State of New South Wales v French (Final)

1. [1]

   HIS HONOUR: By an amended summons filed in Court on 16 June 2017, the State of New South Wales (“the State”) sought an order that Barrie James French (“the defendant”) be the subject of a high risk sex offender extended supervision order for a period of 5 years from the date of the order, pursuant to ss 5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the amended summons which is attached to this judgment as “Annexure A”.

Course of Proceedings

1. [2]

   By a summons filed on 15 March 2017 (“the summons”), the State sought the following relief:

2. [3]

   The summons was the subject of a preliminary hearing before Adamson J on 10 April 2017. Her Honour reserved her decision.

3. [4]

   By a judgment issued on 12 April 2017: State of NSW v French [2017] NSWSC 400 (“the preliminary hearing”), Adamson J made orders, which included, inter alia, that the defendant be the subject of an interim supervision order from 23 April 2017 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant is to comply with the conditions in the Schedule attached to this judgment (Annexure A).

4. [5]

   At the final hearing on 16 June 2017 before the Court as presently constituted, the State sought and was granted leave to amend the summons. The relief sought in paras 2 and 3 of the summons, in relation to a high risk sex offender continuing detention order, was abandoned and the form of the conditions at the preliminary hearing were sought by the State as final orders.

5. [6]

   That interim supervision order was renewed on the same conditions on two occasions pursuant to s 10C(2) of the Act for a period of 28 days. First, the order was varied by Fullerton J, with the consent of the parties, in Chambers on 17 May 2017. Second, the interim orders were extended by the Court as presently constituted until 14 July 2017.

6. [7]

   On 29 June 2017, prior to the continuance of the final hearing, the Court received a communication from the Registry that advised the defendant had returned to custody. An email was sent to the parties, identifying this changed circumstance, and requesting a status update. On 7 July 2017, the State provided the Court with an affidavit of Erin Kirkwood, the Departmental Supervising Officer (“DSO”) of the defendant, affirmed 5 July 2017. Ms Kirkwood deposed: “On 23 June 2017, the defendant was arrested by the Extended Supervision Order Investigations Team (NSW Police) and charged with one count of Fail to Comply with Extended Supervision Order, arising from positive laboratory results” (annexed to the affidavit was a copy of drug analysis report produced by NSW Health Pathology).

The Offences

1. [8]

   On 13 May 2005, after pleading guilty to multiple offences of sexual intercourse without consent committed against one adult female victim (referred to throughout the proceedings as “V1”) in 2001 and 2002, the defendant was sentenced by Hock DCJ in the District Court of NSW to a term of imprisonment of 14 years. The offences were as follows:

   1. (1)

      Administer stupefying drug with intent to commit an indictable offence (2 counts) under s 38 of the Crimes Act 1900 (NSW);

   2. (2)

      Sexual intercourse without consent (8 counts) under s 61I of the Crimes Act;

   3. (3)

      Assault (1 count) under s 61 of the Crimes Act;

   4. (4)

      Assault occasioning actual bodily harm (2 counts) under s 59 of the Crimes Act;

   5. (5)

      Indecent assault (1 count) under s 61L of the Crimes Act; and

   6. (6)

      Aggravated sexual intercourse without consent (1 count) under s 61J of the Crimes Act.

2. [9]

   The defendant’s sentence for the offences expired on 23 April 2017.

3. [10]

   The offences related to episodes between 1 January 2001 and 1 July 2002 in which the defendant videotaped himself perpetrating sexual offences against the victim, without her knowledge or consent. After the offender drugged the victim, he tied her up, penetrated her genitals with objects (eg syringes and food items) and forced her to perform fellatio on him. The victim was unconscious or stupefied for the majority of the offending and unaware of the videotapes at the time. The victim had been the defendant's girlfriend for nine years with their relationship ending in 2002.

4. [11]

   The offence came to light as follows. On 25 March 2003, police officers executed a search warrant at the defendant’s home in relation to separate allegations (see “March 2003 Complaint” below). There, they located and seized three videotapes, two of which captured the offences and were labelled Tape 2 and Tape 3, respectively (“Tape 1” is addressed under the next heading). (Collectively the videotapes shall be hereinafter referred to as “the videotapes”.)

5. [12]

   The “Particulars of Indictment”, with respect to offence and the corresponding footage on Tapes 2 and 3, were annexed to the affidavit of Vicenzo Camporeale marked Ex 4 in the proceedings before this Court (the videotapes were also tendered on 17 August 2016, during the defendant’s sentencing hearing, before Hock DCJ). The document is extracted in full below:

6. [13]

   The District Court made determinations in relation to each of the offences, with the overall sentence being a term of 14 years and a non-parole period of 10 years.

7. [14]

   The sentencing judge made the following comments with respect to the offences:

8. [15]

   The defendant appealed his sentence. The Court of Criminal Appeal dismissed the appeal: French v Regina [2006] NSWCCA 361 (“French No 1”).

9. [16]

   In considering the issue of the defendant's memory of the offences and the degree to which he was intoxicated by drugs at the time, M Adams J (with McClellan CJ at CL and Latham J agreeing) stated in French No 1 (at [37]):

10. [17]

    As noted in the following extract, M Adams J viewed Tapes 2 and 3. His Honour observed:

11. [18]

    Having viewed the videotapes, his Honour observed, with respect to objective gravity of the offences as described by Hock DCJ, at [46]:

12. [19]

    I will return to my reasons for viewing the videotapes at [61]-[78]. However, it should be noted that the Court viewed, as part of its deliberations as to the present application, the videotapes.

March 2003 Complaint

1. [20]

   In March 2003, a further complainant, referred to throughout proceedings as “V2”, made a complaint to the police that she has been raped by the defendant on 23 March 2003 (“the March 2003 complaint”). V2 provided the police an account of meeting the defendant and of the events leading up to 23 March 2003.

2. [21]

   A search warrant was issued and acted upon, and it was in the context of this search that the videotapes disclosing the offences (Tape 2 and Tape 3) were discovered. As stated above, a third videotape was also seized (hereinafter referred to as “Tape 1”). Tape 1 contained footage of V2. On 25 March 2003, the defendant was charged with respect to the offences and the March 2003 complaint.

3. [22]

   The prosecution of the March 2003 complaint, however, was not taken further because V2 advised the police she no longer wished to proceed. The matter was subsequently "no billed" in the Local Court. (Accordingly, Tape 1 did not feature on the Particulars of Indictment, extracted above at [12]).

4. [23]

   At the final day of the hearing, this Court heard submissions with respect to the weight to be attached to the Tape 1 and the March 2003 Complaint (hereinafter collectively referred to as “the V2 evidence”). I will return to the discussion of the limit of the use of any evidence concerning V2 under the heading “Evidence before the Court” (at [79]-[81] of this judgment).

Objects

1. [24]

   The primary object of the Act, as stated in s 3(1) is, relevantly for the purposes of these proceedings, “to provide for the extended supervision … of high risk sex offenders … so as to ensure the safety and protection of the community”. Section 3(2) provides that another object of the Act is to encourage such offenders to undertake rehabilitation.

2. [25]

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

Application

1. [26]

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

Part 1A

1. [27]

   Part 1A of the Act concerns the supervision and detention of high risk offenders.

2. [28]

   The power to make a high risk sex extended supervision order (“the order”) resides in ss 5C(1) of the Act. That power is, however, governed by s 5B(1) which confines the exercise of the power to a particular class of offender, namely, a high risk sex offender, an expression defined in s 5B(2).

3. [29]

   Section 5B(2) may be described as the gateway to the power to make orders under ss 5C: Lynn at [55] and [64] (per Beazley P); State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 (“Donovan”) at [24].

4. [30]

   The Act at s 5B(1) provides that an offender can only be made subject of an order "if and only if” the offender is a high risk sex offender. Of this phrase, McClellan CJ at CL in Attorney General v Gallagher [2006] NSWSC 340 stated (at [34]):

5. [31]

   Section 5B is in the following terms:

6. [32]

   The power to make an order under Pt 1A of the Act is premised upon the Court being satisfied to a high degree of probability (being a special level of satisfaction) that the offender poses an unacceptable risk of committing a serious sex offence (that assessment being one of “likelihood” of that risk) in the event that the offender is not kept under supervision: Lynn at [82] and Donovan at [12] and [24].

7. [33]

   The term “sex offender” found in s 5B(2) is defined in s 4 of the Act to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a “serious sex offence”. That later expression is defined in s 5, the relevant components of which, for present proceeding are as follows:

8. [34]

   The offence included convictions for offences under ss 66I, 66J, 66L of the Crimes Act, which are contained in Pt 3 Div 10 and are punishable by imprisonment for up to 20 years (per s 66J). For this reason, the offences fell within the definition of "serious sex offence" within s 5 of the Act.

9. [35]

   The defendant may be considered a "sex offender", pursuant to s 4 of the Act, as he is over the age of 18 and he has been sentenced to imprisonment following conviction of a serious sex offence.

10. [36]

    In relation to high risk sex offender applications, an order may only be made in respect of a "sex offender" who is a "supervised sex offender" who is in "current custody or supervision" in relation to an extended supervision order application (s 5I).

11. [37]

    Section 5I sets out the threshold requirements in relation to an extended supervision order, which are relevantly:

12. [38]

    The defendant falls within the definition of a “supervised sex offender” because at the time of the application for order the defendant was in custody serving a sentence of imprisonment for a “serious sex offence”: s 5I(2)(a)(i). In this, it will be noted that a person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole (s 5I(3)).

PRINCIPLES

1. [39]

   The scope and operation of Pts 1, 2 and 3 of the Act received extensive consideration in Donovan and Lynn, which in my view, are applicable to the consideration of proceedings concerning high risk sex offenders.

Sections 5B(1) and (2): High Risk Sex Offender

1. [40]

   As to the Courts making a determination under s 5B:

   1. (1)

      The Act provides, as stated in its Long Title, for the extended supervision or continued detention of high risk offenders. The purpose of the legislation, as the primary object of the legislation states, is to "ensure the safety and protection of the community". The evaluation of whether an offender is a "high risk violent [or sex] offender" has to be undertaken in that context. The further context on which that evaluation is undertaken is provided by s 5E(2) (s 5B(2) for a sex offender) itself, namely, whether the offender poses an "unacceptable risk" of committing a serious violence (or sex) offence, when regard is had to the safety and protection of the community, unless the person is kept under supervision, either by way of making an extended supervision order or an extended detention order: Lynn at [55].

   2. (2)

      The proper approach to determining whether a person is a high risk sex offender within the meaning of s 5B(2) is to give the words of s 5B(2) “their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act”: Lynn at [58].

   3. (3)

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

   4. (4)

      In State of NSW v Kamm (Final) [2016] NSWSC 1 (“Kamm”), Harrison J found at [41]:

   5. (5)

      “The concept of ‘risk’ clearly involves a risk to the community; although the qualifier ‘unacceptable’ could be read in an extended sense as meaning deemed unacceptable by the Court. It is still the composite phrase which must be understood as referring to a risk to the community”: Lynn at [127] (per Basten JA).

   6. (6)

      The precise parameter, standard or the norm against which the determination under s 5B(2) must be made is not immediately evident from the text of the provision. A determination as to whether something is unacceptable is an evaluative task and evaluative determinations require a context in which they are to be made: Lynn at [51] (per Beazley J). The required state of satisfaction in s 5B(2) requires the exercise of a discretionary judgment: Lynn at [82] (per Basten JA).

   7. (7)

      As to the expression “high degree of probability”, in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], the Court of Appeal (Mason P, Giles and Hodgson JJA) observed that:

   8. (8)

      The position is further clarified by the terms of s 5B(3) which provide the 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 of committing a serious sex offence".

   9. (9)

      The 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 offence is determined to be low: Kamm at [43] (per Harrison J).

   10. (10)

       The requisite finding under s 5B(2) may be made, in an appropriate case involving a single serious sex offence. In Kamm, Harrison J observed (at [44]):

   11. (11)

       The impact of an order on the offender is not a factor in assessing unacceptable risk which focuses rather on the assessment of factors relevant to the content of the risk itself: Lynn at [137] (per Basten JA), Attorney-General of NSW v McGuire [2016] NSWSC 158 at [43] (per Rothman J). Further, the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not relevant to the determination of whether a person poses an "unacceptable risk" for the purposes of s 5B(2) (Lynn at [44], [55]-[58], [128], [148]).

2. [41]

   Whilst it appears that the Court is not mandated to consider all of the matters referred to in s 9(3) in determining whether or not it is satisfied as to the unacceptable risk test under s 5B(2), those matters should nevertheless inform the application of the test: Kamm at [42] and State of New South Wales v Fisk [2013] NSWSC 364 (“Fisk”) at [22] (per Beech-Jones J).

3. [42]

   The structure of the Act would appear to require that the Court first undertake a determination of whether a person falls within the definition of a "high risk sex offender” (under s 5B(2)), having regard to the relevant standard, prior to considering whether or not to make an extended supervision order. It is only once the Court has made a determination that a person is a high risk sex offender that the criteria in s 9(3) is to be addressed: see Kamm at [26] and [42] (per Harrison J); Fisk at [22] (per Beech-Jones J). In Lynn, the Court of Appeal clearly relegated the Court's consideration of s 9(3) matter to a second stage determination under s 9, which arises only once the first stage determination under s 5B(2) has been made: State of NSW v Baldwin [2016] NSWSC 1498 at [17] (per Beech-Jones J).

High Risk Sex Offender Extended Supervision Order

1. [43]

   Section 5C empowers the Court to make orders for an extended supervision order.

2. [44]

   The Court in Attorney General for NSW v Tillman [2007] NSWCA 119 (“Tillman”) (at [30]-[42]) referred to the discretionary nature of a number of the provisions in the former Act, where the term "may" as opposed to "must" had been employed by the legislature. The Court concluded that a true judicial discretion was involved (at [42]). (See also Donovan at [14]-[15] and New South Wales v Anderson [2015] NSWSC 1515 (“Anderson”) at [15].)

3. [45]

   Once the discretionary power to make an order has been enlivened pursuant to s 5C, s 9(3) sets out a non-exclusive list of mandatory matters the Court must have regard to when making its determination and in exercising its discretion. This may include the fact that the proposed order will place constraints on the individual's liberty and privacy (Lynn at [48], [131], [149]).

4. [46]

   Acts of an offender which have been charged but have not resulted in conviction or tested at trial (and acts which have not been charged) may not properly be considered within the terms of "criminal history" within s 9(3)(h). However, evidence of those acts might be relevant when the Court considers the matters identified in s 9(3)(a) (the safety of the community) and s 9(3)(i) insofar as there is any information available concerning the likelihood of the offender committing offences of a serious nature in the future: State of NSW v Steadman [2016] NSWSC 174 at [27] and[124] (per Adamson J).

Conditions

1. [47]

   Section 11 of the Act provides that an extended supervision order may direct an offender to comply with such conditions as the Court considers appropriate, with the provision setting out a number of potential non-exclusive directions.

2. [48]

   In relation to the imposition of conditions in the context of the making of an extended supervision order, the Court in State of NSW v Ali [2010] NSWSC 1045 (per Johnson J) stated (at [88]):

3. [49]

   That approach was approved by the Court of Appeal in Lynn (at [141]).

4. [50]

   Such conditions may impose constraint or alternatively impose positive obligations. In Tillman, the Court of Appeal observed (at [10]):

5. [51]

   The Court of Appeal in Wilde v State of NSW [2015] NSWCA 28 (“Wilde”) has recently considered the issue as to the "correct test" to be applied in relation to the imposition of conditions. The Court unanimously stated:

6. [52]

   In that case, the Court of Appeal allowed as "appropriate" conditions in respect to drugs and alcohol, and association with an Outlaw Motorcycle Gang (OMCG), when neither of these issues related to the offender's past offending: Wilde at [57]. The Court of Appeal observed, that it was within the Court's discretion to consider the appropriate conditions to be imposed, in particular, in relation to drugs and alcohol, "as a means of controlling possible risk factors to sexual re-offending behaviour". In finding this, the Court had particular regard to findings by other courts of the general disinhibiting effects of alcohol: Wilde at [62]-[68].

7. [53]

   In keeping with this approach, this Court has also imposed particular conditions relating to employment, education and/or participation in personal development programs and finances, as follows:

   1. (1)

      In State of NSW v Amohanga [2015] NSWSC 875 at [52], Schmidt J observed: "the dignity, occupation, income and other benefits which employment so obviously provide [an offender], means that the cost of subjecting himself to the requirements which employment carried with it, is one which he must bear".

   2. (2)

      In State of NSW v Fernando [2016] NSWSC 1665 (“Fernando”) at [120], Adamson J observed “it is reasonable to envisage that circumstances might arise where a DSO considers that the defendant ought engage in such activities and the defendant is not prepared to do so without a direction”. Her Honour also observed that such conditions can have the effect of mitigating or “diminish[ing]” the risk of “lapsing into drug or alcohol abuse”. In Fernando that abuse was shown to be a common precursor to the defendant’s offending behaviour. The condition, requiring the defendant to comply with a direction to, inter alia, undertake employment, was allowed as the State had established a “sufficiently close connection between the condition and the risk” the defendant posed. (Cf State of New South Wales v Banks [2016] NSWSC 926 at [68(d)] (Rothman J)).

   3. (3)

      In Fernando, the Court also accepted various conditions that related to an offender's finances, including the disclosure to financial status to the DSO, on the basis of the connection between offending conduct and disordered life (including financial disorder) (at [121]-[126] per Adamson J).

8. [54]

   It may be noted that s 12 of the Act provides that a person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence.

Evidence before the Court

1. [55]

   The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included reports and records produced by Corrective Services NSW (“CSNSW”), NSW Parole Authority as well as reports by various psychologists and psychiatrists who assessed the defendant between 1998 and 2017 (see at [172] of this judgment). In addition the Court received two expert reports from court appointed forensic psychiatrists: Dr Andrew Ellis (dated 7 May 2017) and Dr Jeremy O’Dea (dated 18 May 2017).

2. [56]

   A Risk Assessment Report was also provided by Dr Richard Parker, a registered Senior Psychologist with the Serious Offenders Assessment Unit of CSNSW, (dated 2 September 2016) (hereinafter referred to as “the Parker report”).

3. [57]

   The State relied upon the following evidence by affidavit: Vincenzo Camporeale (affirmed 15 March 2017, 30 March 2017, 10 April 2017 and 29 May 2017); Angela Rybak (sworn 3 May 2017) and Erin Kirkwood (affirmed 30 March 2017, 30 May 2017, 21 June 2017 and 6 July 2017).

4. [58]

   The State also relied upon two further affidavits admitted into evidence subject to particular rulings with respect to confidentiality:

   1. (1)

      Vincenzo Camporeale (affirmed 1 June 2017), with an annexure consisting of the videotapes.

   2. (2)

      Lisa Viney (affirmed 15 June 2017), with an annexure consisting of a letter written by a “victim” to Corrective Services (hereinafter referred to as “the victim statement”).

5. [59]

   No evidence was filed for or on behalf of the defendant.

6. [60]

   During the course of proceedings, particular contentions were raised as to the requirement of the Court to view the videotapes, as well as the admissibility and weight of the V2 evidence and the victim statement. I now turn to my rulings with respect to that evidence.

7. [61]

   As stated above, the videotapes were annexed to the affidavit of Mr Camporeale affirmed 30 May 2017.

8. [62]

   The videotapes were admitted into evidence in the District Court and the subject to orders made by Hock DSJ at the sentencing hearing as follows:

9. [63]

   In the result, the parties in the present proceedings had not viewed the videotapes at the commencement of these proceedings (although the videotapes were tendered into evidence without objection).

10. [64]

    The State submitted the videotapes should be viewed by the Court. Reliance was placed upon Hock DCJ’s remarks on sentence: “[s]hould this matter proceed to a higher court I record my view that the offender’s criminality cannot be adequately assessed by reference to the written material only”. The State also referred to the fact that the Court of Criminal Appeal viewed the videotapes in the hearing of the sentencing appeal: French No 1 at [41]-[42] and [46] per M Adams J (with whom McClennen CJ at CL and Latham J agreed) (extracted above at [17]-[18]).

11. [65]

    Counsel for the defendant contended the written material before the Court “would be sufficient for the purpose of this hearing to proceed”. It was submitted, in that respect, that the factual basis of the offences “is very graphically and clearly described in all of the various documents that are before the court”, namely, Tab 7 of Exhibit 1, the particulars of indictment (see at [12]), the remarks on sentence by Hock DCJ and the judgment of M Adams J. It was submitted the Court may properly determine the present application without the need to view the videotapes, as the “severity” and “grossness” of the offences was already established.

12. [66]

    In oral submissions, the counsel for the defendant contended:

13. [67]

    In the course of argument the Court raised with counsel for the defendant, observations made by M Adams J (at [37]), suggesting limitations within the written narrative of events leading to the defendant’s conviction for the offences, as follows:

14. [68]

    Counsel for the defendant maintained its contention but submitted, in the event the Court makes orders for viewing, the defendant should be afforded the opportunity to view the videotapes.

15. [69]

    The Court ruled that the videotapes were to be viewed and thereafter viewed the videotapes.

16. [70]

    Tapes 2 and 3 are plainly relevant to these proceedings (it was not suggested otherwise by the defendant). It may be accepted that the descriptions provided by Hock DCJ and M Adams J and the particulars of indictment of the offences are “graphic” but it does not follow that the videotapes are not appropriate to be viewed by the Court and, as a matter of procedural fairness, the legal representatives of the parties.

17. [71]

    Hock DCJ’s views in that respect should, in my view, carry significant weight given she heard the trial of the offences and sentenced the defendant. Weight should also be given to the fact the Court of Criminal Appeal viewed Tape 2 and Tape 3, and that observation by M Adams J in French No 1 at [37] went beyond bare descriptions of the conduct of the defendant giving rise to the offences.

18. [72]

    Most significantly, however, is that the Court, as presently constituted, must make an evaluative judgment as to whether the defendant is a high risk sex offender. As the discussion of principles above recognises, that evaluative judgment involves, inter alia, an assessment of that kind being made within the context of the objects of the Act; the principal object being to ensure the safety and protection of the community. It is appropriate that the Court examine all relevant material bearing upon the making of that judgment, which must, in my view, involve at least an examination of the very material that was before the Court in the sentencing of the defendant (and his appeal for sentence).

19. [73]

    The parties were directed to agree to a timetable for the viewing of the videotapes. Short minutes of order were filed in Court setting out a draft timetable for viewing by the Court and the parties. (Counsel for the defendant did not seek an order permitting the defendant an opportunity to view the videotapes.)

20. [74]

    During the course of proceedings, the Court intimated that an application seeking the videotapes to be viewed by the experts would be allowed. However, after cross-examination of Drs Ellis and O’Dea, no such application was pursued. Dr O’Dea opined, having read the “transcripts” of the videotapes, that there was no deficiency in his report or opinion despite not viewing the videotapes.

21. [75]

    Orders were made fixing the timetable as proposed in the short minutes of order.

22. [76]

    In that result, the orders of Hock DCJ were varied in the following terms:

23. [77]

    The Court has closely viewed the videotapes. With respect to Tapes 2 and 3, the Court accepts the conclusions of both Hock DCJ and the Court of Criminal Appeal, as to the nature and criminality of the offences. The severity and grossness of the defendant’s conduct is not disputed on the written material before the Court. However, the depravity of the defendant’s conduct is, in my view, best understood within the context of the visual narrative made and controlled by his hand. The defendant’s meticulous degradation of V1, in my view, is relevant to an assessment of not only the risk of re-offending but the type and nature of the offences which may be committed absent supervision.

24. [78]

    The Court also viewed Tape 1, which is also graphic, but its implications with respect to V2 requires separate consideration.

25. [79]

    In respect of the V2 evidence, the State contended that the Court should adopt the approach of Adamson J. At the preliminary hearing, her Honour limited evidence, with respect to V2, to the likelihood of the defendant’s re-offending. Counsel for the State submitted:

26. [80]

    Counsel for the defendant referred to the opinion of Dr Ellis with respect to the V2 evidence. Dr Ellis opined, “if the allegations brought by [V2] are considered accurate then this arousal pattern is likely to be prolonged and chronic”. In that light, counsel for the defendant conceded:

27. [81]

    The State correctly submitted, in my view, the Court is not in a position to make a finding of fact in relation to the untested allegations concerning V2, or, in that respect, draw conclusions of that kind from the viewing of Tape 1. The V2 evidence may only establish a complaint was made, with respect to a sexual offence, and to that end, it is limited to the defendant’s risk of re-offending. Thus, whilst the images on Tape 1 may appear to exhibit a similar level of degradation of V2 by the defendant, as that viewed in Tapes 2 and 3, its impact must be limited to the likelihood of, as Dr Ellis put it, the arousal pattern being prolonged or the risk of re-offending in that sense, being higher. The viewing of Tape 1 was applicable to the assessment in that respect and for the purposes of making the evaluative judgment of the nature referred to in [72] above. In my view, Tape 1 is only demonstrative of the risk of re-offending, in that sense, as conceded by the defendant.

28. [82]

    The victim statement was admitted into evidence pursuant to s 21A of the Act (the person who made the statement was not expressly identified in the course of proceedings and will hereinafter be referred to as “the victim”). I will briefly summarise my reasons, in that respect, as to rulings on admissibility and weight.

29. [83]

    The State submitted that the victim met the criteria of “victim” as defined under s 21A(8). This was supported by the oral testimony of Ms Viney which confirmed the victim had been on the Victim’s Registry since 20 August 2013. The defendant did not object to this testimony. Counsel for the defendant also drew the inference that the victim, in order to meet the threshold of the provision, was “a victim of an offence committed by the offender for which the offender is currently serving, or most recently served, a sentence of imprisonment”, namely, V1: s 21A(8). It was left to the Court to determine if the threshold was satisfied. However, it was contended that in the circumstances of an unsighted and “unsigned” victim statement, the weight attributed to the document should be “significantly reduced”.

30. [84]

    In respect of weight, the State conceded: “there is little weight to be had, in terms of any risk of future offending; the State will be relying on all of the other evidence that the defendant has had the opportunity to review and make submissions in relation to”. To that end, the State submitted, “The purpose behind section 21A, in a sense, is to give the victim a voice in the proceedings and give the opportunity to have before the court the impact, some impact, from the perspective of the victim before the court”. It was submitted that the victim statement does not bear upon the Court’s assessment under s 9 of the Act except in a “broad” sense, namely, “the vulnerability and the risk to the community and the protection of the community; part of that assessment of risk is the harm that's been done to individual victims but it is, in my submission, that the State does not need to [otherwise] rely on and won't be relying on the contents of that document”.

31. [85]

    Further, the State advised that the victim “consents to that document going to the legal representatives of the defendant, but not the defendant”. By withholding consent, this Court should attach little weight to the statement: s 21A(7)(a).

32. [86]

    In light of the victim statement, it was determined that the substance of the statement, even in redacted form, could not be disclosed to the legal representatives of the defendant without identification of the person who made the statement: s 21A(7)(b). The Court ruled “it will be available to no person other than the Court and the legal representatives of the State”. In the result, very little weight may be attached to it.

General Factual Background

1. [87]

   The defendant is a 44 year old male who was born on 9 November 1972.

2. [88]

   The Parker report set out the relevant personal and psychosocial background of the defendant as follows:

3. [89]

   There is little specific documented detail in relation to any of the defendant's long term relationships (although there was a notation made by a psychologist in the defendant’s CSNSW Case Management file and Offender Integrated Management System (hereinafter referred to as “the OIMS case notes”) that the defendant has a 15 year old son and 23 year old daughter).

4. [90]

   From an employment perspective the offender is reported as last working in 2000 at which time he was injured in a forklift accident. Issues relating to misuse of his prescribed pain management medication have been raised.

Criminal Offending

1. [91]

   The defendant’s criminal history consists of a mixture of violent, sexual, and other offences dating back to 1987. Details of the defendant's criminal history are recorded in the following documents:

   1. (1)

      Criminal History - Bail Report document;

   2. (2)

      Inmate Profile document; and

   3. (3)

      Conviction, Sentences and Appeals document.

2. [92]

   The defendant was first brought before the Children's Court at about 13 years of age. The defendant’s prior convictions include, inter alia, stealing, break enter and steal, assault, driving offences, and trespass.

3. [93]

   In 1994 the defendant, who was 22 years old at the time, began a relationship with V1, who was then 18. Adamson J observed the following at the preliminary hearing (at [20]-[21]):

4. [94]

   In 1996, the defendant was charged with offences of demand property with menaces, assault occasioning actual bodily harm and kidnapping. He was found not guilty by verdict for the assault and kidnapping charges, and received a Community Service Order (“CSO”), without conditions, for a period of 250 hours, for the demand property with menaces charge. The CSO was breached and revoked, and a Home Detention Order (“HDO”) was made in its place. The HDO was also breached and revoked. The defendant ultimately received a sentence of imprisonment for a period of 5 months and 2 days.

5. [95]

   The details of the defendant’s criminal offending, with respect to the offences, are discussed above at [8]-[19]. See also State of NSW v French at [19]-[32] (per Adamson J).

Parole

1. [96]

   The non-parole period for the offences expired on 9 April 2013. A pre-release report was prepared on 22 January 2013 by Wagga Wagga Probation and Parole Service. The report did not recommend release to conditional liberty. It was recommended that the defendant complete the Custody-Based Intensive Treatment program (“the CUBIT program”) prior to further parole consideration.

2. [97]

   On 14 February 2013, NSW State Parole Authority released its decision not to release the defendant on parole. The primary reason and “critical issue” being, the defendant “needs to address his sexually offending behaviour through therapeutic program participation in custody”. Until such time, the NSW State Parole Authority did not believe the defendant’s release to parole was appropriate.

3. [98]

   An “Anniversary” pre-release report was prepared on 21 January 2014 by Long Bay Parole Unit. The report noted that the defendant’s “attitude is yet to show significant change” since the pre-release report dated 22 January 2013. However, despite incurring numerous institutional misconducts since that report, it was recorded that the defendant’s behaviour appeared to be improving. It concluded that until the defendant “adequately addressed his offending behaviour through completion of the CUBIT program his release to parole is not recommended”.

4. [99]

   The defendant was initially released on parole on 16 July 2014, at which time he resided with his grandmother in Wollongong.

5. [100]

   Following a period of approximately one week after release the defendant was referred to a local GP for a consultation and possible medication as he stated he was having problems with sleeping, anxiety and depression. He was also referred to Forensic Psychology Service (“FPS”) for intervention with respect to his offending behaviour, and a further referral pending to see a generalist counsellor to assist him.

6. [101]

   During this parole period, the defendant’s behaviour deteriorated to a stage where, as of 4 August 2014, his grandmother repeatedly contacted the Probation and Parole Service with instability issues of the defendant, namely, drinking heavily and verbal abuse. There were also concerns identified by the police on 11 August 2014. The police called Barney King, Probation and Parole Officer at Wollongong Community Corrections, to advise that they had reports from a local GP that the defendant could be “doctor shopping” for medication. There were also further reports from the police that the defendant was spoken to in regards to being an intoxicated person on three separate occasions.

7. [102]

   Further reports were obtained from FPS that the defendant, whilst attending group sessions, was drug affected. A report from the defendant’s GP recorded concerns that the defendant had spoken to her about harming himself and/or others.

8. [103]

   On 22 August 2014, the defendant was permitted to visit and stay a few nights with his father in Cabramatta. This was allowed due to the increasing conflict and instability at his accommodation with his grandmother. The purpose of the visit was to ascertain any potential accommodation options. He was directed to return on 26 August 2014 following his FPS appointment.

9. [104]

   On 25 August 2014, the defendant contacted Probation and Parole Service to request a longer stay at his father’s place as he had run out of money. The defendant was allowed two further days, at which time he was to receive his next Centrelink benefit.

10. [105]

    On 28 August 2014 the defendant advised Probation and Parole Service that he had developed a medical condition and was “unfit to travel due to some swelling of his legs”. The diagnosis was confirmed by Cabramatta medical practice. This occurrence raised concern. A Community Corrections Officer from the Fairfield District Office was requested to undertake a home visit on 29 August 2014. Upon their arrival, there was no one home.

11. [106]

    On 1 September 2014, the defendant contacted the Probation and Parole Service to advise that there had been some incidents over the weekend involving police. He also added that he was in the process of sorting the issue out and was unable to report until “a little later in the week”. In fact, the defendant was charged with assault occasioning actual bodily harm and stalk/intimidate with intent to cause fear or physical harm (domestic). It came to light that the offence had been committed against his father on 24 August 2017. He was also alleged to be in breach of his parole, namely, conditions 1, 2, 3, 7a and 14. Shortly after his arrest, the defendant’s father withdrew the complaint. (On 1 December 2014, at the Liverpool Local Court, the charges brought by the complaint of his father were dismissed.)

12. [107]

    On 3 September 2014, a Breach of Parole report was prepared by Mr King and endorsed by Leah Hawkins, A/Unit Leader at Wollongong Community Corrections. Mr King recommended that the defendant’s parole should be revoked as of the day of the assault.

13. [108]

    On 5 September 2014, the State Parole Authority found the defendant to be in breach of his parole. His parole was revoked and the defendant was ordered to serve out the balance of the sentence for the offences in custody (2 years, 7 months and 1 day) commencing from 7 September 2014.

14. [109]

    On 18 February 2016 the defendant was released on parole and placed in the Community Offender Support Program (“COSP”), which included temporary residence at the Nunyara COSP centre. There was no other suitable accommodation available. The defendant’s behaviour in the program was described as “difficult” and included verbal outbursts. Christopher Rolleston, Community Corrections Officer, in a report dated 24 March 2016, made the following observation:

15. [110]

    As a result of his behaviour, the defendant was given a two week eviction notice on 23 March 2016. That same day he was found unconscious by the police, apparently under the influence of some substance. His parole was revoked on 24 March 2016. He was to serve the balance of his sentence in custody.

Interim Supervision Order

1. [111]

   The defendant’s sentence for the offences expired on 23 April 2017 and he was released to the community under an interim supervision order. He resided at Providential Homes Mt Druitt from 23 April 2017 up until his arrest on 23 June 2017. The defendant’s DSO at this time was Ms Kirkward. The following summary is primarily derived from the Ms Kirkward’s record of the defendant’s performance under supervision, deposed in her affidavit affirmed 30 May 2017.

2. [112]

   Providential Homes is a Christian non-denominational not for profit organisation which provides transitional and supported accommodation. Transitional housing is subsidised housing, based on the guest’s “affordability”, and it used as a stepping-stone to longer-term housing, helping participants in the program to source their own private rental accommodation. Participants are provided support and guidance in seeking rental properties, mentored in how to keep their own properties and given follow up assistance once they have moved into their new homes.

3. [113]

   The defendant described the circumstances of his living arrangement to Dr O’Dea. The house was overseen by Pastor Warren and consisted of 5 bedrooms and a granny flat. He recalled three people, including himself, resided in separate bedrooms, and noted that “others come and go”.

4. [114]

   The defendant’s accommodation was temporary, up to a maximum of six months.

5. [115]

   From about 10 May 2017, the defendant was made a caretaker for Providential Homes. This unpaid role required the defendant to complete basic maintenance tasks and assist other residents with issues that arose in the absence of staff.

6. [116]

   On 19 May 2017, the defendant disclosed he had been communicating via telephone with a female. As a result of intelligence checks, a verbal direction was issued for the defendant to cease contact with that female.

7. [117]

   On 24 May 2017, a search of the defendant's phone revealed:

   1. (1)

      explicit photographs and illustrations of adult female persons, depicting bondage activities and females in lewd and suggestive poses;

   2. (2)

      contact details of two known sex offenders; and

   3. (3)

      use of an active Facebook account.

8. [118]

   Further directions were issued in relation to those occurrences.

9. [119]

   On 23 June 2017, the defendant was arrested by the Extended Supervision Order Investigations Team (NSW Police) and charged with one count of “Fail to Comply with Extended Supervision Order” (discussed above at [7]). The defendant was refused bail and remained in custody as at the date of final submissions.

Behaviour in Custody

1. [120]

   The State submitted that the defendant's response to custodial supervision was generally “challenging”. This description was supported by the Inmate Profile Document compiled by CSNSW, which recorded 33 institutional misconduct offences. CSNSW also recorded “it is of concern that [the defendant] has been subject to disciplinary action on six occasions in the past 12 months for offences that include Refuse Fail Drug Sample, Disobey Direction Create Possess Prohibited Goods and Fight or Other Physical Combat”.

Reports of Court Appointed Experts

1. [121]

   The defendant was examined by Dr Ellis on 24 April 2017 for a period of two hours. Dr Ellis issued a report dated 7 May 2017.

2. [122]

   Dr Ellis opined that the defendant suffered from sexual sadism disorder, substance use disorder, and personality disorder (a mixture of antisocial, borderline and paranoid). He further suggested the defendant may suffer from some mild cognitive problems and noted that the defendant reported symptoms of depression and panic.

3. [123]

   Dr Ellis formed the view that clinical considerations regarding risk included deviant sexual arousal, substance use and personality disorder as well as the treatment setting. In particular, deviant sexual arousal was consistently identified as the most prominent risk factor for sexual re-offence. In this same context, Dr Ellis opined:

4. [124]

   Dr Ellis noted that anti-libidinal medication was “the best treatment to address deviant arousal”. He also opined that behavioural techniques may reduce deviant arousal.

5. [125]

   Dr Ellis reported that antisocial personality orientation was another factor consistently identified with sexual re-offence, as was substance use and mental disorders such as depression, psychosis and panic. In respect of the defendant’s diagnosis of antisocial personality disorder, Dr Ellis opined:

6. [126]

   In relation to the defendant’s diagnoses of substance use and mental disorders, respectively, Dr Ellis opined that they are “modestly correlated with repeat sexual offending”. The former “may serve to disinhibit underlying sexual arousal towards objectification and humiliation of women”, whereas the latter, if untreated, may result in negative mood states and psychotic symptoms that “may impair judgment and increase impulsivity”.

7. [127]

   Dr Ellis also had regard to the defendant’s participation in a group sex offender treatment program in custody. He opined:

8. [128]

   Specifically, in terms of risk assessment, Dr Ellis made the following observation:

9. [129]

   Overall, in light of the above assessment, Dr Ellis considered the defendant to "fall into a group of persons with a risk for serious sexual offending that is statistically moderate-high in frequency, of a type with serious consequence, and greater than the theoretical average offender".

10. [130]

    Dr Ellis was of the view the defendant would require significant monitoring when in the community, and further noted that "this will need to be vigilant as he could engage in deceitful behaviour", and further noted that if treated with anti-libidinal medication, then further reduction in risk was likely.

11. [131]

    Dr Ellis reviewed the risk management plan set out in the Risk Management Report provided by Cornelius Van Ryn, Senior Community Corrections Officer (discussed below at [194] and following), and stated that "all of these conditions are considered necessary and desirable from a clinical point of view in managing the present risk". He stated that an extended supervision order for a period of five years was considered reasonable.

12. [132]

    Dr Ellis was also cross-examined with respect to the V2 evidence:

13. [133]

    Dr Ellis provided his opinion with respect to the defendant’s limited insight in relation to his offending:

14. [134]

    As to the defendant’s prospects for rehabilitation, Dr Ellis identified the following indicia for successful integration into the community: secure stable accommodation, regular routine, employment, education, other pro-social activities and the ability to interact with a supportive social group. Dr Ellis opined, “they would all be positive things for longer term risk management and rehabilitation”. Dr Ellis also agreed and recommended that drug and alcohol treatment as well as psychological treatment of some kind (such as FPS) should be undertaken to assist with integration into the community.

15. [135]

    The defendant was examined by Dr O'Dea on 8 and 11 May 2017 for a period of about three hours. He provided a report dated 18 May 2017.

16. [136]

    Dr O'Dea summarised the defendant’s psychiatric status as follows:

17. [137]

    In this context, Dr O'Dea noted that the best predictors of future sex offending are past sex offending and the presence of significant sexual deviance, particularly in the context of substance use disorder and personality disorder, as in the defendant's case.

18. [138]

    In relation to the issue of risk, Dr O'Dea opined:

19. [139]

    He noted increased risk if substance abuse were to continue, and recommended a consideration of the judicious use of anti-libidinal medication.

20. [140]

    Dr O’Dea emphasised the need for the defendant “to remain totally abstinent from alcohol, cannabis, and other illicit drug use” as well as undergoing long term psychiatric and/or psychological treatment “in order to manage and minimise his risk of engaging in further violent and sex offending behaviour in the community in the long term, including committing a further serious sex offence, as defined in [the Act]”.

21. [141]

    From a psychiatric risk management perspective, Dr O'Dea was of the view any appropriate risk management program implemented should be long term and at least five years duration.

22. [142]

    In light of the above assessment and after review of the relevant risk assessment tools (discussed under the next heading) Dr O’Dea opined:

23. [143]

    Dr O’Dea also observed, in the same context, that it is “not possible, or clinically appropriate, from a psychiatric perspective, to place a percentage [as to the] likelihood of Mr French committing a further ‘serious sex offence’”. However, to that end, Dr O’Dea opined, “the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in ‘Tillman v Attorney General for New South Wales [2007] NSWCA 327’”.

24. [144]

    The cross-examination of Dr O’Dea was primarily limited to two considerations: the duration of the order and the conditions proposed with the order. The expert also gave his opinion with respect to the V2 evidence and its potential impact upon his report.

25. [145]

    Dr O’Dea, with respect to the videotapes, opined:

26. [146]

    In both sessions with Drs Ellis and O’Dea, respectively, when expressing his distaste for either pornography or masturbation, the defendant utilised the following analogy, “it’s not my cup of tea … if you’re hungry, you don’t go and see someone eat a steak at a banquet”. In respect of this comment, Dr Ellis noted “that [Mr French] used the same phrase with me as with other clinicians years ago”.

Psychologist Assessment by Registered Psychologist: Dr Parker

1. [147]

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

2. [148]

   The defendant participated in an 80 minute interview at Long Bay Correctional Centre with Dr Parker on 30 August 2016. Dr Parker reported that the defendant consented to the interview and appeared to have good grasp of the purpose of the assessment. He further stated that the defendant was cooperative with the interview and appeared to make genuine efforts to answer all questions honestly.

3. [149]

   In addition to Dr Parker’s interview with the defendant, his assessment was informed by the following material:

   1. (1)

      The OIMS case notes;

   2. (2)

      The defendant’s CSNSW Psychology Files;

   3. (3)

      NSW Police Service’s Criminal History;

   4. (4)

      Psychiatric Report (Dr Samad, dated 22 November 2001);

   5. (5)

      Psychological Report (Ms Duffy, dated 16 November 2004);

   6. (6)

      Psychological Report (Ms Britton, dated 16 November 2004);

   7. (7)

      Psychiatric Report (Dr Westmore, dated 4 January 2005); and

   8. (8)

      The Custody-Based Intensive Treatment program Treatment Report (Ms Tamara Sweller, dated 13 June 2014) (hereinafter referred to as “the CUBIT report”).

4. [150]

   The Parker report provided a summary of the defendant's psychiatric history and current status as follows:

5. [151]

   By way of background, I will briefly turn to the opinion of Dr Westmore. Dr Westmore had assessed the defendant in the months before the sentencing hearing for the offences. At that time, he diagnosed the defendant with conduct disorder arising in adulthood; chronic pain arising from a general medical condition; polysubstance abuse; alcohol abuse (in remission); and questionable: drug induced psychosis (in remission); and depression. He further noted that the defendant may have some antisocial personality traits, however that extended contact would be necessary to confirm or exclude that opinion.

6. [152]

   Dr Parker recorded the conclusion of Dr Westmore as follows:

Risk Assessment

1. [153]

   Dr Parker applied various types of rating scales to predict the risk of the defendant engaging in further sex offending behaviours in the community in the long term, namely, Level of Service Inventory - Revised (LSI-R), Static Risk Factors (Static-99R) and Dynamic Risk Factors: STABLE-2007. The results of each assessment are discussed in turn below.

2. [154]

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

3. [155]

   The records indicated this instrument was administered to the defendant on 12 August 2011. He scored 44 (out of a possible 54), which placed him in the “high risk range”. According to CSNSW data, 79% of offenders who were assessed as high re-offended and were returned to CSNSW within two years.

4. [156]

   Dr Parker noted that the ability of LSI-R to predict sexual re-offending ranged from acceptable levels to unpredictive. However, he opined that, regardless of its “predictive ability”, the actuarial risk instrument is recommended to be “considered in conjunction with other validated risk assessment measures when making community supervision decisions”.

5. [157]

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

6. [158]

   The defendant's score on the Static-99R was 3, which placed him in the low/medium risk category relative to other male sexual offenders. In light of that result, Dr Parker stated: “Taking into account that about 17% of sex offenders shared the same score as Mr French, the percentile means that roughly 57% of offenders scored lower than Mr French, and roughly 26% scored higher”.

7. [159]

   Dr Parker observed, “[t]he recidivism rate of individuals convicted/charged with sexual offences with the same score as Mr French would be expected to be 1.4 times higher than the ‘typical’ sexual offender”.

8. [160]

   Dr O’Dea opined that “caution should be used in relying on single actuarial risk assessment tools, such as the Static 99 or Static-99R, in assessing risk for the purpose of treatment or supervision”. Further, he opined that “[l]imitations in the use of the Static-99 are widely discussed and accepted”. His opinion, with respect to the limitations is extracted as follows:

9. [161]

   The same limitations were set out in the Parker report. Dr Parker opined:

10. [162]

    The STABLE-2007 is an actuarial tool developed to assist clinicians in identifying “stable dynamic risk factors for sexual re-offending”. These factors are intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation.

11. [163]

    These “stable risk factors” are persistent characteristics that remain relatively stable over time, but are amendable to change through “effortful intervention”, such as treatment and supervision. Dr Parker reported that such factors are specifically addressed within the program structure of CSNSW Sex Offender Programs.

12. [164]

    Dr Parker recorded that the defendant's total score on the STABLE-2007 was 20 (out of a possible 24), which is classified as “High”.

13. [165]

    Dr Parker reported that the Static-99R can be combined with the STABLE-2007 to generate an “overall risk level”. The combination of both scores, in the case of the defendant, yielded a “medium overall risk level”. Dr Parker opined that “[t]his combined risk rating may be useful in determining the level of supervision or intervention required by Mr French”.

14. [166]

    Dr Parker also introduced consideration of “criminogenic needs”. In contrast to static risk factors, which determine the level of concern, criminogenic needs are “dynamic risk factors” and are targets for change by assisting with identification of what needs to change to reduce that level of concern.

15. [167]

    Dr Parker identified the following criminogenic needs relevant to his assessment of the defendant:

    1. (1)

       Attitudes (entitlement, dangerous world, women as sex objects, male sex drive is uncontrollable, women are unknowable/dangerous);

    2. (2)

       Self-regulation;

    3. (3)

       Intimacy deficits; and

    4. (4)

       Substance abuse.

16. [168]

    Dr Parker made the following observations in relation to the observed intimacy deficits of the defendant. Dr Parker stated that, whilst the defendant was able to sustain a long term relationship, the relationship appeared to have been dysfunctional and characterised by substance abuse on the part of both parties. Further, the defendant appeared to have gradually alienated all his relatives and at the time of the interview had no suitable accommodation available for when he was to be released. His behaviours in the COSP, where he "wore out his welcome" appeared to Dr Parker to be an accurate representation of what happens in the defendant's relationships generally.

17. [169]

    Dr Parker also noted, with respect to his history of substance abuse, the following accounts by the defendant:

    1. (1)

       From the age of 14 to 20 he drank on a heavy regular basis. He started smoking cannabis at the age of 13 before moving onto other drugs such as amphetamines, ecstasy, LSD, cocaine, and MDA;

    2. (2)

       He never used the drugs intravenously and he had never been detoxified or rehabilitated previously from illicit drugs;

    3. (3)

       He had smoked marijuana on weekends and previously experimented with ecstasy, amphetamines and cocaine, prior to his relationship with V1; and

    4. (4)

       V1 was also a user of drugs and that they would use drugs together. He stated that, when using those drugs, that he would stop taking his prescribed medication and that he "would then do strange things that he could not remember later…”.

18. [170]

    Dr Parker concluded:

19. [171]

    By comparison, Dr O’Dea considered Dr Parker’s report and concluded, “from a full clinical psychiatric risk management perspective, and as judged by various actuarial and more so called dynamic risk assessment instruments [in addition to the Static-99R], Mr French’s risk in engaging in further sex offending behaviours in the community in the long term would be considered significantly high and appropriate for specific psychiatric treatment [as outlined in Dr O’Dea’s report]”.

Other Reports by Psychiatrists and Psychologists

1. [172]

   Over the years the defendant was assessed by a number of health professionals whose reports document long standing mental health issues and were in evidence. The majority of the reports related to the offences and were prepared whilst the defendant was in custody, save for the reports of Dr Christopher Canaris, Dr Abdus Samad and Dr Susan Hayes, which related to prior court proceedings and charges (for which the defendant was either on bail or not otherwise in custody). The reports were as follows:

   1. (1)

      Psychiatrists:

   2. (2)

      Psychologists:

2. [173]

   For the most part the reports were treated as uncontentious. The report of Dr Chew was identified as “a significant report” by the State, given its close proximity to the proceedings before this Court and its contradictory position with respect to the opinions of the court appointed experts, particularly in relation to their respective diagnoses of “paraphilic disorder, sexual sadism disorder” and assessment of risk.

3. [174]

   Dr Chew rejected a diagnosis of sexual deviance, in contrast to the court appointed experts, and classified the risk posed by the defendant as “medium low”. I extract the contentious passage:

4. [175]

   The State submitted that the Court should give the report of Dr Chew “very little weight”. It was contended that “Dr Chew has relied on what it is the [defendant] told him and has drawn his opinions and conclusions from that” and further, “that what he was told was either incorrect or where it is proved to the contrary elsewhere or in other ways misleading”. In support of this contention counsel for the State raised several examples, in oral submissions, of “incorrect” or otherwise “misleading” statements, in respect of the defendant’s history.

5. [176]

   The first example, extracted from Dr Chew’s report, was as follows:

6. [177]

   The State relied, in this respect, upon contrary statements recorded in FPS case notes in which the defendant displayed a contrary attitude to COSP: “I don't need this, this is not for me, I don't want to do this”. The FPS case notes also record the defendant “wanting to meet up with women and looking forward to not being in the COSP any longer”.

7. [178]

   In relation to the defendant’s account of the offences, Dr Chew reported:

8. [179]

   Counsel for the State contended that the above extract is indicative that the defendant’s “approach to the index offences has not changed over time” and is a wrong summary of the offences. I agree.

9. [180]

   Further, in relation to the defendant’s characterisation of his sexual relationships and interests, Dr Chew reported the following:

10. [181]

    The State contended, that the aforementioned extract demonstrates that the defendant misled Dr Chew and, when read in light of the evidence before the Court, is further evidence that the defendant, particularly in terms of giving an account of his own history, is unreliable. In relation to the defendant’s sexual and relationship history, the State relied upon the defendant’s contrary account, with respect to alleged “vanilla” interests, in the report provided by Ms Britton (“the Britton report”), which was also cited in the Parker report.

11. [182]

    The Britton report recorded the following:

12. [183]

    Further, the CUBIT report recorded:

13. [184]

    The above extracts, as to the defendant’s sexual history, were also supported by the following extract from Dr Ellis’ report:

14. [185]

    In respect of the contention of weight to be attached to the report of Dr Chew, counsel for the State contended that limited weight should be attached to the opinions of Dr Chew and greater weight should be given to the reports provided by the court appointed experts (discussed under the previous heading). The fundamental difference was that, Drs Ellis and O’Dea “had all of the information and had independent sources of Mr French's sexual history and, having had the advantage of that, both of them have diagnosed him with a sexual sadism disorder and sexual deviance disorders”. Further, no submission was made by the defendant that the diagnoses of Drs Ellis and O’Dea were wrong.

15. [186]

    Counsel for the defendant conceded that the evidence before the Court, as identified by the Crown, confirmed (albeit in colloquial terms) the defendant’s sexual activity included “hundreds” of sexual encounters. It was also conceded that, “in the light of the reports of Drs Ellis and O'Dea then limited weight would be placed on what was before Dr Chew”. However, counsel for the defendant submitted, with respect to the report of Dr Chew, that the Court should not draw “adverse inferences against [the defendant]”. Counsel for the defendant contended that Dr Chew’s report and its conclusions therein could not support the finding that the defendant was being “dishonest” or “not being frank with Dr Chew” and submitted that the Court should have consideration to Dr Chew's report “in the context of why it was written”.

16. [187]

    Nonetheless, counsel for the defendant conceded, “I accept the ultimate conclusion of my friend as regards to its [Dr Chew’s report] place in these proceedings and your Honour's determination”.

17. [188]

    In my view, the report of Dr Chew is predicated upon an inaccurate or misleading history for the reasons advanced by the State. Given the countervailing reports of Drs Ellis and O’Dea who had the full panoply of relevant background material (as well as an interview with the defendant), I consider very little weight can be attached to the report of Dr Chew. I consider, rather, that substantial weight should be attached to the opinions of Drs Ellis and O’Dea who, it might be added, gave credible evidence under cross-examination in these proceedings.

18. [189]

    In a similar fashion, the State also contended that little weight should be attached to the first report of Ms Duffy (hereinafter referred to as “the 2004 report”).

19. [190]

    The State contended that “to the extent that any positive attributes set out in the first report are relied on by the defendant here today, it is my submission that anything positive within Ms Duffy's report ought to be given little weight and ought to be approached very cautiously”. In this respect, the State relied upon Ms Duffy’s refinement of opinion in the second report, after she was afforded the opportunity to view the videotapes.

20. [191]

    After viewing the videotapes Ms Duffy prepared a second report. She opined: "It is thought that his acting out of a fantasy of control and humiliation was seemingly at variance with the dynamics he described to me in his long relationship with V1". The State noted that, despite the inferences to be drawn from this opinion, Ms Duffy did not expressly recant any conclusion reached in her first report. Nonetheless, as with the interview with Dr Chew, the State contended that the defendant misled Ms Duffy and that fact should impact upon the weight of her evidence. In respect of both the 2004 report and Dr Chew’s report the State submitted: “that any of those earlier reports ought to be given very little weight and for the reasons I set out before, the offender simply wasn't being truthful. That is clear from the [2004] report of Anita Duffy and the factual basis of the opinion of Dr Chew that I took your Honour to”.

21. [192]

    Counsel for the defendant did not address the State’s contentions raised in relation to the 2004 report. By the final day of hearing it was confirmed, the defendant did not rely, in any written or oral submissions, upon either of the Duffy reports. The determination of weight was left to the Court.

22. [193]

    I consider that a similar conclusion should be reached, with respect to Ms Duffy, as to the report of Dr Chew, albeit that the flawed premises in the first report were largely identified in Ms Duffy’s second report. There is no proper basis, in my view, to give any preference the 2004 report over those of Drs Ellis and O’Dea to the extent different opinions are expressed by Drs Ellis and O’Dea which identify a broader and heightened set of risk factors regarding the defendant.

Response from CSNSW as to Management in the Community

1. [194]

   A Risk Management Report was provided by Cornelius Van Ryn, Senior Community Corrections Officer, dated 15 November 2016, in order to satisfy the requirements of s 9(3)(dl) of the Act (“the Ryn report”).

2. [195]

   The Ryn report comprised of a review of the defendant's past, particularly in relation to his prior management by Community Corrections, as well as setting out, inter alia, his post release plans and a proposed risk management plan.

3. [196]

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

4. [197]

   In terms of potential community support on release the Ryn report recorded:

5. [198]

   The risk management plan outlined in the Ryn report was informed by, inter alia, the risk factors identified by Dr Parker, Probation and Parole Services reports, the remarks on sentence, police facts and criminal history, CSNSW records and interviews with the defendant.

6. [199]

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

   1. (1)

      Interviews with the defendant;

   2. (2)

      Field visits;

   3. (3)

      Third party contacts;

   4. (4)

      Monitoring (including electronic monitoring), schedules and curfews;

   5. (5)

      Referral to CSNSW psychological services;

   6. (6)

      Referral to psychiatric services;

   7. (7)

      Referral to alcohol and other drug services;

   8. (8)

      Alcohol and other drug testing; and

   9. (9)

      Non-association and place restrictions.

7. [200]

   Each management strategy sought to manage and/or monitor four risks associated with the defendant, namely, attitudes, self-regulation, intimacy deficits and substance abuse.

8. [201]

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

Treatment and Rehabilitation Programs

1. [202]

   Getting SMART is a short (12 session) program for substance abusers, based on the SMART Recovery meetings. Once participants complete this program, it is anticipated they will go on to participate in SMART Recovery Meetings.

2. [203]

   The defendant completed the Getting SMART program in March 2012, and attended a number of SMART Recovery Meetings, together with Alcoholics Anonymous meetings.

3. [204]

   The defendant participated in the CUBIT program and completed it over a seven month period, between 9 October 2013 and 29 May 2014. The CUBIT program provides custody-based residential therapy for men who have sexually abused adults and/or children. It balances risk management with a strengths based approach to treatment for individuals with moderate to high risk and/or needs. It is facilitated in an open group format.

4. [205]

   As previously mentioned, the CUBIT report was prepared by Ms Sweller, Forensic Psychologist at Corrective Services. In addition to the defendant’s participation within the CUBIT community, Ms Sweller reviewed, inter alia, the defendant’s bail report, psychology file, pre-release reports and the sentencing remarks of Hock DCJ.

5. [206]

   Ms Sweller described the defendant's participation as "superficially cooperative" and noted that the defendant openly acknowledged he was doing the program to gain parole. She also recorded, “if [the defendant] made comments that he then realised might reflect unhelpful attitudes, he often attempted to reverse the comments or deny he meant them (eg, in relation to attitudes to women or use of violence)”.

6. [207]

   The CUBIT report more broadly sets out the examples of the defendant’s “unhelpful attitudes”. For example, in relation to the defendant’s reflection of his behaviour, Ms Sweller observed:

7. [208]

   In terms of institutional adjustment in general, the CUBIT report noted the defendant appeared to have had difficulty in adjusting to the institutional environment, and that he also had had difficulty in adjusting to the CUBIT environment, which was reflected through his hostility towards custodial staff and allegations of him engaging in verbal aggression towards CUBIT community members. At the time, the defendant foreshadowed that he would need to take time to readjust to life outside custody.

8. [209]

   Following treatment, the CUBIT report summarised:

9. [210]

   In citing some improvements demonstrated whilst in treatment, the CUBIT report also stated that it remained unknown whether the behavioural change reflected changes in the defendant’s attitudes or a greater ability to engage in behaviour that he knew would meet his needs. It was also noted that since treatment took place in a structured environment, it remained unknown whether the changes the defendant appeared to make, in relation to his attitudes and beliefs, would be transferred to his behaviour in the community.

10. [211]

    Ms Sweller also reported that at the end of the CUBIT program, the defendant received an institutional misconduct charge for hoarding an “excessive quantity of medication in his cell”. She opined: “[t]his charge suggests that although Mr French was motivated to superficially cooperate with those supervising him, his attitudes about rules continued to be unhelpful. This risk area [“cooperation with supervision”] remains relevant for Mr French”.

11. [212]

    The defendant’s opinion of the CUBIT program was recorded also in FPS case notes on 18 March 2016:

12. [213]

    In terms of the defendant’s level of participation in CUBIT, the defendant did not dispute the submissions advanced by the State, expressly leaving any determination, in that respect, to the Court.

13. [214]

    The defendant participated in the Community Maintenance program on completion of the CUBIT program and following his release to parole during 2014. At that time the FPS case notes indicated that the defendant had recognised (albeit “[w]ith significant prompting”) particular risk factors for his past offending, namely, drug use, relationship difficulties and poor coping strategies for managing anger. However, the defendant denied that any of those risk factors were current or required further work. Further FPS case notes, prior to his return to custody, also identified attendances where he slurred his words.

14. [215]

    Other FPS case notes, which included notes from the 2016 parole release, stated:

The State

1. [216]

   The submissions of the State identified three issues requiring resolution with respect to the application for an extended supervision order:

   1. (1)

      Is the Court satisfied the defendant is a "high risk sex offender", in that it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision (ss 4 and 5B(2));

   2. (2)

      If the Court determines the application by making an extended supervision order, what is the appropriate length of orders respectively; and

   3. (3)

      If the Court determines the application by making an extended supervision order, what are the appropriate conditions?

2. [217]

   The State submitted that the defendant posed an unacceptable risk of committing a serious sex offence if he is not kept under supervision. It was contended that the evidence before the Court established “the requisite high degree of probability”.

3. [218]

   It was submitted that a primary focus of the evaluative task included consideration of the likelihood of the defendant re-offending, as well as other factors that may suggest to the Court that the risk identified is unacceptable. The State divided its submissions between two categories: likelihood factors (personal to the defendant and external to the defendant) and other factors that may also contribute to a Court's assessment of whether a risk is unacceptable.

4. [219]

   The State submitted that the evidence established the defendant has a predisposition to carry out a serious sex offence and this predisposition goes to the likelihood that he will commit a further serious sex offence if not kept under supervision. The following considerations were noted by the State:

   1. (1)

      The defendant’s offending is longstanding and entrenched having commenced from the age of 13;

   2. (2)

      In the past the defendant has been diagnosed as suffering from a number of mental conditions which include: conduct disorder arising in adulthood; chronic pain arising from a general medical condition; polysubstance abuse; alcohol abuse (in remission); questionable: drug induced psychosis (in remission); and depression;

   3. (3)

      The defendant has been diagnosed as currently suffering from sexual sadism disorder (and more broadly paraphilic disorder and sexual deviance), substance use disorder, and personality disorder (antisocial, borderline and paranoid);

   4. (4)

      The defendant's conduct in custody has been described as "challenging";

   5. (5)

      Dr Ellis is of the view there is a moderate-high risk of the defendant sexually re-offending;

   6. (6)

      Dr O'Dea is of the view there is a significantly high degree of probability the defendant poses a significant risk of committing a serious sex offence in the long term, if not successfully supervised and monitored.

   7. (7)

      Dr Parker assessed the defendant as at high risk of committing further non-sexual offences and as at medium risk of committing further sexual offences;

   8. (8)

      Notwithstanding having participated in treatment programs, treatment professionals noted in the defendant’s lack of insight into his offending and a superficial response to treatment;

   9. (9)

      It is unknown whether any gains the defendant may have made in custody will be transferred to the community; and

   10. (10)

       The defendant had recognised, with prompting, particular risk factors from his past offending, however he denied that any of those risk factors were current or required further work.

5. [220]

   In addition to evidence, as to ongoing and personal disposition and this increased likelihood of the offender committing a further serious sex offence, it was submitted there are other factors, external to the offender, that may also contribute his likelihood to commit a further serious sex offence if not kept under supervision. These factors include:

   1. (1)

      Through periods of instability the offender has become homeless; and

   2. (2)

      The offender's family have withdrawn their support of the offender and has limited community support through friends and family.

6. [221]

   Further, it was submitted there are other factors present that go to supporting a finding the offender poses an unacceptable risk such that the safety and protection of the community cannot be ensured unless an order is made. These factors include:

   1. (1)

      The victim of the offences was subjected to many acts of degradation of the grossest kind;

   2. (2)

      The effect of being confronted with the videotape material had a devastating effect upon the victim;

   3. (3)

      The offence was carried out in great secrecy. It was therefore hard to detect and may never have been detected but for the subsequent complaint by V2; and

   4. (4)

      The harm caused by and gravity of the offences is great.

7. [222]

   The State contended that the “magnitude and gravity of the acts of degradation” perpetrated upon V1, over the period in which the offences occurred, satisfied the requisite high standard, that the risk posed by this defendant is unacceptable.

8. [223]

   Further, the defendant was recently diagnosed as suffering from sexual sadism disorder by the court appointed experts. These diagnoses were not challenged by counsel for the defendant. The State contended this was further evidence in support of the current, real and significant risk of re-offending by this offender.

The Defendant

1. [224]

   The defendant relied upon written submissions dated 11 June 2017, supplementary written submissions dated 5 July 2017 and oral submissions made on 7 July 2017. As to the extent the written submissions made reference to and/or relied upon earlier written submissions filed in relation to the preliminary hearing, counsel for the defendant, on the final day of hearing, confirmed that any reliance upon those written submissions was withdrawn.

2. [225]

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

   1. (1)

      The defendant opposed the making of an extended supervision order.

   2. (2)

      The defendant did not concede that he was a high risk sex offender. The evidence did not establish to the required standard that the defendant posed an unacceptable risk of committing a serious sexual offence.

   3. (3)

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

3. [226]

   The defendant made the following concessions in written submissions:

   1. (1)

      The defendant is a "sexual offender" as defined in s 4 of the Act.

   2. (2)

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

   3. (3)

      The application was made in time in accordance with s 6(2) of the Act.

4. [227]

   Whilst counsel for the defendant conceded that the “the defendant may be at a higher risk of offending generally”, it was contended that this was not “necessarily offending within the ambit of the Act”. In the same light, it was submitted: “whilst the defendant may be assessed as having a risk of committing a further sexual offence, this is not necessarily offending that falls within the ambit of a ‘serious sexual offence’ as required to activate the provisions of the Act”.

5. [228]

   To that end, counsel for the defendant also relied upon the fact that the offences “relate[d] to one single victim” (noting that the March 2003 Complaint was withdrawn). It was submitted, that whilst the reports from the two court appointed experts went some way towards suggesting the potential for re-offending, the evidence is not such that the Court would be satisfied to the standard of a high degree of probability that the risk is unacceptable.

6. [229]

   Reliance was also placed upon the observation of McCallum J in Donovan at [2]-[3]. Her Honour observed:

7. [230]

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

   1. (1)

      There has not been a uniform or consistent diagnosis of the defendant amongst the various psychological and psychiatric assessments and reports of the defendant before the Court;

   2. (2)

      Prior to the reports of the two court appointed experts the defendant had not been diagnosed with a paraphilia or sexual deviance disorder of any kind;

   3. (3)

      The only “sexual” offences on the defendant's record are those the subject of this application. There are no prior sexual offences on the defendant's criminal record;

   4. (4)

      The offence relates to one single victim; and

   5. (5)

      The V2 evidence contains untested allegations of some further offending or conduct of a sexual kind. It was submitted, prior to the rulings on such evidence, that caution, on the basis of limited relevance, should be exercised when considering it.

8. [231]

   The decision to make or refuse an application for detention or supervision order is discretionary. The application can be refused, even if the conditions are otherwise satisfied for finding the defendant was a high risk sex offender.

9. [232]

   If the Court is satisfied that the defendant is a high risk sexual offender, the defendant made the following submissions:

   1. (1)

      In the individual circumstances of this case, and in light of the relevant principles, it is submitted that the primary object of the Act is not undermined by declining to make extended supervision order for the duration that is presently sought or on the conditions presently sought.

   2. (2)

      It is submitted that the concerns raised by the State in the application can be appropriately, and effectively, addressed by an extended supervision order of shorter duration and on varied conditions. A shorter extended supervision order will extend to the defendant the further opportunity to be tested in the community whilst subject to a very strict regime of supervision.

   3. (3)

      The primary purpose of the Act should be balanced by tailoring an extended supervision order that encourages an offender to undertake rehabilitation. It is submitted that successful rehabilitation of the defendant promotes that purpose of ensuring the safety and protection of the community. Encouragement to continue rehabilitation and positive progression is important.

   4. (4)

      A close consideration of the conditions imposed is required in circumstances where a breach of any conditions attracts significant penalties.

High Risk Sex Offender

1. [233]

   Section 5B of the Act provides an offender is a “high risk sex offender” if the offender is a sex offender and this 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. [234]

   The question as to whether the defendant is a sex offender was answered affirmatively, with the concurrence of the defendant, earlier in this judgment. Further, in my view, the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision and is, therefore, a high risk sex offender for the purposes of s 5B(2) of the Act. I am satisfied that he does so to a high degree of probability. My reasons for coming to that conclusion are as follows.

3. [235]

   Notwithstanding the offences constituted the only sexual offences on the defendant’s criminal record and the offences related to a sole victim, V1, I nonetheless consider, on the evidence in these proceedings, it should be concluded that there is a real and substantial risk the defendant would commit a further serious sex offence if he is not kept under supervision. Further, the type and nature of such offence, that may be committed on such an occasion, is likely to be serious with the potential for severe consequences for victims, again, if the defendant is not kept under supervision. Thus, there is a real and appreciable risk to the safety of persons, in the absence of supervision, in the community, particularly as to women who are in a position of vulnerability even if in a domestic context.

4. [236]

   Those conclusions arise from the combination of the following factors when read in the light of the aforementioned discussion of considerations taken into account for the purposes of s 9 of the Act.

5. [237]

   The offences occurred over an extended period of time and in more than one location. The victim was subject to many acts of degradation which, when viewed (via Tapes 2 and 3), represented gross and severe acts of depravity. When the victim viewed the tapes it had a devastating effect on her; a predictable response given, as Dr Ellis described it, the associated intimidation, shame and loss of a sense of bodily integrity.

6. [238]

   Upon the conclusions reached earlier in this judgment, the psychiatric and psychological evidence strongly favoured the aforementioned conclusions.

7. [239]

   Both of the independent experts found the defendant suffered from a sexual sadism disorder and a personality disorder or general antisocial personality disorder with historical substance abuse (Dr O’Dea referred to paraphilic disorder and, in the course of discussion the appropriate duration for an extended supervision order Dr Ellis opined that “paraphilias are chronic, relapsing conditions”). Both psychiatrists considered the risks of sexual re-offence arose from the presence, in the defendant’s case, of sexual deviance or deviant sexual arousal.

8. [240]

   Dr Ellis considered the risk for serious sexual offending by the defendant to be statistically “moderate-high” in frequency. Dr O’Dea considered that the defendant had a significant risk of engaging in “further sex offending behaviours in the community in the long term” including committing further serous sex offences. Both of those assessments were based upon the defendant being unsupervised.

9. [241]

   I do not consider the opinion of Dr Parker, that the defendant is at a high risk of committing further non-sexual offences and at a medium risk of committing further sexual offences, may displace the opinions of the court appointed experts and, in any event, does nothing to undermine my ultimate conclusion under s 5B of the Act. (It may be noted that Dr Parker found the defendant scored in the high risk range for the STABLE-2007 test).

10. [242]

    Within the limits previously described, the evidence of the March 2003 complaint adds to the conclusion there is a risk of re-offending.

11. [243]

    Dr Ellis opined that any further serious sexual offending the defendant engaged in was likely to have serious consequences and that the likely victim would be a woman who was vulnerable and, on the evidence in this matter, may suffer intimidation, shame and a loss of bodily integrity.

12. [244]

    In terms of the period over which the risk may come to fruition, Dr O’Dea discussed the risk arising over the long term, if the defendant was not successfully supervised.

13. [245]

    Notwithstanding the defendant’s participation in treatment programs, the defendant displayed limited insight into his offending and was observed as displaying a “superficial” response to treatment. Dr O’Dea maintained the opinion that the defendant continued to display limited insight into his offending behaviours and limited remorse or contrition for his behaviour in relation to his criminal history.

14. [246]

    There were significant compliance issues both in custody (see above at [120]) and when released on parole (see examples at [101]-[102] and [109]-[110]). In relation to the offences, the defendant was released on parole on two separate occasions, and within 2 months of each commencement the defendant’s parole was revoked due to breaches. Further, in relation to his most recent release under an interim supervision order, again, within 2 months, the defendant was returned to custody due an alleged breach on the basis of a urinalysis.

15. [247]

    In relation to his most recent release, under an interim supervision order, I also note the observations of the defendant’s DSO. The affidavit of Ms Kirkwood had indicated progress, albeit with ongoing compliance issues (see above at [116]-[117]), whilst the defendant was housed at Providential Homes. She deposed the defendant had been cooperative in answering questions, regarding his conduct, and adhering to directions.

16. [248]

    However, there are factors external to the defendant which may contribute to the likelihood of him committing a further serious sex offence if not kept under supervision. The defendant experienced, upon release into the community, periods of instability and maintaining accommodation (even with family). Further, his family has since withdrawn support and the defendant has limited community support through friends and family.

Extended Supervision Order

1. [249]

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

   1. (1)

      the nature and gravity of the offences (see [77]);

   2. (2)

      the likelihood of re-offending (see [235]);

   3. (3)

      the potential type and nature of any offence committed in the event of re-offending and the potential for severe consequences for victims (see at [170]-[171] and [235]);

   4. (4)

      the opinion of the court appointed experts, based upon clinical assessments, as to the necessity for supervision (including appropriate conditions) and ongoing treatment of the defendant, if the defendant is released from custody (see [130]-[131] and [142]);

   5. (5)

      non-compliance and failures by the defendant whilst on parole and interim supervision orders (see [246]);

   6. (6)

      a superficial engagement by the defendant with the CUBIT program and an inadequate response to Community Maintenance (see [206]-[208] and [215]);

   7. (7)

      challenging behaviour in prison and risks associated with inadequate or unsuitable accommodation or employment arrangements (see [120], [134], [168] and [197]); and

   8. (8)

      risks occasioned by drug and alcohol use (see [138]-[140] and [169]-[170]).

2. [250]

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

Conditions

1. [251]

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

2. [252]

   The State submitted that the conditions sought to be imposed further the objects of the Act, namely, ensuring the safety and protection of the community, and encouraging offenders to undertake rehabilitation. Some of the conditions are aimed at specific risk posed by the defendant re-offending, with the balance being “necessary ancillary conditions” to the management of the risk posed by the defendant. It was contended that “the practical operation of the conditions is such that they work together as a suite to allow for the reasonable and practicable management of the defendant in the community”. I accept those submissions.

3. [253]

   In the event the Court was minded to grant the extended supervision order sought, the defendant advanced the following general submissions in its earlier written submissions with respect to the appropriateness of the conditions and the duration proposed by the State:

   1. (1)

      The Court should only make an order with conditions that are appropriate to further the objects of the Act and reduce the risk of further serious sexual offending. In this respect, the defendant relied upon the observations of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

   2. (2)

      The 54 conditions proposed are “somewhat generic/standard” and it was contended that they, “appear to have no particular application to this defendant”. In this respect, reliance was placed on State of New South Wales v Burns [2014] NSWSC 1014 at [59].

   3. (3)

      Conditions cannot be “unjustifiably onerous or simply punitive”: State of New South Wales v Green (final) [2013] NSWSC 1003. It was contended that 54 conditions meets the definition of onerous.

   4. (4)

      Given that it is a statutory offence to breach an order, there is a need for a proper basis to be demonstrated for the condition to be made: State of NSW v Ali [2010] NSWSC 1045 at [88].

4. [254]

   I do not consider the conditions sought by the State in this matter encroach on those principles. Where particular issues were raised there is, as will be discussed below, ample basis on the evidence to make the conditions proposed.

5. [255]

   The defendant challenged the appropriateness of particular conditions in Annexure A in his written submissions. The primary focus of the defendant’s contentions in this respect were:

   1. (1)

      Electronic monitoring and schedule of movements (conditions 4, 6, 10 and 15);

   2. (2)

      Employment, finance and education (conditions 18-23); and

   3. (3)

      Access to the internet and other electronic communication (conditions 35 and 38).

6. [256]

   It might be observed, however, that even though the aforementioned contested conditions, in particular electronic monitoring, featured predominantly in the course of evidence, namely the cross-examination of the court appointed experts, there was very little said in written and oral submissions beyond the bare objection listed in the preceding paragraph. That may be a feature of the fact, that the cross-examination of the experts did not, in my view, dissuade the court appointed experts in their views that the conditions proposed were important for the purposes of an extended supervision order.

7. [257]

   The State submitted that the purpose of electronic monitoring operates at two levels. First, it is directed at deterrence. It was contended that the defendant would be “less likely to go off and do his own thing” were he the subject of electronic monitoring. Secondly, in the event the defendant did breach the conditions of an extended supervision order “he is more likely to get caught or at least tracked down”. Further, the State relied upon evidence, namely the FPS case notes, which supported the characterisation of the defendant’s past behaviour of “dishonesty and unreliability”. In particular, the FPS case notes record the defendant wanting to meet up with women and looking forward to not being in the COSP any longer. The FPS case notes recorded:

8. [258]

   For the same reasons submitted in relation to electronic monitoring, the State stressed the need for a schedule. In this regard, the State again relied upon the defendant’s disclosures in the FPS case notes.

9. [259]

   In written submissions, counsel for the defendant contended that, generally, “it [was] not clear from the court appointed expert reports how the proposed conditions of the ESO would mitigate any risk”. Mitigation of risk, however, was specifically addressed by counsel for the defendant in her cross-examination of the experts as to electronic monitoring.

10. [260]

    In written submissions, counsel for the defendant also raised objection with conditions 6 and 15, which concerned the requirement of notice to change anything in his schedule of movements and the further requirement to surrender any passports held to the CSNSW, respectively.

11. [261]

    In cross-examination, counsel for the defendant questioned both Drs Ellis and O’Dea with respect to electronic monitoring. It was suggested that the defendant was primarily resistant to electronic monitoring (also referred to as “GPS monitoring”) due the perceived “stigma of being a child sex offender”.

12. [262]

    Dr Ellis was cross-examined as to the alternative of “human monitoring”:

13. [263]

    Dr Ellis subsequently added to his opinion:

14. [264]

    Dr Ellis also gave his opinion rejecting to the potential “hindrance” of electronic monitoring:

15. [265]

    Dr O’Dea confirmed that he was, broadly speaking, in agreement with the abovementioned testimony of Dr Ellis as to electronic monitoring (he was present in Court whilst the evidence was given by Dr Ellis), “that the electronic monitoring really is a correctional intervention and that it is not a psychiatric intervention per se”. He also opined, “I'm aware there [are] alternative[s] to electronic monitoring that perhaps don't provide the same level of monitoring. But all up I think there is some benefit in people having electronic monitoring”.

16. [266]

    In my view, when that evidence as to electronic monitoring taken together with the questions as to honesty and reliability raised by the State (see above at [257]), and the defendant’s previous behaviour on parole and under an interim supervision order (see above at [96]-[119]), the condition providing for electronic monitoring sought by the State is appropriate. The measure will enhance the safety to the community by guarding against or encouraging compliance and the avoidance of deceptive behaviour as well as improving the prospects of engagement with rehabilitation, thereby, reducing the risk of re-offending.

17. [267]

    The defendant’s submissions as to scheduling were minor. Similar factors to those discussed, with respect to electronic monitoring, are relevant to scheduling, including the connection between routine and rehabilitation as identified by Dr Ellis (see above at [134]).

18. [268]

    The State contended that the curfew condition is necessary and appropriate, and submitted, correctly in my view, that its form afforded the defendant flexibility. The relevant condition sets curfew between 9pm and 6am, with the caveat: “unless other arrangements are approved by the DSO". The State submitted, in this respect, that the Court ought to accept and expect that the DSO would act with common sense and fairly and not do anything from a capricious point of view.

19. [269]

    The defendant’s contentions, in this respect, did not rise above a bare objection to the imposition of a curfew.

20. [270]

    In light of the evidence before the Court, in particular, with respect to the defendant’s past attitudes and behaviour in the custody-based and community maintenance programs (see above at [204]-[215]), as well as his behaviour on parole and under interim supervision orders, I consider the imposition of a curfew, in the proposed form, to be appropriate. In reaching this conclusion, I have attached weight to the opinions of the court appointed experts, who opined that a supervision order was necessary for managing the risk of recidivism; with Dr Ellis expressly identifying “regular routine” as an indicia positively contributing towards successful rehabilitation and integration into the community (see at [134]). I find the imposition of a curfew, to be appropriate in all the circumstances.

21. [271]

    The State contended that the employment conditions were appropriate, when read in light of all the conditions, “in terms of reducing risk for the future and assisting and facilitating a more ordered lifestyle”. It was submitted that the conditions work together to assist the defendant with reintegration into the community.

22. [272]

    Further, in relation to the conditions requiring aspects of the defendant’s financial affairs to be subject to the direction and/or the approval of the DSO, the State contended they were appropriate having regard to the evidence of Ms Kirkwood. Ms Kirkwood deposed that the defendant experienced difficulties in relation to his accommodation and at one point risked eviction because he had stopped paying rent. The State contended, “[i]n terms of risk factors for a chaotic lifestyle and drug use and, therefore, serious sex offending there is a link between homelessness and insecurity of accommodation”. The State submitted that to enable the DSO to keep track of his finances will, at the very least, enable and support the defendant in his payment of rent.

23. [273]

    In written submissions, counsel for the defendant opposed the entirety of Part D of the conditions proposed. However, in this respect, very little was advanced, save for a reference to authority relating to “appropriateness”: State of New South Wales v Banks [2016] NSWSC 926 (“Banks”) at [68(d)] (Rothman J).

24. [274]

    In respect of this opposition to an employment condition, counsel for the defendant relied upon the remarks of Rothman J in Banks I extract the relevant passage:

25. [275]

    Despite the absence of a developed submission by the defendant, the remarks of his Honour are relevant to the present form of condition 18, which requires that “the defendant must enter available employment if and as directed by the DSO”.

26. [276]

    In relation to the same issue, namely, a condition with respect to a direction to enter available employment, Adamson J took a different approach (Fernando at [120]):

27. [277]

    The evidence with respect to the defendant’s difficulties with employment, education programs and finances (namely in the context of maintaining accommodation) is well documented in the material before the Court. Further, Dr Ellis identified “employment” and “education” as factors that contribute, as a means of risk management, to successful integration into the community (see above at [134]). Both court appointed experts, as previously mentioned, reached similar conclusions with respect to recidivism and the role of supervision. In light of this evidence, I consider there is “a sufficiently close connection” between condition 18 and the risk posed by the defendant. I note that it is unnecessary to resolve any apparent difference in the approach by Rothman J and Schmidt J as, on the evidence in this matter, there is (as there was in the case of Fernando) an appropriate foundation for the making of the order in terms of rehabilitation and reducing recidivism. I find the entirety of Part D to be appropriate in all the circumstances.

28. [278]

    The State submitted that the conditions enabling the DSO to scrutinise who the defendant is keeping in contract with and what he is doing on the internet are appropriate and important to ensure the safety of the community. In this respect, reliance was placed upon the FPS case notes and the affidavits of Ms Kirkwood.

29. [279]

    In written submissions, counsel for the defendant advanced two objections, in respect of Part G, but these only concerned issues of construction. First, it was contended that condition 35 “is not worded in the form of a condition that can be complied with”. Condition 35 states:

30. [280]

    Second, the defendant objected to condition 38 on the basis that it appeared “duplicitous of earlier conditions”. No further submissions were advanced in oral submissions with respect to either of the conditions.

31. [281]

    The first objection regarding condition 35 is misconceived. Section 11(a1) of the Act enables conditions to be imposed that require an offender “to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender”. Whilst it might be ineloquently expressed having regard to the terms of the premise of s 11(1a), condition 35 should be understood in that light, namely, for the purpose of surveillance of the defendant’s internet services in order to monitor compliance. In substance, the order achieves that end, as the license granted to the DSO must translate as the equivalent of a requirement for the defendant to give his permission.

32. [282]

    Similar reasoning applies with respect to condition 38. Whilst I accept that the condition is in similar terms to earlier conditions, namely, condition 34, each are directed at distinct, albeit complementary, purposes, again, pursuant to s 11(a1).

33. [283]

    Further, there is ample basis on the evidence for making orders directing the defendant to comply with the conditions 35 and 38, having regard to the defendant’s relatively recent conduct whilst under an interim supervision order (see above at [111]-[119]) and, particularly, taking into consideration, once again, the opinions of the court appointed experts, which support the imposition of an extended supervision order to mitigate and manage the risk of recidivism.

34. [284]

    Conditions 35 and 38 should be imposed with the extended supervision order.

35. [285]

    As to the objection to condition 15, the defendant made no submissions in support of his objection.

Duration

1. [286]

   As to duration, the State submitted that the appropriate period for an extended supervision order to continue is five years. This was supported by the aforementioned evidence of nature and extent of the defendant's past offending, identification of the risk of further offending, and the nature and extent of his unresolved issues. In this respect, the State relied upon the opinions of both Dr Ellis and Dr O'Dea, which, it was contended, were not challenged by the defendant.

2. [287]

   Whilst the court appointed experts support an extended supervision order with a duration of five years, counsel for the defendant submitted, the determination is a legal question and remains at the discretion of the Court: State of New South Wales v Darrego [2011] NSWSC 1449 at [87]; State of New South Wales v Conway [2011] NSWSC 925 at [28] and State of New South Wales v Brookes (Final) [2017] NSWSC 215 at [85].

3. [288]

   That may be so, but the evidence of those experts does provide a compelling basis for the making of an order for 5 years. Some examples are given below.

4. [289]

   Dr Ellis expressed the following view:

5. [290]

   In cross-examination, with respect to his estimation, Dr Ellis explained:

6. [291]

   Dr O’Dea was of a similar opinion:

7. [292]

   Counsel for the defendant questioned Dr Ellis with respect to the benefits of “any period of supervision being less than the maximum”. Dr Ellis opined:

8. [293]

   In the same light, with respect to duration, Dr O’Dea was cross-examined:

9. [294]

   In light of the evidence before the Court, in particular the report of Drs Ellis and O’Dea, I consider the appropriate period for an extended supervision order to be the maximum period allowable. The order, therefore, should be made for five years.

CONCLUSIONS

1. [295]

   In my view, the defendant is a high risk sex offender for the purposes of s 5B of the Act. It is appropriate that, pursuant to s 5C(1), an order be made for the supervision of the defendant as an extended supervision order and that the defendant be directed to comply with the conditions annexed to this judgment as Annexure A.

2. [296]

   I propose to order pursuant to ss 5C(1) and 9(1)(a) of the Act that the defendant be subject to a high risk sex offender extended supervision order for a period of 5 years from the date of this judgment. I also propose to make an order directing the defendant comply with the conditions set in the Schedule marked Annexure A attached to this judgment for the duration of the order pursuant to s 11 of the Act.

DIRECTIONS

1. [297]

   In order to facilitate the disposition of the matter in that fashion the State shall file and serve short minutes of order, reflecting this judgment, within 7 days of the publication of this judgment. The defendant shall either confirm the order proposed by the State or submit an alternative form of order within 14 days of the publication of this judgment. The Court will then make orders administratively in Chambers.