State of New South Wales v Webster (No 2)

By summons filed on 27 June 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Michael Webster (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act.

The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing two psychiatrists to examine the defendant and report to the Court on the examinations.

On 18 July 2016 I heard the plaintiff’s application for an ISO and for orders under s 7(4) and made orders, including an ISO, and published reasons: State of New South Wales v Webster [2016] NSWSC 999. The ISO has since been renewed twice. The renewed ISO was due to expire on Wednesday 12 October 2016 and was extended by order made on 12 October 2016.

The defendant did not oppose the making of an ESO and accepted that it was open to the Court to be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, the defendant contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of three or four years’ duration would be sufficient.

The plaintiff relied on the following evidence:

Samuel Ardasinski, a psychologist who specialises in the risk assessment of sex offenders for the Department of Justice and who prepared a risk assessment report dated 11 November 2015 with Ms Matsuo, was required for cross-examination by the defendant. He gave evidence of the beneficial effect on the defendant of contact with one of his step-sisters, Lisa, who lives in Queensland, and who accompanied the defendant to the hearing on 12 October 2016. He agreed that if an order was made for a shorter time than five years, this may aid the defendant’s reintegration into the community and provide an incentive for him to comply with conditions and refrain from offending. Mr Ardasinski referred to the circumstance that the defendant had been on parole from December 2000 and did not commit a serious sex offence until May 2004, some three and a half years after his release. He calculated, on the basis of the defendant’s prior conduct, that the ESO should be for a period of at least three and a half years but that an ESO for this period would provide some assurance that the defendant had been rehabilitated. In re-examination, Mr Ardasinski confirmed that he had not been privy to the reports of either of the court-appointed experts, Drs Samuel and O’Dea.

Mr O’Neil, who appeared on behalf of the defendant, did not object to any of the plaintiff’s evidence, much of which comprised material that had been produced pursuant to orders under s 25 of the Act (referred to below) and was therefore admissible under s 25(3).

The defendant adduced no evidence. It is not appropriate for me to draw any inference against the defendant by reason of his not giving evidence as the Act does not displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts: State of New South Wales v Donovan [2015] NSWCA 280 at [115]-[119] per Beazley P and Macfarlan and Leeming JJA.

Section 3 of the Act provides:

The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental, as is evident from the wording of s 3(1).

Section 5B provides:

Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision provided by an ESO is sufficient to counter what would otherwise be an “unacceptable risk”. Supervision can only be regarded as “adequate” if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.

Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision (under an ESO) is, relevantly, a supervised sex offender: s 5I(2).

Section 7 deals with pre-trial procedures and what is to occur following the preliminary hearing. It relevantly provides:

Section 9(3) provides that the following (as well as any other matter I consider to be relevant) are to be taken into account in determining whether to make an ESO:

Section 10 provides that an ESO can be made for a total of five years. Section 11 provides for the conditions that may be imposed on an ESO.

These proceedings are civil proceedings and, to the extent to which the Act does not provide otherwise, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: s 21.

Section 25 provides that the plaintiff may, by written order, require the production of documents that relate to the behaviour, or physical or mental condition, of any offender. Any document produced in answer to an order is admissible in proceedings under this Act.

If the threshold test in s 5B is met, the matters to be considered are listed in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.

To the extent to which the evidence at the ESO hearing on 12 October 2016 does not differ from that at the ISO hearing before me on 18 July 2016, I have replicated some of the narrative from my earlier judgment where it is relevant to the question whether to grant an ESO, and, if so, for what period.

The offender was born in 1955. He was convicted of larceny in 1974 and other offences of a similar nature in 1975, 1977 and 1982.

On 15 December 1979 the defendant approached a female who was waiting at the bus stop. According to the victim’s statement, he threatened her with a knife and forced her to accompany him for the purposes of requiring her to masturbate him. She broke away from him and reported the matter to police who charged the defendant with abduction and assault and ill-treat. He was committed for trial on indictment in the Parramatta District Court. On 16 September 1980 he was sentenced for common assault. A term of two years hard labour was imposed with a non-parole period of 9 months and 15 days commencing on 16 September 1980 and concluding on 30 June 1981.

In the morning of 28 September 1982 the defendant threatened a woman in a public street with a knife and abducted her in his car. As he was driving to another place to sexually assault her, she jumped out of the moving car as it slowed to turn a corner and reported the matter to police. On 30 August 1983 the defendant pleaded guilty to abduction with intent to carnally know and common assault. On 7 December 1983 he was sentenced by Gee DCJ to a total term of 10 years from 15 August 1983 with a non-parole period of 4 years and eight months.

On 15 May 1989 the defendant assaulted a prison officer at the Goulburn Training Centre, where he was in custody. He was charged with assault occasioning actual bodily harm. He was convicted and sentenced to six months hard labour, such sentence to date from the expiry of his then current sentence.

On 26 November 1995, at about 10pm, the defendant telephoned the victim in response to an advertisement in the paper for “massage services”. He made a booking and went to her home at about 11pm. He threatened her with a knife and sexually assaulted her. She reported the matter to police who arrested the defendant shortly afterwards. He was charged with threaten to inflict actual bodily harm with intent to have sexual intercourse. He was granted bail. While he was on bail he committed a further three offences of a similar nature. On 6 January 1996 at 3am he arranged for a woman who was to perform “massage services” to come to his house. He threatened her with a knife and sexually assaulted her. The victim reported the matter to police who arrested the defendant on 6 January 1996 and charged him with three offences: threaten to inflict actual bodily harm with intent to have sexual intercourse; aggravated sexual intercourse; and assault occasioning actual bodily harm.

The defendant was assessed by Dr Susan Hayes on 26 June 1996, following which Dr Hayes prepared a pre-sentence report dated 28 June 1996. She took a history of his disrupted childhood. His parents separated when he was six months old. He was brought up by his grandmother. He took up boxing and got into many fights in the playground. He had no friends. He wanted to do the Higher School Certificate but instead began an apprenticeship with BHP as a fitter and turner. This did not work out. The defendant’s father brought him to Sydney. He abused alcohol and drugs, including heroin. He was unable to explain to Dr Hayes why he had committed the offences for which he was to be sentenced. Dr Hayes concluded:

The defendant remained in custody until he was sentenced for the four offences referred to above by Karpin DCJ on 10 December 1996. The total sentence commenced on 6 January 1996 and expired on 24 December 2006. In the remarks on sentence, his Honour described the facts of the offences as “disturbing”. Of the victim of the first offence, his Honour said:

Of the victim of the second offence, his Honour said:

His Honour concluded:

His Honour also made reference to the need for counselling which had been recommended by Dr Hayes, whose report was tendered at the sentence hearing.

While the defendant was in custody he attended a 16-session group-based program known as Sex Offender Psycho-Educational (SOPE) Program which he undertook from 27 July 1998 until 8 December 1998. After finishing this program he undertook and completed the Custody Based Intensive Therapeutic (CUBIT) Program. The CUBIT Program is offered to moderate to high risk sex offenders and is designed to help offenders change the thinking, attitudes and feelings that led to their offending behaviour. He completed the CUBIT Program in February 2000.

After completing the CUBIT Program, the defendant engaged in a “Transitional Program” from March 2000 until December 2000 which involved weekly maintenance meetings.

The defendant was assessed by Dr Anne Young, a psychologist, on 29 May 2000, with a view to determining whether he was suitable for conditional release. Dr Young noted that the defendant had completed the CUBIT Program in February 2000 and that his participation had been consistently high. She considered him to have “developed a realistic relapse prevention plan with appropriate intervention strategies”.

The minimum term expired on 24 December 2000 after which the defendant was released to parole. Between January 2001 and February 2003 the defendant participated in approximately 42 group sessions run from Forensic Psychology Services (FPS). These sessions were interrupted by a period in custody following the offending behaviour referred to below.

On 4 October 2002, while he was still on parole for the sentence imposed by Karpin DCJ, the defendant breached his parole by committing a further offence. He threatened a woman whose de facto husband (who was then in custody) was a friend of his. According to her witness statement, the defendant told her that if she did not have sex with him, he would tell her family that he had had an affair with her while her de facto was in gaol. He grabbed her around the throat with two hands and shook her before letting go. The next day she phoned her de facto (who was still in gaol) who advised her to report the matter to police. The defendant pleaded guilty to the offence of common assault. He was returned to custody for a short period. On 23 January 2003 a community service order was made in the Burwood Local Court for 200 hours of community service.

On 20 May 2004 the defendant approached a woman on a train bound for Penrith and engaged her in conversation. He asked her where she lived to which she responded “Granville”. When she disembarked at Clyde, the defendant got off the train and followed her. He threatened her with a knife, dragged her to a nearby laneway, and demanded money and jewellery. The defendant instructed her to take his penis out and stroke it. She complied as he was threatening her with a knife. She tried to grab the knife, as a result of which she cut her hand. He continually said to her, “Don’t fuck with me, I can’t get girls any other way”. He told her to put his penis in her mouth. The victim tried to calm him down and continued to try to get the knife. A dog began to bark, as a result of which a light came on. The victim heard a male voice. The defendant paused, at which time the victim was able to run away and get help. Police found the defendant at Clyde Station and arrested him. He pleaded guilty to robbery armed with offensive weapon and assault with an act of indecency in the Local Court and pleaded not guilty to threaten to inflict actual bodily harm with intent to have sexual intercourse. The defendant changed his plea to the last offence to guilty in the District Court.

On 12 July 2004 an application was made by the assigned officer of the Burwood District Office for the community service order to be revoked on the grounds of the charges referred to above, as a result of which he was taken into custody.

A pre-sentence report dated 26 July 2005 was prepared in respect of the defendant by Dr Peter Ashkar who addressed risk factors and the potential for rehabilitation in the following terms:

Dr Ashkar addressed the need for supervision to manage the risk the defendant poses and said:

On 29 July 2005 Armitage DCJ sentenced the defendant for a total term of 11 years with a non-parole period of 9 years for the three offences referred to above to which he had pleaded guilty. The term commenced on 29 July 2005 and expired on 28 July 2016, with a non-parole period of nine years which expired on 28 July 2014 (the individual sentences are set out in the table below). Judge Armitage set out the following extract from the victim impact statement in the remarks on sentence:

The sentencing judge addressed the impact of the victim in the following passage in the remarks on sentence:

In the further remarks on sentence given on 12 August 2005 (to correct an error in the original sentence imposed), Armitage DCJ said:

The defendant sought leave to appeal against the sentence. The Court of Criminal Appeal granted leave and allowed the appeal, but only so as to set aside the parole order (which was made without power). The appeal against sentence was otherwise dismissed: Webster v R [2006] NSWCCA 346. Justice Sully (Beazley JA, Hislop J agreeing) said:

In 2008, at the Wellington Correctional Centre, the defendant completed the 12-session “Getting SMART” program which was designed to assist offenders with alcohol and substance abuse. In 2009 he completed the Controlling Anger and Learning to Manage it (CALM) Program

On 28 January 2014 the defendant was offered a place in the CUBIT Program (it being six months before his earliest release date). He declined the place on the basis that he had already done the CUBIT Program and considered that he still had the skills and awareness from having completed it.

The defendant became eligible for parole on 29 July 2014. As a result, the defendant was referred to Sarah Willie of Corrective Services New South Wales for the purpose of preparing a report as to his suitability for release.

Ms Willie, in her report dated 21 May 2014, referred to the clinical notes of a Senior Psychologist of the Department of Community Corrections, which recorded that the defendant had been assessed as being a high risk for sexual offences and that he had declined to engage in further sex offender treatment programs (noting that he had completed CUBIT in February 2000). Ms Willie advised the State Parole Authority that the defendant’s release was not recommended “as a result of the serious nature of the index offence [threaten grievous bodily harm with intent to have sexual intercourse]; his assessed high level of risk of committing like offences; his refusal to again complete the CUBIT program and the fact that he has no suitable accommodation”. Bruce Pearce, the Acting Unit Leader of Wellington Community Corrections, supported Ms Willie’s recommendations. He noted the concern that “the offender does not appear to have any insight as to the effect of his offending behaviours on the victim in this matter”.

On 4 July 2014 the State Parole Authority refused the defendant’s application for parole because he had not participated in treatment programs. He did not seek parole again. As a result the defendant remained in custody until the expiry of his sentence on 28 July 2016.

On 2 November 2015, Mr Ardasinski and Danielle Matsuo carried out a psychological risk assessment in respect of the defendant which placed him in the high risk category of sexual offending. In the risk assessment report dated 11 November 2015 Mr Ardasinski and Ms Matsuo identified the factors which tended to increase the risk of re-offending in the following passage:

Ms Ardasinski and Ms Matsuo described the risk posed by the defendant in following terms:

They said further:

A report dated 8 January 2016 was prepared by Vicki McCarthy, Senior Community Corrections Officer, for the purposes of s 9(3)(d1). Ms McCarthy noted the assessment by Mr Ardasinski and Ms Matsuo referred to above. She identified a number of risk factors, including the history of sexual violence and difficulties of social adjustment. She developed a risk management plan, including: the imposition of curfew; unannounced field visits; electronic monitoring combined with the submission of a weekly schedule; a referral to FPS; random drug and alcohol testing; and a prohibition on access to prostitutes or escorts.

The defendant was released from custody on 28 July 2016 to live in the Nunyara Community Offender Support Program (COSP) facility at Malabar. He agreed to certain terms and conditions applicable to residents of the COSP facility, including condition 11 which requires residents to allow staff to search their rooms and personal belongings at any time without interference.

On 24 August 2016 the defendant’s room was searched and his phone examined. They found a number of website addresses on the internet search history which indicated that they were pornographic sites. According to the Facts Sheet, the defendant told police, after having been cautioned:

As he was speaking he pointed to his groin area. Subsequent viewing of the websites accessed showed images of sexual penetration, which attracts a classification of R18+. Viewing such sites constitutes a breach of condition 46 of the ISO imposed on the defendant.

On 25 August 2016 the defendant was arrested and cautioned. He declined to be interviewed. The matter came before the Waverley Local Court on 7 October 2016. The defendant pleaded guilty to an offence of failing to comply with an ISO, was convicted and was directed to enter into a good behaviour bond for 12 months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 7 October 2016 and accept the following conditions: he must be of good behaviour and appear before the court during the bond term if required.

Dr Samuels assessed the defendant on 19 August 2016 over the course of an hour and a half. He considered that the defendant tended to “minimise, deny and rationalise what occurred” and “displayed a considerable lack of empathy for his victims”. Dr Samuels found that it was difficult to get in-depth answers from the defendant, despite the length of the interview.

The defendant told Dr Samuels that he is currently living in a COSP facility but would like to relocate to Queensland to be with his sister, find a job and have a “fresh start”.

Dr Samuels opined:

Dr Samuels considered:

Dr Samuels considered that the defendant presents a high risk of committing a further sexual offence. His view was based on his clinical risk evaluation, his analysis of static and dynamic risk factors, protective factors and actuarial risk factors.

When addressing the factors that affect the risk posed by the defendant to potential victims, Dr Samuels recorded the defendant’s own assessment that when he feels pressured into doing certain things or feels put down or rejected, he tends to become frustrated and to seek a release for his frustration through using substances, attending brothels or engaging in gambling behaviour. Dr Samuels concluded:

Dr Samuels adverted to the risk posed by the imposition of an ESO and considered that a potential consequence of the close oversight associated with an ESO is that the defendant might feel “put upon” and “might act out with potentially serious consequences”. Dr Samuels advised that “even minor breaches [of the ESO] should be taken very seriously as they may be signs that he is going to not comply with the provisions in a potentially more serious way”.

When asked to comment on the appropriateness of the conditions proposed for an ESO, Dr Samuels specifically endorsed condition 29 (that he must not engage the services of sex workers) and 32 (that he must not gamble), which he considered to be risk areas.

Dr Samuels suggested that a five year ESO would be appropriate as the defendant presents as a physically robust man in good health who would pose a risk for “some years”.

Dr O’Dea interviewed the defendant on 29 August 2016 and 1 September 2016 for a total period of three hours. He noted that the defendant displayed “limited insight and remorse and convey[ed] a limited commitment to change”.

On the basis of the defendant’s history of sex offending and reported sadistic sexual fantasies, Dr O’Dea diagnosed him with Sexual Sadism Disorder. Dr O’Dea described the risks associated with this disorder as being “long term, significant and unlikely to be attenuated without specific and ongoing psychiatric treatment”. He also noted Substance Abuse Disorder. He did not diagnose any major psychotic illness.

Dr O’Dea considered that judicious use of anti-libidinal medication would be appropriate to manage the risk posed by the defendant. However, I note that there is no indication that the defendant would consent to such medication. Accordingly, it is not necessary to consider it further.

Dr O’Dea considered that the conditions proposed regarding a prohibition on sex workers and the requirement that the defendant not take non-prescription drugs or alcohol were required because of the association between the defendant’s objectification of his sexual partners, substance abuse and his offending behaviour.

Dr O’Dea considered that, but for the imposition of an ESO on conditions such as those proposed, there would be a significantly high degree of probability that the defendant would pose a significant risk of committing a further “serious sex offence”, as defined in s 5(1) of the Act.

Dr O’Dea concluded:

The defendant is a “high risk sex offender” if I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2).

I am satisfied on the basis of the risk assessment undertaken by Mr Ardasinski and Ms Matsuo, when read in light of the defendant’s substantial and longstanding criminal history, and the opinions of Drs Samuels and O’Dea referred to above that the defendant is a high risk sex offender. He is a supervised sex offender in that he was, at the time the summons was filed, serving a sentence of imprisonment for a serious sex offence: s 5I(2)(a). The statutory requirements for the present application are met as the summons was filed within the last six months of the defendant’s current period of custody.

The matters referred to in s 9 are to be taken into account in determining whether to make an ESO. I propose to address each relevant matter in turn, although I will address the safety of the community (s 9(3)(a)) last as this factor largely derives from the others.

The reports of Drs O’Dea and Samuels are considered above. They both consider the defendant to pose a high risk of sexual re-offending, which can adequately be controlled by an ESO with appropriate conditions such as those proposed by the plaintiff. Each of the experts considered that the maximum term provided by the Act, five years, would be an appropriate duration for an ESO, there being no real prospect of the risk attenuating (other than through the ESO) during that period.

Drs O’Dea and Samuels broadly agree on the relevant diagnoses and, in relation to the diagnosis of Sexual Sadism Disorder, they agree that it is a long-term, entrenched disorder which is not particularly susceptible to treatment or amelioration.

They both considered that the defendant apparently participated well in the lengthy examinations they conducted. On the other hand, they both had difficulty gaining “in-depth” or satisfactory answers to questions concerning the defendant’s offending behaviour, which both attributed to the defendant’s lack of insight to the seriousness of his conduct and its effect on the victims.

The reports of Dr Hayes, Dr Young and Dr Ashkar referred to above are to be considered under s 9(3)(c). They indicated that the defendant has been willing to participate in such assessments. Dr Hayes’ observations about the defendant’s lack of insight would appear to remain relevant. Dr Young’s optimism about the salutary effect of the CUBIT Program would appear to be, in hindsight, misplaced. Dr Ashkar’s report provides some basis for considering that the risk posed by the defendant can be adequately managed in the community with supervision.

The risk assessment report of Mr Ardasinski and Ms Matsuo referred to above assessed the risk posed by the defendant to be high by reference to static and dynamic risk factors.

The reports of Ms Willie dated 21 May 2014 and Ms McCarthy dated 8 January 2016 address the ways in which the offender could reasonably and practicably be managed in the community. Ms Willie was pessimistic about the prospect that the defendant could be appropriately managed in the community if parole were granted. However, Ms McCarthy addressed the mechanisms that could be put in place through conditions imposed on an ISO or ESO which, in her view, could reasonably and practically manage the otherwise unacceptable risk posed by the defendant.

The narrative set out above indicates that the defendant has undertaken several programs, including the SOPE Program in 1998 and the CUBIT Program which he completed in 2000. By and large the defendant has, until recently, engaged in such programs to an apparently significant extent. His participation has been regarded as substantial. Notwithstanding his participation in such programs, his offending behaviour has continued. This tends to suggest that more is required to manage the risk he poses than the mere completion of programs. His recent refusal to undertake the CUBIT Program on the ground that he has already done it and does not need it tends to indicate a lack of insight, having regard to the defendant’s substantial further offending since he completed the CUBIT Program in February 2000.

I note that neither of the court-appointed experts (Drs O’Dea and Samuels) considered that further engagement in such programs would significantly ameliorate the continuing risk posed by the defendant.

While the defendant was on parole for the offences committed in 1995 and 1996, he committed the common assault offence for which he was ordered to perform 200 hours of community service. Before he had completed the requisite number of hours, and while he was still on parole for the offences committed in 1995 and 1996, he committed the offences for which he was sentenced by Armitage DCJ and which led to the current period of imprisonment. The defendant’s recidivism tends to indicate that the offender has not been compliant with conditions of his parole and that such constraints as have applied to him when on parole have been insufficient to control the risk he poses.

About four weeks after his release from custody this year, the defendant accessed pornographic material in breach of condition 46 of the ISO made by this Court. He pleaded guilty to the offence and was, as set out above, dealt with by the Waverley Local Court. In my view, this was not a minor breach. That the defendant, notwithstanding the clear condition of the ISO which prohibited his viewing such material, was prepared to do so is a powerful indication of the continuing risk which he poses. I have referred above to Dr Samuels’ view about the approach to be taken to minor breaches. The need to adopt a vigilant approach to breaches which cannot be categorised as minor would appear to be even greater.

The defendant has a lengthy criminal history. The offences involving violence and of a sexual nature which are most relevant to the present application are summarised below.

The circumstances of his offending conduct are summarised in the narrative above. As a result of his offending, the defendant has spent approximately 19 out of the last 20 years in gaol.

The defendant’s offending reveals the following pattern. He selects, apparently spontaneously and at random, a young adult female who is vulnerable, either because she is walking along a public street, or catching public transport in an area where there are few people, or because she is a sex worker. He threatens the woman with a knife in order to have sexual intercourse with her, or to have her perform sexual acts on him. Aside from possession of a knife, his degree of planning is slight. He apparently shows no regard for the safety of the woman and considers himself to be entitled to use her sexually irrespective of her fear, refusal and her attempts to run away. The nature and duration of the defendant’s offending tends to show that he has little or no capacity to form intimate relationships or to engage in consensual sexual activity. His offending history suggests that he acts on impulse to satisfy a sexual desire without regard to the consequences for his victim, or himself. He appears to have little or no capacity to manage his own risk, regulate his conduct, or control his sexual impulses.

The sentencing remarks of Karpin DCJ indicate the extent to which the defendant poses a danger to the community and her Honour’s concern about the need for the defendant to be supervised on release into the community as a way of ensuring that he does not re-offend.

The sentencing remarks of Armitage DCJ and Sully J (with whom Beazley JA and Hislop J agreed) which are set out above indicate a concern about the danger posed by the defendant to the victim and the extent to which the public needs to be protected from him.

The defendant’s criminal history is set out above. As indicated, he was convicted of common assault arising from his conduct on 15 December 1979 and 4 October 2002. The nature of the charges for which the plea was accepted does not incorporate the sexual element of his conduct (derived from the witness statements) as set out in the narrative above. I have taken these additional matters into account under s 9(3)(i), but not to any significant extent as they were not reflected in agreed facts.

The matters referred to above tend to establish that the defendant, if released without supervision, or without adequate conditions as to supervision, would pose an unacceptable risk to the safety of adult females. Those women who are alone in a public street or on public transport, particularly in situations where other members of the public are not present, and those who provide sexual services for a living are in jeopardy from the defendant.

Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, I am satisfied that the defendant, being a sex offender, poses an unacceptable risk of committing a serious sex offence in the absence of any supervision: State of New South Wales v Donovan at [24] and Lynn v State of New South Wales [2016] NSWCA 57 at [55]. Accordingly, I am satisfied that the defendant is a high risk sex offender within the meaning of s 5B of the Act. I note that, although the extent to which the defendant’s liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions, it is irrelevant to the determination of whether the defendant poses an unacceptable risk: Lynn v State of New South Wales at [44], [55]-[58] (per Beazley P), [128] (per Basten JA) and [148] (per Gleeson JA).

I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to make an ESO pursuant to ss 5C and 9(1)(a) of the Act on the conditions which have been agreed by the parties (referred to below). I am not satisfied that there are any factors personal to the offender which would militate against the making of the order.

It was contended on behalf of the defendant that it was not necessary for an ESO to be for the maximum period of five years permitted pursuant to s 10(1A). Mr O’Neil submitted that the objects of the Act could be met with a supervision order of between three and four years’ duration. He contended that there was much to be said for encouraging and fostering the close relationship between the defendant and his sister, Lisa, who lives in Queensland. He relied on the evidence of Mr Ardasinski to the effect that it may be that the relative distance from his sister in 2004 was a causative or contributing factor in his offending behaviour in 2004. Mr O’Neil drew on an analogy between a carrot (to provide the incentive) and a stick (to provide punishment) and contended that an order for a period shorter than the maximum of five years would provide an appropriate and effective incentive for the defendant not to re-offend and to comply with the other conditions of his ESO.

Mr O’Neil referred me, by way of example, to decisions of this Court in State of New South Wales v Johnson [2016] NSWSC 267 (Hidden J) and Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170 (Button J) in which ESOs for a period less than five years had been made. He also relied on what Hidden J said in State of New South Wales v Conway [2011] NSWSC 925 at [27]-[28]:

Mr Fernandez submitted that the weight of Mr Ardasinski’s opinion, given orally in cross-examination at the final hearing, on the appropriate length of an ESO to be made as a result of the plaintiff’s application was substantially diminished by the fact that he had not been privy to the reports of Drs O’Dea and Samuels.

The diagnosis of Sexual Sadism Disorder is, by its nature, entrenched and tends not to be susceptible to treatment. The long-term risk that the defendant poses to the community is not to be underestimated. His lack of insight into his own risk and the opportunistic impulsivity of his offending behaviour are factors which tend to suggest that rational considerations play little part in his offending behaviour. His inappropriate, criminal and dangerous responses to the frustration of his wishes or desires are, largely, irrational. I regard the prospect that the risk posed by the defendant to the community (and in particular adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as remote, if not entirely fanciful.

Although Mr Ardasinski spoke of the benefits of the defendant’s reintegration into the community after a lengthy period in custody, he did not address (and was apparently unaware of) the diagnosis of Sexual Sadism Disorder made by the two court-appointed experts. In these circumstances, I do not consider that his oral evidence under cross-examination as to the benefits of making an ESO for a term shorter than five years can be given any significant weight. Nor is his evidence sufficient to displace the combined effect of the two court-appointed experts as to the expected duration of the risk posed by the defendant.

These observations ought not be understood as undermining the important role played by the Departmental Supervising Officer in moderating particular conditions as time goes on to give greater latitude to the defendant if his compliance with the ESO is adjudged to warrant it. I understand this flexibility to be a significant means by which the risk posed by persons such as the defendant is ameliorated and managed by Departmental Supervising Officers.

There may be cases where it is appropriate to wait and see what progress, if any, is made over a lesser period, such as three years. However in many cases, including, in my view, the present, this approach will not be appropriate. The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. It can hardly be considered beneficial to engender hope in a defendant so as to incline him to modify his conduct on the basis of the “reward” of an ESO for a shorter term in circumstances where there is a well-established long-term risk, such as would lead the plaintiff to bring a further application for, and this Court to grant, another ESO. This occurred in the case of Mr Steadman, in respect of whom a further ESO, for a period of five years, was made following the expiry of the ESO for three years made by Button J: Attorney General for the State of NSW v Steadman (No 2) [2016] NSWSC 606.

The risk posed by the defendant is unlikely to abate and is not apt to be controlled by any rational thought-processes of which the defendant is capable. The risk he poses is largely the consequence of an entrenched psychiatric disorder which is not susceptible to treatment. There is no reason to suppose that there will be any significant amelioration of what I have found to be the unacceptable risk posed by the defendant in the next five years. It would not, in my view, be appropriate in these circumstances to grant an ESO for a period less than the five-year maximum permitted by the Act.

At the commencement of the hearing on 12 October 2016 the parties announced that they had agreed to an amendment to condition 32 in the schedule to the summons. In its original form, condition 32 read:

The amended form of condition 32 is:

Mr O’Neil informed me from the bar table that the defendant wishes to engage in “pro-social” gambling, and instanced the purchase of raffle tickets at fund-raisers and participating in a Melbourne Cup sweep. He submitted that it was appropriate that I give some encouragement to this type of gambling in these reasons since such activities had the potential to assist the defendant to re-integrate into the community after his lengthy period of custody (from 2004 until 2016).

I am conscious of the opinions referred to above, including of Mr Ardasinski and Ms Matsuo as well as of Dr Samuels, in which experts have expressed the opinion that gambling has been associated with frustration which has led to offending behaviour. The opinions of those experts do not differentiate between forms of gambling. I am not satisfied that a useful distinction can be drawn for present purposes between raffle tickets on the one hand and poker machines on the other. The effect of the amended condition 32 is to put the question in the hands of the defendant’s Departmental Supervising Officer, rather than to impose an outright prohibition on gambling per se. I am satisfied on the basis of the parties’ submissions and agreement, that it is appropriate to do so.

I make the following orders: