State of New South Wales v O’Sullivan (Final)

1. [1]

   By summons filed on 13 December 2021, the State of New South Wales (“the plaintiff”) sought final orders pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that the defendant, Michael O’Sullivan, be subject to an extended supervision order (“an ESO”) for a period of three years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in a schedule to the summons.

2. [2]

   On 17 February 2022, Lonergan J made preliminary orders that were sought in the summons, which included an interim supervision order (“an ISO”) for a period of 28 days, to commence on that date. Subsequently, there were two further ISOs imposed by Bellew J, each for a period of 28 days.

The defendant’s background

1. [3]

   The defendant is aged 49. He was raised by his paternal grandparents. His grandfather and father have both been convicted of sexual offences against children. His father is presently subject to an ESO, his index offending being three counts of sexual intercourse with persons aged between 10 years or over and under 14 years contrary to s 66(1) of the Crimes Act 1900 (NSW). The offences were committed in 2002.

2. [4]

   On 27 March 2001, the defendant was convicted at Bathurst District Court of two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act. These offences were committed in 1996, when he was aged 23 and 24. The victims were the defendant’s stepdaughters (the children of his first wife). The victims were aged between 5 and 6 and between 6 and 7 years old. At the time of the offences, the children were in the defendant’s care whilst his ex-wife was hospitalised overseas. The circumstances of the offending involved the defendant touching each of the victims on their vaginas on the outside of their clothing. A further offence of incite act of indecency on a child under 16, contrary to s 61N(1) of the Crimes Act, was taken into account on a Form 1. The circumstances of the offending involved the defendant asking each of his stepdaughters to touch his penis. For those offences, the defendant received concurrent sentences, comprising a total effective sentence of 30 months imprisonment, with a non-parole period of 18 months. Consequent to the offences, he was placed on the Child Protection Register.

3. [5]

   The sentencing judge, Gibson QC DCJ, said in his remarks on sentence:

4. [6]

   On 10 March 2017, following pleas of guilty, the defendant was sentenced in the District Court by Bennett SC DCJ (“the sentencing judge”) for three counts of use carriage service to groom a child under 16 years for sexual activity in contravention of s 474.27 of the Criminal Code (Cth); one count of use carriage service to solicit child abuse material in contravention of s 474.22 of the Criminal Code; one count of produce child abuse material in contravention of s 91H of the Crimes Act; and three counts of disseminate child abuse material in contravention of s 91H of the Crimes Act.

5. [7]

   The charges arose from material that had been seized by police from the defendant’s residence on 3 June 2014. Police located child pornography videos and photographs on his laptop as well as Skype messages, sent to adults, in which the defendant had described sexually offending against children. Some of the Skype messages referred to a young boy. Photographs of the boy in various states of undress, some of which displayed his genitalia, were located on the defendant’s laptop. Skype messages from the defendant to his father included photographs of the same boy. Online conversations with children about sexual behaviour were located on his phone.

6. [8]

   The defendant received separate sentences for each offence, which comprised an overall sentence of 8 years imprisonment, commencing on 31 May 2014 and concluding on 30 May 2022. A non-parole period of 4 years was fixed, expiring on 30 May 2018.

7. [9]

   The defendant has no entries on his custodial record for misconduct and has no history of non-sexual criminal offending. He received a minimum security classification during his index sentences, holding a C2 classification from April 2017 until his release from custody.

Post-release history

1. [10]

   The defendant was released to parole on 22 January 2020. He initially resided in the Nunyara Community Offender Support Program Centre (“COSP”) and then moved into independent living accommodation on the Central Coast.

2. [11]

   The defendant has received warnings for breaching the conditions of his parole, which are considered below in the context of forensic reports.

3. [12]

   On 19 May 2020, a Child Protection Prohibition Order (“CPPO”) pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) was made against the defendant. It will expire on 18 May 2025. The terms of that order prohibit the defendant:

Relevant provisions of the Act

1. [13]

   The Act relevantly provides as follows:

2. [14]

   The defendant does not dispute that the statutory preconditions required by ss 5B(a)-(c) are established. He also accepts that s 5B(d) is open to being established to the Court’s satisfaction.

3. [15]

   I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied, for the following reasons.

4. [16]

   In relation to s 5B(a), the term “serious offence” is defined in the Act as follows:

5. [17]

   Accordingly, of the index offences, one of the Criminal Code offences, that is, the three counts contrary to s 474.27, and both Crimes Act offences satisfy s 5B(a) of the Act. With respect to the Crimes Act offences, s 5B(a) is satisfied because s 91H comes within Div 15A of Pt 3 of the Crimes Act. In relation to s 5B(b) of the Act, the term “supervised offender” is defined in s 5I of the Act, which provides as follows:

6. [18]

   At the time the summons was filed, the defendant was a “supervised offender” for the purpose of s 5I of the Act, thus satisfying s 5B(b). As to s 5B(c) of the Act, the balance of s 5I is also satisfied.

7. [19]

   I return to consider s 5B(d) and note that the meaning of “a high degree of probability that the offender poses an unacceptable risk” is qualified by s 5D of the Act:

8. [20]

   I note that, pursuant to s 5B of the Act, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites are satisfied.

9. [21]

   Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon other orders made by Lonergan J, reports have been furnished to the Court by Dr Jeremy O’Dea, forensic psychiatrist, dated 11 April 2022 and Patrick Sheehan, forensic psychologist, dated 1 April 2022. Accordingly, I note that the latter requirement was complied with.

10. [22]

    The Act stipulates objects and a paramount consideration to be taken into account when determining an application for an ESO:

Section 9(3) of the Act: forensic reports and evidence

1. [23]

   The two reports that have been prepared pursuant to s 7(4) of the Act, in my view, are relevant to all matters identified in s 9(3), except for ss 9(3)(h) and (h1).

2. [24]

   Dr O’Dea assessed the defendant on 21 March 2022. He took a family and personal history and reviewed the defendant’s progress in custody and on parole. By way of background, Dr O’Dea noted the contents of a report dated 30 July 2021 that had been prepared by Sarah Wright, Senior Psychologist, Serious Offenders Assessment Unit, and endorsed by Cherice Cieplucha, Chief Psychologist, Risk Management Programs.

3. [25]

   Ms Wright referred to the treatment report concerning the defendant’s performance in the High Intensity Sex Offender Treatment Program (“HISOP”) program:

4. [26]

   Ms Wright summarised risk assessments of the defendant that had been conducted whilst he was in custody:

5. [27]

   Dr O’Dea extracted a further passage from Ms Wright’s report that concerned the defendant’s progress since his release on parole:

6. [28]

   Dr O’Dea diagnosed the defendant as follows:

7. [29]

   As to the history of attempted treatment of the defendant’s paedophilic disorder, Dr O’Dea stated:

8. [30]

   Dr O’Dea recommended that anti-libidinal medication be considered as a form of risk management for the defendant. As to the level of risk of the defendant sexually reoffending, as is relevantly understood in an application of this type, Dr O’Dea stated, with reference to the proposed schedule of conditions of an ESO:

9. [31]

   Dr O’Dea considered that the length of a management program, from a psychiatric risk management perspective, should be at least five years and should be reviewed every six to 12 months.

10. [32]

    Mr Sheehan assessed the defendant on 30 March 2022. He utilised certain assessment tools in forming an opinion as to the defendant’s current level of risk of sexually reoffending. The defendant scored a 6 on the Static-99R which, as its name suggests, assesses static factors. That score placed the defendant in the “Well Above Average Risk” category relative to other male sexual offenders.

11. [33]

    Dynamic risk factors were assessed with the deployment of the Risk of Sexual Violence Protocol, or RSVP. Mr Sheehan considered each of the dynamic factors that are relevant to his vulnerability to sexually reoffending and concluded that, overall, his level of risk is in the “high risk” category, or at the upper end of the risk spectrum, relative to other adult male sexual offenders. He noted:

12. [34]

    Mr Sheehan’s opinion as to the defendant’s progress in addressing his vulnerability to reoffending was, essentially, mixed. While he had completed two years of parole without reoffending or revocation, there remained:

13. [35]

    Mr Sheehan concluded that he was unable to express confidence that the defendant has advanced to the point where he could manage himself independently in the absence of intensive supervision, and therefore an ESO was appropriate. He considered that the duration sought, being three years, was appropriate.

Section 9(3)(h1) of the Act: views of the sentencing court

1. [36]

   In relation to s 9(3)(h1) of the Act, which concerns “the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender”, I note that the sentencing judge for the index offences accepted an opinion expressed in a report by a forensic psychologist and tendered on the sentence hearing that the defendant presented with a high risk of reoffending. This was in no small measure due to the sexual abuse that he experienced as a child at the hands of his paternal grandfather and unassisted by the sexualisation of children by his father and grandfather. His Honour noted that the defendant gave evidence at the hearing, and accepted that his expressions of remorse were genuine and that he wished “to be rehabilitated”, although whether that desire was realistic remained to be determined.

Determination

1. [37]

   I am cognisant of the terms of ss 5B(d) and 5D of the Act and I have regard to the matters identified in s 9(3) of the Act. I note that the defendant has all but completed his parole without revocation and, save for some initial concerns, satisfactorily. However, I accept the opinion of both forensic experts that the defendant continues to present a high level of risk of committing another serious offence, in particular, a serious sex offence as defined in s 5 of the Act.

2. [38]

   I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision by way of an ESO. In so finding, I determine not to exercise the statutory discretion in favour of the defendant, there being no apparent reason on the evidence to do so and no submission having been made that I should. I also conclude that the term of the ESO should be a period of three years, having regard to the two forensic reports.

Appropriate conditions for the ESO

1. [39]

   Section 11(1) of the Act enables this Court to direct an offender to comply with such conditions as it considers appropriate, including (but not limited to) certain directions that are set out in the section. The majority of the conditions that were scheduled to the summons were agreed between the parties. Some that were initially the subject of disagreement have been modified to the satisfaction of both parties. I will resolve those that remain the subject of dispute.

2. [40]

   The drafting of conditions involves a balancing exercise, so that the Court will impose the least intrusive conditions that are consistent with the assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective. Relevant considerations include the defendant’s interests in liberty and privacy, so as to ensure that unjustifiable conditions are not imposed: New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 per Johnson J at [25].

3. [41]

   An affidavit affirmed on 6 May 2022 by the defendant was read at the hearing. Its contents were relevant to some specific contested conditions and more generally to all of those in contention, to the extent that he expressed frustration with the manner in which certain conditions of his parole and the ISO have been managed and explained the psychological impact of the degree of control permitted by the ISO over an extended period without breaches.

4. [42]

   By way of introduction, the defendant provided a credible and innocent explanation for contacting a convicted child sex offender shortly after being granted parole (see [27] above). He explained that he continues to use the services of a psychologist as well as Forensic Psychological Services (“FPS”), although there is no obligation upon him to do so, because of its positive impact on his general wellbeing.

5. [43]

   The defendant explained that he has been wearing a radio transmitter (an ankle bracelet) to facilitate remote monitoring of his precise whereabouts, since he was released to parole in January 2020. Following a change of his Departmental Supervising Officer (“DSO”) in around late October or early November 2021, many of his activities that were previously approved have been disapproved, for no apparent reason. As an example, the defendant annexed to his affidavit maps of walking routes for exercise that had been disapproved. He also provided an example of his routine evening walk being significantly brought forward, with the consequence that it would disrupt his usual afternoon activities.

6. [44]

   Many of the defendant’s complaints, although not all, involved directions that were, in my opinion, at least on their face, capable of having a reasonable basis. One that appeared to be without a reasonable foundation was described by the defendant thus:

7. [45]

   The applicant did not tender evidence of a different rationale for the DSO’s decision to disallow the defendant’s request for permission to seek to join the over 45’s soccer team.

8. [46]

   The defendant contended that the stricter regime that commenced late last year and which was continuing under his current DSO was having an overall negative impact on his wellbeing:

9. [47]

   A condition is proposed that would oblige the defendant to wear an ankle bracelet “as directed by a DSO” and to provide a schedule of his proposed weekly movements, “if directed”, three days before it is due to commence. Any change to the schedule must be approved by a DSO, such approval to be sought at least 24 hours in advance of the proposed change, “unless a DSO approves a shorter period”. The defendant is not to deviate from the schedule “except in an emergency.”

10. [48]

    In his report, Mr Sheehan stated:

11. [49]

    In evidence, Mr Sheehan questioned the value of electronic monitoring in detecting contact by the defendant with other child sex offenders, including the defendant’s father, noting that the defendant had previously engaged in such contact via electronic media. Mr Sheehan was of the view that there should be a means to reintroduce it, if the situation clearly required it:

12. [50]

    In evidence, Dr O’Dea supported the retention of electronic monitoring without a sunset clause, since, in his view, the defendant’s risk could only be minimised by him embarking on a program of anti-libidinal medication, which the defendant was presently not minded to accept, and therefore a temporal limit was inappropriate.

13. [51]

    The defendant submitted that there should be no condition for electronic monitoring in view of his compliance with supervision for a period of two years and four months to date and, alternatively, a sunset clause was appropriate. In relation to scheduling, initially the defendant’s only objection was that there should be a sunset clause.

14. [52]

    The plaintiff submitted, in written submissions, that a sunset clause to electronic monitoring and weekly scheduling was inappropriate, because of:

15. [53]

    In oral submissions, the plaintiff submitted:

16. [54]

    The plaintiff went on to note that s 13 of the Act provides a mechanism for either party to seek a variation of a condition, so that if the defendant was subjected to the condition unreasonably, he could seek a variation.

17. [55]

    I reject the condition in its present terms, for four reasons. First, the plaintiff’s rationale for electronic monitoring is that it protects against the defendant approaching his father or other child sex offenders or going to places where children are known to congregate. Electronic monitoring does not prevent the offender communicating with these individuals by phone or social media, methods which are strictly controlled by other unchallenged conditions. Weekly schedules, in combination with random checks by ESO staff and police, are other preventative measures being deployed to ensure that the defendant does not visit places which are deemed by the authorities to be inappropriate and out of bounds to him.

18. [56]

    Second, the defendant’s offending in respect of the offences committed in 1996 was by exploitation of established family relationships in the home rather than opportunistic encounters in public places. The index offences were committed by electronic means. There are other conditions that enable the authorities to monitor the defendant’s formation of relationships and routine dealings with children. Electronic monitoring of the defendant’s whereabouts would not be essential to ensuring that offending of this type did not recur.

19. [57]

    Third, the defendant has successfully complied with electronic monitoring for two years and four months without incident. There is no evidence before me as to when, if implemented, electronic monitoring as a condition of the ESO would first be reviewed. I do not presume that it would be within the first 12 months of a three year ESO.

20. [58]

    Fourth, I accept that wearing an ankle bracelet does not assist the defendant with reintegrating into the community. Mr Sheehan observed in evidence:

21. [59]

    In his affidavit, the defendant referred to an incident in which a person he passed on the street noticed the bulge from the ankle bracelet he was wearing, assumed it was an ankle bracelet and questioned him on his custodial status. The defendant is a keen tennis player and aspires to play football. The bulge in his sock from the ankle bracelet is doubtless awkward for him in avoiding curiosity. In determining whether a particular condition is “appropriate” in terms of s 11, it is relevant to be mindful that some conditions, while protective of the community, may also impede an offender’s efforts to reintegrate into the community and build pro-social connections. Protection of the community, however, remains the paramount consideration in determining the appropriateness of a particular condition or a combination of conditions.

22. [60]

    For those reasons, I am not satisfied that a condition requiring electronic monitoring of the defendant at this stage of his supervised liberty is appropriate to ensure the safety of the community. However, a condition that enables electronic monitoring to be reintroduced if there is a justifiable concern that the defendant is not complying with his weekly schedule is appropriate. I will include the following condition as to electronic monitoring, instead of proposed condition 4:

23. [61]

    In relation to the weekly schedule, in his evidence Mr Sheehan noted the benefits of a defendant being obliged to plan what they are doing, in combination with random checks to ensure that they comply with it. Mr Sheehan drew on his experience as a former member of the ESO compliance team, involved in the supervision of “a couple of hundred” defendants. He noted adverse aspects of requiring a weekly schedule and how they might be avoided:

24. [62]

    I address these two concerns by a reformulation of condition 7, which is as follows:

25. [63]

    If the latitude permitted by this condition is abused, in the opinion of the DSO, he or she has the option of re-introducing electronic monitoring pursuant to condition 4. In view of the relaxing of those conditions and the conditional removal of electronic monitoring, it is inappropriate to introduce a sunset clause applicable to the weekly monitoring condition.

26. [64]

    The plaintiff proposed that the defendant must not go to “pools, playing fields [or] sporting facilities” without the prior approval of a DSO. The defendant proposed a cut-out amendment, namely, that he may attend playing fields and sporting facilities for the sole purpose of organised adult sports without prior approval. The defendant’s proposal was motivated by his experience recounted in his affidavit, and excerpted at [44] above.

27. [65]

    Dr O’Dea was of the view that the presence of children should not be an issue at adult sporting events, since one would expect that they would be supervised. The plaintiff questioned Mr Sheehan about this proposed condition. He clarified that his concern was that the defendant not be permitted to attend places where children congregate, but it was acceptable for the defendant to attend places where children also attend, particularly if they are subject to adult supervision. Mr Sheehan considered that the prior approval of a DSO should be required.

28. [66]

    I accept Mr Sheehan’s proviso that DSO approval should be required, but amend the condition as follows to encourage the DSO to facilitate such attendance:

29. [67]

    The plaintiff proposed the following conditions:

30. [68]

    The plaintiff amended proposed condition 41 by adding to its end the words “by reason of its pornographic nature", so as to not exclude violent material, since there is no concern that the defendant would engage in serious violent offences.

31. [69]

    The plaintiff submitted that the conditions were necessary since:

32. [70]

    The defendant proposed that condition 17 be amended to substitute post-visit notification of the DSO, instead of prior approval by the DSO. Dr O’Dea gave evidence in support of the conditions as proposed:

33. [71]

    Mr Sheehan had a contrary view, to the effect that it could aid the defendant’s transition to non-criminal forms of sexual activity:

34. [72]

    Mr Sheehan favoured the defendant accessing sexually explicit material from a retail outlet rather than online:

35. [73]

    I conclude that condition 17 should be amended in the terms proposed by the defendant. Condition 41, as it presently reads, forbids the defendant from accessing such material altogether. Condition 41, as proposed, refers to four classifications. Having regard to the definitions of those classifications in the National Classification Code 2005 (Cth), I would allow the defendant to purchase and view material that is classified X18+, provided that it is purchased from a physical retail outlet rather than downloaded from the internet. Accordingly, conditions 17 and 41 are as follows:

36. [74]

    Proposed condition 19 would oblige the defendant to obtain the approval of his DSO before commencing a job, volunteer work or educational course. The defendant proposes that the condition be modified such that, instead of the DSO’s prior approval being a requirement, the defendant would be obliged only to notify the DSO before commencing the activity. The essence of the defendant’s submission is that the concern that the vetting of the proposed activity is intended to address, that is, to ensure that there is not an unacceptable degree of contact with children, is already addressed by the conditions of the CPPO that applies until 18 May 2025. Conditions 1 and 3 of that order effectively prohibit the defendant from coming into contact with a person under the age of 18 who is not being supervised by a responsible adult.

37. [75]

    I am of the view that prior approval by the DSO is appropriate, as a measure that ensures that contact contrary to the CPPO is not likely to occur.

38. [76]

    The plaintiff seeks a condition that the defendant be obliged to provide any information relating to his financial affairs, if directed to do so by his DSO. The reason is that it may bring to light any expenditure for purposes related to serous offending of a nature related to child sexual assault. The defendant opposed the condition on the basis that it was unnecessary, since his past offending did not involve expenditure and the prospect of it doing so in the future was speculative.

39. [77]

    Both Dr O’Dea and Mr Sheehan expressed reservations about the need for the condition. I am not persuaded that it is needed, and I will not impose it.

40. [78]

    The plaintiff proposes a condition that would oblige the defendant to submit to the search of any item or place under his control and to the seizure of any object located in the search. The defendant, in his affidavit, noted an occasion when, following a search of his premises, a family photo album was seized, apparently because it contained photographs of the defendant’s family, including of himself, as children. He was advised that it would be safely stored.

41. [79]

    I am of the view that it is appropriate for the authorities to be able to exercise a broad power of search and seizure in respect of the defendant, in order to ensure his compliance. I do not doubt that the seizure of the family photo album was distressing, but in view of the defendant’s extraordinary family history of child abuse extending over three generations, on its face the seizure is not necessarily inappropriate. I will make the condition as sought.

Orders

1. [80]

   I make the following orders: