Attorney General for the State of New South Wales v Steadman

By summons filed on 9 February 2016, the Attorney-General for the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (the Act) in respect of the defendant for a period of three years. The plaintiff also sought an interim supervision order (ISO) against Robert Steadman (the defendant) pursuant to s 10B of the Act pending the final hearing of this matter and an order pursuant to s 7(4) of the Act appointing two psychiatrists to examine the defendant and report to the Court on the examinations.

The orders are opposed by the defendant, for whom Mr Averre appeared.

The plaintiff, for whom Mr Denman appeared, relied on the following 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 Gallagher [2006] NSWSC 340 at [21]; Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873 at [10]; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 (Tillman) at [10].

Section 5B provides:

In Cornwall v Attorney-General for the State of New South Wales [2007] NSWCA 374 the Court of Appeal said at [21]:

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 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision (under an ESO) is, relevantly, a supervised sex offender: s 5I(2).

Section 7 deals with pre-trial procedures and what is to occur following the preliminary hearing (the present hearing). It relevantly provides:

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 an 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:

Section 11 provides for the conditions that may be imposed on an ESO. Mr Denman confirmed (in response to the defendant’s request) that the plaintiff did not seek, in respect of the ISO, conditions other than those contained in the first ESO, save for the following additional condition as follows:

These proceedings are to be conducted as civil proceedings: s 21.

If the threshold test in s 5B is met, the list of matters to be considered is contained in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.

Although I use the term “evidence”, I note that the evidence tendered by the plaintiff has not been tested, except to a very limited extent by the cross-examination of Mr Van Ryn. The defendant has not given evidence himself, or adduced any other evidence. 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.

As the matters the subject of the narrative touch on personal details of those associated with the defendant in a personal capacity, I have decided not to use the real names of his partners, their children or associates in these reasons.

The defendant was born in 1944. His criminal history began in 1953 with offences of stealing. The first conviction of present relevance was a conviction in 1958 (when he was 14) for indecent assault on a female aged six years. In 1960 he was committed to a psychiatric institution for treatment following a charge of indecent assault on an 11-year old female (when he was 16) which was replaced with a charge of common assault. Both of these offences constituted “serious sex offences” as defined by the Act.

The defendant was married for the first time in the 1960’s and had three children. After about five years this marriage ended in divorce. He remarried in about 1980. His second wife died in 1991. At some time prior to March 1993 the defendant formed a de facto relationship with a woman, who had a daughter, AV1.

In electronically recorded interview AV1 said that in March 1993 she woke up one night in bed to discover that the defendant had his hands down the front of her underpants and was touching her on her vagina. According to AV1, he said: “If you let me touch you more I’ll give you a horse for your birthday.” She did not tell her mother what had happened until about June 1993. At that time her mother was planning to marry the defendant. Subsequently, and notwithstanding the charge, AV1’s mother resumed her relationship with the defendant and they became engaged to be married again. The defendant was acquitted of the charge with respect to his alleged conduct in respect of AV1.

During the school holidays in September 1993, V3, one of AV1’s friends, was staying overnight at AV1’s place. One evening the children had been watching television in the bedroom the defendant shared with AV1’s mother. AV1 had fallen asleep in the bed, woken up and moved to a bunk bed in another room, leaving V3, AV1’s mother and the defendant in the same bed. V3 woke up to find the defendant’s hand down her underpants and his middle finger in her vagina. V3 started screaming and hitting him, after which she went to the bunk bed where her friend, AV1, was sleeping.

As a result of these events, the defendant was charged with aggravated sexual intercourse without consent. This charge proceeded by way of indictment in the District Court in 1994. The defendant was convicted. He was sentenced by Armitage DCJ to a minimum term of two years with an additional term of eight months. His appeal against conviction and sentence was dismissed.

The defendant was released to parole in on 17 November 1996 on an 8-month parole order. Although he was generally compliant with reporting (according to a pre-sentence report prepared in 2011), he refused to engage in any “interventions” in the community and maintained his innocence.

Some time after his release from gaol the defendant formed a de facto relationship with a woman who, in 1998, became his third wife. The defendant’s third wife had two daughters: one, who was herself the mother of five daughters (including V4, V5 and V6)); and a second, TC, who was disabled. The defendant’s third wife was not aware of the defendant’s previous offending.

At Easter 2007, the defendant and his third wife went to visit her grandchildren on the North Coast of New South Wales. They took TC with them. They stayed in a caravan at the rear of the house where the defendant’s third wife’s daughter lived with her family (including V4, V5 and V6).

The transcripts of recorded interviews with V4, V5 and V6 were tendered. In addition to matters that concerned the index offences, the transcripts included the girls’ versions of other (uncharged) sexual acts alleged to have been perpetrated against them by the defendant as well as reference to alleged offending against other children during the same period. I allowed the transcripts of uncharged acts to be admitted into evidence, over the defendant’s objection. The conduct described by the victims and alleged victims (each of whom was a young girl to whom the defendant had access through family relationships) was largely opportunistic in the context of a family situation. For example, the defendant drove one of the victims to the tip to fossick for toys and asked her not to wear underpants. He assaulted her while they were there and took photographs of her vagina and asked her to take a photograph of his erect penis.

According to V5’s statement, the defendant’s conduct affected several girls, as demonstrated by the following passage in the transcript:

V5 also said in the interview:

The defendant was arrested on 11 July 2007 and remained in custody pending his trial.

On 22 October 2008 the Director of Public Prosecutions presented an indictment in which the defendant was charged with the following counts:

The defendant pleaded guilty to the three counts. The following extract is taken from the statement of facts:

A further matter (possession of child pornography contrary to s 91H(3) of the Crimes Act) was included on the Form 1 in the following terms:

An offender intake data form in respect of the defendant (which was filled in when he was admitted to Wellington Gaol in February 2009) recorded much of the relationship history set out above. On 23 February 2009 he underwent a Static-99 assessment (an instrument designed to help predict sexual and violent recidivism in sexual offenders) and scored 6, which placed him in the high risk category.

In April 2009 the defendant was assessed by Professor Greenberg, a forensic psychiatrist, who prepared a report for the sentence hearing on 6 April 2009. Professor Greenberg opined that the defendant probably suffered from paedophilic disorder and that he would benefit from Custody-Based Intensive Treatment (CUBIT).

On 17 April 2009 Judge Williams imposed a sentence of five years and five months imprisonment with a total non-parole period of four years and two months, to date from 11 July 2007, being the date on which he was taken into custody.

In the remarks on sentence, Williams DCJ said, of the defendant’s third wife:

The sentencing judge also said:

The defendant’s wife continued to support the defendant throughout most of his sentence. However, in about early 2011, TC told her mother that the defendant had been sexually abusing her for years, including before they were married. This led to their divorce on 10 May 2011. A probation and parole pre-release report dated 29 June 2011 said:

The report concluded:

On 21 June 2011 a risk assessment report was prepared for the purpose of determining whether an application for an ESO ought be made under the Act, as the defendant’s sentence was due to expire on 10 December 2012. The assessment was conducted by Patrick Sheehan (senior specialist psychologist) and Danielle Matsuo (Acting Director Sex and Violent Offender Programs). The defendant was assessed as remaining in the moderate-high risk category of sexual offending relative to other male sexual offenders.

On 10 September 2012 the defendant was released from custody on parole. At first, he resided in a Community Offender Support Program (COSP) facility. On 19 September 2012 he was registered under the Child Protection (Offenders Registration) Act 2000 (NSW).

On 22 November 2012 the defendant was charged with failing to comply with his reporting conditions under the Child Protection (Offenders Registration) Act as he had a mobile phone with internet access which he had not disclosed to police. He explained that he thought that he was complying with the relevant reporting condition when he told police that he had a new phone. There was no allegation that he had in fact used the Internet for illicit purposes.

In 2012, prior to the defendant’s release, orders were obtained from this Court, appointing Drs Allnutt and Roberts to examine the defendant and report to Court. Both experts considered him to pose a high risk of sex offending. Dr Robert’s expressed his opinion in the following summary:

Dr Roberts opined that an ESO of the maximum duration was called for. He noted that the defendant had not availed himself of any therapy and was “insightless”. Dr Roberts also observed of the defendant that:

The plaintiff’s first application for an ESO against the defendant was made in 2013 and was granted by Button J who made an ESO against him which commenced on 7 March 2013 for a term of three years: Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170. In those proceedings the defendant did not oppose the making of an ESO for that duration; the plaintiff contended that it should be for the maximum duration of five years. His Honour was satisfied that the defendant had a “chronic tendency to commit sexual offences against female children that has existed for well over 50 years” ([68]). His Honour also said, at [72]:

Of present relevance the first ESO contained the following conditions:

Condition 22 provided that the defendant was not to approach or have contact with a child under the age of 16 years, or attend certain nominated locations such as schools, playgrounds and day-care centres, unless he has prior written permission of the Department and is in the presence of an “appropriate adult”, being a person previously approved in writing by the Department for the purposes of the condition.

From at least 21 April 2013, the defendant began to complain about the anklet he was required to wear as a condition of the ESO (to provide continuous monitoring of his whereabouts). He said that it was not working for various reasons. The case notes (sometimes referred to as OIMS – Offender Integrated Management System – notes) prepared by Community Corrections officers are redolent with issues concerning the anklet, its charging and its operation. Such complaints have been a consistent theme and have been characterised as “diversionary tactics”, in that they are raised to thwart attempts by therapists to engage in a deeper discussion about the reasons for his offending behaviour and his proclivities. For the initial period of his ESO he was required to submit movement schedules to the Department of Corrective Services setting out where he would be at any given time.

On 23 April 2013 the defendant attended his first appointment at Forensic Psychology Services (FPS), as required by a condition of his ESO. His psychologist was Craig Baird. From the outset, the defendant consistently and persistently maintained that he had been falsely accused and wrongly convicted. From that time onwards he gave elaborate explanations as to how and why he had been wronged.

On 20 May 2013, in the Waverley Local Court, the defendant was acquitted of the charge of failing to comply with reporting conditions (arising from the charge in November 2012 referred to above).

In a counselling session on 24 May 2013, the defendant raised that he suffered from Post-Traumatic Stress Disorder (PTSD) as a result of assistance he provided for the Granville train disaster as a reason for his aversion to attending appointments in the city or travelling by train in any circumstances. At several consultations it became the main topic of discussion. On 22 July 2013 Mr Baird recorded that, although the defendant asserted that he had been diagnosed with PTSD, an earlier report had noted that there was no official documentation to that effect. It was decided that he ought be referred to another psychologist with a view to determining the existence (or otherwise) of PTSD and appropriate treatment.

In August 2013 the defendant moved out of the COSP facility to a private address in Rossmore. On 20 August 2013 the Community Corrections officers conducted an unscheduled home visit at the defendant’s new residence. There was discussion about the defendant’s inadequate response to therapy. The following was also noted:

When Community Corrections officers visited the defendant at home they noticed that in relatively close proximity to the granny flat where the defendant lived there was a pool which was used by children (a fact which he did not disclose to the officers). Indeed, the pool was about 20ms from the vegetable patch which the defendant looked after. This led to the placement of an electronic monitoring boundary and a written direction (given on 13 October 2013) that he not associate with the neighbours.

On 13 October 2013 the defendant was interviewed at his home by a Community Corrections officer. The note about the portion of the interview which related to the defendant’s offending history read:

In October 2013 the defendant’s landlord, Tony (not his real name), approached him to renovate a nearby property in return for reduced rent. The two became friends.

On 9 December 2013 Mr Baird noted that the defendant continued to be “fundamentally opposed to openly engage in treatment”. At the conclusion of the consultation, Mr Baird told the defendant that he would not continue working with him if he did not focus on the treatment.

On 16 December 2013 the Community Corrections officers visited the defendant and met Tony. After Tony left, the defendant confirmed that he had not told him that he was subject to an ESO. The defendant told Community Corrections officers that he could not recall if Tony had any grandchildren. However, the officers later learned (in about February 2014) that Tony not only had three grandchildren but they lived with their father next door to the defendant’s residence. On 16 December 2013 the defendant told the officers that he would “go to the grave” claiming his innocence. He blamed the “poor legal aid team and two bad barristers for the fact that he was found guilty”.

On 10 January 2014 Mr Baird noted, in the clinical notes of his consultations with the defendant:

By February 2014, the friendship between the defendant and his landlord had developed to the point where Tony, who was unaware of the defendant’s history or the ESO, invited the defendant to his home. On at least some of those occasions, Tony’s grandchildren were present. The Community Corrective officers told the defendant that he must either disclose his history and ESO to Tony, or move house. Eventually, on 7 February 2014, the defendant was given a written direction to disclose to Tony that he was subject to an ESO. On 9 February 2014 the defendant informed Tony of this matter. The Community Corrections officer spoke with Tony directly to make sure that he understood the potential risks to his grandchildren. When the officer spoke with Tony on 13 February 2014, he told them that he did not have the “heart to evict [the defendant]”, in part because Tony was grateful for the renovations the defendant had performed on his properties, including the one to which the defendant was about to move.

In February 2014 the defendant began seeing Raymond Hudd, psychologist, in lieu of Mr Baird for the purposes of obtaining treatment for PTSD. At about this time the defendant moved to the property in Austral which he had been renovating for Tony. The defendant constructed an aviary on the property in which he housed several birds, including chickens.

As is revealed by the supporting documentation, the sessions with Mr Hudd were not productive. Indeed, in March 2014, Mr Hudd told Community Corrections that the defendant was the “most difficult sex offender he has been required to deal with”.

In April 2014 a Community Corrections officer made an unscheduled visit to the defendant’s home. In the course of the discussion about treatment, the defendant’s attitude to his offending was raised. The officer made the following note:

In early September 2014 a Community Corrections Officer suggested that the defendant might socialise at a club, either the local bingo club or a bird breeders club. He mentioned that he used to sing for the elderly in their retirement homes and he would consider this.

On 7 October 2014, following discussions between Corrective Services and FPS, approval was given for the defendant to join a local bowling club. According to Kay (not her real name), she and the defendant met in October 2014 at Karaoke in Wallacia. Kay looked after four of her grandchildren on a regular and extended basis, including two girls under ten years of age. Three of the grandchildren whom Kay looked after were the children of her son Bill (not his real name), who worked full-time and needed his mother’s assistance to look after his children, including before and after school, as his own marriage had ended.

On 13 October 2014, Mr Hudd contacted Mr Baird to inform him that the sessions with the defendant had ended and that he did not consider there to be any benefit in any future sessions. The note recorded:

The defendant and Kay soon became good friends and a relationship between them developed around Christmas 2014. Notwithstanding the terms of condition 19 of the first ESO, the defendant did not disclose this relationship to Community Corrections.

On 2 January 2015 the defendant made an unscheduled deviation to Kay’s residence, which then became the subject of an exclusion zone.

On 23 and 30 January 2015 the defendant deviated from his scheduled movements by visiting Kay’s home.

On 1 February 2015 the defendant was seen affectionately kissing a woman, who was later identified as Kay. She waited in the defendant’s car while he went to Aldi. He subsequently drove her to her home (a movement which was not included in his schedule of movements) and then returned to his own residence. The Community Corrections officers followed him home and noted that there were signs of a female in the spare bedroom (women’s shoes under the bed, a pink dressing gown).

On 2 February 2015 a Community Corrections officer visited the defendant at home. The officer noticed cigarette butts in an ashtray, which aroused his suspicions as he knew that the defendant did not smoke. He asked the defendant about a deviation to his scheduled movements on the previous day. He said that he had visited a friend whom he had met at karaoke and that she was a “friend”. He gave her first name but refused to provide her last name. He admitted that she had come to his home but said that she had come with a number of friends from karaoke. The defendant was reminded of the terms of condition [19] of the ESO, to which he responded that he and this woman were “just friends”.

On 2 February 2015 the defendant was given a written warning about the deviations from his scheduled movements on 23 January, 30 January and 1 February 2015. It was noted that he was detected at Kay’s address.

In February and March 2015 the defendant and Kay were sighted together regularly. For example, he was seen with her in the centre of the Trash and Treasure Markets at Camden Valley Way. Kay was seated in a wheelchair with her foot bandaged and the defendant was pushing her around. Although the defendant was regularly questioned by Community Corrections officers about this relationship he maintained that they were just friends with common interests. The defendant did not, at that stage, mention Kay’s grandchildren.

On 8 March 2015 the defendant was asked why he had left his property earlier that day without notifying the electronic monitoring unit. He said that he had had friends to stay for the weekend and they had gone to the markets that morning and he had to take them home. He told Community Corrections that he knew that it was the wrong thing to do but he “felt he had no choice as the friend does not know that he is monitored”. On 9 March 2015 he was issued with a final written warning regarding the deviation from his schedule.

On 13 March 2015 Community Corrections officers visited the defendant at home. Kay was sitting on the front porch, smoking. The defendant told the officers, who observed a walking frame, that Kay had Parkinson’s and diabetes. The defendant continued to deny the relationship. He informed the officers that although he had not yet told Kay about the ESO, he would do so.

On 21 March 2015 Community Corrections officers spoke to the defendant who was again seen with Kay. The defendant told the officers that Kay did not even know that he had been in custody. He also reported that she had many problems and that he really only saw her on the weekend as she minded her grandchildren during the week. He denied that he had visited her place. The notes recorded:

On 24 March 2015 the defendant told the Community Corrections officers that he had told Kay that he was on an ESO and that “she understands about his circumstances”. On 29 March 2015 the Community Corrections officers spoke with Kay. The notes record that “she did not have any issue and would continue to support the offender” and “she is aware offender is not to have any contact with children unless supervised”. She asked them whether the defendant could come to her place as she “has some health issues and may require the assistance of the offender”.

In April 2015 it was mooted that the defendant be permitted to attend Kay’s residence; however, this proposal was not approved by the Community Corrections manager on the basis that Kay’s son, Bill, was unaware of the defendant’s circumstances (prior convictions and ESO) and there was a possibility that Bill’s children (Kay’s grandchildren) would be there. However, approval was given for him to spend the weekend at her place. The defendant was given a written direction dated 8 April 2015 that he was not to approach or have contact with a child under the age of 16 years, or attend certain nominated locations such as playgrounds, day-care centres, unless he had prior written permission of the Department and was in the presence of an “appropriate adult” being a person previously approved in writing by the Department for the purposes of the condition.

On 26 April 2015 Community Corrections officers encountered the defendant in Casula Mall. He was pushing Kay in a wheelchair. Kay explained that she needed to be pushed in a wheelchair because her left leg was in constant pain.

On 5 May 2015 Kay spoke to Community Corrections officers and expressed a wish that the defendant be permitted to attend her home on her birthday and mother’s day. Both visits were approved. The notes record:

In May 2015 the requirement that the defendant submit schedules of his movements to the Community Corrections was lifted. On 24 May 2015 Community Corrections officers made an unscheduled visit to the defendant’s home. They found him in Kay’s company and were told that she had just been diagnosed with cancer. The couple informed the officers that they intended to marry in a few months. On 26 May 2015 the defendant was given a written direction in similar terms to the earlier one that he not associate with children except with prior Departmental consent and in the presence of an “appropriate adult”. He was also directed that he was permitted only to attend Kay’s residence in order to pick her up and drop her off as required but that he was not to stay there.

On 1 June 2015 the defendant confirmed that he had not yet told Kay’s son about the ESO.

On 7 June 2015 Kay told Community Corrections officers that she was having difficulty performing household chores as Bill had been away and that the defendant was helping her with these. When Community Corrections officers visited the defendant at home on 21 June 2015, Kay told them that they had set a wedding date of 2 October 2015 and that they were “just looking for the right time” to tell her son of the defendant’s antecedents and his ESO. On 5 July 2015 Community Corrections officers encountered the defendant and Kay at Casula Mall. She told them that her granddaughter was doing a “child protection awareness course” at school and Kay “spoke of the benefits of this”.

On 15 July 2015 the defendant told Community Corrections officers that they were no closer to telling Kay’s son, Bill, due to his “personal issues”. A summary Community Corrections note dated 25 July 2015 recorded:

The case note for 26 July 2015 recorded in part:

The case note for 30 July 2015 recorded that the defendant needed to travel to the Family Court in Armidale in August 2015 for the purposes of a property settlement with his ex-wife (his third wife).

On 30 August 2015 the defendant was informed that the plaintiff was intending to apply for a further ESO when his current ESO expires. He was told that the reasons for the application included: his continued denial of the offence; his refusal to engage in counselling; and the concern about his relationship with a woman who had young grandchildren in her care and whose son (Bill, the children’s father) was unaware of the defendant’s offences or ESO.

On 3 October 2015 the defendant and Kay married.

On 6 October 2015 a risk assessment report on the defendant was prepared by Samuel Ardasinski and Danielle Matsuo, forensic psychologists. They identified the following risk factors: sexual deviance; denial and resultant problems with self-awareness and insight; refusal to participate in treatment; social isolation; and being in a relationship which may give the defendant access to female children. They concluded:

As referred to above, the case notes prepared by Community Corrections officers contain many references to the defendant’s complaints about the anklet and, in particular, the need to charge it and difficulties with charging. A note dated 14 October 2015 recorded:

A further risk management report dated 20 October 2015 was prepared by Mr Van Ryn, a Community Corrections officer responsible for the defendant. Mr Van Ryn noted that, as at the date of the report, Kay did not believe that the defendant was guilty of any offences and shared his view that he was wrongly accused. He described their living arrangements: they live separately during the week, while she has care of the grandchildren (before and after school) but live together on the weekend. At that stage they had not disclosed either his history or the ESO to her family. He noted:

When addressing the risk of future offending, Mr Van Ryn noted that:

On 24 October 2015 Mr Van Ryn conducted an unscheduled home visit to the defendant. Kay was also there. Mr Van Ryn raised with the defendant that the electronic monitoring revealed that he had spent more than an hour at Kay’s residence on several occasions notwithstanding that permission extended only to dropping her off and collecting her. The defendant said that such quick intervals would tend to raise the suspicions of Kay’s son, who lived at the house. Mr Van Ryn noted:

On 26 October 2015 Community Corrections received a call from the Department of Community Services (DOCS) in which DOCS expressed its concern about the defendant’s attending Kay’s residence at all and wanted him to be directed not to attend. Community Corrections directed the defendant not to attend Kay’s residence. The case note recorded that the defendant became very upset and accused the officer of denying him his right to see his wife. He was told that he was not permitted to see her at home or when she was around her grandchildren and that the reason for this was that he and his wife refused to inform the parents of the children of his offending history. The defendant became angry and ended the phone call.

On 29 October 2015 Community Corrections decided to allow the defendant to attend Kay’s house for a few minutes to pick her up and drop her off. It was noted that the defendant had signed up with the Mt Pritchard Community Club and that there was a children’s gym and a swimming pool on the premises.

On 5 November 2015 the defendant told Community Corrections that he intended to tell Kay’s son about his offending history and the ESO that day but he wanted permission to have the discussion at her house. Permission was refused. Before the disclosure to Bill occurred, Department of Family and Community Services (FACS) (the successor to DOCS) independently contacted Bill and told him that the defendant was a person of interest to them because of his long history of harming young children. Bill told FACS that he was unaware of the history and that now that he knew he would not allow the defendant to have any contact with his children. Bill also said that he would ask his mother (Kay) about her knowledge of her new husband’s (the defendant’s) offences.

Bill told his former partner (the mother of the children) about the defendant’s offending. She then told Bill’s brother, who went straight to Kay’s house and told her to divorce the defendant straight away or he would have nothing more to do with her. Kay chose to continue her relationship with the defendant; as a consequence, she became estranged from one of her sons (Bill’s brother).

A Community Corrections case note dated 22 November 2015 said:

A Community Corrections case note dated 25 November 2015 recorded that the defendant blamed Community Corrections for the delayed disclosure to Bill because they would not permit it to occur at Kay’s house. When the defendant was reminded that the need for such a disclosure had been raised five months previously, he blamed Kay and said that she wanted to defer disclosure because her son was already under too much stress from work.

The defendant sought approval to attend Kay’s house on Christmas Day. Bill confirmed that he would ensure that his children were not left in the defendant’s company at any time during the day. The defendant was granted permission to attend from 10am to 2pm and was directed not to have any physical contact with the children.

The defendant and Kay wanted to travel to western New South Wales in early 2016 and stay in caravan parks along the route. Permission for him to go was refused on the grounds that Kay had not been approved as an “appropriate adult” for the purpose of supervision around children.

On 17 February 2016 Mr Van Ryn interviewed Kay at her home for the purposes of risk assessment. She was asked to describe her health problems, which she confirmed did not presently require hospital admission. She said that she did not take naps during the day. When asked what her attitude was to the defendant’s offending behaviour she said (according to the OIMS note):

Kay also informed Mr Van Ryn that Bill will be moving with his fiancée to Newcastle in December 2016 and that she intended to move in with the defendant when that happened. She said that the defendant wanted to move to Gilgandra but that she wanted to stay in the local area near her doctors and the hospital.

Mr Van Ryn also interviewed Bill on the same occasion as he was home at the time. When asked about the defendant’s criminal history Bill said:

The defendant meets the definition of “sex offender” in s 4 of the Act, having been sentenced for a “serious sex offence” (aggravated indecent assault on a child under the age of 10). The sentence imposed was five years and five months with a total non-parole period of four years and two months.

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).

The ESO granted by Button J will expire at midnight on 6 March 2016, before these proceedings are determined.

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.

As referred to above, the defendant was assessed by reference to Static-99 in 2009, at which time he was assessed as being moderate to high risk. I note that he was able to answer affirmatively to the question whether he had ever lived with a lover for at least two years. While in other cases an affirmative answer to that question may properly be regarded as reducing the risk, in the present case I do not regard it as having that effect because of the defendant’s pattern of offending (which is addressed in more detail below in the context of s 9(3)(h)).

In June 2012 Mr Sheehan considered the defendant to fall within the moderate to high risk category and did not regard his increasing age as mitigating the risk in any material way. Dr Allnutt in 2012 considered him to be at high risk for serious sexual recidivism. The most recent report, of Mr Ardanski and Ms Matsuo, sets out their opinion that the defendant’s present situation is “high risk” and that although the risk of re-offending is “moderate”, his lack of treatment during the ESO and the similarity between his current personal situation and the previous context in which his offending occurred presented a high risk.

The defendant was regarded as generally compliant with reporting for parole in the period from his release to parole on 17 November 1996 (according to a pre-sentence report prepared in 2011), although he refused to engage in any “interventions” in the community and maintained his innocence.

As to his level of compliance with the ESO, the lengthy recitation of a narrative largely derived from the OIMS notes provides a picture of the defendant as a man who resents any management or intervention by Community Corrections. He showed himself on occasions to be prepared to mislead the officers who were responsible for his monitoring. For example, he appears to have deliberately downplayed his relationship with Kay until such a time as he had engendered such hope for the future and affection in her (as well as a degree of physical dependency, having regard to her difficulties with mobility) that she married. Moreover, the defendant prevaricated for many months about telling Bill, who eventually learned the truth only when FACS told him.

Although the defendant has been subject to electronic monitoring, he has frequently complained about the device, allowed it to exhaust the charge and not answered his mobile phone when officers have called.

Mr Van Ryn’s report referred to these matters as well as the Community Corrections’ concerns about his living arrangements and his continual denial of the offending conduct and the need to manage the risk. He has been compliant to an extent with the ESO and has not been “breached”. However, he has sought to test the boundaries of several conditions, particularly those that relate directly to the risk (failure to inform Community Corrections of his relationship with Kay; deferring telling Kay or Bill of the ESO or his offending conduct; and visiting Kay’s house and staying for longer than permitted).

The defendant attended FPS consultations with Mr Baird and also attended Mr Hudd to obtain treatment for PTSD. His participation was indifferent in both. He appears to have no insight into the effect of his criminal conduct on others and refuses to acknowledge either his guilt or his responsibility. There was no active engagement with the therapy. I accept the clinicians’ reports that he engaged in diversionary tactics on a regular basis. His preparedness to blame others (his legal team, his family, etc.) does not augur well for any prospect of rehabilitation.

The only matter relied on by the plaintiff was the defendant’s alleged failure to comply with reporting conditions relating to a new phone with Internet capacity in 2012. He was acquitted of the charge. There is, accordingly, nothing to suggest that he has not complied with his obligations under this legislation.

The defendant’s criminal history as set out more fully in the narrative above spans several decades. Age does not appear to have diminished his sexual urge. He remains lacking in insight.

The defendant’s past offending has involved his obtaining access to young girls through (age-appropriate) women with whom he has been in apparently intimate relationships. Such women have been either the mother (in the case of the earlier offending in 1993) or the grandmother (in the case of the index offences in 2007) of the victims.

The children under the care of their mother or grandmother (as the case may be) appear to have been lulled into a false sense of security by their mother or grandmother’s relationship with the defendant. With respect to the 1993 offences, the reason V3 was in the same bed as the defendant was that her friend, AV1, had been comfortable to watch television there as her mother (the defendant’s then partner) was also in the bed. In relation to the offences in 2007, the defendant was apparently able to engage in conduct (not all of which was charged) with several young girls in the context of a family environment where the defendant was called “Poppy” by his then wife’s grandchildren.

Although no judgment can be made whether the defendant entered into the relationships with the mother or grandmother of his victims with a view to obtaining access to young girls to whom he was sexually attracted, this has been the effect of such past relationships. He has recently married Kay, a woman who has caring responsibilities for her grandchildren, and who, though the grandmother, effectively stands in the position of mother. But for the ESO and the constant surveillance and enforcement of its conditions by the Community Corrections officers, the defendant’s relationship with Kay would have given him unfettered access to young girls: those in her care and any of their friends who might visit them.

It is also noteworthy that the defendant has demonstrated a substantial capacity to affect the judgment of the women with whom he is intimate. His third wife preferred to lose contact with her daughter and grandchildren and align herself with the defendant, notwithstanding his plea of guilty to serious sexual offences involving them. It was only when TC, her own daughter, told her of the sexual assaults which the defendant had perpetrated against her, that the defendant’s third wife was prepared to acknowledge that his claims of innocence were false.

Kay, his fourth wife, was induced to believe that the defendant was innocent of all of the offences with which he had been convicted (and to some of which he had pleaded guilty). For a significant period she preferred to keep her own son, Bill, in the dark about the defendant’s criminal history, than disclose it and jeopardise her own relationships both with Bill and with the defendant. Kay has lost contact with her second son (Bill’s brother) as a consequence of her continued association with the defendant, on whom she depends for physical assistance and support. In the course of Mr Van Ryn’s interview on 17 February 2016 (less than a fortnight before the preliminary hearing) Kay indicated that she accepted that he was guilty of the offences for which he has been convicted. However, she has earlier said that she believes in “second chances”, which provides little assurance that she would be willing to control the defendant, even if she were able to do so.

The concerns of Williams DCJ are set out above. They relate principally to the defendant’s lack of insight, pattern of offending and ability to groom his partner to take his side in the face of what might be regarded as overwhelming evidence (including his plea of guilty).

I have referred to the transcripts of interviews with children who spoke of the defendant’s conduct at about the time of the index offences. I have taken these matters into account with respect to the pattern of offending conduct referred to above, with allowance for their weight (since they were not the subject of charges and were not tested at trial).

Mr Averre has put on behalf of the defendant that the risk posed to the public is largely confined to Kay’s grandchildren since his history does not include random, impulsive acts against children in public areas. He submitted that, in these circumstances, the risk will effectively be reduced, if not removed, by Bill’s imminent move to Newcastle. He also relied on Kay’s growing awareness of the reality of the risk posed by the defendant (and her acceptance of his past guilt) as an additional protective factor.

Mr Averre referred to Mr Van Ryn’s evidence that he considered Kay to be an “appropriate person” for the purposes of the conditions of his existing ESO (although Mr Van Ryn accepted that he did not have the authority to make such a decision). Mr Averre submitted that, in these circumstances, Kay’s presence (which ought be inferred would be continuous, having regard to their marriage) would provide an adequate protective mechanism even were no ESO to be ordered. He also referred, as an additional protective mechanism, to the Child Protection legislation (Child Protection (Offenders Registration) Act 2000 and Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)), pursuant to which the defendant was registered. He submitted that, for these reasons, although there was a risk, I ought not be satisfied that it was an unacceptable risk.

The safety of the community in the present case is, in substance, the safety of young girls to whom the defendant is sexually attracted, and in particular those who are within a family circle to which the defendant belongs. The defendant has apparently no insight into the danger he poses and is unwilling to restrain himself from indulging his sexual urges. The safety of the community would appear to be jeopardised except to the extent to which he can be controlled by external forces. Absent an ESO, there are no readily identifiable external forces that would apply, or be effective, to restrain the defendant. The Child Protection legislation does not include surveillance or electronic monitoring of the sort available under an ESO.

Moreover, the defendant has shown remarkable skill in insinuating himself into the affections of women who, by reason of their standing as mothers or grandmothers, have close relationships with (and play caring roles with respect to) young girls. Although Kay’s attitude appears (from the supporting documentation) to have changed somewhat, I do not consider that she would necessarily provide any real protection for girls in the defendant’s presence, having regard to her undoubted love and devotion to him, as well as her physical infirmities. Although access to Kay’s grandchildren is likely to be much diminished when Bill moves his family to Newcastle, it cannot reasonably be contemplated that Kay will not have contact with her grandchildren, particularly as she has performed the role of mother for them for some years.

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.

As referred to above, the plaintiff accepts the defendant’s proposal that the conditions of any ISO be those of the first ESO subject to the further condition referred to above authorising the DSO to tell Kay’s family about his criminal history. I am satisfied that these conditions are appropriate for the purposes of the ISO.

I make the following orders: