State of New South Wales v Barrie

The legislative scheme

1. The Act commenced on 3 April 2006. A number of amendments have been made since then, the most recent of which commenced on 6 December 2017. Clause 17 of Sch 2 of the Act provides that the recent amendments apply to persons who committed offences before the amendments commenced as well as persons serving sentences that began before the amendments commenced. Furthermore, cl 19 confirms that the amendments apply to proceedings commenced but not determined before the amendments came into force. It was common ground that this application is to be determined under the Act as amended.
2. This is only the second contested application for a CDO since the recent amendments came into force, the first having been determined by me in State of New South Wales v Jones [2018] NSWSC 459 ("State of NSW v Jones"). In that judgment, I set out the background to the amendments and described the substantive changes at [15]-[30]. Save as for in one respect, which I will deal with below at [18]-[32], I adopt what I said in that earlier decision concerning the recent amendments.
3. The primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1). Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).
4. The Court's power to make a CDO is discretionary. Section 5C of the Act provides that the Court "may" make a CDO if four pre-conditions are made out.
5. First, the person must be 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 (s 5C(a)). "Offender" is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a "serious offence". Section 4(1) of the Act defines "serious offence" as meaning either a "serious sex offence" or a "serious violence offence". "Serious sex offence" is defined in s 5(1) and relevantly includes an offence against a child under Div 10 of Pt 3 of the Crime Act 1900 (NSW) punishable by imprisonment for 7 years or more (s 5(1)(a)(i)). The defendant was convicted in 2009 for an offence of sexual intercourse with a child above 14 years of age and under the age of 16 years contrary to s 66C(3) of the Crimes Act - an offence punishable by 10 years imprisonment. I am satisfied that he is an "offender" who has served a sentence of imprisonment for a "serious offence".
6. Second, for the purpose of a CDO the defendant must be a "detained offender or supervised offender" within the meaning s 13B of the Act (s 5C(b)). A "detained offender" is one who, when the application for a CDO is made, is in custody. As at 3 April 2017, when the CDO application was first made, the defendant was in custody in relation to a two year sentence for possessing child abuse material contrary to s 91H(2) of the Crimes Act, a sentence which concluded on 8 May 2017. He is thus a "detained offender" for the purpose of the second requirement. To the extent that it is relevant, I also note that, as at 28 July 2017, being the day on which leave was granted to file the further amended summons in Court, the defendant was a "supervised offender" under s 13B(4)(b) of the Act in that he was on an ISO which had been suspended. Therefore, the second requirement under s 5C is satisfied.
7. Third, the CDO application must be made in accordance with s 13B of the Act. Relevantly, s 13B(1) requires that the application be made in respect of a "detained offender" or "supervised offender" and s 13B(3)(a) prevents a CDO application being made more than 9 months before the end of the defendant's total sentence. As discussed above, the defendant was a "detained offender" when the application was first made on 3 April 2017. Furthermore, as the sentence for his index offence expired on 8 May 2018, it was clearly brought within the appropriate time.
8. The fourth condition under s 5C comprises the substantive test for consideration before this Court. In order to make a CDO, the Court must be "satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order": s 5C(d). Section 5D of the Act provides that the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
9. It is common ground in this matter that s 5C(a), (b), and (c) are all satisfied. The determination of this matter turns on whether s 5C(d) is satisfied.
10. Under s 17(1) of the Act, which is in a different Part of the Act to s 5C, the Supreme Court can dispose of a CDO application in one of three ways: by making a CDO, by making an ESO, or by dismissing the application. In determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration for the Court: s 17(2). Under s 17(4), when determining an application, the Court may regard any matter it considers relevant but must take into account the matters enumerated in s 17(4). Section 17(5) provides that, in determining whether or not to make a CDO, the Court is "not to consider the ability to take action for a breach of [an ESO] in relation to whether there is an unacceptable risk of the offender committing further serious offences".
11. I note the observations of Attorney-General Mark Speakman in his second reading speech introducing the Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) to the Legislative Assembly on 11 October 2017 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017) with respect to the amendments to the substantive test for CDO's under s 5C of the Act as follows: "… Under the existing test for making a CDO, an offender is likely to be released to supervision in the community provided adequate supervision can be provided. There are a number of issues with the current process. Offenders who pose an unacceptable risk which cannot be managed in the community on an ESO are being granted these orders by the court under the current test. Offenders cycle between being on an ESO and being in custody - having breached that ESO - with no change to underlying behaviour, and Corrective Services NSW is required to provide detailed information on how an unmanageable offender might be supervised in the community, even when Corrective Services does not have confidence that the proposed supervision measures will be effective in keeping the community safe. The bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. In determining whether and what type of order to impose, the court would be required to have regard to the existing considerations in sections 9 and 17 of the Act, including community safety, the offender's criminal history and the sentencing remarks of the original sentencing court. In addition to existing considerations, the reframed test will require the court to consider two additional factors; whether the offender is likely to comply with an ESO, and options in the community or in custody that would help reduce the offender's risk of reoffending over time. This second point is framed to enable the court to consider a range of options, including proximity to family, ensuring the offender's links to the community are retained, rehabilitative programs or other options available in custody or in the community. Further, when considering whether to make a CDO the Act will state that the court must not consider a breach of an ESO condition as an effective form of intervention. These reforms strengthen the test for deciding whether to impose a CDO so that an offender's risk to the community is considered instead of whether he or she has been adequately supervised. Community safety will be the Supreme Court's paramount consideration when considering whether to make an order under the Act. This aspect of the reform is expected to mean that some offenders who had previously received an ESO will now receive a CDO. That is appropriate if the offender cannot be managed in the community on an ESO." (emphasis added)
12. Prior to the 2017 amendments to the Act, there was a two-stage test for the making of a CDO for a high risk sex offender. The first step under s 5B(2) was that the offender was a high risk sex offender and the Court was satisfied to a high degree of probability that the offender posed an unacceptable risk of committing a serious sex offence if not kept under supervision. At the second step, s 5D(1) of the Act provided that a CDO could only be imposed if the Court was satisfied that "adequate supervision" could not be provided by an ESO. This is no longer the case. Part 1A of the Act has been significantly changed. Not only is there no longer any distinction between CDO's/ESO's for a high risk sex offender as opposed to a high risk violent offender, there is no longer any two stage test for the imposition of a CDO set out in Part 1A of the Act. Rather, s 5B sets out the test for imposing an ESO and s 5C sets out a separate test for imposing a CDO with no express guidance as to how the two tests interrelate.
13. In State of NSW v Jones, I approached the determination of the appropriate test for imposing a CDO in two stages: I first considered whether s 5C(d) was satisfied. Once I was satisfied it was, then I turned to consider whether, in the exercise of my discretion, and having regard to s 17(2) and 17(4) of the Act, I would dispose of the application by way of a CDO or an ESO. At the hearing of this matter on 18 June 2018, both parties agreed that this was the appropriate way to approach the statutory task.
14. After reserving my decision, I considered further the question of the interplay between ss 5C and 17 of the Act. I came to the preliminary view that the better view was that the relevant test for imposing a CDO now comprises only one step, rather than two. The question is simply whether s 5C(d) of the Act, having regard to s 17(2) and 17(4) of the Act, is satisfied. If so, the court may impose a CDO. The consideration of whether the test in s 5C(d) is established must be undertaken by reference to s 17 of the Act. That involves one evaluative decision rather than two.
15. In order to afford the parties procedural fairness, and given the short period of time before the expiration of the defendant's sentence, the parties were invited to provide a supplementary submission to the Court addressing the question of whether the appropriate test for determining whether s 5C(d) was satisfied involved one step or two steps.
16. On behalf of the State, it was submitted that the two-stage test taken in State of NSW v Jones is the correct approach. It was submitted that "adequate supervision under an ESO" is no longer a consideration in the first stage of the test following the amendments. Rather, that is a consideration which is relevant at the second stage of the test by virtue of s 17(4)(e1) and (e2). It was also submitted that the new prohibition in s 17(5) of the Act is to be applied in the second stage of the test in considering whether or not to make a CDO.
17. It was further submitted on behalf of the State that there is support for the construction adopted in State of NSW v Jones in the highlighted portion of the second reading speech extracted above at [21]. The State's position was that it is open to the Court to refer to the second reading speech to look for the objective intention of Parliament: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at [146]-[147] and Wik Peoples v Queensland (1996) 187 CLR 1 at 169.
18. On behalf of the defendant, it was submitted that as long as s 17(2) and (4) of the Act were considered in determining whether s 5C(d) was satisfied it "may not be of great import" whether those mandatory factors are considered as part of a two-step test or a single test. It was also submitted that, with the benefit of my invitation to submit further, it might be preferable to avoid terminology that involves a "positive determination (at step one)" that the defendant does pose an unacceptable risk of committing a serious offence if not kept in detention before moving to the second step. The defendant's position is that whichever test is applied in determining a CDO, the extent to which the defendant can be managed whilst at liberty in the community must be considered at some stage because, as a matter of logic, an assessment of whether a person poses an unacceptable risk of committing a serious offence if not kept in detention requires an assessment of the risk posed whilst the person is not in detention. Section 17(4)(d1), (e1) and (e2) in particular go to this issue.
19. It was further submitted on behalf of the defendant that, on a single step approach, the Court would consider all of the mandatory and relevant factors at the same stage. If the Court is of the view that the relevant risk cannot be managed while the defendant is in the community, then the Court may, dependent on other discretionary factors, impose a CDO. On the other hand, if the Court is satisfied when considering s 5C(d) that the relevant risk can be appropriately managed while the defendant is in the community, the Court will refuse to make a CDO and the Court then may impose an ESO dependent on any other discretionary factors.
20. I was assisted by these supplementary submissions and have considered them further. I am not satisfied that recourse to the second reading speech, as urged upon me by the State, supports the State's position that the test for the making of a CDO necessarily requires a two-step approach. There can be no doubt that under the new test, the "offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised." So much is clear from the statutory language. Nor is there any doubt that under the reframed test, the Court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. Addressing the question of whether the test in s 5C(d) is satisfied by having regard to the considerations in ss 17(2) and 17(4) is also consistent with the second reading speech. What is not addressed in the second reading speech, nor expressly in the Act, is whether a proper reading of ss 5C(d), 17(2) and 17(4), following the recent amendments, now requires a one-step process for the consideration of whether a CDO could be imposed as opposed to a two-step process such was the case prior to the amendments.
21. As a matter of practical reality, in most cases, the question of whether a one-stage or two-stage test is applied will not make any difference to the result so long as ss 17(2) and 17(4) are considered (as occurred in State of NSW v Jones). But the problem with a two-stage test, which was not addressed in the State's supplementary submissions, is that it means that a decision has already been made by the Court at the end of the first step that it is satisfied to a "high degree of probability" that the relevant offender poses an unacceptable risk of committing a serious offence if not detained. I can see no textual basis to then require the Court to consider s 5C(d) again but this time having regard to the factors in ss 17(2) and 17(4) of the Act. The better reading of the provisions is that the Court addresses the question of whether s 5C(d) is established, having regard to all of the factors in ss 17(2) and 17(4) of the Act. A CDO would be appropriate if the test in s 5C(d) was satisfied and an ESO would be appropriate if the test in s 5C(d) was not satisfied (so long as the test in s 5B(d) was satisfied).
22. I am satisfied that the proper test for the making of a CDO following the recent amendments is a one-step, rather than a two-step, process. I propose to approach this application by determining whether s 5C(d) is satisfied having regard to s 17(2) and 17(4) of the Act.

The evidence

1. At the first hearing day on 28 July 2017, the State relied upon the following evidence: Affidavit of Christopher Butler (solicitor for the State of New South Wales) affirmed on 3 April 2017, together with Exhibit "CB-1"; Affidavit of Christopher Butler affirmed on 13 April 2017; Affidavit of Christopher Butler affirmed on 13 July 2017; Affidavit of Debbie Thomson (Community Corrections Officer of the Extended Supervision Order Team at Corrective Services New South Wales ("CSNSW")) affirmed on 13 April 2017; Affidavit of Paul Yeomans (Senior Electronic Monitoring Officer for the External and Electronic Monitoring Group at CSNSW) affirmed on 28 June 2017; Affidavit of Samuel Ardasinski (psychologist with CSNSW) affirmed on 29 June 2017; Affidavit of Paul Garside (CSNSW Departmental Supervision Officer ("DSO")) affirmed on 30 June 2017; and Affidavit of Paul Garside affirmed 27 July 2017, together with Exhibit "B".
2. Mr Garside was called by the State to give further evidence at the hearing. He was the defendant's DSO during his recent ISO. The Court appointed experts, Dr Anthony Samuels and Dr Andrew Ellis, gave joint evidence at the hearing.
3. At the second hearing day on 18 June 2018, the State relied upon the following additional evidence: Affidavit of Christopher Butler affirmed on 16 April 2018; Affidavit of Christopher Butler affirmed on 18 April 2018; and Affidavit of Janelle Farroway affirmed on 18 April 2018. Supplementary reports from Dr Ellis and Dr Samuels dated 6 May 2018 and 8 May 2018 respectively were also tendered. Mr Ardasinski gave some short evidence as to the sorts of courses available to the defendant in custody should a CDO be granted.
4. As is usually the case in applications of this nature, there was a considerable body of material before the Court going to the question of whether the defendant poses an unacceptable risk of committing a further serious offence if not detained. As stated above, in addition to s 17(2) of the Act, s 17(4) of the Act provides a number of mandatory considerations to which the Court must have regard in determining the question of whether, in the exercise of its discretion, the Court should make the order sought. I propose to briefly set out the defendant's family and personal background before summarising the bulk of the material placed before the Court on this application. It seems to me that a convenient way to do so is under the various headings in s 17(4) of the Act given that I must have regard to those matters in determining whether to impose a CDO or an ESO. After summarising the supporting material, I will then turn to consider the question of the appropriate order in this matter.

The defendant's family background

1. The defendant was born in Newcastle on 6 September 1971 and is 46 years of age. He is single with no children. He has one younger brother who is employed and married with young children. The defendant reported that, as a child, he had a good relationship with his parents and brother. He found it difficult to make friends at High School and was bullied. He felt isolated and spent most of his time in the library reading. Around this time he became secretive, would steal from his parents and truant from school. His criminal history commenced at about this time. He was eventually expelled for truancy but he managed to pass the School Certificate.
2. When not in custody, the defendant has lived most of his life with his parents. The defendant's longest period of employment was for six months as a forklift operator. He has worked as a bartender, in a casino and as a volunteer with the Rural Fire Service and the State Emergency Service. Most of this employment was between 1997 and 2006. As for his personal relationships, the defendant's first relationship commenced some time after he was released from custody in 1997 at the age of 26. He has had casual sexual encounters with adult females on four or five occasions and some longer-term partners, all being adult females. The defendant has visited sex workers over his adult life, starting when he was 16 years of age.

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 17(4)(h)

1. The defendant has an extensive criminal history starting from around 15 years of age. His Children's Court record has entries for assault, enter inclosed lands, break, enter and steal, stealing and escape from custody. The defendant was first sentenced to full time custody when he was 16 years old in 1988. When released on parole in 1989, he re-offended and re-entered custody in 1990. He was not released until November 1997 by which time he was 26 years old. He re-entered custody in 2007 and remained imprisoned until 11 July 2014 when he was released on parole. He re-offended on parole and re-entered custody on 22 April 2015 where he remained until he was released on the ISO on 8 May 2017. He re-entered custody on 4 July 2017 after breaching that ISO and has remained in custody since that time. The history of his criminal offending is as follows.
2. In 1988, when the defendant was 16 years old, he broke into a house and attempted to sexually assault a woman residing therein ("the 1988 offences"). The defendant was sentenced for the 1988 offences on 13 October 1988 by Ducker DCJ at Newcastle District Court. He pleaded guilty to one count of threatening to inflict actual bodily harm with intent to have sexual intercourse and one count of indecent assault. The facts disclose that the victim was in bed asleep in her home when she awoke to find the defendant in her bedroom. When she asked him what he was doing there he said "I just want to fuck you". The defendant was carrying a knife. He held her down and raised the knife in the air. She screamed and tried to free herself but he placed his hand over her mouth and began touching her breasts. When she asked him why he was doing this he said "[w]ell, I'm a virgin". When he began trying to take her nightie off she pushed back. By this stage he was on top of her and still had his knife to her neck but she was able to push him away and run for the door. Her screams alerted others. He was sentenced to imprisonment for 5 years with a non-parole period of 15 months for these offences. He was released on parole in 1989.
3. In January 1990, whilst still on parole for the above offences, the defendant was arrested in relation to a number of break and enter offences and granted bail. He was by this time 18 years of age.
4. Shortly afterwards, in 1990, whilst the defendant was on bail for these recent offences and also still on parole, he again broke into the house of a young woman and violently assaulted her ("the 1990 offences"). He was still 18 years old. The facts disclose that when he came across the victim in her home he viciously assaulted her. He broke her nose, tore her clothing and inflicted other facial injuries. The defendant was apprehended by a neighbour who came to the victim's assistance before the defendant was able to sexually assault her. After a prolonged and violent struggle the neighbour was able to subdue the defendant and hold him until police arrived. The defendant pleaded guilty to breaking and entering a home with intent to commit a felony therein, namely, to have sexual intercourse. He also pleaded guilty to a charge under s 61C of the Crimes Act of maliciously inflicting actual bodily harm with the intent to have sexual intercourse and to assaulting the neighbour who came to the aid of the victim. The defendant was also sentenced in relation to a large number of break, enter and stealing offences at that time, many of which involved him breaking into homes to steal women's underwear (although some of the offences were motivated by dishonesty as well). Judge Freeman sentenced the defendant at Newcastle District Court on 25 May 1990 to a total sentence of seven years and eight months with a non-parole period of six years imprisonment.
5. The defendant was released from custody on 29 November 1997. No other criminal convictions are recorded on his record until 2007 (for offences committed in 2006). Despite this, the Risk Assessment Report ("RAR") and the CUBIT report refer to the defendant having been charged with an aggravated sexual assault on a victim under 16 years in 2002. The alleged victim was the sister of a friend of the defendant. She reported that the defendant had offered to drive her to school and then took her to his house and forced sexual intercourse with her. On 20 October 2003, a jury found the defendant not guilty of these charges.
6. In 2006, the defendant was residing with his parents and working as a volunteer at the Hunter Volunteer Centre Inc. undertaking IT Support duties. Another employee reported that the defendant had been viewing pornography on the work computer. A search of the defendant's internet files discovered child pornography. Police were informed. They subsequently executed a search warrant at the defendant's parent's home and located further child pornography there. The defendant was dealt with for using a carriage service to access child pornography on 4 June 2007 at which time he was imprisoned for 10 months. On 24 August 2008, he successfully appealed the above sentence and was placed on a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 18 months.
7. Prior to this child pornography offence, the defendant had commenced a sexual relationship with a 15-year-old female in early 2006 ("V1"). The facts disclose that the defendant told V1 that he was 25 years old when he was in fact 34 years old. He was a member of the same internet cafe as her and they first spoke online before he contacted her by way of mobile telephone. He was aware that she was only 15. They had penile vaginal intercourse on a number of occasions. When V1 moved to Queensland to stay with her father, the defendant made sexual advances towards V1's 14-year-old friend, V2. These advances were made in person, by way of email and by telephone. V2 states that the defendant telephoned her about 100 times. He would say to her things like "I'll have sex with you and you can have sex with me" and "you can give me head and I can give you head." On 27 March 2009, the defendant pleaded guilty to an indictment charging two counts of sexual intercourse with a child above the age of 14 years and under the age of 16 years and one count of using a carriage service to transmit a communication with the intention of procuring a person whom he believed to be under the age of 16 years to engage in sexual activity. Six further counts alleging sexual intercourse with V1 were taken into account on a Form 1. The defendant was sentenced by Nicholson SC DCJ in relation to these offences to a total imprisonment term of five years and two months with a non-parole period of two years and six months.
8. On 1 November 2012, whilst the defendant was still in custody, CSNSW officers conducted a routine prison cell search of the defendant's room and found a two page hand written document which included graphic descriptions of him having penile-vaginal intercourse with 8 and 9 year old female children. The defendant was interviewed and made full admissions to having written the pornographic document for his own sexual gratification. He said he prepared it completely out of his imagination. He was sentenced in relation to this at Parramatta Local Court on 25 July 2013 and placed on a bond under s 9 of the Crimes (Sentencing Procedure) Act for a period of two years.
9. The defendant was released on parole on strict conditions on 11 July 2014 to be supervised by the ESO Team. Those conditions included electronic monitoring. On 12 July 2014, he became active on the Child Protection Register (CPR). At that time his threat assessment was rated as "high" which made him subject to CPR home visits on a 30 day basis as well as subject to strict conditions including no internet access.
10. When he was visited by police on 21 March 2015 at his home in Fairfield he told them he did not have access to the internet or social media. It was later discovered that he had been using internet services on his mobile telephone.
11. On 20 April 2015, police executed a search warrant at his home. He was placed under arrest and charged with the breaches of the CPR legislation. During the execution of the search warrant, police located a USB drive which was subsequently found to contain child abuse material as well as a resume and personal documents in the name of the accused. An electronic file labelled "The Pedophiles Handbook" was also located. The child abuse material was subsequently categorised using the CETS (Child Exploitation Tracking Scheme) Scale and it was found that a significant amount of the material was in category 5.
12. On 23 June 2016, the defendant was sentenced in relation to failing to comply with his reporting obligations under the CPR and providing false and misleading information to police. He was sentenced to imprisonment for a period of 18 months with a non-parole period of 12 months commencing from 20 April 2015. On that day he was also called up in relation to the bond imposed on him on 25 July 2013 in relation to the child abuse material he wrote whilst in custody. He was sentenced to imprisonment for a period of six months commencing on 23 June 2015 including on 22 December 2015 in relation to that breach.
13. On 6 July 2016, the defendant was sentenced by Magistrate Hiatt in the Local Court in relation to possession of child abuse material contrary to s 91H(2) of the Crimes Act. This pertained to the material found on the USB drive during the search warrant executed on his parent's home on 20 April 2015. The defendant had denied knowledge of the material at the hearing but Magistrate Hiatt rejected his evidence and found that the defendant knew about the material and was in possession and exclusive control of it. His Honour viewed a representative sample of the material. He noted that some of the children used in the generation of it were very small. He assessed it as above mid-range of seriousness given the nature of the material. The defendant was sentenced to a term of two years imprisonment. That sentence expired on 8 May 2017.
14. The defendant was released from custody on 8 May 2017 on an ISO pending the final hearing of this application. Some of the conditions of that ISO were as follows. Condition 9 provided that the defendant must "truthfully answer questions from his DSO or any other person supervising him" about, inter alia, where he is going and what he is doing. Condition 29 required the defendant to tell his DSO if he started a relationship with anyone as the DSO may wish to tell that person about his criminal history. Condition 30 provided that the defendant had to obtain written permission from his DSO prior to joining any internet or mobile-based social networking service. Condition 46 required him not to use any alias or login name other than "Anthony James Barrie" or use any email address other than those known to the DSO. The defendant was required to wear an electronic monitoring bracelet and he had to provide a schedule of movements as to where he was at all times.
15. On 27 June 2017, about six weeks after the defendant was released on his ISO, police conducted an operation within the Lake Macquarie Local Area Command targeting known child sex offenders. The defendant was one of the targets. That day, the defendant had an appointment at an employment agency. He was observed to be on his mobile walking to a nearby mall in Charlestown around 11:30am. An OIMS note made at 11:36am by a person monitoring the defendant records that he requested to use a toilet in the mall at that time which was approved. After a brief period, the defendant was observed walking south and sitting at a bus stop while constantly on his phone. He was observed standing up and looking around as if searching for someone. At approximately 12:15pm he was seen meeting up with a female at the bus stop. They hugged upon greeting each other, the accused had his arm placed around her and they were seen kissing. It was apparent to police that they obviously knew each other and were very comfortable in each other's company. The accused left the location on a bus. The woman was later identified as a 25-year-old woman, MM. Inquiries revealed she was the mother of a six year old child. Police reported this breach to the ESO team.
16. On 28 June 2017, Mr Garside made a home visit to the defendant and perused his mobile telephone. He noted numerous text messages between the defendant and MM sent on 27 and 28 June 2017. The text messages between the defendant and MM were before the Court. They contain text messages with highly sexually explicit content emphasising the age difference between them. For example: MM sent a text message to the defendant stating "[y]ou are a filthy dirty man preying on an innocent girl like me". Two text messages later the defendant wrote to MM, "[w]ant to pull out your old school uniform", with three devil emojis thereafter. MM indicated that she was not averse to this idea and the defendant responded, "[m]ake sure you pull the skirt up high so that I can see your bum". After a further highly sexualised exchange, the defendant sends a message to MM, "…[t]hen you can spend the rest of the day with your cum soaked panties" to which MM responded, "[a] constant reminder that an older man took me as his own and had his way with me", to which the defendant responded, "a much older man". When Mr Garside asked the defendant if he was in a relationship with MM he denied it and also denied meeting her earlier that day.
17. I pause here to note that these text messages reveal that the defendant was engaging sexually with a consenting adult rather than a child. The difficulty with this material identified by the court appointed experts is the focus in the text messages on the age differential in circumstances where the defendant is a diagnosed paedophile as well as the fact that they occurred covertly so soon after the defendant was released on his ISO.
18. During this same home visit, a Cellbrite examination of the defendant's phone revealed that he had created an account on a classified advertising website which includes functions where persons can post personal advertisements. The account was created under the username "Ozbear 46" with the defendant's email address. He placed two advertisements using this account. In the first advertisement he sought a "young lady" "18 to 25 years old, who is seeking sex with an older man." In the second advertisement he stated that he was 45 years old and looking for "slim to medium size woman aged 18 to 35 for sex sessions. No BBW because I have been there it didn't suit. Prefer slimmer woman. Anything from size 6 to 14 please". The Cellebrite examination also revealed that the defendant had downloaded the social media application "Tinder Plus". He met MM through this site.
19. The defendant participated in an Electronically Recorded Interview with a Suspected Person (ERISP) on 4 July 2017 in relation to these breaches of his ISO. He denied meeting with MM. He also denied the other breaches of his ISO. He was refused bail and re-entered custody on 4 July 2018 following these breaches.
20. The defendant ultimately pleaded guilty to being in breach of conditions 9, 30, 34 and 46. He was sentenced in relation to these breaches at Toronto Local Court on 9 March 2018 by Magistrate Brennan to 16 months imprisonment to date from 4 July 2017 with a non-parole period of 12 months expiring on 3 July 2018.
21. When discussing these breaches of his ISO with Fiona Savage from the ESO team on 6 April 2018, she stated that he "attempted to justify his decisions, stating he was impatient with the restrictions and conditions of his [ISO]".

Recent OIMS notes

1. On 3 December 2017, whilst the defendant was on remand in relation to these recent breaches of his ISO, the OIMS (Offender Integrated Management System) disclose the following two notes dated 3 December 2017: "Inmate is in a 4 out cell, his cell mates complained that he was constantly acting inappropriately, even in front of them by allegedly masturbating over child photos/articles he compiled from various newspapers. They allegedly asked him to stop but his behaviour continues. I interviewed him, he denied all these allegations and stated he has no issue with his cell mates or any one else in the pod. He was advised to remove and dispose off any and all offensive child sex related material and to cease acting inappropriately. …. Following a conversation with BARRIE this afternoon, his cell was searched and numerous child sex related newspaper articles and pictures of children were found to have been torn up and put in his garbage bin."

The results of other expert assessments as to the likelihood of the offender committing a further serious offence: s 17(4)(c)

1. A large number of expert reports have been prepared in relation to the defendant over the years. Some of the relevant reports over the years are as follows.
2. On 8 May 1990, Bruce Chenoweth, psychiatrist, prepared a report for the defendant's proceedings on sentence in relation to the 1990 offences. He opined that Mr Barrie does not suffer from any mental illness but does suffer from a personality disorder with features of "low impulse control particularly in the arena of his sexual desires, an inability to learn from past experiences, and a need for instant gratification where this is possible". He went on to state: "I have been very pessimistic in my assessment of his recidivist tendencies and have had a Commonwealth Government authority provide him with Cyproterone Acetate, an Androgen blocker to curtail his sexual drive... However whether he takes this or not is largely up to him… There is no point in persisting with such medication whilst he is in custody. Therefore his ultimate prognosis with respect to re-offending is very poor."
3. Dr Julian Parmegiani, psychiatrist, prepared a report for the Offenders Review Board on 17 October 1996 prior to his release after his sentence for the 1990 offences. He noted: "Mr Barrie has served most of his sentence, and the Offenders Review Board is faced with the difficult question of parole. Should parole be refused, he will serve the full sentence and then return to the community without requirements for treatments or supervision. He will also be able to live where he chooses, again without monitoring. On the other hand, if he is granted parole with strict conditions, it will soon become clear whether he is able to control his impulses. In view of his history, I believe this will be unlikely, but police and mental health professionals in his area would be in a better position to take immediate action. In terms of treatment, it is possible that he will derive some benefit from hormonal treatment, although this will need to be determined once treatment has started. There is little else psychiatry can offer, and psychotherapy in particular is unlikely to be of any benefit."
4. Katie Seidler, psychologist, prepared a report dated 29 June 2008 for the sentencing before Nicholson DCJ on 2009 for the 2006 offences. She concluded that taking into account static and dynamic factors, the defendant was considered a high risk of reoffending. She stated: "There is a history of sexual and violent offending in this case and the most salient risks for Mr. Barrie are the fact that he is a lonely, isolated and inadequate man, who has used sex as a means of meeting his emotional needs. Further to this, issues of sexual deviancy are also relevant."
5. Dr Matthew Hearps, consultant psychiatrist, prepared a report dated 12 June 2015 for Court on 23 June 2015 in relation to the defendant's breaches of his CPR obligations. The defendant told him that he had used the internet so he could be connected with others. Significantly, he told Dr Hearps that he had been in a relationship with a 35 year old woman for eight months but his anti-libidinal medication interfered with his sexual function in that relationship so he ceased taking it. Also, the side effects were weight gain and enlarged breasts. He also told Dr Hearps that he first experienced sexual fantasies about children when he was in custody and aged 40-41. (In fact, his first conviction for possessing child pornography pertained to accessing it in 2006 at which time he was 35). He told Dr Hearps that his fantasies were about children who were around ten years old and that he masturbated to these fantasies 2-3 times a day. The sexual fantasies and masturbation reduced once he started taking Androcur.
6. Dr Hearps diagnosed the defendant as follows: "Mr Barrie has a paedophilic disorder. The diagnosis is made on the basis of his self-reported history of sexual fantasies about pre-pubescent children and his conviction for possession of child pornography. I note from the available material that Mr Barrie has a history of anomalous sexual behaviour associated with criminal activity. I didn't explore his sexual history with him in detail but further exploration may be warranted to determine whether he has other paraphilic disorders."
7. Dr Hearps concluded that Mr Barrie does not have a mental illness. He recommended that he recommence Androcur.

The results of any statistical or other assessments as to the likelihood of the offender committing a further serious offence: s 17(4)(d)

1. Section 14(3)(b) of the Act requires that an application for a CDO must be supported by documentation that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious offence. In compliance with this section, a Risk Assessment ("RAR") was prepared by Narcisa Sutton, psychologist, on 26 March 2015 and a supplementary RAR was prepared by Sam Ardasinksi, psychologist, on 20 June 2016. It is apparent that, although it was first intended that an application under this Act would be made in 2015, the application was deferred when the defendant was sentenced to a further period of imprisonment for possession of child abuse material in 2016.
2. Ms Sutton notes that it is not scientifically possible to accurately predict whether or not a specific offender will or will not actually reoffend. She assessed Mr Barrie's risk of sexual reoffending using the Static-99R, which is an actuarial test applied in order to assist in predicting the sexual recidivism for individuals charged with or convicted of sexual offences. Ms Sutton assessed the defendant as a "7" placing him on the high risk category. She acknowledged the limitations of this test and stated that a more comprehensive evaluation was obtained by reference to the RSVP (Risk of Sexual Violence Protocol). That is a structured professional judgment instrument developed to assist in the identification and management of sexual violence using a range of factors identified by the literature related to sexual offending. It includes 22 static and dynamic factors grouped into five domains. Those five domains are: a history of sexual violence; psychological adjustment; mental disorder; social adjustment; and manageability. She concluded that the defendant presented with risk factors in all but one of those domains (he does not have a mental disorder). She states that this suggests that the Static-99R assessment of high risk is an accurate reflection of his risk. She noted that additional risk factors are intimacy deficits and emotional difficulties associated with poor coping.
3. Ms Sutton opined that, if the defendant was to reoffend, it would most likely be against an adolescent girl after setting up a relationship with her. Ms Sutton stated that, in the event that Mr Barrie is considered suitable for an ESO, he would be subject to intensive supervision and case management by CSNSW. She advanced strict conditions which are included in the proposed conditions attached to the summons.
4. Sam Ardasinski is the senior psychologist with the Serious Offenders Assessment Unit at CSNSW. His conclusion in his report of 20 June 2016 was as follows: "Based on the available information, Mr Barrie presents an overall High risk of sexual reoffending relative to other male sexual offenders. His risk of repeat sexual offending would be most significantly increased in situations in which he has experienced stress, [or] he had experienced sexual preoccupation for a period of time or is feeling emotionally lonely and has access to a potential victim or the means to gain access to such a victim. Mr Barrie was considered treated, prior to his current breach new offence. He has participated in prior interventions to address his historical sexual offending, and more recently participated in a high-intensity sex offender treatment program in 2014. He was participating in the community-based 'after-care' Maintenance program at the time he was returned to custody on a breach of parole and new offences. Since his breach actions constitute a new sexual offence, a possible future program pathway would likely entail an individualised treatment plan which may involve a return to the high-intensity treatment program for a short period to review his self-management plans and to build the skills he may require to avoid further reoffence."
5. He noted that "Mr Barrie was displaying only superficial insights into the risk he poses of repeat offending, and presented as entitled and aggrieved, which can be a problematic combination with respect to therapeutic and supervisory engagement." He also noted that "Mr Barrie was only superficially engaged with his community supervisors and therapists whilst on parole."
6. In his evidence at the hearing on 18 June 2018, Mr Ardasinski gave evidence on two topics: what efforts CSNSW had made to organise any in-custody treatment for the defendant and what that treatment would be.
7. Mr Ardasinski accepted that the only contact between the ESO Team and the defendant since he went back into custody in July 2017 was with Ms Savage (the author of the most recent RAR). She had contacted the defendant by telephone in August 2017 and February 2018 to talk to him about pre-release planning and referrals to post release accommodations. Ms Savage also spoke to the defendant in April 2018 for the purpose of preparation of the RAR.
8. Mr Ardasinski described the further treatment that could be provided to the defendant in custody if he was placed on a CDO. He could potentially engage in a further "top up" to CUBIT in that an individualised treatment plan could be devised for him. This would entail a clinical interview by one of the senior psychologists at CUBIT to determine his specific needs in order to establish which components of the program would be necessary for him to repeat. He would not be required to repeat the entire 10-month program. Mr Ardasinski agreed that, in order for the defendant to participate in group sessions, he would need to provide his informed consent.
9. The defendant's individualised treatment plan might entail more work around targeting sexual deviance, which was not the core focus during his previous treatment. He estimated that such further treatment would take between five and six months and possibly longer depending on the level of engagement, motivation, suspension for certain behaviours, aggression as well as operational issues such as lockdowns. He has been informed that the program would have vacancies by the end of July 2018 and that the defendant could commence the treatment then. The psychologists would not be able to see the defendant "one-on-one" because CUBIT is run as a group program and they do not have capacity for individualised work.

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 17(4)(d1)

1. A Risk Management Report (RMR") was prepared by Willie Tjahjadi and John Devoy on 22 April 2015 and 5 May 2015. An updated RMR was prepared by Debbie Thompson on 28 October 2016. These reports all addressed how the defendant could be managed in the community under an ESO.
2. The five risk factors identified in the RSVP protocol were addressed. Significantly, a number of potential limitations in managing the defendant were identified. These included the potential for the defendant to fail to engage in interviews and truthfully answer questions. Additionally, a failure to take full advantage of any services by being deceitful and superficial in his interactions could hinder his transition into lawful society. Concern was raised should the defendant fail to provide details of his current location or proposed schedule of movements. His perception that anti-libidinal medication is unwarranted or restrictive was also described as a limitation. It was stated that, following implementation, the risk management plan would be reviewed every two months and updated as necessary to reflect any significant change the defendant made during that time. Subsequent to that report being prepared, on 5 May 2015, Mr Devoy updated the Report as follows: "….recent information regarding his deviant behaviour demonstrates that Mr BARRIE will demand intensive supervision and a strict, multi-disciplined case management plan. It is a concern that Mr BARRIE is alleged to have contacted the victim of his index offence and sourced Internet access while attending the Community based Sex Offender Maintenance Program."
3. The supplementary report from Ms Thomson dated 28 October 2016 concerned the conditions of the proposed ESO/ISO in late 2016 and focused on his accommodation options.
4. A further RMR was prepared by Fiona Savage and co-authored by Janelle Farroway on 12 April 2018. It contains a detailed risk management plan which contained similar proposed conditions as in the earlier RMR. Those proposed conditions include: field visits; accommodation; referral to CSNSW psychology services; participation in a Sex Offender Maintenance Program; referral to psychiatric services and encouragement to engage in any recommendation for anti-libidinal medication; counselling; non-association and place restrictions including, no contact with children under 18; electronic monitoring with provision of movement schedules and curfews. This report also sets out the limitations on the risk management of the defendant. Those limitations include failing to truthfully disclose information regarding his movements and activities to the DSO which would interfere with meaningful case management and result in a failure by the DSO to immediately detect risk factors and risk associated behaviour. It was noted that electronic monitoring and weekly schedules can assist in monitoring his movements but cannot prevent or detect high risk behaviours such as occurred on the last occasion.
5. The RAR also reported that Mr Barrie refused to be released to a COSP but agreed to be released to reside at Campbelltown Integrated Support Centre (ISC). When discussing his potential release plans, the defendant told Ms Savage that he did not require referral to any high-intensity treatment program because the child abuse material found at his home in 2015 was not his. He refused any future referrals arguing that he did not want to listen to other inmates discussing their offending. He described it as "abhorrent".
6. It was noted that should Mr Barrie be released, he would be encouraged to engage with the psychiatrist and any recommendation for anti-libidinal medication would be maintained. It was noted that upon his release from custody he will be required to engage in the Community Based Sex Offender Maintenance Program and attend on a weekly basis. Ms Farroway provided a supplementary affidavit for the proceedings which largely confirmed these matters.

Rehabilitation programs in which the offender has had an opportunity to participate: s 17(4)(e)

1. During his incarceration in 1996 the defendant participated in the Sex Offender Redirection Training (SORT) program from which he was suspended after eight sessions. That program is not considered to be a treatment program. He subsequently participated in the Sex Offender Psycho-Educational (SOPE) program in 1997 before being released to parole.
2. The defendant participated in the CUBIT program between 4 April 2013 and 10 February 2014. CUBIT is a custody-based residential therapy program for men who have sexually abused adults and/or children. Tamara Sweller has prepared a CUBIT Treatment Report dated February 2014 in relation to the defendant. Ms Sweller explains that the program "balances risk management with a strengths-based approach to treatment for individuals with moderate to high risk/needs." The program is facilitated in an open group format lasting approximately 6-10 months. Treatment length is determined by an individual's level of risks/needs. Prisoners with additional needs may remain in treatment for 12 months.
3. Ms Sweller states that although the defendant was an active participant in CUBIT, he presented himself in an "overly positive light". It was noted that as he progressed through treatment he experienced difficulties accepting the changes he was encouraged to make. This led to him presenting as "defensive, arrogant, omitting relevant information from supports, becoming guarded in providing information and blaming others for his behaviour." She observed that, throughout treatment, he presented with "vague, tangential and verbose communication." His engagement in treatment sometimes appeared superficial. Although he demonstrated an adequate intellectual understanding of treatment concepts, his "implementation of these skills and his behaviour in general suggested that he had some difficulty putting his knowledge of concepts into practice."
4. Ms Sweller stated that the defendant's "pathways to offending" generally starts with him feeling lonely and disconnected with others. He ruminates on his thoughts and engages in self-pity because he is afraid of being rejected by others so he withdraws and attempts to connect in an inappropriate way. Due to his sense of sexual entitlement he does not think about the effects of his behaviour on others. He believes he deserves to meet his sexual wants in any way he wants. She stated that "an offence might occur at this time if Mr Barrie has access to potential victims, either online or in person. He might use a weapon (e.g. a knife) to overcome victim resistance."
5. Ms Sweller applied the Static-99R test. The defendant's total score was a "7" which places him in the high risk category relative to other male sexual offenders. Compared to other adult male sex offenders he is in the 97th percentile. Taking into account that about 2.5% of sex offenders had the same score as the defendant, this means that approximately 96% of offenders scored lower than the defendant and 1.5% scored higher. This places his recidivism rate as 5.25 times higher than the typical sex offender. Ms Sweller noted the limitations of such an instrument because it is based on groups of individuals.
6. Ms Sweller noted the following in her report: "While in Cubit, Mr Barrie was sexually preoccupied and masturbated with discomfort. Due to his difficulties managing his sexual thoughts and behaviours, he commenced anti-libidinal medication while in treatment. He reported a decrease in his sexual thoughts and urges, which led to a decrease in masturbation. Mr Barrie also reported a greater sense of control over the sexual thoughts he masturbated to, such that he stopped himself from masturbating to inappropriate thoughts (e.g., about children or women who looked like teenagers). He reported that he reinforced appropriate sexual thoughts by masturbating only to these thoughts."
7. Ms Sweller concluded that the most salient dynamic risk factors for the defendant are sexual self-regulation and intimacy deficits. His difficulties with sexual self-regulation include being sexually preoccupied, using sex to cope with discomfort and having deviant sexual thoughts.
8. When he was released in 2014, the defendant was considered to be a treated sex offender on the basis that he had completed CUBIT.

The level of the offender's compliance with parole or ISO or ESO conditions: s 17(4)(f)

1. The defendant has breached his parole in the past in a number of ways. When he was released to supervised parole on 14 July 1989, his parole was revoked 10 days later for additional charges and failing to keep up his reporting condition. He was again released on 12 January 1990 but his parole was revoked on 19 March 1990 following further convictions.
2. Following the defendant's 11 July 2014 release on parole, he was strictly monitored by the ESO Team. He was subject to electronic monitoring, weekly announced and unannounced home visits, unannounced observations whilst in the community as well as weekly submission of his schedules of planned activities. Conditions of his parole included refraining from being in the company of persons under the age of 16 years. Condition 21 concerned the defendant's submission to psychiatric treatment and other medical treatment, which included anti-libidinal medication and was in these terms: "Condition 21 - The offender must, if so directed by the Officer, undergo psychiatric assessment, psychiatric counselling, other medical assessment or other medical treatment (including anti libidinal medication) at a place or places determined by that officer and must authorise in writing that his medical and other professional and/or technical advisers or consultants make available to the Officer a report on such assessment and counselling at all reasonable times."
3. The Probation and Parole Service Progress Report dated 20 September 2014 states that the defendant had been issued with Cyproterone (Androcur) at a dosage of 50mg following his release on parole. However, it was noted that information received by the ESO Team in early September 2014 revealed that he had been "diverting his anti-libidinal medication." The defendant denied this and agreed to undertake a blood test to confirm his testosterone levels. There is no information before the Court as to whether that testing was conducted and, if so, what the results were.

The level of the offender's compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 17(4)(g)

1. As stated above, following the defendant's release on parole on 11 July 2014, he was subject to the Child Protection (Offenders Registration) Act 2000 (NSW). In April 2015, police discovered that the defendant had been using mobile internet services, including video streaming services and social media, between 9 February 2015 and 9 April 2015. He was dishonest to police about this and was subsequently charged and convicted of one count of failing to comply with reporting obligations and one count of furnishing false or misleading information contrary to ss 17(1) and 18 of the Child Protection (Offenders Registration) Act respectively. He received a non-parole period of 12 months imprisonment with a balance of term of six months.

Whether the offender is likely to comply with the obligations of an extended supervision order: s 17(4)(e2)

1. As stated above, the defendant has previously breached both parole and an ISO. The evidence of his DSO, Mr Garside, during his recent ISO is also of relevance on this issue. Mr Garside gave evidence in Court on 28 July 2017. He spent approximately 20 hours per week providing supervision to the defendant whilst on his ISO. He would meet with the defendant and discuss a number of issues with him. The defendant was encouraged to reintegrate into the community as much as possible and all of the numerous activities that the defendant wanted to engage in had to be checked for any risk before permission was granted or denied or an alternative provided.
2. Mr Garside also liaised with the defendant's forensic psychologist, Dr Calinda Payne, and his job network provider. The information provided to him by Dr Payne was that his risk was elevated by the fact that the defendant was not recognising his own risk and was not developing adequate plans. Mr Garside noted that on some occasions all the defendant wanted to talk about were, in Mr Garside's view, inappropriate thoughts towards young women and sexualising young women.
3. Mr Garside's opinion was that no adequate supervision could be provided to the defendant on an ESO at his parents' home and that he could not be supervised there. The relationship between the defendant and his father is very strained and his father told Mr Garside that he would not have agreed to let the defendant reside with them if he had understood that it meant his grandchildren could not come to visit.
4. In cross-examination, Mr Garside agreed that the defendant is the first offender he has managed on an ESO type order.

The views of the sentencing court: s 17(4)(h1)

1. When the defendant was sentenced by Ducker DCJ on 13 October 1988 for the 1988 offences, his Honour noted that the defendant is a young man who "obviously has many psychological difficulties". He went on to state: "The evidence of the psychologists and psychiatrists before the court shows that he is a young person who has extreme difficulty in relating to other persons, particularly people of the female sex. It seems that he finds even talking to girls his own age excruciatingly embarrassing. It seems that he is attracted to older women but principally derives sexual satisfaction by a form of fetishism, namely a fetish directed towards women's underwear which he uses to arouse himself and as an aid to masturbation."
2. His Honour also noted the following: "There does appear to be a pattern of offences of ascending seriousness. It would seem from the information before the court by way of the psychiatric reports and the presentence reports, and the report of the psychologist, that he has made advances and has committed minor sexual assaults on young women. Such an assault led to his dismissal from one job and it led to all kinds of problems at school. Because of the behaviour of this prisoner, his propensity for entering the homes of others with some kind of sexual intent, the court made it an express condition of his bail whilst on remand that he was to reside with his parents and he was not to be absent from his home at any time when not accompanied by a responsible adult. On 11 October he was found in circumstances that indicate he was clearly in breach of that condition, not in a more technical way but in circumstances that indicated that he was indulging in this very sort of behaviour which had caused so much problem [sic] in the past. It may even be that had intervention not occurred some further offence of a more serious nature might have taken place."
3. When the defendant was sentenced by Freeman DCJ on 25 May 1990 for the 1990 offences, his Honour observed the following: "He does not suffer from any mental illness. It is said he suffers a personality problem in the sense of insecurity but there is no real optimism in the minds of those who have assessed him concerning his ability to learn from his past mistakes and his ability to learn to control himself, although that is, of course, the hope of all who are concerned with him."
4. When the defendant was sentenced by Nicholson SC DCJ on 27 March 2009 in relation to the 2006 offences, his Honour noted that the defendant's rehabilitation prospects were "possibly better than they have been in the past" because the defendant had expressed a willingness to be involved in the CUBIT program. His Honour observed: "He will need to persuade the parole authorities he is safe to release to the community. His chances of doing it without completing CUBIT must be virtually nil if not non-existent… The choices are now for him to make rather than the Parole Board. He has good family support, he has good health. While he has an alcohol problem there are courses he can attend to address that. Thus far his conduct in custody is without blemish. On the other hand there are….real risks of recidivism."
5. The sentencing remarks for possessing the child abuse material in custody were not provided to me but the sentencing remarks of Magistrate Hiatt, who sentenced the defendant on 6 July 2016 in relation to possessing child abuse material, were. His Honour observed that the material was "abhorrent and repugnant." In response to a submission that the defendant sought counselling his Honour noted: "I am somewhat sceptical of his desires as to this having regard to past conditional release orders requiring counselling towards rehabilitation. These appear not to have had any impact."
6. His Honour went on to observe that: "I have formed the review [sic] following submissions on sentence that the offender has a strong proclivity towards sexual offending relative to children so much is evident from his criminal history. His past history has required supervision and counselling relative to areas of criminogenic need. Notwithstanding these directions towards rehabilitation they have not curbed the offender's criminal actions and behaviour. Suffice to say that I tend to the view that the offender's future prospects of rehabilitation are marginal at best. His past history informs that unless released into the community subject to stringent requirements for counselling and rehabilitation that he will continue to pose a significant and real risk to children."

The s 15 (4) reports: s 17(4)(b)

1. On 2 May 2017, McCallum J ordered, pursuant to s 15(4) of the Act, that two psychiatrists be appointed to conduct separate examinations of the offender and to furnish reports to the Court on the results of those examinations. Dr Anthony Samuels has provided three reports. These include his original report of 7 June 2017, supplementary report of 26 July 2017 and further supplementary report dated 8 May 2018. Dr Andrew Ellis has also provided three reports which include his original report dated 24 June 2017, a supplementary report dated 26 July 2017 and a further supplementary report dated 6 May 2018.
2. Each of the two Court-appointed experts prepared three reports in this matter. The first reports were prepared prior to the alleged breaches of the ISO. The second reports were prepared after the defendant had breached his ISO but before the breaches were proved. The third reports were prepared after the defendant's breaches of his ISO were proved and he had engaged in masturbation to images of children in front of fellow prisoners.

The first reports

1. In his first report, Dr Samuels found that there was no evidence to support a finding that the defendant had a major psychiatric disorder in the form of an affective illness, an anxiety disorder or a psychotic illness. He did however note that the defendant has some dysfunctional personality traits characterised by anti-social, narcissistic and borderline features. His anti-social behaviour was said to be consistent throughout his adolescent and adult life and involved a longstanding pattern of aggression, lying, deceitfulness, subversion of treatment and non-compliance with authorities. Dr Samuels opined that these issues were an ongoing concern.
2. Dr Samuels did not conduct any statistical/actuarial assessments on the defendant but referred to the assessments conducted by Mr Ardasinski on 20 June 2016 and Ms Sutton on 26 March 2015, discussed above. In describing the defendant's static risk factors, Dr Samuels referred to his long history of sexual recidivism and repeat offending (even when on parole or on various forms of recognisance). He noted that the defendant has a high level of sexual deviance manifested in a range of "abhorrent sexual behaviours". He opined that the defendant seemed to have a paedophilic interest, particularly in post-pubertal young females but that there is evidence of sexual interest extending to younger children. He referred to the defendant's longstanding history of lying, deceitfulness, rationalisation of his behaviour and duplicity.
3. Dr Samuels identified the defendant's dynamic risk factors as including social rejection, victim access, exposure to pornography, association with others whose attitudes condone, facilitate or support child-abuse, boredom, intimacy deficits, impulsivity, emotional instability, poor self-regulation and feelings of anger, frustration or self-pity - all of which may drive the defendant's offending behaviour. He said that the defendant had an attitude that suggested denial and minimisation of his past offending conduct. He observed that the defendant constantly tells professionals that the factors that led him to offending in the past are no longer relevant. Despite this, his pattern of behaviour, although changing over time, has remained relatively unabated.
4. Dr Samuels' conclusion in his first report was that the defendant could be managed in the community if he was under close scrutiny with conditions such as electronic monitoring, exclusion zones, monitoring of internet and phone use and managing his associations.
5. In his first report, Dr Ellis opined that the defendant meets criteria for multiple paraphilic disorders, including female-based paedophilia (noting it is "non-exclusive" as the defendant is also attracted to adult women), fetishism, transvestic fetishism, voyeurism and partialism. Dr Ellis noted that these paraphilias are chronic, relapsing conditions resistant to treatment and rehabilitative efforts. He said that the defendant was also said to likely meet the criteria for avoidant personality disorder, reporting limited experience of social relationships, fear and trepidation in initiating or sustaining reciprocal adult relationships.
6. Dr Ellis referred to the STATIC-99R actuarial tool and concurred with the total score provided in the report of Ms Sutton. He noted that the defendant's recidivism rate is approximately 5.25 times higher than the recidivism rate expected for "typical" sex offenders who usually score a 2 on the instrument. He also made reference to the Risk for Sexual Violence Protocol (RSVP) and noted that deviant sexual arousal is consistently identified as the most prominent risk factor for sexual re-offending. The defendant's criminal history clearly indicates such a pattern of arousal.
7. Anti-social personality orientation is another factor consistently identified with sexual re-offending. Dr Ellis noted that the defendant is not diagnosed with anti-social personality disorder but that he shows poor interpersonal function that has led to limited co-operation with rehabilitation. He noted that disturbance in personality function can interfere with honesty in treatment, cooperation with restrictions, passive-aggressive sabotaging of treatment progress, and risk for redevelopment of at risk mental states such as anxiety and depression.
8. Dr Ellis said that there were a number of types of re-offending that the defendant may engage in given his diverse patterns of sexual arousal but that victims would likely be females and include children. He opined that the defendant would fall into a group of persons with a risk of sexual offending that is statically high in frequency and greater than a theoretical average offender. He stated that specific treatment and supervision would likely reduce the risk of either offence type. One such treatment option recommended was that of anti-libidinal medication such as cyproterone acetate or medroxyprogesterone acetate given that paraphilias are chronic, relapsing conditions resistant to treatment and rehabilitation.
9. Dr Ellis stated that, from a psychiatric point of view, if an ESO were to be applied, a five-year period would be reasonable in order to improve the defendant's function in the community and to refine his appraisal of risk. He suggested anti-libidinal medication routes should be taken and that a psychological program focussing on methods for controlling his deviant sexual arousal be engaged in.

The second reports

1. In his second report, Dr Samuels addressed the recent alleged breaches of the defendant's ISO. He noted that these breaches included commencing a relationship with an adult woman without advising of that relationship, lying to Probation and Parole about meeting that woman, joining social networking sites, having a history of deleting software on his phone and using a second and undisclosed email address. Dr Samuels stated that these charges, if proven, would seem to underscore his earlier assessment - that being that the defendant was in the high-range risk of re-offending. He opined that, as the ESO was in place, it quickly led to the uncovering of the offending behaviours. He thought that more strict conditions may be necessary to contain the defendant's risk. He stated: "I made a previous opinion that an ESO of five years would be warranted from a clinical point of view. Additional time in custody is unlikely to alter his risk profile, unless the time is used to initiate anti-libidinal treatment, which should take 3-6 months… If subject to a CDO over the next 12 months I would strongly recommend reassessment for anti-libidinal medication and commencement prior to release."
2. In his second report, Dr Ellis opined that the recent offences supported his previous risk assessment and that they added to the potential risk factors insofar as his attitude towards supervision could be regarded as poor. Dr Ellis said that the offences (if proved) raised questions about the defendant's ability to honestly co-operate with a regime of supervision, especially in light of his past dishonesty. Furthermore, the behaviour of using social media with a sexual focus and contacting a woman with a young child were said to give rise to significant concerns that such actions were motivated by sexual fantasy and urges.
3. Dr Ellis was of the view that additional time in custody would be unlikely to alter the defendant's risk profile unless that time was used to initiate anti-libidinal treatment. He said that, if the defendant were placed on an ESO, information pertaining to his deceptiveness and likely sexual motivation would be usefully provided to his supervising officers in order to verify his movements. It was also his view that supervision would need to be vigilantly conducted in order to be effective but that adequate supervision equipped to intervene early could be sufficient.
4. Both Dr Ellis and Dr Samuels gave joint evidence at the hearing of this matter on 28 July 2017. The topics addressed by them included: the value of any further treatment in custody; the need for the defendant to take anti-libidinal medication and the significance of the recent charges.
5. Dr Samuels stated that treatment options would be limited given that the defendant has already been through CUBIT and is considered to be a treated sex offender. He would not see any great value in the defendant joining CUBIT again. Rather, he should have an ongoing psychological treatment with a psychologist experienced in the field. Even then, Dr Samuels expressed his pessimism about its value given that he finds the defendant's capacity to modify his behaviour questionable. He opined that community-based treatment is more therapeutic than custody-based treatment as it provides for more accurate reflection of the stressors that someone in the position of the defendant would need to deal with in the real world.
6. Dr Ellis stated that psychological treatment has only a small effect on recidivism of sexual offences and psychological treatment in custody at a group level is not effective in changing it. He agreed that community-based psychological treatment has some advantage to custodial psychological treatment, stating that there is some evidence that the effect of treatment might be diluted when more high risk offenders are together and that in the custodial setting they tend to be housed together.
7. Dr Samuels opined that Cyproterone Acetate (Androcur) should be looked into again given that some of the offending occurred when he was off the medication. Dr Ellis agreed that his medication should be re-evaluated, opining that it is likely to have effect in reducing his risk of recidivism. Dr Ellis' expert opinion is that anti-libidinal medication is more effective than psychological treatment. He accepted that being in a healthy, mutually reciprocal sexual relationship with an adult, particularly if sustained over time, would be a protective factor for the defendant and understood that the defendant did not wish to take the medication. In response to a question from the defendant's counsel on this issue, Dr Ellis stated: "[The defendant] has an absolute discretion to take it or not take it and he would not need to even give reasons if he did not want to. But side effects might be a reason and the reduction in sexual function is one of the aims of the treatment and it is potentially possible to maintain sexual function while taking the medication. That needs to be ‑ essentially needs to look at dosing and other issues around that. It may be that ‑ and for some people they are able to maintain a normative sexual activity while taking the medication while reducing their disordered sexual behaviour, but for some people it reduces both and it is a decision that the person has to make as to whether they ‑ their desire to continue in normative sexual activity outweighs their concern about how they wish to manage their risk."
8. Both Dr Samuels and Dr Ellis accepted that, beyond the opportunity to introduce anti-libidinal medication benefits of him remaining in custody are small. They both understood that the defendant refuses to take anti-libidinal medication.

The third reports

1. In his third report, Dr Samuels addressed the recent allegations that the defendant had been masturbating to images of children in a four-out cell. Dr Samuels sees this behaviour as being extremely significant with respect to his assessment of the defendant's risk of committing a serious offence because it demonstrates that the defendant does in fact still have a sexual interest in children despite his denials of such. Furthermore, it is said to be testament to the strength of the defendant's deviant sexual drive that he could behave in such a way in a cell with others. That is, he is unable to control himself. As for whether the defendant's risk could be managed in the community under an ESO, Dr Samuels stated: "I am quite dubious that Mr Barrie will be able to comply with the requirements of an ESO. In light of his most recent behaviour, I think the prospects of him remaining out of custody are quite low. If he were to consider anti-libidinal medication, that may be a factor that reduces his risk but he seems to be quite opposed to this. I think it is likely that an ESO will provide some protection of the community. It will not necessarily stop offending behaviour but it certainly increases the chance of such behaviour being detected. I can see no rationale for detaining Mr Barrie indefinitely in custody but if he does not comply with the order that is, in effect, what will occur."
2. Having come to the view that there is no rationale to detain Mr Barrie indefinitely, Dr Samuels opined that a five year ESO would be appropriate and that a condition that would be appropriate would be the reintroduction of anti-libidinal medication. Other conditions would include close monitoring of his internet and electronic communications usage, prohibition of pornography and a condition preventing him from any access with children under 18 years of age.
3. In his third report, Dr Ellis noted the defendant's convictions for failing to comply with an ISO in June 2017. He stated that, as there had been further proven conduct of initiating contact with a young adult woman in a manner that promotes the age differential between the pair, his opinion that the defendant poses a high risk of further sexual offending remains unchanged. The convictions add to the potential risk factors in that the defendant's attitudes to supervision demonstrate a preparedness to be deceptive. The convictions were said to indicate the defendant's recent and historical inability to honestly co-operate with a regime of supervision.
4. In terms of the allegations that the defendant was masturbating to images of children whilst in a cell with three other inmates, Dr Ellis said that this confirms the defendant's diagnosis of paedophilia and that his sexual arousal pattern is currently active. As for the defendant's risk factors Dr Ellis stated: "The most salient risk factors present are the paraphilia diagnosis, a past history of sexual offences, past history of failure under supervision and personality dysfunction. I remain of the opinion that these risk factors (particularly paraphilia and personality disorder) are chronic conditions and are likely to be present for at least five years. While he will likely present with underlying risk of a lengthy period, while he were to be engaged with alternative prosocial activity, and take treatment to reduce paraphilia arousal these risk factors could be reduced." (emphasis added)
5. Dr Ellis noted the following: "In some regards the fact that the behaviours were identified early may have prevented escalation and progression to serious sexual offending, and the rationale for significant monitoring whilst under supervision is to detect early at risk behaviours and intervene. As the behaviours were proven this indicates an example of effective risk management in this case."

Any options available that might reduce the likelihood of the offender re-offending over time: s 17(4)(e1)

1. Nearly every expert who has ever examined the defendant is of the opinion that an effective way of managing the defendant's risk is anti-libidinal medication. I note the observations of Dr Chenoweth in 1990, Dr Julian Parmegiani in 1996, Dr Matthew Hearps in 2015, Dr Ellis and Dr Samuels in 2017 and again in 2018. I note also the comments by the authors of all of the RARs and RMRs.
2. Significantly, Ms Sweller noted in her report that once the defendant commenced taking anti-libidinal medication whilst he was undertaking the CUBIT program, he reported that it decreased his tendency to masturbate to inappropriate images.

The submissions

1. I have already addressed above the submissions made by the parties as to the approach to be taken regarding the test in s 5C(d) of the Act. The following submissions were made in relation to which order I would make in this matter.
2. The State acknowledged that the Court-appointed experts do not opine that a CDO needs to be made. Despite this, the State submitted that the expert assessments of the level of risk involved, and potential risk scenarios, are significant to the Court's determination of whether a CDO should be made. The State referred to the Act's primary object of ensuring community safety (under s 3) in this regard. The State also referred to the mandatory consideration under s 17(4)(e2) of the Act which requires the Court to consider the likelihood of the defendant complying with ESO conditions. The State submitted that the defendant is unlikely to comply with an ESO given his previous ISO breaches. The State also pointed out that, whilst the most beneficial treatment option available to the defendant is anti-libidinal medication, the defendant is opposed to this and he cannot be forced into treatment.
3. The defendant opposed the making of a CDO but does not oppose the making of an ESO for a period of five years. It was argued that the experts have not changed their view in respect of an ESO being an appropriate instrument to manage the defendant's risk despite developments with respect to the defendant's ISO breaches and alleged conduct in prison in December 2017.
4. The defendant pointed to a number of other factors supporting an ESO over a CDO as follows: that the defendant will be living in an "ISP" for a period of time post his release; that the defendant is prepared to continue with counselling following his release; that the defendant has spent 11 months in custody since the State first sought a 12 month CDO; that the 12 month sentence that the defendant has served for the ISO breaches has provided specific deterrence; that the expert evidence refers to the benefits of one-on-one counselling at liberty as opposed to the limited and group-based treatment options available in custody; and that the experts are of the opinion that there is no practical benefit in the defendant being in custody besides community protection.

Consideration

1. There was no issue taken that the statutory requirements in s 5C(a), (b) and (c) were satisfied. The fourth statutory prerequisite for the making of a CDO under s 5C(d) is that the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not detained.
2. As stated above, I propose to consider whether the test in s 5C(d) of the Act is satisfied having regard to the objects of the Act, the mandatory considerations in ss 17(2) and 17(4) of the Act as well as s 17(5) of the Act. The question is whether I am satisfied to a "high degree of probability" that the defendant poses an "unacceptable risk" of committing another "serious offence" if not detained.
3. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal (Mason P; Giles JA and Hodgson JA) observed the following regarding the phrase "high degree of probability" in this context (at [21]): "The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt."
4. Although the statutory test itself has changed since that decision, I am satisfied that the meaning of "high degree of probability" remains the same.
5. The phrase "unacceptable risk" in s 5C(d) of the Act is not defined in the Act. In State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280, the Court of Appeal (Beazley P, Macfarlan and Leeming JJA) observed at [74] that the concept of "unacceptable risk" is "…apt to involve a wide-ranging evaluative assessment." I adopt what I said in State of NSW v Jones at [210]-[212] concerning this test: "[210] The phrase "unacceptable risk" is not defined in the Act . It was considered by the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 where Beazley P (with whom Gleeson JJA agreed) held that the phrase "unacceptable risk" in the Act is to be given its everyday meaning within its context and having regard to the objects of the Act (at [58]). In addition, s 5D of the Act provides that this court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence. [211] In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] Harrison J observed: "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." [212] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
6. The evidence before me all pointed in the one direction: the defendant poses a risk of further sexual offending. The Court-appointed experts agreed on this issue as did the authors of the RARs: Ms Sutton and Mr Ardasinski. The statistical assessments all point to the defendant being a high risk of sexual offending. The STATIC-99R assessments place the defendant as a "7" and falling in the high risk category with his recidivism rate assessed to be approximately 5.25 times higher than the recidivism rate expected for "typical" sex offenders. This assessment was confirmed by the RSVP which identified deviant sexual arousal as the most prominent risk factor for sexual re-offending. Mr Ardasinski combined the score on STATIC-99R with the defendant's score of "14" on STABLE-2007 tool for the assessment of dynamic risk factors with the result of a "Very High overall risk level" for the defendant. I am required to consider these risk assessments under s 17(4)(c) and (d) of the Act.
7. The relevant risk is that the defendant would commit a "serious offence" which includes a serious sex offence as defined in s 5(1) of the Act. It is not sufficient that the unacceptable risk is that the defendant would be found in possession of child abuse materials or of breaching an ESO. The identified risk for the purposes of s 5C(d) of the Act in relation to this defendant is that he would sexually assault a child or a teenager or sexually assault an adult female in circumstances of aggravation (such as the infliction of violence). Although it is now more than 12 years since the defendant was last convicted of a sexual assault, he has spent much of the time since then in custody and has persistently breached his conditional liberty on release since that time.
8. Before turning to further consider the relevant matters in s 17(4) of the Act summarised above, it is pertinent to note that, although neither of the Court-appointed experts recommended a CDO in this matter, the question for my determination is whether the test in s 5C(d) of the Act is established having regard to a number of mandatory considerations. Both of the Court-appointed psychiatrists addressed the question of the defendant's risk from a clinical perspective and addressed the question of whether there were conditions that could be imposed on him that could manage his risk in the community. In effect, Dr Ellis and Dr Samuels addressed the question that previously formed part of the relevant test, that being, whether "adequate supervision" could be provided to the defendant by way of an ESO. The difficulty with that approach is that the question is no longer to be determined by reference to whether "adequate supervision" can be provided.
9. Dr Samuels was dubious as to whether Mr Barrie would be able to comply with the requirements of an ESO. His conclusion was that an ESO would not necessarily stop the defendant's offending behaviour but it would increase the chance of such behaviour being detected. Similarly, Dr Ellis was of the opinion that the recent proven breaches of the ISO may have prevented serious sexual offending and that this "indicates an example of effective risk management in this case." Thus, the expert evidence of both of the court appointed experts could be summarised in this way: the preferable clinical option for the defendant would be an ESO because there is nothing further that can be done to rehabilitate him in custody besides getting him settled on anti-libidinal medication, which he refuses to take. When the defendant breaches his ESO the breaches will be able to be detected and thus his risk of re-offending could be managed in this way.
10. Although it is appropriate that psychiatrists approach their task from a clinical perspective, that is not the approach that the Court must take under the Act. Section 17(2) of the Act provides that, in determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration for the Court. The application is not to be determined by consideration of whether "adequate supervision" can be provided, although consideration of the factors in s 17(4) of the Act necessarily includes matters relevant to the management of the defendant in the community.
11. Section 17(4)(e2) of the Act provides that the Court must have regard to the likelihood that the offender will comply with the obligations of an ESO when considering whether s 5C(d) is satisfied. In addition, the Court is not able to have regard to the fact that action will be taken on any breach of an ESO as being relevant to the question of whether there is an unacceptable risk of the offender committing serious offences. This is clearly a factor which has formed part of the conclusions of both of the Court-appointed experts on the question of managing the defendant's risk but s 17(5) of the Act expressly provides that: "In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences."
12. In light of these matters, I do not consider that the fact that both of the Court-appointed experts were of the view that from a clinical perspective an ESO would be appropriate carries any determinative weight in circumstances where this conclusion is based, in part, on the ability to take action against the defendant for a breach of an ESO as a way of managing risk.
13. I have reached the conclusion that I am not satisfied that the defendant is likely to comply with the conditions an ESO. I have reached this conclusion based on a number of matters including his poor history of compliance and the fact that the Court-appointed experts were of the same opinion. In particular, I have had regard to his recent breaches of his ISO. The defendant has already been sentenced in relation to these breaches and is not to be punished for them again. Despite this, the breaches are highly relevant to s 17(4)(e2). I have considered the submission made on behalf of the defendant that the fact that the defendant has already spent another 12 months in custody for breaching conditions of his ISO means that he is now aware of the significant consequences of failing to comply with a supervision order. I accept that this is correct as a matter of principle but there is no evidence before me that it has in fact acted as a specific deterrent in the defendant's case.
14. The defendant recently sought to justify the breaches of his ISO to Ms Savage by describing how impatient he was with the conditions of that ISO. Also, when he was released on parole in 2014 he was supervised by the ESO team on terms not dissimilar to an ESO, including electronic monitoring, obeying the rules of the COSP, going to therapy and having to submit his schedule of movements weekly. He breached those conditions by being found in possession of child abuse materials and was returned to custody at that time. Being returned to custody for breaching those strict parole conditions did not act to prevent him from later breaching the ISO within weeks of his release. The lack of insight associated with breaching an interim Court order knowing that the Court had the power to further detain him without charge casts doubt as to the defendant's ability to comply with an ESO for five years.
15. I have had regard to the fact that the defendant consents to being placed on a ESO. It was submitted on his behalf that it means that he is willing to accept the conditions of the Court. Although I accept that some weight must be afforded to this in the defendant's favour, this consent to an ESO must be weighed against all of the other evidence before me concerning the defendant's unsatisfactory history of non-compliance with conditions whether they be bail conditions, parole conditions, conditions of an ISO, conditions of a bond or obligations under the CPR register.
16. The fact that I am not satisfied that the defendant would comply with the conditions of his ESO is not determinative of the application. Beyond the fact that the safety of the community must be given paramount consideration, there is no hierarchy of significance as between the factors in s 17(4) of the Act. Despite this, when s 17(4)(e2) of the Act is read with s 17(5), the weight to be given to this aspect of the application becomes more significant. Both of the Court-appointed experts relied upon the fact that the defendant's breaches of the conditions of his ISO last year were detected as being indicative of the fact that an ESO could work to manage the defendant's risk. It is pertinent to observe that, on the material before the Court, the relevant breaches were not in fact detected by the defendant's DSO (who was directly supervising him for about 20 hours a week) or those electronically monitoring the defendant. Rather, the breaches were detected during a covert police operation targeting known child sex offenders in the area. This raises a serious question as to the degree of surveillance the defendant would need to be under in order for any breaches to be detected.
17. Section 17(4)(j) of the Act requires me to consider the nature of the defendant's failure to comply with his ISO and the likelihood of further failures to comply. I have already concluded that it is likely that there will be further failures to comply with supervision should the defendant be placed on an ESO. As for the nature of the defendant's breaches of his ISO, it is to be accepted that the breaches did not involve direct contact with children nor the commission of any offences beyond the breaches themselves. Despite this, the deviousness involved is of some significance. The breaches could hardly be described as inadvertent. Rather, the defendant deliberately breached his conditions regarding social media and forming a relationship and then lied about it to his DSO and police.
18. I have had regard to all of the expert reports before me. I have summarised these reports above in some detail. The general consensus of all of the expert witnesses is that the defendant's paraphilias are such that there are limitations on the effectiveness of any treatment or rehabilitation programs. There is a startling consistency in the lack of optimism expressed in the reports of the experts who have examined the defendant going as far back as 1990. The general consensus is that the defendant would re-offend because of his lack of insight into his own behaviour.
19. Another constant theme in the expert reports going back to 1990 is the desirability of the defendant undertaking some form of anti-libidinal treatment such as Androcur. In fact, there is a remarkable consensus in the expert's opinions on this issue. The expert evidence is that it would be more effective than any further psychological treatment. On this issue it is pertinent to note the recent evidence of the defendant masturbating to images of children in a four-out cell in the presence of other prisoners. This occurred in circumstances where he had recently told Dr Samuels that he did not masturbate to images of children. It also occurred in circumstances where he was in custody for breaching an ISO whilst an application under the Act was pending. This evidence is most troubling. It seems to me that the defendant's desire to masturbate to images of children would need to be very strong for him to be prepared to do so in front of other prisoners. Although the defendant denied this conduct he also stated that he had no issues with the relevant prisoners who reported him (which suggests that there was no other underlying grievance which would have caused them to fabricate the events). Moreover, the complaints are confirmed to some extent by the fact that a subsequent search of the defendant's cell revealed torn pictures of children, which had been cut out from magazines, in the bin in that cell.
20. This most recent conduct suggests that there is a strong need for the defendant to at least consider the resumption of anti-libidinal medication. Despite this, the defendant refuses to consider it. It is to be accepted that that is a decision entirely up to him and no pressure can be brought to bear on him in this regard. The fact remains, however, that when he commenced taking Andocur in 2014, it was successful in decreasing his desire to masturbate to images of children. It is difficult not to agree with the observations of Dr Ellis on this issue. His evidence was that it could still be possible to maintain a sex life whilst on Androcur and thus the question is to what extent the defendant is willing to trade a decrease in his overall sex drive in order to minimise his risk of sexual offending.
21. Section 17(4)(d1) of the Act requires me to consider the extent to which the offender can "reasonably and practicably" be managed in the community. There is some tension between this consideration and the question as to whether I am satisfied that the defendant is likely to comply with an ESO. The RARs and RMRs and the other evidence from the ESO Team suggests that although there are conditions which could be imposed to manage the defendant's risk, the question remains as to whether he would comply with such a risk management program given his identified risk factors which may impede such management.
22. Under s 17(4)(d2) of the Act I am required to have regard, inter alia, to the defendants willingness to participate in any rehabilitation programs and the level of his participation in any such programs in the past. Although he completed the CUBIT program in the past, Ms Sweller noted his superficial engagement at times. Furthermore, he relapsed whilst in the community at a time when he was undertaking a Sex Offender Maintenance Program. The defendant's current position is that he would refuse to undertake any further individualised CUBIT program in custody.
23. I am cognisant of the fact that if I make a CDO in relation to the defendant I would be doing so almost solely for the protection of the community rather than to promote the rehabilitation of the defendant. It was common ground that if the defendant was placed on a CDO there would be limited options available in custody that might reduce the likelihood of the offender re-offending over time. It was conceded on the part of counsel for the State that the primary purpose of detaining the defendant was to protect the community and little if any rehabilitative purpose could be identified. Unlike in the State's application for a CDO in State of NSW v Jones, it was not proposed that any "one-on-one" counselling would be afforded to the defendant if he remained in custody and refused to undertake a "top-up" of the CUBIT program. Furthermore, the effectiveness of any such treatment must be doubted to some extent given the evidence of Dr Ellis and Dr Samuels on this issue in court on 28 July 2017 (as discussed above).
24. I observed in State of NSW v Jones at [237] that, although the purpose of a CDO is primarily for the safety of the community, rehabilitation is nonetheless another object of the Act and an important one. The expert evidence is that there is little that can be done for the defendant from a rehabilitative perspective and the management of risk in this matter is of primary significance. In assessing the relevant risk I am required to give paramount consideration to the protection of the community.
25. I am also cognisant that, if I was to accede to the State's application and place the defendant on a CDO for 12 months, there is a possibility that the defendant's case to be presented to this Court at any future application under the Act may be very similar to that before the Court at present. This could well be the case if the defendant maintains his refusal to undertake further individualised CUBIT treatment and/or anti-libidinal treatment and persists in conduct such as that exhibited in custody last December. I have considered this prospect and come to the view that it is outweighed by the other risks the defendant poses. My task is to have regard to the terms of the Act.
26. Having regard to the terms of s 5C of the Act and having regard to s 17(2), (4) and (5) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not detained. Being so satisfied, I am not satisfied that there is any discretionary reason not to accede to the State's application that the defendant be placed on a CDO for a period of 12 months.

orderS

1. In consideration of the above, I make the following orders: 1. An order pursuant to s 5C and s 17(1)(b) of the Act that the defendant be the subject of a continuing detention order for a period of 12 months from the date the defendant's current custody expires. 2. An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the order 1. 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: 29 June 2018