State of New South Wales v DK

The legislative scheme

1. The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3] (McCallum J); State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [18] (Hoeben CJ at CL); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [10] (Dhanji J).
2. The Act has two express objects. The primary object "is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" (s 3(1)). Another object "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation" (s 3(2)). These objects are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] (Mason P, Santow and Tobias JJA); Kamm v State of NSW (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147] (Beazley P).
3. The Act seeks to fulfil these objects by conferring jurisdiction on the Supreme Court to make orders, extending beyond the terms of imprisonment imposed by sentencing courts, for the extended supervision (s 9(1)), or for the continuing detention (s 17(1)), of convicted offenders: State of NSW v Kaiser [2022] NSWCA 86 at [6] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing).

Extended supervision orders

1. Section 5H of the Act permits the State to apply for an ESO "against an offender". However, s 5I(1) qualifies this by providing that an order can only be made against a "supervised offender". Section 5I(2)(b), relevantly here, defines "supervised offender" to mean "an offender who, when the application for the order is made, is…under supervision…under an existing…ESO…".
2. The defendant conceded that he is a supervised offender for the purposes of s 5I, and I find that he is. That is because the defendant is currently under an ESO made by Fullerton J on 2 February 2018, which is to expire on 31 July 2022.
3. Section 6 of the Act sets out a number of requirements with respect to an application for an ESO. One is that the application "may not be made until the last 9 months of the offender's current custody or supervision" (s 6(1)). It is conceded by the defendant that this element is satisfied, and I find that it is. The State's application is made within the last 9 months of the defendant's supervision: the ESO is due to expire on 31 July 2022. Another is that the material that must accompany the application for an ESO addresses the matters in s 9(3) of the Act (s 6(3)(a)) and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that "assesses the likelihood of the offender committing a serious offence" (s 6(3)(b)). I am satisfied that the material in the affidavit of Penelope Smith affirmed 6 June 2022 addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 9(3) of the Act), and the defendant did not contend otherwise. Specifically, in relation to this section, there are two risk assessment reports from Sarah Wright, senior psychologist from the Serious Offenders Assessment Unit ('SOAU') dated 17 March 2022 and 2 May 2022; a report from Holly Cieplucha, a psychologist from the SOAU dated 29 October 2021; and reports that were secured, or otherwise available for, the earlier application heard by Fullerton J. The application may also indicate the kinds of conditions that are considered appropriate for inclusion under s 11 - in the event that an ESO is made: s 6(4). This has occurred; in fact, the argument in the written submissions and at the hearing was primarily directed to the conditions proposed by the State.
4. Section 7 of the Act prescribes a number of pre-trial procedures relating to the making, and dealing with, an application for an ESO: the application must be served on the offender (the defendant) within 2 business days of the application being filed, or such further time as the Court may allow (s 7(1)); the State must disclose to the offender material relevant to the application (s 7(2)); and the Court must hold a preliminary hearing within 28 days of the filing of the application, or within such further time as the Court may allow (s 7(3)). I am satisfied that these pre-trial procedures have been complied with and, like the position the defendant took in relation to the matters referred to in s 6, the defendant did not submit to the contrary.

The preliminary hearing

1. Section 7(4) of the Act provides that if, following the preliminary hearing, the Court "is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO", the Court must make two orders. The first is an order appointing a qualified psychiatrist and/or a registered psychologist (or several of them) to examine the offender, and to furnish reports to the Court (s 7(4)(a)). The second is an order that the offender attend the examinations (s 7(4)(b)).
2. If, following the preliminary hearing, the Court is "not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO", the Court must dismiss the application: s 7(5).
3. The Court may make an ISO in proceedings for an ESO if it appears to the Court that "the offender's current custody or supervision will expire before the proceedings are determined" (s 10A(a)) and "that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO" (s 10A(b)).
4. Generally, the ISO will be for a period of 28 days: s 10C(1)(a). An ISO may be "renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months": s 10C(2).
5. An application for an ISO, and for the appointment of psychiatrists and/or psychologists to examine the defendant (and report to the Court following such examinations) is to be assessed on the basis that the Court is required to be "satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO…": ss 7(4) and 10A(b).
6. That these provisions direct attention to "the matters alleged in the supporting documentation" has a number of consequences that should be noted. First, the task being performed at the preliminary hearing stage is not to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing; rather, it is for "the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order": Attorney General for New South Wales v Tillman at [98] (Mason P, Santow and Tobias JJA); State of NSW v Shields (Preliminary) [2022] NSWSC 469 at [12] (Wright J). The task has been described as being similar to applying a prima facie case test, taking the plaintiff's case at its highest: State of NSW v Golding (Preliminary) [2018] NSWSC 1041 at [17] and [19] (R A Hulme J); State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).
7. Secondly, it is impermissible for a defendant to adduce evidence that might "cast light" on - or contradict - the matters alleged in the supporting documentation: Attorney General for New South Wales v Tillman at [98] (Mason P, Santow and Tobias JJA); State of NSW v Devaney (Preliminary) [2021] NSWSC 1432 at [20]-[21] (Dhanji J).
8. Thirdly, "there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State's application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to…": State of NSW v Sturgeon [2019] NSWSC 559 at [13] (Garling J).

Section 5B of the Act

1. Sections 7(4) and 10A(b), by their reference to the requirement that the Court be satisfied that the matters alleged in the supporting documentation justify the "making of an extended supervision order", direct attention to s 5B of the Act. Section 5B contains four cumulative criteria that must be satisfied in order for an ESO to be made. They have been described as "identifying the conditions of engagement of statutory powers to make continuing detention orders or ESOs": Tannous v State of NSW (2020) 103 NSWLR 183; [2020] NSWCA 261 at [14] (Basten JA, McCallum JA and Simpson AJA agreeing).
2. By that section, the Court may make an ESO upon satisfaction of the matters in ss 5B(a)-(c) and, by s 5B(d), of satisfaction 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".
3. Section 5B(a) requires the defendant to be "an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community".
4. In order to consider whether the requirements of this section are met, it is necessary to make reference to some other sections which define concepts within s 5B(a).
5. Section 4A of the Act defines "an offender" to be a "person who - (a) is of or above 18 years of age and, (b) has at any time been sentenced to imprisonment…to be served by way of full-time detention…following the person's conviction for a serious offence".
6. Section 4(1) of the Act defines "serious offence" as meaning "(a) a serious sex offence, or (b) a serious violence offence". Each of those phrases are also defined - "serious sex offence" by s 5(1) and "serious violence offence" by s 5A.
7. The defendant conceded that he "is a serious sexual and violent offender as defined in sections 5 and 5A of the Act".
8. Although I have noted the concessions of the defendant, I am, independently of them, satisfied that the matters within s 5B(a) are present: the defendant is over the age of 18 years (s 4A(a)) and has been sentenced to full-time imprisonment following the person's conviction for a serious offence (s 4A(b)) - the "serious offence" being offences against a child under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which are punishable by imprisonment of 7 years or more (s 5(1)(a)(i)). (The detail of the offending is dealt with later in these reasons: see [53]ff, below.)
9. Section 5B(b) requires the defendant to be "a supervised offender (within the meaning of s 5I)". Section 5I(2) relevantly defines "supervised offender" to mean "an offender who, when the application for the order is made, is in custody or under supervision".
10. In relation to a defendant under supervision, that supervision must be "under an existing ISO, ESO, interim detention order or continuing detention order": s 5I(2)(b).
11. I have previously addressed this section and made a finding that the terms of it have been met - namely, that the defendant is a supervised offender because the defendant is currently under an ESO made by Fullerton J on 2 February 2018, which is to expire on 31 July 2022.
12. Section 5B(c) requires the application for the order to be made in accordance with s 5I. However, the reference in s 5B(c) to s 5I is "a drafting or cross-referencing error and should have been a reference to s 6": State of NSW v Kaiser at [124] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). I have previously made a finding that the requirements stipulated by s 6 have been met.
13. Having established the matters in ss 5B(a)-(c), s 5B(d) falls to be considered. That section requires the Court to 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 the order".
14. I note that the defendant did not seek to be heard on this issue, and made no oral submissions directed to it.
15. For the reasons set out below, I am satisfied to the requisite degree required by s 5B(d). Before doing so, some of the concepts within the section will first be addressed.

High degree of probability

1. The high degree of probability "qualifies the state of the judge's satisfaction, not the degree of the risk": Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] (Basten JA) ('Lynn').
2. The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is "beyond more probably than not", but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodson JJA); State of NSW v Golding (Preliminary) at [14] (R A Hulme J); State of NSW v Shields (Preliminary) at [12] (Wright J).

Unacceptable risk

1. The concept of "unacceptable risk" is expanded upon by s 5D, which is in the following terms: "For the purposes of this part, the Supreme Court is not required to determine the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of a person committing such an offence."
2. The concept of an "unacceptable risk" has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following: 1. The phrase is to be given its everyday meaning within its context having regard to the objects of the Act: Lynn at [55]-[58] (Beazley P). 2. What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55] (Beazley P); State of NSW v Donovan [2015] NSWCA 280 at [24] (Beazley P, Macfarlan and Leeming JJA). That finding provides the basis for imposing control on the offender: Lynn at [127] (Basten JA). 3. The interests of the offender to liberty and privacy are not relevant to the assessment of whether there is an "unacceptable risk", but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44] (Beazley P), [143] (Basten JA), and [148]-[149] (Gleeson JA). 4. Unacceptability of risk "involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). The nature of the risk "posed had 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": Lynn at [126] (Basten JA). 5. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); State of NSW v Golding (Preliminary) at [16] (R A Hulme J); State of New South Wales v Devaney (Final) at [73] (Dhanji J).

General

1. In the Risk Assessment Report dated 17 March 2022, prepared by Ms Wright, it was reported that the defendant had a "dysfunctional childhood marked by instability of caregivers, disrupted attachments, exposure to abuse and trauma and early sexualisation".
2. The background facts, which are set out in what follows, fully bear out that statement.
3. The defendant was born on 7 January 1997 and is currently aged 25.
4. The defendant's parents separated when he was around 18 months old. Following the separation of his parents, the defendant resided with his mother and stepfather. In 2015, the defendant reported that he had been sexually abused by his stepfather from the age of two or three years, and that he had "often watched child and adult pornography when he was a child". There were other reports that the defendant had "witnessed sexual activity between his mother and stepfather; he had slept in the bedroom with his father and father's girlfriend; and, that he had early exposure to pornography".
5. The defendant engaged in sexual behaviour from a young age. The defendant has described that he attempted to enact the sexual activity he had experienced and witnessed - including with other children at school - and that "his stepfather's sexual abuse towards him normalised such activity and he did not realise at the time that sexual thoughts about younger children and sexual activity with children was wrong".
6. Additionally, during his childhood, the defendant "experienced neglect and physical, verbal, and emotional abuse from his mother". The Department of Community Services were involved with the defendant between the ages of seven and fourteen years (approximately 2003 to 2011) and included, in 2006, a placement in foster care.
7. In terms of psychiatric and neuropsychological considerations, the defendant has attracted the following diagnoses: attention deficit hyperactivity disorder ('ADHD'), oppositional defiant disorder, complex post-traumatic stress disorder, persistent depressive disorder and borderline personality disorder. In addition to these diagnoses, in a report dated 19 December 2017, Dr Jeremy O'Dea, consultant forensic psychiatrist, expressed the opinion that the defendant's "primary problem is with a specific and significant Paraphilic Disorder; a Pedophilic Disorder, sexually attracted to both males and females. Not limited to incest. Exclusive type (so called bisexual paedophilia)" and that the "fantasies and urges" associated with that condition were "strong, persistent and intrusive" and had not adequately responded, to that point, to anti-libidinal medication.
8. In terms of risk, Dr O'Dea considered that the defendant had a "significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence". He considered, relevantly here, that the use of anti-libidinal medication as well as "supervision and monitoring" would be considered the most appropriate intervention.
9. Dr Adam Martin, consultant forensic psychiatrist, in his report dated 18 December 2017 reached a similar diagnosis to Dr O'Dea: the defendant "has [a] paedophilic disorder" and "[the defendant] has paraphilic [tendencies] and problems regulating his sexual behaviour appropriately…". In terms of risk, Dr Martin noted that he agreed with other assessments that the defendant "should be considered at risk of further serious sexual offending", a conclusion that he reached "taking into account that he himself has expressed the belief that he is likely to re-offend and has difficulty controlling his behaviours". Further, Dr Martin considered that the defendant had "a high loading of historical risk factors…which will not change dramatically over time".
10. In September 2017, the defendant's cognitive functioning was assessed by Olivia Munn, a Statewide Disability Services ('SDS') Senior Psychologist with Corrective Services. The results of that assessment revealed that the defendant's "overall level of intellectual functioning was in the borderline/extremely low range" and, when taken with his adaptive functioning, the defendant met the criteria for an "Intellectual Disability (Mild)".
11. The defendant does not have any significant employment history.
12. The defendant was approved for a disability support pension on 14 November 2018. He has funding from the National Disability Insurance Scheme ('NDIS') (details of which appear when considering a 9(3)(e1) of the Act, below), and that support has resulted in a further care plan approved, most recently, on 10 March 2022.

The index offences

1. On 21 November 2011, the defendant's youngest stepsister disclosed the offences the defendant had committed against her.
2. On 8 October 2012, the defendant was charged on indictment with nine counts of having sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act (there were two victims and the offences were alleged to have occurred during 2011); two counts of aggravated indecent assault against a child under the age of 16 years contrary to s 61M(2) of the Crimes Act (again, there were two victims and the offences were alleged to have occurred during 2011); and one count of committing an aggravated act of indecency against a person under the age of 10 years contrary to s 61O(2) of the Crimes Act (there was one victim and the offence alleged to have been committed on 20 November 2011); along with an alternative count of aggravated indecent assault contrary to s 61M(2) (this was an alternative count to the 9th count on the indictment).
3. The offences were alleged to have occurred between February and November 2011 when the defendant was aged 14 years. The victims were twin sisters who were stepsisters of the defendant, and they were aged 9 years at the time of the offending.
4. On 8 October 2012, the defendant entered a plea of not guilty on each count. The trial proceeded before Ellis DCJ as a judge alone trial in the District Court at Gosford. From the sentencing judgment of Ellis DCJ dated 22 March 2013, on 17 October 2012, Ellis DCJ returned verdicts of guilty in relation to nine counts of sexual intercourse without consent contrary to s 66A(1) of the Crimes Act, three counts of indecent assault contrary to s 61M(2) and one count of committing an act of indecency contrary to s 61O(2). (From the State's submissions, it was said that there were seven guilty verdicts returned in relation to the counts of sexual intercourse without consent contrary to s 66A(1) based upon the sentencing reasons and the NSW Police Force Criminal History - Bail Report: it is presently unnecessary to resolve that difference).

Sentences

1. The defendant was sentenced to a total effective term of imprisonment of four years and eight months, commencing on 15 March 2013 and concluding on 14 November 2017, with a non-parole period of one year and eight months.
2. On 24 February 2016, the defendant was released on parole. His parole was revoked following his admission to the High Dependency Mental Health Unit at the Nepean Hospital, and he was returned to custody on 30 March 2016. A Juvenile Justice Report dated 14 June 2018 records that the parole was revoked "as he failed to adapt to lawful life".
3. On 13 September 2017, the defendant signed a request to remain in custody form due to his concern that he would re-offend if released back into the community.

Previous HRO proceedings

1. On 4 August 2017, the State filed a summons seeking a continuing detention order ('CDO') and an ESO against the defendant under the Act. An interim detention order was made on 2 November 2017 and on 15 December 2017 and 12 January 2018 that order was, by consent, extended.
2. The final hearing of that application was listed before Fullerton J on 30 January 2018.
3. On 2 February 2018, Fullerton J ordered that the defendant be subject to a CDO for six months and an ESO for four years commencing at the expiration of his CDO. Fullerton J also made an order, pursuant to s 11 of the Act, that the defendant, for the period of the ESO, comply with a number of conditions. His ESO is due to expire on 31 July 2022.

The determination of the application: assessment of the risk

1. Section 9(1) empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)).
2. In determining whether or not to make an ESO, the "safety of the community" is the paramount consideration of the Court: s 9(2). Further, the Court must take into account - in addition to any other matter the Court considers relevant - the matters in s 9(3)(a)-(i), but is not to consider "any intention of the offender to leave New South Wales (whether permanently or temporarily)": s 9(4).
3. The 12 matters that must be considered, under s 9(3), "fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made": Tannous v State of NSW at [18] (Basten JA, McCallum JA and Simpson AJA agreeing).
4. These provisions - ss 9(2)-(4) of the Act - are relevant not only when considering whether to make an ESO following a final hearing, but also as to whether the Court should make an ISO following a preliminary one.

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

1. There are currently no reports from persons appointed under s 7(4) of the Act - thus there is no material of that kind to consider.

Psychiatric and other assessments: s 9(3)(c)

1. Section 9(3)(c) refers to the results of other assessments prepared by qualified psychiatrists, psychologists or medical practitioners "as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment" etc. These have been referred to earlier: see [47]-[54], above.
2. In addition to the reports from Dr O'Dea and Dr Martin, there are other expert reports addressing the matters in this section: (a) two risk assessment reports from Ms Wright dated 17 March 2022 and 2 May 2022; and (b) and a ESO Completion report, prepared by Ms Cieplucha, dated 29 October 2021.
3. In the first report from Ms Wright, she noted that the defendant "declined to consent to the interview" with her. Relevantly, when addressing the "criminogenic needs or dynamic factors for sexual re-offending", she noted the defendant: "…has acknowledged experiencing intrusive deviant sexual thoughts about children and described difficulty controlling his sexual urges. He finds these intrusive sexual thoughts distressing and he has often reported engaging in deliberate self-harm…[The defendant] has previously reported that his urges and fantasies were towards both male and female children aged between five and 12 years old. [The defendant] has been compliant with his prescribed anti-libidinal medication and has described reduced sexual drive…however, he does continue to experience fluctuations in his experience of intrusive deviant sexual thoughts"
4. When dealing with the likelihood of the defendant "committing a further serious offence", Ms Wright said: "Based on the totality of evidence, it is likely that [the defendant]'s risk of sexual reoffending continues to be high. However, the difficulty is that there is a lack of empirical data to draw on that relates to risk of sexual reoffending in [the defendant]'s case. Based on the nature of his past sexual offending, the limitations he has experienced in addressing his criminogenic needs, and his ongoing experience of sexual thoughts about children despite anti-libidinal medication, it is possible that future sexual violence could approach the threshold of a 'serious sexual offence' as defined in the [Act]"
5. Consistent with this, the conclusion of Ms Wright was: "[the defendant] is a … man whose risk of sexual reoffending is estimated to be in the high risk category relative to other men who have offended sexually".
6. In her supplementary report dated 2 May 2022, Ms Wright noted that it had "been established that [the defendant] exhibits a pattern of experiencing intrusive deviant sexual thoughts about children", and in response to them engaged in self-harm. The further information with which she had been briefed did not lead her to alter her opinion: "[the defendant]'s risk of sexual reoffending remains unchanged by the recent information. His risk of sexual reoffending is estimated to be in the high risk category".
7. In the ESO Completion Report prepared by Ms Cieplucha dated 29 October 2021, Ms Cieplucha identified a number of risk factors as relevant, or potentially relevant, when considering the defendant's sexual reoffending - namely that the defendant had experienced deviant sexual preferences; the defendant was impulsive, with a high level of emotional and behavioural dysregulation evidenced by "chronic engagement in acts of deliberate self-harm"; the defendant had "significant deficits in his capacity to resolve problems effectively and independently"; and the defendant continued to struggle with "feelings of loneliness and isolation".
8. In light of the fact that the defendant's offences were committed "prior to the age of 18, formal actuarial and dynamic risk assessment measures cannot be used to estimate his current level of risk of reoffending. However, similar to findings from the original Risk Assessment Report in which it was estimated that [the defendant]'s overall risk rating would be classified as high, [the defendant] continues to present with a number of outstanding criminogenic needs relating to sexual deviance, capacity for relationship stability, impulsivity and poor cognitive problem solving skills". Further, although Ms Cieplucha noted there had been no recent sexual offending, she considered that the defendant had "demonstrated little in the way of meaningful change…". Ms Cieplucha also found that, whilst the defendant had demonstrated some insight into his risk of sexual offending and an ability to generate some strategies to mitigate risk, he remained "relatively untested in the community when exposed to high risk situations".
9. The assessments performed in 2017, and more recently, are highly significant, in my view, when assessing the risk within s 5B(d), and in determining whether to make an ISO. They significantly inform my assessment on this issue.

Statistical and other assessments on the likelihood of the offender committing a further offence: s 9(3)(d)

1. Section 9(3)(d) refers to the "results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence".
2. The Risk Management Report dated 4 April 2022, directed to s 9(3)(d1) of the Act, undertook an assessment of the defendant on 21 March 2022 using the Level of Service Inventory - Revised. That assessment found the defendant to present a medium risk of general re-offending.
3. In her report dated 17 March 2022, Ms Wright referenced two matters relating to assessments of the kind under consideration. The first was that the ability to assess the defendant's risk of sexual re-offending using risk assessment tools was limited because the defendant was a juvenile when he committed the sexual offences and there are "no empirically validated risk assessment tools capable of reliably predicting recidivism in juvenile sex offenders". The second was that actuarial and structured professional judgment risk assessment tools that are typically used to assess the risk of sexual offending, such as the STATIC-9R, STABLE-2007 and the Risk for Sexual Violence Protocol, "have not been validated for use with juveniles who offended at the age of 14 or 15" - such that they could not be used for the defendant (the defendant was 14 at the time of the index offences).
4. The limits in these risk assessment tools explains why, in part, I have placed greater reliance upon the matters referred to in s 9(3)(c), above.

Corrective services reports: s 9(3)(d1)

1. Section 9(3)(d1) requires the Court to consider any "report from Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community".
2. The Risk Management Report dated 4 April 2022 is a report prepared for the purposes of this section.
3. In that report, the defendant's response to the ESO was described as "mixed": he was said to be "generally compliant", albeit that he had been issued with a number of written warnings, including failing to inform a Departmental Supervising Officer ('DSO') of visitors to his residence, disengagement with intervention services and failure to respond to attempts by his DSO to make contact with him. The defendant had not "been issued with a written warning in approximately 12 months" however verbal warnings had been given.
4. When addressing the possibility of a further ESO, a risk management plan had been devised. That plan included, by way of example, having weekly contact with a Community Corrections Officer; having unannounced home visits; having his behaviour in the community monitored; having his relationships monitored - to list just some details of the plan. Recommendations were made to support that plan. One such recommendation related to scheduling of movements and a curfew. It was the view of Community Corrections that "a condition requiring a weekly schedule of movements" and a curfew would assist the defendant "to plan his activities and develop a routine". It was also the view of Community Corrections that movement schedules "would also assist in identifying and mitigating his risk of reoffending when assessing his proposed activities as well as reducing the risk of impulsive behaviour". This last matter is, of course, relevant to the dispute about conditions, which is later addressed.

Treatment or rehabilitation programs etc: s 9(3)(e)

1. Section 9(3)(e) requires the Court to have regard to any treatment or rehabilitation program "in which the offender has had an opportunity to participate", as well as the willingness of the offender to participate in any such programs and the level of any such participation.
2. Whilst the defendant was in custody, he underwent counselling and psychological intervention - the latter being provided by Ms Cieplucha.
3. The defendant was also assessed, whilst in custody, as suitable for the Self-Regulation Program - Sexual Offending, a program that commenced in November 2016. However, the defendant did not participate in the program due to self-harming behaviour, and a decision was made to discontinue his participation on 23 November 2016.
4. In March and April 2020, the defendant participated in a residential therapy program called 'Heal for Life" and, following its completion, underwent weekly follow-up telephone calls from facilitators until October 2020.
5. In my view, there has been limited participation in programs of the kind identified by the section, which I have taken into account when considering s 5B(d) and the conditions sought to be imposed.

Options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

1. Section 9(3)(e1) requires the Court to consider "options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time".
2. The State submitted that two matters were relevant here. The first was that the defendant received support from the NDIS. Pursuant to the former and current NDIS plan the defendant is provided funding for "Supported Independent Living" - however that support declines over the course of the plan. The current plan also funds treatment including, by way of example, for Specialist Behavioural Support, Increased Social and Community Participation. I accept that the NDIS plan (and the treatment and support provided) does provide overall assistance to the defendant and his ability to function in the community, but consider that it is of limited relevance in the context of the present issue. Its relevance, as argued by the defendant, related to whether condition 24, as proposed by the State, should be made in those terms, or whether it should be amended (addressed later in these reasons).
3. The second relevant matter was the defendant's use of anti-libidinal medication.
4. The defendant has been taking medication of this kind since around 2014. From 2015, the defendant has been prescribed Androcur, although the dose has increased since 2017 from 200 mg to 300 mg. Notwithstanding that the defendant continues to take that medication, in the Risk Assessment Report prepared by Ms Wright dated 17 March 2022, the defendant is reported to continue to "experience fluctuations in intrusive deviant sexual thoughts even on the higher dose".

The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2)) and the level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)

1. In line with the State's submissions, these matters will be dealt with together.
2. Section 9(3)(e2) requires the Court to consider "the likelihood that the offender will comply with the obligations of an ESO" and s 9(3)(f) requires the Court to have regard to the level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO.
3. As earlier noted, the defendant had his parole revoked: see [58], above. A report from Corrective Services, referred to in the judgment of Fullerton J, noted that the defendant's "supervision and engagement in services had been significantly hampered by his mental health which impeded his transition into the community" and that "risk of reoffending appeared to be escalating": State of NSW v DK [2018] NSWSC 53 at [27] (Fullerton J).
4. In terms of complying with the current ESO, as noted above, in the Risk Management Report dated 4 April 2022, the defendant's response to the ESO was described as "mixed": he was said to be "generally compliant", albeit that he had been issued with a number of written warnings, including failing to inform a DSO of visitors to his residence, disengagement with intervention services and failure to respond to attempts by his DSO to make contact with him. The defendant had not "been issued with a written warning in approximately 12 months" however verbal warnings had been given.
5. It seems likely, based on that assessment, that the defendant will be generally complaint with the obligations of an ESO.

The level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)

1. The legislation was not raised as being relevant to the present application.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. Section 9(3)(h) requires the Court to have regard to "the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history".
2. I have addressed the offences that were tried before Ellis DCJ earlier in these reasons: see [57]ff, above.
3. In addition to those offences, the State drew attention to others.
4. The first was that, when sentenced, Ellis DCJ was asked to take into account a matter as a "related offence" on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). That matter was an indecent assault on a person under sixteen years of age, and related to a person (known by the pseudonym 'KR') who gave tendency evidence during the trial. The defendant was sentenced by Ellis DCJ to a control order of six months for that offence.
5. The second related to other sexual offences, which the defendant self-reported to Police in February 2017. The defendant was later charged with 8 offences, although a number were later withdrawn.
6. On 27 June 2018, the defendant was convicted, in the Children's Court at Woy Woy, of two counts of aggravated indecent assault against a person under the age of 16 years contrary to s 61M(2) of the Crimes Act and one count of having sexual intercourse with a person between 10 and 14 years contrary to s 66C(1) of the Crimes Act. For these offences, the defendant was sentenced to three control orders pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act. The control orders were between 6 and 12 months in duration, the first of which commenced on 27 February 2017 and the last of which concluded on 24 July 2018.
7. In relation to "any pattern of offending behaviour", it is clear that the offending of the defendant was of a sexual kind, perpetrated on young children.

The views of the sentencing court at the time the sentence was imposed on the offender: s 9(3)(h1)

1. Section 9(3)(h1) requires the Court to have regard to "the views of the sentencing court at the time the sentence was imposed on the offender".
2. Although the record of the convictions on 27 June 2018, and the sentence imposed (see [105], above) is in evidence, no sentencing judgment is available. A sentencing judgment for the index offences is available, to which reference will be made.
3. In relation to the index offences, Ellis DCJ noted the following: 1. During counselling and assessment by the Department of Juvenile Justice, the defendant "acknowledged his guilt and expressed some contrition" although Ellis DCJ found it "difficult to assess exactly how much of that is the result of victim empathy as distinct from the offender feeling sorry for himself due to the predicament that he now finds himself in". 2. The defendant's motivation in committing the offences "was to satisfy his sexual lust. Further, there is relatively little evidence of the offender resisting or attempting to resist his sexual urges". 3. That "generally the offending was not planned or organised. I accept that in the main he acted spontaneously at a time of opportunity and when unable to control his urges". 4. Having regard to the expert medical evidence, "I am unable to positively conclude that he has good prospect of rehabilitation; that is, that he is unlikely to re-offend. In fact, in this case, there are rather large concerns about his future". 5. By reason of the defendant's "level of immaturity, his social isolation…he may not have been fully aware of the consequences of his actions or not able, by reason of his immaturity, to control his urges".

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

1. Section 9(3)(i) requires the Court to have regard to "any other information that is available as to the likelihood that the offender will commit a further serious offence".
2. No submissions were directed to this section - presumably because all relevant matters have been addressed in the matters considered above.

The ISO should be made

1. I have already found that the matters in ss 5B(a)-(c) of the Act are satisfied: see [23]-[33], above.
2. Having regard to the matters under s 9(3) referred to above, as well as the safety of the community (s 9(2)), I have no doubt that, unless supervised, the matters alleged in the supporting documentation demonstrate that there is an unacceptable risk of the defendant committing another serious sex offence unless supervised. Accordingly, I am satisfied that the terms of s 7(4) of the Act are met.
3. In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters. 1. First, the psychiatric and psychological opinion evidence points all one way: the defendant has a high risk of sexual re-offending. That was the position in 2017 and the evidence in 2022 confirmed the position had not changed. As Ms Wright concluded in her report dated 17 March 2022: "[the defendant] is a … man whose risk of sexual reoffending is estimated to be in the high risk category relative to other men who have offended sexually". 2. Secondly, although the defendant has continued to take anti-libidinal medication - the dose of which has increased since 2017 - he continues to experience intrusive deviant sexual thoughts about children and has described difficulty controlling his sexual urges. The defendant's recent acts of self-harm (which occurred on 13 April 2022) have been in response to increasing sexualised thoughts about children of both sexes. 3. Thirdly, the defendant's treatment for his underlying psychiatric and psychological conditions has been of limited efficacy. The fact that the defendant has engaged in repeated self-harm not only is demonstrative of this, but also points to related issues - namely, as Ms Cieplucha said, in her report dated 29 October 2021, the defendant was impulsive (a statement not at odds with the remarks of Ellis DCJ, when sentencing the defendant for the index offences), with a high level of emotional and behavioural dysregulation evidenced by "chronic engagement in acts of deliberate self-harm". 4. Fourthly, the defendant has not made any substantive progress to address his risk factors and the steps needed to deal with them. As Ms Cieplucha said, in her report dated 29 October 2021, the defendant had "significant deficits in his capacity to resolve problems effectively and independently" and that the defendant demonstrated a "rudimentary understanding of potential risk scenarios and his understanding of risk strategies remains untested". Consistent with this opinion, Ms Cieplucha later expressed a further one: that the defendant had "demonstrated little in the way of meaningful change…".
4. I turn now to ss 10A(a) and (b) of the Act - which are relevant because an ISO is sought by the State. Section 10A(b) is in the same terms as s 7(4) and accordingly requires no separate analysis: I am satisfied that the terms of that section are met.
5. Section 10A(a) provides that the Court may make an ISO if in the proceedings for an ESO it appears to the Court that the defendant's current custody or supervision will expire before the proceedings are determined. Section 10A(a) is satisfied, because the defendant's current supervision will expire on 31 July 2022 and the proceedings for an ESO will not be determined by that time.

The statutory provisions and principles

1. An ESO or an ISO may direct an offender to comply with such conditions as the Court considers appropriate, including but not limited to those conditions specified in ss 11(1)(a)-(n) of the Act. Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO (or ISO) is delimited by the requirement that the conditions be "appropriate".
2. When an ESO or ISO is made, it must include a condition "requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Service": s 11(2). This is the State's proposed condition 14.
3. Failure by a person to comply with the requirements of an ESO or ISO is an offence, punishable by fine, imprisonment, or both: s 12.
4. In State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44], Hoeben CJ at CL identified the following principles to be considered in relation to the imposition of conditions: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) 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: Wilde v State of New South Wales [2015] NSWCA 28 at [53]; (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]; (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855; (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]; (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales [(2016) 91 NSWLR 636] at [129]-[131].

The conditions

1. The State proposed a number of conditions. The defendant opposes the making of some of those conditions - specifically, proposed conditions 6-8 inclusive (which relate to the provision of a schedule of movements and conditions connected to that schedule) and, in a limited respect, proposed condition 24 (which relates to the manner in which the defendant is permitted to associate with children).
2. As to the balance of the proposed conditions (that is, the ones that were not opposed by the defendant), I am satisfied that they are appropriate, and mitigate the unacceptable risk, and I propose to impose those conditions as part of the ISO. These conditions, it should be observed, are essentially identical to the ones that are currently in force and there is nothing in the material that suggests that the unacceptable risk which justified the making of the orders by Fullerton J materially (or at all) differs from the risk which I have earlier addressed.

Conditions 6-8

1. In relation to proposed conditions 6-8, these conditions relate to a schedule of movements: if directed, the defendant must provide a weekly plan, and that plan is to be provided 3 days before it is due to start (proposed condition 6); if the defendant wants to "change anything" in the approved schedule, "he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period" (proposed condition 7); and the defendant "must not deviate" from the approved schedule "except in an emergency" (proposed condition 8).
2. The conditions proposed by the State are in materially the same form as conditions 6-8 of the ESO ordered by Fullerton J on 2 February 2018.
3. The defendant has not argued that some form of monitoring is unwarranted; rather the defendant has argued that the proposed condition takes a paternalistic approach to supervision, rather than a facilitative approach. In furtherance of that position, the defendant has argued that the proposed scheduling regime would be a "likely source of stress and conflict" for the defendant, particularly as it is alleged the "ESO team takes an adversarial approach to the administration of orders"; and, further, that, in practice, the defendant is subject to "line-of-sight supervision by his NDIS case workers", hence there is a question about the need and utility of those proposed conditions.
4. I do not accept, as the defendant has argued, that there is reason to think, and thus to find, that the "ESO team" would take an adversarial approach towards administration of the orders - thereby favouring the form of conditions proposed by the defendant, rather than those proposed by the State. As the State submitted, there is no evidence to support such a finding and no evidence was identified in the written submissions, or during the hearing, that would.
5. The defendant also argued that the scheduling, particularly as it relates to the defendant with "intellectual functioning…in the extremely low range" (T14.31), places a cognitive burden on him which, in turn, creates stress (T14.33).
6. Although I accept that, in a given case, stress might be caused by scheduling of the kind proposed by the State, there was no evidence that established in the present case that this had occurred in consequence of the current orders (which, as I have earlier mentioned, contained scheduling conditions in materially identical terms) at any time during the last 4 years - as was fairly conceded by the defendant. The evidence in fact tended to support the cause for the defendant's stress as being related to other matters. For example, the self-harming that occurred around 13 April 2022 was initiated in response to "sexualised thoughts…about children of both genders". In the Supplementary Risk Assessment Report dated 2 May 2022, Ms Wright noted that the defendant "exhibits a pattern of experiencing intrusive deviant sexual thoughts about children, finding these thoughts distressing, and responding with an impulse to engage in self-harm behaviour…". And, by further example, in the Risk Assessment Report dated 17 March 2022, the following was recorded: "[The defendant] has attributed recent deliberate self-harm to stress over his father's ill-health, a reduction in the hours of funded support that had been provided to him, the current HRO [High Risk Offender] application, and problems in his relationship with his brother".
7. It should be noted that it was not argued by the defendant that was there any evidence to suggest that, by some change in the defendant's circumstances, imposition of scheduling conditions would create stress of the kind argued.
8. Further, in relation to the submission that stress related to the scheduling resulted in self-harm and the need for hospitalisation, although the evidence established that the defendant did engage in self-harm which led to hospitalisation, the defendant did not attribute the underlying stress to the conditions related to scheduling - again, as the defendant fairly accepted.
9. Rather, I accept, as the State submitted, that when the defendant was admitted to hospital due to self-harm, the stressors identified did not relate to any stress generated by scheduling required under the existing ESO but to other matters. For example, in the Risk Assessment Report dated 17 March 2022, the following was recorded: "Since around June 2021 the frequency of his self-harming behaviour resulting in hospital admission/presentation noticeably escalated. The issues contributing to the increased frequency of his self-harm at that time were considered to primarily relate to a reduction in the hours of funded support that had been provided to him and difficulties with a new co-resident."
10. It follows that I do not accept that there is any material stress, related to any conditions linked to scheduling, of the kind argued by the defendant nor, if there were, that it would posit an alteration to conditions 6-8 proposed by the State.
11. Finally, it was argued that a more tailored form of condition should be imposed because, on what the State proposed, it was duplicative of the services provided by NDIS. In this respect, the defendant argued that the scheduling was unnecessary because the defendant is "subject to line-of sight supervision by his NDIS case workers".
12. I do not accept, as the defendant has argued, that scheduling is unnecessary because, in effect, it is duplicative of the "line-of-sight" supervision given by his NDIS case workers.
13. The evidence relating to the supervision - and its type - by NDIS case workers is limited, and in my view is principally directed to a different end (being, broadly, the defendant's rehabilitation via "Supported Independent Living", treatment with a behaviour clinician and "Assessment Recommendation Therapy" and the like). The current NDIS care plan identifies funding for "Supported Independent Living" and individual support hours that reduce over a 12 month period. Thus, for the last 6 months of the care plan there are 40 hours "of individual support hours each week". Plainly, therefore, on this plan, there are periods of time when there will be no supervision (or support) by the defendant's NDIS case workers. Furthermore, it does not form part of this care plan (or the earlier one) that, at any point, there is a requirement for "line-of-sight" supervision given by his NDIS case workers. I am thus not satisfied that the condition relating to scheduling would be unnecessary or inappropriate by reason of the fact that it was substantially duplicative of supervision of the defendant by NDIS case workers.
14. The reference in the Risk Management Report dated 7 March 2022, to which my attention was drawn by the defendant, does not dictate a different finding. There it was noted, at least initially, that a direction was made that the defendant be the subject of line of sight supervision by his care providers. However, the report goes on to note that this direction was "removed" - on the basis, the State submitted, that the direction that was made on 24 August 2018, was later revoked (on 24 August 2021) due to concern that this was not a condition of the ESO. I am thus satisfied that there is no direction in place requiring his care providers to provide line of sight supervision and, further, I am satisfied that this does not invariably occur.
15. In my view, conditions 6-8 are reasonable and appropriate and would assist in mitigating his risk of reoffending when assessing his proposed activities, as well as minimising the risk of impulsive behaviour. More specifically, the conditions would also, as the State has argued, enable the defendant's DSO to assess the proposed activities having regard to the defendant's risk factors, the nature of the activity and the ability of the activity to be electronically monitored. It would also enhance compliance by the defendant, in my view, monitoring of compliance with external service providers.

Condition 24

1. The State has a proposed condition that relates to non-association with children. The defendant does not oppose the making of that condition but seeks a specific exclusion to enable him to have contact with his brother, without the need to secure the written permission of a DSO albeit that the contact would be in the company of the defendant's father or an NDIS worker.
2. Before dealing with the arguments advanced by the defendant to support the condition proposed by him, two matters should be noted. The first is that condition 24, in the form proposed by the State, is in materially the same form as the one ordered by Fullerton J on 2 February 2018 (condition 27 in those orders). Secondly, by way of emphasis, the disputation relates, at least in substance, to whether there should be a requirement for written permission by a DSO for the contact to occur (the State's condition), or not.
3. The defendant's argument is that condition 24 should be subject to the defendant's proposed condition (relating to his brother) because (a) the defendant's brother, although a minor, is of an age that is outside the age range of the defendant's "victims" and also outside the range of ages that the defendant has self-reported interest in (T20.30-21.7); and (b) having the interactions with his brother would assist the defendant in dealing with issues of loneliness.
4. I accept, of course, that familial interactions would assist the defendant, and therefore ought not be discouraged. Nevertheless, I do not accept that the condition proposed by the State unduly restricts those interactions or places any substantive impediments to them occurring. To be clear, I do not accept that the first limb of the defendant's argument justifies, separately, or in combination with the second limb, adopting the defendant's proposed supplementary condition.
5. In my view the familial contact can reasonably and appropriately take place under condition 24 proposed by the State and, further, that that proposed condition properly accommodates the risks that I have earlier found to be present.

Orders

1. Accordingly, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ('the Act'): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; 2. Directing the defendant to attend those examinations. 1. An order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order commencing on 31 July 2022 ('the interim supervision order') for a period of 28 days from that date. 2. An order pursuant to s 11 of the Act directing the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule attached to the Summons filed 6 June 2022.

Schedule of Conditions of Supervision DK (1465369, pdf)

Amendments 26 July 2022 - Schedule replaced 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: 26 July 2022