State of NSW v AA (Final)

By an amended summons dated 14 July 2021, the State of New South Wales (the plaintiff) seeks (inter alia) the following orders:

Counsel for the defendant made clear his position at the outset of the hearing, namely that he:

The entirety of the evidentiary material relied upon by both parties was contained in a court book which was admitted and marked exhibit “A”.

The defendant was the subject of a Continuing Detention Order (CDO) made by Wilson J in this Court on 21 May 2020 pursuant to ss 5C and 17(1)(b) of the Act. [1] That order expired on 20 May 2021 at which time the defendant was released, marking the first occasion on which he had been released into the community as an adult. It followed a lengthy sentence of imprisonment imposed on him when he was 17 years of age. The offending which led to that term of imprisonment being imposed is discussed further below.

A preliminary application was heard and determined by Hoeben CJ at CL. [2] The orders made by his Honour on that occasion included an order pursuant to s 7(4) of the Act appointing experts to examine the defendant, and requiring those experts to furnish reports to the Court on the results of those examinations. Pursuant to those orders, two expert reports (the contents of which are discussed further below) are now before the Court, namely those of:

The defendant's background is set out in the previous judgment of Hoeben CJ at CL [3] from which I draw part of the following summary.

The defendant is presently aged 31. He is the second of four children to his parents’ relationship, and has four younger half-siblings from his mother’s subsequent relationship. He is the sixth of those eight children.

At the age of two, the defendant’s father committed suicide by shooting himself in front of the defendant and his mother. The defendant was thereafter raised by his mother, who suffered a cerebral vascular incident and cardiac arrest following an assault in 2014.

The defendant is reported to have been unsettled from an early age. His misbehaviour in primary school resulted in his expulsion, following which he moved to the Shoalhaven region at the age of eight, where his conduct at school continued to be disordered, resulting in his placement in a reform facility. He was diagnosed with ADHD when he was aged 10-11 years.

The defendant commenced High School but continued to display behavioural problems. He was unable to read and write and was expelled from school at the age of 13. He then moved to Sydney to live with his aunt where he is reported to have come under the antisocial, and pro-criminal, influence of his uncle. He committed his first offences in company with that uncle in 2013 and was placed in juvenile detention.

The defendant’s poor behaviour continued after his release from juvenile detention, resulting in a return to custody where he completed Year 10. He acquired a number of occupational certificates in activities such as bricklaying, horticulture, first aid, hairdressing, welding and forklift driving. Notwithstanding this, when he was arrested for the index offence at the age of 17 he was reported as having no work history in the community.

The defendant reported smoking cannabis on a regular basis between the ages of 13 and 16. He denied using substances during his first sentence in juvenile detention but reported a relapse after his release. He reported smoking methylamphetamine from 15 to 16 years of age once every few weeks. His juvenile record suggests that he continued to smoke cannabis in detention in 2006 and 2007.

The defendant denied any early experiences of childhood sexual abuse, but reported learning about sex through his uncle who had introduced him to pornography, and who promoted impersonal sex. He was sexually active from the age of 13 years, and reported that he commenced regularly attending brothels from the age of 15. He also reported having an estimated 40 to 50 sexual partners when aged between 13 and 16 years, half of whom were reported to be sex workers. He identified as heterosexual and denied any same sex sexual activity in custody. He was arrested for the index offence at age 17.

The defendant’s first convictions for offences of having sexual intercourse without consent and indecent assault were recorded when he was 13 years of age. Those offences were committed along with offences of armed robbery and assault with intent to rob while armed. The circumstances of this offending were summarised by Button J in State of NSW v [AA] (Preliminary) [4] (when considering a previous application brought by the plaintiff for an Interim Detention Order) in the following terms:

The defendant pleaded guilty to those offences and was sentenced on 20 August 2004 to a control order of 18 months with a non-parole period of 12 months. Button J noted that on sentence, the Magistrate had observed that the defendant had been under the “pernicious influence” of his uncle, who had been with him at the time, and who had not only caused the defendant to be affected by marijuana but had also exploited him into becoming involved in the offending. [5]

After his release on parole, the defendant’s response to supervision was unsatisfactory, particularly in terms of supervision requirements, and a requirement to undergo sex offender treatment. He was returned to custody on 30 January 2005 for breach of parole. The consequence of that breach was that his parole period was extended for one month.

On 26 October 2006, the defendant committed two offences of aggravated break and enter in company and was sentenced to a further control order for nine months, with a non-parole period of six months. On 5 December 2006, he committed other property offences and was sentenced to a control order of 15 months with a non-parole period of three months. The circumstance of aggravation in each count was the use of a knife to threaten to inflict actual bodily harm.

I turn to the index offences.

On 27 March 2008, the defendant was sentenced to imprisonment for 13 years by Sides QC DCJ in the District Court at Campbelltown following his pleas of guilty to:

His Honour also took into account, when sentencing the defendant for the offending in count 2, an offence of larceny on a form 1.

The circumstances of this offending may be summarised as follows.

On 14 May 2006, the victim drove her car into a service station. When she returned to her car and entered the driver’s seat, the defendant opened the passenger door and leapt inside. He pressed a knife against the victim’s throat and ordered her to drive. As the victim drove away, the defendant fondled her breasts and attempted to place his hand inside her pants. The victim refused to undo her pants, in response to which the defendant threatened to cut her throat. The defendant ordered the victim to stop the car and climb into the back seat. The victim refused and the defendant placed the knife against her throat, grabbed her hair and pulled her head against the headrest. He then pulled the victim into the backseat, removed her pants and underpants and digitally penetrated her vagina (count 1), before inserting his penis into her vagina and ejaculating after a short period of penetration (count 2).

The victim was crying loudly and the defendant placed his hand over her mouth to stop the sound. Having ordered the victim to dress, he searched her wallet and took $75 and a pension card. He then ordered the victim to get out of the car and threatened to shoot her if she told anyone what had occurred. The defendant then drove off in the victim’s car (count 3). The detention of the victim in the course of that offending formed the basis of count 4.

When sentencing the defendant, his Honour Judge Sides QC was pessimistic about the defendant’s future prospects of rehabilitation, despite his young age. Hs Honour remarked: [6]

His Honour continued: [7]

His Honour also said: [8]

The defendant was sentenced to imprisonment for a period of 13 years, with a non-parole period of 9 years. The sentences were ordered to be served by the defendant as a juvenile offender until he reached the age of 21. An appeal to the Court of Criminal Appeal against that sentence was dismissed. [9]

The defendant was first eligible for parole on 5 March 2016. On 14 January 2016, the State Parole Authority (SPA) determined that he should not be released on the basis that he needed to engage in rehabilitative programs to address his sex offending behaviour.

The defendant sought release on parole on 5 March 2018 (his next anniversary date). On 12 January 2018, the SPA refused to release him, once again on the principal basis that he needed to complete a program to address his sex offending. It was also noted that whilst in custody the defendant had a number of misconduct charges brought against him. In short, the decisions not to release the defendant on parole were based largely upon his unwillingness to address his sexual offending, to discontinue his use of illicit substances, and to improve his custodial behaviour. The defendant’s sentence expired on 5 March 2020. He was eventually released following the expiry of the 12 month CDO ordered by Wilson J.

Dr Furst, Psychiatrist, examined the defendant for the purposes of the previous application for a CDO on and provided a report of 12 April 2020. He concluded that the defendant met the criteria for the diagnoses of: [10]

Dr Furst expressed the view that the defendant was at a high risk of committing both a future sexual offence and a future violence offence, [11] and was at an equally high risk of general recidivism. He identified a number of risk factors including the existence of pro-criminal peers and associates, a substance abuse/dependence issue, and an antisocial personality.

Dr Furst further concluded: [12]

Patrick Sheehan, Forensic Psychologist, examined the defendant on 13 April 2020 and provided a report of 17 April 2020. He concluded that the defendant's overall risk of sexual offending was in the moderate to high range, and that the defendant fell in the high risk category for violent behaviour. [13]

Mr Sheehan further concluded [14] that the defendant had a relatively severe personality disorder of an antisocial type which predisposed him to rule violation, exploitative behaviour, lack of empathy, aggression, impulsivity, recklessness, irresponsibility and having an inability to adjust his behaviour in response to sanction. He concluded: [15]

Pursuant to the orders of Hoeben CJ at CL, Dr Rodriguez examined the defendant on 17 June 2021. In addressing the defendant's attitude towards his sexual and violent offences, Dr Rodriguez said: [16]

Dr Rodriguez concluded that the defendant met the criteria for diagnoses of antisocial personality disorder and attention deficit hyperactivity disorder, but noted that he functioned at an average range of intellectual functioning, such that he would not meet the criteria for an intellectual disability. [17] He expressed the view that these diagnoses increased the defendant's risk of committing a further serious offence of a violent or sexual nature, saying: [18]

In terms of the defendant's assessed risk of committing a further serious offence, Dr Rodriguez said: [19]

Dr Rodriguez went on to say: [20]

In assessing the defendant's risk of violence, Dr Rodriguez said: [21]

Although Dr Rodriguez concluded that the defendant posed no identified immediate risk to himself, he concluded [22] that overall, he fell into a group of offenders who are at a high risk for sexual offending against adult women, and that it was likely that he could be an opportunistic sexual predator.

When asked for his views about the defendant’s ongoing management, Dr Rodriguez said: [23]

Dr Rodriguez concluded that the conditions sought by the plaintiff were generally appropriate for the purposes of addressing the defendant's risk of violent and sexual reoffending. [24]

Dr O'Dea examined the defendant pursuant to the orders of Hoeben CJ at CL and provided a report of 8 July 2021. He did not diagnose the defendant as suffering from a major psychiatric illness. [25] However, against a background of the defendant's long-standing history of alcohol and illicit drug abuse, he expressed the view that the defendant met the criteria for a diagnosis of substance use disorder. [26] He also concluded, on the basis of the defendant's history of antisocial behaviour and substance use, as well as his history of offending, that he satisfied the psychiatric diagnostic category for personality disorder with significant antisocial and psychopathic traits. [27]

In terms of ongoing risk, Dr O'Dea concluded: [28]

Dr O'Dea identified a series of risk factors over and above the defendant's history of violence and sex offending, his history of substance abuse and his antisocial personality. These factors included: [29]

Dr O'Dea concluded that it was arguable that there was a high degree of probability that the defendant would pose a significant risk of committing a further serious offence if treatment interventions were not successfully implemented in the context of community supervision and monitoring. [30] That said, Dr O'Dea went on to express the view that the proposed conditions (as contained in the original summons), if successfully implemented, could adequately and appropriately manage the defendant's risk of engaging in further violent offending behaviour and adequately and appropriately manage his risk of committing a further serious offence.

Both Dr Rodriguez and Dr O’Dea supported the making of an ESO for a period of five years.

A risk assessment report provided by Mr Richard Parker, Senior Psychologist on 15 July 2019 noted that the defendant’s score on relevant testing placed him at the top of the medium/high range of risk of general reoffending. [31]

In an updated report of 26 October 2020, Mr Parker expressed the view that the defendant’s offending was underpinned by an antisocial personality, antisocial attitudes and antisocial associates. He noted that the defendant had high scores on actuarial risk assessment instruments, and suffered from a substance abuse disorder. He also made reference to the defendant’s erratic lifestyle. [32] Mr Parker concluded: [33]

A further report of Mr Parker of 2 February 2021 confirmed these views and said: [34]

A risk management report of 5 February 2021 considered that the defendant’s likely response to supervision was difficult to gauge, given that he had spent most of his adult life in custody. [35] Reference was made in that report to Mr Parker’s assessment of risk, as well as an assessment conducted in 2015 which found that the defendant fell into the medium to high risk of general reoffending. [36]

Section 9 of the Act confers a discretion on the Court to make an ESO. In determining whether such an order should be made, the safety of the community must be the paramount consideration. [37] As I have previously noted, there is no issue that the statutory pre-requisites in ss 5B(a), (b) and (c) are met.

Whilst counsel for the defendant did not seek to be heard against the making of an ESO, it remains the case that before doing so, I must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under such an order. [38] In determining whether or not to make an ESO, I must have regard to a number of mandatory considerations, to which I now turn.

I have set out relevant aspects of the defendant’s history of offending. That history shows a pattern of violent and sexual offending. I have also set out, and had regard to, the observations of Sides QC DCJ when sentencing the defendant for the index offences.

I have set out parts of the reports of Dr Rodriguez and Dr O’Dea. Their opinions unequivocally support the making of an ESO.

I have made reference to the opinions expressed by Dr Furst and Mr Sheehan which also generally support the making of an ESO.

The results of a number of statistical risk assessments are contained in the report of Mr Parker of 26 October 2020.

The defendant scored 40 out of a possible 54 on the Level of Service Inventory-Revised (LSI-R) which was completed on 14 April 2015, which placed him at the top of the medium/high range. 67% of offenders assessed in than range were returned to custody within 2 years.

The defendant’s score on the Violence Risk Appraisal Guide was equal to, or higher than, the score of at least 99% of the sample. 76% of offenders with a similar score reoffended violently within 5 years, and 87% within 12 years.

The defendant’s score on the Violence Risk Scale classified him as a high risk and was commensurate with a group of offenders who had a violent recidivism rate of 49% after 4.4 years at risk. A subsequent reassessment saw a reduction in the defendant’s score.

I have made reference to the reports of Mr Parker who identified a number of risk factors which require ongoing management.

The defendant has now completed the Violent Offenders Treatment Program. In his report of 26 October 2020, Mr Parker noted that when the defendant was asked to reflect upon what he had gained from the program, he indicated that he had “learned a lot about the emotions related to anger and had decided to cut ties with people who are actively involved in crime, as he understands the risks from associating with such people”. [45] At the same time, the defendant had said that he had initially struggled to remain drug free when entering the program, although he had later found it “quite easy to avoid drugs”. [46]

The only identified mechanism which might reduce the likelihood of reoffending is the ESO which is proposed.

There are references in some of the reports to the fact that the defendant’s likely response to supervision was largely unknown given the lengthy time that he had spent in custody. However, there is no suggestion of any failure to comply with the conditions of the interim order made by Hoeben CJ at CL.

I accept the submission of the plaintiff that in determining whether to make an ESO it is necessary to adopt a two-stage approach. The first stage is to consider whether I am satisfied that the test in s 5B(d) of the Act has been met, which is a prerequisite to establishing the power to make the order sought. Once the requisite power has been established, it is then then necessary to make a separate determination of whether that power should be exercised in favour of making an ESO, having regard to s 9 of the Act. [49]

The opinions of Dr Rodriguez and Dr O’Dea expressly support the conclusion that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Dr Rodriguez took the view that the defendant fell into the high risk category for violent offending, and that there was a high risk that he would engage in sexual offending against women. Those opinions were generally supported by the opinions of Dr O’Dea, along with the various other assessments to which I referred.

Dr Rodriguez and Dr O'Dea both identified the defendant's substance abuse disorder, and his personality disorder, as significant risk factors. Both took the view that the entrenched nature of those disorders was such that there was a need for ongoing external intervention and support in order to properly manage them. Other identified risk factors include his propensity to have antisocial and criminal associates, and a lack of proper insight into his offending.

The opinions of both Dr Rodriguez and Dr O'Dea support the conclusion that the defendant’s risk of re-offending is such that he cannot be adequately managed without an ESO being imposed. Dr Rodriguez went so far as to say that the defendant's risk of reoffending could not be managed in the community in the absence of an ESO which included a comprehensive management plan, accompanied by strict supervision and monitoring.

In all of these circumstances, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision pursuant to an ESO. In those circumstances, the discretion in s 5B should be exercised in favour of making the orders sought.

Counsel for the defendant raised a number of issues in relation to specific conditions sought by the plaintiff in the event that I determined that an ESO was appropriate. I will deal with these issues individually.

It is convenient to set out the respective positions of the parties in relation to these conditions by reference to those which were imposed by Hoeben CJ at CL:

In reaching his determination as to these conditions, Hoeben CJ at CL said the following: [50]

The plaintiff relied on an affidavit of Kelli Grabham of 12 July 2021 in support of its position in relation to these conditions. Ms Grabham is a High Risk Offender Applications and Operational Governance Officer within the Extended Supervision Order team of Corrective Services NSW.

In her affidavit, Ms Grabham addressed a number of issues, including that of scheduling: [51]

Ms Grabham specifically addressed the imposition of a condition requiring a defendant to provide a schedule of movements and noted, [52] in particular, that such a schedule has the capacity to promote a person’s progress under an ESO, and to assist in developing planning and self-management skills by maintaining structure and providing purpose. [53]

The plaintiff also relied upon the affidavit of Angela Rybak of 24 June 2021 in this respect. Ms Rybak is the Senior Electronic Monitoring Officer (SEMO) of the External and Electronic Monitoring Group within Corrective Services NSW. The primary objective of that group is to monitor offenders who are subject to orders requiring electronic monitoring and external leave. In her affidavit Ms Rybak said: [54]

Counsel for the plaintiff submitted that the conditions imposed by Hoeben CJ at CL were inappropriate and that the need for close and regular supervision of the defendant meant that conditions providing for a schedule of movements were particularly critical. Counsel further submitted that the conditions imposed by Hoeben CJ at CL were not appropriate because they did not require the defendant to record his movements, but required only that he provide a summary of places that he may go. It was submitted that the use and inclusion of the word “summary” was ambiguous, and would result in the condition being difficult to administer.

It was further submitted that the effect of the conditions imposed by Hoeben CJ at CL was that the defendant was not required to inform his DSO of all of the places to which he was going to go, and was not required to inform his DSO of any of the people with whom he intended to associate. It was submitted that these matters were of particular concern in light of the defendant’s antisocial peers, his criminal influences, and his risk of substance abuse.

By reference to the affidavit of Ms Grabham, counsel for the plaintiff further submitted that the conditions imposed by Hoeben CJ at CL did not encourage the defendant to prioritise activities or to keep a particular timetable and that this, in turn, tended to undermine one of the important purposes of a schedule of movements, namely to import structure into a defendant's life and to encourage his or her forward thinking. It was submitted that in all of these circumstances it was appropriate to impose the conditions which were sought by the plaintiff.

Counsel for the defendant submitted that any goal of creating structure in the defendant’s life was capable of being achieved through the imposition of the conditions which the defendant had proposed. Counsel submitted that the added advantage of those conditions was that they could be imposed without additional unnecessary rigidity.

It was further submitted that the success of the conditions imposed by Hoeben CJ at CL was evident from the way in which the defendant had positively engaged in the scheduling process through the course of the interim order which his Honour made. In support of that submission, counsel pointed, in particular, to a series of individual entries in the Offender Information Management System which were in the following terms:

Counsel submitted that these entries demonstrated that the defendant was consistently attempting to comply with the scheduling conditions. Counsel pointed, in particular, to the note of 27 July which, he submitted, highlighted the fact that imposing more rigid scheduling would be highly unlikely to achieve any greater structure in the defendant's life, and may have the opposite effect.

Counsel emphasised that there had been no issues arising in terms of scheduling during the period of the interim order, and submitted that this was a matter from which the Court could take considerable comfort. It was submitted that the defendant’s compliance with the conditions attaching to the interim order supported a conclusion that he had insight into his difficulties with planning and that in these circumstances, the imposition of a stricter level of scheduling may not only be confusing for the defendant but could have the effect of discouraging the positive compliance that he had demonstrated thus far.

Counsel for the defendant also pointed to the fact that the that the defendant's proposal for scheduling included a further protection by providing that the DSO would not disapprove of any such change except where reasonably necessary in order to address a risk of the commission of a serious offence or compliance with another condition of the ESO. It was submitted that the inclusion of such a provision would ensure that the DSO would not refuse an alteration of the schedule unless there is good reason to do so.

A primary basis of the plaintiff’s position on this issue was that the content of any schedule of movements which the defendant is required to provide under the current conditions is ambiguous. The schedules provided by the defendant are annexed to the affidavit of Priscilla Manio of 2 August 2021. In light of their form and content, I am unable to accept the submission that they are ambiguous. On the contrary, they are quite detailed and require the defendant to provide a significant amount of information in relation to activities in which he proposes to engage.

It is also particularly significant, in my view, that there is no evidence of any issue(s) arising from the defendant’s compliance with the conditions attaching to the interim order. In my view, those conditions strike an appropriate balance between the need to provide some structure, and the need to do so with an appropriate degree of flexibility. with an appropriate degree of flexibility in doing so. In my view, a degree of such flexibility is required in order to promote the defendant’s reintegration into the community.

In all of these circumstances I proposed to impose conditions in the terms imposed by Hoeben CJ at CL.

The present interim order includes a condition requiring the defendant to be at his approved address between 9.00pm and 6.00am unless other arrangements are approved by a DSO.

Counsel for the plaintiff submitted that the imposition of the curfew was an appropriate measure which, together with scheduling and electronic monitoring, was intended to ensure that there was a degree of structure in the defendant's life. Counsel also submitted that the curfew was intended to assist the defendant's reintegration in the community and facilitate his moving away from impulsive behaviour. It was submitted that the curfew was also intended to assist in reducing the risk of the defendant associating with antisocial criminal elements by limiting his movements at night.

Counsel submitted that it was not to the point that even in the absence of a curfew the DSO retained the power to limit the defendant's attendance at unsuitable late night events. It was submitted that the absence of the curfew added to the risk of the defendant attending unsuitable events without first informing his DSO.

It was further submitted that the defendant's personality disorder, his history of substance abuse, and other identified risk factors, indicated that the 9.00pm curfew was appropriate. Counsel also pointed out that the condition in its current terms enabled the DSO to approve a later start time for the curfew, or a change to the 6.00am restriction.

Counsel for the defendant submitted that the curfew condition acted as an unnecessary and arbitrary limitation on the defendant's freedom, in circumstances where his movements were already regulated. Counsel pointed to an OIMS note of 10 June 2021 which, he submitted, highlighted the issue and which is in the following terms:

It was submitted that this note reflected the fact that despite the curfew condition allowing the DSO to approve other arrangements, the condition itself acted as a limitation on the discretion afforded to the defendant. It was pointed out that even if this condition were deleted, the DSO would retain the power to limit the defendant's attendance at unsuitable late night events. The defendant's alternative position was that the curfew should be expressed to commence at 10.00pm.

In my view, the curfew is a necessary condition in light of the various risk factors which have been identified. However, the evidence to which counsel for the defendant pointed indicates that in its current terms, the curfew may be having the unintended effect of limiting the defendant’s association with those members of his family who appear likely to be a positive influence on him.

In these circumstances I propose to impose the curfew condition, but in terms which will require it to commence at 10.00 pm rather than 9.00 pm.

Counsel for the plaintiff submitted that if I reached that conclusion that an ESO was appropriate, I should make any such order effective for a period of 5 years in the exercise of my discretion under s 9 of the Act. In support of that submission, counsel relied upon the opinions of Dr Rodriguez and Dr O'Dea which supported an ESO of 5 years, and which were consistent with the views expressed by Mr Sheahan and Dr Furst. Counsel specifically pointed to Dr Furst’s view that the appropriate duration of any ESO was 5 years because the defendant was in a high risk category relative to other sexual offenders, and that this circumstance was unlikely to change significantly over a five year period.

Counsel further submitted that an ESO for a period of 5 years was rendered necessary by the entrenched and enduring nature of the defendant's risk factors. It was submitted that the evidence established that the defendant required substantial support in order to treat and manage his risk factors, particularly his personality disorders and substance abuse. It was further submitted that the defendant required substantial ongoing assistance in transitioning into the community in circumstances where, prior to his recent release, he had never lived in the community as an adult. It was submitted that all of these factors supported the making of an ESO for a period of 5 years.

Counsel for the defendant submitted that an order of two to three years duration was more appropriate. In support of the submission, counsel pointed to the fact that the defendant's index offences arose from a period when he was a juvenile and that, as a young man of 31 years of age, he found himself in a position where the overwhelming majority of his life had been spent in custodial institutions. It was submitted that that the proposed order of five years would be “overwhelming" and would “extinguish [the defendant's] motivation to continue down his path of rehabilitation". It was further submitted that in order of shorter duration would encourage the defendant's progression through the various stages of his supervision order in circumstances where, in the event that he failed to meet those requirements, there was nothing preventing the plaintiff from seeking a further order at that point.

The alternative position advanced by counsel for the defendant was that if an order was made for a period of five years, a “sunset clause" of three years in be imposed in respect of the conditions governing electronic monitoring and scheduling. It was submitted that adopting such a course would ensure that the defendant was given increased freedoms as he approached the end of the ESO, such that, assuming that he continued successfully during that period, the need for further supervision would be lessened.

The opinions of Dr Rodriguez, Dr O’Dea, Dr Furst and Mr Sheahan all support the making of an ESO for a five year period. Those opinions are underpinned by the existence of a number of identified risk factors. If the defendant demonstrates progress, there is scope to review the conditions imposed and ease aspects of the supervision regime.

I am not satisfied that any of the conditions should be amended or removed after some shorter period. There is no evidentiary basis for doing so. None of the opinions of the experts support such a proposal. In fact, those opinions are generally contrary to such a course being taken.

For all of these reasons, an order for a period of five years is appropriate.

I make the following orders: