State of New South Wales v KW (final)

1. [1]

   By Amended Summons, the plaintiff State of New South Wales sought final orders for an Extended Supervision Order (ESO) against the defendant KW pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act) for a period of five years, and for an order pursuant to s 11 of the HRO Act that KW comply with conditions as set out in the Schedule to the Summons.

2. [2]

   When the original Summons was filed on 9 March 2023, KW was serving an aggregate sentence of imprisonment of 4 years and 6 months, imposed on 14 December 2018 by Wells SC DCJ for offences of sexual intercourse with a person between 14 and 16 years contrary to s 66C of the Crimes Act 1900 (the Crimes Act), and one offence of indecent assault of a person under the age of 16 years contrary to s 61M(2) of the Crimes Act (the index offending). KW was eligible for release to parole on 28 April 2021 but was not granted parole. His head sentence expired on 28 April 2023.

3. [3]

   On 18 April 2023, Fagan J made an Interim Supervision Order (ISO) to date from 28 April 2023, expiring on 26 May 2023: see State of New South Wales v KW (Preliminary) [2023] NSWSC 397. His Honour’s judgment details much of the background to this application, which I will not repeat. On 23 May 2023, Yehia J renewed the ISO for a further 28 days from 26 May 2023. A further renewal was granted by her Honour on 22 June 2023 to take effect from 23 June 2023. The ISO was due to expire on 21 July 2023.

4. [4]

   On 7 July 2023, there was a final hearing after which I made the final orders sought in the Amended Summons. The issues at the final hearing were in relation to some of the proposed conditions and to the proposed term of the ESO.

5. [5]

   I am grateful to both Mr Ng, who appeared for the plaintiff, and Mr Bhasin who appeared for the defendant, for the collaborative manner in which they approached these proceedings.

Orders sought

1. [6]

   The plaintiff sought the following final orders in its Amended Summons :

Background

1. [7]

   The defendant is now 37 years old. He experienced an extremely dysfunctional and traumatic childhood which included exposure to alcohol and substance abuse, and persistent serious abuse and neglect by both parents. When he was 10 years of age, his younger brother was killed by a garbage truck outside the family home. He was placed into foster care at age 13 after being charged with sexual offences against his sister. He was previously charged and convicted for offences against his stepdaughter. The victim of the index offending was a 14 year old girl whom the defendant groomed over the internet and later met in person when the defendant was 31 years of age.

Evidence

1. [8]

   Much of the evidence tendered by the plaintiff on the final application was also tendered at the preliminary hearing. Three additional volumes of material were tendered at the final hearing, relevantly including a report of Dr Gordon Elliott, psychiatrist dated 25 May 2023, and a report of Dr Sally McSwiggan, consultant neuropsychologist dated 2 June 2023. Both were appointed to conduct examinations of the defendant by Fagan J. Annexed to the affidavits read in the proceedings were various Offender Integrated Management System (OIMS) notes. There was also correspondence annexed to the affidavit of Michelle Macdonald affirmed on 5 July 2023 between her and the Crown Solicitor’s Office regarding OIMS notes not being provided in a timely manner, and directions being given to the defendant which were inconsistent with the terms of the ISO. Nothing turns on this correspondence.

2. [9]

   Also tendered at the hearing was a letter from Natalie Webb, support coordinator at Life Without Barriers dated 26 June 2023, and a report of Melanie Williamson, occupational therapist dated 3 June 2023.

3. [10]

   Dr McSwiggan and Dr Elliott gave concurrent evidence at the hearing.

Legislative framework

1. [11]

   The following sections of the HRO Act have relevance.

2. [12]

   Section 3 of the HRO Act sets out its objects:-

3. [13]

   Section 5 of the HRO Act defines “serious sex offence” and “offence of a sexual nature” which are relevant to this matter:

4. [14]

   Section 5B sets out four pre-requisites for the making of an ESO. I note that the parties do not dispute that the requirements of each of subsections (a)–(c) are met in this case, and I observe that I am independently satisfied. Section 5B provides:-

5. [15]

   KW is an “offender who has served a sentence of imprisonment for a serious offence in custody” (s 5B(a)), as he is over 18 years of age (being 37 years old) satisfying s 4A(a), and he has been sentenced to imprisonment to be served by way of full-time detention following his conviction for a sentence, being the sentence of imprisonment imposed for the index offending commencing on 29 October 2018 and which expired on 28 April 2023, satisfying s 4A(b). Further, KW is a “supervised offender” within the meaning of s 5I, satisfying s5B(b), as he was an offender when the application for the order was made, and was under supervision by way of the ISO (5I(2)(b)), and the application for the order is made in accordance with s 5I satisfying s 5B(c).

6. [16]

   I observe that both parties accept that ss 5B(a) – (c) are satisfied.

7. [17]

   Section 5B(d) is the key provision with respect to the making of an ESO. I must be satisfied to a “high degree of probability” that KW poses an unacceptable risk of committing another serious offence if not kept under the supervision of such an order. In determining whether KW poses an unacceptable risk, the court must have regard to the matters in s 9(3)(a) – (i).

8. [18]

   The words “to a high degree of probability” indicate a higher standard of proof than the civil standard of the balance of probabilities, but does not rise to the criminal standard of beyond reasonable doubt. In Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal said:-

9. [19]

   Both parties submit that I would be satisfied to a high degree of probability that KW poses an unacceptable risk of committing another serious offence if not kept under a supervision order having regard to the various matters set out in s 9(3)(a)-(i). I indicate that I am so satisfied, the reasons for which will become apparent after a review of the evidence against the criteria in s 9(3).

10. [20]

    Section 9(2) of the HRO Act provides that, in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration.” This is consistent with the primary object of the HRO Act as set out in s 3(1). I am satisfied that the safety of the community will be best served if I make the ESO.

11. [21]

    Section 9(3) sets out the matters to which the Court must have regard in its determination as to whether or not an ESO should be imposed:-

12. [22]

    Section 10 provides for the term of an ESO:

13. [23]

    As to conditions that may be imposed when making an ESO, s 11 provides:

14. [24]

    I turn now to the factors I must consider pursuant to s 9(3).

Section 9(3) factors

1. [25]

   The defendant has a significantly deprived and disadvantaged background that provides important context for his criminal history. He was convicted of his first offence at age 14.

2. [26]

   The defendant’s adult criminal history in NSW consists largely of property crime, traffic offences, contravening an Apprehended Violence Order (domestic), indecent assault, as well as one offence of steal motor vehicle. There is also one offence in Queensland for commit public nuisance for which KW was convicted and fined.

3. [27]

   The index offending involved offences against a 14-year old girl whom the defendant met on Facebook. The offending occurred whilst KW was on bail for the offence committed against his stepdaughter, to which see below. He arranged to meet the victim at night in a McDonalds carpark and assaulted the victim after driving her to a remote grassed area. The offending involved touching the victim’s breasts, rubbing her vagina, digital vaginal penetration, and two instances of penile vaginal penetration.

4. [28]

   When KW was 14, he was convicted of aggravated indecent assault – victim under the age of 16 years, the victim being his 7 year old sister. He was sentenced to a two year recognisance order.

5. [29]

   The offence against KW’s stepdaughter occurred in 2013, when the victim was 11 years old. In 2018, KW was convicted of indecent assault of a person under the age of 16 and sentenced to 18 months imprisonment with a non-parole period of 9 months. This sentence was served concurrently (in part) with the sentence for the index offending.

6. [30]

   KW has been identified as a registrable person subject to the Child Protection (Offenders Registration) Act 2000 (the CPR Act) for a period of 15 years upon release. His obligations under the CPR Act are suspended during the term of any ISO or ESO: see s 15(d) of the CPR Act.

7. [31]

   Dr Elliott, general and forensic psychologist, prepared a report dated 25 May 2023. Dr Elliott noted that he had previously conducted an assessment of, and prepared a report with respect to the defendant in 2020, in his capacity as treating psychiatrist whilst the defendant was in custody. For the purposes of the 2023 report, Dr Elliott conducted his assessment of KW by video-link for approximately 100 minutes in May 2023.

8. [32]

   Dr Elliott noted that at the date of the assessment, KW had been released from custody for about two weeks and was living at a property with his maternal grandmother, step-grandfather and brother in the NSW central tablelands region. KW helps his step-grandfather with gardening and yard work and assists his grandmother with grocery shopping. He occasionally speaks on the phone to extended family, but he has no direct contact with any old friends or acquaintances.

9. [33]

   The defendant is currently receiving the jobseeker allowance. He has made an application for the disability support pension, which KW told Dr Elliott he was following up via the myGov application on his phone. KW is in a relationship with a woman currently in custody at the Dillwynia Correctional Centre with whom he speaks every day. He has five children from four previous partners.

10. [34]

    Dr Elliott reported that KW spoke approvingly of his caseworker from Life Without Barriers with whom he spends three hours, two days per week. His case worker helps to find him things with which he can tinker. KW told Dr Elliott that, “I find that more beneficial than talking to any psych.” He hopes to purchase a motor vehicle to restore. His case worker is also assisting KW investigate a TAFE course in auto electricity.

11. [35]

    KW told Dr Elliott that he had an appointment booked to see a general practitioner for the purpose of entering into a Mental Health Care Plan and referral to a psychologist. He reported being compliant with his medication regime of Sertraline, blood pressure medication, Propranolol for anxiety, medication for high cholesterol and his monthly dose of Buvidal. He said that the Sertraline has “evened out my swings, the erratic thinking.”

12. [36]

    KW spoke approvingly of the ESO team, who visited frequently. He had concerns about the imposition of an ESO, telling Dr Elliott that he did not think it is needed. He suggested that there was nothing in the proposed ESO conditions that were not already a part of his obligations as a registrant on the Child Protection Register (CPR). He told Dr Elliott that he cannot go back to gaol and it would be easier for himself and his family if he was “just on the CPR. My grandmother is 74 and she has to drive me everywhere.”

13. [37]

    KW described his mental health as “good” since his release from custody but reported anxiety and paranoia that he might end up back in gaol. He denied thoughts of self-harm. KW reported being in a “good place” with “good supports” around him, and in particular his case worker. He has made an application to the NDIS to fund further time with his case worker and for supported independent living.

14. [38]

    As to the defendant’s psychiatric history, KW reported that his first contact with mental health services was when he was six or seven years old after he made a suicide attempt due to family trauma. He confirmed an ADHD diagnosis as a child, which was treated with Dexamphetamine until he left home at about age 13. KW believed a stimulant medication may again assist him.

15. [39]

    KW confirmed a history of presentation to psychiatric units, which he said were short admissions lasting a few days. He recalled one admission for about a month. Most, if not all of his presentations involved suicidal ideation. KW reported various diagnoses of severe depression, severe anxiety, borderline personality disorder (BPD), dissocial/antisocial traits and complex post-traumatic stress disorder (PTSD). KW recalled being treated with various antipsychotic agents including Seroquel and Epilim. With respect to his PTSD, KW told Dr Elliott that things such as a smell or a place could trigger flashbacks. He only sleeps two hours a night because he is scared of having nightmares. He described his trauma as “severe psychological and sexual trauma” as well as his brother’s death in childhood. Dr Elliott also noted that KW believed that he had autism spectrum disorder.

16. [40]

    As to substance use, KW denied any recent use, but reported a significant history, including sniffing petrol as a child about once or twice a week. He was evasive when asked about his alcohol use, but he told Dr Elliott that he engaged in binge drinking from age 16 until he stopped when he had his first child in 2009. He denied current alcohol consumption and he told Dr Elliott that the last time he drank was a number of years ago.

17. [41]

    KW reported being introduced to cannabis at age seven by his mother, which progressed to smoking a gram or more daily throughout his adolescence. He reported that he last smoked cannabis in about 2016. KW reported a history of amphetamine use from the age of 18 and abusing Fentanyl and Endone following a knee reconstruction in 2016. He also admitted to using Buprenorphine and Methadone in custody and to daily use of opiates in and out of custody until he commenced Buvidal, which he told Dr Elliott has been effective in controlling his cravings and pain.

18. [42]

    KW described his traumatic childhood to Dr Elliott. He was placed into foster care at the age of 13 and he was charged with the sexual abuse of his sister at 14 years of age. He reported problems at school. He was in a special education unit before leaving school altogether in year 9. He has problems with literacy.

19. [43]

    KW reported an employment history consisting of short periods of unskilled work, such as farm or mechanical work. He claimed that his longest period of employment was two weeks because he “just can’t handle people.” Dr Elliott noted that this account was not consistent with the psychological reports provided to him, including one account that KW had been employed as a truck driver for two years.

20. [44]

    As to the defendant’s relationship history, KW would not say when he began consensual intimate relationships. He was uncertain about how many intimate relationships he has had, but said that the first meaningful relationship was in 2009.

21. [45]

    When asked about the index offending and his criminal history, Dr Elliott reported that KW claimed that he pleaded guilty to the offence against his stepdaughter even though he was not guilty, blaming his ex-wife for those allegations. With respect to his juvenile sexual offending, KW told Dr Elliott that all through his life he was abused by members of his family.

22. [46]

    Dr Elliott observed that during questioning about his psychosexual history, KW was generally evasive and attempted to control the interview. When asked about the person to whom he is typically attracted, KW answered that it was a female, “somewhere around the 15 to 30 mark, roughly. I don’t have any attraction under that. It doesn’t do anything for me…maybe if I was desperate, maybe 14, but that would be pushing it.” KW denied paraphilias or deviant sexual behaviour, but admitted to occasional use of pornography. He reports a very low libido, attributing this to his Sertraline prescription.

23. [47]

    On examination of the defendant’s mental state, Dr Elliott reported that there was no indication of any current mental illness. He noted that the repeated previous diagnoses of major depressive disorder were performed whilst KW was either in custody or facing charges for serious sex offences. There was no evidence, on Dr Elliott’s assessment, that KW currently has a psychotic illness. However in Dr Elliott’s opinion, KW’s history of marked mood or affective dysregulation, of poor coping strategies and impulsive self-defeating and self-destructive responses to stress or perceived wrongs, coupled with his extensive history of deliberate self-harm and suicidal behaviour are all features consistent with BPD. Dr Elliott also noted that although he could not exclude an autism spectrum disorder diagnosis without reviewing the defendant’s school and early childhood records, on this assessment, the defendant did not present with necessary symptoms for such a diagnosis. Dr Elliott confirmed a mild intellectual disability on formal psychometric testing. KW, in Dr Elliott’s opinion, probably has complex PTSD.

24. [48]

    In Dr Elliott’s opinion, KW’s sexual offending as an adult does not suggest paedophilia, although KW readily admitted to a sexual attraction toward female adolescents. Dr Elliott says that consideration could be given to a diagnosis of hebephilia.

25. [49]

    As to the risk of KW reoffending, Dr Elliott considers that he is at a moderate risk of committing further serious sex offences. KW’s risk factors can be expected to fluctuate over time. Being exposed to stress or conflict would lead to high risk periods for KW. Dr Elliott performed a standardised risk assessment utilising the Static-99R tool, which returned a score placing KW in the category of moderate to high risk for sexual recidivism.

26. [50]

    In Dr Elliott’s opinion, an ESO is necessary to manage KW’s risk of committing a further serious sex offence, and an ESO should include restrictive conditions as well as those that encourage pro-social behaviour. Dr Elliott considers that KW’s NDIS funding will encourage learning opportunities and employment, which will likely assist KW to adopt more adaptive strategies for coping with stress, and improve his self-esteem generally. KW would benefit from continued psychological counselling and remaining on his current medication.

27. [51]

    Dr McSwiggan, neuropsychologist, assessed the offender in person for three hours on 16 May 2023.

28. [52]

    Dr McSwiggan reported that throughout the assessment, KW minimised his offending and disputed that he was guilty of the offences against his stepdaughter. He admitted to the (index) offence in relation to the 14 year old girl. He denied that he had harmed anyone and suggested that the issue of a 14 year old consenting to intercourse was a “real grey area.” He denied that he had paedophilic interests, stating “I know I have an age range, 14 and over.” He said that he did not understand the new consent laws.

29. [53]

    KW reported that he has appointments with a DSO once a week, and with the police once a week as part of his obligations on the CPR. He said that he would not accept more conditions, as he would not cope emotionally. He reported that he receives NDIS funding and that he enjoys the contact with a support worker.

30. [54]

    KW was unwilling to discuss his upbringing but reported that he was expelled from school in Year 8, whilst he was in FACS care. He reported that he has six (rather than five) children to four women but that he has not met the two eldest. He told Dr McSwiggan that he has had limited employment because he does not get on with people as a result of his intellectual disability.

31. [55]

    KW reported that he is prescribed Sertraline and Propranolol twice daily for anxiety. He said that he has long seen psychiatrists and psychologists for PTSD. He believed that he had been scheduled as an involuntary psychiatric patient “a few times,” the earliest being at about 7 years of age.

32. [56]

    As to substance use, KW reported using cannabis from 7 years of age and abusing pain medications, methamphetamines and alcohol from ages 18 to 22 until he started having children. He was an inpatient twice at a drug and alcohol rehabilitation facility. He obtained Methadone and Buprenorphine in custody without ever being prescribed either. However, since 2021, KW has been prescribed monthly injections of Buprenorphine and he plans to continue this medication whilst he is in the community.

33. [57]

    On examination of KW’s mental state, Dr McSwiggan reported that KW appeared to make an effort throughout the assessment and was cooperative. He presented as emotionally regulated, and he was not overly irritable until there was a discussion about his offending. Dr McSwiggan noted that KW had some insight into his current circumstances. She reported that overall, KW did not demonstrate features consistent with a major psychotic illness or mood disorder, despite KW describing his mood as “depressed and paranoid” and querying whether or not he has autism.

34. [58]

    Dr McSwiggan administered a series of neuropsychological tests: test of premorbid functioning, Wide Range Achievement Test Revised 3 (WRAT3), Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) and Test of Memory Malingering (TOMM).

35. [59]

    Dr McSwiggan reported that KW’s premorbid intellectual functioning was estimated to be in the borderline range. In her view, his current cognitive functioning is in the extremely low ability range, both for verbal and nonverbal comprehension. His perceptual reasoning index returned scores in the extremely low range, as did his score in the working memory index. KW returned a score in the extremely low range for the processing speed index. Executive functioning was limited. In her opinion, KW operated in a year 7 level for spelling and reading.

36. [60]

    In Dr McSwiggan’s opinion, KR would more likely than not meet the criteria for a diagnosis of mild intellectual disability, but a definitive diagnosis requires further testing. Dr McSwiggan noted the previous diagnoses of major depression, anxiety, BPD and a polysubstance dependence disorder. Dr McSwiggan considers that KW likely fulfills criteria for a paedophilic disorder (non-exclusive type), and also has features consistent with hebephilia that in her view would contribute to KW’s risk of committing another serious sex offence.

37. [61]

    Dr McSwiggan considered that factors relevant to KW’s risk of recidivism include his general criminality, entrenched negative sexual attitudes toward females, denial of offending, poor attitude to supervision, poor response to treatment, problems with intimate and non-intimate relationships and continued interest in sexual relationships with teenage females.

38. [62]

    In Dr McSwiggan’s view, KW has a “pressing” need for clinical treatment and would benefit from therapeutic engagement with some psychosocial oversight in the community.

39. [63]

    Dr McSwiggan agreed (in writing) that all the proposed conditions were necessary to address risk. She considered there to be some urgency that KW be engaged in sex offender treatment, given his attitudes expressed toward teenage girls. In her opinion, he is best suited to an individualised cognitive behavioural model of treatment.

40. [64]

    Mr Sheehan, forensic psychologist, prepared a report in respect of the sentencing proceedings for the index offending. Mr Sheehan reported that KW detailed a “history of relatively severe childhood abuse,” and that KW would be considered to be in the high risk range of sexual recidivism due to a combination of static and dynamic risk factors. In Mr Sheehan’s opinion, KW would be suitable for high intensity treatment intervention.

41. [65]

    Mr Brooks, forensic psychologist, prepared a report for the purpose of providing an independent sexual risk assessment. Mr Brooks found that the defendant did not have a specific sexual interest in children. However, his offending behaviour suggested a lack of self-awareness and sexual understanding. KW’s lack of insight, poor decision making and limited coping skills were impacted by diagnoses of PTSD, BPD and major depressive disorder.

42. [66]

    In Mr Brooks’s opinion, KW developed trauma symptoms following his childhood. His sexual offending appeared to be the result of early sexualised behaviour, abuse, limited emotional and psychological development, poor sexual understanding and opportunism. KW’s risk of sexual reoffending was assessed as moderately elevated. In Mr Brooks’s view, there was a need for intervention, particularly psychological and psychiatric treatment, to reduce KW’s risk profile.

43. [67]

    Annexed to the affidavit of Melinda Smith affirmed on 14 June 2023 are OIMS notes that have been created since the preliminary judgment. These notes detail the interactions between officers from Community Corrections and KW since his release to custody. On one occasion, the defendant was warned about associating with a known sex offender. Otherwise, the OIMS notes disclose KW’s compliance with his ISO conditions generally and with directions of the officers in particular. KW has engaged with NDIS services and psychological treatment. His family with whom he is living are supportive. It was noted that KW has specifically asked for assistance in exploring counselling with a trauma specialist, understanding consent and accessing employment.

44. [68]

    A RAR was prepared by Holly Cieplucha, senior psychologist in the Serious Offenders Assessment Unit on 12 September 2022. KW participated in an assessment for the purpose of this RAR on 2 September 2022.

45. [69]

    Ms Cieplucha noted that KW minimised his offending. In particular, he denied the charges relating to his step-daughter, stating “I was acting out what my mother did to me.”

46. [70]

    KW has generally been managed in protective custody due to the nature of his offences. He has displayed behavioural issues in custody and has been described frequently as argumentative, aggressive and confrontational toward staff. He has allegedly made threats to female staff. Ms Cieplucha noted that KW has also been managed under Risk Intervention Team protocols multiple times in response to thoughts, threats and acts of deliberate self-harm.

47. [71]

    Ms Cieplucha noted that KW was assessed using the Level of Service Inventory-Revised (LSI-R) in 2018. LSI-R is a well-known instrument consisting of both static and dynamic risk factors which can assist in predicting general reoffending and also violence. At that time, KW returned a score that fell within the medium range of risk/needs for general and violent reoffending.

48. [72]

    A Static-99R actuarial risk assessment was also performed. KW returned a score that placed him in “above average” risk range for sexual reoffending. Ms Cieplucha noted that rates of sexual recidivism for those with the same score as KW were between 11.7 and 14.1 percent over five years. This is 2.7 times the rate of the ‘typical’ sex offender.

49. [73]

    KW was also assessed using the Stable-2007 tool, which is administered to identify stable dynamic risk factors. The defendant returned a score of 16 which suggests a high density of criminogenic needs relative to other male sexual offenders. Specific areas of clinical significance include hostility to women, impulsivity, poor problem solving, negative emotionality, deviant sexual preference and cooperation with supervision.

50. [74]

    Ms Cieplucha combined the Stable-2007 and Static-99R scores to generate a composite assessment of the defendant’s risk/needs. This generated a score in the “well above average risk level” which suggests the need for a high level of supervision and intensity of intervention.

51. [75]

    Based on the Stable-2007 assessment, as well as the Risk of Sexual Violence Protocol (RSVP) assessment performed by Ms Cieplucha, she identified the following dynamic risk factors as potentially relevant to the risk of sexual re-offending: chronicity of sexual violence and deviant sexual preference, problems resulting from child abuse, mental illness, stress and coping, violent or suicidal ideation, substance use, extreme minimisation or denial of sexual violence and problems with self-awareness, negative emotionality, impulsivity, cooperation with supervision and problems with intimate and non-intimate relationships.

52. [76]

    In Ms Cieplucha’s opinion, KW’s most likely scenario for reoffending would be consistent with his previous offending. His personality structure has left him vulnerable to emotional collapse, which results in impulsivity, reactivity and aggressive behaviours. A sense of resentment toward women, combined with poor sexual self-regulation and underlying sexual attraction toward young females contributed to KW’s most recent sexual offending.

53. [77]

    Ms Cieplucha considers that conditions of an ESO to address risk should include risk management strategies such as referral to psychological services, scrutiny of social contacts, unannounced home visits and electronic monitoring, as well as case management to encourage a stable and sustainable lifestyle.

54. [78]

    Ms Cieplucha recommended that the mitigation of future risk may be enhanced by intensive community supervision and strict monitoring to prevent opportunities for victim access.

55. [79]

    Ms Cieplucha prepared a supplementary RAR after receiving updated material from the plaintiff. The further material included updates about the defendant’s participation and/or eligibility for participating in therapeutic programs. Ms Cieplucha stated that nothing in the new material would alter her opinion that KW’s risk of committing further sexual offences is in the “Above Average” risk range.

56. [80]

    An RMR was prepared by Glen Perry, Community Corrections Officer dated 23 November 2022. Mr Perry noted that whilst in custody, KW completed the EQUIPS Foundation program and at the date of his report, KW had not engaged in any intensive therapeutic intervention to address his sexual offending.

57. [81]

    Mr Perry reports that KW had previously been subject to Community Corrections supervision in 2017 in relation to a domestic violence offence. Records indicate that the defendant engaged minimally with supervision and interventions and achieved little. In custody, the defendant was initially classified as medium security but had progressed to minimum security from January 2019. He has incurred 41 institutional misconduct charges.

58. [82]

    As to the risk of general reoffending, Mr Perry notes that an assessment using the LSI-R was undertaken in 2018 and found that KW fell into the “medium” risk level for general reoffending. Mr Perry noted the risk factors as identified by Ms Cieplucha in her first RAR.

59. [83]

    Mr Perry proposed a risk management plan consisting of supervision with frequent face-to-face contact, announced and unannounced home visits, intervention strategies such as mental health and substance abuse treatment and weekly interviews with Community Corrections to address behavioural change. Mr Perry also recommended bi-monthly case management review to ensure that KW’s intervention plan continued to appropriately address his risks and needs. Further strategies might include conditions on the ESO such as curfew, accommodation, medical intervention and treatment requirements, and conditions to encourage KW to engage in education and employment opportunities.

60. [84]

    The defendant participated in the EQUIPS Foundations Program in September 2021. Whilst in custody he was eligible for other programs, including the Self-Regulation Program – Sexual Offending, but he was deemed unsuitable to participate due to the limited time remaining on his sentence. He has not participated in any therapeutic intervention programs. In custody, it was generally accepted that there were challenges in providing treatment that was appropriately tailored to the defendant’s needs, especially in light of his mild intellectual disability.

61. [85]

    Options available to reduce the risk of reoffending include continuing current services through NDIS funding, access to a specialist trauma psychologist, and continued community supervision and support.

62. [86]

    The OIMS notes disclose KW’s compliance with the ISO to date, although at the date of the hearing, the ISO had only been on foot for a few months. Further, it is noted in the most recent reports and documents that KW was not happy with the prospect of an ESO, and that he did not want any further conditions imposed. The plaintiff submitted that despite KW’s apprehensions as expressed to Dr Elliott and Dr McSwiggan, the court ought not to consider that his views weigh against the making of an ESO for five years.

63. [87]

    As to parole, the defendant was denied parole when it became available, as the proposed residence was deemed unsuitable. It has now been assessed as suitable and is where he is currently residing.

64. [88]

    There have been no reported breaches of the defendant’s CPR obligations. It is agreed between the parties that his obligations were suspended for the duration of the ISO, and will continue to be suspended during the currency of the ESO.

65. [89]

    In her Honour’s remarks on sentence, Wells SC DCJ considered that the index offending was in the mid-range of objective seriousness. Her Honour found that while KW said he was motivated by anger about other offences that he was convicted of, he was also motivated by sexual gratification. Her Honour found that this offending was deliberate, premediated and predatory, and she held guarded views as to the defendant’s remorse, in part because of the defendant’s attempts to dissuade the victim from cooperating with police. Her Honour also considered that KW needed to take proactive steps towards his rehabilitation.

66. [90]

    Ms Williamson is an occupational therapist who prepared a report for the purpose of determining appropriate supports in anticipation of further funding by the NDIS.

67. [91]

    Ms Williamson assessed KW’s capacity to perform a variety of activities of daily living. She identified particular issues with the defendant’s ability to independently initiate and manage self-care activities (attributable to his mild intellectual disability), socialisation skills and participation in the community.

68. [92]

    The report recommends a variety of supports to assist KW and also recommends setting goals to improve KW’s independence in the performance of activities of daily living, development of functional communication skills, the improvement of coping skills and emotional regulation and the enhancement of vocational and employment opportunities. Ms Williamson’s opinion is that without these supports, KW is at risk of reduced independence and community participation, which will reduce his quality of life.

69. [93]

    Mr Robinson, psychologist at Lismore Community Corrections prepared a structured case note from OIMS notes following a referral for an assessment of risk management and treatment needs with respect to KW, which was prepared in relation to the sentencing for the index offending. Mr Robinson summarised the defendant’s history and considered that he is most suited to a high interim level of supervision intensity. In the event that he was to be sentenced to a community based order, Mr Robinson recommended continued mental health treatment, community based sex offender treatment and supervision. In the context of a custodial sentence, Mr Robinson recommended assessment for a specialist sex offender treatment program.

70. [94]

    Various entries into the defendant’s Justice Health records between 2020 and 2022 formed part of the volumes tendered in the final hearing. These disclose contact with Justice Health psychiatrists and detail the medication prescribed to the defendant whilst he was in custody.

71. [95]

    Notes prepared by psychologists who saw the defendant in custody throughout 2019 were also tendered. Generally, they disclose that the defendant presented with symptoms of depression, anxiety and PTSD.

Disputes as to certain conditions and duration of an ESO

1. [96]

   Counsel for the defendant conceded that an ESO ought to be made. However he submitted that due to KW’s personal vulnerabilities, the court ought not to impose stringent conditions which were not appropriately tailored, and which might put the defendant easily in breach of those conditions. He submitted that this possibility would frustrate the rehabilitative and protective objects of the HRO Act. Mr Bhasin submitted that the positive OIMS notes to date indicate the appropriateness of the conditions currently in place under the ISO.

2. [97]

   Most of the conditions proposed were agreed. The following conditions (as set out in the Schedule to the Amended Summons) were in issue at the final hearing.

3. [98]

   I observe that I am grateful to both Dr Elliott and Dr McSwiggan who gave concurrent evidence at the hearing. Their assistance was invaluable in arriving at what are, in my opinion, appropriate conditions tailored to KW’s risk profile.

4. [99]

   Late in the proceedings, Mr Bhasin submitted that the defendant objected to the wording in proposed condition 1 that he “obey all reasonable directions of a DSO.” He relied on the decision of Fullerton J in State of New South Wales v Grooms (Final) [2019] NSWSC 353 (Grooms), where her Honour drafted a condition as follows:

5. [100]

   Mr Bhasin relied on her Honour’s reasoning that this condition ought to expressly specify that any directions from a DSO are confined to directions that the defendant do or refrain from doing the particular acts specified as conditions to which the defendant is subject. Her Honour held that a condition without this express wording, which would allow a DSO to give directions as they saw “appropriate” for the supervision of a defendant, would amount to an abrogation of the Court’s obligation under s 11 of the HRO Act to impose “appropriate” conditions: see Grooms at [88] – [93].

6. [101]

   Mr Bhasin submitted that an amendment to proposed condition 1 in this matter, similar to that drafted by Fullerton J in Grooms, was necessary given recent directions issued to the defendant in error. The plaintiff did not oppose such an amendment.

7. [102]

   Given that Mr Bhasin pressed for condition 1 to be drafted in this way, and it was not opposed by the State, I propose to amend condition 1 accordingly.

8. [103]

   The plaintiff sought conditions 6-8 which would require the defendant to provide a weekly schedule of movements to his DSO, three days before the schedule is to start and which could not be departed from without prior approval. In Mr Ng’s submission, a schedule of movements could be complied with by KW, and he relied on the report of Dr McSwiggan, who did not express a view that the defendant would be unable to comply with this condition. Mr Ng further submitted that such a condition would address the identified risk of impulsivity and would impose structure on the defendant.

9. [104]

   Mr Bhasin relied on the reasons of Fagan J declining to impose these conditions. His Honour was concerned that the onerous nature of having to submit a schedule 260 times over the (proposed) five year term of an ESO would be setting KW up to fail. His Honour was not of the view that these conditions would improve structure or have a lasting benefit on KW’s life. Further, Mr Bhasin submitted that such conditions would restrict KW’s liberty and bear no identifiable relationship to his offending history or his identified risk profile. He noted that the RMR does not articulate that scheduling would appropriately address risk. Mr Bhasin submitted that the defendant does not oppose electronic monitoring and he relied on the comments of Yehia J in State of New South Wales v Rush (Final) [2022] NSWSC 984 at [112], where her Honour noted that electronic monitoring provides for a defendant’s movements to be supervised in real time.

10. [105]

    At the hearing, both Dr McSwiggan and Dr Elliott agreed that the defendant has the cognitive capacity to prepare a schedule of weekly movements. However Dr Elliott expressed concern about his ability to comply with a schedule given his personality structure, and in particular his maladaptive traits. Both agreed that without the assistance of an NDIS funded case manager, for example (for which there is currently no funding), there is every likelihood KW will breach a schedule of conditions. When asked how this condition responded to KW’s risks, both experts agreed that it would address his risk of acting impulsively and would reflect any discrepancies with the electronic monitoring, effectively overlapping with that condition. Both Dr McSwiggan and Dr Elliott were of the view that without a case manager, the defendant was doomed to breach this condition.

11. [106]

    In my opinion, based on the experts’ opinion, these conditions ought not to be imposed.

12. [107]

    Condition 9 would require KW to live at an address approved by a DSO and for notice to be provided of any intention to change his address. Fagan J declined to impose this condition in the form proposed by the plaintiff, and instead drafted the condition to read that the defendant is to notify the DSO of the address at which he is residing within 24 hours of taking up that residence. At the time of the interim hearing, there was no approved address for the defendant. His Honour was concerned about the “open ended form” of the condition sought, as it might result in the DSO nominating an address to which KW may have some valid objection, and which might expose him to breach. His Honour also noted that the defendant’s criminal history is not specific to his occupation of any particular residence.

13. [108]

    In the plaintiff’s submission, this condition would impose structure on the defendant which mitigates his risk of impulsivity. Mr Ng submitted that the requirement that a DSO be notified of a change of residence would not prevent the defendant from residing at a location that would not pose an unacceptable risk of the defendant committing a further serious offence.

14. [109]

    Mr Bhasin submitted that the condition as imposed by Fagan J is adequate and relied on his Honour’s reasons as to why. Further, in his submission, given the proposed duration of the ESO, there is a real prospect that the defendant’s grandparents’ home may become unsuitable or he may choose to live elsewhere. Mr Bhasin says that, given the lack of connection between KW’s residence and his offending, there is no basis upon which the Court should require that KW’s place of residence be subject to the discretion of a DSO. Mr Bhasin observed that Dr McSwiggan’s report does not address this issue.

15. [110]

    Whilst initially both Dr Elliott and Dr McSwiggan considered that requiring a DSO to approve of a proposed residence was necessary to address risk, because it would allow for vetting before the applicant resided at a new address, both agreed that Fagan J’s conditions as drafted, in combination with electronic monitoring adequately addressed the risks associated with the defendant.

16. [111]

    Based on the expert opinion, I decline to impose the condition proposed and impose the condition as drafted by Fagan J.

17. [112]

    Condition 10 would prohibit the defendant from leaving his approved address between 9pm and 6am except by other arrangement as approved by a DSO. Justice Fagan considered that other conditions already appropriately addressed the risk of KW introducing himself to, or establishing a relationship with, an underage female. His Honour did not consider a curfew necessary to address any identifiable risk from past behaviour, saying at [25] that it “is not sufficiently likely to be useful to warrant imposing the condition and restricting the defendant’s liberty in this respect.”

18. [113]

    Mr Ng submitted that the index offending occurred at night time, and that there is a real risk that similar offending could occur if a curfew was not imposed. Further, he submitted that given that at least part of KW’s historical offending involved using the internet to groom victims and then arrange to meet them at night, a curfew condition would eliminate the opportunity for offending behaviour to materialise at night time.

19. [114]

    Mr Bhasin adopted Fagan J’s reasons for not imposing this condition.

20. [115]

    Both Dr McSwiggan and Dr Elliott were of the view that 9pm was too early, particularly during the summer months. Dr McSwiggan reiterated her support for the condition, that because the index offending occurred at night, a curfew would mitigate against a risk of KW being out at night without a purpose. Dr Elliott observed however, and Dr McSwiggan agreed, that there are already conditions that capture that risk, i.e., electronic monitoring and restrictions on certain venues. Both experts answered ‘no’ when asked if a curfew condition would add anything not already addressed to manage risk by the imposition of a schedule and electronic monitoring condition.

21. [116]

    Based on the expert opinion, I decline to impose this condition.

22. [117]

    The plaintiff seeks a condition that KW must not frequent or visit any place or district specified by a DSO. The defendant relied on the reasons that Fagan J gave when declining to impose this condition, i.e., that it confers too broad a discretion on a DSO to restrict the defendant’s liberty. Mr Ng submitted that the condition would only operate where there is an unforeseen circumstance which is linked to the defendant’s risk, and he relied on the scope of the power at s 11 of the HRO Act.

23. [118]

    Dr Elliott and Dr McSwiggan noted the content of conditions 11-14 of the ISO (association conditions) and agreed that proposed conditions 17 and 18 appeared to double up on those conditions and added nothing further.

24. [119]

    Based on the expert opinion, I decline to impose these conditions.

25. [120]

    Proposed conditions 20-22 would require KW to take all reasonable steps to participate in interventions recommended by a DSO, and not start (or change) any employment or education course without approval. Mr Bhasin submitted that condition 20 is unnecessary given the conditions at Part G to which the defendant consents (participating in medical intervention and treatment). As to conditions 21-22, he submitted that these conditions have no identifiable connection with the defendant’s risk profile. The plaintiff submitted that these conditions are necessary as they are protective of KW’s risk of impulsivity. Mr Ng also relied on the report of Dr McSwiggan, where she considered conditions 21 and 22 to be protective.

26. [121]

    In oral evidence, Dr McSwiggan and Dr Elliott both were of the view that with respect to participation in interventions, sex offender treatment should be the focus. Dr Elliott cautioned against using conditions of an ESO as a ‘stick’ for compliance. Both agreed that proposed conditions 20-22 added nothing and ought not to be imposed given the conditions in Part G of the ISO.

27. [122]

    Based on the expert opinion, I decline to impose these conditions.

28. [123]

    Conditions 24-29 would prohibit KW’s use or possession of prohibited drugs, require his submission to alcohol and drug testing, and require approval before he either possesses or consumes alcohol or enters licensed premises. Mr Bhasin submitted that I should refuse to impose these conditions because possession (and use) of prohibited drugs is already criminalised under the criminal law, there is no connection between alcohol and drug use and KW’s offending or his risk profile, and that the restriction on KW’s entry into licensed venues is a severe restriction on liberty without any identifiable connection to his offending or risk of reoffending.

29. [124]

    The plaintiff submitted that such conditions are necessary, and Mr Ng relied on Dr McSwiggan’s report that the defendant admitted to providing sexual favours in custody to obtain substances, as well as her conclusions that given KW’s history, such conditions are necessary to manage a risk of drug and alcohol use.

30. [125]

    In oral evidence, both experts agreed that there was no evidence in this matter that alcohol contributed to KW’s offending. Dr McSwiggan observed that KW has a history of substance abuse from approximately 18 – 22 years of age, and that he is currently maintained on an opioid replacement therapy for a substance use disorder (a monthly injection of Buvidal). Dr Elliott said that he would be concerned if KW was relapsing into illicit substance abuse because that would be a broader indication of KW straying from a stable lifestyle, as it would signal that KW had found access to drugs, putting him into situations of high risk for reoffending and debilitating mental health. In Dr Elliott’s opinion, drug use in particular would markedly exacerbate features of KW’s maladaptive personality structure and likely cause self-sabotaging behaviour. He has “guarded hope” for the defendant refraining from abusing stimulants, given his experience with other patients. Dr McSwiggan agreed, and both supported the proposal for a reasonable non-invasive testing regime to be included in the conditions. Both agreed that the criminal law adequately dealt with the use or possession of drugs.

31. [126]

    In my opinion, based on the expert evidence, conditions 24-29 ought not to be imposed. However, taking into account KW’s risk profile with respect to illegal substances, I propose to impose a condition as follows:-

32. [127]

    Condition 32(c) would prohibit KW from associating with any person held in custody without prior approval. Mr Ng submitted that this condition was supported by Dr McSwiggan and would address the risk factor of associating with “antisocial peers, which elevates the risk of his exposure to illicit drugs and other antisocial traits.” Mr Bhasin submitted that there is no connection between KW’s offending or his risk profile and his association with others. Further, he submitted that Dr McSwiggan’s support for this condition is not readily apparent in her report, and neither is it apparent how KW’s associating with persons in custody would elevate his risk of drug and alcohol use.

33. [128]

    Dr McSwiggan told the court that her understanding was that this condition was proposed to prohibit association with other child sex offenders. She said that in terms of his contact with his girlfriend, who is in custody, this condition does not respond to any risk. In any event, Dr McSwiggan does not consider that there is a real risk of KW communicating with other sex offenders. She said that KW does not have this kind of risk profile, and that assuming proposed condition 13 is imposed, prohibiting the defendant from associating with anyone nominated by a DSO (who will only specify a person associated with KW’s risk of committing a further child sexual offence), this condition does not add anything further. Dr Elliott agreed with Dr McSwiggan.

34. [129]

    Based on the expert opinion, I decline to impose this condition.

35. [130]

    The plaintiff seeks conditions 48 and 49 that would require the defendant to submit to the search or seizure of any item or place in his possession or control, and that he must not attempt to destroy or interfere with anything subject to a search or seizure. Mr Ng submitted that these conditions are necessary to address the risk that the defendant may have in his possession illicit substances, a risk identified by Dr McSwiggan with respect to KW’s obtaining medication in custody. Mr Bhasin opposed the imposition of this condition.

36. [131]

    At the hearing, Dr McSwiggan said that her support for this condition stemmed from a concern about electronic media or communications only, and that the proposed conditions would ‘double up’ with other conditions (agreed to by KW) restricting his use of the internet and requiring him to inform the DSO of any devices he owns, his account details and his passwords. Dr Elliott agreed.

37. [132]

    Based on the expert opinion, I decline to impose these conditions.

38. [133]

    Conditions 52 to 54 prohibit KW from changing his appearance or identification details without prior approval. The plaintiff relied on the recommendation of Dr McSwiggan that such conditions are “required for the order to be effective.” However I note that in a preceding paragraph, Dr McSwiggan considered that the condition that he not change his appearance was unnecessary given that she assessed the likelihood of KW changing his appearance to any degree as being “remote.” Mr Ng submitted that these conditions are necessary to ensure the defendant can be identified if he does change his appearance and also to assist a DSO in identifying KW if the DSO changes. In making this submission, Mr Ng relied on the proposed five year term of the ESO and the real likelihood that the DSO would change during the term of an ESO of that duration.

39. [134]

    Mr Bhasin submitted that these conditions have no connection to the defendant’s risk of reoffending and that Dr McSwiggan’s conclusion that such conditions are required for the order to be effective are not within her area of expertise. Mr Bhasin also relied on Fagan J’s reasons for not imposing this condition, i.e., his Honour found these conditions too vague, and that there were already photographic records of KW.

40. [135]

    Both Dr Elliott and Dr McSwiggan were of the view that bearing in mind the likely frequent contact between a DSO and KW, it was likely that KW would not have an opportunity to significantly change his appearance.

41. [136]

    In my view, these conditions do not respond to any risk. I am concerned by the use of the word “significant” which is vague. Based on the expert opinion I decline to impose these conditions.

42. [137]

    The plaintiff seeks a term of five years. Mr Bhasin submitted that two years is appropriate.

43. [138]

    In Dr Elliott’s opinion, a five year term would be appropriate because of the nature of the conditions that lead to the defendant’s risk, especially his lifelong mild intellectual disability and personality structure. Dr Elliott was of the view that KW’s personality structure is the key risk factor for his reoffending. He says that psychological treatment programs for sex offenders, if effective, take a long time to be effective and he did not believe that the defendant’s risk could be mitigated under a one or two year order. Dr Elliott agreed however, that an ESO of less than five years, noting that the State can apply for an extension, would give KW some hope and something to strive for. Dr McSwiggan agreed with Dr Elliott, and observed that the recent OIMS notes show compliance with the ISO so far.

44. [139]

    In my opinion, a term of three years is appropriate. I rely on the expert opinion given in these proceedings. I note that the HRO Act provides that the plaintiff may, in due course, seek an extension of the ESO.

Conclusion

1. [140]

   Taking all matters into account, including the significant assistance of Dr McSwiggan and Dr Elliott, and with the safety of the community as the paramount consideration, 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 the supervision of an ESO.

2. [141]

   I propose to make an ESO for a term of three years, subject to the conditions set out in the Annexure to these reasons.

Orders

1. [142]

   I make the following orders:-

   1. (1)

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

   2. (2)

      Pursuant to s 11 of the Act, I direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Annexure to these reasons.