State of New South Wales v Barrie

Threshold requirements, the real issue and other interlocutory orders

1. The defendant, through his counsel Mr Kerkyasharian in his written submissions, indicated that, at the preliminary hearing stage of the proceedings, "no issue is taken with the threshold requirements of the [HRO] Act". However, it was not conceded that the disclosure required under that Act had occurred and this might remain an issue at the final hearing.
2. It was apparent that the real or substantive issue to be determined at the preliminary hearing was whether, in light of the defendant's recent progress, an ISO or an IDO should be made. There was no substantive dispute as to the other interim or interlocutory orders sought.
3. Sections 10A and 18A of the HRO Act provide that the Court "may" make an ISO or an IDO, in proceedings for an ESO or a CDO, respectively, if: "it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order …".
4. Sections 7(4) and 15(4) of the HRO Act provide that the Court "must" make orders for the examination of a defendant and for reports to be provided to the Court, relevantly, if: "following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of [an] … extended supervision order…".
5. Given: the length of time it would take to have the defendant examined, to have reports provided and to prepare these proceedings for final hearing; the matters alleged in the supporting documentation (some of which are set out in more detail below); and, the absence of any submissions to the contrary from the defendant, the Court was satisfied that: 1. the defendant's current custody would expire before the proceedings were determined; and 2. the matters alleged in the supporting documentation would, if proved, justify the making of, at least, an extended supervision order, having regard to the matters in s 9(3)(b)-(i).
6. As a result of being so satisfied, the Court was required under ss 7(4) and 15(4) of the HRO Act to make orders for the examination of the defendant by appropriately qualified psychiatrists or psychologists and for reports from those psychiatrists or psychologists to be provided to the Court. Accordingly, order 1 was made on 13 June 2019 together with the consequential orders in orders 5 and 6.
7. As there was no dispute concerning the order limiting the access to the Court file, order 4 was also made on 13 June 2019.
8. Furthermore, since being so satisfied meant that the requirements for making an IDO, under s 18A of the HRO Act, or an ISO, under s 10A, were met, the Court accepted that the substantive issue for determination at the preliminary hearing was whether an ISO or an IDO should be made. It can be noted that the defendant did not submit that neither an ISO nor an IDO could or should be made, in the present case.
9. In the circumstances, I accepted that the discretionary power of the Court to make an interim supervision order under s 10A of the HRO Act and its power to make an interim detention order under s 18A of that Act were both enlivened.
10. The defendant articulated his position, in his written submissions, as follows: "The position taken by the defendant at this stage is an interim supervision order is vastly preferable to an interim detention order and that the latter ought not to be imposed as: a. in light of the recent progress, it does not appear on the material before the Court that a continuing detention order is justified; b. time, even a short time, in the community in light of the recent progress of the defendant will be of assistance in determining the ultimate need for any type of order and the conditions appropriate to it; and c. encouraging the defendant in his rehabilitation, the prospects of which have recently markedly changed for the better, is self-evidently more likely to decrease the risk to the community in the future."
11. Determining whether an IDO or an ISO was appropriate in the present case required a review of relevant matters including, in particular, the defendant's background, offending and subsequent conduct as well as his treatment and recent progress. However, before turning to consider those matters, it was necessary to address an evidentiary issue raised by the defendant.

An evidentiary matter

1. Mr Kerkyasharian of counsel, who appeared for the defendant, raised in his written submissions the question of whether the findings of facts about the defendant made in other proceedings were admissible in these proceedings, in the light of s 91 of the Evidence Act 1995 (NSW). While he conceded that, because of s 92 of the Evidence Act, evidence of the defendant's convictions was admissible, he submitted that: "… evidence of a factual finding made in relation to those convictions, includ[ing] remarks on sentence adverse to the defendant, are not admissible due to s 91 …".
2. Further, it was submitted: "Importantly, the reasons in State of New South Wales v Barrie (Final) [2018] NSWSC 1005, particularly those which reflect on the need for an order to gaol the defendant and the defendant's risk to the community must be disregarded by this Court as a result of the operation of s 91(2), even assuming they are admissible."
3. In a footnote to the submissions, reliance was also placed upon s 135 of the Evidence Act.
4. The Evidence Act relevantly provides: "91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. Note. Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions. 92 Exceptions … (2) In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction: (a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or (b) that has been quashed or set aside, or (c) in respect of which a pardon has been given. (3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section. … 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time."
5. There are a number of difficulties with the defendant's submissions in the circumstances of the present case.
6. First, as to factual findings in judgments and remarks on sentence, including findings as to the offending and the circumstances of the offender, these are included in the matters to which the Court must have regard when determining whether to make an ESO or a CDO. Sections 9(3)(h1) and 17(4)(h1) of the HRO Act both provide that in determining whether to make an ESO or a CDO (as appropriate) the Court "must also have regard to … the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender". Those views, as recorded in the reasons for judgment or remarks on sentence, might well include factual findings concerning the offending, the circumstances of the offender including background, prospects of rehabilitation, likelihood of reoffending as well as the need for protection of the community and other relevant issues.
7. In addition, under ss 9(3)(i) and 17(4)(i), the Court must also have regard to "any other information that is available as to the likelihood that the offender will commit a further serious offence". Reasons for judgment of a court and remarks on sentence, including factual findings made concerning a relevant offender and his or her offending, may well provide such "other information".
8. Section 8 of the Evidence Act provides: "This Act does not affect the operation of the provisions of any other Act."
9. In my view, reading the two Acts together and having regard to the objects of the HRO Act set out in s 3(1) of that Act and the scope and purpose of the two Acts generally and the text, scope and purpose of the specific provisions under consideration, s 91 of the Evidence Act should not be construed as limiting the ability of the Court to have regard to "the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender" or "any other information that is available as to the likelihood that the offender will commit a further serious offence" in order to comply with ss 9(3) and 17(4) of the HRO Act. To the extent that there might be a conflict, the general provision in s 91 should give way to the specific provisions in the HRO Act.
10. Secondly, at a preliminary hearing the determination of whether to make an ISO under s 10A or an IDO under s 18A of the HRO Act depends, in part on whether "it appears to the Court … that the matters alleged in the supporting documentation would, if proved, justify the making of" an ESO. Thus, in determining whether an ISO or IDO should be made, the Court is to have regard to the matters alleged in the supporting documentation and treat them as if those matters have been proved. The "supporting documentation" is the documentation relied upon by the State to support its application for interim orders. The effect of ss 10A(b) and 18A(b) is that matters alleged in that documentation are taken to have been proved, whether or not there was admissible evidence to support those allegations at the preliminary hearing.
11. In the present case, the State's supporting documentation was: 1. the affidavits of Kate Patricia McCrossin of 15 May 2019, 23 May 2019 and 12 June 2019 (including annexures); 2. exhibits KM1 and KM2, which were originally exhibited to the affidavits of Ms McCrossin; and 3. the affidavit of Kelli Grabham of 30 May 2019.
12. All of this supporting documentation was admitted into evidence without objection.
13. The judgment in State of New South Wales v Barrie (Final) [2018] NSWSC 1005 was contained in exhibit KM1. As a result, it appears to me, that the "matters alleged in the supporting documentation" include the findings made by N Adams J in that judgment including, among other things, the defendant's criminal history, the need for an order that the defendant continue in detention and the defendant's risk to the community.
14. Thirdly, in relation to s 135 of the Evidence Act, no objection was taken to the supporting documentation when it was tendered. Accordingly, the Court was not called upon to consider the application of that section. Further and in any event, in the circumstances of this preliminary hearing in relation to interim orders under the HRO Act and given the purpose of such orders and the objects of the HRO Act, I do not accept that the findings of fact by judges in previous relevant judgments or remarks on sentence concerning the defendant should have been excluded under s 135. The probative value of the evidence, especially in the context where the allegations contained in it were to be assumed to be proved, substantially outweighed any danger that the evidence might have been unfairly prejudicial to the defendant. It did not appear to me that there was a significant danger that the material might be misleading or confusing or might cause any waste of time.
15. In the present case, the material in previous relevant judgments and remarks on sentence could be admitted in evidence and taken into account. In any event, there was no objection when the evidence was read or tendered. Since, however, it was not in issue on the preliminary hearing that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it was not necessary to address that material in detail in these reasons, although it provides part of the basis for the findings set out below.

The defendant's background

1. The defendant's background could be summarised adequately for present purposes as follows. He was born in 1971 and is a 48 year old man with a history of sexual and other offending. He was born in Newcastle, and grew up with one younger brother and his mother and father. The defendant has reported that he had a good relationship with his family members.
2. He was bullied in high school, and found it difficult to make friends and was described by his mother as "'a loner with no close friends'". The defendant was also described as an "'average student'". He claimed to have felt isolated at the time and began truanting school and engaging in criminal activity. He was later expelled from school for truancy, however, he managed to complete his School Certificate.
3. During the late 1980s, the defendant lived with his parents and was employed as a trainee salesman in a hardware store. However, after a number of incidents involving female customers, the defendant's employment was terminated. The defendant's employment also included work as a forklift operator, bartender, Rural Fire Service volunteer and State Emergency Service volunteer, but he was not employed at any one place for longer than six months.
4. The defendant has had a mix of long-term and casual intimate relationships with adult females. He has also visited sex workers over the years. The defendant is currently single with no children.
5. Criminal history and previous ISO and CDO
6. The defendant has an extensive criminal history. There was no dispute at the preliminary hearing as to these matters. Relevant aspects of the defendant's criminal history can be summarised as follows, based primarily on the NSW Police Criminal History - Bail Report printed 28 December 2018 and on what is set out in the report dated 28 February 2019 of Mr Ardasinski, Senior Psychologist with the Serious Offenders Assessment Unit: 1. The defendant reported more sexual misbehaviour as a juvenile than he was charged with, including breaking into houses in order to fondle women's underwear in what can be described as fetishistic behaviour. He received several convictions for such break and enter behaviour which did not result in sexual offence convictions, despite the sexual motive. 2. In October 1987, the defendant broke into a shower block of a sport centre and was found in the female showers watching the women shower. In relation to this offending, he was required to enter into a 12 month recognizance. 3. In March 1988, whilst on recognizance, the defendant broke into a house with the intention of stealing women's underwear. He encountered a sleeping female occupant, armed himself with a knife from the kitchen, threatened the victim to gain compliance and touched her breasts while attempting to remove her nightdress. She fought him off. In respect of this offending he was sentenced in the Newcastle District Court in October 1988 to an effective term of imprisonment for five years with a non-parole period of 15 months. 4. In October 1988, the defendant attempted to gain entry to premises with the intention of stealing female underwear but, as the premises were occupied, he did not enter but instead telephoned the female occupant and asked her to describe her underwear. The offences in this case were found to have been proved but the defendant was released without conviction on probation for 12 months. 5. In July 1989 while on parole, the defendant broke and entered certain property and stole goods. When he was apprehended in September 1989 on a charge of stealing, he escaped from lawful custody and for these offences a control order for six months commencing on 15 September 1989 was imposed. In addition, his parole was revoked. 6. In January 1990, the defendant broke and entered certain property and stole goods. In respect of each count, he was sentenced in May 1990 to a fixed term of 12 months. In imposing this sentence, the Court took into account 30 other matters on a form 2. 7. In February 1990 while on parole, the defendant broke into a house and physically assaulted the female occupant in an attempt to gain her compliance for sexual contact. He tore her blouse, held her down on the bed, and punched her in the face with his other hand. He told her to open her legs. Her neighbours intervened and subdued the defendant until police arrived. In respect of the offences of break and enter with an intent to commit a felony, maliciously inflicting actual bodily harm to have sexual intercourse and common assault, the defendant was sentenced in May 1990 to minimum terms of three, five and one years, respectively, with an additional term of one year and eight months in each case, all cumulative. 8. In November 2002, the defendant was charged with sexual offences against an acquaintance's teenage sister. He was found not guilty by a jury on 28 October 2003. 9. From February to April 2006, the defendant engaged in sexual offending against a 15-year-old female victim whom he had befriended online. They were involved in a "relationship" which lasted until the teenage victim noticed the defendant had also engaged in grooming behaviours against her teenage friends. During this time, the defendant also committed the offence of using a carriage service to procure a person under the age of 16 years for sex. In respect of two offences of having sexual intercourse with a person more than 14 and less than 16 years of age and of the use of the carriage service offence, in 2009, the defendant was sentenced to terms of imprisonment, the last of which expired on 17 December 2015, with a non-parole period expiring on I7 October 2013. A further six counts of having sexual intercourse with a person more than 14 unless and 16 years of age were taken into account on a form 1. 10. In October 2006, the defendant was found to have accessed child pornography at work and further child abuse material was located on his home computer when charged. For the offences of using a carriage service to access child pornography and possessing child pornography, the defendant was sentenced to imprisonment for 10 months commencing on 4 June 2007 with a non-parole period of three months. On appeal, the convictions were confirmed, but in lieu of the original sentences, sentences of imprisonment for 18 months suspended on entering a s 12 bond for 18 months commencing on 24 August 2007 were imposed and the defendant was directed to undergo counselling. 11. In November 2012, whilst in custody, the defendant committed the offence of producing child abuse material, namely a story detailing an intrusive sexual assault of a nine-year-old girl as well as possessing newspaper clippings of children. For this offending, a two-year section 9 bond was imposed. However, on call up on 23 June 2015, he was sentenced to 6 months imprisonment concluding on 22 December 2015. 12. In April 2015, while on parole and apparently engaging in ongoing therapy with Corrective Services New South Wales Sex Offender Programs located at Surry Hills, the defendant committed the offences of failing to comply with his reporting obligations and providing false or misleading information. He had been in contact with one of his victims and had also accessed and retained possession of child abuse material. For this offending he was sentenced to 18 months imprisonment commencing on 20 April 2015 with a non-parole period of 12 months concluding on 19 April 2016. 13. Later in April 2015, a USB containing child abuse material was found plugged into the back of the defendant's television when police attended his premises. They located 87 images and 12 videos of child abuse material, along with a file labelled "The Paedophile's Handbook". For this offending, the defendant was sentenced to 2 years imprisonment concluding on 8 May 2017. 14. After being released on an ISO on 8 May 2017, the defendant breached the conditions of that ISO within two months. The defendant made contact with an adult female with a young child. He exchanged sexually explicit text messages with the female where the focus of those messages was on the age differential between them. He also met up with the female and was observed embracing her. In addition, the defendant had joined the social networking services "Locanto" and "Tinder Plus" without permission of his DSO and used a name other than his own name as his username on "Locanto". For this offending, he was sentenced to 16 months imprisonment with a non-parole period concluding on 3 July 2018.
7. On 29 June 2018, N Adams J ordered the defendant be placed on a one-year CDO from 3 July 2018. This CDO expired on 2 July 2019.

Previous rehabilitation programs and the defendant's attitudes to his offending and programs

1. While he was in custody, the defendant attended: 1. a Sex Offender Redirection Training Program in 1996, where he was discharged in week eight for not having gained sufficient insight to warrant continuance; and 2. a Sex Offender Psycho-Educational Program in 1997, where he demonstrated active participation and considerable improvement from previous attempts at participating in the program, but was assessed as a continuing risk due to emotional and social immaturity, problems with impulse control and past deviant fantasies.
2. During a later period of custody in about 2014, the defendant undertook the Custody Based Intensive Treatment program for sex offenders, referred to as the CUBIT program. He was noted to have demonstrated active participation however engagement was deemed superficial. He was also noted to be mainly focused on the impact on himself rather than on victims.
3. While subject to the ISO from 8 May 2017, the defendant was required to attend weekly maintenance sessions with a Forensic Psychologist. As to his non-compliance with the conditions of that order, the defendant suggested that impatience in approval for him to see his female friend led to his choices to breach the conditions. He denied deviant sexual thoughts at this time and continued to refuse to consider anti-libidinal medication or the CUBIT therapy.
4. After returning to custody, other offenders who shared a cell with the defendant complained that the defendant would masturbate over child photos and articles. A search of his cell revealed child sexualised newspaper clippings and pictures in the garbage bin. Similar photos were found by guards on 18 December 2017 on the defendant's cell wall at the foot of his bed.
5. In April 2018, the defendant declined the possibility of anti-libidinal medication on the basis that he did not like the side effects. He also refused to participate in the CUBIT program on the basis that, although he was convicted of another sex offence after completing the program in 2014, he claimed that the child abuse material was not his.
6. As at 26 February 2019, Mr Ardasinski recorded the defendant's attitude as being as follows: "However, [the defendant] remained quite adamant that he would not reconsider a return to CUBIT or to antilibidinal therapy, stating in interview with me that, 'At the end of the day, it won't change my high risk.' He suggested he was 'terrified' of going back on Androcur and he felt he did not want medication to be the control element for his deviance - he wanted to be in control of his risk management, as he felt that being on medication would limit his feeling of control over his capacity manage his own risk. He also suggested that when he had told previous psychiatrists that the medication was working to minimise his deviant sexual thoughts, he had been lying about that - 'the medication reduced the masturbation, but not the thoughts.' I mentioned to [the defendant] that it was difficult to separate out the truth from the lies in his accounts, and he accepted this, but maintained that the anti-libidinal therapy had been an ineffective risk management aid for him."

The defendant's substantive argument

1. What was described by the defendant, in his written submissions, [1] as the "substantive argument" on the preliminary hearing can be summarised as follows: 1. the defendant has progressed significantly since the previous CDO was made on 29 June 2018; 2. that progress clearly evinced a profound change in the defendant in that: 1. on 3 August 2018, the defendant himself asked to be referred to a psychologist; 2. on 8 August 2018, the defendant case notes record that he was seeking better coping strategies for his mental health, shared his recent breaches, admitted that he knew that it was wrong and he expressed his wish to change his behaviour, identified coping strategies and expressed his wish to "practice being honest and confront his offending behaviour"; 3. on 12 September 2018, the defendant consented to psychological contact, although not through the CUBIT program, and continued to see the psychologist, Mr Ardasinski or his colleague, over September and October and was progressing well; 4. Mr Ardasinski's report of 28 February 2019 records the defendant's progress and his recommendations should be adopted; 1. the defendant's recent progress is more important than his past conduct, on an application such as the present; and 2. an ISO is more appropriate because the options available to assist the defendant are greater in the community than in custody, the defendant is prepared to be assessed for anti-libidinal medication if not in custody, and the conditions proposed by the State for an ESO will be accepted by the defendant for the purposes of an ISO.

Recent assessments of the defendant's risk and progress

1. Given the reliance by the defendant on his recent progress under Mr Ardasinski's care and on his attitude as disclosed in Ms Savage's Update Risk Management Report of 28 March 2019, I focused upon Mr Ardasinski's report of 28 February 2019 and Ms Savage's report. In doing so, however, I noted that there was no recent psychiatric assessment of the defendant nor was there psychiatric evidence concerning the progress which was said to have been made by the defendant from late 2018. As a result, I also had particular regard to the psychiatric reports that had been prepared prior to the imposition of the CDO in June 2018, namely: 1. the reports of Dr Andrew Ellis, forensic psychiatrist, of 24 June 2017, 26 July 2017 and 26 May 2018; and 2. the reports of Dr Anthony Samuels, consultant psychiatrist, of 7 June 2017 and 7 May 2018.
2. Since the psychiatrists' reports were earlier in time, I shall deal with those first.

The 2017 and 2018 psychiatrists' reports

1. In his report of 24 June 2017, Dr Ellis was of the view that the defendant met the diagnostic criteria for multiple paraphilia disorders including paedophilia, fetishism and transvestic fetishism, voyeurism and partialism, which are chronic relapsing conditions. He also thought it likely that the defendant met the criteria for avoidant personality disorder.
2. In considering actuarial, structured professional and clinical parameters of risk of re-offending in the absence of any treatment or supervision, Dr Ellis was of the view that the defendant would fall into the group of persons with a risk of sexual offending that is statistically high in frequency. In his later report of 6 May 2018, Dr Ellis recommended that any program for the defendant should focus on "controlling sexual deviance and deception in his communications". Later in that same report Dr Ellis stated: "… The two risk factors of most concerns are a paraphilia diagnosis with evidence of active arousal to the fantasy and a personality disorder with evidence of recent deception and minimisation of conduct".
3. Dr Samuels, in his report of 7 June 2017, expressed his clinical judgement that the defendant remained at high risk of committing a further serious sexual offence. The doctor noted a high level of sexual deviance manifested in a range of aberrant sexual behaviours. He also noted antisocial personality features with narcissistic and borderline traits and a history of lying, deceitfulness and rationalisation of behaviour and duplicity. Dr Samuels also drew specific attention to the fact that a number of the defendant's sexual crimes had involved violence and that at one point he had had sexual fantasies which involved killing a victim.
4. In Dr Samuels' 26 July 2017 report, he expressed the opinion that although an ESO might provide a level of protection: "[the defendant] is, however, a recalcitrant offender and there is evidence that he has used quite sophisticated methods to undermine the ESO provisions that are in place and there may well need to be even tighter restrictions on his movements, behaviours, contacts, access to Internet-based devices when ultimately released to contain his risk."
5. Later in that same report, Dr Samuels also said: "I have already expressed some scepticism about the benefits of treatment and these would seem to be warranted. There clearly is a discrepancy between what [the defendant] says and what he does. His self-report is entirely unreliable. He told me that he no longer has deviant sexual fantasies and only masturbates to what he calls 'appropriate sexual themes'. This is clearly not true.…"
6. In his report of 7 May 2018, Dr Samuels expressed the following opinion: "[The defendant] has tended to deny, minimise and rationalise previous offending behaviour. He consistently says that he has benefited from sex offender treatment, he has changed his ways, he no longer has deviant interests and he has learned from his past experiences. He also lies, he is deceitful and can be quite cunning and manipulative. The events that led to him going back into custody demonstrate his lack of insight and were particularly ill-judged, given the fact that he should have been aware that he was going to be under close scrutiny given the fact that he was on an ISO."
7. Against that background and assuming the matters alleged in those reports to be proved, I then turned to consider the more recent reports of Mr Ardasinski and Ms Savage.

Mr Ardasinski's report of 28 February 2019

1. Mr Ardasinski prepared a risk assessment report dated 28 February 2019. He had commenced seeing the defendant on 12 September 2018 for the purpose of individual risk management sessions with him whilst in custody since he remained firm in his written for resolve to avoid returning to the CUBIT program. On 25 February 2019, Mr Ardasinski conducted an interview with the defendant and obtained his consent to the preparation of a risk assessment report.
2. Mr Ardasinski recorded that, by that time, the defendant had engaged in 10 sessions of individual risk management within an interview room located at the Metropolitan Special Program Centre, Long Bay, with himself or with a colleague, aimed at increasing the defendant's level of insight into his criminal needs, triggers for re-offence, and compliance issues when last at conditional liberty under his parole order and ISO. It was noted that the intention was that these sessions should continue until the expiry of the CDO and eventual handover to a community-based therapist.
3. I have already quoted, at some length above, Mr Ardasinski's comments concerning the unwillingness of the defendant to participate in the CUBIT program or to consider anti-libidinal medication, as at February 2019. Mr Ardasinski also reported on the defendant's previous participation in the CUBIT program and Community-Based Maintenance sessions. Relevant observations from related notes included: 1. that the defendant was "quite manipulative", that he "seems to know the right things to say and appears genuine" (18/5/17); 2. that the defendant "tends to present with a victim stance" and that "his circumstances are unfair and he is incapable of doing anything to adjust his circumstances" (2/6/17); 3. that he could not identify his own risk factors (6/6/17); 4. that the defendant is "excited" by the age difference between himself and a woman he was having a relationship with at one time; 5. that the defendant "experienced increased risk in the area of sexual preoccupation, possibly due to boredom, loneliness and his use of sex to cope". The author was of the view that "his inability to make relationships and fear of judgement" as well as his lack of sexual interest in adults, stopped him from establishing appropriate relationships and that the defendant sought sex with young adult females in the hope that they "emulate a child", in appearance and/or behaviour. The author also noted that although the defendant acknowledged his inappropriate behaviour, he tended to blame those around him for his loneliness and sexual arousal, and blamed the strictness of the ESO conditions for not being able to form appropriate relationships (30/6/17).
4. Mr Ardasinski also suggested that the defendant's engagement with the maintenance program during 2014 and 2015 was likely superficial, due to continued offending whilst he was participating in the programs. It was recommended that he repeat the CUBIT program to address these issues.
5. Although the defendant refused to consent to participation in a sex offenders program in custody, Mr Ardasinski noted that he did consent to the individual risk management sessions referred to above.
6. As to the defendant's risk of sexual reoffending, Mr Ardasinski used actuarial measures of static risk including STATIC-2002R and VRAG-R. On the STATIC-2002R, the defendant fell within the highest risk category for that instrument, with a score of 9. Mr Ardasinski noted a number of relevant and significant statistics in this regard: 1. "The rates of sexual recidivism for sexual offenders within the STATIC-2002R 'routine' normative samples who scored a 9 on the STATIC-2002R were between 36.5 and 51.2 per cent over five years"; 2. "Another normative sample, pre-selected for its high risk/needs, saw individuals who had a STATIC-2002R score of 9 reoffending at a rate of between 27.3 and 45.9 per cent over five years"; and 3. "97.2 per cent of sexual offenders in the routine sample would score below the defendant's STATIC-2002R score. The rate of recidivism for individuals with a STATIC-2002R score of 9 (or over) is estimated to be over seven times higher than that of the 'typical' sex offender."
7. Using the VRAG-R test, the defendant scored higher than the score of 89% of the construction sample. This placed him in the high risk category. 58% of those within the defendant's category tend to re-offend violently within five years and 78% re-offend violently within 12 years.
8. Mr Ardasinski noted the limitations of these actuarial instruments in assessing unique individual's risks.
9. When assessing dynamic risk, Mr Ardasinski used the STABLE-2007, the defendant's score of 12, down from 14 in 2016, suggested a "High density of criminogenic needs", with the most significant factors being 'General Social Rejection' and 'Deviant Sexual Preference'.
10. Overall, Mr Ardasinski concluded that the defendant presented a high risk of sexual reoffending relative to other male sexual offenders and that his overall risk level of Level IVb, indicated that he required a high level supervision upon his eventual release and a high level intervention to address his outstanding criminal needs.
11. In relation to risk factors, Mr Ardasinski noted that, although the defendant had demonstrated an awareness of his risk factors: "having an awareness of risk factors and being able to manage these factors independently are two different things - in terms of his capacity [to] self-manage these risks, [the defendant] remains untested and his self-management plans are, at the stage of writing this report, only fairly rudimentary (e.g. distraction). He will have access to further risk management sessions in custody, and has agreed to a referral to FPS, Surry Hills, upon any eventual release to continue to build on the work he has commenced within our sessions together."
12. Mr Ardasinski expressed views as to the appropriateness of a CDO or an ESO. He did not express any views as to whether, in the short-term and pending examination by psychiatrists, the defendant would be more appropriately the subject of an ISO or an IDO.
13. Mr Ardasinski was of the view that, if the defendant was considered suitable for an ESO, it would have to provide ongoing intensive supervision and case management. With ongoing supervision and professional support, the long-term aim would be to foster problem-solving and stress coping abilities in the defendant such that he no longer required the assistance of external bodies to contain his risk of sexual offending. Nonetheless, it was specifically noted that: "Such supervision could minimise risk of behaviour that may otherwise result in a sexual offending scenario, provided [the defendant] is willing to engage fully in that process. He would need to be willing to work at developing approach goals which are fulfilling and meaningful for him - he has commenced this work within our sessions."
14. Finally, Mr Ardasinski summarised his position as follows: "Due to his high risk, his very recent increases in self-awareness and acceptance of his risk and needs, his lack of social supports in the Sydney area, his history of breaching supervision conditions and his refusal to consider chemical assistance to moderate his sex drive until he has tested himself in the community for a period, he is unlikely to demonstrate the level of problem-solving ability which would ameliorate his participation in actions that contribute to high-risk situations."

Ms Savage's report of 28 March 2019

1. More recently, on 22 March 2019, the defendant met with Ms Savage, from Corrective Services NSW, and she prepared her report dated 28 March 2019. That report focused upon how the defendant's risk of sexual reoffending might be managed if he were to be released into the community. As such, it provided only indirect assistance to the Court on the question of whether the defendant should be subject to an ISO or an IDO.
2. Nonetheless, it is useful to note that the defendant conveyed to Ms Savage a willingness to engage with individual sessions or group treatment upon release and he stated he would like to see an independent psychologist for general treatment. She also noted that: "During a recent interview, [the defendant] stated that he will not consider being assessed for anti-libidinal medication whilst in custody. However, he agreed that upon release he would visit with an independent psychiatrist and/or general practitioner to be assessed for such medication."

Other reports

1. Other previous reports, dating back to 1989, also noted the defendant's history of sexual offending, similar risk factors and substantially the same assessments of the defendant's risk of sexual reoffending. Neither party submitted that there was anything in these reports that was inconsistent with Mr Ardasinski's views or those of Dr Ellis and Dr Samuels.

Recent Offender Information Management System (OIMS) notes

1. I also reviewed the OIMS notes in respect of the defendant and noted from the more recent notes that the defendant has continued to participate in individual sessions with Mr Ardasinski or a colleague so that, by 21 May 2019, the defendant had completed 13 sessions.
2. The OIMS notes for 22 March 2019 reveal that, at that time, the defendant was able to identify several risk factors in relation to his offending and identified being truthful as one of the strategies to address his risk factors. It was also noted that: "[The defendant] was asked when was the last time he had any deviant sexual thoughts, he admitted that he had masturbated to an image of a child on TV approx 2wks ago. He added that he felt 'guilty' afterwards. … [The defendant] conveyed a willingness to engage with individual sessions or group treatment via FPS upon release. Additionally, he stated he would like to see an independent Psychologist for general treatment. He stated that he will not consider being assessed for anti-libidinal while in custody. However, he agreed that upon release he would see an independent Psychiatrist and/or a GP to be assessed for such medication. His concern is that he does not want to be prescribed medication that would have adverse side effects i.e. larger breasts. … When discussing his previous breaches related to electronic devices and Internet access, [the defendant] stated that he has a better understanding about seeking approval and that there is a process for each request that may require some time to approve by the ESO Team. He stated he would be more mindful of these processes in the future. He stated that upon release he would like to build a better r/ship with ESO. …".
3. There was no submission that anything in the OIMS notes was inconsistent with or detracted from the views of Drs Ellis and Samuels or Mr Ardasinski, referred to above.

IDO or ISO?

1. As has already been observed, there was no substantial dispute that the matters alleged in the supporting documentation, if proved, would justify the making of an extended supervision order and, thus, it was open to the Court, at the preliminary hearing, to make an ISO or an IDO. In the light of the supporting documentation before the Court, I accepted this was correct.

Submissions

1. The State emphasised the paramount consideration of community safety. Ms Curry of counsel, who appeared for the State, argued that an IDO would best protect the community and that it would ensure that there is no opportunity for the defendant's motivation and lack of control to be exacerbated by the absence of protective factors. Further, the State submitted that there is a "real and unacceptable risk of the defendant committing another serious offence if not kept detained".
2. The State also submitted that the defendant would have the benefit of rehabilitation through continued detention and could continue his individual risk assessment sessions with Mr Ardasinski or a colleague.
3. If, contrary to the primary submission, an IDO were not thought to be appropriate, the State submitted there should be an ISO, arguing that there is limited evidence that the defendant could effectively reintegrate back into the community without supervision. The State relied on the "overwhelming" opinion of experts who believe the defendant requires intensive monitoring and supervision, and emphasised his poor history of compliance and of controlling his urges.
4. The State also referred to Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [46] in support of the proposition that the court should take a risk avoidance approach at the interim stage.
5. The defendant contended that an ISO would be more appropriate than an IDO. Specifically, the defendant argued that, on the material before the Court, the defendant had made great progress recently and his release into the community under an ISO would assist in his obtaining appropriate treatment whether by way of anti-libidinal medication or psychological therapy. It was said that an ISO would be important to encourage his further rehabilitation and ultimately to reduce his risk of serious sexual reoffending.
6. It was in effect submitted that if an IDO were imposed, the defendant would simply remain in custody and would not be assessed for anti-libidinal medication or participate in programs, other than his individual sessions with Mr Ardasinski or a colleague. This course, it was contended, would be unlikely to lead to any substantial reduction in the risk posed by the defendant in the short or long term.
7. The defendant submitted that he had undergone "a profound change" since his previous CDO was ordered in 2018. He submitted that in this time, he has requested referral to a psychologist, contacted mental health services in custody to address his behaviour and coping strategies, consented to psychological contact, and continued seeing a psychologist in custody.
8. The defendant claimed that there has been a "fundamental shift in his thinking" and that he is "finally facing and telling the truth". He argued that denying him liberty would risk throwing away his progress in rehabilitation and the defendant emphasised the lack of opportunity for treatment and programs in custody.

Consideration

1. In reaching my decision, I bore in mind the objectives of the CHRO Act: "(1) The primary object of this 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. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
2. In addition and in accordance with what was said by Bell J in Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7], I was of the view that it was appropriate to give weight to risk avoidance in considering whether to make an ISO or an IDO. These were interim orders made only for a limited time, pending the final determination of the proceedings. The passage from the Court of Appeal's judgment in Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [46] provided support for this approach.
3. I found it particularly significant that the defendant had been released into the community under an ISO with strict conditions, slightly more than two years ago. Within two months, he had breached the conditions of that order and was contacting and meeting an adult female with a young child. On this application, the Court was, in effect, asked to accept that something similar would not happen if the defendant was released on an ISO when his current of CDO expired in July 2019, because of the defendant's progress since late 2018.
4. The defendant did not give evidence before me to explain, in his own words, the nature and extent of his progress. Nor was there any psychiatric evidence to confirm that any significant progress had been made. The principal source of evidence available as to the defendant's progress was Mr Ardasinski's report of 28 February 2019. In that report, Mr Ardasinski described the defendant's progress after 10 individual sessions as follows: "[The defendant] progressed well with the written tasks and engaged willingly in the therapeutic process during these sessions, developing a rudimentary self-management plan and partially realistic ideas about support needs for his eventual release to the community at the expiry of his CDO."
5. Mr Ardasinski also noted that having an awareness of risk factors and being able to manage these factors independently were two different things and that the defendant's capacity to self-manage the risks remained untested and his self-management plans were, at that stage "only fairly rudimentary" but he would have access to further risk management sessions in custody.
6. While not seeking to undervalue any progress that the defendant has made, I was not satisfied that developing a "rudimentary self-management plan and partially realistic ideas about support needs" amounted to such progress as reliably to indicate that the defendant would be able or likely to comply with the strict conditions of an ISO, if he were released into the community at the expiration of his CDO.
7. I also did not accept the submission that making an ISO rather than an IDO would encourage the defendant's rehabilitation and ultimately reduce his risk of serious sexual offending. It appeared to me that there was an element of manipulation on the part of the defendant in relation to his rehabilitation. The defendant's expressed willingness to be assessed for anti-libidinal medication and to receive psychiatric treatment, recorded in the OIMS notes of 22 March 2019, was on condition that he was released into the community, under supervision, and did not remain in custody. If he remained in custody, he was quite adamant that he would not consider a return to CUBIT nor would he take, or even be assessed for, anti-libidinal medication. As Mr Ardasinski recorded in his report: "[the defendant] remained quite adamant that he would not reconsider a return to CUBIT or to anti-libidinal therapy, stating in interview with me that, 'At the end of the day, it won't change my high risk.' He suggested he was 'terrified' of going back on Androcur [an anti-libidinal medication] and he felt he did not want medication to be the control element for his deviance …".
8. It was the defendant's refusal to return to CUBIT or accept anti-libidinal therapy in custody, which provided the foundation for the submission that release under an ISO would assist his obtaining appropriate treatment whether by way of anti-libidinal medication or psychological therapy. It appeared to me that there was a significant risk that the defendant was refusing to participate in appropriate treatment and therapy in custody in order to increase his prospects of being released. If this was so, it would indicate that the defendant was prepared to say what was necessary in relation to his treatment and therapy in order to be released rather than because he had come to recognise his need for that treatment and therapy in the light of a more fully developed understanding of the nature of his offending and how the risk that he posed of reoffending could be minimised.
9. My concerns in this regard were heightened by the observations of Dr Samuels, quoted more fully above, but which included: "[The defendant] consistently says that he has benefited from sex offender treatment, he has changed his ways, he no longer has deviant interests and he has learned from his past experiences. He also lies, he is deceitful and can be quite cunning and manipulative."
10. In addition, Dr Ellis commented on the defendant's "recent deception", in a passage from his report quoted above, and Dr Samuels referred in his report to the defendant's use of "quite sophisticated methods to undermine" the previous supervision order and his "self-report" being "entirely unreliable".
11. I was not satisfied, on the material before the Court, that the defendant had changed since being assessed by Drs Ellis and Samuels or that his more recent claims of there being a fundamental shift in his thinking and that he was finally facing and telling the truth should be accepted.
12. In relation to anti-libidinal medication, it was also significant that the defendant did not express a willingness to receive such treatment, even if released on an ISO, but only expressed a willingness to be assessed for such treatment by a psychiatrist. Given his comments on this topic to Mr Ardasinski, quoted above, and the attitude recorded in the OIMS notes, I did not accept that, even if he were released on an ISO and was assessed as suitable for such treatment, he would submit to taking anti-libidinal medication. There did not appear to me to be a sufficient basis for concluding that the defendant accepted that such treatment, with any attendant side-effects, was necessary in order to reduce the risk he posed of committing another serious offence so that it was no longer unacceptable.
13. The orders made by me on 21 June 2019 included that the defendant should be examined by two psychiatrists and/or psychologists and that those psychiatrists or psychologists should provide reports to the Court so that it could make a final decision on a properly informed basis in these proceedings. Those examinations are likely to address: the extent of any progress made by the defendant in relation to his understanding and acceptance of his offending; and, the treatment and therapy required in order to reduce his risk of serious sexual reoffending to acceptable levels. Before that information became available and on the basis of the material before the Court at a preliminary hearing, I did not accept that there had been a "fundamental shift in his thinking" and that the defendant was "finally facing and telling the truth". Nor did I accept that denying the defendant liberty on an ISO would risk throwing away his progress in rehabilitation.
14. I also rejected the defendant's submission that Mr Ardasinski's recommendations should be adopted for two reasons. First, in his report of 28 February 2019, Mr Ardasinski did not make any recommendations concerning whether an IDO or an ISO should be imposed on a preliminary hearing. Thus, there were no relevant recommendations. Secondly, while Mr Ardasinski did express the view that supervision under an ESO "could minimise risk of behaviour that may otherwise result in a sexual offending scenario" this was subject to the proviso that the defendant was "willing to engage fully in that process". The material before the Court did not satisfy me that the defendant was willing, at this stage, to "engage fully" in the relevant processes of supervision under an ISO.
15. In all the circumstances and giving weight to the minimisation of risk, I concluded that the safety and protection of the community as well as encouraging the defendant to undertake meaningful rehabilitation were better served by the imposition of an IDO for 28 days than by the defendant's release into the community under an ISO.

Orders

1. For all of these reasons, on 13 June 2019 the Court made orders as follows: 1. An order pursuant to s.15(4) of the Crimes (High Risk Offenders) Act 2006 (the HRO Act): 1. Appointing two qualified psychiatrists/a qualified psychiatrist and a registered psychologist/two registered psychologists to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; 2. Directing the defendant to attend those examinations. 1. An order pursuant to s.18A of the HRO Act that the defendant be subject to an interim detention order from 4 July 2019 when his current custody expires, for a period of 28 days. 2. An order pursuant to s.20(1) of the HRO Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in order 2. 3. An order restricting access to the Supreme Court's file in respect of this proceeding, such that access would only be permitted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard. 4. The parties have liberty to approach the High Risk Offender List Judge to obtain hearing dates for the final hearing of the matter and to fix a timetable for the filing and service of evidence. 5. The parties have liberty to apply on one day's notice in relation to order 1, should difficulties arise with its implementation.

Endnote

1. Defendant's written submissions filed 11 June 2019 par 8. 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: 09 July 2019