Rigby v State of New South Wales

Judgment

1. BELL P: I have had the benefit of reading the judgment of Basten JA with which I fully agree.
2. BASTEN JA: On 27 April 2021 the primary judge, Rothman J, made an order for the supervision in the community of the appellant, Michael Craig Rigby, for a period of five years. The order was made pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("High Risk Offenders Act"). The judge further directed that the appellant comply with conditions set out in a schedule to the orders. On 5 May 2021 the primary judge delivered his reasons for making the relevant orders. [1]
3. No notice was given of an intention to appeal, with the consequence that a timely appeal was required by 27 May 2021. A notice of appeal was not in fact filed until 9 September 2021. The appellant sought an extension of time. The State concedes that there was a material error in the judgment below and does not oppose the extension of time. An extension to permit the filing of the notice of appeal up to and including 9 September 2021 should be granted, effective from that date. The concession necessitates the redetermination of the State's application for an extended supervision order in circumstances where the delay in bringing the appeal has practical consequences.

Orders sought

1. The delay raises a preliminary question as to whether the matter should now be determined in this Court, or whether it should be remitted to the Division. Indeed, there was a further delay in preparing the matter for hearing, the appellant's submissions not being filed until 30 November 2021. Unfortunately, neither party deemed it appropriate to put on further evidence as to the current circumstances of the appellant. Two inferences may be accepted. One, which is accepted by the State, is that no breach of the onerous conditions imposed on the appellant has occurred to the knowledge of the State. The second arises in circumstances where the primary judge reserved leave to the appellant to apply "for variation of any condition that interferes with the therapeutic treatment undertaken by [him] on the recommendation of his treating psychiatrist". [2] No variation having been sought, it may be accepted that the need for a variation has not arisen.
2. Although no order of remittal was sought in the notice of appeal, counsel for the appellant raised in written submissions the possibility that the Court could set aside the order made by the primary judge and remit the proceedings to the Common Law Division for redetermination. There are difficulties attending such a remittal. However, as the matter proceeded in this Court on the assumption that the Court could re-exercise the statutory discretion, and neither party expressly pursued an order for remittal, the issues can be addressed briefly.
3. A right of appeal is conferred by s 22 of the High Risk Offenders Act in the following terms: 22 Right of appeal (1) An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order, continuing detention order or emergency detention order. (2) An appeal may be on a question of law, a question of fact or a question of mixed law and fact. (3) An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow. (4) The making of an appeal does not stay the operation of an extended supervision order, continuing detention order or emergency detention order. (4A) If the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the extended supervision order, continuing detention order or emergency detention order the subject of the appeal continues in force, subject to any order made by the Court of Appeal. (4B) Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order (for a period not exceeding 28 days) revoking or varying an extended supervision order, continuing detention order or emergency detention order the subject of the appeal. (4C) The Court of Appeal may make more than one interim order under subsection (4B) provided that the combined periods during which the interim orders (whether made under this Act by the Court of Appeal or the Supreme Court at first instance) are in force do not exceed 3 months in total. (5) This section does not limit any right of appeal that may exist apart from this Act.
4. Some consideration was given to the nature of the appeal in my judgment in Lynn v State of New South Wales. [3] Without the assistance of argument, I formed the tentative view that the appeal was to be conducted by way of rehearing in accordance with s 75A(5) of the Supreme Court Act 1970 (NSW). That meant that the same functions were to be exercised by this Court as on an appeal under s 101 of the Supreme Court Act, which may itself be engaged because the proceedings resulted in a judgment of the Court in a Division, within s 101(1)(a). The problem with respect to remittal was noted in Lynn in the following terms: "[95] Section 22 touches on the powers of this Court on an appeal only peripherally and then confusingly. No doubt the Court has powers to dismiss the appeal, in the event that no error is established, or uphold the appeal and set aside the decision made by the primary judge. That is at least consistent with an appeal being available based on a question of law, fact or what is described as 'mixed law and fact'. The question is whether, error having been established, the Court may make such order as it thinks fit, or must then remit the matter to a judge in the Division. [96] Remittal is clearly envisaged by subs (4A) and (4B). The confusion arises because subs (4A) provides that upon remittal the order under appeal will continue in force, subject to any order made by this Court. However, unless the Court sets the order aside, there would be no point in remitting it to the Division. Subsection (4B) states that this Court may 'make an interim order revoking' an extended supervision order. Revocation can hardly be interim and, as with subs (4A), there is no purpose in a remittal unless the order has been revoked or set aside. Although ineptly expressed, it is likely that the intention of these provisions was to empower the Court, if not able finally to dispose of the proceedings, to make an interim order itself imposing supervision or continuing detention until the matter could be dealt with by a judge in the Division. [97] Given the broad bases upon which an appeal may be brought, the section should be understood to confer on this Court a power to make such order as could have been made in the Division, if thought appropriate. The significance of this conclusion is that both parties should give careful attention to any up-dating evidence which may need to be placed before this Court in the event that the appeal is successful, so that this Court may make an order in substitution for that set aside, other than dismissal of the State's application."
5. That conclusion does not appear to have been reagitated. It was noted, but distinguished, by this Court in State of New South Wales v Naaman (No 2) [4] in dealing with a different right of appeal under the Terrorism (High Risk Offenders) Act 2017 (NSW), s 53.
6. In Kamm v State of New South Wales (No 4), [5] Payne JA (Bathurst CJ and Beazley P agreeing) addressed the terms of s 22, and agreed that there was a right of appeal conferred by that section, although leave was required when the time limit prescribed in subs (3) was not complied with. There was no discussion of the nature of the appeal. It was, however, assumed that the powers under s 75A to receive further evidence are available.
7. The power referred to at [97] of Lynn was accepted as applicable in Bugmy v State of New South Wales, [6] although in reference to the power to seek a variation of an order, which is a different power from that arising on an appeal. Otherwise the difficulties attending the possibility of remittal were identified in the passage set out above from Lynn and do not require further exploration. It may, however, be added that if the Court were to make an "interim supervision order", attention would need to be given to the operation of s 10A and s 10C in identifying the scope and period of any such order.

Conceded error in judgment

1. Grounds 1 and 2 in the notice of appeal alleged factual error on the part of the primary judge in the following paragraph of his judgment: "[69] Further, there is no suggestion in these proceedings that the Prohibition Orders Act operated or was relevant to the defendant. Nevertheless, the availability of Prohibition Orders is raised, even though there is no evidence of any intention to obtain such orders."
2. The statement was erroneous because, on 8 September 2020, Waverley Local Court made prohibition orders pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("Prohibition Orders Act"), to have effect for a period of two years. The orders were annexed to two affidavits which were read in evidence and were referred to by both parties in written submissions and in the course of oral submissions, in each case in a number of passages. While conceding error, the State nevertheless submitted that a consideration of the prohibition orders would not, and should not, have changed the outcome. There was discussion in the course of the appeal as to whether the State was denying the materiality of the error, or was accepting that the error was material and should lead to a re-exercise of the judicial discretion, but with no different result. The latter appears to be the correct view.
3. Ground 3 alleged that the primary judge failed to have regard, first to the prohibition orders, as required by s 9(3)(e1) and (i), and second to the appellant's level of compliance with parole, the prohibition orders and his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) ("Offenders Registration Act"), as required by s 9(3)(f) and (g).
4. The State gave qualified acceptance to some of the errors reflected within the two limbs of ground 3, as appeared in its written submissions at par 13: "Whether or not Rothman J's consideration of the appellant's conduct on parole and/or [with respect to his obligations under] the Registration Act reflected error, it is accepted that the error in relation to the prohibition orders meant that the Court below failed to adequately consider the mandatory considerations set out in s 9(3)(e1) and (g)."
5. In reply, the appellant submitted that the concession should have extended to s 9(3)(i), although there is some lack of clarity as to what that paragraph required.
6. Ground 4, the substance of which was not conceded, alleged error on the part of the primary judge in failing to have regard to the effect, in combination, of: "(a) The Prohibition Orders; (b) [the appellant's] obligations under the Registration Act; (c) The Mental Health Act 2007 community treatment order which would be in place if the extended supervision order were not made; and (d) The support and services available to Mr Rigby under the National Disability Insurance Scheme."

Statutory requirements

1. Although the primary judge heard oral evidence from two court-appointed experts (a psychiatrist and a psychologist), there were no issues raised as to credibility or expertise and this Court is in as good a position as the primary judge to assess the written and oral evidence for the purposes of exercising the statutory powers. However, it is also important to identify the scope and nature of the errors, both conceded and alleged.
2. The preconditions to the making of an extended supervision order are identified in s 5B of the High Risk Offenders Act, which reads as follows: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is 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.
3. The nature of the appellant's offending and the relevant "serious offences" are addressed below. The critical criterion is that identified in par (d), namely that the court be 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."
4. The powers and obligations of a court in determining an application for an extended supervision order are set out in s 9, which relevantly provides: 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order - (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. … (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - … (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence.
5. Paragraphs (e1) and (i) in s 9(3) are expressed in general terms; in effect, the options which needed to be addressed under (e1) were those set out in ground 4.

Other legislation

1. The operation of the Prohibition Orders Act and the Child Protection (Offenders Registration) Act 2000 (NSW) ("Offenders Registration Act") require further explanation. Section 3A of the latter creates a class of "registrable person", including offenders who have committed offences of violence or sexual offending involving a child. As the appellant's criminal history, summarised below, indicates, he has been convicted of offences which satisfy the statutory definitions. A registrable person has reporting obligations involving the provision of personal information to the Commissioner of Police. [7] An initial report must be provided upon leaving custody; thereafter the person must report annually. Pursuant to s 15(1), reporting obligations are suspended for any period during which the person is the subject of an interim supervision order or an extended supervision order. The name and details of each registrable person are to be kept on a Child Protection Register. [8]
2. More importantly for present purposes, the Prohibition Orders Act provides that the Commissioner of Police may apply to a Local Court for an order prohibiting a registrable person from engaging in specified conduct: s 4. A prohibition order may extend for five years: s 6. Section 8 provides as follows: 8 Conduct that may be the subject of orders (1) A prohibition order may prohibit conduct of the following kind: (a) associating with or other contact with specified persons or kinds of persons, (b) being in specified locations or kinds of locations, (c) engaging in specified behaviour, (d) being a worker (within the meaning of the Child Protection (Working with Children) Act 2012) of a specified kind. (2) Subsection (1) does not limit the kinds of conduct that may be prohibited by a prohibition order.
3. Section 18 prohibits a person publishing "in relation to any proceedings relating to an order under this Act", information that identifies the person against whom the order is sought or made. There is also protection for victims of a registrable offence. (The reference to "person" in s 18 should not be read as applying to a court or to publication made in the course of or for the purposes of judicial proceedings, but may affect reporting of such proceedings.)
4. In order to understand the reliance placed on this material by the appellant it is necessary to have regard to the protection orders made in the Local Court on 8 September 2020. They read as follows: "The Local Court, being satisfied that Michael RIGBY is a registrable person pursuant to the Child Protection (Offenders Registration) Act 2000 made a Child Protection Prohibition Order. The Local Court orders that Michael RIGBY is prohibited from engaging in specific conduct, namely: (Details of orders made) That the respondent not: 1. Actively communicate, or attempt to communicate, either directly with any person under the age of 18 years in any way, including by phone, letter or through another party or in person except in the course of conducting a necessary transaction. 2. Have or attempt to have physical contact, or actively seek out and remain in the presence of, any person under the age of 18 years, without responsible adult supervision at all times, whether in private or public places. 3. Remain in any residential premises with any person under the age of 18 years, without responsible adult supervision at all times. 4. Seek to undertake paid or voluntary work that brings you into unsupervised contact with any person under the age of 18 years. 5. Communicate, befriend, or engage with any person under the age of 18 years through any social media site, or any other internet-based communication service. 6. Not to be in possession of any images depicting children or child like images, that do not form part of a publicly available, lawful, publication. 7. Loiter at or within view of any premises frequented by children, including but not limited to, playgrounds, schools, preschools, child care facilities (private or public), beaches, parks, premises being used for before or after school care, cinemas or premises used for concerts/shows intended for the entertainment of persons under the age of 18 years. 8. Loiter at or within view of any bus stop, train station, light rain station, ferry terminal or tram station without being able to provide police with a specific, destination, ticket/fare and reason for attending that destination. 9. Loiter on public transport, including buses, trams, trains, ferries and light rail, without being able to provide police with a specific destination, ticket/fare and reason for attending that destination. 10. Associate with or contact either directly, or through a third person, any registrable or person that has been convicted of a class 1 or 2 Offence pursuant to the Child Protection (Offenders Registration) Act 2000; except those residing within the Community Offender Support Program Centre (COSP). This order has been made for a period of: 2 years."
5. Pursuant to s 13(1) of the Prohibition Orders Act, it is an offence to contravene a prohibition order "without reasonable excuse". A breach carries a maximum penalty of imprisonment of 5 years.
6. As will be seen, there was a degree of overlap between the prohibition orders and the conditions imposed under the extended supervision order. However, in other respects the prohibition orders extended beyond the scope of the conditions imposed by the extended supervision order. For example, the prohibition orders related to persons under the age of 18 years of either sex; the conditions of the extended supervision order were limited to females under the age of 18 years. As was noted by Fagan J in making the interim supervision order, there was no evidence to suggest that the appellant had been involved in sexual activity involving young males. If the Commissioner of Police were aware of the restriction in the extended supervision order conditions, it would have been appropriate for her to seek a variation of the prohibition orders in similar terms. However, it may be that the Commissioner of Police was not aware of the difference in the orders: the extended supervision order is monitored, managed and enforced by officers in Corrective Services, and not by the police. That is a matter of some concern in circumstances where orders are made under both Acts. The prohibition orders set out above will expire on 7 September 2022, if not otherwise varied or revoked before that time, being some six months from the date of this judgment.
7. The second matter relied upon by the appellant related to his obligations under the Offenders Registration Act.
8. Section 20A of the Offenders Registration Act provides that the reporting conditions under that Act continue to operate where a prohibition order is in force; otherwise, those obligations are suspended whilst a person is the subject of an extended supervision order: s 15(1)(d). Section 20A is said to operate "despite any other provision of this Act": s 20A(1).
9. The circumstances which give rise to registration and reporting requirements under the Offenders Registration Act can engage the High Risk Offenders Act and may therefore overlap with conditions under an extended supervision order. Although the provisions of the Offenders Registration Act are protective of the interests of children and young persons, they are more of an administrative character than the conditions imposed under the extended supervision order. While non-compliance with the obligations of the Offenders Registration Act might be significant, compliance is likely to be of limited importance in assessing the appropriateness of an extended supervision order under s 9(3)(g).
10. The third matter which the appellant submitted had not been properly considered by the trial judge was the availability under the Mental Health Act 2007 (NSW) of compulsory medical treatment under a "community treatment order".
11. The appellant did not suggest that the judge was not aware of the powers under the Mental Health Act, nor that he disregarded their potential availability. The judge expressly acknowledged that he was required to consider "the unacceptability of the risk and the discretion to issue an ESO in the circumstances of the continued effect of the Mental Health Act and the Offenders Registration Act." [9] He dealt with the Mental Health Act component in the following passages: "[72] There was initial opposition by the defendant to be bound by a Community Treatment Order. Eventually the defendant was bound by an order under s 67 of the Mental Health Act for a Forensic Community Treatment Order. [73] The order was made on 28 April 2016 and continued on 13 October 2016. Further such orders issued on 12 January 2017, 18 April 2017 and 20 July 2017. At those times, by definition, the defendant was either in custody or detention in prison or a Mental Health Facility. [74] On or after 17 February 2018, the defendant has been in the community and has not been subject to a Forensic Community Treatment Order; nor a Community Treatment Order. Nevertheless, a psychiatrist, Mr Patrick Moran, with the Community Mental Health has stated that a Community Treatment Order will be sought, if an ESO does not issue."
12. The letter from Mr Moran (a psychologist, not a psychiatrist, with Community Mental Health) dated 12 February 2021 noted the medications which the appellant was then receiving and with which he had been compliant: "He is currently stable on this dose and engages well with the community mental health team. There is a plan to place Michael on a community treatment order (CTO) when his ESO finishes. A CTO would be sought in the community due to concerns about a potential relapse in offending behaviour if Michael was to cease treatment or was not closely monitored by a mental health team." The reference to an "ESO" was probably intended to be a reference to an "ISO" as the appellant was then subject to an interim supervision order. The judge's assumption that a community treatment order was intended if an extended supervision order were not to be made was undoubtedly correct. The judge acknowledged, in some detail, the appellant's submissions to the effect that critical to his continued good behaviour was an appropriate treatment regime with which he was compliant. A community treatment order was said to be the appropriate mechanism for ensuring continuing treatment.
13. Fourthly, the appellant relied upon the failure of the judge, in combination with the other matters, to have regard to the support and services available to him under the National Disability Insurance Scheme ("NDIS"). There was some limited evidence as to the nature of the NDIS package which had been approved, with a start date of 19 March 2020 and a review date of 19 March 2021. (Although there was no evidence to this effect, the Court was advised from the bar table, and accepts, that the package was renewed until 19 March 2022.)
14. It is true that a solicitor from Legal Aid acting for the appellant prepared an affidavit of 10 November 2020 which stated where the appellant was then living, that he was in receipt of a disability support pension, had an NDIS plan, was subject to a prohibition order, had been on parole from 26 September 2019 and had obligations under the Offenders Registration Act. There was also evidence that the appellant had used a support person provided under the NDIS plan in attending for treatment at the community mental health office. The judge expressly identified the fact that the appellant had received and was receiving assistance paid for under the NDIS. [10]
15. In the course of their oral evidence, both the court-appointed experts, Ms Youssef, psychologist, and Dr O'Dea, psychiatrist, were asked by counsel for the appellant whether the NDIS package which provided him with support for daily activities, including scheduled visits, was a factor going towards the reduction of his overall risk. [11] Ms Youssef answered: "So in terms of the NDIS, my understanding, while they can assist with day to day things such as taking him out and active scheduling, should Mr Rigby say, 'No, I don't,' 'I don't want anyone today' or 'I don't want to go anywhere,' they can't force that. But, yes. They can certainly assist, if he asks for their assistance, in day to day things. Yes."
16. Dr O'Dea gave a similar response: "Look, I would be encouraged that he's got NDIS funding. I certainly look after a number of patients in the community who are similar to Mr Rigby who have NDIS funding and have that support, like 5 hours of a non-government organisation to come and take the person out and supervise them in the community. And that would be something that would be very beneficial for Mr Rigby. Obviously, he needs to agree to that. But of course, one of the things about that in assessing his risk under a CTO is assessing his compliance with the overall programme. And if he's refusing things, you obviously have to balance up his civil liberties with an understanding of what's going on for him to be not wanting those kinds of interventions. So, the NDIS funding is something that I would be encouraged by."
17. It is apparent from the submission that limited weight was placed on the existence of the NDIS funding, and it was briefly referred to in the judgment. [12]
18. In addressing ground 4, the following passages in the judgment should be identified. First, at [64] the judge identified the central issue as the effect of the appellant's mental illness and his treatment. He noted the submission that "the better option" is to allow him to be treated, or continue to be treated, under the Mental Health Act and the Offenders Registration Act. He then noted that he had recently considered the relationship between the High Risk Offenders Act and the Offenders Registration Act and set out extracts from the matter of State of New South Wales v Richards (Final). [13]
19. Secondly, as noted above, the judge set out the history of the appellant's treatment under the Mental Health Act, both as a forensic patient and in the community. He then identified the appellant's submissions in the following passage: "[75] Further, the defendant has received and is receiving assistance paid by the National Disability Insurance Scheme (NDIS). On the forgoing basis, the defendant submits that the ESO should not issue and particularises the following factors: (a) The defendant has been on parole since 26 September 2019 and an ISO since 28 January 2021 and has not reoffended. (b) The defendant is stable on his medication regime for treatment of his serious mental illness and is receiving ongoing care from the Community Mental Health Team. (c) The defendant has been compliant with his mental health medication. (d) The defendant's substance use is in remission. (e) Since his release from custody the defendant has been compliant with his treatment regime for his serious mental illness and it has not been necessary to admit the defendant to hospital for treatment as an involuntary patient. (f) If an ESO were not made there is evidence from the defendant's treating team that they intend to apply for a CTO to continue to manage his mental health treatment. Any CTO that was made by the MHRT could be made for intervals of up to 12 months each time. (g) A CTO is managed by the CMHT [Community Mental Health Team] attached to a declared Mental Health Facility in the community. (See s 57(2) MHA). (h) A condition of the CTO could include testing for illicit substance use. (i) If the defendant breached his CTO, breach action could be initiated by the CMHT resulting in the defendant's recall to hospital. If necessary, Police and/or Ambulance are empowered to detain the defendant to take him to a Mental Health Facility. (j) A breach of a CTO allows for the patient to be recalled and be detained and assessed at a hospital (s 58 MHA). (k) Where the defendant is subject to a CTO in the community and his mental health deteriorates or breach action is taken, then the defendant can be detained in a declared Mental Health Facility and assessed as to whether further detention in that Facility is the least restrictive care. (See s 61(4) MHA). (l) The defendant also now has the support of an NDIS package."

Conclusions as to pleaded errors

1. The gravamen of ground 4 was that the judge erred in not having regard to the combined effect of the four matters relied upon. Because the first (the prohibition orders) were not considered, ground 4 is capable of being upheld on that basis. However, that is merely to duplicate the effect of grounds 1, 2, 3(a) and part of 3(b). Otherwise, it is clear that the judge did have regard to the obligations under the Offenders Registration Act, albeit by way of reliance on an analysis of those obligations in another case. Further, he gave comprehensive consideration to the availability of a community treatment order in lieu of an extended supervision order, ultimately denying its adequacy on a basis which is considered below. Reference to the NDIS package was limited, but little weight was placed on it in the course of the proceedings. Thus, except in the repetitive sense noted above in relation to prohibition orders, ground 4 has not been made out.
2. There remains a question in relation to ground 3: putting to one side the prohibition orders and the Offenders Registration Act, the complaint is that the judge did not have regard to the appellant's level of compliance with his parole obligations.
3. Section 9(3)(f) requires the court to have regard to compliance with any obligations to which the appellant "is or has been subject while on release on parole": there is no reason to treat that as limited to the current or latest period of parole. The appellant had been released to parole following his latest sentence on 6 September 2019. His conditions of parole included acceptance of medical treatment for his psychiatric conditions, and the evidence was that he had been compliant. So much was an underlying assumption of the application for an extended supervision order.
4. On the other hand, his earlier history was far from satisfactory. In May 2008 he had been released to parole after 5.5 years of an 8-year sentence. He was returned to custody for breach of parole four months later. He was again paroled in September 2009 and was arrested nine months later (in June 2010), some six months before the termination of his sentence, for an act of indecency towards a young female passenger on a train. He was released again on 24 June 2011. Six months later he committed a series of indecent assaults upon his niece, then just short of 10 years old. At that stage it was discovered that he had indecently assaulted another niece in late 2009 or early 2010 when she was 15 years old and he was on parole.
5. The judge was aware of his criminal history, which was set out in an earlier judgment of Fagan J who had made orders for psychiatric examination and for an interim supervision order on 10 December 2020. [14] Apart from the latest period, the history of compliance with parole conditions was largely unfavourable to the appellant. On the other hand, in effect the appellant's case was run on the basis of compliance with the current conditions of his parole, and particularly the medical treatment requirements.
6. Again, putting to one side the repetition of the error with respect to prohibition orders, ground 3 is not made out.
7. That leaves grounds 1 and 2, the substance of which was conceded and have been made out.

History of offending

1. The only dispute in relation to the criteria set out in s 5B of the High Risk Offenders Act concerns par (d), namely whether the court is satisfied "to a high degree of probability" that the appellant poses "an unacceptable risk" of committing another serious offence in the absence of an extended supervision order. However, it is relevant to note the appellant's criminal history.
2. The offending which satisfied the definition of "serious sex offence" in s 5(1) (and thus s 5B(a) in the Act) included two counts of aggravated acts of indecency towards a niece when she was seven years of age in 2001, and five counts of aggravated indecent assault, four of which took place when she was seven or eight years of age and one when she was 15 years of age.
3. Secondly, there were four counts of aggravated indecent assault on another niece when she was nine years old. For this offending, the defendant was sentenced by Tupman DCJ to imprisonment for 9 years, commencing on 29 January 2012, with a non-parole period of 6 years. These four offences took place during January 2012.
4. Further, in February 2002, the appellant attacked a young woman at an isolated train station in the early hours of the morning. He was convicted of four counts of sexual intercourse without consent and was sentenced to imprisonment for 8 years. A non-parole period of 5 years was reduced on appeal to 4 years on the basis that the appellant was suffering from schizophrenia at the time he committed the offences and the Court was satisfied that, whilst his actions were predatory, persistent and demonstrated an understanding that he knew what he was doing was wrong, his mental condition diminished his culpability. [15]
5. In June 2010 the appellant sat opposite a young woman in a train and masturbated in front of her. He was convicted of an act of indecency and sentenced to 12 months' imprisonment with a non-parole period of 9 months, but appears to have served the whole sentence. As a teenager and young man, the appellant had a further history of property offences and robbery in company. His last non-sexual offence occurred in 1999, when he was 21 years of age.

Expert evidence

1. Dr O'Dea, in his report of 8 February 2021 prepared for these proceedings, noted that the appellant was first diagnosed with paranoid schizophrenia in 1997, at the age of 18 or 19 years. He was admitted to Long Bay Prison Hospital Complex in November 2004. A report prepared at that time described his mental illness as "a gradual progression over many years, which has been characterised by persecutory delusions, looseness of association, thought disorder, somatic delusions, intractable preoccupation with events and auditory hallucinations." [16]
2. In a report dated 10 November 2013, Dr Richard Furst, consultant forensic psychiatrist, provided a detailed history of the appellant's offending and psychiatric history. He noted that the appellant had completed the CUBIT program in gaol on two occasions and had been treated either in gaol or in the community on numerous occasions over several years. [17] Dr Furst referred to the appellant's own explanations of workplace stress and harassment as triggers for his offending, but expressed the opinion that "his accounts and attempts to explain himself are best disregarded, as they are confused, misguided, thought disordered, and reflect on his lack of insight into his primary condition, which is a chronic schizophrenic illness." Dr Furst continued: "The relationship between his chronic schizophrenic illness and offending behaviour is less clear, partly because of his narrative style [and] attribution of previous mental health problems to workplace stress and being abused himself. In my opinion, his offences were probably primarily motivated by sexual attraction and self-gratification, in keeping with other sexual offences he has committed such as the 2002 sexual assault and the 2010 act of indecency committed against female strangers on trains."
3. Dr Furst concluded: [18] "Mr Rigby has chronic treatment resistant schizophrenia, with multiple offences over a number of years, a lack of stable relationships and stable employment, and limited insight into his condition. In my view, there are some prospects for future successful rehabilitation, but his failure to appreciate the true nature and extent of his mental illness due to his lack of insight is a cause for concern and means future treatment plans should be involuntary to enhance compliance and treatment response. … [Mr Rigby] has a number of criminal antecedents, including several sexual offences against four victims, two of whom were children and two of whom were adult strangers. He has never been married, has a poor record of employment, has been unstable in his accommodation at times, and has limited family support. He scores in the high risk category for risk of sexual and non-sexual violent recidivism according to the Static-99 instrument, which is a further reason for ongoing assertive and involuntary psychiatric treatment and rehabilitation. Positive factors include previous adherence to treatment, attending appointments with treatment services, and expressions of remorse about the impact of his actions on his two nieces."
4. A similar assessment with a similar diagnosis was provided by Dr O'Dea. There was, however, a degree of ambivalence in Dr O'Dea's opinions with respect to the future. He concluded that the appellant's "sex offending behaviours, and at least his problems with supervision on parole in the past, could be understood as directly related to his disorganised thinking and behaviour, his disinhibition, and his general lifestyle, related to his history of a chronic treatment resistant psychiatric schizophrenic illness complicated by substance use disorder; rather than as exclusively related to a paraphilic disorder." [19] Dr O'Dea further stated: [20] "Whilst Mr Rigby's schizophrenic illness has not responded fully to treatment and not reached full remission, I consider that ongoing assertive, comprehensive, structured, supervised and monitored community psychiatric treatment of his schizophrenic illness, heterosexual paedophilia and substance use disorder, is the least restrictive and most appropriate psychiatric risk management of these conditions, and his risk of re-offending, including of committing a further serious sex offence as defined by [s 5A of the High Risk Offenders Act]."
5. Dr O'Dea then dealt with specific risk management issues, with respect to his schizophrenia, substance use disorder and paraphilic disorder in the community. Dr O'Dea expressed a firm view that, because it was - "generally agreed that the best predictors of future offending behaviours are past offending behaviours; particularly in the context of active major psychiatric illness, ongoing substance abuse and specific and significant paraphilias; it would seem reasonable to consider that Mr Rigby's risk of engaging in further serious sex offending behaviours in the community in the long term would be considered to be significantly high, particularly if he were to experience a relapse of his psychiatric illness, and/or resume substance use in the community in the long term, and/or his paraphilic urges were to resurge". [21]
6. There was a degree of ambivalence as to the statement that the risk of re-offending was significantly high, "particularly if" one or more of the three contingencies then noted were to be satisfied. He also expressed the opinion that the appellant would pose a significant risk of committing further offences "if" the proposed treatments were not successful. [22] Finally, Dr O'Dea stated: "118. However; and whilst I would be guided by the services that can actually be provided by the local area community mental health service; an assertive, comprehensive, structured, comprehensive, supervised and supervised community psychiatric risk management program under the provisions of a CTO, would be considered more appropriate and effective from a clinical psychiatric risk management perspective in providing care, treatment and control for Mr Rigby; and of managing his risks in the longer term; and should be able to be provided so as to adequately and appropriately managing Mr Rigby's relevant risks."
7. Again there was an element of ambivalence in his final conclusion. On one view he appeared to favour the provisions of a community treatment order as "more appropriate and effective". (Although he did not state what it would be more effective than, it may be inferred that the alternative was an extended supervision order.) Dr O'Dea added the appropriate qualification that his view was expressed to be from a clinical psychiatric risk management perspective.
8. In oral evidence before the primary judge, counsel for the State pressed Dr O'Dea with suggestions that the driver of the sexual offending was primarily sexual attraction and self-gratification, rather than psychiatric illness. [23] Dr O'Dea accepted that sexual deviance was the motivating force behind engagement in sexual activity but noted that poor impulse control, disinhibition and disorganisation were linked to his mental illness. Dr O'Dea agreed that a community treatment order would not provide general supervision of the appellant, and that it was not enforceable in the way that an extended supervision order or a prohibition order was enforceable. [24]
9. Finally, in his report, Dr O'Dea opined that management controls should be at least five years in duration, "but should be monitored every 6 to 12 months, and modified as appropriate." [25]
10. The forensic psychologist, Ms Youssef, also provided a detailed analysis of the risk factors, including a Static-99R assessment which she said had "moderate predictive accuracy". She noted that the appellant's score placed him in the "well above average" risk category, relative to other male sexual offenders. She stated that routine sampling suggested that "the 5-year sexual recidivism rate is between 30.5 and 40.0 per cent". [26]
11. Ms Youssef also assessed the appellant for "dynamic risk factors" using a tool known as "STABLE - 2007". It measures persistent characteristics that remain relatively stable over time, but which are amenable to change through treatment and supervision. [27] The appellant's score reflected a "'High' level of stable dynamic needs." [28] She summarised these needs in the following terms: "63. The following need areas have been identified as clinically significant areas of concern for Mr Rigby: capacity for relationships stability, emotional identification with children, negative emotionality and deviant sexual preference. The following need areas have been identified as being of some concern for Mr Rigby: significant social influences, general social rejection, impulsive acts, poor problem-solving skills, sex drive/preoccupation, sex as coping and cooperation with supervision. Mr Rigby showed no clinically significant concerns in the following need areas: hostility towards women and lack of concern for others."
12. Ms Youssef described these factors as requiring "extensive external support initially, with the goal to work towards a reduction in that external support and management." [29] She noted that the longer high risk offenders remain in the community without reoffending, the greater the likelihood that they will not offend. [30]
13. Ms Youssef then turned to the relationship between the risk of offending and the appellant's mental illness, stating: "77.3.4. Perhaps more specific to Mr Rigby's case is the management of his mental illness. Should Mr Rigby adhere to his medication and the advice of relevant mental health professionals, then this is expected to mitigate some of the risk. When Mr Rigby is unwell, he reports an increase in sexual preoccupation, negative emotionality, poor problem solving, impulsivity and poor compliance with supervision, all of which are risk factors for Mr Rigby. Furthermore, given a transient lifestyle and history of offending on public transport, should Mr Rigby's accommodation remain stable and he continue to receive support through his NDIS plan where support workers can accompany him whilst on public transport then this may further mitigate his risk."
14. Ms Youssef placed emphasis on the appellant's "current stability", which she said needed to be maintained in order to mitigate risk. [31] She also warned that "[t]here needs to be caution that monitoring and enforcing compliance with court orders and conditions do not become the primary professional preoccupation instead of promoting the longer-term change process for, and reintegration of, high risk offenders".

Assessment of issues

1. The material before the Court raised two inter-related issues. The first was the weight to be given to management and treatment of the appellant's psychological problems in reducing the risk of reoffending. The second was whether the risk could better be managed under an extended supervision order under the control of Corrective Services, or by way of a community treatment order (under the control of a community mental health centre) and prohibition orders (under the control of the police). In assessing these issues, the Court must have regard to the safety of the community as the paramount consideration. [32] .
2. Both Dr O'Dea and Ms Youssef provided carefully reasoned and balanced reports. They had clearly given considerable thought to both the risks associated with the appellant's future in the community and the best ways to address those risks. Dr O'Dea gave significant weight to the benefits of maintaining the appellant's management under a community treatment order. Ms Youssef also expressed a concern that psychiatric care should be given priority over enforcement of an extended supervision order. Ms Youssef may have been more favourably inclined than Dr O'Dea to an extended supervision order, but both the experts were conscious that the Court was required to consider factors extending beyond those relevant to their areas of expertise. Further, both accepted that certain elements (including the stable risk factors) required management of the appellant's living conditions which extended beyond the role of a community health centre.
3. The appellant's case was that the accepted risks of further offending could adequately, and better, be managed by the combination of a community treatment order and the prohibition orders presently in place. Assistance with management of everyday affairs was available under the NDIS package. Furthermore, although there was no evidence of the contemporary situation, it was open to infer that the current treatment regime, which was to a large extent a continuation of the community treatment order managed by the Marrickville Community Mental Health Centre, was working satisfactorily.
4. Although the case is one of no little difficulty, the extent of the risk of further offending is clearly significant and the nature of the offending is deeply troubling. It extends to the personal violence involved in the non-consensual attack on the young woman at a deserted railway station and the sexual molestation of his preadolescent nieces. It should be accepted that the appellant suffers from a paraphilic disorder which, like his schizophrenia, appears to be resistant to treatment. He has twice undertaken programs for sex offenders whilst in custody, and has subsequently reoffended.
5. Whilst the value of a community treatment order is not in doubt, there is no evidence that the current set of conditions with respect to medical treatment, under the current extended supervision order, is either less effective or less appropriate. Importantly, the extended supervision order provides a level of monitoring and enforcement which would not be available under a community treatment order.
6. A similar observation may be made with respect to the prohibition orders. First, they are for a limited period and expire in a few months' time. Secondly, they lack the degree of monitoring which would permit identification of possible breaches and allow for counselling and supervision where that is necessary.
7. The evidence before the Court, which has not been summarised above, included detailed information as to the facilities available within Corrective Services for case management and monitoring of offenders subject to extended supervision orders. It included evidence as to the use of electronic monitoring equipment, which is provided for in condition 4 of the extended supervision order conditions. Further, it is clear that there is potential value in the availability of a Corrective Services officer who has the discretion to make decisions, for example as to constraints on travel, work and places of accommodation, which may be important in the ongoing management of the appellant. Ms Youssef noted the importance of not placing rigid restrictions on travel and places the appellant could visit, which might inhibit employment and social reintegration. It may also be accepted that, due to extended periods in custody, the appellant is partly institutionalised and needs assistance in adjusting to living in the community, where he has limited family support.
8. There is the possibility that the services available by way of supervision are more limited in practice than those stated in the evidence, but there was no cross-examination or challenge to that evidence. It is also possible that broad discretionary powers conferred on officers under the conditions of the extended supervision order can be misused. There was, however, no suggestion in the evidence that that was a problem.
9. In these circumstances, the evidence supports the imposition of an extended supervision order for what would otherwise be an unacceptable risk to the community of reoffending. Having factored in the missing considerations, there was no error in the order made by the trial judge. There was no challenge to the conditions.

Duration and monitoring

1. There remains a question as to the appropriate duration of the order. The trial judge fixed the maximum period of five years. There was support for that period in the evidence of both Dr O'Dea and Ms Youssef. In particular, the latter expressed a firm view that management with the appellant was likely to be necessary beyond a five-year period. On the other hand, Ms Youssef stated that there should be careful attention to the changing needs of the appellant over time. It is, no doubt, self-evident that social reintegration must involve a gradual relaxing of controls and increased self-management by the appellant.
2. In the circumstances, the period of five years proposed by the trial judge should be accepted. However, the appeal should not result in any extension of the period proposed by the trial judge. That may be achieved by acknowledging the error on the part of the trial judge, but not setting aside the order made, on the basis that a separate consideration of the case demonstrates that the order was appropriate.
3. It remains to note the terms of order (4) made by the trial judge: "(4) Leave is reserved to the defendant to apply to the Court for variation of any condition that interferes with the therapeutic treatment undertaken by the defendant on the recommendation of his treating psychiatrist."
4. On one view, that order may have been otiose. Section 13 of the High Risk Offenders Act provides that the Supreme Court may at any time vary or revoke an extended supervision order "on the application of the State or the offender." Section 13(1A) provides that the period of the order must not be varied to extend beyond the maximum period permitted, namely five years. The clear inference is that a variation may reduce the period. An order may be revoked if the court is satisfied that a change in circumstances renders it unnecessary: s 13(1B). In addition, the Commissioner of Correctives Services is to provide a report to the Attorney General at least every 12 months: s 13(2).
5. Thus, although the availability of a power to vary the order is sufficiently broad to cover the terms of order (4) made by the trial judge, there is merit in leaving that order in place. Its effect is to highlight the Court's concern that appropriate continuing treatment is a fundamental element of the regime mandated by the conditions to the order. There is no reason to suppose that the possibility for change envisaged by Ms Youssef may not be accommodated within the terms of the present conditions; however, the judge correctly recognised the need for flexibility. It may be assumed that the State would also seek a variation if circumstances suggest that is desirable.

Orders

1. For the reasons set out above, the only order that the Court should make is as follows: Dismiss the appeal from the orders made in the Common Law Division on 27 April 2021.
2. MACFARLAN JA: I agree with Basten JA.

Endnotes

1. State of New South Wales v Rigby (Final) [2021] NSWSC 472 ("Rigby").
2. Rigby at [108].
3. [2016] NSWCA 57 at [84]ff.
4. [2018] NSWCA 328 at [6].
5. [2017] NSWCA 189.
6. [2017] NSWCA 25 (Basten, Gleeson and Payne JJA) at [52].
7. Offenders Registration Act, ss 9-11.
8. Offenders Registration Act, Pt 3, Div 9.
9. Rigby at [71].
10. Rigby at [75].
11. Tcpt, 22 February 2021, p 29(15).
12. Rigby at [75].
13. [2020] NSWSC 1809 at [75]-[78], [80]-[88], [101]-[102].
14. Rigby at [2], [6]-[10].
15. Rigby v Regina [2006] NSWCCA 205 at [70].
16. Report of Dr Jeremy O'Dea, 8 February 2021, par 41 ("O'Dea Report").
17. Report of Dr Richard Furst, 10 November 2013, p 14 ("Furst Report").
18. Furst Report, p 16.
19. O'Dea Report, par 94.
20. O'Dea Report, par 96.
21. O'Dea Report, par 115.
22. O'Dea Report, par 116.
23. Tcpt, 22 February 2021, p 7(4).
24. Tcpt, pp 21(3)-(28).
25. O'Dea Report, par 119.
26. Carollyne Youssef, Report, 31 January 2021, par 53 ("Youssef Report").
27. Youssef Report, par 61.
28. Youssef Report, par 62.
29. Youssef Report, par 77.3.1.
30. Youssef Report, par 77.3.2.
31. Youssef Report, par 77.5.5.
32. High Risk Offenders Act, s 9(2). 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: 17 February 2022