State of New South Wales v Rush (Final)

1. [1]

   By Summons, dated 6 April 2022, the State of New South Wales (“the plaintiff”) seeks an Extended Supervision Order (“ESO”) against Shayne Rush (“the defendant”), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. [2]

   By way of final relief, the plaintiff seeks the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Act, that the defendant be the subject of an ESO for a period of two years;

   2. (2)

      Pursuant to s 11 of the Act, that the Court direct the defendant, for the period of the ESO, to comply with the conditions set out in the Schedule annexed to the Amended Summons (“the standard conditions”); and

   3. (3)

      That access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party for any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

3. [3]

   For the purpose of this final hearing, the critical issues for determination are whether an ESO should be made and, if so, the term of that ESO and the conditions to be imposed.

4. [4]

   For reasons that will be set out more comprehensively below, I am satisfied that an ESO should be made for a period of two years. A number of issues arise as to the formulation of the conditions attaching to the order.

Background

1. [5]

   The defendant is a 57-year-old man who resides in independent accommodation. He was adopted as a newborn and raised with his adopted sister by their adoptive parents. Although his adoptive family were supportive of him, the defendant reports that he was in-and-out of boys’ homes from the age of 12.

2. [6]

   The defendant’s adoptive parents are deceased. He had a good relationship with his sister, although they have had no contact since shortly after the defendant’s incarceration in 1998. The defendant reports no friendships or social networks. He was expelled from school at the age of 15. He denied any early learning difficulties but reported behavioural issues in high school.

3. [7]

   The defendant has been employed occasionally since leaving high school, undertaking various forms of employment, including labouring work. He is currently a recipient of the Job-Seeker payment.

4. [8]

   The material suggests that the defendant has a long-standing history of various personality and behavioural traits and cognitive thinking styles, including rigidity of thought; obsessional thinking; and narcissistic tendencies. There are several diagnostic considerations, including paedophilia disorder; antisocial personality traits and/or disorder; and traits and/or diagnosis of schizotypal personality disorder.

5. [9]

   The defendant has a lengthy criminal history consisting of violent sexual offences. Of particular significance are the offences committed in 1997 and 1998, which form the index offences the subject of the plaintiff’s application for an ESO.

6. [10]

   In September 1997 (“the 1997 offences”), and later in July and September 1998 (“the 1998 offences”), the defendant committed indecent, sexual, and other offences upon five victims, including aggravated sexual intercourse without consent. The offences were random and opportunistic and were committed on separate occasions in public places. Four of the victims were aged nine to thirteen.

7. [11]

   The defendant was sentenced for the 1998 offences by his Honour Judge Job in the District Court of New South Wales. After his release from custody, the defendant was charged with the 1997 offences.

8. [12]

   On 17 December 2010, the defendant was sentenced for the 1997 offences by Judge Ellis SC in the District Court of New South Wales. He received a term of imprisonment of 12 years, with a non-parole period of 7 years. The head sentence was set to expire on 24 March 2019.

9. [13]

   The defendant was released to parole on 11 April 2017. On 16 December 2018, the defendant breached his parole by entering an “exclusion zone”; that is, by attending an area frequented by children. This conduct also contravened a Child Protection Prohibition Order (“CPPO”) which the defendant was subject to, pursuant to the Child Protection (Offenders Registration) Act 2002 (NSW) (“the CPOR Act”). The defendant was sentenced to 3 months’ imprisonment and his parole was revoked.

10. [14]

    The defendant has spent approximately 20 years in custody in relation to the acts of sexual violence from 1997 and 1998. On 25 March 2019, the defendant was released after serving his outstanding parole period. He has remained in the community since this date. His criminal history reflects that he has not committed any further sexual offences during this time.

11. [15]

    Towards the expiration of the defendant’s head sentence for the 1997 offences, the plaintiff applied for an ESO, pursuant to s 7 of the Act. Justice Lonergan presided over the preliminary hearing and made interim orders on 10 December 2018. At final hearing, on 17 May 2019, her Honour imposed an ESO for a period of 3 years, commencing on 17 May 2019 and expiring on 18 May 2022. The ESO included 54 conditions of supervision, including an electronic monitoring condition: see State of New South v Rush (Final) [2019] NSWSC 582.

12. [16]

    Nearing the expiration of the ESO made by Justice Lonergan, the plaintiff made a further application for the defendant to, again, be subject to an ESO for a period of two years. This is the application that is before me for final hearing.

13. [17]

    On 9 May 2022, Justice Hamill made an order, pursuant to s 7(4) of the Act, appointing two qualified psychiatrists or psychologists (or a combination of such persons) to examine the defendant, and to furnish reports to the Supreme Court of New South Wales: see State of New South Wales v Rush [2022] NSWSC 608 at [23].

14. [18]

    On the same date, his Honour, pursuant to s 10A of the Act, imposed an Interim Supervision Order (“ISO”) for a period of 28 days, commencing at midnight on 18 May 2022. Since then, the ISO has been renewed on two occasions, and is set to expire on 10 August 2022.

Legislative Framework

1. [19]

   In determining whether final supervision orders should be made, regard must be had to the objects enunciated in s 3 of the Act. As stated in s 3(1), the primary object of the Act is to:

2. [20]

   Although this is the “paramount consideration”, s 3(2) of the Act provides that a secondary object is to encourage such offenders to “undertake rehabilitation”. In making any orders under the Act, I must have full regard to the various objects of the Act.

3. [21]

   Section 5B of the Act further sets out a four-tier test for the making of an order. They are as follows:

4. [22]

   For the purposes of s 5B(a), an “offender” is defined under s 4A as a person who: (I) is of, or above, 18 years of age; and (II) has, at any time, been sentenced to imprisonment to be served by way of full-time detention or intensive correction in the community following the person’s conviction for a serious offence. A “serious offence” is defined in s 4 as being either a “serious sex offence” or a “serious violence offence”. These two categories of offences are further defined in ss 5 and 5A respectively.

5. [23]

   There is no issue in this case that the pre-conditions set out in ss 5B(a), 5B(b) and 5B(c) are met.

6. [24]

   The final statutory pre-condition requires the Court to be satisfied, to a “high degree of probability”, that the defendant poses an “unacceptable risk” of committing another “serious offence” if not kept under supervision.

7. [25]

   In determining whether an ESO ought to be made, I must also consider the factors set out in s 9 of the Act. Section 9(1) provides that an application for an ESO may be determined by either making an order, or by dismissing the application. By virtue of s 9(2), the “paramount consideration” when making a determination is to ensure the “safety of the community”.

8. [26]

   Section 9(3) of the Act goes on to provide that in determining whether to make an ESO, the Court “must” have regard to a list of matters contained within the section. This list is non-exhaustive, and the Court may also have regard to “any other matter it considers relevant”. I intend to address the matters to be considered under s 9(3) of the Act more fully below.

Submissions

1. [27]

   The plaintiff submits that the Court can be satisfied, to a “high degree of probability”, that the defendant poses an “unacceptable risk” of committing another “serious offence” if not kept under supervision by way of an ESO for a duration of two years. In particular, the plaintiff relies upon the defendant’s lack of treatment progress and dynamic risk factors identified by the Court-appointed experts.

2. [28]

   The plaintiff contends that the Court should impose the standard conditions annexed to their Amended Summons, including electronic monitoring. The order is sought on the basis that such conditions are reasonable and appropriate given the defendant’s clinical needs and risk factors. The plaintiff does not press the conditions with respect to weapons.

3. [29]

   The defendant does not oppose the making of an ESO.

4. [30]

   The defendant accepts that it would be open to the Court to reach a state of satisfaction, to a “high degree of probability”, that the defendant poses an “unacceptable risk” of committing another “serious offence” if not kept under supervision by way of an ESO.

5. [31]

   The defendant also accepts that it is open to the Court to direct the defendant to comply with such conditions that the Court considers appropriate. However, the defendant contends that several of the conditions proposed by the plaintiff are counter-intuitive. Instead, the defendant submits that this is an appropriate case, given the defendant’s limited cognitive capacity, to impose conditions that are formulated in “plain English” (“the plain English conditions”). The defendant also opposes a number of discrete conditions relating to the provision of a ‘Schedule of Movements’ and ‘Access to Internet and Other Electronic Communications’.

Unacceptable Risk Test

1. [32]

   As stated earlier, the determination of this application turns on whether I am satisfied, to a “high degree of probability”, that the offender poses an “unacceptable risk of committing another serious offence if not kept supervised”: see s 5B(d) of the Act.

2. [33]

   The term “to a high degree of probability” has been held to indicate a higher standard of proof than the normal civil standard, although not to the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]:

3. [34]

   At present, the legislation does not define the term “unacceptable risk”. Some insight into the term is provided by s 5D of the Act, namely, that in determining risk:

4. [35]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the Act: see Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 (“Lynn”). Noting the paramount concern for community safety, in State of New South Wales v Holschier (No 3) [2019] NSWSC 341 Campbell J at [49] observed that “guaranteeing community safety is, of course, an impossible task; making it secure is a relative, not absolute, standard”.

5. [36]

   The meaning of an “unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows:

6. [37]

   In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed at [43]:

7. [38]

   These observations were affirmed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 who noted at [71] that “unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

8. [39]

   In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J stated the following at [14]-[17]:

9. [40]

   Accordingly, the seriousness of an index offence is a particularly significant factor in making any determination under the Act. The unacceptability of risk test is not a discretionary exercise, but rather an evaluative assessment. I must make an assessment based on the likelihood of a risk eventuating and the potential consequences if it does eventuate. Thus, a defendant 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 grave: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43].

10. [41]

    The right of a defendant to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk”. However, consideration of a defendant’s circumstances, including the defendant’s interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] per Beazley P, at [131] per Basten JA and at [149] per Gleeson JA.

11. [42]

    The plaintiff has helpfully set out in ‘Annexure B’ of the written submissions the relevant matters the Court must have regard to in determining whether to make an ESO, pursuant to s 9(3) of the Act. The defendant does not dispute the accuracy of the content included in the plaintiff’s summary.

12. [43]

    The defendant does not oppose the making of an ESO, although does oppose some of the conditions proposed by the plaintiff. Notwithstanding the defendant’s position, the Court is required to be independently satisfied of the statutory pre-conditions, and must be satisfied, to a “high degree of probability”, that the defendant poses an “unacceptable risk” of committing another “serious offence” if not kept under supervision via an ESO: see s 5B(d) of the Act.

13. [44]

    I turn to consider the matters to be taken into account under s 9(3) of the Act.

14. [45]

    In compliance with the orders made by Justice Hamill, the defendant was examined by Dr Amanda White and Dr Richard Furst, and reports were furnished to the Court on 22 June 2022 and 29 June 2022 respectively.

15. [46]

    I have considered the opinions of Dr White and Dr Furst and the reports in their entirety.

16. [47]

    The defendant was interviewed by Dr White on 6 June 2022 and psychological testing was administered. Dr White states that the defendant displayed “adequate engagement and cooperation”.

17. [48]

    In her interview with the defendant, Dr White noted that the defendant’s attitude towards his offending was “characterised by extreme minimisation. He demonstrates a clear lack of self-awareness and insight regarding the impact on his victims and appreciation for the gravity of his sexual offending”. Accordingly, Dr White opines that the defendant’s lack of self-awareness and insight have “been a significant roadblock to treatment progress”.

18. [49]

    When asked about identification of signs, triggers or risk factors for future possible offending, the defendant said that this was “impossible” and “nup”, indicating his belief that he had no risk factors. He said that the courts “just want to punish me”.

19. [50]

    When asked by Dr White about the impact of his offending upon the victims, the defendant did not feel his actions would still have an impact on the victims, stating that any impact was “all gone” and that the victims “are fine”.

20. [51]

    Dr White is of the view that the defendant presents with a:

21. [52]

    Dr White notes that the defendant’s risk level was assessed in August 2021, using the Level of Service Inventory – Revised (“the LSI-R”). The defendant’s level of risk for general and violent offending within 12 months of release was within the Medium-High risk category.

22. [53]

    The defendant’s static risk factors were assessed using multiple tools. The following results were identified by Dr White:

    1. (1)

       The defendant was assessed according to the STATIC-99R instrument in 2018, 2019 and 2022 respectively. His score indicated that his risk of sexual re-offending compared to other male adult sex offenders was 6 and within the Well Above Average risk category. This is the highest risk category and was confirmed in 2022;

    2. (2)

       The defendant’s risk of sexual re-offending was further measured on another actuarial risk took, the STATIC-2002R. The defendant’s total score was 7, falling within the Well Above Average risk category;

    3. (3)

       The defendant was previously assessed in 2018 and 2022 on the STABLE-2007, an actuarial tool assessing dynamic risk factors. The defendant consistently scored 15, indicating a high density of criminogenic needs; and

    4. (4)

       Based on the Risk of Sexual Violence Protocol (“RSVP”), the defendant requires a high level of effort and intervention to prevent further sexual reoffending.

23. [54]

    Dr White concludes that:

24. [55]

    It is noted within the report that the defendant has some difficulties with particular aspects of his cognitive functioning; namely, facets of his executive or higher order functioning such as impulsivity, conceptual reasoning and responding to feedback, mental fluency or generativity, and planning and organisational skills. Psychometric testing administered by Dr White revealed the following:

    1. (1)

       The defendant’s Full-Scale IQ fell within the Low Average range and at the 18th percentile;

    2. (2)

       The defendant’s verbal skills were within the Low Average range and at the 13th percentile;

    3. (3)

       The defendant’s visual skills were within the Average range and at the 50th percentile;

    4. (4)

       The defendant’s working memory index and processing speed indexes were within the Low Average range and at the 23rd and 18th percentiles respectively;

    5. (5)

       The defendant’s basic auditory attention was within the Average range;

    6. (6)

       The defendant’s working memory was within the Low Average range and at the 23rd percentile;

    7. (7)

       The defendant’s speed of information processing across a range of measures including visual scanning and coding tasks was within the Low Average range and at the 18th percentile;

    8. (8)

       The defendant’s auditory memory for verbal material was within the Low Average range and at the 19th percentile; and

    9. (9)

       The defendant’s immediate and delayed recall of structured verbal information was within the Average range.

25. [56]

    Accordingly, Dr White states that the defendant will have some difficulty with his understanding of verbal information but opines that:

26. [57]

    Dr Furst confirms that the defendant meets the criteria for the diagnosis of the following mental disorders:

    1. (1)

       Antisocial Personality Disorder; and

    2. (2)

       Paedophilic Disorder.

27. [58]

    In support of this diagnoses, Dr Furst states the following:

28. [59]

    In relation to the defendant’s Paedophilic Disorder, Dr Furst opines that the defendant’s “tendencies towards minimisation, victim blaming and his tendency not to take responsibility for his offending behaviour makes it difficult to rely on Mr Rush’s self-report about the absence of deviant sexual arousal currently, including potential sexual arousal/fantasies relating to children, strangers and/or rape fantasies”. Accordingly, Dr Furst expresses the view that clinicians and authorities supervising the defendant should “exercise caution and a healthy degree of scepticism when assessing Mr Rush’s sexual behaviour and current urges, and his current denial of sexual arousal/sexual preoccupation in particular”.

29. [60]

    In relation to the defendant’s cognitive functioning, Dr Furst notes that psychometric testing was conducted by Dr Emma Collins in April 2019. Dr Collins indicated that the defendant’s overall cognitive function fell in the Borderline to Low Average range, with poor verbal skills. Despite this, Dr Furst opines that the defendant does not have a cognitive impairment within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFP Act”).

30. [61]

    Dr Furst administered a number of statistical assessments to assess the defendant’s likelihood of committing a further “serious offence”. The defendant scored 5 (Level IVa) according to the STATIC-99R actuarial instrument. Based on this result, Dr Furst states that the defendant falls in the category of a group of male sex offenders considered to be in the “above average to well above average risk band”.

31. [62]

    According to the RSVP and STABLE-2007 instruments, Dr Furst notes that the defendant’s “dynamic risk factors” are “concerning and broad-based, meaning that he has a well above average dynamic of risks”.

32. [63]

    The defendant’s primary risk factors in committing a further “serious sexual offence” are identified by Dr Furst as follows:

33. [64]

    Based on the defendant’s clinical profile and score on the STATIC-99R instrument, Dr Furst estimates the defendant’s risk of sexual re-offending to be in the order of 20-25% within five years of his release from custody.

34. [65]

    In assessing the length and conditions of any ESO that might be further imposed on the defendant, Dr Furst recommends that an ESO should be imposed for a period of 5 years. He regards the ‘Schedule of Conditions of Supervision’ and his management over the last 3 years on the ESO imposed by Justice Lonergan as “reasonable and appropriate in the circumstances of Mr Rush’s identified risks and clinical needs”.

35. [66]

    Various reports by Forensic Psychologists and Psychiatrists have been tendered to assess the defendant’s risk of re-offending.

36. [67]

    A Risk Assessment Report was produced by Dr Sam Ardasinski, Senior Psychologist, in 2018. This report classified the defendant’s risk of sexual re-offending to be in the Moderate-High risk category, relative to other male sexual offenders. The RSVP placed the defendant within the Moderate/Elevated risk category for repeat sexual offending.

37. [68]

    In his report, dated 3 February 2019, Dr Adam Martin, Forensic Psychiatrist, stated that he: “concurred generally with the opinion given by Dr Ardasinsk”. Dr Martin stated that the defendant “has very limited internal coping abilities and management of risk factors will depend on external supervision. It is my view that he probably does not have requisite coping abilities to regulate his behaviour appropriately and will remain at risk of future offending without appropriate supervision.” Dr Martin opined that the conditions of the ESO imposed in 2019 were appropriate to ensure community safety.

38. [69]

    In 2019, Dr Emma Collins, Clinical and Forensic Psychologist, furnished a Psychological Assessment Report. Dr Collins opined that the defendant could be considered a high-risk sex offender and that he could commit a serious sexual offence in the future. Relevant risk factors identified by Dr Collins included the cluster of offending in 1997 and 1998; the diversity of the offending; the recklessness displayed towards the victims; his tendency to minimise his conduct; his perception that children are sexual beings; and his limited insight into the risk issues that led to the sexual offending. Her greatest concerns in terms of risk management were his struggle to manage sexual urges, or the occurrence of interpersonal setbacks, as well as the possibility of a return to drug use and its associated lifestyle.

39. [70]

    The Risk Assessment Report of Senior Psychologist Ms Sarah Wright dated 21 February 2022 concluded, having regard to the RSVP statistical tool, that the defendant poses a Well Above Average risk of further sexual offending. Ms Wright found that the defendant continued to have limited insight into his risk factors and further found that his “functioning and insight is unlikely to improve any further; his risk factors are likely to outlast any potential order”.

40. [71]

    There are three reports relevant to this consideration: the ESO Completion Report, dated 11 October 2021; the ESO Completion Report, dated 12 November 2021; and the Risk Management Report, dated 17 March 2022.

41. [72]

    The ESO team have noted that the defendant has remained socially isolated since his release from custody. He has been observed to be “socially inept” and has not made any meaningful relationships in the community. The defendant has continued to display a lack of insight into what constitutes appropriate behaviour in the community, and into his own risk factors. He has given statements that indicate he has refrained from certain behaviours not because they are wrong, but because his relevant supervision orders disallowed them. This has led to an ongoing concern on part of Corrective Services that the defendant is likely to engage in high-risk behaviours if his supervision ceases.

42. [73]

    Further, the defendant has expressed limited insight into the seriousness and consequences of his sexual offending, not understanding the need for ESO conditions when his offences occurred so long ago. The defendant’s Community Correction’s Officer (“the CCO”) suggested that the defendant, when indicating his decision not to re-offend, was simply telling the CCO what he wanted to hear, rather than understanding his risk factors.

43. [74]

    Between November 2013 and October 2014, the defendant participated in the Custody-Based Intensive Treatment (“CUBIT”) program (also known as the High Intensity Sex Offender (“HISOP”) Program). Within that program, the defendant expressed his motivation not to re-offend, and expressed that he was implementing new skills to manage his risk factors. Despite this, he reportedly appeared to minimise the seriousness of his offences and externalise responsibility. Although he was able to identify his “offence pathway”, he required significant assistance to do so and relied heavily on external motivation to work towards his goals.

44. [75]

    Case notes regarding the defendant’s engagement with offence-specific treatment reveal the defendant’s inability to accept constructive feedback. The defendant struggled to identify realistic and constructive strategies to implement, and has failed to demonstrate a proper understanding of his sexual pre-occupation.

45. [76]

    The defendant has demonstrated an inability to self-manage change in different environmental situations, and a limited capacity to function in the community. Most recently, the defendant drowned several kittens in order to avoid issues with his landlord.

46. [77]

    The defendant, however, has made progress and remains motivated, as evidenced by his finding employment and accommodation. On 17 December 2020, he informed his therapist he had secured employment.

47. [78]

    Case notes from 6 April 2022, extracted in the 15 July 2022 affidavit of Ms Hayley Le, demonstrate that the defendant is beginning to display insights into his risk factors.

48. [79]

    The plaintiff submits that the statutory regimes available under the CPOR Act do not offer the level of supervision required to appropriately mitigate the defendant’s risk of serious re-offending. Accordingly, the plaintiff has proposed a set of rigorous conditions for the ESO that include remote inspection of the defendant’s electronic devices to reduce the likelihood of re-offending,

49. [80]

    The defendant submits that the imposition of plain English conditions would reduce the likelihood of re-offending. The defendant relies upon the findings of Dr White and Dr Collins regarding the defendant’s limited intellectual functioning.

50. [81]

    The defendant has been able to comply with the ‘Scheduling of Movements’ obligations under the ESO imposed by Justice Lonergan, and has been compliant with supervision and treatment. Any non-compliance with the ESO has been relatively minor in nature, such as deviating from his schedule timings by arriving early, or socialising with a neighbour who was consuming alcohol.

51. [82]

    On 16 December 2018, the defendant entered Burwood Park and in doing so violated the requirement under his CPPO that he not enter public premises frequented by children. The defendant pleaded guilty to the offence and expressed that he understood he may have caused members of the public to feel unsafe. There is no suggestion that he came into contact with any children, or attempted to approach the children’s playground area while in the park.

52. [83]

    However, this breach is a matter of concern, given that I am satisfied the defendant was aware that his actions violated the requirement under his CPPO. The defendant entered the park on a Sunday, between 5.55pm to 6.00pm. Ms Amanda Carden, Community Corrections Officer, notes in her report dated 19 December 2018 that there are numerous child-related facilities within Burwood Park.

53. [84]

    I bear in mind that the defendant has not breached the ISO and ESO previously imposed, and has not committed subsequent offences of a sexual nature.

54. [85]

    In addition to the index offending, the defendant has a long criminal history that dates back to 1977 and includes various property offences; stealing motor vehicle; larceny; and take and drive conveyance without consent. In addition, the defendant has also committed violent offences, including various assaults occurring in 1985, 2008 and 2010.

55. [86]

    Most recently, on 20 October 2020, the defendant killed nine kittens at his unit. The defendant told police that he “cuddled them until they went to sleep and went to heaven”. For this offence, the defendant was sentenced to a Community Corrections Order for a period of 12 months.

56. [87]

    Dr Furst states in his report:

57. [88]

    In all the circumstances, and given the agreement of the parties that an ESO should be made for a period of two years, my reasons can be more briefly stated than might otherwise be the case. Having regard to the expert evidence, I accept that the pre-conditions in ss 5B(a), 5B(b) and 5B(c) of the Act, and the requirements in ss 5H, 51, 6 and 7 of the Act, are met in this case. I am also satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision via an ESO.

Imposition of Conditions

1. [89]

   I turn to consider the imposition of conditions. There are two issues that must be determined: the first issue is whether the conditions are imposed as plain English conditions; and the second issue relates to whether certain discrete conditions are required.

2. [90]

   Section 11(1) of the Act states that in determining to impose an ESO, the Court “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. The section includes a list of directions that the Court can impose; however, this list is not exhaustive.

3. [91]

   The Court’s power to impose particular conditions depends in turn upon the scope of the Act: see Winters v Attorney General of New South Wales [2008] NSWCA 33 at [19]; (2008) 182 A Crim R 107. When determining such conditions, not only are the consideration is s 11(1) relevant, but the Court must have regard to the objects of the Act as stated earlier.

4. [92]

   Important principles to be considered in relation to the imposition of conditions were set out in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 by Hoeben CJ at CL at [44]. They are as follows:

5. [93]

   While the paramount objective of the Act is to ensure the protection of the community, the Act also encourages the successful rehabilitation of an offender. Any conditions attaching to an order ought to specifically address issues relevant to currently identified risk factors in relation to future offending. Accordingly, conditions must not be fashioned that are unjustifiably onerous or simply punitive: see State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]; State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

6. [94]

   It is a legitimate concern to see an offender’s progress “recognised, encouraged, and not stunted”: see State of New South Wales v Nikua (Final) [2021] NSWSC 1240 at [90] (per Dhanji J). Having noted all the above matters, in Devaney, Dhanji J at [93] further affirmed that:

7. [95]

   It is well established that the imposition of conditions should be clear, concise, and comprehensible so as to avoid matters being left to interpretation about what is encompassed in a condition and what is not: see State of New South Wales v Hill (No 4) [2010] NSWSC 1504 at [23] – [24]; State of NSW v Green [2013] NSWSC 1003 at [44].

8. [96]

   At the same time, any conditions imposed must also clearly define the rights and obligations of not only the defendant, but also of the Departmental Supervising Officer (“DSO”): see State of New South Wales v Neal [2018] NSWSC 1806 at [46]. Accordingly, conditions are often furnished that mirror the wording of s 11(1)(a) to (n) of the Act or otherwise.

9. [97]

   It is open to a court, nonetheless, to be satisfied that there are certain circumstances in which the imposition of plain English conditions are appropriate, having regard to the defendant’s cognitive limitations, and cultural and social factors: see State of New South Wales v De Vries (Final) [2022] NSWSC 247 at [56]; State of NSW v Azar (Final) [2021] NSWSC 216 at [108].

10. [98]

    The defendant relies upon the assessment of his cognitive functioning and the opinion expressed by Dr White that, although the defendant has the capacity to understand and recall instructions and rules, he may have some difficulty with nuances in his understanding of verbal information. This difficulty would be reduced where rules and instructions are explained clearly in writing and plain concrete language is used.

11. [99]

    As set out in some detail above, the defendant’s cognitive functioning has been assessed and I accept that the defendant’s overall cognitive functioning falls in the Borderline to Low Average range, with poor verbal skills relative to his non-verbal skills. The defendant does not, however, have a cognitive impairment within the meaning of s 4 of the MHCIFP Act, nor does he have an intellectual disability within the meaning of the DSM-5 diagnostic criteria.

12. [100]

    There will be cases where the form of condition should reflect the cognitive needs of a person to whom the conditions apply. The use of simplified language and visual cues may, in appropriate cases, be necessary to give full effect to the objectives of the Act, by ensuring that a defendant fully understands the conditions attached to the ESO. This, in turn, enhances their prospects of compliance.

13. [101]

    However, I am not satisfied in the circumstances of this case, that plain English conditions are appropriate.

14. [102]

    Firstly, the defendant has been the subject of a previous ISO and ESO since about December 2018. The standard conditions have applied for the duration of those orders. There has been no breach of the conditions, a factor militating against an inference that the defendant does not understand the obligations placed upon him. I accept, however, that this fact alone would not necessarily prohibit the formulation of plain English conditions.

15. [103]

    Secondly, while the evidence does establish some cognitive limitations and rigid thinking, there is no evidence that the defendant does not understand the standard conditions. The defendant does not have a cognitive impairment or an intellectual disability.

16. [104]

    Thirdly, and importantly, some of the proposed plain English conditions fail to adequately specify the rights and obligations of the parties. Indeed, some of the proposed plain English conditions suffer from a number of defects, including being unnecessarily broad, with the result that the limitations placed on the defendant are in excess of the limitations required by the standard conditions.

17. [105]

    For example, ‘plain English condition 26’ (see MFI 1) does not specify that the defendant must not “knowingly” use a coded or encrypted messaging application or service. The absence of the word “knowingly” arguably makes the prohibition much broader than intended. A further example is ‘plain English condition 17’ (see MFI 1) which arguably places an obligation upon the defendant to ask permission from a DSO on each occasion that he intends to use any phone, computer, or any other device capable of being connected to the internet. That is not the intention of the standard condition.

18. [106]

    I am persuaded that it is appropriate in this case to formulate the conditions in the way proposed by the plaintiff.

Determination of Specific Conditions

1. [107]

   The plaintiff no longer presses the conditions that relate to weapons. The defendant opposes the imposition of conditions that require the defendant to submit a schedule of movements and the conditions that regulate the defendant’s access to the internet and other electronic communications.

2. [108]

   The defendant has not been required to submit a schedule of movements since 28 October 2021. He has not breached the ISO. Electronic monitoring has adequately monitored the movements of the defendant in real time.

3. [109]

   The plaintiff submits that notwithstanding this progress, the conditions are necessary as a “risk management tool”.

4. [110]

   I must strike a balance between the various considerations, which include the protection of the community and the privacy of the defendant, recognising that the paramount consideration is the protection of the community.

5. [111]

   As a result of the defendant’s compliance with monitoring, he has not been required to provide a schedule of his movements for approximately nine months. There is no indication that there has been any increase in his risk of sexual offending. The defendant does not object to the continuation of electronic monitoring so that his movements can be monitored in real time.

6. [112]

   In these circumstances, I am not persuaded that a condition requiring the defendant to submit a schedule of movements is necessary, or appropriate, to address the risk the defendant poses. He will be electronically monitored. His movements will be supervised in real time. There are a number of additional onerous conditions that will be in place to provide the defendant with the structure he needs to reduce the risk of re-offending, to protect the community, and to enhance his progress.

7. [113]

   The plaintiff seeks 11 discrete conditions that regulate the defendant’s access to the internet and other electronic communications. These conditions are opposed by the defendant.

8. [114]

   In determining whether it is appropriate to impose the 11 conditions, I accept that none of the offending was facilitated by the internet or electronic means. The defendant did not know any of his victims, and the offences were “brazen” and “impulsive” examples of sexual offending, as opposed to “organised” or “planned” criminality. The defendant’s phone has been scrutinised over the years without any evidence of accessing internet sites containing sexual material (particularly that involving children) that would operate as triggers.

9. [115]

   On the other hand, the defendant has a history of past sexual offending involving multiple children, and the magnitude of the harm to children should that risk manifest, putting aside the probabilities of that risk manifesting, is extremely grave. He lacks insight into the impact of his crimes on the victims, and when asked about identification of signs, triggers, or risk factors for future possible offending, the defendant has denied any risk factors.

10. [116]

    Dr Furst cautions against relying on the defendant’s assertion that he does not currently experience deviant arousal. Dr Furst states that the defendant does not empathise with his victims. His risk of re-offending in a sexual manner, including serious offending, is in the Well Above Average risk category. Dr Furst opines that it is difficult to predict what opportunities and circumstances may arise in the future were the defendant to have free range in the community if unsupervised.

11. [117]

    The index offences were committed in 1997 and 1998, a time when the use of the internet was not as extensive as it is now. The internet and social media allow access to a vast range of sexually explicit material, some of it involving children, the very type of material that could act as a trigger.

12. [118]

    Dr White notes that the defendant uses sexual gratification as a coping strategy. She states at paragraph [80] of her report that:

13. [119]

    I am satisfied that the conditions regulating the defendant’s access to the internet and electronic communications should be imposed.

Orders

1. [120]

   I make the following orders:

   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 from midnight on 10 August 2022;

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant, for the period of the Extended Supervision Order, comply with the conditions as attached to this judgment; and

   3. (3)

      I order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party for any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.