State of New South Wales v Archer

The legislative scheme

1. The Act provides a statutory scheme outlining the legal test for the imposition of interim and final supervision orders. In my earlier judgment in the State of New South Wales v Archer (Preliminary) [2024] NSWSC 1149, I outlined the relevant legislative scheme at [12]-[21] and I repeat that summary, as relevant, below.
2. 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.
3. 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.
4. 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 at least 7 years imprisonment.
5. 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 5I(2) 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.
6. 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).
7. On 29 April 2021, Mr Archer was sentenced to an effective term of imprisonment of 3 years and 9 months commencing on 23 December 2020 and expiring on 22 September 2024 with an effective non-parole period of 2 years and 6 months expiring on 22 June 2023 for using a carriage service to access child abuse material contrary to s 474.22(1)(a)(i) of the Criminal Code 1995 (Cth); using a carriage service to transmit child abuse material contrary to s 474.22(1)(a)(iii) of the Criminal Code (with a further offence taken into account on Form 1); producing child abuse material contrary to s 91H(2) of the Crimes Act; and indecent assault of a child under 16 years of age (namely a one-year-old child) contrary to s 61M(2) of the Crimes Act ("the index offences").
8. It is not in dispute that the defendant satisfies s 5B: he is an "offender", as defined in s 4A, who was convicted of a "serious sex offence", as defined in s 5(1)(a)(i), because he was convicted of the indecent assault of a child which is punishable by imprisonment for 7 years or more. Mr Archer is also currently under supervision pursuant to orders I made in the preliminary hearing, such that there is no issue that he is a "supervised offender" under s 5I(2)(b) of the Act. Accordingly, this final hearing turns on whether I am 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) of the Act.
9. 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 final hearing

1. At the final hearing, the State relied on the following supporting material: 1. Affidavit of David Yang affirmed on 17 June 2024 with material exhibited in Exhibit "DY-1" (Exhibit A). This material was before me at the preliminary hearing and the exhibited material was summarised in my first decision at [24]; 2. Affidavit of David Yang affirmed on 26 August 2024 with annexures. This material was also before me at the preliminary hearing and was summarised in my first decision at [25]; 3. Affidavit of David Yang affirmed on 11 November 2024. Annexures to Mr Yang's affidavit included Offender Integrated Management System ("OIMS") notes for the period 16 September 2024 to 5 November 2024 (Annexure A) and a Forensic Psychology Services Pre-Group Interview dated 11 October 2024 (Annexure B); 4. Affidavit of Samuel Ardasinski sworn on 30 August 2024 in which Mr Ardasinski provided answers to the question posed by the defendant as to the effectiveness of electronic monitoring, annexing two copies of relevant papers; 5. Affidavit of Yan Lun Loh sworn on 21 November 2024 deposing that Mr Archer had pending charges in relation to breaches of his ISO, in respect of which he was bail refused on 20 November 2024. Annexed to Ms Loh's affidavit were a Court Attendance Notice (Annexure A) and a print-out from JusticeLink dated 20 November 2024 showing the outcome of Mr Archer's mention (Annexure B); 6. Joint Statement of Agreed Facts (Exhibit B); 7. Report of Dr Satish Dayalan, psychiatrist, dated 1 November 2024 (Exhibit C); and 8. Report of Ivanka Manoski, psychologist, dated 1 November 2024 (Exhibit D).
2. Mr Archer relied on the affidavit of Joseph Harding affirmed 2 September 2024.
3. I have had regard to this material. I have already considered most of it for the purposes of the preliminary application. In addressing the mandatory considerations in s 9(3) of the Act, I propose to extract the relevant summaries from my first decision where appropriate and add the additional material provided to the court since that decision. The most significant additional material is to be found in the reports of the court appointed experts.

The defendant's background

1. Mr Acher's profoundly deprived background was summarised in the Joint Statement of Agreed Facts. I summarised that material at [28]-[34] of my first decision as follows: "[28] 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. [29] 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. [30] 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. [31] 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. [32] 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. [33] 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. [34] 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."
2. The most significant additional material relevant to this factor put before me at the final hearing pertained to Mr Archer's description of his current relationship. Mr Archer reported in his clinical interviews with Ms Manoski and Dr Dayalan that he is currently in a relationship with a woman he met whilst in custody. They were introduced by another inmate and have been corresponding for the last 12 months. They have never met in person though they speak daily. His partner is currently in a rehabilitation facility due to difficulties with substance abuse. She is 42 years-of-age and has a 22-year-old daughter. Mr Archer informed Dr Dayalan that this woman was a support person for him.

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

1. I summarised Mr Archer's criminal history at [35]-[39] of my first decision as follows: "[35] Although the defendant has a criminal history that commenced in 2010, his criminal history relating to child abuse material only commenced in 2018. [36] 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. [37] 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. [38] 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. [39] 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)."
2. No significant additional material relevant to this factor was put before me at the final hearing. As stated above, although Mr Archer has recently been arrested for breaches of his ISO, those allegations remain unproven at this stage.

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

1. I summarised the material relevant to this consideration at [40]-[41] of my first decision as follows: 1. "[40] 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. [41] 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."
2. No significant additional material relevant to this factor was put before me at the final hearing.

The expert evidence: s 9(3)(c)

1. I summarised the expert evidence, including the Risk Assessment Report ("RAR") at [42]-[47] of my first decision as follows: "[42] 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. [43] 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. [44] 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. [45] 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. [46] 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. [47] 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."
2. The additional material relevant to this factor is to be found in the court appointed expert reports, which I have summarised below.

The expert evidence from the court appointed experts: ss 9(3)(b)

1. I have had regard to the expert reports provided by Ms Manoski and Dr Dayalan. Summaries of those reports were included in the Joint Statement of Agreed Facts, and I extract those summaries as relevant below.

Dr Dayalan

1. Dr Dayalan noted that Mr Archer participated satisfactorily in the assessment. He was polite and answered all questions that were posed. He opined that Mr Archer's childhood adversely impacted on his psychological constitution and he exhibits maladaptive strategies to cope with stress and has difficulties regulating his emotions and behaviour.
2. Whilst Dr Dayalan was unable to confirm a diagnosis of complex Post Traumatic Stress Disorder (PTSD), he noted that Mr Archer presents with several features associated with the condition as well as traits consistent with a diagnosis of antisocial personality disorder. Dr Dayalan also diagnosed Mr Archer with paedophilia of the non-exclusive type.
3. Dr Dayalan opined that Mr Archer suffers from substance use disorder relating to alcohol, cannabis, opioids, and stimulants, and noted that his personality vulnerabilities and limited pro-social supports mean that he remains at high risk of relapse into substance use in the future. It was noted that Mr Archer was exposed to opiates whilst in utero, and that he grew up in a household with extensive substance use.
4. Mr Archer informed Dr Dayalan that though he had initially agreed to trial anti-libidinal medication, he has subsequently learnt about potential adverse side effects such as gynaecomastia (enlargement of male breast), "brittle bone disease" and cancer and is no longer willing to trial the medication.
5. Dr Dayalan assessed Mr Archer's risk of sexual re-offending using the Static-99R instrument which placed him at a well above average risk level. This indicates that Mr Archer's risk of sexual offending in the next five years lies between 21.5 and 30.3%.
6. Dr Dayalan assessed Mr Archer's dynamic risk factors using the STABLE-2007 structured professional judgment instrument and determined that he has high risk needs. He identified the following dynamic risk factors using that instrument: problems with social influences, problems with capacity for relationship stability, lack of concern for others, impulsive acts, poor cognitive problem-solving skills, increased sex drive, deviant sexual interests, and problems with co-operation with supervision. It was noted that there have been inconsistent findings in studies examining the predictive validity of STABLE-2007, and that this instrument is of greater utility in identifying areas of need for intervention than predicting risk.
7. To manage Mr Archer's risks of re-offending and noting that the index offence occurred in the context of him abusing substances, Dr Dayalan recommended that Mr Archer continue his treatment with the Buvidal injection and also engage in rehabilitation programs such as AA and NA meetings. Dr Dayalan recommended the continuation of sex offender treatment with a psychologist in the community.
8. It is also recommended that Mr Archer engages in psychological interventions to manage antisocial personality disorder such as Dialectical Behaviour Therapy (DBT) and Mentalisation Based Therapy (MBT). Dr Dayalan further noted that any worsening in his anxiety and depressive symptoms would warrant treatment with antidepressant medication such as selective serotonin reuptake inhibitors (SSRI).
9. In Dr Dayalan's opinion, Mr Archer "does pose a risk of committing a further serious sex offence". The level of risk posed will vary depending upon his circumstances and the status of the dynamic risk variables. The level of risk of Mr Archer committing a serious sex offence will escalate if he relapses into substance use, disengages from treatment, associates with antisocial peers, experiences a lack of supervision or monitoring, or experiences psychosocial stressors.
10. Dr Dayalan opined that the risk of Mr Archer committing a serious sex offence is "unlikely to be managed in the community without any order imposed".
11. It was noted that Mr Archer's pattern of sexual offending does not indicate any risk of sexual harm to adults that visit him or reside in places he visits. However, it was recommended that Mr Archer not be permitted to visit residences with children or have children visit his accommodation, even if accompanied.
12. Dr Dayalan considered that the restrictions on association with children and access to internet/other electronic communication, search and seizure and access to pornographic, violent and classified material were appropriate in managing Mr Archer.
13. Dr Dayalan recommended an ESO of 2 years to allow for continued engagement in interventions to address Mr Archer's ongoing risk needs and also to allow for a graded reduction in the level of restrictions to facilitate a safe transition into the community.

Ms Manoski

1. Ms Manoski interviewed Mr Archer for three hours without a break. She noted that he smiled often but was serious when discussing difficult topics. His affect was appropriate and reactive. He spoke slowly but she observed no difficulties with his verbal expression or understanding. She observed a level of impression management in that he attempted to portray himself in a more positive light, however she noted that he presented as having reasonable insight into his difficulties and his current situation.
2. Ms Manoski diagnosed Mr Archer with stimulant use disorder and alcohol use disorder, all in early remission, and cannabis use disorder in sustained remission. Ms Manoski noted that he "has had a lengthy history of problematic substance use that has impacted all aspects of his life" and is an ongoing difficulty and a risk factor for him. Ms Manoski reported that Mr Archer denied any alcohol or substance use since his release, mostly attributed to the Buvidal program that he currently attends at Langdon Centre. Ms Manoski opined that remaining on the Buvidal program, attending AA and/or NA meetings and potentially attending drug and alcohol counselling, along with random drug/alcohol testing may assist him to maintain sobriety. A residential rehabilitation facility may need to be considered should he return to substance use whilst in the community.
3. Ms Manoski noted that Mr Archer has had difficulties in developing relationships and friendships with others that have emotional depth and closeness. Further, many of his relationships with others are based on antisociality, substance use, and communicating around their shared common deviant sexual interests. Ms Manoski opined that Mr Archer continues to struggle with relationships because of his tendency to be submissive and engage in people-pleasing behaviour to maintain friendships. However, Ms Manoski opined that with intensive support, intervention, and practice, he may be able to learn better ways to manage his relationships.
4. Ms Manoski expressed concerns that Mr Archer's current partner may not challenge him in the future around sexual offending or report any concerns she holds about his behaviour. If his partner was to relapse into substance use, this also presents a significant risk factor for him given his history of substance use. Ms Manoski observed that Mr Archer was unable to recognise the risks of having a relationship with someone with a criminal and substance abuse history.
5. Ms Manoski diagnosed Mr Archer with paedophilic disorder, nonexclusive type, sexually attracted to females. Ms Manoski noted that there are three significant risk factors for Mr Archer's future re-offending, being: sexual preoccupation and/or a high sex drive, the use of sex to cope, and sexually deviant interests. Ms Manoski noted that the most meaningful change for him has been the Buvidal program which has reduced his libido significantly. However, he acknowledged to her that he had continued to experience sexually deviant thoughts following his release into the community. It was noted that Mr Archer appeared to be relatively open about his deviant sexual thoughts and, from the High Intensity Sex Offender Program ("HISOP") treatment notes, it is evident that he was open to receiving assistance in this domain and attempted to reduce those thoughts.
6. Ms Manoski also diagnosed Mr Archer with PTSD which she opined was a result of his numerous experiences of abuse and neglect as a child which significantly impacted his functioning. It was noted that he had not had any treatment for his mental health or to address his childhood trauma. It was also noted that he had participated in the RUSH program within custody, which is based on dialectical behaviour therapy, and there had been "limited gain in this regard as Mr Archer appears to struggle with internalising skills and using them on a more consistent basis". One difficulty Mr Archer has recognised is help seeking and relying on others for assistance which he has attempted to be more proactive with.
7. Overall, Ms Manoski opined that Mr Archer has a high risk of future sexual and general offending. She considered that the most likely future offending will be accessing child abuse material. However, she opined that the commission of a contact offence against a child cannot be excluded, particularly if he is left unsupervised. She identified the most likely precipitants of offending behaviour to include instances where he is not coping well, experiencing poor mental health and high levels of stress, or feeling lonely and disconnected from others, as these circumstances tend to increase his sexually deviant urges and his cognitive distortions.
8. Ms Manoski noted that the risk factors related to sexual offending have not been sufficiently addressed at this stage as Mr Archer was unable to complete the HISOP program. Despite his participation, he also continues to have difficulties with internalising learnt coping skills without reliance on sexual behaviours or substance abuse. Mr Archer's deviant sexual interests are currently managed due to the Buvidal program, however Ms Manoski opined that he needs to demonstrate ongoing change over a lengthy period of time (usually 2 years) given he has engrained patterns of behaviour and coping. Ms Manoski recommended that he address his offending through Forensic Psychology Services, complete the HISOP treatment that he commenced in custody, and continue his involvement with the Langton Clinic to manage his substance use.
9. Ms Manoski opined that Mr Archer poses a risk of committing a further serious sex offence. She recommended an ESO for two to three years. She further opined that Mr Archer requires "stringent conditions" to reduce the risk of reoffending. Ms Manoski supports the conditions in Part A. In relation to scheduling, she noted that the conditions will allow Mr Archer to "develop structure and routine and be better organised", which is something he has struggled with in the past. She considered that this is an "an external strategy to assist him in monitoring his own behaviour and managing potential risk as he generally wants to be compliant but has historically struggled with this". She noted that Mr Archer found scheduling to be useful since coming out of custody.
10. Ms Manoski opined that the conditions in Part B were appropriate and that it was important that Mr Archer does not reside in accommodation with young children. Ms Manoski considers the conditions in Parts C, D, E, F, G, H, and I to be appropriate. Ms Manoski is unsure of the utility of the conditions in Part J regarding "Personal Details and Appearance".
11. As for his recent relationship, Ms Manoski opined that Mr Archer was unable to recognise the risks of having a relationship with a woman with a criminal and substance use history. His partner is reportedly aware of his offending but says that it is in "his past" which Ms Manoski opined was of concern as she may not challenge him in the future around his sexual offending or report any concerns if they arise. Ms Manoski stated that given Mr Archer's fragile self-worth, difficulties with relationships, reliance on substances to cope and general antisociality, his relationship with his partner presents an area of risk for him.

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

1. I summarised the material relevant to this consideration at [48]-[52] of my first decision as follows: "[48] The defendant was found in possession of child abuse material only five days after his release from custody in 2020. [49] 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. [50] 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. [51] 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. [52] 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"."
2. No significant additional material relevant to this factor was put before me at the final hearing.

Statistical testing: s 9(3)(d)

1. I summarised the material relevant to this consideration at [53] of my first decision as follows: "[53] 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."
2. Since my first decision, Mr Manoski has undertaken further statistical testing which can be summarised as follows.
3. Ms Manoski assessed Mr Archer's risk using the Static-99R instrument and placed him in the well above average risk category, indicating that his estimated risk of sexual recidivism was between 20.9% and 26.7% over the next five years. Ms Manoski assessed Mr Archer's dynamic risk using the STABLE-2007 tool and determined that he has a high density of criminogenic needs relative to other male offenders.
4. The Static-99R and STABLE-2007 combine to place Mr Archer's composite score in the "Well Above Average" risk level, meaning that 22 and 27 of 100 individuals convicted of sexually motivated offences with the same risk profile as Mr Archer would be expected to reoffend sexually over 3 and 5 years respectively.
5. Ms Manoski used the Level of Services/Case Management Inventory (LS/CMI) to assess Mr Archer's risk of general re-offending and determined that he was at very high risk of future antisocial conduct. The main factors on the LS/CMI related to his risk relate to his past criminal history, lack of educational attainment, antisocial behaviours and attitudes, difficulties with familial and non-familial relationships, lack of prosocial companions, lack of leisure activities, use of alcohol and substances, early adjustment problems and difficulties with supervision.
6. Mr Archer's protective factors were also assessed by Ms Manoski using the Structured Assessment of Protective Factors for violence risk tool (SAPROF). He presented with a few protective factors, including some ability to demonstrate empathy, expressed motivation for treatment, some positive attitudes towards authority, reported stability on the Buvidal program at present, abiding by current restrictions placed on him, as well as living in Malabar COSP, which is a structured living environment. However, Ms Manoski noted that Mr Archer does not have secure attachment to others, lacks effective coping strategies and self-control, is not currently engaged in work or leisure activities, lacks long term life goals and a social support network, and is not engaged in a positive and supportive intimate relationship.

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

1. I summarised the material relevant to this consideration at [54]-[56] of my first decision as follows: "[54] 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. [55] 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. [56] 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."
2. No significant additional material relevant to this factor was put before me at the final hearing.

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. I summarised the material relevant to this consideration at [57]-[60] of my first decision as follows: "[57] 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. [58] 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. [59] 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. [60] 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."
2. No significant additional material relevant to this factor was put before me at the final hearing.

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

1. I summarised the material relevant to this consideration at [61]-[65] of my first decision as follows: "[61] 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. [62] 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. [63] 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. [64] 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. [65] 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."
2. Additional OIMS notes were tendered at the final hearing. The OIMS notes for the period of 16 September to 5 November 2024 relied upon by the State indicate that Mr Archer was involved in an incident with another inmate, to which he admitted. They also note that he is in a romantic relationship with Melanie Cox whom he met through "friends in custody", who was herself in rehab and had visited him via AVL in custody, and that Ms Cox has a 22-year-old daughter. The notes also indicate that in breach of his ISO he set up a YouTube account, though nothing of concern was found.

Consideration

1. I have already found that Mr Archer meets the first three statutory criteria for the reasons provided at [18] above.
2. 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). As stated above, although Mr Archer did not dispute that this statutory test was met for the purposes of the final hearing, it remains a matter for the court to be satisfied of. I summarised the relevant principles in my first decision at [71]-[73] as follows: "[71] 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]. [72] 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]). [73] 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.'"
3. Having regard to the s 9(3) matters in the supporting documentation, and also giving paramount consideration to the safety of the community, I am satisfied to a high degree of probability that Mr Archer poses an unacceptable risk of committing another serious sex offence if not kept under supervision under an ESO.
4. Mr Archer's strongest sexual preference is, on his own account, in relation to four or five-year-old female children. His previous serious sex offence was committed against a one-year-old female baby in her home. The material before me establishes that if Mr Archer was to return to drug use during a period of poor coping he may engage in online communications with other like-minded individuals. I am satisfied that in the absence of any supervision there is a serious risk that Mr Archer will relapse.
5. I have had regard in particular to the fact that Mr Archer suffers from a paedophilic disorder and as recently as February 2024 expressed a preference for engaging in sexual acts with a child rather than in the course of a healthy adult relationship. His progress notes dated 29 February 2024 record that Mr Archer has "no boundaries regarding the age of a child that it would be okay to engage in sexual acts with".
6. Whilst Mr Archer has been in custody, he has experienced frequent and intense arousal to children simply appearing on television. He has often acted on that arousal by masturbating and has, at times, maintained relationships with other inmates who support child sexual abuse. Ms Manoski noted that Mr Archer acknowledged continuing to experience deviant sexual thoughts following his release from custody in September 2024.
7. Mr Archer was unable to complete HISOP due to institutional infractions including possession of further child abuse related materials. I am satisfied that he continues to present with chronic and severe criminogenic needs. The material before the court shows that he has acted impulsively and opportunistically in the past.
8. As for his most recent assessment, a variety of different risk assessment tools concluded that he presents a high level of risk of future sexual offending. I have summarised those results above.
9. A particular risk factor is Mr Archer's substance abuse disorder. Mr Archer abuses substances as a maladaptive coping technique for stress. These substances increase his libido and lower his inhibitions. I am satisfied that Mr Archer remains at a high risk of relapsing into substance abuse should he find himself under stress. I have also had regard to the fact that he committed offences of a sexual nature only three days after being released on parole, after which his parole was revoked. That means that he has not had the benefit of any meaningful supervision in the community.
10. For these reasons, I am satisfied that the statutory test for the making of an ESO has been established. I am also satisfied that the material before me, including the expert evidence, supports the making an ESO for a period of two years.

The proposed conditions

1. I am satisfied that it is appropriate to impose the conditions sought. The State has demonstrated that there is a proper basis for making the conditions. I am satisfied that they are in clear terms and that Mr Archer knows what it is that he must do and what he must refrain from doing. 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."

Orders

1. Accordingly, I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"), I order that the defendant be subject to an extended supervision order for a period of two years commencing on 6 December 2024. 2. Pursuant to s 11 of the Act, I direct that for the period of the extended supervision order the defendant comply with the conditions set out in Schedule A to Order 1. 3. Pursuant to s 13(1) of the Act, the interim supervised order imposed by N Adams J on 12 September 2024 and renewed by Yehia J on 11 October 2024 and 7 November 2024 is revoked.

State of NSW v Archer_Final.Schedule of Conditions (143420, 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: 06 December 2024