State of New South Wales v Darrego

An overview of the proceedings 6At the time the proceedings were commenced, the defendant was on parole after having served a sentence imposed in September 2005 for assault with act of indecency against a person under the age of 10 years (aggravated indecent assault), contrary to s 61M(2) of the Crimes Act 1900. He was released to parole on 27 November 2010. The sentence was due to expire on 22 March 2011. 7The victim of that assault was a four year old girl. It is the most recent of seven sexual offences the defendant committed between 1986 and 2005 against four separate children, namely a four year old girl (ELH), a 5 year old girl (KMD), a 5 year old boy (SK) and a girl aged 7 or 8 years old (BLJ). 8O n 8 March 2011 he was arrested and charged with two breaches of s 11G(1) of the Summary Offences Act 1988 by loitering near premises frequented by children, being a convicted child sexual offender. He was refused bail and remanded in custody. 9On 11 March 2011 the State Parole Authority ordered that the defendant's parole be revoked with effect from 7 March 2011. 10At a preliminary hearing on 17 March 2011 McCallum J was satisfied that the threshold criteria under s 6(1) of the Act for the making of an application were made out in that: (i) the defendant was a "sex offender" within the meaning of ss 4(1) and 6(1) of the Act having been sentenced to imprisonment following his conviction for a "serious sex offence" as defined in s 5(1)(a) of the Act, being an aggravated indecent assault committed in 1996; (ii) the defendant was serving a sentence of imprisonment for a "serious sex offence" as defined in s 5(1)(a) or an "offence of a sexual nature" as defined in s 6(1)(a), being an aggravated indecent assault committed in 2005, when the application was filed; and (iii) the application was brought within the last six months of the defendant's then current custody as required by s 6(2). 11Her Honour appointed Dr Andrew Ellis and Dr Anthony Samuels under s 7(4) of the Act to conduct separate psychiatric examinations of the defendant and to furnish reports. Her Honour also made an interim supervision order under s 8(1) of the Act in the event that the defendant was released from custody prior to the final hearing. 12On 29 June 2011 the defendant pleaded guilty in the Campbelltown Local Court to the loitering offences committed on 7 March 2011 and 8 March 2011 respectively. He was sentenced to concurrent terms of imprisonment for 12 months to commence on 8 March 2011. A non-parole period of 9 months was imposed expiring on 7 December 2011. As at the date of the hearing before me the defendant was in custody subject to that sentence of imprisonment. The making of final orders, effective from today, overtake the interim supervision order her Honour made on 17 March 2011.

The legislative scheme 13In s 3 of the Act the objects are stated in the following terms: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation. 14Section 9(2) of the Act provides that an extended supervision order may be made "only if the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision". In reaching a determination on the issues raised by s 9(2) the Court is required to have regard to the matters set out in s 9(3). 15The phrase "satisfied to a high degree of probability" is a statutory standard of proof higher than the civil standard but lower than the criminal standard (see Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27] per Bell J; Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [5] and [18]). 16The phrase "unacceptable risk of committing a serious sex offence" was introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010 . It replaces the test previously provided for in s 9(2) of a high degree of probability of the offender being "likely to commit a further serious sex offence". The phrase "unacceptable risk" is not defined by the Act. Section 9(2A) does provide that in determining that question the Court is not required to determine that the risk of committing a serious sex offence is more likely than not. 17This Court has considered the meaning of "unacceptable risk" in a number of decisions since the amendment came into effect in December 2010 including the preliminary hearings in this case and in State of New South Wales v Thomas , State of New South Wales v Conway , State of New South Wales v Reed and State of New South Wales v Scerri , and the final hearings in the matters of State of New South Wales v Thomas and State of New South Wales v Richardson . 18In State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [22] RA Hulme J adopted the agreed position of the parties that the new formulation in s 9(2) does not impose a more stringent test. There has been no dissent from that approach in the decisions that have applied the new test nor, so far as I can discern, to the approach the Court should take to determining whether there is a risk of a particular defendant committing a serious sex offence. To the extent that there is any divergence of view, it is to the approach to determining whether a given risk is unacceptable. 19In Thomas (Preliminary) at [20] RA Hulme J expressed the tentative view that the test in s 9(2) is satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. 20In State of New South Wales v Darrego [2011] NSWSC 360 McCallum J expressed concern that this formulation imported considerations beyond the words of the section. Without expressing a concluded view her Honour said (at [11]): It may be preferable not to dilate upon the circumstances that would satisfy the statutory test, even in terms that mirror the language adopted in the statement of the objects of the Act. The task for the Court is to form a judgment after considering the relevant risk as to whether that risk is unacceptable. 21Her Honour also suggested (at [9]-[10]) that the Court's approach to the question of an unacceptable risk might usefully be informed by the concept of a material risk as that concept is employed in medical negligence. 22In State of New South Wales v Conway [2011] NSWSC 588 Simpson J (at [30]), also without expressing a final view on the issue, stated a preference for the approach taken by R A Hulme J. 23Ultimately, in the final hearing in State of New South Wales v Thomas (Final) [2011] NSWSC 307, in ordering that the defendant be subject to an extended supervision order, RA Hulme J gave the words in s 9(2) their ordinary meaning in the context in which they appeared in the Act and having regard to the objects of the Act. 24In State of New South Wales v Richardson (No 2) [2011] NSWSC 276 Davies J referred to two decisions of the Western Australian Court of Appeal dealing with the applicable legislation in that State. In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 176 A Crim R 110 Wheeler JA (with whom Le Miere AJA agreed) said at [63]: In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. 25Davies J also referred to the approach adopted by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 at [27], who relevantly said: The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ... '. 26In applying the s 9(2) test Davies J said (at [90)]: Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk. 27Davies J concluded that the defendant posed an unacceptable risk of committing a serious sex offence even though he had committed only one (albeit very violent) sexual offence. 28In this case, adopting the approach of RA Hulme J in the final hearing of State of New South Wales v Thomas , I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision such as to justify the making of the order for his extended supervision in the community upon his release. In coming to that view, I give particular weight to the fact that the defendant offended against s 11 of the Summary Offences Act not only in breach of his parole but in circumstances where he was aware of the Attorney General's intention to apply for an extended supervision order and whilst he was awaiting a psychiatric assessment for that purpose. In addition, I have taken into account each of the matters listed in s 9(3) of the Act and have given particular weight to the following matters.

The defendant's criminal history - s 9(3)(h) 29The defendant is currently 61. He was first convicted of a criminal offence of dishonesty as a juvenile and was repeatedly before the Children's Court and Courts of Petty Sessions after that date. He was first convicted of a sexual offence (apparently committed against an adult victim) in 1985 and sentenced to the rising of the Court. Since that date he has been convicted of seven serious sexual offences committed against very young children, each of which attracted full-time custodial sentences. The first offence was committed in 1986, and thereafter in 1994 to 1995, and again in 2005. I note that in the risk assessment report prepared in anticipation of these proceedings by Mr Sheehan, senior specialist psychologist with Corrective Services, that the defendant disclosed having acted upon his paraphilic interest since childhood, commencing with voyeuristic and fetishistic behaviour and escalating to "hands on" offences against young children. He told Mr Sheehan that he used "grooming methods" such as buying a prospective victim a chocolate or ice cream. He estimated assaulting between 10 and 12 children (that is, in excess of the number that have attracted criminal proceedings) with the sexual act involving him rubbing the child and masturbating.

The two separate sexual offences committed in 1986 30On 4 June 1987 the defendant was convicted after trial and sentenced in the District Court on two counts of assault with act of indecency against a child under 16 years of age (s 61E of the Crimes Act ). Both offences were committed on 31 May 1986, but involved different victims. 31The victim the subject of the first offence was a 5 year old girl (KMD) and the second, a 5 year old boy (SK). The defendant was then 36 years of age. The defendant pleaded not guilty to the offences. He was convicted following a trial by jury. 32In respect of the offence against the five year old girl the defendant approached a group of young children at a football ground at Bourke where they attended with their parents. He then enticed four children (one boy and three girls) into a nearby shed promising to show them some kittens. Once inside the shed and seeing no kittens, the boy and two of the girls left. A five year old girl remained in the shed. She gave evidence that the defendant removed her clothing and placed his penis and mouth near her vagina. 33The separate offence against the five year old boy was committed after the defendant left the football ground and went to his brother's home. The defendant's son was playing inside the house with SK and his 6 year old brother. He offered the children marbles and chocolate. At some stage the younger boy was left alone in the house with the defendant when he put his penis in the area of the buttocks and upper thighs of the child. That child at that time was five years old. The young boy returned home and was overheard by his mother saying that the prisoner had "rooted me up the bum". 34As the Crimes Act then stood, the maximum penalty for a breach of s 61E was 4 years imprisonment. In respect of the offence involving the five year old girl, the defendant was sentenced to imprisonment for 3 years to date from 1 June 1987. In respect of the offence against the five year old boy the defendant was sentenced to 2 years imprisonment to date from 1 June 1990, that sentence being cumulative upon the first sentence. A non-parole period of 2 and 6 months was imposed. He was released on parole on 31 January 1989. The parole order expired on 21 September 1990.

The four sexual offences committed between January 1994 and June 1995 35On 31 March 1998 the defendant was convicted and sentenced in the District Court on four counts of assault with an act of indecency against a child under 10 years of age (s 61M(2) of the Crimes Act ) committed against the same young girl (BLJ) on different occasions between January 1994 and June 1995 when she was 7 or 8 years of age. She is the granddaughter of the defendant's cousin.

First sexual offence: in 1994 36While the child was at her grandmother's house in Wagga Wagga she was having a bath. The defendant came into the bathroom to wash his hands. As she went to get out of the bath the defendant told her to sit down. He then touched her directly on her vagina with his hand.

Second sexual offence: between 1 April 1994 and 16 December 1994 37The child was living with her parents at Wagga Wagga. On one occasion she was playing basketball in the backyard of her residence. The defendant came out of the house and she ran behind a shed to hide. The defendant followed her. He pulled down her shorts and underpants to her knees and then touched her directly on her vagina with his hand. The defendant told the child "Don't tell your mum and dad".

Third sexual offence: June 1995 38The child and her mother attended a birthday party for a relative in Leeton. Numerous family members, including the defendant, attended the party which was held in a neighbour's shed next door to the relative's house. While the party was proceeding next door, the child and another young girl (her cousin) were playing in the backyard of the relative's property. When the defendant approached them the younger girl ran off. The defendant followed the other child behind a rabbit hutch where he then put his hand under her dress and rubbed her vagina on the outside of her stockings and underpants.

Fourth sexual offence: June 1995 39A short time later, the same child was playing behind a tent in the backyard of the relative's property. The defendant approached and pulled down her stockings and underpants to her thighs and licked her vagina with his tongue for a short time. 40I n early July 1995 the child complained to her mother and the police were subsequently contacted. 41In a pre-sentence report dated 31 March 1998 the defendant was reported to have said that he: ... understood his actions were wrong and claimed his actions were on the spur of the moment and arose out of frustration. The offender also reports that he was under the influence of alcohol at the time. 42The author went on to note: ...[the defendant] now has a substantial history of sexual offences against children and it appears he prefers not to accept responsibility for his actions. In such circumstances, it is considered that a period of supervision would be of little benefit in facilitating any change in [his] behaviour and attitude to his offending. However, a period of supervision could monitor [his] activities particularly his future contact with children. 43In her psychological report dated 13 September 2005 tendered in the sentence proceedings for the offence committed in March 2005, Ms Wheeler reported that in respect of the offending in 1994-1995: [The defendant] acknowledged having placed himself at the victim's home with the intent of engaging in these behaviours. He acknowledged an element of planning and forethought in the commission of these offences. 44For this course of offending the defendant was sentenced to an effective term of imprisonment of 5 years and 6 months to date from 15 February 1998, with a non-parole period of 3 years and 6 months. He was eligible to be considered for release to parole on 14 August 2001 with the parole period expiring on 14 August 2003.

The sexual offence committed on 23 March 2005 45On 23 March 2005 (18 months after the parole period expired) the defendant, then aged 55, indecently assaulted a 4 year old girl in the Salvation Army shop at Dubbo. He was charged with aggravated indecent assault under s 61M(2)) of the Crimes Act which attracts a maximum penalty of imprisonment for 10 years and a standard non-parole period of 5 years. 46The child (ELH) was sitting on the floor in the retail section of the Salvation Army store at Dubbo playing with toys while her mother was browsing in the store. The defendant entered the store. He appeared to be browsing in a section of the store near where the child was sitting. The defendant picked up a doll from a display, approached her and placed the doll on her lap. He then placed his other hand under the child's skirt and grabbed her around the vagina/buttock area. She went looking for her mother and immediately complained that a man had touched her. The defendant left the store but was captured on a store security surveillance camera. He was arrested later the same day. When questioned by police, he admitted being in the store and giving the child a doll but denied assaulting her. 47He later pleaded guilty to the indecent assault and was sentenced in September 2005 to imprisonment for 7 years to date from 23 March 2005 with a non-parole period of 5 years. He successfully appealed against that sentence and was re-sentenced to imprisonment for 6 years, also to date from 23 March 2005, with a non-parole period of 4 years and 6 months (see Darrigo v R [2007] NSWCCA 9). 48A psychological report of Peter Ashkar dated 31 August 2005 was tendered on sentence. In the report Mr Ashkar said: [The defendant's] offending behaviour was impulsive, unplanned and opportunistic. It prima facie does not appear to have been calculated or premeditated in any way. His sexual offending behaviour nonetheless reflects an entrenched paedophilic arousal pattern. He acted on a sexual urge that he was unable to resist at that time. 49However, the defendant informed a Probation and Parole officer that at the time of the offence he was not finding women sexually attractive and used the child as a way of finding out if he was still able to function sexually which is indicative of a motivated and deliberate act even if somewhat opportunistically committed. 50In a report dated August 2010 Ms Wheeler reported that the defendant told her that he was on his way to Dubbo Court for a drink driving charge when he attended the Salvation Army store to purchase curtains for his home. He went on to say that: ... upon entering the store he noticed the girl was alone, and "she was vulnerable", and he "had the urge to fondle her". He approached her and "fondled her vagina". [The defendant] stated that he "did not think" and "it just came on me in an instant and I did it". He stated that when the girl moved away in search of her mother, he realised what he had done and the implications of this, and so hurriedly left the store. 51Ms Wheeler further said that: [The defendant's] disclosure ... evidences a level of minimalisation and failure to accept responsibility for the offence. This is demonstrated by his statements "it just happened", "it was instant", and "I just did it", which reflect a perceived lack of control over the event and his actions. The dynamics of the offence as he reported suggested it was opportunistic. The Police Facts identify that the surveillance footage depicted [the defendant] engaging in (apparent) browsing before approaching the victim, offering her a doll, and commencing the assault. This allowed a level of forethought and grooming (the doll), and accordingly an opportunity to manage and control the offending behaviour, which [the defendant] did not take up.

Convictions for non-sexual offences 52The defendant has a long history of convictions for non-sexual offences commencing at ten years of age. These include convictions for break, enter and steal (x 15); stealing (x 9); break and enter with intent (x 2); dangerous driving (x 4); unlicensed driving (x 5); drive unregistered vehicle; drive uninsured vehicle; use unseemly words; resist arrest (x 3); permit other to use uninsured vehicle (x 2); affix another vehicle's number plates; refuse breath test; drive while disqualified (x 3); low range PCA; mid range PCA (x 2); fail to appear; state false name and address (x 2); escape lawful custody; and assault female. Despite the number of offences they do not bear significant weight on this application given the preponderance of sexual offences and their spread over many years.

Recent convictions under s 11G of Summary Offences Act 53As noted above, on 29 June 2011 the defendant was convicted and sentenced for two offences under s 11G of the Summary Offences Act . The offence committed on 7 March 2011 involved the defendant loitering outside Ingleburn primary school and looking into school grounds at which children were present. The offence committed the following day involved the defendant lingering aimlessly in the children's toy department at the Target retail store.

Non-compliance with parole and other supervision obligations: ss 9(3)(f), (i) 54Following his imprisonment for the sexual offences committed in 1986, the defendant was subject to supervised parole from 31 January 1989 until the expiration of the parole order on 21 September 1990. He reportedly completed the parole order satisfactorily although this should be understood advisedly in light of the defendant's disclosure to having committed more sexual offences than those appearing on his criminal record. 55On 25 November 1997 the defendant entered into an 18 month supervised recognisance for failing to appear in answer to a charge of a non-sexual nature. He did not complete that period of supervision being remanded in custody on 11 March 1998 for the sexual offences committed in 1994 and 1995. In respect of the sentence of imprisonment imposed for those offences the defendant was released to parole in November 2002 which he completed in August 2003 without breach or revocation. 56On 18 October 2004 the defendant entered into a bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 12 months. The bond was imposed following the defendant's conviction for driving with mid range PCA. The good behaviour bond was breached by: (i) On 29 January 2005 committing the offence of drive while disqualified (at Dubbo); (ii) On 11 February 2005 committing the further offences of drive while disqualified and state false name and address (at Bunglegumbie); and (iii) On 23 March 2005 committing the aggravated indecent assault 57As I have already noted, the offences under s 11G(1) of the Summary Offences Act were committed in March 2011 while he was on parole in respect of the sexual offence committed in March 2005.

Tre atment and rehabilitation programs: s 9(3)(e) 58Wh i le in custody for the sexual offences committed in 1986 the defendant participated in an eight session program to address his sexual offending, including developing what were described as "internal control mechanisms". After his release from custody in January 1989 he sexually reoffended against a child in 1994 and 1995. 59While in custody for the sexual offences committed in 1994 and 1995, he participated in the Custody Based Intensive Treatment (CUBIT) Program at the Long Bay Correctional Centre between April and December 2001. A final treatment report dated 11 December 2001 described his overall participation in the program as "mixed" and his progress as "inconsistent". A number of concerns were identified, including his failure to take full responsibility for his offending behaviours. Additional therapeutic monitoring was recommended together with undertaking a custodial-based maintenance program prior to release. His participation and attendance in that program were described as "inconsistent". The concerns identified in CUBIT continued. After his release from custody he reoffended in 2005. 60While in custody for that offence he again participated in the CUBIT program at the Long Bay Correctional Centre from 7 May 2009 to 2 November 2009. In the treatment report dated 11 January 2010 his participation was the subject of positive report. Again it was recommended that he participate in the custodial-based maintenance program until his release from custody and thereafter in the community-based maintenance program conducted by Forensic Psychology Services. He participated in 11 sessions of the custodial-based maintenance program. Aspects of his participation in that program, however, were considered to be problematic. In a report dated 21 December 2010 he was reported to have struggled to independently apply treatment gains outside the CUBIT therapeutic unit. The author noted that: [The defendant's] performance in the custodial maintenance program is in contrast to his positive presentation in CUBIT ... It reveals a loss of direction and perspective when under pressure. This points towards potential targets in ongoing therapy - namely, to build resilience in [his] ability to independently invoke positive coping strategies when under stress. 61The defendant participated in a number of sessions in the community maintenance program conducted by Forensic Psychology Services prior to his parole being revoked. At the same time he was supported by the Community and Offender Support Program (COSP) and housed within a facility for the supervision of sex offenders in the community. Self-evidently, the support and intervention he was provided with did not deter him from reoffending months later, albeit not by the commission of a sexual offence per se. I do note however that the summary offences committed in March 2011 involved him deceiving corrective services staff in the COSP facility in that he did not apparently provide them with accurate information about his movements as he was required to under his parole conditions. In the report to the State Parole Authority it was noted that whilst he was considered generally compliant with supervision he experienced difficulties adjusting to the monitoring regime which was imposed upon him because of the risk of him sexually reoffending being assessed as high. 62A community-based maintenance program is an important component in any risk management strategy directed to assist an offender to manage a risk of sexual recidivism. I also note that the community maintenance program is available only for offenders who are subject to a supervision order, such as an extended supervision order or a parole order, and not for offenders against whom no such order is made.

Anti-libidinal medication 63The defendant commenced anti-libidinal treatment on 3 August 2010 prior to his release on parole. It was to be taken orally three times per day. Dr Ellis and Dr Samuels raised concerns in their reports about the efficacy of the medication (assuming compliance) given the nature of the defendant's offending conduct in March 2011. Despite these concerns, and that the defendant has an increased risk of adverse medical consequences given his history of heart disease and diabetes, the anti-libidinal treatment remains available to be considered as a component of a comprehensive risk management strategy. I note Dr Ellis' opinion that anti-libidinal medication should be prescribed by a forensic psychiatrist with expertise in the area, and given in conjunction with psychological treatment with careful monitoring by a multidisciplinary team. Assuming that the treatment remains recommended and that the defendant consents to its use, it remains to be seen whether it will be effective in suppressing his deviant sexual desire in the medium to long term.

Diagnosis of paedophilia, and Anti-Social Personality Disorder: ss 9(3)(c), (i) 64Both Dr Ellis and Dr Samuels assess the defendant as meeting the diagnostic criteria for paedophilia. Dr Ellis describes the defendant's paedophilic disorder as "chronic, persistent and relapsing". 65Mr Sheehan came to a similar conclusion. He was also of the view that the defendant satisfied the diagnostic criteria for Anti-Social Personality Disorder. In his report Mr Sheehan said: There is evidence of an enduring pattern of behaviour suggesting disregard for and violation of the rights of others, that extends beyond his deviant sexual interest and into a broader pattern of antisociality.

Risk assessment (other than court-appointed psychiatrists) - s 9(3)(c) and (d) 66In his report dated 11 January 2010 Mr McElhone assessed the defendant as presenting a high risk of sexually reoffending on actuarial assessment and by reference to dynamic risk factors. The STATIC-99R assessment answers the description in s 9(3)(d) 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 sex offence". The dynamic factors bear upon the more specific assessment under s 9(3)(c) . The inherent limitations of the STATIC-99R as a tool for predicting individual behaviour are well recognised, hence the importance of clinical evaluation and the so-called dynamic (or changeable) risk factors. Actuarial assessment remains, however, one of the factors that the Court is required to take into account under s 9 of the Act. 67In December 2010 Mr Sheehan utilised both actuarial risk assessment (STATIC-99R) and dynamic risk factors for the purposes of his risk assessment. He interviewed the defendant on 15 December 2010. Mr Sheehan assessed the defendant as presenting a high risk of sexually reoffending relative to other adult male sex offenders. 68The defendant scored a 5 on an actuarial risk assessment thus placing him in the moderate-high risk category relative to other adult male sex offenders. Mr Sheehan said: The rates of sexual recidivism for sexual offences within the normative samples who had the same total score as [the defendant] were between 11.4 - 25.2 percent over five years, and 22.6 - 35.5 over ten years. 69In terms of relative risk, Mr Sheehan said that in the STATIC-99R sample population sexual offenders with a score of 5 showed 2.23 times the recidivism rate of a "typical" sexual offender. Mr Sheehan noted that Mr McElhone scored the defendant as an 8 on the STATIC-99R in January 2010. The differential between the two scores is explained by the fact that under the STATIC-99R instrument 3 points are subtracted from the defendant's total raw score because of his current age. It was Dr Samuels' view that the defendant's score of 5 on the STATIC-99R probably underestimates his risk of recidivisim. Mr Sheehan shared that view. 70Mr Sheehan considered both stable dynamic risk factors and acute dynamic risk factors in undertaking the risk assessment. In relation to the dynamic risk factors he utilised the Risk of Sexual Violence Protocol (RSVP) as a structured clinical tool to assist in the assessment. The RSVP dynamic risk factors in the defendant's case include the following: (a) A history of sexual violence that is chronic and persistent, with some diversity (in dimensions of victim gender, relationship to victim and degree of contact), but involving psychological coercion of the victim. There is no evidence of physical coercion; (b) Problems with self awareness and a reported history of childhood abuse and sexual abuse; (c) Sexual deviance (paedophilia) and a history of problematic alcohol use; (d) Poor social adjustment and problematic intimate and non-intimate relationships that have impeded social adjustment; (e) Problems with planning and responding to supervision, including sexually offending whilst subject to supervision. 71In terms of stable dynamic risk factors Mr Sheehan identified intimacy deficits, restricted social network, distorted attitudes condoning sexual abuse, lifelong deficits in capacity to self-regulate, and poor sexual self-regulation. 72Mr Sheehan also recorded the defendant describing his sexual interest in children as intense and intrusive at particular times and that his preoccupation with sexual fantasy is closely related to feelings of boredom, shame, frustration, irritability and anger. 73In terms of acute dynamic risk factors, Mr Sheehan identified substance abuse, victim access, sexual preoccupation, collapse of social support systems and his rejection of supervision as key risk factors. 74He regarded the risk factors as being generally cumulative, with no single factor being a necessary prerequisite to the defendant sexually reoffending, however, given the intensity of his deviant arousal under some circumstances, Mr Sheehan was of the view that the presence of arousal and the availability of a child may be sufficient to trigger an offence when the defendant is experiencing intense and overwhelming arousal. Mr Sheehan also said that were the defendant to sexually reoffend there would likely be some brief grooming behaviour such that the progression to sexual contact may develop quickly. While it cannot be concluded with certainty that the defendant's behaviour in March 2011 was grooming behaviour which would have progressed to sexual offending were the opportunity to present, his behaviour in separate incidents on successive days is at least highly suggestive of a potential to relapse into sexual offending, reflecting, as it must, a failure by the defendant to self-regulate consistent with his entrenched incapacity for appropriate insight and the management of his inappropriate behaviour.

Reports received from the court-appointed psychiatrists: s 9(3)(b)

Dr Anthony Samuels 75Dr Samuels produced a report dated 31 March 2011 and a supplementary report dated 3 August 2011 obtained after the defendant was convicted of the offences he was charged with while on parole. Dr Samuels was instructed not to speak to the defendant about the outstanding charges, or the subject matter of his arrest, in the preparation of the first report. 76As I have already noted, Dr Samuels concluded that the defendant met the diagnostic criteria for paedophilia (DSM-IV-TR 302.2) with his deviant sexual interest, directed principally towards young female children around the age of 8, arising quite early in his developmental history. Dr Samuels also recorded a sustained history of voyeurism (DSM-IV-TR 302.82) mainly directed at young children. The defendant also presented with antisocial personality features. 77In terms of risk of sexual recidivism, Dr Samuels said: ... in terms of static, dynamic, acute dynamic, anamnestic risk factors and even taking into account protective risk factors, I would see [the defendant] as being at a Medium to High risk of committing a further sexual offence if allowed to return to the community without close supervision and maintenance on anti-libidinal medication. 78In his supplementary report Dr Samuels said: On the basis of my assessment of [the defendant] on 31 March 2011 and the material I was provided with at the time, I concluded that he was at high risk of committing a further sexual offence if unsupervised in the community. The fact that [he] was charged by the police with ... further offences in breach of his condition whilst on parole and whilst awaiting a psychiatric assessment under the provisions of the Crimes (Serious Sex Offenders) Act 2006 serves only to reinforce my opinion that, without supervision, he is at high risk of committing a further sexual offence in the community and that the orders that were sought at that time were appropriate and in keeping with the level of risk posed.

Dr Andrew Ellis 79Dr Ellis produced a report dated 15 April 2011 and a supplementary report dated 31 July 2011. In his first report Dr Ellis acknowledged that he had been a treating psychiatrist coordinating a mental health team for the defendant between July and November 2009 as part of his previous employment with Justice Health. 80In his report dated 15 April 2011 (prepared after the defendant was returned to custody) Dr Ellis recorded a diagnosis of paedophilia and diagnoses of antisocial personality disorder, voyeurism and fetishism. In respect of the diagnosis of paedophilia he said: He would meet the criteria for paedophilia, primarily attracted to females, non-exclusive subtype in that he has capacity for sexual attraction to adults. This is evidenced by his convictions for offences against prepubescent girls over a period of decades, and his self report of fantasies, urges and masturbatory behaviours to this material from early teens into adult life. This condition is moderated by medication and psychological strategies, but persists in an attenuated form. This disorder is chronic, persistent and relapsing. 81Dr Ellis also recorded that, despite being prescribed and taking anti-libidinal medication, the defendant reported experiencing spontaneous sexual fantasies about children on a weekly basis. He reported that the fantasies lasted a few minutes and that he was able to quickly divert himself from such thoughts. 82In terms of risk of sexual recidivism, Dr Ellis referred to clinical considerations and actuarial factors. The defendant's clinical considerations include sexual deviance, personality factors, age, substance dependence and treatment setting. Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffending with the defendant presenting with a clear pattern of paraphilic sexual arousal over many years. In considering the risk of further offending, Dr Ellis also had regard to the type of sexual offence likely to be committed by the defendant: A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of [the defendant], given the particular pattern of sexual arousal, the most likely type of victim would be a child. In general, sexual offences perpetrated on children at a vulnerable developmental stage are associated with greater psychological consequences. 83He went on to say: In considering actuarial and clinical parameters in the absence of any treatment or supervision, [the defendant] would fall into a group of person with a risk of offending that is moderately high, and greater than a theoretical average offender. Treatment and supervision would likely reduce this risk. 84In his supplementary report Dr Ellis said: For both loiter offences [on 7 and 8 March 2011] he has been in areas where children would be expected. This adds some support to a diagnosis of paedophilia, and may indicate an ongoing interest in children. It may indicate the suppression of sexual drive he reports on his current does of cyproterone [Androcur] is not sufficient to control his urges and fantasies, or that he was not taking medication at this point. The new information does not substantially alter the opinion regarding diagnosis, risk or treatment approach to be adopted, other than for treating and supervising staff to be aware of this pattern of behaviour and monitor for any recurrence. 85In summary, and with appropriate emphasis on the need to consider the safety of the community, the following matters have been given predominant weight in determining that it is appropriate to make the extended supervision order: (i) the defendant has a history of convictions spanning three decades for sexually offending against young, prepubescent children (both male and female) and children who are known to him and those who are strangers; (ii) the most recent offence, namely the offence committed in March 2005, involved offending against a child in circumstances of admitted premeditation (albeit opportunistically) with the child's mother nearby and while the defendant was subject to the requirements of a good behaviour bond; (iii) the defendant committed further sexual offences against children after being released from custody following completion of a sex offender treatment program (the CUBIT program) in 2001 and an earlier program in Junee Correctional Centre, and further offences since being released on parole in November 2010; (iv) the defendant's paedophilic disorder is chronic, persistent and relapsing; he meets the diagnostic criteria for Anti-Social Personality Disorder; (v) the defendant was assessed by the two psychiatrists and a psychologist as presenting a high risk of sexually reoffending; (vi) the defendant is identified as having a continued need for continuing sex offender treatment in a community maintenance program which is available for offenders who are subject to an extended supervision order.

The duration of the extended supervision order 86Counsel for the Attorney General submitted that the chronic nature of the defendant's psychiatric disorder, the length of his offending history and the differential benefits of custody-based intervention to date, including his most recent breach of parole, combine to support the imposition of an extended supervision order for a five year term to minimise the risk of the defendant reoffending. The defendant's counsel sought to draw comfort from Dr Ellis' views that a three year term was adequate to address the need for community protection and to promote and not retard the prospects of the defendant's ultimate reintegration into the community. The defendant's counsel also sought to persuade me that I should adopt what she submitted was the more reasoned and conservative approach proposed by Dr Ellis, an approach which she emphasised afforded the Attorney General ample allowance to make application under the Act for a second or subsequent extended supervision order were that considered appropriate within the three year term or beyond whilst at the same time providing important incentives and encouragement for the defendant to progress towards full rehabilitation. 87The 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. 88At page 26 of his first report, Dr Samuels stated: In view of [the defendant's] chronic sustained and persistent risk I think a five year order is appropriate. I accept that his risk situation could change particularly if his physical health status deteriorated in the course of the next five years. He does, however, look fairly fit and healthy but I am aware that he does have underlying hypertension, diabetes, and possible ischemic and cerebrovascular disease. Obviously if there was a major change in his medical status some of the stipulations may not be necessary or indicated and some sort of review would then need to occur. It is of course impossible to predict what sort of course his physical health will take in the course of the next five years so, on this basis, I would at this stage support an order of five years duration. 89At page 12 of his first report Dr Ellis said: From a psychiatric perspective a period of three years would be suggested in order to establish a baseline function in the community, and refine the appraisal of risk. It is most likely that a period of 12 months will be required to secure stable accommodation and regular meaningful activity in the community, given the restrictions on persons subject to extended supervision orders. During this period of time, it is unlikely that a person will have the focus to benefit from intense therapeutic activity. A further 12 months of regular treatment in a psychological programme, coupled with medication and review of this medication would be necessary to consolidate gains made in custodial programs, or establish that these programs were ineffective. A further period of 12 months would be required to monitor the consolidation. At this point a more informed appraisal of future risk in progress could be made. Although paedophilia is a chronic condition, which will likely last beyond a period of three years, given the age of [the defendant], with the attendant general reduction in risk associated, his previous apparent treatment progress, possible deterioration in physical health over the period of time required to observe behaviour is less than a younger person with a similar condition, who had not previously completed custodial treatment. 90The fact that the defendant was returned to custody in March 2011 following breach of parole and then sentenced to a further term of imprisonment for what must be regarded as offending both related to his psychiatric condition and reflecting the risk of reoffending identified by Mr Sheehan and others. It has also meant that the regime for his interim supervision proposed by McCallum J did not commence such that his capacity to demonstrate his adherence to the strictures of that regime is untested. This, coupled with concerns about his problematic compliance with a community-based maintenance program as a parolee only months ago, leaves me with no foundation upon which to make any reasonable prediction as to his capacity to adhere to the strict conditions to which he will be subject under this order, much less any sound foundation upon which to predict his responsiveness to treatment over the short to medium term. For that reason alone, it is tolerably clear in the views expressed by Drs Ellis and Samuels that, subject only to his clinical picture changing with advancing age, the defendant is likely to require long-term supervision, whether that be three years or five years. As I observed in Attorney General for the State of New South Wales v Hadson [2008] NSWSC 140 at [32], in these circumstances much will depend on how the defendant responds to treatment and whether any variation to the risk management strategy is called for by those who will manage him and monitor his progress. 91I am satisfied that the conditions of the extended supervision order which I propose contain an element of flexibility which have the advantage of ensuring ongoing review of the defendant's progress with a view to a gradual relaxation of the strict conditions to which he will be subject upon his release, if that is considered appropriate. In the result, I am satisfied that an extended supervision order should be made for a period of five years. I do not consider that it will have a negative impact on the defendant's prospects of rehabilitation which at this stage, despite his age and his medical condition, must be viewed as guarded.

Conclusion 92I am satisfied that the orders for final relief ought to be made in accordance with those sought by the summons (as amended and agreed between the parties). In coming to that conclusion, I am conscious that if the defendant breaches the extended supervision order he is liable to be convicted of an offence which is punishable by imprisonment for 2 years or 100 penalty units or both, and that this also serves to protect legitimate community interests and encourage his adherence to the regime of supervision which the orders contemplate. I also note that were the Attorney General to consider any breach to be serious enough to warrant revocation of the order, s 13 of the Act entitles the Attorney General to make an application of that kind. I also note that the Commissioner for Corrective Services must provide the Attorney General with a report on the defendant at intervals of not more than 12 months so as to enable consideration to be given to either varying or revoking the extended supervision order thereby allowing for the level of flexibility to which I have referred.

Orders 93For these reasons, I am satisfied that the following orders should be made: A n order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of five years from today, 29 November 2011, and that he comply with the conditions in the accompanying schedule which together comprise my orders. 94I direct that access to the Court file in respect of any document not be granted without the leave of a Judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to give them the opportunity to be heard.

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: 29 November 2011