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

1. [1]

   HIS HONOUR: The State of New South Wales has applied for an extended supervision order ("ESO") under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in relation to Mr David O'Donnell.

2. [2]

   Mr O'Donnell opposes the application. He accepts that the statutory preconditions for the making of the application are established but he contests the ultimate issue in relation to the making of an extended supervision order, namely that there is "a high degree of probability that [he] poses an unacceptable risk of committing another serious offence if not kept under supervision under the order": s 5B(d) of the Act.

3. [3]

   Section 5D of the Act provides that a Court asked to make an ESO:

4. [4]

   Aside from having regard to the "Objects of the Act" set out in s 3 (see below), it is important to note that s 9(2) provides:

5. [5]

   The test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [82] (Basten JA). The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] (Beazley P). Those objects are:

6. [6]

   In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], the Court explained that a "high degree of probability" (now in s 5B(d)) indicates something "beyond more probably than not". It is higher than the civil standard of proof but not as high as the criminal standard.

7. [7]

   The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at [44] and [55]-[58] (Beazley P), [128] (Basten JA), [148] (Gleeson JA).

8. [8]

   I agree with what Harrison J said in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43] about the provision in s 5D (formerly in s 5B(3):

9. [9]

   An issue arises in this case as to whether regard may be had to alleged criminal conduct of the defendant that did not result in conviction for any offence. Such material may be relevant, subject to the weight to be afforded to it, as evidence falling under the category of material described in s 9(3)(i) of the Act ("any other information that is available as to the likelihood that the offender will commit a further serious offence"). This was the approach taken by Adamson J in Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124]. It may also be relevant to "the safety of the community" (s 9(2) of the Act) which was the approach taken by Walton J in State of New South Wales v French (Final) [2017] NSWSC 1475 at [46] in relation to the former but similar provision in s 9(3)(a).

Review of the evidence

1. [10]

   As is usual in applications of this type a large volume of documentary material was read and tendered at the hearing. It included reports by two experts appointed by the Court following a preliminary hearing before Fagan J on 5 March 2018: Ms Caroline Hare, forensic psychologist, dated 2 April 2018, and Dr Richard Furst, consultant forensic psychiatrist, dated 3 April 2018. Further expert reports in the form of a Risk Assessment Report by Dr Richard Parker dated 10 October 2017 and Supplementary Risk Assessment Report dated 8 December 2017 were also tendered. An affidavit of Dr Parker of 6 April 2018 was read as well.

2. [11]

   Aside from offences committed in 1998 and in 2014 (discussed below) the defendant has no other convictions in his criminal history. He is currently serving the balance of the parole period of the sentence imposed for the 2014 offence. It expires on 20 May 2018.

3. [12]

   On 6 December 2000 the defendant was sentenced in the District Court by Price J (as his Honour then was) to 10 years' imprisonment with a non-parole period of 6 years for the following offences arising out of an incident on 14 May 1998:

4. [13]

   Price J described in his sentencing remarks how on 14 May 1998 the defendant and a co-offender approached a male prostitute in Darlinghurst with a plan to rape and kill him. The prostitute told the defendant and co-offender that he did not do anal sex but agreed to give the offenders oral sex for a fee. He went with them to their house at Ermington where consensual oral sex occurred. The co-offender then grabbed the victim's legs and turned him over. The victim protested and the co-offender backed off until the defendant called him "weak as piss" and said, "you can't even get this one".

5. [14]

   The co-offender then grabbed the victim's testicles, squeezed and twisted them. The victim was screaming as the defendant repeatedly hit him on the back of the head with an object believed to be a baton and told the victim to “shut up”. The co-offender and then the defendant had anal intercourse with the victim. The defendant also used his hand to penetrate the victim's anus and his nails cut the victim.

6. [15]

   The co-offender proceeded to have anal intercourse with the victim again and the defendant encouraged him to ejaculate inside him, knowing that the co-offender had the human immunodeficiency virus (HIV) and was not wearing a condom.

7. [16]

   After being raped, the victim had a shower. When he tried to leave the co-offender hit him on the crown of his head with a shifting spanner which split the victim's head open and brought him to his knees. The victim asked, "What are you going to do with me?" The co-offender said, "We're taking you for a ride". The defendant added, "We are going to kill you". The defendant tied the victim's wrists behind his back using a belt and a towel was used as a blindfold and a blood mop. The defendant hit the victim's feet with the shifting spanner, threatening him to stop moving his feet or the defendant would hit him in the face.

8. [17]

   The defendant and co-offender led the victim bound and blindfolded to a car parked in the driveway of the premises. When the victim asked, "Where are you taking me" he was told, "We're going out to the bush". A struggle occurred in the car and the victim was able to escape. He was chased across the front lawn and tackled to the ground. The co-offender repeatedly hit him with a wrench and the defendant kicked his face.

9. [18]

   Supplementing that summary by drawing upon the victim's account, neighbours heard the incident and approached the defendant and co-offender yelling, "Stop or you'll kill him". They were told that the victim was trying to break into their house and to call the police.

10. [19]

    The non-parole period for the defendant's sentence for these offences expired on 1 April 2006. However, he was not released on parole until 9 October 2008.

11. [20]

    The defendant pleaded not guilty but was convicted after a jury trial. He has given different accounts as to what occurred on the night of 14 May 1998.

12. [21]

    In a report prepared for the sentence proceedings by Mr Gregory Fathers, psychologist, it was said that the defendant denied the substance of the charges. He admitted engaging in oral and anal intercourse. He claimed a condom was used at all times. Generally, he claimed that he had "too much to drink" and that his recollection of the night was "blurred". However, I note that the sentencing judge rejected the proposition that the defendant was acutely intoxicated; he found that the offences were committed for his, and his co-offender's, gratification.

13. [22]

    In a report prepared for the State Parole Authority dated 17 May 2006, Ms Victoria Bel, psychologist, included that the defendant "vehemently denied the offences apart from physically assaulting the victim (in self-defence)". The defendant maintained to Ms Bel, in effect, that the sexual contact was consensual; the victim had stolen money from the co-offender; and that the victim had initiated the violence in the car and that he had responded in self-defence. He also claimed to have been "very drunk".

14. [23]

    The defendant clearly had no empathy for the victim. When asked by Ms Bel what effect his offences had on the victim he said:

15. [24]

    It is somewhat concerning that the defendant largely maintained such an account in his more recent interviews with the two court-appointed experts and the author of the Risk Assessment Report. The written submissions for the plaintiff summarises the position correctly in my view:

16. [25]

    On 21 October 2015 the defendant was sentenced for an offence of aggravated indecent assault on a person under the age of 16, contrary to s 61M(2) of the Crimes Act. This is a "serious sex offence" as defined in s 5(1)(a)(i) of the Act. His Honour Judge Norrish QC imposed a sentence of imprisonment for 2 years and 7 months with a non-parole period of 9 months dating from 21 October 2015.

17. [26]

    The defendant pleaded guilty. Agreed facts indicated that the offence occurred on 6 May 2014 when the defendant was aged 39. The victim was a boy aged 15, although due to an injury sustained at birth he was assessed as having the mental age of a 12 year old. The defendant was living alone in a unit in Oberon. The victim had attended this unit on a number of occasions; it was known as a local "hang-out" where youths attended in order to smoke cigarettes and drink alcohol.

18. [27]

    On 6 May 2014 the victim went to the defendant's home. The defendant was drinking beer. The victim sat on the lounge and the defendant sat next to him. The defendant ran his hand up the victim's leg to his groin and rubbed the victim's penis outside of his clothing for about 30 seconds. The victim told him to stop and he did.

19. [28]

    The defendant turned on his DVD player to play some music and a sex scene from a movie the defendant had been watching came on. The defendant switched the movie off and played some music. He then poured the victim a glass of beer and the pair consumed some alcohol.

20. [29]

    When the victim went to the toilet he heard his brother speaking with the defendant at the front door. The defendant lied by denying that the victim was present and the brother left. The brother returned a short time later and told the defendant that he would not leave without the victim. The defendant then told the victim to leave. The incident was reported to the police the next day and the defendant was arrested a few days later.

21. [30]

    A report by Ms Anna Robilliard, psychologist, dated 13 October 2015 was tendered on the defendant's behalf at the sentencing hearing before Norrish QC DCJ. It included that the defendant said he had been drinking heavily to try and alleviate his emotional distress arising from the death of his mother the previous year. He said that he knew the victim but could not remember much about the incident because he was drunk. He could not remember touching the victim but added, "I'm very touchy feely when I'm very drunk" and "It sounds like something I would do or have done in the past". He said he felt bad about the offence because he made a young boy feel uncomfortable; it would not have happened if he had been sober. Around that period he had been drinking very heavily and was not showering, eating, sleeping or visiting his family regularly.

22. [31]

    A Pre-Sentence Report by a Senior Community Corrections Officer dated 1 September 2015 included the defendant's account that on the day of the offence he had been treated insensitively by a staff member at a local employment agency which resulted in him losing his temper and being escorted from the interview. He went home and consumed an unspecified amount of alcohol, claiming that it was an attempt to ease his distress. He told the officer that he could not remember the offence in detail; he was intoxicated at the time.

23. [32]

    To the court-appointed experts and the author of the Risk Assessment Report the defendant maintained that he was intoxicated and could not recall the index offence. He said that when he is drunk he invades people's personal space. He claimed that he did not know the victim (contrary to what he had previously said and what appeared in the agreed facts). It is of note that Ms Hare wrote:

24. [33]

    The non-parole period of the sentence imposed for the index offence expired on 20 July 2016. The State Parole Authority revoked the parole order before the defendant was released on the basis that no suitable accommodation had been identified. Parole was later reinstated and the defendant was released on 26 August 2016 on the basis that he would live at the Nunyara COSP Centre.

25. [34]

    It is the case that the defendant has not been charged, let alone convicted, of any further offence since he was released on parole. However, the submissions for the plaintiff drew attention to the following aspects of his conduct in that period.

26. [35]

    On 30 November 2016, Corrective Services NSW received a call from a constable attached to the transport command at Central railway station reporting that the defendant had been seen on three separate occasions in the toilets "loitering and likely to be offending or having consensual sex". On one occasion he was seen holding his penis outside his pants and moving from cubicle to cubicle. Dr Parker reported that the defendant denied that he was engaging in casual sex in the toilets, claiming he had diarrhoea from the medication he was taking.

27. [36]

    On 16 February 2017 the defendant left the Nunyara COSP Centre and took up accommodation in the Central West of the State. He continued to attend regular counselling sessions with Forensic Psychology Services ("FPS") in Sydney.

28. [37]

    The defendant attended Mardi Gras which was held in Sydney on Saturday 4 March 2017. He had not sought prior approval. When confronted with this he denied having attended. However, he had been seen by an employee of the Nunyara COSP wearing a wrist band indicating that he had been a participant in the parade. He was given a written warning.

29. [38]

    Concern was expressed at group counselling sessions at FPS during March 2017 about the defendant wearing t-shirts bearing slogans, "Party Animal" and "Born to be Wild". When questioned about the appropriateness of this, and the messages that the clothes conveyed to others, he is said to have become defensive.

30. [39]

    There is a case note dated 22 March 2017 concerning a telephone call received by Community Corrections from the woman who had allowed the defendant to live in her home in the Central West. She complained that he was going out until all hours of the night and had been drinking alcohol.

31. [40]

    Concern was expressed in a note of an FPS counselling session on 18 July 2017 about the possibility of the defendant being sexually preoccupied. The following week, he spoke of a culture of drinking at the boarding house where he lived where there were numerous university students as residents. He spoke of their intoxication and how their parties would move from one unit to another throughout the night until early morning. In this context he said that he left the door to his room unlocked. A Community Corrections case note includes:

32. [41]

    On 27 October 2017 there was a discussion between a Community Corrections officer and a psychologist at FPS. The latter confirmed that the defendant had still not completed his self-management plan where he was required to identify his risk factors. As a result, the defendant could not progress to the maintenance group program.

33. [42]

    An alcohol breath test on 25 November 2017 initially yielded a reading of 0.035 but on retesting there was a zero result. It seems to be accepted that the first reading was caused by the defendant's medication. Subsequent testing on three occasions in the following fortnight all resulted in zero readings.

34. [43]

    On 11 November 2017 an incident occurred at the defendant's boarding house which resulted in proceedings being commenced for him to be the subject of an apprehended personal violence order ("APVO"). On that day the "person in need of protection" ("PINOP") moved into the boarding house. The defendant went to PINOP's room and invited him to his own unit to watch movies. The PINOP accepted the invitation. They first went to a hotel before returning to the defendant's room. There they drank alcohol until the PINOP became very drunk; he said words to the effect of "I'm pissed". The defendant touched the PINOP's upper leg but the PINOP swiped his hand away and said, "Stop".

35. [44]

    Sometime later, the defendant knelt in front of the PINOP, pulled his shorts down and performed fellatio upon him. He then manoeuvred the PINOP's penis into his anus and had sexual intercourse with him. The PINOP said, "No, I've had enough". He pushed the defendant away but the defendant knelt in front of him pleading, "Please". The PINOP responded, "No means no", and returned to his own room.

36. [45]

    There was contact between the defendant and the PINOP on a number of occasions in the course of the next month or so. Nothing untoward in relation to the defendant's behaviour was alleged. It is said, however, that since the incident the PINOP had been suffering mental health issues and had spent some days in a mental health facility until 21 December 2017.

37. [46]

    On 21 December 2017 the defendant told a Community Corrections officer that he had the PINOP in his room; the PINOP drank alcohol but he did not; he kissed the PINOP and they began to fondle each other's genitals; he performed oral sex on the PINOP; and when the PINOP asked the defendant if he could have anal sex the defendant told him that he did not want to and the PINOP became upset. However, on 9 February 2018 the defendant told a different Community Corrections officer that "he had only kissed the victim after the victim had been drinking".

38. [47]

    On 8 January 2018 the defendant consented to the making of a final APVO without admissions.

39. [48]

    On 21 December 2017 the defendant was given 15 days' notice to vacate the boarding house where he had been staying. He became distressed about the prospect of finding alternative accommodation and the possibility of being returned to gaol. He found temporary accommodation with a friend in a southern suburb of Sydney but he had to move out of there on 16 February 2018. He then lived in short term accommodation arranged by Housing NSW until he was arrested on 21 February 2018 on a warrant for breach of parole. He has remained in custody since that time.

40. [49]

    A report was submitted by the defendant's supervising Community Corrections officer to the State Parole Authority on 15 February 2018 recommending that parole be revoked. The breach was alleged to be of the condition that he "Obey all reasonable directions". It was said that third party inquiries had revealed that the defendant had consumed alcohol on three occasions in the past two weeks and had presented as highly intoxicated on one occasion; this being contrary to a written direction prohibiting him from consuming alcohol whilst on parole because of it being an identified risk factor for him. It was also reported that he had been attending licensed venues in Darlinghurst.

41. [50]

    The Breach of Parole Report includes that the defendant's response to supervision had been "somewhat superficial". It appeared that he continued to engage in risk related behaviour and it was "of serious concern … that Mr O'Donnell is allegedly engaging in alcohol use despite it being directly related to his serious sexual offending and despite being prohibited from doing so".

42. [51]

    Reference was also made in the Breach of Parole Report of concern expressed by the defendant's FPS therapist, a Ms Britton. She had advised on 10 February 2018 that the defendant had been in a maintenance program for the past 12 months but there were significant concerns about his ongoing predatory and risky behaviour. In relation to the APVO incident (see above), the therapist advised that the defendant was "aware that sexual behaviour towards an intoxicated person is not ok as the person is unable to consent if they are intoxicated". She had also advised that the defendant was "aware that it is a risk for him to engage in sexual behaviour with strangers or with people who are under the influence of AOD". The case note of this information provided by the therapist also includes:

43. [52]

    It is concerning that these comments were made after the defendant had engaged over such a lengthy period of time with the therapeutic program offered by FPS.

44. [53]

    The Breach of Parole Report stated that "it would appear that the offender is engaging in offence parallel behaviour" and that there were "significant concerns for the safety of the community at this juncture".

Earlier reports

1. [54]

   Dr Jonathan Carne, psychiatrist, and Mr Gregory Fathers, psychologist, assessed the defendant prior to his sentencing for the 1998 offences. Dr Carne diagnosed learning difficulties with a possibly low average IQ, alcohol abuse and marijuana abuse. He noted that the defendant had a poor recall of the events relating to the offences which he (the defendant) attributed to being heavily intoxicated at the time. The history obtained from the defendant included that his heavy drinking had consequences including blackouts, angry outbursts and falls.

2. [55]

   The account the defendant provided to Mr Fathers as to the offences has been referred to earlier (at [21]). Mr Fathers found the defendant to be of below average intelligence. This was said to have the result that thinking and judgment would be impaired and, coupled with drug and alcohol use, his cognitive abilities would be further impaired. He found the defendant to be impulsive and emotionally labile. Mr Fathers said that the defendant "would be disinhibited under the influence of drugs and low cognitive abilities would further deteriorate with poor judgment being shown". He also said that "impulse gratification would be an imperative for him" and that "there are significant clinical features which need further investigation".

3. [56]

   Mention has been made above (at [22]) of a report by Ms Victoria Bel dated 17 July 2006. Ms Bel applied the Static-99 risk assessment instrument and found the defendant was in the "medium-high" category of risk for re-offending. Dynamic risk factors she considered relevant to the defendant confirmed that he posed a "significant risk of re-offending".

4. [57]

   Mr Fathers also provided a report for consideration in relation to a parole determination in 2006. It included that he had rated the defendant under Static-99 as a "moderate/low" risk.

5. [58]

   The report of Ms Anna Robilliard of 13 October 2015 (see above at [30]) included her assessment of the defendant's intelligence being on the border between "below average" and "average". Her assessment under Static-99R placed him in the "Moderate-Low" risk category. She found that the defendant had "some important dynamic factors that contributed to reduced risk of sexual reoffending". These included that he had been "offence free for about ten years"; he had secure accommodation close to significant family attachments; his sisters were supportive and concerned for him; he had part time employment available; his physical and mental health had improved since April 2015 under treatment at St Vincent's Hospital; and he maintained that he had stopped drinking alcohol.

6. [59]

   Ms Robilliard also considered that the index offence in May 2014 occurred at a time when the defendant was in poor physical and mental health due to the effects of long-term untreated HIV. Impulsivity and lack of insight were two aspects of the neurological effects of HIV which may have contributed to his disinhibited conduct and lack of consequential thinking, in addition to the effects of intoxication. She said that he expressed appropriate remorse and some insight into his past behaviour and had made a very positive change in his decision to stop drinking alcohol which would have a marked impact on reducing his risk for sexual recidivism.

7. [60]

   Ms Robilliard's report should be considered with some circumspection. Her assessment under Static-99R is at odds with that instrument having been deployed by Ms Anne Young, senior psychologist with Corrective Services NSW, at around the same time with a finding that the defendant was in the "High" risk category. When Ms Young saw him on 3 September 2015 she found:

8. [61]

   A Pre-Sentence Report tendered to Norrish QC DCJ in the sentence proceedings for the index offence included that the defendant was assessed according to the Level of Service Inventory-Revised actuarial risk/needs assessment tool as a "Medium to High" risk of re-offending.

9. [62]

   The defendant was interviewed by Ms Tamara Gradden, psychologist, on 20 December 2016 and she provided a report dated 22 March 2017. She administered the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) but it yielded discrepancies in the results between its five domains. She proceeded to discuss them individually and concluded:

Treatment programs

1. [63]

   The defendant has engaged in a number of treatment programs in the past. His participation is something that has been considered by the three experts and I have taken into account what they have said on this subject. Some specific reference should be made, however, in relation to the Custody Based Intensive Treatment (CUBIT) program the defendant undertook from February to October 2007. A report by Ms Kristy Murphy, psychologist, dated 5 December 2007 includes:

Expert assessments

1. [64]

   The current expert reports are each quite lengthy and detailed. I have considered them carefully but do not intend to summarise them. It will suffice to note some of the more pertinent opinions expressed.

2. [65]

   Dr Parker's Risk Assessment Report concluded with the following:

3. [66]

   Dr Parker's affidavit provided more up-to-date information. Since his two reports the APVO matter had occurred, the defendant's parole had been revoked and the Act had been amended. Dr Parker maintained his opinion that the defendant's risk of reoffending is "high".

4. [67]

   The allegations in the APVO were considered by Dr Parker to be highly relevant: (a) because they described behaviour that, if proven in court (which I interpolate they were not), would constitute further sexual offending; and (b) because the incident was said to involve the defendant drinking alcohol, an established risk factor for him. Even without the allegations having been proven in court, Dr Parker noted that the defendant admitted that he had engaged in sexual behaviour with a person who had been drinking, this being a person he had only just met. Dr Parker said this demonstrated a cavalier attitude towards consent, a concept the defendant should have been intimately familiar with after completing an intensive sex offender treatment program.

5. [68]

   Dr Parker also added that he considered the defendant's HIV status, along with his cavalier attitude towards sexual encounters, raised the risk of him causing grievous bodily harm by passing the virus on to others (which could constitute a "serious violence offence").

6. [69]

   Dr Furst found that the defendant met the criteria for the diagnosis of the following condition:

7. [70]

   HAND was described as a neurological disorder associated with HIV infection and Acquired Immune Deficiency Syndrome (AIDS). It results in cognitive impairment. Brain imaging was said to typically reveal significant volume reductions in the frontal white matter areas of the brain which are associated with frontal-executive function, abstract reasoning and impulsivity. The condition is chronic and progressive.

8. [71]

   At an early point in his report, Dr Furst indicated a correct understanding of the term "serious sex offence" as defined in s 5 of the Act. He also understood the question for the Court to be whether it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, whether sexual or violent in nature, if not kept under supervision (s 5B(d) of the Act). Later in the report, in addressing a question that had been posed for him as to whether the defendant posed a risk of committing another "serious offence" if left unsupervised, he said (in part):

9. [72]

   In the course of describing how the defendant's risk factors might change or fluctuate over time and what effect this might have on his likelihood of reoffending he said:

10. [73]

    Ms Hare was of the following opinion as to the defendant's risk of committing another "serious offence" as defined:

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious offence (s 9(3)(d))

1. [74]

   Each of the experts applied various actuarial statistical tools as an aid in the assessment of the defendant's risk of further offending. The limitations of those tools are well known (e.g. assessment of risk of further offending generally as opposed to further offending in respect of a "serious offence" as defined in the Act). It is clearly the case that a risk assessment cannot be definitively made by these tools alone. A court is required by s 9(3)(d) of the Act to take these assessments into account along with all other matters relevant to the task. They can be useful, provided the results are not over-valued.

2. [75]

   The findings of the experts as to the defendant's level of risk were as follows:

Oral evidence of the experts

1. [76]

   The three experts gave concurrent evidence at the hearing of the application. It was a very useful exercise. Again, I do not intend to summarise it; it will suffice to mention some particularly pertinent matters. Foremost to mention is that none of the experts retreated from the assessments in their reports of the level of risk the defendant presents of committing a further serious offence.

2. [77]

   A suggestion was made that the level of offending in relation to the index offence was of a relatively low order involving the defendant "crossing boundaries". Dr Furst responded by making the point that it was a serious offence: aggravated indecent assault involving a 15 year-old boy with a disability. It was Ms Hare who had introduced that term, but she explained that she was not speaking of that offence; she was speaking of "boundary crossing" as a risk factor in relation to the potential for the defendant to commit serious offences.

3. [78]

   Ms Hare agreed that "in the current circumstances" there was no significant risk in relation to the type of offending that occurred in 1998. Dr Furst responded by saying that the issue is the defendant's risk of offending in a serious way and he remained of the view that there is a medium to high risk. It was not possible for an assessment to be made of the defendant's risk of committing a sexual offence of a particular nature, whether it be a rape, an indecent assault or some other type of sexual assault.

4. [79]

   An issue was raised as to the defendant neglecting himself as a result of grief he experienced following the death of his mother in late 2013. He was hospitalised in 2015 when his health had deteriorated substantially. But Dr Furst made the point that at the time of the index offence in 2014 the defendant was commuting to work, drinking and smoking; he was suffering grief but he was not suffering from a major depressive disorder or other major psychiatric disorder.

5. [80]

   There was a discussion about the report of Professor Andrew Carr and his diagnosis of the HIV Associated Neurological Disease (HAND). Dr Furst agreed that following treatment the defendant received following his hospitalisation in 2015, his physical health improved substantially. But he said the defendant's mental health issues arising from HAND had persisted. He said the symptoms in terms of cognitive disturbance would not just persist but would most likely worsen. Dr Furst stressed that it is important not to conflate the successful treatment the defendant has received for physical symptoms of his condition with progress of his AIDS-related dementia (mistranscribed as "aged related dementia"). He said that it was not the case that if the defendant takes his antiretroviral medication his brain function will improve; it will deteriorate.

6. [81]

   A passage in Dr Furst's report is relevant to this. He reviewed the neuropsychological report by a Ms Tamara Gradden relating to her assessment of the defendant on 20 December 2016 (see above at [62]). Dr Furst then wrote:

7. [82]

   While it may be the case that the defendant's cognitive function will decline as Dr Furst anticipated, the rate at which this might occur in the years to come is impossible to know. Accordingly it is appropriate to confine my regard to his present level of cognitive function.

8. [83]

   Dr Furst was quite emphatic about there being a connection between the defendant's cognitive function and the risk of offending; including that "it also might make him more impulsive and disinhibited especially if intoxicated". He amplified that:

9. [84]

   A significant point that was sought to be made in the cross-examination of the experts was that the potential for the defendant to offend was greater in 2014 (at the time of the index offence) than now. Dr Furst said:

10. [85]

    Dr Parker made the point that unlike other types of offending, in relation to high risk sex offenders and high risk violent offenders:

11. [86]

    Ms Hare said:

12. [87]

    On the question of how alcohol might impact upon the defendant's risk, Dr Furst said:

13. [88]

    Ms Hare said:

14. [89]

    Dr Parker said:

Other matters listed in s 9(3) that are required to be considered

1. [90]

   There is material before the Court in relation to the various matters listed in s 9(3) that are required to be taken into account and I have done so. Many of them have been the subject of review and discussion in the experts' reports.

2. [91]

   The only specific comment that I wish to make is that relating to the matter in sub-s (3)(e2): "the likelihood that the offender will comply with the obligations of an extended supervision order". There appears to be a reasonable prospect of the defendant complying with an ESO. He has been largely compliant with the conditions of his parole in terms of maintaining contact with his supervisors and attending regular counselling sessions with FPS. There are, however, questions as to his compliance with a requirement that he not consume alcohol and as to him not always being frank about his movements (e.g. his denial of having attended Mardi Gras last year).

Whether there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO

1. [92]

   Counsel for the defendant placed considerable reliance upon the fact that there has been no suggestion of brutal sexual violence of the type that was involved in the 1998 offences having been repeated in the ensuing 20 year period. Counsel portrayed that incident as having been the product of the defendant being in a "toxic" relationship at the time with his co-offender. Further, reliance was placed upon a characterisation of the index offence in 2014 being of a lower order of seriousness and there being no other charges, let alone convictions.

2. [93]

   Against this, however, is that the experts are virtually unanimous in their assessment of the risk the defendant presents of committing a serious offence if not kept under supervision. The nature of the prior offences, most obviously the 1998 offences, and the fact that the defendant does not appear to have made any real gains from having undergone quite extensive rehabilitation programs, do not augur well for the safety of the community if the defendant were to be released into the community unsupervised. The fact that he maintains a version in relation to the 1998 offences that denies his culpability for their brutality is quite troubling.

3. [94]

   The 2014 offence occurred in circumstances where the defendant allowed his home to be used as a "hang out" for young people to smoke cigarettes and drink alcohol. There is nothing to indicate that the defendant has developed any insight about the risk inherent for him in living with such an arrangement. Pertinent to this are the circumstances in which he was living in mid-2017: in a boarding house with intoxicated and partying university students on the premises where he habitually left his door unlocked. The circumstances of the APVO matter where, on one of the defendant's accounts, he engaged in sexual activity with an intoxicated male co-resident are pertinent as well.

4. [95]

   The dynamic risk factors identified by the experts are significant; they remain extant to this day and would seem to be unlikely to dissipate in the ensuing years. They include, as Ms Hare listed them in her report:

5. [96]

   Dr Furst described as an "additional special risk factor" the defendant's HIV Associated Neurocognitive Disorder which has impaired his attention and memory function and which is also likely to make him more impulsive and disinhibited, especially if intoxicated. This risk factor is one that will endure, given Dr Furst's evidence that the defendant's brain function will not improve.

6. [97]

   Counsel for the defendant highlighted the fact that his client had completed a number of rehabilitative programs over the years but the fact remains that the risk factors endure.

7. [98]

   Counsel also referred to the defendant being under stress in the period before his parole was revoked and there were no further charges. However, Ms Hare pointed out that there had been "concerning behaviour" nonetheless and Dr Furst maintained that he had had regard to this but it did not alter his assessment of risk. Counsel for the plaintiff pointed out that this was a period in which the defendant was under supervision and the issue raised in s 5B(d) is the risk "if not kept under supervision".

8. [99]

   The strength of the expert opinions are such that I am driven to conclude in terms of s 5B(d) that there is a high degree of probability that the defendant does pose an unacceptable risk of committing another serious offence if he is not kept under supervision under an ESO.

Whether an extended supervision order should be made

1. [100]

   I am satisfied that each of the preconditions listed in s 5B are satisfied. This enlivens the question as to whether an ESO should be made. There was no submission that I should not do so if I reached the appropriate level of satisfaction. Having regard to the material relied upon by the plaintiff in relation to the matters listed in s 9(3) and with particular regard to the paramount consideration of the safety of the community, I am of the view that an order should be made.

Conditions

1. [101]

   The defendant objects to certain conditions proposed by the plaintiff. Before turning to them, it is appropriate to observe that in Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 the Court (Beazley P, McColl and Ward JJA) stated (at [53]-[54]):

2. [102]

   An objection was made to these proposed conditions but no specific submission was made.

3. [103]

   The desirability of there being such conditions was explained in a Risk Management Report by Ms Kirsten Flatley, Senior Community Corrections Officer of the Extended Supervision Order Team, dated 31 October 2017, and in the affidavit and oral evidence of Ms Janelle Farroway who is described as the High Risk Offender Applications and Operational Governance Officer of the Extended Supervision Order Team.

4. [104]

   Drs Parker and Furst supported the inclusion of such conditions. Ms Hare expressed reservations in her report but in oral evidence she said that she did not dispute the role that such conditions could have in management of the defendant. She accepted that electronic monitoring would assist with managing some of the earlier factors that come in "an offence chain" and perhaps "would moderate some of the risk factors".

5. [105]

   The evidence supports the inclusion of these conditions. At least initially, it would be important for the defendant's departmental supervising officer ("DSO") to have confidence that he is where he is supposed to be and not in places that might give rise to risk. The evidence shows that he has not always been completely compliant and candid about such matters. It is notable that the proposed conditions include that electronic monitoring may cease after a period of 12 months provided that there is no breach of the ESO or further offending.

6. [106]

   The defendant objects to conditions concerning a curfew (13); not spending the night anywhere other than his approved address (15); and not permitting anyone to stay at his approved address (16). The only submission made was that the defendant wants to be free to come and go as he chooses. He would not object to conditions 15 and 16 provided they were limited so as only to relate to persons under the age of 18.

7. [107]

   It is notable that these conditions (and many others) have a proviso. The curfew condition will apply "if so directed by his DSO" and others would not apply if there is prior approval by the DSO. The evidence supports a concern about the defendant's movements at night and his interactions with other people regardless of their age. The three experts indicated support for the inclusion of such conditions. Permitting the DSO to have oversight is appropriate.

8. [108]

   Condition 21 has the typical DSO proviso – "without prior approval of his DSO" and Condition 46 was amended at the outset of the hearing to insert the same.

9. [109]

   There was some debate during the course of the concurrent evidence of the experts about these conditions. There was a suggestion that there should be a presumption in favour of the defendant going to places that sell sexually explicit material and purchasing some but it could be something prohibited if the DSO thought that became warranted. The plaintiff, however, maintained that the condition should remain as drafted.

10. [110]

    In the course of submissions there was some discussion about the practicality of a condition that presumes the defendant may purchase such material. Counsel for the plaintiff suggested that it may have the adverse consequence that it would give rise to more intrusive monitoring of the defendant's possessions (there is no objection to "Search and seizure" conditions in the usual form).

11. [111]

    Counsel for the defendant pointed to the serious consequences of any breach of conditions of an ESO and relied upon the evidence of the experts, particularly Dr Furst.

12. [112]

    I am of the view the conditions should remain as they are presently proposed.

13. [113]

    Proposed Condition 24 includes that the defendant must not use alcohol. The defendant objects to this blanket prohibition and contends that he should be permitted to drink alcohol provided he does not exceed a blood alcohol level of 0.05 grams of alcohol per 100mL of blood.

14. [114]

    The experts were unanimous in opposing this relaxation of the condition. Dr Furst made a diagnosis of alcohol use disorder and had no confidence in the defendant's ability to limit his alcohol consumption in such a way.

15. [115]

    There is a very clear link between alcohol use and the defendant's past offending. In Dr Parker's terms, it is "quite an acute risk factor". Disinhibition through any alcohol use is a significant concern. The condition should remain as drafted.

16. [116]

    One of the main concerns giving rise to the inclusion of a condition that "the defendant must not associate with any people who are consuming alcohol" is his inability to learn, despite all of the counselling and treatment he has undergone, that intoxicated persons are incapable of consenting to sexual activity.

17. [117]

    Dr Parker's evidence was that there might not be concern at one extreme where the persons consuming alcohol were pro-social members of the community (e.g. a family gathering) but there would be a concern at the other extreme where, for example, the defendant wanted to go "bar hopping".

18. [118]

    This condition has a DSO proviso: "without the prior approval of his DSO". With that in mind, the condition should remain.

19. [119]

    It is proposed that the defendant be prohibited from possessing or using any firearm within the meaning of s 4 of the Firearms Act 1996 (NSW) or prohibited weapon as defined in s 4 and Sch 1 of the Weapons Prohibition Act 1998 (NSW). Counsel for the defendant submitted that it was irrelevant, although he indicated that the defendant had not given any instructions that he wanted to obtain a firearms licence or similar.

20. [120]

    Dr Furst considered that this condition was appropriate given the use of a weapon in the 1998 offences.

21. [121]

    Given its potential protective effect in relation to community safety and the safety of supervising officers, and that there is no real basis for the objection aside from relevance, I consider it appropriate that this condition remain.

Orders

1. [122]

   I make the following orders: