State of New South Wales v Feeney

Supreme Court of NSW|2019-11-04|Before: Johnson J, Campbell J

Judgment

JOHNSON J: By Amended Summons filed in Court on 4 November 2019, the Plaintiff, State of New South Wales, seeks orders with respect to the Defendant, Steven Feeney, under the Crimes (High Risk Offenders) Act 2006 ("HRO Act").
The Plaintiff seeks an order that the Defendant be subject to an extended supervision order ("ESO") upon a range of conditions, for a period of five years.

Background to the Present Hearing

On 24 September 2019, following a preliminary hearing, Campbell J made orders under the HRO Act for psychiatric and psychological examination of the Plaintiff by court-appointed experts together with fixing an interim supervision order ("ISO") upon conditions: State of New South Wales v Feeney (Preliminary) [2019] NSWSC 1252.
The ISO has not taken effect as the Defendant has remained in custody serving a sentence of imprisonment with parole being granted to commence no earlier than 25 November 2019.

The Final Hearing

The hearing of the Plaintiff's application for final relief proceeded before me on 4 November 2019. Ms New of counsel appeared for the Plaintiff and Mr Anderson of counsel appeared for the Defendant.
The Plaintiff tendered, without objection, two folders of material (Exhibit A). Documents of particular significance within Exhibit A were the following: 1. expert report of Dr Sathish Dayalan, forensic psychiatrist, dated 25 October 2019; 2. expert report of Patrick Sheehan, psychologist, dated 25 October 2019; 3. risk assessment report of Dr Richard Parker, Senior Psychologist, Serious Offenders Assessment Unit, dated 15 May 2019; 4. affidavit of Dr Richard Parker dated 28 October 2019; 5. risk management report of Louise Robinson, Senior Community Corrections Officer, dated 3 July 2019; 6. affidavits of Kelli Grabham, High Risk Offender Applications and Operational Governance Officer, dated 6 September 2019 and 31 October 2019; 7. affidavits of Johanna Fisher, solicitor, dated 16 August 2019, 6 September 2019 and 24 October 2019; and 8. a schedule summarising relevant OIMS case notes concerning the Defendant for the period 11 July 2014 to 1 October 2019.
Also included in Exhibit A were sentencing remarks concerning the Defendant, a criminal history and other reports and documents pertinent to the present application.
Dr Dayalan and Mr Sheehan each examined the Defendant and prepared reports as court-appointed experts as a result of the order made by Campbell J on 24 September 2019.
Ms Grabham gave short oral evidence concerning aspects of the proposed conditions of an ESO (T6-11, 4 November 2019).
The Defendant did not give evidence or call any witness at the final hearing.
The Court was assisted by helpful written submissions furnished by Ms New and Mr Anderson in advance of the final hearing. In light of the evidence relied upon by the Plaintiff, Mr Anderson conceded that the formal prerequisites for the making of an ESO had been satisfied in this case, including an acceptance that the Court will be satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.
The Defendant did not oppose the making of an ESO, with a remaining controversy concerning the duration of such an order with the Plaintiff submitting that an order for five years should be made and the Defendant submitting that a period of three years was appropriate in this case. In addition, there was controversy concerning certain proposed conditions.
Counsel addressed orally with respect to the duration of an ESO and the contested conditions (T13-22, 4 November 2019).
The Defendant's approach to the application does not relieve the Court from the task of determining whether an ESO should be ordered given the requirement under the HRO Act for the Court to be so satisfied before an order is made. That said, the practical approach of counsel for the Defendant assisted the Court in making relevant statutory findings.

Some Statutory Issues

I record the Court's satisfaction, supported by concessions made for the Defendant, that the following prerequisites under the HRO Act are satisfied in this case: 1. the Defendant is an offender who has served a sentence of imprisonment for a serious offence: s.5B(a); 2. at the time when the Plaintiff made the present application by filing a Summons on 16 August 2019, the Defendant was a supervised offender for the purposes of s.5B(b); and 3. the application by the Plaintiff for an ESO was made in accordance with s.5I.
The remaining question is whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO: s.5B(d).
The primary object of the HRO Act is to ensure the safety and protection of the community: s.3(1). When determining whether an ESO should be granted, the safety of the community must be the paramount consideration: s.9(2).
A further object of the HRO Act is to encourage offenders to undertake rehabilitation: s.3(2).
In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, the Court of Appeal observed (at [51]) that determination whether a risk is unacceptable involves an evaluative task. The Court held (at [61]) that the evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection.
The Court must be satisfied "to a high degree of probability" that the Defendant poses an "unacceptable risk" of committing another serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard: Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21].
Section 5D HRO Act makes clear that the Court is not required to determine that the risk of the Defendant committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence. Accordingly, an unacceptable risk of committing a serious offence can be a risk which is less than 50%: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [21].
The right of an offender to personal liberty at the expiry of a sentence of imprisonment being served is not a relevant consideration in the determination of whether the person poses an "unacceptable risk" for the purpose of ordering an ESO: Lynn v State of New South Wales at [4].
Principles concerning the duration of an ESO and the setting of conditions will be mentioned later in this judgment (at [103]-[110]).

The Defendant and his Offending History

The Defendant is a 54-year old Aboriginal man with an extensive criminal history. He has been convicted of five serious sex offences on three separate occasions involving female children and adults. The Defendant was intoxicated by alcohol or the use of methamphetamine at the time of the offences. He has served significant sentences of imprisonment for each of these offences.
The balance of the Defendant's criminal record includes a range of property offences (mostly for break, enter and steal offences), none of which amount to "serious violent offences" for the purpose of s.5A HRO Act.
Since the Defendant was 22 years of age, he has been in custody for 21 years and in the community for 10 years. He is said to be institutionalised. He has been assessed as functioning in a range of intellectual disability. The Defendant was in the youth centre at eight years of age and has since disclosed that he was sexually abused as a child. The Defendant never completed school and has led an itinerant lifestyle. He has limited literacy and has spent the majority of his life unemployed.
At present, the Defendant is in custody serving a sentence of imprisonment for six years for aggravated sexual intercourse with a 12-year old girl. This sentence will expire by effluxion of time on 17 December 2019.
The Defendant was granted parole by the State Parole Authority to commence no earlier than 25 November 2019 and no later than 9 December 2019, with this timeframe being intended to allow him to complete the Self-Regulation Program: Sex Offending ("SRP:SO"), which he commenced on 24 October 2018. The Defendant is reported to be participating effectively in the SRP:SO which is expected to be concluded later this month. This is the Defendant's first sex offender program inside or outside custody. First Serious Sex Offence in 1995
On 30 March 1995, the Defendant was arrested and charged with three counts of aggravated indecent assault, enter enclosed lands, and break, enter and commit a felony. On 27 April 1995, the Defendant pleaded guilty at the Albury District Court to three counts of aggravated indecent assault and break and enter and commit a felony, with an additional five property and theft offences being taken into account on a Form 1 schedule. The aggravated indecent assaults were offences under s.61M Crimes Act 1900 and are "serious sex offences": s.5(1)(d) HRO Act.
The Agreed Facts for the aggravated indecent assault offences revealed that, on 9 March 1995, the Defendant was at a friend's residence. Three young girls lived there, aged eight, six and five years. Whilst intoxicated, the Defendant entered the bedroom where the three girls slept. The Defendant pulled down the pants of two of the children (the victims aged eight and five years) and he touched the vagina of the third child (aged six years). The victims woke up and the Defendant left the house. The following day, the victims complained to their parents and the matter was reported to police.
The Defendant pleaded guilty as well to a separate offence of break and enter and commit a felony (assault occasioning actual bodily harm), an offence under s.112 Crimes Act 1900. The facts for that offence revealed that late in the evening of 2 February 1995, the Defendant entered a home at Albury. The victim, a 27-year old woman, was asleep on a mattress in the lounge room. The victim awoke to find the Defendant standing naked over her. The victim described the Defendant telling her "I want to tie you up". There was a struggle and the Defendant held the victim down and bit her left nipple. The victim kicked the Defendant in the groin and escaped from the house, running straight to the nearest police station to report the matter. The victim was treated for bruising at Albury Base Hospital.
The circumstances in which the s.112 offence was committed could have amounted to a separate offence of aggravated indecent assault and a "serious sex offence" under s.5(1)(c1) HRO Act.
On 28 April 1995, the Defendant was sentenced by his Honour Judge Mahoney QC at the Albury District Court to a term of five years' imprisonment with a non-parole period of one year commencing on 28 March 1995 for the s.112 offence, and to fixed terms of imprisonment for six months for the aggravated indecent assault offences, with all sentences to run concurrently.
On 27 March 1996, the Defendant was released on parole. On 7 May 1996, the Defendant's parole was revoked as a result of the following: 1. a parole report noted that the Defendant, from 19 April 1996, failed to report and had left the rehabilitation/residential centre where he was staying and had not provided a forwarding address to his parole officer; and 2. on 29 April 1996, police called the parole officer to confirm that the Defendant was staying with relatives at Nelson Bay and that the Defendant was required for questioning by police in relation to the sexual assault of a woman at knife point.
On 9 May 1996, the Defendant was returned to custody. Second Serious Sex Offence in 1996
On 16 June 1996, the Defendant was charged with aggravated sexual intercourse under s.61J(1) Crimes Act 1900 and other offences arising from the same incident.
On 17 April 1997, the Defendant was indicted for one count of aggravated sexual intercourse, the circumstances of aggravation being that at the time of the sexual offence, the Defendant threatened to inflict actual bodily harm by means of a knife under s.61J(1) Crimes Act 1900. This is a "serious sex offence": s.5(1)(a)(i) and (ii) HRO Act.
On 28 July 1997, the Defendant pleaded guilty to this offence with other offences to be taken into account on a Form 1. The Agreed Facts revealed that, on 28 April 1996, the Defendant entered the home of the victim (an adult woman) and her husband. The victim was asleep in her bed with her husband asleep in another room. The victim awoke to the smell of alcohol emanating from the Defendant. He rolled on top of the victim and held a knife to her throat. The Defendant had non-consensual penile/vaginal intercourse with the victim and ejaculated in her during the assault. The victim immediately reported the matter to police.
On 11 December 1997, the Defendant was sentenced for the s.61J(1) offence at the Newcastle District Court by Acting Judge Nader QC to imprisonment for eight years with a non-parole period of six years commencing on 11 December 1997 and expiring on 10 December 2003, with a balance of term of two years expiring on 10 December 2005. The sentencing Judge took into account several property and theft offences in passing sentence for this offence.
The Defendant served his sentence in full and was released unconditionally into the community upon the conclusion of the sentence on 10 December 2005.
On 11 December 2005, the Defendant committed an offence of break, enter and commit a serious indictable offence, for which he was sentenced on 8 August 2006 at the Newcastle District Court to a term of imprisonment for three years with a non-parole period of two years and three months commencing on 11 December 2005 and expiring on 10 March 2008.
Once again, the Defendant served this sentence in full and was released unconditionally on 10 December 2008. Third Serious Sex Offence in 2013
On 18 December 2013, the Defendant was charged with aggravated sexual intercourse with a 12-year old girl, the circumstances of aggravation being that the victim was under the authority of the Defendant. This offence under s.66C(2) Crimes Act 1900 is a "serious sex offence": s.5(1)(a)(i) HRO Act.
On 26 June 2014, the Defendant pleaded guilty to this charge.
The Defendant committed this offence whilst on a camping trip in late 2013. The Defendant took the victim and her sister for a walk. On that walk and when alone with the victim, the Defendant removed his shorts and exposed his penis. The Defendant used his hands to force the victim down towards his penis and forced his penis into her mouth. The girl complained to her mother the following day, but no action was taken. In December 2013, the victim sent a Facebook message to a relative who reported the matter to police.
On 4 February 2015, the Defendant was sentenced by his Honour Judge Whitford SC at the Newcastle District Court to a total term of six years' imprisonment with a non-parole period of four years and six months commencing on 18 December 2013 and expiring on 17 June 2018 with a balance of term of one year and six months expiring on 17 December 2019.
It is this sentence which remains on foot and will expire by effluxion of time on 17 December 2019.

Consideration of Matters Referred to in s.9(3) HRO Act

Section 9(3) HRO Act requires the Court to have regard to certain specified matters in an application for an ESO together with any other matters which the Court considers relevant. It is appropriate to consider matters relevant to the Defendant under the subheadings contained in this provision. Section 9(3)(b), (c) and (d) - Expert Assessments of Risk
As mentioned earlier, Dr Dayalan and Mr Sheehan examined the Defendant recently and prepared reports as court-appointed experts. Dr Parker prepared a risk assessment report dated 15 May 2019 with respect to the Defendant.
Dr Dayalan and Mr Sheehan reached substantially similar opinions concerning the Defendant. Both observed that the circumstances of the Defendant's offences which related to his risk of recidivism are: 1. the Defendant's offences against children were "impulsive and opportunistic acts in the context of intoxication with substances" (Dayalan report, page 12; Sheehan report, paragraphs 23 and 62); 2. the Defendant probably does not have a diagnosis of sexual paraphilia, although Dr Dayalan did not rule it out (Dayalan report, page 12; Sheehan report, paragraphs 23 and 56); 3. the Defendant has alcohol and stimulant-use disorder (in remission in custody) although the Defendant is vulnerable to relapse (Dayalan report, pages 13, 20; Sheehan report, paragraph 62); and 4. the Defendant demonstrated symptoms of post-traumatic stress disorder, but did not meet the diagnostic criteria for that condition (Dayalan report, page 15; Sheehan report, paragraph 19).
Mr Sheehan and Dr Parker are of the view that the Defendant's sexual offending is an expression of his antisocial personality disorder which means he has acted on impulse without consideration of the consequences (Sheehan report, paragraph 62; Parker report, paragraph 66).
Dr Dayalan applied the STATIC-99R actuarial risk assessment instrument to the Defendant with an overall score which placed the Defendant well above average risk level.
Dr Dayalan applied the Risk of Sexual Violence Protocol ("RSVP") dynamic risk assessment instrument and concluded that the Defendant posed a moderate-to-high risk of serious harm to others due to his sexual offending and a moderate-to-high risk of non-sexual offending.
Dr Dayalan recommended that a formal assessment of the Defendant's intellectual functioning be carried out by a psychologist who is accredited in the use of specific instruments used to assess intelligence. Acknowledging the limitation of not having formally assessed the Defendant's intellectual functioning, but based on his presentation and history, Dr Dayalan did not support the view that the Defendant has an intellectual disability.
Dr Dayalan considered that the Defendant's risk of committing a further serious sex offence "would be best managed in the community under an extended supervision order". Dr Dayalan considered that an ESO would not only allow for intensive monitoring and supervision in the community (which he considered was warranted in the Defendant's management of risk), but would also assist the Defendant in accessing support services to manage his risk factors associated with reoffending.
Dr Dayalan made a number of comments and recommendations with respect to conditions and the duration of an ESO to which I will return later in this judgment.
Mr Sheehan applied the STATIC-99R actuarial risk assessment to the Defendant and concluded that he was in the high or well above average risk category relative to other male sex offenders in the same population. Application of the RSVP instrument to the Defendant's dynamic risk factors led Mr Sheehan to conclude that the overall totality of evidence indicated that the Defendant's risk of committing a sex offence was at the upper end of the risk spectrum and in the higher risk category relative to other male sexual offenders. Given that the Defendant has accumulated several serious sexual offences and that his sexual offending has involved aggravating features such as being against children, breaking into homes or using a weapon, Mr Sheehan considered that the type of offence that he was at risk of committing would include a serious sex offence.
A helpful summary of Mr Sheehan's opinion concerning the making of an ESO appeared in the Executive Summary to his report which stated (page 5): "Mr Feeney is a 54-year old man with a mild intellectual impairment whose risk of sexually reoffending is estimated to be in the high risk category relative to other men who have sexually offended. The evidence suggests that he experienced a disruptive and abusive childhood that would be outside the expectations of the mainstream community. Accordingly he has developed attitudes and behaviours that are also out of keeping with mainstream community expectations. His antisocial personality orientation has been reflected in his lifestyle, which has been generally unstable, irresponsible and spontaneous, involving persistent criminality and exploitative behaviour. He has tended towards transient unstructured environments where substance abuse is normative and boundaries are diminished. Mr Feeney has now been sentenced for serious sex offences on three occasions, with his offending occurring between 1995 and 2013 against females ranging in age from under 10 years to adulthood. He has offended against children under his care as well as strangers. He has a long history of disengagement from rehabilitation and supervision, which is associated with past release failures, including committing serious sexual offences whilst subject to supervision. Mr Feeney is now approaching completion of an intensive sex offender treatment program and whilst he remains limited in his ability to meaningfully discuss his sexual offences, his recent engagement with therapeutic staff, NDIS and parole give some reason for optimism that he is engaged in the change process. He is also approaching sentence expiry on 18 December 2019, with negligible time to receive community supervision as he transitions from six years in custody. In my view the evidence does not support the view that Mr Feeney would be independently capable of managing himself in a way that could be seen to protect against recreating the type of circumstances associated with his past reoffending. In the absence of an ESO there remains an appreciable risk of sexual offences that would meet the criteria for a serious sex offence as defined in the Crimes (High Risk Offenders) Act, 2006."
I will return later to Mr Sheehan's report with respect to conditions and duration of an ESO.
It is sufficient to say at this point that the reports of Mr Sheehan and Dr Dayalan provide a cogent foundation for a conclusion that an ESO should be made in the Defendant's case.
Dr Parker interviewed the Defendant on 8 May 2019 for the purpose of the risk assessment report prepared shortly thereafter. Dr Parker referred to the Defendant's childhood trauma of being sexually abused by a family member and the role that this event had played in the Defendant's subsequent development, this being a factor also referred to by Dr Dayalan and Mr Sheehan. The Defendant had abused alcohol as a coping mechanism, with Dr Parker noting his later heavy use of methamphetamine so that substance abuse was a factor in the commission of the Defendant's sex offences.
Dr Parker explained several empirical theories with respect to rapists and considered that the following features were present in the Defendant: 1. "entitlement" - the notion that a person's needs trump any concern for others - Dr Parker considered that this was a major issue for the Defendant; 2. "dangerous world" - the notion that a person must act aggressively to defend themselves against perceived attacks from others - Dr Parker considered this was also a major issue for the Defendant; 3. "male sex drive is uncontrollable" - Dr Parker considered that this was an issue when the Defendant was using drugs or alcohol; and 4. "self-regulation" - this theory refers to the inability of a person to delay gratification of an immediate desire in favour of a long-term outcome (impulsivity) - Dr Parker was equivocal as to whether this was present for the Defendant and suggested it may be linked to his issues of entitlement.
Dr Parker's key opinion with respect to the Defendant's risk was expressed in the following way: ""While [the Defendant's] sexual offending is more serious than his non-sexual offending, it is best conceived as part of a general pattern of antisocial behaviour, rather than being qualitatively different from his other offending. The drivers for this pattern of behaviour are a learned pattern of beliefs that form a criminal lifestyle (Walters, 2002). As part of this lifestyle, Mr Feeney will reject the norms and laws of society in favour of what he wants to do. His chronic substance abuse lowers the restraints against criminal behaviour, while simultaneously fuelling the need for acts of dishonesty."
Dr Parker considered the following factors would significantly increase the Defendant's risk of sexual reoffending - a return to substance abuse, access to children, an itinerant lifestyle and his "entrenched antisocial attitudes". Section 9(3)(c) - Other Reports Concerning the Likelihood of the Defendant Committing a Further Serious Offence
A number of psychologists and psychiatrists have examined the Defendant in past years on issues bearing on the likelihood of him committing a further serious offence. These earlier reports are of assistance and each of them was available to Dr Dayalan, Mr Sheehan and Dr Parker for the purpose of preparation of their recent reports.
Ms Barbara Aldrich, psychologist, provided a court report dated 8 December 1997 for the sentencing hearing of the Defendant's second serious sex offence. Ms Aldrich diagnosed the Defendant with alcohol dependence and post-traumatic stress disorder. She noted that the Defendant had a very disrupted life with respect to places of residence and schooling. Ms Aldrich expressed the opinion that the Defendant was "thoroughly institutionalised".
It was submitted for the Plaintiff (correctly) that this report demonstrates the need for the Defendant to be offered an opportunity for supported integration into society and the need for intense supervision to protect the community from his risks of reoffending.
A report dated 23 August 2004, was prepared by Mr Graham Rendell, Acting Therapeutic Manager, Forensic Psychological Services ("FPS") for the assistance of the Parole Board. Mr Rendell found that the Defendant lacked empathy and had intimacy deficits and "held significant attitudes supportive of sexual deviance and sexual offending". Mr Rendell stressed the need for the Defendant to participate in the CUBIT program, a custody-based sex offender program. He observed that the Defendant "must be viewed as representing as great a risk of committing criminal and sexual offences as when he offended in the [second serious offence]".
Dr Olav Nielssen, psychiatrist, furnished a report dated 31 January 2015 which was tendered in the defence case on sentence before his Honour Judge Whitford SC. Dr Nielssen diagnosed the Defendant with substance-abuse disorder and considered that his risk of sexual recidivism would be reduced if his substance-use disorder was addressed. Dr Nielssen observed that the rate of recidivism for sexual offences declines with age, probably accelerated by poor health, and that this was pertinent given the Defendant's age. Dr Nielssen emphasised the importance of the Defendant undertaking a sex offenders program. Section 9(3)(e) - Rehabilitation and Treatment Programs Participated in by the Defendant
On 20 August 2001, the Defendant was offered the opportunity to participate in CUBIT, but he declined to undertake the program.
In May 2002, the Defendant maintained his refusal to participate in CUBIT. On 17 May 2002, Mr Vincent Cook, psychologist, stated that he had spoken to the Defendant about his unwillingness to participate in the CUBIT program with the Defendant stating he "would prefer to finish his full sentence" which was to expire in 2005. Mr Cook observed that the Defendant "has a considerable probability of encountering a high risk factor whilst outside of the confines" of custody.
In 2007, the Defendant was once again offered the opportunity to participate in CUBIT to which he consented. However, because of the Defendant's low cognitive functioning, it was determined that CUBIT was not the appropriate program for him.
As noted earlier, importantly but belatedly, the Defendant commenced the SRP:SO program on 24 October 2018. He is expected to finish this program by 25 November 2019. Mr Sheehan provided a helpful summary of the purpose and benefits of this program (Sheehan report, paragraph 33): "The SRP:SO is a prison based residential therapy program for men who have sexually abused adults and/or children and who have an intellectual disability or other cognitive impairment and have limited adaptive skills in the gaol environment and who need both intensive treatment and a controlled safe environment. The Self-regulation Program is offered to moderate and high risk/needs sexual offenders and is facilitated within the CUBIT program located in the Metropolitan Special Program Centre (MSPC) at the Long Bay Correctional Centre. The programme is designed to help participants work on changing the thinking, attitudes and feelings which led to their offending behaviour. As far as treatment programs go, this is the most intensive format of any program that I am aware of."
The SRP:SO progress notes for the period October 2018 to February 2019, and the updated OIMS case notes, indicate that the Defendant is participating in group sessions and addressing the group on matters personal to him. The progress notes dated 21 February 2019 indicated that the Defendant initially showed a poor understanding of risk factors beyond drug and alcohol use. However, he has demonstrated a better understanding of risk factors as the program progressed with the Defendant indicating a level of understanding and insight into risk factors.
The fact that the Defendant is undertaking the SRP:SO program is of considerable importance. For the first time, the Defendant is participating in a sex offender program which will assist to lay a foundation for community-based steps which will take place if an ESO is ordered at the expiration of his sentence. It is regrettable that it has taken this long for the Defendant to participate in such a program. However, his involvement in this program is a necessary first step in a course of action to follow in the community.
It must be kept in mind that Dr Dayalan and Mr Sheehan have expressed the opinion that, notwithstanding the Defendant's current participation in this program, he still poses a high risk of serious sex offending. These opinions are understandable against the background of the Defendant's long history of recidivism in the area of sex offending.
It is necessary to keep in mind that the Defendant is participating in this program in a custodial setting where he has no involvement with females or the wider community, and is in an otherwise structured setting. What lies ahead in the community will involve significant challenges for the Defendant, all of which underlines the necessity for an ESO to be put in place.
The Defendant has not participated in any drug rehabilitation program. A custody-based drug rehabilitation program ("EQUIPS") was offered to the Defendant whilst in custody, but he was not placed in the course. This is a further aspect that will require attention as part of an ESO.
Institutional misconduct charges indicate that the Defendant may have been using drugs in custody in that, in March 2017 and March 2018, he refused to provide a drug sample.
Each of Dr Dayalan, Mr Sheehan and Dr Parker has stated that the Defendant is highly vulnerable to relapse to drug use and this drug use underpins his serious sex offending. This is a most important issue to be addressed as part of an ESO. Section 9(3)(d1) and (e1) - Reports Prepared by Corrective Services NSW Concerning Management of the Defendant in the Community and Options to Reduce Likelihood of the Defendant Reoffending
Pre-release reports prepared by Community Corrections officers in June 2018 and September 2019 noted that the Defendant's application to reside at an integrated support centre had been rejected based upon poor response to staff and the Defendant's failure to provide urine samples, but that referral to the Community Offender Support Program ("COSP") was pending.
Counsel for the Plaintiff informed the Court that, since the preliminary hearing, COSP has confirmed that it would take the Defendant upon his release to an ESO.
The risk management report dated 3 July 2019 of Louise Robinson identified risk factors relevant to the Defendant and tailored a management plan directed to those risks. The proposal for management of the Defendant on an ESO included the following steps: 1. a referral to FPS; 2. weekly face-to-face meetings at his approved address; 3. during the initial interview, the Defendant will be provided with assistance and support to follow up his NDIS application to ensure that support is made available to him quickly on release and assistance will be provided where, because of his limited literacy, he requires support; 4. if weekly schedules are a condition of his ESO, the Departmental Supervising Officer ("DSO") will review them in the Defendant's presence and allow the Defendant an opportunity to discuss the identified activities, the positive and negative effects of dealing with release and future planning will occur - the Defendant will be given support and assistance in preparing his proposed planned activities; 5. the ESO team is alive to the difficulties which re-integration will pose for the Defendant noting his literacy limitations and his institutionalisation - the challenges which the initial stage of post-release life will pose for the Defendant was recognised; 6. contact with children will be monitored through visual observations, use of electronic monitoring, intelligence checks, schedules and contact with consenting third parties. Section 9(3)(e2), (f) and (g) - Likelihood of Compliance with Obligations Under the ESO and the Level of the Defendant's Compliance with Parole Conditions and Obligations Under Child Protection Legislation
As noted earlier, the Defendant breached his parole for the first serious sex offence and thereafter has served his sentences of imprisonment in full. There has been no period of parole supervision since 1995.
Since October 2018, the Defendant has been attending the SRP:SO program regularly in custody, with this indicating a commitment to address his treatment needs.
Given the recent nature of the Defendant's undertaking of a sex offender program in custody against the background of a long history of non-involvement on his part in rehabilitation programs, a guarded assessment is appropriate with respect to the Defendant's prospects of compliance with obligations under an ESO.
That said, the evidence indicates a receptiveness on the part of the Defendant at this time to undertake constructive steps in the community and there is no present foundation for concluding that the Defendant is unlikely to comply with obligations under an ESO. Section 9(3)(h) and (h1) - The Defendant's Criminal History and Views of Sentencing Courts
The facts of the Defendant's serious sex offences were outlined earlier in this judgment.
In sentencing the Defendant for the first serious sex offence in 1995, his Honour Judge Mahoney QC described the offence against the woman whom he bit as "an extremely serious offence". The sentencing Judge said that the Defendant's offences against the young girls was "the sort of conduct which strikes at the very heart of proper social and physical development of any young girl and it is the sort of conduct that no civilised society should tolerate". His Honour observed that the Defendant was "in the grip of substance abuse, being alcohol and marijuana" at the time of the offences.
In sentencing the Defendant for the second serious sex offence in 1996, his Honour Acting Judge Nader QC observed that the Defendant was intoxicated at the time of the offence. His Honour said that "the public interest stridently demands that member of the public be protected from criminals doing the kind of thing" that the Defendant did. With respect to rehabilitative measures concerning the Defendant, his Honour said "The signs in this case are that one could not be optimistic about rehabilitation".
In the course of sentencing the Defendant for the third serious sex offence in 2015, his Honour Judge Whitford SC observed that "the community has a legitimate interest in the denunciation and punishment of conduct of the kind here at issue". His Honour said that it was "not possible to make any sensible finding about the defendant's prospects of rehabilitation", but his Honour did "not think that limitation extends so far as to compel a positive finding of dangerous propensity". Section 9(2) - The Safety of the Community
All of the s.9(3) factors considered so far relate to the paramount consideration under s.9(2) HRO Act being the safety of the community.
The Defendant has a history of recidivism with respect to serious sex offences involving female victims of different ages. It is only since October 2018 that the Defendant has been able to undertake a custodial sex offender program which is progressing well, but is not yet complete.
The reports of Dr Dayalan, Mr Sheehan and Dr Parker provide a cogent foundation for contemporaneous concerns with respect to the safety of the community if the Defendant was to be at large in the community without supervision.

Has the Plaintiff Established that an ESO Should be Made in this Case?

I have already expressed my satisfaction that the Defendant falls within each of s.5B(a), (b) and (c) HRO Act (see [15] above).
The remaining question is whether the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, applying the principles set out at [16]-[22] above.
I accept the Plaintiff's submission that the nature of the Defendant's risk is that he will opportunistically and indiscriminately abuse young girls with there also being a risk that he may violently offend against any such young girl he sexually assaults. The degree of probability that the Defendant poses an unacceptable risk in this respect depends upon how he manages his reintegration within the community. It is necessary for the Court to consider the degree of probability of the unacceptable risk in the absence of supervision. The presence of identified dynamic risk factors evidences a high degree of probability of a further serious sex offence being committed in the absence of supervision.
I accept the Plaintiff's submission that the Defendant's institutionalisation and his limited intellectual functioning provide a fragile base from which the Defendant will be reintegrating into the community. Without appropriate support, there are various scenarios that could elevate the Defendant's stress and risk of his committing further serious offences. The evidence suggests that if the Defendant encounters difficulty in coping, he will return to use of illicit substances and an itinerant lifestyle which will significantly increase the risk of further serious sex offences being committed.
I accept the Plaintiff's submission that supervision is a critical way to monitor the potential re-emergence of the Defendant's dynamic risk factors and that an ESO would be protective of the community and encourage the Defendant's rehabilitation, with both these steps addressing objects of the HRO Act.
Having considered the evidence adduced on this application, I am satisfied to a high degree of probability that the Defendant does pose an unacceptable risk of committing another serious sex offence if not kept under supervision under an ESO. As noted earlier, counsel for the Defendant did not resist such a finding having regard to the evidence relied upon by the Plaintiff. That approach was understandable in all the circumstances of the case.

Duration and Conditions of the ESO Duration of ESO

It was submitted for the Plaintiff that the ESO should operate for a period of five years. Counsel for the Defendant submitted that a period of three years was appropriate in the circumstances of the case.
Mr Sheehan expressed the opinion that, given the chronicity of the Defendant's risk issues, an ESO "at the upper end of the five year range would be realistic". Dr Dayalan recommended an ESO for a period of three years with the prospect of an application being made for a further ESO if the Defendant had not made sufficient progress in the three-year period.
I have considered the submissions made by the parties with respect to the length of an ESO in this case. I do not think that the Defendant's submission that an ESO for five years would be only one year less than the actual sentence imposed on the Defendant in 2015 bears upon the present application. The function being exercised by the Court is a protective one, with the protection of the community being the paramount consideration and the rehabilitation of the Defendant being a secondary statutory objective. Principles which apply to the setting of a sentence of imprisonment are not relevant to the Court's function in determining the duration of an ESO under the HRO Act: State of New South Wales v Tillman [2008] NSWSC 1293 at [62]-[63]. Further, there is an incentive for the Defendant to comply with the conditions of an ESO given the flexibility which is available to wind back conditions as the Defendant demonstrates a capacity for a lawful life in the community: State of New South Wales v Tillman at [64].
I keep in mind that the Defendant, now aged 54 years, has been described as institutionalised in the expert reports. For the first time, the Defendant is undertaking a custodial sex offender program which will shortly be completed. He will thereafter be at liberty in the community subject to conditions against the background of a long period in custody.
I consider that Mr Sheehan's opinion concerning the duration of an ESO is to be preferred. An extended period is appropriate for the implementation of conditions which, with time, will be modified as the Defendant demonstrates a capacity to adjust to a lawful and orderly life. I do not think that Dr Dayalan's approach is correct in this case. A period of three years is insufficient against the background of the Defendant's history of recidivism and fractured lifestyle which will, on any reasonable view, take a considerable time to adjust.
I am satisfied that the ESO should operate for a period of five years. Conditions of ESO
Section 11 HRO Act empowers the Court to impose conditions upon an ESO as the Court considers appropriate. Section 11(1) does not require that a proposed condition in an ESO must have a specific demonstrated link to past offending. Rather, s.11 requires that the Court be satisfied, having regard to the scope, purpose and objects of the HRO Act, that it is appropriate to impose a particular condition so as to address the risk of future reoffending of the kind that formed the basis for the ESO: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [53]-[54].
The Court is to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective, with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at [129]-[130], [149].
With respect to conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached. A proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v Ali [2010] NSWSC 1045 at [88].
The conditions proposed by the Plaintiff in the Summons filed on 16 August 2019 have been amended in a number of respects following discussions between counsel appearing for the Plaintiff and the Defendant. I agree that the conditions which are subject to agreement between the parties are appropriate in the circumstances of this case having regard to s.11 HRO Act.
There are remaining controversies with respect to a limited number of conditions proposed by the Plaintiff. Submissions were made by counsel by reference to these proposed conditions. It is appropriate to consider these conditions under several headings. Conditions 2, 3 and 4 - Description of Persons to whom the Defendant is to Report and Follow Reasonable Directions as Part of the ESO
The Plaintiff proposes conditions in the following terms: "2. The defendant must report to the DSO or any other person supervising him as directed by the DSO. 3. The defendant must follow all reasonable directions by his DSO or any other person supervising him necessary for the administration of the ESO. 4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him."
The Defendant proposes modification of these proposed conditions so that, by way of example, Condition 2 would provide: "The defendant must report to the DSO, being an employee of CSNSW, or any other person being an employee of CSNSW."
The Defendant proposes corresponding amendments to Conditions 3 and 4 so as to provide a further description of the category of persons to whom the Defendant must report and whose reasonable directions he must follow including with respect to electronic monitoring equipment.
Mr Anderson submitted that amendments to these conditions were appropriate to provide greater clarity to the Defendant with respect to the class of persons to implement these conditions on behalf of the Plaintiff. Counsel submitted that conditions of this type had been incorporated in orders of the Court made in State of New South Wales v Grooms (Final) [2019] NSWSC 353, State of New South Wales v Matthews aka Hackett (Preliminary) [2019] NSWSC 770, State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 and State of New South Wales v KAS (Preliminary) [2019] NSWSC 924.
Counsel for the Defendant submitted that the proposed amendment would provide clarity to his client so that he understood the class of persons who could give orders under the ESO. It was submitted that, without this clarification, it would be unclear to the Defendant whether he was required to comply with an order from, for example, a psychiatrist, psychologist or social worker.
Counsel for the Plaintiff submitted that conditions of this type had given rise to difficulty as the Plaintiff is uncertain whether police officers in an ESO team or staff in the electronic monitoring room who are at times responsible for the supervision of a person on an ESO are delegates or employees of Corrective Services NSW. It was submitted that the Defendant's formula places undue focus on the status of the person with the need for an assessment to be made as to whether persons are "employees" of Corrective Services NSW. The Plaintiff pointed to the evidence of Ms Grabham that lower level officers who provide monitoring of offenders are contractors (T7.37, 4 November 2019).
It appears that this aspect has not been a live issue which was the subject of considered submissions and determination in any judgment of this Court. That was certainly the case in State of New South Wales v KAS (Preliminary), where I was the presiding Judge. I do not think that the Defendant's position is assisted by insertion of the amendments sought on his behalf. So far as the Defendant is concerned, the person to whom he is to report will be the DSO or a person nominated by the DSO whom the Defendant would take as being authorised for that purpose. The Defendant's position is not assisted by the nomination of these persons as being Corrective Services employees, nor is the effective and efficient administration of the HRO Act assisted by such a specification. There may be persons who are not Corrective Services employees who play a part under proposed Conditions 2, 3 and 4. The practical operation of these conditions will require the DSO to be the Defendant's point of contact or such person as the DSO nominates to the Defendant for the purpose of these conditions.
In my view, the conditions as sought by the Plaintiff are appropriate and sufficiently clear for the Defendant and will accommodate the practical and effective operation of the ESO. Condition 5 - Schedule of Movements
The Plaintiff seeks a condition in the following terms: "If directed by his DSO, the defendant is to provide an honest oral summary of his anticipated movements each week, limited to where he wants to go, why he wants to go the location identified, how he intends to get there, and in what part of the day (Morning/ Lunch/ Afternoon) he will be going there, but unconfined by any travel route or timetable. If so directed, the defendant is to provide that oral summary on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO)."
Counsel for the Defendant submits that the words "and in what part of the day (Morning/Lunch/Afternoon) he will be going there" ought be deleted from proposed Condition 5 so that there would be no part of the day nominated under this condition.
Ms Grabham gave evidence which touched upon this aspect. Counsel for the Plaintiff asked Ms Grabham (T8.7-37, 4 November 2019): "Q. What is the relevance for the ESO team in knowing what part of the day the defendant will be going somewhere? A. The relevance in knowing what part of the day actually is based on time. For the purposes of any offender who is on a schedule, day to day activities have timeframes, so from the time they leave their residence, travel time to the activity, the amount of time spent at the activity, travel time returning to their residence or next activity is vital, because without those specific details we are unable to upload their schedule into the electronic monitoring system so we cannot actively track their movements. This essentially means without the times added to the schedule it is a dry schedule, which means we can only audit the schedule after the week has completed. That is done in consultation with the electronic monitoring team. They provide us with an audit of major movements. The designated officer will then take that information and cross check it against a schedule which was provided by the offender for the week prior. If there are any deviations they were able to obtain from that, then at that point the DSO can question and discuss with offender. However, this is all post any incidents that may have occurred. So without having the time we are unable to adequately monitor the movement of an offender based on the schedule. Q. What if any other treatment gains of having a schedule that sets out the part of the day that the defendant may be somewhere? A. Definitely provides an offender with structure around their day, particularly for those who have spent lengthy periods of time in custody. It allows them to know the day before what they're expected movements are to be. Having a copy of that schedule is also a great visual reminder for them, to be able to encourage them to say I have got appointment at Centrelink, I have to go to my intervention tomorrow, I have my reporting appointment. It shows them that they are actually doing prosocial activities during their time, they have less idle time, and they are more likely to want to fill the idle time with more prosocial activities."
In cross-examination, Ms Grabham noted that her affidavit of 6 September 2019 did not nominate this level of specificity concerning the time of day for the purpose of the schedule of movements.
Mr Anderson submitted that the requirement for the Defendant to nominate the part of the day for the purpose of movements (including appointments) would be particularly onerous for the Defendant given his history of an unstructured lifestyle and would effectively set him up to fail.
Ms New submitted that the time of day when movements were to occur was an important part of the information required. Counsel emphasised that this was especially so given the Defendant's past unstructured lifestyle.
I am satisfied that a condition which requires nomination of the part of the day is reasonable and appropriate in this case. Mr Sheehan acknowledged that the schedule of movement conditions will be extremely difficult for the Defendant "requiring an entirely unfamiliar approach to the spontaneous and unstructured way he has lived in the community" but he said that "the acquisition of this skill is also entirely necessary for his own future risk management" (Sheehan report, paragraph 69).
The evidence of Ms Grabham explains why this information is appropriate for those administering the ESO. The requirement is to nominate the part of the day only and not a precise time. This is not especially onerous and is reasonably capable of implementation. The fact that the Defendant has had a disordered lifestyle in the past is in fact a good reason for requiring this information as part of the condition.
It is, in my view, a reasonable component of this condition and a requirement of this type cannot reasonably be regarded as setting the Defendant up to fail. It will form part of a reasonable and appropriate regime under the HRO Act. Proposed Condition 7 - Reporting Deviation from Summary of Anticipated Movements
The Plaintiff proposes Condition 7 in the following terms: "The defendant must not deviate from his summary of anticipated movements except in an emergency or if the defendant immediately provides a reasonable explanation for the deviation to his DSO or any person supervising the defendant. The defendant must comply with any direction from the DSO or any person supervising him regarding that deviation."
Counsel for the Defendant proposes the deletion of the word "immediately" from this condition and the insertion in its place of the phrase "as soon as practicable".
Mr Anderson submitted that this amendment was appropriate to provide a practical measure for the Defendant to provide an explanation for any deviation from his summary of anticipated movements. It was submitted that the requirement that this be done immediately was unduly onerous.
Ms New submitted that the proposed condition was intended to encourage the Defendant to always consider immediately addressing any deviation. It was submitted that deviation from the schedule can cause issues for electronic monitoring. It was submitted that, if the Defendant is impeded in his ability to provide his explanation immediately for good reason, the DSO would approach the matter with constructive pragmatism.
Proposed Condition 7 forms part of several proposed conditions intended to place reasonable controls over and appropriate monitoring of the Defendant's movements in the community. The exception provided for in proposed Condition 7 is that there is to be no deviation from the summary of anticipated movements except in an emergency or if the Defendant immediately provides a reasonable explanation for the deviation.
The second scenario presently under consideration is an alternative to an emergency. In my view, it is not unduly burdensome or onerous for the Defendant to provide immediately to the DSO a reasonable explanation for any deviation which occurs in a non-emergency setting. A variation to the Defendant's formula of "as soon as practicable" has an inherent vagueness to it. It is appropriate that a condition of this type ought contain an element of urgency in compliance, if there is to be a deviation from the summary of anticipated movements other than in case of emergency.
In my view, the Plaintiff's proposed Condition 7 is reasonable and appropriate in all the circumstances of the case. Condition 10
Proposed Condition 10 is in the following terms: "If so directed, the defendant must be at his approved address between 9 pm and 6 am unless other arrangements are approved by his DSO."
It is submitted for the Defendant that Condition 10 ought be amended by substituting "10 pm" for "9 pm", thereby allowing the Defendant an additional period of one hour before the curfew commences. It was submitted that this variation is reasonable.
The Plaintiff submitted that there is an element of flexibility already in proposed Condition 10 in that the condition applies "if so directed" so that there is a capacity for change in the time in any event. It was submitted that a variation of this type may be undertaken as the ESO progresses if the Defendant is proceeding satisfactorily.
I bear in mind that the Defendant will embark upon this ESO against the background of a long history of disorderly lifestyle accompanied by drug and alcohol abuse and associated sex offending. A requirement that the Defendant commence his curfew at 9.00 pm is reasonable in the circumstances of this case.
A pattern of compliance by the Defendant in this respect will potentially lay a foundation for a variation of the time for the curfew to commence. However, in the circumstances of this case, I am satisfied that proposed Condition 10 is appropriate. Condition 18 - Place Restriction
The Plaintiff seeks the following condition: "The defendant must not attend any place he knows illicit drugs are sold."
The Defendant submits that the condition ought be varied so as to provide: "The defendant must not attend any premises or any non-public place where he knows illicit drugs are sold."
Counsel for the Defendant submitted that the condition as sought by the Plaintiff would unduly restrict the movement of the Defendant if he wished to, for example, travel by train from Central Station which involved him entering a location where he knew illicit drugs were sold. It was submitted that this condition was unduly onerous and the amendment sought should be made.
Counsel for the Plaintiff submitted that there are public places where illicit substances are sold (including parks and railway stations) and, having regard to the Defendant's past itinerant lifestyle, this is a risk factor which the condition appropriately addresses. It was submitted that a limitation to non-public places did not adequately address this risk. It was submitted further that the Defendant's proposed condition would permit the Defendant to be in a public place where he knows illicit substances are sold.
The intent behind proposed Condition 18 is clear enough. Against the background of the Defendant's long history of illicit drug use, it is proposed that the Defendant be prohibited from attending any place where he knows illicit drugs are sold.
I do not think that the Defendant's proposed amendment would meet the difficulty suggested by counsel for the Defendant in any event. The term "any premises" would include structures such as railway stations and locations of that type.
Given the Defendant's past itinerant lifestyle, attendance by him at parks and public locations where he knows that drugs are sold is to be reasonably prohibited. If the Defendant proposes to undertake a railway journey which would take him to a particular station, then it would be expected that a plan of that type would be notified to the DSO as part of his summary of anticipated movements.
I do not consider that the condition proposed by the Plaintiff is unreasonable. Rather, it promotes compliance with the ESO on the part of the Defendant given his own vulnerabilities in the area of illicit drug use. I propose to include Condition 18 in the form drafted by the Plaintiff. Conclusion Concerning Conditions
I am satisfied that all conditions proposed by the Plaintiff for the ESO in this case are appropriate and should be fixed for the purpose of s.11 HRO Act.

Conclusion

I am satisfied that the statutory requirements for the making of an ESO have been established in this case. I am likewise satisfied that an ESO for a period of five years should be made. I am satisfied that the ESO should be subject to Conditions 1-47 as sought by the Plaintiff.
The ESO will date from today, but I note that it will actually commence when the Defendant's current custody or supervision expires: s.10(1) HRO Act.
I make the following orders: 1. pursuant to s.9(1)(a) Crimes (High Risk Offenders) Act 2006, I order that the Defendant be subject to an extended supervision order for a period of five years from today, subject to Conditions 1-47 which follow as a schedule to this judgment; 2. pursuant to s.11 Crimes (High Risk Offenders) Act 2006, I direct the Defendant, for the period of the extended supervision order, to comply with the conditions set out in the schedule to this judgment; 3. I continue the order made by Campbell J on 24 September 2019 that access to the Court file in respect of any document shall not be granted to a non-party without the leave of a Judge of this Court and, if any application 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 (296 KB, pdf) 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: 08 November 2019

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