State of NSW v French

By summons filed on 15 March 2017 the State of New South Wales (the plaintiff) seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Barrie French (the defendant), including, by way of final relief, a continuing detention order (CDO) for a period of 6 months or the date on which suitable accommodation becomes available; and an extended supervision order (ESO) for a period of five years. All references to legislation in these reasons are to the Act, except where otherwise stated.

At the preliminary hearing in these proceedings on 10 April 2017 the plaintiff sought the following orders:

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. As appears from the terms of s 3, the protective purpose is fundamental.

Section 5(1) of the Act defines “serious sex offence”. The definition relevantly includes an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of imprisonment of seven years or more (such as offences against ss 61I and 61J); and an offence under s 38 of the Crimes Act that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act which is punishable by a sentence of seven years or more.

Section 5B provides:

The plaintiff may apply to this Court for an ESO (s 5H) or a CDO (s 13A). The persons against whom such an application can be made are set out in s 5I (ESO) and s 13B (CDO). A person, who is serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or for another offence which is being served with a sentence for a serious sex offence or an offence of a sexual nature, is, relevantly, a person in respect of whom such an application can be made.

Section 6 provides that an application for an ESO may not be made until the last six months of the offender’s current custody and must be supported by documentation which includes a report by a relevant expert (qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.

Section 7 provides for pre-trial procedures for an application for an ESO; the corresponding provision for a CDO is s 15(4). Section 7(4) (for an ESO) provides:

Section 9(3) 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 an Interim Supervision Order (ISO) to be made in certain circumstances. The decision whether to make an ISO is to be made by reference to the same considerations as apply to an ESO. Section 10A provides:

The corresponding provision for an Interim Detention Order (IDO) is s 18A.

Section 11 provides for the conditions that may be imposed on an ESO (or ISO). A breach of ESO (or ISO) conditions is an offence under s 12 of the Act.

These proceedings are to be conducted as civil proceedings: s 21. Section 25 of the Act empowers the Attorney-General to require provision of certain information. Any document produced in answer to an order in writing under s 25(1) is admissible in proceedings under the Act, “despite any Act or law to the contrary”: s 25(3).

The plaintiff relied on the following evidence:

The defendant did not adduce any evidence at the preliminary hearing.

The application for an ISO requires me to determine whether it appears that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO. Accordingly, the following narrative reflects those matters which are to be found in the supporting documentation in the evidence adduced by the plaintiff in support of its application and do not amount to findings of fact beyond the standard required by s 10A(b). I note that the evidence tendered by the plaintiff has not been tested or challenged, except to a very limited extent by the cross-examination of Ms Kirkwood. All that is required for the purposes of deciding whether to make an ISO is that it must “appear” to the Court that the ESO will expire before the proceedings are determined (which is common ground) and “that the matters alleged in the supporting documentation would, if proved, justify the making of” an ESO: s 10A.

Accordingly, the following narrative ought be read with the qualification that it sets out the matters alleged in the supporting documentation. The facts in the narrative ought not be regarded as findings of fact, except on the limited basis required for the purposes of deciding, in accordance with s 10A, whether to make an ISO.

The defendant was born in 1972. His criminal history dates back to when he was 13 years old. His criminal history in the Children’s Court includes offences of stealing; offensive language; possession of prescribed restricted drug; trespass; and assault.

In 1994 the defendant, who was then 22 years old, began a relationship with V1, who was then 18. After the first year, he became verbally abusive and later became physically abusive. He had a pistol and dealt in ecstasy. The defendant kicked and punched V1 and also hit her with a baton and baseball bats. Her coccyx fractured when he kicked her with a steel-tipped boot. She also sustained a fractured rib.

The defendant was charged on an indictment presented in 1999 with an offence of demanding money ($4,000) with menaces. He pleaded guilty to the charge. A pre-sentence report dated 14 April 1999 reported that, in the past 4-5 years, he had resided between his parents’ home and the home of his girlfriend (V1, see further below). Its author noted the defendant’s tendency to become abusive when angry. A Community Service Order of 250 hours was imposed on 15 April 1999 by the District Court. The Community Service Order was revoked in September 2000. A sentence of periodic detention was imposed, which was revoked. A sentence of home detention was imposed but it, too, was revoked. Ultimately a sentence of imprisonment of 5 months and 2 days, which concluded on 23 June 2002, was imposed.

Between January 2001 and July 2002, the defendant took two videotapes of V1 at times when he had drugged her such that she was unconscious. While she was unconscious he committed various offences which he videotaped. The particulars of the indictment, which accord with the statement of agreed facts on sentence, record the following sequences on the videotapes which were taken on separate occasions. The particulars were marked Exhibit D at the sentence hearing.

No report was made by V1 to the police of these offences since she was unaware of their commission, by reason of her having been unconscious at the time. Indeed, she was interviewed by Ms Elbourne, Probation and Parole Officer, for the purposes of a pre-sentence report in respect of the defendant for the sentencing hearing in the District Court on 8 February 2001 (for the plea in respect of demanding money with menaces). Ms Elbourne recorded:

V1 ended the relationship in 2002, though not as a result of the sex offences committed on her, of which she was then still unaware.

According to a statement made by V2 in March 2003, the defendant befriended V2, a woman whom he had met through an associate who was dealing in amphetamines. The defendant and V2 spent some time together in a hotel room and later in his unit over a few days. Before long the defendant became very possessive of V2 and would not allow her to leave the unit without him or permit her to use her mobile telephone to contact her sister. Almost a week after they had met, the defendant proposed that they have sex, which they did. He later suggested that they have anal sex but V2 refused. On a subsequent night, V2 woke in the morning without being able to remember the previous night. The defendant told her that he had given her something to help her sleep. Later the defendant asked her what her view was of handcuffs during sex. She said that she did not want to try them.

On a subsequent evening, 23 March 2003, the defendant told V2 that he had been in gaol. He then locked V2 inside his bedroom and pulled out a big white sack from under the bed which contained hand cuffs; a video camera; rope; leather belts, brown masking tape and a red and yellow belt with Velcro on it. The defendant handcuffed V2 to the bedhead. V2 resisted but gave up because the defendant was stronger than she was. The defendant said to her:

The defendant later threatened her with a knife and a handgun. He fastened a belt around V2’s eyes and tightened it so that she could not see. He tied each of her legs to the bed. During that night he sexually assaulted her.

V2 reported the matter to police who arranged for V2 and her sister to stay where she would be safe. While she was in a hotel room, a man, whose voice she recognised as the defendant’s, rang her and said:

V2 responded, “Well, I didn’t want it,” and hung up. According to a subsequent statement, V2 returned to New Zealand as she was very scared of what the defendant might do to her.

On 25 March 2003 the police applied for, and executed, a search warrant of the defendant’s home, in the course of which they found three videotapes depicting sexual acts with different women, including V1, with whom the defendant had been in a relationship from 1994 until 2002. The details of what was found on two of those tapes became the particulars of the indictment in respect of the offences against V1 and were marked Exhibit D (see above). The police also located bullets; handcuffs with a key; various prescription drugs; amphetamines; and black bag containing female clothing in the defendant’s bedroom.

On 10 April 2003 at 1.50am, police arrested the defendant, who was walking his dog in the company of a woman in Cabramatta, and charged him with aggravated sexual assault on 23 and 24 March 2003. The circumstances of aggravation were that he threatened to inflict actual bodily harm on V2 by means of an offensive weapon, namely a small hand gun. Bail was refused. Ultimately, the charges were not proceeded with as, according to an email from the Office of the Director of Public Prosecutions to the plaintiff’s solicitor, V2 did not want to proceed.

The police first interviewed V1 on 17 April 2003. They showed her the videotapes which they had found at the defendant’s residence. The sentencing judge, Hock DCJ, described the effect on V1 of seeing the video tapes as “devastating”.

The defendant pleaded guilty on 17 August 2004 to various offences involving V1 which are referred to in more detail below. On 16 November 2004 he was interviewed by Ms Britton, a clinical psychologist at Forensic Psychology Services (FPS), for the purposes of a pre-sentence report. Ms Britton opined that the defendant suggested that his perception was that he shared a sexually-motivated relationship with most women he met. Ms Britton noted that the defendant accepted the description of the events portrayed on the video but he argued that the behaviour was “fully consensual”. He displayed no victim empathy and told Ms Britton that V1 had laid charges as part of an elaborate plan to blackmail him and extort money from him. Ms Britton said:

Ms Britton said of the risk posed by the defendant:

In November 2004 the defendant was interviewed and assessed by Ms Duffy, a psychologist, at the request of his solicitors for the purposes of the sentence hearing for the crimes against V1. Ms Duffy noted the defendant’s version of the offences as follows:

Following receipt of Ms Duffy’s report, the defendant’s solicitors requested that Ms Duffy view the two videotapes for the purposes of preparing a supplementary report. In her report dated 21 March 2005, which was prepared after she had viewed the videotapes, Ms Duffy said:

The defendant’s solicitors also instructed Dr Westmore to prepare a report for the sentencing judge, which was dated 4 January 2005. It is plain from the report that Dr Westmore was unaware of the report made by V2; had not viewed the videotapes; and had relatively little information about the facts of the offences committed against V1.

On 13 May 2005 Hock DCJ imposed the sentences on the defendant which are set out in the table below. The effect of the sentences was to impose a total term of 14 years which commenced on 10 April 2003 and was due to expire on 9 April 2017, with a non-parole period of 10 years which was due to expire on 9 April 2013. I note that the defendant’s period of incarceration was extended to 23 April 2017 because of offences committed on parole.

Her Honour said in the sentencing judgment:

Her Honour took into account as a mitigating feature that the defendant “has shown some remorse”. A 10% discount was given for the plea of guilty for its utilitarian value.

On 1 March 2006 the defendant filed a notice of appeal in which he sought to withdraw his pleas of guilty and, in the alternative, sought leave to appeal against sentence. In his affidavit affirmed on 13 April 2006, the defendant maintained that he was not guilty of any of the charges as he did not believe that V1 was not consenting. The appeal was dismissed: French v Regina [2006] NSWCCA 361. At [37] Adams J (McClellan CJ at CL and Latham J agreeing) said:

On 22 January 2013 a pre-release report was prepared in respect of the defendant, as his non-parole period was about to expire. The report concluded:

On 14 February 2013 the State Parole Authority concluded that release to parole was not appropriate until the defendant addressed his sex offending behaviour through therapeutic programs in custody. A pre-release report prepared on 31 January 2014 recorded that the defendant was engaging in a Custody Based Intensive Treatment (CUBIT) Program and that release was not recommended until the program had been completed. It also noted that the defendant was motivated to do CUBIT so that he could be released to parole. He commenced the CUBIT Program on 9 October 2013 and completed it on 29 May 2014. A CUBIT Treatment Report dated 13 June 2014 reported on his participation in the program.

It is apparent from the content of the CUBIT Treatment Report that its authors were unaware of the report made by V2 to police which led to the search warrant being issued. Accordingly, the authors were under the misapprehension that the offending with respect to V1 was the only relevant conduct. The report recorded that, at the beginning of the CUBIT Program, the defendant had maintained that V1 had consented to the conduct depicted in the videotapes. As treatment progressed, he said that he accepted that his offending behaviour was non-consensual, which he apparently considered to be sufficient acknowledgement of his responsibility.

The section of the CUBIT Treatment Report entitled “Pathways to Offending” said in part:

The CUBIT Treatment Report assessed the defendant’s risk rating as moderate-low on dynamic risk factors. The authors of the report recommended that, during his parole period, he participate in sessions with Forensic Psychology Services (FPS); that he engage with community-based services to assist him with his rehabilitation and that he engage in pro-social activities.

On 27 June 2014, by reason of his completion of the CUBIT Program, the defendant’s application for parole was supported and, ultimately, he was released to parole and went to live with his grandmother in Wollongong. He attended FPS on 28 July 2014 as part of his conditions of parole. The note of the second session on 4 August 2014 recorded:

On 22 August 2014 the defendant was permitted to live with his father in Cabramatta. However, he was alleged to have assaulted his father and was bailed to appear at Liverpool Local Court on 9 September 2014. Parole was revoked on 7 September 2014 and the defendant was returned to custody to serve the balance of his term until 23 April 2017.

The defendant was released to parole again on 18 February 2016. He was allocated a bed at Nunyara Community Offender Support Program Centre (COSP).

The defendant attended FPS again on 18 March 2016. The treatment notes recorded that he gave the following history of the circumstances of the index offences:

On 23 March 2016 the defendant attended a further session with FPS. The notes recorded as follows:

On 23 March 2016 Nunyara COSP issued the defendant with an eviction notice due to his poor attitude, staff safety concerns and lack of compliance with program conditions. On 24 March 2016 the defendant’s parole was revoked because he was found to be in possession of a prohibited drug. Attempts to find accommodation for the defendant on his release were made by Community Corrections Officers on his behalf. It was noted in a pre-release report on 8 June 2016:

In a subsequent report dated 28 July 2016 a Community Corrections Officer noted that the defendant’s “previous non-compliance and aggressive behaviour have impeded efforts to source post-release accommodation”. Statements to similar effect were repeated in subsequent reports. However, sustained attempts to find suitable post-release accommodation continued to be made.

On 2 September 2016 Dr Richard Parker, Senior Psychologist, prepared a risk assessment report in relation to the defendant. Dr Parker noted that, although the defendant had completed all relevant custody-based treatment programs and sessions, he lacked insight into his offending and his response to treatment was superficial. His Executive Summary concluded as follows:

On 15 November 2016 Cornelius Van Ryn, Senior Community Corrections Officer of the ESO Team, prepared a risk management report. Mr Van Ryn noted the lack of suitable accommodation (at the time of writing the report). He also recorded that the defendant had lost the support of his father and grandmother, whom he had alienated during his periods on parole, and that the defendant had not had any contact with his mother or any sibling since 2003. Mr Van Ryn opined that the defendant’s tendency to lie could hinder the management of the risks he posed and noted that his performance on parole did not augur well for risk management. He recommended a requirement for the provision of schedules and electronic monitoring as well as unannounced visits and a curfew as a way of managing the risks. In this context, Mr Van Ryn stressed the requirement for stable accommodation. Mr Van Ryn referred to issues with substance abuse, which suggested that random urinalysis was appropriate.

On 14 December 2016 the High Risk Offender Assessment Committee considered whether an application for an ESO ought be made in respect of the defendant. The Committee was of the view that the defendant did not meet the threshold for the making of such an order.

On 21 January 2017 the defendant was assessed by Dr Chew, psychiatrist, at the request of the Commissioner of Corrective Services. The defendant told Dr Chew that he would be “very very happy on release to community to engage in any treatment follow-up necessary”. Dr Chew asked the defendant about the index offence and recorded the following response:

Dr Chew recorded that the defendant told him that he had had four significant relationships with adult females and that most of his sexual activity was in the context of those relationships. He said that he had a “very active sex life” with his ex-partner and that it was related to drug-taking on both sides. He said, when not under the influence of drugs, his sexual interests were “vanilla”. Dr Chew expressed the following opinion:

On 1 March 2017 there was a verbal conflict between the defendant and another inmate in gaol, following which the defendant left the cell and then returned a few minutes later, threw hot water over the other inmate and then hit him over the head with a metal cup a number of times. The inmate was taken to Justice Health for medical treatment and was later escorted to Prince of Wales Hospital for treatment to a gash on the left side of his head. As a consequence the defendant was put into segregated custody.

On 14 March 2017 the ESO Team assumed responsibility for identifying and assessing the defendant’s post-release accommodation, all other efforts made on his behalf having been unsuccessful. In her affidavit of 30 March 2017 Ms Kirkwood, the defendant’s current Departmental Supervising Officer (DSO), deposed as to the considerable attempts that had been made to obtain post-release accommodation for the defendant. She deposed, at [29] of her affidavit:

After the incident with the other inmate, the High Risk Offender Assessment Committee agreed to recommend that an application for a short CDO be made (so that the defendant could obtain accommodation) followed by an ESO.

At the hearing on 10 April 2017, Ms Kirkwood gave evidence that, on 7 April 2017, since swearing her affidavit, she made enquiries of Providential Homes. Although the enquiry is still outstanding, she said that there was a possibility of housing being available there. In cross-examination, Ms Kirkwood accepted that, once a particular inmate’s options for accommodation had been exhausted, the COSP facilities tend to be more flexible in deciding to admit that person, even if the person had earlier been rejected on the grounds of unsuitability. Ms Kirkwood confirmed that an inmate who had been released from custody but was subject to an ESO would be able to reside in Emergency Housing arranged by the ESO Team until a permanent option could be found.

The only purpose for which an IDO was sought by the plaintiff was to enable suitable accommodation to be identified for the defendant. In light of the evidence of Ms Kirkwood, I am satisfied that, if the defendant is released from custody, suitable accommodation will be found for him by 23 April 2017 at premises from which he can be supervised by the ESO Team. In these circumstances I proposed to address only those statutory provisions which relate to ISOs and ESOs, rather than IDOs and CDOs.

The defendant meets the definition of “sex offender” in s 4 of the Act, having been sentenced for a number of “serious sex offences”. In these circumstances he is a “high risk sex offender” if I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2). I am satisfied of that matter for the reasons given below.

I note that the sentence to which the defendant is subject will expire at midnight on 23 April 2017, before these proceedings are determined and, accordingly, any ISO should commence before that expiry.

I shall address each of the matters in s 9(3) in turn, in so far as each is relevant. However, I propose to address safety of the community (s 9(3)(a)) in a compendious way at the end since many of the other factors also concern this matter and are also relevant to the assessment or risk and whether it is “unacceptable”.

The reports of Dr Parker and Dr Chew are referred to above. It is of concern that neither was aware of the circumstances of V2 and her reporting of the defendant’s conduct. They therefore approached the question of the risk of re-offending on the mistaken assumption that the conduct underlying the index offences was the only relevant conduct. Moreover, although they were provided with some documentary material, it did not appear to include either Hock DCJ’s remarks on sentence or the particulars of the indictment. Thus, to a significant extent, the experts were reliant on the defendant’s history of his offending conduct. This circumstance is of particular concern in the present case as the defendant’s statements about his offending tend to exhibit a marked lack of insight, when compared with the actual conduct, as described by Hock DCJ and the particulars.

I note that Dr Parker assessed the defendant as being at high risk of committing further non-sexual offences and at moderate risk of committing further sexual offences.

Dr Chew specifically noted the defendant’s history that there was one victim only; whereas the documents relating to V2 suggest a similar course of conduct with at least one other woman. Dr Chew confirmed that he was not specifically asked to opine about the defendant’s risk of re-offending. He did not note the discrepancy between the defendant’s version of his sexual history and other versions given, or that the version given to him was minimal and self-serving. Dr Chew noted that the defendant was “very very happy” to participate in treatment. The defendant’s statement would appear to be substantially at odds with his engagement, or lack thereof with FPS, as recorded in the notes.

The statistical likelihood of the defendant’s re-offending was considered in the CUBIT Treatment Report by reference to Static-99R, a statistical tool for predicting future risk of re-offending by reference to certain static factors. The defendant scored 3, which placed him as a moderate to low risk relative to other male sex offenders. That the defendant lived with his partner for over two years is assessed by Static-99R as being a protective factor. However, as the circumstances of the offending show, it was the relationship which provided him with the opportunity to offend. Furthermore, there is no reference to V2 in the CUBIT Treatment Report because the matter did not proceed to trial, which meant that the assessment was done on the basis that there was only one victim, V1.

I note that Ms Britton assessed the defendant in 2004 by reference to Static-99, the predecessor to Static-99R. She assessed his score as placing him in the medium to high category. As the tool relies largely on static factors, the difference in classification might relate to revisions between the versions, or could be explained by the fact that the defendant was older when assessed by Dr Parker (since age is a relevant factor). I note Ms Britton’s view as expressed in the extract set out above that the actuarial measure may be an underestimate in the defendant’s case.

In his report dated 15 November 2016 Mr Van Ryn set out the ways in which the risks posed by the defendant could be managed in the community. He identified the various conditions that could be placed on an ISO or ESO to ameliorate the risk. Mr Van Ryn also identified the aspects of the defendant’s personality or conduct which could compromise the task of managing the risk but did not opine that these matters would be insuperable barriers to the reasonable and practical management of the risk the defendant posed if released to the community.

I note that the defendant has participated in all available programs while in custody, including the CUBIT Treatment Program. Ms Cook, who appeared for the defendant, submitted that the defendant has learned something from such programs. I do not accept this proposition and note the observations referred to above, which tend to indicate that the defendant’s participation was superficial. The defendant’s incapacity to acknowledge the gravity of his offending conduct is a substantial indication of the colourable nature of his participation and that any gains were more apparent than real. Although it appeared from the CUBIT Treatment Report that, throughout the course, the defendant had come to an acceptance that V1 was not consenting, he soon reversed his position and does not appear to have any concept of his responsibility for the crimes. The version given to Dr Chew would appear to be grossly at odds with the facts as described in the remarks on sentence and in the particulars of the indictment.

Moreover, although the defendant told Dr Chew that he would be “very very happy” to participate in the services provided by FPS, his attitude, as recorded in the FPS notes on 4 August 2014, was one of frustration and hostility. I note the comments to the effect that the defendant undertook CUBIT in order to be released on parole. Once released, he was either unwilling, or unable, to comply with conditions which led to his being returned to custody.

As the narrative set out above indicates, the defendant remained at liberty for only short periods because of his breaches of parole, as a result of which he was returned to custody. Further, before the index offences, when he was sentenced to a Community Service Order for demanding money with menaces, the order was revoked and a periodic detention order made, which was revoked and a home detention order was made, which was ultimately converted into a sentence of full-time imprisonment. These instances show the defendant’s poor compliance with limitations while at liberty.

The defendant’s criminal history is set out above. The circumstances concerning V2 do not form part of that history as the indictment was no-billed as a result of V2’s unwillingness to testify. However, it is important to note that the index offences occurred during a period of up to eighteen months with a woman whom the defendant was then in a long-term intimate relationship. The “pattern” was that the defendant would administer a drug to his victim who would then be unconscious and therefore incapable of resisting the various sexual acts to which he wanted to subject her for his gratification and her degradation.

I have extracted in the chronological narrative above the views of Hock DCJ in the District Court, when the sentence was imposed, and the views of the Court of Criminal Appeal when the conviction was sought to be set aside. These remarks indicate the gravity of the offences, their depravity, the defendant’s dishonesty and the terrible and devastating harm to the victim, who was unaware of what had occurred until police showed her the videotapes which the defendant had created while committing the offences.

The material referred to above concerning V2 falls into the category of “other information that is available at to the likelihood that the offender will in future commit offences of a sexual nature”. It is admissible under s 25(3) of the Act and is relevant because of the extent to which the defendant’s conduct with V2 is reflected in his conduct with respect to V1. I note, in particular, the circumstance that the defendant did not exhibit any desire to live out his sexual fantasies at an early stage of his relationship with V1. V1 said that the first year of their relationship was good and that it was only thereafter that he began to abuse her. Even then, he drugged her rather than have her resist which meant that she did not even know what he had done until much later.

As for V2, the defendant befriended her and spent a few nights with her before they had sex. He appears to have groomed her by having consensual sex for a period before raising the topic of anal sex and handcuffs. In the case of V2, the defendant may have drugged her for the purposes of performing sexual acts, she was conscious and restrained by handcuffs and ties for the events described by V2 in her statement. The defendant’s attempts to intimidate V2, as described in her statement, were successful. She returned to New Zealand out of fear of reprisals and did not want to proceed with the prosecution.

The defendant’s apparent pattern of behaviour as exhibited by the index offences and the conduct towards V2 is of particular concern in light of the statement made by the defendant to FPS on 23 March 2016. Although he had only been at liberty on parole for four weeks he told the psychologist that he had “already had some fun since getting out”. The defendant is obviously capable of presenting well and attracting women who may be lured into thinking that they are safe with him. However, his controlling behaviour with respect to V2 (locking the room, preventing her from speaking to her sister on the phone and, ultimately, handcuffing her and tying her to the bed) followed relatively soon after the initial period when he behaved appropriately towards her.

The defendant has shown himself to be disingenuous in many situations, including to Dr Chew, who was not in a position to doubt the history because of limited material with which he had been provided. Ms Duffy’s conclusion that the history she had been given was “at variance” with what she observed in the video can only be described as a substantial understatement. The defendant’s facility for lying makes him an even greater risk having regard to the nature of the index offences, and the conduct with respect to V2 which did not proceed to trial.

The defendant’s display of remorse is too variable and inconsistent to be genuine. Although the sentencing judge found some remorse, such remorse as there might have been had disappeared by the time the defendant applied to withdraw his plea of guilty. There is a substantial amount of material to indicate that the defendant remains in denial about his culpability and may even still believe that V1 was consenting, although he had rendered her unconscious before subjecting her to sustained acts of sexual degradation and depravity. I consider that, on the basis of the material tendered before me at this preliminary hearing, the defendant poses a substantial risk to the safety of the community and, in particular, to that section of the community that comprises adult women.

It is also of significance to the factor of the safety of the community that the defendant’s conduct towards V1 and V2 all took place in secret. In the case of V1, not only did the defendant’s conduct deprive her of the capacity to resist or withhold consent, but it also deprived her of any awareness that it had actually occurred. Had the defendant not videotaped his offences, not only would V1 have been entirely ignorant of the commission of various crimes against her, but no one else could, or would, have known of them and the defendant would never have been charged, prosecuted, convicted or sentenced for them. In this respect, the defendant’s conduct is particularly devious and dangerous because of the difficulties of detection and prosecution of such crimes.

Ms Cook submitted, in support of her submission that the safety of the community would not be jeopardised were the defendant to be released without supervision, that the defendant had been assessed by a “disproportionate” number of experts, none of whom had diagnosed paraphilia, a sexual disorder or sexual deviance disorder. Although the lack of such diagnosis can be accepted, it has very little weight in the circumstances. None of the doctors or experts has been privy to all of the material that was before the Court on the preliminary hearing. The absence of such a diagnosis does not significantly affect the assessment of risk in the present case.

The evidence indicates that the defendant does not have any real insight into his culpability for the crimes and no real appreciation of their effect on others. When released to parole he was impatient to leave COSP so that he could commence sexual relationships with women. In the absence of either insight or remorse, the defendant poses a substantial risk of re-offending with any woman with whom he embarks on a sexual relationship.

Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, it appears to me that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO on the basis that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

Accordingly, I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to order an ISO pursuant to s 10A of the Act for the maximum period of 28 days permitted under s 10C of the Act.

I am obliged, in these circumstances to make orders under s 7(4) of the Act appointing relevant experts to conduct examinations and report to the Court for the purposes of the final hearing at which the Court will determine whether to make an ESO in respect of the defendant, and, if so, for what period.

The parties have provided me with draft orders in the event that I was satisfied that it was appropriate to make an ISO in respect of the defendant. The form of these orders is agreed. Accordingly, I propose to make orders in terms of the short minute of orders provided to me, the content of which is set out below.

For the foregoing reasons, I make the following orders: