State of New South Wales v Schmidt (Preliminary)

1. [1]

   By orders made on 9 February 2016, Button J in State of New South Wales v Schmidt [2016] NSWSC 41 (“Schmidt No 1”) made orders that Guillermo Marcelo Schmidt (“the defendant”), be subject to an extended supervision order for a period of 3 years from that date until 8 February 2019 (“the 2016 extended supervision order”). His Honour made further orders pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant must comply with conditions set out in the summons by which the State of New South Wales (“the State”) initiated those proceedings. (By that original summons, the State sought a continuing detention order for a period of 18 months to be followed by an extended supervision order for 5 years. His Honour rejected that application but granted the alternative application for an extended supervision order).

2. [2]

   By a notice of motion filed on 25 May 2018 (“the motion”), the defendant sought to vary the extended supervision order pursuant to s 13 of the Act “by bringing forward the expiry date so that the order expires in advance of 9 February 2019”. In substance, the motion sought to revoke the 2016 extended supervision order (“the variation application”).

3. [3]

   By a summons filed on 31 October 2018 (“the summons”), the State sought that the defendant be subject to a further extended supervision order for 2 years and 6 months from the date an order is made. Conditions were proposed, the terms of which were set out in Schedule A to the summons. The State also sought the making of an interim supervision order.

4. [4]

   However, in the preliminary hearing of the summons pursuant to s 7(3) of the Act, (heard, as I will discuss below, in conjunction with the variation application) the State only pursued the first prayer for relief in the summons: an order pursuant to s 7(4) of the Act appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court (and a direction the defendant is to attend those examinations) (hereinafter “the s 7(4) application”).

5. [5]

   After hearing the variation and s 7(4) applications, the Court made the following orders:

6. [6]

   The Court announced that the reasons for that decision and orders would be given at the earliest available opportunity. That course was adopted because of the urgency attached to the determination of the variation application (so as to avoid the application being rendered nugatory by the passage of time).

7. [7]

   This judgment concerns reasons for the decision and orders made with respect to the variation and the s 7(4) applications.

PROCEDURE ADOPTED TO DEAL WITH THE APPLICATIONS

1. [8]

   The variation and s 7(4) applications were joined because there was a significant commonality of facts and evidence. At the outset of the proceedings the parties agreed the evidence relied upon by the State to refute the defendant’s variation application was the same evidence relied upon by the State to support the preliminary hearing with respect to the s 7(4) application. In a similar vein, the evidence relied upon by the defendant in his variation application was relied upon to contend that the preliminary hearing test had not been met by the State with respect to the s 7(4) application. The matter proceeded on that footing.

2. [9]

   That left, in the remainder, a question as to which party should go first in the proceedings. There was no precedent identified to deal with that situation in proceedings under the Act. The defendant submitted, and the State concurred, that the variation application ought to be dealt with first. Two reasons were given for that approach, both of which, in my view, were sound. First, the variation application was first in time, in terms of the application before the Court and, as such, faced more delay than the summons. Secondly, as observed above, the variation application was time sensitive such that the longer it took to resolve, the more redundant the application became.

3. [10]

   However, in the disposition of the proceedings, the Court, by consent received the entirety of the parties’ cases, albeit with the procedure by which the defendant went first being maintained throughout the proceedings.

4. [11]

   A further procedural issue was ventilated during the hearing of the matters. This concerned the inter-relationship between the respective applications. Ultimately, there was common ground as to that issue. The parties accepted that from both legal and practical viewpoint, the determination of the variation application would, in fact, resolve both proceedings. The parties’ agreed position, in that respect, was explained as follows:

   1. (1)

      If the defendant’s variation application was granted, the State’s further extended supervision order application must fail. The State accepted that its application ought to be dismissed as a matter of fairness and law. This was because the State had not satisfied the Court in the variation application that the extended supervision order was justified. Therefore as a matter of fairness and law, the State accepted that a further extended supervision order could not be justified; and

   2. (2)

      If the defendant’s variation application was dismissed, then the State must have satisfied the Court that the extended supervision order was necessary: that is, the State must have satisfied the Court that s 5B has been met and the factors in s 9(3), as considered, justified a further extended supervision order (for the purposes of s 7(4) of the Act). It followed that, if the State satisfied the Court that the defendant’s variation application must be dismissed then, for the same reasons and on the same evidence, the preliminary hearing test must have been met.

Brief Summary of the Parties’ Positions

1. [12]

   The defendant submitted his circumstances were such that the 2016 extended supervision order was no longer necessary because he had shown good conduct over the duration of the 2016 extended supervision order, he was willing to continue with treatment with his GP, including medication and psychological treatment, his mental health issues were under control and he was no longer a risk to the community.

2. [13]

   The State opposed the variation application. The circumstances had not sufficiently changed to render the extended supervision order unnecessary. The dynamic risk factors that underpinned the defendant’s risk of serious offending and the reasons Button J decided to make the 2016 extended supervision orders were still present, as was the risk factor of institutionalisation. (The defendant was on stage 2 of his extended supervision order, which is still restrictive and involves electronic monitoring and weekly scheduling of movements).

Construction of s 13

1. [14]

   Section 13 of the Act is in the following terms:

2. [15]

   The defendant contended that the variation application was brought pursuant to s 13(1), which grants power to the Court to vary or revoke an extended supervision order on the application of the State or the defendant. The provision gives no assistance in relation to the test to be applied, although limited assistance is provided by s 13(3), which established what a report ought to address when the State is determining whether to make an application pursuant to s 13, that is, “is the ESO necessary and appropriate”. Reliance was placed upon the judgment of Wilson J in State of New South Wales v Kay [2018] NSWSC 1235 (“Kay”).

3. [16]

   The defendant also submitted that s 13(1B) should be considered together with s 13(3), which brings the dual tests of “necessity” and “appropriateness”.

4. [17]

   The State referred to s 13(1B) and contended that, in order to make good the variation application, the defendant must prove that his circumstances have “sufficiently changed” and that the 2016 extended supervision order was not necessary. The State also submitted that the defendant bore the onus of proof to the civil standard (s 21 of the Act) read with s 140 of the Evidence Act 1995 (NSW) and that the Court must be satisfied to a high degree “before determining to revoke” the extended supervision order.

5. [18]

   In Kay, Wilson J considered the operation of s 13(1). Her Honour observed (at [66]): “the wording of the section is such that the Court’s discretion is unfettered, subject to the objects and the provisions of the Act”.

6. [19]

   Her Honour was considering a notice of motion brought by the State to vary an extended supervision order by varying the conditions attaching thereto (see Kay at [1] and [3]). Thus, her Honour focussed attention, in the passages of her judgment immediately following the above extract upon s 11 of the Act and the authorities bearing upon same.

7. [20]

   In this matter, the variation application is expressed as a variation of the 2016 extended supervision order but, in substance, should be properly characterised as an application for revocation under the Act. When seen in that light, the variation application is caught not only by the terms of s 13(1) but, as the parties recognised, by the terms of s 13(1B). The defendant also pointed to the provisions of s 13(3) but, to the extent that provision is applicable, it conditions both a variation and a revocation application and, therefore, will be addressed separately below.

8. [21]

   The opening words of s 13(1B) are clearly designed to preserve the broad discretion residing in the Court under s 13(1) as referred to in Kay. The use of the words “the grounds” may require further attention after more detailed argument directed to the meaning of the expression but whether construed as the factors forming a basis for action or as a justification for forming a view or conclusion regarding the same, the plain intention is to preserve the width of discretion in the Court under s 13(1).

9. [22]

   However, the balance of the words of the subsection, “the Supreme Court may revoke or extend supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary”, condition the exercise of the discretion of the Court in the case of a revocation application. That is not to say that the discretionary factors arising under s 13(1) may not influence the exercise of the Court’s discretion, but that the exercise of the discretion overall must accommodate a determination as to whether circumstances have changed sufficiently to render an existing order unnecessary.

10. [23]

    Returning to Kay, I accept her Honour’s analysis that “the discretion is subject to the objects of the Act and the provisions of the Act”. In that case, s 11 predominated. That provision is not immaterial in this matter but in the case of, in substance, an application for revocation the relevant inquiry must be wider and, in my view, specifically extend to the application of provisions under Div 1 and 2 of Pt 2 in the context of considering whether the circumstances operating at the time of the determination of the application have sufficiently changed to permit the making of a revocation order (or more consistently with s 13(1B) and, as discussed below, render the existing order unnecessary).

11. [24]

    The word “unnecessary” in the context of s 131B) simply means not necessary. The word affixes to the word “order” or the words “render the order”, each of which bring forth conceptually that what is under consideration, namely, whether the circumstances existing at the time when the extended supervision order was made have changed such as may properly result in a conclusion that extended supervision order is no longer necessary. As the provision concerns, inter alia, revocation, then axiomatically the provision concerns an existing extended supervision order which it may be presumed was made conformably within the requirements of Pt 2 of the Act.

12. [25]

    It follows that the question raised by s 13(1B) is whether the “circumstances” which existed at the time of the making of an extended supervision order have changed sufficiently to render it unnecessary, having regard to the provisions of Pt 2 of the Act, for the extended supervision order to continue to operate.

13. [26]

    The word “circumstances” is a broad concept which in the context used in s 13(1B) means the state of affairs surrounding or affecting the defendant applicable to the determination made or to be made under s 9(1) of the Act having regard to the requirements of, inter alia, Pt 2 of the Act (as those provisions or requirements should be understood under the authorities of this Court: see, for example, as discussed in State of New South Wales v Cook (Final) [2019] NSWSC 51 (“Cook”) at [22]-[29].

14. [27]

    That construction is consistent, in my view, with the parties’ concession that the starting point for the consideration of the variation application was a consideration of the reasons for judgment in Schmidt No 1.

15. [28]

    The defendant placed reliance upon the word “appropriate” in s 13(3) to contend that the Court must consider, upon a variation application, the “appropriateness” of the continuation of an extended supervision order.

16. [29]

    It may be accepted that the words “necessary” and “appropriate” are not coterminous. Further, it is difficult to seek why an expression of “appropriateness” would not fall within the broad discretion exercised under s 13(1). However, the word appears in s 13(3) in a particular context, namely, a report being prepared for the Attorney General by the Commissioner of Corrective Services.

17. [30]

    It is unnecessary to consider the relationship between s 13(1) and (3) in this case. If it be assumed that the exercise of a discretion under s 13(1) includes a consideration as to whether an extended supervision order is appropriate (or, contextually, is any longer appropriate), then the making of such a determination would not affect the outcome of the present variation application. Given I will conclude the relevant circumstances, for the purpose of s 13(1B) have not changed sufficiently to render the extended supervision order unnecessary, it is difficult to conceptualise how it might be said the continuation of the order was inappropriate (it may be noted that the defendant did not expressly address such a scenario). It may be added, consistently with the logic of the common ground occupied by the parties as to the disposition of the variation and s 7(4) applications, it follows that, if circumstances are not such, even if changed from those examined by Button J, to render the 2016 extended suppression order unnecessary, it must follow, at a preliminary hearing stage, there exists for the purposes of s 7(4), a proper basis to find that the matters alleged in the supporting documentation (by all of the material advanced on the variation application) could, if proved, justify the making of an extended supervision order.

18. [31]

    Lastly, the State contended that the Court must be satisfied to a high degree, having regard to s 140(2) of the Evidence Act, before determining to revoke the extended supervision order. It is unnecessary to resolve that contention. Even without the higher standard being applied, as sought by the State, the Court does not consider the defendant has established that the extended supervision order should be varied so as to (effectively) revoke that order, and, the Court is not satisfied that the “circumstances” have changed sufficiently to render the order unnecessary for the purpose of s 13(1B) (or that the proper exercise of the Court’s discretion in s 13(1) required the variation sought by the defendant).

Conclusions of Button J

1. [32]

   In Schmidt No 1, his Honour was considering whether the defendant was a “high risk sex offender” for the purposes of s 5B(2) of the former version of the Act. There is no relevant distinction in law or in principal between those former provisions and the requirements of s 5B(d) of the Act (see Cook at [26]).

2. [33]

   In Schmidt No 1, Button J rejected the contention advanced by the defendant that he could not be satisfied, to a high degree of probability, that the defendant posed an unacceptable risk of committing a serious sex offence if he was not kept under supervision pursuant to an order. The reasons he gave were as follows (at [51]-[61]):

3. [34]

   His Honour’s reasons for rejecting the application by the State for a continuing detention order, and his reasons in favour of making the extended supervision order, also warrant attention. Those reasons are found at [64]-[69] and are extracted below:

4. [35]

   Having set out those extracts from Schmidt No 1, it is nonetheless necessary, given the submissions advanced on behalf of the defendant, to traverse the factual matters which informed his Honour’s judgment and which relate to relevant factors for the purposes of s 9(3) of the Act.

5. [36]

   Button J made the following observations regarding the defendant’s background and upbringing (at [7]-[11]):

6. [37]

   I adopt those findings but note that they will be updated as I expand upon them in the balance of this judgment. For example, I note that the defendant raised an issue regarding access to his brother and advanced a submission regarding the pattern of his incarceration.

7. [38]

   In 1990 the defendant was convicted and placed on a bond for an offence of common assault. On 8 December 1990, the defendant and his then wife (“V1”) (who he had been married to for 3 months) had been arguing earlier in the day. When they returned home the defendant grabbed V1’s neck and pushed her inside the flat. The defendant demanded V1 make him something to eat. When she refused, he grabbed V1’s hair, pulled her towards the bedroom door were he started to “bash the back of her head and her face to the wall” and punched the V1’s face with a closed fist. This continued until the neighbours, hearing the V1’s screams, intervened. The defendant told the neighbours nothing was happening and thereafter continued to punch V1’s face and hit her head against a wall. The defendant twisted V1’s arm and dragged her into the kitchen where he demanded she cook him something. At the time of the offence the defendant was highly intoxicated on alcohol.

8. [39]

   Button J referred to the defendant’s offending in 1991 as follows (at [13]):

9. [40]

   The next offence in logical sequence was the serious sex offence (as defined under s 5(1)(a)(i) and (ii)) of aggravated sexual assault (the circumstance of aggravation being that the defendant maliciously inflicted actual bodily harm to the victim (“V2”)) in 1997. The defendant was not convicted of this offence until 2004 when DNA was later matched to him.

10. [41]

    The circumstances of that offence (hereinafter referred to as “the serious sex offence”) were as follows:

    1. (1)

       On 15 June 1997, in the early hours of the morning, V2, a young woman was on a bus heading home and alighted near Summer Hill Railway Station. V2 walked through a park when the defendant, affected by amphetamines, approached her. He dragged her into some bushes where the defendant forcefully pinned V2 to the ground while trying to undress her;

    2. (2)

       V2 attempted to escape by kneeing the defendant to the groin;

    3. (3)

       The defendant grabbed V2 by the hair, slammed her face into the ground and told her he would kill her. The defendant forced V2 onto her back and slapped her face several times. He then squeezed her neck tightly to the point V2 thought she would lose consciousness;

    4. (4)

       The defendant put one hand over V2’s mouth and nose and with his other hand unzipped his pants;

    5. (5)

       The defendant inserted his penis into her vagina, thrusting aggressively. V2 is unsure if the defendant ejaculated in her but she heard him moan; and

    6. (6)

       V2 suffered significant bruising to her face, neck and knees and scratches to her body as well as significant trauma.

11. [42]

    A jury returned a guilty verdict in August 2004. The defendant was sentenced by Judge Berman on 15 October 2004 to 9 years and 6 months imprisonment, with a non-parole period of 7 years. As things transpired, the defendant was never released to parole.

12. [43]

    The sentencing remarks by Judge Berman as to objective seriousness and prospects of rehabilitation included the following:

13. [44]

    Button J made some observations regarding the serious sex offence which are apposite. Those remarks were as follows (at [21]):

14. [45]

    There was further offending in the year 2000. The defendant was convicted of assault occasioning bodily harm for which he was fined $500. As Button J noted (at [15]), “The male victim told police that he was in an intimate relationship with the defendant, but the defendant has always rejected that proposition. The facts were that during an argument the defendant pushed and punched the victim, and whilst holding his hair hit his head upon the floor repeatedly”. The victim of that offence (“V4”), sustained bruises to his right eye, carpet burns and a small cut to his back and left arm.

15. [46]

    Between September and October 2000, on four occasions, the defendant breached the apprehended domestic violence order that sought to protect V4 (and V4’s family). He was also convicted of common assault on V4. For these breaches the defendant was fined or placed on a bond.

16. [47]

    In August 2003, the defendant committed an assault occasioning actual bodily harm on a staff member at the Cardinal Freeman Centre (which is a refuge for homeless people). The circumstances of the offence were as follows: the defendant wanted to file a complaint in derogatory terms against the manager of the centre; the victim refused to record the complaint and asked the defendant to leave; and the defendant punched the victim repeatedly. The defendant was sentenced to 12 months’ imprisonment commencing on 11 December 2003. As the defendant pointed out, this was the first occasion that the defendant received a gaol sentence.

17. [48]

    I then turn to the offence committed by the defendant in December 2003 for which he was convicted of malicious wounding, with respect to a woman (“V7”) with whom he had an intimate relationship. The defendant was sentenced on the 3 June 2005 by Judge Bell to 4 years and 6 months imprisonment with a non-parole period of 2 years from 11 May 2011 (when the serious sex offence expired). That sentence expired on 10 November 2018. This offence shall be described as “the 2003 violence offence”. As Button J noted, that sentence was fully cumulative on the sentence imposed by Justice Berman for the serious sex offence. His Honour also observed that, pursuant to that non-parole period, the earliest release date for the defendant became 10 May 2013, such that the total head sentence being served by the defendant expired in its entirety on 10 November 2015.

18. [49]

    The circumstances of the 2003 violence offence were amply described in the State’s submissions as follows:

    1. (1)

       In December 2003 the defendant had stayed with V7 at her home;

    2. (2)

       On the night of 11 December 2003 the defendant and V7 drank alcohol;

    3. (3)

       While in V7’s home, an argument developed and the defendant attempted to strangle V7 using her bathrobe belt;

    4. (4)

       The defendant tied V7’s hands behind her back, tied her legs and carried V7 to the bedroom;

    5. (5)

       The defendant stabbed V7 repeatedly with a large kitchen knife including stabbing her face, neck and chest. He also used a heavy lamp to inflict a severe beating upon her;

    6. (6)

       While V7 was tied up and bleeding V7 asked the defendant to let her go so she could go to the hospital and be treated, the defendant refused; and

    7. (7)

       When the defendant fell asleep, V7 was able to free herself and seek help. V7 suffered life threatening injuries and underwent surgery for a punctured lung.

19. [50]

    Originally charged with attempted murder or wounding with intent to cause grievous bodily harm (both “serious violence offences” under s 5A(1)(a) and (2A)(c)), the defendant pleaded guilty to the 2003 violence offence. He maintained that he reacted in self-defence.

20. [51]

    Button J’s further remarks with respect to the 2003 violence offence (at [25]), were also apposite, and are extracted below:

21. [52]

    In a psychological report of Dr Bruce Westmore of 29 March 2005, which was placed before Judge Bell at the sentencing hearing, Dr Westmore opined that it was unlikely that the defendant had psychotic symptoms and diagnosed the defendant with depression. He considered the defendant’s depression and drug and alcohol use were contextually linked to the offending. Dr Westmore opined:

22. [53]

    Counsel for the defendant made the following written submissions in relation to the defendant’s criminal history:

23. [54]

    It may be accepted that the defendant does not have an offending record which would demonstrate that he is a persistent sexual offender, and both the serious sexual offence and the 2003 violence offence have some “historicity to them”. It was also submitted that the defendant has aged but the significance of that contention is not entirely clear.

24. [55]

    However, those contentions do not diminish the force of the first three conclusions of Button J that I have set out from Schmidt No 1, as set out earlier in this judgment,, which I accept and adopt.

25. [56]

    Button J made the following observations derived from expert reports received for the purposes of the 2016 extended supervision order hearing. Paragraphs [32]-[40] are apposite and are extracted below:

26. [57]

    His Honour also reviewed the psychiatric evidence with a view to ruling on whether to make a continuing detention order as opposed to an extended supervision order. Nonetheless, some of those observations are relevant in the present context and are extracted below:

27. [58]

    I accept, with respect, his Honour’s assessment of those psychiatric reports.

28. [59]

    As to the report of Dr Jonathon Adams, the State submitted, correctly in my view, the following:

29. [60]

    The defendant submitted that Dr Adams made no clear diagnosis of any psychotic diagnosis. So much is true, although two further observations may be made. The first is the observation made by Button J that Dr Adams considered that the starting point of any management of the defendant is to determine the truth of his mental illness by intensive assessment in a mental health unit. The other is Dr Adams’ observation as to the possibility of the defendant suffering from an underlying psychotic illness. What is clear, however, is that Dr Adams opined that the defendant presented a significant risk of committing a serious sex offence if he was to be released without conditions on his liberty.

30. [61]

    The State submissions regarding Dr O’Dea were apposite, particularly insofar as they bring in relevant parts of his opinions. Those parts of the State’s submissions were as follows:

31. [62]

    It is true, as submitted by the defendant, that Dr O’Dea did not diagnose a psychiatric illness, but his assessment of a substance use disorder and personality disorder resulted in the conclusion as to the risk of engaging in a further serious sex offence as extracted in the State’s submissions above.

32. [63]

    The report of Dr Calinda Payne was dated 26 February 2015. In that report, Dr Payne made risk assessment under the STATIC-99R and STABLE-2007 risk assessments tools. The combination of those risk assessments placed the defendant in the high overall risk category.

33. [64]

    Dr Payne noted that the defendant was at a high risk of sexual re-offending because his intimacy issues are untreated. Dr Payne stated that the defendant told her that his relationships all followed a pattern where he felt suffocated by the partner’s needs, would drink alcohol, become abusive and leave.

34. [65]

    Significant risk factors identified by Dr Payne were intimate relationships, a lack of concern for others, hostility towards women, impulsivity, drug and alcohol use, negative emotionality and lack of cooperation with supervision.

35. [66]

    Dr Payne opined that the defendant’s future risk scenarios would be violence (including sexual violence) on someone with whom he has formed an intimate relationship.

36. [67]

    The defendant also referred to the diagnosis by Dr Jonathan Carne of 17 May 2016, namely, “chronic paranoid schizophrenia”. However, I agree with the submission of the State that considerable care needs to be taken in accepting Dr Carne’s report, which relied upon self-reporting by the defendant. I note, in that respect, the earlier observations of Button J. It may be also observed that Dr Carne did not have the depth of historical material or case notes held by Dr Adams and Dr O’Dea when they diagnosed the defendant.

37. [68]

    An “ESO Completion Report” was prepared by Ms Holly Cieplucha, Psychologist, dated 30 May 2015. She did not undertake a combined STATIC-99R and STABLE-2007 assessment, due to her view as to the history of mental illness of the defendant. Her overall assessment of the defendant was that he was above average risk of sexual offending and a moderate risk of violent offending.

38. [69]

    The defendant submitted that his custodial history was very good for a person who had been in custody for as long as he had been incarcerated. The majority of entries on his record were unrelated to violence or drugs. His conduct had improved with decreases in incidents of violent, confrontational or aggressive behaviour.

39. [70]

    In my view, Button J’s remarks at [28]-[31], in this respect, are apposite, including in relation to his treatment in custody, and I adopt them:

Risk Assessment Report and Statistical Assessment of Risk

1. [71]

   Mr Samuel Ardasinski, Psychologist at the Serious Offenders Assessment Unit wrote a Risk Assessment Report dated 8 October 2018.

2. [72]

   In the executive summary of the report, Mr Ardasinski made the following observations:

3. [73]

   Mr Ardasinski observed that the court appointed experts during the 2016 extended supervision proceedings did not diagnose psychiatric illness but the defendant did submit to psychiatric assessment early in the course of the 2016 extended supervision order and was given a formal diagnosis of psychiatric disorder. The defendant had not been able to obtain a further psychiatric view at the time of the writing the report.

4. [74]

   Mr Ardasinski noted that while mental instability has been documented, with respect to his community supervisors, from a risk perspective since his release onto the 2016 extended supervision order, with some veiled threats and mentions of homicidal or suicidal ideation at times, he had never been “so acutely mentally unwell as to warrant civil commitment, attention from the Acute Crisis Team, or any other form of acute mental health intervention. The crisis episodes for [the defendant] had been ‘subclinical’ in terms of their severity from a mental health perspective”.

5. [75]

   Mr Ardasinski opined that the defendant’s lifestyle around the time of the offending would suggest that “sexual preoccupation, failure to connect intimately and substance use have potentially been precursors to [the defendant’s] serious and sexual violence”. He noted that there were other environmental factors which permitted the offences to occur within this context, including having the liberty to be out at night, to drink alcohol and/or use drugs without fear of detection or intervention and the making of social connections with others. Mr Ardasinski pointed out that the extended supervision order has restrained these risks but, in the result, “it is difficult to speculate whether [the defendant’s] alcohol/drug use, the use of pornography or social connections with others could escalate or would have escalated to a new serious offence if he was not curtained before risk factors could constellate in”.

6. [76]

   Mr Ardasinski then identified that the defendant’s acknowledgment of risk and the identification of the relevant risk factors can be a protective factor as it allows him to reduce the likely occurrence of risk factors in the future. He then observed: “[the defendant’s] version of events for the two most serious offences he committed has oscillated over the years, and in interview with me, [the defendant] claimed that command hallucinations associated with his as-at-that-time-undiagnosed psychotic illness were integral in his offending – both the violence and the sexual offence. He also claimed to experience an episode of dissociation in both instances. [The defendant] claimed that he ‘could do nothing’ to resist the voice that told him to commit the offences at the time”.

7. [77]

   As the State correctly pointed out, when the defendant was interviewed by experts for the 2016 extended supervision order hearing, he denied that the serious sex offence was non-consensual and blamed the victim for the 2003 violence offence. This stands in contrast to his explanation to Mr Ardasinski. I will further discuss this report and the Completion Report of Dr Cieplucha momentarily, but it is important to note that the defendant’s reliance on mental health issues and the failure to accept factual casual links to his serious offending is, as the State submitted, significant to the evaluative task required for this judgment with respect to the risk of re-offending. As will become evident as the discussion moves forward there is little evidence before the Court that the defendant genuinely appreciates the pathways to his offending and would be motivated to stop himself if he saw himself in a high risk scenario in the absence of an extended supervision order.

8. [78]

   The State referred to the following passages of Mr Ardasinski’s report at paras 31 and 32, respectively:

   1. (1)

      “the progress in addressing the factors that lead to his violent and sexual offending have potentially been inadequately addressed since the majority of intervention has been targeting day-to-day pressures and mental health concerns”; and

   2. (2)

      “…a review of the progress notes [of FPS and with his psychiatrist] does suggest that most of the issues [the defendant] has discussed in these sessions have been contemporaneous to his current circumstances… he has failed to address the attitudes underlying his historical violence or sexual violence”.

9. [79]

   It might be noted that Mr Ardasinski also commented at para 31 of his report that it was likely the defendant was a very different person to the person that committed the serious crimes in 1997 and 2003, just by virtue of “impact of imprisonment and maturation”. He opined, “it remains possible that the psychological progress made over the last two years, alongside the other peripheral supports [the defendant] has set up (e.g. mental health support), has sufficiently moderated the risk he poses of reoffence”.

10. [80]

    That observation needs to be seen in the light of the balance of Mr Ardasinski’s report.

11. [81]

    It is useful to first look at the actuarial risk assessments that were undertaken by Mr Ardasinski using professional judgment tools to assess the defendant’s risk and then turn to other aspects concerning risk assessment in Mr Ardasinski’s report.

12. [82]

    The State provided a summary of the actuarial risk assessments that were undertaken by Mr Ardasinski, which I have adopted below:

    1. (1)

       The defendant was categorised in the medium risk category for general and violent offending according to the Level of Service Inventory-Revised (“LSI-R”). This tool consists of static and dynamic risk factors related to general and violent re-offending. Ardasinski did not personally administer the LSI-R. It was performed on 10 September 2017. The LSI-R does not delineate between risk of committing a serious violence offence and general re-offending;

    2. (2)

       The defendant scored 4 on the STATIC-99R and 5 on the STATIC-2002R. The STATIC-99R and STATIC-2002R predict recidivism based on static (historical) risk factors. A score is given to historical risk factors (10 factors for the STATIC-99R and 14 factors for the STATIC-2002R) to categorise a person’s risk. The defendant is in the “Above average” risk for STATIC 99R and moderate risk category for the STATIC-2002R;

    3. (3)

       The defendant scored 10 (in the Completion Report) on the STABLE 2007. This tool measures dynamic risk factors related to sexual re-offending and consists of 13 items related to psychological, interpersonal, and sexual functioning, which are added together to create a total score. The score suggests a moderate density of criminogenic needs relative to other male sexual defendants; and

    4. (4)

       The defendant scored 18 on the Violence Risk Appraisal Guide – Revised (“VRAG-R”), administered by Mr Ardasinski on 27 September 2018, which categorised the defendant in the high risk category. The VRAG-R is an actuarial risk assessment tool designed to assess the risk of future violence in defendants. It contains 12 static risk factors which, when scored actuarially, provide a probability of an individual committing further violence over set periods of time post-release. In the norms for this instrument, 58% of violent defendants in this risk “bin” re-offended violently within five years, and 78% re-offended violently within 12 years.

13. [83]

    The State, in its written submissions, also correctly summarised Mr Ardasinski’s earlier report (made prior to the 2016 extended supervision order hearing). An extract of the summary, with respect the Violence Risk Scale (“VRS”) tool, follows:

14. [84]

    Mr Ardasinski opined that the following risk factors were identified as significant indicators of risk for the defendant (at [55]):

    1. (1)

       Violent lifestyle (violence is justified or “normal”);

    2. (2)

       Criminal personality (lack of empathy, manipulating others and lack of remorse);

    3. (3)

       Work ethic (no gainful employment throughout term of extended supervision order);

    4. (4)

       Interpersonal aggression (threats are a form of verbal aggression, to intimidate);

    5. (5)

       Insight into violence (poor, refusing to consider the factors relevant to violence);

    6. (6)

       Mental disorder (psychotic disorder diagnosed, currently experiencing residual “break-through” psychosis despite being medicated);

    7. (7)

       Substance abuse (poor insight into potential for alcohol use to increase risk);

    8. (8)

       Stability of relationships (history of domestic violence, and social isolation on ESO which has limited his capacity to work on this risk factor);

    9. (9)

       Community support (inadequate non-professional supports);

    10. (10)

        Impulsivity (currently contained by electronic monitoring and scheduling);

    11. (11)

        Cognitive distortions (blames others for how he feels, and for his aggression); and

    12. (12)

        Compliance with supervision (although improving, still not “model” supervisee).

15. [85]

    In cross-examination, Mr Ardasinski agreed that the defendant’s overall risk had decreased since his initial assessment. Further, as to violent lifestyle, Mr Ardasinski agreed that the defendant would fall at the bottom of the range of someone presenting with that “as a risk factor”. As to criminal personality, he did not agree that the defendant fell towards the bottom of the range but accepted that he was not at the “top of the range”. Mr Ardasinski identified (although not exhaustively) that the risk factors of “insight into violence”, “mental disorder” and “stability of relationships” each fell above the mid-range “in terms of presentation of offenders”. He also agreed that the defendant did not need to be observed in some sort of romantic relationship before he could be safely released from any supervision.

16. [86]

    However, Mr Ardasinski opined that without a relationship, there can be no trigger in form of a relationship breakdown to act as catalyst for a new sexual offence. He also opined that without the capacity to engage in risky behaviours within risky contexts, such as drinking alcohol and not having a curfew and electronic monitoring to enforce one, there is “a great deal of speculation within the formulation of new ‘live’ risks within [the defendant’s] social situations as he nears the end of his ESO”.

17. [87]

    Further, Mr Ardasinski advised that the management of risk usually “involves the offender improving their levels of functioning in the aforementioned dynamic risk areas”. He opined that the constraints of the extended supervision order have moderated the risk by restricting opportunities to engage in the risky behaviours, such as being mentally unwell, entering dependent intimate relationships and/or prowling around at night. He opined that Button J’s opinions on risk were relevant to the question of whether a second extended supervision order ought to be considered, emphasising in that respect the first, second, fourth and fifth factors taken into account by Button J.

18. [88]

    As the Crown correctly observed, the presence of dynamic risk factors at the time of the hearing of these applications were in many respects similar to those factors which influenced Button J in making the 2016 extended supervision order. Those factors were the fourth to tenth factors, earlier extracted, from para 55 of Mr Ardasinski’s report. Finally, in this respect, I accept the following submission by the State: “The [Risk Assessment Report] notes the defendant’s institutionalisation and his need for professional services to assist the defendant to cope with reintegration in the community and his mental health needs. Mr Ardasinski opines that termination of the services provided under the ESO may ‘trigger an acute high risk scenario’”.

19. [89]

    Ultimately, Mr Ardasinski does not express an opinion as to whether there should be an extended supervision order. However, I agree with the submission of the State that the Risk Assessment Report uses language which suggests that Mr Ardasinski considered whether the defendant was more likely to commit another serious offence. As s 5D of the Act prescribes the Court is not required to determine if the risk of the defendant committing a serious offence is more likely than not to determine that there is an unacceptable risk of a person committing such an offence for the purpose of s 5D(b).

Completion Reports

1. [90]

   A Completion Report of Ms Cieplucha, dated 30 May 2018, was compiled in relation to the defendant.

2. [91]

   The defendant noted, correctly, the following components of Ms Cieplucha’s report:

   1. (1)

      The defendant only received one formal warning in the 18 month period leading up to the report – being on 26 April 2018;

   2. (2)

      The defendant has overall demonstrated a general capacity to comply with directions, schedules and electronic monitoring;

   3. (3)

      According to the STATIC-99R actuarial analysis, the defendant falls within the moderate risk category compared with other male sexual offenders. Re-administration of the Stable-2007 suggests that he no longer falls in the highest risk range for repeat serious sexual offending with his overall assessment of risk being in the moderate range;

   4. (4)

      The defendant has engaged with individual risk management sessions with the Forensic Psychology Services (“FPS”) to address identified risk factors and has engaged with professional community supports to manage his mental health

   5. (5)

      Whilst there are some outstanding needs, particularly in relation to his transition back to independent accommodation, he has not presented with any live risk issues in relation to sexual offending;

   6. (6)

      Given the defendant’s current presentation and progress in respect to the identified risk areas, in addition to his willingness to utilise strategies for his ongoing management, a further order is not recommended.

3. [92]

   Ms Cieplucha did, however, express some concerns as to the defendant. This did not detract from her overall positive view but they should be noted, particularly in the context of considering the question raised by s 5B(d) of the Act. Those concerns were as follows:

   1. (1)

      “[the defendant] demonstrates limited insight to his patterns of offending outside of his identification of mental health needs, substance abuse and ongoing issues pertaining to historical trauma. Ongoing risk management intervention and psychological counselling will be important in assisting him to develop greater insight into the triggers to his offending”;

   2. (2)

      “[the defendant’s] mental health has fluctuated considerably over the course of his Order. He is reported to have experienced significant anxiety and depression immediately following his transition from custody. During periods of heightened distress [the defendant] reported experiencing perceptual disturbance characterised by auditory command hallucinations, delusions of reference from the television and delusions of persecution. [The defendant] has demonstrated periods of non-compliance with prescription medications and has at times admitted to abuse of these medications through stockpiling and subsequent overdose on Valium (stating he just wanted to ‘sleep for a few days’). [The defendant] describes his current mental state as stable and does not currently present as acutely mentally unwell”; and

   3. (3)

      That the defendant has not progressed through the stages of supervision and remains at Stage 2 (which is a high level of supervision requiring electronic monitoring and weekly reporting of schedules).

4. [93]

   Two further matters require attention, arising from Ms Cieplucha’s report. At para 35, she dealt with a variety of risk factors relating to the STABLE-2007 assessment tool. In relation to the capacity for relationships stability she noted the following:

5. [94]

   As the State correctly submitted, this observation reflects the concerns that Dr Payne had regarding the defendant’s warning signs in intimate relationships and demonstrates the need for caution with respect to Ms Cieplucha’s opinion that the defendant does not represent a “live” risk of sexual offending. To this observation may be added the fact that the defendant remains at a high level of supervision and has not yet progressed to a more relaxed stages under the exercise of the extended supervision order teams discretionary assessment.

6. [95]

   Ms Kerryann Thomas, Community Corrections Officer (and the defendant’s DSO at one time), provided a “Completion Report” to the Attorney General of NSW dated 17 July 2018.

7. [96]

   Ms Thomas considered that continuation of the defendant’s extended supervision order is necessary and appropriate. Contrary to the views of Ms Cieplucha, Ms Thomas observed the defendant’s mental health had declined (with auditory hallucinations) and there was hostility towards CSNSW staff.

Conduct While on Extended Supervision Order

1. [97]

   The State provided a summary of infringements by the defendant during his time on the 2016 extended supervision order. That submission was in the following terms:

2. [98]

   The defendant did not challenge the accuracy of the State’s summary (in paras 53-55 above), but rather sought to characterise the matters referred to as being fairly minor and towards the beginning of the 2016 extended supervision order. The defendant also sought to suggest that the breaches did not constitute illegal behaviour absent the 2016 extended supervision order. They occurred, it was submitted, in the context of the imposition of onerous conditions and in circumstances where “it could not have been expected that such a person would transition to outside life without any hiccup in their progress”. Thus, it was accepted that there was misbehaviour but this did not equate to non-compliance or disregard for obligations and was low level. Further, the defendant did not display, it was contended, behaviour that could be characterised as overtly defiant or anti-authoritarian, even though he experienced instances of frustration (such as being removed from his residential address). The examples produced by the State did not demonstrate the defendant as a person who unrepentantly displayed defiant or bad behaviour.

3. [99]

   Examples of positive attitudinal signs were provided in the defendant’s written submissions as follows:

   1. (1)

      The defendant’s improved disciplinary record in gaol;

   2. (2)

      The defendant’s regression in prison classification over the course of his sentence;

   3. (3)

      His efforts at compliance with his extended supervision order upon release in 2016;

   4. (4)

      His co-operation with the various assessments he has been obliged to participate in;

   5. (5)

      His long-term compliance with psychological counselling and FPS treatment;

   6. (6)

      His maintenance of a steady General Practitioner;

   7. (7)

      His commitment to his physical health;

   8. (8)

      His overall excellent compliance with electronic monitoring and scheduling requirements;

   9. (9)

      His ability to account for his money and provide budgets; and

   10. (10)

       His willingness to confront the wrongfulness of his past behaviour and index offences.

4. [100]

   The defendant accepted that he had not participated in the Custody Based Intensive Treatment program (“CUBIT”) and that, whilst this not be entirely satisfactory, he had engaged in psychological treatment.

5. [101]

   These submissions and, in particular, the defendant’s response to para 56 of the State’s submission (extracted above), need to also be seen in the light of the issues raised by him both as to the unreasonable behaviour of the ESO Team and as to various affirmative aspects of his conduct during the course of the 2016 extended supervision order.

6. [102]

   The above submissions by the defendant as to his conduct and the particular matters by him need to be considered in the light of the entirety of the evidence before the Court, including the defendant’s own evidence. Ultimately, I do not accept his rejection of the State’s submission as extracted above (per para 56 of the extract).

7. [103]

   The defendant provided two written affidavits sworn 18 July and 29 October 2018, respectively.

8. [104]

   In that affidavit evidence, the defendant stated that the ESO Team had made it more difficult to function in the community than it would have been without supervision and gave various examples which were expanded upon in his oral evidence. He also gave evidence that his mental health was under control and that he would continue his medication regime and follow the recommendation of his doctors. He stated that he did not represent a risk because his previous offending occurred due to the fact that he was in denial as to his mental illness and was not medicated or treated.

9. [105]

   In his oral evidence, he traversed the following topics:

   1. (1)

      The unreasonable way in which the ESO Team managed his desire to contact his brother;

   2. (2)

      The unreasonable direction of the defendant not to remain at the accommodation where “Garry” was his Landlord;

   3. (3)

      The unreasonable direction of the defendant regarding his training of staff of the Integrated Support Centre (“ISC”) at the gym and to leave the ISC;

   4. (4)

      The unreasonable direction of the defendant not to associate or have any further contact with a manager at the ISC (“Susan”);

   5. (5)

      That the defendant does not use drugs or alcohol;

   6. (6)

      That the defendant’s mental health is under control; and

   7. (7)

      That the defendant has insight into his offending and his intimacy issues such that he is no longer a risk to the community.

10. [106]

    I will deal with the parties’ submissions, with respect to those various topics below. However, before doing so I will make some observations as to the defendant’s evidence and contentions by the defendant as to the drawing of adverse inferences because certain State witnesses were not called.

11. [107]

    The State contended the defendant’s evidence was unreliable and dishonest.

12. [108]

    As will be evident from the adverse finding I will make as to his evidence of unreasonable treatment, his assertions as to his mental health and insight into his offending, I accept the State’s submission as to his evidence being unreliable in those respects (even though I have made some limited findings in the defendant’s favour).

13. [109]

    In a broader sense, I accept the State’s submission that the defendant’s evidence revealed he: externalised blame to others and often failed to appreciate the purpose of the extended supervision order. The evidence also reveals the remainder of aggression and, as I will discuss, enduring risk factors.

14. [110]

    I have placed only moderate weight on my observations of the defendant in the witness box. His evidence was unimpressive, particularly in the manner of his response to questions in cross-examination, but I have accepted the submission of his counsel that care should be taken to eliminate findings as to unreliability which may well relate solely to cultural differences.

15. [111]

    As to the contention that adverse inferences may be drawn as a result of the State not calling Nicole, I will deal with that contention in the course of a discussion as to the issues arising with respect to the defendant and that person, although it is difficult to see how the views of Nicole may overcome the fact that a direction was made, in that respect, which arose from risks identified by the defendant’s treating psychologist.

16. [112]

    The defendant complained that the State did not call evidence from any DSO directly supervising the defendant, but instead chose to lead evidence from Ms Caffery, who it was said at no time had any direct contact with or supervised the defendant. This was described as a tactic by the State which denied the defendant the ability to explore why aspects of his supervision raised in his evidence were not directly countered.

17. [113]

    It was further submitted that, given the manner in which the State chose to present this aspect of its evidence, adverse inferences were open to be drawn regarding the supervision of the defendant. The defendant contended it could only be inferred, therefore, that evidence from the parties having day-to-day contact with the defendant was unhelpful to the State.

18. [114]

    I do not accept those contentions, which were expressed in very broad terms. For example, it was not particularised what could have been addressed by the DSOs that was not addressed by Ms Caffery.

19. [115]

    It may also be noted that Ms Caffery is a senior decision maker with respect to the defendant’s supervision. It has not been demonstrated how a failure to call more junior or subordinate officers may result in the drawing of a Jones v Dunkel inference.

20. [116]

    The defendant’s submissions, in this respect, were as follows:

21. [117]

    Ms Caffery conceded in evidence that interpersonal relationships were important to the defendant and the expedition of contact with his only relative in Australia would have been important.

22. [118]

    The defendant first requested to see his brother on 16 February 2016. By 27 July 2016, the DSO was still awaiting approval from the defendant’s brother’s supervising officer for contact to be established.

23. [119]

    Even allowing for the period in which the defendant did not request to see his brother between March and July 2016, and the establishment of arrangements between agencies, the progress of the request by the applicant would not seem to have been undertaken with alacrity.

24. [120]

    Nonetheless, the defendant’s contention that “the inertia” was unexplained or that the State’s explanation was unsubstantiated cannot be accepted. In my view, it was appropriate for the supervising officers to move carefully in establishing contact between the defendant and his brother in order to properly balance the risk of the defendant’s contact with rehabilitative considerations. The defendant accepted in his evidence that his brother had mental health problems and drug issues. He was also aware of his brother’s allegation that he had violently and sexually assaulted him (even though he denied any such conduct). On Ms Caffery’s evidence the brother had expressed a desire not to have contact with the defendant at various stages.

25. [121]

    Ultimately, I accept the State’s submission that a substantial part of this complaint represented the defendant’s inability to appreciate that the ESO Team had to ensure agreement with the defendant’s brother’s parole officer before a meeting with the defendant’s brother could be approved.

26. [122]

    On 24 May 2017, the defendant commenced living in a granny flat at Forrester's Way, Woodbine. Over time, he developed a good relationship with his landlord, “Garry”, and was permitted to go on social outings to Clubs with him and his family.

27. [123]

    In reliance upon condition 30 of the 2016 extended supervision order, the defendant’s DSO, Ms Thomas indicated to the defendant in April 2018 that he was required to tell “Garry” of the nature of his offending (noting that Garry appeared to be aware that the defendant had been in gaol, was being supervised and had conditions on his liberty).

28. [124]

    The defendant contended that at that time he had been socialising with Garry on sanctioned excursions over months and that the decision by the DSO was an “arbitrary exercise of power” that “lacked discernment and discretion”. It was said to be significant that Ms Thomas was not called to give evidence by the Crown and that adverse inferences may be drawn in that respect. The defendant had left the premises of Garry unhappily but without rebellion. It was submitted the conduct of the State through its agency was arbitrary, petty and “not acting in any other capacity but an overzealous and intractable application of power”.

29. [125]

    I do not accept the submissions of the defendant in this respect. The State amply explained why the concerns held regarding the defendant’s relationship with his landlord were valid when objectively tested against the circumstances operating at the time. Before setting out those submissions, I note that the landlord emailed the ESO Team aiming to be supportive of the defendant but I agree with the submission of the State that the landlord, with respect to him, had no insight as to the protective reasons for the conditions imposed on the defendant.

30. [126]

    The State’s submissions, in this respect, which I accept as representing valid concerns, were as follows:

    1. (1)

       In September 2017 the defendant overdosed on Valium noting one of his triggers was “Garry’s withdrawal and rejection”;

    2. (2)

       On 8 April 2018, there was a schedule deviation where it was picked up by electronic monitoring that the defendant had been to Garry’s girlfriend’s home. The defendant stated he went to the girlfriend’s place to drop her off before dropping the defendant off home. The defendant was told this residence would not be checked and approved on the schedule. Ms Thomas stated that she would discuss this with Garry;

    3. (3)

       On 9 April 2018, the DSO discussed this deviation with the defendant in the presence of Garry. In this discussion, Ms Thomas raised that the defendant was not to be around persons consuming alcohol to which Garry replied that he had been drinking in the defendant’s presence for 12 months. This had never been disclosed to previous DSOs to seek approval;

    4. (4)

       From April 2018, Garry would not allow the ESO Team to conduct random home visits on the weekend to monitor the defendant; and

    5. (5)

       The defendant had tested positive to alcohol on 26 April 2018 when residing with Garry. The defendant accepted he was on alcohol when he committed his serious offences but did not accept that to manage his risks Garry should be aware of the type of crimes he can commit when he is intoxicated. The defendant confirmed in oral evidence he would rather not return to live with Garry if living with Garry meant his serious offences had to be disclosed to Garry.

31. [127]

    The defendant gave evidence that two members of the staff at the ISC, namely, “Nicole” and “Shaun”, had approached him for the purposes of personal training. The evidence revealed that these sessions occurred and Nicole reported that the defendant had supported staff with an exercise regime and that he was motivated and helpful. It was also recorded that there were “nil issues”.

32. [128]

    Ms Caffery agreed that it was inappropriate on the part of staff to engage in those sessions and the defendant correctly submitted that, by this means, the staff had blurred the boundaries between their roles and that of the defendant.

33. [129]

    The staff members were not called. It was submitted by the defendant that this would have indicated that their evidence would not have assisted the State. However, there is no dispute that the staff engaged voluntarily in the activities and that in doing so they, I have found, blurred lines between the defendant and themselves.

34. [130]

    The effect of the defendant’s submission that the defendant was functioning well in the setting he was in and that the “sanction” that he received was confusing given that the inappropriate conduct was that of others. The effect of the submission was that the direction subsequently given to him not to train with the ISC staff at the gym was not reasonable and, in fact, the defendant’s conduct and his interaction with staff was positive because he was able to engage appropriately in the interactions with these persons in a “pro-social matter”. It was also submitted that it is difficult to understand why it was necessary for the defendant to cut off all contact with the ISC.

35. [131]

    Whilst it may be accepted that the mixed signals sent by staff may have resulted in confusion and, therefore, potentially impeded rehabilitation, the direction which was issued was not unreasonable because it related to risks. Nor was the exclusion from the ISC unreasonable, having regard to the that factor and noting the following considerations.

36. [132]

    The direction arose because there were concerns regarding the risks to a female gym member with whom the defendant was training. The defendant’s psychologist at FPS, Ms Purcell, contacted the ESO Team concerned that the defendant “displayed difficulty in maintaining boundaries as evidenced by his belief that the workers at the ISC and his private psychologist are his ‘friends’”.

37. [133]

    On 5 April 2017 the defendant described his training with Nicole to Ms Purcell as “sweaty”, “painful”, “beautiful” and “40 minutes away from reality”. The descriptions were enough to cause Ms Purcell, who had been seeing the defendant since 7 November 2016, to contact the defendant’s DSO to advise that the defendant had “appeared emotionally invested in the training of Nicole”. Ms Purcell described that “the manner in which [the defendant] was describing the training sessions was quite animalistic and he gave the impression that it fulfilled a primal need for him”.

38. [134]

    Two other considerations arise in respect of this matter, both of which are relevant to the question of risk for the purposes of s 5B(d).

39. [135]

    First, in his evidence, the defendant somewhat unconvincingly described his references to the sessions with Nicole as merely him being “in the zone”. Whilst it might be accepted that persons in the defendant’s position may have different relationships with psychologists, the fact that he blamed the incident on Ms Purcell because of such a clash of personalities puts out of account his own description of the events.

40. [136]

    Also of concern was the fact that, when told he could not train with Nicole, the defendant reacted aggressively with respect to Ms Purcell such that the DSO and the psychologist considered his aggression represented an elevation of risk. The State was correct to submit that this response evidenced the emotional investment the defendant had in the training sessions.

41. [137]

    A written warning was issued to the defendant in relation to Ms Susan Wojciechowski, the manager of the ISC at Campbelltown.

42. [138]

    The evidence was that the defendant contacted Ms Wojciechowski while she was on leave. The defendant had her personal mobile number (although it is unclear he obtained that number) and he initiated the contact with Ms Wojciechowski. She did not call him. The defendant described Ms Wojciechowski in his evidence as “his psychologist”.

43. [139]

    The defendant submitted that there was no evidence that the relationship between Ms Wojciechowski and the defendant was “anything other than appropriate”. His evidence was that he contacted her relating to his current housing situation. It was also submitted, correctly, that there was no evidence that the content of the messages was inappropriate. Counsel for the defendant went so far as to submit that the “evidence called in relation to [the] nature of contact between [the defendant] and [Ms Wojciechowski] at the ISC was disingenuous and not worthy of any weight”. It was submitted that as a matter of common sense that a manager of an establishment where a person such as the defendant resided would have contact with residents on a daily basis on all sorts of matters. I do not agree.

44. [140]

    Whatever Ms Wojciechowski’s qualifications, the defendant never had a relationship of psychologist with her and there were no psychology sessions between them. The defendant’s understanding of the relationship was inaccurate and, in that respect, a risk factor.

45. [141]

    The defendant said that he told the ESO Team that he had contacted Susan but this was inaccurate. His contact was discovered when his mobile phone was seized and searched. Both the contact itself (in terms of an out of hours contact with the manager) and the concealment of the same were matters relevant to the assessment of risk. So to was the defendant’s reaction when he was told he could not have contact with Ms Wojciechowski. I accept the State’s submission that his reaction reflected an intense emotional investment in her, as demonstrated by the following:

    1. (1)

       The defendant took more than his usual dosage of Valium, slept for an unknown period of time, and lost the will to fight;

    2. (2)

       Despite the direction in July 2017, the defendant had insisted on trying to reconnect with Susan: the first day Ms Amanda Carden was appointed his DSO on 5 September 2018 in his opening text to Ms Carden the defendant sought to re-establish contact with Susan. The defendant asked again on 6 and 16 September 2018 to have contact with Susan; and

    3. (3)

       On 21 September 2018, when the defendant was told he would not be permitted to contact Susan, his demeanour was observed to significantly shift. The defendant clenched his jaws, began speaking rapidly and yelling, clenched his fists and moved backward and forward in his chair. The police officer present in the discussion spoke at normal volume to encourage the defendant not to yell. The defendant was observed to remain wide eyed for the rest of the discussion with his eyes darting around the room in the air.

46. [142]

    I also accept the submission of the State that this evidence (combined with the evidence concerning Nicole) is illustrative of the experts’ concerns of the defendant being likely to engage in a serious offence if he enters into an intimate relationship, compromising the safety of a woman who may be his partner. As the State submitted, “the defendant’s issues are not treated and he remains highly unstable and unable to regulate himself”. The following considerations are also relevant in that respect.

47. [143]

    The defendant gave evidence that he had problems with drugs in the past but had developed strategies to ensure that drugs would never become a problem again. He indicated that he received support from his psychologists and the medication he was taking. He had observed the plight of this brother and never wanted to “be that person again”. He also referenced the physical exercise program he had embarked upon as an avoidance measure.

48. [144]

    The defendant tested positive for cannabis and alcohol in August 2016 and tested positive for alcohol in April 2018 for which he received formal warnings. He contested the second positive reading suggesting at the time that it may be due to his angina medication, use of Bonjela cream or consuming buns with honey on them. He denied that he had consumed alcohol.

49. [145]

    In cross-examination, the defendant was challenged about being observed with bloodshot eyes by the DSO at or about the time of the positive reading. He explained that he had been swimming, notwithstanding that case notes indicated that he had been “napping” just before the breath test was conducted. He did not tell anyone that he had been swimming at the time.

50. [146]

    There are no medical records that suggest the angina medication that he was taking could cause a positive alcohol breath result.

51. [147]

    I agree with the submission of the State that the defendant’s explanation is not credible and must result in a conclusion that the positive test resulted from him consuming alcohol.

52. [148]

    There was also evidence of the defendant misusing Valium. He overdosed on that drug twice – once when being told he could not contact Susan in July 2017 and again in September 2017. The misuse of the drug occurred after news of an old girlfriend passing away and “Garry’s withdrawal and rejection of him”. Further, in September 2018, the defendant wanted to approach his GP to seek more Valium, even though he was on the highest does. The defendant’s medication, including Valium, was being regulated at the time by Community Offender Support Program (“COSP”). The OIMS note of Ms Carden of 30 September 2018 expressed concern that the defendant’s request for a mental health review in September 2018 was a way to obtain Valium on an as-needs basis rather than being regulated by COSP.

53. [149]

    The consumption of alcohol (and drugs) was a significant contributing factor to the defendant’s serious offending.

54. [150]

    The evidence available to the Court would suggest in the absence of supervision there is a risk of the defendant returning to alcohol which, having regard to its contribution to his offending represents an unacceptable risk.

55. [151]

    In his affidavit, the defendant proposed that his mental health had been variable since February 2016, when he was first released from custody. He had not been provided with the correct medication at the time and it took some time to obtain correct scripts. He also stated that he needed a review of medication to manage his symptoms and that his mental health affects how he feels. He stated that when properly medicated he felt supported and helped and his mental health was generally good.

56. [152]

    In his evidence-in-chief, the defendant stated that he was taking his medication and that the medication was helping him in relation to anxiety. He indicated that he would continue to take his medication whether or not he was the subject of an order and that the medication “helped him to focus on reality and not have any more paranoid attacks”.

57. [153]

    He stated that he did not engage in treatment for sexual offenders whilst in gaol because he was embarrassed. He did not understand how the sexual offence occurred and he felt that the psychologist that was running the course was making fun of him.

58. [154]

    He also stated that he received psychological counselling whilst the subject of the 2016 extended supervision order “with ISO psychologists and with a private psychologist”, all of which had helped him to understand the reality, his mental problems and recognise “the problems that in the past I didn’t want to recognise”. That included a reference to violence, drug abuse and alcohol abuse. He considered that his previous behaviour resulting in serious crimes would not happen again because of the help he received from psychologists.

59. [155]

    The defendant submitted that there was no deterioration in his mental health and that his mental health was under control.

60. [156]

    It may be accepted that the defendant’s mental health is being treated by psychologists and the use of medication. However, I do not consider there is a proper basis, from a risk view point, of finding that his mental health is either under control in the sense of being stable and well treated.

61. [157]

    The following evidence is relevant in that respect:

    1. (1)

       On 17 August 2017, the defendant disclosed to Ms Theresa Britton, FPS Psychologist, that he was hearing the voices of “Michael” and “Alex” and it was becoming increasingly difficult for him to disassociate himself from the voices. The aggressive voices excited him to take justice into his own hands. The FPS notes also indicated that the defendant stated that he heard voices in November 2017.

    2. (2)

       In December 2017, the defendant told Ms Britton at FPS that his anger towards his current DSO at the time (Ms Recquel Smith) triggered his negative thoughts about women and made a “veiled threat” that he will snap and whether the ESO Team wanted to see “the other side of me again… that side that listens to the voices”. This reference stands in contrast to the defendant’s evidence that he had a good relationship with Ms Smith.

    3. (3)

       In March 2018, Mr Terry O’Brien, the defendant’s DSO at the time, was removed after nine days in that service because of concerns for Mr O’Brien’s safety. The defendant had told his psychologist that the voices in his head were telling him to harm Mr O’Brien. Ms Thomas was appointed as the defendant’s DSO from 24 March 2018.

    4. (4)

       The defendant also heard voices in February, April and May 2018. He stated that he was being commanded by them.

    5. (5)

       On 7 September 2018, the defendant requested an urgent psychiatric review from the Maroubra Mental Health Clinic.

    6. (6)

       On 19 September 2018, the FPS notes indicated that the defendant was mentally unwell.

    7. (7)

       In his cross-examination, the defendant accepted that on 7 November 2018 he told Ms Carden, his DSO, he was having a paranoid schizophrenic crisis. In answer to a question that that statement did not indicate that his mental health was stable, he indicated that he had told the DSO that information because he was “feeling very paranoid”.

    8. (8)

       Ms Caffrey’s evidence was that, when the defendant’s mental health destabilised, he became aggressive and difficult to manage.

62. [158]

    The defendant gave evidence that he had insight into his offending and his intimacy issues. He was confident that his serious offending would not happen again. The defendant pointed in this respect to the help received from Ms Wojciechowski and his own private psychologist, Ms Cristelle Gamas, and his general practitioner. He also referred to his acknowledgment of sexual abuse and that he had addressed the factors that underpinned his offending, including that he himself was sexually and physically molested when living with his mother.

63. [159]

    It is evident that the defendant is endeavouring to grapple with the factors that underpinned his offending and to seek help through psychological treatment. However, I am not confident that the defendant has yet acquired an insight into his offending or the risks he poses, particularly in the context of intimate relationships with women.

64. [160]

    It is true the defendant received assistance from Ms Wojciechowski in addressing intimacy issues, and felt that that bore fruit. However, as previously found, Ms Wojciechowski is not the defendant’s psychologist and his perception of her occupying that role is demonstrative of risk. At the very least it could not be concluded that the defendant’s discourse with Ms Wojciechowski was enough to address his risk factors.

65. [161]

    The defendant stated that he had recognised that he was sexually abused as a child. However, save for a statement made to his DSO, Ms Rebecca Kaye, in December 2016, there was no disclosure of that fact to persons treating him so that it could not be concluded that the defendant has received specific treatment in that respect. Despite evidence to the contrary, there is no disclosure to any expert who assessed the defendant’s risk for the 2016 extended supervision order of sexual abuse as a child, contrary to the defendant’s evidence that he mentioned it to “one of them”. No reference was made of that fact to Mr Ardasinski (the defendant was not sure if he had mentioned to Mr Ardasinski that his aunt had molested him). No reference was made to the fact in the sessions with FPS.

66. [162]

    The defendant denied that he had not discussed his sexual abuse history with his private psychologist, although he conceded he had not worked through that issue with her. Further, he accepted in cross-examination that he had only seen Ms Gamas three times in 2018 (contrary to his evidence that he saw her every two or three weeks).

67. [163]

    As to the defendant’s evidence regarding his GP, he accepted in cross-examination that his doctor was not treating him for risk factors but managing stress.

68. [164]

    The State was correct to submit that the defendant has not stated that he felt guilty for the effect of his offending on victims throughout five risk assessments, ongoing interviews since 2016 with his DSO and ongoing regular sessions with FPS. The 2015 Risk Assessment Report noted that the defendant lacked concern for others and had a significant deficit with victim specific empathy.

69. [165]

    It may be further relevantly recalled, that the defendant told the experts that the serious sex offence was consensual and that he had not accepted responsibility for the 2003 violence offence.

70. [166]

    Further, the record of treatment and examination of the defendant does not bear out that he had adequately addressed his intimacy issues and hostility towards women. None of the FPS progress notes stated that intimacy notes had been addressed. Dr Payne observed, in her 2015 Risk Assessment Report, that the defendant was unable to identify strategies of sufficient number of efficacy to make and maintain a healthy relationship, notwithstanding his desire to settle down with an intimate partner. Mr Ardasinski, in his 2018 Risk Assessment Report, stated that the defendant had not yet addressed his intimacy issues.

71. [167]

    As earlier observed, the evidence in relation to Nicole and Ms Wojciechowski demonstrates the presence of an unacceptable risk relating to the unresolved nature of intimacy issues. Further, the FPS progress note dated 29 November 2017, refers to the defendant having made online contact with a female friend in Queensland and the defendant referring to that person as “needy” and as wanting more contact than he was prepared to give. He planned on rejecting her. I agree with the submission of the State that the defendant’s sentiments in that progress report echo his earlier descriptions of pathways to his offending. Reference may be made to Dr Payne’s 2015 Risk Assessment Report as follows:

CONCLUSION

1. [168]

   The variation application should be dismissed. I am not satisfied that the circumstances operating at the time of the making of the 2016 extended supervision order have sufficiently changed as to render that order unnecessary.

2. [169]

   Fundamentally, and for the reasons earlier discussed in this judgment, I do not consider the risk factors determined by Button J in the context of making an extended supervision order in 2016 have diminished or to such an extent as would warrant revoking the existing order.

3. [170]

   Nor do I consider his supervision under that order to have compounded or exacerbated that risk or diminish the prospects of rehabilitation (except in minor respects) but rather have mitigated an ongoing risk. Further, the defendant’s evidence as to the unreasonableness of his management has tended to underscore or highlight risk factors rather than suggest a diminution of risks warranting the removal of supervision.

4. [171]

   Overall, there remains a risk of the defendant engaging in serious offending if not under a supervision order, in particular, when engaged in intimate relationships.

5. [172]

   His hostility towards women and his relationship issues, particularly in relation to intimate relationships remains untreated. As Button J pointed out he received no effective treatment whilst in custody and his record of treatment and conduct, whilst the subject of the 2016 extended supervision order, does not bear out that he has adequately addressed those issues. The defendant has seen a private psychiatrist but he only saw her on three occasions in 2018 and did not address the particular issue of intimacy with her.

6. [173]

   Reference may also be made to his earlier reporting to experts as to the consensual nature of or the lack of responsibility for the serious sex offence and the 2003 violence offence. The defendant has not engaged in an intimate relationship whilst under supervision to test or examine this risk factor.

7. [174]

   I accept the contention by the State that the evidence suggests that the defendant lacks the tools to remove himself from high risk scenarios. In particular, the defendant’s conduct or behaviours regarding risk factors, whilst under the extended supervision order, underpin this consideration, particulars as they suggestive of a disproportionate emotional investment with certain persons engaged in or with his management. The behaviour is indicative of a volatile emotional “dysregulation” with respect to relationships.

8. [175]

   The defendant has an enduring antisocial personality disorder which according to expert opinion, represents a high risk of serious offending in intimate partner relationships and requires supervision (although Dr Adams did not consider the risk could be managed in the community).

9. [176]

   Whilst there has been no clinical finding that linked the defendant’s mental health to his history of serious offending, the defendant’s self-reported mental health decline is a future risk factor with the potential for aggressive behaviour. On the defendant’s account his mental health is not under control with manifestations of “voices” and concomitant aggressive behaviour.

10. [177]

    The defendant does not identify alcohol abuse or illicit substance abuse as a risk factor for his serious offending but the defendant is diagnosed with a substance use disorder and has returned positive test results for alcohol under the 2016 extended supervision order in more recent times (I do not accept his denial as credible). Alcohol is a factor that underpins his violence towards women.

11. [178]

    Finally, reference may be made to Button J’s first three factors in demonstrating risk and the drastic consequences to any victims, particularly an intimate partner, from re-offending, even with a moderate risk of recidivism for a serious sex offence.

12. [179]

    I agree with the State that this strongly points in favour of the protection and rehabilitation affected by an extended supervision order. The extended supervision order has been protective in monitoring the defendant’s mental health, responding to violent or aggressive behaviour, and responding to concerns regarding the defendant’s contact with women.

13. [180]

    In my view, notwithstanding some progress in the mitigation of risk, the defendant’s risk continues to warrant a conclusion that the Court may be satisfied to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious offence if not kept under an extended supervision order.

THE S 7(4) APPLICATION

1. [181]

   The relevant principles as to the preliminary hearing of such applications were recently discussed in State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971.

2. [182]

   Given the common approach of the parties, the conclusion as to the variation application warrants a conclusion that, for the purposes of s 7(4), an extended supervision order is justified.

3. [183]

   In any event, for the purposes of a preliminary hearing the requirements of s 5B have been satisfied. As to s 5B(a)-(c), the defendant is a 49 year old man, who has served a sentence of imprisonment for a serious offence, namely, a serious sex offence and, when the application by the State for a further extended supervision order was filed, the defendant was under such an order. I have earlier made a finding referable to s 5B(d).

ORDERS MADE ON 13 DECEMBER 2018

1. [184]

   In the result, the Court confirms the orders made on 13 December 2018.