State of New South Wales v Doherty (Final)

1. [1]

   HIS HONOUR: By summons filed on 21 October 2021, the State of New South Wales (“the plaintiff”) sought final orders pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant, Stuart Doherty, be subject to an extended supervision order (“an ESO”) for a period of three years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in a schedule to the summons.

2. [2]

   On 20 August 2021, N Adams J made the preliminary orders that were sought in the summons, which included an interim supervision order (“an ISO”) for a period of 28 days, to commence on the expiry of the defendant’s current ESO.

3. [3]

   The plaintiff first sought supervision orders in respect of the defendant by a summons filed on 5 September 2018, at which time he was serving a total sentence of 15 years’ imprisonment following pleas of guilty in the District Court to charges of aggravated sexual assault, indecent assault and supplying a prohibited drug. On 26 October 2018, Fagan J made an ISO pending a hearing to consider an ESO. The defendant’s progress since then is replete with missteps by him.

4. [4]

   The ISO was extended on two occasions, the final time being until 28 January 2019. On 31 December 2018, the defendant was arrested and charged with two breaches of the ISO, being his failure to comply with a direction from his Departmental Supervising Officer (“DSO”) to attend upon certain psychological and medical services. He was refused bail, which had the effect of suspending the ISO’s operation pursuant to s 10C(1A) of the Act. Following pleas of guilty, the defendant was sentenced to 8 months imprisonment with a non-parole period of 6 months. That sentence expired on 31 June 2019. The prison sentence had the effect of pausing the ISO, so that it would not expire until 28 July 2019.

5. [5]

   On 19 July 2019, I made an ESO in respect of the defendant for a period of 12 months from 28 July 2019: State of New South Wales v Doherty (Final) [2019] NSWSC 920 (“the 2019 judgment”). The defendant was subsequently convicted and sentenced to terms of imprisonment for breaches of the ESO, resulting in multiple suspensions of the ESO, so that it has not expired. The defendant is presently in custody awaiting a hearing of further charges.

6. [6]

   The defendant’s background, his criminal history and his progress in prison from 2003 and while on parole until March 2019 is as it was summarised in the 2019 judgment. With appropriate modifications, it is as follows.

The defendant’s background

1. [7]

   The defendant was born in 1965 and is aged 57. Court and forensic reports that detail or summarise his relevant background are to the following effect. The defendant was born and raised in Sydney. He was his parents’ sole child, and has older siblings from a previous relationship of his mother. His father left the family before the defendant was born, but returned for “a short period” when the defendant was aged about five. He was raised by his mother, with whom he had a close relationship, to the point that it was described by a Probation and Parole Service (now known as Community Corrections NSW) case worker, in 1990, as one of co-dependence. In 1990, when aged about 25, the defendant claimed that the only contact he had with his father was two phone calls in his teenage years.

2. [8]

   The defendant has alleged that, when he was a child, he was physically and sexually abused by a close family relative. The defendant began absconding from home when aged three. When aged five, he was cared for in a Burnside institution for a period of between six and 12 months. When aged six, he was enrolled in a boarding school in Bowral for a year, possibly paid for by his grandmother, and thereafter resided alternatively with his mother and grandmother.

3. [9]

   The defendant has claimed that he fractured his skull when he was about six months old and suffered another head injury when aged about six, losing consciousness on both occasions.

4. [10]

   The defendant completed the School Certificate in 1980, when aged 15. His employment history comprises “factory work”, scaffolding and concreting. By 2004, when he was aged 39, his longest period of continual employment had been 18 months.

5. [11]

   As to his drug and alcohol history, the defendant’s first instance of drug use was the consumption of cannabis when he was aged about 13 or 14. He progressed to heroin when aged 21 or 22. After a few months, the defendant had a daily habit and continued to use heroin for 10 years, ceasing regular use when he entered a methadone program. He ceased using methadone in approximately 2005, when he would have been aged about 40. The defendant used Rohypnol, a benzodiazepine, intermittently, at least in the 1980s. In about 2002, he started using methylamphetamine. By 2003, he had developed an amphetamine dependency. The defendant has also taken cocaine and LSD, but not with any frequency. Following his mother’s death in 2017, he started drinking alcohol.

6. [12]

   In 2004, the defendant told Dr Stephen Allnutt, forensic psychiatrist, that his longest relationship had lasted two years and the longest period he had lived with anyone was 18 months. His last relationship at that time had been in 2000. The defendant has a daughter, born in about 2002.

The defendant’s criminal history

1. [13]

   The defendant’s criminal history commenced in 1983, when he was aged 16 and received recognizances for two stealing charges. Further charges followed in quick succession over the next five years for a range of dishonesty matters, that are consistent with the profile of a person with a serious drug addiction. By the time of his sentence in 1990 for a manslaughter offence, the defendant’s record for non-violent offences included 14 counts of stealing or break enter and steal, two counts of receiving, 13 counts of deception, one count of obtaining a financial benefit, one count of false pretences and two counts of goods in custody. His first conviction for an offence involving violence was in 1986, being counts of assault police and resist arrest.

2. [14]

   In 1989, the defendant was charged with murder. At trial, he was found guilty of the alternative count of manslaughter. He was sentenced by Hunt J for that offence and for an offence of assault and robbery, committed nine days before the manslaughter.

3. [15]

   The facts of the assault and robbery, according to Hunt J’s remarks on sentence, were that the defendant and a female companion noticed the victim late at night in a shop, “slightly drunk”, with a pay packet protruding from one of his pockets. They followed him home, waited until they thought he would be asleep and climbed through an open window. The victim awoke while they were taking the pay packet. The defendant punched the victim, rendering him unconscious. The defendant and his companion put the victim back in his bed and left. The victim suffered partial paralysis to one side of his face, following the bruising of a facial nerve. The degree of force required to produce the injury was assessed by the treating doctor as “severe”.

4. [16]

   The factual basis of the manslaughter sentence depended largely on the defendant’s explanation to police, being that he and a co-offender, at the defendant’s suggestion, re-visited the same victim, nine nights later. The defendant entered through a window and then let in his co-offender. The victim again awoke as the defendant was looking for his money, and after a short struggle, an opportunity arose for the defendant and co-offender to leave. Instead, the defendant hit the victim to his head six times, being four punches and two “slaps”. The co-offender then hit the victim “a few times” across the stomach with an iron bar.

5. [17]

   The victim was still conscious and denied he had any money. The two offenders found $50 hidden in his underpants, which they took and left. The victim was found deceased two days later. The cause of death was blood loss resulting from injuries to his spleen and a kidney. Other injuries included five fractured ribs, blunt instrument blows to his back, lacerations to his face and mouth, a fractured nose and multiple bruises to the face, shoulder, chest and both hands. There was bruising to a “substantial area” of the left, middle and back of the inside of the victim’s skull. The Crown case was circumstantial, based on the unlawful and dangerous acts of the co-offender causing the victim’s death by the injuries inflicted with the iron bar, the defendant being an accessory.

6. [18]

   The defendant claimed that, at the time of the manslaughter, he was under the influence of both heroin and Rohypnol. Hunt J did not accept that explanation, primarily because it was offered late, but did accept that the offences were drug-related. Hunt J rejected an assertion by the defendant that the offences had deterred him from further drug use or drug-related criminal activity. His Honour also noted that the defendant had “an appallingly unsatisfactory lack of co-operation with the Probation and Parole Service upon each of his many previous contacts with it in the past”. His Honour imposed an aggregate sentence of 7 years and 4 months. This was made up of a term of 2 years imprisonment for the assault and robbery and a non-parole period of 4 years imprisonment for the manslaughter, with a balance of term of 1 year and 4 months. The sentences for the two offences were to be served consecutively. The defendant was eligible for release on parole on 7 January 1996.

Criminal history from January 1997 to August 2003

1. [19]

   The defendant was not released to parole until 30 January 1997. Between August 1998 and August 2003, he was convicted of the following offences: three counts of shoplifting; two counts of goods in custody; three counts of enter enclosed lands; two counts of larceny; one count of break, enter and steal; two counts of furnish false information to licensee; five driving offences; three counts of possess prohibited drug; one count of supply a commercial quantity of cannabis; one count of attempt escape from lawful custody; one count of common assault; one count of assault occasioning actual bodily harm; one count of carry a cutting weapon; and one count of possess or use a prohibited weapon.

2. [20]

   In that five-year period, the defendant received multiple prison sentences, the shortest being a fixed term of 1 month and the longest a sentence of 2 years with a non-parole period of 18 months, which was for an offence of assault occasioning actual bodily harm, committed on 15 March 1999. That offence occurred when the defendant and a woman who was his girlfriend at the time were travelling on a train. His girlfriend lied to the defendant, saying that a man on the train, who was the victim, had grabbed her on her crotch. The defendant put the victim in a headlock and attempted to stab him in the neck with a blood-filled syringe. The victim felt a prick but escaped. The defendant gave chase through the train, until he was subdued by passengers and guards. The defendant told police that he had been diagnosed with Hepatitis A and C. The victim was not infected.

3. [21]

   On 15 May 2003, the defendant assaulted a girlfriend with whom he had been cohabiting for two weeks. He punched her twice to the face, the second time about five minutes after the first, while she was still on the ground as a result of the first punch. He admitted the assaults to police, explaining “I’m not going to deny it, she wouldn’t let me out, I hit her a few times”. He was on bail for those matters at the time he committed the index and related offences, eventually receiving concurrent sentences of 3 months imprisonment.

4. [22]

   The defendant’s relationship with the Probation and Parole Service continued to be problematic. He was subject to a supervised parole order that commenced on 15 September 2000 and expired on 15 March 2001. However, soon after his release, he was breached for failing to report. He was given a warning, but eventually parole was terminated as he was unresponsive to supervision.

The defendant’s subsequent criminal history including the index offences

1. [23]

   In August 2003, when aged 38, the defendant was charged with, and ultimately pleaded guilty to, three counts of aggravated sexual intercourse without consent. The defendant also pleaded guilty to two counts of indecent assault on the same indictment. An offence of aggravated break and enter and commit serious indictable offence was taken into account on a Form 1 in respect of one of the counts of aggravated sexual assault (“the index offences”).

2. [24]

   At the same time, the defendant pleaded guilty to a count on a separate indictment of supplying cannabis, being 2.275kg of cannabis. Two offences of goods in custody and one of possess prohibited drugs were taken into account on a Form 1 in respect of that count (“the related offences”).

3. [25]

   The defendant received an overall sentence of 17 years with a non-parole period of 12 years. He sought leave to appeal against the severity of sentence. He was granted leave to appeal, the appeal was upheld and he was re-sentenced to 15 years imprisonment with a non-parole period of 10 years.

4. [26]

   The facts of the counts on the indictments were summarised by the Court of Criminal Appeal in Doherty v R [2006] NSWCCA 133 as follows:

5. [27]

   The break, enter and steal offence taken into account on the Form 1 was committed on the same premises as the sexual assaults. After the sexual assaults had occurred, the defendant returned to the premises the following week and again 16 days later, on each occasion breaking in and stealing items. By then, the victim had moved out and the premises were unoccupied.

6. [28]

   The defendant claimed he was under the influence of methylamphetamine at the time of the index and related offences. He later described how his use of amphetamines had increased his level of sexual preoccupation to a point that he had been in a continual state of sexual arousal.

The defendant’s progress since the index and related offences

1. [29]

   The defendant’s behaviour in prison following his incarceration in 2003 was positive. The Risk Assessment Report that was tendered at the 2019 hearing referred to him as a prisoner who is “polite to others and compliant with routines”. Although, by that time, he had committed over 30 disciplinary offences in custody, all but seven pre-dated his almost 14 years of incarceration for the index and related offences. He had committed one disciplinary offence since 2011, which was possessing prohibited goods, being 5g of tobacco. I note that on 10 December 2020, he failed a “prescribed drug test” in custody.

2. [30]

   The defendant completed the Custody-Based Intensive Treatment Program (“CUBIT”) in 2013. He was described as an active group and community member, who appeared to engage well in the treatment process and demonstrated a positive change in relation to general pro-social behaviours. Whereas previously the defendant had not demonstrated empathy for the victim of his sexual assaults, consequent to this program he had improved insight. The same year, he completed the Self-Management and Recovery Training program (“Getting SMART”), which is a cognitive behavioural therapy program that targets offenders with a medium or higher risk of reoffending, by treating alcohol and/or other drug use to reduce dynamic risk factors. It also prepares and motivates offenders to participate in ongoing SMART Recovery maintenance meetings (“the SMART Recovery Program”). In 2015, the defendant completed nine sessions of the SMART Recovery Program, as well as other drug and alcohol treatment programs.

3. [31]

   The defendant’s total sentence expired on 6 November 2018. He was not released to parole until 16 March 2017, with only 1 year and 8 months left to run on his total sentence.

4. [32]

   When released to parole, the defendant resided with his mother, at a relatively remote location in the Lithgow area. His conditions of parole included him submitting advance schedules of his movements, electronic monitoring and abstinence from the use of non-prescribed drugs and alcohol. He complied with his parole conditions until his mother died, on 27 July 2017. The defendant had no other social or familial supports in the community. In September 2017, he was reported as living alone at the same property, but was planning to move to a more central location.

5. [33]

   The defendant’s compliance deteriorated from about that time. It transpired that he had started to occasionally drink alcohol following his mother’s death. The defendant had been subject to regular breath testing and produced a positive result on two occasions. There were repeated minor infringements by him of his supervision conditions. The defendant’s movements would sometimes vary from the schedule, without prior approval. Sometimes he would not be punctual, would change an appointment or would not turn up at all.

6. [34]

   On 12 September 2017, the defendant was discovered to be in a relationship with a woman he had recently met, who I will refer to as AB, which he had not disclosed to Community Corrections officers. AB had three children.

7. [35]

   AB was regarded by Community Corrections as being supportive of the defendant’s need to comply with parole conditions at times and unsupportive at other times. Reported incidents included AB being aggressive towards Community Corrections staff, threatening to record conversations with them and obstructing access to the defendant’s approved residence. There were indications that AB used alcohol and drugs, particularly methylamphetamine. To his credit, the defendant expressed his own similar concerns to Community Corrections. At times he said he had ended the relationship, but in fact it continued.

8. [36]

   From October 2017, there was an escalation in the seriousness of the defendant’s breaches of parole. Although the requirement for the defendant to submit to scheduling was removed in November 2017, on occasions he would be uncontactable by phone for hours or he would not comply with specific directions, such as directions to not sell firewood from his home, not operate an advertised ironing service and not host garage sales. The defendant’s behaviour was troubling in other aspects. He was involved in a public argument that required police intervention. He was “reportedly gambling at a problematic level” and selling “personal items” to fund it. There was an element of increasingly erratic and unpredictable behaviour. The same month, the defendant was observed on CCTV at a licensed premises consuming alcohol.

9. [37]

   On 23 November 2017, the defendant was directed to not attend any licensed premises with gambling facilities. Over the following days, he was detected at multiple licensed premises and gambling related premises in Lithgow, nearby towns and at the Star Casino in Sydney. On 26 November 2017, he was not able to be located via his electronic tag and was not contactable by phone from then until he was arrested on 30 November 2017, following the revocation of his parole.

10. [38]

    The defendant was re-released on parole on 30 January 2018, but he continued to resist compliance with his conditions of parole. This was raised with him at a case conference on 20 March 2018. On 23 March 2018, the defendant was reported as deviating from his schedule of movements 11 times. Three days later, he left his residence when he was not scheduled to do so and did not respond to 14 attempts to contact him by phone. On 29 March 2018, the defendant’s parole was again revoked. When arrested, alcohol was detected in his system and he admitted to having consumed alcohol the previous day.

11. [39]

    The defendant’s view of these difficulties, according to the authors of the Risk Assessment Report tendered at the 2019 hearing, is that he had “taken a few liberties without breaking the law”, that the violations had been minor, the scheduling had been “overbearing” and he had been trying to “do the right thing”.

12. [40]

    As noted earlier, in 2018 the defendant breached the ISO that had been imposed by Fagan J and subsequently extended. The circumstances of those breaches, and the issues the defendant encountered living in the community at that time, were canvassed in the 2019 judgment at [45]-[48].

The defendant’s progress since 2019

1. [41]

   On 15 August 2019, the defendant was charged, bail refused, with breaching his ESO by repeatedly failing to attend an appointment with a psychologist. He pleaded guilty and received a 6 month fixed term of imprisonment that expired on 14 February 2020.

2. [42]

   On 6 August 2020, the defendant was charged, bail refused, with a further breach of the ESO after a drug test identified morphine and methylamphetamine in his system. He pleaded guilty and on 3 November 2020, he received a sentence of 16 months imprisonment with a non-parole period of 12 months. The non-parole period expired on 5 August 2021, such that he was released on that date. He appealed the sentence to the District Court. In the course of dismissing the appeal, Hanley SC DCJ said:

3. [43]

   On 15 October 2021, the defendant was charged, bail refused, with two counts of breaching the ESO and with one count of an offence contrary to s 10 of the Public Health Act 2010 (NSW) of failing to self-isolate when directed to do so. The breach of the ESO in question was that he failed to comply with a condition requiring him to not leave his place of residence. On 14 December 2021, N Adams J granted bail to the defendant pending the hearing, which is set down for 21 October 2022. A condition of bail was that he reside at the Nunyara Community Offender Support Program Centre (“the Nunyara COSP”).

4. [44]

   At the time of his release, the defendant was suffering from Septic arthritis. By 15 November 2021, he had a swollen foot and was unable to walk. He was admitted to Westmead Hospital, where he remained for three weeks. In her judgment granting bail, N Adams J noted evidence to the effect that the defendant still required hospital care. Her Honour observed:

5. [45]

   According to Offender Integrated Management System (“OIMS”) notes that have been tendered by the plaintiff, immediately prior to his release Corrective Services NSW staff were concerned that the defendant’s behaviour was deteriorating. Nevertheless, they were of the view that he would be sufficiently stable to be taken to the Nunyara COSP and present at Prince of Wales Hospital (“the POWH”) the following morning. An intravenous drip was removed and he was transported to the Nunyara COSP on the evening of 14 December. He was directed to have no contact with AB.

6. [46]

   That evening, following a deterioration in his condition, the defendant was transferred by ambulance from the Nunyara COSP to the POWH. He was discharged on 21 December 2021. Corrective Services NSW alleged that, over the following week, the defendant made multiple unapproved changes to his schedule of movements, sometimes ignoring directions to return to the Nunyara COSP. His behaviour deteriorated over that week, culminating in threats and an episode of deliberate self-harm on 28 December 2021. He told staff that one of the residents had been “staring him down”. He said that “if it carries on, I’ll smash him round the head with an iron bar. I won’t kill him, just crush his head”. The same day, he was observed to be yelling obscenities and to throw a chair, ignoring staff requests to cease. He cut his elbow, refused medical assistance and walked out of the Nunyara COSP. He was taken into police custody that day and his placement at the Nunyara COSP was terminated.

7. [47]

   A detention application was heard in the Local Court on 29 December 2021. The Magistrate found the defendant had breached a bail condition but granted bail, subject to, inter alia, a condition that he not be released until his proposed accommodation is approved by his DSO. The defendant was unable to meet the condition and bail was revoked on 4 January 2022. On 27 April 2022, following a bail review, bail was refused.

Relevant provisions of the Act

1. [48]

   The Act relevantly provides as follows:

2. [49]

   The defendant does not dispute that the statutory preconditions of s 5B(a), (b) and (c) are established. In relation to s 5B(b), s 5I provides:

3. [50]

   The defendant does not contest that he comes within the definition of “supervised offender” pursuant to s 5I(2)(a)(iii), since at the time the summons was filed, he was serving the sentence imposed on 3 November 2020 for breaches of s 12 of the Act. In relation to s 5B(c), I note that in State of New South Wales v Kaiser [2022] NSWCA 86, Simpson AJA (Bell CJ and Beech-Jones JA agreeing) determined that the reference in s 5B(c) to s 5I was a “drafting or cross-referencing error” and was intended to mean s 6. The defendant’s concession in respect of s 5B(c) is made cognisant that it refers to s 6, which is as follows.

4. [51]

   I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied.

5. [52]

   The primary consideration in determining whether an ESO should be made is stated in s 5B(d) of the Act. The meaning of “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act:

6. [53]

   Pursuant to s 5B, the power to make an ESO is discretionary; the Court “may” make an order for an ESO if the four prerequisites are satisfied. The discretionary nature of the power is also underscored by the terms of s 9(1) of the Act, reproduced below.

7. [54]

   The defendant accepts that the evidence would establish to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. Again, it remains for the Court to determine if it is so satisfied.

8. [55]

   The Act stipulates objects and a paramount consideration to be taken into account when determining an application:

Sections 9(3)(b), (c) and (d1) of the Act: forensic reports and evidence

1. [56]

   Reports have been prepared pursuant to s 7(4) of the Act which are relevant to all matters identified in s 9(3) except for ss 9(3)(h) and (h1).

2. [57]

   Dr Eagle assessed the defendant on 12 May 2022. Following a two hour face to face assessment of the defendant and a comprehensive review of the material, Dr Eagle diagnosed the defendant as having a severe substance use disorder and an antisocial personality disorder, making the following observations:

3. [58]

   Dr Eagle reported the results of some risk assessment instruments that she administered. The Static 99R, which was developed to assist in the evaluation of the risk of sexual recidivism among adult male sexual offenders, returned a score that placed the defendant in the “above average” category of offenders. Dr Eagle applied the Stable 2007 (revised 2014), which she described as a structured professional judgment tool for the assessment of sexual offenders by using empirically based risk factors to assist with the formulation of risk scenarios and to identify treatment or supervision targets in the development of a risk management plan. Overall, it placed the defendant in the “high risk” category. When combined with his Static 99R score, the defendant fell within the overall risk category of “above average”. Dr Eagle noted:

4. [59]

   In order to assess the defendant’s propensity to commit a non-sexual violent offence, Dr Eagle administered the HCR 20 (version 3), which she described as a structured professional judgment risk assessment tool designed to assist in the risk assessment and risk management of forensic and offender adult populations. It assesses the risk of interpersonal violence which is defined as “actual, attempted, or threatened infliction of bodily harm on another person”.

5. [60]

   Referring to the index offence, Dr Eagle said:

6. [61]

   Dr Pulman assessed the defendant face to face for a period of about 2.5 hours. Regrettably, she was unable to conduct a comprehensive neuropsychological assessment, due to three out of four scheduled appointments being cancelled by the prison and subsequent time limitations.

7. [62]

   Dr Pulman commented upon the defendant’s history of having suffered head injuries when aged six:

8. [63]

   Dr Pulman identified a need for psychotherapy in order to reduce the defendant’s risk factors, particularly tackling the damage done by the child sexual abuse suffered by the defendant:

9. [64]

   Dr Pulman administered the Risk for Sexual Violence Protocol (“the RSVP”), which is an assessment of five domains of dynamic risk factors for sexual reoffending: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Dr Pulman considered the defendant’s level of risk of future sexual violence to be “above average”.

10. [65]

    Dr Pulman noted that the defendant:

11. [66]

    The material tendered by the plaintiff included the reports that were prepared in 2019 by forensic psychiatrist Dr Jeremy O’Dea and forensic psychologist Dr Emma Collins. I note that the defendant declined to attend his first appointment with Dr O’Dea but did attend a second one. Dr O’Dea confirmed a diagnosis of a personality disorder with significant antisocial and psychopathic traits. Dr Collins presciently said:

12. [67]

    As to the use of electronic monitoring and schedules, Dr Collins said:

13. [68]

    As to the length of an ESO, Dr Collins said:

Section 9(3)(d1): any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community

1. [69]

   An updated risk assessment report dated 21 September 2021 was prepared by Rochelle Pateman, who is a senior psychologist with Personality and Behavioural Disorder Services of the Department of the Serious Offenders Assessment Unit of Corrective Services NSW. Ms Pateman assessed the defendant as having an above average risk of sexual offending. Her conclusions and recommendations were as follows:

2. [70]

   A brief updated risk management report was prepared by Mick Glover, Community Corrections Officer, which explained the purpose of the proposed conditions for an ESO.

Section 9(3)(e1): options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time

1. [71]

   I note the defendant’s history of apparent reluctance to engage with therapists. I take particular note of Dr Eagle’s recommendation that the defendant be required to engage in one-on-one psychotherapy and Dr Pulman’s recommendation that he engage in one-on-one trauma therapy.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

1. [72]

   My observations when making an ESO in 2019, at [91] to [96] of that judgment, remain appropriate:

The defendant’s case

1. [73]

   At the outset of the hearing, although he had very capable legal representatives, the defendant sought to address the Court, which I permitted. Essentially, he expressed frustration at having been returned to custody for what he regarded as relatively trivial matters and pessimism as to whether that pattern will change in the future. I asked the defendant what his attitude was to the recommendations made by Drs Eagle and Pulman that he engage in one-on-one counselling. He expressed a willingness to do so, especially if it could be with a particular named psychologist that he had previously been seeing.

2. [74]

   Otherwise, the only issue in dispute between the defendant and the plaintiff concerned some of the proposed conditions.

Consideration

1. [75]

   In my consideration of the application, I am cognisant of the terms of ss 5B(d) and 5D of the Act.

2. [76]

   I am satisfied to a high degree of probability that the defendant continues to pose an unacceptable risk of committing another serious offence if not kept under supervision. There is no evidentiary basis to exercise the discretion to not make an order for an ESO and the defendant has not suggested that I do so. That being so, I move to consider the appropriate length of the ESO.

3. [77]

   The defendant has made minimal progress in demonstrating an ability to reside in the community and comply with the conditions of an ESO. Mindful of Dr Collins’ observations at [68] above, I conclude that the defendant has demonstrated that he does not presently have the personal resources to bring about the necessary behavioural changes in order to progress beyond supervision to an independent life in the community, free of all constraints. Clearly, there is an urgent need for him to have the benefit of one-on-one intensive therapy of the type recommended by Drs Eagle and Pulman. Despite the defendant’s stated willingness to comply with such directions, I agree with Dr Pulman’s observation that he is likely to struggle with directions to attend such therapy.

4. [78]

   I will impose an ESO of two years, rather than the period of three years that is sought by the plaintiff. Even with the defendant attending therapy, it is likely that there will still be missteps and fractured progress as he acquires the necessary psychological skills to enable a significant reduction in his level of risk. Reasonable exercises of discretion by the DSO will be appropriate, to maintain the offender in the community without compromising the safety of the community.

Conditions of the ESO

1. [79]

   Following negotiations between the parties, only three of the proposed conditions of an ESO were in contention, for which I commend them.

2. [80]

   The defendant expressed concern that if compliance with the rules or by-laws or both of approved accommodation is made a condition of the ESO, even a minor breach of house rules would, if he is charged and convicted of it, have the status of a criminal offence. He submitted that the proposed condition overlapped with another general condition, to the effect that the defendant is obliged to obey the reasonable directions of the DSO, and compliance with house rules would clearly be such a direction.

3. [81]

   The plaintiff submitted that the condition ensures compliance by the defendant and that the decision whether to act on a breach would involve an element of discretion.

4. [82]

   I note that the OIMS notes leading up to the breach that led to the defendant’s current charges suggest that Corrective Services NSW did exercise a degree of discretion in response to alleged minor acts of defiance of directions by the defendant before acting upon more serious alleged behaviour that breached the reasonable rules of the COSP where he was residing. An alternative approach would be to rely upon condition 3, which is unchallenged and requires that the defendant must comply with any direction given by his DSO. I appreciate that the defendant is experiencing considerable difficulty in complying with directions, which bespeaks a need for clarity. For that reason, I think it appropriate to make the condition in the terms sought by the plaintiff rather than rely on that alternative approach.

5. [83]

   The defendant submitted that it was unreasonable for him to be required to obtain prior approval from a DSO before spending the night away from his approved address. Further, he expressed concern about being obliged to let a DSO know “promptly” if a visitor enters and remains at his address, and to obtain prior approval from a DSO before permitting any visitor to stay the night.

6. [84]

   The defendant noted that these are additional conditions to those that he presently is subject to and submitted that they are not justified. He also noted that there is an unchallenged condition that forbids him from associating with persons who are consuming or under the influence of illegal drugs (condition 22). The plaintiff responded that proposed conditions 11 and 12 are proportionate and necessary, in view of the defendant’s drug use being a recognised trigger of past criminal offending and the need therefore to screen persons that he is with in private.

7. [85]

   I consider it necessary for the defendant to obtain prior approval before a visitor stays overnight. I am of the view that such an obligation, in spite of condition 22, provides an inadequate degree of protection to the community against the risk of him committing a serious offence. In coming to that conclusion, I have taken into account the breaches by the defendant of conditions of parole and the ESO by consuming alcohol and drugs since 2017, together with his resistance to being directed to not associate with former partners.

A recommendation

1. [86]

   Following on from my observations at [71] and [73] above and the recommendations of Drs Eagle and Pulman and Ms Pateman, I strongly recommend that the defendant be required to engage in one-on-one counselling with a psychologist or psychiatrist who is provided with copies of their reports. It would be preferable for the defendant to attend sessions with the psychologist who he informed the Court he had previously engaged with. The evidence establishes that the defendant requires additional skills to enhance his prospects of residing in the community in a manner that ensures, so far as is possible, the community’s safety.

2. [87]

   The defendant’s lack of progress thus far indicates a need for a different approach to that previously applied. The forensic experts have identified a gap in the services provided, being a need for one-on-one therapy over an extended period. I understand that Corrective Services NSW has a preference for engaging a particular forensic psychological agency and established offender programs. The defendant has demonstrated over some years a reluctance to engage with psychiatric and psychological services. Doubtless his claim of being sexually abused over an extended period in his early childhood partly explains his reluctance to engage in group therapy. It appears that he has built a level of rapport with a particular psychologist. In the interests of the safety of the community and in the face of a risk of the defendant being subject to multiple ESOs over many years, in my view, the forensic experts’ unanimous recommendation should be acted upon.

Orders

1. [88]

   I make the following orders:

   1. (1)

      Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the existing extended supervision order made 19 July 2019 is revoked;

   2. (2)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant be subject to an extended supervision order (“the extended supervision order”) for a period of two years from the date of this order;

   3. (3)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule of Conditions attached to this judgment;

   4. (4)

      Access to the Court’s file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.