State of New South Wales v Brookes

History of detention and supervision

1. The defendant has been subject to restrictions upon his liberty under the Act and its predecessor (the Crimes (Serious Sex Offenders) Act 2006) since his release from custody in 2008. On 15 May 2008, Grove J granted the plaintiff's application for an ESO in relation to the defendant for a period of five years, but refused the application for a continuing detention order ("CDO"): New South Wales v Brookes [2008]. On 4 September 2008, the Court of Appeal (Ipp and Bell JJA and McClellan CJ at CL) dismissed the plaintiff's appeal from the decision of Grove J to impose an ESO, rather than a CDO: State of New South Wales v Brookes [2008] NSWCA 212.
2. The defendant was very difficult to supervise upon his release and engaged in a number of problematic behaviours, including threatening one of his housemates with a knife. He was shortly returned to custody and convicted of three breaches of the conditions of his ESO, including entering an exclusion zone containing a childcare centre, contacting MP, and hoarding his medication. He spent 20 out of the 23 months between the imposition of the ESO on 16 May 2008 and the imposition of an interim detention order ("IDO") in custody: State of New South Wales v Brookes [2010] at per Kirby J at [42].
3. On 9 July 2010, Kirby J made an order that the defendant be subject to a CDO for 14 months and 2 weeks pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act: State of New South Wales v Brookes [2010]. The plaintiff's purpose in seeking that the defendant be made subject to a CDO was to allow him to complete a modified version of the custody-based intensive treatment ("CUBIT") program in custody. His Honour noted at [36] that his previous engagement with therapeutic programs in custody, both in New South Wales and Queensland, had been considered unsatisfactory. His Honour observed that Professor David Greenberg, psychiatrist, and Ms Jenny Howell, psychologist, had previously opined that the defendant's personality disorder and intellectual difficulties made it difficult for him to engage in group therapy: at [36]. Department of Corrective Services psychologists took the view that he remained untreated: at [70].
4. Justice Kirby stated at [43], having outlined the defendant's breaches of the ESO: "But, more than that, Mr Brookes by his comments to Departmental officers and his actions in their presence, has demonstrated a preoccupation with matters sexual, and with children in particular. When escorted in public, he has repeatedly stared at children, even when asked not to do so, and made comments betraying a sexual interest in them. His actions, in the view of Dr Allnutt, displayed an ongoing interest in children, consistent with paedophilia (Dr Allnutt, report 4.6.10, p 16). On 7 June 2008, that is three weeks after his release, his room was searched and magazine pictures of children (aged between six and ten years) and babies were found…He gave an explanation that was not credible, namely that the pictures were of members of his family."
5. The defendant was detained pursuant to the CDO imposed by Kirby J until 22 September 2011, whereupon he was made subject to an ISO. On 12 December 2011, Hidden J made an ESO for a period of five years in respect of the defendant. His Honour stated: "During his period in custody under the continuing detention order the defendant appears to have made some progress towards his rehabilitation. I refer to this in my judgment granting the interim supervision order. The material established that he had responded favourably to psychological treatment and was willing to undergo ant libidinal medication. Nevertheless, the expert opinion remains that he is at a high risk of re-offending."
6. His Honour quoted germane passages from the reports of court-appointed psychiatrists Dr Stephen Allnutt and Dr Sampson Roberts, each of whom considered that the defendant had demonstrated progress but that he continued to present a high risk of re-offending in the absence of strict supervision.
7. Although the defendant has not breached the ESO imposed by Hidden J, his supervision has been punctuated by medication non-compliance and frequent hospitalisations due to suicidal ideation. It appears that certain stressors, particularly the anniversary of the death of his parents, lead to a decline in the defendant's mental health such that he stops tending to self-care activities, including eating and maintaining hygiene, and adhering to medication regimes. Those declines culminate in admission to psychiatric in-patient units. The defendant also had significant difficulties moving into independent accommodation from the community offender support program ("COSP"). He remained at the COSP for three years. I note that he seems to have settled in well at his current community housing, albeit with a great deal of support from caseworkers to maintain good hygiene and nutrition.
8. The material before me shows that the defendant's sexual preoccupation with children has continued, consistent with his diagnosis of a chronic paedophilic disorder. A Prince of Wales Hospital discharge summary dated 17 August 2012 records that the defendant reported "…suicidal ideation and a desire to sexually assault children." Before me is a file note from a member of the community mental health team with which the defendant is engaged to the effect that he began a conversation with an eleven-year-old girl at a hairdresser on 9 June 2016, asking her the age of a baby in a nearby pram. On 2 June 2016, he had reported to his psychologist that he masturbated two to three times each week despite being on anti-libidinal medication. On 26 November 2016, a caseworker reported that the defendant was seen staring at children.

Risk Assessment and Risk Management Reports

1. Section 6(3)(b) of the Act relevantly requires an application for a high risk sex offender ESO to be supported by a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a further serious sex offence.
2. Forensic psychologist Dr Richard Parker prepared a Risk Assessment Report ("RAR") dated 8 March 2016 in relation to the defendant. The defendant acknowledged to Dr Parker that the ESO then in place was "…there for the protection of the community and me" and said that it was "…easier to go along with it than fight it." Dr Parker recited the defendant's family background, psychosocial history, background of sexual and non-sexual offending, past treatment, and response to supervision in the community. He noted that the defendant's sexual offending appears to be "…motivated by a sexual attraction to children and facilitated by a lack of moral inhibitions against such actions."
3. Dr Parker administered a number of risk assessment instruments with respect to the defendant in order to assess his risk of re-offending. He noted that the defendant's score on the actuarial risk instrument the Level of Service Inventory-Revised ("LSI-R"), completed in 2015, and placed him in the "medium" category. The defendant's total score on the STATIC-99, which Dr Parker administered on 25 February 2016, was 8. Dr Parker noted that this score places the defendant in the high-risk category relative to other male sexual offenders. It is in the 99th percentile, meaning that roughly 98% of sexual offenders scored lower than the defendant. The defendant's total score on the STABLE-2007, an actuarial tool that that assists in identifying stable dynamic risk factors for sexual offending, was between 11 and 15. The lower score of 11, which is at the top of the moderate range, is taking into account the defendant's use of anti-androgen medication. The higher score of 15 falls within the high-risk category.
4. Dr Parker noted that combining the STATIC-99 and the STABLE-2007 in the defendant's case yields a high to very high overall risk level. He stated that this risk assessment is "…anchored by static, unchangeable factors, but backed up by the identification of a number of criminogenic needs," namely sexual deviancy, intimacy deficits, sexual attitudes and self-regulation. Dr Parker posited a risk scenario in which, having given up his stated goal of becoming a responsible person, the defendant experiences negative affect and becomes non-compliant with his medication and other restrictions placed on him. An offence could happen very quickly, the defendant having demonstrated in the past that he does not require an extended period of grooming in order to abuse a child.
5. A Risk Management Report under the hand of Community Corrections Officer Allison Roberts dated 14 September 2016 was also before the Court in this matter. In that report, Ms Roberts proposes a risk management plan in response to the criminogenic needs identified by Dr Parker in his report of 8 March 2016. The strategies proposed include weekly interviews with the defendant, field visits (including surveillance), contacting third parties involved with the management of the defendant, electronic monitoring, schedules and curfews, attendance at Forensic Psychology Services, continued attendance at psychiatric appointments, prohibition on contact with children, non-association and place restrictions, and searches of mobile phones and other devices.

Report of Dr Andrew Ellis

1. Dr Ellis examined the defendant on 12 December 2016 and provided a report dated 20 January 2017. He stated that the defendant receives support six days a week from a non-government mental health support service. That service assists the defendant with transport, shopping, cooking, cleaning, washing and leisure activities. He requires considerable prompting and assistance with respect to those activities of daily life. He has a private psychiatrist, a case manager, a general practitioner and a forensic psychologist. He takes anti-libidinal medication, among other prescribed drugs.
2. In respect of the defendant's account of his offending behaviour, Dr Ellis stated: "He says he was previously motivated by a need for friendship and seeing sex as a 'side show of love'. He says he engaged in 'wrongful thinking' (fantasising about sex with children) and did not think of consequences. He says a lot of physical and psychological damage has been done by his behaviour. He says to prevent future offending he now has a 'warning system'. He says he would leave the area if he thought he was at risk of approaching a child, he would 'go and see copper' if he had thoughts of doing this. He says he always sits at the front of the bus and avoids children. He says with medication he has lost interest in sex with children. He says that it is 'never say never' so he will always need medication." [emphasis added]
3. Dr Ellis identified the diagnosis "of primary concern" as the paraphilic disorder paedophilia, with attraction to both male and female children. He considered that the disorder had its onset in the defendant's early teenage years and has had a chronic course since then. Paedophilia is typically a chronic, relapsing condition. Dr Ellis also stated that the defendant meets criteria for anti-social and borderline personality disorder, having regard to the defendant's history of conduct disorder during childhood and participation in a diverse range of criminal behaviour in adulthood. This is consistent with his history of childhood abuse and institutional care. Dr Ellis considered that the defendant's combination of mood instability, impulsivity, intermittent psychotic symptoms and cognitive impairments is consistent with a mild neurocognitive disorder and a psychotic disorder due to a general medication condition (namely epilepsy and cerebral atrophy).
4. Dr Ellis identified a number of features associated with a greater risk of re-offending, including the defendant's anti-social and borderline personality style, deviant sexual arousal, offending against both male and female children and mental disorders (if untreated). He considered that the defendant is at a high risk of re-offending: "In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr Brookes would fall into a group of persons with a risk for serious sexual offending that is statistically high in frequency, of a type with serious consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk, evidenced by remaining offence-free in the community with high forms of support and supervision." [emphasis added]
5. Dr Ellis stated in his report that a diagnosis of paraphilia is the main indication for anti-libidinal medication. As the defendant's personality style and cognitive deficits limit his ability to benefit from psychological intervention, continued treatment with such medication is recommended.
6. With respect to the duration of an ESO, Dr Ellis stated the following: "From a psychiatric perspective if an ESO is applied a period of three years is considered reasonable in order to improve function in the community, and refine appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid mental and personality disorders impact upon likely treatment and supervision response. Although considerable time has passed from prior sexual offences, much of this has been while in custody or supervision, and a stable pattern of behaviour under supervision has only begun to emerge. If this stability is maintained then a review of the risk could be considered. He requires significant support for safe living in the community. This period is estimated based on his current mental state, paraphilia, personality disorder and current attitudes to supervision that will be unlikely to change in the short term." [emphasis added]
7. Dr Ellis gave oral evidence at the hearing and was cross-examined. In relation to the assertion in his report that "…a stable pattern of behaviour has only begun to emerge," he said: "So it's been a long time since he has committed a sexual offence, however, the majority of that time has been while he's been in custodial environments or in hospitals or under the considerable supervision of the ESO. So the risk that he presents with has been commensurately managed by significant interventions, and for a lot of that time there's been a significant amount of instability in his behaviour which I think has been very well responded to by multiple services. The stability that that he was showing at the time I saw him at the end of last year is relatively new compared to his behaviour over decades before. And while it's positive that stability has begun to emerge, it's not enough in my view to make large - for you to be confident that that stability will continue without the current levels of support."
8. Dr Ellis noted that the defendant has been hospitalised at least five times since his release from custody. He stated that, although mental disorders are uncommonly directly related to sexual offending, the highest risk period for people with serious mental disorders who commit serious sexual offences is when they are not compliant with medication regimes. That is so even when the symptoms experienced are not related to offending conduct. Dr Ellis stated that non-compliance with medication tends to coincide with dropping out of other forms of treatment, such as psychosocial support. Similarly, the withdrawal of intensive support (such as that which he is currently receiving from a non-government mental health organisation) could lead to a rapid decline in the defendant's mental and physical health, which, combined with medication non-compliance, may produce a relapse into substance abuse and paedophilic thinking.
9. Dr Ellis agreed that the defendant requires long-term supervision. With respect to the period of time that he recommended, being three years, Dr Ellis stated: "…his psychiatric conditions are chronic and would persist beyond any period of supervision. But they might be better internally controlled and they might be better by other options than an ESO at that point in time, yes. But I think he will require long term support regardless of orders and that the risk is likely to be present for a considerable period of time."
10. He agreed that his recommendation of a period of three years was in the nature of a clinical judgment as to the minimum period of time within which the defendant's stability and response to supervision could be monitored before further review.
11. Dr Ellis agreed that the defendant would be suitable for indefinite use of anti-libidinal medication, subject to ongoing testing to monitor potential side-effects. Those investigations include blood tests, bone density scanning and physical examinations. The specialist input of an endocrinologist may be useful should abnormalities in the defendant's presentation be detected.

Report of Dr Stephen Allnutt

1. Dr Allnutt examined the defendant on 7 December 2016 and provided a report dated 18 January 2017. The following passages of Dr Allnutt's report are significant: "He said he accepted that he had a sexual problem with children. At the time of the offending he said he felt as though he was doing no harm, but he now thought it a 'possibility' that he did harm them. He said the psychologist had told him that such behaviour affected people in different ways. He now has a low libido and so sexual issues were not a problem. He believed that if he had a libido he would still not have a sexual problem because he 'did not go into areas'. When I asked what he meant by that he said, 'Curiosity killed the cat', implying that medication had helped him by slowing him down. He was less anxious and was not getting sexual thoughts. … He said he wanted to cut back on the Depo Provera [anti-libidinal medication] because it affected his libido and made him drowsy. He and his barrister were hoping the court would agree to this, but said, when I enquired, that he did not want to go off the medication altogether in case of a 'relapse', which he understood to be sexual thoughts about children. He said at the time of the sexual offending he was showing the children love. He could not say why sex was involved. He said he did not now think that using sex to teach children about love was acceptable because it was harmful, but added that children were in need of love and affection and he use [sic] to show them love and affection through sex, and some of it was ok. He did not accept that he had paedophilia "because it was not an ongoing thing and paedophiles don't know when to stop". He said from what he had learnt at CUBIT, a paedophile never gives up. When I enquired what he thought would happen if he stopped the Depo Provera, he said he did not know. When I asked him if he would discontinue the Depo Provera if he was off an ESO, he said he would not. He said he would take the Depo Provera as a 'safety measure'. … Again, when I clarified what his motivation was for the offending, he said it was for love and care. He said he had considered a sexual motive (to "get off") but had looked at that and it did not add up because he had felt no attraction to them. He said, when I suggested it, that most of the time he did not have an erection." [emphasis added]
2. Also significantly, the defendant told Dr Allnutt that he considered staring at children for no reason and wanting to engage with them in conversation to be "warning signs" of increased risk.
3. Dr Allnutt opined that the defendant has a paedophilic disorder and noted that he has been diagnosed with an ongoing mixed personality disorder with anti-social and borderline traits. He considered that the defendant has limited intellectual capacity. He noted that the defendant has previously been diagnosed with schizoaffective disorder, which is currently in remission secondary to medication, and temporal lobe epilepsy. It was noted that, given the defendant's history of panic attacks, he likely has an associated anxiety disorder.
4. Based on clinical and actuarial assessment, Dr Allnutt stated that the defendant falls into a group of sex offenders at high risk of sexual recidivism as compared with other sex offenders. He considered that, in the absence of significant psychosocial support, there is a "relatively high likelihood" that the gains that the defendant has made will diminish, with the emergence of risk factors including non-adherence to medication and psychological treatment, the emergence of psychotic and mood symptoms, association with anti-social peers, relapse into substance abuse, and aggravation of paedophilic fantasies and urges.
5. Dr Allnutt recommended the ongoing administration of anti-libidinal medication as long as it is medically safe to do so, with "constant and regular review" by the defendant's general practitioner and psychiatrist and an endocrinologist. The defendant reported to him that he could only recall being administered one set of blood tests since commencing on Depo-Provera in 2011. He could not recall any bone scans or consultations with an endocrinologist. He told Dr Allnutt that the only side effects that he experienced were tiredness and an inability to achieve an erection. He reported that he had had six admissions to the Kiloh Centre at Price of Wales Hospital since 2011, usually for depression and suicidal ideation. The latest of those was in July 2016, when he reported hearing voices saying "kill, kill, kill" and believed that his food was being poisoned.
6. Dr Allnutt declined to give an opinion as to the appropriate duration of any ESO, taking the view that this was a legal rather than a medical question.

Consideration

1. Having regard to the defendant's admitted sexual attraction to children, his diagnoses of paedophilia and a personality disorder with anti-social and borderline traits, his history of sexual offending against children, his lack of social supports, and his level of risk as assessed by Dr Parker, Dr Ellis and Dr Allnutt, I am satisfied to a high degree of probability that the defendant presents an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Although the defendant committed his last offence of a sexual nature over 15 years ago, I accept the submission made on behalf of the plaintiff that this is likely due to the defendant's either being in custody or subject to a high-level of supervision.
2. Accordingly, I am satisfied that Mr Brookes is a high risk sex offender within the meaning of s 5B(2) of the Act. The defendant conceded that the statutory requirements for making an ESO were satisfied in this matter. I am also satisfied that in the exercise of my discretion I should make the ESO sought. In so finding I have had regard to the mandatory considerations set out in s 9(3) as follows.

Section 9(3)(a): the safety of the community,

1. I have had regard to community safety in my consideration of this matter and am satisfied that the safety of the community warrants the making of an ESO having regard to the material before me.

Section 9(3)(b): reports under s 7(4) of the Act

1. I have had regard to the reports of both Dr Ellis and Dr Allnutt, the contents of which I have summarised above at [46] - [62]. Dr Ellis noted that the defendant falls into a group of persons with a risk for serious sexual offending that is statistically high in frequency and shows diversity in victim gender, which is associated with worse outcomes than those who offend against females alone. Dr Allnutt noted that the defendant does not accept he has paedophilia. Of concern is that in August 2016 he heard voices saying "kill, kill, kill". Dr Allnutt described Mr Brookes as having a chronic paedophilic disorder, likely anxiety disorder and ongoing mixed personality disorder with antisocial traits.

Section 9(3)(c): the results of other reports

1. I have had regard to the other reports before me. The defendant has been examined by a number of experts over the years and his diagnosis and poor prognosis remain largely unchanged.

Section 9(3)(d): the results of statistical or other assessments

1. I have had particular regard to the report of Dr Richard Parker. His conclusions regarding risk assessment are summarised above at [41] - [44]. He concluded that, on clinical and actuarial assessment, the defendant falls into a group of sex offenders with a high risk of sexual recidivism.

Section 9(3)(d1): any report prepared by Corrective Services NSW

1. I have referred above to the Risk Management Report of Community Corrections Officer Allison Roberts dated 14 September 2016. She set out some of the matters that might affect the ability of service providers to manage risk in relation to the defendant. She noted his difficulties with medication compliance and adequate nutritional intake. She opined that it was doubtful that he could obtain a satisfactory quality of life without intensive support. She described a long history of having difficulty with him relaying the truth of any particular situation to her. She also noted his lack of employment history. She suggested that electronic monitoring offers some mitigation of risk but, given possible opportunistic offending, the risk cannot be totally ameliorated even with that measure in place.

Section 9(3)(e): any treatment or rehabilitation programs

1. The defendant was discharged from the CUBIT program in 2002 but later completed it in custody in 2011. It could not be said, on the material before me, that completion of that program has reduced the risk of the defendant's re-offending to any significant degree.

Section 9(3)(f)(g): the offender's compliance with previous obligations

1. The defendant committed the Queensland child sexual assault offences while he was on parole for the child abduction conviction in 1986. The Queensland offences were committed shortly after his release to parole. When he was released from custody in 2001 he was not subject to a parole order. His subsequent offences in 2004 and 2007 related to breaches of the requirements of the Child Protection Register. He also breached his original ESO in 2008 and 2009. Although there have been no breaches since 2008, I am nonetheless satisfied that the defendant requires ongoing supervision.

Section 9(3)(h): the offender's criminal history

1. The defendant has a pattern of offending behaviour that dates back to 1986. Although there have been no recent offences, I am satisfied that that is likely as a result of the high level of supervision under which he has lived in recent years.

Section 9(3)(h1): the views of the sentencing court

1. The last time that the defendant was sentenced was in 2001. Judge O'Reilly noted that the defendant appeared to downplay his involvement in the Queensland offending at that time. Although his Honour found that the physical aspect of the indecent assault was "relatively slight", he noted that there was an increased need for specific deterrence in the defendant's case.

Section 9(3)(i): any other available information

1. There was affidavit material before me showing that the community mental health service that has provided significant support to the defendant since October 2013 is only able to provide that support if the Court makes an ESO. Were the Court not to impose an ESO, the service would need to conduct an organisational risk assessment in order to ascertain whether the level of risk posed by the defendant in the absence of 24-hour supervision would be acceptable to it.
2. I note that each of Dr Parker, Dr Ellis and Dr Allnutt opined that the psychosocial assistance and support provided by that organisation play a significant role in moderating the risk posed by the defendant. It seems to me that it is a relevant matter to be taken account that the support provided by that organisation is in some respects dependent on the existence of an ESO, which includes conditions such as constant electronic monitoring.

The length of the ESO

1. The question that remains is the appropriate duration of the ESO. Mr Aitken of counsel on behalf of the plaintiff submitted that the fixing of the length of the ESO is a legal question, the scope of which is broader than the psychiatric approach to risk. He submitted that, while the reports of Dr Ellis and Dr Allnutt would inform the exercise of my discretion, I would not look only to expert psychiatric opinion in determining the length of the order to which the defendant will be made subject. The correct approach, having found that the defendant is a high risk sex offender, would be to determine the appropriate period for the safety and protection of the community. In so doing, I would also have regard to the rehabilitation of the defendant.
2. Mr Skinner of counsel on behalf of the defendant submitted that there was no direct expert support for the making of an ESO for a period of five years. To the contrary, Dr Ellis considered that the appropriate period, in order to improve the defendant's function in the community and to "refine appraisal of risk", was three years. (Dr Ellis agreed in his evidence-in-chief that this period was in the nature of a "minimum"). Similarly, Dr Parker stated that it is important, as far as the management of the risk posed by the defendant is concerned, that he find a way to "feel good about himself and feel part of society, rather than being an outcast". Dr Parker considered that an increase in the defendant's engagement in society would necessarily involve a gradual reduction in the level of restraint to which he is subject.
3. In State of New South Wales v Manners [2008] NSWSC 1376, there was a dispute as to the appropriate length of the proposed ESO. After setting out the terms of s 10 of the Act, (at [79]), RA Hulme J observed the following at [81]-[82]: "As can be seen, there is nothing in this section to indicate how the length of the term of the order is to be determined It is reasonable to conclude that the length of the term of the order should be determined by reference to the objects of the Act set out in s. 3. Thus, I should determine this issue with reference to what is appropriate to 'ensure the safety and protection of the community" as the primary consideration but also bearing in mind the secondary consideration of encouraging the defendant to undertake rehabilitation'."
4. His Honour went on to consider the submissions of the parties at [83] - [89], before observing at [90]: "Whilst obviously one must bear firmly in mind the stated objects of the Act, it is not an irrelevant matter to bear in mind the practical effect of orders made pursuant to it. They involve restrictions on the subject's liberty, either by way of detention or by way of limitations of freedoms within the community. (See Johnson J in Tillman at [60])".
5. His Honour went on to consider the expert evidence before him as to the risk of re-offending and then concluded at [95]: "In my view the evidence of Dr O'Dea and Dr Lewin as to the high level of risk of the offender engaging in further sex offending is the most significant consideration in the determination of the appropriate term of the order. Their agreement of the need for the defendant to engage in appropriate treatment programs on a long term basis, at least for 5 years, militates in favour of making an order of that length."
6. Justice Fullerton considered the question of the duration of an ESO in State of New South Wales v Darrego [2011] NSWSC 1449 and observed at [87]: "The question of the duration of a supervision order was specifically posed for each of the court-appointed psychiatrists. Ultimately, however, the question whether a five-year term or some shorter term should be imposed is a question for the Court. Unlike the psychiatrists, I am obliged to take in to consideration a number of competing considerations in determining the appropriate length of the supervision order, with all of the limitations inherent in a predictive exercise of that kind."
7. In State of New South Wales v Conway [2011] NSWSC 925, Hidden J made an ESO for a period of three years when the plaintiff had sought an order for five years. The expert evidence supported the making of an order for five years. His Honour observed at [28]: "Nevertheless, as Dr Allnutt properly observed, this decision is a legal one, not a clinical one. After careful consideration, I am persuaded by Mr Johnson's submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment."
8. Similarly, in State of New South Wales v De La Torre [2011] NSWSC 1263, the dispute between the parties was confined to the length of the proposed ESO. The court appointed experts both agreed that an ESO for five years was appropriate and that was the order ultimately made by Garling J.
9. In Attorney General for the State of New South Wales v Steadman ['2013] NSWSC 17, Button J reviewed the authorities dealing with the consideration of the appropriate length of an ESO, including some of the above, at [75] -[80]. His Honour concluded that an order for three years was appropriate in that matter.
10. I am satisfied based on the above authorities and the language of the Act that the question of the appropriate duration of an ESO is a legal one, albeit to be determined with the assistance of expert psychiatric and psychological opinion. It seems to me that the most important consideration guiding the exercise of the Court's discretion with respect to the duration of an ESO is the safety and protection of the community. That approach accords with the primary object of the legislation. The rehabilitation of the defendant is a secondary object; necessarily it will yield to the safety and protection of the community in cases where those two objects conflict.
11. The argument in favour of imposing a shorter order of three years' duration was that it would make the defendant feel better about himself, which would in turn assist in his rehabilitation. Although the material before the Court on this application suggests that the defendant has made some progress towards independent living in the last five years, nothing in the expert evidence, save for the reduction in sexual drive and preoccupation induced by the intramuscular administration of the anti-libidinal medication Depo-Provera, indicates that the risk posed by the defendant to children has declined over that period of time. He has expressed an ambivalent attitude towards Depo-Provera to Dr Allnutt, the relevant portions of whose report are extracted above at [57]. His sexual preoccupation with children continues and his mental and physical health is precarious.
12. Although it may be appropriate to review the defendant clinically in three years, I do not consider that the defendant will cease to present an unacceptable risk of committing a serious sexual offence in the medium to long term.
13. I have had regard to the fact that, although it would be open to the defendant to approach the Court with an application to vary the term of the ESO before the expiration of five years, as a matter of practical reality he does not have the personal resources to do so. Mr Skinner submitted on his behalf that I would be satisfied that the defendant's cognitive impairments and physical and mental health problems mean he is incapable of approaching Legal Aid himself in order to seek assistance with such an application to this Court.
14. I accept that should the question of either party approaching the Court for a variation of an ESO arise, as is permitted under s 13(1) of the Act, it is more likely that the plaintiff rather than the defendant would have the resources to do so. However, that is not a reason to limit the order to three years if I am otherwise satisfied that the safety and protection of the community require that an order of five years be made.
15. For these reasons, and having regard to all of the material before me, I am satisfied that the appropriate length of the order is five years.

Conditions

1. I have given consideration to the proposed conditions set out in Schedule A to the plaintiff's amended summons. At the hearing of this application on 10 February 2017, the plaintiff indicated that it did not press conditions 6, 7 and 8. I did not include those conditions when I extended the ISO on that day. I am satisfied that it is appropriate to make the ESO subject to the conditions set out in the schedule to this judgment; the level of supervision is high, but I am satisfied that it is necessary. I propose to impose an ESO on the defendant for a period of five years subject to those conditions.

ORDERS

1. I make the following orders: 1. Order pursuant to ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to a high risk violent offender extended supervision order for a period of five years from the date of this order. 2. Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) directing that the defendant, for the period of the high risk sex offender extended supervision order, comply with the conditions set out below in the schedule to this judgment. SCHEDULE Part A: Reporting and Monitoring Obligations Monitoring and Reporting
2. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
3. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
4. The defendant must follow all reasonable directions by his DSO or any other person supervising him.
5. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. Electronic Monitoring
6. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements
7. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
8. The defendant must live at an address approved by his DSO.
9. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
10. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
11. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
12. The defendant must not permit any person to enter or remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions
13. The defendant must not leave New South Wales without the approval of CSNSW.
14. The defendant must surrender any passports held by the defendant to the Commissioner.
15. The defendant must not go to a place if his DSO tells him he cannot go there.
16. Without limiting condition 17 above, the defendant must not go to any of the following without the prior approval of the DSO: a. Day-care centres, pre-schools and schools, early childhood centres and community health centres; b. Amusement parlours, amusement parks and theme parks; c. Cinemas; d. Libraries and museums; e. Camping grounds and caravan parks; f. Children's playgrounds, parks, and areas with play equipment provided for the use of children; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or i. Residences where the defendant knows that persons under 18 ordinarily reside. j. Internet cafes or other businesses which public access to the internet either for payment or for no charge (other than employment agencies).
17. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, or where drugs are illegally sold. Part D: Employment, finance and education
18. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO and make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
19. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. Part E: Drugs and alcohol
20. The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.
21. The defendant must submit to testing for drugs as directed by his DSO. Part F: Non-association Association with Children
22. The defendant must not approach or have contract with anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. Associations with Others (not children)
23. The defendant must not associate with people that his DSO tells him not to, must not associate with other known sex offenders, and must provide the details of any associates to the DSO.
24. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.
25. The defendant must not engage the services of sex workers.
26. If the defendant starts a relationship with someone, he has to tell his DSO. The DSO may request the defendant to disclose his criminal history, and if the defendant refuses to do so, the DSO is permitted to disclose the defendant's criminal history to that person.
27. The defendant is prohibited from starting a relationship with anyone who has custody or care from time to time of children under the age of 18.
28. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part I: Access to the internet and other electronic communication.
29. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
30. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
31. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to this access to the internet.
32. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
33. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part J: Search and seizure
34. If the DSO reasonably believes that a search (of a type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or anything in, the defendant's approved address; e. search and inspect of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thin in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person.
35. For the purposes of the above condition: a. a search of the defendant means a garment search or pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat down search" means a search of a person where the person's clothed body is touched.
36. During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
37. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
38. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 36-39 above. Part K: Access to pornographic, violent and classified material
39. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, and anything else that might fit the description of child abuse material and child pornography as it is defined by the legislation, or any other material as directed by the DSO. Part L: Personal details and appearance
40. The defendant must not change his name from "Alexandria Brookes" or use any other name without the approval of his DSO.
41. The defendant must not use any alias, log-in name, or a name other than "Alexandria Brookes" or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third-party sites or applications that require the user to have a user identification name or log-in email.
42. The defendant must not change his appearance without the approval of his DSO.
43. The defendant must let CSNSW photograph him.
44. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part M: Medical intervention and treatment
45. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
46. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
47. The defendant must take all medications as prescribed to him by his healthcare practitioners.
48. If the defendant knowingly ceases to take all medications as prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
49. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
50. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
51. The defendant must continue to see his regular general practitioner if available, rather than attending another general practice.

Amendments 15 March 2017 - Paragraph [2] amended to read "anti-social and borderline traits". 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: 15 March 2017