State of New South Wales v Mills

1. [1]

   By Notice of Motion filed on 30 January 2019 the State of New South Wales (the State) moves under s 13 Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) to vary an extended supervision order (“ESO”) to which the defendant is subject. The order was made by Justice Rothman for a period of 3 years from 25 October 2017. The defendant is required to comply with a suite of conditions under s 11 of the Act.

2. [2]

   In circumstances that will be explained, the ESO made by Rothman J was suspended by dint of the operation of s 10(2) of the Act on 30 October 2017 when the defendant was arrested in the State of Queensland for three offences of failing to comply with the requirements of the ESO. He pleaded guilty to the three charges of breaching the ESO including a charge based on him absenting himself from the State of New South Wales without approval contrary to condition 14 of the ESO. It is unnecessary in this introduction to particularise the other breaches. He pleaded guilty to each charge and was sentenced in the District Court of New South Wales on 7 June 2018 by her Honour Judge English to three concurrent sentences of imprisonment, each having a non-parole period of 1 year and 4 months and 25 days commencing on 30 October 2017 and expiring on 25 March 2019, and an additional term expiring on 13 September 2019. He will be released to parole upon the expiration of his non-parole period on 25 March 2019 by a statutory parole order under s 158 Crimes (Administration of Sentences) Act 1999 (NSW) when the ESO will revive and recommence running. It is evident that he has been subject to the ESO for a period of only four days so far.

Originating process

1. [3]

   The original proceedings for the ESO were commenced by summons filed on 20 July 2016. The principal relief was sought in the following terms:

2. [4]

   When the proceedings were commenced, and the orders of Rothman J made, the Act made separate provision for orders for the supervision of high risk sex offenders (s 5C) and high risk violent offenders (s 5F). Both orders were in substance extended supervision orders but the Act permitted reference to a high risk sex offender extended supervision order, on the one hand, and a high risk violent offender extended supervision order, on the other. The pre-conditions for making orders in each category were found in different sections. For high risk sex offenders, the relevant provision was s 5B; and for high risk violent offenders the relevant provision was s 5E.

3. [5]

   These distinctions, such as they were, did not survive the enactment of the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) (“the Amending Act”). Sections 5B to 5D were rewritten to apply to serious offences generally (which expression is defined to mean a serious sex offence or a serious violence offence: s 4) and ss 5B – 5G were repealed. Transitional provisions consequent upon the enactment of the Amending Act were made and are found in Part 10 of Schedule 2 of the Act. By Clause 17, the amendments made by the Amending Act extend:

4. [6]

   The abolition of the distinction between high risk sex offender orders and high risk violent offender orders, whether legally necessary or not, seems to have been the result of a deliberate choice, for in his second reading speech introducing the Amending Act to the Legislative Assembly on 11 October 2017 (NSW Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017), the Honourable Mark Speakman SC, Attorney General, inter alia, said:

5. [7]

   When the application for final relief came on for hearing before Rothman J his Honour granted the State leave to file in court and proceed upon an amended summons dated 2 August 2017. The form in which substantive relief was sought remained in the terms set out above and the amendments related to the conditions to be imposed under s 11. In short, as his Honour observed in his judgment, by the proposed amendments the State sought conditions "that are generally applicable to high risk sex offenders, even though the basis for the [ESO] is the allegedly violent conduct of the defendant”: State of New South Wales v Mills (No 2) [2017] NSWSC 1442 at [4]. As his Honour recorded (at [60]) the defendant submitted, given the form in which substantive principal relief was sought in both the summons and the amended summons the court was not able “as matter of jurisdiction and as a matter of discretion, to issue orders relating to sex offending”. It is convenient to point out here that his Honour was not persuaded that there was any “jurisdictional” bar to considering whether the defendant was a high risk sex offender. Nor was he persuaded to the requisite high degree of probability by the circumstances then established by the evidence that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision. Accordingly, in general terms, his Honour declined to impose the additional conditions sought in the amended summons.

6. [8]

   This brings me to the real issues between the parties which involve the question whether under s 13 the State can revisit the question of whether conditions of the type rejected by Rothman J should now be imposed in the circumstances established by the evidence before me. Given the essential inter-relationship between the identification of the risk and the imposition of appropriate conditions under s 11, the State accepts that it needs to establish to the statutory high degree of probability that the defendant does pose an unacceptable risk of committing a serious sex offence if not kept under supervision. There are really two questions. The first is whether the Court is empowered to revisit that issue, Rothman J having rejected it; and the second, the factual question of the whether that unacceptable risk exists.

Background facts

1. [9]

   Rothman J summarised the factual background related to Mr Mill’s serious violent offending as follows at (paragraphs [5] to [10]):

2. [10]

   Rothman J, having reviewed all the evidence particularly in regard to the mandatory considerations imposed by s 9, (at [54]) recorded his satisfaction to the requisite, statutory high degree of probability that the Defendant was a high risk offender as he posed “an unacceptable risk of committing a serious violence offence if he were at liberty in the absence of appropriate supervision”.

Rothman J’s findings as to whether the defendant was a High Risk Sex Offender

1. [11]

   As I have said above, his Honour rejected the defendant objection to jurisdiction, as it were, that given the relief sought was a high risk violent offender extended supervision order, the court was not empowered to impose conditions relating to an unacceptable risk of the commission of a serious sex offence if not kept under supervision (at [60] – [61]). Essentially, his Honour decided “on an application for an ESO utilising the provisions of s 5F of the Act, [the Court] can impose conditions which relate to issues arising from other offending that would, ordinarily and otherwise, require an application under s 5C of the Act”.

2. [12]

   His Honour stated the facts in relation to the defendant’s sex offending in the following terms:

3. [13]

   Rothman J stated his reasons for not being persuaded that there was an unacceptable risk of the commission of a serious sex offence in the following terms (at [55] – [57] and [62]):

Applicable statutory provisions

1. [14]

   The objects of the Act are set out in s 3:

2. [15]

   Section 5D (of the Act as amended) set outs the conditions which must be satisfied before the Court may make an extended supervision order. For present purposes it is sufficient to refer to paragraph (c) which is in the following terms:

3. [16]

   Section 9 confers a discretion on the Court to determine an application for an extended supervision order by either making the order, or dismissing the application. Importantly under s 9(2) in the exercise of that discretion, “the safety of the community must be the paramount consideration of the Supreme Court”. Section 9(3) specifies mandatory relevant considerations to which the court must have regard in exercising the discretion. It is not necessary to detail them for present purposes.

4. [17]

   If the Court exercises its discretion to make an extended supervision order it is empowered by s 11 to “direct [the] offender to comply with such conditions as … the Court considers appropriate”. Paragraphs (a) – (n) provide a non-exhaustive list of the type of directions the Court may require the offender to comply with.

5. [18]

   Non-compliance with the requirements of an extended supervision order is a criminal offence by force of s 12, the maximum penalty for which includes a term of imprisonment of 5 years.

6. [19]

   Section 13, which is central to the current application, is in the following terms:

7. [20]

   I think it also appropriate to bear firmly in mind s 21 which is in the following terms:

Relevant legal principles

1. [21]

   Ms Fernando referred me to two decisions dealing with the scope of the power conferred on the Court by s 13. In State of New South Wales v Kay [2018] NSWSC 1235 Wilson J was dealing with an application to vary an existing order, which the defendant had breached, by the imposition of additional conditions. At [66] her Honour pointed out, “the wording of [s 13(1)] is such that the Court’s discretion is unfettered, subject to the objects and provisions of the Act”. Given the nature of the variation sought, her Honour found it necessary to lay emphasis upon the provisions of s 11.

2. [22]

   In State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52 Walton J was dealing with, inter alia, an application by an offender to revoke an existing order. Understandably, his Honour emphasised s 13(1B), the opening words of which his Honour said “are clearly designed to preserve the broad discretion residing in the Court under s 13(1) as referred to in Kay”. His Honour also emphasised the requirement “that circumstances have changed sufficiently to render the order unnecessary” (at [21] – [22]). His Honour recognised (at [23]) that in Kay “s 11 predominated”. While s 11 was “not immaterial” to his Honour’s task, Walton J considered that in the case of an application for revocation “the relevant inquiry must be wider”. His Honour emphasised that s 13(1B) required a comparison. The Court was to consider “whether the circumstances operating at the time of the [original] determination of the application have sufficiently changed to … render the existing order unnecessary”.

Decision on whether power to vary engaged

1. [23]

   My task is somewhat different from that required in either Kay or Schmidt. For my purpose it is relevant to observe that s 13 does not expressly confer a power to review or reconsider an extended supervision order, but powers of review and reconsideration may well be implicit in a power to “vary or revoke” subject to such limitations as may be found in the language of the Act, and s 13 in particular. In this regard it may also be important to bear in mind that the maximum term of an order is 5 years from the day on which it commences, which need not be continuous as the order is suspended during periods when the offender is in lawful custody: s 10(1A) and (2). And s 10(3) provides: “Nothing in this section prevents the … Court from making a second or subsequent extended supervision order against the same offender.”

2. [24]

   Section 21 is not unimportant. It is set out above at [20] and I will not repeat it here. However, it raises a question about whether extended supervision orders (or continuing detention orders) are final for the purpose of the doctrine of res judicata. This may have some importance in the present case where the State is seeking a finding that is inconsistent with a finding made by Rothman J. Whether the order made and entered by Rothman J is a final order for the purpose of res judicata may inform the scope of the s 13 power in the present circumstances. I am being asked to re-visit the finding made by his Honour on new evidence not available to lead at the hearing before his Honour.

3. [25]

   An extended supervision order is obviously a final order for the purpose of an appeal, which is not determinative of the question. Section 22 of the Act provides an appeal as of right to the Court of Appeal from any determination of the Supreme Court, “to make, or to refuse to make, an extended supervision order”, inter alia. Such an appeal lies “on a question of law, a question of fact or a question of mixed law and fact.” And, there was no appeal challenging Rothman J’s finding that he was not satisfied to the requisite high degree of probability that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision.

4. [26]

   A judgment may be final for the purpose of res judicata yet subject to revision by the court or tribunal which made it. As the learned author of Spencer Bower and Handley Res Judicata, Fourth Ed. (2009) wrote (p 74 [5.15]):

5. [27]

   I am of the view that an extended supervision order is final for the purpose of the res judicata but may be renewed or extended under s 10(5) and varied or revoked under s 13. Extended supervision orders very significantly restrict an offender’s right to be at liberty after the completion of his or her sentence. This curtailment of liberty is very substantially based upon the Court’s satisfaction that an unacceptable risk of future serious offending exists. These powers are exceptional and are not easily covered by the expression used by Isaacs J of “entirely floating”. And this is so notwithstanding that the s 11 conditions are often couched in terms conferring a discretion on the officers of Corrective Services New South Wales as to the manner of implementation.

6. [28]

   In my judgment that orders made under s 9 of the Act are final for res judicata purposes affects the nature of the power conferred by s 13 and the manner of its exercise. For instance, if a summons seeking relief by way of an extended supervision order was dismissed because the Court was not satisfied to the requisite high degree of probability that the offender posed an unacceptable risk of committing another serious offence if not kept under supervision, absent appeal, would it be open to the State to bring a second application seeking the same relief based on the same evidence, effectively in defiance of the Court’s previous order? I think not. Clearly a determination whether to make or refuse an extended supervision order under s 9 of the Act is a final order.

7. [29]

   Even so, where an order has been made, rather than refused, s 13 confers an express power to vary or revoke. The question in the present case is whether that power to vary, which is invoked in this case, may be exercised in contradiction of the finding made by Rothman J. In my judgment it may.

8. [30]

   As Isaacs J pointed out in Ainslie the express power to vary is not determinative of the question of whether Rothman J’s orders were final. However, s 13 makes clear that the matter may be revisited. Given the nature of the question which arises in this case, I am not of the view that it is appropriate to approach the s 13 power as though it conferred an unfettered discretion. The Court would not be empowered to come to a contrary conclusion on the basis of the same evidence and arguments that were presented to Rothman J. Section 13 does not permit forum shopping. Rather, reading s 13 as a whole in its full statutory context I am of the view, as Ms New of Counsel for the State submitted, and Ms Fernando accepted, the power to revisit the finding made by Rothman J for the purpose of considering whether the order he pronounced should be varied depends upon the demonstration of a material change in circumstances since the original order was made. And it is necessary for the State to prove to the statutory standard of a high degree of probability, that on the whole of the evidence currently available, including the relevant changed circumstance, the offender now presents an unacceptable risk of committing a serious sex offence if not kept under supervision. I have expressed myself in this way because the State accepts that the new conditions it seeks, many of which were rejected by Rothman J, are appropriate to address a risk of serious sex, rather than violent, offending.

Arguments of the parties

1. [31]

   The State submitted, as I have recorded above, that to vary the existing extended supervision order by imposing conditions designed to manage the risk, it must establish by admissible evidence a material change in circumstances since the hearing before Rothman J. The relevant additional circumstances may be summarised as follows:

2. [32]

   The defendant accepts, as he must, that circumstances have changed to the extent that the October 2017 breaches established a risk of absconding and schedule deviation. However, he argues he does not pose an unacceptable risk of serious sex offending and accordingly the conditions specific to addressing that risk are not justified. In the alternative, the defendant submits that in any event, the conditions imposed by Rothman J are sufficient to manage the risk.

3. [33]

   The defendant would accept that new evidence, in the sense of evidence not available at the time of the hearing before Rothman J, establishing a material change in circumstances is sufficient to justify a variation in the ESO.

Determination

1. [34]

   It is unnecessary for me to focus upon the s 9(3) mandatory considerations beause Rothman J exercised the Court’s jurisdiction to make an extended supervision order and that question is not being re-ventilated before me. The question is whether having regard to changed circumstances, and on review of previous circumstances relevant to the risk of the commission of a serious sexual offence, the ESO should be varied to add to the conditions the defendant has been directed to comply with under s 11 of the Act.

2. [35]

   A significant factor which stands out on reviewing the facts in this case is that the defendant since the completion of his sentence for murder on 17 August 2016 and his release on 18 August 2016 has been unable, so far, to comply with the conditions of either an ISO or an ESO for more than about 5 weeks in toto. He had been at liberty for no more than 12 days when he committed the two counts of aggravated indecent assault. After his release from custody on parole on 30 September 2017 for that offending he absconded on 23 October 2017. Naturally this was not only a breach of the ISO, but it was also the commission of three serious criminal offences under s 12 of the Act. The conditions breached included condition 15 prohibiting the defendant from leaving New South Wales without the prior approval of his Department Supervising Officer (“DSO”); condition 30 prohibiting him from spending the night otherwise than at his approved address; and condition 8 forbidding the defendant from deviating from his approved schedule of movements submitted under condition 6, except in an emergency.

3. [36]

   These are serious breaches of his ISO, bearing in mind that the extended supervision order did not come into force until 30 October 2017, the day he was arrested in Queensland and extradited to New South Wales. These facts constitute a material change in circumstances which, in my judgment, alone adequately demonstrate that that the conditions imposed by Rothman J proved insufficient to adequately supervise the defendant in the community. Although the risk of serious violent offence did not materialise during his absence, I am of the view that the circumstances provide telling evidence of the need to add additional conditions for the purpose of managing the risk identified by Rothman J, whether or not the State has established to the high degree of probability necessary that he poses a risk of serious sexual offending.

4. [37]

   Rothman J did not find it necessary to impose conditions permitting electronic monitoring although he did impose a requirement for the defendant to provide a weekly schedule of movements (see [71] – [72]). The circumstances that have now transpired amply demonstrate that the defendant does require electronic monitoring as well as a schedule of movements. This finding is bolstered by the consideration that the defendant was over an hour late in returning to his accommodation on 20 October 2017 and over two hours late on 21 October 2017. Rothman J’s decision was under consideration on these dates. The defendant gave the excuse on 21 October that he was late due to track work on the rail network. There is a degree of probability that his lateness on each of these occasions was deliberate to deflect early suspicion of his absence when he absconded on 23 October 2017, as planned.

5. [38]

   His flight was certainly planned. When his room was inspected on 23 October 2017 later in the afternoon after he had been missed, it was obvious that the majority of his belongings had been removed. Another resident of the accommodation remarked to staff “you know he was planning this for ages, right?”

6. [39]

   The current evidence demonstrates, in my own view a compelling case for the imposition of electronic monitoring. The updated risk management report of Janelle Farroway dated 15 November 2018 indicates that the process of electronic monitoring is intended to progress through four stages of gradually reducing intrusiveness as offenders demonstrate compliance and progress. Compliance in the context of electronic monitoring is reviewed every two months as part of a case plan review. Scheduling of movements and the curfew are gradually lifted so that they not required in stages 3 and 4. Electronic monitoring is not required in stage 4.

7. [40]

   Ms Farroway explains that electronic monitoring works in conjunction with the schedule of movements and the curfew. In the absence of electronic monitoring it was, to adopt Ms Farroway’s words, “challenging to ensure that [the defendant] was compliant with his schedule of movements”. During his short periods of supervision in the community, the defendant was residing at the Integrated Support Centre at Campbelltown and his curfew was monitored by staff on site. When he progresses to residing independently, at least initially, a curfew will also be an important condition, as Rothman J recognised.

The risk of serious sexual offending

1. [41]

   The relevant history of sexual offending as found by Rothman J is recited at [12] above. I will not go over this ground save to repeat that the indecent assaults on the two young teenage girls were serious sex offences for the purposes of the Act.

2. [42]

   Dr Jeremy O’Dea, forensic psychiatrist, was one of the court-appointed experts whose evidence was before Rothman J in the substantive proceedings. I regard it as important to bear in mind that the primary diagnosis of the defendant made by Dr O’Dea was of anti-social personality disorder with significant psychopathic traits. The expert pointed out that such conditions are usually enduring conditions. The various manifestations of the disorder include “repeated failure to conform to lawful behaviours, deceitfulness and impulsivity” (report 27 June 2017 [86]). Dr O’Dea expressed the following opinion in relation to the risk of sex offending (22nd June 2017 [90]):

3. [43]

   Mr Patrick Sheehan, forensic psychologist, provided three reports dated 26 August 2016; 21 September 2016 and 16 June 2017 respectively. He too diagnosed a personality disorder which he defined in terms materially identical to Dr O’Dea. Like Dr O’Dea he considered the defendant’s condition had “all the hallmarks of antisocial personality disorder”. Report 28th August 2016 [49]. Such a disorder is manifested in “a pervasive pattern of disregard for and violation of the rights of others”.

4. [44]

   In his second report he regarded the indecent assault offences as “deeply concerning” (21 September 2016 [22]). In the light of them he was “inclined to reverse” his previous suggestion to remove supervision conditions pertaining to managing a sexual risk.

5. [45]

   In his third report of 16 June 2017 [24] he expressed the opinion that the indecent assault offences “cast a more serious complexion” on the defendant’s management issues. Applying the applicable actuarial assessment tools for this area and reviewing the defendant’s conduct he estimated the risk of sexual re-offending to be in the moderate to high range. He considered the risk of serious sex offending to be “realistic”. Mr Sheehan said the risk was “embedded” in the behavioural disinhibition and impulsivity associated with his anti-personality disorder. In his view, the defendant was subject to “a general sexual pre-occupation that is opportunistic in nature” and “encouraged by impaired social judgment” (16 June 2017 [39]).

6. [46]

   Turning to look at the behaviour of the defendant, his cell mates were concerned about his behaviour when he was in custody in August 2017. He was disinhibited about masturbating himself in their presence.

7. [47]

   The conditions of his original ISO included restrictions upon purchasing pornography which he baulked at stating he wished to buy such material for masturbation (OIMS 30 September 2017). When discussing the indecent assault offences with a corrections officer on 8 October 2017 he declined to accept that he was a registrable sex offender. He explained his offending by saying he made “a stupid choice”. He denied a sexual interest in teenage girls.

8. [48]

   However, on 10 October 2017 another incident of concern occurred which called the defendant’s disclaimer into question. While traveling on a train the defendant kept staring at three year 11 schoolgirls dressed in their school uniform who were sitting in the same train-carriage. The defendant then sat near the girls and attempted to engage them in conversation. The schoolgirls gave their first names to the defendant. When they all alighted at the same stop they noticed he was waving goodbye to them.

9. [49]

   On 13 October 2017, the defendant argued with his DSO about restrictions on his movements. In particular he seemed to be keen to attend a beach or a local pool. While saying he was not a sex offender, he kept talking about girls and missing sex. He said he looks at girls all the time, notwithstanding the attempts of the officer to redirect the conversation. He also sought permission to visit the zoo.

10. [50]

    On the same day as this conversation, the defendant approached two of the three schoolgirls he had seen on the train three days earlier as they were walking to school. He asked where their other friend was. He also asked them for their phone numbers and provided his given name and his phone number to the girls. This “coincidence” of a second meeting worried the girls and they reported the matter to the Deputy Principal when they arrived at school. The Deputy contacted police who interviewed the girls and made inquiries identifying the defendant.

11. [51]

    In an interview with a member of his supervising team on 14 October 2017 he again discussed the nature of the activities he wished to engage in. The officer became suspicious that he wished to attend a beach, a pool, mini-golf or the zoo to generate contact with young girls. Notwithstanding his interaction with the school girls, which he did not disclose, he was insistent that he did not pose a risk to teenage girls. He denied being attracted to underage females. This, of course, is contradicted by him approaching the schoolgirls as I have described. He also commented about a woman he had met on the train and stated he had thought about having sex with her. It was unclear whether this is a reference to one of the schoolgirls or to another person. The officer considered that the defendant was “highly sexually pre-occupied”.

12. [52]

    During a conversation with a community corrections officer about the conditions of his then ISO, the defendant expressed the view that he felt he was being treated “like a high risk sex offender”. He said:

13. [53]

    Other matters of concern relate to material found in his possession when he was arrested in Queensland. Of very significant concern to me is that he was found with notes in his handwriting containing the personal details including addresses, telephone numbers and dates of birth of each of the victims of the previous indecent assault offences. The defendant’s notes also included lists of “internet network sites for YTP”. According to the report of Mr Samuel Ardasinski, a Senior Psychologist with the Serious Offenders Assessment Unit, one meaning of this initialisation listed in urbandictionary.com is “young teen pussy”. Among the websites named on the defendant’s list were “teenfunXvideo.com” and “jailbaitgallery.com” which the psychologist states refer to webpages with images depicting young-looking female models posing as underage girls.

14. [54]

    Mr Ardasinski administered the usual actuarial measures of risk assessment used for ranking male sexual offenders. He expressed his conclusions as follows: (ESO Variation Report [55]):

15. [55]

    This body of evidence persuades me that circumstances have changed very significantly since Rothman J’s judgment of October 2017. This body of evidence persuades me to the statutory high degree of probability that the defendant poses an unacceptable risk of serious sex offending if not kept under an extended supervision order having conditions appropriate to manage that particular risk. The risk is related to his Anti-Social Personality Disorder and the impulsivity, disinhibition and flaunting of authority associated with it. In the context of what is his obvious pre-occupation and, contrary to his disavowals, his fixation on young women including teenage girls, as Mr Ardasinski says, the risk could readily materialise opportunistically. In my assessment, during his short periods at liberty since August 2016 he has been fixated on teenage girls as sex objects. This has manifested itself by him attending places where he is likely to come across young women who are likely to be vulnerable due to their age and lack of experience. His impulsivity, disinhibition and frotteuristic aspects of his disorder do suggest to me a high risk at the very least of the commission of further sexual touching offences and some risk of more serious sexual assault. All of this is unacceptable given his apparent inability to accept lawful direction.

Conditions

1. [56]

   I have already explained that because the defendant absconded in breach of the ESO in October 2017, I am strongly in favour of imposing a requirement of electronic monitoring. This view is reinforced by my conclusion concerning the unacceptable risk of sexual offending. I record that electronic monitoring is strongly supported by Mr Ardasinski and Ms Farroway in their reports for reasons they have set out at length which it unnecessary for me, in the circumstances to repeat. Moreover the OIMS casenotes reveal a certain recalcitrance on the part of the defendant to comply with departmental supervision, which seems likely to continue. He will doubtless resent electronic monitoring and may well continue to attempt to “buck the system”. However, I regard electronic monitoring as an important condition of supervision having regard to the risks he presents and bearing in mind the paramount consideration of community safety, notwithstanding the defendant general right to be at liberty.

2. [57]

   The State seeks the imposition of condition 16A creating exclusion zones which the defendant must not enter without prior approval. These are mostly places of public resort such as outdoor recreational areas, amusement parlours, cinemas and like places which persons under 18 may frequent. The condition also extends to private residences where the defendant “knows or ought reasonably to know that persons under 18 ordinarily reside”.

3. [58]

   All new conditions proposed are opposed by the defendant. The defendant argues that given the need to submit a schedule of movements on a weekly basis for prior departmental approval these restrictions are unnecessary because the same effect can be achieved through the approval process.

4. [59]

   The State read an affidavit of Annette Caffery, Manager of the Extended Supervision Order Team employed by Corrective Services NSW. Ms Caffery favours the imposition of these conditions. She explains the imposition of the condition would require the defendant to specify his intended attendance at such places of public resort which would enable a risk assessment to be carried out and counselling to be provided in relation to those matters in an attempt to avoid the risk escalating if approval is in fact provided. Mr Ardasinski does not support the imposition of this condition. He points out that the index offending occurred in a shopping centre, not one of the places of resort listed in the proposed condition. He also points out that the presence of teenage females on trains and in other public places to which the defendant would necessarily have access when in the community render the condition “obsolete”, by which I took him to mean of no practical effect.

5. [60]

   From my review of the material the approval process in respect of the schedule of movements was thorough and detailed. Approval was withheld from attendance at beaches, pools, mini-golf and the zoo on the ground that these were places of resort where young people including teenage females would be encountered. This discretionary approach is appropriate until the defendant settles in to the routine of supervision and becomes more accepting of it. But I am not satisfied that proposed condition 16A is appropriate and I will not impose it.

6. [61]

   Proposed condition 16B prohibits, without prior approval, the defendant’s attendance at sex shops, sexually explicit entertainment or brothels. It was a previous requirement of the schedule of movements that approval for attendance at brothels was required and generally, it must be said, granted. It’s notable, perhaps, that the defendant did not always avail himself of the approval when given. Ms Caffery favours this condition again to enable risk assessment and counselling. The need to seek express approval would enhance monitoring to avoid any escalation of risk.

7. [62]

   Mr Ardasinski states (report [51]), “the empirical evidence does not support a blanket ban on “legal” (adult) pornography in the risk management of child sex offenders in the community, with some suggestions [in the literature] that there is no link between exposure to pornography and sexual violence.” Some researchers have suggested that permitting access to legal adult pornography may have a beneficial effect in directing a person’s attention away from inappropriate objects of sexual desire thus reducing the risk.

8. [63]

   Clearly the issue here relates to the concern that has emerged about the defendant’s fixation with teenage girls. That risk needs to be managed particularly having regard to the interest in pornographic material made manifest on the list recovered at the time of the defendant’s arrest in Queensland. It should also be pointed out that there are specific restrictions on the purchase or possession of what might be referred to as “hard-core” pornography. In my view those conditions are better directed towards management of the risk. I will not impose condition 16B.

9. [64]

   Rothman J imposed a condition restricting the consumption of alcohol so that the defendant was not permitted to have more than the prescribed concentration of alcohol of 0.05 per cent in his bloodstream at any time. A more restrictive condition is proposed requiring prior approval before alcohol may be consumed. The justification for this, as I understand it, is that even with random alcohol and drug testing it will not always be possible for the DSO to know whether a low reading obtained was the mere residuum of excessive consumption previously or represented compliance. Moreover, inappropriate alcohol consumption would be likely to enhance the impulsivity and disinhibition associated with his personality disorder thereby increasing the risk. In this regard his recalcitrance about supervision should be borne in mind. Mr Ardasinski acknowledges that the defendant’s conduct since his release to his ISO could favour a more restrictive condition in relation to drug and alcohol use. But on balance he is of the view that “the conditions as they stand ought to be sufficient to be protective”.

10. [65]

    The defendant submits that the condition as formulated by Rothman J remains apposite.

11. [66]

    On balance I agree that the existing alcohol condition ought to remain. However, given the defendant’s admission about illegal drug use preceding his index sex offending, I am of the view that proposed conditions 20A and 20B are appropriate. Doubtless, as Rothman J reasoned illegal drug use or non-prescription use of medications are crimes in any event, but a condition reinforcing that consideration, in my judgment, has utility. I propose to impose conditions 20A and 20B.

12. [67]

    Proposed condition 22 prohibits the defendant’s entry into licensed premises without prior approval. However, I am not persuaded the proposed condition is appropriate. I will leave in place the existing condition which permits the DSO to specifically disapprove in writing of the defendants entry to particular licenced premises appearing on the Schedule of movements.

13. [68]

    Proposed conditions 23A and 23B seek to limit contact with persons under 18 years of age. Conditions like these are appropriate given his risk relates in particular to teenage girls. Condition 23A restricts contact unless in the presence of an approved chaperone and 23B permits disclosure if the defendant forms a relationship with a person who is the parent or guardian of a person under the age of 18. The condition as proposed requires notification to the DSO and permission to the DSO to disclose “the defendant’s criminal history”.

14. [69]

    The defendant says the non-association condition is meaningless because it is, in part, predicated upon an objective test of “reasonably ought to know” and is unworkable because persons under 18 are often employed in retail and contact with them is unavoidable. There is force in some of these arguments.

15. [70]

    The condition anyway ought to be restricted to females rather than all persons under 18. There is no evidence of any risk to young males, notwithstanding some material suggesting an attachment to a young male in prison.

16. [71]

    I am of the view that the objective test is unworkable and cannot stand. The phrase “ought reasonably to know” necessarily imports the objective standard of the reasonable man. To be appropriate the conditions need to take the defendant as he is. I would make proposed condition 23A read as follows:

17. [72]

    The proposed condition 23B authorises the DSO to disclose the defendant’s criminal record to a parent of an 18 year old female. Given the risk I have identified I am of the view that a condition of that nature is appropriate. However, rather than disclosure about the defendant’s criminal history as such I think it appropriate to permit disclosure of the consideration that the defendant is under an ESO, the reasons for the ESO and the nature of the conditions so far as they pertain to contact with females under 18 years of age. Moreover, “associates” is too weak a connection to justify the disclosure. It seems to me disclosure is justified as appropriate to the risk “if the defendant commences to form a relationship with a person who is the parent or guardian of a female under the age 18 years”. I would amend proposed condition 23B to read as follows:

18. [73]

    Proposed condition 25A forbids the defendant from associating with people who are consuming or under the influence of alcohol without prior approval. For the reasons I have already expressed, I am satisfied the existing restrictions on alcohol consumption by the defendant are appropriate. It should not be overlooked that the full suite of conditions are intended to operate not only individually but as a whole. The alcohol consumption conditions will be bolstered by electronic monitoring, field visits, the schedule of movements and random drug and alcohol testing. I do not propose to order the observance of proposed condition 25A.

19. [74]

    26A prohibits the defendant from using the services of sex workers without prior approval. It has already been the case during his short periods of leave in the community that it has been necessary for him to include proposed visits to brothels on the schedule of movements. They have generally been approved. I have already recorded what Mr Ardasinski has said about the role that sex workers may play in establishing a healthy attitude to normal sexual relations on the part of the defendant. I am of the view that the existing arrangements are satisfactory for that purpose. I decline to order proposed condition 26A.

20. [75]

    Amended condition 40 and the proposed condition 40A deal with, as I pointed out above, the purchase and possession of classified, hard-core pornography and violent material. As I have already said, given the contents of the list found in his possession in relation to pornography depicting persons at least posing as young females under the age of consent, I am of the view that these new conditions are justified and I will include them in the order.

21. [76]

    For these reasons I make the following finding and orders:

    1. (1)

       I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under an extended supervision order;

    2. (2)

       Under s 13(1) of the Crimes (High Risk Offenders) Act 2006, the extended supervision order (ESO) made by Justice Rothman on 25 October 2017 is varied so that the conditions of the ESO as ordered by Justice Rothman in order 3 and set out in the schedule to his Honour’s orders are replaced with the conditions set out in Schedule A to this judgment;

    3. (3)

       Under s 11 of the said Act, direct that the defendant is to comply with the conditions set out in schedule A for the term of the ESO.