State of New South Wales v Brookes - [2024] NSWSC 1264 - NSWSC 2024 case summary — Zoe

NSWNSWSC

State of New South Wales v Brookes

[2024] NSWSC 1264

Supreme Court of NSW|2024-08-16|Before: Rigg J, Button J, Hidden J, Yehia J, McNaughton J, When Button J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-08-16

Before

Rigg J, Button J, Hidden J, Yehia J, McNaughton J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Introduction

By Summons filed on 8 March 2024 the plaintiff, the State of New South Wales, seeks that an extended supervision order ("ESO") pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") be imposed upon the defendant, Mr Alexandria Brookes, for a period of two years from the date of the order.
The defendant is a 60-year-old man who, at the time of the hearing, was under supervision in the community pursuant to an interim supervision order imposed under the Act by Button J which commenced on 9 June 2024 ("the interim order"): State of New South Wales v Brookes (Preliminary) [2024] NSWSC 647. It was subsequently renewed by Yehia J and then by McNaughton J. It was not able to be extended beyond 8 September 2024.
Since 2008, the defendant has been subject to a Continuing Detention Order pursuant to the Act and four successive ESOs. He has a history of committing very serious sexual offences, but these offences occurred a long time ago. The defendant was last convicted of a sexual offence in 2001 and of breaching a condition of an ESO in 2009. He has a number of mental and physical disabilities and other diagnoses which provide reasons pointing in different directions in relation to the need for an ESO, and determination of its length.
When Button J imposed the interim order, orders were also made for the appointment of experts to provide the Court with reports, and for the defendant's attendance upon those experts. The experts retained by the plaintiff were Dr Christina Matthews, generalist and forensic psychiatrist, and Dr Carollyne Youssef, forensic psychologist. They gave evidence concurrently at the hearing. They are both firmly of the view that an ESO is required at the moment, but Dr Matthews is of the view that alternative methods of managing risk may be available and should be able to be implemented within 12 months.
Written submissions filed for the defendant opposed the making of the order, and the duration of two years, if made. Oral submissions following the evidence adduced at the hearing were more closely focused on the duration of the order. The terms of conditions to be imposed if an order was to be made were ultimately not contentious.

[3]

Background

In summarising the background I am considerably assisted by the parties' joint statement of agreed facts which summarised the evidence and judgments before me.
The defendant has a criminal history, with multiple sexual offences committed against young children in New South Wales and Queensland. On 16 February 1987 he was convicted in New South Wales of abducting a 2-year-old child with intent to deprive, contrary to s 91 of the Crimes Act 1900 (NSW) ("the Crimes Act"). He was sentenced to two years imprisonment with a non-parole period of 12 months.
Following the defendant's release to parole, he and a co-offender with, whom he had been in prison, abducted three children between 3 and 9 years of age and travelled to Queensland. The defendant and co-offender committed a number of sexual offences over two days against and in front of the children.
The police located the children and the two men, and established what had occurred. On 28 June 1988 the defendant was convicted and sentenced in the Queensland Supreme Court to a total period of 11 years imprisonment for a number of offences arising from this conduct; namely: fraudulently taking a child under the age of 14 years with intent to deprive, indecent dealing with a girl under 14 years, carnal knowledge of a girl under 12 years of age, two counts of indecent dealing with a boy under 14 years, three counts of carnal knowledge of a boy under 14 years, permitting carnal knowledge against the order of nature, and gross indecency (with his co-offender, in the presence of the children). He was released from prison without supervision in January 1999.
On 20 September 2001 the defendant was convicted in New South Wales of indecent assault of a person under the age of 10 years, contrary to s 61M(2) of the Crimes Act ("the 2001 offence"). He was sentenced to three years and six months imprisonment with a non-parole period of 18 months. The offence was committed against a 9-year-old boy at a church function. The defendant asked the victim to accompany him to the toilets, where he pulled the victim's penis twice. The sentencing judge dealt with the matter on the basis that the offence was a "sudden impulse… not a planned event".
On 12 January 2005, the defendant was sentenced to 8 months imprisonment with a non-parole period of 1 month for the offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (not notifying police of a change to his address). On 23 May 2007 he was sentenced to 12 months imprisonment for a further such offence (not notifying police of his intention to travel to Queensland for longer than 28 days).
On 15 May 2008 Grove J imposed an ESO for a period of five years with stringent conditions. [1]
On 10 February 2009 the defendant was sentenced to 12 months imprisonment with a non-parole period of 8 months for breaching his ESO (deviating from his proposed daily movements, entering an exclusion zone and entering a property with signs for a childcare centre). The sentence was backdated and he was released from custody on 10 February 2009.
When packing up the defendant's personal belongings following his arrest, supervising officers found a craft knife, pornographic magazine and images of young children and babies, apparently cut from magazines and newspapers.
On 9 November 2009 the defendant was convicted and sentenced to 6 months imprisonment commencing 19 October 2009 for a further breach of his ESO (hoarding medication rather than taking it as prescribed). On 8 December 2009, the defendant was convicted and sentenced to 9 months imprisonment commencing 31 July 2009 for a further breach (contacting a vulnerable person despite having been directed not to contact her).
On 9 July 2010, Kirby J ordered that the defendant be subject to a Continuing Detention Order for 14 months and 2 weeks, commencing on 9 July 2010 and expiring on 22 September 2011. [2]
On 15 September 2011 Hidden J made an interim supervision order in respect of the defendant. On 12 December 2011, his Honour made an ESO for a period of five years. [3] On 10 March 2017, N Adams J made a further ESO for a period of five years. [4] On 7 June 2022 Button J made a further ESO for a period of two years to commence on 10 June 2022. [5]
I deal further below in considering the expert evidence and risk assessments with the psychiatric diagnoses of the defendant as suffering from paedophilia and possibly a psychotic disorder. He had a disadvantaged childhood and upbringing and was possibly the victim of sexual abuse as a child.
The defendant has an acquired brain injury which occurred at the age of 5 when he was hit by a car. As a result he has been assessed as having decreased cognitive functioning, poor planning, sequencing of tasks, low motivation and often demonstrating poor personal hygiene.
The defendant is physically impaired. He uses a four wheeled walker with supervision when ambulating longer distances or over uneven ground due to a decline in balance.
The defendant is a National Disability Insurance Scheme ("NDIS") participant, and is in receipt of a disability support pension. An assessment conducted on 6 November 2019 recorded significant, lifelong disability which has led to permanent and enduring impairments across all functioning domains including self-care, housing management, and interpersonal interactions.
The defendant currently resides at Benjamin Short Grove Aged Care facility, a secure supported care facility in Orange. He moved there in November 2019 following frequent admissions to hospital for functional decline, falls, urinary incontinence and retention, lethargy, inability to manage his catheter, poor self-care and chronic weight loss. Records note a decline in his physical and cognitive functioning over time, and he currently has one-to-one support with all daily living activities. The defendant is currently well supported by a range of professional supports, including carers at the aged care facility, NDIS support workers, and his departmental (Corrective Services NSW) supervising officer ("DSO").
By virtue of the ESO imposed in 2022 the defendant is under the supervision of Corrective Services NSW and is required to follow all directions provided by his DSO. He is ordered to reside at the above-mentioned aged care facility and not allowed elsewhere overnight, nor to have any overnight visitor, without permission. He is not permitted to enter or visit a range of areas or facilities where children are likely to frequent. He is not to engage in employment or volunteer work without permission. He is subject to association restrictions and is not to contact anyone under the age of 18, nor commence a relationship with someone who cares for a person under 18, without permission. His DSO supervises all electronic devices and applications, and the defendant is subject to search and seizure conditions. The defendant's support workers depend on the DSO for guidance as to the defendant's movements, and as a result he is only permitted out in the community under their direct line of sight supervision.
The defendant is required to attend any medical appointment as instructed by his DSO and must take any medication prescribed to him by a medical practitioner. This has resulted in long term fortnightly injection of antilibidinal medication. There is no relevant psychiatric or psychological assistance available to the defendant in Orange.
The defendant is considerably younger than the other residents of his aged care facility. His placement with three much older women has been unfulfilling in terms of potential for friendship. He has been engaged in ongoing discussions with his DSO since mid-late 2022 about the prospect of moving from his current address to Supported Independent Living accommodation facilitated by the NDIS.
On 19 December 2023 the defendant's social worker made applications to the NSW Civil and Administrative Tribunal ("NCAT") seeking that the defendant be made subject to guardianship and financial management orders. As at the date of the hearing those applications were yet to be determined and were next before NCAT on 6 September 2024.

[4]

Statutory framework

The State's application for an ESO is brought pursuant to ss 5B and 9(1)(a) of the Act. Those sections provide as follows: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. … 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order - (a) by making an extended supervision order, or (b) by dismissing the application.
The power to make an ESO pursuant to s 5B is discretionary. In that regard, the Court is guided by the objects of the Act, and the paramount consideration and matters set out in s 9 to which the Court must have regard in determining whether or not to make an ESO.
Relevant provisions of the Act include the following: 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. … 9 Determination of application for extended supervision order … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. … (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - … (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).

[7]

Report of Dr Christina Matthews, forensic psychiatrist

Dr Matthews assessed the defendant via audiovisual link on 28 June 2024 and subsequently prepared a report dated 18 July 2024.
Dr Matthews' report provides a comprehensive analysis of the extensive material provided to her and her interview with the defendant. She found him to be co-operative with the interview process.
Dr Matthews found it likely that the defendant is experiencing several psychiatric syndromes contributing to his current presentation. Of significant relevance to his risk of reoffending was the diagnosis of paedophilia. She also referred to a history of experiencing psychiatric symptoms of a psychotic nature. She regarded the defendant as also meeting the criteria for having a cluster B personality disorder of combined antisocial and borderline type. It was possible that his borderline personality disorder potentiated his psychotic features, although it was also possible that he had developed a psychotic disorder secondary to another medical condition (noting his well documented history of head trauma and epilepsy). She noted that the defendant meets the criteria of mild-moderate intellectual disability.
Dr Matthews set out the results of a number of assessments of the risk of sexual offending. On the Static-99R assessment he was placed in risk level IVb (well above average risk). The structured professional judgment tool RSVP indicated a high load of risk factors for future sexual violence. Many were historical or static, such as the chronicity of sexual violence; but there were also multiple areas of dynamic concern. These included ongoing ambivalent attitudes to treatment and supervision, symptoms of mental illness and limited self-awareness.
Dr Matthews expressed the opinion that the defendant's risk of offending may increase to an unacceptable level if he was not subject to an ESO. One aspect of this was the risk of him deciding to cease his antilibidinal medication.
Dr Matthews made numerous recommendations in terms of the defendant's treatment and care. She considered potential ways to monitor the defendant outside of his having ESO obligations: "Mr Brookes reported that he 'didn't really have a problem' with taking the antilibidinal treatment in the future and stated it may have 'kept (him) out of trouble with kids'. However, on further questioning he did report that he was ambivalent about whether the medication was of particular use in his case as he no longer had an 'interest in kids'. It is my opinion that there is potential for Mr Brookes to cease the antilibidinal treatment if it was not legally mandated. If not under ESO obligations, it is possible for the assertive provision and monitoring of the antilibidinal treatment to occur via alternative pathways. The administration of Depot Provera may be considered as a special provision in a Guardianship Order. This will allow for the defendant's general practitioner or psychiatrist to administer the drug and monitor for physical side effects. A CTO [Community Treatment Order] may also mandate regular follow-up with a psychiatrist to monitor the therapeutic effect of the agent and conduct appropriate risk assessments."
Dr Matthews referred to alternative mitigation options as an appropriate replacement to an ESO: "To reiterate, it is my opinion that Mr Brookes' risk of sexual offending can be mitigated without the use of an ESO. This would be through the provision of a CTO, Guardianship Order and Financial Management Order. These particular legal orders have a therapeutic aim when compared to an ESO. This may be more appropriate for the defendant as he ages given his pre-existing mental health and cognitive issues."

[8]

Report of Dr Carollyne Youssef, forensic psychologist

Dr Youssef assessed the defendant via audiovisual link for two hours on 1 July 2024 and subsequently prepared a report dated 17 July 2024.
Dr Youssef regarded the defendant as at times slightly cantankerous, lacking in interest or exasperated. Dr Youssef formed the impression that the defendant was an unreliable historian, explained in part by his problems with memory and cerebral injury, but also by a tendency to offer significantly different accounts of his life history.
To Dr Youssef the defendant claimed to have not had any sexual thoughts for the last decade, while being on antilibidinal medication, and he reported frustration that he was not able to achieve an erection or experience a sexual release. He said that he wanted to reduce his antilibidinal medication from the depot injection to an oral tablet, and Dr Youssef noted that the last time there was a reduction in that medication the defendant reported that his "urges" returned. He confirmed to her that he would remain on the oral antilibidinal medication, even if an ESO was not made, but felt it important to regain his sexual functioning. Dr Youssef noted other statements made by the defendant in 2022 and 2024 to the effect that he wished to cease taking the medication. She noted that the defendant moves in the community with line of sight supervision and has not been tested off his antilibidinal medication.
Dr Youssef considered that the defendant has a Major Neurocognitive Disability, or dementia. This can result in confabulation, to cover gaps in memory. It could also leave the defendant less able to control his impulses, increasing the likelihood of offending behaviour. Supportive care and referral to a neurologist were indicated. The defendant also met the criteria for a paedophilic disorder. His chronic attraction to children was unlikely to dissipate.
Dr Youssef described the characteristics of the defendant's Paedophilic Disorder. She noted, as it relates to his age and functioning: "Pedophilia is considered a lifelong condition, although it can include other elements that may change over time, with or without intervention, such as subjective distress, psychosocial impairment and/or the propensity to act out sexually with children. Therefore, the course of pedophilic disorder may fluctuate, or the intensity might increase or decrease with age."
Dr Youssef provided extensive analysis of multiple risk assessment tools, and their limitations.
Applying the actuarial static risk assessment STATIC 99R, the defendant scored in the well above average risk of sexual recidivism category, or Level IVb. One of the factors that weighed against him was that he had not been without supervision since his release from custody.
Stable dynamic risk factors were assessed using the STABLE-2007 tool. The defendant's score of 13 placed him in the category of having a high level of dynamic needs. The clinically significant areas of concern were capacity for relationship stability, lack of concern for others, negative emotionality and deviant sexual preferences. The areas of some concern were emotional identification with children, general social rejection, sex drive/sexual preoccupation and sex as coping.
The third tool used was the Risk of Sexual Violence Protocol version 2. Dr Youssef explained the defendant's chronicity of sexual violence, and issues of psychological adjustment related to risk of sexual reoffending (such as minimisation of his behaviour, problems with self-awareness, struggling to appreciate high risk situations, lacking any specific self-management strategies other than avoidance of children, and oscillating between saying he is no longer a risk and acknowledging the need to manage his risk around children, and problems with stress or coping). The third domain, mental disorder, comprised six factors reflecting significant psychopathology in this case. Sexual deviance - the paedophilic interest - was "the most significant risk factor"; but there were additionally problems with sexual health, psychopathic personality disorder, major mental disorder including a traumatic brain injury in childhood and the defendant's neurocognitive decline. There were also indicators of risk in the domains of social adjustment and manageability.
The fourth risk assessment tool used was the structured assessment of protective factors for violence risk: sex offenders, or SAPROF-SO. In a number of areas the defendant either had no or limited protective factors. He had most protective factors in the domain of professional-provided support, with supervised living and line of sight supervision, as well as medication compliance. Dr Youssef did however consider that in the longer term, this may restrict his ability to engage in social groups.
Dr Youssef considered that the defendant had a high loading of dynamic risk factors requiring specialised intervention, falling in the well above average category for sexual recidivism. Furthermore, the defendant had limited protective factors and required support and intervention. Whilst his physical limitations made it less likely he would be left with a child, it did not eliminate his risk, with his perceived vulnerability and frailty potentially letting him have access to families who saw him as non-threatening.
The risk scenarios she considered realistic would amount to serious sexual offending. Dr Youssef recommended that forensic psychological intervention identify "approach goals", to give the defendant a sense of independence and improve his motivation and autonomy. Dr Youssef was content to accept the 2023 assessment of moderate intellectual disability. The defendant was likely to continue to require antilibidinal medication and psychiatric medication oversight, although Dr Youssef noted that the medication may not necessarily stop thoughts about children.
Dr Youssef considered that the risk could be managed under an ESO (and that it could not be managed without one). The likelihood of the defendant being able to self-manage his risk was regarded as low. Dr Youssef considered, however, that assertive efforts should be made to expand his professional network to include a psychologist and behaviour support practitioner.
Other protective factors were identified by Dr Youssef as mitigating Mr Brookes' risk of further offending: "145.9.1. The current protective factors identified for mitigating Mr Brookes' risk of committing further serious sexual offences include his adherence to antilibidinal medication, residence in a secure facility with 24/7 support, ongoing community supervision with 1:1 line of sight supervision, restricted access to children and child-related locations such as parks and childcare centres, and his deteriorating health, which limits his mobility and agility. The SAPROF-SO (para 130-134), highlights that external control is Mr Brookes' strongest protective domain."
Dr Youssef also discussed the appropriate supervision Mr Brookes could receive: "145.4.8. Consistent and structured supervision, such as living in a supervised setting with conditions, can mitigate risk. Support from support workers or social services plays a crucial role in maintaining stability and preventing situations that could lead to reoffending. Should Mr Brookes live in a less supervised setting, lose his support system, have access to locations with children and/or engage with others who have child offending proclivities, then this would mark an increase in risk of reoffending for Mr Brookes."
Dr Youssef expressed the opinion that if no order is imposed, the defendant would be left in the community without any justice-related support or supervision. He would need to voluntarily engage with services and could choose to decline services, medication, and select his place of residence freely. She stated that given the defendant's outstanding issues and disability, his likelihood of being able to self-manage and take the necessary steps to continue to manage his risk effectively, without a further period of targeted and refined support and supervision in the community, was low.

[9]

Concurrent oral evidence of Dr Matthews and Dr Youssef

Both witnesses gave careful and considered evidence. Dr Matthews explained that the aim of antilibidinal medication is to reduce deviant sexual urges, but that sexual function can also be reduced. Careful supervision of a person who is frail, such as the defendant, was important because of potential side effects such as reduced bone mineral density.
Dr Matthews confirmed that her view was that the defendant needs very intensive support and supervision 24 hours a day, but that there were aspects of his situation in the current facility that were not completely appropriate for him.
Dr Youssef explained the defendant's dynamic risk should be re-evaluated every six to twelve months. A forensic psychologist or psychiatrist should be involved, working in consultation with a behaviour support practitioner. Dr Eagle was well placed to assist in this regard. Dr Matthews agreed with this. Both expressed the view that the defendant required a considerably greater level of expert review and support than he has been receiving, and that the defendant has been essentially dealt with by way of "containment" rather than therapeutic treatment.
Dr Matthews provided further detail as to how the proposed measures of Community Treatment Order ("CTO"), guardianship order and financial management order could be made in this case and be viable for regulating risk. She also answered questions about orders under the Child Protection (Offenders Prohibition Orders) Act 2004 ("child protection orders"). She confirmed that it was the defendant's psychotic disorder, not paedophilia, which she had in mind as founding the CTO. She regards the seriousness of this mental illness as quite significant, and of a kind which impairs the defendant's decision-making capacity. A number of limitations of CTOs, guardianship orders and child protection orders were explored with the witnesses.
Dr Matthews confirmed her view was that the defendant does need to have a legal framework for risk management with regards to his sexual offending, but it doesn't necessarily have to involve an ESO. Her views were prefaced on a guardianship order requiring the continuation of [some form of] antilibidinal medication.

[11]

Older reports and risk assessments

There are many other reports and risk assessments contained in the evidence before the Court, and discussed in the earlier judgments of the Court in imposing ESOs or the continuing detention order. I will refer only to the three most salient, which were also helpfully summarised in the parties' joint statement of agreed facts.
On 12 February 2024, Sarah Wright (Senior Psychologist, High Risk Offenders Team - Corrective Services NSW) prepared a Risk Assessment Report, pursuant to s 9(3)(c) of the Act, in respect of the defendant. There were limitations in her then recent interview of the defendant, and the report was otherwise based on her interview with the defendant in June 2023 and collateral information.
Ms Wright noted, amongst other things, that during the current ESO the defendant has co-operated with his supervision requirements and complied with all conditions. The current ESO is the least restrictive of any of the ESOs to which he has been made subject, with electronic monitoring removed in March 2022.
She stressed the importance of the antilibidinal medication and the constraints imposed under the ESOs as likely to have contained the risk of sexual offending. She expected that acute risk would rise if there was a cessation or reduction of antilibidinal medication.
Ms Wright noted records indicating some insight by the defendant into his risk factors and warning signs. She said that he expressed confidence in his ability to remain offence-free with a reduction in antilibidinal medication because he had completed relapse prevention plans during CUBIT. She thought he had a basic appreciation of risk management strategies. She noted aspects of the case management records of concern (see further below at [91]).
Ms Wright noted that the defendant successfully completed CUBIT while subject to a continuing detention order in 2010 and 2011 and his overall participation was considered positive. He continued Forensic Psychology Services in individual maintenance sessions until July 2019 (when this became unavailable following his move to Orange).
Ms Wright reviewed the defendant's score from the STATIC-99R actuarial risk assessment as administered on 22 October 2021 and agreed with that score. This score was in the Well Above Average risk category. She analysed the complexity, in the context of such scoring, of the defendant having not offended in the community for such a long time but while subject to the supervision under successive ESOs, with limited opportunities to offend. She did not see a basis to alter the defendant's score of 9 on the STABLE-2007 tool as at 22 June 2023 (moderate risk category). Overall, the defendant's assessed composite risk/needs level was well above average.
Ms Wright referred to the prospect of the defendant gaining access to a child by appearing frail or non-threatening. She also noted that, given the defendant's current mobility issues, adaptive functioning limitations and the assessment that he cannot be left alone, it was difficult to conceive that he would realistically have the opportunity for isolated contact with a child where he could commit a sexual offence. She noted, however, that support workers and carers would in her view not have any coercive powers over him.
Ms Wright noted that deviant sexual interest is the most robust predictor of recidivism. She considered that the antilibidinal medication was likely to have been "heavily instrumental in managing his deviant sexual urges and reducing his acute risk of sexual reoffence". Ms Wright noted that any future sexual violence could be "serious" as defined in the Act.
On 26 April 2022, psychiatrist Dr Sathish Dayalan prepared an expert report pursuant to s 7(4) of the Act. Dr Dayalan was of the opinion that the defendant fulfilled the psychiatric criteria for paedophilia and antisocial personality disorder with borderline personality traits. He was less certain regarding the diagnosis of a psychotic disorder.
Dr Dayalan administered the STATIC-99R actuarial risk assessment tool and found that the defendant had a score of 9, placing him in the well above average risk level. In terms of dynamic risk factors, the defendant had a moderate loading of those that influence the risk of sexual recidivism (particularly social influences, capacity for relationship stability, emotional identification with children, general social rejection/loneliness, impulsivity, poor cognitive problem solving and deviant sexual interests). Preoccupation with sex, sex as coping and negative emotionality would become relevant if the defendant were to become non-compliant with his antilibidinal medication and psychiatric treatment. Risk would also increase if living in a less supervised and supported setting, with easier access to triggers and potential victims. He noted that there has been a noticeable improvement in the "cooperation with supervision" factor in the last ESO term.
On 26 April 2022, Professor Susan Hayes, psychologist, prepared an expert report pursuant to s 7(4) of the Act. Professor Hayes assessed both intellectual functioning and risk of serious offending.
Professor Hayes administered the Vineland-3 tool which showed a moderate intellectual disability for adaptive behaviour. The domains of daily living skills and socialisation were both in the range of moderate intellectual disability, with communicating skills in the severe intellectual disability range. The defendant's functional age equivalent level for receptive language was 4 years, for expressive language was 4 year 4 months and for interpersonal relationships was 3 years and 5 months.
Professor Hayes was of the view that the defendant posed a risk of committing a further serious sex offence. She said that antilibidinal medication reduced the defendant's ability to have an erection but had not necessarily altered his sexual focus on children, and it would not mean that he could not abduct a child or touch a child in a sexual manner, such as digital penetration.
Professor Hayes' administration of STATIC-99R actuarial risk assessment was in accordance with the other experts. She also used the ARMIDILO-S test (assessment of risk and manageability of individuals with developmental and intellectual limitations who offend sexually) to assess the defendant. She noted that there was a low risk attached to supervision compliance, and treatment compliance. Professor Hayes concluded that the defendant's overall convergent risk estimate using ARMIDILO-S and Static 99 was "high".
Professor Hayes considered that the defendant's physical health reduced his risk of committing a further serious offence because it required an aged care setting with 24-hour care and supervision. Professor Hayes considered his psychiatric, psychological and cognitive impairments increased the risk of further serious offending because the defendant had little insight into his emotional coping, interpersonal relationships, communication deficits, mental functioning and cognitive impairments.
Professor Hayes expressed the opinion that the defendant's risk could not be managed in the community without an ESO, because it was unlikely that the defendant would receive the level of supervision, support and assistance which he would need, even with his NDIS Plan.

[14]

The parties' submissions

The Court received written submissions for the plaintiff dated 22 July 2024, read in conjunction with written submissions dated 19 April 2024 filed in the preliminary hearing before Button J, and written submissions in reply dated 13 August 2024. The defendant filed written submissions dated 5 August 2024 and also relied on the submissions earlier filed in the preliminary hearing. Both parties dealt comprehensively with the complex issues presented in this case, and the expert evidence regarding the risk of the commission of a serious offence if not subject to an ESO.
It was submitted on behalf of the defendant that the Court can find his level of risk is an acceptable one, because of the combination of: 1. His current functioning in the community. 2. His past, current and intended future use of antilibidinal medication. 3. His decline in functioning over time and risk mitigation. 4. The presence of additional protective factors.
It was submitted that if the Court finds the test in s 5B(b) met, the Court could take the course of exercising its discretion not to make an ESO, particularly because of alternative means to curtail the defendant's behaviour and conduct. It was submitted that if the Court considers that an ESO should be imposed, it should be for 12 months duration.
Oral submissions for the plaintiff stressed the importance of understanding the relationship between the current level of support and supervision and the existing ESO. Whilst the defendant has had a lengthy period in the community without sexual reoffence, he has had significant limitations placed on him during the ESOs, including electronic monitoring, scheduling, exclusion zones and other restrictions that have limited his opportunities to offend. Although it was accepted as positive that during the current ESO, while the defendant had been managed on the least restrictive level of supervision for an ESO, there has been no sexual reoffence or breach action, the defendant did continue to be housed in a secure facility with line of sight supervision during outings in the community with support workers.
It was pointed out that the experts agree that there is a high level of supervision in place. The behaviour support plan was submitted to indicate that there was no reason to think that one‑to‑one supervision would continue to apply if there was no ESO. The plan made clear that support staff will accompany the defendant in the community until advised by Corrective Services NSW that this may be rescinded. They are guided by the ESO and Corrective Services NSW on when this restricted practice can be rescinded. The ESO clearly shaped the way in which restrictive practices are presently implemented.
It was emphasised that the NDIS coordinator and NDIS support worker practice regarding the defendant only departing the facility in company of a support worker was in place because of the ESO.
Attention was drawn to Ms Wright's report regarding the defendant's wish to move out of his present residence. The report stated that while the defendant would continue to have professional supports available to him they would not have any coercive powers over him if he were no longer subject to an ESO. Similarly a social work report dated 19 December 2023, referring to the defendant's hope to move to another supported independent living facility, confirmed that the current facility, whilst not a locked unit, has security in place that requires someone to let the defendant out of the building.
It was submitted that there has been constraint as to where the defendant has gone because of the relationship between the DSO and the support workers, with the DSO advising places that are safe or not safe to go to.
Similar concerns in the occupational therapy supported living plan were emphasised. These factors culminated in the submission of counsel for the plaintiff that: "…what is in place is a regime which operates seamlessly because of that interrelationship that has appropriate protective factors built into it that are known and understood both by those supervising and Mr Brookes himself, including his need to take antilibidinal medication and the fact that he is required to as a condition of the order, so long as it is prescribed to him by a medical practitioner."

[15]

Determination

I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another offence if not kept under supervision under the order. Taking into account the matters I have referred to, giving the safety of the community paramount consideration, I am not of the view that there is a discretionary reason to not make an ESO.
For the reasons explained by the experts, the risk remains high despite the length of time that has passed without offending, and without breach of order. There is a desirability in the defendant being provided with more expert assistance, and more autonomy, and more regular revision. What has come to be the case is simply containing his conduct. However, the reality is that the most protective considerations in recent times have been the high level of supervision and support, and the antilibidinal medication. The support and supervision are provided by people beyond the defendant's DSO, but the current structure only exists the way it does because of the ESO. Further, the very reason as to why a guardianship order may be feasible in this case (Dr Eagle's view that the defendant lacks decision making capacity regarding his antilibidinal medication) highlights that his own stated intention regarding this medication may not offer reliable prediction of future action.
Dr Matthews' proposals for a different way of managing risk offer real potential for a better path for the defendant. However none of those structures were in place at the time of the hearing, nor capable of being put in place before the date beyond which the interim order could no longer be extended. There are numerous decisions of this Court regarding the differences between ESOs and alternative orders such as CTOs, child protection orders and guardianship orders. However there is no point in looking at this issue in the abstract. I accept the opinion of both experts called to give evidence about the level of risk with no orders in place.

[17]

The expert evidence

Dr Youssef's initial report recommended a duration of at least two years, (although the defendant may require longer). She stated: "This period would allow sufficient time to put in place community measures and supports that will provide Mr Brookes with some opportunities to demonstrate self-management. A further ESO provides an opportunity for Mr Brookes' conditions to be gradually, but steadily reduced with an opportunity to be supported whilst under the order and importantly for an appropriate specialized professional support network to be established. Bearing in mind Mr Brookes' institutionalisation, with most of his adolescence and adulthood being in some form of institutional care, this would also allow for a sufficient period of adjustment to community living, whilst simultaneously highlighting the importance of not continuing with restrictive strategies too long into his order. Mr Brookes has been in the community for many years now, yet he has not been given the opportunity for a reduction in restrictions. Additionally, it appears there have not been assertive efforts to address his outstanding needs in a deliberate manner in consultation with a specialist forensic team over the past few years. As a result, opportunities to systematically address his dynamic needs and gradually increase his autonomy and independence within the community have been absent. A further period of supervision can provide a chance for this to be addressed."
Dr Matthews' view was that an ESO of 12 months would be sufficient to continue to monitor the defendant's behaviour while addressing the deficiencies of his prior periods of supervision. Both experts stated the defendant would benefit from a systematic address of his dynamic needs and a gradual increase in autonomy and independence. In Dr Matthews' report she stated: "It is my opinion that it is necessary for an ESO to remain active until the above Orders and management options are considered. I respectfully recommend that a 12 month ESO be considered to allow adequate time for this to occur."
In a supplementary report addressing the three alternative measures raised by Dr Matthews, Dr Youssef expressed the view that only the CTO had potential to meaningfully mitigate risk in this case, and there was uncertainty as to the prospect of such an order, therefore 12 months for a new ESO may be sufficient.
Both experts gave further oral evidence as to whether an ESO of this length would allow the structures referred to by Dr Matthews to be put into place. Dr Matthews confirmed that she was assuming that the NDIS support as it presently is provided would continue.
Dr Matthews remained of the view that 12 months should be enough time to allow for the other frameworks to be put in place. Dr Youssef thought that a period of longer than 12 months, and up to 24 months, would be necessary to prepare the defendant for transition without the order. She did not see any detriment in a 12 month ESO.