State of New South Wales v Banks

Supreme Court of NSW|2021-09-24|Before: Lonergan J, Rothman J

Judgment

By Summons filed on 11 August 2021, the plaintiff seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") against Richard Anthony Banks.
The defendant is currently subject to a 3 year extended supervision order ("ESO") imposed by Rothman J on 24 March 2016: State of New South Wales v Banks [2016] NSWSC 926. That order has been suspended on various occasions as a result of Mr Banks breaching various conditions of the ESO and being consequently sentenced to periods of imprisonment. That ESO will expire on 3 October 2021.
The matter is at the preliminary hearing stage and the State seeks either a "variation" of the defendant's current ESO by extending it by 2 years (purportedly pursuant to s 13 of the Act) and modifying and adding conditions, or alternatively, orders for the appointment of a psychiatrist and a psychologist and an interim supervision order with a view to a further ESO for a period of 2 years.
The key issue in contest is whether the material tendered on the application, if proved, satisfies me 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) of the Act.
Counsel for the defendant Mr Coady argued that the statutory threshold for the making of a longer or additional ESO is not met and the application should be dismissed, before the Court even has to consider the question of whether such an order should be made: (the s 5B discretion).
Having reviewed the evidence tendered and considered the submissions of the parties I have concluded that Mr Coady's argument is correct. For the reasons that follow, I dismiss the application.

Background facts

The relevant background and sexual history is covered in the documents exhibited to the affidavits and is well summarised in the written submissions of counsel for the plaintiff, Mr Harris: "[42] Mr Banks is 38 years old, the second of four children (an older brother and two younger sisters). He was born in Gosford and grew up in Elsmore, near Inverell, NSW. He has stated that his father was a "bikie", who subjected Mr Banks to corporal punishment.1 He visits his family infrequently (3 times since the current ESO was imposed in 2016). [43] Mr Banks had unstable schooling. He was suspended from primary school due to his behaviour. In high school, he truanted, disrespected teachers and got into fights. He left school in Year 9. He completed his Year 10 certificate at TAFE. Sexual history [44] Mr Banks has been convicted of serious sex offences. The facts of the index offences and other offending are described below. [45] Mr Banks has expressed a preference for coercive sex, sadism and rape fantasies, and he has reported he fantasies about humiliation, torture, and sexually assaulting people who make him angry. [46] Mr Banks' sisters each alleged he sexually assaulted them. The Department of Community Services was reportedly involved following these allegations, but no action was taken. Mr Banks accepts that there was sexual contact, although the allegations were not the subject of any determination. He has blamed the victims for exposing themselves to him. [47] Mr Banks has said that he has masturbated to thoughts of his mother, as an adult and a child, and also to his aunt. He alleged that his aunt sexually assaulted him when he was in his mid teens. He stated that, in Year 5, he broke into a neighbour's home in order to steal "sexy lingerie". [48] When Mr Banks left home, he resided with his then girlfriend, SW. He remained in a relationship with SW until May 2007. She was a co-offender in the index offences committed in October 2006. [49] In 2001, he also formed an intermittent relationship with a second woman, SD. She was the victim of blackmail and other offences which Mr Banks committed in March to July 2007. He remained in a relationship with SD until April or March 2007 [50] Mr Banks was in custody from July 2007 to April 2016. Current ESO [51] In 2016, an application made under the Act for a CDO and ESO ("the 2016 proceedings"). Mr Banks was subject to an IDO and then a one-month CDO, imposed to support his transition back to living in the community. He was then subject to a 3-year ESO, commencing on 27 April 2016. He has breached that order on 15 occasions. The current ESO is due to expire on 3 October 2021. [52] In imposing the ESO, his Honour Rothman J held that "plainly … the defendant poses an unacceptable risk". His Honour imposed a one-month CDO, "to allow [the State] to arrange the accommodation and to familiarise the defendant with the location, the environment and the community generally." Thereafter, Mr Banks would be subject to a 3-year ESO. [53] Regarding the term of the ESO, his Honour expressed the following view at [66]: 'In my view, at the end of three years of such an order, the Department will be in a better position to assess any ongoing need for supervision and the conditions under which it should operate.' Drugs and alcohol [54] Mr Banks commenced using cannabis in Year 7 (aged 12), which grew to a habit of consuming between 2g and 7g per day, and he reports ceasing cannabis use aged 20. He then commenced binge-drinking alcohol. He used drugs in custody, including oxycodone, buprenorphine, heroin and methadone although he denied using heroin to Dr Ellis. Since being released to the community, he has provided drug tests which were positive for methamphetamine. [55] During his most recent period in custody, Mr Banks was accommodated in the Drug Recovery Wing at Parklea Correctional Centre, a 12-week voluntary program involving counselling and structured activities to support a drug-free lifestyle. Mental health and development [56] Mr Banks was diagnosed with Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD) when in Year 6 (aged 11 or 12) and was medicated with Ritalin. He sold his Ritalin and bought cannabis with the proceeds when in Year 9. He suffered a number of head injuries, most significantly when he fell out of a tree aged 6, for which he was hospitalised for several months and required rehabilitation. [57] The Court-appointed experts in the 2016 proceedings provided different opinions regarding his current diagnoses, including: Sexual Sadism Disorder, Antisocial Personality Disorder, Substance Abuse Disorder and Psychopathy (see below). He has been formally assessed to be in the "average" range of intelligence. [58] Mr Banks has a recent history of suicidal ideation, following the imposition of the ESO, which he says he did not report because he was concerned it would result in breach. He reported thoughts of self-harm in goal, but has acknowledged that this was "manipulation"."

The index offending

This offending was summarised in the written submissions of Mr Harris: "(i) 2006 Index offences [160] These were sexual offences committed in company against an adult male victim. The victim was staying in a boarding house run by the parents of Mr Banks' girlfriend, SW. [161] On 19 October 2006, Mr Banks went with the victim, SW and two others to an unoccupied property at Gum Flat, near Inverell. The victim was plied with alcohol, and then subjected to a series of depraved acts, involving prolonged attacks with stinging nettles, exposing his genitals and burning areas of his body, including his anus. He was also the subject of two attempts to insert objects into his anus. The events were captured on a video camera operated by Mr Banks and his girlfriend. [162] The victim was taken to hospital 3 days later, and police were notified. The video was later obtained by search warrant executed on Mr Banks' solicitor's office, after Mr Banks had revealed its existence to police. [163] Mr Banks was initially arrested and denied bail in relation to an assault relating to the same victim, which was not proceeded with. [164] On 27 January 2009, Mr Banks pleaded guilty to 13 charges: 6 counts of common assault, 2 aggravated acts of indecency, 4 aggravated indecent assault and one attempted aggravated sexual intercourse without consent. A further 11 charges were taken into consideration (H33395927). [165] On 17 April 2009, Mr Banks was sentenced to a total term of 4 years 6 months' imprisonment (3 year 4 month non-parole period) commencing 29 January 2009. [166] Mr Banks has given different explanations for committing these offences. He told Dr Seidler in 2009 that he and his co-offenders were inebriated and thought it would be amusing to assault the victim and video it, in order to post the video online. He had seen other similar videos online. He gave a similar account to Dr Ellis, but also said he had been stressed by a recent diagnosis of Hepatitis C and the end of his relationship. He also said the victim had exposed his penis to him, which made him feel uneasy. He explained during the CUBIT treatment program that the victim had exposed his penis to the group, which he initially said had offended him, but then explained it made him feel inferior because he perceived it to be larger than his own. He initiated the assault to assert his masculinity over the victim. He told Dr Parker he wanted to hurt the victim because he didn't like him, that he wanted to try out his new video camera, that he wanted to cheer himself up (because he thought he was going into custody) and that he got enjoyment from controlling his co-offenders. He has consistently denied any sexual motivation. (ii) 2007 Offences against SD [167] These comprise a series of offences in relation to a peer-aged woman, SD. Mr Banks had been in a relationship with SD since leaving home. [168] During their relationship, Mr Banks had obtained intimate photos and videos of SD. In March 2017, SD ended the relationship. From 1 March 2007, Mr Banks began blackmailing SD, threatening to expose the intimate photos and videos to her workmates, her grandfather and others, if she did not agree to send further pictures of herself. Mr Banks was later charged with blackmail for this conduct (H32959366). [169] On 6 May 2007, Mr Banks attended outside SD's home, producing a wooden stick and a glass bottle, and threatened the occupants. When approached by police, he became aggressive and assaulted the police officers by kicking them. He was arrested, charged with assaulting police, resisting officers, intimidation, custody of an offensive implement and offensive conduct (H30375468). He was admitted to conditional bail. [170] On 9 May 2007, Mr Banks phoned SD and threatened to burn her house down, and also to send the intimate photos to her work. He was arrested and charged with Stalk/intimidate (H32167580). An AVO was granted, preventing contact with SD. [171] On 21 June 2007, he was sentenced to 12 months' imprisonment for the above offences, wholly suspended. On 30 October 2008, Mr Banks was re-sentenced and imprisoned for 12 months. [172] On 10 May 2007, Mr Banks was arrested for the offences relating to the victim of the 2006 index offences. He remained in custody until he was bailed on 19 July 2007. During that period in custody, he maintained contact with SD, with her consent. [173] Two days after he was released from custody, on 21 July 2007, SD attended Mr Banks' home. On informing him that the relationship was over, Mr Banks became enraged and forced her into a bedroom. He is alleged to have prevented her from leaving the room to use the toilet and provided a bucket for SD to urinate into (although he was acquitted of kidnapping). When SD attempted to leave, Mr Banks produced a knife and cut off her jeans and underpants. He then threatened to insert the knife into her vagina and instructed her to get onto the bed. He then struck her to the top of the head, causing a large lump and nearly rendering her unconscious. [174] The following morning, Mr Banks allegedly had sex with SD without her consent (although he was acquitted of this charge). His mother gave SD a lift back to Inverell. [175] On 24 July 2007, Mr Banks returned to the SD's home and broke in through her bedroom window. There was evidence that SD had invited him to her home. Other occupiers of the home persuaded him to leave. This was a breach of the AVO (H31075138). [176] Mr Banks later stated that he went to SD's home with the intention of murdering her and had taken a knife with him for that purpose. [177] He was charged with offences relating to the 21 July 2007 incident, including Blackmail, Assault with an act of indecency and Assault occasioning actual bodily harm (H31024439). [178] Mr Banks pleaded not guilty and after a trial he was found guilty of those charges and pleaded guilty to the breach of AVO. He was acquitted of other charges. On 25 September 2009, he was sentenced to a total term of 4 years 6 months' imprisonment."

The relevant legislative provisions and principles

The statutory preconditions and relevant principles are accurately and helpfully summarised in the written submissions of Mr Harris: "[4] The primary object of the Act to provide for the extended supervision and continued detention of high risk sex and violent offenders, so as to ensure the safety and protection of the community: see s 3(1). Another object is to encourage relevant offenders to undertake rehabilitation: s 3(2). These objects demonstrate that the nature of the jurisdiction is protective rather than punitive: Attorney General (NSW) v Tillman [2007] NSWCA 119 at [5]. Statutory preconditions [5] Section 5B of the Act provides that the Court may make an order for the supervision in the community of a person 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 s 5I), and (c) an application for the order is made in accordance with s 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. [6] An "offender" is defined to mean a person who is of or above the age of 18 who has at any time been sentenced to imprisonment (not quashed or suspended) to be served by way of full-time detention or intensive correction following his conviction for a serious offence: s 4A. [7] A "serious offence" means a serious sex offence or a serious violence offence: s 4(1). The definition of a serious sex offence includes an offence under Part 3, Division 10 of the Crimes Act 1900, where punishable by imprisonment for 7 years or more and (in the case of an adult) is committed in circumstances of aggravation. [8] A "supervised offender" includes an offender who, when the application for the order is made, is in custody or under supervision under an existing ESO: s 5I(2)(b). [9] In State of NSW v Kaiser [2021] NSWSC 646, Garling J held that s 5B(b) requires that the offender must be a supervised offender (within the meaning of s 5I(2)(b)) at the time the Court comes to exercise its discretion to make and ESO (at [61]), in addition to meeting that description at the time the application was made. There is a pending appeal by the State against that decision. [10] An application for an ESO may not be made until the last 9 months of the offender's current custody or supervision: s 6(1). It must be supported by documentation that addresses each of the matters in s 9(3) (the mandatory considerations) and include a report that assesses the likelihood of the offender committing a serious offence: s 6(3). Precondition (d) - Unacceptable risk [11] 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). [12] The term "unacceptable risk" should be given its everyday meaning, in the context of the provisions in which it appears and having regard to the objects of the Act: State of NSW v Lynn [2016] NSWCA 57 ("Lynn") at [58] per Beazley P (Gleeson JA agreeing). [13] The determination of unacceptable risk involves an evaluative assessment of the risk posed by the offender of committing a further serious offence. That evaluation is to be made in the context of the objects and purposes of the Act, which include the safety and protection of the community: Lynn per Beazley P at [55] (Gleeson JA agreeing). [14] The determination of unacceptable risk is not capable of being resolved by consent: State of NSW v Manners [2008] NSWSC 1242 at [4] per Johnson J. [15] An assessment as to whether the risk is unacceptable involves consideration of the likelihood of the risk eventuating and the gravity of the risk (or harm) that may eventuate: see, e.g. State of NSW v Pacey [2015] NSWSC 1983 at [43] per Harrison J; State of NSW v Simcock (Final) [2016] NSWSC 1805 at [71] per Wilson J; State of NSW v Loto [2018] NSWSC 1522 at [15] per Rothman J; State of NSW v Holschier (No 2) [2018] NSWSC 1921 at [24] per Hoeben CJ at CL. Accordingly, the Court may legitimately conclude that a person poses an unacceptable risk, even if the likelihood of them committing a serious offence is determined to be low, where consequences of the risk are very serious: State of NSW v Kamm (Final) [2016] NSWSC 1 at [43] per Harrison J; State of NSW v Davis (Preliminary) [2020] NSWSC 754 at [28] per Hoeben CJ at CL. [16] The expression "high degree of probability" indicates something beyond "more probably than not" though not to the criminal standard "beyond reasonable doubt": Cornwall v Attorney General [2007] NSWCA 374 at [21]. The "high degree of probability" does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk: Cornwall at [21]. The Court is not required to determine that the risk of an offender committing a serious offence is more likely than not: s 5D. The Court's discretion [17] The Court may determine an application for an ESO by making an ESO or dismissing the application: s 9(1). The Court therefore has a residual discretion, even where the threshold requirements are met. However, as Garling J observed in State of NSW v Sturgeon [2019] NSWSC 559 at [7], having regard to the nature of the Act and its primary object "to ensure the safety and protection of the community", it is difficult to see that the discretion to decline to make an ISO would arise other than in an exceptional case:. [19] In determining whether or not to make an order, the safety of the community must be the paramount consideration of the Court: s 9(2). [20] The Court is required to have regard to the mandatory considerations listed in s 9(3), in addition to any other matters it considers relevant. [21] While the Court is not required to consider the mandatory considerations in determining whether an unacceptable risk exists, such matters are nevertheless apt to inform the application of that test: State of NSW v Fisk [2013] NSWSC 364 at [22] per Beech-Jones J; State of NSW v Wilmot (Preliminary) [2019] NSWSC 776 at [28] per Lonergan J. The impact of an order on the offender's liberty is not properly regarded as a relevant factor in assessing unacceptable risk, but it may be considered in the exercise of the Court's discretion: Lynn at [44], at [55] per Beazley P and at [128] per Basten JA. Preliminary hearing [22] One purpose of the preliminary hearing is to filter out unmeritorious applications; another is to provide the Court with the benefit of expert opinions prior to making a final determination: State of NSW v Manners [2008] NSWSC 1242 at [9] per Johnson J. [23] If, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of the order sought, the Court must make orders for the appointment of two experts to conduct separate assessments of the offender, and directing the offender to attend those assessments: s 7(4). If it is not so satisfied, it must dismiss the application: s 7(5). [24] The "supporting documentation" means the material referred to in s 6(3), the material addressing the mandatory considerations in s 9(3), and a report or report(s) that assesses the likelihood of the offender committing a serious offence. The term "matters alleged" should be read in such a way so as not to exclude any of the variety of items in s 9(3): State of NSW v Sturgeon [2019] NSWSC 559 at [12] per Garling J. [25] The test to be applied at the interim stage has been described as "not a stringent test": State of NSW v Lynn [2013] NSWSC 1147 at [18] per Button J. The Court proceeds on the assumption that the asserted facts are proved and then considers whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 per Fullerton J at [10]. [26] The Court is not involved in weighing the supporting documentation or predicting the ultimate result, and the threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Such evidence may go to relevant discretionary matters but would not cast light upon what is alleged in the State's supporting documentation: Tillman at [98]. The State's evidence should accordingly be taken at its highest. Interim supervision orders [27] The Court may make an order for the interim supervision of an offender (ISO) if, in proceedings for an ESO, it appears to the Court (s 10A): (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. [28] The test in subsection (b) is identical to the test in s 7(4), considered above. [29] An ISO commences on the day fixed in the order (or as soon as it is made) and expires at the end of such period as specified in the order (not exceeding 28 days): s 10C(1). An ISO may be renewed form time to time, but not so as to provide for the supervision of an offender for periods totalling more than 3 months: s 10C(2). [30] An ISO is suspended during periods when an offender is in lawful custody: s 10C(1A). Such periods do not count towards the 3-month limit for an ISO: s 10C(3). There is also provision for the deferral of an ISO where an offender is in current custody, to permit arrangements to be made regarding the supervision: s 10C(1AA). Conditions of supervision [31] An ESO or an ISO may direct an offender to comply with such conditions as the Court considers appropriate, including those itemised in s 11(1). The condition at s 11(2) must be imposed (not to leave the State except with approval of the Commissioner). [32] In State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL identified the principles to be applied when determining what conditions may be applied to an ESO: [43] Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation". [44] Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: State of NSW v Tillman [2008] NSWSC 1293 at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]; (v) conditions should not be designed toward future general criminal conduct, but instead focused on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]; (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855 at [89]; (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]; (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131]."

The s 13 issue - An appropriate basis for a new ESO?

Mr Harris argued that the outcome sought by the plaintiff could be achieved by an order for variation pursuant to s 13 of the Act as sought in Order 1 of the Summons.
Section 13 of the Act states: 13 Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. (2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate.
Authorities of this Court that considered the application of s 13 of the Act in different contexts to those prevailing here were set out in Mr Harris's written submissions: "[33] The Court may at any time vary or revoke an ESO or ISO on the application of the State or offender: s 13(1). The power to vary includes variation of the term of an order. However, the period of an order must not be varied so that the period is greater than that otherwise permitted under Part 2: s 13(1A). That period must not exceed 5 years from the day the order commences, plus periods during which the order is suspended: s 10(1A). Alternatively, it is open to the State to bring a new application for a further ESO: s 10(3). [34] The power in s 13 has been exercised to revoke orders, where a defendant no longer presents an unacceptable risk: see State of NSW v Myers [2018] NSWSC 1789; State of NSW v Schmidt (Preliminary) [2019] NSWSC 52; State of NSW v Carr [2020] NSWSC 643. [35] In Schmidt, Walton J held that, where an application is brought to revoke an ESO (or where a variation is in substance an application to revoke), the exercise of discretion is conditional on satisfying the Court that the circumstances have changed sufficiently to render the order unnecessary (cf. s 13(1B), at [22]). That question requires consideration of the reasons for judgment given when imposing the original order (at [27]). [36] The Court has observed that the power in s 13(1) may be exercised to vary an existing order by extending the term of the order: see State of NSW v Brooker [2014] NSWSC 1349 at [35]; State of NSW v Sines (No 3) [2017] NSWSC 985 at [72]; State of NSW v Conway [2011] NSWSC 925 at [28]. In the present case, Rothman J referred to the fact that the Department would be in a better position to assess any ongoing need for supervision, and the conditions, at the end of a 3-year order: State of NSW v Banks [2016] NSWSC 926 at [66]. However, it does not appear that power in s 13(1) has ever been exercised to extend the term of an ESO. [37] The power in s. 13 has also been exercised to vary or add conditions: see State of NSW v Bowdidge [2019] NSWSC 85; State of NSW v Kay [2018] NSWSC 1235; State of NSW v Mills [2019] NSWSC 298. [38] In Kay, Wilson J varied an existing ESO, which the defendant had breached, by imposing additional conditions. Her Honour held (at [66]) that the discretion conferred by s. 13(1) is "unfettered, subject to the objects and provisions of the Act". [39] In Mills, Campbell J considered an application to vary an ESO that had been made by Rothman J to add further conditions, including conditions which Rothman J had rejected. Campbell J held that, while an ESO may be renewed or extended under s 10(5), or varied or revoked under s 13, an ESO is a final order for the purpose of the res judicata doctrine. For this reason, his Honour held (at [30]): 'The Court would not be empowered to come to a contrary conclusion on the basis of the same evidence and arguments that were presented to Rothman J. Section 13 does not permit forum shopping. Rather, reading s 13 as a whole in its full statutory context I am of the view, … [that] the power to revisit the finding made by Rothman J for the purpose of considering whether the order he pronounced should be varied depends upon the demonstration of a material change in circumstances since the original order was made. And it is necessary for the State to prove to the statutory standard of a high degree of probability, that on the whole of the evidence currently available, including the relevant changed circumstance, the offender now presents an unacceptable risk of committing a serious sex offence if not kept under supervision.' [40] The latter requirement, to prove "unacceptable risk", was found in Mills in circumstances where the original ESO had been based on an unacceptable risk of serious violent offending, whereas the State asserted that there now existed an unacceptable risk of serious sexual offending (at [7]). Nonetheless, it is submitted that any variation must be demonstrated to be an appropriate exercise of discretion, in light of the provisions of the Act, including its objects, the test of unacceptable risk, and the other requirements contained in Part 1A and 2. [41] Accordingly, an application to vary an existing ESO requires the State to demonstrate: (a) first, a material change in circumstances, and (b) second, that the variation is an appropriate exercise of discretion, considering the requirements the Act."
Obviously this Court needs to conclude that dealing with the application by way of variation under s 13, thus extending the ESO for 2 further years, is an appropriate exercise of its discretion. Mr Coady submitted that it was not.
Although an interpretation that s 13 permits such an approach seems to be open, and Mr Coady acknowledged that the State could be considered to have shown a "material change in circumstances" by virtue of the breaches of the ESO, I am not satisfied that it is an appropriate way to exercise the relatively draconian pre-emptory powers available under the Act. Whilst subs (1A) of s 13 appears to contemplate the possibility of a variation that extends an ESO period (to a maximum of 5 years), it does not in my view, expressly provide that this is a stand-alone alternative mechanism. Further, subs (1B), (2) and (3) appear to be directed to limiting, proscribing or ending an ESO's term, rather than extending it.
The underpinning objects of the Act are safety of the community and rehabilitation of offenders. It would not be an appropriate furthering of those objects to simply extend for another 2 years an ESO based mainly on evidence contemporaneous to the defendant's risk in 2016. This is particularly so given there is good evidence of progress with the defendant's engagement in and benefit from rehabilitation efforts and counselling, particularly in the last 12 months.
What must be evaluated is current risk of the relevant kind, not risk that the defendant might breach an ESO, or the risk he presented in 2016. What really has to be considered on this application is whether there is a proper basis for a fresh order and term of supervision to be imposed.
Mr Harris was unable to point to any decision of this Court where s 13 of the Act was applied as a basis to extend an ESO for a further substantive period. I suspect there are very good reasons why that is so. I am not satisfied that it is consistent with the objects of the Act to utilise s 13 in that way, and certainly not in this case.
The application will thus be considered and determined in the conventional way under s 5B of the Act, by assessing the evidence tendered, including having regard to the mandatory considerations set out in s 9(3) of the Act, to determine whether, under s 10A of the Act, an interim supervision order should be made.

Mandatory considerations

Section 9(3) of the Act provides, relevantly to the evidence tendered on this application: 9 Determination of application for extended supervision order … (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) … (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) … (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. …

Plaintiff's submissions

In addressing the mandatory considerations, the oral and written submissions relied on by the plaintiff, although thorough, raked over and emphasised historical assessments. Although not irrelevant, these old assessments have limited relevance to current risk: "[64] Dr Samuels prepared a report on 8 February 2016. He found no evidence of any major mood disorder or psychiatric disorder. However, Mr Banks fulfilled the DSM-V criteria for Antisocial Personality Disorder. He also opined that there were "strong suggestions in the material …. that Mr Banks meets criteria for Psychopathy". He also considered that Mr Banks met the criteria for Sexual Sadism Disorder, albeit that appeared to be in remission in a controlled environment. In Dr Samuels' view, Mr Banks' sexual offending was "a manifestation of his underlying antisocial/psychopathic personality structure and his motivation is aggression, domination and targeted mainly at power, control and submission" and that "his sexual offending behaviour is largely driven by personality factors". [65] Dr Samuels noted that Mr Banks had made a sexual threat towards his co-offender in custody. However, Mr Banks denied that he had any homosexual fantasies, and said he made this threat in anger [66] Because Dr Samuels considered that Mr Banks' sexual offending was driven by psychopathic personality traits, he did not support the use of anti-libidinal medication. [67] Dr Samuels considered Mr Banks to be at high risk of committing a further serious sexual offence. Feelings of anger, rejection, isolation and a sense of feeling "trapped" and powerless were most likely to heighten the risk, although risk may be increased by an element of deviant arousal and fantasisation. Alcohol and substances would play a role in disinhibiting him, with alcohol being "a major risk factor". [68] Dr Samuels opined that there were limited therapeutic benefits for continued detention. While there were problems in managing Mr Banks, he did not think Mr Banks could not be managed in the community. [69] Dr Samuels considered that a 5-year ESO would be appropriate. Dr Andrew Ellis [70] Dr Ellis prepared a report on 11 February 2016. In contrast to Dr Samuels, Dr Ellis elicited more information supportive of paraphilic and sexually deviant behaviour. In his view, there was clear evidence of a Voyeuristic Disorder, supported by admitted behaviour towards his sisters and spying on and filming former partners. Dr Ellis also considered that there was significant clinical suspicion that Mr Banks had Sexual Sadism Disorder, in particular regarding the index offending and offences in 2007. Mr Banks met the criteria for Antisocial Personality Disorder and Substance Abuse Disorder (DSM-V). [71] Dr Ellis opined that Mr Banks was at high risk of sexual re-offending. He also noted that deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence, and that Mr Banks' offence history indicates this pattern of arousal. Antisocial personality is another factor associated with sexual reoffence. Substance abuse was modestly correlated with sexual offending, as it disinhibits underlying sexual arousal towards objectification, violence and humiliation. Each were present in Mr Banks' case. Dr Ellis considered that the combination of sexual deviance, antisocial personality and substance disorder contributed to the risk of sexual violence. [72] Dr Ellis considered that anti-libidinal medication would be recommended, if medically suitable, given the diagnosis of a paraphilic disorder, or in the alternative a high dose of an SSRI antidepressant. He considered anti-libidinal medication to be an important part of any risk management. A further period in custody to commence that treatment was recommended, although otherwise there was limited clinical benefit to continued detention. [73] Dr Ellis also considered a 5-year ESO would be reasonable, to improve Mr Banks' function in the community, and to refine the appraisal of risk.
Emphasis was placed on Dr Parker's conclusion of psychopathy and that this may be seen as more concerning than a diagnosis of antisocial personality disorder. He also identified drug use as an "ongoing issue".
In terms of s 9(3)(d) statistical risk assessments, as set out by Mr Harris in the written submissions: "[86] Mr Banks scored 39/54 on the LSI-R in February 2021, indicating medium-high risk or needs. 67% of offenders who are assessed in the "high" category return to custody within 2 years. STATIC-99R [87] Mr Banks was scored 10 in an assessment in 2015, demonstrating Level IVb or "well above average risk" (formerly described as "high risk"). This places Mr Banks in the 100th percentile for adult male sex offenders. 48.4% to 60.5% of offenders in the sample with the same score re- offended with a sexual offence within 5 years, a rate that is 7 times higher than the "typical" sex offender. [88] In 2009, Dr Katie Seidler also assessed Mr Banks on the earlier version, STATIC-99, with a score of 6, high risk, although her overall assessment of risk of sexual recidivism was "moderate". STABLE 2007 [89] Dr Parker applied the STABLE 2007 tool in September 2020, scoring Mr Banks as 5, placing him in the "medium" risk category. A previous assessment in 2015 placed him in the "high" category (score 14). [90] A combined overall risk level of "well above average risk" was obtained by combining the scores of STATIC 99-R and STABLE 2007, although this was due to the STATIC 99R score. Violence Risk Appraisal Guide (VRAG-R) [91] Dr Parker applied this test in July 2021,and scored Mr Banks in the highest of nine "bins". 76% of offenders with a similar score re-offended violently within 5 years."
Deception was noted in Mr Glover's report of August 2021 regarding the defendant hiding his relationship with Ms Nagy. There was also drug use: s 9(3)(d1).
As to the s 9(3)(e) considerations, the defendant attended the Custody-Based Intensive Treatment program for sex offenders (CUBIT). Although he took extra time to complete it, and although he could "illustrate an excellent intellectual understanding of treatment content", he had difficulty applying it to himself.
In respect of s 9(3)(e2) and (f), the defendant was noted as difficult to supervise and has been "quite manipulative" and on occasion deceitful, although the October 2020 ESO report noted that his compliance had improved over time. He has been convicted of breaches of his ESO six times involving a total of 15 breaches. The breaches included drug taking.
In respect of s 9(3)(h) there was other offending in the past both as a juvenile and as an adult between 2004 and 2007 including offensive conduct, destroy and damage property and threaten person with intent to influence witness. The last offence occurred whilst the defendant was in custody.
In summary, Mr Harris contended that I should conclude that the defendant poses an unacceptable risk of committing a further serious offence if not kept under supervision for the following reasons: 1. Mr Banks has now breached his ESO on 15 occasions, demonstrating a poor long-term capacity for compliance with supervision, or leading a law-abiding life. 2. The most recent breaches have interrupted what was otherwise a positive trend in his behaviour. They demonstrate a need for continued supervision at this time, to address the risk of Mr Banks committing a further serious offence. 3. The breaches of his ESO include three convictions related to drug use. Drug use is directly related to the risk of further serious offending, due to its disinhibiting effect. Mr Banks was detected using methamphetamine as recently as November 2020, purportedly to cope with stress. Having been recently released to the community, Mr Banks would be at heightened risk of further drug use, as demonstrated by his admission that he used buprenorphine (albeit this was not detected). As Dr Parker observes, Mr Banks' drug use is "by no means overcome". 4. While Mr Banks has not yet been convicted of a further serious offence, that is in circumstances where he has been subject to intensive supervision, including electronic monitoring and scheduling, during all periods he has spent in the community since 2016. 5. The most recent breaches reveal that Mr Banks has an ongoing capacity for deceit. He did not reveal the existence of a relationship with Ms Nagy to his supervisor or psychologist for a period of about three months. 6. Mr Banks continues to make contact with women in the community, and recently formed a brief relationship with a woman, although that relationship appears to have ended. 7. The unproven allegation of assault against Ms Nagy in the context of an intimate relationship demonstrates a risk that Mr Banks' conduct could escalate to a serious offence against an intimate partner, in circumstances where he is not supervised, and in particular if he uses drugs.

Defendant's submissions

Focussing on the key issue, the reasons why the Court should find the requirements of s 5B(d) were not met, were articulated relevantly, succinctly and persuasively in Mr Coady's written (and oral) submissions: 1. Despite having a significant criminal record including matters of violence, the defendant has only committed offences that fall within the definition of a "serious offence" on one occasion, in 2006, when he was 23 years old. The offences committed in 2007, when he was 24, whilst extremely serious, were not "serious offences" as defined in s 4 of the Act. He is now 38 years old. He has not offended again in such a serious and sexual manner, whether in custody (noting the 2006 offences were committed against a male victim) or in the community on supervision. This weighs heavily against the test in s 5B(d) being met and accordingly the Court should refuse the State's primary relief. 2. Whilst it is accepted that the defendant has breached the terms of his ESO involving further periods of custody, the nature of the breaches do not display a trajectory toward more serious offending. Conversely, they are consistent with entrenched personality traits which will not completely resolve with the extension of supervision. There is accordingly a real question as to whether an extended period of supervision will provide the community with protection as opposed to simply exposing the defendant to the possibility of further periods of custody for breaches of the ESO. Such breaches that the defendant has committed ultimately say nothing about the defendant's risk of serious reoffence. 3. The expert material on which the State originally relied is now dated and in major respects undermined by more recently obtained material. In summary these contradictions include an earlier diagnosis by one court appointment expert of a 'sexual sadism disorder' with the principal treatment to be with anti-libidinal medication. This diagnosis has been called into question by a recent report by Dr Parker who has provided individual psychological intervention with the defendant from February 2017 to October 2017; from May 2018 to July 2018; and from January 2020 to present. The defendant has not been treated with anti-libidinal medication and despite this has not offended in a sexual sense. Further factors that call the earlier expert reports into question are that despite breaching the terms of his ESO, the defendant has not committed a serious sexual or violence offence despite commencing and continuing a number of intimate relationships while on supervision. Finally on this point, unproven allegations of domestic violence committed during the period of the ESO should have little to no weight placed on them. 4. Prior to recent breaches of the ESO, which were nonviolent and say nothing about his future risk of committing a "serious offence", multiple experts suggested there was little further to be gained for a future period of supervision. 5. The defendant has maintained voluntary therapeutic relationships without being compelled to do so (with Dr Parker, and psychologist Carollyne Youssef) for most of his period of supervision. This speaks to a growing maturity and insight by the defendant, which is not reflected in the 2016 expert reports; this calls into question the assessment of risk contained in s 5B(d) of the Act and ultimately undermines the State's principal relief sought being the appropriate exercise of the Court's discretion under s 13(1) of the Act.

Consideration and Decision

Of significant relevance to my assessment of risk are the reports of Dr Richard Parker of 7 July 2021, Mr Glover and Ms Grabham of 9 August 2021 and Ms Yousseff, psychologist, of 6 April 2021.
As frankly conceded by Mr Harris in his oral submissions, the "high watermark" of Dr Parker's evidence, (and, in effect, the plaintiff's application generally), is at par 89 of Dr Parker's July 2021 report: "Considering his history, and the progress he has made, the most likely scenario for a further serious offence would be for an offence against an intimate partner - most likely in the course of an ongoing series of domestic violence incidents. This would probably occur in partnership with regular substance abuse, most likely methamphetamines. However, while most of these offences would be unlikely to rise to the level of a Serious Offence under the Act, it is possible it could escalate to that level." (emphasis added)
Dr Parker's Executive Summary in his July 2021 report provides a helpful overview, bearing in mind he has treated the defendant for various periods since 2016, as well as reviewed the history and documentation about him: "Mr Banks is a 38 year-old man who has been convicted of a serious sexual assault against a male acquaintance. This assault appears to have been motivated by a range of factors, none of them sexual. The intent was to inflict harm upon the victim for a combination of revenge, entertainment and a curiosity about what he could inspire his co-offenders to do. He also had sexual offences against his girlfriend at the time, and these are best classified through the lens of domestic violence. He was originally assessed as having both a deviant sexual arousal pattern and a psychopathic personality. However, his behaviour throughout custody, during his time on supervision and in treatment with myself, suggests that he does not have a deviant sexual arousal pattern, but that his personality pattern is sufficient explanation for his behaviour. He received a 3-year ESO in 2016 and his behaviour for much of that time was very poor, necessitating special management plans by the ESO team. He was breached four times and was most recently released from custody in May 2021. However, it is important to note that, even during these periods, most of his behaviour did not appear to be on a trajectory to a serious offence under the Act - the only exception being the unproven allegations of assault against his partner. Mr Banks clearly has the capacity to refrain from such offending and appears to have the motivation to avoid further serious offending. During the last two years his behaviour has undergone a marked improvement and his interactions with supervising staff have changed dramatically. He has re-engaged in treatment with myself and has been able to identify new thought patterns that are consistent with living a law-abiding life. Importantly, these patterns are linked to an identity that is both mature and are self-referenced (he behaves well because that is what he expects of himself, not what someone else expects)." (Emphasis added)
Mr Glover's report from August 2021 was focused on risk management and so compliance with the current ESO, which obviously has been mixed: "Following his release from custody and while being transported to the CSNSW residential centre on 21 May 2021, Mr Banks spoke with the writer about his history of drug use while on the order. To his credit, Mr Banks was transparent about his drug use and appeared truthful regarding the extent of it. He also appeared resolute about addressing it and records confirm that he subsequently attended a Narcotics Anonymous meeting on 17 June 2021. On 20 June 2021 Mr Banks was subject to a random drug test. During a subsequent interview with his DSO on 24 June 2021, he disclosed use of a non-prescribed substance. Mr Banks attributed the drug use on 20 June 2021 to the breakdown of a new romantic relationship. This was a justification Mr Banks had previously (July 2020) provided for his drug use however, the brevity of the more recent of the relationships and the lack of intimate contact appear to suggest that Mr Banks' drug use is not a maladaptive coping strategy, but rather, an independent issue which is an ongoing problem for him. Records indicate that Mr Banks recently withdrew from treatment with his private psychologist on 14 July 2021 and subsequently failed to respond to several attempts by Dr Parker to contact him on 15 July 2021 resulting in him missing that treatment session also. Mr Banks has subsequently reengaged with both practitioners however, his apparent ambivalence toward intervention is an ongoing impediment to his treatment."
Ms Youssef, the defendant's current treating psychologist, observed in her report of April 2021: "[33] In therapy, Mr Banks was forthcoming with information and demonstrated meaningful engagement, often completing in-between session tasks and an ability to reflect on session topics, raising them for discussion in following sessions. Sessions were focused on interpersonal dynamics (e.g. intimacy and attachment deficits, interpersonal difficulties, communication, attitudes towards women), and general self-regulation (e.g., problem solving, negative emotionality, ineffective coping, substance use). Mr Banks scored highly for the five core schemas (i.e., defectiveness, abandonment, mistrust/abuse, social isolation, and emotional deprivation) that have been linked to his offending behaviour. Mr Banks often displayed vulnerability in sessions and showed insight into when his schemas were being activated and his warning signs were increasing (e.g, rumination, lack of sleep, teariness). During these times, he would request additional therapeutic support and was receptive to feedback and strategies to further assist him with managing his emotions. [34] Notwithstanding the breaches, Mr Banks seems to have made substantial progress relative to his prior releases. My understanding is that this had been the longest period Mr Banks has been in the community whilst on an ESO, and his interactions with CSNSW supervising staff had improved markedly, he secured employment for a period of time, was able to save money, had stable accommodation and he was meaningfully engaging in therapy. He also chose to disclose his relationship with Ms Nagy to his supervising officer whilst cognisant that it would constitute a breach and likely lead to his return to custody."
In my view, despite the complex history and the concerning nature of the index offending in 2006 and the other sexual offending in 2007, much rehabilitative progress has been made. The current risk presented by the defendant on my assessment of the mandatory considerations and the expert and other material, simply does not reach the necessary threshold to justify an ESO being made, even on an interim basis: s 10A.
The matters alleged in the supporting documentation would not, if proved, justify the making of an ESO. Consequently, the Summons must be dismissed.

Orders

I make the following orders: 1. The Summons is dismissed. 2. The plaintiff is to pay the defendant's costs.

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: 01 October 2021

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