State of New South Wales v De La Torre

Supreme Court of NSW|2024-04-29|Before: Sweeney J

JUDGMENT

The defendant, Roy De La Torre, is currently the subject of a five year Extended Supervision Order made on 28 October 2011. With periods when the order was suspended because the defendant was serving sentences of imprisonment, the Extended Supervision Order is due to expire on 1 May 2024.
By summons filed 25 March 2024 the State of New South Wales, the plaintiff, seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") in respect of the defendant.
The final relief sought is an Extended Supervision Order for a further two years. In this preliminary hearing an Interim Supervision Order is sought pursuant to s 10A of the Act, for a period of 28 days. Further, orders are sought pursuant to s 7(4) of the Act appointing qualified psychiatric or psychological experts to examine the defendant and provide reports to the Court.
The defendant submits the Court should not make the orders sought.
The defendant, through his counsel, accepts that the statutory preconditions in ss 5B(a)-(c), 5I, 6 and 10A(a) of the Act, for the plaintiff to make the application, have been satisfied. Since I am also so satisfied, I will not repeat those requirements.
At issue between the parties are the requirements of ss 5B(d) and 10A(b).
In this preliminary hearing, s 10A of the Act provides that the Court may make an Interim Supervision Order if it appears that the defendant's current custody will expire before the proceedings are determined ((a)), and the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order ((b)). Section 5B(d) of the Act provides that the Court may make an Extended Supervision Order if satisfied to a high degree of probability that the offender (defendant) poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. A "serious offence" is defined to include a serious sex offence (s 4(1) of the Act). A "serious sex offence" is defined to include a sexual offence against a child which is punishable by imprisonment of seven years or more (s 5(1)(a)(ii)).

Supporting Documentation

The parties provided the following supporting documentation. There was a joint statement of agreed facts. The plaintiff relied on two affidavits of Nicholas McArdle, solicitor, affirmed 21 March 2024 and 24 April 2024, which annexed Risk Assessment Reports, psychological reports, Parole Reports, and material relating to the defendant's relevant prior criminal history, as well as case notes from the Offender Integration Management System (OIMS). The plaintiff also relied on two affidavits from Jessie Slattery-McDonald, affirmed 3 April 2024 and 24 April 2024, expressing opinions about contested conditions for supervision of the defendant. The defendant relied on two affidavits of his solicitor, Susannah Coles, affirmed 17 April 2024 and 24 April 2024 and annexures, being extracted OIMS notes and psychology case notes from Richard Parker, the defendant's treating psychologist.

The defendant's prior criminal history, including views of the sentencing courts

The defendant is currently 65 years old. He has a history of sexual offences against children, including such offences committed while on parole and on the current Extended Supervision Order.
His first sexual offence against a child occurred on 12 September 1990, in Orange. The defendant rented a "ute" from a service station and drove around Orange until he saw the nine year old victim walking home from school with her six year old sister. On the pretext of asking for directions the defendant had the nine year old girl get into the car, and sent her younger sister home. He then drove around the town and then about 18km out from the town. The victim asked if she could go home. The defendant stopped the car from time to time. At one point he put his hand under the victim's school tunic, touching her on top of her leg near her underpants. She attempted to get out of the car by opening the passenger side door but was prevented from doing so by the defendant. The defendant pleaded guilty to one offence of kidnapping and one offence of indecent assault.
Abadee J, in sentencing the defendant, referred to the child's feelings of terror, fear and apprehension as to what was to happen to her, and the fear of young children being approached by strange adults, which is present in the minds of parents and children in the community. At the time of being sentenced in 1991 for those offences, the defendant was 32 years old. Abadee J took into account a report of a psychiatrist, who expressed the view that the defendant had "a marked disturbance of personality development with difficulty in maintaining stable relationships" and that "the problems from which the [defendant] suffers are embedded within his personality and are long standing and will be difficult to modify".
Abadee J imposed concurrent sentences, of a fixed term of one year's imprisonment for the indecent assault offence, and for the kidnapping offence, a minimum term of five years imprisonment, commencing 12 September 1990, and to expire on 11 September 1995, with an additional term of 20 months on parole.
The defendant was released to parole on 11 September 1995. He committed a number of offences whilst on parole. On 28 February 1997 he was sentenced by Judge Rummery in the District Court for those offences. They were, in chronological order, an indecent assault of a child under 10 between 1 December 1995 and 20 April 1996, an indecent assault of a child under the age of 10 between 1 and 30 April 1996, and sexual intercourse with a child under the age of 10, aged 9, on 10 July 1996. When sentenced for those offences the defendant had taken into account five further offences of indecent assault of a child under the age of 10 and two further indecent assaults of a child under the age of 16, all of which occurred between 1 December 1995 and 31 May 1996. Those offences involved touching children on the vagina and on one occasion, breasts. The first offence for sentence involved kissing a nine year old girl when she was at the defendant's house, having pushed her onto a bed. He then tried to remove her pants and touched her on the vagina on the outside of her clothing. The victim of the second indecent assault offence for sentence was aged 5, and was playing in a park when the defendant placed his hand between her legs on her vagina. The third offence for sentence, the sexual assault of a nine year old girl, occurred on the day that the defendant had told police he was aware his parole was to be revoked and he would hand himself in. He went to a park near where he was living, with his dog. He approached a number of young children before making contact with the victim. He encouraged her to pat his dog and led her into bushland. There he took off her clothing, made her lie on her back on the ground, put lubricant into her vagina and inserted his penis into her vagina, after which he ejaculated on the child. The penetration caused the child to bleed from her vaginal area. The defendant pleaded guilty to those offences and requested that the further offences on the Form 1 be taken into account.
In sentencing the defendant, Rummery DCJ noted that the prisoner was adopted and felt he lacked affection from both his adoptive parents. Judge Rummery stated "There is no doubt in my mind that the prisoner is, and has been a paedophile and experiences strong desires and urges in this regard. The prisoner no longer disputes such matters." At the time of being sentenced by Rummery DCJ, the defendant was described as almost 39 years old. For the offence of sexual intercourse the defendant was sentenced to a minimum term of 11 years imprisonment, commencing 28 February 1997, with an additional term of three years and seven months imprisonment, to expire on 27 September 2011. For an offence of taking that child away by force against her will with intention to carnally know her, the defendant was sentenced to a minimum term of seven years and four months imprisonment with an additional term of two years eight months. For each of the two indecent assault offences the defendant was sentenced to a minimum term of four years imprisonment, with an additional term of one year. All sentences were to be served concurrently.
The defendant was released to parole in respect of those sentences on 21 December 2010 and lived in Community Offender Support Program accommodation. The Extended Supervision Order was made in respect of him on 28 October 2011.
In 2013, while subject to the Extended Supervision Order, the defendant committed an offence of indecently assaulting a six year old girl at Coogee. He was found guilty of that offence after a judge alone trial before Mahony SC DCJ. The facts his Honour found for sentencing the defendant were that he was at a park in Coogee between five minutes past midday and 2:00pm. The offence took place at approximately 2:00pm. The victim's family were at the park having a picnic. After their lunch, while the child's mother was resting and the child's father and brother were playing, the defendant attracted the attention of the victim and her younger brother. He spoke to them and put his hand under the child's skirt and tickled her in the vicinity of her vagina, but outside her underwear. Shortly thereafter, the child told her mother what had occurred. The child's parents called police but the defendant had left the scene. The following day, a Corrective Services officer with responsibility for supervising the defendant under the Extended Supervision Order checked his schedule and electronic tracking device movements, which led to his arrest on that day.
Following the defendant's arrest his home was searched and photographs were found which contained child abuse material. For the indecent assault of the child the defendant was sentenced to a non-parole period of four years and six months, commencing on 23 April 2013, with an additional term of one year and six months commencing 23 October 2017 and expiring on 22 April 2019. For the offence of possessing child abuse material the defendant was sentenced to a fixed term of two years and three months imprisonment, commencing 23 October 2016 and expiring on 22 January 2019. The serving of this sentence of imprisonment caused the Extended Supervision Order to be suspended.
The defendant's next offence occurred on 24 October 2018 when he was aged 60 and was in prison serving his sentence. The offence was possession of child abuse material. On that date Correctional Officers searched the defendant's cell. Inside boxes with the defendant's name on them, in a folder with his name and marked "private", were found photos of children cut out from newspapers and magazines, who were in bathing costumes, underwear and children's clothing. These "cutouts" were not child abuse material. The child abuse material located within the envelope were a drawing of a child the subject of sexual activity, a drawing of a naked child focusing on her genitalia, and a handwritten story in which an adult male sexually assaulted his four year old niece in multiple ways. For that offence the defendant was sentenced to 18 months imprisonment, commencing 25 January 2019, with a non-parole period of 12 months. The defendant was released to parole on 24 January 2020.
In July and December 2022 the defendant was given warnings for failure to comply with his Extended Supervision Order conditions, the first by accessing pornographic websites and using encrypted files, the second for using an encrypted search engine which allows a person to search the internet without their search history being recorded.
On 30 May 2023 the defendant's mobile phone, tablet and laptop were seized by his supervising officer and police examined the tablet and mobile phone. This led to two offences of the defendant failing to comply with his Extended Supervision Order. The first was on 24 January 2023, breaching a condition to not possess or view pornography, by police having found on the defendant's tablet an image of child abuse material. The second offence occurred on 23 May 2023, being a breach of the same condition, because police found on his tablet that on that date, the defendant visited two pornography sites entitled "Teen porn video - Triple X sex videos" and "Hard seduction". The defendant was arrested on 14 June 2023 and taken into custody. On 18 March 2024, the defendant pleaded guilty to those offences and was sentenced to an aggregate term of imprisonment of 13 months, commencing 14 June 2023 with a non-parole period of nine months. The defendant was released from custody on 18 March 2024 and the existing Extended Supervision Order recommenced.

The Risk Assessment Report of Samuel Ardasinski, forensic psychologist

Within the material tendered on the application were psychological reports and reports prepared by Community Corrections Officers dating back to earlier periods of the defendant's offending. There were also reports from 2011, including by psychiatrists Dr Andrew Ellis and Dr Anthony Samuels, which were prepared for the Extended Supervision Order proceedings in 2011 and taken into account by Garling J when he made the five year Extended Supervision Order in October 2011. Both counsel for the plaintiff and defendant submitted that the key report to be considered in this preliminary hearing is the Risk Assessment Report of Samuel Ardasinski dated 11 August 2023, which reviewed previous material and expressed opinions. Mr Ardasinski is a forensic psychologist, and a senior psychologist in the Serious Offenders Assessment Unit in the Risk Management Programs of Corrective Services, New South Wales. Both counsel relied on different parts of his report, with different emphasis. Before I turn to the parties' submissions I will summarise the relevant parts of Mr Ardasinski's report.
Mr Ardasinski interviewed the defendant for two hours on 28 July 2023. As noted above, he reviewed previous psychiatric and psychological reports, the psychological progress notes of the psychologist Mr Parker, and reviewed the defendant's "history of sexual violence". He also reviewed the defendant's progress on his Extended Supervision Order, including his employment as a sound engineer, and his sessions with the senior psychologist Mr Parker.
In his executive summary, Mr Samuels noted that the defendant denied his 2013 offence and had also failed to accept responsibility for the possession of child abuse material offences of which he had been convicted while subject to his five year Extended Supervision Order made in 2011. He said the defendant remains in the "high risk" category on empirical actuarial risk tools. He said the defendant has: "… engaged willingly in individual psychological intervention since 2016, however since Mr De La Torre has denied his most recent contact offending in 2013, and minimises his deviant sexual interest in young children, he has avoided addressing his most critical risk issues in these sessions (i.e., sexual deviance), despite making sound progress on his coping and socialisation."
Mr Ardasinski noted at [9] of his report that the defendant: "…was adopted as a toddler and felt that his adoptive parents were cold and uncaring, which resulted in significant attachment deficits. Furthermore, Mr De La Torre was relocated often as a child, meaning he never formed close friendships either. This is the context in which he has developed an innate fear of abandonment."
Of the defendant's attitude towards his offending, Mr Ardasinski noted at [23]: "Mr De La Torre's acceptance of responsibility for his past offending has oscillated over the years. While there are some examples in reports written about him in the past, wherein he has apparently accepted full responsibility for his part in some of his sexual offending, these appear to be the exceptions in that Mr De La Torre more consistently denies or minimises his offending…"
At [24] Mr Ardasinski said: "Denial of sexual offending has not been linked to increased risk in the overall empirical literature per se… However, for Mr De La Torre, I consider that this has reduced the efficacy of his psychological interventions (which he has done years of, and continues currently) since (based on a review of his recent work with Mr Parker), Mr De La Torre appears to have chosen to focus on the more peripheral, "sub-clinical" risk factors for sexual reoffence, such as poor coping, instead of the main two: sexual deviance and intimacy deficits..."
At [25] Mr Ardasinski agreed with the defendant's diagnosis of "Paedophilia - Non-Exclusive Type - sexually attracted to females", made by psychiatrists Dr Dayalan in 2010, Dr Samuels in 2011, and Dr Ellis in 2011.
At [26], having reviewed previous reports, Mr Ardasinski said the defendant: "…has consistently disavowed his sexual deviance, or when he has acknowledged it, he has downplayed it as an ongoing concern. In my opinion, this minimisation has been to the detriment of how effective psychological treatment has been and can be…"
Referring to the report of Patrick Sheehan, psychologist, in 2011, Mr Ardasinski quoted part of Mr Sheehan's report, as follows: "In my opinion, the documents reflect avoidance on the part of Mr De La Torre to directly examine his deviant sexual interest, and as such, does not really explain his offences or specify a plan to manage his deviant sexual interest in the future. Mr De La Torre expressed the categorical belief that he would not reoffend due to the changes he had made in coping."
Mr Ardasinski said at [27]: "In interview with me, when asked about his sexual interest in children, Mr De La Torre was initially cagey and answered around the topic instead of directly responding to my questions… He acknowledged having intrusive sexual thoughts about female children, though minimised these, stating they were "very rare now," and that when they did "pop up" such deviant sexual fantasies trigger thoughts of prison, which Mr De La Torre said makes him physically sick (nauseated). That said, the evidence of his accumulating images of children and child abuse material as recently as 2018… indicates that, as forecast in several previous reports, his paedophilia is a 'chronic, relapsing condition'".
At [28] Mr Ardasinski noted that the defendant had initially engaged in high intensity group treatment programs in the CUBIT program, with positive reports, then engaged in further "maintenance" groups for a number of years, but reoffended sexually in 2013. From 2016 the defendant was afforded the opportunity of a further six years of individual "maintenance" intervention with Dr Richard Parker. Mr Ardasinski said: "In terms of intervention, Mr De La Torre would by now be considered fully treated since he has received the requisite dosage for a high risk/needs sex offender… however, there is 'the risk of treatment fatigue' which may need to be considered, especially given the paucity of progress notes in which Mr De La Torre appears to spontaneously raise and discuss his most pressing risk issues - namely sexual deviance and intimacy deficits."
I note that for that opinion Mr Ardasinski had referred to the psychological progress notes of Dr Richard Parker.
In paragraph [30] Mr Ardasinski referred to the theory that as offenders age they eventually stop offending. He referred to factors in that process, including the importance of formal social controls in the form of supervision and informal social controls in the form of family. Mr Ardasinski noted that Mr De La Torre had only relatively recently developed informal social supports through his employment. Mr Ardasinski said: "Outside of his informal social supports, Mr De La Torre will have professional supports from the Department, including Community Corrections, and ongoing psychological interventions provided he is under some form of supervision. Without being on an ESO however, several of the supports Mr De La Torre has set up in the community may be inadequate, and he may turn to more maladaptive coping mechanisms, which may, ultimately, lead to offending."
Mr Ardasinski acknowledged "It is not scientifically possible to accurately predict whether or not an individual offender will or will not actually reoffend": [31]. Mr Ardasinski applied the actuarial assessment tools, noting that what used to be described as "high risk" is now described as "well above average risk". Using the actuarial risk assessment for static risk factors for sexual offending, Mr Ardasinski assessed the defendant's score within the highest risk category for that instrument, the "well above average" risk. Using the actuarial assessment for dynamic risk factors for sexual offending he assessed the defendant as at "well above average risk". Using the risk of sexual violence protocol for sexually violent offending, Mr Ardasinski said the results suggested that the defendant falls in the "elevated/high risk category" for repeat sexual violence. He said the significant risk factors identified from that assessment were: "…extreme minimisation or denial of sexual violence, problems with self-awareness, problems with stress or coping, problems resulting from child abuse, sexual deviance, problems with sexual health, and problems with intimate and non-intimate relationships.": [45].
At [47] Mr Ardasinski said: "Mr De La Torre, despite his protestations to the contrary, in my opinion meets the diagnostic threshold to be considered a paedophile and has acted on this deviant sexual interest with almost a dozen female children since the 1990s. Such a deviant sexual interest in children tends to be relatively intractable and has been described as the single most salient risk factor in repeat sexual offending in the empirical literature for over 25 years…"
At [48] Mr Ardasinski said: "The empirical literature has demonstrated a clear link between sexual deviance and heightened risk of sexual offending… and it may therefore be conjectured that it is the deviant nature of Mr De La Torre's sexual offending (offending against children, possession of deviant material which is even more strongly linked with paedophilic interests than hands-on sexual offending against children alone) which links most strongly to the risk he poses of sexual re-offence. Child pornography offenders tend to be more paedophilic than contact sexual offenders… and admission or a diagnosis of paedophilic… interests has been associated with increased risk of future sexual offending among child pornography offenders… as well as among offenders with hands-on offences…."
At [49] Mr Ardasinski said there are also concerns, given the number of sexual offences against his name, of a level of sexual preoccupation. Referring to literature Mr Ardasinski said: "Those individuals with deviant sexual interests who engage in repetitive sexual crimes are likely to have additional risk-relevant characteristics, such as sexual preoccupations… sexual coping… These psychological features in themselves are strongly associated with sexual recidivism… and, therefore, persistence": [49].
At [53] Mr Ardasinski said: "Given that Mr De La Torre has been subject to a number of formal written warnings for breaches of his ESO for online activities which have included accessing pornography, and using encryption software and applications which aim to hide his Internet activity, there does remain the possibility that Mr De La Torre's most likely risk scenario is actually reoffending with possession of child abuse material, which he has been convicted of on several occasions. However, it is also possible (and I consider it more likely) that online offending would progress to contact offending for Mr De La Torre if he were not quickly apprehended for same due to the close monitoring and supervision provided under the conditions of his ESO."
Mr Ardasinski said, at [54], that: "The overall totality of evidence suggests that Mr De La Torre still falls in the high risk category for sexual offending, even 12 years since his risk was last considered by the Supreme Court under the CHRO Act."
At [55] Mr Ardasinski said: "The risk that De La Torre poses as his ESO comes to an end is not much reduced, even 12 years after the expiry of his last sentence for a serious sexual offence he acknowledged took place. However, he has demonstrated a lengthier period offence free than he has since his 30s."
I note that in 2011, the psychologist Patrick Sheehan assessed the defendant as at higher risk of sexual reoffending relative to other adult male sexual offenders. In 2011 Dr Samuels assess the defendant as at moderate to high risk of committing a further sexual offence if not supervised. In 2011 Dr Ellis assessed the defendant's risk of offending as high.

Plaintiff's submissions

In respect of the test in s 5B(d) for making an order, that the Court must be 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 an order, both counsel for the plaintiff and counsel for the defendant drew attention to a high degree of probability being "beyond more probably than not", having to be proved to a higher degree than the normal standard of proof: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The plaintiff submitted that an unacceptable risk has: "…to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures": Lynn v State of New South Wales [2016] NSWCA 57 at [126] per Basten JA.
In assessing what is an "unacceptable risk" the Court may consider factors such as a low risk of recidivism versus the likely drastic consequences to the victim: State of New South Wales (Final) v Kamm [2016] NSWSC 1 per Harrison J (as his Honour then was) at [41].
The plaintiff submitted that the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision, having regard to the following matters:

The nature and seriousness of the defendant's past serious sexual offending against young girls not known to him, and Mr Ardasinski's opinion (in his Assessment Summary Report of 27 April 2023) that this remains an ongoing concern.
The gravity of any potential reoffending is likely to be high.
The defendant remains in the highest category of risk for sexual reoffending on empirical actuarial risk tools.
Despite participating in individual psychological intervention since 2016 the defendant has been said to have avoided addressing his most critical risk issue, being sexual deviance. Mr Ardasinski's opinion is that the defendant's consistent denial of his sexual deviance has reduced the efficacy of his psychological interventions.
Mr Ardasinski's view that online offending by the defendant (with regard to child abuse material) would likely progress to contact offending if the defendant was not closely monitored and supervised pursuant to an order.
The defendant's diagnosis of paedophilia, described as a relapsing condition.
There is competing evidence about the likelihood of the defendant complying with an order in that he has committed further offences, including a sexual offence, while subject to the 2011 order, but has in other respects been compliant and demonstrated a capacity to comply.

The plaintiff submitted that having regard to the paramount consideration of community safety, a high degree of risk would attach to the defendant living in the community without any provision for his rehabilitation, supervision or support.
In response to the defendant's submissions that the Court would not be satisfied that an order should be made, or that it would have any efficacy in reducing risk, and that supervision was hampering the defendant's rehabilitation by imposing barriers to his obtaining accommodation and work, the plaintiff submitted:

While the defendant has been the subject of an Extended Supervision Order for 12 years, it has been interrupted by significant periods of custody as a result of further offending, including further serious sexual offending.
That the purpose of the defendant's rehabilitation is secondary to the primary purpose of the Act, the safety and protection of the community, and that while risk reduction can be achieved by rehabilitation, the primary purpose of an ESO is to ensure the risk the defendant poses is sufficiently mitigated by effective management and conditions.

The plaintiff disputed the assertions on behalf of the defendant that the ESO had interfered with his employment at the Mounties Club (as the employer had found out about the defendant's criminal history by an internet search, not from the defendant's supervising officer) or that the defendant's inability to find suitable accommodation to his liking left him vulnerable to homelessness, as the defendant will always have access to accommodation in an Integration Support Centre or Community Offender Support Program, although it was submitted on behalf of the defendant that he does not like to be accommodated with other offenders.

Defendant's submissions

The defendant submitted the Court would not be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. The defendant submitted that the material does not establish that he presents a risk of committing a serious sexual offence, or that the risk meets the high threshold of an unacceptable risk.
The defendant submitted that after a decade of supervision under an Extended Supervision Order there is a question over the efficacy or utility of any further supervision, conditions or treatment. Counsel submitted a key question is whether the supervision of the defendant is serving any purpose of risk reduction. Rather, it was submitted, supervision has caused real disruption to the defendant's rehabilitation and risk reduction. The defendant submitted that although work is regarded as a protective factor in his risk assessment, the Extended Supervision Order conditions are barriers to his employment and to his finding suitable accommodation, the latter because he is required to obtain approval to inspect properties, to apply for properties and to live at them.
The defendant submitted that although he has not achieved acceptance of all his offending, denial of sexual offending has not been linked to an increase in the risk of sexual reoffending, according to Mr Ardasinski. The defendant also relied on the issue of "treatment fatigue" raised by Mr Ardasinski.
He submitted there is a question of whether the community is safer with him under supervision or whether the conditions have stifled his ability to adapt to lawful community life, by being barriers to his rehabilitation.
The defendant submitted that the proposed conditions of an order are directed to his incapacitation, not his treatment.
The defendant submitted that the risk of him committing a contact offence (that is, a serious sexual offence against a child) is not an unacceptable risk in light of the trajectory of his offending. He relied on Mr Ardasinski's assessment of his overall risk that "The risk is not much reduced but he has demonstrated a lengthier period offence free than he has since his 30s…".
The defendant acknowledged his actuarial assessment as high risk.

Consideration

The primary focus is the safety of the community. I have considered the defendant's past history and trajectory of his offending. Although his serious sexual offending against children has reduced, that is likely to be in part because he has spent many years incapacitated in custody. When released from custody in 1995 and in 2011, he offended thereafter.
I have taken into account Mr Ardasinski's opinion that the defendant remains assessed as at high risk of sexual reoffending, and at risk of progressing from online offending in respect of child abuse material to offending against a child. I have taken into account he has committed a serious sexual offence against a child whilst subject to the current Extended Supervision Order and he has committed offences of possessing child abuse material, and I have noted and accept Mr Ardasinski's opinion about the latter conduct and its potential consequences. I have taken into account the defendant's diagnosis of paedophilia, and the opinions that that is an intractable, relapsing condition.
I accept Mr Ardasinski's opinion that the defendant has avoided addressing his critical risk issues and this has reduced the efficacy of his long term psychological "treatment". Accepting Mr Ardasinski's opinion that the defendant has avoided addressing his critical risk issue, of sexual deviance, it seems clear that the Extended Supervision Order to date has not achieved risk reduction by rehabilitating the defendant from the risk of sexual offending against children. It has mitigated against the risk, although not entirely, by keeping him under close supervision. In 2013 the electronic monitoring and scheduling conditions permitted the defendant to be apprehended after the offence, rather than preventing the offence from being committed.
Having considered all the material in the supporting documentation, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sexual offence against a child if he is not kept under supervision. The consequences of such offending against a child are well understood by the community to be serious. I am therefore satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. I am therefore required to make, and will make, an order appointing qualified psychiatrists and/or psychologists to conduct examinations of the defendant and furnish reports to the Court and direct the defendant to attend those examinations. I will also make an Interim Supervision Order.

Conditions of the Interim Supervision Order

There is a dispute between the parties about some of the proposed conditions which the plaintiff seeks to be included in the Interim Supervision Order.
Section 11(1) of the Act provides that an Interim Supervision Order may direct an offender to comply with such conditions as the court considers appropriate.
In Lynn, Basten JA said that: "The Court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective in diminishing the risk to an acceptable level": [129].
In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 Hoeben CJ at CL stated important principles to be considered in relation to the imposition of conditions ( at [44]), which include:

In imposing conditions, the court needs to strike a balance between competing considerations.
A relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty.
Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act.
Conditions should not be designed towards future general criminal conduct, but focused on mitigating the risk of a serious offence.
To ensure a balance between the community's interests and the defendant's personal liberty, the court should impose conditions that are the least intrusive possible.

The plaintiff attached to its summons a schedule of conditions sought to be included in the Interim Supervision Order. The parties prepared a table indicating proposed conditions with which the defendant did not agree and suggesting amended conditions. The plaintiff agreed with some of the defendant's proposed amended conditions. This approach by the parties was helpful. The following are the conditions which remained in dispute in the preliminary hearing and were the subject of submissions by the parties' counsel.
In support of the conditions sought the plaintiff relied on the Risk Management Report of Jamie Burton, Community Corrections Officer, Extended Supervision Order Team, dated 22 August 2023 and the affidavits of Jessie Slattery-McDonald.
In his report, Mr Burton noted the following:

The defendant's response to supervision was unsatisfactory, due to his further offending of a sexual nature, breaches of the terms of his order, that he had struggled to develop a beneficial relationship with his supervising officers, having been known to engage in "a confrontational communication style" and "having maintained a distrust of Community Corrections, often accusing the Department of corruption, hacking his devices and planting child abuse material on his computer."
That the defendant has consistently attended psychological treatment with Dr Richard Parker since 2016 and, according to Mr Ardasinski's Risk Assessment Report, is considered to be fully treated but, according to Mr Ardasinski, appears to focus on peripheral, subclinical risk factors for sexual reoffence throughout his treatment instead of the main two identified risk factors of sexual deviance and intimacy deficits.
The defendant has presented as highly motivated to secure employment and employment is viewed as a protective factor for him.

Conditions 5-8 requiring electronic monitoring and schedule of movements

Conditions 5-8 would require the defendant to, if directed, wear electronic monitoring equipment, provide a schedule of his movements, seek prior approval to change the schedule, and not deviate from the schedule except in an emergency.
The defendant submitted that prior to his 2023 offending he had progressed to not having electronic monitoring or scheduling, and that his 2023 offences, of accessing material online, did not relate to electronic monitoring or scheduling. The defendant submitted that those conditions are onerous, present a barrier to his rehabilitation, and that such conditions would not have had an impact on the 2023 reoffending. The defendant submitted that there is no current risk that reasonably requires electronic monitoring or scheduling.
The plaintiff, relying on the opinions of Mr Burton and Ms Slattery-McDonald, submitted as follows. Electronic monitoring enables auditing of the defendant's movements and monitoring his activities, which may indicate an elevation of risk, for example, if he enters an exclusion zone, or loiters near child related facilities with activities for children. Scheduling of movements would limit the defendant's exposure to high risk situations involving his exposure to children. The schedule of movements and electronic monitoring would work together to ensure the defendant is where he is supposed to be, to permit close monitoring of him, to prevent contact offending against children.
The plaintiff submitted that it is not intended that the defendant will be subject to electronic monitoring and scheduling conditions for the duration of the order, that as he has progressed and regressed between stages in the past, as required by the level of risk he posed, that is intended to occur in the future.
I accept these conditions are intrusive. I accept that the defendant has progressed, whilst under supervision in the past, to not having electronic monitoring or scheduling. Given the circumstances of some of his offences in the past, which involved approaching children in public places such as parks, and the circumstances of his offence at Coogee in 2013, when he was in the park for two hours before he committed the offence against the child while her parents were distracted, and being satisfied that the defendant is still at high risk of committing an offence involving sexual contact with a child, I am satisfied that it is appropriate to include the proposed conditions as to electronic monitoring and scheduling of movements, to enable detection if the defendant goes to, or is waiting around in, an area where children or families frequent, in order to mitigate the risk of him committing a further serious sexual offence against a child. Therefore, I will impose conditions 5-8 in the Interim Order.

Condition 9 relating to accommodation

The defendant did not oppose proposed condition 9 which requires approval for him to live at an address. He sought a further condition 9a that the Departmental Supervising Officer not refuse approval for accommodation of a type specified by the defendant. The plaintiff agreed to additional condition 9a. I will therefore include condition 9a as well as condition 9 in the order.

Condition 13 imposing place restrictions

Proposed condition 13 would prohibit the defendant, without prior written permission from a DSO, from attending at places of education and entertainment where children would or may be expected to attend.
The defendant sought that the condition in its proposed form be amended to add "unless in the supervision of the defendant's employer or accompanied by an approved person approved in advance by the DSO". The defendant submitted that employment is regarded as a protective factor, and for the defendant to find employment again in the same field (as a sound engineer) he may be required to attend parks as part of his employment. The plaintiff proposed that the amendment not include the defendant's employer, but did not oppose the proposed amendment referring to an approved person. The plaintiff submitted that an employer could become an approved person. The plaintiff submitted that the DSO would not necessarily advise an employer of the defendant's criminal history.
I understand the purpose of the proposed condition is to mitigate the risk of the defendant approaching a child if he works in a location where children are present. The employer may have other interests to be pursuing. However, I accept that employment is an important protective factor for the defendant. I consider that it is appropriate that the condition be imposed to prevent the risk of the defendant approaching children if he is working in a place where children are present. To meet the competing community safety interests and the defendant's interest in working in his field I would add to proposed condition 13 the words "unless in the company of an approved person approved in advance by the DSO. You may seek approval for an employer to be approved in advance as an approved person."

Proposed condition 16 - non-association condition

In respect of proposed condition 16, prohibiting association with children in specified circumstances, the defendant proposed an amendment and the plaintiff agreed to the amended condition. I will impose that condition in its amended form.

Proposed condition 19

Proposed condition 19 requires the defendant to agree to the DSO disclosing his criminal history and that he is subject to a supervision order and its terms, if the DSO is satisfied it is necessary or desirable to provide such information to a person with whom the defendant forms an ongoing personal or intimate relationship and that person has a child or children. The defendant proposed an alternative form of the condition and the plaintiff proposed a further amendment. The defendant submitted that if the Court formed the view that the condition was an appropriate condition to be made, the defendant did not wish to be heard against the plaintiff's proposed amendment in reply.
In my view this is an appropriate condition to be made to protect children, if the DSO is satisfied that it is necessary or desirable in the interests of safety of any children of a person with whom the defendant forms an ongoing relationship, to protect the safety of children with whom the defendant may come into contact with some regularity or frequency. I will make the condition in the terms as proposed by the plaintiff in reply.

Proposed condition 26

The parties reached agreement about the form of proposed condition 26 and I will make the condition in the terms agreed by the parties.

Proposed condition 29 permitting search and seizure

Proposed condition 29 would require the defendant to submit to a search by a DSO or delegate of his person, residence, vehicle, storage facility, garage, locker and computers and similar devices. The condition is said to be directed to ensuring the defendant does not use electronic devices in a "concerning manner" and to monitor whether he is in possession of any "child related items" that may indicate contact with children.
The defendant proposed an amendment to the condition to add that "A DSO must identify to you what is being searched for and the reason for the search with as much specificity as possible." The plaintiff objected to the term "as much specificity as possible", submitting that it is subjective and may lead to disputes. The defendant disputed that the concept of specificity was subjective, and submitted that if the defendant is to be subjected to searches of his property or person, it is reasonable that he be told why.
The plaintiff maintained that specificity is a subjective concept, likely to lead to disputes, and relied on the condition including a requirement that a DSO may only give a direction for a search, or seizure of an object found during a search, if he or she reasonably believes the search is necessary to monitor the defendant's compliance with the order or reasonably suspects the defendant of behaviour or conduct associated with an increased risk of committing a serious sex offence.
The defendant's requirement to be told what is being searched for and why is reasonable, given the intrusive nature of a search. As I understand, the purpose of the condition it is to search for items such as child abuse material on electronic devices, or children's toys or similar items which may attract children. Specificity may be a matter about which a DSO and the defendant disagree. I cannot envisage that the proposed subject of a search would be so complex that the defendant could not be told what is being searched, and what it is being searched for. In my view, the defendant's interest and the community's interests are sufficiently met by an amendment to the condition in terms that "a DSO must identify to you what is being searched, and the reason for the search."

Proposed conditions 31 and 32

The defendant submitted that if the Court considered it appropriate to make proposed conditions 31 and 32 the defendant does not wish to be heard against the plaintiff's position in reply. The proposed conditions prohibit possession of or accessing material which includes images of children. The defendant was concerned initially with the breadth of the proposed conditions which could easily lead to breaches and not meet the risks intended to be addressed. The plaintiff's proposed conditions in reply narrow the conditions such that they appear to address the community's interests as well as the defendant's concerns. I will make conditions 31 and 32 in the terms of the plaintiff's proposed conditions in reply. I consider those conditions are appropriate to prevent the risk identified by Mr Ardasinski of the defendant moving from possession of material depicting children to a serious sex offence.
The plaintiff agreed to the proposed alternative form of condition 37 and I will make the condition in that alternative form.
I note that proposed condition 36 was not pressed by the plaintiff.
For completeness I note that the following conditions will be made, being conditions proposed by the plaintiff and not opposed by the defendant: 1, 2, 3, 4, 10, 11, 12, 14, 15, 17, 18, 20-25, 27, 28, 30, 33, 34, 35, 38 and 39.

Orders

I make the following orders: 1. Pursuant to s 10A of the Act the defendant be subject to an Interim Supervision Order from 1 May 2024. 2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days. 3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment. 4. Pursuant to s 7(4) of the Act: 1. I appoint two qualified psychiatrists and/or two registered psychologists, or one qualified psychiatrist and one registered psychologist, to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court when a date for the final hearing is fixed; and 2. I direct the defendant to attend those examinations. 1. I direct that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, 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 allow them an opportunity to be heard in relation to the application for access.

SCHEDULE OF CONDITIONS OF SUPERVISION Roy De La Torre In these conditions: "Associate" includes, but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services. "Defendant" means Roy De La Torre, the defendant in these proceedings and the subject of this order. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Electronic Identity" means each of the following: 1. an email address, 2. a user name or other identity allowing access to an instant messaging service, 3. a user name or other identity allowing access to a chat room or social media on the internet, 4. any other user name or other identity allowing access to the internet or an electronic communication service. "Material" includes: 1. any written or printed material, 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure, 4. any photograph, film, video recording or other object or thing from which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Search" includes: 1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. "Schedule of movements" refers to a weekly plan (referred to in Conditions 6 to 8), to be submitted to a DSO each Wednesday and which commences on the following Saturday if approved by a DSO. Part A: Reporting and Monitoring Obligations 1. You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2. Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3. You must truthfully answer questions from a DSO, or any other person supervising you, about: 1. where you are or have been; 2. where you are going; 3. who you are with or have been with; 4. what you are doing or have been doing; and 5. the nature of your associations. 1. You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervisor including, but not limited to, a DSO, NSWPF and CSNSW. 2. You must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment. 3. If directed, you must provide a schedule of movements. 4. If you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 5. You must not deviate from your schedule of movements except in an emergency. Part B: Accommodation 1. You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements. (9a) The Departmental Supervising Officer is not to refuse approval for any accommodation proposed by the Defendant, by reason only that any such accommodation has shared kitchen, bathroom, or common room areas. 1. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address. 2. You must not spend the night anywhere other than your approved address or any alternative approved addresses without the approval of a DSO. Part C: Place and travel restrictions 1. You must not leave New South Wales without the approval of the Commissioner. 2. You must not, without the prior written permission of a DSO, attend any schools, pre-schools, day care centres, amusement parlours, caravan parks, children's playgrounds, parks or playing fields, and any other locations where activities intended for the entertainment of children are held, unless in the company of an approved person approved in advance by the DSO. You may seek approval for an employer to be approved in advance as an approved person. Part D: Employment, finance and education 1. Without limiting condition 13 above, you must not attend any such further place, where children or a child may from time to time be present, as a DSO may direct, unless the defendant is accompanied by a person approved in advance for such purpose by a DSO. 2. You must not start or change any job, volunteer work or educational course without the approval of a DSO. If circumstances change, you need to notify your DSO. Part F: Non-association 1. You must not associate with anyone who you know or reasonably should know is under 16 years of age, other than: 1. incidental contact in a public place; or 2. with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO. 1. You must not associate with any persons who you know or reasonably ought to know has been or is held in custody, without approval of a DSO. 2. You must agree that, if a DSO considers it appropriate to do so, a DSO may provide to any prospective or actual employer of yours information relating to your criminal history and may notify such prospective or actual employer that you are subject to a supervision order and of the terms of the order. 3. You must agree that, if a DSO is satisfied that to do so is necessary or desirable in the interests of safety of the other person or any children of or related to that person, a DSO may provide any individual with whom you form or have formed an ongoing personal relationship or intimate relationship, who has a child or children, information relating to your criminal history and may notify such individual/s that you are subject to a supervision order and of the terms of the order. 4. You must notify a DSO if you join or affiliate with any club or organisation. Part I: Access to the internet and other electronic communication 1. You must obey any reasonable direction by a DSO about the use of electronic devices and access to the internet. 2. You must disclose the following information to a DSO if directed: 1. Aliases, electronic identities and log-in names; 2. Email addresses; 3. Telephone numbers; 4. SIM cards; 5. Applications used (including any social networking service); 6. Online gaming services; 7. Instant messaging services; 8. Service provider account numbers; and 9. All passwords and log-in details. 1. You must not use any of the following unless approved by a DSO: 1. Social networking applications or services (including dating services or applications); 2. Encrypted messaging applications or services; 3. Online gaming applications or services; 4. Instant messaging applications or service. 1. You must give a DSO a list of the electronic devices you use to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. You must advise a DSO of any change to the list immediately. 2. You must only use an electronic device to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO. 3. You must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by you, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. The DSO must notify you at the time of inspecting the internet account. 4. You must not delete or alter any of the following from your electronic devices without prior approval of a DSO: 1. Applications; 2. Emails; 3. Text messages; 4. Electronic messages; 5. Call history; 6. Files or documents; 7. Photographs, images and videos; or 8. Internet or application usage and search history. 1. You must provide consent for your telephone provider and internet service provider to share information about your accounts with a DSO. Part J: Search and Seizure 1. You must submit to the search by a DSO (or any other person as directed by the DSO) of your person or residence, or any vehicle in which you are travelling or which is under your control, or any item, computer, electronic or communication device, storage facility, garage, locker or commercial facility in your possession or under your control; and to the seizure of any object located during the search. A DSO may only give such a direction if he or she reasonably believes that the search is necessary: 1. To monitor your compliance with this order or 2. Because a DSO reasonably suspects you of behaviour or conduct associated with an increased risk of you committing a serious sex offence. A DSO must identify to you what is being searched and the reason for the search. 1. You must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order. Part K: Access to pornographic, violent and classified material 1. You must not purchase, possess, access, obtain, view, participate in or listen to: 1. content that primarily depicts children, child-like images, or depictions of persons or characters who appear to be under the age of 18 years, or 2. any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence. 1. You must not possess, collect or retain any form of printed publications that primarily contain photographs or depictions of persons or characters who appear to be under the age of 18 years. This includes, but is not limited to photographs, store catalogues, magazines, newspapers, books, comics and art works. Part L: Personal details and appearance 1. You must not change your name from "Roy De La Torre" or use any other name without notifying a DSO. 2. You must not significantly change your appearance without the approval of a DSO. 3. You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.' Part M: Medical intervention and treatment 1. [Deleted] 2. You must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction. This does not extend to the prescribing of medication. 3. You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO. 4. You must agree to any information obtained under condition 38 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW. 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: 02 May 2024

At a glance

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Judgment (18 paragraphs)

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