State of New South Wales v Boney

Counts 1 to 5

1. Counts 1 to 5 took place between 21 and 24 June 2005. NC had gone to live in Lismore with their children in order to get away from the defendant. She returned briefly to Moree for a funeral. The defendant found out that NC was alone at her father's house with their two young children. At this time NC had an apprehended domestic violence order (ADVO) against the defendant. Despite this, the defendant went to the house and asked NC to come and sleep with him at his sister's house. NC declined.
2. The defendant became angry, hit NC, pulled her by the hair, pulled her onto the ground and punched her. He threatened to hit her with a cup. NC yelled for help and her sister entered the house. NC's sister picked up a golf club and threatened to hit the defendant with it. The defendant stopped hitting NC.
3. NC's sister went next door to call the police. While she did this, the defendant pulled NC out the back door. She managed to get away from him and ran back inside, locking the back door. The defendant came back inside through the front door. NC locked herself in the bathroom and sat against the door, but the defendant kicked the bathroom door and smashed the lock. The defendant dragged NC out by her legs, took her out the backdoor along the road, through a paddock to his sister's house. The defendant then vaginally sexually assaulted NC.

Counts 6 to 8

1. Counts 6 to 8 took place between 24 and 27 June 2005. NC went to a house in Moree with some friends. While inside the house she saw the defendant come in. NC attempted to run to another room but the defendant saw her. NC told him to go away and that she did not want to be with him. The defendant punched her face, knocked her to the ground and started to kick her.
2. People in the house attempted to intervene which enabled NC to leave. The defendant came after her, grabbed her and threatened her with a bottle. He then forced her to go to his aunt's house and then to another relative's house.
3. The defendant then punched her, kicked her and jumped on her head, causing a tooth to chip. He dragged NC to the bedroom and vaginally sexually assaulted her. Before the sexual assault the defendant threatened to bash her.
4. After sexually assaulting NC, she managed to convince the defendant that he should let her get a drink of water. While she did so, the defendant threatened to stab her. The defendant then sexually assaulted NC a second time.

Counts 9 to 11

1. Counts 9 to 11 took place between 19 and 22 July 2005. NC went to a house in Moree with some friends. When they arrived, the defendant was fighting with a man at the house. The defendant saw NC arrive, grabbed her and forced her to go to his sister's house with him. He threatened her with a stick and then sexually assaulted her vaginally.
2. The next day the defendant took her to his uncle's house, then returned to his sister's house where he again vaginally sexually assaulted NC. The police arrived, forced their way into the house and arrested the defendant. He has been in custody since.

Form One

1. The following seven offences were taken into account on a Form One at the time of his sentencing: 1. On 20 April 2005, the defendant breached the ADVO protecting NC, contrary to s 562I(1) of the Crimes Act. The defendant had access to their son, and when NC came to pick up the child the defendant threatened NC, demanded that she go to his brother's place, forced her to accompany him, and later threatened to kick her. 2. On 30 April 2005, the defendant again breached the ADVO protecting NC. He approached NC at a football game, threatened her with a beer bottle and threatened to stab her. 3. On 30 April 2005, the defendant threatened injury to NC with intent to commit an indictable offence, contrary to s 33B(1)(b) of the Crimes Act. At a football game, the defendant raised a small beer bottle in his hand as if he was going to hit NC with it. Later, the defendant pulled out a pocket knife and ran at NC swearing at her. He yelled, "I'm gonna stick this [knife] in you". 4. On 14 May 2005, the defendant again breached the ADVO protecting NC. At a local football game, the defendant saw NC. He asked her to come with him. When she said no, he said, "Come here now or I will kick the cunt out of you right in front of your family." He threatened her with a beer bottle. The defendant again made the threat, "You're coming or I will kick the cunt out of you." NC felt threatened so she went with the defendant. When the defendant stopped to buy a drink, NC escaped. 5. On 19 July 2005, the defendant breached the ADVO protecting NC, contrary to s 562I(1) of the Crimes Act. He went to NC's father's house where she was staying and demanded that she come out and speak with him. He was alcohol-affected and refused to leave. 6. On 2 November 2005, the defendant assaulted a Corrective Services officer in execution of his duties, contrary to s 60A(1) of the Crimes Act. The defendant spat on the Corrective Services officer. 7. On 14 November 2005, the defendant again assaulted a Corrective Services officer in execution of his duties, contrary to s 58 of the Crimes Act. The defendant punched the officer which caused the officer two split lips, sore gums and a loose tooth. This assault was against a different Corrective Services officer than the assault described above in (6).
2. On 27 October 2006, following a trial at which the defendant had pleaded not guilty, the defendant was sentenced for a number of offences by Finnane DCJ to an overall sentence of 27 years' imprisonment, with a non-parole period of 20 years.

Sentences imposed following an appeal to the Court of Criminal Appeal

1. Following an appeal, the sentences imposed by Finnane DCJ were reduced to 15 years' imprisonment with a non-parole period of 12 years: Boney v R (2008) 187 A Crim R 167; [2008] NSWCCA 165. The defendant became eligible for parole on 21 July 2016 but was never released to parole.
2. The individual sentences, with respect to each count, following the appeal were as follows: Count 1 Appeal unsuccessful: imprisonment for a non-parole period of 1 year commencing on 22 July 2005 followed by a balance of sentence of 1 year. Count 2 Imprisonment for a fixed term of 3 years commencing on 22 July 2005. Count 3 Appeal unsuccessful: imprisonment for a non-parole period of 6 months commencing on 22 July 2005 and a balance of 6 months. Count 4 Imprisonment for a fixed term of 3 years, commencing on 22 July 2005. Count 5 Imprisonment for a fixed term of 4 years, commencing on 22 July 2005. Count 6 Imprisonment for a fixed term of 4 years commencing on 22 July 2008. Count 7 Imprisonment for a non-parole period of 6 years and a total term of 10 years commencing on 22 July 2010. Count 8 Imprisonment for a fixed term of 4 years, commencing on 22 July 2008. Count 9 Imprisonment for a fixed term of 3 years, commencing on 22 July 2006. Count 10 Imprisonment for a fixed term of 5 years, commencing on 22 July 2006. Count 11 Imprisonment for a fixed term of 4 years, commencing on 22 July 2006.

The defendant's previous offences involving NC

1. The defendant previously committed many offences against NC between 1997 and 2003, which, in summary, included the following: 1. On 6 December 1997, the defendant attacked NC while she was walking along the street, which resulted in NC getting an ADVO to protect herself from the defendant. The defendant was placed on a 12 month good behaviour bond. 2. On 31 March 1999, the defendant forced his way into a house, grabbed NC, pushed her out the front door, dragged her alongside the house and pushed her until she fell to the ground. He then kicked and punched her head. For this offending he was sentenced to 6 months' imprisonment, with a concurrent 1 month term for the contravention of the ADVO. 3. On 28 August 2000, the defendant assaulted NC when she came to his house to pick up some items for her children. He grabbed her by the arms, pulled her to the ground and threatened her with a piece of wood. NC managed to run away and the police arrested him. 4. On 9 December 2001, the defendant committed a series of violent assaults against NC, armed with an iron bar. In committing those offences, the defendant was in breach of a community service order for an earlier assault of NC committed on 23 July 2001. He was sentenced to 5 months' imprisonment. 5. On 26 October 2002, the defendant again assaulted NC. He punched her nose. He was sentenced to 9 months' imprisonment with a 6 month non-parole period. 6. On 17 July 2003, NC took their son to the defendant's home so he could have access. The defendant asked NC to stay the night. When she said no, he punched her left eye three or four times. This assault occurred while NC was holding their son. Police inquiries failed to find the defendant. 7. On 25 December 2003, NC was with her friends. The defendant approached her, punched her, kicked her and dragged her to a home in Moree occupied by his sister. He held NC there against her will until she managed to escape the next day. The defendant was pleaded guilty to offences committed by him on 17 July 2003 and 25 December 2003 and was sentenced to 10 months imprisonment with a non-parole period of 6 months.

The Defendant's other criminal conduct

1. The defendant's criminal history is summarised by Ms Lau in the RAR: 1. The defendant first appeared before the court in 1995 as a juvenile for throw missile, malicious damage, and break, enter and steal. He was convicted of other theft-related offences prior to adulthood. 2. As an adult the defendant's criminal history involves primarily offences against NC. These offences include common assault, assault occasioning actual bodily harm, armed with intent to commit an indictable offence, contravene ADVO, and detain person with intent to obtain advantage occasioning actual bodily harm. There is limited history of non-violent offences. 3. Until the conviction for his index offences the defendant had no previous sexual offences.
2. Mr Sheehan described the defendant's criminal conduct as having a clear pattern.

Diagnoses

1. The experts opined that the defendant met the criteria for Antisocial Personality Disorder as well as diagnosed the defendant with a form of Substance Use Disorder, with Dr Eagle describing the latter as "severe". Dr Furst also diagnosed the defendant with Alcohol Use Disorder, and Intellectual Disability (borderline disabled range).
2. Whilst Mr Sheehan observed that, in light of the defendant's age, he might be "on the cusp of entering a phase of life where his antisocial features might be expected to lessen", his estimation of the period required for the changes was described as: "progressively over the coming 10-20 years". In the conclusion of his report he described the nature of the defendant's personality disorder and associated behaviour problems as "chronic and enduring". It was common ground in the proceedings that an antisocial personality disorder should be so described.

Static and Dynamic Risk Factors

1. Dr Furst identified static risk factors relevant to the defendant, which included, inter alia, a previous history of serious violence, including his index offences in 2005; having a large number of "sentencing dates" prior to 2005, mostly of a less serious/domestic manner; the presence of antisocial personality disorder; a lengthy history of substance abuse; the presence of an intellectual disability in the borderline disabled range; and lack of stable relationships. As to the defendant's dynamic risk factors, Dr Furst identified, inter alia, lack of stable intimate relationships; substance abuse/alcohol consumption; impulsivity; non-adherence with medication or treatment recommendations; and high levels of psychosocial stress. The static and dynamic risk factors identified by Mr Sheehan and Dr Eagle were largely consistent with the observations of Dr Furst.
2. As to the dynamic risk factors relevant to violent offending, Mr Sheehan observed: 1. The defendant has supported criminal attitudes throughout the life course and "appears anchored by a code of behaviour that is not in keeping with the norms of the broader community. His attitudes have facilitated the use of violence". 2. The bulk of the defendant' recorded violence has not been peer related, being in the form of domestic violence. However, he has described a history of gravitating towards criminal peers and fighting with peers in the community. 3. Interpersonal aggression has remained a part of the defendant's approach to life since his early development. He has described a belief system where violence was considered normal. His recent threats to harm a cell mate reveal ongoing reliance on aggressive behaviours as a problem solving strategy. 4. The defendant does have a "significant" record of institutional violence, possessing blades, threatening and assaulting staff and inmates. He has also had multiple instances of possessing "gaol weapons". 5. The defendant's violence history is linked to substance use. However, Mr Sheehan also opined "in my view, substance abuse is not a necessary pre-requisite for Mr Boney's aggression".
3. Mr Sheehan used the Risk of Sexual Violence Protocol ("RSVP") to assess the defendant's dynamic risk factors relevant to sexual re-offending. He observed: 1. The defendant's history of sexual violence "could not be regarded as chronic or diverse, being limited to offences against one adult female". 2. There is no clear evidence of paraphilia. The defendant has no history of major mental illness, although some symptoms of psychosis are reported. There is a history of substance abuse that could feasibly be related to his history of sexual offending. There is a history of significant suicidal ideation and violent ideation that have continued to emerge at periods of high stress. 3. Following an examination of the defendant against a screening measure of psychopathic personality (The Hare Psychopathy Checklist: Screening Version). Mr Sheehan stated: "I would regard Mr Boney as meeting only partial criteria for psychopathic personality as defined in the RSVP. He is not prototypical of psychopathy". 4. In addition to serious problems with intimate relationships "[t]here are serious problems with non-intimate relationships through social deficits and identification with antisocial peers". 5. The defendant has a history of persistent, frequent and diverse criminality, with his institutional behaviour also inferring the type of behaviours that would be grounds for arrest (violence, theft, illicit drug use, rule violation).
4. Dr Eagle also noted that "[the defendant] has been reported to have made sexually inappropriate comments to a psychologist, more recently, in custody possibly reflecting underlying problematic cognitive distortions and entrenched attitudes towards women".
5. In light of those or similar factors, Dr Furst opined that the defendant has a very "high loading of historical/static risk factors" and a "moderate-high loading of dynamic factors". Therefore, the defendant presents as being at "high risk of general reoffending and at high risk of future violence, risk factors that will require ongoing active management".
6. Regard is also had to the following risk factors identified by Ms Kirkwood in the Risk Management Report: 1. Criminal attitudes/violent lifestyle; 2. Hostility towards Women/Relationship lnstability Violence Cycle; 3. Interpersonal Aggression; 4. Cognitive Distortion/Insight into Offending; 5. Emotion Regulation/Poor Problem-solving/Impulsivity/Substance Use; 6. Weapon Use; 7. Employment; 8. Criminal Peers; 9. Community Support/Release to High Risk Situation; and 10. Compliance with Supervision.

Risk of Re-Offending

1. Turning to the risk of re-offending, each of the experts recorded opinions with respect to the risk of further violent offending and the risk of further sexual offending.

Further Violent Offending

1. Dr Furst and Mr Sheehan assessed the defendant at a "high" risk of future violence offending. However, Mr Sheehan qualified his opinion, namely, "[he] could not say that the evidence supports the view that this violence would necessarily constitute a serious violence offence as defined in the Act".
2. Mr Sheehan used the Violence Risk Scale ("VRS") to assess the defendant's risk of violence offending. He opined that the overall result of the VRS estimated "Mr Boney's risk for violence as within the High range, relative to the sample population used in the study".
3. Mr Sheehan observed: In my opinion, Mr Boney would be at high risk of engaging in interpersonal aggression within a relatively brief timeframe were he to live in uncontrolled community settings where he had returned to antisocial associations and substance use. Even in controlled settings, his re- engagement in intimate relationships will require careful management, being at the focal point of his risk for violence.
4. Dr Eagle also used the HCR-20 v3 to assess the defendant's risk of violent offending. She opined that the defendant falls within a category of offenders at a high risk of reoffending following release into the community
5. Both Drs Furst and Eagle found the defendant presented at a "high" risk of general re-offending following release into the community. Both Drs Furst and Eagle opined that the defendant requires a comprehensive risk management plan to address his risk factors in the community.

Further Sexual Offending

1. All three experts assessed the defendant's risk of sexual re-offending using the STATIC-99R diagnostic tool. Both Dr Eagle and Mr Sheehan found the defendant to fall in the category of "Above Average Risk", relative to other male sexual offenders, with a score of 4. In contrast, Dr Furst found the defendant to be of "average risk", with a score of 2. However, as to the interpretation of that result he recorded: Standard actuarial risk assessment utilising the Static-99R needs to be balanced against dynamic and crime-specific objective indicators of future risk. The relevant features in this respect include the use of force/violence against the victim NC, who had been his previous intimate partner over the previous several years and was the mother of his two children, escalating domestic violence, multiple legal sanctions and incarcerations related to his domestic violence that likely upset and/or angered Mr Boney. Alcohol abuse/intoxication was also a relevant consideration. [Emphasis added.]
2. He further opined: "I would regard it as more likely than not that Mr Boney's sexual and violent offending against NC was a means of control, punishment and/or revenge, rather than being driven by sexual deviance".
3. Dr Furst also observed: He is unlikely to pose any significant risk to children or stranger victims, however, caution will be required in future intimate relationships, if he commences an intimate relationship, given his risk profile. NC probably also remains at increased risk of future victimisation, especially if Mr Boney was to come into close proximity with her again and/or was intoxicated, notwithstanding his assertions to the contrary
4. Dr Eagle also assessed the defendant using Stable 2007. The defendant scored 16 out of a possible 26, which result placed him in the "well above average category", the highest category of offenders.
5. Mr Sheehan opined that the defendant's risk of sexual re-offending was in the "moderate to high range". He further opined that the type of sexual offending that the defendant is at risk of "seems to pertain to spontaneous penetrative offences against adult females known closely to him, most likely a partner". Mr Sheehan also observed: The incident leading to Mr Boney's removal from the CUBIT program in 2018 is of concern, suggesting the possibility of his poor appraisal may extend beyond the confines of intimate partner relationships.

RISK ASSESSMENT REPORT

1. In the RAR, Ms Lau summarised the defendant's previous assessments of risk. In summary: 1. In 2006 the defendant was assessed using the LSI-R. The defendant was assessed as falling in the high risk category for general and violent offending. 2. In 2009, the defendant's risk of sexual reoffending was assessed using the STATIC-99R instrument. He was assessed as being in the "moderate-high risk" category relative to other male sexual offenders. 3. In May 2019, the defendant was assessed using the Violence Risk Scale. He was assessed as being in the "high risk" category for re-offending. Ms Lau noted that whether the defendant would be one of the 59.5% of offenders (with a similar score to the defendant) who re-offended would be contingent upon his ability to manage his risk factors in the community.
2. Ms Lau's assessment of the defendant's current risk was: 1. The defendant's risk of sexual offending was assessed using the STATIC-99R instrument as having an "above average risk". This level of risk indicates that the defendant has a "perceptibly higher risk than the typical offender". The rate of recidivism for individuals with the defendant's risk is estimated to be 1.94 times higher than that of the "typical" sex offender. 2. The defendant's risk of sexual offending was also assessed using the STABLE-2007 instrument. The defendant was assessed as having a "high density of criminogenic needs" relative to other male sex offenders. The risk areas that were identified as relevant to the defendant were relationship skills deficits, general self-regulation and distorted attitudes.
3. Ms Lau opined: Based on his past history, Mr Boney demonstrates increased potential for violence within the context of intimate relationships. … His risk of violence is likely to be heightened if he relapses to substance abuse … There is also the potential for Mr Boney to engage in interpersonal violence outside of this context given his self-reported history of responding to perceived provocation with violence as a form of self-protection.

POTENTIAL RISK SCENARIOS

1. As to potential risk scenarios, Dr Furst, Mr Sheehan and Ms Lau each opined that caution is required with respect to any future intimate relationships. Dr Furst also opined that NC "probably" remains at increased risk of future victimization. Both Dr Furst and Ms Lau also noted the potential for substance abuse to heighten the defendant's risk of violence.

THE DEFENDANT'S ATTITUDE TOWARDS HIS CONDUCT

1. In May 2006, reports produced in preparation for the defendant's sentencing revealed the defendant's limited insight into his offending. Dr Seidler, psychologist, opined that he "did not or could not" accept responsibility for the sexual nature of violence. The Pre-Sentencing Report also recorded "[t]here is no evidence of any victim empathy… [and] no evidence that [he] identifies with the seriousness of his behaviour ".
2. In the RAR of Ms Lau and the expert reports of Mr Sheehan and Dr Eagle, each cited examples of acknowledgement of responsibility but with continued limited insight. Both Ms Lau and Mr Sheehan noted, in that respect, that the defendant acknowledged his wrong doings but minimised the significance of his actions. Dr Eagle provided the following example: For instance, he emphasised that the victim had entered the room voluntarily and had not physically prevented him from having sexual intercourse with her. However, he repeated what appear to be learned responses such as he understood she had cooperated out of fear and that the behaviour was wrong.
3. As to the defendant's current insight, Dr Eagle opined : Mr Boney has some ongoing problems with insight into his offending behaviour, although he has displayed some insight into his substance use difficulties. He has shown difficulty applying his understanding to individual risk factors to his offending behaviour and has externalised responsibility for his offending. He has shown improved stability in his emotions and behaviour over recent months, but continues to display what appear to be entrenched cognitive distortions regarding his offending, including a distorted attribution of bias and rigid stereotyped perceptions of gender roles, consent and the role of violence in society. He has not displayed violent ideation on the information available, although has threatened violence in the context of wanting his needs met which could be viewed as an extension of his distorted violent cognitions. He appears to have been generally compliant with his treatment and supervision regime in custody over the last six months. He does not display active signs or symptoms of mental illness.

Behaviour

1. Mr Sheehan summarised the defendant's conduct in custody: Records reveal that Mr Boney has a mixed history of institutional adjustment but I would characterise his overall institutional adjustment as poor. He has incurred 46 internal misconduct charge in the course of his index sentence (most recently in December 2019), 13 of which have related to violence related behaviours, including intimidation, fighting and possession of gaol made weapons (most recently in 2015). He has assaulted staff on occasion.
2. Dr Eagle also described the defendant's conduct in custody: Mr Boney has received at least 55 separate disciplinary sanctions in correctional facilities. His most recent punishment on this record was in relation to an incident on 15 December 2019. The sanctions were for a range of behaviours including refusing a urine sample; fights; possessing an offensive weapon; destroy or defacing a cell; threats; fail urine sample; disobey direction; conceal article use escape; intimidation; and assault.
3. Ms Lau summarised the defendant's behaviour while in custody: 1. The defendant has received 13 institutional misconduct charges for violence-related matters during his incarceration. 2. The majority of these incidents related to possession of a weapon. 3. More recently these incidents have become less frequent. His last violence-related misconduct charge occurred in 2015 and involved the defendant revealing two "shivs" in a "threatening manner" to staff after being told he had to move cells. 4. The defendant has assaulted custodial staff on two occasions. One assault involved spitting. The other assault involved the defendant injuring a staff member, causing split lips, a sore gum and a loose tooth. 5. The defendant has been placed on multiple segregation orders throughout his incarceration due to behaviours such as drug trafficking, stand overs, throwing a chair at custodial staff, threatening staff with a goal-made weapon and destroying property in his cell.

Programs

1. Ms Lau summarised the defendant's programs completed in custody: 1. The Self-Regulation Program: Sexual Offenders (SRP:SO) is a custody-based residential therapy program for men who have sexually abused adults and/or children and who have an intellectual disability or other cognitive impairment, as well as limited adaptive skills in the gaol environment. The defendant commenced the program on 6 March 2017. 2. He was initially engaged and actively contributing to discussions. However as he progressed further in treatment his participation became more inconsistent. By February 2018 the defendant began responding in an overtly aggressive manner. On 24 April 2018 the defendant was removed from the SRP:SO program and did not complete the program. 3. On the day of his removal, at a routine community meeting which involved all SRP program participants and staff, the defendant stood up and addressed the group. According to an account of the event by custodial staff, the defendant named and thanked all of the psychologists who were part of the program except for his treating psychologist. He pointed at his treating psychologist and stated, "There's a female in my group that winks at me and sometimes wears a skirt, she often lifts her skirt and spreads her legs at me". The defendant was escorted from the meeting and confined to his cell. 4. Further information came to light that would prevent the defendant from returning to the program. A Departmental email dated 28 May 2018 made reference to information which suggested that the defendant was attempting to recruit other program attendees to assist him to sexually assault the psychologist. 5. The defendant was inducted into the Self-Regulation Program: Violent Offenders (SRP:VO) on 20 December 2018 and commenced the group session component of the program on 3 April 2019. According to the SRP:VO progress notes, the defendant's participation was somewhat inconsistent. He was noted to be an active participant in group discussions in most sessions but he also engaged in behaviour that was disruptive. 6. According to his treating psychologist's the defendant is expected to continue to participate in treatment until July 2020 and that it is possible his participation and engagement will improve as he progresses in treatment.
2. Mr Sheehan was concerned about the event involving the defendant and his psychologist: Of concern, Mr Boney appeared to develop an unhealthy attributions towards his female therapist, making allegations at a community meeting that his therapist behaved in sexually provocative behaviour towards him. In my view the description of his behaviour suggests beyond wishful fantasy and has the quality of disordered thought.
3. Mr Sheehan continued: The events recorded in custody in April 2018 (where Mr Boney accused his female treating psychologist of sexually provocative behaviour) are of concern, suggesting impaired appraisal and Mr Boney having imposed a sexual motivation that was in reality not present. Mr Boney was cautious in discussing this matter with me, not wanting "to look bad". He continues to believe that his comments had been accurate (saying "she always did it towards me but no-one else") but strongly denied having held any intent to act sexually towards his therapist. He denied having been sexually attracted towards his therapist or believing that the therapist had been sexually attracted to him.
4. In its Initial Report dated 26 April 2017 the Serious Offenders Review Council noted that the defendant had completed several courses.
5. The defendant had been employed as a cleaner and kitchen hand while in custody. The defendant also had periods of employment in furniture, upholstery, textiles and ground maintenance.

The Violent Offender's Therapeutic Program

1. Mr Sheehan had regard to the defendant's participation in the Violent Offender Therapeutic Program: I met with the therapeutic manager of VOTP, who advised that Mr Boney was in the final module of treatment and was estimated to complete the program in September 2020. His progress was described in positive terms. During interview with me Mr Boney reported a sense of improved self as a consequence of treatment.
2. Mr Daly prepared a report on behalf of the Violent Offenders Therapeutic Program dated 27 August 2020, about the defendant's engagement with the program, stating: Mr Boney has been participating in the VOTP since 30/03/2020 and previously participated in the Self-Regulation Program: Violent Offending from 10/01/2019. For details of his movement between programs please refer to the VOTP Interim Treatment Report dated 27/04/2020. Mr Boney has engaged well in the VOTP, participated appropriately in individual and group sessions and completed written components of the program in a timely manner. He had one unexcused absence from group on 11/08/2020 (along with 5 other group members), however has attended all other sessions and is generally punctual to group. He is currently completing the final module of the program, in the form of his Self-Management Plan. He presents as motivated to complete the program in order to secure his release. Assuming there are no interruptions to his participation it is anticipated that Mr Boney will complete the program within a 1 month timeframe. Please refer to VOTP Interim Treatment Report dated 27/04/2020 for possible interruptions. Mr Boney will be referred to VOTP Maintenance as he approaches the end of the program and they will assess and determine his suitability for their program. At this stage, VOTP Maintenance has advised that Mr Boney would be eligible for VOTP Maintenance groups and individual sessions, once he completes the VOTP. Additionally, in the event that he does not complete the program, he can be referred by the Extended Supervision Order (ESO) Team for individual risk management sessions with VOTP Maintenance staff.

PAROLE

1. On 26 April 2017 the Serious Offender Review Council ("SORC") described in their 'Initial Report' the attacks on the victim, which gave rise to the index offences, as "violent and degrading".
2. SORC reconvened on 8 May 2018 and again found that the defendant's release to parole was not appropriate.
3. SORC again convened on 7 May 2019 and decided that the defendant's release to parole remained inappropriate .
4. The State Parole Authority determined to stand the defendant's matter over to 23 April 2020 for supplementary Community Corrections Officer's report regarding progress in SRP-VO and for an updated SORC report.

RESPONSES TO SUPERVISION

1. Ms Lau summarised the defendant's response to community supervision: 1. The defendant has been subject to supervision on five occasions. His behaviour while being supervised has been unsatisfactory. He failed to complete any supervision order, as each time he either breached the conditions of his order or committed a new offence/s. 2. In 1998 the defendant was subject to a 12 month supervised recognizance for an assault charge. He was non-compliant and breached the recognizance. 3. In 2001 the defendant was sentenced to 150 hours of community service for an assault charge. He attended 14 hours of community service and then breached the order. He also committed further violent offences against NC during this period. 4. The defendant was released on parole in 2002. He committed a further offence of assault occasioning actual bodily harm within two months of his release. He also was reported to have used illicit substances and failed to comply with his parole conditions. 5. The defendant was incarcerated for a further six months and then released on parole for three months. He completed this period of supervision, but it was found later that contravened an ADVO during this period and assaulted NC. 6. The defendant was again incarcerated. Within a fortnight of being released on parole NC reported to Community Corrections that the defendant was harassing her. The defendant was warned by Community Corrections to cease contact with NC. The continued to contact and threaten NC. The index offences were then committed against NC. The also engaged in further non-compliant behaviour during this period, including failure to attend appointments, illicit substance use and failure to comply with directions to address his substance use.
2. Mr Sheehan described the defendant's supervision history as being poor: Mr Boney has a poor supervision history. Records suggest that he has failed to complete any periods of community supervision without breach or reoffence. He has been non-compliant with appointments, rehabilitation, substance use conditions and community service requirements. A number of violence offences, including the index offences, were committed whilst subject to supervision. ADVO's would appear to have extended no deterrent effect on Mr Boney.

UNACCEPTABLE RISK

1. 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 an order.
2. The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of "protective measures".
3. The opinions expressed by the experts and in the RAR were instrumental in reaching that conclusion. Further, and more particularly, the combination of factors in favour of the making of an ESO below (at (1)-(7)) are also significant. Those factors indicate that there is a high likelihood of further violent offending, a significant risk of further sexual offending and that the gravity of the risk that eventuated is high and substantial.

IMPOSING AN ESO

1. In my view, on the evidence, the State has brought a compelling case for the making of an ESO for the following reasons, substantially drawn from the submissions advanced by counsel for the State: 1. The defendant has little insight into the seriousness of his sexual and violent offending against the victim. 2. He has a repetitive pattern of offending, despite numerous lengthy sentences being imposed 3. The defendant has limited insight into the seriousness of his sexual and violent offending against the victim. 4. On the expert evidence, he is in the high risk category for violent offending. 5. Mr Sheehan and Dr Eagle assess the defendant as having an above average risk on actuarial assessment of sexual re-offending. In my view, that is, in substance, not significantly different to the opinion by Dr Furst given the qualification in his report in this respect. 6. The defendant has a high density of criminogenic needs, being relationship skills deficits, general self-regulation and distorted attitudes. 7. He has multiple risk factors for re-offending. 8. The defendant has a history of poor compliance with supervision, parole, and with Court-imposed protection orders (being ADVOs). Such orders have not prevented the defendant re-offending in the past.

Dr Furst

1. Dr Furst's assessment of the defendant's suitability for an ESO is extracted below: The provisions of the Extended Supervision Order (ESO) would include scheduling and monitoring, measures that would help to limit any association with people identified as being at risk, i.e. NC. Additionally, the structure and expectations of the proposed ESO would assist Mr Boney in negotiating the challenges of living in the community in independent accommodation, attending relevant counselling, looking for work and avoiding the use of alcohol and/or other drugs, which are his most salient dynamic risk factors.
2. Dr Furst's opinion on the duration of an ESO is as follows: Mr Boney's identified risks, especially in relation to the risk of future violent offending and dynamic risk factors, coupled with the serious nature of his offending in 2005 and anticipated adjustment difficulties when released from custody suggest that a longer period of supervision will be necessary, probably in the order of five years. Furthermore, a longer period of supervision, monitoring and restrictions, inherent in ESO management, would also be of assistance in protecting the potential identified victim in this matter, NC, who was unfortunately, not adequately protected by police and the criminal justice system in the early 2000s. [Emphasis added.]

Mr Sheehan

1. Mr Sheehan's assessment of the defendant's suitability for an ESO is extracted below: In my view an extended supervision order has the capacity to adequately manage Mr Boney's risk. … I would not recommend release to unstable emergency housing (such as a hotel or other transient housing), an environment of increased risk. If adequate housing is not resolved by the final hearing I would recommend a brief detention order of two months to organise this, using the significant resources available to CSNSW. Were an extended supervision order to be imposed, the chronic and enduring nature of Mr Boney's personality disorder and associated behaviour problems would in my view suggest that a timeframe at the upper end of the five year range would be appropriate. [Emphasis added.]
2. Mr Sheehan made the following recommendations in relation to supervision conditions: In my view, most of the supervision conditions would be useful to contribute to attenuating Mr Boney's risk of a serious offence of either sexual or violent nature. The conditions are adequate to manage the risk of a serious sex offence in so far as they will contribute to lowering the risk relative to the absence of supervision (contingent on a stable post release residence being established). I note that the ESO conditions, however intensive, cannot hope to extinguish the risk of a serious offence. However, my understanding of the Crimes (High Risk Offenders) Act 2006 is that the threshold for adequacy only requires that risk is reduced, not extinguished by the supervision order (NSW v Richardson, 2011). The conditions should go towards managing the background dynamic risk factors related to offending through seeking to control substance use, associations, and activities associated with increased risk of crime. I would anticipate that Mr Boney will breach the conditions of his order, most likely through substance use, associations and impulsive decision making. He may be subject to arrest or imprisonment on one or more occasions before his behaviour settles. If the order operates as designed, these episodes of arrest will serve the purpose of interrupting processes of escalation, where Mr Boney makes cascading poor decisions that lead towards scenarios where a "serious offence" would be more likely. I agree that there would be positive rehabilitative value in Mr Boney completing the current intensive VOTP program in custody. This would go towards the second limb of the Act and would also better prepare him for release in the event that he successfully completes the program. However, I would not recommend a continuing detention order on that basis alone. As it is, Mr Boney is likely to complete the VOTP over the next month and the point may well be moot. Mr Boney could continue treatment in a community setting as provided by VOTP Outreach. This will not be as intensive as custodial treatment, but can still provide a platform to continue with the work commenced in VOTP. In my view, the most pressing issue relates to Mr Boney's post release accommodation, which would appear to remain unresolved. The file information does not specify an approved residence and it is clear that the alert regarding female staff has complicated the process. In interview with me Mr Boney said that no accommodation had yet been approved. He referred to having made an application for Campbelltown Integrated Support Program (similar to Nunyara COSP) but the application had not been processed at that time. The details and stability of Mr Boney's post release accommodation are of fundamental relevance to his risk of a serious offence and the determination of how the Crimes (High Risk Offenders) Act 2006 would apply to his case. His overall risk is best viewed as an interface between Mr Boney's personal characteristics and environmental contingencies (his living environment being a major environmental factor). In the file information provided to me, the pursuit of accommodation options is mentioned sparsely, with the bulk of information focussing on treatment and risk. Without a stable residence, the supervision conditions cannot be effective. All of the relevant community supports, such as mental health, AOD counselling, education, recreation and social, cannot be formalised until the location of Mr Boney's residence is established. In my view the only compelling reason to seek a continuing detention order would be in the event that no appropriate residential options were made available.
3. Mr Sheehan identified the importance of the defendant's social adjustment with respect to "his future prospects, with a need to re-engineer his social environment towards stabilising influences". He opined: "This will be very difficult for him".

Dr Eagle

1. Dr Eagle referred to the potential imposition of an ESO as follows: Mr Boney's Index Offences occurred in relation to his ex-partner; in the context of substance intoxication; when he was exposed to problematic peers; was unemployed and had no stable living situation. I am of the view that if Mr Boney were able to secure stable supported or contained accommodation; had no access to the victim of the Index Offences; in circumstances where he had limited access to substances; and could access appropriate monitoring and support, I am of the view that his risk of committing a further serious offence could potentially be managed in the community under an extended supervision order. Mr Boney has engaged in problematic behaviours, including violent offending from a young age. The factors associated with his violent and more recently sexual offending have arisen over a number of years resulting in what appears to be an entrenched cycle of antisocial and destructive behaviours.
2. As to the appropriate duration, Dr Eagle opined: It is likely that Mr Boney will require an extended period of time under supervision to allow him to gradually transition into the community with lessening supervision. It is unlikely that he will achieve the lifestyle and behavioural changes necessary to significantly reduce his risk of serious offending in less than five years. [Emphasis added.]
3. Dr Eagle considered the proposed conditions of an ESO. She opined: The proposed conditions contained in the Schedule to the Summons appear to be broad and comprehensive. The effectiveness and appropriateness of the conditions are subject to the individualised implementation of the conditions in response to Mr Boney's risk factors. The risk management report is noted and appears to have appropriate reference to Mr Boney's main risk factors.
4. Dr Eagle further advised the following treatment and management plan: Stable supported accommodation: Mr Boney would benefit from supported accommodation as a step down following his release from custody. This would involve a facility that can provide daily monitoring and support in a stable environment. Substance use rehabilitation interventions: Mr Boney should engage in substance use rehabilitation interventions (such as individual counselling, SMART recovery or AA groups), at least two to three times weekly as he transitions into the community. He should have regular and random monitoring of his substance use through urine drug and alcohol testing. He should continue substance use interventions for a period of at least 12 months demonstrated abstinence, and then continue with maintenance interventions. Psychological support: Mr Boney would benefit from an assessment by a clinical psychologist with a view to ongoing psychological therapy to address psychological vulnerabilities arising out of Mr Boney's childhood and lifestyle experience of trauma and dysfunction, including strategies to improve his emotional regulation skills; distress and frustration tolerance; interpersonal, social and relationship skills; coping mechanisms; and self-esteem. Medical assessment and treatment: access to a regular GP for treatment of any medical conditions, including cardiovascular risk factors. Associations: Mr Boney should not have access to his ex-partner, the victim of the Index Offences or attempt to make contact with her given the nature of the offending. He should avoid antisocial peer groups. He would benefit from attempting to foster prosocial relationships with peers. Prosocial recreational activities: Mr Boney would benefit from the development of prosocial recreational activities. Vocation: Mr Boney should attempt to develop his educational and work skills with a view to developing a vocation that is meaningful and may result in stable employment.

Ms Lau

1. Ms Lau considered the potential imposition of an ESO to manage the defendant's risk of reoffending as follows: In the event that he is considered suitable for an Extended Supervision Order (ESO), Mr Boney would be subject to intensive supervision, strict monitoring and case management by CSNSW. This may or may not include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff and breath-analysis/urinalysis/drug- swab testing; assistance finding suitable accommodation; employment and leisure activities; scrutiny of social contacts with the aim of increasing pro-social influences, and any relationships or associations could be monitored to ensure that Mr Boney is not using illicit drugs or associating with people who are; exclusion zones to prevent contact with the victim; in addition to some form of psychological intervention by a CSNSW psychologist with a focus on risk management. … Based on the identified risk areas specific to his offending, continued support and intervention in navigating interpersonal conflicts, particularly in intimate relationships, effective problem-solving and emotional regulation would be critical in preventing relapse to his violence cycle. Due to ongoing behavioural issues in custody, Mr Boney may have a very limited parole period remaining after completing treatment. An additional period of supervision would allow Mr Boney an opportunity for gradual integration into the community with the benefits of accessing professional supports. Given Mr Boney's lengthy incarceration and limited experience in pro-social living as an adult, he may benefit from a period of supervision to mediate his potential risk to the community, particularly to the victim of his index offences. In the event that no order is imposed, after 21/07/2020 Mr Boney would be at unconditional liberty. He would have no support from, or any monitoring by, CSNSW. It is possible that he could remain offence-free. However, his past pattern of behaviour is that he typically returns to his local area upon his release, resumes contact with the victim shortly thereafter, relapses to illicit substance use, and becomes increasingly violent towards the victim, even whilst being subjected to a parole order. His risk of re-engaging in similar behaviour may be increased without any form of supervision. Whether this would be considered "unacceptable" in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court. [Emphasis added.]
2. Ms Lau recommended that if an ESO is ordered it is most critical that the defendant is provided with continued support and intervention in navigating interpersonal conflicts, particularly in intimate relationships, effective problem-solving and emotional regulation.

Defendant's Submissions

1. The defendant submitted that the appropriate period of supervision imposed is 3 years, rather than 5 years. That submission was predicated upon three bases: 1. First, the defendant's risk of committing a further serious offence is limited to the risk of personal violence against domestic or intimate partners. Further the defendant's risk factors for future offending against domestic partners are identifiable and can be addressed with treatment and appropriately managed in the community. This basis involves consideration of his criminal history and pattern of behaviour (s 9(3)(h)) and the reports received from the court appointed experts (s 9(3)(b)). (That submission shall be referred to, in short form, as the "limited nature of the risk argument"). 2. Secondly, the defendant has shown that he is motivated to change. His progress in rehabilitation programs is improving and positive. He has confronted the reasons for his past offending and identified behaviour to avoid. This is relevant to s 9(3)(b)(e) and (e2) of the Act. (That submission shall be referred to, in short form, as the "motivated to change argument"). 3. Thirdly, on resentencing the defendant for the index offences in 2008, the Court of Criminal Appeal considered that a period of 3 years on parole was appropriate (relevant to s 9(3)(h1)). This provides some guidance as to the appropriate length of supervision. (That submission shall be referred to, in short form, as the "parole period argument").

The limited nature of the risk argument

1. As previously mentioned, counsel for the defendant submitted that in light of the reports received from the experts and Ms Lau, together with reference to the defendant's criminal history and pattern of behaviour, the defendant's risk of committing a further serious offence is limited to the risk of personal violence against domestic or intimate partners and therefore, given the confined nature of the risk, a 5 year duration is not appropriate.
2. Whilst it is true that the expert reports and risk assessment report each identify the defendant's risk or re-offending to be heightened within the context of an intimate relationship, together with an ongoing risk to NC in light of their history, there are three difficulties with the submission advanced by counsel for the defendant.
3. First, central to the experts' assessment of the risk was a diagnosis of antisocial personality disorder and the associated behaviour problems. It was one of the risk factors identified by all of the experts as contributing to their assessment of static and dynamic risk as to further violent reoffending. Whilst counsel for the defendant relied upon the possibility of attenuation of the condition as the defendant progresses to middle-age, as observed by Mr Sheehan, he recognised that the process of maturation is 10-20 years and accepted that the diagnosis was, on the assessment of the experts, a chronic and enduring condition.
4. Secondly, the characterisation of risk, in light of the risk assessment conducted by the experts, needs to be approached carefully. The experts have not approached their assessment of risk in a confined manner, save for delineating between the risk of further violent offending and the risk further sexual offending. Their clinical assessments were informed by the assistance of actuarial and diagnostic tools, which, I accept, by the limits of their operation must be approached with a degree of caution. Whilst each expert recognised the particular risk of violent re-offending in the context of an intimate relationship, with Dr Furst opining that the defendant is "unlikely to pose any significant risk to children or stranger victims", the nature of the risk was not confined to the extent sought by the defendant, namely, personal violence to an intimate partner.
5. Thirdly, whilst Ms Lau identified "increased potential" for violence within the context of intimate relationships, she also recognised "potential" for the defendant to engage in interpersonal violence outside of that context, in light of his self-reported history of responding to perceived provocation with violence as a form of self-protection. An intimate relationship is type of interpersonal relationship. Interpersonal relationships are social associations, connections, or affiliations between two or more people. They vary in differing levels of intimacy and sharing, implying the discovery or establishment of common ground, and may be centered around something shared in common. Thus, whilst I accept the broader risk of interpersonal violence, when compared to the risk of intimate partner violence, may be described as "lesser", in light of the express identification by Ms Lau, I do not accept that the risk of re-offending may properly be limited to intimate relationships.

The motivated to change argument

1. Turning to the second basis, counsel for the defendant contended that the maximum available duration for an ESO is further inappropriate in circumstances where the defendant has demonstrated that he is motivated to change. The defendant, in this respect, placed particular reliance upon the defendant's recent progress and improved attitude towards rehabilitation, and sought to distance the defendant from his earlier conduct, which suggested a resistance to reform, at the start of his sentence.
2. There is a good deal of merit to the argument advanced by the defendant in this respect and, in particular, as to the defendant's approach to rehabilitation, I adopt the observations of Johnson J made at the preliminary hearing. In terms of the defendant's attitude toward rehabilitation, he has taken important and positive steps, commencing with custody based intensive treatment and programs and continuing with community based courses such as the VOTP.
3. It is also true that the majority of the defendant's institutional conduct offences were committed in the earlier part of his custody and that insight into his offending has progressed since the commencement of his sentence. However, there are recent countervailing reports as to the defendant's progress by the experts. All three experts reported on the improved but limited insight of the defendant, noting he continued to minimise the impact of his offending. Dr Eagle also observed the defendant "repeated what appear[ed] to be learned responses", suggesting limitations remained as to his insight into the wrongness of his offending. Ms Lau and Mr Sheehan both expressed concern with respect to the defendant's conduct in 2018, which resulted in his removal from custody-based intensive treatment, owing to his inappropriate conduct with respect to a female psychologist. Mr Sheehan, in light of that example, opined "his poor appraisal may extend beyond the confines of intimate partner relationships".
4. Overall, in my view, the defendant's most recent conduct demonstrates a trend of improved behaviour indicative of a motivation to change. Whilst commendable, that recent motivation in and of itself does not sufficiently assuage my view, particularly in light of the expert reports when considered in their entirety, as to the appropriateness of a 5 year duration. It may be noted that each expert made positive observations of the defendant's behaviour, however, when weighed against their overall assessment of the risk of re-offending, expressed a view supportive of a duration of 5 years. I will briefly expand upon those reasons, in that respect, following a consideration of the defendant's third contention.

Parole Period Argument

1. Finally, I turn to the parole period argument, namely, the decision of the Court of Criminal Appeal to consider a parole period of 3 years as appropriate. The defendant contended that this might inform the Court's determination as to an appropriate period of supervision.
2. The State submitted that the Court of Criminal Appeal in setting a parole period is considering broader principles of sentencing. Those principles are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Whilst the defendant did not cavil with that submission, reliance was placed upon s 3A(c) of that provision, which provides that protection for the community from the offender is a purpose for which a court may impose a sentence on an offender.
3. The defendant is correct to identify protection of the community as a cross-over consideration with the task upon sentencing (or re-sentencing) and the making of orders under the Act. However, unlike the Court of Criminal Appeal, the assessment of this Court in the context of a final hearing on an application for an ESO has a particular focus upon risk. That assessment is informed by, inter alia, the expert reports, which experts were appointed by the Court and was plainly not before the Court of Criminal Appeal in setting a parole period. Whilst the Court of Criminal Appeal may have taken into account protection of the community, this Court must now fix upon that objective in the light of the risks identified and assessed by the experts and the objects of the Act.

Conclusion

1. The Court must exercise its discretion in this respect having regard to the objects of the Act (see s 3).
2. The three factors identified by the defendant, namely, the limited nature of the risk, motivated to change and parole period arguments, do weigh upon the decision as to duration although the weight of each is significantly reduced having regard to my earlier discussion of them.
3. On balance, in light of my reasons set out above, I consider the appropriate duration to be 5 years and particularly having regard to, in my view, the sound appraisal by the experts as to why a longer duration was available for both protective as well as rehabilitation reasons.

CONDITIONS

1. The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 ("Wilde") held that s 11 vests the Court with a "broad" discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).
2. Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to "facilitating rehabilitation" even when they do not personally require an offender to "undertake" rehabilitative steps (at [49]).
3. The Court of Appeal further held at [53]-[54]: [53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. [54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups.
4. During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 ("Sturgeon") at [99]: [99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed: (1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10]; (2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is "fit and proper": State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96]; (3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48]; (4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court's conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53]; (5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45]; (6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37]; (7) a condition cannot be simply an expression of the State's paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].
5. Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed "there must be some sort of identification of the unacceptable risk and how that condition goes to it".
6. In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 ("Farringdon"). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.
7. In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending "and thereby aiding his rehabilitation" (at [37]). In applying the "test" set out in Wilde at [53]-[54], his Honour bore in mind "that one can expect the 'Departmental Supervising Officer' (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion" (at [46]).
8. His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]): [59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way. [Original emphasis.]
9. With respect, I accept Button J's statement of principles in Farringdon.
10. If counsel for the defendant was suggesting that in light of decisions in Sturgeon and Wilde there must necessarily be a specific and direct connection between a condition and the identified unacceptable risk, such an approach would be erroneous because on careful read of the authorities the Court does not require a direct connection. In Sturgeon, Garling J observed that it will "ordinarily… be necessary" for a condition imposed to be "related to the mitigation of identified unacceptable risk". Similarly, in Farringdon, Button J observed an "indirect" connection to be sufficient. To repeat Wilde, the Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which formed the basis for the ESO.
11. The areas of dispute with respect to conditions are clearly and helpfully delineated in documented titled "Position of the parties regarding the Schedule of Conditions" (Annexure A to this judgment and hereinafter, "the Schedule"), save as to the position of the parities which was clarified or modified in oral submissions, with respect to conditions 46, 47 and 53. As to conditions 46 and 47, an alternative was put forward by the defendant who, whilst notionally maintaining opposition to condition 46 and 47, advanced a submission that, if condition 46 were to be deleted, the defendant would accept the State's alternative condition 47. As to condition 53, the defendant conceded the State's alterative.
12. The remaining disputed conditions concern the following proposed conditions: 1. Part A: Reporting and Monitoring Obligations: Conditions 5-8; 2. Part D: Employment, finance and education: Conditions 18-20; 3. Part E: Drugs and Alcohol: Condition 26; 4. Part F: Non-association: Conditions 28 and 31; 5. Part H: Access to the internet and other electronic communications: Conditions: 34-38; and 6. Part J: Personal details and appearance: Conditions 46-47 (subject to the above position of the defendant).

Part A: Reporting and Monitoring Obligations: Conditions 5-8

1. The defendant submitted that the stricture of the conditions with respect to a schedule of movements, as proposed, has a potential to have a "deadening effect" upon the defendant resulting in his disengagement with the community. Such a result, it was submitted, would work against the objects of the Act with respect to rehabilitation.
2. It was contended that the requirement to schedule every movement in advance, including the means of transport between destinations, is not appropriate for the defendant for three reasons: 1. there is no established link to the assessed risk; 2. the aforementioned deadening effect upon the defendant; 3. it presents difficulties with compliance and exposes the defendant to significant penalty in an instance of breach (inadvertent or otherwise).
3. The State relied upon the opinion of Mr Sheehan, namely, that the introduction of scheduling is a rehabilitation tool assisting the defendant "to move away from a spontaneous, sensation seeking lifestyle and towards planning his activities and engaging in forward thinking".
4. Regard was also had to the evidence of Ms Grabham, High Risk Offender Applications and Operational Governance Officer within the ESO Team at Corrective Services NSW. By her affidavit of 26 August 2020, Ms Grabham deposed that "to the extent permitted by an order, discretion will be exercised such that the order's operation is relaxed over time. This, however, is dependent upon the case managed offender demonstrating commitment to rehabilitation and/or ongoing compliance". In determining the level of supervision to be provided to offenders, or the restrictive nature of such supervision, reference was made to the Community Impact Assessment, which incorporates a tiered system of assessment that is conducted annually. The progression of the tiers was visually depicted in a document entitled "Service Delivery Standards for Supervised Offenders".
5. The evidence of Ms Grabham shed light upon a further practical consideration, namely, the relevance of the provision of a schedule of movements and the operation of the electronic monitoring condition. The ESO Team provide the schedule of movements to the Electronic and External Monitoring Group ("EEMG"). This enables the EEMG to enter the schedule into the electronic monitoring system when then alerts EEMG staff if the defendant deviates from the schedule.
6. It is true that the requirement of a schedule of movements will require identification of incidental activities that do not directly relate to the assessed risk (such as transportation). However, the substance of the conditions, being a means of monitoring, was recognised by all three experts as responsive to the risk posed by the defendant. Dr Furst opined that the structure of the proposed ESO would assist the defendant in "negotiating the challenges of living in the community". Mr Sheehan observed the conditions, as a whole, to be intensive but "contribute to lowering the risk relative to the absence of supervision" and managing dynamic risk factors. Dr Eagle also recognised the importance of monitoring in the beginning of the ESO as the defendant transitions back into the community but noted the possibility of a "lessening supervision" over the course of the ESO.
7. It might also be noted that the copy of the defendant's Schedule of Movements annexed to the affidavit of Ms Le dated 22 September 2020, demonstrates the capacity of the defendant to comply with the condition. As to the scarcity of variety of activities recorded therein, I do not accept that a consideration of the first two weeks provides a foundation for me to make a finding that the task of planning and submitting a weeks' worth of movements, in advance, creates a "perverse incentive for him just to stay home and to not engage".
8. Finally, the conditions must be seen in light of the static and dynamic risk factors identified by the experts with respect to the defendant. Regard, in particular, must be had to the fact the defendant is transitioning from a lengthy custodial period to a life in the community; a factor identified by the expects as attracting numerous dynamic risk factors. Ms Lau also opined that in light of the limited experience in pro-social living as an adult, the defendant may benefit from "a period of supervision to mediate his potential risk to the community, particularly to the victim of his index offences".
9. In my view, the conditions proposed meet the dual objectives of protecting the community and rehabilitation. It may be expected that progress will modify the operation of the condition and the flexibility afforded the defendant and, as per Farringdon, the relevant officer or officers will undertake the supervision in a common sense way informed by a practical and instructive exercise of discretion.
10. In the result, I accept the submissions of the State. Proposed conditions 5-8 are an appropriate response to the assessed risk.

Part D: Employment, finance and education: Conditions 18-20

1. Whilst the defendant opposed the inclusion of conditions 18-20, the primary area of dispute concerned condition 18, in particular, the inclusion of the words: "must make himself available for employment if and as directed by the DSO". The defendant contended that the wording of the condition has the effect of enabling the DSO to compel the defendant to undertake employment, irrespective of his views, and "criminalises" unemployment. In light of that construction, the defendant submitted the proposed condition will act as a detriment to the defendant's rehabilitation and result in compliance issues.
2. In reliance upon the rehabilitative objective of the Act, counsel for the defendant contended "the court should provide the defendant with some trust that work and the search for employment is a reasonable and healthy endeavour". This was contrasted with the potential negative impact, upon the defendant's rehabilitation, arising from the effect of "criminalising either not taking up an offer of employment … or not searching for employment".
3. As to issues of compliance, the defendant repeated the submissions earlier advanced with respect to the schedule of movements, namely, the condition by its form presents difficulties with compliance and exposes the defendant to significant penalty in an instance of breach. This is because, in its current form, the defendant may be compelled to work notwithstanding any concerns he may possess with respect to the same. In that light, it was submitted, that the condition "may increase his risk if the DSO takes a position that a particular position of employment is one that is desirable for him and the defendant doesn't believe that to be the case".
4. The State relied upon the evidence of Ms Grabham. Ms Grabham described condition 18 as "important to enable the DSO or ESO team to conduct appropriate check and risk assessments prior to the Defendant commencing proposed work, education, training or courses that may bring him into contact with children".
5. The State also relied upon the risk factor associated with employment, namely, the defendant has a limited employment history within the community. Mr Sheehan opined that the defendant "has serious problems with employment, having a negligible history of community work". Whilst I accept that the defendant has undertaken employment whilst in custody, I also accept Mr Sheehan's characterisation of that experience as "sporadic". As to the defendant's attitude to future employment opportunities, Mr Sheehan reported: He would not be drawn into discussing any future employment, saying: "Just take it one small step at a time".
6. In light of the material before the Court, in my view, the State correctly identified the need for conditions with respect to employment, finance and education in the circumstances of the defendant. The reports of the experts each identify the importance of an ESO providing supervision that will assist the defendant in his transition into the community. Ms Kirkwood also identified it as a risk factor in the Risk Management Report.
7. The State contended that the words "make himself available" do not "compel" the defendant to undertake employment. It was submitted that: It requires him to look for work as opposed to not look for work. If there is a direction by the supervising officer to the defendant that he must look for work, then he is required to make efforts towards finding that work. If by that submission the desired effect of the condition is to encourage the defendant to search for work when not otherwise engaged in employment, I accept such a purpose would be appropriately responsive to risk.
8. In particular, I have regard to my earlier findings with respect to the dynamic risk factors of the defendant and the fact the defendant is transitioning from a lengthy custodial period to a life in the community. Further, the defendant is yet to undertake any consistent or significant period or regular employment in the community (or in gaol). I also note the remarks of Schmidt J in State of New South Wales v Amohanga [2015] NSWSC 875 at [52]. Her honour observed: [52] Notwithstanding that this fear has a legitimate basis, I am satisfied that in Mr Amohanga's case, given his history and the serious risk of violent re-offending which he poses, that the dignity, occupation, income and other benefits which employment would so obviously provide him, means that the cost of subjecting himself to the requirements which employment carries with it, is one which he must bear. [Emphasis added.]
9. I approach the condition upon the basis that, properly construed, the condition does operate with that limitation, namely, the condition should operate as a mechanism by which the defendant may be required to search for employment where deemed appropriate. As mentioned, such a direction may indeed be necessary, when regard is hard to the hesitancy expressed by the defendant with respect to the topic of employment to Mr Sheehan. My construction of the condition should also alleviate the concerns expressed by the defendant as to restrictive nature of the condition.
10. Finally, I note that the relevant officer may again be expected to adopt a practical and beneficial approach to condition 18. It would seem desirable that some delay be occasioned to the requirement to search for work for a period of about 12 months. However, that will ultimately be a matter for the ESO team.
11. Condition 18 shall form part of the conditions imposed by the Court with respect to the ESO pursuant to s 11 of the Act.
12. As the balance of the disputed conditions pressed in Part D, the State relied upon submissions similarly advanced with respect to the schedule of movements, namely, they provide essential mechanisms of supervision and monitoring to ensure no risks are involved. The defendant did not advance a contrary position beyond a bare objection to the inclusion of Part D of the Schedule. I accept the submissions advanced by the State in this respect. Conditions 19 and 20, as proposed by the State, shall form part of the conditions of the ESO.

Part E: Drugs and Alcohol: Condition 26

1. The basis for the defendant's dispute, in this respect, concerning the inclusion of the words "and must not discharge himself from such programs and courses without prior approval of his DSO". Counsel for the defendant contended that the condition, in its present form, would deprive the defendant of the independence to remove himself from a program should he deem it appropriate and, as a result, increase the risk the conditions seek to attenuate. Two examples were provided as circumstances in which the inability to exercise of such independence, due to the obligation to seek permission from the DSO, had the potential to increase the risk of reoffending: 1. owing to the content of the course, the defendant experienced increased anxiety and/or acute distress; and 2. the defendant finds himself in a group with anti-social influences.
2. The State pressed the wording on the basis of risk management. It was submitted the deletion of the words would have an impact upon the ability of the DSO to maintain supervision and to ensure that any difficulties experienced by the defendant were properly dealt with and resolved. The amendment proposed by the defendant allows for the possibility of the defendant discharging himself from a program or course without good reason.
3. I accept the submissions of the State with respect to condition 26.

Part F: Non-association: Conditions 28 and 31

1. As to proposed condition 28, the defendant objected to the State's suggested inclusion of "he reasonably believes" instead of the defendant's suggested wording "he knows". The latter, it was contended, forms a condition that is a "clear-cut" rule and easily complied with, namely, if the defendant knows that someone is consuming or under the influence of drugs or alcohol, then he must not associate with them. If he does not know about it, then he has not breached the order. Whereas the wording proposed by the State would impose an objective test, which creates a potential for inadvertent breach on the basis of the DSO's assessment of a scenario. I accept the submissions of the defendant with respect to condition 28.
2. Turning to the dispute with respect to proposed condition 31. The State relied upon the opinion of Mr Sheehan, who opined that the proposed conditions with respect to "non-association" are an "important factor" in managing his risk. The defendant contended that Mr Sheehan's opinion, in that respect, primarily concerned management of risks that might be exacerbated by the defendant's association with negative peer groups or even NC. It did not, it was submitted, extend to supervision of the defendant's engagement with pro-social groups. Counsel for the defendant once again advocated for the independence of the defendant and contended that the conditions remove a potential positive aspect of his rehabilitation, namely, "his ability to make his own decisions as to how his rehabilitation is going to take effect". Further, when seen in the light of the conditions not opposed, with respect to drug and alcohol, accommodation and supervision, condition 31 is not necessary.
3. The State relied upon the opinion of Mr Sheehan and contended that managing the defendant's associations is an important factor in managing his risk.
4. Whilst the defendant is correct to the submit that the focus of Mr Sheehan's opinion is directed at the need to restrict negative associations, I do not accept the submission that the requirement to obtain permission to join pro-social clubs will be an impediment to the defendant's rehabilitation or his ability to make decisions as to how his rehabilitation is going to take effect. In light of my findings with respect to the nature of the risk, supervision is an essential component. It may be accepted that the DSO will use his or her common sense when considering whether to grant permission to join a club or group and, in particular, not unreasonably withhold such permission when the request concerns a pro-social engagement within the community. I accept the condition as proposed by the State.

Part H: Access to the internet and other electronic communications: Conditions: 34-38

1. Counsel for the defendant contended that in assessing the appropriateness of Part H of the Schedule, the Court must have regard to particular circumstances of the defendant, in particular, the nature of the risk. It was submitted that the risk posed by the defendant does not require restrictions concerning the defendant's use of the internet. In support of that contention the defendant advanced the following submissions: 1. The defendant's risk was "an immediate and physical one to his domestic partner, and then any domestic partner in the future". Further, the nature of the risk posed by the defendant did not feature "grooming type risk factors". 2. There is no evidence to support that the use of the internet is a risk factor for him, or is a pathway to risk. There also appears to be limited evidence to suggest that internet use will be a risk going forward. 3. As to any risk related to associations that may be arguably attenuated by internet conditions, they are already addressed by conditions under Part F.
2. It was also contended, once again, that the conditions increase the risk of inadvertent breach and prevent the defendant from going his own way in rehabilitation for very little attenuation of risk for the community.
3. As to the appropriateness of conditions 34-38, the State relied upon and adopted the position set out in the evidence of Ms Grabham to support a conclusion that the proposed conditions are all relevant to managing risks around internet use and devices. The primary basis upon which the conditions were pressed, in light of that evidence, was as a means of monitoring. Ms Grabham provided two examples that illustrate the relevance of each of the conditions under Part H to the risk management of the defendant: 1. It is important to be able to monitor what device the defendant possesses as the possession of multiple devices such as mobile phones can be a way of concealing illicit activity. 2. Access to the defendant's devices and internet will allow or monitoring of potential access to victims, establishment of new relationships and any concerning communications between the defendant and potential partners.
4. Having considered the evidence of Ms Grabham in conjunction with my earlier analysis of the evidence of the experts and my findings with respect to the nature of the risk, I find the proposed conditions in Part H should be made.

Part J: Personal details and appearance: Conditions 46-47.

1. Having considered the compromised position of the State and the conditional submission advanced by the defendant, and noting that the physical appearance of the defendant is not relevant to the question of risk, condition 46 is to be deleted and the State's alternative condition 47 is to be imposed by consent.
2. Unlike condition 46, the State's alternative condition 47 is relevant for the purposes of monitoring the defendant, namely, the ESO Team need to be able to visually identify the defendant. Hence, it is not unreasonable that the defendant be required to allow his DSO to re-photograph him following any significant change to his appearance.

CONCLUSION

1. For the reasons set out in this judgement, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. The remaining preconditions in s 5B of the Act are satisfied.
2. It is appropriate for the Court to make, in the circumstances and in the exercise of its discretion, an extended supervision order. That order shall operate for a period of 5 years upon the conditions found appropriate by the Court in this judgment.

ORDERS

1. The State shall bring in short minutes of order reflecting this judgment by 4pm on Friday, 9 October 2020.

Annexure A (157253, 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: 13 October 2020