State of New South Wales v Davis

Relevant Procedural and Factual Background

1. The defendant is an Aboriginal man of 48 years of age. Currently, the defendant is on parole, having been convicted, on 22 June 2020, of the offence of contravening a child protection prohibition order under s 13 of the Child Protection (Offenders Prohibition) Orders Act 2004 (NSW) (hereinafter the "Prohibition Orders Act"). The offence involved possession of children's toys and paraphernalia in his accommodation at Campbelltown Integration Support Centre (ISC). The defendant was sentenced to 18 months imprisonment, with a 12-month non-parole period, commencing 14 April 2020 and the head sentence expiring on 13 October 2021.
2. On 13 April 2021, at the expiry of the defendant's non-parole period, he was released to parole and, as earlier stated, is currently the subject of an ISO imposed by Davies J on 2 June 2021. [1]
3. On 31 October 2019, the defendant was sentenced to an aggregate sentence of 12 months' imprisonment, with a non-parole period of 7 months, commencing 20 June 2019. That aggregate sentence was for two offences: 1. One count of contravening a child protection order, which occurred on 20 June 2019, when, as earlier stated, the defendant was found in position of a large number of children's items in contravention of an Interim Child Protection Prohibition Order (hereinafter "CPPO"); 2. One count of possess child abuse material to which the defendant pleaded guilty and for which the defendant was resentenced following a breach of a Community Corrections Order made on 3 May 2019.
4. Prior to the foregoing the defendant had been convicted of a number of offences. Those convictions relate to the following: 1. On 21 October 1993, the defendant was sentenced to an aggregate term of imprisonment of 8 years, including a non-parole period of 5 years. The defendant had pleaded guilty to one count of break and enter; two counts of sexual intercourse without consent; and one count of assault with an act of indecency (hereinafter "the Kemps Creek sexual assaults"). Separately, the defendant had pleaded guilty to one count of sexual intercourse without consent at Dunheved High School, which involved a sexual assault on a teacher (hereinafter "the Dunheved High School sexual assault"); 2. On 27 February 2007, the defendant was sentenced to 7 years' imprisonment for the offence of aggravated sexual assault. This offence occurred a few months after the defendant had been released from prison following the earlier sentence and while he was on parole in relation to that earlier sentence. The offence involved the defendant forcing a woman off a public street in Darlinghurst into a courtyard, where he choked her; threatened to kill her; and sexually assaulted her (hereinafter "the Darlinghurst sexual assault"); 3. On 3 May 2019, a Community Corrections Order (hereinafter "CCO") was issued governing the defendant for the offence of possession of child abuse materials. That offence occurred on 5 January 2019, which was the date that three child abuse images were found on the defendant's mobile phone. The defendant breached a reporting condition of the CCO on 22 May 2019 and was sentenced to an aggregate sentence consisting of his breach of the reporting condition of the CCO and the CPO offence on 31 October 2019. The sentence imposed was an aggregate sentence of 12 months' imprisonment, with a non-parole period of 7 months.
5. The State of New South Wales relies upon a number of documents in support of its application. It relies upon: the Affidavit of Sarah Najjar, affirmed 25 May 2020, together with Exhibit SN-1 to that Affidavit; the further Affidavit of Sarah Najjar, affirmed 11 June 2021, together with Exhibit SN-2; the Affidavit of Lisa Springer, sworn 28 July 2020; the Affidavit of Kelli Grabham, affirmed 11 June 2021; the Reports of Dr Anthony Samuels, Forensic Psychiatrist, dated 29 June 2020, 21 January 2021, and 15 June 2021; and the Reports of Dr Richard Furst, Forensic Psychiatrist, dated 10 July 2020 and 26 February 2021. There were also supplementary reports. The defendant adduced no evidence in the proceedings.
6. While mention has been made of the ISO issued by Davies J, an earlier ISO issued from the Court. [2] Each of the ISO judgments to which reference has already been made have been read and are relied upon by the Court in dealing with the application for an ESO.
7. Unusually, the ISO that issued as a result of the judgment of Hoeben CJ at CL took effect from June 2020. Because of the imprisonment of the defendant and the effect of imprisonment on the duration of an ISO, the ISO issued by Davies J in June 2021, almost 12 months after an ISO originally issued, was an extension of the ISO issued by Hoeben CJ at CL almost 12 months earlier.

Expert Reports

1. Dr Anthony Samuels issued three reports, each of which are before the Court. The initial report of the 29 June 2020 was compiled as a consequence of the ancillary orders issued by Hoeben CJ at CL. A supplementary report, dated 21 January 2021, in most respects, confirmed the contents of the initial report and a further supplementary report, dated 15 June 2021, was, probably as a matter of abundant caution, filed and it, too, was consistent with the earliest of the reports.
2. Dealing with the report of 29 June 2020, Dr Samuels, in a most thorough report, set out the legal framework that gave rise to the necessity for him to provide a report on the defendant. He then set out some of the background to the application, some of which has been the subject of comment earlier in these reasons.
3. After dealing with the previous sex offences, Dr Samuels dealt with the past psychological/psychiatric assessments and detailed the source of his information. Much of the information rests upon Exhibit SN-1 to the Affidavit of Sarah Najjar of 25 May 2020.
4. Dr Samuels had access to a psychiatric assessment by Dr Stephen Allnutt, of 15 March 2000, upon which Dr Samuels commented briefly. He also summarised the psychological assessments performed by Anna Egeressy, of 17 April 2000; Dr Kipling Walker, of 20 May 2002; Dr Andrew Ellis, of 30 May 2000; Dr Andrew White for Dr Rosalie Wilcox, of 26 November 2002; Dr Anne-Marie Rees for Dr Jeremy O'Dea, of 16 January 2003; Dr Vladimir Sazhin for Dr Jeremy O'Dea, of 26 October 2005; Dr Jeremy O'Dea, of 30 November 2005; Dr C Wong, of 8 May 2006; Dr Olav Nielssen, of 15 May 2006; a further report of Dr O'Dea, of 13 December 2006; Risk Assessment Reports of Ms Narcisa Sutton, of 11 March 2007; a psychological report of Ms Sutton, of 19 May 2007; a psychological report of Marcelo Rodriguez, of 2 January 2008; a neuropsychological report of Ms Julia Zhu, of 30 October 2008; and a number of pre-release and pre-sentencing report.
5. After setting out the history of the defendant and the relevant aspects of the conversation between Dr Samuels and the defendant during the course of the examination, Dr Samuel sets out the defendant's history of offending and comments on the mental status examination. In the course of the comment, Dr Samuels expresses the opinion that the defendant "seemed to think he had not done anything wrong". His mood, in that opinion, was fine; he was not depressed; and not anxious. Further, he was not hearing voices or hallucinating.
6. All of the report is relevant, but most relevant for the present purpose is that Dr Samuels diagnosed the defendant as having an underlying psychotic illness, most likely schizophrenia with associated depression; cognitive problems; substance abuse involving alcohol and cannabis; personality disorder associated with violence and self-harming behaviour; and sexual deviance which has been associated with violent opportunistic rape and more recently with paraphilic interests, involving children and young girls. Dr Samuels describes these conditions as chronic, commenting that symptom intensity may fluctuate depending upon medication compliance and substance misuse.
7. Dr Samuels described the defendant as posing a risk of committing a further serious sex offence and, in terms of the degree of risk, expressed the opinion that the defendant remained "at high risk of sexual offending" and that his overall level of risk had increased since Dr Samuels saw him last in 2008.
8. The defendant's risk factors, according to Dr Samuels, at least those impacting upon his likelihood of reoffending, are his sexual preoccupation in the context of anger, disinhibition and possibly psychotic symptoms secondary to cessation of psychotropic medications and intoxication. Further, the risk of sexual reoffending is heightened by the availability of opportunities for offending against female victims.
9. Dr Samuels continued to rely upon previous Risk Assessment Reports and, based upon those reports and the scoring in them, reiterated that the defendant is in the well above average risk range or Level 4(d) and, given his score, statistically he is placed in a position where his risk of recidivism is seven times higher than that of the typical sex offender. Dynamic risk factors were also all considered by Dr Samuels, which placed the defendant in the high range, and utilising his own professional clinical judgement, Dr Samuels confirms the significant risk of sexual recidivism. Further Dr Samuels notes: "204 In terms of Dynamic risk factors, intimacy deficits and feelings of shame are indeed factors that add to his risk burden as does his impulsivity, poor problem-solving and poor cooperation with supervision. 205 With regard to potential protective factors, he has few supports but fortunately [the defendant] has maintained contact with his parents who have offered him ongoing emotional and financial support. 206 In regard to future risk scenarios for future sexual offending, problematic substance use, cessation of mental health medication, inadequate supervision and oversight, his lack of insight into his mental illness and substance misuse issues and opportunities for offending against children or adults are, in my [Dr Samuels'] view, the most significant risks." [3]
10. Asked for his opinion as to whether the defendant posed a risk of committing further serious offences and if so whether that risk could be managed in the community under an ESO, Dr Samuels made clear that specific sex offender treatment would not necessarily benefit the defendant but close monitoring of his mental state, ensuring compliance with medications and limiting access to drugs and alcohol as well as ensuring he doesn't have access to child and adult victims are matters that would manage the risk better and reduce the risk of further serious sex offending. As a consequence, an ESO was, in Dr Samuels' view, the better alternative.
11. Further, Dr Samuels was of the view that the orders under the CPPO and Community Treatment Order regime would complement the potential of the ESO to manage the risk.
12. In the report of 21 January 2021, Dr Samuels referred to his previous report, summarised above, and referred, expressly, to his uncertainty, at the time of the previous report, about the issue of paraphilia, but, in light of the subsequent material examined for the purpose of this second report, Dr Samuels was satisfied that it is more likely the defendant suffers from paraphilia. Otherwise, the defendant remained in the same position as was reported in the first report.
13. Dr Samuels continued to assert that the defendant was, in his opinion, a high risk of committing a further sexual offence and, notwithstanding his denials of paraphilic interests, his recent charges are concerning. He is still a risk of sexual violence towards adult stranger victims and continues to have limited insight into his sexual offending and mental health issues.
14. In the last report, being a report of 15 June 2021, Dr Samuels was, it seems as a matter of abundant caution, asked whether there were any changes in his opinion. Dr Samuels noted the defendant's transition to the ISC, but was unsure of the longer term housing options available to him.
15. Dr Samuels also noted that the defendant's schizophrenia seems to be reasonably well-managed on the current regime, but there remains a lack of insight and cognitive problems and the defendant appears to continue to deny and to minimise prior offending. Essentially, Dr Samuels reaffirmed the opinions expressed in the two earlier reports to each of which reference has been made.
16. The other expert appointed pursuant to the ancillary orders issued at the time of the ISO was Dr Richard Furst. The first report with which the Court will deal is the report of 10 July 2020. I do not repeat the history, which in every relevant sense, is identical to that recorded by Dr Samuels.
17. For present purposes, it is sufficient for the Court to note that Dr Furst, as one would expect of a doctor of his reputation, also examined the previous psychiatric and psychological reports and the psychological testing material, together with other relevant documents. I do not repeat the findings of those reports, which are summarised by both Dr Furst and Dr Samuels to the same effect.
18. Dr Furst diagnosed the defendant with mental disorders described in DSM-5, being schizophrenia, alcohol/substance use disorder; and unspecified paraphilia disorder. Dr Furst then described each of the disorders.
19. Dr Furst also expressed the opinion that the defendant poses a risk of committing further serious offences and addresses the risk factors as being, firstly, on the basis of his high historical loading of risk factors: multiple previous sexual offences, including of a serious nature; victims who are strangers; the use of violence, force and threats when offending against his adult female victims; multiple previous sentence dates; lack of any stable long-term relationships; lack of social supports; a history of alcohol and drug abuse; and cognitive deficits.
20. Further, Dr Furst refers to a number of dynamic risk factors: a lack of insight into the defendant's mental illness, substance abuse and sexual offending/sexual deviance problems; the defendant's tendency to minimise past and recent offending behaviour; limited victim empathy; intimacy deficits; limited prosocial supports; problems with emotional self-regulation; impulsivity; problems with sexual self-regulation; lack of effective management of his mental illness; evidence of ongoing alcohol misuse over recent years; deviant sexual arousal; lack of stable accommodation; and lack of employment.
21. Dr Furst describes the defendant as a "good candidate for … an ESO" and, amongst other reasons, bases that view on his fitting, very well, with a comprehensive ESO model of supervision and management as a result of his identified needs, clinical profile and risk. Dr Furst refers to the previous occasion on which the defendant was subject to an ESO, between 2008 and 2013.
22. Dr Furst also sees the conditions of the Community Treatment Order and the CPPO as compatible and complementary to the regime envisaged by an ESO. Further, in that regard, Dr Furst considered that the conditions then proposed as part of the ESO, were appropriate conditions.
23. In his second report of 26 February 2021, Dr Furst briefly summarised that which was his view under the previous report and the interview of the defendant on 19 January 2021. He also reviewed additional information which is described in the report. Dr Furst confirmed the view that he expressed on the earlier occasion.
24. In Dr Furst's third report, dated 22 June 2021, Dr Furst examined, in particular, recent progress that had occurred since the last reports. In the view of Dr Furst, the additional documents and that which they record confirm his clinical impressions and opinions relating to his diagnosis and risk profile and recommendation regarding supervision and the appropriateness of an ESO binding on the defendant.
25. Each of the medical experts to which reference has been made above assessed the defendant as being well below average in intellectual performance and IQ, but each of them also remarked that the defendant is not intellectually disabled nor in the borderline-disabled range.
26. The Court, as presently constituted, has also read the other expert reports and assessments, most of which had been summarised in the two prior ISO judgments to which reference is already been made. Nothing in those reports is inconsistent with the opinions expressed by the experts and recited above.
27. The Court has also examined the material in and annexed to the Affidavits of Ms Najjar, to which reference has been made and the Affidavit of Ms Springer and Ms Grabham. Again, that material is consistent with the continued risk to which each of Dr Samuels and Dr Furst opine.

Formal Statutory Preconditions

1. The requirements for an application to be made for an ESO are specified in s 6 of the Act. An application may not be made until the last nine months of an offender's current custody or supervision.
2. The application must be supported by documentation that addresses the issues specified in s 9(3) of the Act and includes a report assessing the likelihood of the offender committing a serious offence. Each of those matters have been satisfied, albeit, of necessity, the expert reports to which earlier reference has been made, were not the reports upon which the application, itself, relied.
3. As has been made clear on a number of occasions s 9 of the Act allows the Court to determine the application either by dismissing the application or by the making of an ESO. The provisions of s 9(3) specify those matters to which the Court is required to have regard, but the Court is not limited in that respect and may take into consideration any matter that is thought to be relevant.
4. In dealing with an application for an ESO, it must be noted that an ESO can be made only in respect of a supervised offender. That is a term that is defined in the Act, by the terms of s 5I(2).
5. The term "supervised offender" includes a person under current custody or supervision. That term includes a person serving a sentence of imprisonment for a serious offence; for an offence of a sexual nature; for a contravention of some of the provisions of the Act; or for an offence served concurrently or consecutively with an offence of that described in the previous three categories. Further, amongst other criteria, a supervised offender is a person who is under an existing ISO.
6. Plainly, the defendant is a supervised offender; the application was made during the last nine months of the defendant's current custody or supervision; and the application was supported by the documentation referred to in s 9(3) of the Act.
7. As a consequence, subject to the assessment of the offender as an unacceptable risk, the statutory preconditions for an application and for the making of an ESO as a consequence of that application have been satisfied. Notwithstanding that the parties are agreed as to the satisfaction of the criteria, it was necessary for the Court to determine independently that the criteria had been met.
8. Of course, the agreement of the parties gives the Court comfort and allows the Court to deal with the matter more briefly than might otherwise have been the case. The Court, as presently constituted, also draws comfort from the fact that those criteria were required to be met before either one of the judgments imposing and extending an ISO were issued. Each of the other two judges of the Court was satisfied of those preliminary issues.

Unacceptable Risk

1. The terms of the Act allow the Court to make an order, being an ESO or ISO, only in circumstances where, as stated, the defendant is serving a sentence of imprisonment for a serious offence either in custody or under supervision in the community; the person is a supervised offender, with which the Court has already dealt; the application has been made in accordance with the preconditions to which reference has already been made; and the 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. [4]
2. The assessment by the Court of the defendant's risk and its unacceptability is based upon the circumstances that would persist if an ESO, or ISO, were not to have been made. The Court, in assessing the unacceptability of the risk, does not take into account the adverse consequences of the order on the defendant.
3. For the Court to form the opinion that the defendant poses an unacceptable risk to a high degree of probability, does not require that the Court be satisfied that the risk that the defendant would commit a serious offence is more likely than not. [5] There is no tension between the requirement to be satisfied to a high degree of probability of the unacceptability of the risk and that the risk of reoffending is not necessarily more probable than not.
4. In determining whether there is a high degree of probability that an unacceptable risk exists, of the defendant committing another serious offence, the Court applies a matrix that considers the likelihood of the commission of a serious offence and the degree of harm that may be inflicted as a result of the commission of such an offence, if it were to be committed.
5. The degree of harm that would result if a further serious offence were committed may be such that the risk is unacceptable and the Court, as a consequence, finds that the defendant poses an unacceptable risk of reoffending. In those circumstances, assuming the harm is great, the Court may be satisfied that the risk is unacceptable to a high degree of probability.
6. It is the combination of the two factors in the matrix, to which the Court, on many occasions, has referred, which allows the Court, on the one hand, to be satisfied to a high degree of probability that the offender poses an unacceptable risk and that, on the other hand, the risk of committing a serious offence is not more likely than not. These are two different factors. It is the combination of the two factors that allows the satisfaction to which the provisions of s 5B(d) of the Act refer.
7. In using the term "likely", the Act does not require the Court to be concerned with the civil standard of proof. The Court must be satisfied of the existence of a sufficiently substantial probability that a serious offence will be committed. The Court is not concerned with ephemeral or insignificant risks of serious offending.
8. Once the Court is satisfied that there is a real risk of the commission of a serious criminal offence of the kind required by the Act, then the Court assesses the effect of the commission of that offence, if it were to be committed. The risk of the commission of the offence must be more than merely possible. One then factors into the assessment the seriousness of the harm that will ensue if the risk manifests.
9. There is a requirement to evaluate the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the risk of committing a serious offence, the less serious the harm needs to be to satisfy the Court of the unacceptability of the risk.
10. As earlier stated, a risk of the commission of a serious offence that is insignificant is not an unacceptable risk. In that expression, it can be the risk of the commission of the offence that is insignificant or the nature or seriousness of the offence that is insignificant. Nevertheless, the two are different aspects of the assessment required by the Court.
11. Where the manifestation of the risk would create some harm but not the most serious harm, then the Court may take the view that the risk of the commission of the offence would need to be higher. On the other hand, where the manifestation of the risk would create a most serious harm, then the Court may well take the view that the risk is unacceptable, even though the likelihood that the serious crime will be committed is low, as long as it is not insignificant.
12. The Act is in similar form to other acts. In another context, dealing with a statute in pari materia with the Act, the Court, as presently constituted, stated that if, on the one hand, the risk of the commission of an offence was the detonation of a nuclear missile, involving the death of millions, only a very slight probability or likelihood that the offence would be committed may be required to render the risk unacceptable. On the other hand, if the manifestation of the risk was a minor contusion, even a very high probability of its manifestation may not render the risk unacceptable. [6]
13. Once the Court evaluates the risk of reoffending and the consequences of any reoffending, the Court is required to be satisfied "to a high degree of probability" that the offender poses an unacceptable risk. [7] The high degree of probability does not relate to the commission of a serious offence; [8] it relates to the unacceptability of the risk posed by the offender. [9] The task is evaluative. [10]
14. A risk is unacceptable if it is not "tolerable or allowable; not a cause for concern". [11] Further, as already stated, the effect of the ESO on the defendant is not a matter that is relevant to the process of evaluation required by s 5B of the Act.
15. However, the effect of the limitations imposed upon the defendant's liberty, in circumstances where the defendant is not serving a sentence under the criminal law, may be taken into account in the exercise of the Court's discretion under s 9(1) of the Act. Notwithstanding that the Court is entitled to take into account the imposition on the defendant's liberty occasioned by the making of an ESO, the paramount consideration of the Court in the exercise of the discretion conferred by s 9 of the Act is the safety of the community. [12]
16. The Court has already summarised the latest reports. Earlier judgments summarised the earlier reports. The Kemps Creek sexual assaults, which took place in August 1992, were described by Price J [13] in the following manner: "The defendant's serious sexual offending commenced on 23 August 1992 when he attacked a woman on her 5-acre property at Kemps Creek where she lived alone. He smashed the door of the victim's house in, threatened to kill her, and then sexually assaulted her."
17. The report of Ms Sutton, Senior Specialist Psychologist, of 11 March 2007 records the defendant as having said, to an arresting officer, following the Kemps Creek sexual assaults that: "[he] broke into her house 'cause she was alone, [he] tried to fight her too." [14]
18. In his Honour's 2008 judgment, to which reference has been made, Price J also summarised the Dunheved High School assault in the following terms: "On 5 October 1992 the defendant sexually assaulted an agriculture teacher at St Marys during which he threatened to use a knife against her. The attack took place at 7am when the victim was cleaning out some sheds at Dunheved High School." [15]
19. At the time, the defendant reported believing that he was possessed by a demon at the time of the assaults and wanting to kill the victims. [16]
20. At the time of the Darlinghurst sexual assaults, the defendant was on parole. The defendant reported smoking marijuana, drinking heavily and hallucinating prior to the assault. [17] Initially, the defendant was found unfit to plead. Eventually, he was found fit to be tried and was found guilty of the offence.
21. As earlier stated, on 5 January 2019, the defendant committed the offence of the possession of child abuse material. He had been observed by police in the car park of some shops at the Leumeah on a BMX bike.
22. It was raining at the time. The defendant told police he was exercising. Police searched him and located an Auburn Girls Student Identification Card; a passport size photo of a girl of approximately 10 to 14 years of age; and a child's watch with a cartoon band.
23. Police searched the defendant's phone and found material suspected of being child abuse material. It was this offence that caused the defendant to be registered on the Child Protection Register.
24. On 15 May 2019, the defendant committed his first CPPO offence. This occurred in the following circumstances.
25. On 23 May 2019, Police attended the defendant's home for the purpose of an inspection to verify personal information that the defendant had provided. Police observed a large amount of children's items, including children's clothing and swimwear; toy sets; and action figurines. Police then applied for a CPPO and an Interim Order was granted on 29 May 2019.
26. On 20 June 2019, Police attended the defendant's residence and observed a large number of children's items in contravention of the Interim Order. The defendant was arrested.
27. The defendant was charged and pleaded guilty to the contravention. The defendant was sentenced to 12 months' imprisonment. On 31 October 2019, a final CPPO was made for a period of 5 years.
28. The defendant was released on parole on the basis of the stabilisation of his mental health issues. However, on 10 April 2020, he committed a second CPPO offence.
29. In the search of the defendant's room at Campbelltown ISC on that day, staff located items including a small Batman figurine; a Superman rubber wallet; a box of children's coloured pencils; and a superhero sticker book. The defendant was arrested on 14 April 2020.
30. On 22 June 2020, the defendant was sentenced to 18 months' imprisonment to commence on 14 April 2020 and to expire on 13 October 2021. He was released to parole on 13 April 2021.
31. I have already referred to the psychiatrists' reports of Dr Furst and Dr Samuels. It is unnecessary for me to repeat those assessments.
32. Plainly, however, each of the experts appointed under the Act consider the defendant either a high risk or a risk well above the average risk of reoffending compared to the average male sex offender. Dr Furst has diagnosed the defendant with psychiatric disorders, to which reference has already been made. He scored the defendant at a well above average risk of reoffending.
33. Dr Samuels expressed the opinion of the defendant had an underlying psychotic illness, as already indicated, and expressed the view that the defendant posed a risk of committing a further serious sex offence.
34. A combination of all those factors and the assessment of the defendant in what is now termed well above average risk category, and used to be termed high risk category, together with the harm that would be occasioned were that risk to manifest, satisfies the Court that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO and the Court is so satisfied to a high degree of probability.
35. As can be seen from the foregoing summary of material and the material that has been placed before the Court, all of which has been read, the Court has taken into account all of the matters to which the legislature refers in s 9(3) of the Act.
36. Notwithstanding that the Court has independently satisfied itself to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, the Court is comforted by the agreement that the defendant himself acknowledges that he poses an unacceptable risk and that the Court could be satisfied and should be satisfied of the criterion s 5B of the Act. The Court, as presently constituted, is further comforted by the previous decisions of Hoeben CJ at CL and Davies J, to which earlier references have been made.

Duration of the ESO

1. The State of New South Wales seeks an ESO for a period of 5 years, the maximum period allowed under the Act. The defendant opposes an order of that length and suggests a period of between 2 to 3 years is more appropriate.
2. The expert evidence, such as it is on this issue, suggests that an order of 5 years is appropriate. However, in the area of duration, it is not the opinion of the expert as to the duration that is determinative.
3. Ordinarily, it is the level of supervision that is required and the time that would be taken to see a significant improvement in the risk. Either party has the capacity to extend, vary or vacate the orders, although the practical consideration associated with the resources available to the State render its capacity to extend the orders better than the defendant's capacity to seek to have the Court vacate the orders.
4. The defendant raises a number of factors, each of which is relevant to the determination of the duration of the order. First, it has been 20 years since the defendant has committed a "serious sexual offence". This is a significant feature, both in terms of the assessment of whether the defendant continues to pose an unacceptable risk and also the likely period during which such an unacceptable risk will continue.
5. Nevertheless, during the course of the aforementioned 20 years, the defendant has engaged in new and concerning behaviours, none of which have resulted in the commission of a serious sex offence, as defined. Were it otherwise, it may well have been the situation that the finding of the experts would have been different and the Court may have taken a different view as to the unacceptability of the risk.
6. Even the defendant concedes that some of the behaviours have been "concerning". The circumstance of strict and ongoing supervision, such as one implemented as a result of the making of an ESO, will significantly reduce the risk of the commission of a serious sex offence.
7. However, that comment, while a factor that the Court considers relevant to the duration of the ESO, does not seem to support, as is suggested by the defendant, a duration for a lesser period. Given that the safety of the community is the paramount consideration of the Court in determining whether or not to make an ESO and the safety of the community is the primary object of the Act, [18] the circumstance that strict and ongoing supervision will significantly reduce the risk of the commission of a serious sex offence is a circumstance that would encourage the existence of the ESO for a longer period, rather than a shorter one. Of course, the foregoing comment presupposes that the defendant poses an unacceptable risk and the other preconditions for the making of an ESO have been satisfied.
8. Another aspect that needs to be considered is that the defendant has, in the past, been the subject of an ESO and has been the subject of an ISO. By and large the defendant has complied with those orders.
9. The defendant submits that the defendant's compliance with prior orders should give the Court comfort that the defendant will again strictly comply with the orders. Further, it should give the Court comfort that the defendant will engage in the aspects of the order going to his rehabilitation to the point that he is no longer posing an unacceptable level of risk. This, again, is a two-edged sword.
10. The defendant's compliance with prior orders, being a prior ESO and prior ISO, gives the Court comfort that the defendant will comply with an ESO once it issues. But that also discloses that the conditions in an ESO do not, on their face, oppress the defendant so significantly that he is incapable of abiding by the orders. The real issue is whether the rehabilitation prospects are such that a period of less than 5 years is warranted.
11. It seems to me that the defendant has undertaken some improvement in the defendant's behaviour, but, as mentioned by Dr Samuels in his 29 June 2020 report, "those implementing the ESO now have to take into account a potentially wider victim group ranging from children, through to young adults and adults."
12. Further, Dr Samuels expressed the view that as a result of the defendant's lack of insight, limited intellectual capacity, propensity to cease psychotropic medications, use of substances and emerging paraphilic behaviour, he would see a 5-year order as appropriate. Thus, it is not that the doctor simply takes the view that 5 years is appropriate, he takes that view on the basis of the difficulties suffered by the defendant.
13. In persons of limited intellectual capacity, expert reports show that the regime and certainty of the regime effects learned behaviour and requires a significant period for that learned behaviour to become "natural".
14. Having made all of those comments, it seems to me that the improvement in the defendant's behaviour and offending has come about as a result of the regime imposed upon him for some period of time. If, as I suspect, he has adopted a regime as a result, his lack of insight as to the reasons for that regime may be less important than the learning of the regime itself.
15. In the circumstances, it seems to me that a further period of 3 years would be required to assess whether continued supervision is necessary. Given the length of time over which the defendant has been offending and the broadening of the victim class in that period, I consider it is likely that the defendant may need a further ESO, after the conclusion of this one. But that will very much depend on an assessment in the future.
16. At the least, there would need to be a period of 3 years for the purpose of assessing with any degree of reliability the continued need for an ESO. If, in that period, the defendant has improved, then the ESO can lapse. If not, then the State can apply for another ESO.
17. If that be the case, the duration of the order should allow for that 3-year period and sometime thereafter for the assessment to be made and the effect of the assessment on the need for a continued regime to be determined. In all of the circumstances, the ESO will commence on the day that this order is made and subsist for a period of 3 years and 9 months.

Conditions

1. As earlier stated, there has been significant agreement between the parties as to the conditions that ought to be made. I am satisfied that the areas of agreement are appropriate and the conditions to which the parties have agreed in those areas are appropriate conditions to be made, given the terms of the Act and the need for the kind of supervision that is required of the defendant.
2. Notwithstanding the cooperation between the parties and the level of agreement, some proposed conditions are the subject of dispute between the parties. A number of them are issues of how best to express a view that may not be much in contest. Others, particularly the issue relating to Condition 3, relate to issues of principle.

Condition 3

1. Condition 3 seeks to require the defendant to answer questions from a DSO truthfully. The defendant opposes the condition on the basis that the defendant should be under a duty limited to not lying in response to questions posed. The issue of principle is whether the defendant's right to silence should be preserved and, in that situation, whether the defendant should have the capacity not to answer questions.
2. As anyone concerned with the criminal law would be aware, a "lie" has a particular and technical meaning. It is an untruth, which is not satisfied merely by an inaccurate statement that may not be known to be untrue.
3. I would be hesitant to cast a condition in terms of prohibiting the defendant from lying. If, as is suggested, the right to silence needs to be preserved, then it would seem that an express qualification allowing the defendant to refuse to answer a question on the grounds that it may incriminate him would be more appropriate.
4. The plaintiff, the State of New South Wales, relies upon the judgment of Hoeben CJ at CL [19] in which his Honour, relying upon a judgment of the Court of Appeal, took the view that a condition in the same or similar terms as that in these proceedings proposed as Condition 3 was "within power".
5. However, the judgment of the Court of Appeal [20] did not concern a requirement to answer truthfully the questions from a DSO, but, rather, a condition requiring a defendant to consent to a search either of the defendant's property or the defendant's person. In the course of his reasons for judgment, Basten JA said: "However, for the reasons explained above, properly construed those conditions do not impose on the applicant an obligation to answer questions, to produce documents or to in some other way assist the process of investigation, with the result that the privilege against self-incrimination would not in any event be engaged by the proper exercise of the powers conferred by those conditions." [21]
6. The issue with which the Court is currently concerned is more directly and unarguably an issue that affects the privilege against self-incrimination. It requires a defendant to answer truthfully questions that a DSO may pose. However, the questions that must be answered truthfully are not unqualified.
7. The only questions that a defendant is required to answer from a defined officer are questions about where he is; where he is going; by whom he is accompanied; what he is doing; and the nature of his associations. Interestingly and relevantly, it does not require the defendant to answer a question as to where he has been or what he has done, in the past.
8. To deal with an obvious example. Assuming, for present purposes, that hypothetically the defendant had committed a sexual offence at a residence some distance from where he was living. The questions that he would be required to answer truthfully could not include where he was at the time that that offence was committed, assuming that was some time in the past.
9. On the other hand, if a DSO were to contact the defendant at the time that he was present in the premises at which an offence has just occurred, under this provision, the defendant would be required to answer as to his whereabouts. If the defendant chose not to answer that question, the defendant would be in breach of his ESO and subject to criminal penalty.
10. Over and above the foregoing, if the defendant were required to answer the questions and did, and the answer to the question was an admission, difficult issues of discretion would arise if the admission were sought to be adduced into evidence in any subsequent prosecution. Plainly, given the threat of criminal conduct and the requirement of the ESO, if such a condition were contained in it, issues would arise in any prosecution associated with an offence to which an admission was made in answer to a question posed by the DSO, as to whether the admission was "voluntary".
11. It would seem that the answer to the question, on threat of criminal prosecution for not answering truthfully, would not be a voluntary admission. The provisions of the Evidence Act 1995 (NSW) would then provide a judicial officer, dealing with the offence to which the admission was relevant, with a discretion as to whether to allow the admission to be adduced in those proceedings. [22]
12. The condition that is proposed by the State is a condition which must be read with other conditions. The questions that are required to be answered truthfully are questions as to the whereabouts, now and in the future, of the defendant and the person and nature of the persons with whom he is associating. It also requires him to answer a question as to his current activity.
13. This provision goes hand in glove with the requirement, when so directed, to wear electronic monitoring. There is also a requirement, albeit that the precise wording of it is disputed, for the defendant to provide a schedule of movements and notify any alteration in those movements.
14. As a consequence, any answer, given truthfully, to a question as to the defendant's whereabouts may result in the defendant being charged with a breach of the conditions in the ESO. Similarly, a failure to answer the questions would result in the defendant being prosecuted for a breach of the ESO.
15. The Court of Appeal in Baldwin, [23] or at least the majority thereof, took the view that the conditions as to search and seizure were not conditions that impinged upon the privilege against self-incrimination. The minority [24] took the view that the judgment was required to be determined on the assumption that the conditions were an infringement on the privilege against self-incrimination. Further, the whole Court [25] also determined the matter on the basis of that assumption.
16. The Court, as presently constituted, is bound by the judgment of the Court of Appeal, and should be so bound even if that which is stated is not strictly necessary for the purposes of deciding the question, but is only considered obiter. [26] As a consequence of the judgment of the Court of Appeal in Baldwin, [27] the difficulty with respect to the current condition is that the conditions with which the Court of Appeal and, at first instance, Beech-Jones J were dealing were conditions relating to search of the defendant's residential address and entering the defendant's premises.
17. Inherent in the capacity to enter and search premises is the proposition that material, the possession of which is inconsistent with the purposes of the ESO found on the defendant or at the defendant's address, would, subject to orders to that effect, be capable of being seized. While there is a condition expressed in the statute relating to reporting to police and providing them with information, there is no express condition in s 11(1) of the Act that would enable a requirement to answer all questions posed, even on the limited subject matter to which reference is made. Of course, the specified conditions in s 11(1) of the Act are not exclusive and the Court, subject to the purpose and appropriateness of the condition, is granted the jurisdiction to direct compliance with any conditions thought appropriate.
18. One of the bases upon which Basten JA reached the conclusion that the conditions being considered in Baldwin, supra, did not abrogate the privilege against self-incrimination was that the scope of the condition was confined to compliance with the conditions of the supervision order. On its face, Condition 3, as proposed by the State of New South Wales is not so confined.
19. Notwithstanding that aspect, it seems, on the reasoning of the Court of Appeal, that a condition of the kind proposed by the State of New South Wales can be imposed. [28] However, that conclusion does not answer the question as to whether it should be imposed in a manner that remains unqualified.
20. The purpose of Condition 3 seems to be directed to the supervision of compliance with the ESO itself. As a consequence, the Condition will be inserted, but it will include a condition in the following terms: "Provided that the defendant may refuse to answer a question where the answer may tend to incriminate the defendant in relation to an offence other than a breach of this ESO or the conditions thereof."

Condition 5

1. I turn then to the matters in dispute in relation to Condition 5. The difference between the parties is, in my view, not significant. The plaintiff proposes that there be a "weekly plan" of the defendant's anticipated movements, while the defendant proposes an "honest summary". Each party refers to the summary being provided on or before the Friday prior to each week or as otherwise agreed.
2. It is not absolutely clear what a "summary" would entail. As a consequence, it seems that a "plan" is the more appropriate expression and the plaintiff's revised position will be adopted.
3. However, the reference to "Friday" seems to have an underlying assumption that the week does not start on the Saturday or, probably, the Sunday. An additional sentence will be added in the following terms:
4. "For the purposes of this condition a week will be deemed to commence on a Monday, unless otherwise agreed."

Condition 6

1. I turn then to the wording of Condition 6. Again, the difference between the parties is minor, but important.
2. First, there is a difference associated with whether Condition 5 will refer to a summary or the weekly plan. That difference is, as a consequence of my determination on that issue, determined in a manner which refers to the weekly plan.
3. The second and more fundamental difference relates to whether and how the defendant notifies and/or seeks approval from his DSO for any change in the weekly plan. Each party recognises the need for relief in the case of an emergency.
4. As a consequence of the protection for emergency situations, the difference between the two positions is not, seemingly, of much practical significance.
5. The defendant seeks to require that he notify his DSO of the change; the plaintiff seeks to require the defendant "to seek approval" from his DSO of the change. Neither requires that approval be granted by the DSO.
6. Implicitly, a notification by the defendant to the DSO of his change of plans requires approval or at least acquiescence. The DSO would have the capacity to disapprove the change in plans for a reason associated with the risk. The plaintiff's suggestion, in its revised position, is to require the defendant to seek approval before undertaking the change, but does not require the approval to have been granted.
7. In my view the defendant's proposal, subject to the use of the term "his weekly plan" instead of the words "any summary" is the preferred option. However, it seems that there should be a further sentence to Condition 6 in the following terms: "The DSO, or delegated officer, shall not disapprove of any such change except where reasonably necessary to address a risk of the commission of a serious offence or compliance with another condition in this ESO."
8. The plaintiff proposes an additional mandatory condition relating to the defendant not leaving New South Wales without the approval of the Commissioner of Corrective Services. The initial non-inclusion of such a condition is unexplained in the sense that the provisions of s 11(2) of the Act require such a condition in an ISO. As a consequence, that which is numbered in the Schedule as 14a will be inserted except the reference will not be to "Commissioner of CSNSW", but to "Commissioner of Corrective Services".

Condition 22

1. It is not clear to the Court whether Condition 22 is agreed or otherwise. As initially proposed, it prohibited the defendant from using prohibited drugs or abusing drugs unlawfully obtained. That proposal was agreed.
2. In its revised position, the plaintiff suggests that the condition should prohibit the defendant from using or possessing prohibited drugs. It seems to me the addition of possession is an appropriate condition, particularly because significant risk attaches to this defendant in relation to the use of drugs. As a consequence, Condition 23 becomes unnecessary.
3. The Court is concerned that the seemingly agreed position of the parties does not reflect a prohibition on the consumption of alcohol. The expert reports refer to alcohol consumption as a known factor exacerbating the risk. The leave granted to the parties will include leave to address this issue if thought appropriate.

Conditions 31 and 32

1. The next condition in dispute is the wording of Condition 31. The past offending of the defendant for which there is an unacceptable risk is the commission of a sexual offence.
2. This condition relates to the disclosure of information about the defendant by the DSO to a person with whom the defendant commences an intimate relationship. The difference between the parties is that, in its revised position, the State of New South Wales suggests that such disclosure may be effected, if the DSO considers it reasonably necessary to address a risk of the commission of any offence, whereas the defendant seeks to confine the offence to a serious offence.
3. If the condition relates to offences that are wholly unconfined in nature either in relation to their seriousness or the kind of offence to be committed, it seems to me to be a condition that is unnecessary or inappropriate. At the same time, I do not consider that it is appropriate to confine it to the commission of a serious offence.
4. That is the only difference between the wording of that proposed by the defendant and the revised position of the State of New South Wales. The proper resolution, from the perspective of the Court, is that the term "serious", in the defendant's proposal, should be replaced with the term "sexual".
5. A sexual offence, even if not serious, is a risk that may be necessary to address by the provision of information. At the same time a serious offence that is not a sexual offence is not one that is, on the material before the Court, part of the matrix which gives rise to the unacceptability of the risk associated with the defendant and ought not be a basis for the disclosure of that information.
6. Otherwise the condition is agreed. I note that the disclosure is capable of being made if "reasonably necessary to address a risk". I assume that such a risk must be real, but will not alter the condition in relation to that aspect.
7. The same amendment will be made in Condition 32 so that "a serious offence" will read "a sexual offence".

Condition 35

1. Condition 35 is now agreed in the terms proposed in the plaintiff's revised position and I note that agreement, because the Schedule, itself, does not make that clear.

Condition 45

1. I next turn to Condition 45. The difference between the parties is that the defendant proposes that the condition be confined to knowingly deleting or altering applications and the like. There are two difficulties with the insertion of the word "knowingly".
2. First, any breach of the conditions imposed in the ESO must be a deliberate or intentional act. Thus, an involuntary act would not be a breach of the conditions.
3. Similarly, an accident, if it were truly an accident, would not, on the face of it, be a breach of the condition not to delete or alter. As a consequence, it is not clear that the insertion of the word "knowingly" makes a difference to the condition.
4. Secondly, to the extent that the insertion of the word "knowingly" does make a difference, it lacks clarity and provides an "easy out" for the defendant. In my view the plaintiff's proposal should be the terms of the condition imposed.

Condition 47

1. In relation to Condition 47, the difference between the parties is that the defendant seeks a condition on the exercise of the power to search, being the DSO reasonably suspecting that a search is necessary to confirm the defendant's continuing compliance with the order. The difficulty with such a condition on the exercise of the power is that a random search would, presumably, be a search that is conducted for the purpose of confirming the defendant's continuing compliance with the order.
2. It does not seem necessary or appropriate to condition a random search of that kind on a belief in the DSO or a suspicion by the DSO that there has been or is non-compliance. Rather, for the purpose of ameliorating what may otherwise be a significant imposition on the defendant, I will add a sentence to the condition proposed by the State of New South Wales initially. That additional sentence will be in the following terms: "Provided that a search of the defendant or his residence or any other property will not be undertaken with unreasonable frequency."

Conditions 54 and 56

1. The next two conditions are Conditions 54 and 56. Each relates to medical intervention and treatment.
2. The second paragraph of Condition 54 in the plaintiff's revised position is agreed between the parties. The only issue in relation to the wording of Condition 54 is, therefore, a reference to the Community Treatment Order.
3. In my view, it is appropriate to include for the purposes of the Condition the reference to a Community Treatment Order, even though it would seem, given the general words preceding it, that the wording makes little or no difference.
4. In relation to Condition 56, the difference between the parties is the reasonable basis upon which the defendant might not attend the sessions there described. The defendant proposes that there be an exception in circumstances where "the defendant provides a reasonable excuse to his DSO for non-attendance." The plaintiff suggests that the exception be framed as "the defendant seeks prior approval from his DSO for his non-attendance."
5. The difficulty with the defendant's proposal is that it, of necessity, operates ex post facto. Given the need for a regime and the need for planning, it is less appropriate for the exception to be provided after the event rather than prior to its occurrence. Nevertheless, I do not consider that either proposal fits the bill.
6. In my view the exception should be worded in the following terms: "Unless the defendant provides a reasonable basis to the DSO for his non-attendance prior to the occurrence of the session or program."
7. I note that the Court will include a reference to the Community Treatment Order in accordance with the decision made in relation to Condition 54.

Condition 60

1. I also note that Condition 60 (as originally numbered) is agreed but ends with the words "are involved in his supervision."
2. There are no other conditions that are in dispute between the parties. As a consequence and given the State of New South Wales has the electronic version of the schedule provided to the Court, I will direct that the plaintiff provide Short Minutes of Order reflecting the terms of these reasons for judgment. If there is any need for clarity the parties have liberty to approach on very short notice.
3. The Court makes the following Directions: 1. The plaintiff shall file and serve Short Minutes of Order, including the Conditions, reflecting the foregoing reasons for judgment, within two working days of the date of judgment; 2. Liberty will be granted in relation to any clarification of the Conditions and/or objection on the basis that the Short Minutes of Order do not reflect the reasons for judgment and for either or both parties to deal with the issue of alcohol consumption.

Endnotes

1. State of New South Wales v Davis (No 2) [2021] NSWSC 625.
2. State of New South Wales v Davis (Preliminary) [2020] NSWSC 754 (Hoeben CJ at CL).
3. Report of Dr Anthony Samuels, 29 June 2020, at [204]-[206]; Exhibit A, p 274.
4. Crimes (High Risk Offenders) Act s 5B.
5. Crimes (High Risk Offenders) Act s 5D.
6. State of New South Wales v Ceissman [2018] NSWSC 508 at [31].
7. Crimes (High Risk Offenders) Act, s 5B(d).
8. Crimes (High Risk Offenders) Act, s 5D.
9. Cornwall v Attorney General for New South Wales [2007] NSWCA 374.
10. State of New South Wales v Thurston [2018] NSWSC 421; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57.
11. Lynn, supra, at [50]-[51].
12. Crimes (High Risk Offenders) Act, s 9(2).
13. State of New South Wales v Davis [2008] NSWSC 490 at [10].
14. Exhibit SN-1 to the Affidavit of Sarah Najjar, 25 May 2020, pp 196-197.
15. State of New South Wales v Davis [2008] NSWSC 490 at [11].
16. Exhibit SN-1 to the Affidavit of Sarah Najjar, 25 May 2020, Tab 4, p 43 at [25].
17. Psychiatric Report of Dr Wong, 8 May 2006; Exhibit SN-1 to the Affidavit of Sarah Najjar, 25 May 2020, Tab 35, p 186.
18. Crimes (High Risk Offenders) Act ss 3 and 9(2).
19. State of New South Wales v AA (Preliminary) [2021] NSWSC 566.
20. Baldwin v State of New South Wales (2020) 102 NSWLR 447; [2020] NSWCA 112 (Basten JA, with whom Macfarlan JA and Emmett A JA agreed).
21. Baldwin, supra, at [55].
22. Evidence Act ss 84 and 90.
23. Baldwin, supra.
24. Baldwin, supra (Macfarlan JA).
25. Baldwin, supra (Basten JA with whom Emmett AJA agreed and, in this regard, Macfarlane JA).
26. See by comparison Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135].
27. Baldwin, supra, at [51]-[55].
28. State of New South Wales v AA (Preliminary), supra.

Amendments 23 July 2021 - Typographical error. 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: 23 July 2021