State of New South Wales v Wilde (No 2)

1. [1]

   By its amended summons the State sought a further three year extended supervision order against Mr Wilde under the Crimes (High Risk Offenders) Act 2006 (NSW). The conditions sought were later amended after expert evidence was received, but Mr Wilde opposed the application and in the event that it succeeds, the term and conditions of the order pressed.

2. [2]

   Campbell J made interim supervision orders on 10 August 2017, also over Mr Wilde’s objection: State of New South Wales v Wilde [2017] NSWSC 1056. Those orders were later extended by Campbell J on 29 August 2017. Beech-Jones J further extended those orders on 4 October 2017, also over Mr Wilde’s objection: State of New South Wales v Wilde (Supreme Court (NSW), 4 October 2017, Beech Jones J, unrep).

3. [3]

   Orders for the appointment of two qualified psychiatrists and/or psychologists to examine Mr Wilde and furnish reports to the Court were made by Campbell J on 29 August. Attached to those orders were the terms in which the experts were to be instructed, his Honour having heard the parties over their dispute about those terms.

Mr Wilde’s stay applications

1. [4]

   Mr Wilde has appeared unrepresented throughout the proceedings, for reasons ventilated before Campbell J, Beech-Jones J and myself.

2. [5]

   At the commencement of the final hearing, by way of a motion which he was given leave to file in court, Mr Wilde, who is on a disability support pension, made an application to have these proceedings permanently stayed. That application was supported by an affidavit which he swore on 16 October 2017, as well as by written and oral submissions.

3. [6]

   Even though the State accepted that Mr Wilde would be placed in a difficult position if he had to continue representing himself, given what was in issue and the potential consequences for his liberty, if the application succeeded, the stay was opposed.

4. [7]

   I refused Mr Wilde’s application, indicating that I would later give reasons for that decision. In final submissions the application was renewed. These are the reasons for the rejection of those applications.

5. [8]

   Mr Wilde appeared unrepresented, on his case, despite having repeatedly sought legal aid and having sought to pursue a review of the refusal of his applications, to which he had received no response from Legal Aid. Mr Wilde said that he understood from a conversation that he had had with a Legal Aid officer, that the refusal was because of the view taken that he had the financial means to obtain legal representation.

6. [9]

   Mr Wilde did not, however, tender the documents by which he had made any applications for legal aid; which established that his applications had been refused; or which disclosed the reasons for such refusal. Nor did he tender documents by which he had pursued either a review or appeal from such refusals.

7. [10]

   Earlier, before Campbell J on 10 August, Mr Wilde told his Honour that he was unrepresented, but not through choice; that Legal Aid had not concluded its consideration of the merits of his application for assistance in these and what he considered to be related civil proceedings; and that the Law Society would not assist, until that decision had been made. He also said:

8. [11]

   In his judgment Campbell J observed at [39] – [41]:

9. [12]

   This legal representation was not forthcoming, nor was any other, despite his Honour referring Mr Wilde for pro bono assistance.

10. [13]

    Before Beech Jones J Mr Wilde remained unrepresented. His Honour noted in his ex-tempore judgment of 4 October 2017 that:

11. [14]

    The State relied on an affidavit sworn by Mr Vasiliou, a solicitor, on 22 September 2017, which revealed that the State had made representations to Legal Aid about Mr Wilde being provided with legal assistance in these proceedings.

12. [15]

    In its correspondence the State had sought to confirm that Mr Wilde had been declined legal aid and if he had been, to enquire whether the decision could be reviewed, given the “prospect of Mr Wilde being subjected to further restrictions on his liberty long after the conclusion of the sentences which he has served”, which made it “desirable that he be represented”. The State was advised that the confidentiality provisions of s 25 and s 26 of the Legal Aid Commission Act 1979 (NSW), precluded Legal Aid from divulging or discussing its dealings with Mr Wilde. He did not waive that confidentiality.

13. [16]

    To support his application for a stay, Mr Wilde relied on Dietrich v R (1992) 177 CLR 292; [1992] HCA 57, where it was concluded that a criminal trial had miscarried, because the trial judge had not stayed or adjourned the trial until arrangements were made for counsel to appear at public expense with the result that, in the circumstances of that case, Mr Dietrich had been deprived of his right to a fair trial and of a real chance of acquittal.

14. [17]

    While these are not criminal proceedings, if successful, they will undoubtedly have onerous consequences for Mr Wilde and his right to unfettered liberty, he having already served the sentences imposed upon him for his past serious sexual offending and having already twice been made the subject of extended supervision orders. If the State’s application succeeds, the result will be the imposition of a further extended supervision order, subjecting him to onerous conditions, years after he finished serving the sentences imposed for his offending.

15. [18]

    Mr Wilde also relied on Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46, where in issue were questions as to the right to a speedy trial and undue delay amounting to an abuse of process. These were not questions of immediate relevance to these proceedings, given the requirements of the statutory scheme under which the State’s application was made.

16. [19]

    Nevertheless, I accepted that it would have been in not only Mr Wilde’s best interests, but desirable for the administration of justice and of real assistance to the Court, if he had had legal representation in these proceedings.

17. [20]

    That was what undoubtedly moved Campbell J to refer Mr Wilde for pro bono legal assistance; Beech-Jones J to make the observations I have referred to; and the State to make representations to Legal Aid, urging that Mr Wilde be provided with assistance. The failure of all of these endeavours resulted in the proceedings being more difficult and taking longer than they otherwise would have.

18. [21]

    While these were relevant considerations, Mr Wilde’s undesirable position had to be weighed in the balance with the fact that the State’s application raised serious questions going to the public interest, given the risk which on its case, Mr Wilde still poses. That is the risk of committing further serious sexual offences, when he is no longer subject to the ongoing supervision for which the Crimes (High Risk Offenders) Act provides.

19. [22]

    These matters all had to be considered in the context that s 3 of the Crimes (High Risk Offenders) Act specifies that the primary object of this Act is to ensure the safety and protection of the community and another is to encourage high risk sex offenders such as Mr Wilde, to undertake rehabilitation.

20. [23]

    It was also necessary to take into account that s 6 of the Crimes (High Risk Offenders) Act specifies the time at which an application for an extended supervision order must made, in the case of a supervised sex offender such as Mr Wilde, not until the last six months of his current supervision. Note also had to be taken of s 10A, which permits the Court to make the interim orders Campbell J earlier made, only in circumstances where:

21. [24]

    Campbell J had earlier formed the statutory opinion, for the reasons his Honour explained: see State of New South Wales v Wilde [2017] NSWSC 1056 at [28].

22. [25]

    It was also relevant to consider that such orders may be made only for a period of 28 days and that they may be renewed for no longer than periods totalling three months: s 10C. In Mr Wilde’s case, that period expires on 5 November 2017.

23. [26]

    I concluded that weighing all of the relevant considerations, which included the nature of the potential outcome of the proceedings; the desirability of Mr Wilde being legally represented; the efforts which had been made to achieve such representation; Mr Wilde not having led evidence to reveal the circumstances in which his applications were refused; Mr Wilde’s stated attitude to legal aid; the views which Campbell J formed as to the existence of circumstances which could justify the making of a third extended supervision order in Mr Wilde’s circumstances, to which I will return; and the protection of the community which such orders are intended to achieve - the stay had to be refused.

24. [27]

    Even on his further application I was satisfied that in Mr Wilde’s circumstances, considerations of the public interest in community protection outweighed the desirability of him being legally represented on the hearing of the State’s application, as a matter of procedural fairness.

25. [28]

    In his written submissions Mr Wilde renewed his application for a stay. He contended, amongst other things, that these proceedings were vexatious, as that term is defined in s 6 of the Vexatious Proceedings Act 2008 (NSW), they involving an abuse of process. That was explained to be because he had been denied legal representation, through no fault of his own, in proceedings pursued to harass and annoy him, on the excuse of a trumped up knife charge. Further, that charge had been instituted without reasonable grounds, given that it had resulted from his possession of a butter knife and had been conducted so as to cause him detriment, because it has not been listed for hearing until January 2018.

26. [29]

    While it will be necessary to refer further to various of these matters, Mr Wilde’s case that these proceedings are vexatious and accordingly, had to be stayed, could not be accepted, given the orders earlier made by Campbell and Beech-Jones JJ.

27. [30]

    Mr Wilde also argued that he was an innocent person, who had been wrongly charged with a minor offence, in order to severely detriment him, by putting him at risk of a further extended supervision order being made. In those circumstances, he argued that the earlier refusal of the stay was inconsistent with the requirements of s 58 of the Civil Procedure Act 2005 (NSW), given what the interests of fairness, justice and the community required, the refusal of his application involving as it did a high degree of injustice.

28. [31]

    This was also not a basis upon which the stay Mr Wilde sought could be granted. Section 58 provides:

29. [32]

    Section 56 establishes the overriding purpose which binds both the Court and the parties, namely, the just, quick and cheap resolution of the real issues in the proceedings. Section 57 is concerned with case management.

30. [33]

    In the circumstances, I was well satisfied that none of these considerations provided a proper basis for the grant of the stay which Mr Wilde pressed.

Mr Wilde falls within the statutory requirements

1. [34]

   Section 5B(1) of the Crimes (High Risk Offenders) Act stipulates that orders of the kind sought by the State can only be made by this Court, when an offender falls within s 5B(2), which provides:

2. [35]

   While it is Mr Wilde’s view that the extended supervision orders which have earlier been made against him are invalid and unjust and that the further orders sought should be refused, he did not contend that he did not fall within the statutory provisions which empower the Court to make the orders sought by the State.

3. [36]

   This reflects that a “sex offender” is defined in s 4 to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence. A “serious sex offence” is defined in s 5(1) in terms which encompass the sexual offences of which Mr Wilde has been convicted, including as the definition does, offences punishable by imprisonment for 7 years or more: s 5(1)(a)(i). His offending also brings him within the definition of an “offence of a sexual nature” in s 5(2).

4. [37]

   An application for a high risk sex offender extended supervision order may be made only in respect of a “supervised sex offender”, defined in s 5I(b) to mean “a sex offender who, when the application for the order is made, is in custody or under supervision … pursuant to an existing extended supervision order or continuing detention order”. Being subject to an interim extended supervision order, Mr Wilde also satisfies this definition.

5. [38]

   There was also no issue that the requirements for pursuit of an extended supervision order under s 6 have been fulfilled by the State and that the term finally pressed, of three years, does not exceed the five year permissible term under s 10(1A).

6. [39]

   The term “a high degree of probability” used in s 5B is not defined in the Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 its meaning (in predecessor legislation) was held to be:

7. [40]

   The term “unacceptable risk” is also not defined. Consideration of the risk which Mr Wilde poses thus involves an evaluative judgment, which must be undertaken in light of all of the evidence, in the way discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50] - [51] and [55]:

8. [41]

   On the evidence I will discuss, I am satisfied to a high degree of probability that Mr Wilde does pose such an “unacceptable risk”, this assessment involving as it does an evaluative task, with this Court not being “required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence”: Crimes (High Risk Offenders) Act, s 5B(3).

Should a further extension order be made?

1. [42]

   In determining the State’s application, regard must be had to the requirements of s 9(3) of the Crimes (High Risk Offenders) Act which provides:

2. [43]

   The State’s application was supported by an affidavit sworn by Ms Senanayake, a solicitor employed in the Crown Solicitor’s Office, annexing various relevant documents, as well as other documents and evidence called from various witnesses.

3. [44]

   The incident reports relating to Mr Wilde were received over his objections. Mr Wilde disputed their accuracy, given that he had not been consulted about their preparation. Nevertheless I was satisfied that they were relevant and admissible, being business records falling within the s 69 hearsay exemption in the Evidence Act 1995 (NSW).

4. [45]

   Mr Wilde cross-examined, at length, Ms Dewson and Dr Eagle (the two experts who produced reports to the Court in response to Campbell J’s orders); Mr Ardasinski (the psychologist who he had earlier cross-examined before Campbell J); Ms Thomson (Mr Wilde’s Corrective Services Department supervising officer); and Ms Farroway (the Department’s High Risk Offender Applications and Operational Governance Officer).

5. [46]

   Mr Wilde also gave evidence and was cross-examined. He led no expert evidence himself, for reasons explained in his submissions to include his lack of legal representation and his financial means.

6. [47]

   Given the nature of what is in issue on this third application for an order for Mr Wilde’s extended supervision, some eight years after he completed his sentence for his most recent sexual offending, it is necessary to give close attention to his criminal record, which commenced in his childhood.

7. [48]

   Mr Wilde is now aged 55. His extensive record includes convictions of serious sexual offending, as well as offences involving violence, offences committed while he was in custody, as well as breaches of his earlier supervision orders.

8. [49]

   In 1981, when Mr Wilde was aged 19, he pleaded guilty to one count of rape and another of common assault, offences which he had committed in the home of one of the victims, only a few days after he had been given a bond for offences of breaking, entering and stealing. For this offending he was sentenced by Nagle CJ to 5 years of penal servitude for the rape and 12 months for the common assault. The non-parole period expired in March 1981 and the sentence in March 1983.

9. [50]

   In Nagle CJ’s sentencing remarks his Honour noted that no great physical harm had been done to either of Mr Wilde’s victims. One young girl had suffered cuts to her hand, when she attempted to seize the knife with which Mr Wilde was threatening her and the other victim, who he raped, having not received physical injury of consequence. Nevertheless, his Honour concluded that his actions had been terrifying and the rape victim had been horrified by his acts.

10. [51]

    His Honour noted evidence that Mr Wilde had a personality disorder, his environment having prevented him growing up as a normal young man. He had also suffered a variety of illnesses, but had had the devotion of his mother and grandmother. His Honour also referred to evidence that 12 years previously, while a relatively young child, Mr Wilde had been identified by a psychiatrist, Dr Wright-Short, of being at risk of developing a disturbance.

11. [52]

    Nagle CJ also noted the bizarre explanations Mr Wilde had advanced for his offending, the details of which do not appear in the sentence remarks. His Honour concluded that the feelings of the public and the necessity to make it obvious that offences of this kind could not be committed with impunity, had to be taken into account on sentencing. His Honour recommended that Mr Wilde be given the benefit of psychiatric checks during his sentence.

12. [53]

    In his evidence, while Mr Wilde contended that he is innocent of the sexual offences of which he was convicted in 1983 and 1991, he acknowledged his guilt for the 1981 offending. Despite that evidence, this application must be decided in light of Mr Wilde’s record of convictions.

13. [54]

    In 1985, only three months after he had been released on parole, Mr Wilde was charged with eight further offences. A jury found him guilty of offences committed on 28 and 29 September 1983 of:

14. [55]

    The sexual offences involving two victims were committed on different days, but the trials were conducted together. There was a substantial issue at trial as to identity. The Crown case relied on the unexplained presence of Mr Wilde’s fingerprint on the flyscreen at one victim’s house, which had been removed from the window by which the attacker had gained access. It also relied on a silver ingot found in the victim’s bedroom, which evidence established Mr Wilde had earlier admitted was his, on that his mother having given it to him. At trial he denied in his unsworn statement that the ingot belonged to him, or that he knew anything about it. He also called supportive evidence from his mother.

15. [56]

    The Crown also relied on the presence outside a neighbour's house, of a blue Sigma sedan similar to that which had been stolen on 28 September and which Mr Wilde was driving on his arrest. There were also two rings then found in his possession, both of which the victim identified as belonging to her. The Crown also relied on that the victim’s clear and detailed description of her attacker, which fitted Mr Wilde. She had also identified him in court.

16. [57]

    In evidence was also an admission made by Mr Wilde in a handwritten statement, which was consistent with aspects of the account which the victim gave. It said:

17. [58]

    In Mr Wilde’s unsworn statement he said:

18. [59]

    Mathews DCJ, as her Honour then was, directed Mr Wilde’s acquittal of one offence with which he was charged and the jury acquitted him of another. On the charges of which he was convicted, her Honour sentenced Mr Wilde to 10 years penal servitude for the threat offence and 3 years for the other offences, with a non-parole period of 6 years: R v Wilde (District Court (NSW), Mathews DCJ, 27 March 1985, unrep).

19. [60]

    In her Honour’s sentencing remarks she observed that Mr Wilde had invaded his victim’s home when she returned there with her two baby sons. He had threatened her with a knife, gagged her, bound her hands and then treated her “with the greatest degradation and depravity”. Her Honour found that the victim must have been terrified and terrorised by what he had done. It was, her Honour said, with grave misgivings, that she gave Mr Wilde the benefit of a non-parole period, his offending falling within the worst category, although not the worst conceivable offending of this type.

20. [61]

    Mr Wilde’s appealed his conviction on grounds that there should have been separate trials; that the judge had erred in directing that the sexual attack on the second victim could be used as similar facts, for the purpose of establishing the identity of the attacker of the second victim; and that the judge had erred in declining to discharge the jury at the end of the Crown case, on all charges.

21. [62]

    Mr Wilde’s appeal failed, despite it being accepted that the trial judge had erred in admitting the similar fact evidence, the Court of Criminal Appeal concluding that the Crown’s case on the charges had been overwhelming: Regina v John Allan Wilde (Court of Criminal Appeal (NSW); Street CJ, Lee and Lusher JJ; 10 April 1986). In the result, there had not been a substantial miscarriage of justice, the error not having been fundamental and Mr Wilde not having lost a chance of acquittal.

22. [63]

    In its judgment the Court of Criminal Appeal described the offending on 28 September 1983 as having involved Mr Wilde, who the victim identified, having seized her from behind, while armed with a kitchen knife. She was pushed to the floor, her hands tied behind her back with a pantyhose pulled from his jacket and gagged with a wad of tissues and a scarf, which he took from a cupboard, before he sexually assaulted her. Mr Wilde then sat on a chair and told this victim that he had been coerced by others into attacking her, before removing the gag and bonds and leaving through the front door.

23. [64]

    The Court of Criminal Appeal described the offending on 29 September as involving some similar elements and some which differed from the attack the previous day. This victim had noticed the blue Sigma sedan parked outside a neighbour’s house when she returned from shopping with her six month old twins. That car had been stolen from the first victim’s house, the previous day.

24. [65]

    The second victim carried one child into the house, where she was confronted by Mr Wilde, who she identified. He was armed with a penknife and threatened to kill her, if she made any noise. He took the child, pushed her to the floor, slapped her and threatened to kill her and her kids, a threat which he repeated during his assault. He took her upstairs to her ransacked bedroom, where he placed her child onto the bed, pushed her onto the bed, tied her hands behind her back with a leather belt which he took from the floor and stuffed a white petticoat which was also on the floor into her mouth. He then tied a pair of stockings around her mouth and left her, while he went and got the other child.

25. [66]

    Mr Wilde took the children out of the room, then sexually assaulted the victim. He then brought the children back and sexually assaulted her again, as well as subjecting her to demeaning acts, which it is unnecessary to describe. After threatening her again, he left.

26. [67]

    Mr Wilde’s appeal to the High Court was also dismissed: Wilde v R (1988) 164 CLR 365; [1988] HCA 6. There the strength of the Crown case against Mr Wilde was not in issue. Mr Wilde appealed on the basis that the admission of the evidence relating to the attack on 28 September, as to the identification of Mr Wilde as the attacker on 29 September, was an irregularity of such gravity that no proper trial had taken place: at [12]. The charges were there explained to have been, at [2] - [3]:

27. [68]

    It was concluded that the wrongly admitted evidence could not have carried significant additional weight on the 29 September counts, given the other evidence about those offences. Given the strength of the prosecution case upon those counts and the weakness of Mr Wilde’s defence, it was concluded that the trial judge’s error was not of a fundamental kind and that a reasonable jury would inevitably have convicted Mr Wilde, even if the error not been made: at [13].

28. [69]

    In June 1993 a jury found Mr Wilde guilty of various further offences, all committed on 6 November 1991, while he was at liberty on parole. Ducker DCJ sentenced him in November 1991 to:

29. [70]

    Ducker DCJ described that offending as having involved Mr Wilde knocking on the door of the victim’s home at 11.30am. After refusing him entry, Mr Wilde pushed his way in, while the victim screamed. He pulled out a large hunting knife and said “”Be quiet and I won’t hurt you”. After looking around the unit, he took her to a bedroom, closed the door, threatened to kill her and sexually assaulted her, after telling her that her boyfriend owed someone a lot of money. Mr Wilde then sexually assaulted her again. It was during this assault that she bit him on the penis, causing him to scream. There was a struggle during which the victim was cut on the fingers. The victim’s evidence was that survival was at that point her primary concern, but his Honour found that although his acts were despicable, Mr Wilde had not formed an intention to kill.

30. [71]

    Mr Wilde then told the victim to remove her clothing, before punching her in the face, tying her hands with football socks and asking when her boyfriend was returning and threatening to kill her, if she lied. He then sexually assaulted her again in various ways, before untying her. He also told her that her boyfriend and brother, with whom she lived, owed other people a lot of money and that someone was making him “do this”.

31. [72]

    It was at this point that police, who had been alerted by a neighbour and friend of the victim who had heard her screams, arrived at the unit. They knocked, but Mr Wilde would not let the victim answer the door. When they entered police found Mr Wilde still in possession of the knife, together with the victim in the bedroom. After police drew a pistol, they were able to take possession of the knife and the victim made immediate complaint of having been raped. On later interview Mr Wilde gave a bizarre story, which he later denied having given. His defence at trial was that he had had consensual sex with the victim.

32. [73]

    In his sentencing remarks Ducker DCJ found that the offences were premeditated and utterly despicable, with Mr Wilde’s version of events wildly improbable, full of extraordinary coincidence and fantastic happenings, which the jury had rejected. His Honour concluded:

33. [74]

    Ducker DCJ also referred to the alarming similarities between these offences and the acts involved in his earlier sexual offending, as well as his concern about Mr Wilde’s dangerous mental state, given expert psychiatric reports in evidence. On that evidence his Honour concluded that Mr Wilde’s chances of reform were not only below average, but remote, and that he would be a considerable risk to society, particularly women, if at large.

34. [75]

    In January 2008 Price J made a continuing detention order against Mr Wilde: Attorney General for the State of New South Wales v Wilde [2008] NSWSC 14. In September 2008 McClellan CJ at CL made an interim supervision order: State of New South Wales v Wilde [2008] NSWSC 1148. In December 2008 Kirby J made an extended supervision order for three years, expiring on 11 December 2011: State of NSW v Wilde [2008] NSWSC 1211.

35. [76]

    Mr Wilde breached this first extended supervision order on four separate occasions and served sentences of imprisonment for each of those breaches as follows:

36. [77]

    In February 2014 Fullerton J made another interim supervision order: State of New South Wales v Wilde (Supreme Court (NSW), Fullerton J, 8 January 2014, unrep). In April 2014 Hall J made a second, three-year extended supervision order against Mr Wilde: State of New South Wales v Wilde [2014] NSWSC 305. That order expired on 12 August 2017, because of further time Mr Wilde spent in custody on other charges.

37. [78]

    Mr Wilde did not appeal the making of Hall J’s orders, but in Wilde v State of New South Wales [2015] NSWCA 28, Mr Wilde’s appeal against various of the conditions imposed upon him was dismissed. Those conditions related to place and travel restrictions; non association; access to pornographic, violent and classified material; alcohol and drugs; search and computer searches.

38. [79]

    On 31 March 2015, Mr Wilde was arrested and charged with three counts of failing to comply with the second extended supervision order and one of driving a motor vehicle while disqualified. He was released from custody in August 2015, after receiving a suspended sentence of 12 months imprisonment, upon entering a bond for one of the breach charges. His conviction of the driving offence was later quashed on appeal.

39. [80]

    On 11 April 2017 the High Risk Offender Assessment Committee decided not to seek a further order for Mr Wilde’s extended supervision. In June 2017, some five weeks after the electronic monitoring condition to which he had been subject was relaxed, Mr Wilde was charged with having custody of a knife in a public place. That charge concerned a knife found by police in Mr Wilde’s possession while he was riding a motorbike. Duct tape and rope were also then found.

40. [81]

    At the final hearing the State did not accept Mr Wilde’s descriptions of the knife the subject of this charge. Initially he described it to be a butter knife and later, a butter knife which had a serrated edge. In his evidence he said that he had often carried such a knife, which he used to prepare food. This charge is due to be heard in January 2018 at a time, on Mr Wilde’s case, which the State had contrived, in order to disadvantage him on this application, by allowing a police officer to take long service leave. Mr Wilde believes that he will be acquitted of that charge, his case being that he was carrying the knife to use to prepare sandwiches, for which he was also carrying bread and butter, although the State did not accept that bread and butter were also found in Mr Wilde’s possession.

41. [82]

    It should be noted that when I raised with Mr Wilde the possibility of adjourning the hearing, so that the outcome of the knife charge could be taken into account on the State’s application, he objected, given that would have required the interim order to be continued, until the determination of that charge.

42. [83]

    In any event, on the State’s case, given the applicable provisions of the Crimes (High Risk Offenders) Act, the Court had no power to continue the interim order, even by consent, to that time. That was not put in issue and in the result, the hearing of the application proceeded.

43. [84]

    In August 2017, in coming to the conclusion that the interim order sought should be made, Campbell J took the view that the knife charge and the circumstances in which it came to be laid were significant: at [33]. His Honour also considered that it was relevant to take into account that in his previous offending, Mr Wilde had threatened each of his victims with a knife and had also bound and gagged them, observing at [31] that “it is obvious that the knife could be used for that purpose; the duct tape could be an effective gag; and the rope could be used to bind.”

44. [85]

    These remain relevant considerations on this application.

45. [86]

    The application was supported by risk assessment reports prepared by Ms Thomson and Mr Ardasinski, who were both cross examined, Mr Ardasinski also having been cross-examined before Campbell J. Mr Wilde also cross-examined Dr Eagle, Ms Dewson and Ms Farroway.

46. [87]

    Ms Thomson authored the risk management report of 17 July 2017 on which the State relied before Campbell J. She had also been involved in Mr Wilde’s supervision, including of his internet usage and requests for approval of employment. On her evidence, she had not refused such requests.

47. [88]

    In cross-examination Ms Thomson confirmed that Mr Wilde had become a member of the God Squad motorcycle organisation and that he had been given approval to participate in events such as Christmas charity runs and had maintained stable relationships with his sponsors from that organisation, and for a time, with others. She did not agree with the cause of the breakdown of other of Mr Wilde’s relationships, or the number of times he had sought approval for things like trips to Mudgee to visit family members.

48. [89]

    Ms Thomson explained the Departmental system of case review every three months, to monitor progress, confirming that supervised persons such as Mr Wilde do not have the opportunity to attend such reviews. There were also two monthly reviews conducted with the supervised individual. She also explained how requests such as to change accommodation were dealt with, the checks undertaken and how decisions were made.

49. [90]

    From the tenor of Mr Wilde’s cross-examination and the way in which Ms Thomson responded, not all of which is captured by the transcript, it became apparent that there was tension between them. When asked whether she knew of any occurrences where he had been outwardly hostile to women, by which Mr Wilde explained he meant aggressive, threatening behaviours, seeking harm, Ms Thomson said that he had been aggressive in tone to her, while she had supervised him. When pressed she referred to him being verbally aggressive, shouting and name calling and then finishing with “oh look its not about you”. Ms Thomson also said, however, that she had never felt the need to protect herself, or to have Mr Wilde charged with any wrongdoing. While she considered his behaviour to be highly inappropriate, she had not felt threatened or in danger.

50. [91]

    Ms Thomson said that Mr Wilde’s requests to associate with outlaw motorcycle gangs had not been approved, because of the associated element of criminality involved in such gangs and the view taken that his participation would not involve him in pro-social activities.

51. [92]

    Ms Thomson also explained how the electrical monitoring system operated and agreed that on more than one occasion Mr Wilde had brought to her attention that he had been directed by the monitoring team to cease an activity for which he been given prior approval. She had discussed those issues with the head of the monitoring team. She also explained how activities and changes in activities could be approved, in some cases immediately and how contact was made with Mr Wilde, when it appeared that he had deviated from his schedule.

52. [93]

    In her evidence Ms Farroway also explained how conditions of supervision were implemented, monitored and reviewed. She agreed that those subject to the Court’s orders could not attend strategic review meetings, or have formal input into these reviews, but that they could raise concerns with their supervising officer and the unit leader, who could raise matters at the meeting. If a decision was made with which the supervised person was aggrieved, a request for a review to the supervisor or unit leader.

53. [94]

    Ms Farroway also explained that the aim was for the supervisor and the supervised person to develop a good working relationship and in cases where that had not been achieved, supervisors had been changed. Ms Farroway agreed that Mr Wilde’s case notes reflected occasions when he had raised matters he was concerned about and when he was concerned that matters he had raised, were not properly dealt with. The case notes in evidence supported this evidence.

54. [95]

    Ms Farroway was asked about a condition which required Mr Wilde to follow all reasonable directions given by his supervisor and whether a refusal of a request to go to a cafe at 2am, when he was not subject to a curfew, would be reasonable. She explained the considerations which would arise, and the associated risks which would have to be assessed, including the location of the café and how he would be travelling. Ms Faraway said that such a decision was not made simplistically and that she could foresee situations in which it would be reasonable to refuse such a request.

55. [96]

    The experts all assessed Mr Wilde to pose a high risk of further offending, notwithstanding his age and the time which has passed since his last sexual offending. In his report Mr Ardasinski concluded:

56. [97]

    In his oral evidence Mr Ardasinski said the years Mr Wilde had been sexual offence free was taken into account in assessing his risk of reoffending, but that someone who fell into the high risk category would remain in that category, or close to it, even after 5-10 years without committing another offence and living in the community .

57. [98]

    In cross-examination, Mr Ardasinski agreed that Mr Wilde had been subject to onerous conditions of supervision. He did not agree that the accuracy of some of the earlier assessments made of Mr Wilde had been jeopardised because of the shortness of the interviews on which they were based. Mr Ardasinski explained that Mr Wilde’s interest in knives and possession of them, increased his risk of using them, but he agreed that there was a distinction necessarily drawn between cutlery, such as a butter knife and large knives used in the commission of violent rapes. Given how long Mr Wilde had lived in the community, where he could have had access to such knives, Mr Ardasinski considered that if there was a sufficient drive to reoffend, he would have done so by now.

58. [99]

    Mr Ardasinski also explained the nature of personality disorders, of the kind Mr Wilde has been diagnosed to have, suggested functional impairment and if of a high order, could lead a person to pose a risk to themselves or others. Such disorders are intractable and do not remit until old age. The clinical opinions were that Mr Wilde’s disorders were entrenched.

59. [100]

    Mr Ardasinski considered that someone with an entrenched antisocial personality disorder would find it difficult, even with the constraints of a supervision order, to avoid more serious offending than fail to comply offences. The range of such behaviours could extend from low level assaults to homicides. Mr Ardasinski had, however, had experience of persons who had committed offences of sexual violence while supervised and others who had refrained until the supervision order ceased and then offended again. It was also often the case that fail to comply offences occurred instead of, or preceded serious sexual or violence offences. In Mr Wilde’s case, given his three convictions for sexual offending, any possession of a knife was a dangerous situation, this, Mr Ardasinski explained, involving offence paralleling.

60. [101]

    Mr Ardasinski also explained that personality disorders of the kind Mr Wilde has been diagnosed with were enduring and that his lack of acceptance of societal norms and rules was consistent with someone suffering such disorders. He also considered that Mr Wilde’s sense of grievance was preventing him from moving forward in a pro-social way.

61. [102]

    In her report Dr Eagle noted that Mr Wilde had told her that he had been wrongfully convicted, two out of three times, he having been guilty only of his first sexual offences and that 90% of what had been contained in previous psychiatric reports about him “was garbage”. Mr Wilde refused to discuss his second and third offences, claiming that he had been wrongfully imprisoned for 17 years. He said that while he had appealed his second conviction to the High Court, he had been denied an appeal on his third and that he had been denied legal aid because he was a political prisoner. He also said that on his current charge, he had been crucified for having “a picnic basket”.

62. [103]

    Mr Wilde explained to Dr Eagle that he had not satisfactorily completed sex offenders courses in custody, because he cannot discuss the second and third offences, of which he was not guilty. He also claimed to have been barred from working in the community by the State. Mr Wilde said that he practiced witchcraft as a religion, but he was not allowed to associate with witches or pagans. Mr Wilde also told Dr Eagle that he was not a danger, in a sexual manner, to anyone in society, but he was a danger to authorities, whom he would hold to account. Dr Eagle also noted that:

63. [104]

    Mr Wilde provided Dr Eagle a history of having been diagnosed with PTSD, that being the result of him having been persecuted, since he was aged 8 years, but that he had never had any psychiatric treatment, because he had been controlling his symptoms since 1979.

64. [105]

    Mr Wilde reported no drug or alcohol abuse, but having tried “nearly everything” between the ages of 13 and 18. He had been prescribed valium at age 8, to control his anger, but had ceased using it at age 14. His account was that none of his offending had involved substance use.

65. [106]

    Mr Wilde said that the 2017 knife charge concerned a butter knife which he had been carrying lawfully and that he had the duct tape to assist anyone who needed it and the rope to hold down gear on his bike.

66. [107]

    Mr Wilde admitted having raped the victim of his first offence, believing that she had been involved in the rape and near killing of his then girlfriend. He had pleaded guilty and apologised to that victim, who he believed had forgiven him, but he had not forgiven himself. He said that since then, he had never believed in “an eye for an eye or a tooth for a tooth”. Mr Wilde also claimed that his last offence had involved consensual sex; that there was a witness who could clear him of wrongdoing; and that he was trying to get those matters re-opened.

67. [108]

    Dr Eagle also noted that Mr Wilde was aged 19 at the time of his first violent offence and on his account, that he had been in trouble with police since he was aged 8 years, when he saw a 10 year old friend murdered. He said, however, that he had never been ultra-violent, or beaten people up.

68. [109]

    Mr Wilde gave Dr Wilde a history of getting along with his parents, who had separated when he was a child. He despised his paternal grandparents, who put him into a cupboard for four to six hours as punishment, for which they had never been held to account and that his anger had developed as a result of this punishment, and had led to problems at school when he was 8, but they had ceased at age 10. Now, however, he was extremely dangerous when he lost his temper, but he had not suffered either sexual abuse, or any domestic violence.

69. [110]

    Mr Wilde said that he had undertaken a number of courses after school, but had worked for only three weeks in the last eight years and had not had stable employment since 1980. In custody he had worked as a computer teacher, for up to two years.

70. [111]

    Mr Wilde also reported never having been in a marriage like relationship and having had only three serious relationships in his life, the first of between 6 to 12 months when he was aged 17; the second before his first offence; and now a two year relationship with a woman living in the US, where he hoped to travel to live. He also said that he had many friendships, but no contact with family.

71. [112]

    Mr Wilde denied any sexual preoccupations or rape fantasies, but Dr Eagle noted that he appeared angry and acknowledged the stress he felt about these proceedings. Mr Wilde was logical and coherent, but at times loud and explosive, displaying hostility towards authority, which dominated the interview. He did not accept responsibility for his conduct, with the exception of qualified responsibility for his first sexual offences. Dr Eagle also noted:

72. [113]

    Dr Eagle also noted:

73. [114]

    Dr Eagle found that Mr Wilde had not displayed signs or symptoms of a major mental illness or mood disturbance in interview. Dr Eagle could not determine whether his offending, involving as it had humiliating and degrading his victims, significant levels of violence and intended physical and psychological harm, evidenced a sexual sadism disorder, or sexual pleasure or arousal in response others suffering.

74. [115]

    Dr Eagle noted that Mr Wilde's history of childhood mistreatment and exposure to violence could have given rise to disturbances in his personality structure, resulting in pervasive patterns of disregard for and violation of the rights of others from age 15, leading to rapid arrest and conviction which was indicative of conduct disorder, even prior to age 15. Dr Eagle considered that he satisfied the criteria of anti-social personality disorder. Mr Wilde’s pattern of grandiosity and lack of empathy since early childhood and his sense of entitlement and arrogant haughty behaviour, satisfied the criteria for narcissistic personality disorder. His personality structure was on a spectrum with psychopathy at the extreme end. Dr Eagle also considered that his history was consistent with a psychopathic personality structure.

75. [116]

    Dr Eagle also discussed the limitations of risk assessment and the tools which she had used to assess the risks Mr Wilde posed, both the Stable 2007 and Static 99 R tools. The results of these assessment tools, which Dr Eagle explained, together placed Mr Wilde in the very high category of risk. His risk of violent offending was also considered by Dr Eagle, using the HCR 20 Version 3 tool, which considers historical, clinical and risk management factors.

76. [117]

    Dr Eagle identified Mr Wilde’s historical and clinical factors as including problems with violence, anti-social behaviours, identified disorders, traumatic experiences and attitudes to treatment and supervision, problems with insight and recent problems while under supervision. Mr Wilde’s risk management factors were identified to include that he was unlikely to voluntarily access professional services; his expressed intention to reconnect with associates from outlaw motorcycle clubs; intention to resume possession of knives; and his demonstrated lack of coping skills, especially in response to anger and frustration.

77. [118]

    Dr Eagle concluded:

78. [119]

    In the result, while Dr Eagle did not diagnose Mr Wilde as suffering a major mental illness, she concluded that he did have personality traits and characteristics that suggested a malignant, narcissistic personality structure, a number of psychopathic traits and perhaps, a sexual sadism disorder. Dr Eagle concluded that Mr Wilde falls into the highest risk of reoffending, given his combination of static and dynamic risk factors. While his static risk would not alter over time, his dynamic risk could.

79. [120]

    Dr Eagle considered that Mr Wilde’s increasing age could be a protective factor, but a complicating factor was that it was difficult to know whether ongoing supervision, including by exclusion zones and electronic monitoring, has prevented him from reoffending, given that thereby his access to victims has been reduced and early intervention increased. Dr Eagle also noted that identified research had established that GPS monitoring may be effective in deterring high risk offenders from reoffending and encouraging their reintegration into society;

80. [121]

    Dr Eagle also considered that regardless of the pending charge, Mr Wilde would have fallen into the highest risk of reoffending, but the facts giving rise to that charge could be interpreted as being part of a plan to prepare to offend again, developed within weeks of cessation of GPS monitoring and his supervision restrictions being lessened.

81. [122]

    Dr Eagle also noted that while antilibinal medication might be of benefit to Mr Wilde, his position was that he would not under any circumstances accept such treatment, which he had taken in custody and felt had not been beneficial and led to adverse side effects.

82. [123]

    Dr Eagle was extensively cross-examined by Mr Wilde. She confirmed that she had not concluded that he suffered a major mental illness. She made relevant concessions, especially in relation to proposed conditions of custody to which I will return, but she did not agree that the time since Mr Wilde had last committed sexual offences and his current age, reduced his risk below that which she had assessed him as posing. She confirmed that conclusions which she reached were similar to those reached by Ms Dewson. Dr Eagle also explained the reasons for reaching particular conclusions in relation to identified risk factors that Mr Wilde asked her about. She explained that the final conclusions reached depended on the presence or absence of factors relevant to the assessment of risk, by the tools which she and Ms Dewson had used.

83. [124]

    Dr Eagle agreed that on his past pattern of offending, Mr Wilde’s risk of reoffending would be high within a short time of restrictions imposed by the supervision order being removed. She observed that to date, they had not been removed for any significant degree, except for a period of five weeks. That Mr Wilde had not committed further offences while under supervision over the past eight years, she considered to be commendable, but that did not cause her to believe that in the future, he was unlikely to reoffend, regardless of whether or not he was on restrictions, because of his dynamic risk factors.

84. [125]

    Further, while Dr Eagle agreed that Mr Wilde had demonstrated some self-awareness of his emotional state, she considered that he did not necessarily have good emotional control. Dr Eagle explained her conclusions about Mr Wilde’s emotional stability by reference to distorted views which led him to blame external factors, other people and events for his predicament, rather than considering how he had contributed to his situation, by his behaviours, including by his violent ideation, his implicit and explicit threats against others and his failure to take responsibility for his own actions. Dr Eagle considered, however, that there had been improvement in recent years in Mr Wilde’s compliance with his supervision conditions, although some problems with timetable and activities persisted.

85. [126]

    Dr Eagle also agreed that the risk assessments she had conducted could not accurately determine whether Mr Wilde would offend again, if left unsupervised in the community, although there was evidence that electronic monitoring does deter offenders. Dr Eagle accepted that it was to Mr Wilde’s credit that he had not reoffended, but she could not say that it was the restrictions imposed upon him which had resulted in him having lived in a more pro-social way in the community. Nor could she predict how successful he would be in managing his risks of reoffending, if he was left unsupervised in the community, noting his feeling that he was being persecuted and his inability to accept that the system applied equally to everybody, within a certain framework, which had been applied to him.

86. [127]

    Ms Eagle also explained how her diagnosis of antisocial personality disorder and narcissism was arrived at, including by reference to Mr Wild’s history of failing to conform to social norms, legal restrictions and laws and his pervasive disregard for the rights of others, a diagnosis which he shared with many other offenders. She also referred to his inability to identify with others and what impact his conduct might have upon them. Dr Eagle accepted that Mr Wilde perceived that he had been treated unfairly during his supervision, but explained why she considered that his expectations of others were unreasonable, in the context of that supervision.

87. [128]

    Dr Eagle did consider that in the last year of his supervision Mr Wilde had demonstrated some very positive signs, including in relation to increased compliance with his conditions and interaction with supervisory staff. When asked how he could achieve reductions in the risks he posed, she explained that would involve him reducing his dynamic risk factors, including by demonstrating an understanding of the problems which his offending history posed, improving his problem solving skills by reacting less negatively and taking responsibility for the results of his behaviour towards others.

88. [129]

    Dr Eagle rejected Mr Wilde’s suggestion that his dynamic risk factors had been reduced because he had not reoffended, despite being pushed by the State and charged with wrongful breaches, which he alleged had been technical in nature and brought about by those who had enforced the conditions of his supervision. She did not consider that the State could be held responsible for Mr Wilde’s offending, but accepted that his perception of being provoked and antagonised might create a situation in which he would reoffend. That, she explained, was one of the reasons why risk assessments were undertaken. In his case, if he perceived that he had been antagonised, his risk of reoffending increased. Given his vulnerability, Dr Eagle considered it was positive that he had not reoffended, while subject to a very restrictive regime of supervision. She agreed with Mr Wilde, however, that if he did not care about the consequences of reoffending, strict supervision would not be an effective deterrent.

89. [130]

    Ms Dewson reported that Mr Wilde had been difficult to interview, given his manner, and that despite repeated assurances that he was not being aggressive, he did appear at times to be hostile. He also expressed hostility towards police, CSNSW employees and people in authority generally, when he became agitated and animated.

90. [131]

    Nevertheless, Ms Dewson found Mr Wilde to have been logical, even though not always coherent; orientated in time, person and place; without evidence of florid psychosis or thought disorder; and with an understanding of his legal circumstances; and without indication of any cognitive deficits.

91. [132]

    Ms Dewson also referred in her report to Mr Wilde’s criminal record, the circumstances of his past offending, his past clinical assessments by various psychiatrists and psychologists and the mental health issues he had been diagnosed to be suffering, including severe, entrenched and chronic antisocial personality disorder with narcissistic features and/or narcissistic personality disorder, at the upper end of severity. Ms Dewson also noted Mr Ardasinski’s assessment in 2017, that he demonstrated a high number of psychopathic traits.

92. [133]

    Ms Dewson noted that Mr Wilde’s account of his sexual offending began after release from a Queensland prison, when his then girlfriend had rejected a sexual advance from another couple, who had later raped and beaten her almost to death, after which he went looking for revenge, he believing in “an eye for an eye”. He said that he had mistakenly identified the victim he had raped and while he felt shame and guilt about this, if he had targeted the right person, he would not have regretted his behaviour.

93. [134]

    Mr Wilde denied having committed the sexual offence he had been convicted of in 1983, although he accepted that his fingerprints had been found at one of the scenes. He did not consider this to have provided sufficient evidence and he claimed to have been abused by police for four days after his arrest. Mr Wilde also claimed that the 1993 offences had involved consensual sex, after the victim had made sexual advances to him, during which she had bitten him and he had smacked her in the mouth instinctively, in response to the pain.

94. [135]

    Mr Wilde accounted for his poor relationship with police as being the result of having witnessed the murder of his 10 year old friend, in a drive by shooting. The victim had died in his arms and he had not been able to provide police with a witness account, due to his shock. They had initially thought that he had been complicit in the murder. At age 14 he had been thrown down stairs by police and had been extensively injured, which had left him in a coma for three days. He had also suffered a depressed skull and an enzyme imbalance in the brain.

95. [136]

    Mr Wilde also gave an account of having been abused between the ages of 6 and 14 by his paternal grandparents, who lived with he and his father, after his parents separated. He denied having been financially disadvantaged or neglected and said that he was not exposed to alcohol or drugs. His father had tried to discipline him, but that had no impact on his behaviour. At age 14 he was stabbed by another kid.

96. [137]

    Mr Wilde left school at 16, having participated in cadets from age 12, intending to enlist in the military, but came to appreciate that he despised discipline. He worked casually as a labourer and supplemented his income with government support. At 18 he was arrested and incarcerated and has since spent most of his adulthood in custody. His longest period of employment was for three to six months. He said he had refused to work in custody, perceiving the pay and conditions to be unjust. He lives on a disability support pension for chronic headaches and back pain, but aspires to work in wildlife conservation.

97. [138]

    Mr Wilde said that his maternal great grandmother had been involved in witchcraft and he described himself as being an “eclectic witch”, who was frustrated at being denied the ability to pursue his religious observance, because of his wrongful incarceration. He could not, however, provide a clear explanation of the concept of living by witchcraft principles.

98. [139]

    Mr Wilde refused to participate in testing which Ms Dewson sought to administer on interview. On the basis of his history, she diagnosed him to have an anti-social personality disorder with narcissistic tendencies. He later completed a questionnaire for PTSD. Based on his responses, Ms Dewson considered that he met he the criteria for a diagnosis of PTSD, having reported experiencing trauma symptoms congruent with PTSD, but that they were only present at the subclinical level.

99. [140]

    Ms Dewson observed:

100. [141]

     Ms Dewson explained the limitations of risk assessment of sexual offenders. Using the former Static-99R risk category system, which has moderate accuracy in ranking offenders according to their relative risk of sexual recidivism, Mr Wilde received a score which placed him at a level well above average risk, with a score higher than 99.1% of sexual offending. The limitations and caution with which this assessment must be used was also explained. Ms Dewson explained that recidivism estimates provided are based on groups of individuals. Mr Wilde was assessed as having a recidivism rate of 35.1%, with a 30-40% margin for error. This means that out of 100 offenders with that score, between 30 and 40 will be charged with new sexual offending after five years in the community and 60 to 70 will not.

101. [142]

     The dynamic risk assessment conducted used the RSVP protocol, which examines 22 items, not all of which are given equal weight and which allows for consideration of risk management issues. Mr Wilde was considered to be at risk of further forced sexual offending against adult females not known to him, at home and with use of a knife to subdue the victim. It was also noted that he had been known to reoffend rapidly upon release, when unsupervised.

102. [143]

     Ms Dewson concluded that Mr Wilde’s incapacity to take responsibility for his acts served as a deterrent to his ability to address his criminogenic needs and his threats at interview indicated his poor insight and lack of self-regulation. Ms Dewson concluded that he posed a high risk of further serious sexual offending and that his breaches of supervision were indicative of him engaging either in offence paralleling behaviour, or in his offence cycle, which would mean that it was fortunate that he had been detected before he had caused harm. She considered that recent allegations indicated that he had evolved his offence planning, by becoming more organised prior to offending.

103. [144]

     While his supervision had not moderated his behaviour, it had permitted external management and early intervention when he engaged in risky behaviour.

104. [145]

     Ms Dewson also concluded that there was a risk that further supervision could trigger the violent behaviour Mr Wilde had threatened, but a further supervision order was supported, because he continued to encounter barriers to contributing and functioning as a law abiding member of the community.

105. [146]

     Ms Dewson noted the threats Mr Wilde made against the State, not her and that his risks might reduce with age and by him taking active steps to address his issues, but that there was no indication that he planned to implement any additional risk management strategies, which required ongoing and concerted effort on his part. While he had participated in therapeutic treatment, he appeared to have made little progress and whether he would benefit from further treatment was questionable, given his motivations.

106. [147]

     Ms Dewson also considered that Mr Wilde’s behavioural change could be motivated by periodic reassessment of the terms of his supervision and progressive withdrawal of restrictive conditions, if socially appropriate behaviour was pursued. If he continued to engage in problematic behaviour such as carrying weapons, threatening others and attempting to access the houses of strangers, however, he might require more than a further three years of supervision.

107. [148]

     In cross-examination Ms Dewson explained that antisocial personality disorder stemmed from experiences in childhood, evidenced by conduct, although it was not diagnosed until adulthood. She explained it to involve rule violation behaviour, including violent sexual offending and personality traits which endured. Other factors were being deceptive, irresponsible, irritable and aggressive.

108. [149]

     Ms Dewson also explained that being acquitted of particular offending did not necessarily result in a different outcome under the risk assessment tools she had used and explained why she considered that various conduct Mr Wilde had pursued while under supervision involved offence paralleling behaviour. She also explained that it was not until there had been seven years in total at liberty without offending, that risk would begin to decline, but that there was no way that offending by particular individuals could be predicted, by use of these tools.

109. [150]

     Ms Dewson explained the risk she considered alcohol consumption posed, because of its disinhibiting effect on people. She explained the views she had reached as to Mr Wilde’s problems with self-regulation, managing his emotions, insight into his behaviour and capacity to regulate himself, evidenced by threats which he had made about using violence in future. She explained that his excuses for using violence indicated poor coping, also evidenced by failures to comply with conditions of supervision orders.

110. [151]

     Mr Wilde’s evidence and submissions were to similar effect.

111. [152]

     In chief, Mr Wilde gave evidence that he had two serious previous female relationships prior to his offending. The first was between 1978 and 1980, with a woman whom he had known for several years prior to commencing this relationship. He explained that:

112. [153]

     Mr Wilde then gave evidence that he moved to Sydney and had commenced a second relationship. He explained that his then girlfriend was also raped by a bi-sexual female and another male, and “beaten that badly that she lost the ability to bear children”. He said that this had sent him “over the edge”, and that at the time he “had the belief, an eye for an eye a tooth for a tooth”, although he had not had such an attitude for the best part of the last 30 years. Mr Wilde claimed that it was these events which had “caused” him to commit his first sexual offences.

113. [154]

     In relation to his later convictions of sexual offending Mr Wilde claimed that he had done no wrong and that:

114. [155]

     Mr Wilde then gave evidence that he was “blackmailed” into the first supervision order, being forced to either agree to it or be kept in custody. In relation to the second order, on Mr Wilde’s evidence it had eventuated because of only “minor technical breaches”.

115. [156]

     Mr Wilde also gave evidence of the various breaches of the supervision orders with which he had been charged, which he considered to have been “minor”, “technical” or “unjustified”. In relation to the knife charge, Mr Wilde said:

116. [157]

     Mr Wilde explained his deep resentment at the way he perceived he had been treated by the State, while being on extended supervision orders. He explained that the electronic monitoring room had repeatedly threatened to have him charged for breaching conditions of his order. Further, that:

117. [158]

     Mr Wilde explained the relationship he had formed with a woman who lives in the US, who experiences numerous medical conditions which are causing extreme stress for each of them. He desires to live with her in the US and perceives that continued supervision will prevent him achieving that aim

118. [159]

     Mr Wilde explained how his numerous attempts to obtain permission to reside at Mudgee and Katoomba had failed and how his attempts to enrol in various training courses run by “WIRES” at Katoomba and to establish a wildlife conservation business, had been frustrated. He also referred to having been denied access to Facebook sites and having lost his family and friends because of the conditions to which he was subject, including because of limited permission received to visit Mudgee.

119. [160]

     Mr Wilde also complained about conditions relating to alcohol use, which had prevented him from going out to any licensed premises, even though he had no alcohol abuse history.

120. [161]

     Mr Wilde explained his interaction with members of motorcycle clubs such as the “God Squad”, including a period of employment. He claimed that through members of outlaw motorcycle clubs that he knew, he would be able to find various types of legitimate employment, but had been refused approval for such associations.

121. [162]

     Mr Wilde also gave evidence about his personality. He explained that he had a “problem with authority” and that:

122. [163]

     Finally, Mr Wilde explained that when no longer subject to a supervision order, he intends to move overseas, initially as a tourist and then to seek to permanently live there with his partner.

123. [164]

     In cross-examination, Mr Wilde agreed that the various conditions to which he has been subject had upset him, but said that he has been able to deal with them. Mr Wilde admitted to some breaches of such conditions, but could not recall the circumstances surrounding most of those breaches. Mr Wilde also denied the correctness of what was recorded in case notes, about various breaches.

124. [165]

     Mr Wilde accepted that he approached a primary school in November 2016, he said in order to inquire about having his dog go there as a companion dog and to talk to the children about how to train a dog. Mr Wilde also accepted that he had attended a knife shop in January 2017 to look at knives, swords and armour and accepted that he had possessed rope, duct tape and a knife in the saddlebags of his motorbike on 17 May 2017. When pressed, Mr Wilde strongly denied the suggestion that he did not also have bread and butter in his saddlebags.

125. [166]

     Mr Wilde agreed that if he was not subject to supervision orders, in the future he would return to associating with members of both social and outlaw motorcycle gangs and to collecting knives, saws, armour and archery.

126. [167]

     Mr Wilde denied being offered treatment while subject to any of the ESOs and denied that he would need any future treatment, beyond treatment to deal better with, and control, his disrespect for “authoritarians”.

127. [168]

     In reply, Mr Wilde said that he did not have any kind of abnormality or disorder and had never been clinically diagnosed with any serious or non‑serious disorder, outside those with which he had been diagnosed by professionals during his incarceration and while being subject to supervision orders. He explained that all he wanted to do was to move overseas to live with his current partner and rebuild his life. Finally, he considered himself to be the victim, denying that he had committed the crime which had resulted in him being subject to supervision orders. He also said that he does not intend to commit any further significant offences.

128. [169]

     I am satisfied that the evidence I have discussed establishes that the State has met the onus imposed upon it, to demonstrate that Mr Wilde not only poses a high risk of further sexual offending, but that he continues to pose unacceptable risks of such offending.

129. [170]

     In cross-examination Mr Ardasinski explained his experience of offenders who, like Mr Wilde, were able to comply with conditions of extended supervision which had been imposed upon them, but that once that supervision ceased, the risks they posed materialised and they were returned to custody, having been charged with further sexual offending. The evidence establishes that there is a real possibility that Mr Wilde falls into that category.

130. [171]

     This requires particular consideration, given Mr Wilde’s continuing interest in knives, his intention to resume pursuing that interest and the increased risk which that exposes him to. Recently, soon after electronic monitoring ceased, he was found in public, not only carrying a knife, but also duct tape and rope.

131. [172]

     Mr Wilde has told those who have assessed him that it has not been the conditions of his supervision, but his ability to control himself, when opportunities for further sexual offending have arisen, which has resulted in him not having been charged with further such offending over the past 8 years. His evidence was to similar effect. He also said that he does not intend to commit further such offences, but has threatened considerable violence, if a further order is made, notwithstanding that he does not characterise what he has said as involving threats.

132. [173]

     Dr Eagle and Ms Dewson had a different view, considering that Mr Wilde posed a more significant risk than that which he identified. When their views are considered in light of Mr Wilde’s repeated, serious threats against all those who he considers responsible for the imposition of past and any future supervision orders upon him, which I consider are relevant to the question of the exercise of the Court’s discretion, I am unable to conclude that there is a basis upon which I could justly refrain from imposing a further supervision order on Mr Wilde.

133. [174]

     Mr Wilde’s views have to be considered in light of the conclusions which the experts have reached, conclusions which I am satisfied must be accepted. Their views as to the considerable risk which he continues to pose were influenced by the occasions when Mr Wilde has pursued behaviour which parallels that involved in his earlier sexual offending, or which might be pursued in preparation for such offending. That includes the occasions on which he has carried knives, and when he has taken steps by which he could have gained access to the homes of women not known to him, even though he did not actually gain that access.

134. [175]

     On the knife charge, Mr Wilde finally described the knife to have been a “serrated” butter knife, which he claims to have carried for an innocent purpose, as he had carried similar knives on other past occasions. He insists that he will be acquitted of that charge.

135. [176]

     I accept that it is a possibility. His description of the knife which is the subject of that charge as a serrated butter knife, was not, however, accepted. That raises obvious questions as to the type of knife the subject of the charge and whether it was a knife which Mr Wilde carried for the purpose he explained.

136. [177]

     Whatever might be the outcome of that charge, on this application, that the circumstances in which Mr Wilde was found in possession of that knife while out riding his bike, soon after his electronic surveillance was lifted, he was also carrying duct tape and rope in his saddlebags, must be taken into account. While Mr Wilde also advanced an innocent explanation for possessing those items, his explanations must be considered in light of the type of sexual offending he has committed; what those items could be used for; and the high risk of further sexual offending which he continues to pose.

137. [178]

     Mr Wilde’s past offending involved him gaining entry, during the day, to the homes of women who did not know him, who he then repeatedly threatened to kill and sexually assaulted, after he bound and gagged them, while armed with a knife. Despite Mr Wilde’s submissions, the evidence established that he continues to make threats of serious violence, in a variety of situations, as well as being found in public in possession of a knife as well as items which can readily be used to bind and gag a victim.

138. [179]

     Mr Wilde’s case that it is entirely the result of decisions he has made, to control his actions, rather than the effect which the conditions of his supervision have had upon him, that he has not committed further serious offences cannot be accepted, given the experts’ opinions. On their evidence, I am satisfied that Mr Wilde’s conditions of supervision have either assisted him to exercise such control, or they have deterred him from further offending, or perhaps both.

139. [180]

     In the result, despite Mr Wilde’s evidence as to his views and the fact that he has not committed further sexual offences while subject to the earlier supervision orders, which reflects that while under supervision, he has been able to live, in the main, as a law abiding member of the community, I am persuaded that he does pose an unacceptable risk of further serious sexual offending. That conclusion flows from the opinions of the experts about the high risk of further sexual offending which Mr Wilde poses, which I am satisfied must be accepted, as well as from evidence Mr Wilde himself gave about his views, interests and capacity for violence.

140. [181]

     In the result, I have concluded that a further extended supervision order must be made, given the unacceptably high risk of further serious sexual offending which Mr Wilde continues to pose and the need, for the present, for that risk to be managed by the imposition of a further supervision order, for the safety and protection of the community.

The term of the order

1. [182]

   Initially the State sought an order for supervision for a term of one year. Finally a term of three years was pressed. In cross-examination Dr Eagle said that she thought twelve months could be adequate, but that there was no hard and fast timetable. In re-examination she said that she expected that problems with Mr Wilde’s compliance with any order would emerge within 6 months and that a 12 to 18 month timeframe would give ample opportunity to manage Mr Wilde’s risk and give him the opportunity to show that he could address the behaviours which were of concern. Ms Dewson considered a three year term appropriate.

2. [183]

   I consider that the absence of sexual offending in the past 8 years and that while Mr Wilde has threatened violence, he has not acted on those threats, must be reflected in the term of the order which is imposed upon him, as well as in the conditions imposed.

3. [184]

   Given all that I have discussed, I am satisfied that a further term of two years is appropriate.

4. [185]

   This reflects the expert evidence that Mr Wilde’s compliance with his conditions of supervision had earlier improved significantly, to the point where he was no longer subject to even electronic monitoring, prior to the laying of the knife charge. A further period of two years will permit consideration to be given to the outcome of the knife charge and whether he can sustain that improvement, or whether, as he has repeatedly stated he intends, this outcome will result in him committing serious offences of violence.

5. [186]

   Should Mr Wilde choose to act on what he has said were not threats of violence, but statements of fact, the result will of course be that he will be returned to custody and convicted of further offences. Thereby his opportunity to live his life as he said he wishes to live it, in the community, pro-socially, peacefully and without violence, will be brought to an end, as the result of his own actions.

Conditions

1. [187]

   The conditions which may be imposed under an extended supervision order include, but are not limited to, those specified in s 11. Those finally pressed by the State are annexed.

2. [188]

   Mr Wilde opposed the proposed conditions. In his written submissions he explained why it was that he considered he had been wrongly convicted of various breaches of conditions of his supervision. He considered the expert evidence relied on by the State to be nothing more than a series of outrageous, malicious, irrelevant and incorrect opinions, because he did not have and never had the personality traits they considered him to have.

3. [189]

   Mr Wilde also relied on his defence of the knife charge; his record of not having acted violently for many years, despite provocation of various kinds; what he considered to be his record of compliance with the conditions of his supervision, despite the conduct of those who had supervised him, who had in practice, contrary to the statutory aims of reintegration into society and rehabilitation, set out to make his life unnecessarily difficult. He also explained how his onerous conditions had been implemented in punitive ways, with the result unnecessarily impinging on his freedom and that of others, as well as disruption to his relationships and opportunities for study and work.

4. [190]

   While Mr Wilde acknowledged that he had the capacity to be violent, he considered violence to be a last resort and preferred to live his life peacefully, in order to be able to pursue redress for his wrongful convictions. He also considered that these proceedings had been conducted in a deliberately unfair way by the State, knowing that he had no legal representation and that the minor charge which he now faced, should not be used as the basis for further orders and onerous conditions being made imposed upon him.

5. [191]

   I accept that if the knife charge had been heard before this application had to be determined, the outcome would have been relevant to the conclusions reached. Given the statutory scheme, as I have explained, the application must be determined on the evidence led, even though undoubtedly, if Mr Wilde’s defence of the charge succeeds, that will be a material consideration in how the conditions imposed upon him are implemented and eventually, whether any further supervision order will be sought by the State, before the order I will make, expires.

6. [192]

   The conditions sought by the State were modified after the expert evidence was received, I having raised questions as to the purpose of some quite onerous conditions originally sought, given the risks Mr Wilde posed and his submissions having been put.

7. [193]

   What is now in issue as to the conditions, has to be resolved in light of all of the evidence I have discussed, including Mr Wilde’s conviction of various breaches of the conditions of his earlier orders. Like his criminal record, in these proceedings those convictions cannot be ignored, despite Mr Wilde’s views about them.

8. [194]

   Nor can the expert evidence be approached on the basis for which Mr Wilde contended. To do so would be to ignore that the opinions which the Court appointed experts reached, were not only consistent with those of Mr Ardasinski, but also with those reached by many other experts who have examined Mr Wilde over the course of many years.

9. [195]

   It may also not be overlooked, as I earlier explained, that some of the views expressed by the experts were favourable to Mr Wilde. Further, Dr Eagle had reservations about the appropriateness of some proposed conditions, as did Mr Ardasinski, although Ms Dewson did not share those views. Ms Dewson’s opinion was that the proposed conditions were designed to permit external management of Mr Wilde, so that there could be intervention when it appeared that the community was at risk.

10. [196]

    Dr Eagle’s view was that the conditions imposed on Mr Wilde should be clear and transparent, so that he was given the opportunity to comply with them as fully as possible. She took the view that he would benefit from a further period of electronic monitoring, which could be reduced over time, but that otherwise there should be the least restrictive amount of conditions possible, consistent with managing the risks which Mr Wilde posed. In part that depended on available resources and the practical considerations involved, which she did not have expertise in.

11. [197]

    Dr Eagle also considered it to be important that Mr Wilde be permitted to live in stable accommodation, where he could access support, where supervision could be provided and where he was not going to be involved with others pursuing antisocial conduct, or offending behaviours, for example at Kings Cross. In her view conditions regulating Mr Wilde’s phone and internet use were appropriate to the risks which he posed, even though they had not been involved in his earlier offending, given that the internet was not available as it is now, when he offended in the 1980’s and 1990’s. It is now extensively used by offenders identifying and grooming victims.

12. [198]

    Dr Eagle also considered that while conditions which applied to Mr Wilde’s social interactions with others involved an invasion of his privacy, given his risks, they were necessary. Over time, however, she envisaged that the conditions could be relaxed again, when it was shown that he was managing his disappointment and his approach reflected some diminution in his dynamic risk factors.

13. [199]

    These views have to be considered in light of Mr Wilde’s evidence as to how conditions have been implemented. This included, for example, that in addition to not being able to drink alcohol, the subject of an express condition, he has also not been allowed to enter premises where it is sold, even for a meal. It is difficult to see that a condition imposed as to alcohol consumption, provides a basis for reasonably refusing Mr Wilde the opportunity to have a meal, or even work at any place where alcohol is sold.

14. [200]

    Consideration thus has to be given to the evidence as to how the conditions have been implemented by the Department to this point and the desirability of a relationship of trust being established between Mr Wilde and those who supervise him, about which the State’s witnesses spoke.

15. [201]

    Order 3 sought by the State provides that:

16. [202]

    On his evidence Mr Wilde has in the past been given directions which he considered were unreasonable and he has also been refused various applications for approvals, he considers unreasonably, as to residence, travel and work, for instance. He said, for example, that he had been denied the opportunity to live outside Sydney; the route by which he drove to Mudgee has been unreasonably directed; and he has also been denied the opportunity to visit family in Mudgee, as often as he wished. On Mr Ardasinski's evidence, however, a desire to live outside Sydney is accommodated for those the subject of these supervision orders. Why that was not possible in Mr Wilde’s case, has not been revealed.

17. [203]

    In formulating the conditions to be imposed on Mr Wilde, account must be taken of these concerns, which I accept Mr Wilde sincerely holds. That accords with the statutory object of his rehabilitation, by pursuit of his reintegration into society, which would be supported by him having, as far as possible, unregulated access to friends and family, while managing the risks which he poses.

18. [204]

    I have thus concluded that in addition to the requirement imposed on Mr Wilde, that he must follow reasonable directions given by his DSO or any other person supervising him, reference must be made to approvals which he seeks under various conditions. Implicit in this condition, consistent with the evidence I have discussed, is that such approval will not be unreasonably withheld.

19. [205]

    There is a review mechanism in place, which permits Mr Wilde to raise his concerns for review. I consider that these complimentary requirements will not only facilitate the operation of that review process and help address concerns Mr Wilde explained in his evidence and pursued in cross-examination of various of the witnesses, but will also be consistent with the object specified in s 3, as to Mr Wilde’s rehabilitation.

20. [206]

    While Mr Wilde objected to various of the proposed conditions as involving gross invasions of his privacy, the need to provide a schedule of his movements and electric monitoring for example, I accept Mr Ardasinski’s view that these are necessary conditions, if Mr Wilde is to be effectively supervised, as the order intends he be.

21. [207]

    I also consider that account should be taken of Mr Ardasinski’s view that Mr Wilde had proven to be easier to manage, when he came off schedule and electric monitoring ceased and Dr Eagle’s views about the imposition of less restrictive conditions. That has, in part, been reflected by the State no longer pressing some conditions.

22. [208]

    I also consider that given the length of time that Mr Wilde has already been supervised and all of the expert evidence I have discussed, that the timing of the relaxation of the conditions of his supervision should be left to those actually supervising Mr Wilde. Accordingly, I have amended condition 6 to permit the possibility that electronic monitoring could cease, prior to the 12 months there specified.

23. [209]

    Mr Ardasinski also expressed reservations about condition 14 being related to Mr Wilde’s risk assessment and about condition 15, which led to amendment of the conditions the State pressed. I consider that the amendment I have made to condition 3, will address these concerns.

24. [210]

    In relation to other conditions, the views reached by the Court of Appeal in Wilde v State of New South Wales [2015] NSWCA 28 may not be overlooked. There it was concluded, amongst other things, that it may be appropriate to impose particular conditions envisaged by s 11, having regard to the scope, purpose, and objects of the Act, notwithstanding that past offences did not involve conduct of the type constrained by such conditions: at [54]. That in Mr Wilde’s circumstances, conditions restricting his access to alcohol were an appropriate means of controlling a possible risk factor for reoffending: [62] -[68]. That in his case, the imposition of conditions restricting him from associating with outlaw motorcycle gangs was appropriate, given the Act's rehabilitative purpose and the link between reintegration into the community and reduced rates of recidivism: at [69] - [70]. Further, that supervision of Mr Wilde’s computer devices was not in error, in his circumstances: at [71] - [75].

25. [211]

    On the evidence led on this application, there is no basis upon which different conclusions can be reached as to any of those matters, notwithstanding Mr Ardasinski's view that there was no link between Mr Wilde’s offending and alcohol. That is reflected in the conditions imposed. Finally, in the items listed in Condition 35, I have added “duct tape”, given the concerns which both Campbell J and I have reached about that item.

Orders

1. [212]

   For these reasons I order that:

   1. (1)

      Pursuant to s 5C and s 9(l)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a high risk sex offender extended supervision order ("the extended supervision order") for a period of 2 years from the date of the order; and

   2. (2)

      Pursuant to s 11 of the Act, the defendant is directed, for the period of the extended supervision order, to comply with the following conditions: