State of New South Wales v Jubb (Final)

1. [1]

   By Summons filed 8 April 2024 the plaintiff, the State of New South Wales, seeks that an extended supervision order (“ESO”) pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) be imposed upon the defendant, Gavin Jubb, for a period of two years from the date of the order.

Background

1. [2]

   The defendant is a 43 year-old man who, at the time of the hearing, was under supervision in the community pursuant to an interim supervision order (“ISO”) imposed under the Act by Wilson J, which commenced on 28 June 2024 (“the interim order”): State of New South Wales v Jubb (Preliminary) [2024] NSWSC 780. It was subsequently renewed, but was not able to be renewed past 27 September 2024.

2. [3]

   When Wilson J imposed the interim order, orders were also made for the appointment of experts to provide the Court with reports, and for the defendant’s attendance upon those experts. The experts retained by the plaintiff were Dr Carollyne Youssef, and Chelsea Dewson, both forensic psychologists. They were not required for cross-examination and did not give evidence at the hearing. They are both of the view that an ESO is required.

3. [4]

   Written submissions filed for the defendant and oral submissions at the hearing opposed the making of the order, and the duration of two years, if made. It was submitted that 18 months was sufficient in this case. There was a difference in the views of the parties as to whether some of the conditions ought be imposed.

4. [5]

   On 24 September 2024 I made an ESO, for a duration of 18 months from that date. The conditions attaching to the order are set out in a schedule to this judgment and included only those with which the defendant did not take issue. These are my reasons for making those orders.

The evidence

1. [6]

   A substantial volume of material was tendered by the plaintiff. This material included the reports of Dr Youssef and Ms Dewson, multiple other expert reports and risk assessments, material relating to the offences committed by the defendant over his lifetime, related court decisions, including with respect to sentencing and ESOs, the defendant’s custodial history, and case notes.

2. [7]

   The defendant tendered a further supplementary body of documentary material.

Background

1. [8]

   In summarising the background, I am considerably assisted by the parties’ joint statement of agreed facts which summarised the evidence and judgments before me.

2. [9]

   On 7 February 2013 the defendant was convicted in respect of 14 sexual offences against three children, namely aggravated indecent assault, with the victim under the authority of offender (s 61M(1) of the Crimes Act 1900 (NSW)), inciting a person under 16 years to commit an act of indecency, contrary to s 61N(1) of the Crimes Act, aggravated indecency, with the victim under 16 and under authority of the offender (s 61O(1)) and grooming child for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act.

3. [10]

   The offences occurred in 2010 when the defendant was 29 and the children were aged either 12 or 13. Each of the three victims had an intellectual disability, although the defendant gave sworn evidence in the Local Court that he did not know this to be the case. Despite an adjournment of proceedings (in part to allow the prosecution to check aspects of the defendant’s evidence) no contradictory evidence or submissions were placed before the Court. At the time of the offending, the victims’ parents had left the victims in the defendant’s care.

4. [11]

   The offending conduct comprised:

   1. (1)

      Purchasing a pornographic DVD and playing it in the company of the children with “the intention of making it easier for him to procure them for unlawful sexual activity with himself”;

   2. (2)

      Touching the penises of two of the children;

   3. (3)

      “Daring” one of the children to touch his penis, which they did;

   4. (4)

      Inciting two of the children to touch one another’s penises.

5. [12]

   The sentence of imprisonment imposed in the Griffith Local Court was in February 2013 reduced on appeal to the District Court to a period of two years and 10 months with a non-parole period of one year and 9 months. The sentences were to date from 20 December 2012, with release to parole occurring on 19 September 2014. Parole was completed without breach on 19 October 2015.

6. [13]

   In May 2017 the defendant read and signed a copy of a document containing his child reporting obligations under the Child Protection Register (“CPR”).

7. [14]

   On 5 June 2018 the defendant was made subject to a Child Protection Prohibition Order (“CPPO”). The order was explained to him. It prohibited him from, inter alia, actively seeking or remaining in the company of any person aged under 18 years, residing with such persons or communicating or encouraging communication with such persons, as well as from undertaking work that brought him into contact with such persons.

8. [15]

   The defendant has since committed three offences of breaching the requirements of his registration under the CPR and the CPPO.

9. [16]

   The first was a failure to comply with reporting conditions on 7 March 2018. The defendant was subject to a police visit where he disclosed that he had a Snapchat account which he had not previously revealed to police and that he had had a 17 year old male living in his household for the previous three months. He subsequently disclosed that another five children from the same family as the 17 year old were visiting his house frequently, aged from 6 upwards. The defendant was sentenced to a term of eight months imprisonment, suspended on entering a s 12 bond (called up for breach by the subsequent June 2018 offending).

10. [17]

    The second and third breaches were failures to comply with reporting conditions on 12 June 2018, shortly after the above suspended sentence was imposed. When police visited the defendant at his workplace on that date they found a 17 year-old male at the chicken farm where he was working as a manager. The defendant admitted that the male had been working there for six months and that there was another male aged under 18 working that day at the farm as well, who had been working there for about twelve months. The defendant was sentenced to concurrent periods of twelve months imprisonment, with non-parole periods of nine months, for failure to report these contacts. He was also called up for breach of the s 12 bond and sentenced to a concurrent period of eight months imprisonment, with non-parole period of six months.

11. [18]

    On 4 February 2019 the plaintiff filed a summons seeking a continuing detention order (“CDO”) under the Act for a period of 12 months or in the alternative an ESO over the defendant for a period of 3 years under the Act (“the previous application”).

12. [19]

    The previous application proceeded to preliminary hearing before Ierace J on 6 March 2019. His Honour was satisfied that the defendant should be subject to an ISO, which began on 11 March 2019.

13. [20]

    The defendant completed the 20-session EQUIPS-Foundation program in 2019 whilst in the community.

14. [21]

    On 2 April 2019 the defendant was charged with a further (historical) contravention of his CPPO. The date range of the contravention was between 13 August 2018 and 2 February 2019, while the defendant was in custody serving his sentence for the June 2018 failures to comply with reporting conditions. This charge arose from the inspection, on 27 March 2019, of the defendant’s phone including his contact list. The defendant had the number of a 15-year-old male on his phone and had made numerous phone calls to this male whilst in custody. The facts of this matter (as well as the other offences) and the defendant’s response are in evidence before me. The defendant had close associations with other adult members of the 15 year-old’s family. He was taken back into custody on 3 April 2019.

15. [22]

    The defendant was convicted of contravening his prohibition order and failure to comply with reporting obligations under the CPPO. The defendant was sentenced in April 2019 to eighteen months imprisonment, with a non-parole period of thirteen months.

16. [23]

    Prior to the final hearing of the previous application, an amended summons was filed in which the plaintiff no longer pressed the imposition of a CDO. The matter proceeded to final hearing and on 14 June 2019 R A Hulme J placed the defendant on an ESO for a period of three years, notwithstanding that the defendant was in custody serving a sentence for the CPPO breach referred to in [21], above (imposed on 10 April 2019). The operation of the ESO was suspended while the defendant remained in custody.

17. [24]

    Whilst in custody on this occasion the defendant was found suitable for the High Intensity Sex Offender Program, but ran out of time in custody to participate in this group program. As an alternative, the defendant was offered a place in the shorter Moderate-Intensity Sex Offender Program. The defendant accepted this placement, then withdrew his consent to participate because there was insufficient time for him to complete the course before being released to parole. He was released to parole on 1 May 2020.

18. [25]

    On 13 July 2022 the defendant was convicted of six counts of failing to comply with his ESO. His sentence, as reduced on appeal to the District Court, was imprisonment for 2 years with a non-parole period of 14 months. The offences involved having contact with a person he knew to be under 18 on three occasions and associating with parents of three children aged under 18 (including two males aged 15 and 14). The defendant had also changed the contact details of the mother of the children on his phone to ‘Dylan Work’, to disguise her identity. The defendant was found to have the ‘Grindr’ application on his phone on arrest and had not disclosed two email addresses.

19. [26]

    The ESO imposed by R A Hulme J on 14 June 2019 was suspended while the defendant was in custody. As a result, this ESO expired on 28 June 2024.

20. [27]

    The defendant is currently residing in the community in private rental accommodation in a suburb of Sydney. He is currently employed fulltime as a forklift driver. He has always had a good level of commitment to work. He has for some time now identified as homosexual. He has had some longer term relationships, although not necessarily living full time with such partners, but is not currently in one. He has sexual contact with consenting adult males and has a network of friends. He has family support, albeit in Victoria. He has taken active steps to make a fulfilling social life for himself.

21. [28]

    At the time the plaintiff’s application was filed the defendant was subject to both the ESO imposed by R A Hulme J and parole. Parole has been completed without event.

22. [29]

    The defendant is engaged with the Forensic Psychology Services (“FPS”) for ongoing private appointments. The evidence of his involvement with and commitment to treatment is very impressive.

Statutory framework

1. [30]

   The State’s application for an ESO is brought pursuant to ss 5B and 9(1)(a) of the CHRO Act. Those sections are reproduced as follows:

2. [31]

   The power to make an ESO pursuant to s 5B is discretionary. In that regard, the Court is guided by the objects of the Act, and the paramount consideration and matters set out in s 9 to which the Court must have regard in determining whether or not to make an ESO.

3. [32]

   Relevant provisions of the Act include the following:

Whether an ESO should be made

1. [33]

   It was conceded by the defendant the statutory preconditions in s 5B(a)-(c) of the Act are met, and I am satisfied that they are.

2. [34]

   The question for determination on the issue of whether an ESO should be made is whether the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a further serious offence if he is not supervised under an ESO. If so, there remains a discretion as to the making of the order.

3. [35]

   Relevant to the question of unacceptable risk is s 5D of the Act which provides that, for the purposes of s 5B(d), the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence.

4. [36]

   As noted earlier, the State relied upon evidence provided by two expert witnesses appointed pursuant to Wilson J’s interim order. I will refer to the salient parts of their evidence, before turning to aspects of the older expert statements and risk assessments contained in the evidence.

5. [37]

   Dr Youssef interviewed the defendant in person on 24 July 2024. He was actively engaged in the assessment process and made a concerted effort to answer most questions. He seemed attentive and responsive although he was somewhat guarded and evasive, especially when discussing topics related to his offences and sexual interests. He displayed some eye contact, however looked away when discussing topics that were clearly uncomfortable for him.

6. [38]

   The defendant reported having had one serious relationship when he was 34 with a man whom he met through Grindr. The man was in his early thirties. They were in a relationship for three years and while they did not cohabitate, the defendant spent up to four nights a week at his house. The defendant is currently single, reporting he has no interest in pursuing a relationship should he receive another ESO as he does not want to “subject someone” to the order. The defendant admitted that he had always felt like an outlier until embracing his sexuality.

7. [39]

   In setting out the defendant’s history, Dr Youssef stated:

8. [40]

   Dr Youssef noted that the defendant now accepts and identifies as a homosexual man and appears to be at ease with such.

9. [41]

   Dr Youssef was of the opinion the defendant should be encouraged to devise prosocial and meaningful life goals that encourage prosocial behaviour. She acknowledged that he does not appear to be placing himself in high-risk situations since his release from custody and appears to have been compliant with supervision.

10. [42]

    Dr Youssef considered that the defendant met the diagnostic criteria for Paedophilic Disorder (non-exclusive type, sexually attracted to males) and Other Specified Paraphillic Disorder, specifically Hebephilia (non-exclusive type, sexually attracted to males). She did not state what these diagnostic criteria are. She stated that these are lifelong conditions, although they can include other elements that may change over time with or without intervention, such as subjective distress, psychosocial impairment and/or the propensity to act out sexually with children. Therefore, the course of a paedophilic disorder may fluctuate, or the intensity can increase or decrease with age.

11. [43]

    Paedophilia and hebephilia are particularly important motivators for sexual offending. Dr Youssef considered that the defendant’s sexual interest in adolescent males is one of his most significant risk factors. Dr Youssef noted that the defendant has outstanding dynamic risk areas.

12. [44]

    Dr Youseff confirmed that the defendant engages with a departmental psychologist and has been described as having a good rapport with her. It is noted the defendant remains ‘untreated’. Although he is engaging in individual ‘risk management’ sessions, the intensity of these sessions and the therapeutic progress made remains suboptimal. Dr Youseff expressed the view that the defendant’s ongoing denial of any sexual interest in underage males likely inhibits some of the therapeutic changes that can occur.

13. [45]

    Dr Youssef assessed the defendant’s risk of further sexual offending using the STATIC-99R, which produced a score of 4, placing him in the Above Average risk category. She also assessed the defendant’s dynamic risk factors using the STABLE-2007. The defendant’s score was 13, reflecting a high level of stable dynamic needs. When these scores are combined, the defendant’s composite score places him in the Well Above Average risk category.

14. [46]

    Dr Youssef also assessed the defendant using the Risk for Sexual Violence Protocol – Version 2 (“RSVP-V2”). He presented with risk factors in each of the domains covered by the RSVP-V2 with those factors being more enduring and relevant to his offending behaviour and requiring specialised intervention. This suggests that the composite score placing him in the Well Above Average risk category is an accurate reflection of his risk. Particularly salient risk factors for the defendant included general self-regulation difficulties, intimacy deficits, sexual self-regulation deficits and limited insight.

15. [47]

    Dr Youssef also administered the Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version (“SAPROF-SO”). Dr Youssef identified the following protective factors: intact cognitive functioning, partially present sexual self-regulation, compliance with supervision, employment (although he has offended while being employed and this may not necessarily be a protective factor), stable housing and finances, engagement with a departmental psychologist and external control under the ISO.

16. [48]

    Dr Youssef’s identification of risk scenarios must be considered with circumspection, given her erroneous understanding of the 2010 offending. She considered a police facts sheet from when he was first charged, which included an allegation of sexual intercourse (fellatio). The defendant pleaded guilty after oral evidence from the complainants, and the factual basis of his guilt was limited to touching, as referred to above. Dr Youssef stated that if the defendant were to re-offend, he will likely offend against a pubescent male between the ages of 12-16 years who is known to him, having created opportunities to spend time with him and likely to “gamify” his offending. She thought the offending could range from fondling through to fellatio. This hypothesised risk scenario must clearly be influenced by her erroneous understanding that fellatio was involved in 2010.

17. [49]

    Dr Youssef does not believe that the defendant’s risk can be adequately managed without another extended period of supervision in the community. She recommends an ESO of between 18 and up to 24 months to enable the defendant to engage in a targeted intervention plan to address his outstanding dynamic risk factors.

18. [50]

    Ms Dewson interviewed the defendant virtually for approximately 2 hours on 22 July 2024. She noted that the defendant was easily engaged, friendly and appropriate in his interactions. He was forthcoming with information including making admissions about his offending behaviour, although somewhat more guarded when discussing these matters. She did not consider this unusual in his circumstances.

19. [51]

    Ms Dewson referred to the geographical isolation in the defendant’s early career, at and around the time of the sexual offending, and the difficulty for him to form meaningful relationships. In this context, he formed the belief that his homosexuality would not be tolerated, and therefore likely sought out sexual encounters with juveniles, who were perceivably less objectional than adult males.

20. [52]

    Ms Dewson was of the view that the defendant had made positive progress since his sexual offending in 2010, as evidenced in case notes relating to his participation in treatment through FPS. She reported that the defendant primarily intends to meet potential partners through the Grindr application and the sauna, which he has been attending on roughly a monthly basis.

21. [53]

    The defendant reported having engaged in education through ACON where he completed a course titled “Finding Mr Right”. In this 4-session course, he reportedly learned about consensual sex, dealing with rejection and finding an appropriate homosexual partner.

22. [54]

    Ms Dewson discussed the proposed ESO and associated conditions with the defendant. He expressed concern that the order was “not helping me anymore” but rather hindering his capacity for romantic relationships and stopping him from seeing his elderly family in Victoria. Ms Dewson noted that in this regard, the defendant highlighted the importance of having a strong social and support network, from which he perceives that an additional ESO would “hold me back”. He also noted the challenges for meaningful romantic connection with restrictions such as the inability to attend movie cinemas and the like.

23. [55]

    To Ms Dewson the defendant explained his view as to what has changed since his last release, as the positive development of living in a city rather than having an isolated job in an isolated town where homosexuality was not recognised. He expressed a preference for living in the city now, to make friends and a community.

24. [56]

    Ms Dewson considered that the defendant likely meets the diagnostic criteria for paedophilia – non exclusive type (primarily attracted to males), but no other psychopathology was noted at the time of assessment. Historical depression appeared to be in remission with no symptoms present at the time of assessment.

25. [57]

    The defendant was assessed as posing a medium risk of general re-offending using the Level of Services/Case Management Inventory (“LS/CMI”).

26. [58]

    Ms Dewson assessed the defendant’s risk of further sexual offending using the STATIC-99R, which produced a score of 3, placing him in the Average risk category. She also administered the STATIC-2000R which produced a score of 4, placing him in the Average risk category.

27. [59]

    The defendant’s loading of dynamic risk factors was assessed using the RSVP which placed him in the above average risk range for sexual reoffending.

28. [60]

    Ms Dewson concluded that the defendant’s overall risk falls within the above average range. The defendant’s primary risk factors include social isolation, sexual interest in underage children, sexual preoccupation, cognitive distortions that allow him to justify seemingly unimportant decisions which lead to high risk situations, intimacy deficits, low self-esteem and poor problem-solving.

29. [61]

    Ms Dewson identified a risk scenario of seeking out the company of a male child who is vulnerable in some way or over whom he has some authority, with grooming behaviour progressing to sexualised behaviour and sexual contact. Ms Dewson opined that the defendant could be at risk of re-offending. She expressed concern that the defendant has blatantly defied his supervisory orders and has tended to downplay the significance of these actions. Although he has not been convicted of any sexual re-offence, offence paralleling behaviour was evident in his breach offences. Ms Dewson noted that the defendant presented well in treatment, was ostensibly making positive gains, was progressing well in terms of case management and reported no notable issues, whilst surreptitiously having contact with a young person and their family.

30. [62]

    Ms Dewson considered that the defendant would be best managed under a further ESO. She considered the proposed period of 2 years appears to be appropriate.

Older reports and risk assessments

1. [63]

   There are many other reports and risk assessments contained in the evidence before the Court, and discussed in earlier sentencing judgments and judgments of the Court in imposing ISOs or the ESO. I will refer to those the parties have referred to in their joint statement of agreed facts, and additionally reports available closer in time to the 2010 offending which I regard as important.

2. [64]

   A number of reports were before the Local Court, then District Court on appeal, in connection with the 2010 offending. Not all of these reports are in evidence before me although most of them are.

3. [65]

   The report of Wendy Dignan, psychologist, is not in evidence. According to the sentencing remarks of the Magistrate, Ms Dignand had opined that the defendant was at a low risk of reoffending.

4. [66]

   A Corrective Services report dated 26 November 2012 recorded a Static 99 score of “4” because the defendant was unrelated to the three victims, the victims were males, the defendant was then less than 35, and had not yet demonstrated an ability to reside continuously with a lover for 2 years or more. This was a moderate to high risk. Regarding dynamic risk the author placed significant reliance on the victims having an intellectual disability.

5. [67]

   Two reports of psychologist Mr Powell included a static risk score of 4, for the same reasons. However Mr Powell conducted an additional three assessments, and other tests. He found the defendant to be anxious but very open and wiling to engage. The defendant acknowledged his behaviour and expressed a desire to be accountable. He was unable to give any explanation for why he behaved as he did, except to say that he did what he wanted to do despite his normally pro-active positive social attitudes. They discussed the defendant’s traumatic experiences, and confusion about his sexuality as a major stress factor.

6. [68]

   Mr Powell was of the opinion that the defendant had been able to develop some attachments, some close friends, significant resiliency and an ability to adjust to a healthy lifestyle. He thought there was a good prognosis. He expressed the view that treatment for the trauma would provide insight into behaviour and the possibilities of a healthy therapeutic outcome.

7. [69]

   Mr Powell described the defendant as not by nature sadistic, or driven to cause harm to others. He was motivated to look at his life and make change. Mr Powell commended the defendant’s desire to live a better life, noting this to be a critical factor in positive treatment outcomes.

8. [70]

   Assessment of risk on the “SONAR test was low. Mr Powell agrees with the opinion of Wendy Dignan but was also persuaded of the risks set out in the Corrective Services report referred to above. He thought the defendant would need to explore aspects of his psycho-social sexual development relating to attachment.

9. [71]

   Dr Adam Martin (psychiatrist) and Jenny Howell (forensic psychologist) were appointed to prepare expert reports for the previous application.

10. [72]

    Dr Adam Martin prepared a report dated 5 May 2019. Although the defendant maintained that he had no ongoing attraction to children or adolescents, Dr Martin concluded that given the sexual offending and an admission to attraction to children in the past, a diagnosis of paedophilic disorder was “probable”. Dr Martin referred to the description of such disorder in DSM-5 as requiring, amongst other things “over a period of at least six months, recurrent, intense sexually arousing fantasies, sexual urges or behaviours involving sexual activity with a pre-pubescent child or children [generally aged thirteen years or younger.”

11. [73]

    Dr Martin considered the defendant’s ‘narrative’ for the offending (discomfort with his homosexuality) and thought that it was plausible that an element of the offending involved the defendant feeling sexually inadequate, exploiting children in that context. Alternatively, the defendant’s narrative could be a cognitive distortion or minimisation of an underlying paedophilic tendency. He stated that it would be unusual for a person with a paedophilic tendency to lose this vulnerability, which is considered to be usually an enduring trait, although not one preventing management and formation of age-appropriate relationships.

12. [74]

    Dr Martin referred to the defendant as future oriented, desiring a stable relationship. He referred to the existence of past age-appropriate relationships, and the defendant having some good friends.

13. [75]

    As to risk of reoffending sexually, Dr Martin concluded that it was difficult to know the exact risk, but it was reasonable to say that it was “significant”.

14. [76]

    Using the Risk of Sexual Violence Protocol (“RSVP”), Dr Martin identified limitations to the sexual offending, although noted grooming was included. He thought the defendant may have some problems with self-awareness in his denial of an ongoing paedophilic attraction. Ultimately, Dr Martin concurred with the author of the 2018 risk assessment report (namely that the defendant would be assessed as falling within the Above Average risk category compared with other male sex offenders for static factors and in the Moderate High to High risk category for dynamic changeable factors). Dr Martin referred to risk arising from the defendant not having been sufficiently treated.

15. [77]

    The expert report of Jenny Howell dated 14 May 2019 included scoring the defendant on the Static-99R sexual recidivism static risk assessment as at Average risk range. On the Stable-2007 assessment of stable dynamic risk factors associated with sexual recidivism, the defendant scored in the Medium risk range. Clinical assessment together with his dynamic risk factors suggested that his overall risk could be higher than an average risk to sexually reoffend. She noted the defendant’s risk could abate or escalate in the event he is unable to obtain employment and meaningful connections in the community.

16. [78]

    Ms Howell considered that the defendant met the diagnostic criteria for paedophilia. Ms Howell considered that his risk of recidivism could be managed in the community under an ESO and that a period of three years was sufficient time for him to address his risk through participation in community-based sex offender treatment and developing new self-protective and prosocial strategies to manage risk.

17. [79]

    On 29 January 2024, Sam Ardasinski (Senior Psychologist, Risk Management Programs, CSNSW) prepared a risk assessment report, pursuant to s 9(3)(c) of the Act. He confirmed the insufficiency of the period of previous incarceration for relevant treatment.

18. [80]

    Mr Ardasinski described the 2022 ESO breaches as being “of notable concern” and suggested that there was also some degree of subterfuge in contacting the family in question.

19. [81]

    Combining the STABLE-2007 scores with the STATIC scores meant that the defendant fell in the above average risk/needs category relevant to sexual reoffending.

20. [82]

    Mr Ardasinski assessed risk using the RSVP and considered that the defendant fell into the moderate/elevated risk category, with the most critical factors being sexual deviance, problems with intimate and non-intimate relationships and problems with self-awareness. His most recent Level of Service Inventory-Revised (LSI-R) score fell in the Low-to-Medium range of risk/needs, being consistent for some years.

21. [83]

    Mr Ardasinski stated that the defendant continued to minimise or deny his sexual deviance, citing literature suggesting that paedophilia is a lifelong condition. He confirmed the defendant’s denial of any ongoing sexual attraction to children but acknowledgement of prior sexual fantasies about the children he offended against in 2010.

22. [84]

    In interview with Mr Ardasinski, the defendant maintained his index offences were a response to ‘misdirected sexuality’, previously suggesting that he took his, “sexuality in the wrong direction”. He stated “I didn’t know how to approach my sexual needs – the opportunity was there, and I took that avenue.” Given the lack of any other sexual offending before or since the offences in 2010, Mr Ardasinski queried whether the defendant could be considered an opportunistic offender rather than a ‘committed offender’.

23. [85]

    Mr Ardasinski stated that, in his opinion, the defendant’s accounts of his offences, and of his subsequent breaches of the CPR, CPPO and his ESO, appear plausible and that the defendant has made considerable progress to moderate his risk of reoffence by embarking on a new lifestyle which allows for his sexual needs to be met. Limiting opportunities for the defendant to return to anti-social patterns and his having ample consensual sexual outlets within the confines of the Sydney gay community, his risk is significantly diminished.

24. [86]

    Mr Ardasinski considered that the most likely future risk scenario would be similar to the 2010 offending and that the defendant may seek to gain access to particularly vulnerable children, stating that “it remains quite realistic that such a scenario for sexual violence could eventuate given the right preconditions”. He added that, given his current lifestyle is “so far removed from those preconditions”, it is unlikely that a new serious sexual offence would eventuate “if [the defendant] continues to lead a stable, fulfilling lifestyle such as he currently has (notwithstanding the limitations imposed by the ESO itself)”.

25. [87]

    Mr Ardasinski concluded that the goal of any ongoing case management is to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when the defendant is not under any form of legal restraint.

26. [88]

    Additional information from Corrective Services does not add to the relevant matters considered above.

27. [89]

    The defendant’s documentary material included extensive treatment notes. It is common ground that the defendant has engaged well with treatment.

28. [90]

    I have referred, in describing the background to this application, and the relevant expert evidence, to other factors in the non-exhaustive list of considerations set out in s 9(3) of the Act. Otherwise, I do not regard the remarks of the sentencing magistrate, or judge on appeal to the District Court, in sentencing for the 2010 offences, as important given the age of those proceedings.

29. [91]

    I have considered the case notes made during the ESO, and the summary of salient aspects of these in the parties’ joint statement of agreed facts. They have been considered by the experts and my independent assessment of them does not add much to this.

30. [92]

    I have considered closely the defendant’s sworn evidence in the Local Court in 2012. Acknowledging the limitations in relying on the transcript, it impressed me as frank, insightful, and encouraging regarding his prospects of not repeating offending of the kind that occurred in 2010. I do not regard this evidence as clearly establishing the requisite consideration for a diagnosis of paedophilia as referred to in Dr Martin’s report, noted above at [72].

31. [93]

    The Court received written submissions for the plaintiff dated 21 August 2024, and written submissions in reply dated 6 September 2024. The defendant filed written submissions dated 5 September 2024, not written by counsel appearing at the hearing. Further oral submissions were advanced at the hearing.

32. [94]

    It is accepted by the plaintiff that the defendant has made significant progress in his treatment. It was said in the plaintiff’s primary written submissions that:

33. [95]

    The plaintiff submitted nonetheless that the defendant’s ongoing sexual attraction to males under the age of 18 is of significance to the risk of future offending. It was submitted that the court should accept he meets the diagnostic criteria for paedophilia.

34. [96]

    It was submitted for the plaintiff that the most significant risk factor was the evidence regarding this paraphilia, and much would turn on my assessment of it. It was submitted that in the absence of cross-examination of the experts I should be cautious in undermining their opinions by reference to the underlying material.

35. [97]

    It was submitted that although the two court appointed experts were not identical in the way they framed their diagnoses as to paedophilia, they reached very similar conclusions regarding risk. Reliance was placed by the plaintiff on the breaches of orders. It was submitted that:

36. [98]

    It was submitted that the defendant has outstanding treatment needs and risk factors, and that there are concerns regarding his willingness to identify, or manage, situations of risk. It was submitted there was accordingly an additional risk past the diagnosis. It was submitted in writing that:

37. [99]

    Counsel for the plaintiff acknowledged that there should be an end point where the defendant has shown by his conduct that there does not need to be another order; that there will not be endless orders simply because the defendant has not admitted sexual attraction to children (and so is ‘untreated’ in that specific respect). Counsel’s ultimate submission was, however, that that point has not yet been reached. It was acknowledged that based on the defendant’s progress to date, it may be hoped that such point is reached at the conclusion of another ESO.

38. [100]

    It was submitted for the defendant that the [contact sexual] offending was of some antiquity, he has made considerable progress on his path to rehabilitation, and that he has avoided placing himself in high risk situations since his last release from custody.

39. [101]

    Reference was made to Dr Youssef’s opinion regarding the potential fluctuation of the course of paedophilia, and Ms Dewson’s less categorical diagnosis of this as a ‘likely’ one.

40. [102]

    The Court is not to take into account the defendant’s intention to move to Victoria as a reason for not imposing an ESO: s 9(4). However the submission was made in this matter, and I accept, that the Court may recognise the defendant’s pro-social intentions and family connections as part of his positive outlook for the future.

41. [103]

    Given the unchallenged expert evidence, and the nature of the last breach and its relative recency, I was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. Taking into account the matters I have referred to, giving the safety of the community paramount consideration, I was not of the view that there is a discretionary reason to not make an ESO.

42. [104]

    However, this is a case where such a state of satisfaction was not easily come to. In light of the defendant’s sworn testimony in the Local Court, the course of events since such time, and the existence of some expert evidence supporting as plausible the defendant’s view that he was beset by problems with his own homosexuality and past abuse at the time he offended, rather than having an entrenched attraction to children, I am not of the view that the diagnosis is clear. Furthermore, whether such a diagnosis is clear or not, the reality is that he has not offended in such a way since 2010 and has by all accounts come now to live a positive life since he has become more comfortable with his sexuality.

43. [105]

    The defendant has been actively engaging in treatment, although not treatment specific for a person who admits he is currently sexually attracted to children. He could not have done more than he has done with the treatment made available to him.

44. [106]

    The plaintiff’s submission that the defendant’s ongoing attraction to males under 18 exposes the risk of reoffending somewhat begs the question. I am not satisfied on the evidence before me that the defendant has a current attraction to males under the age of 18, let alone prepubescent children. On the other hand, the nature of the most recent breaches supports the plaintiff’s supplementary submission, as does the expert evidence. There has been a reasonably limited period of time for the defendant in the community since his last release from custody, without significant monitoring electronically and by schedules, to reach confident conclusions at odds with the unchallenged expert opinion.

Duration of the ESO

1. [107]

   The State seeks an extended supervision order for a period of two years, and the defendant opposes this duration, submitting that 18 months is sufficient.

2. [108]

   I was of the view that 18 months is sufficient, bearing in mind what I have said above in determining whether an order should be made at all. I note that Dr Youssef expressed the view that an order of 18 months to 24 months was sufficient. Ms Howell expressed the view in 2019 that an order for 3 years from that time was sufficient, although I note the subsequent breach.

3. [109]

   I am additionally of the view that the lesser period should provide positive feedback to the defendant in recognition of his progress. Encouraging some confidence that continuation for a period of 18 months of his prosocial lifestyle may bring an end to supervision is consistent with the rehabilitative purposes of the Act, and consistent with ongoing protection of the community.

Conditions of the ESO

1. [110]

   The conditions which were opposed by the defendant (and pressed by the plaintiff) are as follows:

2. [111]

   Counsel for the defendant relied on the fact that there is provision in the Act to seek orders from the Court varying conditions during the term of an ESO. It was submitted for the plaintiff that there is inevitably a time lag in doing so, and if the defendant is not detained because of the alleged breach, a risk to the community in the period before the condition is altered.

3. [112]

   As I said earlier, this is a case where there is a realistic prospect that this should be the defendant’s last ESO. It would be useful to have a meaningful liberation of what the defendant is allowed to do during the time of the order. Lack of problem for the duration of the order, with greater freedom, may enhance the prospect of no further application being made. Alternatively, the defendant’s compliance or otherwise in those somewhat less restrictive circumstances will provide any court that comes to hear a future application with useful information.

4. [113]

   I was not of the view that the contentious conditions are required to protect the public. There is a prospect of interfering with the defendant’s rehabilitation (and thus ongoing community safety) by imposing them at this stage. I have in mind, for example, the hampering of the defendant’s functional relationships by being unable to go to see a movie.

Orders

1. [114]

   Accordingly, on 24 September 2024, I made the following orders:

   1. (1)

      An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, that the defendant be subject to an extended supervision order for a period of 18 months from today.

   2. (2)

      An order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the schedule to this judgment.

   3. (3)

      An order that access to the Supreme Court file for any document should not be granted to a non-party without leave of the Court and if any application is made by a non-party, the parties are to be notified by the Registrar so as to allow them to be heard in relation to the application for access.