State of New South Wales v TT (Final)

1. [1]

   JOHNSON J: By Summons filed on 14 November 2017, the Plaintiff, State of New South Wales, seeks orders against the Defendant, TT, under the Crimes (High Risk Offenders) Act 2006 (“HRO Act”). The Defendant is referred to by a pseudonym in this judgment as publication of his name may serve to identify victims of sexual offences committed by him: s.578A Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987. In addition, an order has been made under s.13 Court Suppression and Non-publication Orders Act 2010 that the Defendant be referred to by a pseudonym.

2. [2]

   The Plaintiff seeks an order that the Defendant be subject to an extended supervision order (“ESO”), upon a range of conditions, for a period of three years from the date of the order.

The Index Offences

1. [3]

   On 13 October 2016, following pleas of guilty, the Defendant was sentenced by his Honour Judge Hunt at the Campbelltown District Court with respect to three offences of using a carriage service to access child pornography contrary to s.474.19(1) Criminal Code (Cth). A total effective sentence of imprisonment for two years (commencing on 4 February 2016) was passed with an order that the Defendant be released upon entering into a recognisance after one year and two months pursuant to s.20(1)(b) Crimes Act 1914 (Cth). The Defendant was released from custody on 3 April 2017 and the sentence of imprisonment expired by effluxion of time on 3 February 2018.

2. [4]

   On 18 December 2017, following a preliminary hearing, Walton J directed that the Defendant be subject to an interim supervision order (“ISO”) with orders also being made pursuant to s.7(4) HRO Act for the examination of the Defendant by two qualified psychiatrists who were to furnish reports to the Court following those examinations: State of New South Wales v TT (Preliminary) [2017] NSWSC 1797. These orders came into effect on 3 February 2018. On 26 February 2018, the ISO was extended by Rothman J until 30 March 2018: State of New South Wales v TT [2018] NSWSC 347.

The Final Hearing

1. [5]

   The hearing of the Plaintiff’s application for final relief proceeded before me on 15 March 2018. Mr Aitken of counsel appeared for the Plaintiff and Ms Cook of counsel appeared for the Defendant.

2. [6]

   The Plaintiff relied upon the following evidence at the final hearing:

3. [7]

   Dr Martin and Dr Ellis examined the Defendant and furnished reports to the Court as a result of the order made by Walton J on 18 December 2017 under s.7(4) HRO Act.

4. [8]

   None of the persons listed at [6] above were required by the Defendant for cross-examination.

5. [9]

   Oral evidence was taken by telephone at the final hearing from Andrew James Sandercock, Community Corrections Officer (T10-21, 15 March 2018). This evidence related to an issue in connection with conditions of the proposed ESO. I will return to this topic later in the judgment.

6. [10]

   The Defendant did not give evidence or call any witness at the final hearing.

7. [11]

   The Court was assisted by helpful written submissions furnished by Mr Aitken and Ms Cook in advance of the final hearing. In light of the evidence relied upon by the Plaintiff, Ms Cook submitted that, if the Court was satisfied that a proper basis had been made out for the making of appropriate orders, the Defendant did not oppose the making of an ESO for a period of three years with the areas of controversy being confined to certain proposed conditions.

8. [12]

   Counsel addressed orally at the final hearing and the Court received supplementary written submissions dated 19 March 2018 for the Plaintiff and the Defendant concerning the proposed electronic monitoring condition to which I will return later in this judgment.

9. [13]

   As Beech-Jones J observed in State of New South Wales v Fisk [2013] NSWSC 364 at [7] and [23], the lack of opposition to the relief being sought does not relieve the Court from the task of determining whether orders should be made given the requirement under the statute for the Court to be so satisfied before an order is made. That said, the practical approach of counsel for the Defendant assisted the Court in making relevant statutory findings.

Some Threshold Issues

1. [14]

   The present proceedings were commenced by the filing of a Summons on 14 November 2017. The HRO Act was amended by the Crimes (High Risk Offenders) Amendment Act 2017 (“the 2017 Act”) which commenced on 6 December 2017. By operation of Clause 19(2) of Part 10 of Schedule 2 of the HRO Act, the amendments made by the 2017 Act apply in respect of proceedings in relation to which an application was made, but not determined, before the commencement of the 2017 Act.

2. [15]

   Accordingly, the 2017 amendments apply to the present application. Walton J proceeded upon this basis in State of New South Wales v TT (Preliminary) at [15] and this conclusion was not challenged by the Defendant at the final hearing.

3. [16]

   The Plaintiff may only apply for an ESO where, at the time of filing the application, the Defendant was a “supervised offender”: s.5I(1) HRO Act. In the present case, it is common ground between the parties that the Defendant was, at the relevant time, an “offender” who was then under supervision whilst serving a sentence of imprisonment for an “offence of a sexual nature”: s.5I(2)(a)(ii) HRO Act.

4. [17]

   I am satisfied that this was the case and find that the Defendant was a “supervised offender” at the time of the filing of the application on 14 November 2017. As will be seen, the Defendant was convicted and sentenced to imprisonment in 1988 by Wood J for a number of offences under s.66A Crimes Act 1900. I am satisfied that the offences under s.66A Crimes Act 1900 are caught by s.5(1)(a) HRO Act. If there was any doubt about that conclusion (and there is not), I would nevertheless have been satisfied that the Defendant’s s.66A offences committed in the period 1986 to 1988 would fall within s.5(1)(c1) HRO Act.

5. [18]

   I adopt the reasoning of Walton J in State of New South Wales v TT (Preliminary) at [29]-[50] where his Honour held that offences under s.471.19 Criminal Code (Cth) were “offences of a sexual nature” (s.5(2)(h4) HRO Act ) with the Defendant being subject to a recognisance under s.20(1)(b) Crimes Act 1914 (Cth), as part of a sentence of imprisonment, at the time when the present proceedings were commenced in this Court on 14 November 2017.

6. [19]

   In addition, I am satisfied of the following statutory requirements (which were not disputed by the Defendant):

Consideration of Factors Relevant to the Application for an ESO

1. [20]

   Section 9 HRO Act is concerned with the determination of an application for an ESO. Section 9 provides:

2. [21]

   Section 10 HRO Act provides for the duration of an ESO:

3. [22]

   In the present case, the Plaintiff seeks an ESO for a period of three years and that application is not opposed by the Defendant.

4. [23]

   Section 11 HRO Act provides for conditions that may be imposed as part of an ESO. Section 11 states:

Consideration of Matters Referred to in s.9(3) HRO Act

1. [24]

   Section 9(3) requires the Court to have regard to certain specified matters on an application for an ESO together with any other matters which the Court considers relevant. It is appropriate to consider matters relevant to the Defendant under the subheadings contained in this provision.

2. [25]

   The Defendant was born in December 1954 and his history of relevant offending extends back to 1976. As will be seen, the Defendant has a substantial criminal history for sex offences and offences of violence as well as property offences.

3. [26]

   The Defendant’s near 40-year history of offences of a sexual nature was summarised neatly by Dr Andrew Ellis in his report dated 18 February 2018 (page 7):

4. [27]

   It is necessary to refer to the Defendant’s history of offending in greater detail.

5. [28]

   Between 1971 and 1976, the Defendant committed a range of dishonesty and driving offences for which he was fined and disqualified in Courts of Petty Sessions.

6. [29]

   The Defendant's first offence of a sexual nature occurred in 1976 (at the age of 21), when he was convicted for the offence of wilful and obscene exposure. On 1 November 1976, he was sentenced at the Campsie Court of Petty Sessions by way of a three-year good behaviour bond and a fine. This offence involved the Defendant standing naked from the waist down in a public park in Canterbury, Sydney, and thereafter exposing his erect penis to teachers and a number of school girls from a local school. The Defendant remained in that state of undress for approximately 10 minutes, before he fled when uniformed police arrived. The Defendant claimed, at the time of his arrest, that he was under the influence of marijuana.

7. [30]

   In the period between 1979 and 1986, the Defendant was placed on good behaviour bonds, fined or sentenced to short periods of imprisonment for various offences of dishonesty and driving offences.

8. [31]

   On 14 December 1988, the Defendant was sentenced by Wood J (as his Honour then was) in the Supreme Court of New South Wales after he pleaded guilty to nine counts of having sexual intercourse with a child between the ages of 10 and 16 years, 14 counts of committing an act of indecency, seven counts of inciting an act of indecency and one count of attempted sexual intercourse with a person under 10 years. The Defendant was sentenced to imprisonment for a total effective period of 15 years, commencing on 7 August 1988, with a total non-parole period of 10 years and three months. The Defendant lodged an application for leave to appeal against sentence to the Court of Criminal Appeal, but he abandoned that appeal on 9 June 1992 with an order being made by the Court that time was to count.

9. [32]

   The matters for which Wood J sentenced the Defendant related to a series of offences between the years 1986 and 1988 and involved seven girls, variously aged between seven and 14 years at the time of the offending.

10. [33]

    The first series of offences relate to the Defendant's daughter when she was aged between seven and nine years of age, and occurred between 23 March 1986 and 5 February 1988. Within this series, there were:

11. [34]

    Two of those counts related to an incident where the Defendant took his daughter and three other victims to a motel in Parramatta on 5 February 1988. Wood J described that episode as follows:

12. [35]

    The second series of offences related to the niece of the Defendant, and occurred between 1 June 1987 and 5 February 1988, when the victim was approximately 10 years of age. This group of offences consisted of:

13. [36]

    The third series of offences concerned the sister of the niece, the subject of the second series of offences. Two offences of having sexual intercourse with a child under 10 years were committed on 5 February 1988.

14. [37]

    The fourth series of offences related to the daughter of a friend of the Defendant. These offences were committed between 1 April 1986 and 31 January 1988 when the victim was aged between nine and 11 years of age. These offences consisted of:

15. [38]

    The fifth series of offences related to the daughter of another friend of the Defendant. Two offences of committing an act of indecency were committed between 23 March 1986 and 31 December 1987 when the victim was aged between eight and 10 years.

16. [39]

    The sixth series of offences relate to yet another daughter of a friend of the Defendant. These offences were committed between 1 January 1987 and 28 February 1987 when the victim was aged 14 years. These offences consisted of:

17. [40]

    The seventh, and final, series of offences related to the niece of a woman who was living in a de facto relationship with the Defendant at the time. Six offences of committing an act of indecency were committed between 1 May 1986 and 1 November 1987, when the victim was aged between 10 and 13 years.

18. [41]

    In sentencing the Defendant, Wood J observed that:

19. [42]

    On 10 May 1989, The Defendant was sentenced by his Honour Judge Court QC at the Parramatta District Court for a range of offences including two offences of having sexual intercourse with a male under 18 years of age contrary to s.78K Crimes Act 1900, break, enter and steal (four counts), larceny (five counts), break and enter with intent to steal and entering a building with intent to steal. The sexual offences were committed on 10 February 1986, when the Defendant picked up a 13-year old boy who was hitchhiking in Mudgee. The Defendant drove him to his own home at St Clair where the child stayed the night. The following day, the Defendant showed him a “Playboy” magazine and committed fellatio on him. The following night, the same thing occurred. The child stayed until 15 February 1986, when he was driven to Lithgow and caught a bus back to Mudgee. The Defendant pleaded guilty to the charges. The sentencing Judge was aware of the sentences imposed on the Defendant by Wood J on 14 December 1988. For the sex offences, the Defendant was sentenced to concurrent terms of imprisonment for four years to date from 4 April 1988.

20. [43]

    On 17 January 1997, following pleas of guilty, the Defendant was sentenced by his Honour Judge Mitchelmore at the Sydney District Court for two counts of armed robbery and one count of possession of an unlicensed firearm committed by the Defendant in September 1996. The sentencing Judge noted that the Defendant had been released on parole in June 1995. The offences were committed whilst the Defendant was on parole. For those offences, the Defendant received an effective sentence of imprisonment for a period of seven years and six months commencing on 9 September 1996, with a total effective non-parole period of four years and three months. It was noted that this offending occurred in the context of the Defendant's addiction to heroin.

21. [44]

    On 5 August 2002, following pleas of guilty, the Defendant was sentenced in the District Court of Queensland at Beenleigh by his Honour Judge Nase for four counts of indecent treatment of a child under 12 years of age and two counts of indecent treatment of a child under 16 years of age. For those offences, the Defendant was sentenced to a probation order for a period of three years. The facts underpinning the offending were that on 29 July 2001, the Defendant (aged 46) had exposed himself to two children, after he had been consuming alcohol.

22. [45]

    On 8 June 2006, following pleas of guilty, the Defendant was sentenced by his Honour Judge Ellis at the Parramatta District Court for three counts of armed robbery with a dangerous weapon (pistol), one count of break, enter and steal, one count of obtaining a benefit by deception, and one count of take and drive conveyance without consent. Seven further counts of larceny, two further counts of break, enter and steal, four further counts of take and drive conveyance without consent, and one further count of obtain money by deception were taken into account on a Form 1 in relation to the sentence imposed for one of the primary counts of armed robbery. The offences were committed between January and August 2005. The offences involved armed robberies of cash from clubs and a hotel where the Defendant was armed with a firearm and threatened staff. For those offences, the Defendant was sentenced to an effective period of imprisonment of seven years and seven months commencing on 4 August 2005, with an effective non-parole period of five years and one month expiring on 3 September 2010. It was noted in the remarks on sentence, that the Defendant had been affected by drugs at the time of the offending, and was also involved with other criminal associates.

23. [46]

    On 11 October 2011, the Defendant was sentenced at the Burwood Local Court for shoplifting by way of a two-year good behaviour bond.

24. [47]

    On 30 November 2011, the Defendant was sentenced at Cessnock Local Court to a term of imprisonment for six months for larceny.

25. [48]

    Finally, reference should be made to the index offences to which brief mention was made earlier in this judgment.

26. [49]

    On 13 October 2016, following pleas of guilty, the Defendant was sentenced by his Honour Judge Hunt at the Campbelltown Local Court for three counts of using a carriage service to access child pornography contrary to s.474.19(1) Criminal Code (Cth). The offences were committed in December 2015. Two of the offences related to child pornography containing short stories concerning boys and girls which were categorised on the Child Exploitation Tracking System (“CETS”) scale as being Category 4 (penetrative sexual activity involving children or both children and adults) or Category 5 (sadism or bestiality). The third offence involved the Defendant viewing 167 child pornography images which depicted minors naked, exposing their genitals and sexual activity between children including oral and penetrative intercourse. Some 24 images were Category 4 images.

27. [50]

    The police investigation of the Defendant involved the use of listening devices to record conversations involving the Defendant in January 2016. On an occasion on 16 January 2016 when the Defendant was alone in his vehicle, he said to himself:

28. [51]

    On the first count, the Defendant was sentenced to a term of imprisonment for a period of 18 months commencing on 4 February 2016 and expiring on 3 August 2017. For the second count, the Defendant was sentenced to a further term of imprisonment for a period of 18 months commencing on 4 May 2016 and expiring on 3 November 2017. For the third count, the Defendant was sentenced to a further term of imprisonment for 18 months commencing on 4 August 2016 and expiring on 3 February 2018. The Defendant was sentenced to a total effective period of imprisonment of two years. In sentencing the Defendant, the sentencing court ordered, pursuant to s. 20(l)(b) Crimes Act 1914 (Cth), that after one year and two months, the Defendant was to be released upon entering into a recognisance.

29. [52]

    The recognisance had three conditions attached to it by the sentencing court:

30. [53]

    The Defendant has been under supervision of Community Corrections officers (including taking part in Forensic Psychology Services counselling) since 3 April 2017 when he was released on a recognisance.

31. [54]

    In sentencing remarks on 14 December 1988, Wood J found that each of the series of offences were representative acts selected out of a wider history of sexual misconduct directed at each of the victims. His Honour noted that the conduct was spread over a period of two years and that a number of the offences were committed whilst the Defendant was on bail.

32. [55]

    Wood J described the offences in the following way:

33. [56]

    With respect to the objective seriousness of the offences, his Honour said:

34. [57]

    Wood J said with respect to the Defendant's subjective case:

35. [58]

    Wood J said with respect to the Defendant's risk of re-offending:

36. [59]

    In his sentencing remarks delivered on 13 October 2016, his Honour Judge Hunt assessed the objective seriousness of the Defendant's offending in relation to the three child pornography offences as follows:

37. [60]

    His Honour concluded that the seriousness of the offences included the number of images at Level 5 on the CETS scale (including sadism and humiliation) together with the age of the children. A little later, his Honour noted:

38. [61]

    The sentencing Judge observed that there was “a level of compulsion” about the Defendant’s offending.

39. [62]

    His Honour Judge Hunt observed with respect to specific deterrence:

40. [63]

    Section 9(3)(b) requires the Court to have regard to the reports received from persons appointed under s.7(4) HRO Act.

41. [64]

    Dr Martin said that he conducted a 90-minute interview with the Defendant on 24 January 2018. The Defendant claimed to have no urge to re-offend. The Defendant said that he worked 10-12 hours a day and would have to get up earlier than 4.00 am to charge the monitoring anklet if such a condition was imposed. He said he willingly attends non-compulsory psychology sessions every three weeks. He claimed that he had been told by a drug and alcohol “psychiatrist” at an assessment at Canterbury Hospital four or five months before that he did not need to re-attend.

42. [65]

    The Defendant told Dr Martin that he had attended a sex offenders program in Cooma and Cessnock gaols many years ago, which was why he had refused to undertake the Custody-Based Intensive Treatment (“CUBIT”) Sex Offender Program "because I knew all about it, done it all before". He described drinking half a dozen beers at the weekend or three stubbies at the club occasionally. He reported a history of using cannabis in the 1980s and then amphetamines and heroin that led to his robbery offending from after 1995. He claimed that he had been affected by amphetamines during his indecent exposure offending in Brisbane (the 2001 offences, the facts for which referred to drinking alcohol) and had used methylamphetamine intravenously for about two weeks leading up to the offending involving child pornography in December 2015. He said his browsing of pornography occurred over a period of about 10 days.

43. [66]

    The Defendant denied any childhood history of trauma including sexual abuse. He claimed his offending against children occurred whilst he was on drugs and that he does not allow himself to think about sex with children or look at internet pornography. He said that his browsing of under-age internet pornography lasted about 10 days.

44. [67]

    Dr Martin noted that there was no evidence of more recent anti-social behaviour in the case notes. He noted the comments that the Defendant had made to a parole officer in 1988 about his child sex offending that a child had enticed him into having sexual intercourse and that she was a consenting partner. Dr Martin observed that these comments "are consistent with cognitive distortions seen in paedophilic sex offending".

45. [68]

    Dr Martin expressed the following diagnosis concerning the Defendant (report, 6 February 2018, pages 16-17):

46. [69]

    Dr Martin reached the following conclusion concerning the Defendant’s risk of reoffending (page 17):

47. [70]

    Dr Martin applied the HCR-20 (version 3), a tool for assessing the risk of violence. Using the HCR-20, Dr Martin concluded that the Defendant constituted a high risk of offending. Using the Risk of Sexual Violence Protocol (“RSVP”) the Defendant showed factors associated with an increased risk of offending.

48. [71]

    Dr Martin addressed the term and conditions of any ESO (page 20):

49. [72]

    Dr Ellis stated that he examined the Defendant on 30 January 2018 for two hours. The Defendant reported usually getting eight hours sleep a night. He said that he had been prescribed antipsychotic and antidepressant medications in custody, but only to assist with feelings of shame, stress and being on drugs. The Defendant claimed to have good insight from the psychological programs he had taken part in, including about the effects of child sexual abuse on children.

50. [73]

    In terms of substance use, the Defendant said he drank two-to-three schooners once a fortnight, used cannabis until the early 2000s, used amphetamines from his late 20s for four-to-five years intravenously, ice (methylamphetamine) from 1995 and last used it in 2015 (for two weeks, when viewing pornography which he said was not limited to child pornography). It should be noted that the Defendant’s substance use history provided to Dr Ellis differs in some respects from that provided to Dr Martin, including current alcohol intake and the time when cannabis use ceased. The Defendant said he had never attended drug and alcohol rehabilitation.

51. [74]

    The Defendant claimed to have been intoxicated on the two occasions he exposed himself to children (once aged 21 and once aged 48). He claimed only to have been interested in children when on "heavy drugs". He claimed to have little recall of the sexual and robbery offences, providing an "impoverished account” and saying that "one thing leads to another".

52. [75]

    The Defendant said he had revised his view that child pornography did no harm, after therapy, and that he would miss psychological therapy if not subject to an order, although he wished to continue with that therapy. The Defendant was of the view that he was not a risk to anybody.

53. [76]

    Dr Ellis expressed the following diagnosis (report, 18 February 2018, pages 11-12):

54. [77]

    Dr Ellis pointed out that the STATIC 99R instrument does not discriminate by type of offending and would include sexual offending that was not serious sex offending. He agreed with the assessment of a score of “6” provided by Dr Richard Parker in a risk assessment report dated 2 August 2017, to which reference will be made later in this judgment.

55. [78]

    Dr Ellis referred to risk factors for the Defendant (page 13):

56. [79]

    Dr Ellis said (pages 13-14):

57. [80]

    Dr Ellis noted that the Defendant had reasonable family, accommodation and employment supports but limited professional supports if unsupervised. His ability to cope with stress without resorting to lapses into substance use has yet to be significantly tested, and "this indicates a moderate-high need for professional services and plans to contain the potential for violence", but maturity may impact on reducing physical violence risk.

58. [81]

    Dr Ellis said with respect to the need for supervision (page 15):

59. [82]

    With respect to the term and conditions of an ESO, Dr Ellis said (page 15-16):

60. [83]

    Section 9(3)(c) requires the Court to have regard to the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing a further serious offence, the willingness of the Defendant to participate in any such assessment and the level of the Defendant’s participation in any such assessment.

61. [84]

    Assessments have been conducted with respect to the Defendant on a number of occasions since 1976.

62. [85]

    On 26 October 1976, a report was prepared by Dr E Fischer, senior psychiatrist, Prison Medical Service, for the Defendant’s 1976 wilful and obscene exposure offence. Dr Fischer expressed the view that the Defendant "presents as a young man with a personality disorder'', although not "any overt psychiatric illness". He also observed that the Defendant "has no insight whatsoever". Dr Fischer concluded that the Defendant's case should be treated "purely and simply on its legal merits", rather than by reference to any "psychiatric disturbance or symptomatology".

63. [86]

    On 14 October 1982, a report was prepared by Ms Audrey Lamb, clinical psychologist, at the request of the Defendant in the context of a "serious count of stealing" with which he was then charged. Ms Lamb described the Defendant as "a man suffering from depression and low self-esteem who has problems in accepting his sexuality" and who is "unable in times of stress to foresee the consequences of his actions". The reference to the Defendant's "sexuality" appears to be a reference to "consistent strains in [the Defendant's] marriage sexually", rather than a reference to any propensity for sexual offending.

64. [87]

    On 23 May 1989, a report was prepared for the Classification Committee by Ms Tracey Jones, psychologist, Department of Corrective Services with respect to the Defendant’s prison classification for the sentences passed by Wood J on 14 December 1988. This report expressed a number of positive views about the Defendant, including that he was "obviously distressed about the offences", he "exhibited a great deal of insight into his behaviour", "[Rationalisation] for the offences was limited" and he "seems to accept responsibility for both the crimes and the length of sentence he was given". Contrary to some of the Defendant's claims about his sexual offending at this point, Ms Jones recorded that "[d]rug dependency does not seem a major issue". Ms Jones concluded that "it may be advisable for [the Defendant] to attend the Sex Offenders Program at Cooma", although she noted that this may not be necessary as "he has expressed a great deal of insight into his behaviour".

65. [88]

    On 6 December 1992, a report was prepared by Mr Kevin Wallis, psychologist, seemingly at the request of the convenor of the Sex Offenders Program at Cooma, in which the Defendant participated in the early 1990s. Mr Wallis described the Defendant's offences as "confounding" (because "he has been indoctrinated to the criminal ethic to despise the child molester") and suggested that "[I]t is impossible to come up with an [sic] plausible explanation" as to why they were committed. Mr Wallis expressed a number of positive views about the Defendant, including that he "does not present as being amoral”, he "has never tried to excuse his offences", he "has been candid about his offences and accepts he is totally responsible for [them]" and he "says he is ashamed of what he has done". Ultimately, Mr Wallis assessed the Defendant "as having low risk of committing a future sex offence".

66. [89]

    On 7 March 1995, a report was prepared by Mr Lyndon Newell, psychologist, Department of Corrective Services. Whilst Mr Newell noted the Defendant's "tendency to impulsivity in behaviour" and "indicators of a personality type characterised by addiction problems", he also expressed a number of positive views about the Defendant, including that he "has not attempted to minimise nor rationalise his offending behaviour", he had not shown any reluctance to explore "past behaviour", which was consistent with "acceptance of responsibility and insight concerning the offences" and he had achieved "apparent emotional stability". Mr Newell concluded that “I cannot see any factors that he is particularly a risk of acting out physically toward others nor a risk of similarly reoffending".

67. [90]

    On 12 May 1999, a report was prepared by Ms Louise Adams and Ms Zaki Alto, psychologists at the Long Bay Correctional Centre, with respect to a request from the Defendant to participate in a "day leave/works release" program whilst in custody for the armed robbery and related offences for which he was convicted in 1996. This report is notably less positive about the Defendant than some of the previous psychiatric/psychological reports. In particular, the authors comment unfavourably on the Defendant's "reluctance" to discuss his previous sexual offences and his refusal to participate in the CUBIT Sex Offender Program. Further, the authors used an actuarial tool (the Actuarial Risk Assessment (“RRASOR”)) to estimate the Defendant's risk of sexual recidivism as being 49.8% within a five-year period and 73.1% within a 10-year period. Ultimately, the authors assessed the Defendant as posing a "high risk" to the community of engaging in "sexual re-offending". However, this assessment was based in part on information that suggested that the Defendant had never participated in a treatment/rehabilitation program for sex offenders, when in fact, he had participated in the Sex Offenders Program at Cooma in the early 1990s. In a short report dated 7 June 1999, Ms Adams and Ms Alto clarified this aspect, noting the contents of the report of Mr Wallis dated 6 December 1992.

68. [91]

    A report dated 1 November 1999 was prepared by Ms Lyn Vidler and Ms Anne Young, psychologists, Department of Corrective Services, in the context of a request from the Defendant to participate in a "day leave" program whilst in custody for the armed robbery and other offences for which he was sentenced in 1996. The authors of this report assessed the Defendant in an even less favourable manner than the report of Ms Adams and Ms Alto. The following features of this assessment should be noted:

69. [92]

    Two further reports dated 7 February 2000 and 30 May 2000 were prepared by Ms Vidler and Ms Young. Although prepared for different purposes, they reached the same conclusions, and depend upon the same basic reasoning, as expressed in the report of 1 November 1999.

70. [93]

    On 6 March 2006, a report was prepared by Ms Emma Collins, psychologist, at the request of the Defendant's solicitor, whilst the Defendant was in custody for the 2005 armed robbery offences. Ms Collins characterised the Defendant as someone affected by "late onset anti-social behaviour" after "his relatively good early adjustment”. She also stated that "risk assessment would suggest that [the Defendant] has a high chance [of] relapse" in respect of sexual re-offending. It recommended (amongst other things) ongoing psychological treatment.

71. [94]

    A report dated 14 May 2010 was prepared by Ms Randa Abdelsayed, forensic psychologist, Dawn De Loas Centre, at the request of the Defendant's parole officer. The report contained a summary of some of the Defendant's "contact” with psychology programs offered by the then Department of Corrective Services. Notably, it recorded that the referral of the Defendant to "the Sex Offender Programme (SOP) ... has been explored with [him] in the past”, but that "[h]e does not wish to participate in an assessment for the programme as he feels that his historical offences have been dealt with during the sentence in question". Ms Abdelsayed expressed the view that, as at 2010, the Static-99R was "not a suitable instrument in the Defendant's case given the time lapse since the sexual offences". In expressing this view, Ms Abdelsayed appeared to have overlooked the 2002 exposure offences in Queensland, and to have focused on the 1988 and 1989 sexual offences. This may be contrasted with the Static-99R assessment completed in 2010 and 2011.

72. [95]

    A risk assessment report dated 2 August 2017 was prepared by Dr Richard Parker, psychologist, at the request of Corrective Services NSW in anticipation of the present application. Dr Parker did not himself interview the Defendant for the purpose of this report. He relied upon an interview with the Defendant by one of his colleagues (as well as Dr Parker’s examination of extensive documentary material).

73. [96]

    In relation to the task of assessing the Defendant’s risk of re-offending, Dr Parker made the following observations:

74. [97]

    A report was prepared by Mr Andrew Sandercock, Community Corrections Officer, dated 25 August 2017. In that report, Mr Sandercock proposed that a risk management plan would require a number of "management strategies" which could be tailored to the particular "risks" in the Defendant's case. Those strategies included:

75. [98]

    The Defendant participated in the Sex Offenders Program at Cooma in the early 1990s when he was serving sentences of imprisonment imposed on 14 December 1988.

76. [99]

    However, subsequent psychological risk assessments, including the most recent assessment conducted by Dr Parker, indicated that the Cooma program was not of a sufficiently high intensity for an offender with the Defendant's profile.

77. [100]

    The Defendant completed that program many years ago, and has refused to participate in the more intensive program, the CUBIT Sex Offender Program.

78. [101]

    Since being released on the recognisance release order in April 2017, the Defendant has participated and engaged with the Forensic Psychological Service Risk Management sessions.

79. [102]

    The Defendant has also participated in and completed a number of other programs that do not directly address his sexual offending:

80. [103]

    The Plaintiff submitted (and I accept) that despite some reports that the Defendant has been generally compliant with supervision when subject to parole, this had not been sufficient to prevent him from using illicit drugs and re-offending.

81. [104]

    It is also notable that at least some of the Defendant's offending, including the most serious sexual offences in 1988 and the armed robbery offences in 2005, were committed whilst he was subject to conditional liberty. A number of the sex offences for which the Defendant was sentenced in 1988 were committed whilst he was on bail. The armed robbery offences, charged in September 1996, were committed whilst the Defendant was on parole for the sex offences charged in 1988.

82. [105]

    These factors do not assist the Defendant on the present application.

83. [106]

    There is nothing to suggest that the Defendant has not complied with these obligations.

84. [107]

    Whilst the Defendant was serving his 1988 sentence for sex offences, he was further charged on 3 August 2000 with four counts of sexual assault, two counts of attempted homosexual assault with a male under 10 years and four counts of homosexual assault with a male under 10 years. However, those charges were ultimately withdrawn.

85. [108]

    I accept the Plaintiff’s submission that a charged crime which is withdrawn (or even where the accused is acquitted) may still be admissible in proceedings under the HRO Act so far as statistical risk assessment issues are concerned: State of New South Wales v Thomas [2010] NSWSC 677 at [39]; State of New South Wales v Conway [2011] NSWSC 976 at [27]-[39].

86. [109]

    As Davies J observed in State of New South Wales v Conway, although these matters would not fall for consideration under the criminal history provision in s.9(3)(h), they may be relevant under factors now contained in ss.9(2) and 9(3)(i), being the safety of the community and other available information as to the likelihood that the Defendant will commit further offences of a sexual nature. Relying on these authorities, the Plaintiff submits (and I accept) that charged but unproved allegations of sexual misconduct for which the Defendant has not been tried (and which are not admitted) could similarly be taken into account at least as a relevant consideration as to risk assessment under ss.9(2), 9(3)(d), and 9(3)(i), but could not be relied on as part of the Defendant’s criminal history under s.9(3)(h) HRO Act.

87. [110]

    All of the factors considered so far relate to the paramount consideration under s.9(2) HRO Act being the safety of the community. The Defendant has presented with an ongoing, strong and enduring sexual attraction to children. Despite the early psychologists’ reports suggesting that the Defendant had displayed some insight into his attraction to children, the Defendant has refused to further participate in appropriate treatment programs such as the CUBIT Sex Offender Program and has a long history of substance abuse which gives rise to serious concern for the safety of the community if the Defendant was to be released without supervision.

88. [111]

    The offences committed by the Defendant in Queensland in 2001 indicate that the confidence placed by psychologists in the 1990s in the Defendant (his not being likely to re-offend) was misplaced, albeit that his sex offending was at a lower level of seriousness than his offending in the 1980s.

89. [112]

    The Defendant’s recent offending with respect to child pornography adds a new dimension to his earlier history of child sex offences. The Courts have observed that child pornography offences are frequently committed by persons of otherwise good character: R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 at 43-44 [63]; Mouscas v R [2008] NSWCCA 181 at [37]; R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at 318 [126]. In this case, the Defendant has a very substantial criminal history including child sex offences committed repeatedly against girls and boys. His recent use of child pornography (and his associated thought processes) is a real cause for concern with respect to the protection of children within the community.

90. [113]

    The reports of Dr Martin and Dr Ellis provide a cogent foundation for contemporaneous concerns with respect to the safety of the community if the Defendant was to be at large in the community without supervision. A further troubling feature is that the Defendant’s wife does not seem to have provided a level of support and control, in that there has been an inability on her part to recognise the clear warning signs of the Defendant’s sexual fascination with children. Accordingly, this subjective feature (which may be a significant one in other cases) does not provide any assistance to the Defendant in this case.

Has the Plaintiff Established that an ESO Should be Made in this Case?

1. [114]

   Section 5B HRO Act provides:

2. [115]

   I have already expressed my satisfaction that the Defendant falls within each of s.5B(a), (b) and (c) HRO Act (see [16]-[19] above). The remaining question is whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

3. [116]

   In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, the Court of Appeal observed that determination whether a risk is unacceptable involves an evaluative task (at 646 [51]). The Court held that the evaluation to be made 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 (at 648-649 [61]).

4. [117]

   The Court must be satisfied “to a high degree of probability” that the Defendant poses an “unacceptable risk” of committing another serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard: Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21].

5. [118]

   Section 5D HRO Act makes clear that the Court is not required to determine that the risk of the Defendant committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence. Accordingly, an unacceptable risk of committing a serious offence can be a risk which is less than 50%: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at 396 [21].

6. [119]

   In determining whether a proper foundation has been demonstrated for the making of an ESO, I have regard to all the evidence before the Court which I have summarised under the various headings contained in ss.9(2) and 9(3) HRO Act. The following features with respect to the Defendant are pertinent to this question:

7. [120]

   I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing further serious sex offences (in particular) if he is not kept under supervision by way of an ESO.

Duration of the ESO

1. [121]

   I am satisfied that an ESO should be made for a period of three years as sought by the Plaintiff. The Defendant does not oppose the making of an ESO of this duration.

2. [122]

   I am satisfied that a period of three years constitutes the minimum period of time for which supervision is required to address the unacceptable risk posed by the Defendant. In reaching this conclusion, I have been greatly assisted by the reports of Dr Martin and Dr Ellis as well as the earlier reports of Dr Parker and Mr Sandercock. A period of three years is appropriate to address the risk and provide for the safety of the community.

3. [123]

   I am satisfied that an ESO for three years will serve the primary object of the HRO Act of ensuring the safety and protection of the community whilst also promoting a further object of the legislation being encouragement of the Defendant to undertake rehabilitation: s.3(1) and (2) HRO Act.

Conditions of the ESO

1. [124]

   A number of conditions have applied to the ISO for the Defendant which has been in operation since 3 February 2018.

2. [125]

   The Plaintiff applies to have all existing conditions attached to an ESO subject to one variation to which I will turn shortly. Ms Cook made submissions concerning Condition 5 with respect to electronic monitoring. Ms Cook submitted that Condition 49, which relates to information sharing, should be modified in its terms.

3. [126]

   At the final hearing, Ms Cook also sought a modification of Condition 16(a) which relates to the ability of the Defendant to go to a school without the prior approval of his Department Supervising Officer (“DSO”).

4. [127]

   With respect to conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached. A proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v Ali [2010] NSWSC 1045 at [88]; State of New South Wales v Fisk at [96].

5. [128]

   Condition 49 of the ISO states:

6. [129]

   Ms Cook submitted that a modification should be made to Condition 49 and the Plaintiff did not oppose this amendment. I am satisfied that the amended form of Condition 49 should be made in this case.

7. [130]

   In the form it will take as a condition of the ESO, Condition 49 will state:

8. [131]

   The Plaintiff seeks the inclusion of Condition 5 concerning electronic monitoring which states:

9. [132]

   Condition 5 has been in place as part of the ISO since 3 February 2018.

10. [133]

    Ms Cook opposed the making of a condition requiring electronic monitoring. In a supplementary submission dated 19 March 2018, Ms Cook submitted that, if the Court was minded to include an electronic monitoring condition, then a sunset clause ought be included as used in State of New South Wales v Kay [2017] NSWSC 254 and State of New South Wales v Weribone [2016] NSWSC 1474.

11. [134]

    Ms Cook submitted that the Defendant had been at liberty in the community subject to the recognisance release order between 3 April 2017 and 3 February 2018 without any requirement that he wear electronic monitoring equipment. Whilst acknowledging the matters raised in the reports of Dr Martin and Dr Ellis arising from their examination of the Defendant in January 2018, Ms Cook noted that electronic monitoring was not urged strongly by either psychiatrist.

12. [135]

    It was submitted for the Defendant that a proper basis must be demonstrated for the imposition of conditions which cannot be unjustifiably onerous or simply punitive: State of New South Wales v Green (Final) [2013] NSWSC 1003. It was submitted, as well, that it will usually be necessary for such a condition to be related to the mitigation of the unacceptable risk arising with respect to the Defendant: State of New South Wales v Burns [2014] NSWSC 1014 at [59]. Relying upon the decision of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89], counsel submitted that the imposition of conditions should not simply be an expression of State paternalism nor should they be imposed to meet what might be thought to be in the public interest in some generalised sense, or because they might be a convenient or resource efficient means of Corrective Services NSW exercising supervision under an ESO.

13. [136]

    Ms Cook submitted that a proper basis had not been demonstrated by the Plaintiff for the imposition of an electronic monitoring condition.

14. [137]

    Alternatively, Ms Cook submitted that a sunset clause should be included if the Court was to order an electronic monitoring condition. It was submitted that setting such a limit would promote the rehabilitation of the Defendant and provide for transparency of the requirements of the ESO whilst achieving the paramount consideration of the safety of the community.

15. [138]

    Mr Aitken submitted that there were particular features of this case which made an electronic monitoring condition highly appropriate. He pointed to the strength of the assessments made in the recent reports of Dr Martin and Dr Ellis as well as the risk management report dated 25 August 2017 of Mr Sandercock which explained the management strategy with respect to electronic monitoring. Mr Sandercock explained that electronic monitoring would allow Community Corrections (and the Electronic Monitoring Unit staff) to closely monitor the Defendant’s movements and his adherence to schedules and curfews. This would operate to minimise opportunities for impulsive behaviour on his part.

16. [139]

    Mr Aitken emphasised the need for electronic monitoring given the occupation of the Defendant as a driver. This work takes the Defendant to different parts of the city of Sydney and sometimes out of Sydney. It is not static work at one place of employment. Whilst noting the desirability of the Defendant being employed, it was emphasised for the Plaintiff that the Defendant’s capacity to place himself in risky circumstances was substantial given his mobile employment. Against this background, it was submitted that electronic monitoring was an important feature of the conditions of an ESO intended to operate in the interests of the safety of the community.

17. [140]

    In a supplementary submission dated 19 March 2018, Mr Aitken opposed the use of a sunset clause as part of any electronic monitoring condition. He submitted that electronic monitoring is intended to function as an ongoing aid to ameliorating the risk of further serious offending posed by the Defendant. Flexibility is said to be required as part of the risk management process. The Plaintiff submitted that a sunset clause removes the inherent flexibility in the present arrangement and replaces it with a predetermined decision which presupposes the likely assessment of risk in 12 months’ time. Mr Aitken submitted that orders made in other cases are of limited assistance as each case turns on its own facts.

18. [141]

    I accept that a condition requiring the wearing of electronic monitoring equipment should not be imposed lightly. A condition of this type involves a measure of interference and inconvenience for a person in the Defendant’s position.

19. [142]

    However, the evidence reveals that, even at the age of 63 years, the Defendant is a significant risk of further offending, in particular with respect to sex offences against children. The capacity for opportunistic sex offending against children will be reduced significantly by the use of appropriate electronic monitoring equipment. This is especially so given the Defendant’s employment which takes him to different places at different times throughout the working day. Indeed, the present case is a good example of the effective use of electronic monitoring in a manner which is intended to operate in the interests of community safety whilst allowing the Defendant to maintain his employment in the community.

20. [143]

    I accept that there is a measure of inconvenience for the Defendant in having to wear electronic monitoring equipment. That said, the equipment may be worn under clothing so that it is not obtrusive. I am satisfied that the electronic monitoring equipment condition should be imposed in this case.

21. [144]

    I have given consideration to the use of a sunset clause in this case. I am not satisfied that such a clause should be included with respect to the Defendant. The electronic monitoring condition will itself have a measure of flexibility as its continuation is at the discretion of the DSO. Further, there will be an assessment of the Defendant’s monitoring stage which will be undertaken every two months. To impose an outer limit of 12 months by way of a sunset clause is not appropriate in this case.

22. [145]

    Conditions 15 and 16(a) as in place under the ISO provide as follows:

23. [146]

    The evidence before the Court reveals that the Defendant’s employment as a driver involves his attendance for work purposes every two months at a school. The Defendant has been subject to Conditions 15 and 16(a) since the commencement of the ISO on 3 February 2018. Conditions of this type did not operate prior to that date when the Defendant was subject to the conditions of his recognisance release order.

24. [147]

    It appears that the Defendant’s employer was aware of his parole-type conditions which operated under the recognisance release order up to 2 February 2018, but that he is not aware of the conditions of the ISO or of the prospect that there may be an ESO with conditions.

25. [148]

    On 14 March 2018, a direction was given to the Defendant for the purpose of Conditions 15 and 16(a) that he must not go to a school including in the course of his employment as a driver. At the final hearing on 15 March 2018, Mr Sandercock gave evidence concerning this issue. Arising from that evidence, it was submitted for the Defendant that there had been no need for such a condition or restriction upon the Defendant in the period between 3 April 2017 and 3 February 2018 whilst he was subject to the recognisance release order. Ms Cook submitted that Condition 16(a) should be varied so that it would operate during the currency of the ESO to allow the Defendant to go to the school for the purpose of his employment as a driver only whilst he was in the direct company of a staff member employed by the Defendant’s employer or a member of school staff (T30-31, 15 March 2018).

26. [149]

    The Defendant has expressed concern to the DSO, and through his counsel to the Court, that if he was unable to attend the school, his employment would be in jeopardy. There is no evidence from the Defendant or his employer on this issue. The Court was informed that the employer is unaware of the present circumstances affecting the Defendant including this application.

27. [150]

    Mr Aitken submitted that the evidence did not provide a foundation for a finding that the Defendant would lose his employment if he could not attend the school. He submitted that the evidence indicated that the Defendant’s work related to one school every two months so that it was not a major part of his employment.

28. [151]

    The evidence does not permit a finding that the Defendant would lose his employment if he was unable to attend a single school every two months for work purposes. This is a minor part of his employment. The evidence indicates as well that the Defendant’s employer thinks highly of him and considers him to be a hard worker.

29. [152]

    It appears, as well, from the evidence that the authorities at the school in question are unaware of the Defendant’s background, let alone the making of the present application. Further, without the employer knowing what is happening, it is not possible for the DSO to confirm with the employer the circumstances surrounding any attendance by the Defendant at the school, including the time of attendance and ensuring that a member of the school staff is with the Defendant at all times when he is on school premises.

30. [153]

    On the face of it, it is not appropriate for the Defendant to be entering school premises unescorted without the school authorities having some knowledge of the position so as to permit those authorities to discharge their duty of care to their own students.

31. [154]

    I accept that the Defendant is placed in a position of difficulty with respect to this aspect if he does not inform his employer of the true position. However, I do not consider that this aspect should militate against the imposition of what is a clearly appropriate condition, designed to operate in the interests of community protection and the safety of children.

32. [155]

    The Defendant has a history of predatory sex offending against children of both sexes. Although his physical sex offending against the persons of children occurred some years ago, the Defendant has committed child pornography offences in recent times which confirm his pervasive interest in sexual activity with children.

33. [156]

    The reports of Dr Martin and Dr Ellis indicate with some force the contemporary nature of concerns with respect to the Defendant in the area of child sex offending and the need to take substantial steps to mitigate risk in that regard.

34. [157]

    In my view, it is quite inappropriate to allow the Defendant to enter a school in circumstances where neither his employer nor the school authorities have knowledge of the true position with respect to him.

35. [158]

    Although the Defendant is concerned that his employment may be at risk, I am not satisfied that there is any objective foundation for that concern given the minor part of his employment which involves attendance at one school every two months. The responsible answer for the Court to give to the Defendant’s concern in this area is to fix a condition which will promote the safety of the community.

36. [159]

    I am satisfied that Conditions 15 and 16(a) should form part of the ESO. These conditions are entirely appropriate having regard to the risk posed by the Defendant and the need for the relevant authorities to take appropriate steps to supervise the Defendant in circumstances of risk.

37. [160]

    I am satisfied that all conditions proposed by the Plaintiff for the ESO in this case are appropriate and should be fixed for the purpose of s.11 HRO Act.

Conclusion

1. [161]

   I am satisfied that the statutory requirements for the making of an ESO have been established in this case. I am likewise satisfied that an ESO for a period of three years should be made.

2. [162]

   I am satisfied that the ESO should be subject to Conditions 1-49 as sought by the Plaintiff with Condition 49 being amended in the manner referred to earlier (at [130]) above).

3. [163]

   With respect to the contested conditions, for the reasons contained in this judgment, I am satisfied that an electronic monitoring condition should be included (without a sunset clause) and that Conditions 15 and 16(a) should apply so that the Defendant must not go to any school without the prior approval of his DSO.

4. [164]

   I make the following orders: