The State of New South Wales v Sharpe (No 2)

1. [1]

   HER HONOUR: On 29 March 2017 the State of New South Wales filed a Summons asking the Court to make the defendant the subject of a high risk sex offender extended supervision order (“ESO”) pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). By Amended Summons filed in Court on 22 August 2017 (which is otherwise in the same terms as the Summons) the period sought for the order is five years.

2. [2]

   Interim proceedings were heard on 21 April 2017 by Beech-Jones J, with his Honour determining that two psychiatrists should examine the defendant and report to the Court, and that an interim supervision order should be imposed upon the defendant: The State of New South Wales v Sharpe [2017] NSWSC 469. The interim supervision order (“ISO”) had effect for 28 days from 3 June 2017.

3. [3]

   The ISO was subsequently renewed on 26 June 2017 and 27 July 2017. It expires on 26 August 2017.

4. [4]

   At issue in the hearing before me was whether the Court should grant prayer 3 of the summons, which seeks:

5. [5]

   The defendant opposed the orders being made.

6. [6]

   On 24 August 2017 the Court made orders as sought by the State, reserving its reasons. These are the reasons for the orders made.

The Law

1. [7]

   The legislation and legal principles relevant to an application of this nature are now well known, there having been many such applications before the Court in the last 10 years, both at first instance and on appeal. Consideration of them can be found, for example, in Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983; Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118; State of New South Wales v Donovan [2015] NSWCA 280; Lynn v State of New South Wales [2016] NSWCA 57; and Anderson v State of New South Wales [2016] NSWCA 86. It is not intended here to do more than note the relevant provisions and principles.

2. [8]

   Section 3 of the Act provides for its objectives, the primary objective being to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community (s 3(1)); whilst the secondary objective is to encourage such offenders to participate in rehabilitation (s 3(2)).

3. [9]

   The State may apply to this Court for an ESO: s 5H. Such an application may only be made in respect of a “supervised sex offender”: s 5I(1). It must not be made until the last six months of the offender’s current custody or supervision (s 6(2)) and must be supported by documentation that addresses each of the matters to which s 9(3) refers (s 6(3)(a)). That material must include a report prepared by a psychiatrist, psychologist or doctor that assesses the likelihood of the offender committing a further serious sex offence (s 6(3)(b)).

4. [10]

   The defendant takes no issue with these “threshold” requirements, which have all been satisfied.

5. [11]

   The Supreme Court may, on application, make an order for the supervision of an offender if the offender is a “high risk sex offender”: s 5C(1). An offender can be made the subject of a high risk sex offender ESO if and only if the offender is a high risk sex offender: s 5B(1). An offender is a high risk sex offender if the offender is a “sex offender” and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious sex offence” if he or she is not kept under supervision: s 5B(2).

6. [12]

   The phrase “unacceptable risk” is not defined in the Act although it has been judicially considered. In State of New South Wales v Thomas (Preliminary) R A Hulme J observed of it (at [20]),

7. [13]

   In Lynn v State of New South Wales [2016] NSWCA 57 Beazley P (with whom Gleeson JA agreed) referred to Thomas (Preliminary) with approval.

8. [14]

   A “sex offender” means 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”: s 5. A “serious sex offence” is defined by s 5(1) of the Act. There is no dispute that the defendant is a sex offender.

9. [15]

   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: s 5B(3).

10. [16]

    The Court may dispose of an application for an ESO by making an ESO or by dismissing the application: s 9(1).

11. [17]

    Section 9(3) lists the considerations to which the Court must have regard in determining whether or not to make an ESO.

The Evidence for the State

1. [18]

   The State read and relied upon:

   1. (1)

      an affidavit from Lisa Francis Viney, dated 29 March 2017, together with a volume of documentary evidence, Ex. LFV-1;

   2. (2)

      a further affidavit from Ms Viney of 5 April 2017, annexing annexure A;

   3. (3)

      an affidavit from Claudia Pendlebury dated 20 April 2017, with annexures A, B, and C;

   4. (4)

      an affidavit from Angela Ryback of 20 July 2017;

   5. (5)

      an affidavit of Kate McCrossin of 25 July 2017, with annexures A to D; and

   6. (6)

      an affidavit of Janelle Farroway of 25 July 2017, with annexures A to C.

2. [19]

   Pursuant to the orders of Beech-Jones J of 21 April 2017, the Court also had the benefit of reports from two forensic psychiatrists, Dr Andrew Ellis of 4 June 2017, and Dr Jeremy O’Dea of 7 April 2017.

3. [20]

   A summary of the evidence – which is not intended to be exhaustive - follows.

4. [21]

   The defendant’s criminal history began when he was just short of his 14th birthday when he was charged, in September 1998, with an offence of aggravated indecent assault, the circumstance of aggravation being that his victim was a child, being a 5 year old girl. The victim alleged that the defendant licked and touched her genital area. A probation order for two years directed to sex offender counselling was imposed upon the defendant in the Children’s Court on 21 January 1999.

5. [22]

   The defendant was charged in 2004 for five further offences involving the indecent assault of the same child, being offences committed when he was 16 or 17 years old. The victim was aged 8 or 9, and the defendant had touched her bottom and genitals on a number of occasions. A suspended control order for 12 months was imposed upon him in August 2005 (for two offences; the remaining three being taken into account), again with conditions directed to ensuring the defendant received rehabilitation and treatment for his sexual offending. The defendant was called up with respect to that sentence in August 2006, and subsequently served a 12 month control order, with a non-parole period (“NPP”) of 8 months.

6. [23]

   Also in 2004, as an adult, the defendant appeared before the Local Court for offences of break enter steal, possess prohibited drug, and illegal use of a motor vehicle. He later breached bonds to be of good behaviour that were imposed upon him for those offences.

7. [24]

   In 2005, when at liberty pursuant to the suspended control order, the defendant was dealt with for a number of offences of larceny or shoplifting, receiving bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, in August 2006, a s 12 bond for 8 months, with a NPP of 6 months. An offence of failing to appear was dealt with by a concurrent suspended 8 month sentence.

8. [25]

   Offences of contravening an apprehended domestic violence order and common assault, in 2006, were dealt with by a further s 12 bond for 8 months, and a term of imprisonment respectively.

9. [26]

   Further offences of larceny and drive unlicensed followed in 2007.

10. [27]

    In November 2008 the defendant was again charged with a sexual offence, commit act of indecency. He was sentenced on 4 November 2009 to 6 months in prison. The offence involved sitting down near a young woman at a bus stop and masturbating in her presence.

11. [28]

    An offence of commit act of indecency followed in late January 2009, also dealt with on 4 November 2009, by the imposition of 14 months imprisonment. The victim was aged 22 years. The victim had observed the defendant at a bus stop in January 1999, some days before the charged offence, where he sat looking at her whilst masturbating his erect penis. The victim saw him in the same area of the bus stop on two further occasions that month, and contacted police on the latter occasion. At the time she was telephoning the police, the defendant walked towards her holding his erect penis.

12. [29]

    In February 2009 the defendant was charged with aggravated indecent assault, in circumstances where the victim was aged 9 years. On Australia Day, the defendant had followed the victim about in a shop, approaching her on a number of occasions, and then had touched her on the buttocks with his hand, holding his hand there for a couple of seconds.

13. [30]

    On 16 April 2009 the defendant committed similar acts. He followed a 14 year old girl into a shop, standing behind her as she took a bottle from a drink cabinet. He grabbed her on the buttocks with his hand, sliding his hand across her. The victim went to the counter to pay for the drink, at which point the defendant moved behind her, and again touched her on the buttocks. When the girl left the store he followed her, having made no attempt to make any purchase or other transaction within the shop.

14. [31]

    These two offences of aggravated indecent assault were also dealt with in the Local Court on 4 November 2009, attracting concurrent terms of 14 months imprisonment, with a NPP of 8 months.

15. [32]

    Because of his convictions for child sexual assault offences, the defendant was placed on the Child Sex Offender Register. In November 2010 he was charged with failing to comply with reporting obligations, an offence of which he was convicted ex parte with a warrant issuing for his apprehension. In March 2011 a term of 3 months imprisonment was imposed. An all grounds appeal was unsuccessful.

16. [33]

    The defendant again received a sentence of imprisonment, on 18 February 2011, for an offence from 3 December 2010 of commit act of indecency. An all grounds appeal against the sentence of 12 months imprisonment with a NPP of 7 months failed.

17. [34]

    At about that time the defendant also received a short sentence for resisting a police officer in the execution of duty.

18. [35]

    The defendant was charged on 23 March 2011 with a number of child sexual assault offences, but the following year the Director of Public Prosecutions decided not to proceed against him. [There having been no acknowledgment, and no finding, of guilt, I have not had regard to these allegations.]

19. [36]

    In February 2013 the defendant was sentenced to a term of 22 months imprisonment, with a NPP of 10 months specified, for three offences of indecently assaulting a child under 16 years. The offences had occurred in May 2012 when the defendant approached a 10 year old girl, who was dressed in full school uniform, in a Moss Vale shop. He took hold of the girl’s buttocks in his fingers and touched her. This occurred twice more as the girl moved about the shop, in company with her mother.

20. [37]

    Parole for these offences was conditioned that the defendant enter into a sex offender programme. Parole was later revoked.

21. [38]

    In 2013 the defendant was fined for offences of being armed with intent to commit an indictable offence, and being found with an intention to commit an indictable offence.

22. [39]

    He was again dealt with for breaching child sex offender reporting obligations, together with providing false information as to registration, in February 2014, receiving two concurrent terms of 7 month in prison.

23. [40]

    On 22 April 2015 the defendant was again before a court for sexual offences, being sentenced to an aggregate term of 14 months imprisonment for three offences of committing an act of indecency. A NPP of 7 months was fixed. Each of the offences involved the defendant sitting near to a woman on a train and, whilst looking directly towards her, masturbating in her presence.

24. [41]

    Later that year, on 16 June 2015, the defendant was again imprisoned for a sex offence, this being the index offence. He received a term of 2 years imprisonment for an offence of committing an act of indecency towards a person under 16 years. The defendant had sat down near to a young girl on a train, exposed his erect penis to her and masturbated, whilst smiling at her. The child became very distressed. After some time the defendant got off the train, laughing. Following an appeal against the severity of that sentence, it was varied by specifying a NPP of 15 months, subject to supervision and the completion of a treatment programme. The judge who dealt with the appeal, Hanley SC DCJ, made no remarks concerning the nature or seriousness of the offending.

25. [42]

    Parole was later revoked, with the defendant serving the balance of term until 3 June 2017.

26. [43]

    The breach for which parole was revoked was the commission of further offences. In September and October 2016 the defendant was charged with offences of larceny, goods in custody, offensive behaviour, malicious damage, and possess prohibited drugs. Part of his offending conduct was the theft from a chemist of a medication used to boost testosterone and enhance libido. On arrest, the defendant was found to have on his phone footage of a school girl that he had filmed on a train. The girl was spoken to and said that she had thought the defendant was doing something with his hands when watching her on the train.

27. [44]

    The defendant subsequently received a term of 2 months imprisonment, together with a number of bonds.

28. [45]

    Where the defendant has been admitted to parole following service of a minimum term, parole has almost invariably been subsequently revoked. Parole has been revoked on 23 August 2006, 29 June 2007, 29 November 2010, 21 July 2011, 8 November 2013, 19 June 2015, and 18 October 2016.

29. [46]

    When in custody, the defendant has incurred penalties for institutional offences, including failing urine tests.

30. [47]

    The first such report in evidence is from 15 July 2007, having been prepared by a psychologist with the Department of Corrective Services as part of a pre-sentence report prior to the defendant being sentenced with respect to five counts of aggravated indecent assault (referred to at [22] above).

31. [48]

    The defendant told the author of the report that he had only a limited memory of his offending conduct because he “chose” not to remember it. He claimed not to understand how serious his conduct was. Overall, he demonstrated a considerable lack of insight into the offences, and his behaviour.

32. [49]

    He gave a history of having grown up in a dysfunctional environment, with a heroin addict father and an alcoholic step-mother. Both were said to have been abusive. Further, the defendant claimed to have himself been the victim of sexual abuse, perpetrated by a male friend of his stepmother, for several years from about age 6.

33. [50]

    The defendant’s education was truncated by his bad behaviour which resulted in expulsion from main stream schooling, with a short period at a special school thereafter.

34. [51]

    He said he began his first consensual sexual relationship at age 13, with a series of short relationships following the first. The psychologist opined that the defendant experienced “difficulty in developing pro-social emotionally fulfilling intimate relationships” ([5.4], Ex. LFV-1.71).

35. [52]

    The defendant began using cannabis at about age 9, moving to cocaine and amphetamine by 12 years. He used illicit drugs extensively thereafter. A claimed 6 month attendance at a 10 month rehabilitation programme at the William Booth Institute achieved little or nothing.

36. [53]

    It was concluded that the defendant had extensive treatment needs, including completion of sex offender programmes.

37. [54]

    Although the history the defendant gave was different in some particulars to that recorded in 2005, a psychological assessment carried out the following year (January 2006), also prior to sentencing, made broadly consistent recommendations as to the need for treatment. As he had in 2005, the defendant claimed to want help with rehabilitation.

38. [55]

    A report of May 2007 prepared by a psychologist with the Department of Corrective Services noted that the defendant had attended four of eight sessions of a community based treatment group for sexual offenders, but was suspended part way through the programme. He completed none of the assignments set and was regarded as having made limited progress. It was considered that he was using illicit drugs at the time.

39. [56]

    When sentenced for those matters referred to at [22] above the defendant was interviewed for the preparation of a pre-sentence report. His history of non-compliance with sentencing orders was noted, with the author observing in summary,

40. [57]

    As with earlier reports, there were not insignificant variations in the history given by the defendant to the author when compared to earlier histories.

41. [58]

    With respect to the offences the defendant either denied them outright, or sought to minimise his conduct. The author concluded that the defendant “displayed very limited victim empathy and almost no insight into his sex offending behaviour” (p.5, Ex. LFV-1.75).

42. [59]

    A psychological report prepared on 22 September 2009 included a history from the defendant with some marked variations to histories earlier given by him. Of note, he gave a completely different account of having been sexually assaulted as a child, asserting that there had been two offenders who were friends of his father, who had abused him over a 2 or 3 year period. He could not describe the nature of the alleged abuse.

43. [60]

    The actuarial tool the STATIC-99 test was administered, with the defendant assessed presumptively with a high risk level relative to other adult male sexual offenders. Overall assessment indicated that the defendant fell within the high range of risk of sexual reoffending.

44. [61]

    A number of risk factors were referred to, including poor capacity for stable relationships, a tendency to sexualise women, social rejection and lack of family support, inability to empathise with others, impulsivity, poor problem solving skills, and sexual preoccupation and deviancy.

45. [62]

    It was recommended that the defendant participate in a sex offender programme, undertake drug and alcohol rehabilitation, and have no unsupervised access to children.

46. [63]

    A STATIC-99 test administered in January 2013 reached the same conclusion, that the defendant was at high risk of sexual reoffending.

47. [64]

    In 2015, and again prior to being sentenced (for the offence set out at [40] above) a psychiatric assessment of the defendant was conducted by a Clinical Nurse Consultant within Justice Health. The report referred to earlier diagnoses of Post-Traumatic Stress Disorder, Depression, and drug dependence, and noted a need for treatment.

48. [65]

    Dr Richard Parker spoke to the defendant on 7 October 2016 to prepare a risk assessment of him. The defendant was then unsure of whether to speak to Dr Parker, informing him a few days later that he would not speak to him. Accordingly, Dr Parker prepared his assessment from documentary evidence, and without any personal assessment of the defendant.

49. [66]

    Having reviewed the documentary evidence, Dr Parker noted,

50. [67]

    He observed the differences between the defendant’s claims to have undertaken community based drug rehabilitation, and objective evidence. For example, the defendant has on occasion reported completing 6 months of a 10 month residential programme at the William Booth Institute. By contrast, letters from that Institution refer to the defendant having left after 4 days (in 2005) and leaving on the same day he was admitted (in 2006). A Juvenile Justice breach report referred to the defendant having stayed for 10 days at William Booth in 2004. There is no evidence to support his claim of having completed 6 months of any programme.

51. [68]

    Dr Parker referred to other rehabilitative efforts such as an unsuccessful referral to EQUIPS in 2015, with the defendant leaving the programme and asserting a wish to undertake community based rehabilitation.

52. [69]

    Treatment for sexual offending has fared little better on the evidence summarised by Dr Parker.

53. [70]

    The treatment programme imposed upon the defendant as a consequence of sentencing for his first sexual offences (as a child) was not completed, with the defendant initially engaging well but subsequently becoming erratic. He was breached after 13 months. The defendant has similarly failed to undertake mandatory counselling in the community as an adult (in 2005), and has refused to participate in the CUBIT programme in custody (2009 and 2016).

54. [71]

    Dr Parker completed a risk assessment process relevant to the defendant, concluding that he was at high risk of further sexual offending.

55. [72]

    The Level of Service Inventory – Revised (“LSI-R”) was administered to the defendant in 2015 as part of standard Corrections procedure. It measures the risk of general re-offending, with the defendant found to be in the Medium / High category.

56. [73]

    The STATIC-99R test, an instrument which predicts sexual recidivism, was administered in 2010, with the defendant scored as falling within the high risk category. An estimate combining both the STATIC-99R test and the STATIC-2002R Evaluator’s Workbook placed the defendant in the 100th percentile for sexual recidivism, with 99.98% of sexual offenders receiving a lower score than the defendant. The recidivism rate relevant to the defendant is 7.3 times that of the “typical” sex offender.

57. [74]

    Another actuarial tool, the STABLE-2007 placed the defendant in the high risk category for sexual recidivism, with a very high risk rating returned from an estimate using that tool and the STATIC-99R test.

58. [75]

    Dynamic risk factors were considered by Dr Parker, who concluded that the defendant has a number of such factors, including substance abuse, sexual preoccupation, and the lack of intimate relationships, with other risk factors, such as a view of children as sexual beings, potentially existing. The defendant had positively endorsed a view that his sexual offending was harmless.

59. [76]

    Dr Parker concluded,

60. [77]

    A risk management report was prepared by Raquel Smith on 31 December 2016. Ms Smith is a Community Corrections Officer with the extended Supervision Team.

61. [78]

    Ms Smith noted the defendant’s poor history of compliance with supervision, one characterised by re-offending and failing to address his criminal behaviour. Recently, when released to parole on 3 September 2016, the defendant refused to accept drug testing, admitted using illicit and non-prescription drugs, and breached the rules of the Community Offenders Support Programme (“COSP”) residence in which he was living.

62. [79]

    Ms Smith, who assessed the defendant prior to his most recent release from custody (on 3 June 2017) concluded that the defendant would need to reside in a COSP. She referred to the limited community support available to the defendant, noting that the support identified by the defendant, from a friend and her family, was not suitable, as three of the group were registered child sex offenders whilst the fourth had other criminal convictions.

63. [80]

    The defendant would require weekly attendance at Forensic Psychology Services to address his criminal conduct, although attendance cannot be under compulsion and is thus vulnerable to the defendant’s failure to cooperate. How useful such counselling may be is also limited by the defendant’s level of engagement and truthfulness with counsellors.

64. [81]

    Drug and alcohol rehabilitation services will also be important, with drug and alcohol testing carried out randomly. It is noted that the defendant could, as he has in the past, simply refuse to undertake testing.

65. [82]

    Ms Smith noted that he would be encouraged to build positive personal relationships and to engage with both educational and vocational opportunities. Written directions requiring the defendant to avoid particular people or places will be utilised as necessary.

66. [83]

    Referring to risk assessments conducted previously Ms Smith noted that the defendant fell into the high risk category with a number of relevant risk factors. To manage the risk posed by the defendant Ms Smith proposes weekly interviews with Community Corrections at his accommodation or a Corrections office. The interviews would focus on monitoring compliance with supervision and supporting a law abiding lifestyle. Ms Smith observed, however, that the success of interviews could be undermined by untruthfulness from the defendant, who openly told her in October 2016 “I will play the game and tell them what they want to hear” (p.3 of report of 31 December 2016, annexure C to the affidavit of Lisa Francis Viney of 29 March 2017).

67. [84]

    It is proposed to conduct field visits with the defendant, including monthly home visits and visits at any place of employment, to assess his personal and living situation, and monitor compliance. Covert surveillance can additionally be employed. This proposal may be limited however, because of resource issues. Further, Ms Smith noted that it would be difficult to monitor the defendant when using public transport, that being a typical location in the past for the commission of opportunistic sex offences.

68. [85]

    Other persons involved with the defendant, such as family members or employers, will be contacted and spoken to, as part of efforts to monitor compliance.

69. [86]

    It is intended to use both electronic monitoring of the defendant, together with a weekly schedule of movements, to ensure insofar as is possible that the defendant’s activities are purposeful and constructive, and risk related situations are avoided. A curfew will be utilised.

70. [87]

    The details of the system of electronic monitoring were explained by Angela Ryback, a Senior Monitoring Officer with the ESO Team’s electronic monitoring group, in her affidavit of 20 July 2017.

71. [88]

    In her affidavit of 25 July 2017 Janelle Farroway, the Governance Officer for the Extended Supervision Team (“the ESO Team”) within Community Corrections, deposed that the Team operated seven days per week, with an officer able to be contacted by a supervised offender between 8am and 10pm each day. Team members responsible for the supervision of electronic monitoring are available 24 hours per day. The defendant’s supervision would be allocated to a Departmental Supervising Officer, who would have day to day responsibility for managing the defendant’s supervision. Management strategies consistent with those outlined by Ms Smith would be employed.

72. [89]

    As to his conduct since released with the supervision of an interim order, Ms Farroway noted in her July 2017 affidavit that there had been “issues” with the defendant’s compliance with the ISO to which he is subject. The defendant had deviated from his approved movement plan on a number of occasions and was not forthcoming about such deviations. As a resident at a COSP, he had failed to participate in an acceptable way in compliance with house rules. Further, on one occasion the defendant had approached a woman who was accompanied by two children in the street, and sought to engage with her. On another he had spent longer at a bus stop than was reasonably necessary. These instances were regarded as concerning, having regard to the defendant’s offending history. A number of formal written warnings and directions have been issued to the defendant.

73. [90]

    Corrective Services Case Notes in evidence as an annexure to the affidavits of Kate Patricia McCrossin, contain a number of entries recording incidents of defiance to Corrections or COSP staff or other problems, since early June 2017 to mid-August 2017. There have been instances where the defendant has failed to provide bank statements as directed (27.6.2017), failed to comply with COSP rules (1.7.2017; 10.7.17; 11.7.17), failed to complete documentation relevant to housing (1.7.2017), spent 52 minutes at a bus stop waiting for a bus that had a frequency of arrival of 10 minutes (5.7.2017), and misled staff as to his movements (6.7.2017). The incidents were ongoing, as recorded throughout the notes, until the most recent note in evidence, that of 15 August 2017.

74. [91]

    On 31 July 2017 the defendant was charged with failing to comply with the ISO, contrary to s 12 of the Act. The breach related to his alleged consumption of illicit buprenorphine, with a drug test returning positive for that drug on 20 July 2017. Although the notes record the defendant as saying on a number of occasions that he had taken a pill given to him by a friend that he met in a chance encounter, the charge is listed for hearing in the Local Court, a plea of not guilty having been entered.

75. [92]

    On 14 August 2017 the defendant was served with a written notice detailing the breaches of COSP requirements committed by him, and advising him that he must leave the COSP by 28 August 2017.

76. [93]

    Dr Andrew Ellis interviewed the defendant for two hours via an audio-visual link on 19 May 2017. He was also exhaustively briefed with documentary material, including the fact sheets of all sexual offences, and earlier Juvenile Justice and Community Corrections reports. His report of 4 June 2017 became Exhibit B. The doctor also gave oral evidence before the Court on 22 August 2017.

77. [94]

    At the time of the interview conducted by Dr Ellis, the defendant was a single, part indigenous man of 32 years, who was housed at the South Coast Correctional Centre, held as a special management protection prisoner. He was not working or engaged in any educative course in custody.

78. [95]

    The defendant’s general health appeared good, and he reported eating and sleeping well, with good energy levels. Whilst he referred to some thoughts of self-harm or suicide he said that his Christian beliefs protected him from self-harm. There was no history of admissions to psychiatric institutions.

79. [96]

    The defendant gave a history of extensive abuse of illicit drugs, which continued despite undertaking rehabilitative programmes through the William Booth Institute, Kedesh House, and Odyssey House in the past.

80. [97]

    He said that he was one of 7 children raised by his father and step-mother. His natural mother, who had abandoned him as a baby, was an indigenous woman. The defendant described an abusive childhood, which included sexual assault.

81. [98]

    He said he learned about sex from talking to other boys at age 15. He had had two long-term relationships and a number of casual ones. He reported sexually exhibitionistic behaviour which he claimed had been precipitated by hearing girls say they liked to see good looking men masturbate in public. He said such behaviour gave him a thrill. He also found pinching or touching females arousing, but denied that he sought out children for this activity. He claimed to be interested in adult women, although conceded feeling sexually attracted to girls aged between 14 and 17 years of age. He claimed to have misjudged the ages of his child victims.

82. [99]

    Dr Ellis concluded that the defendant meets criteria for the paraphilic disorders exhibitionistic and frotteuristic disorder. Having regard to the ages of some of the defendant’s victims, Dr Ellis thought a paedophilic disorder should be considered, but was not able to be conclusive about it. In oral evidence he explained that:

83. [100]

    Additionally, the defendant meets criteria for a substance abuse disorder, and is likely to meet criteria for an antisocial personality disorder. The multiplicity of disorders is a feature which can elevate risk, as Dr Ellis explained in evidence.

84. [101]

    The doctor identified features relevant to the risk of reoffending as including deviant sexual arousal or paraphilia, substance use, and a personality disorder. The fact that the defendant has not participated in a sex offender treatment programme in custody exacerbates risk. He noted,

85. [102]

    Dr Ellis concluded that the defendant fell into a group of persons with a risk of sexual offending which is statistically high for offences with less serious consequences. The risk of committing a serious sex offence was regarded as “less clear, but not implausible” (at p.12 Ex B).

86. [103]

    In evidence before the Court Dr Ellis clarified the type of offence there referred to as “serious”:

87. [104]

    Dr Ellis considered that the greatest risk posed by the defendant was of committing the latter two types of offences, exhibitionistic and touching, but there was also a risk of violent sexual crime:

88. [105]

    Dr Ellis thought that the proposed risk management plan was necessary to manage the risk posed by the defendant, and considered that he should be assessed for anti-libidinal medication.

89. [106]

    He thought that an ESO for a period of five years was indicated, in order to improve the defendant’s functioning in the community. He observed that paraphilic disorders are “chronic, relapsing conditions and resistant to treatment and rehabilitative efforts” (at p.12 Ex B).

90. [107]

    The five years would (optimally) consist of a period of 24 months to secure stable accommodation, maintain a stable mental state and participate in regular meaningful activity in the community; and 36 months of regular psychological treatment (including a focus on methods to control deviant sexual arousal and substance abuse), and monitoring of any anti-libidinal medication.

91. [108]

    Dr Jeremy O’Dea saw the defendant on 10 May 2017 for about 3 hours, at the South Coast Correctional Centre. As with Dr Ellis, he was comprehensively briefed with documentary evidence. His report of 7 June 2017 became Exhibit A.

92. [109]

    The defendant gave the doctor a history which, again, is different to that given on other occasions (including a complaint of having been sexually assaulted by three men as a child, the men being friends of his father).

93. [110]

    When asked about his history of sexual offending, the defendant denied some offences. For example, of the offences committed against a five year old child, including licking and rubbing the genitals, the defendant said “nothing like that happened […] I just wanted to get out of the Court room so said yes to a lot of things I didn’t do” (at [36] of Ex A).

94. [111]

    Of the offences committed when he was aged 16 or 17, the defendant claimed it was “learned behaviour” from the abuse he had suffered. Of other offences involving children he claimed to have thought the respective victims were much older than they in fact were, and to have been under the influence of drugs.

95. [112]

    The defendant did not report any symptoms of psychosis, major mood disorder, major anxiety disorder, or suicidal ideation.

96. [113]

    Of the defendant’s presentation at interview, Dr O’Dea recorded,

97. [114]

    The doctor concluded that the defendant has a Substance Abuse Disorder and meets the criteria for Multiple Paraphilic Disorders, including Exhibitionistic Disorder, Frotteuristic Disorder, and Extra-familial Heterosexual Paedophilia. Dr O’Dea noted that the last-mentioned disorder is characterised by sexual activity with pre-pubescent children and is generally considered a form of sexual orientation that is long term, and more amenable to control with anti-libidinal medication, rather than cure as such. Exhibitionistic Disorder is one which has a high risk of recidivism if untreated.

98. [115]

    Dr O’Dea also felt that the defendant met the criteria for an Anti-Social Personality Disorder. He said,

99. [116]

    Anti-social personality disorders are treatment resistant.

100. [117]

     The various disorders interact in such a way as to increase risk. Before the Court, the following evidence was given (at T19:24):

101. [118]

     Noting that “the best predictors of future sex offending behaviours are past sex offending behaviours”, Dr O”Dea concluded,

102. [119]

     Whilst Dr O’Dea thought that sex offender treatment was necessary, he concluded that anti-libidinal medication coupled with other interventions was the most effective therapeutic intervention for sexual deviance. Abstinence from drugs and alcohol was regarded as essential.

103. [120]

     Overall, Dr O’Dea concluded that the defendant posed a high risk to the community:

104. [121]

     Dr O’Dea thought that the defendant posed a long term risk to the community, and concluded that an ESO of 5 years duration was required to manage the risk, with the conditions proposed by the State.

The Evidence for the Defendant

1. [122]

   The defendant both tendered a report from Dr Christopher Lennings (of 8 August 2017, Ex 1) and called oral evidence from him.

2. [123]

   Dr Lennings is a psychologist in private practice. He saw the defendant on 8 August 2017 for 2 hours and 20 minutes. In addition, he had available to him the reports of Drs Ellis and O’Dea, a copy of the defendant’s criminal history, and a copy of the originating summons.

3. [124]

   The defendant gave Dr Lennings a history, describing his offending history in such a way as to cause Dr Lennings to conclude that he minimised his criminal past.

4. [125]

   The defendant complained about the level of supervision to which he was subject, which he regarded as unjust, and as preventing him from rehabilitating himself. He claimed that he would pursue treatment of his own volition.

5. [126]

   Having administered a (self-completed) personality assessment to the defendant (the Personality Assessment Inventory) Dr Lennings noted,

6. [127]

   Dr Lennings also administered the STATIC-99 risk assessment test, which placed the defendant in the high risk category for sexual recidivism. However, Dr Lennings cautioned that risk assessment was no more than an exercise in probability, and noted that such assessments were subject to “several important limitations” (at [48] of Ex 1). He regarded the evidence supporting the use of structured actuarial tools as “moderately valid only” (at [48]), with structured tools combined with consideration of dynamic risk factors as likely to be of most use.

7. [128]

   Dr Lennings concluded,

8. [129]

   Consideration of dynamic risk factors supported the view that the defendant is at high risk of re-offence.

9. [130]

   Dr Lennings noted,

10. [131]

    He thought it was doubtful that the defendant would “gravitate” to more serious sex offending, which he referred to as “contact offending where violence or physical coercion was used” (at [55] of Ex 1).

11. [132]

    Dr Lennings was of the view that, if an ESO was imposed, a period of 12 to 18 months was adequate to address the defendant’s treatment needs. He commented that some of the restrictions in the conditions attaching to the proposed ESO were onerous, and “not conducive to a young person engaging in rehabilitation, and not related to his most likely modus operandi of offending” ([56] of Ex 1). An example of a condition referred to by Dr Lennings as not justified was the proposed search and seizure condition; he concluded that the purpose of such a condition was to search for child abuse material, and thus could only properly be imposed on “predatory child molesters”.

The Submissions of the Parties

1. [133]

   The State submitted that all of the evidence pointed to the overwhelming conclusion that the defendant posed a high risk to the community of committing further sexual offences, including sexual offences directed towards children. The disorders from which he suffers are difficult to treat, and there is no basis in evidence upon which to conclude that the defendant’s assertions that he would seek treatment himself without compulsion could be accepted. Only through the imposition of an ESO could the community be protected, and the defendant compelled insofar as was possible to accept treatment.

2. [134]

   The defendant submitted that his past sex offending was not of a serious nature, and there was no basis for a conclusion that he would commit serious sexual offences in the future. He distinguished “touching girls on the backside” from serious sexual crime. He disputed that either the ESO, the term of 5 years, or the conditions attaching to the order were necessary for either community protection or to facilitate his rehabilitation.

Consideration

1. [135]

   The defendant disputes that he is a serious sex offender, or that his offending history is of such a nature that he could be regarded as posing the sort of risk to the community that the Act is intended to manage. As he told Dr Lennings, he wished to distinguish himself from serious sex offenders with a history of violent sex crimes.

2. [136]

   The defendant’s position is demonstrative of the lack of insight into his crimes and sexual deviancy that has been noted by so many of the therapists or other clinicians who have dealt with the defendant over the years.

3. [137]

   All of the objective evidence – including, when properly understood, that of the defendant’s own expert – is that the defendant poses a high risk of sexually re-offending by committing a serious sexual offence, as that phrase is defined by the Act.

4. [138]

   A “serious sex offence” is defined by s 5(1)(a)(i) of the Act as including an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) where, in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more.

5. [139]

   Much of the defendant’s offending past includes the commission of just such offences. Although he was dismissive (to health and other professionals, and to this Court in submissions) of the notion that “touching of the backside” is a serious sexual crime, such an offence when committed upon a child under the age of 16 years is an offence contrary to s 61M(2) of the Crimes Act, carrying a maximum penalty of 10 years imprisonment. That being so, it falls within the definition of “serious sex offence” provided by s 5 of the Act.

6. [140]

   That statutory fact, and the failure to appreciate it, undermined the whole of the defendant’s case and the way in which he conducted it. The defendant challenged the evidence of his assessed risk of committing a serious sex offence largely, it seems, because of that failure of understanding. For example, the following was put to Dr O’Dea in cross-examination:

7. [141]

   It was apparent from both his report and oral evidence that Dr Lennings also mistook the meaning of “serious sex offence”, in that he understood some element of violence or physical coercion was required before a sex offence could be regarded as serious. Dr Lennings concluded in his report that there was a high likelihood that the defendant would again offend by committing “exhibitionistic or touching” offences, but he did not conceive of such offences as serious.

8. [142]

   In evidence in chief before the Court, Dr Lennings was asked about the process of risk assessment (of a 32 year old) having regard to past offending conduct. In answering that question he confirmed his misunderstanding of the meaning of “serious sex offence”,

9. [143]

   In cross-examination, it was made clear that Dr Lennings regarded “touching” offences as on a par with acts of public masturbation, and not serious.

10. [144]

    Dr Lennings regarded the risk that the defendant would commit a “touching” offence as high if left unsupervised and untreated.

11. [145]

    When Dr Lennings’ evidence is considered with his misperception in mind, it is clear that he, like Dr Parker, Dr Ellis, and Dr O’Dea, considered that the defendant poses a high risk of committing a serious sex offence.

12. [146]

    Whilst that evidence is relevant to the statutory meaning of serious sex offence, the qualitative seriousness of the defendant’s past crimes should not be diminished. As Dr Ellis observed (at T16:26), and as the facts of the index offence make plain, physical violence is not necessary before damage can be caused to a victim of a sexual crime, including a person towards whom an act of indecency has been committed, or a person touched in a sexual way.

13. [147]

    Everything in the evidence points to the correctness of the conclusion of the experts that the defendant poses a high risk to the community.

14. [148]

    The defendant’s criminal history demonstrates decades of sexual offending accompanied by a complete absence of insight into both the seriousness of his conduct or the importance of addressing it. The defendant has typically minimised his behaviour, denied it, or blamed intoxication or the victim for it. Whilst he has claimed to either wish to address his various disorders, or to have himself taken steps in that direction, the credible evidence is wholly to the contrary.

15. [149]

    The coalescence of risk factors that the defendant embodies makes him dangerous to the community, and particularly to young women and girls.

16. [150]

    His admitted sexual interest is in girls aged 14 to 17 (although he has offended against children much younger than that), and the paraphilic and likely paedophilic disorders that no doubt prompt such offending are enduring. Cure is not an option; only treatment and supervision can provide any prospect of control.

17. [151]

    The likelihood of the defendant acting on his deviant desires is greatly heightened by his persistent abuse of illicit drugs and alcohol, in circumstances where intoxication reduces the power of self-control and exacerbates impulsivity.

18. [152]

    His anti-social personality disorder undermines any real prospect of the defendant empathising with his victims and thus desisting from crime, or feeling the restraint of societal disapproval for his conduct.

19. [153]

    The defendant’s lack of appropriate social support and engagement with the community deprives him of the sort of influences that might mitigate the risk he poses.

20. [154]

    In short, I am satisfied to a high degree of probability that the defendant presents an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Without supervision and treatment it is almost certain that the defendant will reoffend, and in the near future. The episodes in recent weeks when he has lingered at Central Railway Station and at bus stops, for asserted reasons I regard as improbable, point to as much.

21. [155]

    As to the duration of the order, Drs Ellis and O’Dea both suggest that any order should be for 5 years, having regard to the many issues that must be addressed, the treatment resistant nature of the defendant’s disorders, and his failure to complete any treatment programmes in the past.

22. [156]

    Whilst an extended period is necessary to maximise the prospects that the defendant will be adequately treated if not rehabilitated, such a period is also necessary to protect the community. Particularly in light of the defendant’s stated refusal to accept anti-libidinal treatment, the defendant will likely pose a risk to children and women until such time as age and infirmity reduces that risk.

23. [157]

    Dr O’Dea gave the following evidence on that aspect of the matter:

24. [158]

    Dr Lennings was of the view that, if an order was to be imposed upon the defendant, a period of 12 to 18 months was adequate. However, that must be considered in the light of Dr Lennings’ stated view that the sort of supervisory regime proposed by the State is oppressive to the defendant:

25. [159]

    Since the primary objective of the Act is community protection, I do not regard the defendant’s desire to enjoy “the good life” as necessarily a factor material to an assessment of the duration of the order.

26. [160]

    In terms of the conditions that should attach to the order, both Drs Ellis and O’Dea regarded the proposed conditions, Schedule A to the summons, as necessary and appropriate to manage the risk posed by the defendant. Further, Ms Smith set out the methodology proposed to manage the defendant, referring to strategies which would be dependent upon the defendant being subjective to the proposed conditions.

27. [161]

    Whilst Dr Lennings thought the conditions oppressive, the only example he gave as a condition for which there was no justification – that of the search and seizure power – is justified not because of any particular risk that the defendant might hoard child abuse material, as Dr Lennings noted, but rather because of the risk that he may be in possession of drugs or alcohol, both being factors that increase the risk of serious sex offending.

28. [162]

    The proposed conditions do constitute a significant invasion to the liberty of the defendant, but each are necessary on the evidence to mitigate the danger to the community. Many of the more restrictive conditions are flexible and may be negotiated by the defendant with the supervising officer; they are also likely to be lessened over time, particularly if the defendant demonstrates compliance.

29. [163]

    I am satisfied that each of the proposed conditions is necessary and should be imposed.

30. [164]

    The Court’s orders are: