State of New South Wales v Archer

The legislative scheme

1. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.
2. Section 5B of the Act provides that this Court may make an ESO 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. A "serious offence" is defined in s 4 of the Act as either a "serious sex offence" or "a serious violence offence". A "serious sex offence" is defined in s 5(1) of the Act and includes, relevantly, an offence against a child carrying a maximum penalty of 7 years imprisonment.
4. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s (2)(a)(ii) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature.
5. Thus, the statutory requirements for making an ESO are that the offender is a serious sexual offender as required by ss 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); and is still in custody or under supervision at the time the application is made. In addition, the court must 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: s 5B(d).
6. Section 6(1) of the Act provides that the application for an ESO may be made within nine months of the expiry of the defendant's current custody or supervision.
7. Section 7(3)-(5) of the Act provides for a preliminary hearing of an ESO application and is in these terms: (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. (Emphasis added.)
8. Section 10A of the Act provides that this Court may make an order for an ISO if it appears to the court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (Emphasis added.)
9. Thus, the statutory test to be applied at the preliminary hearing in order to make the ISO and order the appointment of court experts is that it must appear to the court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It has been held that the task of the court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983.
10. The court's power to make an ESO is discretionary. Section 9(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Subsections 9(2) and (3) of the Act provide a number of mandatory considerations to which the court must have regard in determining whether or not to make an ESO as follows: (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. (2A) (Repealed) (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: (a) (Repealed) (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.

The supporting documentation

1. At this preliminary stage, the court is required to take into account all of the supporting documentation and assume it would be proved at a final hearing. The supporting documentation was tendered in accordance with s 6(3) of the Act, which provides that an application such as this must be supported by specified documentation that addresses the matters to which s 9(3) of the Act refers and must include a "report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence".
2. The supporting documentation comprised two affidavits of David Yang, the solicitor with carriage of the matter at the Crown Solicitor's Office, affirmed on 17 June 2024 (with Exhibit "DY-1") and 26 August 2024 (with annexures), a Risk Assessment Report ("RAR") prepared by Samuel Ardasinski, forensic psychologist, dated 8 April 2024, a Risk Management Report ("RMR") prepared by Mick Glover, senior community corrections officer, dated 2 May 2024, a joint statement of agreed facts dated 14 August 2024, and the affidavit of Samuel Ardasinski sworn on 30 August 2024.
3. Exhibit "DY-1" to the affidavit of 17 June 2024 included Mr Acher's criminal and custodial history and further copies of the RAR and the RMR. With respect to the index offences it included court attendance notices, a statement of agreed facts, and the Remarks on Sentence by Gartelmann SC DCJ on 29 April 2021. With respect to other offences of a sexual nature it included court attendance notices, facts, a letter from the defendant to the court, the Remarks on Sentence of Yehia SC DCJ on 9 April 2020, and a breach of parole report. With respect to other offences of a non-sexual nature it included court attendance notices, police facts and a pre-sentence report. The exhibit also included reports from forensic psychologists Jason Borkowski and Laura Durkin dated 1 April 2020 and 8 April 2020 respectively, Justice Health and High Intensity Sex Offender Program ("HISOP") progress notes from 2020, 2023 and 2024, parole documents that included the defendant's refusal of parole dated 20 June 2023 and an anniversary pre-release report dated 8 February 2024. The exhibit included documents from Corrective Services NSW: sexual thoughts logs from 10 April 2015 to 20 February 2024, a STATIC-99R report, two inmate misconduct reports dated 11 August 2022 and 4 December 2022, "My Life Story Documents", a HISOP suspension summary and suspension taskwork, and OIMS (Offender Integrated Management System) case notes for the period 3 May 2018 to 14 May 2024.
4. Annexures to Mr Yang's affidavit of 26 August 2024 included OIMS case notes between 5 and 28 June 2024 (annexure A), a HISOP discharge summary dated 5 June 2024, progress notes from 3 June 2022 to 17 August 2022 (annexures B and C), and a supplementary RAR from Mr Ardasinski dated 23 August 2024 (annexure D). At the hearing, the defendant tendered OIMS notes from 22 February 2024 to 27 August 2024 (Exhibit 1).
5. Included in the two folders of supporting documentation was a joint statement of agreed facts filed pursuant to Practice Note SC CL 12. Given the absence of any contest between the parties as to the making of the preliminary orders, I propose to largely confine my consideration to the agreed facts and the RAR, the contents of which I will address under headings corresponding with the s 9 mandatory considerations. Before addressing those factors, I will briefly set out some background material.

The defendant's background

1. The joint statement of agreed facts sets out Mr Acher's profoundly deprived background in the following terms (footnotes omitted):
2. As a child, the defendant's basic care needs were often not met by his guardians. He was born addicted to heroin. He describes his mother as a "hostile and aggressive person" and recalls her being addicted to alcohol, using methamphetamine, being convicted of fraud-related offences and having a number of dysfunctional relationships during his youth. The defendant reports that one of his mother's partners physically and sexually abused him and stabbed his mother six times. He states the sexual abuse occurred between the ages of five to ten years old and extended to the defendant being forced into sexual acts with other children. His mother refused to believe he had been sexually abused.
3. His last contact with his mother occurred in 2019. His eldest brother is deceased, and another brother is in custody. As a child, he was exposed to a report on the death of his brother, which included photographs.
4. Due to moving schools frequently, because his mother had a gambling problem and accumulated debts, the defendant found it difficult to form and maintain stable friendships and was the target of bullying. He also reports having learning difficulties and struggling in school and being sanctioned for being disruptive. He has not maintained any pro-social friendships into adulthood. He ceased schooling in Year 9, when he was expelled.
5. The defendant commenced using cannabis and amphetamines covertly obtained from his mother's supply at around 12 years of age, and by 17 years of age used up to two grams of methamphetamine daily. He also engaged in binge drinking of alcohol and experimented with heroin, LSD and MDMA.
6. The defendant was diagnosed with ADHD in his youth but ceased taking medication at approximately 16 years old. He was diagnosed with drug-induced psychosis and prescribed antipsychotic medication in 2017. The defendant self-reported also suffering from a "suspected stroke" in approximately 2017 when he collapsed and fell through a wall, and said that he had been knocked unconscious more than 15 times before he was 18 and a further three to four times as an adult. In 2015, the defendant attempted to commit suicide by hanging following a relationship breakdown and was prescribed antidepressants by his doctor.
7. The defendant moved to Western Australia at 17 years of age. He maintained employment and purchased a home during this period. However, he returned to drug use and did not maintain this stability for long.
8. The defendant identifies as bisexual. His first romantic relationship commenced in his early twenties and lasted for approximately two years. He has a daughter from that relationship, now aged 14, whom he has never met. The defendant entered another relationship shortly thereafter, which he described as "tumultuous" due to alcohol and substance abuse. He has a ten-year-old daughter and a nine-year-old son from that relationship, both of whom were put into care.

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. Although the defendant has a criminal history that commenced in 2010, his criminal history relating to child abuse material only commenced in 2018.
2. In 2011, he was convicted for break, enter and steal and one count of destroy or damage property. In 2015, 2016, and 2017, he was convicted on three separate occasions for the possession of prohibited drugs including cannabis, ecstasy, and methamphetamine, and fined.
3. On 17 February 2018, the defendant was arrested for offences including an aggravated break and enter in company, stealing a motor vehicle, police pursuit and driving recklessly. At the time of arrest, his phone was seized and found to contain child abuse material in the form of photographs and videos.
4. On 24 April 2019, a search warrant was conducted at the defendant's home and further child abuse material was located on the defendant's mobile phone. As stated above, he was sentenced on 9 April 2020 to an aggregate term of 2 years and 6 months for two counts of possess child abuse material contrary to s 91H(2) of the Crimes Act.
5. Two days after the defendant was released on parole on 18 June 2020, he downloaded Dropbox onto his new phone and accessed his account. On 23 June 2020, police found large amounts of child abuse material on the defendant's Dropbox account including photographs of the defendant indecently assaulting a child (the index offence).

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

1. When sentencing the defendant for the 2018 possession offences, Judge Yehia SC (as her Honour then was) found the offending to fall below the mid-range of objective seriousness but not at the low end of that range, given the quantity of images and the young ages of the children depicted. Her Honour was guarded about the defendant's prospects of rehabilitation particularly given his lack of insight into the offending, and concluded he would require "an extended period on parole to receive counselling and treatment to address the underlying issues giving rise to this particular offending conduct."
2. When sentencing the defendant on 29 April 2021, Judge Gartelmann SC observed that the "access" offence was moderately below the mid-range of objective seriousness; the "transmit" offence was in the mid-range; the "produce" offence was moderately below the mid-range; and the indecent assault was in the higher range of offending. His Honour considered that the defendant's record, limited familial support, and the brief period that elapsed in the community before the defendant committed further offences meant his prospects of rehabilitation could not be said to be good, nor could his likelihood of re-offending be said to be low. However, his Honour noted that prolonged supervision in the community on his release could promote his prospects of rehabilitation.

The expert evidence: ss 9(3)(b), 9(3)

1. The defendant has undergone numerous psychological assessments since 2020. There has been no significant change in diagnosis since previous reports. In those circumstances, I propose to focus on the RAR.
2. Mr Sam Ardasinski, a senior psychologist, prepared a RAR in April 2024 for these proceedings. He interviewed the defendant for one hour on 3 April 2024. The defendant presented as polite and respectful, cooperated with the interview and appeared to be a reliable historian. He presented no evidence of a thought disorder or other serious mental illness. He was articulate with no significant cognitive deficits noted.
3. Mr Ardasinski reported that the defendant meets the DSM-5 diagnostic criteria for "pedophilic disorder - non-exclusive type - sexually attracted to females." The defendant was also assessed as meeting the DSM-5 criteria for polysubstance use disorder and stimulant-induced psychotic disorder and/or bipolar related disorder.
4. Mr Ardasinski observed that the defendant's acceptance of responsibility has increased over the years. In 2020, he told his assessing psychologist that he did not have an attraction to children. In 2021, he told his assessing psychologist that he had "long experienced" sexual fantasies about pre-pubertal children. The offender has also made disclosures to Justice Health, participated in HISOP, and was open about his "problematic deviant sexuality" in his interview with Mr Ardasinski.
5. Mr Ardasinski opined that the defendant fell within the high risk category for sexual offending. Whilst he noted that the most likely scenario for further offending was possession of child abuse material online, Mr Ardasinski noted that given the intensity of the defendant's professed deviant sexual fantasies and his difficulty working through his avoidance coping in treatment, it remains possible that the defendant could progress to more extreme or "involved" offending if the opportunity presented itself.
6. Mr Ardasinski noted that a serious sex offence may be entirely foreseeable in a scenario where the defendant returned to drug use during a period of poor coping, engaged with other like-minded individuals online who might encourage or advance his fantasies and was alone or inadequately supervised with a female child. Other expert reports identified a trend whereby the defendant's offending was precipitated by a spike in stress or a decline in mood, combined with a resort to substance abuse or association with anti-social influences.

Previous level of compliance with supervision orders: ss 9(3)(e2), 9(3)(f), 9(3)(g)

1. The defendant was found in possession of child abuse material only five days after his release from custody in 2020.
2. On at least three occasions, the defendant has failed to appear whilst on bail, resulting in warrants being issued for his arrest. In 2011, he failed to complete a Community Service Order.
3. Whilst in custody in 2022, the defendant was caught with an improvised tattoo gun and a notebook containing sexual questions (with replies) of raping children and other sexual responses towards minors.
4. The defendant also received a number of infractions in custody for preparing and manufacturing alcohol, creating and possessing prohibited goods, stealing, refusing to give drug samples and damaging and destroying property.
5. On 1 May 2024, the defendant was provided with his Adverse Comments letter from the Commonwealth Parole Unit, dated 30 April 2024. He declined to take a copy with him stating that he "did not intent to lodge a reply to the Federal AG and would do the remainder of his sentence in custody".

Statistical testing: s 9(3)(d)

1. The defendant has undergone several actuarial tests to assess his risk of re-offending. The most recent tests administered to him for the purpose of the RAR are as follows: 1. Static Risk Factors (Actuarial Assessment - Sex Offending) - Static-200R. The defendant was in the "well above average" risk category. 94.7% of sexual offenders within a routine sample would receive a score below what he received. Rates of sexual recidivism for offenders with his score were estimated to be five times higher than the "typical sexual offender". 2. Dynamic Risk Factors (Actuarial Assessment) - Sexual Offending - Stable-2007. The defendant was assessed as having a score of 16. His Stable-2007 score was combined with his earlier Static-99R score of 6 which generated a composite risk/needs level in the "well above average" risk level. 3. Static Risk Factors (Actuarial Assessment - Violent Offending). The defendant scored higher than 92% of those in the construction sample and accordingly fell in the high risk category. 76% of violent offenders in this category re-offended violently within five years at risk and 87% re-offended violently within 12 years at risk. 4. Dynamic Risk Factors (Structured Professional Judgement - Sexually Violent Offending) - RSVP. The defendant fell in the "elevated/high risk" risk category for repeat sexual violence.

Treatment and rehabilitation programs/available courses: ss 9(3)(e), 9(3)(e1)

1. The defendant has participated in the EQUIPS (Explore Question Understand Investigate Practice Succeed) foundation, EQUIPS Addiction and RUSH programs. He also participated in HISOP but did not complete it because of two institutional convictions which led to a regression in his classification. He recommenced the program in September 2023 but was suspended again in March 2024. He will not complete the program before his sentence expires on September 2024.
2. Throughout treatment in HISOP, the defendant expressed an ongoing preference for a sexual relationship with a child over an adult. In February 2024, in completing the "Sexual Thoughts, Feelings, Fantasies and Activities Log" he described an arousal level of 6-8 out of 10 on twelve occasions between November 2023 and February 2024 in relation to seeing children on TV.
3. Mr Ardasinski noted that whilst HISOP was not available in the community, the defendant could be referred for individual risk management intervention or group-based maintenance at Forensic Psychology Services. Another option would be an application by police for a Child Protection Prohibition Order, though Mr Ardasinski opined that such an order would be inadequate to manage the level of risk he perceived to be posed by the defendant.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community s 9(3)(d1)

1. Mr Glover, a Senior Community Corrections Officer, prepared a RMR dated 2 May 2024. After noting that the defendant had only spent a total of approximately six weeks in the community since February 2018, he went on to observe that on both occasions where he was released from custody on parole, he was re-arrested for further offending shortly after.
2. A number of risk management strategies were proposed in the RMR: the imposition of electronic monitoring with a provision for exclusion zones around child-related facilities, accommodation-related conditions, conditions prohibiting the possession or use of alcohol, conditions allowing appropriate oversight over his use of electronic devices and a condition requiring engagement in psychological intervention.
3. The RMR author considered that the proposed risk management plan is necessary to manage the defendant's ongoing risk to the community and to assist him in maintaining an offence free, pro-social life.
4. It is intended that the defendant will reside in a Corrective Services NSW residential facility on release, and he has indicated his willingness to engage in psychological intervention with forensic psychological services and in drug and alcohol counselling in the community. He has recently commenced an opioid treatment program.

Other information available: s 9(3)(i)

1. At the hearing, the offender tendered a bundle of OIMS notes from 2024, without objection. These notes were said to contextualise other information already before the court.
2. Specifically, the defendant submitted that the OIMS notes from 5 and 10 April 2024 contextualised the offender's failure to supply a urine sample, which constituted a custodial infringement. The offender told staff that he had just commenced the Buvidal injection program and was unable to keep water down, and this was his reason for not providing the sample. He was informed that this was a breach of his Behavioural Management Contract and pleaded guilty. It was this breach that resulted in his regression in classification and his inability to complete HISOP.
3. The defendant also relied on the OIMS note from 22 April 2024 wherein the defendant expressed his intention to remain on the Buvidal program following his release. He also noted that he had given "anti-libidinals" some thought in relation to how he might manage his sexual self-regulation. It was submitted that, notwithstanding that neither of these matters were before the court in this hearing, these notes demonstrated his willingness to participate in rehabilitation, which is of relevance to this assessment.
4. An OIMS note from 1 May 2024 contained the defendant's statement that he did not intend to lodge a reply in relation to his Adverse Comments letter, which he also declined to take with him to his cell due to the sensitivity of the information it contained. A note from 8 August 2024 detailed the offender's involvement in an incident whereby he sustained a black eye and a cut to his lower lip. It was submitted that this incident came about as a result of the nature of his offending becoming known amongst other inmates. The applicant submitted that electronic monitoring would alert individuals in the community to the nature of his offending and render him vulnerable.
5. Other OIMS notes detailed his involvement in employment and education programs whilst in custody, his suspension from the HISOP program and notes on his interview with psychologists and other staff for the purpose of risk management reports and assessments.

Consideration

1. The first statutory requirement for the making of an ESO is that the offender is a serious sexual offender. He was convicted of a "serious sex offence" as defined in s 5(1)(a)(i) of the Act because he was convicted of the indecent assault of a child which is punishable by imprisonment for 7 years or more.
2. The second statutory requirement for the making of an ESO is that the defendant is a supervised offender (within the meaning of s 5I of the Act). Given that he is currently serving the balance of his parole, I am satisfied of this requirement as well.
3. The third statutory requirement for the making of an ESO is that the defendant was under supervision at the time the application was made. The application was commenced within the last nine months of the defendant's current sentence as required by s 6 of the Act.
4. The fourth and final statutory requirement is that the court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d). Although the defendant did not dispute that this statutory test was met (for the purposes of the preliminary hearing), it remains a matter for the court to be satisfied of.
5. The phrase "unacceptable risk" is not defined in the Act, although s 5D provides: For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
6. The test of being satisfied to a "high degree of probability" in this context is a standard of proof higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the test is a high one, it is important to note that the court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an "unacceptable risk" of committing a serious sex offence: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].
7. The phrase "unacceptable risk" is not defined in the Act but has received judicial consideration. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an "unacceptable risk" is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase "unacceptable risk" is to be given its everyday meaning within its context and having regard to the objects of the Act. The evaluation is "directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]).
8. The following meaning of "unacceptable risk" has been adopted in numerous cases: In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43], Harrison J observed the following: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
9. I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In particular, I have had regard to the fact that the defendant suffers from a paedophilic disorder and an illicit drug addiction. He has expressed a preference for engaging in sexual acts with a child. He was unable to complete the HISOP programme because of the commission of institutional infractions, which included the possession of further child abuse-related material. He admitted to still being intensely aroused by children who simply have appeared on television. When he is "stressed out" he acts on that arousal by masturbating (to thoughts of children).
10. The defendant continues to be assessed as presenting a high level of risk of future sexual offending and he has not had the benefit of any period in the community to assist in his rehabilitation while subject to supervision.
11. In arriving at my conclusion that the statutory prerequisites for an ESO are satisfied, I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and to the s 9(3) factors summarised above.

Conditions of the ISO

1. In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
2. As Beech-Jones J (as his Honour then was) observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]: "In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender … to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender."
3. Whilst the defendant initially disputed a number of conditions, at the hearing the only condition in dispute related to electronic monitoring.

Electronic monitoring

1. The State sought a condition that the defendant be electronically monitored.
2. The defendant objected to an electronic monitoring condition for a number of reasons. The primary objection was that the condition is punitive and does nothing to mitigate the defendant's risk of assaulting a child in his care or of accessing child abuse material (which is a risk factor). It was noted that his only previous sexual assault of a child was one in his care so his risk of offending would be largely in the domestic setting which would not be detected by electronic monitoring.
3. At the hearing, it was submitted that in the absence of a background of impulsive offending there is no realistic apprehension of contact offending that electronic monitoring would prevent. This is because such monitoring only provides geographical information and does not record the people in the vicinity of the offender.
4. It was further submitted by the defendant what was actually sought by the condition was assistance in monitoring compliance with the scheduling condition which itself is directed towards the rehabilitative aim of assisting the offender with constructing a more organised life, rather than protection of the community.
5. Another objection to electronic monitoring was based on a fear expressed by the defendant that electronic morning would identify him as a sexual offender within the community. It was accepted that the OIMS notes included an indication by the defendant that he did wish to be subjected to electronic monitoring to "ensure he is doing the right thing and not going places he isn't supposed to". It was submitted that the defendant did not fully apprehend what would be involved and does not want to wear any visible monitoring device.
6. The plaintiff maintained that electronic monitoring is appropriate in the defendant's case for a number of reasons.
7. First, the defendant has been diagnosed with paedophilia, has been assessed as being at a high risk of further sexual offending and has "outstanding treatment needs which are highly relevant to his risk profile". Although it was accepted on behalf of the State that electronic monitoring is intrusive, the importance of monitoring paedophiles such as the defendant to ensure they do not frequent areas likely to be attended by young children is well accepted. The paramount consideration of the court is the safety of the community.
8. Secondly, Mr Ardasinski noted the defendant's impulsivity and the fact that his previous serious offending was apparently opportunistic. He further opined that the defendant's risk for further serious sex offending may crystallise where, inter alia, the "opportunity presented itself" if the defendant was "left alone or inadequately supervised with a female child which met his fantasy profile". It was submitted that electronic monitoring would reduce such opportunities by monitoring the defendant's whereabouts. It would also act as a deterrent or "psychological stop" to further serious offending.
9. Thirdly, the defendant was found in possession of child abuse material within three days of being released to parole on the last occasion in June 2020. Not only is the possession of such material itself a risk factor for further serious sex offending, but he has also not had the benefit of a period on parole in respect of the Index offending. It was submitted that in the absence of any demonstrated period of stability in the community his movements should be monitored upon release.
10. Fourthly, it was submitted that in light of the risk presented by the defendant and his particular risk factors, he should be subject to the scheduling conditions. He has been assessed as being impulsive and with poor decision-making skills, poor problem-solving skills and at times a "striking and careless indifference" for the consequences of his actions. It was submitted that being required to plan his time in advance and commit to a set of activities will limit the scope for impulsive actions and poor decision-making that is likely to elevate his risk to the community, together with assisting in his rehabilitation.
11. Finally, it was noted that the State only seeks "dry" scheduling. That means that the scheduling obligations are less onerous because the defendant is not required to provide specific times for each activity. This less onerous regime should minimise the chance of a technical breach.

Decision re electronic monitoring

1. I have considered these submissions. I do not accept that the only risk that the defendant poses is if he was to be left alone with a small child or baby. He has continually expressed an interest in very young girls aged four and up who may be located in parks and other public areas. His risk assessment was not based solely on his prior indecent assault offence but on all of the factors I have already referred to. It is to be presumed that he would have been subjected to electronic monitoring by order of statute had he been granted parole, but he did not receive the benefit of that order.
2. Of particular significance is the fact that the defendant has not yet had the opportunity to show that he can manage his impulsivity on his own.
3. I propose to impose electronic monitoring as a condition of the interim ISO. The ISO can only be in place for a maximum of 90 days. The final hearing will take place in that 90-day period. If the defendant can show in that limited period that he can manage his impulsivity and is able to comply with his ISO, then the judge who is required to consider whether the defendant should be placed on an ESO for two years will take that into account. At this preliminary stage, it is appropriate that the condition be imposed.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), the defendant is to be subject to an interim supervision order. 2. Pursuant to s 10C(1) of the Act, the interim supervision order is to be for a period of 28 days commencing on 22 September 2024 and expiring on 19 October 2024. 3. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to these orders for the duration of the order. 4. Pursuant to s 7(4) of the Act: 1. Two qualified psychiatrists or a qualified psychiatrist and a registered psychologist or two registered psychologists are appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; and 2. The defendant is directed to attend those examinations. 1. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

State of NSW v Archer.Schedule of Conditions (139313, pdf) 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: 12 September 2024