State of New South Wales v KAS (Final)

1. [1]

   By an amended summons filed in Court on 26 September 2019, the plaintiff seeks a final order that the defendant be subject to a further period of extended supervision of 18 months duration commencing on 19 October 2019.

2. [2]

   The defendant opposes a further extended supervision order (ESO).

3. [3]

   Comprehensive and persuasive written submissions authored by senior counsel for the defendant set out why it is that the defendant has taken that position.

4. [4]

   Ms McGee, counsel for the plaintiff, made a substantial and focused case in favour of the making of the order.

5. [5]

   I was greatly assisted by the quality and forthrightness of the oral submissions of both counsel.

6. [6]

   The key issue in contest in these final proceedings is whether the statutory test has been met by evidence tendered by the plaintiff that would permit the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d) Crimes (High Risk Offenders) Act 2006 (NSW) (“HRO Act”).

7. [7]

   The evidence indicates that with the supports provided to the defendant by the ESO, he has been proudly drug free for a period of over 18 months. That is not a decisive consideration, but is one that has centrality to my decision.

8. [8]

   The issue validly raised by Ms McGee for careful evaluation by the Court is that this situation has been achieved and maintained with the comprehensive supervision provided by an ESO, and circumspection is required when assessing what the risk situation will be when all those supports are gone.

9. [9]

   For the reasons that follow, I have determined that the plaintiff has not satisfied the test under s 5B(d) of the HRO Act, and so my discretion to make an ESO is not enlivened.

10. [10]

    I reach that conclusion firmly bearing in mind the paramount consideration of the legislation being safety and protection of the community and that the defendant’s offending in the past, (although over 20 years ago), involved sexual offending against young children.

11. [11]

    I have also borne in mind that the defendant has already been the subject of an ESO of three years, made by Barr AJ in 2012: State of New South Wales v KAS [2012] NSWSC 1139, and the obvious difficulties that the defendant has had difficulty complying with the requirements of that ESO, particularly in relation to drug abstention. He was returned to custody a number of times, the details of which are set out in the judgment of Johnson J on the interim ESO application (State of New South Wales v KAS (Preliminary) [2019] NSWSC 924). The vast majority of those breaches were self-evidently tied to the difficulty the defendant was then having with remaining drug free.

12. [12]

    I have quoted extensively from the expert reports and evidence tendered on the application because:

    1. (1)

       The experts explain the evolution of the defendant’s drug issues, general attitude and compliance and thus reduction in risk;

    2. (2)

       Some experts (unusually) advocate against a further ESO and explain why they take that view; and

    3. (3)

       The experts identify issues and answer them in a way that informs my assessment of the level of risk presented by the defendant if he is no longer under supervision.

Chronology of key events

1. [13]

   The following has been extracted from the defendant’s submissions and provides a succinct summary of the index offending and sentencing and the ESO made by Barr AJ in 2012:

2. [14]

   The plaintiff describes the defendant’s offending during the period of ESO as follows:

3. [15]

   The defendant does not dispute this description of the ESO breaches and institutional misconduct.

Legislative scheme and legal principles

1. [16]

   The objects of the HRO Act are stated as follows:

2. [17]

   Section 5B of the HRO Act provides:

3. [18]

   Section 9 of the HRO Act provides:

4. [19]

   The following extracts from the plaintiff’s written submissions are agreed to correctly summarise the statutory framework and relevant principles:

The evidence

1. [20]

   In addition to the material tendered at the preliminary hearing – which had been substantially reduced at the encouragement of Johnson J – an approach I entirely endorse, was the following:

   1. (1)

      The reports of Court-appointed experts Dr Samson Roberts psychiatrist dated 24 August 2019 and Dr Andrew Ellis psychiatrist dated 1 September 2019;

   2. (2)

      Updated case note reports regarding the defendant’s management on the interim ESO;

   3. (3)

      A copy of the Prohibition Order from the Local Court at Blacktown issued on 13 June 2019; and

   4. (4)

      A s 21A statement of one of the victims of the defendant.

2. [21]

   Important oral evidence was also given by Mr Ardasinski, Senior Psychologist, Serious Offender Assessment Unit, which assisted in a more detailed understanding of the views expressed in his Supplementary Risk Assessment report dated 14 May 2019.

Section 9(3) considerations

1. [22]

   Given that the statutory test requires me to direct my attention to the risks associated with the defendant if not kept under supervision under the order (s 5B(d)) it is self evident that I need to direct my attention to the risk he presents now, rather than the risk he presented in 2012 when the initial ESO was made, or the risk he presented back in the late 1990s when he committed the index offending.

2. [23]

   Whilst previous assessments and risk assessments are mandatory considerations under s 9(3), a notable feature of this particular defendant is the progress he has made, albeit shakily at the start, with his rehabilitation from substance abuse. It is a feature of all of the assessments of psychiatrists and psychologists and Corrective Services staff that substance abuse had a significant role in the index offending, the defendant’s compliance with the previous ESO and his attitude to rehabilitation both whilst in custody and out of custody and in the community under the requirements of the ESO.

3. [24]

   I will deal with each of the mandatory considerations noting that there is some cross-over between the statutory considerations in s 9(3), particularly in relation to the aspects addressed by Dr Ellis, Dr Roberts and Mr Ardasinski.

4. [25]

   Dr Samson Roberts, a general and forensic psychiatrist, interviewed the defendant on 5 August 2019. Dr Roberts had previously provided a report on the defendant in respect of the first ESO in August 2012. He suggested that his current report should be read in conjunction with the 2012 report.

5. [26]

   Directly relevant to the current risks presented by the defendant were Dr Roberts’ observations that the defendant had remained abstinent from drugs for two years and had been in his own accommodation for 13 months. Dr Roberts noted that the defendant’s release in 2011 was, according to the defendant, without appropriate support, having had no drug and alcohol counselling set up to help him. He felt pessimistic and unstable at that time.

6. [27]

   In contrast, Dr Roberts outlined the current circumstances as positive, with the defendant undertaking drug and alcohol counselling once a week and attending two Narcotics Anonymous (“NA”) meetings per week. Dr Roberts accepted the defendant’s account that he was no longer preoccupied with drugs, had a network with the NA group, had improved his family relationships, and was in a relationship with a supportive woman. The defendant said to Dr Roberts that he was “not even close to being the person he was back then” and that he “feels that he is in charge for the first time in a long time”.

7. [28]

   Dr Roberts pointed out that there had been no sexual offending, despite opportunities, since 2012, noting that to an extent those opportunities were somewhat limited.

8. [29]

   In terms of psychiatric diagnosis, Dr Roberts concluded that it was appropriate to consider the defendant as suffering from a generalised anxiety disorder, although Dr Roberts said that it is apparent that his condition is mild and he has developed skills to moderate it and prevent it from intruding into his day to day functioning. Dr Roberts also noted the history which included a prominent substance use disorder that had been in remission for 18 months by the time of the review in August 2019. [9] Dr Roberts also concluded that the diagnosis of paedophilia “remains relevant, notwithstanding the reservations of other experts.” [10]

9. [30]

   In respect of the substance use disorder Dr Roberts said:

10. [31]

    This analysis is in contrast to his concerns in 2012 that the defendant was then at high risk “…of reoffending…with respect to a serious sex offence…[as he had had] insufficient treatment aimed at addressing his risk factors...” [12]

11. [32]

    Dr Roberts reviewed the ESO completion report of Ms McMillan dated 26 November 2018, the Department of Corrective Services case note reports, and the supplementary risk assessment report of Mr Ardasinski dated 14 May 2019 and concluded, in terms of the defendant’s risk of committing a further serious offence, in this way:

12. [33]

    In response to questions directed to the appropriateness of proposed conditions and the length of a further ESO, Dr Roberts expressed the view that the conditions proposed were “appropriate to [KAS]’s ongoing therapeutic needs from a psychiatric perspective and to ensure that any escalation of risk associated with serious offending is appropriately managed.” [14]

13. [34]

    In response to a question about particular treatment KAS should engage in to address any present psychiatric or psychological conditions and to address any factors which contribute to his risk of committing a serious sex offence, Dr Roberts noted that the current therapeutic approach had been beneficial, and that the defendant should continue to participate in regular NA meetings, remain on buprenorphine, and see a drug and alcohol counsellor as well as a clinical psychologist.

14. [35]

    Dr Roberts concluded overall, having regard to the nature of KAS’s psychiatric conditions:

15. [36]

    In addressing a question about length of an ESO, Dr Roberts again made the observation that KAS is at low risk of reoffending, but that given a potential for a relapse to substance use:

16. [37]

    In terms of other factors, Dr Roberts volunteered that KAS’s level of stability, his apparently sincere motivation and the extent of support that he has obtained represent meaningful changes which create the impression of an appreciable reduction in risk since the assessment in 2012. [17]

17. [38]

    Dr Andrew Ellis assessed the defendant on 23 August 2019. He refers to having reviewed a large volume of documents. He noted the defendant’s psychiatric history, substance use and addiction history, medical and criminal history, background and development, psychosexual history and received an account of the offending behaviour.

18. [39]

    Interestingly, Dr Ellis has obtained a reasonably detailed account of the defendant’s attitude to his offending behaviour from the defendant himself. [18] Dr Ellis notes that the defendant told him that he is “absolutely ashamed” of his offences, “it is disgusting”, and said “the children are vulnerable, do not know any different and would not want sexual activity with adults.” [19]

19. [40]

    In terms of current psychiatric diagnosis, Dr Ellis noted that the symptoms of agoraphobia had responded favourably to anti-depressant medication and psychological therapy and should be considered to be in remission. He did however, confirm that a diagnosis of paedophilia remained. The defendant also meets the criteria for a substance use disorder, although in early remissions while on replacement therapy. The defendant would still be considered to meet the criteria for antisocial personality disorder. [20]

20. [41]

    In the part of his report dealing with the risks posed by the defendant, Dr Ellis sets out important limitations of risk assessment techniques:

21. [42]

    Propensity to mental state instability and substance use have a role in future offending risk:

22. [43]

    Overall, Dr Ellis concluded:

23. [44]

    Assessing the proposed treatment and supervision and his improvement to date, Dr Ellis said:

24. [45]

    Dr Ellis was directed by the questions posed in the report to address the usefulness of reporting and monitoring obligations and the proposed treatment plan. About this, Dr Ellis said:

25. [46]

    KAS was assessed by Ms Britton, psychologist, in 2002 in the context of preparation for sentence for the sexual offending with his de facto step-daughter who was eight years old at the time. This report is instructive in terms of demonstrating how far the defendant has come since that time in his improvements in attitude and understanding of the effects of his offending. His risk assessment under the Static-99R was medium to low with a 9% rate of sexual recidivism over a five year period when compared with the normative population. The point was made by Ms Britton, and has been made by others who have administered these tests, that as a statistical category referring to a population of offenders with similar historical characteristics, it does not tell us whether KAS is likely to be one of the 9% who go on to commit further offence, or one of the 91% who do not.

26. [47]

    Ms Britton then went on to analyse his dynamic risk factors which were very different to the ones that present now. At that time, seventeen years ago, there were concerns regarding KAS’s psychological makeup including drug induced psychotic episodes and sexualisation of pre-teenage family members, lack of sexual and general self-regulation, poor attitude towards women as indicated by assessments in 2001 and 2000, confusion or denial regarding cognitive aspects of his behaviour and his sexualisation of his step-daughter, longstanding issues of social isolation and social phobia and longstanding reliance on alcohol and other drugs to cope. It was highlighted, as it is with almost every risk assessment of KAS, that a combination of being affected by drugs and/or alcohol when there are potential victims around in an unsupervised setting, heightened risk.

27. [48]

    In 2012 Ms Purcell, specialist psychologist, from the CUBIT program prepared a report on KAS’s participation in that program between August 2011 and April 2012. Ms Purcell described CUBIT as a custody based residential therapy program for men who have sexually abused adults and/or children and that this program balances risk management with a “strengths-based” approach to treatment for individuals with moderate to high risk needs. Participants are assisted to develop the skills, attitudes, values and resources identified as necessary to lead a fulfilling and offence-free life. This is primarily achieved through cognitive behavioural therapy with other approaches such as motivational interviewing and is facilitated in an open group format.

28. [49]

    Ms Purcell identified difficulties KAS had in custody, in particular a large number of institutional charges, the majority of which related to illicit drug use. Ms Purcell also noted that his participation in CUBIT was inconsistent in the initial stages but improved, but noted that an additional treatment barrier was his continued use of illicit substances. [26]

29. [50]

    There was development in KAS’s understanding of offending behaviour, which initially indicated some reticence in sharing details of his offending when in a group setting, which Ms Purcell assessed as being related to the shame associated with this offending. KAS had a tendency to look for opportunity to shift blame to others but has developed an intellectual understanding of the physical, emotional and psychological consequences of sexual assault. KAS acknowledged the hurt caused to his victim’s family, and expressed remorse about it and the impact of it. [27]

30. [51]

    In terms of pathways to offending it was identified that in the past, as a result of the deprivations of his upbringing he had pervasive feelings of inadequacy and failure and put on a front of bravado to cover for this. [28]

31. [52]

    On application of the static and dynamic risk evaluations, Ms Purcell noted the use of these instruments as having limitations, echoing what Ms Britton said about them being reflective of groups rather than individuals and so it will not necessarily directly reflect the recidivism risk of an individual. [29]

32. [53]

    KAS’s risk of reoffending was assessed by Ms Purcell on the Static-99R as moderate to high. In terms of dynamic risks, identified issues were poor history of self-regulation leading to drug use and alcohol abuse, and a concern that he had continued to employ those coping strategies but had developed a recognition of the destructive nature of this behaviour and an insight into the range of other strategies he could use to manage the negative emotions he had. [30]

33. [54]

    Other risk issues identified by Ms Purcell were intimacy deficits, cooperation with supervision, sexual self-regulation, potential to resort to poor social influences as well as some weakness in reading potential warning signs. Ms Purcell concluded that KAS was assessed in the moderate-high risk of sexual re-offending relative to other adult male sexual offenders. Strategies were set up to help manage his dynamic risk factors including community-based forensic psychology services, drug and alcohol support, compliance with appropriate medications to manage anxiety, and supervision when in contact with young female children. Ms Purcell noted that given his birthday coming up in 2013, his Static-99R risk category would alter, which would lead him to move down to the moderate- high risk category.

34. [55]

    In October 2018, Ms Tulloh, a senior psychologist from Corrective Services Risk Management Programs, prepared a report for the purpose of addressing the question of whether the State should make a fresh application under the HRO Act. The assessment was comprehensive. It analysed the background of offending, the ESO in 2012, the various assessments carried out by psychiatrists and psychologists prior and completed a current risk assessment of reoffending. Ms Tulloh observed that the breaches under the ESO 19 times during the 6 years between release on the ESO were in the majority, breaches due to ongoing abuse of illicit substances. Ms Tulloh noted that since February 2018 KAS had remained in the community without breaching his order and was currently compliant with all aspects of the condition of his ESO.

35. [56]

    Ms Tulloh assessed the defendant’s current assessment of risk as in the medium-high risk range and that his static risk of sexual reoffending fell in the above average range (or Level IVa), and an assessment of dynamic risk factors that he then had, fell in the “moderate” risk category relative to other male sexual offenders.

36. [57]

    Ms Tulloh concluded: [31]

37. [58]

    Ms Tulloh’s report then sets out in detail the parameters she considered in reaching this view, including positive reports from Ms Agnew, (KAS’s FPS psychologist), who reported that KAS was “progressing well” and that KAS had some awareness of his risk factors and triggers for reoffending and that he had demonstrated some improved problem-solving skills and his ability to manage his risk factors in the community was improving. [32]

38. [59]

    Ms Tulloh noted previous risk assessments in 2012 by Ms Sheehan and Ms Purcell and in 2015 by Mr Ardasinski. Ms Tulloh noted in respect of the previous risk assessments that KAS had consistently scored in the high risk range and explained “the reduction in risk level over the course of these assessments can be accounted for by reduction of scores around his drug and alcohol use and improvements in his attitudes and orientation towards offending and community supervision.” [33]

39. [60]

    Ms Tulloh also identified a number of risk factors and corresponding positive factors such as in the past displaying a tendency to gravitate towards anti-social and drug using peers but now having regular supportive contact with his mother and his sister, [34] some improvement in his impulsive behaviours, some progress in his cooperation with supervision and compliance with his ESO. Substance use was identified as his most significant risk factor for further sexual and general reoffending and it remained as an identified risk factor, noting that relapse into substance use may be precipitated by major life events such as a death in the family or a relationship breakdown. [35]

40. [61]

    Ms Tulloh identified a number of demonstrated positive changes while KAS has been under the ESO and in particular, reformation from drug use, positive engagement with all supports, demonstration of strategies to avoid drug use, better general functioning in areas of self-regulation and progressing well with goals, developing self-management plans and building pro-social networks, improved interactions with others, activity scheduling and goal-setting, and participating in interventions to address drug use. [36]

41. [62]

    Ms Tulloh concluded that there was still a concern that KAS had not been able to progress through all the stages of supervision yet and therefore to demonstrate that he can maintain the positive life changes once the restrictions placed on him have reduced. [37] (I note that this was a matter to which great weight was given in the submissions made on behalf of the plaintiff and understandably so). Ms Tulloh went on to observe that: [38]

42. [63]

    In May 2019 Mr Ardasinski, senior psychologist, carried out a supplementary risk assessment report. I place great weight on this report because of its comprehensive nature, its currency and the assistance that Mr Ardasinski gave by way of explanation of some aspects of the assessments during his helpful oral evidence.

43. [64]

    In addition to a comprehensive document review, the report was based on a lengthy interview with the defendant. By this stage, the defendant had progressed to stage 3 of the electronic monitoring regime, that is, he was allowed to not be subject to weekly schedules of movements or curfews but was still electronically monitored.

44. [65]

    Mr Ardasinski concluded: [39]

45. [66]

    Mr Ardasinski referred to the potential Child Protection Prohibition Order (“CPPO”) being sought by NSW Police to provide a further layer of protection of the community given the past offending. Mr Ardasinski noted: [40]

46. [67]

    Mr Ardasinski noted that KAS remained deeply ashamed of his actions, does not deny them, and whilst not forthcoming with details about them, when asked in interview KAS said “it’s not something I’m proud of – feel disgusted actually”, explaining that around that time was a very dark time in his life.

47. [68]

    Mr Ardasinski also referred to an intimate relationship having recently been commenced and that KAS had now been stable in the community for 15 months without a breach. Mr Ardasinski noted negative drug tests since KAS’s last release in February 2018, and that NA meetings were important in keeping KAS motivated and clean and sober.

48. [69]

    In terms of previous diagnosis of poly-substance use disorders, Mr Ardasinski said: [41]

49. [70]

    Mr Ardasinski raised some doubt about the appropriateness of the previous diagnosis of paedophilia, taking the view that when assessing risk scenarios for possible future offending, KAS should be categorised as a predominantly intra-familial offender and that it may well be that he could be appropriately categorised as having an anti-social disorder which raises a real question as to whether he would also be high risk on the risk dimension of deviance (or atypical sexual interests) or whether he has been inappropriately labelled a paedophile by virtue of one aspect of his anti-social behaviour pattern. [42]

50. [71]

    Mr Ardasinski explains that evidence from KAS’s OIMS case notes throughout his ESO suggests that he has engaged in consenting relationships with adult females, including his noted inappropriate affair with a staff member who was in her mid-30s, and there have been no concerns about child abuse material or any other markers of deviance. Mr Ardasinski goes on to say that: [43]

51. [72]

    Mr Ardasinski also noted KAS’s positive engagement with Dr Agnew, clinical psychologist, more recently. [44] He also noted the limitations of the risk assessment tools used, noting that when KAS was recently assessed using the LSI-R dynamic risk factors he was assessed as falling within the low to medium risk category for general and violent offending.

52. [73]

    Mr Ardasinski explained the background to the static risk factors assessment – the Static-99R – explaining that it does not change, and that Hanson & Ors had carried out some research that suggested that for every five years that a sex offender remains offence free after the day they are released from their index sex offence, the risk of reoffending halves. Mr Ardasinski acknowledged that there was some lack of clarity about the study sample and that the study sample did not necessarily equate with an offender who is under supervision by something equivalent to an ESO, but that all things considered KAS “no longer poses that above average risk. I think the risk is closer to that of an average sex offender.” [45]

53. [74]

    Mr Ardasinski also made the point that the average risk of reoffending by a sex offender is statistically low in any event so taking into account all sex offenders that are released and then reoffend, the re-offence rates are between 10 and 17% typically. [46]

54. [75]

    In his report, Mr Ardasinski explained that recent scoring by Ms Tulloh included a score on one item (‘Deviant Sexual Interests’) as 2, and in his view it should be a 1, which did not change the final category but he agreed that KAS would no longer fall within the highest category on the dynamic risk factors actuarial assessment. [47] He also highlighted the limitations on the use of instruments such as the Static-99R or Static-2002R because it groups individuals and will not necessarily directly reflect the recidivism risk of an individual offender. [48]

55. [76]

    In re-examination by senior counsel for the defendant, Mr Ardasinski confirmed his opinion set out in paragraph [50] of his report that given the research of Hanson & Ors, he considered that KAS “by now ought to be managed as ‘Level III’ offender (‘Average’ risk).”

56. [77]

    Mr Ardasinski carried out the useful task in his report of reflecting on the risk factors highlighted by Ms Tulloh updating the position in respect of each of those factors: KAS’s substance use, impulsivity, intimacy deficits, significant social influences, negative emotionality – personality disorder and anxiety/depression, compliance with supervision and sexual self-regulation deficits: [49]

57. [78]

    Mr Ardasinski also details current potential protective factors, namely his family, his new relationship, his NA meetings and associated supports and professional supports through his FPS psychologist.

58. [79]

    In conclusion, Mr Ardasinski says: [50]

59. [80]

    Mr Ardasinski considered with some care that there is progression along the desistence trajectory, to be able to exist in the community under a less stringent supervision regime such as that entailed by a CPPO which could limit access to children and limit KAS’s ability to seek out children. However he noted that this may not have sufficient monitoring capability to restrict KAS’s capacity to return to risky situations such as drug use. Mr Ardasinski demonstrated his understanding that the level of monitoring would be by police, and that it would be more sporadic than under an ESO, and that there is no power for the police to have KAS submit to random breath testing or mobile drug testing. Mr Ardasinski also noted that a CPPO does not have power to direct KAS to do anything and that there is still a risk associated by a rejection by any of his current social support, destabilisation in relationships or return to drug or alcohol abuse and no-one would be watching if that happened after the end of his ESO. [51]

60. [81]

    These considerations have been dealt with in the evidence regarding ss 9(3)(b) and 9(3)(c).

61. [82]

    Ms McMillan, Community Corrections Officer from the Metropolitan ESO Team, has provided two reports; one dated 26 November 2018 and the other 24 May 2019. The initial report observed that the establishment of family support was starting to occur at that time, that there was historical struggling with maintaining abstinence from illicit substances but he had demonstrated compliance and his longest period of abstinence since starting to use illicit substances at the age of 13. He was frequently drug tested and returned negative for illicit substances. She noted as positive matters: [52]

62. [83]

    Ms McMillan went through the previous failures to comply with the previous ESO requirements in 2012 and following. She then discussed the current risk management strategies in the context of her interview with the defendant and concluded that overall he responded well to the intensive supervision offered by the ESO since February 2018 [55] and highlighted the positive aspects of the re-establishment of contact with family. She noted a planned focus on family and community based activities, post supervision supports, monitoring his continued stability and ongoing compliance with mental health, substance abstinence and ESO conditions and directions. [56]

63. [84]

    Ms McMillan highlighted that this stepping down process was in the context of her understanding that there was no recommendation for a further ESO order to be sought.

64. [85]

    In her supplementary report in May 2019, Ms McMillan had, in addition to the interview with KAS, contacted his partner, mother, sister and psychologist, analysed various records and reported favourably on his continuing abstinence compliance, noting no adverse behaviours despite the reduction in monitoring and recording his mature response to being informed that a further application to the Supreme Court for a further ESO had been made.

65. [86]

    There is then a risk management plan set out, based on the assessment by Mr Ardasinski, and some suggested strategies, should an ESO continuation be ordered by the Court.

66. [87]

    In paragraphs [48]-[54] I have dealt with the CUBIT program report of Ms Purcell.

67. [88]

    The defendant is subject to a prohibition order under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). The order was made in June 2019, and outlines a number of prohibitions including engaging in specific conduct in respect of any person under the age of 18 years. Particularly relevant is that he is not able to remain or reside in any residential premises with any person under the age of 18 years unless in the company of a responsible adult, he cannot befriend any person whom the defendant knows to be a parent, guardian, person with care or control or sibling of a child under the age of 18 years unless in the company of a responsible adult. He is prohibited from using any social media or internet based messaging account in any name other than his own. He cannot use or possess any alcohol; he cannot use or possess any illicit drugs. This order has been made for a period of 5 years and entails potential penalties for contravention of a fine of $55,000 and/or 5 years imprisonment.

68. [89]

    Whilst it is obvious from the material set out in this judgment that the defendant had significant difficulties complying with the initial 3-year ESO in 2012 and following, in the last 18 to 20 months there has been significant improvement with compliance, in particular the demonstrated ability to cease substance use. All reporters comment on the positive nature of this as well as the reconnection with family and his current relationship supports.

69. [90]

    The defendant has been subject to a CPPO since June 2019 and there has been no report of a breach of that order. His recent compliance in the last 18 to 20 months with ESO requirements has been good.

70. [91]

    The defendant has been subject to a CPPO since June 2019 and there has been no report of a breach of that order.

71. [92]

    This material has been set out in the chronology of key events and offending under the previous ESO in paragraphs [13]-[15] of this judgment.

72. [93]

    The defendant was first sentenced by Bellear DCJ in 2000. His Honour had regard to the defendant’s guilty plea, his demonstrated remorse and contrition and his somewhat difficult upbringing. He was sentenced in 2002 again by Bellear DCJ. Again the defendant pleaded guilty, this time to two counts of indecent assault on a child under 10 and three counts of sexual intercourse with a child under 10. Bellear DCJ noted the defendant’s mental health history and history of drug and alcohol abuse and adjusted the sentence to recognise special circumstances in the form of the need for ongoing therapy regarding the sexual offending, his psychiatric diagnosis and the need for the defendant to be supervised by probation and parole on release.

73. [94]

    There is nothing more to add.

Section 21A statement

1. [95]

   The plaintiff tendered a statement authored by one of the victims of the defendant’s offending. Section 21A provides for the contacting of victims where there is an application for an order under the HRO Act so that they have an opportunity to place before the Court a statement containing their views about the order being sought, any conditions to which the order may be subject and any other matters prescribed by the regulations. In this case, the s 21A statement outlined the devastating effect that the defendant’s offending has had upon the victim and the effect it has had on her life and her ability to trust. I am of the view that I should take the contents of the statement into account on the question of unacceptable risk, given the requirement in properly addressing that consideration, to look at both the probability of an event occurring as well as the gravity of the consequences. The statement provided gives me an indication of the effect of the offending on that person and that material, along with other material tendered in the proceedings, assists in gaining an understanding of the potential gravity of any future offending.

Submissions

1. [96]

   Detailed written and oral submissions were provided by Ms McGee as to why the Court should be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. She emphasised, validly, that the defendant has been comprehensively supervised and that this comprehensive supervision is a significant protective factor and it remains entirely untested as to how he will react without these comprehensive supports readily available to him.

2. [97]

   Ms McGee emphasised the reports of Dr Ellis and Dr Roberts reflect that any meaningful reduction in risk takes a number of years of extensive interventions in the community and that whilst the defendant has made very good progress, he is simply “not there yet.”

3. [98]

   Ms McGee emphasised that the progress made in remaining drug free for 18 months is only part of the issue and that the context of this must be borne in mind. There is a history of relapsing in the past, the chronic and longstanding nature of the drug and alcohol issues, his relationship issues and his personality issues, all of which have been improved by ongoing treatment and intervention, but which do persist.

4. [99]

   It was also emphasised by Ms McGee, again appropriately, that there is a diagnosis in the nature of a personality disorder which would remain and is pervasive and so there is a significant risk that if something goes wrong, the defendant will revert to previous poor choices for support, such as drug use, which will cause his risk of sexual offending to escalate immediately and there is no-one there to observe him losing control.

5. [100]

   Mr Stratton SC submitted that I should place significant weight on the thoughtful and persuasive evidence of Mr Ardasinski.

6. [101]

   Whilst Dr Ellis diagnosed the defendant with an antisocial personality disorder, Dr Roberts did not.

7. [102]

   Mr Stratton emphasised that Dr Ellis’s view that the defendant had a moderately high risk of reoffending did not take into account Mr Ardasinski’s more nuanced view based on the research by Hanson & Ors that Mr Ardasinski has explained in his evidence. It was submitted I should take care in placing much weight on the 2012 assessments of Dr Ellis and Dr Roberts given that there had been an appreciable reduction in risk since the assessments in 2012, as made clear in the 2019 report of Dr Roberts.

8. [103]

   Mr Stratton also emphasised that given the opinions of the Corrective Services staff who actually worked with the defendant under the ESO, significant weight should be given to those opinions that the defendant has progressed well and whilst they are not psychiatric or psychological experts, they add to the positive expert opinion which all goes the one way and that is towards the statutory test not being met by the evidence.

9. [104]

   Mr Stratton submitted that the effect of the plaintiff’s position was that whilst things may be going well now, if something changes, then the defendant might go off the tracks. This is obviously a submission that could be made in 18 months at the end of a further ESO and accordingly little weight should be given to that submission.

10. [105]

    Mr Stratton highlighted that there would be something fundamentally wrong with in effect using the fact that the defendant has behaved so well during the last 18 months under the current regime of supervision, as something that somehow cannot be used to demonstrate his potential to do well without such supervision, or that such supervision is essential for him to do well.

11. [106]

    Ultimately, of course, the test is not of what would be optimal or helpful for the defendant to have by way of supports in the community but whether the Court can be satisfied to the high level required by the legislation that he poses an unacceptable risk of committing another serious offence if not kept under supervision.

Consideration

1. [107]

   I am of the view that the statutory test has not been met by the evidence tendered by the plaintiff and I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

2. [108]

   I was significantly persuaded by the cogency, thoroughness and thoughtfulness of the evidence of Mr Ardasinski, as to the salient risk being less than strict application of the assessment tools may suggest.

3. [109]

   Whilst there is some risk, and it would be ideal, helpful and constructive to have the defendant supported by further supervision in the community by Corrective Services staff and supports, this is not the test I must apply under the HRO Act, and the plaintiff’s application fails.

   1. (1)

      The summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.