State of New South Wales v Anderson

The Evidence

1. The evidence tendered by the State is voluminous. Much of it has been canvassed in earlier decisions of the Court, including in the decision of this Court of 18 December 2015, wherein the evidence of the events prior to 14 December 2015 was set out. As with the detail of the statutory scheme, I do not propose to repeat it.
2. In summary, the defendant is an individual who has gravely offended against the laws of this State, who has done so repeatedly, and with terrible consequences. The index sexual offences of aggravated sexual assault were described by the sentencing judge, without hyperbole, as "despicable, atrocious, [and] dehumanising acts." They are not the only examples of unlawful violence in the defendant's criminal antecedents.
3. The defendant has spent most of his adult life in prison, with short periods of liberty ended by the commission of further offences, and further incarceration. When in prison he has repeatedly breached prison discipline. When at liberty subject to supervision, his response has generally been poor.
4. The defendant's past is indicative of an individual who has been consistently incapable of respecting the humanity of others, or of complying with both the criminal law and specific court orders.
5. The evidence before the Court leaves no basis for anything other than satisfaction to a high standard that the defendant is a high risk sex offender such that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
6. The focus of the hearing in this matter however has not been whether the Court can be satisfied to the necessary standard of that proposition; it is whether adequate supervision of the defendant cannot be provided by an ESO.
7. The evidence relevant to that question and of most importance in considering that issue is that relating to the defendant's conduct since December 2015, best revealed in case and counselling notes, and recent psychiatric and risk assessments.

Psychiatric Evidence

1. Each of Doctors Andrew Ellis, Jeremy O'Dea, and Richard Furst examined the defendant in 2015, and gave evidence to the Court on 14 December 2015. Each has provided a further report as to more recent consultations with the defendant. It is that more recent opinion which is summarised below. A summary of the earlier evidence of each can be found in State of New South Wales v Anderson [2015] NSWSC 1970.
2. Dr Ellis saw the defendant on 30 May 2016 for an hour. His report of 7 June 2016 was in evidence before the Court, and the doctor gave evidence on 24 June 2016.
3. Dr Ellis took a history from the defendant during the May 2016 interview. The defendant described his feelings of hopelessness on being returned to custody in December 2015, and being depressed and anxious thereafter. Craving drugs, he obtained buprenorphine from another prisoner and used the drug by intravenous injection.
4. On release to the community in late April 2016, and struggling to cope, he again used buprenorphine, on this occasion obtained from another COSP resident. He told Dr Ellis that this occurred during the first two weeks following his release on 27 April 2016.
5. Commencing anti-depressant medication after consulting a general practitioner had led to an improvement, and he said that he no longer craved drugs.
6. The defendant said that he is not happy residing at the COSP and wishes to return to the supported accommodation in which he was previously living with Providential Homes.
7. Dr Ellis did not find any evidence of depressed cognition and found the defendant to have a positive, if subdued mood. He confirmed his earlier diagnoses. The doctor thought that the defendant would benefit from an opioid replacement regime and from an anti-depressant of the kind now prescribed to the defendant in the community. He regarded that prescription as serendipitous. He considered a return to custody would be unlikely to yield any positive rehabilitative outcome. He opined: "In this case with the significant monitoring that can be in place with an extended supervision order, including restrictions on accommodation such as residing in a COSP or other approved residence and restrictions on associating with vulnerable persons and antisocial associates the potential greater gains in risk reduction in a structured community setting are considered suitable to manage the current risk profile. At this point he is engaging with supervision and treatment providers at a satisfactory level. Rehabilitation and risk management need not be mutually exclusive goals. Monitoring could detect early engagement in at risk behaviour before offending occurred, and appropriate risk management, up to and including return to custody for breaches can be effected." (Report of Dr Ellis, dated 7 June 2016, p 9)
8. In evidence on 24 June 2016, and referring to the defendant's recent use of prohibited drugs, Dr Ellis noted that use of such drugs was problematic for a number of reasons. He said (at T52:33 - 37): "There's not a clear and direct link between drug use and further serious offending, but there is certainly an association between the two, and during a period of intoxication the person's mental state is altered and they are more likely to act out on impulses or aggression that they already have."
9. He considered the detection of a lapse into drug use as of great importance in the supervision of an individual with a high propensity to seriously offend, at least in part because the disinhibition associated with drug intoxication considerably heightens the risk of the defendant sexually reoffending.
10. Whilst the defendant's use of prohibited drugs was regarded by Dr Ellis as a negative feature, and one attendant with an increase of risk of the commission of serious offences, he also referred to positive features of the defendant's period in the community after 27 April 2016.
11. The defendant has engaged with his supervisors, accepted regular counselling through the Forensic Psychology Service, attended meetings of Narcotics Anonymous (NA), and complied with scheduling requirements. He has additionally been offered independent accommodation and part-time paid employment through Providential Homes. Those were all features which mitigated risk.
12. Although cautioning (at T58:47-50) that offenders who target strangers (as the defendant has) show a greater level of impulsivity, anti-social rule breaking, and are more likely to behave in a volatile manner, Dr Ellis concluded (at T57:45 - T58:01): "So I think whilst an extended supervision order could never be said to be watertight or impossible for him to seriously offend on, I think the proposed conditions would be adequate to manage the risk, but ‑ and I think the fact that he has lapsed during it, and there's a response, give some evidence to that. But it's not ‑ you couldn't be conclusive and say that extended supervision order will prevent any reoffending, but there's a very significant reduction by being under supervision."
13. The only benefit Dr Ellis saw in returning the defendant to custody was that of containment; he could not identify any therapeutic or long term risk reduction benefits from further incarceration.
14. Dr O'Dea saw the defendant on 23 May 2016 for about 90 minutes. He confirmed his earlier diagnoses.
15. Dr O'Dea thought that the defendant was quieter, more reflective and less angry than he had been when assessed in 2015. The defendant told Dr O'Dea that he had craved buprenorphine and heroin and had applied for placement on a methadone maintenance program. He told the doctor that he had stopped using buprenorphine on the day of his release from custody (28 April 2016). He expressed himself as willing to consider anti-libidinal medication if it kept him out of gaol.
16. Dr O'Dea considered that it would be beneficial to the defendant for him to have access to methadone maintenance, and continue in a structured community based alcohol and drug program. He also considered that anti-libidinal medication could be of assistance. His diagnosis of Substance Abuse Disorder and Personality Disorder remained unchanged.
17. In evidence on 24 June 2016 Dr O'Dea referred to a "package of interventions" in the community which could address the defendant's psychological and behavioural issues, and ameliorate the risk he posed to the community. He felt that the defendant's engagement with Forensic Psychology Services was positive and helpful in managing risk, although he acknowledged that illicit drug use was a problem, and one not disclosed by the defendant to the doctor. He said, at T89:24 - 36: "[…] the other thing that from my assessment that I took away, particularly from him saying that he was having cravings for heroin and buprenorphine, was that in one sense he was expressing to me that he had ongoing problems with his opiate, at least, use disorder. And what I took away from my assessment was that he had ongoing problems with his substance use disorder that needed assertive and immediate treatment, because as we have discussed today, it is a significant risk factor that was not at that stage being appropriately and adequately managed, even if it was just that he was having cravings for opiates. But I take your point, and I accept it, that the fact that he was not open and honest in disclosing to me indicates, you know, particularly in the nature of that interview and the circumstances, you know, that some level of problems with being honest and open."
18. Dr O'Dea saw no utility in custody based therapy, noting that there was no real evidence to suggest that such programs were successful. He did not regard further incarceration as having any rehabilitative benefit to the defendant.
19. Dr Furst saw the defendant for about an hour on 31 May 2016. Dr Furst took a history from the defendant of his progress since December 2015. He told the doctor that, after being returned to custody on 18 December 2015, he had felt confused and distressed. The strain on him was such that he illicitly used buprenorphine in early April, subsequently testing positive on a urine test.
20. He had, however, attended three CUBIT maintenance sessions in custody.
21. On 28 April 2016 he was released from custody and entered the Nunyara COSP. Feeling stressed, unable to sleep, and overwhelmed, he again illicitly used buprenorphine soon after.
22. After consulting a doctor, the defendant was prescribed an anti-depressant, and he feels that the medication is assisting his mood and problems with sleep disturbance. He says he has not felt tempted to resort to illicit drugs since commencing the medication.
23. The defendant is engaged with Forensic Psychology Services for counselling and support, and attends NA meetings. He has been in contact with his family, and travelled to the north of the state to see his mother and sister. He outlined his hopes for the future.
24. Dr Furst did not consider the defendant to be depressed when he saw him in May, although he was anxious about court proceedings. He regarded the defendant's addiction and the occasions on which the defendant had resorted to illicit drug use as an ongoing concern, particularly so when substance abuse is an important risk factor for sexual offending.
25. Whilst the doctor considered that a CDO would provide containment and short term risk reduction, he thought incarceration carried with it risks that the defendant would become demoralised and that he would not have an opportunity equivalent to that available to him in the community of accessing treatment options. Dr Furst opined: "Despite the extensive and onerous nature of the proposed conditions, I continue to have concerns about the adequacy of such an ESO to adequately manage his risk issues, especially is [sic] he continues to use drugs of abuse and/or becomes more stressed/emotionally unstable. The pattern in past offending has included a lack of warning, impulsivity and catastrophic consequences for victims. The apparent used [sic] of violence and/or sexual violence/threats as a means of revenge was also noted. His overall level of insight into his past offending and individual risk factors is probably superficial." (Report of Dr Furst, dated 9 June 2016, p 14)
26. In his evidence on 28 June 2016 Dr Furst referred to the defendant's use of illicit drugs whilst subject to the ISO as problematic, and a feature which heightened the risk he posed to the community. He said (at T109:25 - 31): "Well, the association between substance abuse and offending is quite well known in the literature, and it is also an individual risk factor which is one of the most significant risk factors for Mr Anderson, and that is having regard to a history of literally now decades of offending, especially starting in his I think teens and 20s which was drug related. And also the presence of drug use at the time of the 2001 index offence, on that occasion I think amphetamines and the general effect of drugs on disinhibition and potential violence for him."
27. He regarded the defendant's performance in the community subject to the ISO as mixed. Positive features included the defendant's willingness to undertake counselling with Forensic Psychology Services, his attendance at NA, his engagement with his Community Corrections ESO supervisor, his potential employment, and his willingness to seek out medical treatment through his general practitioner and through the Langton Clinic, a service offering opiate replacement therapy and other drug rehabilitation services. The principal negative feature of the defendant's time in the community was his illicit drug use and the lies he told to supervisors about his use of drugs. As to negative features, he said (at T111:8 - 17): "I think the drug use is probably the most significant, because we have now ‑ we are now looking at the drug use in custody which was reported, even going back to the day before he got released last year, and now again by according to the notes, a month or so prior to release, and then again on release. So in my view, that is evidence that the addiction problem he has had for the last three or four decades is well and truly alive and not resolved, and that he is likely to continue to be at risk of relapsing and or using drugs on an ongoing basis. And the risk for Mr Anderson with his personality structure and profile, and the previous offences he has committed, would clearly be of either offending in a violent way or a sexual manner going forward."
28. The doctor thought that it was likely that the defendant's apparent transparency with his supervisor was probably not as open and honest as it may have been perceived to be.
29. Dr Furst also thought that a methadone replacement program or other opioid replacement therapy was necessary, as was a continuation, at an increased dose, of anti-depressant medication, as a mood stabiliser.
30. He continued to have concerns about the adequacy of supervision, commenting (at T114:19 - 31): "Well, the ‑ one would think that a person who is going through these court proceedings, and with the sort of potential for a CDO or an ESO looming, would be on their best behaviour and would comply with conditions as best they could. I am not saying that he hasn't been ‑ I am not saying that Mr Anderson hasn't being trying his best during this period, but notwithstanding that, there has still been an obvious breach in terms of drug use or a non compliance with the conditions not to use drugs. So my view would be that the concern about the adequacy stems from the fact that drug use is likely to continue, if that is what has happened so far, and it is really more a question of whether that can be tolerated or not, or to what degree that can be tolerated going forward, particularly given the risk factors identified about him as an individual when using drugs and him as an individual even when not using drugs."

Risk Management Assessment

1. In evidence are reports from Kristy Murphy (dated 28 January 2015), Kevin Makar (dated 2 March 2015), and Rebecca Kaye (dated 24 May 2016).
2. In January 2015 Ms Murphy assessed the defendant as being at high risk of sexual reoffending relative to other sex offenders. She considered him to be someone with a propensity to use violence, including sexual violence, to have his needs met, and who had difficulties in regulating his own behaviour. Ms Murphy considered that, in the community, intensive supervision would be of benefit.
3. In his March 2015 report Mr Makar noted the risk assessment made by Ms Murphy and considered strategies to address risk, together with potential limitations on risk management strategies. Suggested management of the risk posed by the defendant included weekly interviews with Community Corrections staff, including home visits conducted without warning; weekly interviews with others, such as employers and rehabilitation providers; the defendant's participation with Forensic Psychology Services and monitoring of the result; conducting random breath and urine tests; electronic monitoring; the imposition of activity schedules and curfews; and continual review of what is in place and what is required.
4. Mr Makar noted some of the limitations upon strategies to manage risk, including the defendant's potential non-compliance and unwillingness to permit home visits or undergo urinalysis.
5. The most recent risk assessment report was provided by Ms Kaye, the defendant's ESO team supervisor. Ms Kaye's report of 24 May 2016 was in evidence, and Ms Kaye gave evidence before the Court on 24 June 2016.
6. In her report Ms Kaye noted that the defendant had been compliant with the ISO since his release in April 2016, until an incident of illicit drug use was discovered, on 20 May 2016. He had otherwise worked well with supervisors and counsellors, and had received an offer of paid part-time employment and independent accommodation.
7. The defendant had had some family contact, including a visit to his mother and sister in the north of the state, and some telephone contact with his daughter.
8. Although aware of what she understood to be one incident of illicit drug use in the community, Ms Kaye assessed the defendant as being at a medium level risk of reoffending. In her report she expressed confidence that, whilst superficial engagement with supervision was a risk factor, she believed that the defendant was open and honest with her.
9. Risk was intended to be managed by weekly interviews, regular urinalysis, interviews with third parties, home visits, and electronic monitoring. She noted that the resources available to the ESO Team operated as a potential limitation on supervision, in that field visits could only be conducted once a month, and it was not possible to observe the defendant constantly.
10. Ms Kaye, who has been employed in her current role since August 2014, was called to give evidence on 24 June 2016. She expanded somewhat on the limitations to supervision. Although she acknowledged that urinalysis was an important part of monitoring the defendant's compliance with restrictions on his access to drug use, Ms Kaye said that urinalysis was sometimes not able to be undertaken because obtaining a sample from the defendant was dependent upon a male staff member being available to supervise the process, and being in premises in which a sample could be given.
11. In custody, the defendant had used prohibited drugs, a fact that Ms Kaye became aware of on 20 May 2016. A urine sample provided by the defendant whilst in custody on 29 March 2016 had tested positive for buprenorphine, a substance not prescribed to the defendant, with that result being made available to Corrective Services via entry into the relevant database on 10 May 2016. Ms Kaye found out the result through the database ten days later.
12. In the community it was intended to obtain samples for urinalysis from the defendant weekly, although that was subject to the limitations to which I have already referred. Face to face interviews with him were expected to be weekly, with a "field visit", to his home, workplace, or other location, once a month.
13. During one such face to face interview with the defendant, on 20 May 2016, Ms Kaye discovered drug use by the defendant when she asked him to provide a urine sample, and he said he was not able to, initially attributing that to the fact that he had used the toilet just before the interview and could not produce further urine for a sample. Ms Kaye accepted what she was told, although returned to the question of the provision of a sample after completing her interview with the defendant. He then disclosed that he did not want to provide a sample as it would reveal drug use.
14. By other questions Ms Kaye established that the defendant had used illicit drugs in the period 5 - 10 May 2016. The following evidence was given (at T19:8 - 48): "A. Yeah. And then so I recall that then, towards the end of the interview, when it was winding up, so I said, you know, "So about that urine." And Mr Anderson said ‑ sorry, I could read it, but I am just recalling. Q. No, feel free to refresh your - A. Okay. Q. ‑‑recollection if you need to from your note? A. Yeah. So because ‑ sorry. So I said to him at the end, "Okay, so about that urine." And he said, "Oh, no, not today." And straight away I was I guess concerned because it is not a usual response from him. And I said, "Is there a problem? Have you used," and he said, "Yes I have." Q. And what did he say? A. I asked him, you know, what happened. Well, I will have a look at my notes, sorry. So as I recall, I tried to work out when the drug use had happened, and he wasn't that clear on it. So I tried to prompt with dates that I could recall. And I worked ‑ I said to him, you know, you had a urine on 5 May, and he said it was after that. And then I said ‑ he said that he had disclosed the drug use while he went to NA, which is the Narcotics Anonymous group. So then I just estimated that it was somewhere between 5 and 10 May. I asked him what‑‑ Q. And pausing there, that was consistent with what he had told you, that range of dates between 5 and 10? A. Because he said in the last couple of weeks, so it sort of fell into that time period. And I asked, "What did you use," and he said, "Gear." And I just said, "What does that mean" and he said, "Heroin." And then I asked, "Did you, you know, use it intravenously," and he said, "Yes." And then I said, like, you know, "Where did you get it from," kind of thing. And he said, "Oh, I just got it at the COSP. I didn't have to pay for it." I didn't ask him who gave it to him or anything like that because at the time ‑ anyway, sorry, yeah. Just I wanted sort of to find out where he was at, so yeah. Q. And was it the case that his disclosure to you of having used heroin raised significant risk concerns, as far as you were concerned? A. My concern was at that time more for his health and his well‑being. I didn't have concerns in terms ‑ I obviously it is a risk factor for him; it is an indicator that he is not coping. And but it ‑ so it is, you know, the whole range of warnings, if you like. But my main concern at that time was his health and well‑being."
15. Ms Kaye accompanied the defendant to see a medical practitioner that day, to whom the defendant disclosed intravenous use of "bupe" (buprenorphine) one to two weeks previously.
16. Although the time frame given by the defendant to Ms Kaye for use by him of heroin, and the time frame given to the doctor for use of "bupe" did not entirely correspond, and the substance referred to in each case was different, Ms Kaye assumed that the defendant was referring to a single instance, and did not further question him or make other inquiries to establish what drugs had been taken nor when such drugs had been taken. The following evidence was given: "Q. But you didn't question him on whether there were two separate uses? A. No, because he referred to only using one time, one use, one relapse, one, yeah. Q. Heroin once, yes? A. Yep. Q. And then a second reference to bupe, which you took to be the same use? A. Yep. I took to be the same use, yep. Q. And you believed Mr Anderson when he told you that he had used heroin slash buprenorphine? You accepted what he said was true? A. Yeah." (T21:20 - 32)
17. The question of what drugs the defendant used, how frequently and when is not resolved with any clarity on the evidence; there was a gap in the administration of urinalysis with no sample obtained on and from 6 May 2016 to 20 May 2016, and the defendant's self-reports are inconsistent and unreliable.
18. Ms Kaye had considered the defendant was "going along okay" (T22:23).

Consideration

1. The objects of the Act are set out at s 3. The Act provides for the extended supervision or continuing detention of (relevantly) high risk sex offenders so as to ensure the safety and protection of the community, and to encourage such individuals to undertake rehabilitation.
2. How best to meet the second of the stated objects of the Act relevant to the defendant is the most readily determined.
3. The overwhelming weight of the evidence points to a conclusion that the defendant's rehabilitation needs are better met by services available to him in the community, and he is more likely to engage with community based rehabilitative services than he is with custody based programs.
4. There is a real question as to whether any meaningful programs would in fact be available to the defendant in prison. The period of 8 months for which the State seeks to have a CDO in place is a relatively short period, and it is clear that assessment for and admission to available programs within a custodial setting does not happen quickly.
5. Such programs as are available are limited, and appear to be substantially confined to what is referred to as maintenance. There is presently no day leave available to prisoners for the purpose of attending an external counselling service, specifically the Forensic Psychology Service with which the defendant is presently involved, and so that option would be closed to him, at least for the next three or so months (Affidavit of Vincenzo Camporeale dated 28 June 2016).
6. Each of Drs Ellis, O'Dea and Furst were of the view that there was little or no benefit to the defendant from participation in services available in custody, with Dr O'Dea referring to the lack of evidence as to the efficacy of such services in any event.
7. By contrast, the defendant has access to a wide range of counselling and other therapeutic services in the community, including individual counselling with Forensic Psychology Services, and participation in NA meetings.
8. Additionally, the defendant has been offered part-time paid employment, and Dr Furst deposed that employment is an important means of encouraging and assisting an individual to achieve a crime-free lifestyle.
9. The weight of the evidence is that encouraging the defendant to undertake appropriate rehabilitation will occur only in the community.
10. The only advantage then to a continuing detention order is that of containment, a matter comprehended by the first of the objects of the Act, to ensure the safety and protection of the community.
11. The question of containment, in turn, requires consideration of risk management, and whether supervision is adequate.
12. When earlier considering this issue (in State of New South Wales v Anderson [2015] NSWSC 1970) I concluded that the risk posed by the defendant was such that an extended supervision order could not adequately supervise the defendant, and his continuing detention was therefore necessary.
13. One of the principal areas of concern militating in favour of that conclusion was the defendant's drug use, and his apparent unwillingness or inability to remain abstinent from illicit drug use.
14. There is a clear link between illicit drug use and the commission by the defendant of serious criminal offences. Thus drug use by him is a feature that significantly elevates the risk that he will again offend seriously against the criminal law, with the likely consequence the destruction of any future victim that attends that risk.
15. The risk of the defendant abusing drugs has in fact manifested, with the defendant using prohibited drugs at least twice in the period March to May 2016.
16. Referring to the use of buprenorphine by the defendant in custody in October 2015, at the very time this Court was considering whether to order his interim detention, the Court of Appeal in Anderson v State of New South Wales [2016] NSWCA 86 said (at [96]): "This is a matter of significant concern, given the association disclosed by Mr Anderson's history between his substance abuse and offending, with potentially disastrous consequences."
17. The Court went on to conclude that supervision was adequate nevertheless, because the October 2015 use was an isolated incident. At [97] the Court said: "However, on balance, a number of countervailing matters outweigh the concern engendered by Mr Anderson's use of drugs in October 2015. One is that, on the evidence before this Court, that was an isolated incident, which has not been repeated. Another is that Mr Anderson is well aware that the use (and for that matter merely the possession) of alcohol or illicit drugs is a contravention of the supervision order to which he will be subject, which is itself a serious crime and which, almost certainly, will result in his being returned to prison. In other words, the supervision order may be expected, of itself, to be a powerful motivating factor for Mr Anderson to comply with its conditions."
18. Regrettably, the likely deterrent effect and motivating power of the consequences of breaching a supervision order in fact seems to have had little or no effect on the defendant.
19. At a time when his appeal had been filed IN the Court of Appeal and was awaiting the determination of the Court, and when his liberty was at stake, the defendant used nine "points" of illicit buprenorphine. Plainly, the pending court proceeding did nothing to regulate the defendant's conduct.
20. Having been released to supervision pursuant to an ISO, and at a time when the defendant was well aware of both the prohibition on his use of illicit drugs, and the likely consequences to him of a breach of that prohibition, he again resorted to drug use, probably more than once.
21. The frequency with which he has used illegal drugs in the community cannot be determined, both because the defendant has proven to be capable of falsity in his self-reports of drug use, and because those charged with the defendant's supervision failed to ascertain the nature and extent of that drug use, despite the risks associated with drug use being well understood.
22. On becoming aware that the defendant had used "gear", the principal concern of the defendant's supervisors was the defendant's health and well-being. Steps were taken to obtain medical treatment for the defendant, but nothing was done to ascertain precisely what drug or drugs the defendant had used, how frequently, and in what circumstances. Nor were steps taken to alert the Court to the breach of its orders, or to initiate criminal proceedings for an offence pursuant to s 12 of the Act.
23. These lapses, both on the defendant's part and on the part of those supervising him, are a matter of great concern, and of direct relevance to the assessment of the adequacy of supervision.
24. The terms of the current ISO, and of the ESO already made in relation to the defendant, are stringent. The combination of electronic monitoring, regular meetings with supervisors, regulation of activities and associates, and engagement with therapeutic and other appropriate services, provides a level of oversight which ought to be capable of providing adequate supervision to the defendant in the community such that the risk to the community is mitigated. However, an order for supervision is heavily dependent upon the skill and diligence of those administering the order.
25. The efficacy of an ISO or ESO is commensurate with the capacity of those monitoring the defendant's compliance to provide proper and effective supervision. There will be a comprehensive failure by those charged with the defendant's supervision, and thus of an ISO or ESO, where those individuals fail to maintain objectivity and rigour in the discharge of their function. The principal function of supervision is to ensure compliance with the Court's orders, thereby ensuring the safety of the community.
26. There should be little scope for a breach of an ISO or ESO to be excused as an understandable hiccup, it being a criminal offence carrying a maximum sentence of 5 years imprisonment.
27. Here, the evidence is that the defendant breached the ISO by using an illicit drug on at least one occasion (if not more), and additionally by failing to be truthful with his supervisors, including Ms Kaye and a supervisor to whom the defendant reported when visiting family in May 2016, as required of him by condition 9 of the Order. That is a matter of some concern when considering the adequacy of supervision.
28. An additional concern relates to the resources available to the ESO team. If the statutory scheme put in place for the supervision of high risk offenders is to have any real utility the agencies implementing the scheme must be adequately resourced for the task.
29. For example, regular urinalysis of the defendant, a supervisory tool recognised as necessary for proper monitoring of him, must be more than merely aspirational, with actual achievement dependent upon staffing levels. Once such testing is undertaken, results need to be obtained quickly, and reviewed with equal speed. A lesser standard could be disastrous, and certainly fails to contain the risk posed to the community by this defendant.
30. These matters, being the defendant's criminal drug use, and the failure of the supervisory scheme to quickly detect it, suggest that adequate supervision cannot be provided to the defendant in the community, and that a CDO is necessary to protect the community.
31. The factors weighing against the imposition of a CDO are the defendant's otherwise positive response to supervised liberty, and his engagement with counsellors, family, and employment. To that must be added the question of the impact of a further period of detention upon the defendant's prospects of rehabilitation. The evidence establishes that rehabilitation will not be achieved or even advanced in custody; further, it suggests that another period of short term detention could seriously undermine it, with potentially dangerous results.
32. Although I have already addressed these matters in a general way, it is necessary to turn specifically to the s 17(4) considerations.
33. I have referred already to matters encompassed by s 17(4)(a) - (h1) when discussing the evidence of the defendant's offences and his criminal history; the risk and other assessments of him by relevant staff of Corrective Services, and details of proposed measures by that agency for his management in the community; the psychiatric assessments conducted of the defendant; and the defendant's encouraging level of engagement with counselling and other rehabilitative services. I have also set out the evidence as to his apparent breaches of the ISO to which he has been subject.
34. Section 17(4)(i) requires the Court to consider any other available information as to the likelihood that the defendant will commit an offence of a sexual nature in the future. I have referred to the available information.
35. In reality, the prediction that the legislation calls for is one which is impossible to make. The most that the Court can do is conclude that there is a risk of the commission of further serious sex offences by the defendant, probably more so in the medium to long term than in the immediate future, when the exigencies and ordinary disappointments of life begin to take their toll.
36. Section 17(4)(k) requires the Court to consider any alteration to the circumstances since the ISO was made, and I have referred to the defendant's positive engagement in the community, and also to his very troubling relapse into criminal conduct.
37. Having considered all of the evidence to determine what is a very finely balanced matter, I have concluded that the Court should not impose a CDO upon the defendant.
38. Particularly since encouraging rehabilitation is one of the objects of the Act the Court must consider the likely consequences of a further CDO on facilitating the defendant's rehabilitation. The evidence suggests that the defendant would gain nothing from further incarceration. To a degree, it also raises the prospect that his rehabilitation will be adversely affected by a return to custody.
39. Firstly, the defendant would be denied access to the community based services and support networks that appear to be of considerable benefit to him. Secondly, he would lose the opportunity to take up paid employment and the stable accommodation currently offered to him by Providential Homes, in circumstances where employment and accommodation are of considerable importance in achieving a positive and crime-free lifestyle. Thirdly, he would again be cut off from his family and without any family contact or support in custody.
40. Finally, it is possible that the defendant will be plunged into hopelessness and despair by a return to custody, losing all motivation to pursue rehabilitation. In the longer term, such an outcome could be disastrous to the safety of the community. An 8 month CDO can mitigate risk for its duration, but it can do nothing to address the risk that the defendant may pose to others if, on release, he is lost to despair.
41. Strict and objective supervision and monitoring, counselling, opioid replacement therapy, anti-depressant medication at a therapeutic level, stringent and frequent urinalysis, and access to employment, family and stable accommodation, should mitigate the risk posed by the defendant in both the short and longer term. In the longer term those strategies have a better capacity to encourage the defendant to lead a law-abiding lifestyle than does a potentially crushing second return to custody.
42. Since an ESO has already been made by the Court, there will be supervision of the defendant in the community. On the present evidence, I cannot be satisfied that it is adequate. However, that does not mandate an order for continuing detention: State of New South Wales v Donovan [2015] NSWCA 280, at [71].
43. The defendant has now been released to the community, returned to custody, and again released to the community, in a period of about six months. He has spent an anxious eight weeks waiting to know whether he might not yet be again imprisoned. Those circumstances give rise to the very real prospect that, if subjected to a short term CDO, the man released eight months hence would be lost to rehabilitation, and thus more dangerous to the community than he is presently assessed to be.
44. Although I have reservations as to the adequacy of the current supervisory regime, I am not persuaded that, in all of the circumstances, a CDO should be made.

ORDER 1. The State's application is dismissed.

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