State of New South Wales v Shields (Final)

1. [1]

   The defendant, Thomas John Shields, is a 48 year old man who has been convicted of both contact and non-contact sexual offending against children. The offences were committed in 2002–2003 and 2018. He is currently subject to an Interim Supervision Order (“ISO”) which is set to expire on 24 December 2024. He has been subject to an earlier Extended Supervision Order (“ESO”).

2. [2]

   The plaintiff, the State of New South Wales, has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act’”) by way of amended summons filed on 15 November 2024. The plaintiff seeks final relief in the nature of a two-year ESO subject to certain conditions. The making of the order is opposed by the defendant. Should the order be made, the defendant opposes the inclusion of some of the conditions and/or proposes alternative wording.

3. [3]

   On 12 September 2024, following a preliminary hearing, Sweeney J made orders pursuant to ss 10A and 10C of the Act for the defendant to be subject to an ISO commencing on 29 October 2024 for a period of 28 days. On 14 November 2024, Yehia J ordered that the defendant be subject to a further ISO commencing on 26 November 2024 for a period of 28 days.

4. [4]

   The final hearing of the plaintiff’s application came before me on 13 December 2024. Mr Tembe of counsel appeared for the plaintiff, and Ms Kennedy of counsel appeared for the defendant. I am grateful for their assistance.

5. [5]

   The following documentary material was read without objection:

   1. (1)

      On behalf of the plaintiff:

   2. (2)

      On behalf of the defendant:

6. [6]

   For the reasons that follow, I am satisfied an ESO of two years should be made, subject to conditions. The conditions are set out in an annexure at the conclusion of these reasons.

Principal issues for determination

1. [7]

   The principal issues for determination by the Court are as follows:

   1. (1)

      whether an ESO should be made;

   2. (2)

      if an ESO is made, the conditions which the Court considers appropriate as part of the ESO.

The statutory scheme

1. [8]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of (relevantly) high risk sex offenders so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders to undertake rehabilitation.

2. [9]

   The objects of the Act are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].

3. [10]

   Section 5B of the Act specifies the circumstances in which the Court may make an ESO (often referred to as the “threshold requirements”):

4. [11]

   “Serious offence” is defined in s 4 of the Act as a serious sex offence or a serious violence offence. In this matter, the relevant type of serious offence is a serious sex offence. A “serious sex offence” is defined in s 5 of the Act.

5. [12]

   Section 5D of the Act provides that the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

6. [13]

   The meaning of “unacceptable risk” is not defined in the Act and its meaning was considered by Beazley P of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51]:

7. [14]

   The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

8. [15]

   An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

9. [16]

   The impact an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That factor, however, may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the Act: Lynn at [44], [56]–[58] (Beazley P), [126]–[128] (Basten JA), [148] (Gleeson JA).

10. [17]

    In determining whether or not to make an ESO, s 9(2) of the Act provides that the safety of the community must be the paramount consideration of the Court.

11. [18]

    Section 9(3) of the Act sets out a list of factors which the Court “must also have regard to […] in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d), and also the exercise of the discretion in s 9 of the Act.

Factual Background

1. [19]

   The defendant was born in Griffith and his parents separated shortly after he was born. He was largely brought up by his grandmother. The defendant was subjected to prolonged sexual abuse by his female babysitter from the ages of 5–11 years. The defendant said the babysitter was 16 years of age when the abuse started. He was sent to live with his mother and stepfather in Sydney at some point and was physically and psychologically abused by his stepfather. He reported a strong relationship with his father, albeit his father does not share that view, describing their relationship as “infrequent and generalised”. A report from 1991 described the defendant as needing a great deal of support and that he presented as a very lonely insecure boy.

2. [20]

   Over a month between November 2002 and December 2002, and again in August 2003, the defendant committed a series of sexual offences against a 13 year old girl. Those offences were committed while he was living in Victoria. They involved the defendant kissing the victim on the mouth and having the victim masturbate him on two occasions, as well as him kissing and licking her vagina on two occasions. He did not penetrate her vagina. He was interviewed in 2003, charges were issued in 2005. He moved out of Victoria to NSW in 2004 and was finally charged in 2006. Following some delay, the defendant pleaded guilty to five counts of commit indecent act with child under 16 years of age, and was sentenced on 20 May 2009 to three years and six months’ imprisonment with a non-parole period of two years, commencing on 16 August 2007. At the same time, he was made subject to reporting conditions pursuant to the Sex Offenders Registration Act 2004 (Vic) for the remainder of his life.

3. [21]

   Between 2004 and 2005, the defendant was convicted of four offences arising out of domestic relationships, where he received sentences ranging from fines to imprisonment.

4. [22]

   On 29 May 2013, the defendant was convicted and fined in Mildura for failing to comply with reporting obligations, although it is unclear whether that relates to reporting obligations under the Sex Offenders Register.

5. [23]

   On 27 May 2014, the defendant was served with notice of his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), as he had relocated from Victoria to NSW. The defendant was subsequently convicted of the following breaches of failing to comply with the child protection legislation:

6. [24]

   In 2015, the defendant was charged with a property offence again involving a domestic relationship. At the time, the defendant was living out of his car. He visited his partner’s home, and they argued over him accessing her phone without permission. After the defendant punched the bedroom door once causing a small hole, she asked him to leave. He agreed. A short time later he returned and asked her to move her car so he could leave, which she did. At some point the defendant hit her car with his, causing the front number plate to be dented.

7. [25]

   On 25 October 2018, the defendant was arrested following an investigation by authorities into his online activity.

8. [26]

   It was determined that between 9 May 2018 and 11 September 2018, the defendant had been using fictitious online identities to engage with two different online identities he believed were 14 year old girls (who were, in fact, police officers with assumed online identities).

9. [27]

   The first instance involved an investigator from Arizona, United States. On 9 May 2018, the defendant contacted the online identity “S” and introduced himself as a 22 year old man, adopting the identity “Kerser”. He said his girlfriend was away and it would be good if “S” was there with him. Between 9 May and 2 August 2018, Kerser sent “S” explicit messages, photographs and videos.

10. [28]

    The defendant requested “S” transmit naked pictures in May 2018 and had sent various images including photographs of his erect penis, masturbated via a live stream link and sent highly sexually explicit messages to “S”. Later that month, there were further conversations that were sexually explicit, including an acknowledgement of the age of “S” and his statement that “we just have to be careful if authorities find out we are bringing you here to have sexual relations with us we are fucked”. The defendant recounted a story of having sexual intercourse with his girlfriend’s 12-year-old sister and continued to ask the identity for nude images. Between May and September 2018, the defendant contacted the female identity and sent sexually explicit photographs, videos and communications.

11. [29]

    On 25 May 2018, the defendant also adopted the online identity “Karen9016” and purported to be a person called Caitlin. The defendant contacted “S” purporting to be a female who had a sexual relationship with Caitlin’s cousin who then sent an image of what they claimed was their cousin’s penis, and an image depicting an unknown adult male. The following day “S” told Kerser that she had met a girl on social media who was Australian and liked older men. The girl was in fact an online identity assumed by NSW Police, “P”.

12. [30]

    Offences relating to the second online identity began on 25 June 2018. The defendant contacted “P” and asked her age. He was advised “P” was 14 years of age and he claimed he was 24 years of age and liked younger females. He transmitted sexually explicit pictures and videos and asked for nude images to prove “she” was real. There were further online conversations in September 2018, during which the defendant described having sexually assaulted his 12 year old stepdaughter. He said he had “taken” the virginity of his cousin when she was 11 years old, asked for nude images of “P” and sent an explicit image of his penis. He suggested they meet in person; however, a meeting did not eventuate.

13. [31]

    Following his arrest on 25 October 2018, the defendant made some admissions and disclosed that he had invented fictitious details in his communications with “S” and “P”.

14. [32]

    On 11 October 2019, the defendant was convicted of the following index offences:

15. [33]

    On 11 October 2019, the defendant was sentenced by Graham ADCJ at Albury District Court to the term of imprisonment of 3 years and 6 months to commence on 25 October 2018, with a non-parole period of 2 years, to expire on 24 October 2020. He was not released to parole.

16. [34]

    On 25 February 2022, the plaintiff brought proceedings seeking an ESO for the defendant. He was released at the expiration of his sentence on 25 April 2022 subject to an ISO imposed by Wright J on 20 April 2022. On 5 July 2022, Garling J imposed an ESO on the defendant for a period of two years.

17. [35]

    As recorded by Ms Cieplucha, Senior Psychologist, Corrective Services NSW (“CSNSW”), in a Risk Assessment Report, dated 20 March 2024, the defendant was referred to the NDIS around August 2022. The application was initially declined. However, he was subsequently assessed as having met access requirements in December 2022 for a moderate to severe hearing impairment. Following a review of his plan outlining his psychosocial impairments in June 2023, an updated plan with a greater level of funding was approved to be implemented from 21 June 2023.

18. [36]

    In the Joint Statement of Agreed Facts (“Agreed Facts”) tendered at the hearing, it was recorded that the NDIS support included 45 hours of specialist behavioural intervention, and 20 hours of behaviour management plan including training in behaviour management strategies. The defendant has seen Howard Colin-Thome, psychologist at Leichhardt Psychology Practice, since August 2023 and had attended 20 sessions by mid-June 2024. Mr Colin-Thome described him as “travelling well”.

19. [37]

    On 11 July 2023, the defendant underwent an occupational therapy functional capacity assessment at the Integration Support Centre (ISC) for the NDIS. Following that assessment, a report was prepared which notes that he experiences functional impairments arising from his psychosocial disabilities that considerably impact his everyday life and functioning. I note that they include, but are not limited to amotivation, mental rigidity, impaired social/interpersonal and communication skills, agitation and restlessness, withdrawal and social isolation, fatigue and lethargy, fluctuations in mood, high levels of anxiety and panic attacks, feelings of helplessness and worthlessness, decreased participation in personal and instrumental activities of daily living, feelings of isolation, boredom and emptiness, physical and verbal aggression, PTSD symptoms including hypervigilance, intrusive thoughts, low mood, preoccupation with negative thoughts and flashbacks, irrational and impulsive decision making, difficulties with regulating emotions, significant self-neglect, self-harming behaviours and suicidal ideation.

20. [38]

    The report also found the defendant’s disabilities had affected his cognitive functioning in a number of areas that “significantly impact on his ability to initiate, engage and execute activities of daily living […] and are especially evident regarding his ability to self-manage his health/medical needs, personal and financial affairs”. These areas were: attention and concentration; memory and recall; planning, organising and assembling; processing and understanding information; reasoning, learning, problem-solving, decision making and judgment; monitoring and watching behaviour to ensure that it is socially acceptable; and communicating thoughts, feelings and ideas in ways that others can understand.

21. [39]

    On 27 July 2023, the defendant was arrested and charged with one offence of intimidate with intent to cause fear contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). He has pleaded not guilty to that charge and the matter is next listed for hearing at Campbelltown Local Court in April 2025.

22. [40]

    It is alleged that on 30 May 2023, the complainant, aged 20 years old, was a passenger, with her mother, on an intercity train when it pulled into Campbelltown train station. Her mother had come to Sydney to collect the complainant who had been staying in Sydney with a friend. The complainant and the defendant were known to each other as he had been in a previous relationship with that friend. The complainant and her mother were meant to board the train from Campbelltown, however, due to information told to them about the defendant, the pair changed their minds and boarded at Central station. The defendant attended Campbelltown train station and remained there for 2 hours. When the train pulled into Campbelltown train station, the complainant recognised the defendant sitting on a waiting chair on the platform, some distance away. As the train came to a stop, the complainant confirmed to her mother that it was the defendant. The defendant recognised the complainant and began pointing in her direction and made a motion with his hand like he was “cutting his throat”. The complainant also thought the defendant was saying “You’re dead” by reading his lips. This caused the complainant to feel scared and to shake.

23. [41]

    On 20 June 2023, the defendant spoke about this alleged offence in his Forensic Psychology Service Maintenance Group. The records note the following:

24. [42]

    On 31 July 2023, during a visit by Department Supervising Officers (“DSOs”) to the ISC, the defendant asked the DSO their view on his forming a relationship with a 42 year old woman he had recently met through a friend, named AB (a pseudonym). The defendant told the DSO that AB had two children, X, a female aged 18 and Y aged 9 (autistic). The DSO indicated that they could not give an opinion without more information. The defendant provided the DSO with AB’s phone number.

25. [43]

    On 4 August 2023, the defendant spoke to a DSO by phone. The defendant advised he had broken off his relationship with AB, with AB advising that she did not want the defendant to go to prison. The Offender Information Managements System (“OIMS”) note records the defendant’s tendency to catastrophise and his difficulty problem solving. The defendant expressed concern about the possibility of being breached and indicated a sense of hopelessness, and that he would “give up” on his relationship and friendships. OIMS notes record that “[the defendant] then started catastrophising, stating he would self-harm and would do what needs to be done to land back in jail.” The notes also record that a DSO spoke to AB on that day and had no concerns with her cognitive ability or her understanding of the ESO.

26. [44]

    Later that day, DSOs visited the defendant at the ISC where he was living. They gave him non-association directions in relation to all his female supports, including AB and another woman through whom he had met AB. The defendant had a strong emotional reaction to this, began yelling, punched the interview desk and punched the screen door and left the room. The DSO approached the defendant in the courtyard and asked if he would like to continue the conversation in private. The defendant told the DSO to “get fucked. I should just kill myself”. The DSO directed the defendant not to leave the ISC for 24 hours or he would be in breach of his ESO.

27. [45]

    A DSO Manager spoke to the defendant by phone later that afternoon, seeking to explain that the non-association order with AB may not be permanent. OIMS notes record:

28. [46]

    At this time, the defendant was in his room and was cutting himself with a sharp piece of metal. ISC staff were alerted and entered his room, confirming with the manager on the phone that they were now with the defendant. ISC staff commenced negotiating with the defendant to stop self-harming and hand over the sharp object. After a short time, the defendant complied. ISC staff began administering First Aid and asked the defendant to place a towel over his injury to stem the bleeding, which he did.

29. [47]

    The DSO attended the room, and when the defendant saw him, he lunged in his direction, but there was an ISC worker between them. The OIMS note records him saying words to the effect of “fuck you and fuck ESO. You’re lucky Eddie is here to stop me from killing you”. He accused the DSO of “fucking his life” and making threatening remarks. The ISC worker placed his hands on the defendant’s chest to prevent him from approaching the DSO, who immediately vacated the area. Immediately following the DSO’s departure, the defendant became passive and compliant again.

30. [48]

    Police, ambulance and a community mental health team subsequently attended upon the defendant. He underwent a mental health assessment and was cleared to remain at the ISC. ISC staff implemented a risk management plan which involved checking on the defendant every 60 minutes. This plan continued through 5 August, into the morning of 6 August 2023.

31. [49]

    During one of the 6 August 2023 checks in the early hours of the morning, the defendant said he was concerned he would be arrested for trying to hit the DSO, and that he should not have disclosed his relationship with AB. The ISC staff said if he had not, the DSO may have had safety concerns. The defendant stated: “I know, but it’s cut me off from my support network and that’s when I go off because it’s a breach of my human rights.”

32. [50]

    Later that same day, at about 9:30am, two other DSOs conducted a scheduled visit with the defendant at the ISC. During the conversation with them, the defendant suddenly stood up and said “fuck ESO bunch of dogs” and walked out of the room, slamming the door and going outside before returning to his room.

33. [51]

    In a welfare check conducted by ISC staff at approximately 10:15am, the defendant was found to be self-harming by cutting his arm with a sharp implement again. He was spoken to by the same ISC worker and agreed to cease self-harming. He went outside where ISC kept an eye on him until the ambulance arrived at about 10:30am. While ambulance officers were administering treatment to the defendant, police arrived, and the defendant became angry and agitated. He picked up a brick and said things like “you are going to have to kill me” and “Any cunt come near me, I’m [going to] smash this over em” before throwing the brick onto a metal table causing a loud noise. He then came out with a metal pole, about a metre long. Police facts included an allegation that while he was outside holding the pole, he saw two DSOs inside a nearby building and yelled in their direction “I’ll smash this fucking pole over your fucking head. You weak fuck”. The defendant denies saying this, and neither of the two DSOs recorded hearing the threats.

34. [52]

    At some point that morning, the defendant was evicted from the ISC.

35. [53]

    The defendant was ultimately conveyed to hospital as an involuntary patient for a mental health assessment, and was discharged later that day. The psychiatric registrar noted that the defendant “describes his self-harm as a mechanism of externalising his inner emotions in a ‘safe manner’ and, not wanting to hurt others despite his recurrent threats.” The registrar’s impression was “Acute crisis in the context of further supervision order restrictions and imminent homelessness […] Further hospitalisation at this time is unlikely to be beneficial nor is it able to mitigate chronic risk factors for self-harm, suicide, misadventure or harm to others, and would albeit likely contribute to further maladaptive coping”.

36. [54]

    On 9 August 2023, the defendant was arrested by Police at his emergency accommodation and charged with two counts of failing to comply with an ESO.

37. [55]

    On 10 August 2023, the defendant pleaded guilty and was sentenced for these two counts to a period 9 months’ imprisonment, with a non-parole period of 3 months. The defendant was released to parole on 5 November 2023.

38. [56]

    In early 2024, the defendant experienced a number of significant health problems resulting in hospitalisation, significant surgery, use of incontinence pads and a walking frame.

39. [57]

    It can be acknowledged that DSOs are very busy and have many demands on their time. However, in this particular case, it is necessary, in my view, to include the following account (based essentially on the Agreed Facts). This account indicates an apparent failure (or at the very least unexplained substantial delay) on the part of the DSOs to assist the defendant to engage with suitable social opportunities which have been recognised as being important to his rehabilitation.

40. [58]

    Men’s sheds are run by a community-based, non-profit, non-commercial group to provide a safe and friendly environment for all men. Its primary activity is the provision of a safe and friendly environment where men are able to work on meaningful projects at their own pace in their own time in the company of other men. A major objective is to advance the well-being and health of their male members.

41. [59]

    On 28 February 2024, the idea of the defendant participating in the Men’s Shed at Kyeemagh was raised by his NDIS worker by email to his DSO. The DSO responded that checks would need to be conducted prior to approval being given.

42. [60]

    On 10 March 2024, the defendant stated to his DSO he would be interested in joining a Men’s Shed to work on renovating a small boat and develop friendships.

43. [61]

    On 24 March 2024, the defendant’s NDIS caseworker requested an update from the DSO. On 26 March 2024, the DSO said the Kyeemagh Men’s Shed was unsuitable but provided no reasons, and no alternative was suggested. There was no record in the OIMS notes of any inquiries, investigations or discussions about the proposal between 28 February and 26 March 2024.

44. [62]

    On 31 March 2024, the NDIS caseworker suggested to the DSO the St George Men’s Shed as an alternative to the Kyeemagh Men’s Shed. No response was received.

45. [63]

    On 30 April 2024, the defendant’s solicitor wrote to the DSO about a number of matters including a suggestion that the defendant attend the Hurstville Men’s Shed in the company of a support worker.

46. [64]

    On 9 May 2024, a DSO visited the defendant. The notes include that the defendant indicated “given his current circumstances he will not go anywhere without his support. He opined that ESO are setting him up to fail given that he is not allowed to associate with people […] [the DSO] attempted to re-direct discussion on opting to engage with prosocial people”. There is no record of any pending Men’s Shed approval being discussed.

47. [65]

    On 14 May 2024, the defendant’s solicitor sent a further email to a DSO inquiring whether there was any update on the issues raised in her 30 April 2024 email.

48. [66]

    On 22 May 2024, the DSO responded to the solicitor apologising for the delay and inquiring whether responses were still sought to all of the queries given the change in the defendant’s circumstances since 30 April 2024. If so, the DSO undertook to seek responses and provide an answer as a matter of priority.

49. [67]

    On 28 May 2024, the solicitor responded confirming that a response was still sought in relation to approval to attend the Men’s Shed. No response was received.

50. [68]

    On 29 May 2024, during a home visit, a DSO observed the defendant to be “quite down and upset”. The DSO encouraged the defendant “to get out and about and into the fresh air and do an activity”.

51. [69]

    On 13 June 2024, during a home visit, the defendant raised that he was trying to get into the Men’s Shed. The DSO noted that the defendant was to discuss the Men’s Shed with his usual officer.

52. [70]

    On 19 June 2024, the defendant’s solicitor forwarded her previous email correspondence regarding approval to attend the Men’s Shed to a new DSO; and advised that due to his having moved to accommodation in a different area, the relevant Men’s Shed was now Canada Bay.

53. [71]

    On 21 June 2024, the defendant’s solicitor received a response stating that the DSO was awaiting information from Police in relation to both locations of the Men’s Shed and that she and the defendant would be informed as soon as that information came through.

54. [72]

    There is no record of any inquiries, investigations or discussions about approving the defendant’s proposed attendance at the St George Men’s Shed between 31 March 2024 and 21 June 2024.

55. [73]

    On 28 June 2024, the defendant’s DSO sent an email to other members of the supervising team requesting checks be completed on the Men’s Shed at Canada Bay. It was noted that concerns were held regarding this location as another person who attended that shed was also subject to the Child Protection Register (for life) and had similar offences to the defendant. The DSO responded that joining this Men’s Shed would not be supported and “an alternative will be sought”. This is the first record of any inquiries on OIMS being made regarding approval for the defendant to attend a Men’s Shed.

56. [74]

    There is no OIMS record of:

57. [75]

    On 2 December 2024, the defendant asked his DSO to have the Hurstville (Carss Park) Men’s Shed reassessed. This was to be conducted by his new supervising team which was due to be allocated in the week starting 9 December 2024.

58. [76]

    Over the course of the previous ESO, the defendant expressed to DSOs many times that he was unwilling or unable to participate effectively in group sex offender therapy. He has resisted engaging with FPS group therapy when discussed with him by a DSO and has repeatedly expressed a preference for individual offence focussed therapy.

59. [77]

    In early 2024, the defendant’s referral to FPS was placed on hold because of his significant health problems. On 15 February 2024, the defendant was issued with a formal direction to attend FPS (in accordance with condition 50). The referral was reactivated, and he had the following appointments (based on the Agreed Facts):

60. [78]

    On 19 June 2024, FPS advised the DSO of four unexplained absences – 23 May, 30 May, 6 June and 13 June. From the OIMS notes, it does not appear that FPS advised the DSO of the weekly Housing NSW appointments clashing with FPS nor that the DSO advised FPS of the above explanations. The DSO said that management would be informed for breach discussion and a plan moving forward.

61. [79]

    Following this, the defendant missed two further appointments without explanation (on 20 and 27 June 2024).

62. [80]

    On 1 July 2024, the defendant had a dispute with his disability support worker and “sacked” him. On 2 July 2024, he was assigned a new support worker named “Mac” (who he had worked with before and considered a friend). On 3 July 2024, he was informed Mac could not be assigned to him, and he requested to be assigned an NDIS registered case worker.

63. [81]

    The defendant missed further appointments: on 4 July 2024 (without explanation, although he had been in hospital on 3 July, as advised to the DSO he had been brought to hospital with severe abdominal pain); and 11 July 2024 (without explanation, although he was in temporary accommodation with the associated difficulties identified in the above table).

64. [82]

    A written warning was issued to the defendant on 12 July 2024 in relation to the last eight sessions being missed, with no acknowledgment of the explanations he had provided to DSOs. He missed a further appointment on 18 July 2024 because of transport issues which he told FPS about.

65. [83]

    On 24 July 2024, the defendant notified the DSOs that he was in hospital, and his temporary accommodation (which was due to expire that day) could not be extended while he was in the hospital. The DSOs managed to extend his accommodation.

66. [84]

    On 25 July 2024, DSO and ESO Police discussed that the defendant was to be arrested the following day for breaching his order by failing to attend FPS, however, if he attended or made contact with FPS that decision may change. DSO informed ESO Police that FPS was not running that week because of staff training. The decision was made to arrest the defendant the following day.

67. [85]

    On 26 July 2024, the defendant was arrested by ESO Police and charged with fail to comply with the ESO in relation to his non-attendance at FPS. He pleaded guilty and was sentenced on 16 August 2024 to a sentence of 7 months imprisonment with a non-parole period of 1 month dating from 26 July 2024 and expiring on 25 August 2024.

68. [86]

    The defendant was released from custody on 25 August 2024. Until 29 October 2024, he was subject to the previous ESO. From 30 October 2024, he was subject to an initial ISO in these proceedings, and from 26 November 2024, he was subject to the further ISO.

69. [87]

    He returned to his temporary accommodation requiring extension approval every few days.

70. [88]

    On 30 September 2024, the defendant was admitted to hospital with blood clots around his heart, but surgery could not take place because of complications. He was discharged on 11 October 2024 without receiving surgery.

71. [89]

    He was informed that his temporary accommodation would not be extended as he had not notified Housing NSW of his admission to hospital. Following DSO advocacy on his behalf, he received a two day extension but it was indicated no further extensions would be granted because his “behaviour towards housing staff was inappropriate”.

72. [90]

    The defendant was offered a place in a supported independent living group home in Kogarah on 16 October 2023, but it was deemed unsuitable because a parolee was due to be released to that address imminently. That person’s offences included violence, property crime, weapons and drug related offences. The defendant’s temporary accommodation was again extended for a few days.

73. [91]

    During a phone call with a DSO on 17 October 2024, the defendant was told of the reason for the refusal and stated words to the effect: “You see this is why I don’t progress […] you guys knock me back […] how can I progress? I wanted to attend a Men’s Shed, you guys said no. I can’t progress”.

74. [92]

    Further issues occurred in relation to hospitalisation and temporary extension of his housing. He eventually received an offer of long-term housing from Housing NSW and moved in on 25 November 2024.

75. [93]

    The defendant is thus currently subject to an ISO, residing in long-term public housing. When he was not in temporary accommodation, he had previously lived at the Nunyara COSP Centre, a CSNSW Residential Centre attached to Long Bay Correctional Centre, but was evicted in May 2024 due to a failure to engage in the program’s terms and conditions and a failure to uphold the resident responsibilities – specifically, a failure to complete allocated chores and to actively seek alternative, permanent independent accommodation. He is currently supported by an NDIS package.

Threshold requirements

1. [94]

   It is conceded, and I find, that all statutory preconditions to the making of the ESO sought have been satisfied, other than the “unacceptable risk” precondition in s 5B(d) of the Act. That is:

2. [95]

   The requirements with respect to the application set out in ss 6(1), 6(3), 7(1) and 7(2) of the Act have also been complied with.

First matter for determination: Should an ESO be made?

1. [96]

   As noted above, this is an evaluative task. My satisfaction under s 5B(d) is a precondition to the exercise of the power in s 9 of the Act.

2. [97]

   Section 9(1) provides that I may determine the application either by making an ESO or by dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO, the paramount consideration must be the safety of the community. The exercise under s 9 requires the exercise of a discretionary judgment, both as to whether such an order is to be made and to the nature of the supervision. A non-exhaustive list of matters I must consider are found in s 9(3). I may also have regard to “any other matter [I] consider relevant”.

3. [98]

   To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the material tendered by the plaintiff and by the defendant. I now turn to those matters.

4. [99]

   Dr Youssef is a forensic psychologist who was appointed pursuant to s 7 of the Act.

5. [100]

   Dr Youssef interviewed the defendant in a four and a half hour session on 18 October 2024.

6. [101]

   Dr Youssef assessed the defendant using the following risk assessment tools, as follows:

7. [102]

   Dr Youssef concluded that the defendant was in the “Well Above Average” category for recidivism, and there was a “High” likelihood of sexual recidivism, assuming no special management plans were implemented. She opined that he would be at a moderate imminence of sexual offending, and a low-moderate severity of sexual violence (dependant on whether the offence is contact or non-contact), if there are no management plans in place. She stated the case prioritisation rating suggests that the defendant will require a “High” level of effort to implement special management plans that could feasibly and effectively prevent sexual recidivism. Dr Youssef supports the need for an ESO and is of the view that the likelihood of the defendant being able to address his own risk in the community remains low. She noted that some paraphilias are very important motivations for sexual offending, particularly (relevantly) hebephilia. Dr Youssef supports the imposition of an ESO and stated: “The likelihood of [the defendant] being able to [manage his risk] without a further period of intensive support and supervision in the community, considering his general resistance and outstanding needs, remains low.” (Emphasis added.)

8. [103]

   As for risk scenarios, Dr Youssef identified both an online sexual offence, involving grooming, similar to his index offences, and a contact sexual offence, both involving pubescent females. Unlike Dr Marcelo Rodriguez (discussed below), she did not predicate the contact offence occurring upon the relapse into substance abuse (albeit she contemplated it). I note that the defendant told Dr Youssef that he was sexually frustrated and lonely, and that he engaged in the interactions underpinning the index offending, despite being in a relationship with a woman at the time, to feel less sexually frustrated and less lonely. He indicated that it was when that woman was away for a period of time that he would go online and chat to the online identities.

9. [104]

   Similar to Dr Rodriguez’s observations, Dr Youssef observed the defendant to be actively engaged in the interview process, attempting to answer questions put to him but was “somewhat guarded when discussing topics related to his offences and sexual interests”.

10. [105]

    I note that he denied to Dr Youssef, as he had to Dr Rodriguez, wanting to engage in sex, rather, he wanted a meaningful relationship. This, however, is in contrast with the defendant downloading an Artificial Intelligence Application to engage in sexualised conversations when he felt lonely. In one conversation, the defendant was conversing with the bot who was simulating a young virgin female, related to him, and the conversation describes a scene where, despite her protests and crying, the defendant describes penetrating her.

11. [106]

    I further note that the defendant told Dr Youssef that he was attracted to teenage girls and their bodies. He also stated: “many young girls want to be with older men, but not the other way around”.

12. [107]

    The defendant continues to identify his primary risk factor as substance abuse, and since he no longer uses substances, he is not concerned that he will reoffend. Dr Youssef, however, also noted that the defendant also identified the following as risk factors for him: “access to chatrooms, loneliness, isolation and ‘seeing a mature teenage girl’.” (Emphasis in original.). Dr Youssef noted the following:

13. [108]

    Dr Youssef opined that the defendant needed to address his treatment needs, as opposed to maintenance, for a period of 12 months. Importantly, like Dr Rodriguez, she recommended he sees a psychologist who can treat him for his sexual disorder. She noted that since mid-2023, he had been seeing a general psychologist, Mr Howard Colin-Thorne through his NDIS funding. He currently sees him fortnightly as he is also seeing his behaviour support practitioner. She noted that the defendant identified his current NDIS staff as his only supports, including his psychologist, his behaviour support practitioner, support coordinator and his support worker. He said otherwise he does not have anyone else. His interests lie in fishing, electronics, car stereo systems, drawing and tattooing. His plans were to “get off the ESO” as he felt it was obstructive to his reintegration.

14. [109]

    Dr Youssef noted that the defendant said he would be open to seeing FPS if could participate in individual sessions rather than group sessions, but further noted that file information indicated that the defendant was offered individual sessions by FPS but only participated in one phone interview and no more. He said he did not find the groups helpful at all. He would find it more useful if he saw someone once every 2–4 weeks to check in on how he was managing his risk factors.

15. [110]

    Dr Youssef agreed with the plaintiff’s proposed conditions. She noted the importance of the Gambling Condition, as gambling may be a possible substitute for his substance abuse and “emotional dysregulation may be heightened, resultant from the stressor caused by gambling”. The defendant said he could spend “hours […] most of the day” on games on his phone and noted that gambling was a problem for him. There was a case note in relation to the defendant self-excluding from gambling apps due to “gambling problems”.

16. [111]

    Dr Rodriguez interviewed the defendant in a three hour session on 16 October 2024. He also concluded that the defendant poses a risk of committing a further serious sexual offence, and that risk cannot be managed in the community without an ESO being imposed. He stated:

17. [112]

    Dr Rodriguez noted the defendant would not discuss certain aspects of his life such as his childhood, and also that the defendant tried to control the interview, would only answer some questions, and used psychological defence mechanisms such as minimisation. He concluded, though, by assessing that he was cooperative and showed restraint.

18. [113]

    Dr Rodriguez opined the defendant would attract the following diagnoses:

19. [114]

    Although Dr Rodriguez stated that any paraphilic disorder is “currently dormant given his self-report of significantly attenuated sex drive”, it can be noted that he said to Dr Rodriguez that he had not masturbated for eight years and was suffering from erectile dysfunction. This account can be compared to that provided to Dr Youssef that it was closer to eight months, and that he stopped because he could not climax. Further, in September 2024, he was found to have an empty box of condoms in his room which he told officers were used by him to masturbate. Dr Rodriguez later opined that his paraphilic disorder “will not change significantly”, although his sex drive may attenuate with age. Dr Rodriguez stated it was not possible to predict the potential length of the defendant’s future offending.

20. [115]

    Dr Rodriguez agreed with the same risk factors identified in other reports, highlighting the defendant’s serious personality disorder, his demonstrated sexual attraction towards young females and his history of substance abuse. He also noted the following:

21. [116]

    Dr Rodriguez does not recommend the offender seek treatment from CSNSW but from a private psychologist experienced in sex offender treatment, including treatment for his BPD and Complex-PTSD. He also recommends psychiatric treatment and long-term psychotherapy.

22. [117]

    He considered the conditions proposed by the plaintiff, however, noted the following:

23. [118]

    The expert reports highlighted some additional matters that had not been previously emphasised: the defendant’s history of approximately 6 suicide attempts prior to 2003; that the defendant was only diagnosed with Klinefelter’s Syndrome in 2021, and he always had a low sex drive unless he consumed substances; the defendant rushed into relationships and was plagued with feelings of insecurity, jealousy and clinginess, and resultant volatility; and the defendant has accrued thousands of dollars of debt through impulsive purchases made through buy now, pay later services and credit cards, as well as a developing addiction to online gambling. Dr Youssef opined that he met the criteria for Gambling Disorder (Persistent, moderate).

24. [119]

    Both experts agreed that:

25. [120]

    As part of the 2022 ESO proceedings, two court-appointed experts provided reports for the final hearing in July 2022: Dr Calum Smith, Forensic Psychiatrist and Patrick Sheehan, Forensic Psychologist. Both assessed the defendant at the time as posing a risk of committing a further serious sex offence which could be managed in the community under and ESO.

26. [121]

    Both reports were substantially consistent with the reports of Dr Youssef and Dr Rodriguez. Dr Smith opined that his concern that the defendant’s insight into circumstances which might trigger offending behaviour was “somewhat lacking”. Dr Sheehan described a persistent history of mental and emotional instability, substance abuse and personality disturbance. Dr Sheehan noted that the (then) absence of stable residence was the most immediate consideration, but “more broadly there is in my view a substantial risk of [the defendant] deteriorating and making poor decisions that would elevate his risk of sexual offending.”

27. [122]

    The most recent Risk Assessment Report is by psychologist Holly Cieplucha, dated 20 March 2024. As summarised by Sweeney J in the recent ISO judgment at [17]–[29] (omitting some portions):

28. [123]

    In a Risk Management Report prepared by Jason Saad, Senior Community Corrections Officer, dated 22 April 2024, a risk management plan was proposed including offence specific treatment in the community, increasing positive supports, monitoring, place and travel restrictions, non-association and disclosure of intimate and non-intimate relationships, restrictions to access to the Internet and other electronic communication; drug and alcohol testing, inspection of electronic devices and medical intervention and treatment.

29. [124]

    The defendant has completed EQUIPS Foundation in custody in June 2020, and EQUIPS Addiction in August 2020. In June 2021, he completed the Real Understanding of Self Help (“RUSH”) program. He had positive reports from each of these programs.

30. [125]

    He also participated in the High Intensity Sex Offender Program (HISOP) between January 2021 and February 2022, but this was partly affected by COVID. He progressed slowly initially and was more motivated around August 2021, albeit there were concerns about how he was treating staff in the program. He was then placed on the Behaviour Management Agreement, with his overall progress described as “mixed”.

31. [126]

    It can also be observed that the defendant has apparently maintained abstinence from drugs and alcohol despite limited relevantly targeted counselling supports.

32. [127]

    As noted, the defendant has had access to and NDIS package through which he has engaged at least two community-based psychologists and has had a number of counselling sessions.

33. [128]

    As also noted, there have been problems with the defendant in engaging with FPS group sessions, and he has also had limited engagement with one-on-one sessions, despite being offered the option.

34. [129]

    The defendant has also been enrolled in a maintenance group at CSNSW facilitated Community Sex Offender Programs (“ComSOP”) on a fortnightly basis. The defendant’s ComSOP therapist has advised (as at August 2023) that the defendant’s attendance was inconsistent and his contribution to the sessions is largely superficial which prevents him from benefitting fully from the group process.

35. [130]

    As to community supports, as noted above, the defendant has minimal supports in the community outside his NDIS supports, and to an extent, his father and stepmother. Although not in a relationship at present, relationships have not been protective in the past, given both the index offending and the offending in 2002–2003 was committed whilst he was in a relationship.

36. [131]

    The defendant has in the past expressed, and continues to express, distrust towards ESO staff. He has also made it clear that he does not want a further ESO imposed upon him, expressing that it would have a detrimental effect on his mental health.

37. [132]

    The defendant has been formally breached for failures to comply with his ESO not only by way of prosecution, but also by way of formal warnings. The matters leading to prosecution have been set out above. As to the warnings: On 14 July 2022, he was issued with a formal warning due as a result of derogatory and offensive language to an officer and behaving in a manner that was considered intimidating and/or threatening; on 22 December 2022, he was issued with formal warnings due to contravening a non-association direction by contacting his ex-partner by phone, and then deleting the call records from his call history on his mobile device; on 31 July 2023, the defendant reported he had a new phone as his other one was lost after he placed it in a child’s pram for him to play with it. He advised the DSO he told her previously; on 4 August 2023, the defendant self-reported he had contact with a 9 year old girl on two occasions.

38. [133]

    Otherwise, the defendant has a history of poor compliance with supervision, including in Victoria. He has breached bonds and a community service order in in the 2000s.

39. [134]

    In 2006, the defendant was called up on a Community Service Order for failing to attend an Anger Management Program as required by the conditions of that order, did not report for supervision as required and failed to comply with work components.

40. [135]

    In 2018, the defendant’s parole was revoked for failing to declare his residential address and providing false and misleading information regarding the Child Protection Register. Police discovered he had been living with his partner at the time and her two young children.

41. [136]

    The defendant’s compliance with the requirements of obligations under the child protection legislation has been poor.

42. [137]

    The defendant’s criminal history and pattern of offending behaviour has been canvassed above.

43. [138]

    The views of Graham ADCJ at the time of sentence are relevantly as follows:

The ESO should be made

1. [139]

   I have already found that the matters in s 5B(a)-(c) of the Act are satisfied.

2. [140]

   As to s 5B(d), I acknowledge, as conceded by the defendant, it is not in issue that there is some risk that the defendant will commit further offences. The Act is not concerned with general reoffending, or even sexual reoffending that is not within the definition of a serious sex offence. I have noted the criticisms made by the defendant of the experts’ alleged failure to consider appropriately that the defendant is obtaining significant NDIS assistance and is subject to reporting obligations under the relevant legislation. Further, I also note that since the reports were completed, the defendant’s housing instability has resolved. I have also considered the types of offences considered by the experts as most likely to be perpetrated by the defendant, and that Dr Rodriguez only considers there is a risk of contact offending should he relapse into substance abuse.

3. [141]

   Contrary to the contention put by the defendant, however, in my view it is clear that the experts took into account the level of NDIS assistance as well as reporting obligations at several points in their reports.

4. [142]

   Having considered the defendant’s skilful submissions carefully, on the basis of the material referred to above, I am satisfied to a high degree of probability that unless supervised, the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, specifically of committing a serious sex offence involving a female pubescent child.

5. [143]

   In particular, in noting the opinion of both of the experts, I also take into account the combination of disorders and conditions suffered by the defendant in the context of his chronic sense of emptiness, instability and loneliness. Although he has achieved housing stability, he has yet to achieve financial stability, regular fulfilling activities or a stable friendship group. Whilst he has been abstinent from stimulants for some time, stable on psychotropic mediation and engaged with his own psychologist, this stability is relatively recent, and has been achieved whilst subject to the supervision of an ISO or ESO.

6. [144]

   I acknowledge that a common cause of his severe mood dysregulation, stress and negative attitudes is the defendant’s frustration with being subject to the ESO. I also acknowledge that it would appear that sometimes the DSOs have been slow to consider, let alone approve, activities such as the Men’s Shed (even if in the company of a support worker) which would clearly be beneficial to the defendant. This responsiveness problem, it is to be hoped, is capable of remediation, not least because of the issues which have been brought to light by these proceedings. It is clear the particularities of the defendant’s disabilities require ongoing skilful and nuanced handling for optimal results.

7. [145]

   In coming to my decision I am obliged to consider the safety of the community as the paramount consideration pursuant to s 9(2) of the Act.

8. [146]

   Whilst the NDIS supports are valuable and may, incidentally, eventually help the defendant to reduce his risk profile, they are crafted to assist him with his disabilities and his health. They are not targeted at addressing his offending behaviour. Nor are they targeted at protecting, in a practical way, vulnerable members of the community, in particular girls in their early teenage years.

9. [147]

   As highlighted by all the experts, the defendant is affected by a complex combination of disorders and conditions as I have set out in some detail above. When his vulnerabilities are viewed in combination with his past conduct of criminality involving pubescent female children (or apparent children), his ongoing admitted attraction to them, his minimisation of his criminality and his impulsivity, together these factors lead me to form the satisfaction to a high degree of probability that there remains an unacceptable risk of the defendant committing another serious sexual offence if he is unsupervised.

10. [148]

    I now turn to whether, having made that finding, I should exercise my discretion to make an ESO. The defendant submits that the Court should exercise its discretion to decline to grant the relief sought as, it is contended, this is one of a rare class of case in which the imposition of an ESO may increase the risk the he commits a further serious sex offence by exacerbating those factors which have been identified as causal, and may undermine his efforts at rehabilitation and at building those factors that have been identified as protective for him.

11. [149]

    Again, whilst cogent matters have been highlighted, these do not outweigh the paramount consideration of community safety. In my view, it is undoubtedly appropriate in this case that an ESO be made in order to mitigate the unacceptable risk of the defendant, notwithstanding his comparatively recent engagement with NDIS support services which seem to provide him with some real benefits.

12. [150]

    When looked at as a whole, I do not accept the defendant’s submission that a further ESO would exacerbate rather than reduce the risk of the defendant re-offending. The structure and supervision provided by an ESO is simply not available via the NDIS. Nor does it provide him with offence focussed therapy. Further, the involvement of the NDIS is comparatively recent. Whilst his housing also now appears to be settled, he has yet to develop a stable routine or a stable supportive social network which he could maintain in the long term.

13. [151]

    The threshold provision, s 5B of the Act, is therefore satisfied. Further, on the basis of the matters identified above, I am of the view that pursuant to s 9 of the Act, I should make an extended supervision order, subject to conditions.

Duration of the ESO

1. [152]

   The plaintiff seeks an ESO for a period of two years. Both the experts opined that two years was appropriate, and the defendant does not contend to the contrary. I am of the view that a period of two years is an appropriate length.

Appropriate conditions

1. [153]

   Section 11(1) of the Act provides that an extended supervision order may direct an offender to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

2. [154]

   In determining what is “appropriate”, it is accepted that the discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [47] (the Court) (“Wilde”). At [53] of Wilde, the Court further stated:

3. [155]

   The determination of appropriate conditions is a balancing exercise “in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective: Lynn at [129]. It is accepted that this step engages a balancing exercise involving possible intrusions on the offender’s liberty and privacy: Lynn at [130]. It must also be borne in mind that a failure by a person to comply with the requirements of an ESO is an offence pursuant to s 12 of the Act and is punishable by a fine, imprisonment, or both.

4. [156]

   The conditions contended for by the plaintiff as appropriate for the ESO are the same as those imposed in relation to the ISO ordered by Sweeney J (other than minor updating to refer to the defendant in the first person rather than the third person). Noting that the primary position of the defendant was that the ESO should not be imposed, the defendant does not oppose the making of many of the proposed conditions, in particular conditions 2, 3, 5, 7, 10, 11, 12, 13, 14, 15, 20, 21, 22, 23, 25, 26, 27, 29, 31, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 55, 56, 57, and 60.

5. [157]

   In addition, the defendant does not oppose the making of conditions 24, 30 and 58 in the revised form proposed by the plaintiff.

6. [158]

   Based on the material I have considered, and in accordance with the principles set out above, I am satisfied that those uncontested conditions are appropriate.

7. [159]

   Some of the remaining proposed conditions are opposed entirely, some are opposed in part, or alternative wording is suggested. I am grateful for the sensible approach taken by the defendant to confine the argument to those conditions or parts of conditions which are in contention. Following the hearing, I received, at my invitation, further written submissions in relation to some of the proposed conditions. I will deal with each of the contentious proposed conditions in turn.

8. [160]

   The form of this condition was raised by me for further consideration at the hearing given the defendant’s experiences with, and attitude to, authority figures. Following the hearing, the defendant submitted that the proposed form of this (standard) condition which reads:

9. [161]

   The proposal suggested by the defendant is that the condition would be split up as follows:

10. [162]

    The plaintiff points to the general acceptance that, as with all conditions, the condition as proposed by the plaintiff would be exercised reasonably by the DSOs, in a commonsense way, informed by a practical and constructive exercise of discretion (as outlined by Button J in State of NSW v Keith Farringdon [2018] NSWSC 874).

11. [163]

    On reflection, and noting that the plaintiff’s formulation is a standard condition which is, no doubt, well understood by those administering ESOs in accordance with the principles indicated above, I will impose the form of words as originally proposed by the plaintiff.

12. [164]

    The plaintiff proposes the following wording:

13. [165]

    The defendant opposes the condition being imposed as the activity would amount to a criminal offence in any event, and this would set him up to fail given his mental health complexities.

14. [166]

    I note Sweeney J imposed this condition on the ISO as she accepted the plaintiff’s submission that it emphasised the boundaries of acceptable behaviour given his behaviour towards some DSOs last year.

15. [167]

    I am of the view that the wording of this condition is too broad and is otherwise covered by the criminal law. First, the criminal law protects an officer from conduct which would cause the staff member to fear for their safety. Otherwise, conduct which would “interfere with or impede [the defendant’s] supervision” could cover a vast array of conduct, from the trivial to the criminal. To the extent that a breach of this condition, as a result of non-serious, even trivial, conduct could amount to a criminal offence, it is not appropriate. I agree it would set up the defendant to fail. I decline to impose this condition.

16. [168]

    This is the electronic monitoring condition. The only difference between the parties is that the defendant proposes a conditional sunset clause – with the proposed additional words in bold below:

17. [169]

    This proposal is in accordance with Dr Rodriguez’s suggestion and is contended by the defendant to serve as a “carrot” or as providing motivation.

18. [170]

    The plaintiff points out that there is a case plan review after six months and then every two months if appropriate. The 12 month mark is, submits the plaintiff, arbitrary.

19. [171]

    I am of the view that the 12 month proposal is indeed arbitrary, and in light of the regular reviews which will take place in any event, I decline to add the words in bold as suggested by the defendant.

20. [172]

    The plaintiff proposes the following:

21. [173]

    The defendant proposes alternative wording to move from the notion of approval to the notion of notification, as follows:

22. [174]

    I note that this must be considered in the context of Condition 7 which is not opposed. Condition 7 is not drafted in terms of approval but rather providing the DSO, if directed, with a summary of proposed movements.

23. [175]

    In my view, Condition 8 in the form proposed by the plaintiff is out of step with Condition 7, as it includes the notion of approval, whereas Condition 7 does not. Further, if the DSO is not able to be contacted in a timely way for “approval”, the defendant would be in breach. In addition, if once notified, the DSO is of the view that a proposed activity is not appropriate, they have other powers to deal with such a situation.

24. [176]

    I make Condition 8 in the form proposed by the defendant.

25. [177]

    The plaintiff proposes the following:

26. [178]

    This is opposed by the defendant. If it is to be made, alternative wording is proposed as follows:

27. [179]

    The defendant contends that getting a medical certificate is impractical. The condition is overly punitive and is not targeted at the identified risk factors.

28. [180]

    The plaintiff submits that the NDIS support workers can help the defendant comply with this, and since Sweeney J added the examples, there are no difficulties.

29. [181]

    I am of the view that the condition in some form is warranted, but the condition is overly prescriptive in the form sought by the plaintiff. I note that Condition 3, which is not opposed, provides that the defendant must answer questions from a DSO truthfully. Clearly, if the defendant has been in hospital he would have discharge papers available, and the NDIS support workers could no doubt assist with providing these if required. If, however, he is less seriously ill, it may be difficult to provide a medical certificate on request, and requiring one would not assist in addressing risk factors in a well targeted manner.

30. [182]

    I impose the condition in the form proposed by the defendant.

31. [183]

    The plaintiff proposes a condition that the defendant not go to certain places without the prior approval of a DSO. The locations which the defendant does not oppose being included (and which are sought by the plaintiff) are High Schools; amusement parlours, amusement parks and theme parks; public pools and playing fields; concerts, theatre shows, movies events and activities intended for the entertainment of children; or residences where he knows that persons under 18 usually reside.

32. [184]

    Locations which the defendant contends should not be included in the list (and which are also sought by the plaintiff) are:

33. [185]

    First, as to cinemas, it is contended by the defendant that this need not be included in the list as a direction could be issued pursuant to Condition 15 to prevent, for example, the defendant from attending the cinema during school holidays. In any event, the offending risks are where there is a relationship in existence, rather than random offending with people previously unknown to him.

34. [186]

    I note too that the defendant is subject to electronic monitoring and may need to provide an indication as to his anticipated movements. I am not of the view that this location needs to be included in the condition as any risk can be addressed less restrictively through other conditions.

35. [187]

    As to libraries and museums, in my view these are in a slightly different category to cinemas. Whilst the defendant points to the same arguments as he submitted in relation to cinemas, I am of the view that libraries and museums can be places where people (such as the defendant) can stay for lengthy periods of time, and return, without attracting attention. I am of the view that these places could present a risk if the defendant started to develop relationships with unsupervised young teenage girls in these settings. I will retain these locations in the condition.

36. [188]

    As to camping grounds and caravan parks, it is put on behalf of the defendant that this would prevent him from participating in his favourite pastime of fishing as these places are the most affordable accommodation options. Further, Condition 15 could provide a safety net; in that, he could be given a direction not to go to those locations during school holidays when there would be more children there.

37. [189]

    I note, however, that some families live permanently in caravan parks, and in certain circumstances, people may live in camping grounds for extended periods of time. It may be that such families would have children. I am of the view that these locations should be included in the condition.

38. [190]

    As to children’s playgrounds and parks, it was first submitted that children’s playgrounds did not attract the age cohort at risk from the defendant. It was further submitted that parks was so general that on its face it could include national parks where he may engage in fishing activities.

39. [191]

    I am of the view that it is necessary to include both of these locations in the condition. Young teenagers can frequent children’s playgrounds as they can be regarded as safe spaces to congregate without adult supervision. Parks should be included as some of these locations could include places where young teenagers congregate either generally, or sometimes with a view to finding a willing adult to purchase alcohol for them. The defendant could conceivably be a target for a such a request.

40. [192]

    It is not too onerous to have the defendant seek approval to attend a park for the purposes of fishing. In my view, given the safety of the community is the paramount consideration, this part of the condition should be worded as sought by the plaintiff.

41. [193]

    As to sporting facilities, I am of the view that given the number of young teenage children who may be attending such facilities, not always fully supervised, it is appropriate to include this location in the condition.

42. [194]

    As to internet cafes or places where Internet access is provided through a shared or public device (which was modified from an earlier proposal by the plaintiff), I agree with the defendant that this current wording (that is, “shared or public device”) may capture Wi-Fi routers (as a “device”). Whilst I note that that the plaintiff contends that this is not a correct reading of the term “device”, I am of the view that the proposed condition, as worded, is ambiguous and capable of misinterpretation. I am of the view that this condition may be so broad that it may capture shopping centres and other like places and would be impractical. Further, I agree with the defendant that the proposed (unopposed) Conditions in Part I sufficiently address the risk. I therefore decline to include this part of the proposed condition.

43. [195]

    The plaintiff proposes the following condition:

44. [196]

    The defendant opposes the imposition of this condition on the basis that the evidence does not support that this proposed condition has any work to do, and points to Dr Rodriguez who stated that so long as the locations were legal and appropriately licensed, thus mitigating potential underage entertainment, there was no risk mitigation benefit.

45. [197]

    The plaintiff contends that the condition is aimed to limiting the defendant’s access to pornography given Dr Youssef’s opinion:

46. [198]

    The plaintiff contends that it is likely, if the defendant is given unrestricted access to pornography, that he will gravitate towards materials involving teenagers, which is likely to increase his need for sexual gratification. The plaintiff also submits there is a real question about the defendant’s honesty in relation to the level of his libido, noting the discrepancy in his account given to the two experts about the recency of his masturbation, and that he reported a complete lack of sex drive and erectile dysfunction, as compared to the OIMS note from September 2024 when an empty packet of condoms was found which he said was used to masturbate. There is force in the plaintiff’s submissions. Given the defendant’s open admission of attraction to young teenagers, in all the circumstances, I am of the view that the condition as proposed by the plaintiff should be made.

47. [199]

    The plaintiff proposes the following condition:

48. [200]

    The defendant proposes the following alternative wording:

49. [201]

    It can be observed that the defendant is now on the disability support pension and has support workers available to him through the NDIS. His counsel conceded that there is no immediate intention to obtain work or study, and the evidence does not indicate that any such activity is foreseeable.

50. [202]

    In my view, in all of the circumstances, prior notification, rather than prior approval is currently sufficient to mitigate risk. This would still provide a DSO with an opportunity to intervene if community safety was at risk.

51. [203]

    I impose the condition in the form proposed by the defendant.

52. [204]

    The plaintiff proposes the following condition:

53. [205]

    The defendant opposes the condition, or if imposed, proposes the following alternative wording:

54. [206]

    The defendant contends that the evidence does not establish that the condition is appropriate having regard to the identified risk factors.

55. [207]

    As noted by Sweeney J in the ISO judgment, the risk to be avoided is the defendant coming into contact with an underage sex worker. In my view, the only means of ensuring this is done effectively, is to impose the condition as sought by the plaintiff.

56. [208]

    The plaintiff proposes the following condition:

57. [209]

    I note the proposed form of wording acknowledges the defendant’s dislike of group therapy.

58. [210]

    The defendant proposes alternative wording as follows:

59. [211]

    The plaintiff submits that the counselling the defendant is currently receiving is not sufficient, given that it has been identified, for instance by Dr Rodriguez, that the defendant needs specialist psychological treatment from a private psychologist experienced in sex offender treatment. This is in order to properly engage in offence-targeted interventions.

60. [212]

    The defendant submits that that his mistrust of officers and practitioners that are part and parcel of the criminal justice system is itself likely to impede any successful re-engagement with those services. He submits, not only was group therapy unlikely to be effective, his therapeutic relationship with FPS was damaged beyond repair.

61. [213]

    I am of the view that given group therapy is now specifically carved out, it is appropriate to frame the condition as sought by the plaintiff. In the longer term, it is clearly appropriate for the defendant to receive offence-targeted sex-offender treatment. Accordingly, I will impose the condition in the terms sought by the plaintiff.

62. [214]

    The plaintiff seeks the following condition:

63. [215]

    The plaintiff contends that this is required because “it is difficult to see how the Defendant will engage in any meaningful treatment without proper encouragement”. The plaintiff also notes the various mental health disorders suffered by the defendant, and his present treatment is limited to general mental health (from Mr Colin-Thorne) and behavioural support (from Mr Ng).

64. [216]

    The defendant submits that it is clear that he is able to engage with meaningful treatment, as he clearly engages with Mr Colin-Thorne and Mr Ng, and in light of the previous condition, this proposed condition does not have much work to do.

65. [217]

    The defendant’s submissions have force. I am of the view that given I propose to make Condition 53, there is little utility in making Condition 54, and I decline to do so.

66. [218]

    The plaintiff’s revised proposed condition is:

67. [219]

    That wording is now very close to the alternative wording suggested by the defendant, and in my view is appropriate. The inclusive nature of the condition allows appropriate flexibility.

Orders

1. [220]

   The orders I therefore make are as follows:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of two years commencing on 24 December 2024.

   2. (2)

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