State of New South Wales v Fernando

By summons filed on 7 September 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 Kevin Fernando (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 either two psychiatrists or a psychiatrist and a psychologist to examine the defendant and report to the Court on the examinations.

On 4 October 2016 Beech-Jones J granted leave to the plaintiff to file an amended summons to reflect changes in the conditions set out in the schedule annexed to the summons. On that day his Honour made orders under s 7(4) and ordered an ISO to commence on 19 October 2016, being the day on which the defendant’s sentence expired: State of New South Wales v Fernando [2016] NSWSC 1427. An. A further amended summons was filed at the commencement of the hearing on 23 November 2016, which reflected further changes in the conditions.

The ISO has since been renewed. The renewed ISO is due to expire on 13 December 2016.

Mr O’Neil, who appeared on behalf of the defendant, accepted that it was open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, Mr O’Neil contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of four years’ duration would be sufficient. Mr O’Neil also took issue with some of the conditions, which will be referred to in more detail below.

The plaintiff relied on the following evidence:

Mr O’Neil 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). He required Ms Carden and Mr Sheehan to attend for cross-examination. Their evidence will be addressed below.

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 4 of the Act relevantly contains the following definitions:

The definition of “serious sex offence” in s 5(1) includes: an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW), where the offence is punishable by imprisonment for 7 years or more: s 5(1)(a)(i). An offence against s 61J of the Crimes Act (which is contained in Division 10 of Part 3) is punishable by imprisonment for 20 years and is, accordingly, a “serious sex offence” within the meaning of s 5(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 while serving a sentence of imprisonment (whether in custody or on release on parole) for a serious sex offence 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. Section 12 provides that a person who fails to comply with the requirements of an ESO or ISO is guilty of an offence. Section 13 provides that an ESO or ISO may be varied or revoked.

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 21A provides for notice to be given to each registered victim of the offender (defendant). Each such victim may provide a statement, which “may be placed before the Supreme Court for consideration in respect of the application” for an ESO: s 21A(4).

Section 25 provides that the Attorney-General, on behalf of 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.

The defendant was born in 1962. In 1974, when the defendant was twelve, he was convicted in the Children’s Court of the first of several property-related offences. The defendant was subject to supervision on remand in 1976, which was recommended by Anthony Cole, a psychologist, who reported on 16 March 1976 that the defendant was mildly mentally retarded and had difficulties learning, as a result of which the defendant felt victimised by his peers. Mr Cole commented on the lack of parental supervision and the “definite delinquent orientation” of the defendant. On 21 April 1976 a District Officer of the Department of Youth, Ethnic and Community Affairs at Narrabri (H. Fenton) commented that the defendant’s behaviour had improved under supervision.

On 11 July 1978 the defendant was assessed by Bruce Bowmaker, a psychologist, who reported as follows:

Between 1980 and 1990, the defendant was subject to a number of short sentences, monetary fines and good behaviour bonds for various offences, including: malicious injury (11 April 1980; 4 May 1981); stealing (11 April 1980); receiving (2 December 1980); break enter and steal (5 December 1980; 27 March 1990); break and enter with intent to steal (5 December 1980); goods in custody (4 December 1984); steal from person (22 June 1987); larceny (27 March 1990; 24 September 1990); assault occasioning actual bodily harm (24 September 1990); assault (24 September 1990); steal motor vehicle (27 September 1989); robbery in company x 2 (31 August 1989) and assault with intent to rob (31 August 1989). On 31 August 1989, the defendant was sentenced to three years and ten months in custody for the charges of robbery in company (two counts) and assault with intent to rob. He was released to parole on 28 June 1991 after having served the non-parole component (16 months) of his sentence.

The defendant breached his parole in November 1991 through failure to maintain contact with Community Corrections. His parole was revoked and he was returned to custody to serve the remainder of his sentence. He was released in March 1992.

On 17 January 1993 the defendant committed aggravated sexual assault and armed robbery, for which he was later indicted and to which he pleaded guilty. The sentencing judge, O’Reilly DCJ, recorded the circumstances of the offences in the remarks on sentence which are summarised as follows.

The victim, a 30-year-old mother of two, was at home on Sunday night when she was threatened by the defendant with a knife, which he shoved into her ribs. The defendant told her of his intention to rob her. She responded that he could take what he wanted but begged that he not hurt her as she had two babies. She was in a state of “abject terror”. He inquired whether she would promise not to report him. She agreed on condition that he not harm her or her children. He reminded her that he knew where she lived and threatened to return and would “do your kids first”. The defendant used the knife to cut the swimsuit which the victim was wearing and remove it from her body. He continued to threaten her with a knife while engaging in oral sex with her. He then had penile intercourse with her. He told her to pray that her children “stay asleep”. He demanded to know where her money was and left with $150 of the victim’s money. As soon as the defendant left, the victim called her mother. Her parents came immediately and found the victim to be very distressed. While they were there the offender rang the victim’s phone number. The phone was answered by the victim’s mother who heard the defendant say: “I am the one who did it to you”. When the victim heard what the defendant had said she became hysterical with fear that she or her children would suffer retribution at his hands.

Before the defendant was sentenced by O’Reilly DCJ (which occurred on 10 June 1994) he was examined by Dr Yvonne Skinner on 24 March 1994 at the Remand Centre, Long Bay Gaol. He gave a history of drug and alcohol abuse from a young age (at least from 12 years of age). Dr Skinner concluded:

The sentencing judge described the facts as “quite appalling”. His Honour noted that the defendant was in a de facto relationship and referred to a statement from the defendant’s half-brother, to whom he had donated a kidney. The sentencing judge said that, but for the plea of guilty, he would have imposed a sentence of 12-14 years but has discounted that “substantially”. His Honour found special circumstances. The sentence imposed is set out in the following table.

As a result of his time on remand and the sentence, the defendant was in custody from 27 January 1993 until 26 January 1999.

The defendant was released to parole on 26 January 1999. One of the conditions of his parole was that he reside with a teacher, T, working within the correctional system whom he met while in custody and with whom he had an intimate relationship. T had two children, a daughter and a son, who also lived at the residence with the defendant. In May 1999 the defendant moved out of the home but returned to reside there between July and September 1999.

On 12 October 1999 the defendant returned to T’s home to steal various items for the purpose of pawning them to obtain funds for drugs. No one was home when he stole the property, a CD player and stereo system which belonged to T’s daughter. That afternoon, the defendant came back to T’s house, went into T’s bedroom and stripped to his boxer shorts. When T’s daughter came home from school, she asked the defendant about her stereo, which she noticed was missing. He then dragged her into her mother’s room and began to masturbate his erect penis and told her to sit on the bed. She was terrified. He asked her for her assessment of the size of his penis. She was too frightened to reply. He abused her and pinned her down on the bed. In an attempt to distract the defendant, T’s daughter kept asking him about the stereo. Later he picked up a kitchen knife and threatened to kill himself if she told anyone what had occurred. She asked for the stereo system to be returned, to which he agreed on condition that she would have sex with him. When she refused, he began to yell abuse at her. He grabbed her and pushed her to the floor. He sat on her stomach and held a knife to her throat. A knock was heard at the door. The defendant left the room. When he returned he told T’s daughter that he had to tie her up to make it look as if the house had been robbed. He bound and gagged T’s daughter and exposed his penis to her. He knelt over her and pulled her underpants down, which had the effect of making his penis erect. She continued to struggle, at which point the defendant said, “What have I done?” He cut her loose and apologised for his conduct. He pushed her to the floor and threatened her again with the knife. He told her that if she told anyone what had happened he would kill her family and deny it in court.

The defendant allowed her to go to the bathroom and when she returned, he embraced her and told her that he loved her, T and her brother. He apologised again and told her that he did not mean to hurt her. He rubbed cream onto her wrists and then blamed the drugs he was on for his conduct. He again pulled his jeans down and started to masturbate. He instructed T’s daughter to lie on the bed and asked her if she was a virgin and whether his penis would fit into her vagina. At this point, someone knocked on the door. When T’s daughter answered the door, she saw that it was one of her school friends. They both ran away to the friend’s place. T’s daughter was crying and shaking. By the time the police and ambulance arrived, the defendant had located the spare key to T’s car and departed with it. He drove T’s car to a nearby home, ransacked the premises and stole various belongings and money. He abandoned T’s car there. That night, he telephoned T and apologised for what he had done.

On Saturday 16 October 1999 the defendant stole a Holden Commodore. On 17 October 1999 he filled up the Holden Commodore with petrol, for which he did not pay and took various items from the service station store without paying for them. The value of the petrol and various items was $84.40.

On Monday 18 October 1999, the defendant was driving the Holden Commodore at 8.45am when he saw V3, who was fifteen years old and wearing a school uniform. He stopped the car and forced her into it. He covered her with a blanket and threatened her with a screwdriver which he forced into her neck. He said, “If you don’t do as I say I’ll kill you.” What then ensued was described by Williams DCJ (the sentencing judge) in the following terms in the remarks on sentence:

On 19 October 1999 the defendant’s parole was revoked as his offending conduct constituted a breach of the conditions of his parole.

On 20 October 1999 the defendant went to a residence and forced the driver’s side door lock of a Saab motor vehicle owned by V4 and stole a M5 motorway card. He went inside and stole money, a driver’s licence, two keycards and a set of house keys. He left through a sliding door. V5 was in the shower at the time and came out to discover the defendant standing at the side of the house. V5 noticed that two vehicles had been broken into, the Saab and a Suburu. Items had also been taken from that car by the defendant. A Sierra 4-wheel drive was also broken into and various items taken.

Police were called. The defendant was located a short time later and arrested and charged.

As a result of the events of 12, 16, 18 and 20 October 1999, the defendant was arrested and charged with several offences, to which he pleaded guilty and was sentenced by Williams DCJ on 25 October 2000. The material before the sentencing judge included a victim impact statement made by V3’s mother on behalf of her daughter, which said:

In the remarks on sentence, Williams DCJ said of the danger the defendant poses to the community:

His Honour also addressed the gravity of the offences against V3 and the extent to which, if at all, the plea of guilty ought result in a discount in the sentence imposed. His Honour said:

The offences, maximum penalties and sentences imposed are set out in the following table:

The effective total sentence was 17 years, commencing on 20 October 1999 and expiring on 19 October 2016. The first day on which the defendant became eligible for release to parole was 19 October 2013, although he was not in fact released to parole until May 2016.

During his substantial period in custody, the defendant was, as was later noted by Dr Parker, generally regarded as a “well-behaved prisoner”.

In August 2000 the defendant was assessed, on the request of the Parole Board, by Helen Haywood, a registered psychologist at the Junee Correctional Centre where the defendant was imprisoned. At that stage his parole for the 1993 offence had been revoked and he had not yet been sentenced for the 1999 offences (which occurred on 25 October 2000). At the assessment he admitted the sexual offence on 12 October 1999 but denied the one committed on 18 October 1999 (to which he subsequently pleaded guilty). Ms Haywood noted:

Ms Haywood also noted the following:

Between 25 June and 12 November 2009, the defendant took part in the “PREP” preparatory sex offender program at Long Bay gaol. Between 9 February and 3 December 2010 the defendant participated in the Custody-Based Intensive Treatment (CUBIT) program. The defendant’s attitude to his sex offending in 1999 was recorded in the report dated 23 December 2010 prepared by Miriam Wyzenbeek, a forensic psychologist, following his completion of the CUBIT program:

Ms Wyzenbeek recommended that, on release, he participate in a community-based maintenance program; and that he initially reside at a Community Offender Support Program (COSP) Centre. She also recommended the following restrictions:

Ms Wyzenbeek also recommended that the defendant be assessed for possible treatment with anti-libidinal medication “given his arousal to deviant sexual interests”.

In August 2014 the defendant stopped taking his medication for schizophrenia (with which he was diagnosed while in custody) and became psychotic as a result of which he was admitted to the Long Bay Hospital on 22 August 2014 for assessment. He displayed behaviour such as disorganised speech, aggression and was hearing voices.

Justice Health applied to the Mental Health Tribunal (the Tribunal) for a Forensic Community Treatment Order (FCTO) to mandate his compliance with treatment and medication. A report of Dr Shweta Sharma, a Registrar in Forensic Psychiatry, dated 10 September 2014 was provided to the Tribunal. Dr Sharma was part of the team responsible for the defendant’s treatment at the Long Bay Hospital. Dr Sharma made the following diagnosis:

Dr Sharma’s opinion and recommendations were as follows:

On 18 September 2014 the Tribunal granted the FCTO and determined that the defendant was mentally unwell. Since that time further FCTOs were ordered. Upon his release, a CTO was ordered. The current community treatment order (CTO) is due to expire in March 2017. The effect of such orders is that the defendant can be compelled to take medication (including anti-psychotic medication to control the schizophrenia) and receive treatment.

The defendant has undertaken several courses in prison. He began the CALM Male Australian Adaptation program on 31 January 2012 and attended 9 out of the 29 sessions. The course was discontinued before he could complete the remaining sessions. He completed Equips Addiction Program in 2015 to assist him with drug, alcohol and gambling addictive behaviour.

After the defendant’s hospitalisation in September 2014, there appeared to be a significant change in the defendant’s behaviour. As noted above, he had been eligible for release on parole since 2013 but had been adjudged to be unsuitable having regard to his failure to co-operate. In November 2014 the defendant discussed with officers the reasons for his parole being declined. He put his name down for courses and agreed to take anti-libidinal medication. He told officers that he was settled on his new medication (anti-psychotic) and that he wanted to work towards getting out of gaol. This heralded a marked change in the defendant’s attitude and led to his release to parole on 11 May 2016.

On 19 January 2015 the defendant commenced employment with Corrective Service Industries in Textiles. He transferred to the bakery on 2 February 2015. His supervisor described him as “a good worker who always tries his best when he is here working at the bakery”. It was also noted that the complied with the direction of the team leader and had a good working relationship with the officer and other inmates.

On 29 January 2016 the defendant was interviewed by Dr Parker (a Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services) and Ms Matsuo (a Forensic Psychologist and State-wide Manager Programs), who conducted a risk assessment for the purposes of the Act (s 9(3)(c)) and who prepared a report dated 3 February 2016. They addressed the connection between the defendant’s general offending and his sex offending as follows:

The defendant’s score on the Static-99R (a risk assessment tool based on static factors) was 5 which placed him in the medium-high risk category with respect to other male sexual offenders. He was in the 88th percentile compared to other male sexual offenders. Dr Parker and Ms Matsuo explained that this means that, taking into account that about 7% of sex offenders shared the same score, about 85% of such offenders scored lower than the defendant and 8% scored higher. He scored in the highest risk category by reference to the Violent Risk Appraisal Guide-Revised. He also obtained a high score by reference to the Stable 2007 risk assessment tool (an actuarial took developed to assist clinicians to identify stable dynamic risk factors for sexual reoffending). This placed the defendant in the high risk category relative to other male sexual offenders.

Dr Parker and Ms Matsuo assessed the general pattern of the defendant’s sex offending and considered that the sex offending was part of the overall pattern of rule-breaking behaviour and the “extreme end of a pattern of generalised offending”. They identified the following risk factors: drug and alcohol abuse; gambling; tendency to be violent towards women and have a sense of entitlement to their bodies; lack of pro-social influences; and non-compliance with mental health treatment and anti-libidinal medication.

Dr Parker and Ms Matsuo considered the reasons for the escalation in the seriousness of the defendant’s offending over time but were unable to come to a concluded view. They postulated the following possibilities:

Dr Parker and Ms Matsuo postulated the following pattern were the defendant to re-offend:

Dr Scott Clark, a forensic psychiatrist, prepared a report dated 19 February 2016 for the State Parole Authority, which was considering whether the defendant ought be released to parole. Dr Scott noted that the defendant had been diagnosed as suffering from: schizophrenia characterised by psychotic symptoms, including paranoia, disorganisation and auditory hallucinations; substance abuse/ dependence; and paedophilia. He also recorded that the defendant was taking Depo-Provera, an anti-libidinal medication.

Dr Scott opined that the defendant would require close medical monitoring as well as access to psychological support and counselling. He considered that the defendant ought be required to refrain from illicit drugs and alcohol. Dr Scott also noted (with reference to the period in August 2014-September 2014 when the defendant failed to take anti-psychotic medication):

Ms Sartor, a Senior Community Corrections Officer in the ESO Team, interviewed the defendant and had regard to the documentary material, much of which has been referred to above. She noted the following pattern which emerges from a consideration of the defendant’s conduct following release from custody:

Ms Sartor also performed a calculation of the length of time the defendant had spent in custody and expressed her concerns about his institutionalisation in the following terms:

Ms Sartor addressed the risks identified by Dr Parker and Ms Matsuo and set out the ways in which she considered each risk could be addressed and managed. Her recommendations are largely reflected in the conditions in the schedule to the further amended summons and include regular meeting, field visits, electronic monitoring, referral to psychological services and alcohol and drug testing. She annexed to her report a document which provides details of the administration of an ESO.

On 20 April 2016 the defendant was accepted to start the Community Maintenance Program at Forensic Psychology Services (FPS), which initially required fortnightly attendances at FPS. While he was still in custody, he was accompanied by a custodial officer to the premises for his appointments. According to his “Reintegration Case Plan” dated 15 April 2016:

In May 2016 the defendant was released to parole and taken to the Nunyara COSP where he continues to reside.

The defendant is subject to the conditions associated with being a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). These conditions include declaration of “carriage services”, which include mobile phones.

On 3 June 2016 detectives from Maroubra police station found an undeclared phone in his room at the COSP facility where he is living. It was also discovered that was using a social networking address which had not been registered with police and was therefore in breach of the conditions under the CPOR Act. He was eventually charged under s 17(1) of the CPOR Act. He pleaded guilty. The Magistrate imposed a bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Since the defendant’s release, the case management notes have recorded instances of his reporting that he has heard voices. On 29 June 2016 he reported that he heard an evil voice telling him to touch a woman on a bus. His medication was changed and on 5 July 2016 the defendant reported that he was no longer hearing voices.

As referred to above, on 19 October 2016 the defendant became subject to an ISO which was due to expire on 15 November 2016. The ISO was renewed and is due to expire on 13 December 2016.

Since the commencement of the first ISO on 19 October 2016 the defendant’s Departmental Supervising Officer (DSO) has been Ms Carden, who was required for cross-examination. Ms Carden is a Community Corrections Officer within the ESO team and is based in Blacktown. She has been employed as a Community Corrections Officer since May 2014 and began working in the ESO team on 11 October 2016. Her training and qualifications include a Bachelor of Criminology and Criminal Justice with Honours from the University of New South Wales. Before commencing employment as a Community Corrections Officer she completed 12 weeks of training at the Brush Farm Corrective Services Academy. She also completed a Certificate IV in Correctional Practice.

Ms Carden gave evidence about her view of particular conditions, which will be referred to below when I address the conditions that are contested by the defendant. She also gave evidence in cross-examination that the defendant had asked her to accompany him to the Salvation Army or the Smith Family to see if they could put together a package deal for him to furnish a flat, which would include a lounge suite, a fridge, a television and so on. Ms Carden indicated her preparedness to help the defendant with this. She also expressed her concern about the defendant’s gambling and said that, although there was a condition prohibiting it and also a condition that he be monitored electronically, it would be relatively easy for the defendant to visit a TAB outlet en route to another approved location.

On 4 October 2016 the Court ordered that the defendant be examined by Dr O’Dea and Mr Sheehan for the purposes of each preparing a report pursuant to s 7(4) of the Act.

Dr O’Dea interviewed the defendant in his rooms on 17 October 2016 and prepared a report dated 3 November 2016. He considered the defendant to pose a high risk of future sex offending. His view as to the causes of the offending appears from the following extract from his report:

He considered there to be a significant risk that the defendant would engage in further sex offending in the community if he were to resume use of alcohol or illicit substances. He opined that the risk was long term and “potentially of at least 5 years’ duration”. He considered that the risk could be managed by an ESO and that the CTO could continue to address the defendant’s requirements for psychiatric treatment.

Mr Sheehan is a psychologist with extensive experience in the administration of ESOs. He worked for Corrective Services as part of the ESO team from 2006 until 2014. In his report he assessed the defendant’s risk of sex offending to be high. He suggested an ESO of “four to five years duration would be realistic given the chronic nature of his risk related issues”. This assessment appears in context in the following passage:

Mr Sheehan gave oral evidence as he was required for cross-examination by Mr O’Neil. Mr Sheehan emphasised the importance of a CTO by which the defendant could be forced to take medication and noted the importance of his taking medication in accordance with the prescription. Mr Sheehan also stressed the distinction between a person such as the defendant being appropriately managed by restrictions and controls such as those contained in a CTO, ISO or ESO and such a person who is living in the community without restrictions or oversight. He said:

Much of the cross-examination of Mr Sheehan was directed to the length of any ESO and, in particular, whether it should be four years (as contended for by the defendant) or five years (as contended for by the plaintiff). Mr Sheehan opined that one would be in a better position to know how the risk was being managed by any ESO after four years and that giving the defendant a shorter ESO than the maximum might serve to engender trust. However, Mr Sheehan noted that applications for ESOs (particularly further ESOs) tended to be destabilising, although he commented that this defendant appeared to have “taken it in his stride”.

Mr Sheehan also explained his view of the conditions which should be specified for an ESO in the following terms:

Mr Sheehan considered, in effect, that conditions which were not directly relevant to risk would be an affront to the person’s autonomy and that it would be counterproductive to include them as conditions. For this reason, Mr Sheehan generally opposed conditions relating to employment and training.

Although Mr Sheehan stressed that gambling was not a principal issue, he described its significance as follows:

Mr Sheehan explained in his oral evidence the relationship between the defendant’s general offending and his sexual offending as follows:

V3’s mother provided a statement dated 15 November 2016 pursuant to s 21A. She said that she and V3 supported the plaintiff’s application for an ESO. She also said:

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.

I am also obliged to consider the victim statement which has been placed before the Court pursuant to s 21A.

The reports of Dr O’Dea and Mr Sheehan 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. Mr O’Dea 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. He was not cross-examined. Mr Sheehan opined “4-5 years” would be an appropriate length. The basis for his opinion is set out above.

The risk assessment report of Dr Parker 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 risk assessment report of Dr Parker and Ms Matsuo referred to above included the defendant’s scores by reference to various statistical measures. Each such measure indicated that the defendant poses a high risk of future offending, having regard to static and dynamic factors.

In the report referred to above, Ms Sartor addressed the ways in which the offender could reasonably and practicably be managed in the community. She set out 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 CUBIT Program which he completed in 2010. By and large the defendant has engaged in such programs and his participation has been regarded as substantial.

The defendant was on still on parole for the sentence imposed for the offences committed in 1989 when he offended in January 1993. He was released to parole in January 1999 and offended again in October 1999 when he was still on parole. This history tends to indicate that the offender is incapable of complying 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 or to prevent future offending. It is also of concern that there has been an escalation in the degree of sexual violence over this period.

As referred to above, the defendant was charged with an offence under the CPOR Act relating to his failure to declare a mobile phone and also his use of social media. These offences were committed within two months of his release from custody while he was in the highly regulated environment of the COSP facility. The defendant’s conduct does not engender confidence in his ability to manage his own risk or abide by directions or conditions. It also provides some indication that, although his intelligence is not high, he is capable of acting in a way that cannot readily be detected by his DSO.

The defendant has a lengthy criminal history which has been detailed above. The circumstances of his offending conduct are summarised in the narrative. Of the past 27 years the defendant has spent over 24 years in custody. For those relatively short periods when he has been out of custody, he has been under supervision (whether on release to parole or subject to an ISO).

The defendant’s offending reveals that when he is disinhibited by alcohol or drugs, he feels entitled to help himself to what he desires, including the bodies of his female victims. He tends to choose young or vulnerable women, apparently on the basis that they are more easily silenced and on the mistaken assumption that they will be impressed by the size of his penis or his sexual prowess. His sexual offending appears to reflect a distorted sense of entitlement and a desire for dominance as much as a sexual desire.

The sentencing remarks of O’Reilly DCJ extracted above indicate the extent to which the defendant poses a danger to the community. As referred to above his Honour described the defendant’s prognosis as guarded and the facts as “quite appalling”. His Honour said that the defendant’s conduct called for a heavy sentence.

The sentencing remarks of Williams DCJ 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. I note in particular his Honour’s assessment that the defendant posed a high risk of re-offending.

The evidence before me has been sufficiently addressed in relation to the other matters to be taken into account under s 9(3).

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 both adult and post-pubescent females. Those girls and women who happen to be in the defendant’s path when he is abusing substances are at particular risk. The defendant’s predilection for young post-pubescent girls (on the grounds that they are likely to be sexually unexperienced and impressed by his prowess) places those in that category at particular risk, although his offending conduct includes violent sexual assaults against adult women as well.

I have also had regard to the concerns of V3 as expressed in her mother’s statement referred to above. Although I have not included conditions in the identical terms to those proposed by V3’s mother, I am satisfied that the conditions which are imposed will adequately address the victim’s concerns. I do not regard it as either practical or necessary to exclude the defendant from the area between Parramatta and Blacktown. Many of the potential locations for affordable accommodation are in that area, as well as places where it is reasonable to expect the defendant to obtain treatment and assistance from Corrective Services and other authorities. Further it is a substantial geographical area, which includes most of the population of Sydney.

The defendant is a sex offender within the meaning of the Act, having been sentenced to imprisonment following his convictions for offences including a serious sex offence, being the offence against s 61J of the Crimes Act against V3, which was committed on 18 October 1999. The summons was filed within six months of the expiry of his sentence for that offence.

As referred to above, the defendant suffers from schizophrenia, substance abuse/ dependence and paedophilia. His mental health is unstable, although it can, to some extent, be controlled by medication as long as he is compliant. He has recently experienced symptoms (hearing voices) consistent with uncontrolled schizophrenia, which have a sexual component (the voice told him to touch a woman on the bus). Actuarial and other risk factor tests place him in a high risk category. He has a long history of offending related to poly-substance abuse. He has a complex psychiatric and medication presentation. The seriousness of his offending (both as to violence and sexual content) has increased over time.

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 made 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 four years’ duration. He contended that a period of four years would be sufficient time to determine the course of the defendant’s rehabilitation. He also submitted that an ESO of this length would provide sufficient time from the expiry of the current CTO (assuming it is not extended) to ascertain whether the defendant is capable of administering his medication as prescribed so as to avoid a repetition of what occurred in August 2014.

Ms Bennett, who appeared on behalf of the plaintiff, contended that there was no warrant for supposing that the risk posed by the defendant would be significantly lessened in a period of five years, having regard to the long-standing causes of his offending conduct.

The long-term risk that the defendant poses to the community is not to be underestimated. The opportunistic impulsivity of his offending behaviour if he is under the influence of substances is an important feature of the defendant’s offending. I regard the prospect that the risk posed by the defendant to the community (and in particular to post-pubescent girls and adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as remote, if not entirely fanciful.

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.

I do not consider the present case to be one where it is appropriate to wait and see what progress, if any, is made over a lesser period, such as four years. The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. The defendant’s offending conduct is connected with his sexual offending. His criminal history dates back to his childhood. His mental health is compromised and depends on compliance with medication. He has spent almost all of his adult life in custody. These matters do not augur well for a speedy rehabilitation. Mr Sheehan has noted that a risk that can be well-managed under supervision can result in offending conduct when the constraints are removed. 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.

As a result of objections raised by Mr O’Neil to conditions proposed by the plaintiff, the plaintiff has amended its summons twice to propose amended conditions. I propose to address the conditions which remain in the annexure to the further amended summons which was filed in Court on 23 November 2016 which are in dispute.

Section 11 of the Act provides for conditions to be imposed. In general terms, to be appropriate, conditions must be germane to the risk posed by the defendant or ancillary to the management of the risk posed by the defendant. Conditions which cannot be characterised in this way might be regarded as ultra vires if they are not related to the purpose of s 11 of the Act in the context of the Act as a whole. Therefore it is necessary to consider the connection between the condition and the risk in order to assess whether the condition ought be imposed: see Lynn v State of New South Wales at [141] and Wilde v State of New South Wales [2015] NSWCA 28 at [53]. It is also relevant that breach of a condition renders the defendant liable to criminal sanctions. Accordingly, there is an additional requirement that a condition must be clear such that breach can be judged objectively.

I note Mr Sheehan’s general views that the conditions imposed ought be confined to the bare minimum required; that each condition ought be plainly related to the risk imposed by the particular defendant; and that the defendant’s personal autonomy ought be given as much scope as possible. Although I accept, in general terms, that the defendant ought not be unduly restricted, the primary purpose of an ESO is the protection of the public. Conditions which are related to risk management, including in an ancillary way, are also appropriate, depending on the circumstances. I accept the plaintiff’s submissions that it ought be assumed that the power of the DSO to make directions will be exercised lawfully: that is, for a proper purpose and not capriciously.

Condition 21 as proposed in the schedule to the further amended summons is:

The defendant opposed this condition on two bases. First, Mr O’Neil submitted that it was otiose since it was fanciful to suggest that the defendant, having regard to his hearing impairment, cognitive difficulties and receipt of Disability Support Pension, could ever obtain employment. Further, he submitted that it would be counter-productive for the defendant to be required, upon penalty of criminal conviction for breach, to engage in employment, when such matters were best dealt with as part of “case management” which did not expose the defendant to the penalty of breach.

Ms Carden said, of the reason for the condition:

In cross-examination, Ms Carden accepted, in effect, that the defendant was unlikely to obtain employment in the open labour market (an assessment which she accepted in re-examination that she had no expertise to make). She also accepted that matters such as employment were best approached through a “case work” method, rather than a direction, non-compliance with which could lead to a breach of the ESO, with criminal consequences.

Mr Sheehan agreed that it was unlikely that the defendant would ever work. He did not endorse condition 21 in its present terms. He said:

I accept the plaintiff’s submissions that the condition ought be imposed. Although I accept that it is unlikely that the defendant will be able to obtain remunerative employment on the open labour market, I would not readily conclude that there is no work, whether of a voluntary nature or otherwise, in which he could engage. That he has been able to work satisfactorily in the prison system as a baker provides some indication that, if some work, whether paid or not, at an appropriate level could be found for him, it would be desirable that he engage in it. Of course, if the defendant were willing to engage in such employment, or indeed in any education or training or personal development program that was thought to be in his interests, there would be no need for his DSO to give him a direction to that effect. However, it is reasonable to envisage that circumstances might arise where a DSO considers that the defendant ought engage in such activities and the defendant is not prepared to do so without a direction. I accept Ms Carden’s view as to the rationale for the condition and consider it to be reasonable. If the defendant can be suitably occupied and challenged, the risks of his lapsing into drug or alcohol abuse are diminished. As this abuse is usually the precursor to his offending behaviour, there is, in my view, a sufficiently close connection between the condition and the risk he poses.

Condition 24 as proposed in the schedule to the further amended summons is:

The defendant opposed this condition on the grounds that there was no demonstrated need for it and it was purely speculative. Mr O’Neil relied on Ms Carden’s acceptance in cross-examination that she was not aware of anything that would suggest that he would be in such a position. However, she considered that such a condition was reasonable and necessary having regard to the defendant’s propensity to gamble. I am persuaded that condition 24 is reasonable. It is notable that, when the defendant was released from custody in January 1999 he moved in with a woman who worked within the correctional system. They lived together for some months in an intimate relationship. The woman presumably knew of his criminal history (since they had met while he was in gaol). Despite this, she was prepared to live with him and have him reside in the same house as her two children, one of whom was a young girl.

These facts illustrate that the defendant has, in the past, demonstrated a significant capacity to engender love and trust. In different circumstances, this capacity might operate to incline someone to entrust the defendant with money. As Ms Carden explained, it would not be in the defendant’s interests to have access to any substantial sum of money, at least at this stage, having regard to his inexperience with managing money.

Condition 25 as proposed in the schedule to the further amended summons is:

The defendant opposed the words “mortgage” and “opening of any account held at a bank, credit union, building society or similar institution” as highlighted in italics in the proposed condition set out above. Ms Carden gave evidence of her concerns about the defendant’s capacity for financial management in the following exchange in her cross-examination:

The word “mortgage” extends beyond mortgages of real property and extends to chattels and other property. In these circumstances, it is, in my view, reasonably necessary to require that any mortgage be approved by the DSO before it is granted. If the defendant has a bank account of which the DSO is unaware it cannot be monitored. In light of the concerns about the defendant’s capacity to manage money; his propensity to gamble when under stress or when abusing alcohol or substances; and the connection between his offending conduct and disorder in his life, I consider the condition as proposed to be reasonably necessary.

The defendant opposed each of conditions 53-57 as proposed in the schedule to the further amended summons. These proposed conditions are:

Mr O’Neil contended that such conditions may be unnecessary as there is no suggestion that the defendant has ever sought to conceal or change his identity. He submitted that given the close contact between the DSO and the defendant during any ESO any change in appearance would be immediately recognisable by the DSO.

I am satisfied that proposed conditions 53-57 ought be made. In 1991 the defendant failed to report in accordance with parole conditions, as a result of which his parole was revoked. He could not be located for a considerable period, during which time he re-offended. It is within reasonable contemplation that, if the defendant were to abuse drugs or alcohol, he might leave his approved address. If he did so during a period when he was subject to electronic monitoring it would be relatively easily to detect his whereabouts and bring him back to the residence. However, if he were not subject to electronic monitoring, it could be difficult to find him.

Condition 56 obliges the defendant to permit Corrective Services to photograph him. If there was no photograph of the defendant and he absented himself, it would be difficult to disseminate a reliable image to those who might be able to locate him. These conditions appear to me to be necessary ancillary conditions to the management of the risk posed by the defendant.

The identification of the defendant and the location of his whereabouts at any given time are fundamental to risk management. It is particularly important that the defendant can be located quickly since if he does not take prescribed medication and if he abuses alcohol or substances, his life can become “chaotic” (as Mr Sheehan has described it) which tends to lead to offending, including sex offending. The escalation of criminal conduct during a short period was demonstrated in October 1999 when the worst and most violent of his offending, that committed against V3, was committed on 18 October 1999, less than a week after the first episode of his spree (stealing from T and offending against her daughter on 12 October 1999) took place.

For the reasons set out above, I make the following orders: