered the defendant to have “marginal insight” and pointed out that he had only engaged in the FPS treatment towards the end of a five-year ESO. He also said:

Although Dr Furst, unlike Dr O’Dea, did not make a diagnosis of paedophilia, he considered the question whether the defendant’s history warranted the diagnosis to be marginal. He said that he did not get the impression that there was a particular attraction to pre-pubescent girls, since the defendant was also attracted to pubescent girls, post-pubescent girls and adult women.

Dr Furst said that it was impossible for the defendant to be rehabilitated, in the sense of being cured, but that the risk could be managed. He explained why rehabilitation was impossible in the following terms:

Dr Furst accepted that the defendant’s anxiety and depression might be reduced if he were permitted to live near his family in the country. However, he placed a significant rider to this opinion in the following passage from his oral evidence:

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [10].

Section 5B provides:

Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender.

Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an “unacceptable risk”. Supervision can only be regarded as “adequate” if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.

Section 9 provides that the following are to be taken into account in determining whether to make an ESO:

Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for interim supervision orders to be made in certain circumstances. These proceedings are to be conducted as civil proceedings: s 21.

Mr White, who appeared on behalf of the defendant, accepted that it was open to me to find that the threshold requirements of the Act were met and that an ESO could be made in respect of the defendant. He submitted that a further ESO should be granted for no more than three years. He also took issue with some of the conditions proposed by the plaintiff, which will be referred to in greater detail below.

The plaintiff seeks a high risk sex offender ESO with respect to the defendant. The defendant was a supervised sex offender who was subject to an existing ESO when the application was made: s 5I(2)(b). The summons for an ESO was filed within six months of the First ESO expiring: s 6(2). The defendant is a sex offender, he is over the age of 18 years and has been convicted of two serious sex offences: s 4 (as a result of his conduct in October 1989 and mid 1995 respectively: see the table above). He has also been convicted of several offences of a sexual nature (which are also set out in the table).

On the basis of the history set out above, the results of Static-99R, Ms Sutton’s report and the expert reports of Drs O’Dea and Furst I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I do not have any confidence that the course he is currently engaged in with FPS will materially ameliorate the risk, which is unacceptable. The defendant has shown himself to be susceptible to alcohol abuse, unreliable in terms of assessing the conduct of young girls or maintaining appropriate boundaries, cavalier when it comes to abiding by bail, parole or ESO conditions, and compromised when it comes to acting in his own long-term interests. When disinhibited he poses what I am satisfied is an unacceptable risk of committing a serious sex offence.

In addition to the serious sex offences he has committed, he has committed several “offences of a sexual nature” as set out in the table above.

In deciding whether to make an ESO in respect of the defendant I am required to have regard to the matters referred to in s 9(3) of the Act, which will be addressed in turn below.

The protection of the community is the primary purpose of the Act. Accordingly, the safety of the community is of utmost importance. The defendant’s offending pattern, if one can be discerned, is opportunistic and commonly, although not exclusively, associated with alcohol consumption. He has shown himself to be unable to comply with restrictions imposed by the various orders (bail, parole and ESO) made in respect of him and also incapable of complying with the reporting requirements of the Child Protection legislation. His victims have all been female, whether adult or children. I am satisfied, on the basis of the expert evidence of Drs O’Dea and Furst, that the safety of the community requires that a further ESO be made.

I have summarized the reports of Drs O’Dea and Furst in the reasons given above. Their unanimous opinion is that an ESO of five years is necessary to appropriately manage the high risk of re-offending posed by the defendant. I accept their opinions.

The report of Ms Sutton falls into this category. For the reasons given above, her opinion was that the defendant’s risk of re-offending is high, based on both static and dynamic factors.

This matter has been covered in Ms Sutton’s report referred to above. She has assessed the defendant’s risk by reference to Static-99R as high. This score was not challenged.

In her report of 20 February 2015 and her affidavit, Ms McCarthy set out the extent to which the defendant can be managed in the community. She is reliant in part on what has occurred in the course of the First ESO to which reference has been made above. Although the defendant breached the First ESO in a way which resulted in his further incarceration, I am satisfied that the defendant can be reasonably and practicably managed in the community if a further ESO is made with appropriate conditions, which will be addressed in more detail below.

The defendant steadfastly refused to participate in CUBIT while he was in gaol for aggravated sexual intercourse without consent from 25 November 1996. As a result, he was refused parole (even though he knew that until he participated in CUBIT he would not be granted parole) and served the full term of eight years in custody.

It was only in December 2014, when the defendant was told that the plaintiff was considering applying for another ESO that he agreed to participate in FPS. It appears that he has had opportunities to participate in such a program previously although Mr Hammond, who appeared on behalf of the plaintiff, accepted that the FPS program was originally only available to low risk offenders, and therefore would not have been available to the defendant, who was always classified as a high risk offender. It is not clear from the evidence precisely when the policy change led to the program being available to high risk offenders such as the defendant.

However, in all the circumstances, I infer that it was only the spectre of another ESO that inclined the defendant to participate in FPS. Although his participation appears to be “willing”, I consider it to be too early to say whether he can truly be described as willing. My reservations are based on the timing of these proceedings and his participation. Moreover, I am concerned that the defendant has not yet been required to address his own sexual offending in the course of treatment. This is a matter that he has refused to deal with in the past.

Further, he was unprepared to give evidence himself in these proceedings. I am therefore dependent on Mr Baird’s evidence that he has made “steady progress”, which is a concept that is difficult to evaluate in the context of the evidence. That he is now able to make eye contact and appears to have greater self-esteem are matters not to be deprecated but may have no effect on his risk of offending. In any event, the uncontroverted evidence is that, irrespective of treatment, his risk of committing another serious sex offence will remain high.

The table set out above indicates the occasions on which the defendant either breached his parole or breached his First ESO. The breach of parole in 1995 was itself a serious sex offence (aggravated sexual intercourse without consent). He twice breached the First ESO: first by imbibing alcohol on licensed premises in breach of curfew and second, by having contact with a child under 16 while not in the presence of an appropriate adult. I regard these two breaches of his First ESO as germane to the offending conduct. The serious sex offences which the defendant has committed have included those in which alcohol was a factor as well as those where the defendant has failed to behave appropriately to female children in a domestic setting. His failures to comply are serious and do not augur well for his capacity to control his risk without such supervision as is authorised by an ESO.

As set out above, in September 2006 the defendant was convicted of failing to comply with a reporting requirement under the Child Protection (Offenders Registration) Act. This was at a time when he was in a relationship with a woman who had five children. His failure to report had the effect that his partner had no knowledge of his prior offending and, it can be assumed, was accordingly not warned about the steps she might need to take to protect her children from the defendant. This was no mere technical breach, but one that went to the heart of the protection of the public.

In April 2008 he also breached the reporting conditions by working with children on the “Superslide” at the Newcastle Show. Once again this breach was germane to the offending conduct. His failure to report meant that he gained access to children and picked them up to help them on and off the ride.

The table set out above indicates that the defendant has a long criminal history of serious sex offences and offences of a sexual nature. Although Mr White put to Drs O’Dea and Furst that it had been 20 years since the defendant had committed a serious sex offence, this circumstance must be put in context. The narrative set out above shows the extent to which the defendant committed offences and breached bonds, bail and parole. The history reveals that he is incapable of moderating his conduct or learning from experience. Although much of the offending conduct is associated with alcohol, much is not. His offending history does not give rise to any confidence that he poses other than an unacceptable risk or that the risk can be managed in any less onerous way than by the imposition of a further ESO for the maximum period allowed of five years.

The remarks on sentence of Solomon DCJ in respect of the offence of sexual intercourse without consent committed in October 1989 indicate the seriousness with which his Honour viewed the defendant’s conduct. His Honour, however, regarded the defendant as being contrite and saw the defendant’s intoxication and the lack of premeditation as mitigating factors.

These two factors, intoxication and lack of premeditation, are hallmarks of the defendant’s offending conduct. He readily becomes disinhibited when imbibing alcohol and is incapable of moderating either his drinking or his conduct while intoxicated. Further the lack of premeditation is another way of describing impulsive, opportunistic conduct, which may be difficult to monitor and control.

The remarks on sentence of Shillington DCJ are censorious when it comes to the seriousness of the offence. However his Honour’s preparedness to reduce the time in custody by dividing the total term of eight years into a non-parole period of three years and a balance of term of five years indicate the relative leniency accorded to the defendant in that respect by reason of his indigenous background and past history of being a victim of sexual abuse. Shillington DCJ can be taken to have expected that the defendant would undertake rehabilitation and be released on parole after three years, rather than choose to serve all of his sentence in custody, which resulted in his being released untreated at the end of the eight years.

The history given by the defendant’s niece, which formed the basis of the charge of the second breach of the First ESO, indicates that the defendant touched her inappropriately. However, as the complainant’s version (as opposed to the defendant’s own version as given to Dr O’Dea) was not given any substantial weight by the experts I do not propose to give it weight in my consideration whether an ESO ought be made and on what terms.

Disregarding the constraints imposed by the Child Protection (Offenders Registration) Act, the only significant periods during which the defendant’s liberty has been unconditional since he was taken into custody in November 1996 were the periods from November 2004 to April 2006 and February 2008 to August 2008. During all other periods the defendant was either in custody, on parole, on bail or subject to an ESO or bonds imposed following his being found guilty of offences.

His preparedness to breach the reporting requirements of Child Protection legislation, AVOs, parole requirements, bail conditions and ESO conditions reduces any expectation that the risk could be ameliorated by his own conduct. Rather it indicates that he needs to be subjected to supervision to manage the risk, which would otherwise be unacceptable, since he appears to be incapable of moderating and controlling his behaviour without the external control afforded by an ESO.

The narrative set out above, taken as a whole, shows the defendant’s life to have been one lived on the edge of a precipice. Although his intentions may have been to keep out of gaol and be able to return to live in the country, he has consistently sabotaged his chances of doing so by breaching conditions placed on him. He seems unable to resist yielding to temptation when it presents itself even though it will put him in breach of the law and render him liable to further incarceration or restrictions on his liberty.

In these circumstances I am satisfied to a high degree of probability that, had the restrictions imposed by the First ESO not been in place, the defendant would have posed an unacceptable risk of committing a further serious sex offence. Further, I am satisfied to the same high level that there would be an unacceptable risk of his committing a further serious sex offence in the next five years if I did not impose an ESO.

I accept that, in coming to this decision, the imposition of a further ESO will impose onerous restrictions on the defendant. But this is the consequence of his inability to reduce the risk he poses to acceptable levels without such constraints. Further, although he might wish for greater freedom, it cannot be inferred that his interests (even if relevant) would be advanced by my not making an ESO. Because of the view to which I have come as to the high degree of probability of his committing a further serious sex offence if no ESO is granted, it can also be inferred (given the prospects of detection) that, unless an ESO is made, he would be at substantial risk of a further period of incarceration. This could not be said to be in his interests. The public interest in controlling his risk of committing a further serious sex offence coincides with his interest in not committing (and becoming criminally liable in respect of) such an offence.

I am satisfied for the reasons given above that it is appropriate to grant a further ESO for a further period of five years. I turn now to the conditions of that ESO.

Mr White’s challenge to the conditions proposed by the plaintiff in the amended summons was limited to the length of the ESO; the conditions regarding employment; and the conditions regarding search and seizure.

For the reasons given above I propose to make the ESO for the maximum period allowed of five years. I do not accept that there is any proper basis for specifying a shorter period, having regard to the intractable risk posed by the defendant.

I understood the defendant to accept that this is an appropriate condition, at least for a time, since it was accepted that the defendant ought remain in Sydney until at least December 2015 when the FPS treatment was expected to conclude. In any event, I am satisfied that this condition is reasonably necessary and appropriate. I accept the evidence that it acts as a deterrent as well as a control.

The condition presently proposed by the plaintiff in the amended summons filed on 16 July 2015 is as follows:

Mr White objected to the condition in so far as it applies to “employment”. He submitted that it was unjust to import criminal consequences into the making of a choice on the part of the defendant whether to engage in particular employment, which might be regarded as something which he ought be at liberty to determine for himself. Mr White submitted that the defendant was willing to undertake employment but that he did not want to face criminal consequences if the Department’s choice of employment for him to undertake was, for whatever reason, unsuitable in the defendant’s view.

Mr Hammond submitted that such a condition was necessary in order to address the increased risk posed by the defendant having too much time on his hands. He relied on the evidence as to the protective effect on the defendant of being in employment and submitted that it was necessary to threaten the defendant with breach of his ESO to incline him to undertake employment.

I do not necessarily accept that the defendant is willing to undertake employment. Although he has worked in the past, he has not done so with any consistency. Further he has not given evidence in these proceedings. Nonetheless, I am persuaded that it would not be appropriate to allow the word “employment” to remain in condition 20 as sought in the amended summons. A breach of an ESO is a criminal offence, for which the defendant could be incarcerated (as has occurred in the past). It is undesirable, in my view, that the defendant be subject to criminal sanctions if he does not wish to undertake employment selected for him by his DSO.

While I accept the evidence that work has a protective effect on the defendant and tends to ameliorate the risk he poses when he is bored, disengaged, or has too much time on his hands, I am concerned about the form of the condition. It is inimical to the purpose of an ESO if a condition is unenforceable because it is uncertain since it tends to undermine the efficacy of the controls imposed by them and may also demoralise the person subject to them who may feel that he is in the hands of his DSO as to whether he is breached. It does not seem to me to be appropriate that the DSO has power to direct that the defendant perform particular employment on pain of breach. While the purpose of such a condition is established, its operation is so potentially flawed and uncertain that I am not prepared to impose it. As Heydon J said in PGA v The Queen [2012] HCA 21; 245 CLR 355 at [129] (omitting footnotes):

Accordingly, the word “employment” is deleted from proposed condition 20.

In conditions 35 to 39, the powers conferred on the police by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) are conferred on the defendant’s DSO.

Mr Hammond submitted that the conferral of such powers on the DSO was a practical measure which had the benefit that any breach could be readily and immediately detected without needing to call police, who may have other priorities. He submitted that DSOs were Correctional Services Officers who had appropriate training to conduct searches and to seize items obtained in the course of any such search.

Mr White contended that it was neither necessary nor appropriate for police powers to be conferred on DSOs. He argued that DSOs were not trained as police officers and may exercise the powers in a way not appropriate to their purpose. He also submitted that there was no established need for such powers to be conferred on the defendant’s DSO in the present case.

I do not regard it as necessary for the purposes of determining this question to express a view on the appropriateness generally of the conferral of what have traditionally been police powers on DSOs. In the present case, the defendant’s pattern of offending and conduct generally has been relatively guileless. His offending is not characterized by “grooming” or deception of any sophistication. His offences and breaches are opportunistic and readily detected. In the absence of any demonstrated need (and I do not consider any need has been demonstrated), I do not regard the imposition of the conditions in Part H of the amended summons as appropriate in the present case.

I make the following orders: