State of New South Wales v Barrie

Preconditions for a continuing detention order: s 5C

1. The preconditions for making a continuing detention order are specified in s 5C of the Act: 5C Making of continuing detention orders - unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is 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.
2. If all four preconditions are satisfied then s 17 empowers the Court either to make a continuing detention order, to make an extended supervision order or to dismiss the application, subject to taking into account mandatory considerations prescribed in s 17. It is common ground that the defendant's circumstances fulfil the first three of the preconditions in s 5C. Within the meaning of par (a), the defendant is an "offender" (as defined in s 4B). He is over 18 years of age (now 48) and in 2009 he was sentenced to imprisonment for a "serious sex offence" punishable by 7 years or more, namely, sexual intercourse with a female child of between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). He has served that sentence. For the purposes of par (b) of s 5C, the defendant is a "detained offender" (as defined in s 13B) because when the present proceedings were commenced he was subject to the 12 month continuing detention order made by Adams J with effect from 4 July 2019. Paragraph (c) of s 5C is satisfied because the present application was commenced by the filing of a summons whilst the defendant was in custody under Adams J's order.
3. That leaves for determination the question whether the Court should be satisfied on the evidence "to a high degree of probability that [the defendant] poses an unacceptable risk of committing another serious offence if not kept in detention under [a continuing detention] order": s 5C(d). If the answer to that is yes then there is the further question under s 17 whether any order should be made and, if so, whether it should be for continuing detention or extended supervision. Despite that being the literal structure of the sections, it is difficult to envisage circumstances in which the Court would refrain from ordering continuing detention if satisfied under s 5C(d), to a high degree of probability, that the community would as a result be exposed to an "unacceptable risk of [the defendant] committing another serious offence".
4. In the present case, if the Court should not be satisfied in terms of s 5C(d) or, despite being satisfied, should be unwilling to make a continuing detention order, then the plaintiff seeks in the alternative an extended supervision order. The prerequisites for an order of that type would have to be addressed if the Court should not reach the satisfaction specified in s 5C(d). The prerequisites for an extended supervision order are set out in s 5B, as follows: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
5. It is common ground that all of these prerequisites are satisfied. The requirements of s 5B(a) are the same as those of s 5C(a) and are fulfilled as explained at [11] above. For the purposes of pars (b) and (c) of s 5B, the defendant is a supervised offender because he was in custody under Adams J's continuing detention order when these proceedings were commenced: see s 5I(2)(b). The defendant does not contest that, as required by par (d) the Court should be satisfied "to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under [an extended supervision] order".
6. If the four preconditions in s 5B are satisfied then the Court must determine whether to make an extended supervision order on the basis of considerations prescribed in s 9. For extended supervision orders, the relationship between s 5B and s 9 is very similar to the relationship between s 5C and s 17 for continuing detention orders. The defendant does not contest that, upon taking into account the mandatory considerations in s 9, an extended supervision order should be made against him. Nor does he take issue with any of the conditions sought by the plaintiff or with the proposed duration of 5 years.

Considerations relevant to finding "unacceptable risk" under s 5C(d)

1. The risk that the Court is required to evaluate under each of s 5C(d) (for a continuing detention order) and s 5B(d) (for an extended supervision order) is of the defendant committing "another serious offence". "Serious offence" is defined to include a "serious sex offence" or a "serious violence offence". Section 5(1) embraces within the definition of "serious sex offence" all offences contained in Div 10 of Pt 3 of the Crimes Act 1900 (NSW), entitled "Sexual offences against adults and children", where the maximum penalty is seven years or more or, in the case of an offence against an adult, where the offence is committed in circumstances of aggravation.
2. The evidence tendered by the plaintiff shows that there is at least some risk that the defendant will, if not kept in detention, commit another serious sex offence. Fulfilment of the prerequisites in s 5C therefore depends upon whether the Court should be "satisfied to a high degree of probability" that this risk is "unacceptable", as provided in par (d) of the section. Section 5D prescribes that, in determining this question, the Court is not constrained to apply a balance of probabilities test: 5D Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
3. Section 17, to which reference has already been made, provides as follows: 17 Determination of application for continuing detention order (1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. (2) In determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (b) the reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) if the offender is kept in custody or is in the community (whether or not under supervision) - any options available that might reduce the likelihood of the offender re-offending over time, (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence, (j) in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order - the nature of the failure to comply with those requirements and the likelihood of further failures to comply, (k) in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender - whether circumstances have altered since the making of the order and whether those altered circumstances mean that the risk of the offender committing a serious offence would be unacceptable unless a continuing detention order were made. (4A) To avoid doubt, section 11 (2) [permitting conditions to be imposed] applies to an extended supervision order made under this section. (5) 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.
4. The Act does not in terms state that the Court must consider the matters referred to in s 17(2) and (4), or that it must disregard the matter in subs (5), at the point deciding under s 5C(d) whether there is an unacceptable risk of the defendant committing a further serious offence. However, the paramount consideration of community safety in s 17(2) makes it inconceivable that the Court would refrain from making a continuing detention order once satisfied as to an "unacceptable risk" under s 5C(d). A decision to order continuing detention would follow inexorably from that conclusion. The Court's satisfaction that there is an unacceptable risk so integral to the decision whether to make an order that the mandatory prescription of predominant, relevant and irrelevant considerations in s 17 must be intended to apply to the evaluation of the risk under s 5C(d).
5. That is the interpretation adopted by Adams J in State of New South Wales v Barrie (Final) at [30]. The alternative view, which her Honour considered but rejected, is that the Court should first answer the question under s 5C(d) whether an unacceptable risk is posed without recourse to s 17. An affirmative answer would bring the Court to the position that it "may" make an order for continued detention and only at that point would s 17 be engaged, requiring consideration of the matters in subs (2) and (4) of s 17 in order to decide which of the three alternative courses in subs (1) it would take. Every indication is against this alternative view of the relationship between the sections.
6. All the considerations listed in s 17(4) will be pertinent, in almost every case, to assessing the degree of risk of the defendant committing another serious offence. The enactment in s 5C(d) of a test framed in terms of risk and the prescription in s 17(4) of factors that have a strong bearing upon risk appears to connect and integrate the two sections and to reveal a legislative intention that the s 17(4) factors should be brought to bear at the point of determining whether or not there exists an unacceptable risk.
7. The requirement in s 17(2) that the safety of the community must be the Court's "paramount consideration" leads to the same conclusion. Safety of the community is a consideration plainly apt to inform a decision about whether such risk of reoffending as may be identified should be regarded as "unacceptable". I interpret s 17(2) as requiring the Court to attach primary importance to community safety in answering the question in s 5C(d). Subsection (5) of s 17 is a further very strong indication. It requires the Court "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". This wording explicitly relates back to the test in s 5C(d).
8. Section 17 is highly prescriptive. It evinces Parliament's intention to constrain the Court very closely in the manner in which it decides whether a continuing detention order should be made. It is unlikely that Parliament intended that the Court should decide upon the unacceptability of risk under 5C(d) as a question at large, free of obligation to take into account any nominated factors. It would be anomalous that the Court should be left to its own determination of what matters are relevant to assessing unacceptability of risk and only then be obliged to consider the list of factors in s 17 that Parliament has evidently decided are important. No rational purpose could be served by such a structure.
9. All of that said, it is not apparent why ss 5C and 17 have been drafted in their present terms. There seems to be no reason why the Act could not directly stipulate, in clear terms, that a continuing detention order must be made if all of the prerequisites in s 5C are established and that, in resolving s 5C(d), the Court must heed the considerations in subs (2)-(5) of s17.

The meaning of "unacceptable risk"

1. The meaning of "unacceptable risk" was considered in Lynn v State of New South Wales [2016] NSWCA 57. At the date relevant to that decision the Act was structured differently from its present form. The Court of Appeal considered s 5E(2) of the Act as it then stood. That section defined a high risk violent offender, in respect of whom an extended supervision order might be made, by reference to the following criterion: … the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.
2. The similarity between that test and the current form of s 5B(d) and s 5C(d) is obvious. Further, s 5E(3) was then in terms very similar to the current s 5D. It stipulated that, in deciding whether a defendant posed an unacceptable risk within s 5E(2), the Court was not required to determine that the risk of the commission of another serious violence offence was more likely than not.
3. It is not necessary to trace subsequent legislative changes through to the current form of the Act. The formulation of the relevant tests in terms of "unacceptable risk" has been retained. The rearrangement of sections has not altered the context in any way relevant to the meaning of "unacceptable risk". The Court of Appeal decided in Lynn v State of New South Wales that a determination of whether there existed an "unacceptable risk" did not require a balance to be struck between the community's interest in protection and the defendant's interest in unrestricted liberty after the expiration of his sentence. The Court's more general observations on the former s 5E(2) appear equally applicable to the use of the expression "unacceptable risk" in the similarly worded s 5C(d), which is to be applied in the present case.
4. In Lynn v State of New South Wales Beazley P (with whom Gleeson JA agreed) said: [50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters". [51] What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.
5. Later, Beazley P referred to the decision of RA Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 and to the objects clause of the Act, s 3(1), according to which the primary object is "to provide for the extended supervision and continuing detention of high risk [offenders] so as to ensure the safety and protection of the community" (emphasis added). Her Honour said: [61] For my part, I do not understand that R A Hulme J, in using the words of the objects clause, intended to mean that "unacceptable risk" is to be determined in the sense of guaranteeing the safety and protection of the community. Rather, as the respondent has submitted the word "ensure" itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.
6. In the same case Basten JA said: [126] … The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders.
7. At first instance, Hidden J said (State of NSW v Lynn [2015] NSWSC 665 at [68]): Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence. In subsequent cases the degree of risk has often been considered in terms of the two aspects to which his Honour referred: see for example State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] (Harrison J); State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J).
8. The determination of whether a risk of future offending by an individual is "unacceptable" can only be made by reference to a standard. The generality of s 5C(d) necessarily requires the Court to measure the degree of risk that has been established in respect of the defendant against the level that the Court considers the community must accept. Is the likelihood of the defendant re-offending so high and the harm from an offence he is likely to commit so great that the community should not be expected to live with the risk? The judgment is to be made using the Court's experience of the incidence of violent and sexual crime generally, the range of seriousness of crimes that may be committed and the effects of various forms of offending upon victims and the wider community. The Court recognizes that some degree of risk from individuals who have seriously offended in the past is inescapable and that the public understands and accepts this. The only alternative to releasing prisoners while accepting of some level of risk from them would be to provide for extended incarceration in every case beyond the term of punishment fixed by a court according to law. That alternative has not been adopted by Parliament.

Defendant's criminal and custodial history: s 17(4)(f), (g), (h), (h1), (j)

1. Adams J summarised the defendant's past offending in State of New South Wales v Barrie (Final) [2018] NSWSC 1005 at [39]-[59]. In Wright J's judgment on the preliminary hearing for the present proceedings his Honour provided another summary: State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 at [35]. I have reviewed the underlying records, including relevant remarks on sentence, and I adopt their Honours' summaries. For ease of reference I recap the defendant's most serious offences as follows: 1. March 1988 (at age 16): threatening to inflict actual bodily harm with intent to have sexual intercourse and committing an act of indecency. The defendant broke into a woman's home, threatened her with a knife and attempted intercourse. The weapon was a bread and butter knife. The victim escaped and was not physically harmed. On pleas of guilty in October 1988 he was given a total effective sentence of 5 years with a non-parole period of 1 year and 3 months, to be served in a detention centre. The non-parole period expired on 12 January 1990. 2. January 1990 (at age 18), shortly after his release on parole: break and enter and assault, both with intent to have sexual intercourse. The defendant pleaded guilty and was dealt with at the same time for a number of break and enters in January and February 1990, committed while he was on parole and on bail. Some of the break and enters were "effected in pursuit of his fetish for fondling female underwear". He was sentenced to a total effective term of 7 years and 8 months with a non-parole period of 6 years. The defendant was released on probation on 29 November 1997 having served 7 years and 5 months. 3. April, May and June 2006 (at age 34): two counts of using a carriage service to access child pornography. The defendant viewed pornographic images of children, some as young as 5 years old, in sexual positions and/or engaged in sexual acts. On appeal to the District Court he received a suspended sentence of 18 months. 4. Between 26 February 2006 and 4 April 2006 (at age 34): several offences of having sexual intercourse with a girl aged 15 years and one of using a carriage service to procure a girl of 14 years. These offences were not charged until 18 October 2007, from which date he was remanded in custody. Upon his pleas of guilty entered on 27 March 2009 his total effective sentence was 8 years and 2 months with a non-parole period of 5 years and 6 months. His earliest parole release date was 17 April 2013 and his full term was to expire on 17 December 2015. He was paroled on 11 July 2014 subject to strict conditions, including electronic monitoring. He was placed on the Child Protection Register at that time. 5. 20 April 2015 (at age 44): possession of child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW), and breaches of the Child Protection (Offenders Registration) Act 2000 (NSW). The defendant was in possession of digital recordings of child abuse material, a significant amount of which was in the highest category, and an electronic file labelled "The Paedophiles Handbook". He was returned to custody, having been at liberty for only 9 months. The defendant was also called up on a bond that had been imposed in July 2013 for his possession, whilst in custody, of drawings he made of himself having intercourse with very young girls. The sentences imposed added 18 months to the sentences referred to at (4) above. The last of the additional sentences expired on 8 May 2017. 6. 27 and 28 June 2017 (at age 46): breach of McCallum J's interim supervision order, contrary to s 12 of the Act, as described at [3] above. The defendant was sentenced in the Local Court to 1 year and 4 months imprisonment with a non-parole period of 1 year, expiring 3 July 2018.
2. As already mentioned, the defendant has remained in custody from 4 July 2018 under Adams J's continuing detention order and subsequently under Wright J's interim order. Of the 31 years of the defendant's life between his seventeenth birthday and the present day (which is approximately his forty eighth birthday), he has spent just short of 20 years in prison. There is no record of any crime involving violence since he was 18; that is, 30 years ago. After serving his sentence for that last violent offence, no offence was proved against the defendant over the ensuing eight and a half years from November 1997 to April 2006. In 2002 (at age 30) he was charged with having forced the sister of friend, a girl of less than 16 years, to have sexual intercourse but he was acquitted after a trial by jury in October 2003.
3. In the period of now almost 12 years since the defendant commenced his sentence in October 2007 for the offences of sexual intercourse with the 15-year-old girl and grooming the 14-year-old, he has only been at liberty for nine months between 11 July 2014 and 22 April 2015 and for a further two months between 8 May 2017 and 4 July 2017. In those brief periods the defendant committed further offences but, with the exception of viewing child pornography contrary to s 91H(2) in April 2015, the offences were all matters of non-compliance with strict preventive controls upon his conduct, designed to reduce the risk of him committing further serious sex offences. Those breaches were not serious sex offences in themselves, indeed for the most part they were not even offences against the general criminal law. They involved no direct threat to the security of any person. The breaches illustrate the risk of the defendant not complying with an extended supervision order. They do not constitute realisation of the risk of serious sex offending.

Past psychiatric reports and risk assessments: s 17(4)(c) & (d)

1. The evidence tendered by the plaintiff includes 20 past psychiatric and psychological reports on the defendant dated between 23 June 1988 and 15 December 2008. In State of New South Wales v Barrie (Final) [2018] NSWSC 1005 at [62]-[64] Adams J summarised some of these. Although I have reviewed the reports I do not find them useful except in so far as they indicate persistence of the defendant's sexual preoccupation and behaviour. They provide a basis for the opinions of experts who have come to the subject more recently. Adams J summarised the report of Dr Hearps of 12 June 2015 at [65]-[67] and at [105]-[108] her Honour extracted the opinions of Dr Samuels (in reports dated 7 June 2017, 26 July 2017 and 7 May 2018) and of Dr Ellis (in reports dated 24 June 2017, 26 July 2017 and 6 May 2018). Those reports included reference to statistical analyses of the defendant's risk of reoffending. I adopt her Honour's summary.
2. Up to May 2018 Dr Samuels did not diagnose a major psychiatric disorder but identified dysfunctional personality traits of the defendant including antisocial and avoidant tendencies, aggression, deceitfulness and a high level of sexual deviance and drive, with apparent particular interest in post-pubertal young females and some evidence of sexual interest in young children. He found these personality traits and tendencies persistent over a long period and accompanied by denial and minimisation of past conduct. Dr Ellis diagnosed multiple paraphilic disorders that he regarded as chronic, relapsing and resistant to rehabilitation. Despite the differences between the two specialists with respect to categorisation, both of them evidently regarded the defendant's sexual deviance and preoccupation and his dishonesty about his sexual thoughts and intentions as chronic and ongoing.
3. Both doctors assessed the defendant as a high risk of further sexual offending, although they were naturally unable to opine about the form this might take or its relative seriousness. Both of them considered that if the defendant were to be released he should be under extended supervision for 5 years with tight conditions. Neither of them was optimistic about correcting his sexual deviance and drive through psychological therapy, whether in prison or in the community. Both considered that anti-libidinal medication should be used or at least tried. However this depends upon the defendant's consent and he has for the time being rejected it. His reasons are that when he used the medication in 2014-2015 it caused side effects of weight gain and growth of breasts. He has said that the medication does not suppress sexual preoccupation but reduces his physical capacity for sexual activity.

Corrective Services psychological treatment, assessments: s 17(4)(c)-(e2)

1. Mr Ardasinski, a senior psychologist in the Serious Offenders Assessment Unit of Corrective Services prepared a report of 28 February 2019 and gave oral evidence on the hearing of the summons. He assesses the defendant as continuing to have a high risk of sexual reoffending relative to other male sexual offenders. The defendant participated in sex offender treatment programs in prison in 2014 prior to his release in July that year. He also took part in a community-based maintenance program during his ensuing nine months of liberty. Since being returned to prison in April 2015 for the child pornography and other offences referred to at [33(5)] above he has refused to take part in group psychological therapy sessions. It does not appear that this refusal represents unwillingness to cooperate. Mr Ardasinski gave evidence that the defendant has "engaged well in ten sessions" of one-on-one risk management psychological therapy. Apparently he did not find it constructive to engage in therapy which involves interacting with other prisoners who have not completed a treatment program and who are continuing to: sit in their group treatment program for six to seven and a half hours per week and say one thing. And then when they return to their cell they will be doing something that is completely different …
2. The defendant admitted to Mr Ardasinski in late February 2019 that he had recently "used imagery of children as masturbatory aids" and that "most of my predominant thoughts [while living in the community for two months in 2017] were on inappropriate age groups". He "acknowledged that he has a paedophilic sexual interest, and suggested that his acceptance of same has been quite cathartic for him". Mr Ardasinski regards these acknowledgements as significant progress in the defendant's psychological therapy. He gave these answers concerning the defendant's progress through one-on-one sessions over the course of eleven months: He's developed better insight. He is more disclosive in his psychiatric and psychological problems. And I think that he has started to shift towards a more open and honest relationship [with Mr Ardasinski as a psychological counsellor] which should translate well to a supervisory relationship in the community. … in interview with me and in our sessions he has … admitted more fully the [extent] of the deviance and that they are about pre‑pubescent females which accords with the child abuse material that he created in 2015 about a 9 year old girl. So that in my mind is progress in that he is willing to admit to the [extent] of what that target child age range is. And that is a significant shift because it's, in my experience it's a lot more shame inducing to admit to fantasies about pre‑pubescent children than about teenaged girls.
3. Mr Ardasinski regards the defendant's improved frankness about the nature of his deviant sexual thoughts as conducive to management of his risk of reoffending if he were released under an extended supervision order. He said: … at least if he were to be released under supervision at some point from now his supervising officer is able to engage with him on that level and say, "Tell me about your fantasies". And you know that he is starting to open up about what the extent of those are, rather than hiding those and pretending that actually, I only have appropriate sexual fantasies, I haven't had deviant sexual fantasies for a number of years. That willingness to admit to that is half of the challenge. Then managing those is the other half. … because I am also dealing with a number of offenders who are on ESOs who are still in that phase of being in denial or being quite obstreperous with Community Corrections, that is why I see it as quite a significant shift. This is a man that I believe can be managed in the community. … having an open dialogue and a strong therapeutic alliance with high risk sex offenders … the literature suggests that that is predicative of reducing their risk of committing further sexual offences. So by having an open line of communication, by being there to support to defendant through his process of changes, that is, as I was suggesting, half of the battle. And it has, I think I outline in my report that his predilection for quite young children has been a more recent phenomenon with his earlier offending being against adult females and his serious sex offence in 2016 being against teenaged females. The more recent offending has been around child abuse material and that is something that … he has struggled with and is only now admitting to. But he's never committed a hands on offence against a very young child. So I think that it is most likely he will continue to be at risk of committing offences wherein he accesses child abuse material.
4. Mr Ardasinski would be able to continue psychological counselling and therapy of the defendant, in conjunction with a colleague, after his release under and extended supervision order. That would be supplemented with fortnightly sessions to assist the defendant's reintegration into the community. Mr Ardasinski's involvement would gradually be taken over by the Forensic Psychology Services ("FPS") branch of Community Corrections. He said: … based on his prior breach of [a supervision order] … we know more about how he at least breached in the past. And the specialist team, the Metropolitan ESO team, would be better placed to be able to put strategies in place to curtail such breach offending at the outset. And because the defendant has begun the process of change by engaging therapeutically, the treatment and supervision go hand in glove. And the idea is, if he is engaged openly and willingly with me, and with [my colleague], that that would continue in a supervisory relationship. So, he would be more likely call [his] DSO and be open about [stresses] he is under ‑ he is feeling lonely, he is feeling bored ‑ and they would be able to [provide] some support services and get him the help he needs, and that would also be supplemented with further psychological intervention.
5. Relying upon literature and empirical studies in his field, it is Mr Ardasinski's opinion that psychological counselling and therapy of an offender in the community has "a greater impact on reducing recidivism risk" than similar prison-based intervention. Mr Ardasinski is at the stage of having the defendant undertake self-management planning and he considers that "process would be sped along if the defendant was in the community". He said the defendant "has made more treatment gains in the last year than he had in the previous five years".
6. Mr Ardasinski's report of 28 February 2009 contains a review of earlier statistical and actuarial risk assessments. His conclusion on the degree of risk, in terms of both likelihood and severity of reoffending is as follows: The overall totality of evidence suggests that [the defendant] continues to fall in the high risk category of sexual offending relative to other adult male sexual offenders. … [I]t is not clear to what extent any future sexual violence or other criminal offending would necessarily approach the threshold of a "serious sexual offence" as defined in the [Act], since some of [the defendant's] more recent offending has been below that range, including his convictions for the possession and creation of child abuse material. However … without being apprehended for this risky behaviour (by being supervised), the potential for progression to new serious sexual offending is real and needs to be considered in any future risk management.
7. I have reservations about the efficacy of psychological therapy in reducing the defendant's risk of reoffending, particularly having regard to Dr Eagle's scepticism on the subject, referred to below. However I attach importance to Mr Ardasinski's evidence for two reasons in particular. First, he identifies a reasonable expectation that if the defendant is released under an extended supervision order he will engage meaningfully and at least to some degree frankly with his DSO and with the psychologists of FPS. That in turn offers a reasonable prospect that Community Corrections will be able to monitor his activities, his intentions and his mental state and will be able to supervise him effectively.
8. Secondly, Mr Ardasinski correctly observes that the defendant "has never committed a hands on offence against a very young child". Whilst he has exhibited and admitted sexual fantasies concerning children the only offences reflecting that interest have been those of viewing or possessing images. Offences of that nature, such as contraventions of s 91H(2) of the Crimes Act are certainly not victimless crimes. Their impact is insidious and indirect, however the immediate physical safety of the community would not be compromised if the high risk that the defendant will view or possess child pornography should be realised. Close supervision under an order would enhance the likelihood of this being detected.
9. The evidence includes a number of references to the circumstance that the 25-year-old woman with whom the defendant commenced a relationship whilst at liberty in 2017 (see [3] above) had a six-year-old son. Formation of the relationship with this female was a breach of the interim supervision order only because the defendant was required to have notified his DSO about any new relationship and he had failed to do so before meeting her. Neither the police facts tendered in the Local Court nor any of the Community Corrections case notes suggest that the defendant had any interest in the six-year-old boy or made any contact with him or had any intention of doing so. There is no evidence throughout the mass of material tendered in this case of the defendant ever having shown an interest in boys of any age.
10. All of the evidence about this incident indicates that the defendant's interest was in the young woman, that it was a consensual liaison and that the woman was seeking in the defendant a sexual partner. No crime against the general law was involved in this. The breach of condition was detected not by Community Corrections staff monitoring the defendant's compliance but by police undertaking an independent operation concerning known sex offenders. I infer that both police and Community Corrections are vigilant to enforce supervision orders. The manner in which this breach was detected does not cause the Court to doubt that the defendant can be kept under close observation.
11. Mr Ardasinski's conclusion about the defendant is: it is likely that risk management would be able to be effectively implemented were [the defendant] to return to the community in Sydney on an ESO. … I consider it unlikely that [the defendant] could independently remain offence free following the expiry of his current sentence if not made subject to an ESO.
12. The Court recognizes the significant prospect that the defendant will infringe his conditions of supervision sooner or later, for example by failing to adhere to a schedule of movements, by failing to disclose an internet account, by attending a place or meeting a person without prior approval of his DSO, or the like. His breach in mid-2017, within two months of release, illustrates this possibility. That event suggests poor self-discipline and lack of insight regarding the consequences of non-compliance. But breaches of conditions, of the nature described, do not amount to further serious offending. They do not of themselves impact on the safety of the community. Any such breach may impede effective monitoring and may heighten the risk posed by the defendant but will not amount to realisation of the relevant risk. Understanding and complying with the strictures of supervision are matters in the defendant's own hands. Should he breach the conditions it will be to his detriment primarily because it may lead to further imprisonment.

Current psychiatric assessments: s 17(4)(b),(c), (d)

1. Pursuant to the orders of Wright J made on 9 July 2019 under s 15(4) of the Act, Dr Samuels furnished a report dated 15 July 2019 and Dr Eagle provided a report and a short supplement both dated 1 August 2019.
2. On the basis of his examination of the defendant on 15 July 2019 and consideration of reports and case notes generated subsequent to his previous most recent report (7 May 2018), Dr Samuels noted a higher level of acknowledgement by the defendant of his deviant sexual thoughts and past behaviour and less excuse-making and denial. Dr Samuels remains of the view that the defendant is an ongoing high risk of committing a serious sexual offence. He would favour anti-libidinal medication if the defendant would accept it. On the basis of the defendant's self-report of the effects of the medication when administered in 2014, Dr Samuels accepts that he has rational grounds for not using it and noted that "even if he is on anti-libidinal medication, how much this will reduce his risk is not absolutely clear".
3. Dr Samuels expressed the following opinions regarding management of the defendant under supervision in the community: [The defendant] will present some challenges in regard to management under an ESO. However, his nonadherence to the ISO [in late June 2017] was quickly identified and promptly managed and this suggests that with very close oversight and scrutiny it should be possible to manage the risk utilising an ESO. His case officers will need to be vigilant in regard to minimising the possibility of accessing potential victims through electronic and other forms of networking. He does seem to be demonstrating more insight into his offending and the factors associated with it. However, given his prior history, it is clear that what he says cannot be absolutely relied upon and if there are opportunities to circumvent the safeguards in place he may attempt to do so.
4. Dr Eagle reviewed largely the same mass of documentation that was tendered on the hearing and she examined the defendant for three hours over two sessions. The doctor diagnosed the defendant as having a severe paraphilic disorder, resistant to previous psychological interventions and likely to be enduring and lifelong.
5. Dr Eagle assessed the defendant's risk of further sexual offending as high, noting that his risk factors "appear to have remained relatively stable for a lengthy period of time" and that it is "unlikely they will change significantly over a short time". With respect to the nature of any sexual offence that the defendant might commit in future, Dr Eagle noted that his youngest victim was 15 years old, that he had targeted a 14-year-old girl and that he had "displayed a persistent preoccupation with younger females and impersonal sexual gratification". The doctor reported: [The defendant] has shown a propensity, historically, to use violence to satisfy his sexual needs, including with a weapon. The need to use violence has potentially lessened, as [the defendant] has become more adept at manipulative and grooming techniques in addition to targeting younger victims. His inability to control his behaviour and comply with restrictions on the various trials of supervision indicates a persisting overwhelming drive to satisfy his sexual urges and fantasies.
6. As noted at [34]-[35], there is no record of any violence for 30 years, since 1990 when the defendant was 18. The use of a weapon was in connection with the offence referred to at [33(1)], when he had broken into a house and seized a butter knife from the kitchen. It somewhat understates the reduction of risk to the community over time to say that his use of violence has "potentially lessened". With respect to targeting younger victims, there is no evidence of him having done so in a physical sense since April 2006 (at age 34), when he groomed the 14-year-old see [33(4)]. His breach of his supervision order in 2017, to which Dr Eagle no doubt refers as an aspect of the defendant's "inability to control his behaviour and comply with restrictions", concerned his mutually consensual liaison with 25-year-old woman.
7. In Dr Eagle's view ongoing psychological interventions, such as planned by Mr Ardasinski, "will have limited effectiveness beyond monitoring". Dr Eagle's report includes this opinion: [The defendant] has demonstrated limited benefit from psychological interventions in the community or in prison. He is unlikely to benefit significantly from psychological interventions in future, although regular assessments by a psychologist can provide a monitoring role. … He would benefit from the development of an individualised risk management plan that takes into account his previous breaches and offending behaviour, to optimise his capacity to tolerate safe integration into the community and minimise the potential harm to others. An individualised risk management plan of this nature is what Mr Ardasinski proposes and he considers it workable as part of the implementation of an extended supervision order.
8. Towards the conclusion of her report Dr Eagle has expressed the view that if the defendant is to be released under extended supervision, such an order should be in place for 5 years. She stated these further reservations: I have concerns regarding the ability of [the defendant] to be safely managed in the community under an ESO, although I acknowledge that there is limited benefit beyond incapacitation to his remaining in prison. [The doctor referred to the primary factors in forming this view, including previous failures to abide by supervision regimes, lack of insight, minimisation of deviant sexual fantasies and unwillingness to renew anti-libidinal medication]. In addition, [the defendant] has repeatedly demonstrated the capacity to deceive those responsible for supervising him … to the extent that his self-report is highly unreliable, further undermining any supervision program.
9. The evidence of Mr Ardasinski and that of Doctors Samuels and Eagle shows that none of them suggest that any therapeutic benefit would be gained from the ongoing detention of the defendant. A continuing detention order would be solely directed to incapacitation; that is, preventive imprisonment. The secondary objective of the Act, namely, rehabilitation as provided for in s 3(2), would not be served to any extent by a continuing detention order. That is not of itself a reason for not making a continuing detention order, given that community safety is specified in s 17(2) as the mandatory predominant factor.

Conclusion on acceptability of risk

1. For reasons touched on in the passage quoted from State of New South Wales v Lynn at [28] above, where any degree of risk of further serious offending is present, the Court could only "ensure" (in the strict sense of the word) protection of the community by ordering continuing detention for the maximum permissible duration in every application under the Act. That clearly has not been provided for. The Act expressly envisages in s 5C(d) that some level of risk may be regarded by the Court as acceptable and that only in cases of "unacceptable" risk should a continuing detention order be made.
2. It is the everyday experience of the Courts that people who have never before offended may do so for the first time in a way that will constitute a "serious sex offence", with grave impact upon the victims and breach of the security of the community. Another lamentable and common occurrence is that criminals who, on sentence for earlier offences, were perceived to have good prospects of rehabilitation, offend again upon release, sometimes seriously. First and repeat offending of a serious nature is, to borrow Basten JA's term, a manifestation of the "background level of risk" from serious offenders. It is ineradicable and is continually faced by the community. There is no choice but to accept it.
3. The fact that an offender such as the present defendant has identifiable characteristics that predispose him to sexual offending, at one level of seriousness or another, does not of itself dictate that the risk he poses is unacceptable. On the contrary, the fact that his propensities are known to authorities means that an extended supervision order can be made with conditions tailored to optimise monitoring his conduct in the community and to minimise his exposure to those factors most likely to lead to repeat offending.
4. The risk that the defendant will not comply with conditions of supervision, as referred to by Drs Samuels and Eagle, does not equate to a risk of the commission of a serious sex offence. The defendant's lack of complete control over his own personality and behaviour may lead to non-compliance with a supervision order from time to time. However, under extended supervision there is an enhanced probability that behaviour having the potential to progress toward serious offending will come to the attention of Community Corrections officers and lead to intervention. In this way, the risk to the safety of the community is reduced relative to the unavoidable risk posed by other potential offenders whose tendency to commit such crimes has never been identified, whose past behaviour and proclivities have not been studied in depth as is the case with the defendant, and in respect of whom there has been no opportunity to impose conditions of supervision
5. Taking into account the evidence of Mr Ardasinski and the two doctors whose reports have been furnished specifically for the purpose of these proceedings, I am satisfied that the risk of the defendant committing some kind of sexual offence if not kept in detention is high. I am satisfied that there is at least a significant risk that he may commit a "serious sex offence". I consider that the level of risk that would otherwise attach to the defendant will be significantly reduced by subjecting him to an extended supervision order for 5 years, as I intend to do. I am not satisfied to a high degree of probability that the risk of the defendant committing another serious offence if not kept in detention under a continuing detention order is unacceptable.
6. My assessment of the reduction of risk that may be expected from the making and enforcement of an extended supervision order is important to the above conclusions. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under such an order.
7. For these reasons the plaintiff's application for a continuing detention order is refused. Pursuant to s 9(1)(a) and s 17(1)(a) it will be ordered that the defendant be subject to extended supervision for 5 years from 7 September 2019, upon the conditions sought by the plaintiff in the schedule to its amended summons filed 23 May 2019. It will be further ordered that the interim detention order made by Wright J on 13 June 2019, varied on 18 June 2019 and renewed on 24 July 2019 and 21 August 2019 is vacated with effect from 7 September 2019. Anthony James Barrie Schedule of Conditions (178 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2019