State of New South Wales v Cook (Final)

1. [1]

   By a further amended summons filed in Court on 22 November 2018 (“the application”), the State of New South Wales (“the State”) sought an order that Daryl Norman Stanley Cook (“the defendant”) be subject to an extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the further amended summons (those conditions are set out in Annexure A to this judgment).

The Offences

1. [2]

   The defendant has committed two “serious sex offences” as defined under s 5(1)(a) of the Act:

   1. (1)

      On 14 September 2011, following a DNA match, the defendant was arrested and charged with respect to four counts of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW), as to an offence committed in 1993 (“the 1993 offence” and the offence the subject of this application). The circumstances of aggravation were that the victim was under the age of sixteen. The defendant was, in fact, not found guilty of the offence until 15 June 2012. On 29 August 2012, he was sentenced to an aggregate sentence of 7 years imprisonment, with a non-parole period of 5 years and 3 months, commencing from 14 September 2011.

   2. (2)

      In 6 April 2001, the defendant committed an offence contrary to s 61K of the Crimes Act of threaten to inflict actual bodily harm on a person by means of an offensive weapon, namely, a knife, with intent to have sexual intercourse with her. The victim was seventeen at the time. He was sentenced to 8 years' imprisonment (non-parole period of 6 years), commencing on 11 April 2001, the day of the defendant's arrest (“the 2001 offence”).

2. [3]

   I now turn to an overview of the offences.

3. [4]

   The following summary is based upon the remarks on sentence of Judge Flannery SC on 29 August 2012:

   1. (1)

      On 30 April 1993, the victim (“V1”), who was fifteen at the time, went to town at about 6.30pm. She met up with some friends at the Amusement Centre and at some stage, she and her friend (“M1”), went to the cinema in Horton Street to go to the toilet. When they were outside the cinema complex, they were asked by the defendant, who was standing against the front doors, whether they would like to have a joint. They refused.

   2. (2)

      At about 9pm, V1 decided to go home, as she had run out of money. By then it was dark. As she was walking over the bridge near the Red Carpet Motel in Port Macquarie, she heard the sound of coins or keys jangling and turned to see what the noise was. She saw the defendant running and moved over to let him go past. When she was almost across the bridge, she was grabbed by the defendant, who put his hand around her mouth and neck. She screamed, kicked and punched him in the mouth. He then pulled her down to the bottom of an embankment, told her to be quiet and said that he had a knife. He then took a small pocket knife out of his pocket, put it to the back of her neck, behind her left ear and said he was not going to hurt her, he just wanted to talk. She was “freaking out”, hysterical and struggling to get away. When they got to a fence, he pushed her down and started kissing her and sticking his tongue down her throat. She tried to get away from him by kicking and pushing him. He then hit her in the mouth with his fist, which caused her lip to split. He then touched her all over and asked if it felt good. She was crying and asking him to let her go. He then tried to take off her belt and jeans while she was fighting with him. He said "I want to suck your pussy".

   3. (3)

      After he had pulled her jeans down, he inserted his finger or fingers in her vagina (count 1). She was crying and asking him to stop. He kept saying, "Doesn't it feel good". He then pulled down her pants and lay on top of her and inserted his penis inside her vagina (count 2). It hurt. She asked him to let her go and he said, "I can in five minutes". She was crying and trying to push him off. He took his jumper off and put it over her face. He then kissed her and put his tongue down her throat and then performed cunnilingus on her (count 3).

   4. (4)

      He then put her legs over his shoulders and his penis into her vagina again (count 4). She was crying and asking him to let her go. At some stage she recognised his voice as the voice of the man who had offered her a joint outside the cinema. It was too dark for her to recognise him otherwise. He then told her to get dressed and to walk in a particular direction and not to look at him.

   5. (5)

      As a result of the commission of the 1993 offence, V1 had a split lip, a bruised hand, from where she hit the defendant, a slight abrasion behind her ear and bleeding from her vagina for three days. Three earrings were also pulled out of her ear.

   6. (6)

      On 14 September 2011, after the police were advised that the defendant's DNA profile matched the DNA profile of the samples taken from V1 on 30 April 1993, the defendant was arrested and charged. The defendant entered pleas of “not guilty” and elected to be tried by Judge alone. He was found guilty and sentenced ten days later.

4. [5]

   On 19 July 2002, the defendant was found guilty by jury verdict. On 20 November 2002, he was sentenced by Acting Judge Mahoney to 12 years’ imprisonment, with a non-parole period of 9 years, commencing from 12 July 2001.

5. [6]

   On 12 March 2004, following an appeal brought by the defendant, the verdict of guilty for the 2001 offence was set aside and a new trial ordered: R v Cook [2004] NSWCCA 52.

6. [7]

   The Court found the defendant made good two grounds of his appeal, namely, that there was a miscarriage of justice and that the defendant did not receive a fair trial in that:

   1. (1)

      the trial judge erred in admitting evidence of flight (R v Cook at [49]); and

   2. (2)

      having admitted evidence of flight, the trial judge erred in not directing the jury how they were to use that evidence of flight as part of the circumstantial case (R v Cook at [52]).

7. [8]

   On 1 November 2004, following the remittal to the District Court, the defendant was again found guilty by jury verdict.

8. [9]

   The following summary of the circumstances of the 2001 offence is based upon the remarks on sentence of Judge Keleman on 17 December 2004:

   1. (1)

      On 5 April 2001, the victim (“V2”), who was 17 at the time, went into Port Macquarie for a night out with two of her friends, arriving at around 9.30pm. They went into a kebab shop in the main street of Port Macquarie, a location where young people meet to socialise. Her two friends then went off to a nearby night club and V2, who was underage and precluded from accompanying them inside those premises, remained at the kebab shop talking to friends.

   2. (2)

      After a period of time, V2 walked with one of her male friends to a nearby marina to see if any of their other friends were there. Not many of their friends were there so they returned to the kebab shop, arriving back at about 12.30am. On this occasion or the earlier occasion that she had been at the kebab shop that evening, one of her male friends introduced her to the defendant who was there at the kebab shop, after which she went and sat with one of her male friends on one of the two seats located on the footpath a short distance from the kebab shop. The defendant came and sat on the adjoining seat.

   3. (3)

      Sometime later, but before 2am in the morning, the defendant walked up to V2 outside the kebab shop and asked her if she would have sex with him that night, to which she replied, “No”. She then walked away from the defendant and spoke to one of her male friends and told him she was going to the toilet. V2 then proceeded to walk to the public toilets situated in a nearby bus terminus. On the way there, she stopped outside a nightclub where she spoke to the mother of one of her girlfriends for a few minutes. She then left her girlfriend's mother and proceeded towards the public toilets, and in doing so she walked past the entrance to the Coles store which faced the Coles car park where she observed, outside the entrance doors to the store, the defendant talking to the store security guard.

   4. (4)

      As she was proceeding through the car park she heard the defendant’s footsteps close behind her and as she increased her walking pace so did the defendant. She then took out the mobile telephone she had with her and phoned her male friend whom she had informed earlier that she was going to the toilet and asked to speak to one of her two girlfriends (“W1”), with whom she had travelled into Port Macquarie that evening. During that conversation she asked W1 to come down to the toilets as she was being followed.

   5. (5)

      V2 walked into the female toilets and locked the toilet cubicle and sat on the toilet. She then heard the defendant's footsteps entering the female toilets and she then sent a text message at about 2.10am to the same male friend she had telephoned minutes earlier, asking him to come to the toilets.

   6. (6)

      A short time later she saw the defendant's hands appear in an opening a fair way up in the wall of the toilet cubicle she was in. The defendant then entered the toilet cubicle through the opening and landed in the toilet cubicle on his feet beside V2. She screamed. The defendant pulled out a cap from behind his back and removed from it a knife with a blade of about twenty centimetres in length. He put the blade of the knife against her throat. She screamed again, and he then put his hand over her mouth. The defendant told her to shut up and do as he said or she would “cop it”. The defendant then, told her to come for a walk to the park with him and he would not have to use “this” as he held the knife to her throat.

   7. (7)

      The defendant then unlocked the toilet cubicle door as she pulled up her pants. When he opened the cubicle door she observed that he had another knife, which he described as a boning knife, sticking out the back of his jeans. He then told her that she was to walk out with him and pretend that they were boyfriend and girlfriend and that they were in love. The defendant then, standing behind her with his hand held over her mouth and the knife pressed to her throat, proceeded to take her out of the female toilets. On the way out V2 was able to observe the defendant in the mirror of the washbasin area and noticed he had two tattoos on his lower left arm as the sleeves of his shirt had been rolled up. He also said to V2 words to the effect, “Look what you make me fucking go through. See what you fucking do to me”.

   8. (8)

      The defendant then walked V2 out of the toilet block while holding the knife to her throat and his hand over her mouth. At that point in time V2 believed that she was better off if she was able to remain near the bus terminus as she believed she had a better chance of being seen by someone there, so she stumbled and fell to the ground on her knees. The defendant then pushed her onto her back and then hopped on top of her with his legs on either side of her.

   9. (9)

      After he pushed her to the ground he again pressed the knife to her throat and held his hand over her mouth. He then referred to her home address where she had been living until only days before and also made reference to her ex-boyfriend with whom she had only broken up with a week or two before. He then said to her words to the effect, “You are going to fuck me right now. We are going to do it". The defendant then grabbed V2 on her vagina over the outside of her jeans and then put his hand back over her mouth. She then bit his hand, causing him to take his hand away, and then she screamed. She then heard W1 call out and saw her running towards them. The defendant then got up and grinned at V2 and said that if she went to the police she would cop it. V2, who had also stood up, continued to scream and ran off in the direction of the Coles store while the defendant ran off in the opposite direction, pursued briefly by W1, who then returned to the Coles store where the distraught V2 had met the security guard who came to her aid after hearing her screams. Police arrived shortly after, following which V2 was taken to the police station where she made a statement.

   10. (10)

       On 11 April 2001, police located a plastic bag which contained a number of items of clothing including the shirt and shoes worn by the defendant when he attacked V2, which plastic bag he had left with a casual employer two days before on 9 April 2001. The defendant was arrested later on 11 April 2001.

9. [10]

   Further details as to the defendant’s criminal history and patterns of offending behaviour will considered below as part of the Court’s mandatory consideration under s 9(3).

Course of Proceedings

1. [11]

   By a summons filed on 18 July 2018 (“the summons”), the State sought the following relief:

2. [12]

   The summons was the subject of a preliminary hearing before Button J on 2, 3 and 28 August 2018. On 28 August 2018, his Honour granted leave to the State to file an amended summons in Court (the amendments concerned particular conditions set out in the Schedule to the amended summons). His Honour reserved his decision.

3. [13]

   By a judgment issued on 11 September 2018: State of New South Wales v Cook [2018] NSWSC 1386 (“the preliminary hearing”), Button J made orders, which included, inter alia, that the defendant be the subject of an interim supervision order from 13 September 2018 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant was to comply with the conditions in the Schedule attached to his Honour’s judgment.

4. [14]

   That interim supervision order was renewed pursuant to s 10C(2) of the Act for a period of 28 days on the same conditions, on two subsequent occasions:

   1. (1)

      On 9 October 2018, Davies J renewed the defendant's interim supervision order to commence from 11 October 2018 and expire on 7 November 2018; and

   2. (2)

      On 5 November 2018, the Duty Judge renewed the same in Chambers, with consent of the parties, to commence from 8 November 2018.

5. [15]

   At the final hearing on 22 November 2018, before the Court as presently constituted, the State sought and was granted leave to file a further amended summons in court; the amendments concerned the conditions set out in the Schedule to the further amended summons. The matter proceeded upon the application.

6. [16]

   Prior to the final hearing, the matter was brought before Bellew J for directions on Monday, 20 November 2018. On that occasion, the defendant addressed the Court with respect to the difficulties in acquiring evidence from the defendant’s general practitioner as to his physical health (“medical evidence”). The defendant sought an extension of time to file and serve that evidence by the end of that same day, which was not opposed. The solicitor for the defendant, Ms Bridget Kennedy, confirmed that, in the event the report was not available, the defendant would proceed without it and file and serve submissions by the same date. His Honour granted an extension to 5.00 pm on 20 November 2018.

7. [17]

   At the final hearing, counsel for the defendant, Ms Angela Cook, confirmed that the defendant was unable to obtain the aforementioned medical evidence. Instead, the defendant relied, in that respect, upon the evidence as to the defendant’s physical health referred to in the material tendered by the State.

8. [18]

   On 5 December 2018, with consent of the parties, the interim order was renewed for a further period of six days or until the proceedings were finally determined, commencing on 6 December 2018 (being the third and final available renewal available under the Act, only until 11 December 2018).

9. [19]

   On 10 December 2018, the Court made the orders which appear below and indicated that the reasons for judgment would appear in due course.

10. [20]

    The orders were as follows:

    1. (1)

       pursuant to s 5B and s 9(1)(a) of the Act that the defendant shall be subject to an extended supervision order (“the extended supervision order”) for a period of 3 years from 10 December 2018; and

    2. (2)

       pursuant to s 11 of the Act, direct that the defendant, for the duration of the extended supervision order, comply with the conditions set out in Schedule to the further amended summons filed on 22 November 2018.

11. [21]

    These are the reasons for decision with respect to those orders.

Objects of the Act

1. [22]

   The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

2. [23]

   The word “ensure”, which is referred to in the object of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [61].

Application of the Act

1. [24]

   The State may apply for an extended supervision order against “an offender” pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act.

2. [25]

   There are four preconditions to the making of an extended supervision order reflected in s 5B of the Act. That provision is as follows:

Unacceptable risk

1. [26]

   The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk sex offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60].

2. [27]

   As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, two observations may be made.

3. [28]

   First, there may be instances when a person is held to pose an unacceptable risk even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

4. [29]

   Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

Evidence before the Court

1. [30]

   The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act, which included, inter alia, the following:

   1. (1)

      reports and records produced by Corrective Services NSW (“CSNSW”);

   2. (2)

      reports from the court appointed experts: Dr Katie Seidler, Forensic Psychologist (dated 22 October 2018), and Dr Jeremy O’Dea, Forensic Psychiatrist (dated 23 October 2018);

   3. (3)

      a Risk Assessment Report (dated 29 January 2018) produced by Mr Samuel Ardasinski, Senior Specialist Psychologist with the Serious Offenders Assessment Unit of CSNSW, together with a Supplementary Risk Assessment Report (dated 19 June 2018).

2. [31]

   The State also relied upon the following evidence by affidavit:

   1. (1)

      Ms Johanna Fisher, solicitor for the Crown Solicitor’s Office, affirmed 13 July (together with exhibit JF-1), 23 July, 2 August, 9 August (together with exhibit JF-2) and 5 November 2018, respectively; and

   2. (2)

      Ms Annette Caffery, Manager, Extended Supervision Order Team at CSNSW, affirmed 23 July, 5 November and 19 November 2018, respectively.

3. [32]

   The defendant relied upon the evidence tendered by the State without objection. No evidence was adduced by the defendant.

4. [33]

   During the course of proceedings, only Drs Seidler and O’Dea were required for cross-examination.

Background Matters

1. [34]

   The defendant is a 58 year old man.

2. [35]

   He has been in custody almost continuously since 1972 when he was 12 years old.

3. [36]

   The following summary of the defendant’s developmental background is based upon the psychologist report of Ms Barbara Aldrich, dated 2 September 2002. As to his family life, the following was noted:

   1. (1)

      The defendant was the youngest of three children born to the marriage of Cecelia and Norman Cook. He has two older sisters, Rhonda and Debbie.

   2. (2)

      The defendant’s father was described as “a very bad alcoholic and a cruel womaniser”. He reportedly would bring his girlfriends home and sleep with them in the matrimonial bed. He would expect the defendant’s mother to look after them. The defendant’s parents broke up in 1962 – the defendant was two years old at the time.

   3. (3)

      The defendant’s mother had a relationship with Stanley Haddon, shortly after leaving the defendant’s father. They had a son, Richard. Apparently, Mr Haddon was “a very sadistic man as well as a violent alcoholic”. The defendant said that he was targeted by Mr Haddon’s “brutality”. Mr Haddon also beat the defendant’s mother and sister. The defendant said that he often took the blame for things that his sisters did because he could not bear to see them beaten.

   4. (4)

      The physical violence of Mr Haddon was described as including: hitting with closed fists, suffocation, “flogging with a stock whip”, shooting at the defendant and chasing the defendant with a butcher’s knife. Certain particular events were recalled by the defendant: Mr Haddon got angry and shot and buried the defendant’s dog, that same night he “chopped up a bicycle” that the defendant had won.

   5. (5)

      The defendant reported extreme abuse was a “daily” occurrence and “that most of this severe abuse occurred when he was between the ages of about ten and fourteen years”.

4. [37]

   As to the defendant’s background and offending, Ms Aldrich provided the following summary:

5. [38]

   Finally, with respect to his experience with relationships, Ms Aldrich reported:

Criminal Offending

1. [39]

   The defendant’s criminal history consists of a mixture of violent, sexual and other offences dating back to 1972. Details of the defendant's criminal history are recorded in the following documents:

   1. (1)

      Criminal History - Bail Report document;

   2. (2)

      Inmate Profile document; and

   3. (3)

      Conviction, Sentences and Appeals documents.

2. [40]

   The defendant was first brought before the Children's Court at about 11 years of age. The defendant’s subsequent convictions include, inter alia, offences of interpersonal violence, assault with intent to rob, common assault, contravene ADVO, stalk/intimidate with intent to cause fear of physical/mental harm, property damage, stealing, break-and-enters, robberies, driving offences and several counts of escape lawful custody.

3. [41]

   The defendant was charged with rape on 4 January 1980 (“the 1980 charge”). He was found not guilty by jury verdict on 15 September 1981. The State contended that this charge is, from a clinical perspective, relevant to risk.

4. [42]

   The alleged offence, with respect to the 1980 charge, appeared to involve a sexual assault in company of a young woman who was driven by the defendant and two associates to a park in the middle of the night, before being driven back home again. The defendant was aged 19 when he was charged with this alleged offence. In the comments and observations attached to the summary of facts for this alleged offence, it was noted: "[i]n cases such as this, the absence of evidence of a struggle by the girl and the lack of any physical injury are generally regarded as being synonymous with ‘a weak Crown case’”.

5. [43]

   Mr Ardasinski did not discuss this rape charge in his interview with the defendant because he was found not guilty. He did, however, identify the charge as a matter relevant to risk. Both Drs Seidler and O’Dea noted the charge and verdict in the context of their respective summaries of the prior offending of the defendant.

6. [44]

   The Court is not in a position to make a finding of fact in relation to the unproven allegation against the defendant. That evidence may only establish an allegation of rape was made, with respect to a young female, and to that end, it is limited to the defendant’s risk of re-offending. This will also be relevant to the application of the paramount consideration in s 9(2) of the Act. Thus, the evidence with respect to the unproven charge is applicable to the assessment in that limited respect and for the purposes of making the evaluative judgment. As this Court observed in French at [72]:

7. [45]

   On 27 February 1981, the defendant was charged with assault with intent to rape. He pleaded guilty to the alternative charge of assault occasioning actual bodily harm (“the 1981 offence”). The plea as to the alternative charge was accepted in full discharge of the indictment. The defendant was sentenced to one year hard labour by Williams J on 11 September 1981 in Penrith.

8. [46]

   The 2001 offence is the defendant’s second conviction for a sex offence (although it chronologically occurred after the 1993 offence) and was summarised earlier in this judgment.

9. [47]

   The defendant denied committing the 2001 offence to Dr O’Dea, Dr Seidler and Mr Ardasinski. By the defendant’s account, the victim owed him money for marijuana that he had sold her, the victim fabricated the sexual assault for revenge and he was charged as part of a police conspiracy. He maintained this account notwithstanding a strong Crown case against him, which included evidence of the defendant being in the area on that night and identification evidence.

10. [48]

    The 1993 offence was a historical offence and, as previously mentioned, appears as the defendant’s third conviction for a sex offence as a result of later obtained DNA evidence.

11. [49]

    The defendant’s attitude towards the 1993 offence differed amongst the court appointed experts and Mr Ardasinski, as follows:

    1. (1)

       The defendant told Dr O’Dea that he thought the victim was inviting him to have sex with her.

    2. (2)

       The defendant told Dr Seidler that he asked the victim if he could have sex with her and when she refused he raped her.

    3. (3)

       The defendant accepted responsibility for the 1993 offence to Mr Ardasinski. He stated that the reason for his not guilty plea was because he was embarrassed in front of his mother.

12. [50]

    In an earlier psychological report by Mr Mark Howard dated 26 June 2012, the defendant claimed the sexual intercourse was consensual and the defendant did not know the victim was 16 years old

13. [51]

    On 10 May 2011, the defendant was fined for a breach of s 17 of his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”). This was an “offence of a sexual nature” under s 5(2)(f) of the Act.

14. [52]

    The defendant had been living with a woman and her children (an 11 year old girl and a 14 year old boy) for 3 months and on weekends the defendant's partner stayed with the defendant and she had three children aged 14,11 and 7. Neither of these women were aware of the defendant's criminal history or his obligations under the CPOR Act. The defendant failed to notify police of these living arrangements.

Views of Sentencing Court

1. [53]

   Judge Keleman in his remarks on sentence, as to the 2001 offence, stated:

2. [54]

   His Honour also found the defendant had poor prospects of rehabilitation because "of his poor history of response to supervision whilst on parole and the commission of the present offence in circumstances where it is claimed that his life was stabilising".

3. [55]

   Judge Keleman noted that the reports of Dr Westmore and Ms Aldrich detailed that the defendant is "extremely institutionalised" and that because of this the defendant would require significant professional support on his release to reduce his risk of re-offending. His Honour noted that, in the opinion of the authors of those reports, the defendant, although showing some positive rehabilitative signs, held an unrealistic view of how hard it would be to reintegrate in the community.

4. [56]

   The remarks on sentence of Acting Judge Mahoney, prior to the retrial, may be noted. First, his Honour found the defendant’s prospects of rehabilitation to be an “unlikely eventuality”. In that respect, he observed:

5. [57]

   Judge Flannery noted the comments of Mr Howard, psychologist, that the various dynamic aspects of risk associated with the defendant's offending at the time have altered to some degree over the intervening years, that the defendant has aged, has not been convicted of related offences for more than a decade, he has abstained from substance use and attempted to achieve stability in the community. Notwithstanding that assessment, Judge Flannery described the defendant’s prospects of rehabilitation as “guarded”.

6. [58]

   His Honour also considered that the material suggested that the defendant's degree of stability was related to his desire to make his mother proud of him.

Parole

1. [59]

   The 1993 offence occurred eight days after the defendant’s release on parole.

2. [60]

   The defendant has contravened apprehended domestic violence orders on 3 November 2000, 11 December 2000 and 11 April 2001.

3. [61]

   The non-parole period for the 2001 offence expired on 10 April 2007. A Pre-Release Report was prepared on 14 November 2006 by Mr Graeme Chaseling, Parole Officer at Parklea Parole Unit. The report did not recommend release on parole. Mr Chaseling submitted, in this respect, “the Police are better equipped to ensure the safety of the community than this Service, and a multidisciplinary approach may complicate, rather than reinforce surveillance of [the defendant]”.

4. [62]

   The report also revealed the defendant’s negative attitude towards Community Offender Services and parole. The defendant maintained that “he was innocent of the charges for which he was convicted, and that in his view, any willingness to co-operate with Community Offender Services would be an admission of guilt”. Further, the defendant was reported to have said “that he did not want to be released to Parole, because his refusal to accept supervision would bring additional legal difficulties upon him. Even if release to Parole was forced upon him, he said, he would not accept supervision”.

5. [63]

   On 1 March 2007, the defendant’s release to parole was refused for the following reasons:

6. [64]

   On 5 February 2008, Ms Nerrissa O’Neill, Probation and Parole Officer at Kempsey District Office produced a Supplementary Pre-Release Report. Her opinion was supported by Mr Graeme Haggerty, Unit Leader/Manager at Kempsey District Office. As to the defendant’s attitude towards “conditional liberty”, she reported:

7. [65]

   Ms O’Neill did not recommend the release of the defendant on conditional liberty:

8. [66]

   On 3 April 2008, Ms O’Neill produced another Supplementary Pre-Release Report. She noted that the defendant “did not wish the Authority to reconsider its intention to refuse his parole”. Further, she reported that the defendant “made statements that inferred if he does not succeed when he is released into community living that it will be responsibility and fault of others rather than his own”. Ms O’Neill maintained her recommendation opposing parole.

9. [67]

   On 15 April 2008, the defendant’s release on parole was refused for the following reasons:

10. [68]

    The defendant’s sentence for the 2001 offence expired on 10 April 2009. Following his release, the defendant resided with his mother in Tweed Heads.

11. [69]

    The defendant was convicted of the following offences at Tweed Heads Local Court:

    1. (1)

       stalking or intimidation with intent to cause fear of physical or mental harm, on 28 October 2010; and

    2. (2)

       drive whilst disqualified from holding a license, on 23 December 2010.

12. [70]

    On 14 September 2011, he was charged and arrested with respect to the 1993 offence, a historical offence.

13. [71]

    The defendant did not re-offend, with respect to a serious sex offence, in that period.

14. [72]

    The non-parole period for the 1993 offence expired on 13 December 2016.

15. [73]

    On 13 October 2016, the State Parole Authority formed a decision not to release the defendant to parole owing to the “[n]eed [for the defendant] to complete a program to address offending behaviour of sex offending”.

16. [74]

    On 7 November 2017, the State Parole Authority confirmed its provisional decision to grant parole (“subject to Commissioner’s submission”). In a Stand Over notice addressed to the Governor of the Junee Correctional Centre, the authority noted that, having regard to s 135(1) and (2)(a)-(k) of the Crimes (Administration of Sentences) Act 1999 (NSW), “it is satisfied that release to parole is in the public interest”. In particular, the following observations were made:

17. [75]

    The Authority also identified the following as “critical issues”:

18. [76]

    On 22 November 2017, Ms Jennifer Priest, Community Corrections Officer at Long Bay Correctional Complex, produced a Supplementary Pre-Release Report. Ms Priest, cited the defendant’s progress in custody, the availability of suitable accommodation and his eligibility to participate in a weekly treatment program facilitated by Forensic Psychology Services (“FPS”), in making a recommendation for release to parole.

19. [77]

    By a further Supplementary Pre-Release Report dated 29 November 2017, Ms Priest confirmed that the defendant had accepted a treatment offer to participate in the Custody Based Intensive Treatment program (“CUBIT”) at Metropolitan Special Programs Centre (“MSPC”), which was of “approximately 6-10 month in duration”. The defendant was transferred to MSPC on 27 November 2017.

20. [78]

    On 28 November 2017, during an interview with Community Corrections, the defendant advised that he was prepared to remain in custody to complete the CUBIT program and signed the relevant paperwork reflecting that decision. Ms Priest reported: “To his credit, [the defendant] has agreed to participate in the program and therefore does not seek release to parole at this juncture”. Further, in support of Ms Priest’s report, Mr Robert Messitt observed:

Interim Supervision Order

1. [79]

   The defendant was released from custody on 13 September 2018. As earlier mentioned, he was the subject of an interim supervision order from the date of his release. The affidavit of Ms Caffery, Manager, Extended Supervision Order Team at CSNSW, affirmed 5 November 2018, set out a summary of the defendant’s behaviour and compliance whilst subject to the interim supervision order. She deposed that her account was informed by, inter alia, her communications with the defendant’s Departmental Supervising Officer (“DSO”) Mr Peter Edsall, Unit Leader at Lismore Community Corrections Office. Mr Edsall has been the defendant’s DSO since the commencement of the interim supervision order and was in regular contact with Ms Caffery.

2. [80]

   Ms Caffery set out an account of defendant’s medical history. A summary of her evidence follows:

   1. (1)

      On 30 September 2018, the defendant was admitted to Tweed Heads Hospital after reporting “acute abdominal pain”.

   2. (2)

      On 3 October 2018, the defendant underwent a Magnetic Resonance Imaging scan.

   3. (3)

      On 5 October 2018, the defendant was discharged from hospital.

   4. (4)

      The defendant told the DSO that he was diagnosed with “pancreas divisum”, which causes episodes of pancreatitis. The DSO was yet to confirm the diagnosis and its impact on the defendant’s health.

   5. (5)

      The defendant has had medical issues with his eyes and his been seeing Dr Purser at Queen Street Medical Centre in Murwillumbah.

   6. (6)

      Dr Purser is the defendant’s GP and prescribes the defendant’s methadone.

3. [81]

   At the time of Ms Caffery’s affidavit, she also deposed “the DSO is attempting to have the defendant provide the DSO with copies of any medical reports that the defendant received while being on the ISO”. None were since provided.

4. [82]

   Ms Caffery also provided an account of “[t]he DSO’s observations of the defendant’s physical limitations”. That is extracted, in full, below:

5. [83]

   As to the defendant’s compliance during his period under the interim supervision order, Ms Caffery deposed:

Behaviour in Custody

1. [84]

   The following summary was prepared by Mr Chaseling and is derived from the Pre-Release Report dated 14 November 2006:

2. [85]

   On 5 February 2008, Mr Haggerty produced a Supplementary Pre-Release Report. He observed the following:

3. [86]

   On 22 November 2017, Ms Priest confirmed that the defendant’s classification was approved on 17 November 2017 for him to progress “from an E2 Medium Security (Escapee) Inmate to a C1 Minimum Security Inmate”.

4. [87]

   As to the defendant’s behaviour in custody, Ms Priest observed: “[the defendant] has not incurred any Institutional Misconduct's since the provision of the Anniversary Report dated 8 October 2017” (being a period of almost 2 months at the date of her report).

5. [88]

   Ms Priest also reported that, on 13 November 2017, a Custodial Officer at Junee Correctional Centre advised that the defendant “mixes well with other inmates, has had the same cell mate the whole time he has been in Junee, no issues with them, maintains a walking stick and has some mobility issues, no trouble within the Unit pretty quiet compliant to routine and direction”.

6. [89]

   Mr Ardasinski made the following observation as to the defendant’s behaviour and progress in custody:

7. [90]

   Mr Ardasinski also reported that, during his time in custody, the defendant turned “on his fellow prisoners as an informant, which resulted in his not sitting neatly within either the ‘us’ or ‘them’ camp in prison settings”.

Reports of Court Appointed Experts

1. [91]

   There was a great deal of consensus as to the diagnoses of the defendant, namely, antisocial personality disorder and substance use disorder, by Drs O’Dea and Seidler (collectively, “the Court appointed experts”). Their opinions, in this respect, are summarised below. Additionally, their respective views in relation to the defendant’s account of depression, anxiety and his recent medical history are also noted. I will return to the divergence of opinion between the Court appointed experts, with respect to risk, separately, under a subsequent heading.

2. [92]

   The Court appointed experts unanimously opined that the defendant's serious sex offending is less about “sexual deviance” and related to his “antisocial personality disorder”. Dr O’Dea, in this respect, opined:

3. [93]

   Dr Seidler opined:

4. [94]

   The Court appointed experts noted that personality disorders are enduring conditions with limited amenability to treatment and fundamental change. Dr O'Dea opined that such personality disorders are considered modifiable with external support controls such as the extended supervision order conditions.

5. [95]

   Dr Seidler commented that antisocial personality disorder is known to decline in its effect with advancing age (referred to as "burn out") and considered that the defendant may be showing signs of this. However, she noted, "[a]lthough [the defendant's] tendency to commit crimes is probably in the process of decline, his personality structure remains unchanged...".

6. [96]

   The Court appointed experts unanimously opined that the defendant's antisocial personality disorder is a risk factor, notwithstanding the defendant's possible "burn out" age.

7. [97]

   The Court appointed experts had regard to the chronic history of the defendant’s illicit drug use, in particular, cannabis and heroin.

8. [98]

   Dr O'Dea diagnosed the defendant with a substance use disorder (cannabis and heroin). He described the diagnosis as being in good control but considered it was still a risk factor; noting, in that respect, that the defendant must remain abstinent to minimise the risk of sexual re-offending.

9. [99]

   Dr Seidler noted that the defendant had been drug abstinent for over 20 years, but noted “he has been on a blockade dose of methadone and therefore, [the defendant's] ability to physiologically maintain drug abstinence is as yet untested”.

10. [100]

    Dr Seidler also observed:

11. [101]

    Dr O’Dea also noted the defendant’s history of anxiety and depression. He noted the defendant had “responded well to antidepressant medication” and opined, with respect to the defendant’s anxiety disorder, that “with ongoing treatment… is likely to remain under good control and not significantly adding to his risk of re-offending”.

12. [102]

    As to the same, Dr Seidler noted:

13. [103]

    As the defendant’s medical history, Dr O’Dea made the following observation:

14. [104]

    As to the same, Dr Seidler noted the account of the defendant:

15. [105]

    On 5 October 2018, Dr O'Dea interviewed the defendant for 3 hours by audio visual link, noting the defendant presented as a relatively fit and healthy man.

16. [106]

    Dr O'Dea considered the defendant's risk of engaging in further serious sex offending "significantly high". He opined:

17. [107]

    Dr O’Dea also opined:

18. [108]

    Dr O’Dea was cross-examined at length about the impact of the defendant’s physical status and/or limitations upon his opinion set out in his report. He accepted that such factors would impact upon his conclusions with respect to risk, however, they are only “one parameter of looking at his overall risks”.

19. [109]

    As to whether or not an acceptance of the DSO’s observations – namely, the defendant was walking with a walking stick and he had difficulty navigating obstacles such as steps and walking long distances – would change his ultimate opinion in his report, he gave the following evidence:

20. [110]

    Dr O’Dea only conceded that such evidence “could” impact upon risk assessment and would depend upon “the nature and extent” of the relevant condition: such as whether a condition was “more transient than permanent” and appreciating the fact that “medical conditions do fluctuate”. Hence, he said he could not provide a precise comment.

21. [111]

    Dr O’Dea also gave evidence that in the absence of “knowing the nature and extent of the medical conditions which may ameliorate his risk, then it makes it less definite for me to say how much that would ameliorate his risk and, of course, therefore the ultimate issue of whether it would ameliorate it or reduce it below a threshold that I’m asked to consider in the implementation of an ESO”.

22. [112]

    Counsel for the defendant sought to enlist, during cross-examination, Dr O’Dea’s opinion as to the defendant’s medical conditions, but Dr O’Dea did not accept he was in a position to express any “definitive” opinions in that respect. Dr O’Dea stated his opinion was limited, in that regard, for two reasons: “(1) because of the [conduct of the interview by] AVL, but also (2) because of, you know, my area of expertise. I wasn't - and I didn't make a definitive assessment of those medical conditions”. Further, he stated that whilst those conditions may have an impact on the defendant’s risk issues, such as risk assessment and risk management, the significance of that impact would depend upon the nature and extent of those conditions.

23. [113]

    During re-examination, Dr O’Dea clarified the “other parameters” that informed his opinion as to the risk of sexual recidivism. He opined:

24. [114]

    On 11 October 2018, Dr Seidler interviewed the defendant for two and three quarter hours by audio visual link.

25. [115]

    Dr Seidler noted the defendant's institutionalisation is a risk factor in that it has limited the defendant's capacity for social skills and reciprocal connections with others and the defendant has limited coping skills in terms of coping with emotional distress and significant stress. She reported the defendant said his isolation from the community was a context for the 1993 offence.

26. [116]

    Dr Seidler distinguished between the defendant’s risk of serious sex offending and general offending. She opined that the defendant is at high risk of future criminal conduct noting that:

27. [117]

    However, Dr Seidler considered that, whilst the defendant's risk of general future antisocial conduct is high, his risk of sexual violence is lower and in the "moderate range" having considered the defendant's age, his physical health status, the antiquity of the offending and that the defendant completed CUBIT. (Dr Seidler also noted that the risk assessment tool, which produced a result of “moderate”, does not account for the defendant’s physical capacity and/or illness).

28. [118]

    During examination-in-chief, Dr Seidler opined that antisocial personality disorder underpinned both the defendant’s serious sex offending and general offending. As to the “two different degrees of risk” identified above, Dr Seidler gave the following explanation:

29. [119]

    As to the defendant’s age and physical health status, Dr Seidler accepted that those factors “would reduce [the defendant’s] risk of serious sex offending” but were not as relevant to his risk of “general offending”. Dr Seidler opined:

30. [120]

    During re-examination, as to attenuation of aspects of the disorder over age, Dr Seidler explained that “the behaviour starts to disappear. But the personality stayed or effect remains”.

31. [121]

    Dr Seidler also commented that the defendant's has a "strong degree of institutionalisation" and his mother's death will probably destabilise the defendant and this may increase his risk of re-offending if he is not supported during this time.

32. [122]

    Dr Seidler did not consider that the defendant’s prior substance abuse was a factor that increased his risk of sexual recidivism. She opined, “I am not convinced at this age, at this stage of life with everything else is as it is for him, that a return to drug use would significantly increase his risk of sexual crime, it will increase his risk but I am not sure it would be a significant contributor”.

33. [123]

    During examination-in-chief, Dr Seidler accepted that the defendant demonstrated “a superficial understanding of consent and sexual boundaries” and that such a factor is relevant to an assessment of the defendant’s risk, but not necessarily a likelihood of him re-offending.

34. [124]

    During cross-examination, Dr Seidler further expanded upon her approach to assessment of risk, namely, her differentiation between the “theoretical risk” and the “practical risk”:

35. [125]

    Dr Seidler was aware that the defendant suffered from scoliosis.

36. [126]

    In light of the evidence of the defendant’s mobility and physical health, Dr Seidler opined that such evidence did not impact upon the “theoretical risk” but was relevant to the “practical risk”: “it’s harder for him to engage in an act of sexual violence. Not impossible. Just harder”.

37. [127]

    Dr Seidler reached the following conclusion:

38. [128]

    Dr Seidler also provided an opinion as to whether or not an extended supervision order should be made, however, accepted such a determination is a question for the Court. She confirmed that her opinion as to the imposition of an order and a duration of 3 years concerned the management of “a general notion of risk”.

39. [129]

    During cross-examination, as to the duration of an order, she in part moved back from her initial opinion that “to manage the risk of future sexual offending, the risk assessment in this case would suggest that a period of three years is unnecessary and could be reduced, possibly to around 12 months to facilitate”. She opined: “[if] [y]ou are purely talking about management risk of future sexual violence. Then I don’t think 12 months is applicable. I think there is no need for an order”.

40. [130]

    It may observed that Dr Seidler is not a doctor of medicine and expressed very few of the reservations expressed by Dr O’Dea as to the appropriateness of correlating risk with the defendant’s physical attributes in the absence of medical opinions bearing upon that question.

41. [131]

    The defendant’s physical status is not irrelevant but there are real difficulties in applying limited, anecdotal information, regarding the same, to the evaluation of unacceptable risk under s 5B(d) in the absence of medical opinion. Dr O’Dea’s cautious approach, in that respect, is preferable.

Psychologist Assessment by Registered Psychologist: Mr Ardasinski

1. [132]

   As to the relevant supporting documentation mandated in s 6(3), an application for an extended supervision order must include a report prepared by an appropriate health professional that assesses the likelihood of the offender committing a serious offence (s 6(3)(b)). The Risk Assessment Report of Mr Ardasinski, together with the Supplementary Risk Assessment Report, addressed this issue and also provided evidence and opinion as to related issues, in broad terms, under s 9(3).

2. [133]

   Mr Ardasinski interviewed the defendant for three hours on 18 January 2018 at the Metropolitan Special Programs Centre at the Long Bay Correctional Complex to discuss with him the potential for an application by the Department of Justice NSW for an extended supervision order under the Act.

3. [134]

   On 29 January 2018, Mr Ardasinski prepared a Risk Assessment Report in relation to the defendant pursuant to s 6(3)(b) of the Act.

4. [135]

   In preparation for the report Mr Ardasinski reviewed, inter alia, the following documents: the electronic cases notes contained in the Offender Integrated Management System (“OIMS”); the defendant’s CSNSW Psychological Files, including CUBIT treatment progress notes; facts sheets for the 1993 offence and the prior sexual offence charges; the defendant’s bail report; and psychological and psychiatric reports.

5. [136]

   Mr Ardasinski made the following observations:

   1. (1)

      As to the defendant’s presentation, he observed the defendant “looked older than his stated years” and “walked with the assistance of a walking stick, demonstrating a noticeable limp and being vocal in the discomfort he felt at sitting down and then returning to stand”.

   2. (2)

      With regard to the 1993 offence, the defendant admitted to having committed the offence, and suggested that he had only pleaded not guilty to avoid embarrassment in front of his elderly mother, who had been "proud" of his more recent efforts to avoid re-offending. He accepted responsibility for his part in the offence, and did not engage in victim blaming or minimise his involvement in the crime. He stated:

   3. (3)

      The defendant also accepted full responsibility for the 1993 offence when he was required to disclose his offence within the context of his therapeutic CUBIT group.

   4. (4)

      With regard to the 2001 offence, the defendant’s attitude towards that offence was one of denial, which was consistent with his account in group (see CUBIT progress notes dated 18 December 2017), whereby he stated, “if I was guilty I'd say it” and reported that it was police corruption citing some infamous corrupt police officers names, and this has been his consistent attitude since his arrest. The defendant’s rationale for why the victim of the 2001 offence “falsely” accused him of sexual assault was that the victim "owed me $60 for pot" and maintained that this was the reason he had never participated in programs during his previous sentence, and he was therefore released with no supervision at the end of his last sentence in 2009.

   5. (5)

      As to the 1981 conviction, the defendant suggested that there was no sexual intent in this offence, and indicated that he had only entered a plea of guilty to the alternative charge in order to expedite sentencing, stating that he was given assurances by his legal representative that he would only get a 12 month sentence, which was to be served concurrently with other sentences he was serving.

   6. (6)

      Based on a review of the defendant’s custodial history, it seems the defendant has only ever survived for a few months in the community, either on parole or at the expiry of his sentence on unconditional liberty, before returning to custody.

   7. (7)

      The defendant was at pains to highlight that he did not re-offend in 2011 when he was returned to prison for the “cold case” for which he was currently serving a sentence (at the time of the interview). The defendant indicated that he felt he was leading a prosocial existence and was finally making his "mother proud". Mr Ardasinski accepted, in this respect, that “it appear[ed] that [the defendant] was indeed existing prosocially between the date of his last release from custody (10/4/09) and his arrest for the historical index sex offence (14/9/11) better than any period previously, at least superficially”.

   8. (8)

      The defendant’s criminal trajectory has progressed to more serious offending from relatively minor offences as a juvenile, as is often seen in recidivistic individuals with a lengthy prison history. In this respect, Mr Ardasinski opined:

   9. (9)

      The defendant’s response to community supervision has been described as poor in the documentation which has been prepared by NSW Community Corrections. Mr Ardasinski cited the following note (Muddle, 9 May 2001):

   10. (10)

       Given the length of time the defendant has spent in custodial settings since the age of 12, and the degree of institutionalisation which he has demonstrated as a result, ongoing supervision in the community may provide assistance to an effective reintegration process for the defendant.

   11. (11)

       The defendant would benefit from “ongoing supervision and professional support, the long-term aim would be to foster problem-solving and stress-coping abilities in [the defendant] such that he no longer requires the assistance of external bodies to contain his risk of sexual or other offending. Such supervision could minimise risk of behaviour that may otherwise result in a sexual offending scenario, provided [the defendant] is willing to engage fully in that process”.

6. [137]

   Mr Ardasinski considered and applied various types of rating scales to predict the risk of the defendant engaging in further sex offending behaviours in the community in the long term, namely, Level of Service Inventory - Revised (“LSI-R”), Static Risk Factors: STATIC-99R and STATIC-2002R, and Dynamic Risk Factors: STABLE-2007 and Risk of Sex Violence Protocol (“RSVP”). The results of each assessment are discussed in turn below.

7. [138]

   The defendant had previously been assessed for risk of general re-offending using the LSI-R by Community Corrections. This is an actuarial risk instrument noted to be a good indicator of general re-offending (i.e. not limited or specific to sex offending).

8. [139]

   The records indicated this instrument was administered to the defendant on 26 October 2011. By that assessment, the defendant’s “risks/needs” fell into the “Medium-High” range, relative to other male offenders.

9. [140]

   Mr Ardasinski assessed the defendant's risk of sexual re-offending using the STATIC-99R for actuarial statistical risk assessment. The STATIC-99R is an instrument specifically designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. Mr Ardasinski noted its “moderate predictive accuracy”.

10. [141]

    The defendant was previously assessed on 27 June 2011. The defendant received a score of 4, which placed him in the “Moderate-High” risk category. Mr Ardasinski noted that earlier assessment did not identify the 1981 conviction as a sexually-motivated offence, which he described as an “error”, and the instrument has been further revised since 2011.

11. [142]

    Mr Ardasinski assessed the defendant on 9 January 2018. The defendant received a score of 5, which placed him in the “Moderate-High” risk category, relative to other male sexual offenders. He observed that scores between 4 and 5 on the STATIC-99R fall into the category referred to as “Above Average” or “Level IVa". In light of that result, Mr Ardasinski stated:

12. [143]

    Mr Ardasinski observed, “[t]he rate of recidivism for individuals with a score of 5 is estimated to be almost three times higher than that of the 'typical' sex offender”.

13. [144]

    Mr Ardasinski also assessed the defendant's risk of sexual re-offending using the STATIC-2002R, another form of actuarial statistical risk assessment.

14. [145]

    The STATIC-2002R is an empirical actuarial risk assessment tool for adult male individuals convicted of sexual offences. The scale has 14 items grouped into 5 main subscales: age at release, persistence of sex offending, sexual deviance, relationship to victims and general criminality. The total score for STATIC-2002R can range from -2 to 13. The STATIC-2002R also has moderate predictive accuracy in ranking offenders according to their relative risk for sexual recidivism.

15. [146]

    The defendant’s score on the STATIC-2002R was 6, which placed him in the "Moderate" risk range. The new risk category assigned to a STATIC-2002R score of 6 aligns with the revised STATIC-99R risk category of Level IVa. Mr Ardasinski noted:

    1. (1)

       the rates of sexual recidivism for sexual offenders within the STATIC-2002R “routine” normative samples who had a score of 6 on the STATIC-2002R were between 16.9 and 21.6 per cent over five years;

    2. (2)

       another normative sample, pre-selected for its high risk/needs, saw individuals who had a STATIC-2002R score of 6 re-offending at a rate of between 18.9 and 27.0 per cent over five years; and

    3. (3)

       84.8 per cent of sexual offenders in the routine sample would score below the defendant’s STATIC-2002R score.

16. [147]

    The rate of recidivism for individuals with a STATIC-2002R score of 6 is estimated to be almost three times higher than that of the “typical” sex offender.

17. [148]

    Mr Ardasinski also accepted the limitation of “instruments such as the STATIC-99R or STATIC-2002R”. He said:

18. [149]

    At this juncture, it may also be noted that Dr Seidler conducted assessments utilising both the STATIC-99R and STATIC 2002R, with the same results as Mr Ardasinski: 5 on the STATIC-99R and 6 on the STATIC 2002R.

19. [150]

    The STABLE-2007 is a tool developed to assist clinicians in identifying stable dynamic risk factors. Several dynamic factors have been consistently found to be related to sexual re-offending. These factors are intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation.

20. [151]

    The STABLE-2007 consists of 13 items related to psychological, interpersonal and sexual functioning, which are added together to create a total score. These stable risk factors are persistent characteristics that remain relatively stable over time, but are amenable to change through effortful intervention, such as treatment and supervision. These factors are specifically addressed within the treatment program structure within CSNSW Sex Offender Programs.

21. [152]

    The defendant’s total score on the STABLE-2007 was 9, suggesting a “Moderate density of criminogenic needs”, relative to other male sexual offenders. Mr Ardasinski observed:

22. [153]

    Mr Ardasinski reported that the STABLE-2007 can be combined with the STATIC-99R or STATIC-2002R to generate a “composite assessment of risk/needs”. The combination of both scores, in the case of the defendant, placed him in “Level IVa” or “Above Average” risk. Mr Ardasinski opined, “[i]n accordance with CSNSW policy, this combined assessment of risk/needs level would suggest [the defendant] requires a Medium level of intervention and/or supervision, according to the principles of Risk/Needs/Responsivity”.

23. [154]

    The RSVP is a structured professional judgment tool whereby the offender is considered against a specific list of 22 dynamic risk factors deemed important in the scientific and professional literature. The factors relate to the five domains of: Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment and Manageability. The factors are not mutually exclusive.

24. [155]

    In light of the RSVP (and STABLE-2007), Mr Ardasinski identified the following risk factors for sexual offending (or “crimogenic needs”) as relevant to the defendant:

    1. (1)

       Relationship and intimacy deficits, lack of prosocial peers;

    2. (2)

       Institutionalisation and mental health problems resulting from child abuse;

    3. (3)

       Substance abused issues;

    4. (4)

       Antisocial lifestyle – non-sexual criminality, supporting self through crime, being in the criminal element;

    5. (5)

       Lack of work ethic and work skills;

    6. (6)

       Denial/minimisation; and

    7. (7)

       Poor co-operation with supervision.

25. [156]

    As to those factors, Mr Ardasinski provided a comprehensive review in relation to the defendant. Some of his observations included:

    1. (1)

       “[The defendant] has been in and out of custodial settings since his adolescence, and this has resulted in a level of institutionalisation which would make it difficult for him to adapt to a normal, lawful community existence, individuals who have experienced trauma and re-traumatisation through the prism of institutionalisation may also display symptoms of the traumatic response, such as hypervigilance, irritability and aggression. [The defendant's] relationships, and the suggestions of domestic abuse within them, are indicative of an individual with issues adapting to the community”.

    2. (2)

       “[The defendant] was using cannabis when he was last at liberty in the community, and there still therefore remains the risk that a return to problematic drug use could heighten his risk of repeat offending and a return to the criminal element”.

    3. (3)

       “[The defendant’s previous] periods of community living have ultimately ended with his becoming involved in further crime and returning to prison. The antisocial attitudes which permit the continuance of such a lifestyle would ordinarily, by now, be quite entrenched and would require some radical difference the next time he is released to shift them - his participation in high-intensity treatment and his newfound compliance with the supervision process may indicate that his attitudes are beginning to shift”.

    4. (4)

       “[The defendant] has never fully engaged with his community supervisors - he has reoffended, usually quite rapidly, upon his release. His most recent period which included a period under community supervision (in 2010-2011, as much as [the defendant] minimised this in interview) appears to have been a genuine attempt to utilise the supervision process appropriately, and as he was returned to custody on relatively minor offences only, and then charged with a historical sex offence, it may be that [the defendant]'s history of poor compliance with supervision is over”.

26. [157]

    In addition to the above assessment, Mr Ardasinski made the following observations as to risk:

27. [158]

    In light of the evidence, it was suggested that the defendant falls in the “Moderate risk category” of sexual offending relative to other adult male sexual offenders. Mr Ardasinski observed: “[s]ince [the defendant’s] most recent sexual offending has been 'serious' in nature, it is possible that any future sexual violence or other criminal offending could approach the threshold of a "serious sexual offence" as defined in [the Act]”. However, on the balance of the evidence, Mr Ardasinski considered that if the defendant were to re-offend, “[he] is more likely to engage in non-sexual criminality than a new sex offence upon his release to the community, with his history of robberies and other such offending more prevalent on his record, and his history as a habitual traffic offender being more recent”.

28. [159]

    Mr Ardasinski’s conclusions included the following:

Other Reports by Psychiatrists and Psychologists

1. [160]

   In addition to the earlier referred to reports of Drs O’Dea and Seidler and Mr Ardasinski, the following reports were before the Court as an annexure to the affidavit of Ms Fisher dated 28 March 2018:

   1. (1)

      Psychological Reports of Ms Aldrich dated 2 September, 6 November 2002 and 30 November 2004 (“the Aldrich reports”); and

   2. (2)

      Psychological Report of Mr Howard dated 26 June 2004 (“the Howard report”).

2. [161]

   The Aldrich reports were produced for the defendant’s sentencing hearing with respect to the 2001 offence. Ms Aldrich opined on the defendant’s struggles associated with institutionalisation. However, she held a positive view as to his prospects of rehabilitation, with the caveat being the defendant is provided the right support and intensive treatment. On 6 November 2002, she reported: "with his history of abuse and early incarceration, and concomitant institutionalisation [the defendant] is a high needs client. He would (and will) need some very close supervision and intensive treatment".

3. [162]

   On 30 November 2004, she opined that the defendant’s “institutionalisation has gotten worse” and his support appears to have “decreased”. Ms Aldrich opined that such a combination has “repeatedly led to a failure of his re-integration into the wider community and has driven him back to what was familiar. This must be avoided this time as adjustment will become harder as he gets older".

4. [163]

   The Howard report was prepared for the defendant’s sentencing hearing in relation to the 1993 offence. Mr Howard scored the defendant significantly high on the anxiety scale of the Millon Clinical Multiaxial Inventory III tool. He noted, such a result manifests in mood dysregulation and anxiety symptoms and commented that the defendant continued to experience a “moderate-severe” level of distress which appeared to be reactive to current stressors, such as the failing health of his mother at the time.

Response from CSNSW as to Management in the Community

1. [164]

   On 28 February 2018, Ms Erin Kirkwood, Senior Community Corrections Officer of the Metropolitan Extended Supervision Order Team, prepared a Risk Management Report pursuant to s 9(3)(d1) of the Act that was endorsed by Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer (“the Risk Management Report”).

2. [165]

   The Risk Management Report provided a summary of the defendant’s previous management by Community Corrections at CSNSW whilst on release to parole. Part of that report is extracted as follows:

3. [166]

   In terms of potential community support on release the Risk Management Report recorded:

4. [167]

   As to general re-offending, CSNSW conducted an assessment using the LSI-R on 26 October 2012. The assessment found the defendant to fall in the “Medium to High risk level for general re-offending”. (As to the risk of sexual re-offending the Risk Management Report diverted attention to the Risk Assessment Report of Mr Ardasinski, discussed above).

5. [168]

   The risk management plan outlined in the Risk Management Report was informed by, inter alia, the dynamic risk factors identified by Mr Ardasinski, which were informed by the information in the Risk Assessment Report.

6. [169]

   In light of that material, the Risk Management Report set out a risk management plan for the defendant. It addressed the details and limitations with respect to the following suggested management strategies:

   1. (1)

      interviews with the defendant;

   2. (2)

      field visits;

   3. (3)

      third party contacts;

   4. (4)

      monitoring, schedules and curfews;

   5. (5)

      referral to CSNSW psychological services;

   6. (6)

      referral to psychiatric services;

   7. (7)

      referral to alcohol and other drug services;

   8. (8)

      alcohol and other drug testing;

   9. (9)

      contact with children under 18 years of age; and

   10. (10)

       non-association and place restrictions.

7. [170]

   Each management strategy sought to manage and/or monitor an individual or combination of the following risks associated with the defendant:

   1. (1)

      relationship and intimacy deficits;

   2. (2)

      lack of prosocial peers;

   3. (3)

      institutionalisation and mental health problems resulting from child abuse;

   4. (4)

      anti-social lifestyle – non-sexual criminality, supporting self through crime, being in the criminal element;

   5. (5)

      denial/minimisation;

   6. (6)

      poor co-operation with supervision; and/or

   7. (7)

      substance abuse issues.

8. [171]

   It was further recommended that, following implementation, the risk management plan be subject to review every two months and updated as necessary to reflect any significant changes to the defendant’s circumstances.

Treatment and Rehabilitation Programs

1. [172]

   The defendant participated in the CUBIT program and completed the program between 4 December 2017 and 13 September 2018. He was previously ineligible to participate in the program owing to his classification as an “Escapee”.

2. [173]

   As to the defendant’s participation in the program, Mr Ardasinski reported:

3. [174]

   Dr O’Dea noted, in the absence of access to a CUBIT progress report, a report by Ms Nicole Weaver, Psychologist, dated 31 May 2018, may be referred to. She observed the defendant to be engaging in the program and, despite some challenging behaviours, showing some progress (as at the date of her report). Notwithstanding that observation, Dr O’Dea opined that it is unlikely that CUBIT will have a significant impact on reducing the defendant's risk of engaging in further serious sex offence in the long term in the community.

4. [175]

   The court appointed experts placed different weight, in their assessment of risk, upon the defendant’s completion of the program:

   1. (1)

      Dr O'Dea considered that, although the defendant completed CUBIT, he continued to have "limited insight into his role in the offences, limited remorse for his actions in relation to the offences and limited empathy for the victim of the offence"; and

   2. (2)

      Dr Seidler opined that such completion is a factor that reduces the defendant’s risks. She noted, the defendant told her he gained self-awareness from the program and an emotional appreciation of the impact of his behaviour on others.

The State

1. [176]

   The State made the following submissions:

   1. (1)

      The defendant meets the threshold requirements under s 5B for an application to be made for an extended supervision order and when s 9(2) and (3) factors are considered the Court should grant the extended supervision order.

   2. (2)

      The Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence in the absence of supervision (and support) because:

   3. (3)

      As to the divergence of opinion between the court appointed experts and Mr Ardasinski, with respect to risk assessment, namely, Dr O’Dea opined that absent supervision there is a “high degree of probability” the defendant poses a risk of further serious offending, whereas Dr Seidler and Mr Ardasinski considered the defendant presents a high risk of recidivism of general re-offending but in the “moderate” range for sexual offending. The State contended the opinions of the latter “appear to consider the likelihood of sexual reoffending… rather than the degree of probability of the risk the defendant presents”. The likelihood of sexual re-offending, it was submitted, is not the sole measure of risk evaluation under s 5D.

   4. (4)

      Even if the Court found there was a moderate risk of recidivism, this is outweighed by the “nature of the risk”. In this respect, the State submitted: “the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious sex offence if not supervised” (original emphasis).

   5. (5)

      Supervision would be the effective, justified and reasonably appropriate measure to reduce the defendant's high risk of sexual re-offending and an extended supervision order would be protective in that regard (see s 3 of the Act).

2. [177]

   As to the Dr Seidler’s two-pronged approach to risk assessment, namely, the theoretical risk versus the practical risk, the State contended that her approach conflated the task before the Court. The State submitted that the consideration of the “theoretical risk” – or the identification of the risk itself – is that which the Court is asked to evaluate under s 5B(d). The “likelihood” of that risk eventuating – that is, the expression of the risk – is dealt with separately under s 5D. The State contended, “the expression of the risk, it may be low but that doesn't deny in the outcome that he is not an unacceptable risk for s 5B(d) purposes, and that's precisely why s 5D was enacted, to guide the court to say you're not just considering the likelihood of reoffending, and that's of course where the physical limitations may take on more relevance, you're considering the clinical opinions of risk, the nature of the risk, the way it's presented, the s 9(3) factors, [or] to use Dr Seidler's words ‘the jigsaw puzzle’ that's presented”.

3. [178]

   During oral submissions, the State identified further factors, that arose in the course of evidence, that may inform the evaluative judgment under s 5B(d), which included:

   1. (1)

      Dr Seidler’s opinion with respect to the defendant’s “superficial understanding of consent and sexual boundaries” – notwithstanding his participation and completion of the CUBIT program.

   2. (2)

      The defendant’s exposure to sexual and physical violence in his youth, which Dr Seidler also opined would have had a profound impact on the defendant’s understanding of relationships and acceptability of violence within them.

4. [179]

   As to the defendant’s likelihood of compliance with obligations under the extended supervision order, the State noted the defendant's compliance with parole, evidenced by his criminal history, has been poor. The State also made reference to the Bail Report and noted the defendant has a history of escape lawful custody convictions (1978, 1981, 1984, 1985, 1990 and 1994). However, the State accepted that “the experts' views, corroborated by the defendant's conduct, evidences a shift in his attitude to supervision”. In light of such evidence, the State submitted, “[t]he defendant shows a likelihood of complying with conditions of an ESO”.

5. [180]

   Turning to the breach of reporting obligations in 2011, the State conceded that such an offence is not indicative of a high risk of further serious sex offending. However, it was contended, that the defendant’s attitude towards the breach revealed his “lack of insight” into his high risk scenario and his classification as a child sex offender, which warrants oversight.

6. [181]

   Taking all of the mandatory considerations into account, the State contended that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious sex offence, if not kept under the supervision of an extended supervision order. In addition to those factors, it was further submitted, the unacceptable risk test is met and an extended supervision order should be granted because:

   1. (1)

      The continued use of methadone demonstrates an ongoing dependence on a substance to help the defendant cope;

   2. (2)

      Should the defendant be challenged with an emotionally stressful situation (such as the passing of his mother), his substance use disorder and anxiety issues elevates his risk of returning to illicit drugs and this elevate his unacceptable risk of serious sex offending;

   3. (3)

      The defendant has persistently denied the 2001 serious sex offence notwithstanding the overwhelming Crown case against him and he externalised blame to the victim of the 1993 offence (suggesting she invited him, by her actions, to insert his penis into her vagina). These attitudes suggest that caution is warranted regarding the defendant's expressions of purported remorse and that he holds misogynistic views;

   4. (4)

      Though the defendant has participated in CUBIT his skills are relatively new and untested in the community;

   5. (5)

      The statistical assessment tools still put the defendant in the above average or moderate risks of sexual re-offending; and

   6. (6)

      Although the experts note the defendants physical limitations may ameliorate his risks of serious sex or violent offending, the experts still place the defendant in a moderate risk category or higher because of his antisocial personality disorder, institutionalisation and other dynamic risk factors.

7. [182]

   Finally, the purpose of an extended supervision order is protective and the safety of the community is the paramount consideration: s 9(2). The State submitted, young girls may be the target of the defendant's sexual re-offending. Their safety is a paramount consideration when determining if an extended supervision order should be granted.

The Defendant

1. [183]

   The submissions of the defendant may be summarised as consisting of three contentions:

   1. (1)

      The defendant opposed the making of an extended supervision order.

   2. (2)

      Specifically, the defendant did not concede that the Court would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision.

   3. (3)

      In the event that the Court makes an extended supervision order:

2. [184]

   The defendant made the following concessions:

   1. (1)

      The defendant is an "offender" as defined in s 4 of the Act:

   2. (2)

      The defendant was sentenced in 2012 to a term of imprisonment for 7 years for four counts of aggravated sexual intercourse without consent contrary to section 61I, Crimes Act. The circumstance of aggravation was the age of the victim (15 years). It is conceded that this offence falls within the definition of "serious offence": see ss 4 and 5A(1)(a).

   3. (3)

      At the relevant time, the defendant was a "supervised offender" as defined in s 5I of the Act.

3. [185]

   Whilst counsel for the defendant conceded that the “the defendant may be at risk committing a further offence”, it was contended that this was not necessarily offending within the ambit of the Act, namely, “another serious offence”. In the same light, it was submitted that the evidence before the Court does not establish “to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d)”.

4. [186]

   As to s 5B(d), the defendant contended there were three separate evaluative decisions to be made by the Court:

   1. (1)

      a finding of unacceptable risk;

   2. (2)

      a high degree of probability; and

   3. (3)

      determination of whether that risk is of the commission of a serious offence.

5. [187]

   All three evaluative decisions, it was submitted, are “inherently speculative in nature” requiring an assessment of a future risk that does not yet exist. The Court should only make an extended supervision order in the event all three are satisfied and “to cure these issues of institutionalisation, socialisation and adjustment to the community”.

6. [188]

   In respect of the defendant’s risk of committing a further serious offence, the defendant relied upon the following:

   1. (1)

      The defendant was in the community between 10 April 2009 and 14 September 2011. It was submitted that period of time is instructive to the evaluative judgment as to the risk of committing a further sex serious offence. During that period of approximately 2 years and 5 months, there was “no further sex offence, or no further serious sex offence”. In this respect, the defendant relied upon the defendant’s characterisation as a “generalist” offender by the court appointed experts.

   2. (2)

      There is a significant time lapse since the last serious sex offence, namely, over 16 years ago. Further, the serious sex offences occurred roughly two and a half decades ago.

   3. (3)

      The change to the physical capacity of the defendant (discussed below) has “severely compromised” his capacity to offend as he had historically or in a serious sexual way. The defendant had a different physical capacity at the time of the last serious sex offence to what he has today. It does not appear that the defendant is capable of following, chasing and physically subduing a victim. In that light, it appears that the “risk” lacks a physical possibility such that the Court would not be satisfied to the standard of a high degree of probability. Further, the consequences “are likely to be contained and restricted by virtue of the defendant's compromised physical ability”.

   4. (4)

      A high risk of committing “general offences” does not bring the defendant within the ambit of the Act.

   5. (5)

      As to the risks associated with substance use, reliance was placed on the fact the defendant has been drug abstinent for over two decades. He is on a “blockade” dose of methadone.

   6. (6)

      The defendant has completed CUBIT and is considered “treated”.

   7. (7)

      The following aspects of the evidence of Dr Seidler were emphasised:

   8. (8)

      Dr O'Dea referred to matters that may mitigate the defendant's risk, namely, “advancing age, medical impairment and disability, and abstinence from illicit substance use”. Dr O’Dea appeared to “link” the defendant’s risk of committing a further sex offence with the “progress” of the defendant’s medical conditions.

7. [189]

   The defendant also disputed the relevance of the State’s submission as to the potential impact of the defendant’s mother’s death as a factor relevant to risk assessment. The defendant submitted, “[t]here’s no evidence before the court that the mother is elderly or frail or unwell, the evidence before the court in the OIMS is to the effect that the mother is a person who’s providing some support to the defendant and in particular driving him to various appointments of that kind”.

8. [190]

   The defendant also placed significant reliance upon the observations of Mr Ardasinski in his Risk Assessment Report. A summary of those observations is extracted below:

   1. (1)

      The defendant walked with the assistance of a walking stick.

   2. (2)

      The defendant did not re-offend in 2011 when he was released to the community: “[i]t appears that [the defendant] was indeed existing prosocially between the dates of his last release from custody (10/4/09) and his arrest for the historical index sex offence (14/9/11) better than any period previously, at least superficially”.

   3. (3)

      Mobility issues have restricted the defendant's capacity to undertake custody-based employment.

   4. (4)

      There would need to be some moderation in his risk of offending in the future by virtue of the reduced mobility and obesity.

   5. (5)

      The defendant’s desire to participate in treatment appeared related to his desire to better himself and abide by the decisions of “the system”.

   6. (6)

      It was too early in treatment to predict how the defendant would progress further in CUBIT.

   7. (7)

      It may be that the defendant’s poor compliance with supervision is over.

   8. (8)

      It may be that the defendant's sexual offending trajectory leads to a different form of offending, which relies less on physical coercion but instead psychological coercion.

   9. (9)

      It must be considered that the likelihood of a repeat sexual offence is lower than his risk of other offending.

   10. (10)

       “[O]n balance ... I would consider it unlikely that [the defendant] would return to sexual offending after so many years, even though he has spent over 14 of the last 17 years in prison since he committed a sexual offence in 2001. He did not sexually re-offend in the two years he lived in Tweed Heads in the community between 2009 and 2011, and the empirical literature suggests that a general offender's greatest risk period is within the first few months of release to the community”.

   11. (11)

       “[The defendant] has aged considerably (which is central to the risk factor in many cases of sex offending) he has abstained from substance use for a number of years attempted to achieve stability in the community… prosocial functioning and development indications of psychological resolution or prior experience of trauma in recent years and current treatment of affective symptoms”.

   12. (12)

       “[T]he evidence before me suggests that [the defendant] would continue to exist in the community without resorting to sexual violence. However, there may still be the potential that he reverts to the criminal thinking that precede his serious sexual offences of 1993 and 2001 when he opportunistically assaulted teenage female victims in close proximity ... should his situation destabilise to a great enough extent and he felt he did not have the requisite supports to manage his risk factors. I consider this scenario unlikely, but possible, particularly if his mother passed away".

9. [191]

   As to the change to the physical capacity of the defendant, counsel for the defendant identified the aspects of the evidence relied upon, in that respect, summarised in a document titled “Defendant Medical Evidence Summary” (provided by agreement on 23 November 2018). That document included a table which is extracted in full below:

10. [192]

    The defendant relied upon the above submissions, with respect to the defendant’s physical capacity, in reply to the plaintiff’s contention that the risk of recurrent offending is “intolerable” and the consequences “drastic”. First, the defendant contended that, in light of the above evidence, it appears that the “risk” lacks a physical possibility such that the Court would not be satisfied to the standard of a high degree of probability. Second, as to the consequences, the defendant submitted they “are likely to be contained and restricted by virtue of the defendant’s compromised physical ability”.

11. [193]

    Reference was also made to the remarks of Button J at the preliminary hearing and in his judgment at [23]-[24]:

12. [194]

    It should also be noted, the defendant conceded that “[w]e don’t have any medical material before the Court by way of a separate report”. However, reliance is placed upon the above summary and the “unchallenged evidence of the DSO as to his observations of the defendant in terms of his fragility and mobility” (namely, the defendant’s use of a walking stick and his difficulties navigating obstacles, such as steps).

13. [195]

    Following the cross-examination of Dr O’Dea, the defendant made the following submission:

14. [196]

    As to divergence of opinions between the court appointed experts and Mr Ardasinski and the approach to be taken by the Court, the following submission was advanced:

15. [197]

    If the Court was minded to grant an extended supervision order, the defendant submitted that the order could be for a duration in the range of 12 months and on less onerous conditions than those sought by the State.

Section 5B(d)

1. [198]

   The decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51].

2. [199]

   Section 5B of the Act provides this Court may make an extended supervision order if: the person is an “offender” who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); the person is a “supervised offender” (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this Court is satisfied to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.

3. [200]

   As to the question of whether the defendant is an “offender” and “supervised offender”, for the purposes of the Act, the defendant made the following concessions:

   1. (1)

      The defendant is an "offender" as defined in s 4 of the Act:

   2. (2)

      The defendant was sentenced in 2012 to a term of imprisonment for 7 years for four counts of aggravated sexual intercourse without consent contrary to section 61I, Crimes Act. The circumstance of aggravation was the age of the victim (15 years). It is conceded that this offence falls within the definition of "serious offence": see ss 4 and 5A(1)(a).

   3. (3)

      At the relevant time, the defendant was a "supervised offender" as defined in s 5I of the Act.

4. [201]

   Additionally, as noted earlier, there is no dispute that the application was made in accordance with s 5I of the Act. The issue in dispute in these proceedings is whether or not the State has met the threshold test in s 5B(d).

5. [202]

   I earlier discussed the relevant principles, in this respect, at [26]-[29] of this judgment.

6. [203]

   Further, the nature of the risk posed by the defendant is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition: Lynn at [126]. The assessment must be based on an absence of protective measures. The “criterion of unacceptability depends upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent [and/or sex] offenders”: Lynn at [126].

7. [204]

   Having regard to the entirety of the evidence I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

8. [205]

   That evaluative judgment is based upon the following considerations, which derive from the earlier discussion of background matters:

   1. (1)

      The nature of the risk is in part derived from both the 1993 and 2001 offences. The defendant has engaged in two serious sex offences both of which involved an offence against young females aged between 15 and 17. I accept the State’s characterisation of the offending as “violent, impulsive and unpredictable”. The 1993 and 2001 offences had the following common features: the victims was unknown to the defendant; the victims were young females; the victims suffered actual bodily harm; the victims were followed and chased down by the defendant; a knife was used to threaten the victims; the victims were physically subdued by the defendant and the offences were carried out at night when the victims were walking alone. The sentencing court described the 1993 offence as a “serious [example] of the offence of aggravated sexual intercourse without consent” and the 2001 offence as “predatory and violent conduct which was planned and premeditated”, respectively.

   2. (2)

      Three conclusions may readily spring from that consideration. First, Dr O’Dea, whose expert opinion I prefer for reasons given below, opined that it is generally agreed in the psychiatric profession that the best predicator of future sex offending is past sex offending behaviours. Whether based upon the above historical analysis of the offences or the consensus of psychiatric opinion, the consequences to a victim of the risk materialising is, as the State contended, likely to be “drastic”.

   3. (3)

      The occurrence of the offences 8 years apart represents an entrenched pattern of offending. Dr O’Dea emphasised that managing and minimising the risk posed by the defendant, with respect to further sex offending, is “long term”. Mr Ardasinski observed that the defendant’s previous period of community living had “ultimately ended with his becoming involved in further crime and returning to prison”. He opined, the defendant’s “antisocial attitudes which permit the continuance of such a lifestyle would ordinarily, by now, be quite entrenched and would require some radical difference the next time he is released to shift them”. He noted the defendant’s recent change in attitude might indicate “his attitudes are beginning to shift”.

   4. (4)

      The consideration in (3) above, is consistent with expert opinion as to the underlying causes of the defendant’s sexual offending. The court appointed experts both agreed that the defendant's serious sex offending is less about sexual deviance and, in fact, related to his antisocial personality disorder, a disorder which underpinned the pathways to the defendant's serious sex offending. Antisocial personality disorder, it was noted, is characterised by repeated failure to conform to lawful behaviours, deceitfulness and impulsivity. Such disorder, it was also noted, has limited amenability to treatment and fundamental change. Dr Seidler, in this respect, observed the attenuating impact of age upon behaviour although there was no change to the underlying personality disorder.

   5. (5)

      The defendant was diagnosed with substance use disorder. The defendant has been in remission for a considerable period of time and on methadone. Dr O’Dea described the defendant as being in “good control”. However, Dr O’Dea considered that the substance use disorder still represented a risk factor and Dr Seidler considered it could not be ignored even though the disorder was not a significant risk factor.

   6. (6)

      I accept the submission by the State that the disorder remains relevant in the context of the defendant’s institutionalisation, his anxiety and his antisocial personality disorder. Dr Seidler observed, the defendant acknowledged a link between his criminal offending and illicit substance use. Dr O’Dea opined, the defendant must remain abstinent to minimise the risk of sexual re-offending. I agree.

   7. (7)

      Substance use disorder is “chronic” and a return to such pattern of behaviour would elevate the risk posed by the defendant, with potentially drastic consequences upon victims.

   8. (8)

      The State also relied upon the potential destabilising influence of the death of the defendant’s mother. Both Dr O’Dea and Mr Ardasinski recognised such an event to be relevant to the assessment of risk. Whilst that submission may be accepted in its terms, I am not, in the absence of evidence, to speculate upon such an eventuality.

   9. (9)

      The reports of the court appointed experts and Mr Ardasinski revealed that the defendant continues to display limited insight into his offending. As to the 1993 offence, the defendant only accepted “guilt” in his account to Mr Ardasinski. He stated that the reason for his not guilty plea was because he was embarrassed in front of his mother. However, the defendant’s account of the same was not consistent with the court appointed experts. As mentioned earlier, the defendant told Dr O’Dea that he thought the victim was inviting him to have sex with her, and told Dr Seidler that he asked the victim if he could have sex with her and when she refused he raped her. Further, in an earlier psychological report by Mr Howard, the defendant claimed the sexual intercourse was consensual (he also claimed he did not know the victim was 16 years old).

   10. (10)

       It is true, as submitted by the defendant, that there has been a significant time lapse since the last serious sex offence, namely, over 17 years ago. Such a period must be understood in context. First, the defendant was in custody for the majority of that time. Second, regard must be had to his conduct during his brief period in the community between 10 April 2009 and 14 September 2011. As to the same, I note, Mr Ardasinski considered the defendant’s conduct in that period to be less significant in light of the fact “[the defendant] did not sexually reoffend… between 2009 and 2011, and the empirical literature suggests that a general offender's greatest risk period is within the first few months of release to the community”. However, during that time the defendant breached his reporting obligation under the CPOR Act. Thus, whilst the defendant did not commit a “serious sex offence”, I accept the submission by the State that such an offence is properly described as an “offence of a sexual nature”. Having regard to the seriousness of the defendant’s earlier sexual offending, such an offence remains relevant to the assessment of risk, particularly in circumstances where the defendant had access to vulnerable people, which included, inter alia, an 11 year old girl, and made a deliberate decision to not make the necessary disclosures.

   11. (11)

       The court appointed experts and Mr Ardarsinski were unanimous in their recognition of the defendant’s institutionalisation and its relevance to the defendant’s risk of re-offending. This factor is more potent when considered in conjunction with the defendant’s antisocial personality disorder. Mr Ardasinski opined that as a result of the defendant’s institutionalisation it will be “difficult for him to adapt to a normal, lawful community existence”. Ms Aldrich also previously observed a lack of support in the community has “repeatedly led to a failure of his re-integration into the wider community and has driven him back to what was familiar”. She also opined the “adjustment will become harder as he gets older". The experts all agree (including Ms Aldrich and Mr Howard) that in this light the defendant requires intense supervision and structure to reduce his risks of re-offending.

   12. (12)

       The defendant’s completion of CUBIT, whilst commendable, must, on the evidence before the Court, attract minimal significance as to the reduction of risk. Whilst Dr Seidler opined that the completion of that course is a factor that reduces the defendant’s risks and noted the defendant told her he gained self-awareness from the program, as noted above, the defendant continued, notwithstanding the program, to demonstrate limited insight into his opinion. Dr O’Dea opined the defendant continues to display "limited insight into his role in the offences, limited remorse for his actions in relation to the offences and limited empathy for the victim[s] of the offence[s]". The completion is a positive step towards rehabilitation but it has not, in my view, ameliorated the risk posed by the defendant.

   13. (13)

       Further, notwithstanding the defendant’s recent shift in attitude towards treatment and supervision, the defendant has a lengthy history, as indicated by reports to and from both CSNSW and the Parole Authority, of displaying a negative attitude towards such authorities and supervision.

   14. (14)

       There is a divergence of several opinions amongst the experts as to risk assessment. Dr O’Dea opined that absent supervision there is a “high degree of probability” the defendant poses a risk of further serious offending, whereas Dr Seidler and Mr Ardasinski considered the defendant presents a high risk of recidivism of general re-offending but in the “moderate” range for sexual offending. The State contended the opinions of the latter “appear to consider the likelihood of sexual reoffending… rather than the degree of probability of the risk the defendant presents”. The likelihood of sexual re-offending, it was correctly submitted, is not the sole measure of risk evaluation under s 5D. Both Dr Seidler and Mr Ardasinski considered the Act in their respective assessments and accepted that there was a continuing and persistent risk associated with the defendant’s anti-social personality disorder but placed less emphasis on the need for supervision because their assessment of the risk of re-offending. In any event, for reasons given below, the weight to be given to their opinions is affected by a number of factors in that respect.

   15. (15)

       The opinion of Dr Seidler and Mr Ardasinski are predicated on two foundations which warrant less weight being attached to their opinions for the purpose of the evaluative judgment required under s 5B(d).

Extended Supervision Order

1. [206]

   Putting aside the conditions that attracted some controversy during the proceedings, which I will return to below, I consider there is ample basis to make the extended supervision order sought by the State, having regard to the conclusion reached above, that the defendant meets the definitions and test under s 5B and, further, having regard to the various factors considered by this Court for the purposes of s 9(3) of the Act under the heading, “Findings of Fact and Conclusions as to Factors Under s 9(3)”. Without unnecessarily repeating or derogating from that earlier analysis, I consider an extended supervision order is warranted having regard to the factors discussed above, in particular, the following factors:

   1. (1)

      the nature and gravity of the 1993 and 2001 offences;

   2. (2)

      the potential type and nature of any offence committed in the event of re-offending and the potential for consequences for victims;

   3. (3)

      the opinion of the court appointed experts, based upon clinical assessments, as to the necessity for supervision (including appropriate conditions) and ongoing treatment of the defendant;

   4. (4)

      non-compliance and failures by the defendant whilst on parole and/or subject to supervision;

   5. (5)

      the defendant’s negative attitude (up until recently) towards authority and supervision;

   6. (6)

      the defendant’s limited insight into his offending; and

   7. (7)

      the defendant’s challenging behaviour in prison, in particular, his record which include several convictions in relation to attempting to escape lawful custody.

2. [207]

   Those factors are also relevant to the granting of the conditions sought by the State. It should be re-emphasised, in that respect, that the court appointed experts generally supported the conditions proposed. I will deal with particular objections by the defendant below.

Submissions – General

1. [208]

   The parties made submissions regarding the making of conditions with respect to an extended supervision order.

2. [209]

   The State, in this respect, relied upon the opinion of Dr O’Dea. He opined that the proposed conditions and anticipated plans in the Risk Management Report of Ms Kirkwood would address the defendant's risk of further serious sex offending. Dr Seidler opined that some conditions were unnecessary given the defendant's "past sexual offending".

3. [210]

   The State, in this respect, relied upon the decision of the Court of Appeal in Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 (at [53]):

4. [211]

   In the event the Court was minded to grant the extended supervision order sought, the defendant initially advanced the submissions developed at the preliminary hearing. It was contended the order should be for a duration in the range of 12 months and the conditions should be limited to those necessary to reduce risk. The conditions should reflect the level of identified risk of this particular defendant rather than standard conditions that are ordinarily imposed. It was contended that the conditions proposed by the State were onerous and the Court should have regard to the relevant authority.

5. [212]

   The defendant’s submission was supported by reference to the following authorities: State of New South Wales v Burns [2014] NSWSC 1014 at [59]; State of New South Wales v Green (Final) [2013] NSWSC 1003; and State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

6. [213]

   Further short submissions were advanced by both parties at the final hearing, which were directed to particular controversies regarding conditions. Those submissions are reflected in the discussion below.

Submissions – Particular Issues

1. [214]

   The primary focus of the defendant’s contentions, as to the conditions sought by the State in Annexure A to the further amended summons, were as follows: electronic monitoring (conditions 4-6); schedule of movements (conditions 7-10); and access to the internet and electronic communications (conditions 38-41). I shall address each issue seriatim.

2. [215]

   The defendant contended that the Court would not be satisfied to the relevant threshold that the conditions relating to both electronic monitoring and the schedule of movements were required to mitigate against the risk of further serious sex offending.

3. [216]

   Further, as to the duration of the sunset clause proposed at condition 5, it was contended by the defendant, that should the Court be minded to make an extended supervision order, with the conditions proposed by the State, condition 5 would require reconsideration depending upon the duration of the order, particularly if the order was for a duration less than 3 years.

4. [217]

   The State relied, in this respect, upon the observations and findings of Button J at the preliminary hearing (at [38]-[40]), extracted below:

5. [218]

   The State contended that both court appointed experts recognised the utility of electronic monitoring. Reference was also made to the defendant’s accommodation in a retirement home, with “vulnerable” people; an observation that was also regarded as a relevant consideration to risk assessment, by Dr O’Dea.

6. [219]

   As to the same, the State submitted such a measure was “appropriate” and responded to “specific facts” of this case. The State made reference to the particular operation of the condition, namely, with compliance, the defendant’s risk would be deemed less and “then the stages of supervision can progress”.

7. [220]

   Turning to the schedule of movements, the State submitted that such conditions assist with risk reduction through the provision of structure. It was contended, in this respect, that the defendant lacked the skills or motivation to implement routine on his own. When Dr Seidler questioned the defendant on his plans for his future the defendant's answers were "vague" and the defendant told Dr Seidler that "he does not intend to do anything consistently productive with his time". This will elevate his criminogenic risks.

8. [221]

   Regard was also had to the affidavit of Ms Caffery. She deposed how particular conditions propose to reduce the defendant’s risk of re-offending. First, electronic monitoring and a schedule of movements reduce the risk of impulsive offending (a behaviour of antisocial personality disorder) and enable the ESO Team to intervene when necessary to prevent access to potential victims. The State submitted, this is relevant to the defendant’s circumstances: “[t]he defendant has a history of several offences of escapes lawful custody and lives on the border of NSW and Queensland. He has expressed to the experts resentment for being on the ESO and there is a risk, in the event he no longer has his family as a protective factor, of evading the jurisdiction”.

9. [222]

   In advancing its submissions, the State noted the opinion of Dr O’Dea that the provision of schedules in advance has utility but can be difficult for offenders. As to this difficulty, the State highlighted the “flexibility” of the conditions and referred to a selection of instances in the OIMS case notes in which the defendant’s schedule was modified on 27 September 2018, 30 and 31 October 2018.

10. [223]

    With respect, I consider the reasons given by Button J in the preliminary hearing for ordering the conditions in the Schedule to the amended summons regarding electronic monitoring and the schedule of movements provisions are compelling. The material provided in the final hearing merely reinforced those conclusions.

11. [224]

    When that evidence as to electronic monitoring and the schedule of movements is taken together with, inter alia, the evidence of the defendant’s substantial criminal background, which includes several convictions of escape lawful custody; his well-documented difficulties and poor attitude towards authority and with supervision (albeit with more recent improvement); and his location at Tweed Heads on the border of NSW and Queensland, the conditions sought by the State are appropriate. The measures will enhance the safety to the community by encouraging compliance, particularly having regard to the operation of a sunset clause and the imposition of structure and routine vis-à-vis the schedule. The encouragement of an avoidance of deceptive behaviour, will reduce the risk of re-offending.

12. [225]

    The defendant contended, in this respect, “there is no associated risk with this defendant using any form of social media or electronic devices to further in any way his capacity to commit a further serious offence”. The defendant then proceeded to distinguish the defendant from other types of sex offenders, to which such conditions may be required:

13. [226]

    As to that submission, I note the findings of Button J at the preliminary hearing (at [43]-[44]):

14. [227]

    The State, in this respect, primarily contented that such conditions provide “a measure of oversight in relation to who he is communicating with, perhaps for the purposes of monitoring his substance use disorder, should he re-engage with selling drugs as he did in 2011”.

15. [228]

    On balance, I find that it is appropriate to impose these condition in the terms proposed by the State and without further modification. Whilst accepting the defendant did not previously have access to internet at the time of his offending, I reach this decision having regard to the scope, purpose and objects of the Act, and find it is appropriate to impose such conditions, particularly as a form of oversight in light of the remarks of Button J at the preliminary hearing and the submissions of the State, so as to address the risk of future sexual offending.

Duration

1. [229]

   As to duration, the State submitted that the appropriate period for an extended supervision order is 3 years. This was supported by the aforementioned evidence of nature and extent of the defendant's past offending, identification of the risk of further offending, and the defendant’s antisocial personality disorder.

2. [230]

   I turn firstly to the opinion expressed by the court appointed experts. Dr O'Dea supported an extended supervision order for a duration of 3 years, which “should be regularly monitored, reviewed and modified as appropriate every 6 to 12 months, dependent on his progress”. He considered that the defendant required management and supervision in the long term and also commented that the proposed conditions and anticipated plans in the Risk Management Report would address the defendant's risk of further serious sex offending.

3. [231]

   In contrast, Dr Seidler opined that supervision for 3 years was unnecessary with respect to the defendant’s risk of sexual recidivism and opined that the duration could be reduced to 12 months. It may be noted, Dr Seidler commented that, if an extended supervision order was addressing “general risk” then a duration of 3 years would be justified in the light of the defendant's "antisociality and... institutionalisation". Thus, Dr Seidler considered supervision of moderate intensity would manage the defendant's risk "although [the defendant] may need greater intervention and active management in relation to his general criminal risk".

4. [232]

   Mr Ardasinski opined that the defendant would benefit from “ongoing supervision and professional support” and “the long-term aim would be to foster problem-solving and stress-coping abilities in [the defendant] such that he no longer requires the assistance of external bodies to contain his risk of sexual or other offending”. He did not express an opinion as to the specific length of either supervision or support.

5. [233]

   As to duration, the defendant made the following submission:

6. [234]

   The State submitted it is difficult to reconcile the opinion of Dr Seidler, in this respect, given the defendant's antisocial personality disorder, which according to Dr Seidler, was the dynamic risk factor that leads him to commit serious sex offences.

7. [235]

   The State also submitted that the opinion of Dr Seidler exceeded the scope of her appointment: “[w]hat Dr Seidler was appointed to assist the court with was an assessment of his risk, not how that should be dealt with in terms of time, and that’s why it’s often a legal question”.

8. [236]

   Counsel for the State maintained that “there is an ability for the defendant to seek a variation or a revocation under s 13 and then to put before the court why the ESO is no longer necessary because of a change in circumstances, but for your Honour to shorten the duration on the possibility that that risk may change is inviting speculation on the fluctuation of risk, whereas at this stage your Honour is just being invited to consider the risk upon the evidence before the court”. In reply to the State’s contentions, with respect to the capacity for an order to be varied by a mechanism of the Act, the defendant submitted: “That potential option for the defendant within the legislative regime does not in any way facilitate the Court getting over the relevant threshold in terms of whether or not an order should be made and if the Court does get over that threshold, then it gets over it either just, comfortably or incredibly comfortably”. It does not assist.

9. [237]

   In light of the evidence before the Court, I consider the appropriate period for an extended supervision order to be that proposed by the State. The order, therefore, should be made for 3 years. In the event that medical evidence emerges as to the nature, extent and duration of any physical afflictions of the defendant that would shed further light on the nature and extent of the risk and, in particular, the appropriate duration for supervision, then an application for variation may be made by the defendant.

CONCLUSION

1. [238]

   The orders made and entered with respect to this matter on 10 December 2018 were made for the foregoing reasons.