State of New South Wales v King

1. [1]

   On 17 February 2015, RA Hulme J ordered that Ronald Dean King (hereinafter called “the applicant”) be subject to an extended supervision order for a period of five years: R v King [2009] NSWCCA 117. By reason of various incarcerations since the making of that order and pursuant to s 10(2) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), the ESO will expire on 4 July 2023.

2. [2]

   By a notice of motion filed 23 July 2021, the applicant seeks an order pursuant to s 13(1) of the CHRO Act that the ESO be revoked. The State of New South Wales opposes the revocation of the ESO, but submits that it would be appropriate to vary a number of the conditions of the ESO.

3. [3]

   Section 13 of the CHRO Act provides:

4. [4]

   In State of New South Wales v Kay [2018] NSWSC 1235, Wilson J said at [66]:

5. [5]

   In State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52, Walton J said:

6. [6]

   Section 13(1B) identifies as a basis for the Court revoking an ESO that the Court is “satisfied that circumstances have changed sufficiently to render the order unnecessary”. Whilst that consideration is addressed to the issue of whether an order should be revoked, it would ordinarily be the case that an applicant would need to point to some change of circumstances to justify a variation of the order, including a variation of the conditions attached to the order.

Background to the making of the ESO

1. [7]

   The index offence was one of sexual intercourse with a child under the age of 10. A brief summary of the facts appears in the judgment of RA Hulme J in State of New South Wales v King [2015] NSWSC 74 at [11] as follows:

2. [8]

   The applicant received a suspended sentence good behaviour bond, but a Crown appeal on the ground of manifest inadequacy resulted in the Court of Criminal Appeal sentencing the applicant to imprisonment for seven years with a non-parole period of four years and six months: R v King [2009] NSWCCA 117. There was evidence that the applicant was affected by alcohol at the time of the offending, and that was regarded by the Court of Criminal Appeal as an aggravating factor.

3. [9]

   Although this was the only sexual offence for which the applicant had been convicted in his lengthy criminal history, there were two other offences of break and enter which involved the applicant being in the bedroom of female children (aged respectively 7 and 11), and in the former case with the applicant getting into bed with the child. In neither case was a sexual offence committed.

The making of the ESO

1. [10]

   After Hulme J had considered the applicant’s index offence and his criminal record generally, his Honour discussed the applicant’s compliance with his parole obligations. His Honour noted that the applicant struggled to comply with his obligations not to consume alcohol and other drugs, to attend appointments and take medication, not to deviate from his schedules, and to abide by the rules of his accommodation.

2. [11]

   The applicant had completed a number of programs both in custody and in the community, but was considered by the psychologist, Mr Samuel Ardasinski, to have participated in the community–based program only superficially, and not to have incorporated what he learned about risk management in the behaviour he subsequently demonstrated in the community, including in his recreational drug use and his unhealthy attitudes towards sex. Mr Ardasinski expressed concern about whether the defendant had the capacity to self-manage his real risk of reoffending in any future release to the community without intensive supervision and ongoing support.

3. [12]

   On the risk of reoffending, the applicant had been examined by the psychiatrists, Dr Jeremy O’Dea and Dr Andrew Ellis. The applicant told Dr Ellis that he was aware of a sexual attraction to younger females, and although he still had those thoughts at the time of the examination, he felt that he was able to ignore them. That led Dr Ellis to diagnose the applicant with a paraphilic disorder (paedophilia).

4. [13]

   Both Dr Ellis and Dr Jeremy O’Dea diagnosed the applicant with a substance use disorder, arising from his long use of alcohol and illicit drugs. The applicant had first used cannabis in primary school, and that quickly escalated to daily use. He was ultimately expelled from high school for cannabis use. He was heavily dependent on alcohol from the age of 18 and would regularly experience “blackouts”. He developed a reliance on prescription drugs, and experimented with illegal drugs including ecstasy, speed, ice and heroin.

5. [14]

   Both psychiatrists thought that the applicant had a high risk of committing serious sex offences.

6. [15]

   Similarly, the Risk Assessment Report (RAR) from Mr Ardasinski dated 23 July 2014 assessed the applicant’s risk of sexual reoffending in a high risk category. Mr Ardasinski identified the following dynamic factors that were potentially relevant to the applicant’s risk of sexual reoffending:

7. [16]

   Justice Hulme accepted the unchallenged reports of the experts, and was satisfied that there was a high degree of probability that the applicant posed an unacceptable risk of committing a serious sex offence if he was not kept under supervision. His Honour accepted the view of the psychiatrists that the ESO should be in place for a period of five years.

Events subsequent to the making of the ESO

1. [17]

   As mentioned earlier, since the ESO was put in place, there have been a number of breaches by the applicant of the conditions of the ESO. In some cases warnings were given, but in a number of other cases the applicant was charged with failure to comply with the requirements of an ESO, an offence against s 12 of the CHRO Act. The breaches for which the applicant was convicted are as follows:

2. [18]

   The result of these periods of incarceration is that, since the making of the ESO, the applicant has spent 1224 days in custody and 1296 days in the community.

3. [19]

   Mr Ardasinski conducted a further assessment of the applicant by telephone on 19 October 2021 and prepared a further RAR dated 22 October 2021. Mr Ardasinski noted that the applicant had undertaken years of intervention. He had participated in a high intensity treatment program aimed at addressing his sexual offending from 2011 to 2012. He had also completed programs of lesser intensity to address his extensive substance abuse history. He reported that the applicant had engaged quite well in the programs. However, there had been some problems.

4. [20]

   The applicant had wanted to go into residential rehabilitation. There had been difficulty finding a place which was prepared to take him in view of his history, but he was ultimately accepted into a culturally appropriate residential treatment program at Oolong House in Nowra. However, after less than a month in the 16-week program, the applicant was seeking to discharge himself. When he was told he would breach of his ESO if he did so, he was subsequently terminated from the program for smoking cigarettes on the premises.

5. [21]

   Mr Ardasinski concluded that it did not appear that the applicant was committed to maintaining abstinence from alcohol or other drugs, and he said that the extent of the applicant’s insight into his offending behaviour was still somewhat limited. In that regard, Mr Ardasinski had noted the various breaches of the ESO which had led to the charges against him that have been detailed.

6. [22]

   Mr Ardasinski said that the applicant had been assessed as presenting an overall high risk of sexual reoffending relative to other male sexual offenders. However, his dynamic risk had reduced over the years that he had been subject to supervision.

7. [23]

   In his initial RAR, Mr Ardasinski had opined that the risk of the applicant’s repeat sexual offending would be most significantly increased in situations in which he was affected by drugs or alcohol, engaging in casual or impersonal sex, and breaking into houses at night. However, Mr Ardasinski noted that despite the applicant’s use of drugs and alcohol whilst on the ESO, he had not reoffended sexually.

8. [24]

   Mr Ardasinski noted that the applicant had been open in his disclosures during sessions at the Forensic Psychology Service that he had previously malingered by faking psychotic symptoms in order to be prescribed an atypical antipsychotic medication, Seroquel, whilst in custody, in order to help him sleep.

9. [25]

   Mr Ardasinski reviewed the dynamic risk factors that he had identified in his earlier report, in the light of developments since that time.

10. [26]

    He said that the applicant had demonstrated that substance use, mainly in the form of an addiction to methylamphetamine, had been an ongoing issue throughout the term of his ESO. However, there had been far fewer breaches for alcohol use than would have been conjectured at the time of his release. He said that while substance abuse remained a risk factor of concern, it was only when the applicant was using substances within the context of his other risk factors that a high risk situation was likely to unfold which might result in sexual impropriety or reoffending.

11. [27]

    In relation to the applicant’s relationships and unhealthy peer associations, Mr Ardasinski noted that the applicant had shown that he gravitated towards antisocial people, and had acknowledged in engaging in a number of casual, sexual relationships over the course of the ESO. That indicated that there was still a level of sexual preoccupation, a high sex drive, and occasional use of sex to cope with feelings of inadequacy, which were all present at the time he offended.

12. [28]

    However, Mr Ardasinski disagreed with the diagnosis of the two court-appointed expert psychiatrists that the applicant fitted the diagnostic criteria for paedophilia. He said that, given the applicant’s sexual activities with consenting peer-aged females over the course of his ESO and lack of any other evidence to the contrary, he did not believe that sexual deviance was a relevant factor in the applicant’s risk profile.

13. [29]

    Mr Ardasinski said that the applicant’s drug use demonstrated his tendency for impulsivity, and that that remained unchanged from his earlier assessment.

14. [30]

    Mr Ardasinski noted that the applicant had no social supports in Sydney, that he had an issue with wanting to work to support himself, and that he had little insight into the self-esteem benefits of working for a living. He said an abundance of idle time had been a risk issue for the applicant.

15. [31]

    In relation to compliance with supervision, Mr Ardasinski said that the applicant tended to comply with the elements of supervision which suited him and he disregarded those aspects of the process with which he did not agree.

16. [32]

    Mr Ardasinski noted two recent assessments of the applicant’s dynamic risks. The first was an assessment using the Level of Service Inventory – Revised (LSI-R) on 2 November 2020. The applicant remained in the High Range of risks/needs. The applicant was also assessed using the STABLE-2007 instrument on 10 September 2021. He remained in the category of High Level of criminogenic needs. However, his score had reduced, and he was one point above the threshold for the Moderate Risk category.

17. [33]

    Mr Ardasinski assessed the applicant using the STATIC-2002R protocol on 18 October 2021. The applicant’s score was 7, which fell within the highest risk category. That score aligns with the risk category of Level IVb Well Above Average risk on the STATIC-99R. Combining the STABLE-2007 and the STATIC-2002R placed the applicant in the highest category risk, being again Level IVb Well Above Average risk.

18. [34]

    Mr Ardasinski identified the following dynamic factors which were relevant to the applicant’s risk of reoffending:

19. [35]

    Significantly, when dealing with “possible deviant sexual interest”. Mr Ardasinski said:

20. [36]

    Mr Ardasinski noted that over the course of the ESO, the applicant had associated with peers who condoned substance use, and with some of whom he had engaged in casual sex. He noted that the applicant obtained and maintained employment and some short-term jobs. He said that the applicant had not demonstrated being intoxicated in a low-density housing area with opportunity to break in late at night, a risk scenario identified by Mr Ardasinski in his earlier RAR. Mr Ardasinski said that he did not believe the applicant was of a mind to commit break and enter offences at his present age. However, if the applicant was to return to his home town and engage in substance use, there would be a question whether he might be tempted to revert to such criminality after all of the years that had passed since he had engaged in that type of offending.

21. [37]

    Mr Ardasinski considered that there might be a rehabilitative benefit to removing some of the more onerous conditions of his ESO which have limited the applicant’s capacity to reintegrate. These would include moving him to stage 3 of electronic monitoring with no schedules, and providing support for him to relocate to the Maclean area, which had been a desire of the applicant over a number of years.

22. [38]

    Mr Ardasinski concluded:

Course of the proceedings

1. [39]

   The present application has had a somewhat chequered history. It was set down for hearing on 17 November 2021 by Bellew J on 27 July 2021. On 17 November 2021 Dr Hughes of counsel for the applicant sought an adjournment. The basis was this. The applicant had for some time been requesting that he be permitted to move to Maclean where his family lived and from where he came. The State was agreeable to the applicant moving to live in the Maclean area, subject to certain conditions. Enquiries were being made as to the suitability of this move, but those enquiries had not concluded. The applicant submitted that if things worked out in that regard, the application would not proceed. The adjournment was not opposed. The application was thereafter fixed for hearing on 26 April 2022.

2. [40]

   In the meantime, arrangements were made for the applicant to have two visits to Maclean where he was able to see his family.

3. [41]

   At the hearing on 26 April 2022, where Mr Wilcox of counsel appeared for the applicant, it was made clear that it had not been possible to find the applicant accommodation in the Maclean area because of the shortage of rental properties, partly due to recent serious flooding in that area. Although this was not said to be the fault of the State, the applicant pursued his application for a revocation of the ESO on the basis that his continued supervision was incapable of achieving the purpose of the orders.

Submissions

1. [42]

   Mr Wilcox submitted that the most significant change of circumstance was that the RAR by Mr Ardasinski in October 2021 no longer agreed with the diagnosis of paedophilia arrived at by Drs Ellis and O’Dea in their reports. Mr Wilcox submitted that, as Mr Ardasinski had noted, although the applicant had consumed illicit drugs on a number of occasions, no sexual offences had been committed. In that regard, Mr Wilcox drew attention to s 9(3)(e2) of the CHRO Act to submit that the fact, that the applicant’s repeated drug infractions meant that he was not complying with the ESO, was a matter to be weighed when considering whether the ESO should remain in place.

2. [43]

   Mr Wilcox submitted that the central issue was the defendant’s desire to return to the Clarence Valley area.

3. [44]

   In earlier written submissions on behalf of the applicant prepared for the hearing in November 2021, there were said to be a number of problems with the way applicant’s ESO had been administered and supervised. It was submitted that the ESO Team had adopted a punitive approach, that it had focused on breaching the applicant for drug use, and focused on increased testing. The submissions were critical of the ESO Team for not focusing attention on actively addressing the factors precipitating the applicant’s substance abuse, nor supporting him to access relevant therapeutic programs. The submissions were also critical about the failure to arrange residential rehabilitation in respect of his drug and alcohol issues. Complaint was made that, when the applicant left Oolong House in November 2020, he was never referred to other support services, nor was his request to move home to the Maclean area considered by the ESO Team.

4. [45]

   The submissions were critical of the ESO Team’s attitude to the management of the applicant’s mental health. The submissions drew attention to what was said by a clinical nurse consultant with Justice Health NSW, Susan Hebblewhite, in a report of 20 August 2020, that the applicant had never had a formal neuropsychological assessment to establish cognitive impairment. Ms Hebblewhite also said it was unclear why the applicant had not been considered for referral to a residential program.

5. [46]

   The submissions were also critical of the fact that the applicant was required to remain at COSP or ISC accommodation, despite his reluctance to do so because of the prevalence of drug use at those locations. The submissions pointed to the beneficial period that the applicant spent in accommodation with his parents in Punchbowl between January and May 2018. That was said to be an indication that the applicant’s family were a protective influence on him.

6. [47]

   The submissions drew attention to what was said to be the lack of culturally appropriate support for the applicant, particularly because he is required to remain in Sydney, away from his family and country in the Maclean area.

7. [48]

   It was submitted that, even accepting that the CHRO Act has the protection of the community as its dominant purpose, the way in which the ESO has been administered, favouring control over support, has been detrimental to the applicant’s re-engagement in the community and, accordingly, to the protection of the community over the longer term.

8. [49]

   The written submissions were critical of the failure to exercise a discretion not to prosecute whenever there was a breach, particularly in relation to the applicant’s drug use. However, Mr Wilcox quite properly accepted that whether or not the applicant was prosecuted for breaches was generally in the discretion of the police and not the ESO team.

9. [50]

   Mr Wilcox said that the applicant was not necessarily criticising those supervising the applicant. It was not clear, therefore, to what extent the earlier written submissions, prepared by other counsel, were no longer put forward as part of the applicant’s case. Mr Wilcox said when asked about this:

10. [51]

    Since all of the applicant’s initial submissions were answered by the State in its submissions, it remained unclear what of the applicant’s earlier submissions were not pressed.

11. [52]

    Mr Wilcox drew attention to what was said by Hamill J in State of New South Wales v Carr [2020] NSWSC 643 at [29] as being relevant to the present applicant:

12. [53]

    For all of those reasons, Mr Wilcox submitted that the circumstances had changed sufficiently from 2015, that the ESO was no longer necessary and that it ought to be revoked. Mr Wilcox submitted, in the alternative, that if the ESO was not to be revoked, the applicant welcomed the variations that the State had suggested.

13. [54]

    The State submitted that circumstances had not changed sufficiently as to render the ESO unnecessary or inappropriate. However, the State accepted that variation of some of the conditions of the ESO was appropriate in the circumstances. In that regard, the State provided a table of variations to the conditions imposed by RA Hulme J when making the ESO.

Consideration

1. [55]

   The principles that guide a decision in respect of applications under s 13 of the CHRO Act were well summarised by Lonergan J in State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 at [13]:

2. [56]

   A preliminary question, not considered in Banks or the other authorities, is the question of onus of proof. The parties accepted that the applicant has the obligation to persuade the Court that circumstances have changed sufficiently to render the order unnecessary: State of New South Wales v Boatswain [2014] NSWSC 1446 at [113]. The more difficult question is, to what standard must that be proved.

3. [57]

   The State submitted in the present case that a combination of s 21 of the CHRO Act and s 140 of the Evidence Act 1995 (NSW) means that the applicant need only establish the sufficient change of circumstances on the balance of probabilities.

4. [58]

   Section 21 of the CHRO Act provides:

5. [59]

   Section 140 of the Evidence Act provides:

6. [60]

   In State of New South Wales v Schmidt (Preliminary) the issue was raised, with the State submitting that the applicant bore that onus to the civil standard (in reliance on s 21 of the CHRO Act and s 140 of the Evidence Act), and that the Court must be satisfied to a “high degree before determining to revoke”. In the result, Walton J did not have to determine the standard of proof because his Honour (at [31]) was not satisfied (presumably on the balance of probabilities) that circumstances had changed sufficiently.

7. [61]

   In State of New South Wales v Mills [2019] NSWSC 298, the defendant had been made subject to an ESO as a high risk violent offender, prior to the enactment of the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) which effectively aligned serious offenders, where previously they were dealt with either as serious violence offenders or serious sex offenders. Subsequently, and after the Amendment Act came into force, the State made application under s 13 of the CHRO Act to have extra conditions added to the ESO, on the basis that the defendant posed an unacceptable risk of committing a serious ex offence. Unsurprisingly, Campbell J said at [8]:

8. [62]

   Sections 5B, 5C and 5D of the CHRO Act can all be considered to be provisions that fall within the “to the extent” clause in s 21. Section 13 is silent on the issue of standard of proof. However, in my opinion, there must be implied into s 13 a requirement that means that any order made under that section does not have the effect of weakening the requirement contained in s 5B or s 5C. It would be entirely unsatisfactory if an applicant could show on the balance of probabilities that an ESO should be revoked because circumstances had changed, where the State would be required to establish to a high degree of probability that an ESO should be imposed (or maintained) in those same changed circumstances.

9. [63]

   If an applicant demonstrated on the balance of probabilities that circumstances had sufficiently changed, the Court’s power under s 13(1) would be enlivened. However, it is a power that may, not must, be exercised. At least, the Court would need to consider at the discretionary stage whether the Court remained satisfied to a high degree of probability that the applicant still posed an unacceptable risk. The interplay of ss 5B and 5D means that the State does not need to establish that matter on the balance of probabilities (“more likely than not”).

10. [64]

    The Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 made reference to the interplay between what was then s 5E(2) and (3), now ss 5B and 5C (on the one hand) and s 5D (on the other). Justice Beazley (with whom Gleeson JA agreed) said:

11. [65]

    Similarly, Basten JA said:

12. [66]

    If at the discretionary stage of the s 13 application the Court considers whether the applicant continues to pose an unacceptable risk, it must be so satisfied to a high degree of probability, even if it does not consider that the risk is more likely than not to eventuate. In that way, from a practical point of view, an applicant seeking to revoke an order under s 13 will have to persuade the Court that, because of the change of circumstances, the Court cannot be satisfied to a high degree of probability that the applicant continues to pose an unacceptable risk. That is the work “sufficiently” has to do.

13. [67]

    On that basis, mere proof on the balance of probabilities that circumstances have changed to render the order unnecessary will not be enough. To show they have changed “sufficiently to render the order unnecessary” assumes the standard of proof in ss 5B and 5C.

14. [68]

    Section 140 of the Evidence Act is not transgressed, because the requirement of proof by the applicant to that extent derives from ss 5B and 5C. In any event, the CHRO Act was not enacted for some 11 years after the Evidence Act. Even without s 21 of the CHRO Act, provisions such as ss 5B and 5C would effectively modify s 140 of the Evidence Act.

15. [69]

    Notwithstanding the foregoing, the position of the standard of proof for s 13 applications would benefit from legislative clarification.

16. [70]

    In his report to the Court in 2015 Dr O’Dea said this in relation to the applicant’s ongoing risk of offending:

17. [71]

    In his report to the Court in 2015, Dr Andrew Ellis said:

18. [72]

    Events since the making of the ESO disclose a number of matters of some significance in terms of the applicant’s risk of further serious sexual offending. First, his substance use disorder is not under control. He has been convicted a large number of times for using methylamphetamine, and there is strong evidence to suggest that in the intervening period the applicant has not always been honest with the DSO and others on the team in relation to his consumption of illicit drugs. Further, although it had been put on the applicant’s behalf in submissions made in 2021, that the support of his family was likely to be of assistance in helping him to remain abstinent from drugs, a drug test on his return from Maclean in early February 2022 disclosed his use of methylamphetamine again.

19. [73]

    In his judgment, RA Hulme J said:

20. [74]

    Dr O’Dea considered that abstinence from illicit substances was a crucial component of any psychiatric risk management program in the long-term.

21. [75]

    This issue is made worse by the fact that when, after many attempts were made to have the applicant admitted to residential rehabilitation and he was finally accepted by Oolong House, the evidence suggests that he deliberately sabotaged his stay there by repeatedly breaking the rules of that institution. He had indicated when he first went to that place that he did not wish to stay there. He was finally discharged from Oolong House after only about seven weeks. He has continued to use methylamphetamine, with the latest known instance in early February 2022 at or immediately after the time he was permitted to travel to the Maclean area to see his family.

22. [76]

    Associated with the drug taking is the fact that the applicant appears to have limited insight into his drug and alcohol issues. In case notes made between November 2021 and April 2022, the applicant said that he had no need of drug and alcohol counselling, that there was no hurry for it, and that he would simply not “use”.

23. [77]

    Secondly, his approach to his sexual behaviour has been problematic. One indication of this was his relationship with a Christine McIntosh in May 2018. The applicant had disclosed to the ESO Team that he was having a sexual relationship with Ms McIntosh, and that she stayed overnight in contravention of the terms of his ESO. This occurred whilst he was living with his parents in a property at Punchbowl.

24. [78]

    Subsequent checks revealed that Ms McIntosh had convictions for drug- related offences and violent offences, had a significant history of using drugs and alcohol, and had a prior relationship with a child sex offender. On that basis, it was concluded that she was not a pro-social associate for the applicant. The DSO advised the applicant that he only had approval to meet her in public places, and that he did not have permission to continue his sexual relationship with her or to have her attend his residence. The applicant was insistent on having a sexual relationship with her.

25. [79]

    The applicant subsequently disclosed that he had engaged in sexual intercourse with Ms McIntosh in public toilets at a shopping centre in Bankstown, a few weeks before the disclosure on 28 March 2018. The applicant was given both an oral and a written direction to cease all contact with Ms McIntosh. On 6 May 2018, after Ms McIntosh disclosed that she was still in contact with the applicant, a search of the applicant’s phone revealed that he continued to have contact with her. Her details were saved in his phone under a different name.

26. [80]

    There was evidence that the applicant had engaged in casual sexual relationships with two other women apart from Ms McIntosh, and in respect of one (in addition to Ms McIntosh), the applicant was given written directions not to associate.

27. [81]

    In May 2018 one of the breach offences for which the applicant was convicted and sentenced was accessing pornography, including a site named “Freeteenagegirlsexclips”. The State drew attention to that matter to respond to the submission on behalf of the applicant that he had not endeavoured to have any contact with children. I accept the State’s submission that there is strong likelihood that the conditions of the ESO, including electronic monitoring and restrictions in accessing certain types of locations, are likely to have been the reason for the applicant’s lack of endeavour in that regard. However, the accessing of the teenage girls porn site is support for the opinion of Dr Ellis that the applicant’s paraphilic disorder, namely paedophilia, is a chronic relapsing condition.

28. [82]

    I have had regard to what Mr Ardasinski has said, particularly with his disagreement that the applicant continues to suffer from paedophilia. However, to the extent that this opinion differs from that of Dr Ellis (and on the assumption that Dr Ellis would at the present time be of the same opinion as in 2015), I do not think that this is a sufficient indication that there has been a sufficient change of circumstances. Mr Ardasinski does not comment on the applicant’s accessing of the teenage girls porn site. In any event, as noted above at [35], Mr Ardasinski, having expressed his disagreement with Dr Ellis and Dr O’Dea, went on to say:

29. [83]

    The risk that was found in relation to the applicant was of committing a further serious sex offence; it was not confined to one involving underage people, although it is accepted that it was such an offence, and two other incidents, that focused attention on that particular type of offending. It is apparent from Mr Ardasinski’s RAR of 22 October 2021 that the applicant still falls within the well above average risk of offending, and that the dynamic factors also identified by Mr Ardasinski, both in 2014 and 2021, relevant to the applicant’s risk of sexual reoffending, remain largely operative.

30. [84]

    Thirdly, there is the lack of stability, particularly in relation to accommodation, in the applicant’s life since the imposition of the ESO. It will be observed that one of the reasons given by Dr Ellis for a five-year order was that the applicant needed a period of 24 months to secure stable, independent accommodation, and maintain a stable mental state and regular meaningful activity both occupational and social in the community. That has not happened. One obvious reason for that is because of the number of times the applicant has been returned to custody for non-compliance with the ESO.

31. [85]

    Fourthly, it appears that the applicant has only been diagnosed with schizophrenia in 2020. That is a significant development since the ESO was put in place. That diagnosis seems to have been affirmed in a recent assessment of the applicant by Dr Sue Morgans on 30 March 2021, despite the applicant’s denials of psychotic symptoms. In any event, the assessment disclosed the applicant’s reluctance to take the medication that was recommended for his mental health conditions. The notes taken by Dr Morgans tend to disclose that the applicant has limited insight into some of the matters identified by Mr Ardasinski as the dynamic factors affecting his criminogenic needs. Dr Morgans noted:

32. [86]

    When Dr Morgans offered the applicant the drugs which she recommended, he refused two of them and demanded on two occasions, “give me fucking Avanzas”. Ultimately, Dr Morgans noted that the applicant had to be escorted from her room because of his intimidating behaviour.

33. [87]

    Section 3(2) of the CHRO Act provides that another object of the Act is to encourage high risk offenders to undertake rehabilitation. A second aspect of the applicant’s submissions was, in effect, that maintaining the ESO, particularly with its present conditions, was inimical to his rehabilitation. That was particularly because he was prosecuted for breaches, with the result that he was returned to custody on a number of occasions, and was thereby prevented from moving to the stability and regularity that was considered important, as Dr Ellis made clear.

34. [88]

    I accept that an offender’s rehabilitation is important, not least for the reason that it will reduce the risk that the CHRO Act is concerned about. However, the primary object of the CHRO Act is to ensure the safety and protection of the community. The Court could only reach the view that circumstances have changed sufficiently to render the order unnecessary if it was no longer satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. In most, but possibly not all, cases, the Act’s object of the rehabilitation of offenders will best be dealt with by a variation of the conditions imposed, where it cannot otherwise be found that the offender no longer poses the risk in the way s 5B(d) provides.

35. [89]

    The applicant, in substance, points to two circumstances that have changed. The first is the opinion of Mr Ardasinski concerning the applicant’s paedophilia, a view that differs from that of Dr Ellis. In my opinion, there is some doubt about this matter. Dr Ellis’s view is that paedophilia is a chronic relapsing condition, and the applicant’s accessing of the teenage girls porn site, an incident not discussed by Mr Ardasinski, is some evidence to support Dr Ellis’s opinion.

36. [90]

    The second circumstance is that, despite the unresolved issues of drug taking and sexual regulation, there has been no evidence of further offending. While that is true, at least part of the reason for that must be that the applicant has been subject to the ESO. However, even if that is put to one side, the evidence has remained consistent since 2014 by all of the experts, Mr Ardasinski included, that whilstever the applicant’s consumption of illicit drugs continues and his lack of sexual regulation is unresolved, the applicant remains at too high a level of risk of committing a further serious sex offence.

37. [91]

    For these reasons, I cannot be satisfied that circumstances have changed sufficiently to render the order itself unnecessary. That is because I am still satisfied to a high degree of probability that the applicant poses an unacceptable risk of committing another serious sex offence if not kept under supervision under the order. This is not one of the rare cases where I can accept that the rehabilitation that will be achieved for the applicant in the short term by revoking the order, will mean that he will not pose the unacceptable risk by doing so.

38. [92]

    A number of the matters raised in the written submissions filed on behalf of the applicant tended simply to be criticisms of the way that the ESO was being administered by the ESO Team. The written submissions also failed to take account of the fact that it is the police and not the ESO Team that generally makes decisions about whether prosecution should occur for breach of conditions. As I noted earlier, it was not clear if Mr Wilcox was adopting all that had been said in those written submissions prepared by other counsel, because the focus of Mr Wilcox’s submissions was otherwise, as I have set out.

39. [93]

    Generally speaking, an application under s 13 should not be regarded as the opportunity to criticise the administration of the ESO, because that is not a matter with which the Court is concerned, unless it can provide a justification for varying the conditions. A number of the complaints in those submissions could not be seen as providing support for the variation of conditions. The State’s submissions provide detailed and lengthy responses to those criticisms, but it is not necessary to deal with those matters further. It should not be taken, by my recording of those submissions on behalf of the applicant, that I accept their basis.

Conditions

1. [94]

   The State accepts that by reason of the length of time the applicant has been subjected to the ESO, albeit close to half of that time has been spent by him in custody, it is appropriate to vary some of the conditions attached to the ESO. This also has regard to what Mr Ardasinski has said about the applicant likely receiving some benefit if he was permitted to live with his family in the Maclean area.

2. [95]

   The State did not file a notice of motion seeking to vary the conditions. Nor did the applicant’s notice of motion giving rise to this judgment seek other than a revocation of the ESO. Nevertheless, I have regarded the submissions made by the State as an oral application to vary the conditions.

3. [96]

   Section 13 of the CHRO Act does not require that there be a change of circumstances before an order can be varied, for example, by the changing of conditions. I referred earlier at [4] to the fact that Wilson J said in Kay that the discretion is unfettered, subject to the objects and provisions of the Act. However, as noted earlier, it would be a rare case that conditions would be changed without some change of circumstance.

4. [97]

   As I also noted earlier, there have been some changes in circumstances since the ESO was put in place. Although those circumstances were not such as to justify the revocation of the ESO, I am satisfied that those changes, taken together with the time the applicant has been subject to the ESO, make it appropriate to vary the conditions in the way the State has put forward. Those proposed variations are accepted by the applicant.

5. [98]

   The conditions as varied are annexed to this judgment. The varied conditions are highlighted and underlined.

Conclusion

1. [99]

   Accordingly, I make the following orders: