PATERSON v DPP

The legislation

1. Section 4 of the Child Protection (Offender's Prohibition Orders) Act, 2004 provides: An application may be made by the Commissioner of Police to the Local Court for an order under this Part prohibiting a registrable person from engaging in specified conduct.
2. Section 5 of that Act provides: Local Court may make child protection prohibition order (1) The Local Court may make a child protection prohibition order prohibiting a person from engaging in conduct specified in the order if it is satisfied that the person is a registrable person and that, on the balance of probabilities: (a) there is reasonable cause to believe, having regard to the nature and pattern of conduct of the person, that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and (b) the making of the order will reduce that risk. (2) The Local Court may make an order under this section against a young registrable person only if, in addition to the matters set out in subsection (1), it is satisfied that all other reasonably appropriate means of managing the conduct of the person have been considered before the order was sought. (3) In determining whether to make an order under this section against a registrable person, the Local Court is to consider the following: (a) the seriousness of each offence with respect to which the person is a registrable person, (b) the period of time since those offences were committed, (c) the age of the person when those offences were committed, (d) the age of each victim of the offences when they were committed, (e) the difference in age between the person and each such victim, (f) the person's present age, (g) the seriousness of the person's total criminal record, (h) the effect of the order sought on the person in comparison with the level of the risk that a further registrable offence may be committed by the person, (i) to the extent that they relate to the conduct sought to be prohibited, the circumstances of the person, including the person's accommodation, employment needs and integration into the community, (j) in the case of a young registrable person, the educational needs of the person, (k) any other matters it thinks relevant. (4) The Local Court is not required to be satisfied that the person is likely to pose a risk to a particular child or children or a particular class of children. (5) If a registrable person against whom an order is sought is already subject to a prohibition order and no application has been made to revoke the existing order, the Local Court must, if it decides to make the order: (a) revoke the existing order and replace it with a new order (which may contain matters relating to the existing order), or (b) vary the existing order to include the matters with respect to which it has decided to make the order. (6) An order is not invalidated by a failure to comply with subsection (5).
3. Section 6 provides that the Court can make an order for a period of no more than 5 years or in the case of a young registrable person (i.e. under the age of 18 years) a period for no more than 2 years.

Issues on the appeal

1. There is no issue in the appeal before me as to the length of the order. There is no issue as to conditions 3, 4 and 5. Objection is taken to orders 1 and 2. As I understand the submissions (MFI 1) that objection is taken because: 1. The court cannot be satisfied that the appellant poses a risk such that conditions 1 and 2 are necessary; 2. There was an inadequate assessment of risk posed by the appellant; and 3. There are difficulties so far as compliance with orders 1 and 2 are concerned.
2. At the hearing on 18 August 2021 it became clear that so far as the third matter set out immediately above is concerned the issue was the breadth of the condition as imposed in the Local Court and as a corollary of that breadth there is uncertainty about the conditions. So far as order 2 is concerned I am firmly of the view that there is real merit to the submission that it is simply too broad as it stands as made in the Local Court. It seems to me however that some amendments can be made to the order to overcome this issue.

Purpose of the legislation

1. Clearly enough, the Act is designed for the protection of children from those who would commit child sexual offences against them. In this regard I note that section 3(2) (i.e. within the definition section of the Act) provides: For the purposes of this Act, a person poses a "risk to the lives or sexual safety of one or more children or children generally" if there is a risk that the person will engage in conduct that may constitute a registrable offence against or in respect of a child or children. The emphasis on that portion within quotation marks is in the original legislation.
2. Ms Winn at paragraph 18 of her written submissions refers to the Second Reading Speech. There is a dearth of authority on the legislation with which I am dealing and accordingly I will go to the Second Reading Speech for some assistance. In that speech the Honourable John Watkins, Minister for Police said: "…The bill will enable police to apply to the Local Court to prohibit a registrable person under the Child Protection (Offender's Registration) Act 2000 from engaging in specific behaviour when, on the balance or probabilities, there is a reasonable cause to believe that the person poses a risk to the sexual safety or the life of a child or to children generally".
3. In the matter presently under consideration the issue is clearly the sexual safety of children generally. There is no suggestion in any of the written material before me that there is any issue relating to life of a child or children generally.
4. Returning to the Second Reading Speech, the Minister went on say: "This bill recognises the special risk that child sex offenders and other violent offenders against children may still pose after they are released back into the community. Child protection orders are intended as a means of managing offenders of the highest risk to children. By prohibiting high-risk offenders from specified conduct previously shown to be a precursor to offending, a child protection prohibition order will help prevent further serious offences before they are committed. If police have reason to believe based on their intelligence about a registrable person and their knowledge of that person's previous offending behaviour that the person may be engaging in conduct that is likely to pose a risk to a child or children generally they will be able to apply to the Local Court for an order prohibiting that person from specific kinds of behaviour. For example, a registrable person may be seen at a local swimming pool teaching a seven year old child to swim. On the face of it, there may be nothing wrong with such behaviour. But if on a prior occasion this kind of conduct by that person led to a sexual assault against a child of a similar age and of the same sex, it would be appropriate for police to consider whether they should apply for a prohibition order against this person. Another example would be that of a registrable person who may regularly deliver produce to a school canteen. Again on the face of it, there may be nothing wrong with this. But if that person has a history of offending against children that they have gained access to when making these sorts of deliveries then an order may be necessary to prevent that person gaining access to children in this way. In determining whether to apply for orders, police will need to conduct risk assessments of the person concerned to establish whether the person's current conduct, in conjunction with his or her previous convictions is likely to pose a risk to children. This has the function of putting the offender's behaviour, which might otherwise appear normal into a relevant context."
5. Given some of the submissions made in this matter, it is appropriate to emphasise at this point that s 5(1)(a) of the Act uses the words "having regard to the nature and pattern of conduct of the person, that the person poses a risk to the lives or sexual safety of one or more children, or children generally". There is no adjective before the word "risk" nor is there any further description, refinement or embellishment on that word. Likewise in the Second Reading Speech the word "risk" without further description, refinement or embellishment is used.
6. It is also appropriate to note that the test as prescribed by s 5(1) is on the balance of probabilities that there is reasonable cause to believe…" Subsection (2) to section 5 has no application in the matter presently under consideration as the appellant is not a registrable young person.

Consideration of matters under Section 5(3) of the Child Protection (Offender's Prohibition Orders) Act, 2004

1. It occurs to me that it will be necessary to consider the matters set out in s 5(3) of the legislation. Initially going to s 5(3)(a) it will be necessary for me to make an assessment of the seriousness of each of the matters of which the appellant has been convicted. Neither party has made submissions on the seriousness of the various matters. Hulme J (McCallum JA, Johnson J agreeing) said in Gale v R [2021] NSWCCA 16 at [47]: "The assessment of the objective seriousness of an offence is quintessentially a matter for sentencing judges: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ), [46] (Simpson J)."
2. Initially the matter was presented in such a fashion that this court was required to attend to unnecessary clerical work. I had the matter mentioned in open court. The court is very grateful to the representative of the Crown for his efforts in reorganising the substantial volume of material.

H52576960 - Use Carriage Service to Menace/Harass/Offend; Use Carriage Service to send Indecent Material to Person under 16 years of age

1. The appellant was convicted of these matters at the Wagga Wagga Local Court on 28 April 2014. Upon conviction he was sentenced to imprisonment for 2 years and released immediately on entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) to be of good behaviour for 5 years. On appeal the sentence of 2 years was confirmed but the length of the recognizance was reduced to 3 years.
2. The police fact sheet, which I presume was the fact sheet before the Local Court and then the District Court on the hearing of the appeal, recites that on 9 January 2013 the appellant registered and activated a pre-paid mobile phone in the name of Roy Dawber, which was an assumed name. The address to which that phone service was registered was the appellant.
3. On 23 July 2013 the victim, who was a 14 year old girl in Western Australia, received a call from the appellant in which he said, "Take off your top. Come have sex". The victim felt intimidated and hung up the phone. However the appellant continued to call and talked in a sexually explicit manner. He began sending sexually explicit text messages, including on 31 July 2013, "Sex today, hurry up baby". Other messages included, "Got see your nice tits and nice puss and it a hed (sic) jobs and sex all night and all day hurry" and, "U got a nice cunt and nice puss u good in bed". Other messages included, "Your[e] in year 10 tits first and hi say who it is baby", "U just 15 and having sex how school going u send a photo", "Open it up u not 15, 16 then full photo of u then or hop in the shower full cloths and send photo dear ya money". The appellant was aware that the person with whom he was communicating was under 16. He continued to ask the victim for sex and photographs of herself and he would text her about sexual activities including payment for sex. The victim messaged the appellant "Fuck Off" several times. Between 31 July and 25 August 2013 the appellant sent 121 text messages to the victim.
4. It is only sequence 1 that makes the appellant a registrable person under the relevant legislation. However, of note so far as other considerations and in particular s 5(3)(k) of the Act is concerned, the fact sheet sets out that the appellant communicated by text messages and phone with a number of other women in very explicit sexual terms. The communications with the other women were also persistent. One matter involved the appellant obtaining a number from an advertisement on Gumtree. The communications included asking for sex.
5. The victim in the first matter was 14 and towards the upper end of the age range contemplated by the section. There were a significant number of calls. The content is very sexually explicit. The calls and messages were transmitted over a period of approximately one month. In all the circumstances the first matter involving the 14 year old victim is at the upper end of the mid-range of seriousness. The other matters are within the mid-range of seriousness.

[2020] NSWDC 416 - R v Patterson - Wagga Wagga District Court

1. On 13 August 2020 I sentenced the offender to an aggregate sentence of 2 years 10 months with a non-parole period of 1 year 3 months in respect of charges of Fail to Comply with Reporting Obligations contrary to s 17(1) of the Child Protection (Offender's Registration) Act, 2000 and two counts of Groom Child for Unlawful Sexual Activity contrary to s 66EB(3) of the Crimes Act, 1900. My reasons, including an assessment of the seriousness of the matters, is in the form of a published judgment with the medium neutral citation being set out in the heading that appears immediately above this paragraph.
2. The conduct related to the appellant communicating with two teenage girls pretending he was much younger than he was. To an extent, the girls took advantage of the appellant who sent them not inconsiderable sums of money. There were numerous text messages some of which contained highly sexualised content. There was a total of 1,092 messages to one of the girls. The appellant initially pretended to be a teenage girl and then a teenage boy.
3. There was material tendered in the course of the sentence hearing that indicated the appellant has a mild/moderate intellectual disability. He was diagnosed as a child with cognitive impairment. The disability impacted on the assessment of the seriousness of the matter in accordance with the principles enunciated by the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247. At [61] of the reasons I determined that there was a causal connection between the offending and the appellant's intellectual disability.
4. There was a significant difference in the chronological age between the girls and the appellant. The conduct occurred over several days in July 2019. I found that the matter relating to one of the girls was moderately below mid-range and the other grooming charge to be "very much towards the bottom of the range of seriousness". I found the Breach of Reporting Obligations to be an "unremarkable example of that offence" and to be below mid-range.
5. Significantly the appellant when he committed the offences was subject to an Intensive Correction Order with that order only having been imposed a few weeks before the offending. At [67] I determined that I could not be satisfied on balance that the appellant would not re-offend nor that there were good prospects of rehabilitation.
6. The appellant's mother gave evidence at the sentence hearing. Counsel for the appellant at the sentence hearing read an affidavit sworn by the appellant's mother. She clearly wished to do what she could to assist the appellant. I note that the appellant's mother has been at court to support him.
7. I also note that at [101] I recorded the Crown's submission made at the sentence hearing that if the appellant were to re-offend then the issue of public safety would have a play a much more significant role. The Crown's submission is correct in my opinion.
8. Although the present matter does not involve re-offending, it occurs to me that the Child Protection (Offenders Prohibition Orders) Act is very much concerned with the safety of the public in general and the safety of children in particular.
9. It is only the two charges contrary to s 66EB(3) that make the appellant a registrable person. However, there is also a considerable volume of material that indicates that the appellant has over the years misused telephone services and has harassed a number of women. This appears to me to be very significant so far as s 5(3)(k) of the Act is concerned. I will set out in some detail the criminality involved.

H50321135 - Use Carriage Service to Menace/Harass/Offend

1. The Criminal History sets out that on 11 November 2013 the appellant appeared at the Wagga Wagga Local Court and was convicted of 21 counts of Use Carriage Service to Menace/Harass/Offend. The criminal history also records that the appellant was released on a recognizance pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), which is the Commonwealth equivalent of a good behaviour bond. The recognizance was set in the sum of $100 and the appellant was to be of good behaviour for 2 years.
2. The facts for these matters are set out at tab H of the tender bundle. The appellant contacted twenty one different females. He accessed their phone numbers from Gumtree or advertisements in newspapers. In respect of Sequence 1 he made 282 calls and text messages in a 22 day period in September 2012. The calls were of a sexual nature and a number used offensive language. The appellant told the victim that he had photographs of her breasts and genitals and was going to post them on Facebook. Noting the number of messages and the period of time over which the conduct occurred this is a serious example of the offence.
3. Sequence 2 also relates to conduct in September 2012. The conduct occurred over 12 days. The appellant got the victim's phone number from an advertisement (selling a vehicle) in the Border Mail (local paper circulating in Albury and environs) as was the situation with Sequence 1. The appellant called the victim 15 times and sent 49 text messages, many of which had highly sexualised content including offering to pay for sex. The last message was to the effect that the appellant watched the victim undress for bed the night before. Not surprisingly this caused the victim significant distress. Again, noting the number of calls and the number of days over which the conduct occurred this too is a serious example of the offence and indeed slightly more serious than that to which sequence 1 relates.
4. Sequence 3 also relates to a matter where the victim's phone number was part of an advertisement where she was selling a vehicle. The appellant began sending messages initially about the vehicle, but those messages became sexualised. The victim received 45 messages over 4 days. This matter is also serious, but not as serious as the conduct to which sequences 1 and 2 relate.
5. The victim in respect of sequence 4 lost her cat and placed an advertisement in the local paper containing her phone number. The appellant phoned the victim and told her that he had her cat. There was discussion about the monetary reward and the appellant asked in effect if there was anything else. He said repeatedly, "I'm a lover", which caused the victim to feel harassed and threatened. The matter is serious but noting it was only one phone call the matter is slightly below mid-range. The conduct was calculated.
6. Sequence 5 is another matter where the victim placed an advertisement in the local paper. The victim was trying to locate a lost mobile phone. The appellant sent a text message suggesting that he had the phone. He later sent a message asking to meet up and a later message saying, "Babe sex". The victim had meantime sent a message indicating her age and the fact she was a grandmother. This matter too is below mid-range.
7. The victim in sequence 6 also placed an advertisement in the local paper; this one relating to the sale of a bed. The appellant sent a number of messages mostly about the bed that was for sale. One asked whether she had had sex in the bed. This made the victim feel uncomfortable and she reported the matter to police. This matter too is below mid-range.
8. Sequence 7 relates to a matter where the victim placed an advertisement in the Wagga Advertiser seeking a roommate. The victim began to receive messages from the appellant. After a number of messages about the room the appellant began asking questions such as "U having sex". There were a number of phone calls of heavy breathing. The victim received 50 text messages and calls from the appellant's phone. This matter is within the mid-range noting the number of calls.
9. Sequence 8 relates to conduct that occurred over four days in late November 2012. The victim received a phone call from a male who called himself "Bob", that he knew her and that he had helped a friend of hers fix a car. He then suggested that they meet. Later he asked for photographs of her chest and in a phone call asked if she showered with clothes on. Several calls were received during the period to which the sequence relates. The matter is marginally below mid-range noting the time over which the conduct occurred and the content of the calls.
10. Sequence 9 relates to conduct that occurred during the last week of December 2012 until the middle of January 2013. The victim worked at a department store in regional Tasmania. The appellant phoned her number and asked what coloured bra she was wearing and asked her whether she wanted to "fuck" or perform oral sex on him. There was a threat to kill during one of the calls. There was a total of 916 calls over a period of about three weeks. This matter is above mid-range.
11. Sequence 10 relates to another female victim that worked at the same store as the victim in the matter to which Sequence 9 relates. The victim received a number of calls from the appellant who inquired as to her bra size. In other calls he complained that his girlfriend purchased a bra and that it caused an injury to her nipples. A number of calls were received during the day during which the appellant said that he watched the victim in the shower, asked whether she performed oral sex and threatened her. The caller told the victim that he knew where she lived. This matter too is above mid-range noting the repeated calls, the content of the calls and the threat to kill.
12. Sequence 11 relates to conduct that occurred in late December 2012. The victim worked for a department store in regional Queensland. The appellant rang the store and spoke to the victim who was inquiring about bras. He said that relatives had made purchases including a bra and there were problems with the merchandise. The appellant said, "I want sex" and hung up the phone. As I read the facts the matter relates to only one call. The matter is below mid-range.
13. Sequence 12 relates to the appellant making 21 calls during the same day to which Sequence 11 relates. During one call the appellant asked the victim, "Do you want a root". The facts do not set out whether or not there was any sexual content to the other 20 calls and accordingly I could be satisfied that there was any sexual content. The matter is below mid-range, but not significantly.
14. Sequence 13 relates to conduct that occurred the day after that to which sequences 11 and 12 relates. The victim was working at another branch of the same department store. She received a total of 50 calls, all of which were in the nature of the appellant asking whether she had had sex that day. Noting the persistent conduct and number of calls and their content, this matter is within the mid-range.
15. In late December 2012 the victim in Sequence 14 placed an advertisement in the Border Mail newspaper in an attempt to locate her lost dog. The victim received calls from the appellant who said in effect that if she sent photographs of herself he would return her dog. The appellant sent messages requesting that she go swimming with him fully clothed. Over a period of four days she received a significant number of missed calls and over 20 text messages. Noting that this persisted over a number of days and the number of calls this matter too is within the mid-range, but noting the content towards the lower end of the mid-range.
16. Sequence 15 also relates to conduct that occurred in late December 2012. The victim placed an advertisement in the Canberra Times newspaper advertising a rental property. The appellant sent a number of messages that began to become sexual. A total of 70 messages were received over two days. Noting the number of calls, the matter is within the mid-range.
17. Sequence 16 relates to conduct directed towards a staff member of the same department store as involved in previous sequences, but at a different branch, in regional Tasmania. The victim answered the call and the appellant asked, "(Name) do you want to have sex with me. There were 235 calls in total. A number of the calls contained highly sexualised content including the appellant telling the victim that he knew where she lived and that he was "going to come over and fuck her hard". The victim told the appellant that the matter had been reported to police. The appellant told the victim that he had been watching her and that he was going to come to the store and kill her. Noting the number of calls, the content of the calls and the threat to go to the victim's home and the threat to kill this is a matter well above mid-range.
18. Sequence 17 relates to the appellant calling the victim at a branch of the same department store, but this time in regional Victoria. In early January 2013 the appellant rang the victim and asked when was the last time she had sex. She hung up but the appellant rang back and asked the same question again. This matter appears to relate to only two calls on the one day. The matter is below mid-range.
19. Sequence 18 relates to conduct directed to two female members of the same department store but at another branch in regional Victoria. The victims received a total of 81 calls, many of a sexualised nature. During one of the calls the appellant asked the victim whether she was a virgin and he went on to say that he had been past her house the night before. In a later call he threatened to stab the victim and again indicated that he knew where she lived. Given the number and content of the calls the matter is above mid-range.
20. Sequence 19 relates to the conduct in mid-January 2013. The victim placed an advertisement in the Border Mail advertising a motor vehicle. Initially there was a phone call where there was silence on the other end. The victim then began receiving text messages containing sexualised content. After a number of messages the victim told the appellant that she would be going to the police, to which the appellant replied, "I'm going to fuck your brains out and I'll be taking you to bed and stripping your clothes off. There were a total of 16 calls and messages from the appellant. This matter is within the mid-range.
21. Sequence 20 relates to conduct directed to a staff member of the same department store involved in other sequences but at a branch in regional New South Wales. There was one call during which the appellant asked the victim, "do you have pink tits". There was one call. The matter is below mid-range.
22. The last sequence relates conduct directed to a staff member of the same department store involved in other matters but at another branch in regional New South Wales. There was one call in December 2012 during which the appellant asked the victim when was the last time she had sex. With there being only one call this matter is also below mid-range.
23. The police fact sheet for the 21 sequences also recites that the police investigation into the various matters revealed that between September 2012 and January 2013 the appellant using at least four different phone numbers sent a combined total of 29,283 phone calls and text messages.
24. None of the facts indicate the age of the females the appellant contacted.
25. Also of concern is the value of the appellant to comply with his obligation pursuant to the Child Protection (Offender's Registration) Act.

H65370311 - Fail to Comply with Reporting Obligations (2 counts)

1. As a result of the offending set out immediately above the appellant became a Registrable Person pursuant to the Child Protection (Offender's Registration) Act, 2000. The reporting period was for 8 years until 24 October 2022. That period will have been extended because of subsequent offending.
2. On 24 October 2014 the appellant attended the Wagga Wagga Police Station and completed the Registration Process. The Form with which the appellant was served sets out the Registrable Person's obligations to disclose certain information. That information includes information regarding children with whom they have contact; that information including the names, dates of birth and addresses of any children contacted, visiting or staying at a household, exchanging contact details with a child, attempting to befriend a child and physical, oral or written contact. Details must be reported to police within seven days.
3. On Monday 11 September 2017 police were looking in Wagga Wagga for two teenage girls. Police observed those girls in a vehicle being driven by the appellant. Police stopped the vehicle in Edmonson Street, Wagga Wagga. The two girls were TR and KP, their names and dates of birth being set out in the fact sheet in the tender bundle. The appellant told the police that the girls were mates and that he was giving them a lift. The girls were taken to the police station. About an hour later the appellant attended the police station of his own volition and told a police officer that he wanted to give TR his phone number so he could give her a ride when she was finished at the police station. The appellant left without attempting to update the details on the Child Protection Register. Three days later the appellant was again seen in the company of TR.
4. On 6 October 2017 the appellant attended the police station to complete his annual reporting obligations. Police asked him on three occasions if he had any new details to disclose. Police then confronted him with the details of TR and KP and only when confronted did he admit to knowing them for about two years. He said he did not report his contact with the girls because he had "so much shit going on".
5. The contact with the girls was over a considerable period of time. It was not a fleeting or passing association. The appellant was well aware of his obligation and disclosed his association with the girls only upon being confronted with the details. Of particular concern is the fact that the appellant called at the police station and wanted to give one of the girls his contact details. The breach did not involve other offending. The matter is below mid-range but not significantly so.

H71433354 - Fail to Comply with Reporting Obligations

1. On 12 July 2019 the appellant was convicted by the Local Court at Wagga Wagga of one count of Fail to Comply with Reporting Obligations and sentenced to a term of 7 months imprisonment to be served by way of Intensive Correction Order. A condition of that Order was that the appellant perform 50 hours of unpaid community work.

Other considerations in s 5(3) of the Act

1. I have discussed at some length the various offending in respect of which the appellant is a registrable person and made a finding as to the seriousness of the matters. I will now go to the other considerations contained with s 5(3) of the Act.
2. There have been a number of offences committed between 2012 and 2019. I accept that 2012 is now almost ten years ago. However the appellant has offended several times since 2012. Further, the matters contained within H50321135 involve a total of 21 sequences meaning there were 21 different victims. Some of the offending contained in that matter is very serious indeed. However, the age of the victims is not stated and it seems that most if not all were adults, i.e. over the age of 18 years. These matters if nothing else go to the consideration of the "seriousness of the person's total criminal record". Those matters are also a relevant consideration so far as s 5(3)(k) is concerned as they appear highly relevant to me, noting in particular the use of mobile phones and text messages with some of the offending involving persons under the age of 18 years.
3. The offender was born on 21 February 1968 and accordingly he is now 53 years of age. He was 44 years of age in 2012. Accordingly, the appellant was aged between 44 and 53 when the offending with which this matter is concerned occurred. Some of the offending is quite recent. The ages of the victims vary from young teenage girls to adult women. The age difference in some cases is quite significant. For example the age difference between the victims and the appellant in the matter in respect of which I passed sentence on 13 August 2020 was in the vicinity of 35 years.
4. I turn now to the seriousness of the appellant's criminal record as a whole. The 21 counts of which the appellant was convicted of in November 2013 is also relevant to this consideration. Not only are there quite a number of matters but there are numerous examples of the appellant either breaching court orders or breaching his reporting obligations. The record is such that in respect of any further offending that the appellant certainly would not be entitled to any particular leniency. Given the number of matters involving breaches of conditional liberty or of various orders depending on the view of the judicial officer determining the matter at the time the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465 and the Court of Criminal Appeal in McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 could well be applied against the offender and his record treated as an aggravating factor.
5. I now turn to the issue of risk. Ms Winn argues for the appellant that on the material available the court would not be satisfied that there was sufficient risk to warrant the making of orders 1 and 2 as made in the Local Court against the appellant.
6. A Sentence Assessment Report (SAR) dated 9 July 2019 assesses the appellant at being a low/medium risk of re-offending. I note that the offending for which I sentenced the appellant occurred in July 2019. The report also noted that Community Corrections "has overridden the offender's overall risk of reoffending to T2/High because of the Static 99R assessment". Ms Winn for the appellant takes issue with the accuracy of the Static 99R assessment.
7. The author of that report sets out the appellant appeared to have an understanding of his obligations under the Child Protection Register but the appellant's mother indicated that the appellant had in effect learnt by rote and learnt to "parrot" what he has been told. His mother also indicated that while he is able to repeat things it is unlikely that he understands.
8. The SAR also recites that the appellant was breached in respect of his obligations under orders of conditional liberty but the author noted that his engagement was considered to be limited by his cognitive abilities.
9. There is also available to the court a Risk Mitigation Plan prepared by Corrective Services of New South Wales. That report notes that the appellant's mother appears pro-social and supportive. At p 5 of the report the following appears: "Mother is fully aware of the offending history and although she is protective of her son and at times shifts blame to the victims, she has acknowledged the ramification of his offending behaviour and the need for him to have no contact with female sunder 18 especially in his targeted age group of teenagers".
10. At page 7 of that Risk Mitigation Plan the following strategies are outlined:

• Immediate referred to a psychologist
• Direction not to be in the company of anyone under the age of 18, unless directly supervised by a responsible adult as deemed suitable by Community Corrections;
• Direction not to loiter near any area frequented by children including swimming pools parks, reserves, schools, shopping centres, amusement centres, fast food restaurants, bus stops, picnic areas, public toilets, caravan parks, sporting area or any areas where children congregate unless in the company of a responsible adult as deemed suitable by Community Corrections;
• Direction not to communicate with any person under the age of 18 using telephone, SMS, text messaging, the internet or any other written communication;
• Must accept electronic monitoring and schedules as directed by Community Corrections;
• Must accept referral and case management strategies as per CSNSW (Corrective Services New South Wales) Psychologist.

1. At p 9 of the Risk Management Plan it is noted by a Community Director that the risk mitigation plan appears to adequately address identified risks but it is noted that the appellant is subject to EM (electronic monitoring) and not to be in the company of children under the age of 18 years unless under the supervision of an approved responsible adult.
2. A report dated 17 July 2020 by Jenny Howell, Forensic Psychologist was before me in 2020 when I sentenced the appellant. At p 7 of the report the following appears: "Mr Paterson is charged with non-contact offences. While the Static-99R predictions of risk are relevant for some non-contact sexual offenders these are primarily exhibitionists or offenders with break and enter fetishes who enter a property to steal underwear or similar fetish objects. Due to Mr Paterson's charges I have not utilised the Static-99R which looks at static risk factors known to be empirically associated with sexual recidivism. His risk of sexual recidivism was assessed against dynamic factors predictive of future risk and which form the basis of treatment. … Assessment of Mr Paterson with the ARMIDILLO-S found his dynamic risk factors to be in the moderate risk category to reoffend with a number of protective factors minimising his risk of reoffending. He has stable relationships with biological family; a past intimate relationship with an aged peer; no history of substance use; his compliance with medication; his participation in the community has been appropriate and there is no evidence of inappropriate sexual behaviour. Mr Paterson's adherence to social norms within the community is a protective factor."
3. Later in the report Ms Howell opined that the appellant at the time of her assessment met the diagnostic criteria for major depressive disorder and generalised anxiety disorder and that his intellectual disability contributed to his offending behaviour. At p. 9 of the report she notes that the appellant required specific sexual offender treatment and education to support him in understanding both appropriate and inappropriate sexual behaviour, the social rules around sexual behaviour and issues of consent. She continued by noting that the appellant was "not totally familiar with the social and legal rules in relation to sexual behaviour". She then says: "He appears to understand the definition of a child as someone under 18, however it was not clear whether the thought to ask the young people he was engaging with online their age. When asked why it is important to know an individual's age when speaking to them online Mr Paterson appeared to have a rudimentary understanding that he is an adult and that people under 18 are young people and children".
4. Of particular concern so far as the issues that I need to determine in this appear is what appears at p. 10, namely: "He understands to some extent that his offending behaviour was driven by his social isolation and desire to engage with others within the community. It is not clear to me that he has the capacity to differentiate a young person's age and in conversation it was clear he did not ask".

Conclusions and Orders

1. I am satisfied on the balance of probabilities that there is reasonable cause to believe that having regard to the nature and pattern of conduct of the appellant that the appellant poses a risk to the sexual safety of children generally. Part of the reason for this conclusion is the failure to comply with reporting obligations. I am further satisfied on the balance of probabilities that the making of an order under section 5 of the Child Protection (Offenders Prohibition Orders) Act will reduce that risk. I have addressed within the reasons the criteria contained within s 5(3) of that Act.
2. I note that there is no appeal in respect of orders 3, 4 and 5 as made by the Local Court. Nothing within these reasons should be taken as having any impact on orders 3, 4 and 5 by the Local Court, which I confirm.
3. However, given the considerations of the criteria within s 5(3) of the Act I propose to make the following orders: For a period of 5 years (from the date of the Order made in the Local Court (namely 24 May 2021) Troy Owen Paterson (date of birth 21 February 1968) not: 1. Intentionally seek out or remain in the company of any person under the age of 18 years unless for the purpose of retail service, customer service or the receiving of any professional advice or treatment; and 2. Intentionally communicate with any person under the age of 18 years unless for the purpose of retail service, customer service or the receiving any professional advice or treatment.
4. The exceptions in the proposed orders are designed to allow for the circumstances of the appellant being able to undertake shopping including at any food outlet and have contact with persons in day to day life in retail, business and professional transactions including but not limited to the making of appointments.
5. I indicated that I would take further submissions limited to the formulation of the orders. The parties agreed on an addition to my proposed orders.
6. Accordingly, the final orders are, in addition to orders 3, 4 and 5 made by the Local Court: For a period of 5 years (from the date of the Order made in the Local Court (namely 24 May 2021) Troy Owen Paterson (date of birth 21 February 1968) not: 1. Intentionally seek out or remain in the company of any person under the age of 18 years unless for the purpose of retail service, customer service or the receiving of any professional advice or treatment or in the course of the exigencies of everyday life; and 2. Intentionally communicate with any person under the age of 18 years unless for the purpose of retail service, customer service or the receiving any professional advice or treatment, or in the course of the exigencies of everyday life.

Amendments 22 September 2021 - Date of orders amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021