State of New South Wales v Hill

1. [1]

   HIS HONOUR: By amended summons filed on 17 March 2016, the State seeks the following relief:

   1. (1)

      An order:

2. [2]

   The prayers for relief in the amended summons are based upon the following supporting documentation:

   1. (1)

      Affidavits of Azam Bulbulia affirmed 1 March, 2 March, 14 March, 18 March, 16 May and 8 June 2016.

   2. (2)

      Affidavit of Clare McNaughton affirmed 11 March 2016.

   3. (3)

      Report of Dr Stephen Allnutt dated 29 April 2016.

   4. (4)

      Report of Dr Kerri Eagle dated 11 May 2016.

3. [3]

   The orders are opposed.

4. [4]

   For the reasons that follow, I consider that the application for an extended supervision order should be dismissed.

Background

1. [5]

   On 21 March 2016, Rothman J conducted the preliminary hearing required under s 7(3) of the Act and made an order under s 7(4) appointing two experts separately to examine Mr Hill and furnish reports of their examinations to the Court. Rothman J also made an interim supervision order under s 10A for a period of 28 days to commence on 16 April 2016. On 13 May 2016, Adamson J made an order, pursuant to s 10C (2), renewing the ISO, so as to operate further until 10 June 2016.

2. [6]

   Prior to the ISO made by Rothman J, Mr Hill had been subject to an extended supervision order for a period of three years, imposed by his Honour on 26 June 2009. Mr Hill has been convicted on multiple occasions of having failed to comply with certain conditions of his ESO and, as a result, has spent significant periods of time in custody. Consequently, by operation of s 10(1A) of the Act, the date of expiry of the ESO has been extended by reference to such periods of time in custody. The ESO expired on 15 April 2016.

3. [7]

   Mr Hill is a 50 year old Aboriginal male who has previously been convicted of two sets of sexual offences committed in 1993 and 1998. In each case the victim was an adult female and the offences involved the use of a knife to threaten harm to the victim. In each case, Mr Hill was heavily intoxicated and/or under the influence of illicit drugs at the time of the offence.

4. [8]

   With respect to the 1993 offences, Mr Hill was convicted in 1994 of one count of aggravated sexual assault and one count of attempt to have sexual intercourse without consent in circumstances of aggravation. He was sentenced to imprisonment for a total of 7 years with a 4 year non-parole period.

5. [9]

   With respect to the 1998 offences, Mr Hill was sentenced to a total term of 10 years imprisonment with a non-parole period of 7 years on five counts of aggravated sexual assault, and a further count of aggravated break and enter and commit a felony. In addition to the use of a knife, a further aggravating feature of the 1998 offences was that Mr Hill committed them while on parole for the sexual offences committed in 1993.

6. [10]

   Mr Hill has continued to deny responsibility for the 1998 offences.

7. [11]

   Mr Hill’s sentence for the 1998 offences expired on 27 March 2009. Before that occurred, the State commenced proceedings in this court seeking an order that he be subject to an ESO under the Act.

8. [12]

   That matter was heard in June 2009. On 26 June 2009 Rothman J ordered that Mr Hill be subject to an ESO for a period of three years: see State of New South Wales v Hill (No. 3) [2009] NSWSC 1139. As already noted, Mr Hill has been convicted of failures to comply with the conditions of that ESO on nine separate occasions and has consequently spent significant periods of time in custody.

Threshold requirements

1. [13]

   The Act sets out certain threshold criteria for the making of an application for an ESO under the Act: see s 5I. In the present case:

   1. (1)

      Mr Hill is a "sex offender" within the meaning of s 5B(2) of the Act by reason of having committed sexual offences in 1993 and 1998 that fall within the definition of "serious sex offence" within s 5(1)(a) of the Act, and separately as an "offence of a sexual nature" within the meaning of s 5(2) of the Act;

   2. (2)

      Mr Hill is a "supervised sex offender", within the meaning of s 5I(1) and (2) of the Act, because he is a person who, when the summons was filed, was a person under supervision pursuant to an existing ESO: s 5I(2)(b)); and

   3. (3)

      The application was brought within the last six months of Mr Hill’s current custody or supervision: s 6(2). Mr Hill’s ESO expired on 15 April 2016 and the summons was filed on 1 March 2016.

Primary object of the Act

1. [14]

   The objects of the Act are stated in s 3 in the following terms:

The test for making an ESO – s 5B(2)

1. [15]

   Pursuant to s 5C(1), this Court may make an order for the supervision of an offender if the offender is a “high risk sex offender”. Subsection 5B(2) provides that an offender is a “high risk sex offender” if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

2. [16]

   Section 9 applies to an application for an ESO. Under s 9(1), a Court that has received an application for an ESO can either make an ESO or dismiss the application. Subsection 9(3) sets out a list of matters to which the Court must have regard in determining whether or not to make an ESO in addition to any other matter the Court considers relevant.

“Satisfied to a high degree of probability” (s 5B(2))

1. [17]

   The phrase “satisfied to a high degree of probability” constitutes the statutory standard of proof enlivening the Court’s jurisdiction to grant an ESO. It is higher than the civil standard but lower than the criminal standard. Prior to the commencement of the Crimes (Serious Sex Offenders) Amendment Act 2013, the phrase “satisfied to a high degree of probability” appeared in s 9(2), as part of the test to be met for the grant of an ESO under s 9(1)(a).

2. [18]

   In State of New South Wales v Fisk [2013] NSWSC 364, Beech-Jones J observed at [22] that the structure of the Act in its current form (which now accommodates the making of orders against high risk violent offenders as well as high risk sex offenders) appears to require:

3. [19]

   His Honour found that aspect of the amended legislation to be curious insofar as “it is very hard to imagine a case in which a person could be found to satisfy the definition of being a ‘high risk sex offender’ but that a consideration of the criteria in s 9(3) would nevertheless result in the Court dismissing the application”.

4. [20]

   It has been held that the authorities with respect to the standard of proof as it formerly appeared in s 9(2) of the Act are “equally applicable” to the construction of s 5B(2).

“Unacceptable risk of committing a serious sex offence” (s 5B(2))

1. [21]

   The phrase “unacceptable risk of committing a serious sex offence” was introduced into s 9(2) of the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010, which commenced operation on 7 December 2010. It replaced the concept of “likely to commit a further serious sex offence”.

2. [22]

   When the Crimes (Serious Sex Offenders) Amendment Act 2013 was introduced on 19 March 2013 to establish a scheme for the extended supervision or continued detention of violent offenders, the phrase was relocated to s 5B(2) of the Act.

3. [23]

   Subsection 5B(3) indicates, as did the former s 9(2A), that the Supreme Court is not required to determine that the risk of a person committing a serious sex offence is “more likely than not” in order to determine that the person poses an unacceptable risk if he or she is not kept under supervision. The phrase “unacceptable risk” is not defined by the Act. However, as s 5B(3) makes clear, the new test was not intended to elevate the threshold test to be satisfied.

4. [24]

   In Lynn v State of New South Wales [2016] NSWCA 57, the Court of Appeal considered the meaning of the expression “unacceptable risk” within the context of the definition of a “high risk violent offender” in s 5E of the Act. Beazley P, with whom Gleeson JA agreed, held at [49]-[58] that a determination as to whether something is unacceptable is an evaluative task, and the words “unacceptable risk” are to be given their everyday meaning, in the context in which they appear. The Court of Appeal relevantly endorsed the approach taken by RA Hulme J in NSW v Thomas (Final) [2011] NSWSC 307 at [58].

5. [25]

   The State contends that three further points may be emphasised about the jurisprudence on the “unacceptable risk” test and the requirements of that test as it appears in s 5B, read in the context of the Act as a whole.

6. [26]

   First, it is preferable to avoid putting a gloss on the words of the statute which require the Court to consider matters such as the nature and likelihood of the relevant risk and form a judgment, based on the evidence, as to whether Mr Hill poses an unacceptable risk of committing a further serious sex offence. The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and that some cases of unacceptability will be more obvious than others.

7. [27]

   Secondly, while it appears that the Court is not required to consider all of the factors listed in s 9(3) in determining whether or not it is satisfied under s 5B(2) to a high degree of probability that a person poses an unacceptable risk of offending (as it must when determining under s 9 whether or not to make an ESO order at all), those factors should nevertheless inform the s 5B(2) analysis: see Fisk at [22].

8. [28]

   Thirdly, it is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low. Decision-making about unacceptable risk is highly fact-dependent but occurs in the context of ensuring community safety and protection.

Discretion not to make an ESO

1. [29]

   Under the Act, if the State discharges its burden to establish that an offender is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make an order, and must take into account the criteria in s 9(3).

The 1993 sex offences

1. [30]

   On 9 March 1994 Mr Hill was sentenced by Judge Craigie in the District Court in respect of one charge of aggravated sexual assault and one charge of attempt to have sexual intercourse without consent in circumstances of aggravation. The offences were committed at Wellington, NSW on 16 March 1993. The victim of both offences was a 37 year old woman. After initially claiming that the victim had consented, Mr Hill ultimately pleaded guilty.

2. [31]

   The circumstances of the offences are detailed in the remarks on sentence of Judge Craigie dated 9 March 1994.

3. [32]

   The victim was walking home from a hotel in the early hours of the morning. As she turned into a laneway Mr Hill was crouching beside an iron fence. He grabbed at her several times stating "I want to fuck you." The victim tried to resist him but he grabbed her by the arm and punched her in the mouth. Mr Hill then knocked the victim to the ground and dragged her between a shed and a fence. He attempted to place his penis in the victim's mouth. When the victim attempted to escape Mr Hill placed his hands around her throat and attempted to strangle her, saying "Shut up, you bitch, I have got a knife in my back pocket, or I will kill you."

4. [33]

   Mr Hill then ripped off the victim's bra and other garments and kissed her on the vagina. He forcefully penetrated her with his fingers. During the assaults the strap on the victim's bag broke and Mr Hill placed the strap around the victim's neck and commenced to strangle her with it. When she called out that she could not breathe Mr Hill pulled the strap tighter and said "Just shut up or I will kill you." The victim nearly lost consciousness before he let go of the strap. When the victim then felt the strap on her arm and attempted to throw it away, Mr Hill struck her with it. The victim's cries for help were heard by neighbours who called the police. Mr Hill was found at the scene in a position on top of the victim. He was arrested after attempting to climb over a fence.

5. [34]

   Judge Craigie noted expert evidence regarding Mr Hill’s history to the effect that after bouts of excessive alcohol consumption he becomes disinhibited and prone to violence, sexually and otherwise. Judge Craigie noted that Mr Hill had consumed a considerable amount of alcohol shortly before the sex offences "but not enough to blot out his intentions".

6. [35]

   Judge Craigie sentenced Mr Hill to imprisonment for a total of 7 years expiring on 31 October 2000 with a 4 year non-parole period. He became eligible for release on parole on 31 October 1997.

The 1998 sex offences

1. [36]

   On 23 April 1999, Mr Hill was found guilty by a jury of five counts of aggravated sexual assault and one count of aggravated break and enter and commit a felony. He committed the offences on 28 March 1998, while on parole in respect of the sex offences committed in 1993.

2. [37]

   The circumstances of the 1998 offence are set out in the remarks on sentence of Judge Taylor dated 18 August 1999 and in the judgment of the Court of Criminal Appeal dated 16 February 2005: R v Hill [2005] NSWCCA 44.

3. [38]

   The victim was a 42 year old woman who did not know Mr Hill. The circumstances of aggravation were the threat to inflict actual bodily harm on her by means of a knife. At an initial stage of the assaults Mr Hill held the knife to the victim's throat. The victim cut her hand when feeling where the knife was positioned.

4. [39]

   The offences were committed at Dubbo and took place over a period of about an hour and a half. The sexual assaults commenced after Mr Hill broke into the victim's house at 5:30am. She noticed a strong smell of alcohol on her attacker. Mr Hill denied he was the attacker and the issue before the jury was identification. Judge Taylor described the Crown case as very strong.

5. [40]

   The offences were premeditated and although the victim did not know Mr Hill, he made known to her during the assaults that he was aware of personal details about her, including her name, marital status, occupation and other intimate details.

6. [41]

   The sexual assaults committed on the victim included penile vaginal penetration, penile anal penetration, digital vaginal penetration, and digital anal penetration. Mr Hill also told the victim that he intended to come back to see her again. Mr Hill was arrested within a few hours of the offences taking place.

7. [42]

   In his remarks on sentence, Judge Taylor said:

8. [43]

   In recounting Mr Hill’s criminal history, Judge Taylor noted that "[h]e has a history of violence against women." This included a history of domestic violence against his de facto wife and a number of breaches of domestic violence orders. Judge Taylor also accepted the views set out in a report of Ms Anne Young, senior psychologist, to the effect that the index sex offences together with the 1993 sex offences and the previous domestic violence offences were part of a continuing pattern of behaviour and as "manifestations of a long term underlying difficulty".

9. [44]

   In respect of each of the five counts of aggravated sexual assault, Judge Taylor sentenced Mr Hill to imprisonment for 10 years with a 7 year non-parole period. In respect of the further count of aggravated break and enter and commit a felony, he was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. Both sentences commenced on 28 March 1999 and were concurrent. Mr Hill became eligible for release on parole on 28 March 2006.

10. [45]

    On 22 September 2004, some five years after the expiry of the time allowed for the filing of an appeal, Mr Hill filed a notice of appeal against his conviction. The Court of Criminal Appeal refused leave to extend time for the filing of the appeal against conviction, determining that there was no substance to any matter that he wished to raise and because the delay in filing the appeal had not been satisfactorily explained: R v Hill [2005] NSWCCA 44.

11. [46]

    Mr Hill has continued to deny responsibility for the 1998 sexual offences.

12. [47]

    Mr Hill’s use of illicit drugs or alcohol has been identified by various professionals, and also Mr Hill, as a substantial factor in his risk of re-offending. It is high risk behaviour which directly relates to his offending.

13. [48]

    In her report dated 11 May 2016 Dr Kerri Eagle diagnosed Mr Hill as having a severe substance abuse disorder. Dr Eagle further states: “it is apparent that his use of substances has a clear correlation with his sexual offending.”

14. [49]

    In addition, a pre-sentence report dated 22 November 1990 said of Mr Hill:

15. [50]

    In a later pre-sentence reported dated 6 April 1993 the probation officer said:

16. [51]

    In his remarks on sentence in respect of the 1993 sexual offences, Judge Craigie referred to the expert report of Dr McMurdo to the effect that:

17. [52]

    Mr Hill has a number of convictions for assaults and breaches of apprehended violence orders. In his report dated 15 November 1993 Dr McMurdo reported that:

18. [53]

    Dr McMurdo emphasised that it was essential that Mr Hill does not consume alcohol in the future. In respect of the 1993 sexual assault offence, Dr McMurdo said:

19. [54]

    In his remarks on sentence, Judge Taylor referred to the drinking of alcohol as a risk factor that had been present prior to the commission of the index offences.

20. [55]

    In a psychological report dated 15 April 1996, Anne Young said:

21. [56]

    A Pre-Release report dated 28 July 1997, prepared by the Probation & Parole Service, records that:

22. [57]

    In her psychological report dated 16 August 1999, in respect of the 1998 sexual offences, Ms Young stated:

23. [58]

    The CUBIT treatment report dated 12 August 2008 identifies acute dynamic risk factors as being those that may indicate an individual's increasing immediate risk of re-offending. The report states that:

24. [59]

    In a risk assessment report dated 23 February 2009, Patrick Sheehan stated:

25. [60]

    In his reasons for judgment dated 28 October 2009, in respect of the imposition of the ESO, Rothman J emphasised the link between alcohol and Mr Hill’s risk of sexual offending: State of New South Wales v Hill (No. 3) [2009] 1139 at [7]. In a subsequent judgment published on 21 December 2010, dealing with an application by the State to vary the terms of the ESO, Rothman J emphasised that illicit drugs were similarly linked to Mr Hill’s risk of sexual offending: State of New South Wales v Hill (No. 4) [2010] NSWSC 1504 at [5]:

26. [61]

    In State of New South Wales v Hill (No. 5) [2013] NSWSC 140, dealing with a further application by the State to vary the ESO, Rothman J said:

27. [62]

    His Honour went on at [30] to say that "Mr Hill poses a significant risk overall because of the risk that alcohol and drugs will be consumed."

28. [63]

    In his psychiatric report dated 3 March 2016 Dr O'Dea said at [66] that "it would appear reasonable to link, in a significantly direct manner, Mr Hill's history of Substance Abuse and Paraphilic Disorder." Dr O'Dea further said, at [68], that Mr Hill will need to remain abstinent from alcohol and illicit drugs in the long term in order to manage and minimise his risk of engaging in further sex offending behaviours.

29. [64]

    Mr Hill undertook the CUBIT program for high risk sex offenders while in custody prior to the ESO being made. He completed the program on 21 July 2008. His participation in the program is detailed in the CUBIT treatment report dated 12 August 2008 and also in the risk assessment report of Patrick Sheehan dated 23 February 2009.

30. [65]

    Mr Hill’s progress during CUBIT was twice interrupted when he was suspended from the program and he reportedly found it challenging and encountered difficulties at various stages. His overall participation in CUBIT was described as mixed, with improvements shown over time. On the negative side, Mr Hill encountered a number of difficulties during his time in treatment resulting in a lengthy suspension for aggressive behaviour within the CUBIT community. He also appears to have been somewhat ambivalent. Mr Hill was described as having made progress on a number of issues, including improving his emotion recognition skills, challenging unhelpful thoughts, intervening in aggressive behaviour, improving his self-esteem, improving his coping strategies and relationship skills. Further, after his return to CUBIT from suspension, his involvement and progress within the program was generally at an improved level.

31. [66]

    In his risk assessment report, Mr Sheehan describes the CUBIT program as having been "an arduous process for Mr Hill".

32. [67]

    While on release in the community, on parole prior to the current ESO being made, Mr Hill attended some group sessions in the community-based maintenance program conducted by the Forensic Psychology Services division of Corrective Services NSW at Surry Hills. His attendance was interrupted by periods of incarceration.

33. [68]

    After the making of the ESO in June 2009, Mr Hill reportedly attended seven sessions of the custody-based maintenance program between October 2009 and April 2010, with his participation being described as "varied".

34. [69]

    Mr Hill has also attended sessions of the community-based maintenance program since June 2009. He was referred, and re-referred, on a number of occasions, with his attendance again being interrupted by periods of incarceration. In March 2011 he was assessed as not suitable to continue in the community-based maintenance group due to hostility and lack of motivation, and its impact on group dynamics. Subsequently, Mr Hill was required to attend individual maintenance sessions on a 3-weekly basis. His participation, interrupted by periods of non-attendance including as a result of re-incarceration, was described as "mixed". Speaking of his attendances in 2012 Ms Donaldson reported:

35. [70]

    Subsequent re-engagements with the Forensic Psychology Services have been relatively limited, as described in Mrs Donaldson's report, although prior to his most recent arrest and incarceration in October 2015, Mr Hill appeared to be engaging more positively. In respect of his engagement with sex offender treatment generally, Ms Donaldson concluded in January 2015 that:

Non-compliance with prior parole orders

1. [71]

   Mr Hill has a history of failing to comply with conditions of parole and having his parole order revoked. The 1998 sexual offences were committed while he was on release on parole in respect of the sentence imposed for the 1993 sexual offences.

2. [72]

   Mr Hill also has a history of previous failures to abide by community-based orders while under the responsibility of Probation and Parole prior to 1998.

3. [73]

   With respect to the 1993 sexual offences Mr Hill was released on parole on 31 October 1997. The Parole Board revoked this parole on 30 March 1998. During the period of parole, difficulties encountered with Mr Hill’s supervision included:

4. [74]

   Mr Hill was released on parole on 2 September 2008 in respect of the sentence of imprisonment for the 1998 sex offences. His parole performance is recorded as having declined markedly over time.

5. [75]

   Contrary to his parole conditions, Mr Hill tested positive for methylamphetamine in November 2008, which resulted in a breach report and a warning letter from the State Parole Authority. A subsequent urine sample, taken in December 2008, tested positive for cannabis. Mr Hill was later observed acting strangely in the city around midnight on 31 December 2008, in breach of curfew requirements.

6. [76]

   On 30 January 2009 police reportedly observed Mr Hill in Kings Cross drinking beer at 11:05 pm. He was described as loitering in a darkened area and being slightly affected by alcohol.

7. [77]

   On 6 February 2009, following receipt of a breach report, the State Parole Authority made an order revoking Mr Hill’s parole. He was returned to custody on 7 February 2009. On 11 February 2009, Mr Hill was convicted in the Local Court of failing to undergo a breath analysis on 7 February 2009.

Level of compliance with ESO

1. [78]

   Since June 2009, Mr Hill has been convicted and sentenced in respect of a number of breaches of the ESO, as well as for an offence of threaten/intimidate a community corrections officer. These are referred to below in more detail.

2. [79]

   A New South Wales Corrective Services “risk management report” dated 24 February 2015 has been prepared pursuant to s 9(3)(d1) of the Act by Terry O’Brien of Community Corrections. The report outlines a management plan that has been formulated to assist Mr Hill’s supervision and case management, should he become subject to an ESO. Ms Clare McNaughton has provided an updated Risk Management Report dated 27 October 2015, and a further update to the Risk Management Report, dated 11 March 2016.

3. [80]

   Subject to Mr Hill’s continued progress, the risk management plan contemplates continuation of supervision on ‘Stage 4’ (without the imposition of electronic monitoring, a requirement to provide a weekly schedule of proposed movements or a curfew). Elements of the risk management plan would include weekly reporting contact, both at Community Corrections offices and at Mr Hill’s residence, random urinalysis and breath analysis. He would also continue to attend the Forensic Psychology Services sex offender maintenance program, which is available only to persons subject to court-imposed orders or parole.

4. [81]

   Dr Andrew Ellis and Ms Katherine Jones provided a report dated 22 September 2008 on behalf of the NSW Community Forensic Mental Health Service. They referred to Mr Hill’s history of significant substance abuse and his previously demonstrated alcohol and cannabis dependence. Dr Ellis and Ms Jones noted that:

5. [82]

   Under the heading “Psychiatric Diagnosis” the authors referred to Mr Hill’s sadistic paraphilia and antisocial personality traits:

6. [83]

   In the course of the ESO proceedings in 2009, Dr Anthony Samuels and Dr Samson Roberts were appointed by the Court separately to examine Mr Hill and provide expert reports. Dr Samuels provided a report dated 20 April 2009. Dr Roberts provided a report dated 4 May 2009. Dr Bruce Westmore also provided a report dated 28 May 2009. Each of these doctors emphasised the role of alcohol in Mr Hill’s offending history.

7. [84]

   After referring to further risk factors , including use of alcohol and illicit drugs, Dr Samuels said:

8. [85]

   In his report, Dr Roberts said:

9. [86]

   Dr Westmore did not recommend that Mr Hill be released from continued supervision.

10. [87]

    Mr Patrick Sheehan, psychologist, provided a risk assessment report dated 23 February 2009. He assessed Mr Hill’s risk of sexual re-offending as falling within the high risk category relative to other adult male sex offenders. Mr Sheehan also identified Mr Hill’s history as consistent with a number of traits of Antisocial Personality Disorder.

11. [88]

    Ms Meagan Donaldson provided a psychological risk assessment report dated 21 January 2015. She assessed Mr Hill by reference to both static and dynamic risk factors. Applicable dynamic risk factors included problems with general self-regulation, problems with supervision and treatment, problems with intimate and non-intimate relationships and problems with sexual self-regulation. Substance abuse was identified as an acute dynamic risk factor. Ms Donaldson concluded that Mr Hill continued to present a high risk of sexual offending relative to other adult male sex offenders.

12. [89]

    Ms Donaldson also provided an addendum to her report dated 26 October 2015 which referred to developments since her first report. She concluded that, having regard to static and dynamic risk assessment, Mr Hill’s risk of sexually re-offending remained in the high risk category relative to other adult male sex offenders.

13. [90]

    Dr Jeremy O’Dea provided a psychiatric report dated 3 March 2016. Mr Hill declined to be interviewed for the purpose of the report, which Dr O’Dea noted in paragraph 7 of his report. Despite this limitation, his report provides a current and detailed analysis of factors applicable to Mr Hill and his risk of sexual recidivism. Dr O'Dea noted Mr Hill’s extensive history of alcohol and other drug abuse and dependence and, in particular, his more recent abuse of amphetamines. Dr O'Dea further noted the history obtained by Dr Ellis, including the rape fantasies experienced by Mr Hill around the time of his 1993 sexual offence.

14. [91]

    In his report, Dr O'Dea stated:

15. [92]

    Dr O'Dea assessed Mr Hill as presenting a high risk of sexual re-offending. Dr O'Dea continued:

16. [93]

    Dr Stephen Allnutt and Dr Kerri Eagle were appointed by the Court to assess Mr Hill and review the extensive documentation that has been generated in connection with him. Both experts support the making of an ESO for an extended duration of five years.

17. [94]

    Dr Allnutt provided a report dated 29 April 2016, following an assessment of Mr Hill on 11 April 2016. He diagnosed Mr Hill as having a:

18. [95]

    Dr Allnutt said:

19. [96]

    Dr Allnutt regarded Mr Hill as presenting with a high loading of clinical risk factors. He assessed him as presenting at least a moderate high risk of sexual recidivism.

20. [97]

    Dr Allnutt said:

21. [98]

    Dr Allnutt recommended consideration of anti-libidinal medication. Dr Allnutt considered that Mr Hill “must remain involved with a community sex offender rehabilitation program” and must abstain from substances.

22. [99]

    Dr Eagle provided a report dated 11 May 2016, following an assessment of Mr Hill on 13 April 2016. She reported Mr Hill’s accounts regarding the circumstances of the 1993 and 1998 sexual offences, the latter of which Mr Hill continued to deny. Dr Eagle also noted Mr Hill’s report that he had forced his ex-partner to have sex and that “I just wanted to humiliate.”

23. [100]

    Dr Eagle regarded Mr Hill as having: “demonstrated limited insight into his offending behaviour, his substance use difficulties and his treatment needs.”

24. [101]

    Dr Eagle further said that Mr Hill:

25. [102]

    Dr Eagle diagnosed Mr Hill as having a:

26. [103]

    Dr Eagle said the personality traits are pervasive and may explain some of the difficulties that have been encountered with Mr Hill’s treatment and supervision. She assessed Mr Hill using assessment tools and clinical judgment. In her opinion, Mr Hill fell within a category of persons at high risk of sexual offending. Dr Eagle indicated that:

27. [104]

    Dr Eagle also concluded that, given Mr Hill’s deviant sexual disorder, anti-libidinal medication should be considered. In addition, she recommended that he be required to attend a further period of a residential rehabilitation drug and alcohol program to address his substance abuse disorder.

28. [105]

    Dr Eagle’s view of the conditions that the State sought to impose was as follows:

Section 9 factors: Crown’s submissions

1. [106]

   All of the s 9 factors are relevant to the safety of the community: s 9(3)(a). The Crown contended that the following matters should be emphasised regarding the s 9(3) factors, which are relevant not only to the discretion to grant an ESO, but also to the question of whether the Court would ultimately be satisfied that Mr Hill is a “high risk sex offender” for the purposes of s 5B(2). Mr Hill:

Duration – Crown’s submissions

1. [107]

   The State submitted that the Court should make the order for five years or such lesser period as appeared to be appropriate. The maximum period permitted by the Act is five years, subject to extension by further application before the end of the period under s 5I(2)(b) of the Act.

2. [108]

   The Crown contended that Mr Hill’s risk of sexual recidivism, including his severe Substance Abuse Disorder and his Sexual Sadism Disorder, both of which are linked to his sexual offending, support the making of an order for a five year period. The two court-appointed experts and Dr O’Dea all support the making of an ESO for five years. Mr Hill will require long-term monitoring and treatment.

3. [109]

   Dr O’Dea’s 3 March 2016 report included the following:

4. [110]

   Dr Eagle expressed the following opinion:

5. [111]

   In this respect it was the view of Dr Allnutt that it was:

6. [112]

   The State maintained that many of the conditions it propounded contained an element of flexibility, so that they could be relaxed over time if Mr Hill made satisfactory progress under supervision. The State contended that the general approach taken by Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [62]-[66] is appropriate:

7. [113]

   Applying this approach in State of New South Wales v Atkins [2014] NSWSC 292, Johnson J said at [130] that he did not consider that the Court should fix a period less than that which is necessary in aid of the protection of the community.

Consideration

1. [114]

   Part of the State’s detailed and helpful written submissions included a reference to Mr Hill’s offending history. The State dealt with this when considering the s 9(3) factors that are to be taken into account in these proceedings. The State prepared a table of these offences in the context of Mr Hill’s offending history and sentencing remarks under s 9(3)(h) and s 9(3)(h1). That table is in the following format:

2. [115]

   This document raises a series of informative points.

3. [116]

   First, it is apparent that Mr Hill has not committed a sexual offence since his release on parole following the completion of his period of custody for the 1998 offences. Mr Hill became eligible for release on parole on 28 March 2006 but was made subject to a three year extended supervision order by Rothman J on 26 June 2009. Mr Hill therefore did not commit a sexual offence during the seven years to date following his release and in purely chronological or historical terms has not committed any sexual offence since the second offence in April 1998.

4. [117]

   Secondly, and as a necessary qualification of the first point, Mr Hill has been convicted of a series of breaches of the ESO that have led to him serving broken periods in custody totalling three years and three and a half months. None of these breaches has involved offending of a sexual nature. Indeed, but for the imposition of the conditions attaching to the ESO, Mr Hill would, all other things being equal, have remained at large in the community.

5. [118]

   Thirdly, the conditions attaching to his ESO have not entirely prevented Mr Hill from resorting to the use of illicit drugs in any event. For example,

6. [119]

   Fourthly, despite detected use of illicit drugs in the approximately seven years to now, none of these instances has been associated with, or has led to, any further reports of sexual offending of any kind, even notwithstanding unanimous medical opinion and judicial acceptance of a strong connection between them.

7. [120]

   Fifthly, alcohol does not appear to have featured at all in any of Mr Hill’s breaches of the ESO conditions during his supervised time in the community over the preceding seven years.

8. [121]

   It will be immediately apparent that there is considerable tension between the medical assessments of Mr Hill’s risk of committing a serious sexual offence on the one hand and the way in which he has performed in the community on the other hand. One significant factor that is both recognised by the medical specialists who have examined and reported upon Mr Hill, as well as being quite evident from his conduct, is that he has been conspicuously unconcerned to comply with at least some of the ESO conditions and in fact appears to be quite strongly opposed to the various restrictions that they impose upon him. Despite the extraordinary detail of the several psychiatric and psychological diagnoses and predictions concerning him, I have not been provided with what I regard as a satisfactory explanation for Mr Hill’s conspicuous success in avoiding regression to sexual offending in the context of an otherwise demonstrable lack of concern for less significant breaches of ESO conditions. This is particularly so having regard to the fact that Mr Hill has been very severely and promptly dealt with for these breaches, including reincarceration for periods together exceeding three years.

9. [122]

   The unanswered question is whether or not Mr Hill’s commendable success in avoiding the commission of any sexual offences is connected to the ESO monitoring and reporting regime or whether it is a function of a more fundamental shift in his endogenous propensities. Regrettably the answer to that question is not assisted by the analysis of any period when Mr Hill has been at large in the community but free of ESO conditions and monitoring. What does seem to me to be important is the fact that Mr Hill has not physically been prevented from being in the company of women but that he has nevertheless managed to avoid sexually re-offending. Clearly enough, whatever cavalier or potentially self-destructive attitude Mr Hill has evinced for the drug regime under which he has been required to operate, the same cannot be said for his attitude to the commission of sexual offences, not to say violent sexual offences.

10. [123]

    There also does not appear to be evidence of significant regression to alcohol abuse. For example, unless I have misapprehended the evidence, Mr Hill has never been charged with breaches of ESO conditions to which he has been subject from time to time that were related to the consumption of alcohol or to being present on licensed premises or the like. This is of importance having regard to both the demonstrated and admitted association between alcohol induced disinhibition and Mr Hill’s index offences, as well as the expert medical opinions about the relationship between alcohol consumption and the prospect of Mr Hill committing further sexual offences.

11. [124]

    I raised the relationship between the conditions under which Mr Hill has so far operated in the community and his level of compliance with the conditions with Dr Eagle. I was interested to know what effect the proposed conditions proffered by the State would be likely to have on the chances of Mr Hill committing a further sexual offence. Part of the transcript of that discussion is as follows:

12. [125]

    This discussion continued:

13. [126]

    Dr Eagle’s evidence also contained the following:

14. [127]

    Dr Eagle was asked to consider the question of whether Mr Hill’s continued exposure to the present regime of conditions attaching to his ESO might be associated with any negative outcomes. She agreed that if the supervision order were to continue effectively without change, there is a risk that Mr Hill will become angrier and more opposed to the restrictions.

15. [128]

    Dr Allnutt also gave evidence. Part of that evidence was as follows:

16. [129]

    Dr Allnutt went on, significantly in my view, to offer the following opinion:

17. [130]

    I raised with Dr Allnutt my concerns about Mr Hill’s regular reincarceration for breaches of the ESO conditions and the effect that it would appear to have had upon him:

18. [131]

    Finally for present purposes, Dr Allnutt’s evidence included the following:

19. [132]

    Section 5B of the Crimes (High Risk Offenders) Act 2006 provides as follows:

20. [133]

    It is not in dispute that Mr Hill is a sex offender. Taking into account all of the evidence, including the wealth of psychiatric and psychological opinions with which I have been provided, as well as the evidence touching the matters to which s 9(3) of the Act refers, I am satisfied on the balance of probabilities that Mr Hill poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I am, however, not satisfied to a high degree of probability as required by s 5B(2) of the Act that Mr Hill poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. It follows that Mr Hill is not a high risk sex offender and that he cannot be made the subject of a high risk sex offender extended supervision order.

21. [134]

    Mr Hill has not committed a sexual offence for the past 18 years. He has not committed a sexual offence while at large in the community since the completion of his non-parole period for the 1998 offences in 2009. Mr Hill has committed several breaches of the conditions attached to his extended supervision order, and has served over three years and three months in gaol as a result. These breaches have predominantly been associated with illicit drug use. None appears to have been associated with or connected to alcohol use or abuse. Mr Hill’s greatest prospects of sexual re-offending are co-extensive with his vulnerabilities to drug and alcohol relapse. This was recognised and applied by Rothman J when he acknowledged that the unanimous view of the expert witnesses who have given evidence on this subject was that Mr Hill could never safely use alcohol, and any use of alcohol by him would render him an immediate risk of re offending. His Honour also said that Mr Hill did not pose a threat, or a significant threat, when not affected by alcohol or drugs.

22. [135]

    In my opinion, a finding said to be based upon satisfaction to a high degree of probability that Mr Hill poses an unacceptable risk of committing a serious sex offence if not kept under supervision could not be reconciled with the demonstrated absence of sex offending for so long on the one hand and the absence of any satisfactory or demonstrable connection between that absence and the conditions imposed upon Mr Hill since his release on parole on the other hand. If Mr Hill had the propensities for sexual re-offending posited by the experts, it would in my opinion have been more likely than not that he would have regressed at some time during the three years and nine months in which he was at large in the community effectively free from absolute constraints upon his activities. Put another way, it follows almost inevitably if not at the very least persuasively from Mr Hill’s success in controlling the psychiatric and psychological conditions so closely associated with the risk of regression to the commission of sexual offences, from which conditions the experts all contend he suffers, that his success is attributable in very large part to his independent and voluntary decisions to do so. I am unable to accept that Mr Hill has only been deterred or prevented from sexual offending by the extended supervision order conditions, for which Mr Hill has clearly shown a high level of disregard, if not contempt. If the medical opinions and evidence of s 9(3) factors combine to suggest that Mr Hill poses an unacceptable risk of committing a serious sex offence if not supervised, they do not in my opinion do so with sufficient force to satisfy me of the existence of such a risk to a high degree of probability. Any finding to such a standard would require me to ignore the historical success achieved by Mr Hill, in varying degrees of significance, since 1998 in general and 2009 in particular.

23. [136]

    The standard that applies to the relevant finding has been prescribed by the parliament. It is higher than the civil standard. Having regard to the consequences of a finding pursuant to s 5B(2), so much is understandable. Whatever the reason for the prescription of that higher standard may be, I am unable in this case to be satisfied to a high degree of probability that Mr Hill poses an unacceptable risk. The understandably cautious and conservative expert predictions upon which the State relies in my view fail when assessing this risk of re-offending appropriately to accommodate or to take account of Mr Hill’s demonstrated success as a functioning member of the community. The same can be said of the various s 9(3) factors to which the State has drawn my attention. Indeed, having regard to the setbacks encountered by Mr Hill as a person subject to an extended supervision order, with his several breaches of conditions and consequent returns to custody, that success seems to me to be all the more remarkable. It stands in the way of my being satisfied to a high degree of probability that Mr Hill poses the risk in question.

Orders

1. [137]

   In my opinion the following orders should be made:

   1. (1)

      Pursuant to s 9(1)(b) of the Crimes (High Risk Offenders) Act 2006, the application for an extended supervision order is dismissed.

   2. (2)

      Order the plaintiff to pay the defendant’s costs of and incidental to these proceedings.