State of New South Wales v Williamson (No. 1)

1. [1]

   On 28 May 2019, the State of New South Wales (the State) filed a summons seeking (inter alia) an extended supervision order (ESO) for a period of three years under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). The defendant is currently subject to an ESO, which is set to expire on 3 July 2019.

2. [2]

   Under s 7(3) of the CHRO Act, this Court must conduct a preliminary hearing into the application within 28 days from the date it was filed. The Court has discretion to allow further time if required: s 7(3) CHRO Act. The preliminary hearing came before the Court 29 days after the filing of the summons, on 26 June 2019. The Court exercised its discretion in holding the preliminary hearing at that time.

3. [3]

   At the preliminary hearing, the principal orders sought by the State were as follows:

   1. (1)

      An order pursuant to s 7(4) of the CHRO Act appointing two qualified psychiatrists (or a qualified psychiatrist and a registered psychologist) to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations; and

   2. (2)

      An interim supervision order (ISO) pursuant to s 10A of the CHRO Act for a period of 28 days.

Legislation

1. [4]

   Section 5B of the CHRO Act provides:

2. [5]

   Section 5I(2) defines a supervised offender in the following way:

3. [6]

   As noted at the outset, the defendant is currently under an existing ESO and therefore is a supervised offender pursuant to s 5I(2)(b) of the CHRO Act.

4. [7]

   Section 5D of the CHRO Act provides:

5. [8]

   Section 9(2) of the CHRO Act now provides:

6. [9]

   The State seeks an ISO under s 10A of the CHRO Act. That section provides:

7. [10]

   Section 7 provides for what is to happen at the preliminary hearing:

Legal principles

1. [11]

   The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

2. [12]

   In State of NSW v Clarke [2019] NSWSC 411 Fullerton J said:

3. [13]

   In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase “unacceptable risk”:

4. [14]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]:

The offending

1. [15]

   In 1991 the defendant was sentenced to a period of imprisonment for 24 years with a non-parole period of 14 years as a result of pleading guilty to 19 offences of a sexual and related nature. Although he became eligible for parole on 16 May 2004 he was refused parole on six occasions before being released to parole on 16 February 2012. His sentence expired on 15 May 2014.

2. [16]

   Prior to that time the State of New South Wales made an application under the Crimes (High Risk Offenders) Act for an ESO in respect of the defendant. An ISO was made by Button J on 7 May 2014 (State of New South Wales v Williamson [2014] NSWSC 519) and an ESO for five years was made by Johnson J on 3 July 2014 (State of New South Wales v Williamson [2014] NSWSC 939). As noted earlier, that ESO expires on 3 July 2019.

3. [17]

   The facts surrounding the offending by the defendant were summarised by Button J at [3]-[34] as follows:

The earlier ESO

1. [18]

   In his judgment, Johnson J noted at [36] that the defendant had commenced a community-based therapeutic program with Forensic Psychology Services (FPS) in March 2012 and that he had begun to take anti-libidinal medication whilst in custody in 2004. He continued to take that medication thereafter including whilst he was subject to parole.

2. [19]

   Justice Johnson noted at [37] that in the two years the defendant was on parole his accommodation and employment was stable, and no breaches of parole were reported. He had remained compliant since his release on parole with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

3. [20]

   Justice Johnson noted at [42] that the defendant had participated in the CUBIT program from March 2000 to January 2001. In February 2001, he was assessed as having made good progress in CUBIT, having begun to address a number of his risk factors and having developed a useful relapse prevention plan. His Honour noted at [47] that since the defendant’s release to parole in 2012, he had participated in the community-based maintenance program conducted by FPS with the treatment records indicating a positive response by the defendant.

4. [21]

   The two psychiatrists who examined the defendant for the purposes of the ESO in 2014 were Dr O’Dea and Dr Ellis. In addition, the defendant was being treated by Dr Stephen Allnutt who prescribed his anti-libidinal medication. All of those doctors stressed the importance of the defendant remaining on the anti-libidinal medication. This was chiefly because of the diagnosis that that had been made by the psychiatrists of multiple paraphilias including sexual sadism, voyeuristic disorder, frotteuristic disorder, fetishistic disorder, exhibitionism and telephone scatologia.

5. [22]

   Justice Johnson said this in relation to the evidence from the psychiatrists:

6. [23]

   When dealing with risk assessment, Johnson J said this:

7. [24]

   When dealing with the safety of the community, Johnson J said this:

Current assessments

1. [25]

   Three documents of significance were put forward by the plaintiff on the present application.

2. [26]

   First, the defendant was assessed on 16 November 2018 by Mr Samuel Ardasinski, a well-known senior psychologist at the Serious Offenders Assessment Unit. Mr Ardasinski prepared a report on 22 November 2018, and the recommendations he made were supported by the Acting Chief Psychologist of the Risk Management Programs.

3. [27]

   In the Executive Summary to his report Mr Ardasinski said this:

4. [28]

   Mr Ardasinski noted the defendant’s continuing employment throughout the years of his existing ESO. Although that employment was part time and the defendant acknowledged that he was capable of working more hours, he did not want to lose his health pension card which allowed him to access medications more cheaply. He told Mr Ardasinski that this matter was critical because he had continued his anti-libidinal therapy for some years and without the concession he would be unable to support it.

5. [29]

   Mr Ardasinski noted the defendant’s continuing involvement in the Maintenance program run by FPS. He told Mr Ardasinski that he had sought an initial appointment with a private provider (LSC Psychology) who may be able to provide ongoing psychological support once he was no longer under the supervision of an ESO.

6. [30]

   Mr Ardasinski noted that apart from the relationship with his mother, the defendant had a small but valuable support circle. He had attempted to make more friends through walking groups and a motorcycle group. He had struggled with having to disclose his history to new people he met but he had made a number of successful disclosures including to his employer who had remained very supportive of him.

7. [31]

   In relation to electronic monitoring, Mr Ardasinski noted that the defendant was on Stage 3 of the EM process. Mr Ardasinski said that if a decision was made by the clinical sub-committee that no further ESO was warranted, the defendant would be progressed to Stage 4 (supervision without any electronic monitoring). Mr Ardasinski noted that the defendant had progressed through Stages 1 and 2 through “his excellent compliance reports at appropriate times”. Mr Ardasinski said:

8. [32]

   I note, in passing, that despite that recommendation, the defendant was not progressed to Stage 4, but I will further discuss this matter later in the judgment.

9. [33]

   Mr Ardasinski made references to various risk assessments that had been conducted on the defendant over the years. When first assessed he was found to be in the moderate-high risk range. The next assessment placed him in the moderate-low risk category (assessment by Mr Sheehan) but Mr Ardasinski considered that this was an incorrect assessment and that the defendant ought to have been scored at 4 which placed him in the moderate to high risk.

10. [34]

    In the STATIC-2002R assessment, he was assessed at moderate to high risk.

11. [35]

    Mr Ardasinski assessed the defendant under the STABLE-2007 protocol. This protocol was developed to assist clinicians in identifying stable dynamic risk factors for sexual reoffending. The defendant’s score of 6 placed him in the lower end of the moderate risk category.

12. [36]

    Mr Ardasinski noted his risk factors as being:

13. [37]

    Mr Ardasinski commented at [20]:

14. [38]

    Mr Ardasinski said that the STABLE-2007 can be combined with the STATIC-99R or STATIC-2002R to generate a composite assessment of risk/needs. When they were combined, the defendant’s level was IVa – above average risk.

15. [39]

    Mr Ardasinski then went on to refer to further research in these terms:

16. [40]

    Mr Ardasinski’s conclusions and recommendations were these:

17. [41]

    The second document of significance put forward by the plaintiff was an Extended Supervision Order Completion Report prepared by Recquel Smith, the Senior Community Corrections Officer in the Metropolitan Extended Supervision Team. The report was dated 1 December 2018.

18. [42]

    Ms Smith noted that the defendant had resided in private rental accommodation with nil known adverse effects to the community, and had lived at the same address since 21 August 2016. She noted that he continues to visit his mother on a weekly basis at a nursing home where she has resided since November 2016, and continues to have contact with extended family members, especially his mother’s sister.

19. [43]

    Ms Smith noted that the defendant had been employed since April 2016 as a part time labourer in the commercial fruit industry. Ms Smith said, when discussing his employment, that the defendant showed genuine pride in his work and expressed his passion for his employment. She noted that he continued to engage with social walking groups on the weekends as well as a motorcycle group. Both these groups consist of adults only.

20. [44]

    Ms Smith said, under the heading “Response to Extended Supervision Order”, the following:

21. [45]

    Ms Smith said that covert observations of the defendant had also been conducted from time to time by the ESO team and the ESO investigation team whilst the defendant had been in the community on approved outings. No issues or concerns were observed during those times.

22. [46]

    Ms Smith noted that the defendant had progressed to Stage 3 of his electronic monitoring order. Stage 3 entails electronic monitoring without weekly schedules.

23. [47]

    Ms Smith noted that the defendant had been attending psychological intervention with FPS to address his assessed risk factors and to assist him reintegrate back into the community. She said discussions with his treating psychologist had indicated that the defendant continued to engage well, that he presented as stable, and continues to address his assessed risk factors. She said that during interviews with the defendant, it was clear that he was fully aware of his risk factors and of identifying triggers associated with those risk factors.

24. [48]

    Ms Smith noted also that the defendant had been attending appointments with his treating psychiatrist, Dr Allnut, whom he had been seeing for more than ten years for anti-libidinal medication treatment. That medication had recently reduced from 100mg to 50mg.

25. [49]

    In the conclusion to her report involving her assessment and recommendation, Ms Smith said this:

26. [50]

    The third document was a report from Dr Stephen Allnut of 20 May 2019 which dealt with the provision by Dr Allnut of anti-libidinal medication to the defendant. Dr Allnut said that the defendant had been seeing him at intervals of approximately six to eight weeks. Dr Allnut said that the defendant had remained mentally stable as far as his general mental health was concerned. There had been some fluctuations in mood and anxiety but not to the extent that the defendant would have manifested a diagnosable psychiatric disorder. Dr Allnut thought that that was probably because the defendant maintained his adherence to Aropax which kept his anxiety in relative remission. Dr Allnut said that he had not identified any major depressive episodes.

27. [51]

    Dr Allnut considered that the defendant had maintained compliance with medication. Although there had been fluctuations in his testosterone levels, the absence of persistence in fluctuations meant that the fluctuations did not cause Dr Allnut significant concern. Dr Allnut said that his Androcur (the anti-libidinal medication) which had been increased to 100mg daily in July 2014 was reduced in November 2016 to 75mg after a second opinion from Dr O’Dea. The defendant denied breakthrough symptoms of paraphilia at 75mg.

28. [52]

    After a further discussion with FPS in August 2018 and after consultation with Dr O’Dea, the Androcur was reduced in August 2018 to 50mg a day. There had been some increase in his testosterone levels but they remained below normal, and there had been no reported increases in paraphilic symptoms. Dr Allnut said that it was difficult to determine whether the defendant should remain indefinitely on the medication but Dr Allnut would recommend a gradual reduction in dose with ongoing monitoring for six to 12 months after discontinuing the Androcur.

29. [53]

    Dr Allnut said that the defendant needed ongoing psychological support if the ESO came to end. That would need to be by a psychologist with expertise in treating sexual offenders, possibly LSC Psychology.

Submissions

1. [54]

   The plaintiff submitted that at a hearing such as the present there is a two stage test to be employed. The first limb of the test concerns whether or not under s 7(4) the Court is satisfied the matters in the documentation would, if proved, justify the making of an ESO. The second limb is the discretion whether or not an ISO should be imposed if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

2. [55]

   The plaintiff submitted that there was no doubt that the defendant had made remarkable steps towards his rehabilitation. He had complied with his parole and the ESO, he had gained and maintained employment, he had a stable living situation and he had pro-social friends and activities. The plaintiff submitted, however, that concerns arise on the evidence and with the defendant's current situation which support a further ESO being made.

3. [56]

   The plaintiff submitted that care must be taken in placing weight on the fact that the defendant's assessed risk of sexual reoffending has decreased with him now being assessed as being "in the lower end of the moderate range" by Mr Ardasinski. The plaintiff drew attention to what was said in Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [90]-[93] to suggest that the mere passage of time was not a basis for reducing the risk assessment.

4. [57]

   The plaintiff submitted that for the seven years the defendant has been in the community he has been subject to very strict conditions including electronic monitoring, regular meetings and assessments as well as his medication. The plaintiff submitted that the defendant had not moved to Stage 4 in relation to electronic monitoring and that there had not been a sufficient amount of time on the reduced dosage of Androcur to see its long term efficacy.

5. [58]

   The plaintiff submitted that there has been no testing of how the defendant will cope with a substantial reduction in the assistance he has received whilst subject to the ESO and that there has been no testing of whether he can live in the community without the intense level of supervision that the electronic monitoring, amongst other things, provides. The plaintiff submitted that the defendant has very few social networks. The plaintiff submitted that there is a real concern that the defendant has no social network that can assist him especially at times of increased stress.

6. [59]

   The plaintiff submitted that the defendant continues to be diagnosed as suffering from multiple paraphilias which are lifelong conditions.

7. [60]

   The plaintiff submitted that a further extension of the ESO should be imposed to facilitate a continuation in the stepping down of restrictions and a decrease in the level of supervision to which the defendant is currently subject, in order to address the risk that he poses to the community should his supervision be withdrawn completely.

Determination

1. [61]

   The matter that must be determined on the present hearing is whether the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In doing so, it must be remembered that an ESO may only be made if the Court is satisfied to a degree of high probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. However, the Court is not required to determine that the risk of the defendant committing a serious offence is more likely than not.

2. [62]

   The evidence on which the plaintiff chiefly relies is to be found in the report of Dr Ellis of 10 June 2014 and the report of Dr O’Dea of 18 June 2014.

3. [63]

   Dr Ellis in his report diagnosed the defendant as meeting the criteria for multiple paraphilic disorders. Dr Ellis said that paraphilic disorders are chronic, relapsing conditions. He did not diagnose the defendant as suffering from a paedophilic disorder despite two of the victims being prepubescent. That was because the victim type was opportunistic rather than being the primary goal of offending.

4. [64]

   Dr Ellis said further:

5. [65]

   In his report, Dr O’Dea discussed the limitation of assessment tools such as STATIC-99 or STATIC-99R in assessing risk for the purpose of treatment or supervision. He noted that the STATIC-99 focuses on measuring the risk of an individual engaging in a further sexual offence rather than a further serious sex offence as defined in the CHRO Act. Dr O’Dea stressed the importance of the making of clinical judgments of risk when using assessment tools such as those discussed. He went on to say this:

6. [66]

   Those opinions were expressed five years ago. The only material I have subsequent to that time consists of the three reports earlier mentioned, of Mr Ardasinski, Ms Smith and Dr Allnut, together with the case notes from 2014 to the present time. I have already set out in detail what appears in Mr Ardasinski’s report but it may be summarised as follows:

   1. (1)

      His score on the STATIC-99R placed him in risk category IVa (formerly “moderate/high” risk);

   2. (2)

      His total score on the STABLE-2007 placed him in the lower end of the moderate risk category, suggesting a moderate density of criminogenic needs;

   3. (3)

      The composite assessment of the STABLE-2007 and the STATIC-99R placed him in level IVa (above average risk);

   4. (4)

      By reason of the recent research showing that recidivism risk was cut in half for each five years that an offender remained offence-free in the community, this resulted in the appropriate risk category for the defendant at the current time as being III (average risk);

   5. (5)

      The defendant remains a risk but that risk can likely be managed through oversight by the police under the CPR and CPPO;

   6. (6)

      Although the defendant has made progress on each of his risk factors, there have been powerful impediments to his reoffending, being his medication, his electronic monitoring and his curfews;

   7. (7)

      A court would be unlikely to support a further ESO since there is insufficient evidence of continuing “live” risk;

   8. (8)

      A recommendation that no further application be made.

7. [67]

   In relation to the finding at (4) above, as I have noted, the plaintiff pointed to what was said in McGuire. I do not consider that the decision in McGuire has any relevance in the present case. The application in that case was made under the Mental Health (Forensic Provisions) Act 1990 (NSW). The defendant was diagnosed as having a mild range intellectual disability, alcohol use disorder and antisocial personality traits. The studies relied upon by Mr Ardasinski in the present matter were said in McGuire to be treated with caution because the studies were not dealing with people with intellectual disabilities. That is not the position in the present case, and there is no evidence contrary to what Mr Ardisinski says about the studies and his application of them.

8. [68]

   In the report from Recquel Smith, on the basis of the progress the defendant had made and the absence of any breaches during the existing ESO, it was recommended that no further order be sought.

9. [69]

   Dr Allnut’s report said that the defendant was mentally stable, that Dr Allnut had no significant concern that there had been non-adherence to the anti-libidinal medication, and that there were no reported increases of paraphilic symptoms.

10. [70]

    The plaintiff pointed to two matters in Mr Ardasinski’s report that suggested that he had made an error in his executive summary in concluding that a court would be unlikely to support a further ESO. First, the plaintiff submitted that there was a real question whether Mr Ardasinski had applied the correct test, particularly in light of the material in paragraph 20 of his report ([37] above). Secondly, the plaintiff submitted that Mr Ardasinski erred in his conclusion at paragraph 25 ([40] above), that the defendant could be managed through oversight by the police under the CPR and CPPO. The plaintiff submitted that Mr Ardasinski’s understanding of the oversight under the CPR and CPPO was incorrect in that the police under those two Acts could not manage the risk which had been identified.

11. [71]

    The plaintiff submitted that Mr Ardasinski accepts that there is a risk. In the light of what is said, particularly in Dr Ellis’ report, that the paraphilic conditions are chronic and only treatable but not curable, there was an unacceptable risk of a further serious offence being committed.

12. [72]

    It may be accepted that Mr Ardasinski considers that the defendant remains a risk. He classifies that risk, on the basis of the recent research in relation to reduction in recidivism risk after five years, as the defendant being an average risk. He accepted that many offenders remain a risk when their sentences or ESO ultimately expire.

13. [73]

    However, Mr Ardasinski is a very experienced senior psychologist with the Serious Offenders Assessment Unit. His is the only risk assessment conducted within the last four years and it is the only risk assessment put forward by the plaintiff following completion by the plaintiff of four and a half years of the existing ESO. I do not accept that Mr Ardasinski is mistaken as to the correct test which the Court applies under the CHRO Act.

14. [74]

    Section 8 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) gives wide powers to the Local Court to limit a person’s conduct, whether as to contact with people or as to exclusion from stipulated areas. I do not accept that Mr Ardisinski is in error in considering that the defendant is not free from supervision by reason of his registration under child protection legislation. However, I do not consider this opinion of Mr Ardisinski’s is germane to consideration of any risk which the defendant presents.

15. [75]

    It is significant that both Dr Ellis and Dr O’Dea considered in their 2014 reports that three years from June 2014 was a reasonable period for the imposition of the first ESO. I accept that both of those psychiatrists appeared to contemplate that at the end of the three year period, the defendant should be reappraised. However, five years now having elapsed, the position is that the reappraisal by Mr Ardisinski, Ms Smith and Dr Allnut results in findings that the defendant has been completely compliant with all the conditions of his ESO and his prescribed medication. That compliance is established notwithstanding covert surveillance of him throughout the five year period.

16. [76]

    It would have been open to the plaintiff, pursuant to the existing ESO (Part M, clauses 1, 2, 7) to have had the defendant re-examined by either or both of Dr Ellis and Dr O’Dea (noting that Dr O’Dea has remained involved in the defendant’s treatment throughout that period) or by any other psychologist or psychiatrist to demonstrate that the defendant remained an unacceptable risk. No such evidence was put forward at the hearing and there was no explanation for its absence when I raised the matter with counsel for the plaintiff.

17. [77]

    The plaintiff submitted that the stage at which the defendant now was, in relation to supervision, demonstrated that more time was needed so that the level of supervision could be gradually stepped down. That submission seems to me, in all the circumstances, to be disingenuous. The plaintiff was aware that an ESO was put in place for five years from 3 July 2014. That order was made although the plaintiff had only sought an ESO for three years. Seeking an order for only three years can be taken to constitute some support for the view that the plaintiff, based on the reports of Dr Ellis and Dr O’Dea, then considered that a three year period would be sufficient. I have some difficulty in understanding how the plaintiff can now assert, on the basis of those same reports, that a further three year ESO is needed in the face of the defendant’s unblemished compliance with the ESO, and the risk assessment in Mr Ardisinski’s report.

18. [78]

    Despite a five year order being made, it does not appear that the plaintiff has taken appropriate steps to reduce the level of supervision of the defendant to the point where a proper reappraisal of the defendant’s risk of reoffending can be made.

19. [79]

    A significant example of this failure concerns the progression of the defendant through the Stages of electronic monitoring. As Mr Ardasinski observed at paragraph 11 of his report, the defendant progressed through Stages one and two (which both require schedules of movements) to Stage three through his “excellent compliance reports”.

20. [80]

    There is an entry in the Corrective Services case notes on 7 December 2016 where the following appears:

21. [81]

    What was then done is set out in an affidavit of Annette Caffery sworn 25 June 2019. It appears that at a meeting of the High Risk Offender Assessment Committee on 5 December 2018, following receipt of Mr Ardasinski’s report, it was decided that a report needed to be obtained from Dr Allnut for the purpose of detailing compliance and plans to continue with his anti-libidinal treatment. There is then conflicting information about what happened, if what Ms Caffery says is compared with another affidavit of Bernhard Ripperger of 24 May 2019. Mr Ripperger says that Dr Allnut was contacted on 25 January and asked for a report but he was overseas until 4 February. Ms Caffery says that Dr Allnut contacted the ESO team on 29 January in relation to providing a report. Ms Caffery then says that on 16 April 2019, a report was requested from Dr Allnut.

22. [82]

    Neither deponent explains the delays. By the time the report of Dr Allnut was received, a decision had been made not to support the removal of electronic monitoring because of the present application.

23. [83]

    The effect of the plaintiff’s submission was that at present the defendant had not, whilst under the supervision of an ESO, been progressed to Stage 4 of electronic monitoring, and that there was a risk of the defendant committing a further serious offence if the absence of monitoring occurred without the supervision afforded by an ESO. In that regard, the plaintiff pointed to what Mr Ardasinksi said in paragraph 20 of his report that although the defendant had made progress on his risk factors there were two powerful impediments to his reoffending, being his medication and his electronic monitoring. The plaintiff submitted that, in circumstances where the defendant was under no obligation to be monitored and to take his medication, there was an unacceptable risk.

24. [84]

    I accept that, in the absence of an ESO, the defendant may not be compliant with his medication and that the risk of reoffending might be increased by the absence of monitoring when considered in conjunction with non-compliance with his medication. However, this situation could have been avoided by steps being taken from 7 July 2017 as the Corrective Services case notes contemplated. In any event, nothing in the case notes nor in the three current reports to which I have referred suggests other than that the defendant is complying willingly and has insight into his condition and the continuing need for the medication. His decision to remain working part-time to avoid losing his health pension card and thereby be deprived of obtaining his medication at a much reduced cost was a significant example of his motivation in that regard.

25. [85]

    The Corrective Services case notes make clear that arrangements have been made, at the suggestion of Dr Allnut, for the defendant to see Luke Brabant of LSC Psychology for ongoing psychological treatment if no further ESO is ordered. Mr Brabant knows the defendant through Mr Brabant’s past work with Corrective Services. The defendant will continue to see Dr Allnut in relation to his anti-libidinal medication. Counsel for the plaintiff informed me during the hearing, without objection, that Dr Allnut is prepared to continue to see the defendant with Medicare being responsible for the cost.

26. [86]

    The measure of stability in the defendant’s life over the past three years or more in terms of his accommodation, his employment and his small social network, together with the insight the defendant appears to have gained into the need for ongoing pharmaceutical, psychiatric and psychological treatment, all lead me to the conclusion that the defendant will not cease to take his medication and will not alter his pattern of living established over the past five to seven years in any significant way.

27. [87]

    The plaintiff appears to accept, on the basis of the defendant’s conduct during the time since he has been out of prison on parole, that the risk of his reoffending might be low. However, the plaintiff submits that if the risk manifests itself, serious harm will be caused. The plaintiff points to what was said by Rothman J in State of NSW v Ceissman [2018] NSWSC 508. His Honour was there dealing with the Terrorism (High Risk Offenders) Act 2017 (NSW), but it may be accepted that similar principles are involved under that Act as are involved under the CHRO Act. Indeed, the Terrorism (High Risk Offenders) Act was based to a large extent on the approach taken in the CHRO Act.

28. [88]

    In Ceissman, Rothman J said this:

29. [89]

    In that regard, the plaintiff pointed particularly to what was said by Dr Ellis in the passage set out at [64] above, that,

30. [90]

    Accepting that that opinion was correct in 2014, reliance on it for present purposes ignores the progress that the plaintiff accepts the defendant has made in the last five years. He has now been on anti-libidinal medication for some 15 years and, on the evidence I have, has been entirely compliant with it. He was on parole for two years and on an ESO for five years and has been compliant in every respect with the conditions of those forms of conditional liberty. The only current risk assessment that I have rates his risk of reoffending as average. The evidence I have from the very experienced psychologist who so rates him is that his dynamic risk falls in the lower end of the moderate risk range for sexual reoffending. I also take into account the fact that the offending forming the basis for the present application took place over a nine month period some 29-30 years ago when the defendant was aged 20.

31. [91]

    I do not overlook the enormity of the crimes committed by the defendant, and I do not overlook the paramount consideration the CHRO Act requires, being the safety of the community.

32. [92]

    There is certainly evidence suggesting that the defendant is at risk of committing further serious offences but that is not the test the CHRO Act stipulates. Any judge before whom an application for an ESO comes must be satisfied to a high degree of probability that the defendant is an unacceptable risk of committing a further serious offence. Whilst my task dealing with an ISO is not to predict the result for the outcome of an ESO application I have to be satisfied on a prima facie basis that the order should be made. That is, I must be satisfied that the facts, if proved, would justify the making of an order because the defendant is found to be an unacceptable risk to that high degree of satisfaction.

33. [93]

    In my opinion, the matters alleged in the supporting documentation put forward on the present application would not, if proved, justify the making of an extended supervision order because the Court could not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence.

Conclusion

1. [94]

   I make the following order:

   1. (1)

      Summons dismissed.