State of New South Wales v Fernando

The legislative scheme

1. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.
2. Section 5B of the Act provides that this court may make an ESO if: (a) the person is 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, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
3. A "serious offence" is defined in s 4 of the Act as either a "serious sex offence" or "a serious violence offence". A "serious sex offence" is defined in s 5(1) of the Act and includes, relevantly, an offence against a child carrying a maximum penalty of 7 years imprisonment.
4. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s (2)(a)(ii) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature.
5. Thus, the statutory requirements for making an ESO are that the offender is a serious sexual offender as required by ss 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); and is still in custody or supervision at the time the application was made. In addition, the court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).
6. The court's power to make an ESO is discretionary. Section 9(1) of the Act provides that this court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) and (3) of the Act provides a number of mandatory considerations to which the court must have regard in determining whether or not to make an ESO as follows: (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner 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, (d) 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, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) 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, (h) 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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

The final hearing

1. In addition to the reports of Dr White and Dr Elliott which were tendered at the hearing, the State relied on the following material: 1. Affidavit of Jessica Leigh Murty affirmed 1 March 2023. The State tendered Exhibit JM-1 to that Affidavit which was also before the court at the preliminary hearing; 2. Affidavit of Brett Thomson sworn 10 March 2023; 3. Affidavit of Angela Marlis Rybak affirmed 21 June 2023; 4. Affidavit of Jessica Leigh Murty affirmed 12 July 2023; 5. Affidavit of John Banton sworn 14 July 2023; and 6. Affidavit of Jessica Leigh Murty affirmed 14 August 2023.
2. Mr Fernando relied on the following evidence: 1. Affidavit of Hannah Bruce affirmed 5 April 2023; and 2. Affidavit of Sarah Salman sworn 4 August 2023.
3. I have had regard to this material and propose to summarise it under the headings which correlate with the mandatory considerations in s 9(3) of the Act.

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. Mr Fernando's criminal history began when he was 11 years old with a number of offences of stealing and breaking and entering, but his first serious offence occurred on 17 January 1993 when he was 30 years old.

The first violent sexual assault: 1993

1. Mr Fernando entered the home of a 30-year-old woman with two babies and threatened her with a knife. He "shoved" the knife into her ribs and told her of his intention to rob her. He asked whether she would promise not to report him, reminding her that he knew where she lived and would "do [her] kids first". He then used the knife to cut the swimsuit she was wearing from her body. He engaged in oral sex and penile intercourse with her while continuing to threaten her with a knife. He took $150 from her house as he left.
2. Mr Fernando was sentenced to 9 years imprisonment with a non-parole period of 6 years in relation to the aggravated assault and 3 years imprisonment for the robbery. He was in custody from 27 January 1993 until his release to parole on 26 January 1999. As a condition of his parole he was to reside with a woman, "T", a teacher in the correctional system that he met while in custody and with whom he developed an intimate relationship.

The second violent sexual assault: 1999

1. On 12 October 1999, Mr Fernando stole T's daughter's CD player and stereo system from her home to pawn them to pay for drugs. He returned home that afternoon and stripped to his boxer shorts. When T's 14-year-old daughter came home from school, Mr Fernando dragged her into her mother's room, told her to sit on the bed and began to masturbate his erect penis. He asked for her assessment of the size of his penis. She was too terrified to reply. He chased her around the bed and when she fell onto the bed, he sat upon her stomach. When she attempted to defend herself by biting his hand as he covered her mouth, he produced a knife and told her he would kill himself if she told anyone what had occurred.
2. The victim asked for the stereo system to be returned and he agreed on the condition that she have sex with him. When she refused, he yelled abuse at her, pushed her to the floor and sat on her stomach holding a knife to her throat. A knock was heard at the door and Mr Fernando left the room. He then returned and bound and gagged the victim to make it look like they had been robbed. He exposed his penis to her and pulled her underpants down, making his penis erect. She continued to struggle. Mr Fernando then said, "What have I done?", cut her loose and apologised. He then threatened her with the knife and said he would kill her family and deny it if she told anyone.
3. The victim went to the bathroom. When she returned, Mr Fernando embraced her and told her he loved her. He apologised and blamed drugs for his conduct. He rubbed cream on sores on her wrist from the binding. He then pulled his jeans down and started to masturbate. He told the victim to lie on the bed and asked her whether she was a virgin and if his penis would fit into her vagina. At this point, one of the victim's school friends knocked on the door. The victim answered it and they both ran away. The victim was crying and shaking. Mr Fernando found T's spare car key and drove away to a nearby home, which he ransacked and took various items and money. He abandoned T's car there. That night, he apologised to T on the phone.
4. On 20 October 1999, Mr Fernando was charged with offences including forcibly abducting a woman with intent to carnally know her and assault with intent to have sexual intercourse.

The third violent sexual assault: 1999

1. Six days later, on 18 October 1999, Mr Fernando offended again. He was driving at 8.45am when he saw the third victim , a 15-year-old wearing a school uniform. He forced her into the car, covered her with a blanket and threatened her with a screwdriver to her neck. He said, "if you don't do as I say, I'll kill you".
2. Mr Fernando then drove to bushland and stopped the car. He told the victim not to scream and removed her bra and underpants and unbuttoned her school blouse. He pulled down his jeans and underpants, exposing his erect penis. He got on top of her and pushed his penis forcefully into her vagina for a few minutes, ignoring initial pleas for him to stop and then her silent crying. After ejaculating he told her to dress. He noticed that she was bleeding and there was blood on the car and her clothes.
3. He drove off with her in the car and told her not to tell anyone. He said, "I should kill you now". When she said she would not tell anyone, he offered to drop her near her home. He demanded money from her and she gave him four dollars from her school bag. He then drove the vehicle to a park and set it alight.
4. The victim went home, dishevelled and pale. She asked a neighbour if she could telephone someone as she had just been raped. She asked not to call the police as her assailant said he would kill her. She phoned her mother and police were subsequently called.
5. Mr Fernando was charged on 1 December 1999 with aggravated sexual assault (victim under the age of 16 years) and detain for advantage, amongst other offences.
6. Mr Fernando was sentenced for the 1999 offences by Williams DCJ in the District Court on 25 October 2000. The total effective sentence was 17 years imprisonment with a 14-year non-parole period. The sentence commenced on 20 October 1999.
7. Mr Fernando was released to parole on 11 May 2016, roughly two and a half years after he was first eligible for release.
8. As stated above, Adamson J placed Mr Fernando on a high risk sex offender ESO for a period of 5 years from 25 November 2016 and directed him to comply with the conditions that were set out in the Schedule for the period of ESO.

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

1. Williams DCJ described the offence against the third victim as "objectively in the worst category of such offending". His Honour placed great importance on the protection of the community and assessed Mr Fernando as a high risk of reoffending.

The expert evidence: ss 9(3)(b), 9(3)

1. There were numerous expert reports before the court including the Risk Assessment Report (RAR) prepared by Sarah Wright dated 14 October 2022, the Risk Management Report (RMR) prepared by Jessie-Slattery-McDonald dated 18 November 2022, the reports of Dr White and Dr Elliott and reports relating to Mr Fernando's previous ESO. Adamson J summarised much of the material that was available in 2016 in Fernando (Final): at [45], [57-[64] and [75]-[84].
2. I do not consider it necessary to summarise all of the expert evidence filed on this application. Most of the expert evidence up until 2021 was largely consistent. Despite this, I propose to summarise the evidence of the court appointed experts before both Adamson J and me.

Reports before Adamson J in 2016

1. The reports from the court appointed experts Dr Jeremy O'Dea dated 3 November 2016 and Mr Patrick Sheehan dated 29 October 2016 were before Adamson J.
2. Dr O'Dea noted that during Mr Fernando's younger life there were no apparent symptoms of major mental illness but that he had obsessive fixations about his penis size which in his view was underpinned by his broader feelings about sexual inadequacy and insecure attachments. He attempted to hang himself in 1995. Mr Fernando has shown increasing signs of psychosis since his late thirties and was scheduled under the Mental Health Act 2007 (NSW) in August 2014 following which he was placed on a series of Forensic Community Treatment Orders.
3. In his interview with Dr O'Dea, Mr Fernando revealed a recent experience of command hallucinations telling him to touch a woman's leg while on the public bus and acknowledged having a relapsing psychotic illness and the need for medication saying, "when I'm sick I hear voices telling me to do bad stuff, I get aggro, short tempered. I get paranoid and think people are looking at me and talking about me."
4. Dr O'Dea assessed Mr Fernando as falling into the "Low Average" range of intellectual functioning which suggested against the presence of an intellectual disability. In his opinion, he had a personality disorder with the most pertinent one being antisocial personality disorder (APD). He expected the signs of APD to diminish in severity as he aged and to that end noted both the possibility that the process had already begun and the role of the sedating effect of his medication on regulating his behaviour. Dr O'Dea also observed that Mr Fernando was not managed by Corrective Services NSW (CSNSW) as an intellectually disabled offender.
5. In Dr O'Dea's opinion, Mr Fernando met the diagnostic criteria for paedophilic disorder given his deviant sexual interest in children as young as 11 years. He noted that Mr Fernando's paranoid schizophrenia and chronic polysubstance abuse disorder both contributed to his offending.
6. Having regard to the actuarial factors, Dr O'Dea assessed Mr Fernando as being within the moderate-high risk category relative to other male sexual offenders with his recidivism rate 2.7 times higher than the "typical" sexual offender in the sample population. His risk of committing a sex offence was assessed as being in the high risk category relative to other adult male sexual offenders with any future sexual offending more likely to meet the threshold for a serious sexual offence given his prior sexual offending.
7. In his opinion, Mr Fernando would most likely reoffend against a female under the age of 16 that may or may not be known to him, the offence would most likely be opportunistic, could occur at any time of the day when he is substance affected, would likely occur in a suburban area, could happen during a break and enter, or through a process of "cruising" looking at schoolgirls while sexually aroused. He noted that Mr Fernando would likely use a sharp implement to threaten the victim into compliance, would involve sexual intercourse and that the onset of offending would be driven by his risk factors with particular emphasis on his deteriorating mental health, an increase in sexual preoccupation, substance use and general life instability.
8. From a psychiatric risk management perspective, Dr O'Dea was of the view that any risk management program should be long term, of at least five years duration, and regularly monitored and reviewed every six to 12 months.
9. Similarly, Mr Sheehan opined that Mr Fernando's sexual offending was influenced by: "… his Antisocial personality characteristic (impulsivity, entitlement, poor consequential thinking, absence of constructive organised activity), the use of sexual fantasy about schoolgirls as a means to salve obsessive feelings of sexual inadequacy, substance use, and a relapsing psychotic illness (paranoid schizophrenia) which has further compromised his thinking as well as increasing his sexual preoccupation."
10. He noted that Mr Fernando has complex psychiatric presentation. He exhibited signs of psychosis, potentially induced by amphetamine or the onset of schizophrenia. He met the criteria for severe polysubstance use disorder (in extended remission), antisocial personality disorder and paedophiliac disorder.
11. Noting the difficulty assessing risk, Mr Sheehan assessed Mr Fernando as being within the high risk category compared to other adult male sex offenders.

Dr Elliott

1. Dr Gordon Elliott saw Mr Fernando on 9 June 2023. He opined that Mr Fernando is a risk of committing a further sex offence. He identified key risk factors as including the "maladaptive and entrenched features of his personality structure" and his substance use history. He also reported that Mr Fernando appeared to be in significant cognitive decline however does not consider that he is yet frail enough to be managed without an order, particularly as he may become disinhibited and lack judgment which would increase risk. Dr Elliott also noted that his physical ability to commit a further offence will decrease and he already has physical problems including with balance.
2. Dr Elliott agreed that Mr Fernando has borderline and antisocial personality traits, substance use disorders and a gambling disorder. However, he expressed reservations about Mr Fernando's previous diagnosis of schizophrenia, noting that his psychotic presentation in 2014 could have been the result of a substance induced psychosis. He also suggested that a potential explanation for the psychotic symptoms could be his developmental experience, trauma and inability to control his behaviour. He doubted the paedophilia diagnosis as well because the victims were adolescent girls. Dr Elliott recommended that Mr Fernando's medication regime be reviewed and expressed that an argument could be made in favour of anti-libidinal medication.
3. Dr Elliott anticipated that Mr Fernando's cognition will continue to decline and he will become more reliant on support workers. He currently has nine hours of daily support. He also opined that Mr Fernando remains vulnerable to stress if unsupported and may revert to maladaptive strategies for coping, including substance use. He noted Mr Fernando's heavy reliance on supports and the possibility that he would leave them if he was not subject to an order. He was of the view that an ESO of two years would be the maximum required given his declining cognition and physical ability.
4. In relation to conditions, Dr Elliott doubted that Mr Fernando has the capacity to submit to schedules without the assistance of his support workers and considered that it is unrealistic to expect him to engage in paid employment. He also suggested that the planning, organisation and strict adherence to schedules is at odds with his cultural background.
5. Of particular concern is that Dr Elliott conducted the Addenbrooke's Cognitive Examination test on Mr Fernando. A score of less than 82 is the cut off for dementia. Mr Fernando scored 44 out of 100.

Dr White

1. Dr Amanda White prepared her report based on an interview with Mr Fernando on 23 May 2023 and the material in appendix A to her report. She concluded that Mr Fernando requires a high level of intensive supervision to reduce his risk of sexual reoffending and, that without such support he is a risk of committing a serious sex offence. She opined that a two-year ESO is the least restrictive way to reduce risk, noting that while his NDIS support assists with daily functioning it is not targeted at reducing the risk of sexual reoffending and there are no enforcement or intervention powers.
2. Mr Fernando had a difficult childhood and has a number of mental health issues and medical diagnoses. Dr White's report summarised this as follows: "Mr Fernando's sexual offending has occurred in the context of complex medical history with diagnoses of schizophrenia, anxiety, depression, substance use disorder, antisocial personality disorder, paraphilic disorders and paedophilia, and chronic health conditions including diabetes. He experienced extreme social disadvantage growing up on Aboriginal missions where he was exposed to substance use, violence, and childhood sexual abuse, with early engagement in antisocial activities and contact with the criminal justice system."
3. Dr White also assessed Mr Fernando as experiencing cognitive decline and impairment with commensurate deficits in his functioning and ability to recall daily activities. Assessments indicated that he requires a high level of 24/7 support including supervision and prompting for personal care and daily activities. She identified his conditions as "significant risk factors or aggravating factors" related to his risk of committing a further sex offence. Dr White reported that further cognitive decline may exacerbate pre-existing traits and interests and disinhibited behaviours.
4. Mr Fernando reported that he consumed alcohol, cannabis and sniffed glue as a child. As an adult, he has used amphetamines intravenously (injecting up to "four shots a day" for a period of months), heroin while in custody and benzodiazepines. He acknowledged that alcohol use often leads to physical violence or criminal behaviour. He continues to crave alcohol. He reported a history of self-harm and drug overdoses, including six to eight months prior to his interview with Dr White, but denied current suicidal ideation.
5. Dr White opined that while Mr Fernando has shown some acceptance of his offending behaviour, he still has sexual preoccupations and displays poor capacity to manage these feelings. He told her that he gets aroused thinking about the 1993 offence and the second 1999 offence, but he cannot remember much about the first 1999 offence. He tries to push away those thoughts. In relation to the second 1999 offence, he said it was something that "just happened" and when he saw the victim in her school uniform "something went, bang, bang, bang".
6. Mr Fernando took anti-libidinal medication from 2012 but ceased taking it in March 2019 and reported that he "currently does not feel like he is sexually preoccupied" and it is "not a problem". He expressed concern that he would be aroused by school girls, for example on the bus, and avoids looking at them as he knows he cannot pursue this sexual interest. His sexual preoccupations, distorted perceptions of himself and the sexual receptivity of young girls heightens when his mental health deteriorates, medication use is disrupted or with drug use.
7. Dr White was of the view that current arrangements mitigate risk but that Mr Fernando remains precarious and has poor capacity for internal regulation and monitoring of behaviour. She identified the following risk factors: 1. Maladaptive and limited coping mechanisms; 2. Problems with self-awareness; 3. Problems with stress and coping; 4. Problems resulting from child abuse; 5. Problems with sexual health and sexual deviance; 6. Major mental disorder (schizophrenia); 7. Substance use; 8. Issues with manageability including treatment and supervision; and 9. Lack of social network and intimacy, feelings of loneliness.
8. Dr White identified the following protective factors: 1. The conditions imposed on him by his ICO; 2. The professional services he receives; and 3. His sister, who helps him connect with his Aboriginal culture and identity, and his father.
9. Dr White also opined that the key risk scenarios would likely occur without adequate supervision or formal support and may involve interpersonal stress, non-compliance with medication and/or mental health deterioration. Further offending would likely occur in the context of heightened sexual preoccupation and might involve opportunistic or impulsive contact offending against pubescent victims or adult females. She explained that Mr Fernando's risk factors may change over time as he ages. This depends on his mental health, cognitive decline, substance use or changes in support levels.

Sarah Wright

1. Ms Wright, the RAR author, expressed similar opinions to the two court appointed experts. She is a senior psychologist at the Serious Offenders Assessment Unit.
2. She noted that substance use may increase the risk of Mr Fernando's sexual reoffending and identified that he has problems with self-awareness, problem solving and planning. She opined that Mr Fernando does not have sufficient insight into an offence pathway and risk at this time. She identified broadly similar risk scenarios to those identified by Dr White and Dr Elliott, concluding that the current ESO has largely contained Mr Fernando's risk, but he still has a high density of outstanding treatment needs.
3. Ms Wright also completed an ESO completion report on 30 June 2022. She noted that in April 2021, Mr Fernando attempted suicide by laying down on train tracks in front of a train. He was struck in the head and suffered a fractured vertebra. There are reports that he experienced cognitive decline after that date, but it is unclear whether this is the cause of his cognitive decline.

Previous level of compliance with supervision orders: ss 99)(3)(e2), 9(3)(f), 9(3)(g)

1. Mr Fernando has a history of non-compliance with parole and supervision orders. His sexual reoffending in 1999 occurred while on parole.
2. On 16 June 2016, Mr Fernando was charged with three counts of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPR) for failing to report a mobile phone, email address and Facebook account. He was convicted and sentenced to a s 9 bond for 12 months on 3 August 2016.
3. Mr Fernando was also convicted of breaching the ESO imposed by Adamson J on three occasions.
4. First, on 8 January 2020, Mr Fernando was charged with six counts of failing to comply with his ESO for failing to take his prescribed medication for around a month. He also befriended a neighbour with young children and did not disclose this to his Departmental Supervising Officer (DSO). He then absconded and went to his daughter's house and used ice and alcohol. He was sentenced to an aggregate term of 18 months imprisonment with a non-parole period of 12 months. He was released to parole on 8 January 2021.
5. Secondly, on 11 November 2021, Mr Fernando was charged for breaching his ESO by failing to declare an email address and accessing a pornographic website. He was remanded in custody on 12 November 2021 and sentenced to an 18-month ICO for the first offence, beginning on 2 March 2022 and expiring on 1 September 2023, and 9-months imprisonment with a 4-month non-parole period for the second offence. He was released to parole on 10 March 2022.
6. Thirdly, on 10 August 2022, Mr Fernando was charged for making unauthorised contact with his daughter and her children. He also had an unauthorised application on his phone. He was convicted and sentenced on 12 September 2022 to an ICO expiring on 11 June 2023. In relation to seeing his daughter, Mr Fernando's sister Cheryl deposed in her affidavit dated 18 August 2022 that he said he accidentally bumped into her at the shops and called CSNSW straight away. Mr Fernando's brother-in-law John Lancett also wrote a letter explaining that he understands that Mr Fernando was breached for contact with his daughter and grandchildren in the shopping centre and that it would have been hard for him to ignore them when his grandkids cried out.
7. I shall consider this most recent breach further below.
8. On 14 September 2022, a notice of adjustment recorded that the ESO was to expire on 24 April 2023 because Mr Fernando was in custody from 11 August 2022 to 12 September 2022.
9. There were also a number of instances of non-compliance with the previous ESO that did not result in criminal charges including schedule deviations, accessing pornography and having unauthorised apps and an internet browser with a VPN. The State accepted that non-compliance may be the result of cognitive decline rather than intentional breaches.
10. In Ms Wright's ESO completion report dated 30 June 2022 she noted the following: "Mr Fernando was highly institutionalized following his release and he struggled with community reintegration. During the early stages of the ESO, Mr Fernando experienced and demonstrated a number of difficulties. For instance, he experienced an increase in anxiety and panic attacks, poor sleep, difficulties with self-management, he presented with confusion and disorientation, poor balance, significant health problems and he had issues with managing his diabetes (both with respect to medication non-compliance and poor diet). He was observed to have delayed reactions, problems with his short-term memory and significant difficulties with respect to his ability to plan. This caused him to mismanage his insulin and resulted in him being hospitalised in January 2017. Concerns were raised regarding his presentation and his ability to function independently in the community. Because of these concerns, and a lack of appropriate alternative accommodation options, Mr Fernando was housed at Nunyara COSP for approximately 18 months before moving into independent accommodation on 30/11/2017."
11. Mr Fernando progressed to stage 3 monitoring in November 2017 after three months of complying with the order, however electronic monitoring remained. When Mr Fernando returned to custody in January 2021, he regressed to stage 1 monitoring by CSNSW.

Statistical testing: s 9(3)(d)

1. Mr Fernando's results using risk assessment tools place him within the above average category for sexual reoffending and indicate that he has a high density of criminogenic needs and dynamic risk factors.
2. Dr White administered the neuropsychological tests but warned that the results should be used with caution given Mr Fernando's reduced effort during testing. Mr Fernando performed within the borderline or extremely low range in all categories besides visual based reasoning, which were within the low average range.
3. Mr Fernando was assessed using the Violence Risk Appraisal Guide-Revised, STABLE-2007, STATIC-99R, STABLE-2007 and RSVP actuarial tools. His risk was assessed as above average or high in each category.
4. Dr Elliott also assessed Mr Fernando using the STATIC-99R risk assessment as falling within the high risk group of recidivist offenders. However, he noted the limitations of the tool and that the assessment does not allow for cognitive or physical decline or his current level of NDIS and other supports.
5. Dr White warned that while there is a degree of uncertainty in all risk assessment, additional consideration must be applied for First Nations people. This is because most of the research on tool development has been based on non-Indigenous samples. She noted that the predictive accuracy of the STATIC-99R is lower for Indigenous men than non-Indigenous men but remains within the moderate range and is still recommended. Dr White also observed that the authors of structured professional judgment tools such as the RSVP-V2 suggested that the tools can be applied to Indigenous populations as the individual nuances are accounted for in the tool's design. Dr Elliott also noted the limitations of the STATIC-99R tool, and that the assessment does not allow for cognitive or physical decline or his current level of NDIS and other supports.
6. Mr Fernando's counsel relied upon the limitations of statistical testing in relation to Indigenous people, submitting that it is simply an algorithm and not particularly useful. In response, Mr Mykkeltvedt submitted on behalf of the State that Dr White in her report stated that there is some empirical support for the application of STATIC-99R with Indigenous persons and that the RSVP-V2 test can be applied to Indigenous populations.
7. Mr Fernando's counsel also pointed to Chen J's observations about the utility of actuarial and risk assessment tools when considering whether to impose an ESO on an Aboriginal man in State of NSW v Cohen (Final) [2023] NSWSC 572 at [114]: "[W]hilst those assessments were of some assistance in evaluating the risk posed, they provide no indication as to whether the defendant will reoffend or not, much less do they point to the nature of any reoffending. Secondly, it may be accepted that, in a given case, if all risk assessments were to point uniformly one way and adopt similar or identical risk profiles, they may assist in the ultimate determination of whether there exists an unacceptable risk (or, separately, the level of that risk). However, that is not this case: the assessments varied. Thirdly, none of the material that underpinned the assessments was in evidence, nor were the key concepts the subject of evidence or explanation. For example, to the extent that the defendant's profile according to SARA was assessed as being a 'high risk of committing a spousal assault in the future', how that actuarial tool defines the terms 'high risk' and 'assault' is unknown. Fourthly, some of the actuarial assessments involve the assessment of a risk profile based simply upon statistics of persons being 'charged' with an offence, which is the case for STATIC-99R and STATIC 2002-R (pars 85 and 91). Fifthly, those actuarial tools do not consider whether the risks of reoffending constitute a serious offence, as defined under the Act, nor can they justify a case specific conclusion that the defendant is likely to commit an offence of that kind."

Treatment and rehabilitation programs/available courses: ss 9(3)(e), 9(3)(e1)

1. Mr Fernando has engaged in the following programs: High Intensity Sex Offenders Program; Sex Offender Preparatory Group; Getting SMART; EQUIPS addictions; Controlling Anger and Learning to Manage it; Forensic Psychology Service; Private psychologist appointments; National Disability Insurance Scheme; and a Medication regime overseen by a psychiatrist.
2. Mr Fernando twice enrolled in the Controlling Anger and Learning to Manage it program in 2012 and 2014 but was removed due to poor attendance. Other than that, his engagement was reported as satisfactory.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community s 9(3)(d1)

1. The RMR prepared by Ms Slattery-McDonald outlined the following features of Mr Fernando's management plan: 1. Face to face contact with Community Corrections at least weekly; 2. Field/home visits at least monthly, including unannounced field visits; 3. Weekly contact with stakeholders and third parties; and 4. Modules relating to supervision expectations, intervention plans, goal setting, stress management and engaging in pro social relationships and activities.
2. The following conditions were recommended in the RMR: 1. Conditions pertaining to electronic communications and internet access; 2. Search and seizure; 3. Electronic monitoring; 4. Schedule of movements; 5. Programs and risk related interventions; 6. Place and travel restrictions; and 7. Non-association.

CPPO

1. On 18 July 2023, Mr Fernando was placed on a Child Protection Prohibition Order (CPPO) in the following terms: "1. Not communicate, or attempt to communicate, by any means either directly or indirectly, with any person under the age of 18 years, with the exception of members of his immediate family. This includes, but is not limited to: *In person (including via a third party) *By phone (calls, text messages, multimedia messages, VOIP) *By electronic means such as social media, and internet-based messaging services and applications *By mail Immediate family means (a) The respondent's parents, step parents and grandparents, and (b) The respondent's children, step children and grandchildren, and (c) The respondent's brothers and sisters, and step brothers and step sisters, and (d) The children of any of the above persons 2. Not approach, actively seek or remain in the presence or company of any person under the age of 18 years, with the exception of members of his immediate family. 3. Not permit any person under the age of 18 years to enter and remain or reside at the residential address of the respondent, with the exception of members of his immediate family. 4. Not remain or reside in any residential premises with any person under the age of 18 years, with the exception of his immediate family. 5. Not associate or contact either directly or indirectly any registerable person or a person that has been convicted of a Class 1 or 2 offence, pursuant to the Child Protection (Offenders Registration) Act 2000. 6. Not create, administer or use any social media or internet-based messaging accounts. 7. Allow any member of the NSW Police Force to search any phone, tablet device, data storage device or computer that he may use. 8. Not use of possess any alcohol (including alcohol-based products such as methylated spirits) 9. Not use or possess illicit drugs, other than medications prescribed to the respondent. The order is made for a period of 5 years."

Material relied on by Mr Fernando

1. Ms Bruce (Mr Fernando's solicitor) deposed in her affidavit sworn 5 April 2023 that Mr Fernando said on several occasions words to the effect of: "I just want freedom to do things, like to go the shops for milk or cigarettes if I want to. I have to ring up and check all the time. I forget what is on my schedule, 'it is hard for Aboriginal people to meet up and live their life and connect because of these orders' 'the bracelet is embarrassing, I have to wear long pants all the time, I don't want to go out and meet people because I'm worried they'll see it'."
2. Ms Bruce also provided a journal article, Aboriginal concept of time and its mental health implications, by Aleksandar Janca and Clothide Bullen. [1] The following is an extract from that article: "The Aboriginal concept of time differs from the Judeo-Christian perception of time in that Aboriginal people do not perceive time as an exclusively 'linear category' (i.e. past-present-future) and often place events in a 'circular pattern of time according to which an individual is the centre of' time circles and events are placed in time according to their relative importance for the individual and his or her respective community brackets. … Aboriginal distinctions between the time and priorities is particularly pertinent as it relates to scheduling meetings and consultations with mental health professionals. Aboriginal people may not always keep their appointments and this should not be taken as an indicator of non-compliance, resistance or improvement. As pointed out before, for an Aboriginal person the family or community will always be prioritised before the self... It is important to remember that such a prioritisation of events is very important and culturally meaningful for strengthening aboriginal community memberships." [2]
3. Mr Fernando's sister Cheryl deposed that she provides support for Kevin with his medication, day-to-day care, finances and emotional support.

OIMS notes concerns

1. The Offender Integrated Management System (OIMS) notes show that Mr Fernando reported feelings of loneliness. He expressed that he feels like he has been in "gaol" for two years on the order since being released from custody for breaching the ESO and has not been able to meet new friends or potential partners.
2. On 17 April 2023, Mr Fernando told a CSNSW worker that he had been watching pornography. On 20 April 2023 Mr Fernando was issued a formal written warning for watching pornographic material, having a "cleaning app" on his phone and attempting to log in to Facebook contrary to the conditions of his ESO.
3. On 28 April 2023, a dating app was found on his phone despite the warning. He said he was unaware when the apps were downloaded and did not know the log ins. A forensic psychologist suggested that his interest in pornography is not related to loneliness and isolation but to thoughts of sex, use of sex to cope and impulsiveness.
4. There are numerous notes about changes to Mr Fernando's schedule. The OIMS notes relied on by Mr Fernando show almost daily calls from him requesting to go to the shops, or to go out to breakfast. The notes also include him advising CSNSW that he wished to go to a different shopping centre that day, that he had to wait one hour for his appointment and was "killing time", or that he had leave home 10 minutes early because of concerns about his blood sugar. On one occasion in December 2022, he contacted CSNSW three times to attend the shops for breakfast despite it not being approved, apparently because of cognitive issues.
5. In October 2022, Mr Fernando refused to take medication and was given a verbal direction under his ESO to do so. On another occasion he could not remember if he had taken his medication. He also requested more activities to be added to his schedule.

NDIS notes

1. In the notes of Participate Australia (Mr Fernando's NDIS support coordination service), the Support Coordinator wrote that Mr Fernando finds it challenging having to ask the ESO team for permission for any and all activities and expressed a fear of breaching his orders unintentionally.
2. Mr Fernando's current treatment plan includes behavioural support, including strategies to manage the symptoms of his physical and mental health conditions, occupational therapy support, community access to enhance prosocial networks and interpersonal development, assistance with daily living and housekeeping, support adhering to his ESO and facilitation of improved psychological function, wellbeing and self-worth.
3. Mr Fernando's NDIS provider, Direct Focus Solutions (DFS), noted in September 2022 that Mr Fernando was independent in bathing, using the toilet and eating but required full support to engage in other areas such as budgeting, preparing meals, shopping, scheduling and organising routines. While recent DFS notes from 22 June 2023 state that Mr Fernando started refusing support, this appears to be because his uncle died, and he resumed services a few days later.
4. Notes dated 31 March 2023 recorded that Mr Fernando was making considerable progress in managing symptoms and integrating back into society and that he must continue to engage with support. He was attending all his allied health appointments and working towards his goals by reporting feelings of loneliness, accepting support from staff and communicating with supports to engage with pro social connections like his sister. A support worker reported that he appears to be respectful when following his schedule and he told them that he will be very careful about where he visits and will independently call his ESO.

Consideration: unacceptable risk test met?

1. As stated above at [4], Mr Fernando did not dispute the first three statutory preconditions and I am satisfied they are met. The key issue for consideration is whether I am satisfied to a "high degree of probability" that unless Mr Fernando is placed on an ESO he poses an "unacceptable risk" of committing a "serious sex offence" as defined in s 5B(d) of the Act.
2. It has been held that the term "high degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal observed at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..."
3. The phrase "unacceptable risk" is not defined in the Act, although s 5D provides: For the purposes of this Part, the Supreme Court is not required to determine that 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 the person committing such an offence.
4. It has been held that the phrase "unacceptable risk" in the Act should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn v State of New South Wales at [82] (Basten JA). In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]): "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
5. These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate." See also State of New South Wales v Loto [2018] NSWSC 1522 at [14]-[17] per Rothman J.
6. In considering this application, I have had regard to all the mandatory factors in s 9(3) of the Act as well as s 9(2), which I have summarised above. I have had particular regard to the recent expert evidence of Dr White and Dr Elliott as well as the OIMS and NDIS support notes.
7. The State relied upon lengthy written submissions in support of its position that Mr Fernando met the statutory test for the making of an ESO for a further two years. It was accepted that Mr Fernando's age and physical decline were such that his capacity to commit a serious sex offence was in decline, but it was noted that the OIMS notes record Mr Fernando's continued interest in pornography and downloading of dating apps. It was submitted that the fact that he still has a strong sexual drive means that, in that respect at least, things have not changed since the previous ESO was imposed in 2016. It was further contended that the NDIS support is inadequate alone as it is not forensically focused and there are no enforcement or compulsion powers. The State raised a concern that Mr Fernando would impulsively leave his support, pointing to evidence of disengagement in the OIMS notes. It was acknowledged that this occurred after his uncle died and he was not allowed to attend the funeral.
8. On the other hand, as was submitted on behalf of Mr Fernando, he has supportive relationships and there are support mechanisms already in place or that can be sought for his supervision, including that he is on the Child Protection Register and the subject of a CPPO. He has been on a Community Treatment Order under the Mental Health Act in the past and could be placed on one again and, if necessary, scheduled under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Significantly, the NDIS package he is now on (that he was not on when Adamson J made her last order), includes a program co-ordinator, a psychologist and a psychiatrist. I accept that these mechanisms go some way towards addressing the unacceptable risk.
9. I have paid close attention to the recent OIMS notes. They reflect that Mr Fernando leads a lonely life with his only real contact being with his NDIS case workers and his sister Cheryl. Unfortunately, she is unwell and has recently had a kidney transplant. She lives down the South Coast and can no longer visit Mr Fernando regularly. He would like to move to reside near her. She seems to be the only relative who he has disclosed his offending to and is thus considered an appropriate person for him to spend time with. I am satisfied she is a very positive force in his life.
10. Mr Fernando is in telephone contact with his elderly father who lives in a regional area, although he often calls Mr Fernando to ask for money. He has a brother in Mt Druitt who he chooses not to visit as he is "surrounded by" alcohol, but they talk on the phone. His children frequently telephone him, but the notes suggest that they often ask for money on the day his disability pension is paid into his account. He finds it difficult to say no to them and then is left with insufficient funds to buy food such that his sister Cheryl then has to help him out.
11. One of the reasons that Mr Fernando feels isolated from his family is that his two daughters who he is in contact with have young children. He is precluded from having contact with his grandchildren until he discloses his offending to his adult daughters, so that they can provide informed consent as to whether to let him see his grandchildren. The OIMS notes reveal that Mr Fernando was waiting for his previous ESO to expire and hoped that a new one would not be granted so he would be able to see them without having to disclose his offending behaviour. He continues to refuse to disclose his offending to them.
12. A further aspect of the OIMS notes which bears comment is that almost every day, Mr Fernando telephones the ESO team asking to go to the shops or go out for breakfast or go to the local shopping centre. Invariably, he proposes to do so with a NDIS caseworker. On nearly every occasion he was denied permission because it was not a pre-approved activity. It is difficult to understand why, presuming he was with a NDIS worker, doing some local shopping, he poses a risk to the public. He is unable to work due to his cognitive decline. Although there are many references to attempts to organise activities for him besides going to the shops, there seems little else in his life besides smoking (in relation to which he spends about $300 a fortnight), spending time with his NDIS workers, sleeping and going to the shops. The OIMS notes reflect that Mr Fernando lives in fear of being breached having been imprisoned for breaches before. It seems to me that Mr Fernando is not being paranoid; this fear is well founded.
13. As for the most recent breach, I have considered the submission made on Mr Fernando's behalf to the effect that the objects of the Act, the protection of the community and Mr Fernando's rehabilitation, are not advanced by him returning to custody for a minor breach of the conditions where the conduct does not increase the risk of a serious offence being committed. It was contended that this outcome is omnipresent when inflexible scheduling is applied to a person with declining cognitive abilities.
14. I accept that a significant protective factor is the NDIS support that Mr Fernando now gets. The OIMS notes show that his caseworkers help Mr Fernando with taking his medication, preparing his movement schedule and many of his basic tasks. He cannot drive so they drive him everywhere he needs to go. I accept that long hours are devoted to Mr Fernando's care under his support package.
15. Mr Fernando submitted that there is no basis to accept the State suggestion that if there was no ESO he would leave the NDIS program, including his accommodation. I certainly accept that the capacity for Mr Fernando to offend further is reduced by the NDIS support around him and I am satisfied that if Mr Fernando's behaviour was to become more dysregulated, his NDIS workers would notice that and respond accordingly. But that is not a complete answer to the State's application. The fact remains that the NDIS caseworkers should not be required to act as de-facto ESO compliance officers; their role has a different focus.
16. I am required to have regard to any statistical testing under s 9(3)(d) of the Act. Both of the court appointed experts in this matter noted the limitations of such testing for all offenders and I have extracted their observations in this regard above. I have also noted the comments of Chen J in State of NSW v Cohen (Final) extracted at [78] above. Although I have had some regard to that testing, it is only one of many matters that I have had regard to and was not in any way determinative.
17. I have carefully considered Mr Fernando's submission that there are so many protective factors already in place that any remaining incremental protective features of an ESO should be weighed against the threat of another breach for minor conduct (such as running into his grandchildren in a shopping centre). I am certainly concerned that Mr Fernando's cognitive decline is such that he may breach a condition out of, for example, forgetfulness, rather than intention. But on the other hand, his NDIS case workers can help remind him in this regard. I have had regard to this risk in my consideration of the appropriate conditions below.
18. I have also had regard to the fact that, excluding breaches of his ESO, Mr Fernando last committed a criminal offence in 1999 when he was aged 37. He is now 61. But that timeline has to be considered in the context that he has spent so much time in custody for his serious offending (and his inability to obtain parole). He was only released from custody and able to commit further offences since 2016 and he has been on a strict ESO since that time which he has breached numerous times.
19. Further, since Adamson J made the ESO, Mr Fernando has experienced substantial cognitive decline and is in poor general health. This change weighs both for and against the imposition of a further ESO. The experts have explained how cognitive decline often leads to disinhibition. Mr Fernando has explained to both experts his continued sexual preoccupation, especially with teenagers in school uniforms. He told Dr Elliott he still gets aroused thinking about two of the three assaults he committed. I accept the State's submission that it cannot be said that his age and condition have reduced his risk factors in any significant way on the material before me.
20. Although I am concerned that placing Mr Fernando on a further order for a period of two years leaves open some prospect that he may inadvertently breach it, I am satisfied to a high degree of probability that there is an unacceptable risk that he will commit a serious sex offence if not supervised under an ESO for a further period of time. I am satisfied that two years is an appropriate length. It is to be accepted that he will reach a stage where his decline is such that he will no doubt be placed in a nursing home at which time it is likely that the court appointed experts would consider his risk to have dissipated. But that time has not yet come. That is the effect of the unanimous expert evidence.
21. Having found that the statutory prerequisites for imposing an order have been met, the next question is whether I would, despite that finding, exercise the court's discretion not to impose an ESO. It was submitted that factors relevant to such a course being taken include Mr Fernando's cognitive decline, his NDIS support, the fact that he was breached for such a minor infraction and the support he is already getting under his NDIS Package.
22. The parties brought to the court's attention two decisions in which the court considered the possibility that the making of an ESO could be counterproductive or ineffective.
23. In State of New South Wales v Carr [2020] NSWSC 643 Hamill J revoked Mr Carr's ESO under s 13(1) of the Act, on the State's application, on the basis that he no longer posed an unacceptable risk to the community and that the ESO was counterproductive to his rehabilitation. Mr Carr had been returned to custody on about 10 occasions for failing to comply with the ESO, mostly for "technical" breaches, none of which involved the commission of a serious crime, or a violent or sexual offence. Hamill J expressed concern that the ESO was having a punitive, rather than protective or rehabilitative, impact and his repeated incarceration for relatively minor infractions and consequent institutionalisation adversely impacted his prospects of rehabilitation: at [4] and [32].
24. In State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328, the State appealed Fagan J's dismissal of its application for an ESO pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW). Basten, Macfarlan and Leeming JJA shared the primary judge's view that the State did not show that there was an unacceptable risk of Mr Naaman committing a serious terrorism offence if no supervision order was made. Although the court did not find that Mr Naaman reached the level of unacceptable risk, and therefore the discretion to decline to impose an order was not at play on the facts in that case, the court made the following helpful observation at [29(6)]: "[I]f so satisfied [that the defendant poses an unacceptable risk], then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order."
25. I am not satisfied that this is a case in which the imposition of an ESO would be counterproductive in the sense of worsening Mr Fernando's risks, nor would it fail to reduce the risk. It seems to me that if the statutory test is met and the risk of it being counterproductive does not arise, it is difficult to envisage a situation in which a court would exercise its discretion not to impose an ESO if otherwise satisfied to a high degree of probability that there is an unacceptable risk of him (or her) committing a serious offence if not placed on an ESO. I do not propose to exercise the court's discretion in this matter in this regard.

Conditions of the ESO

1. In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ESO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
2. As Beech-Jones J (as his Honour then was) observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]: "In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender … to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender."
3. Mr Fernando contended that some of the conditions sought by the State do not align with his risk profile and fail to account for his recent compliance with his ICO, his cognitive decline and his intensive NDIS funded supervision. It was submitted that any condition imposed by the court should be tailored specifically towards Mr Fernando's risk profile.
4. Although many of the conditions were not opposed, those restricting his liberty were; in particular the electronic monitoring and scheduling conditions. It was submitted that the high level of support and supervision in place independent of electronic monitoring and strict scheduling is sufficient.

Electronic monitoring

1. The State seeks the following condition: "4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment."
2. Mr Fernando seeks the deletion of that condition. He submitted that given the other supports, continued electronic monitoring provides no material risk reduction to the community. He highlighted that the court appointed experts expressed concerns as to whether Mr Fernando would comply with the schedule of movements given his cognitive decline and submitted that this risks incarceration because Mr Fernando could not comply with scheduling conditions.
3. It was also submitted that electronic monitoring has had a deleterious effect on Mr Fernando's mental health. Mr Fernando told Ms Wright that his decision to attempt to end his life in April 2021 was because of "loneliness and feeling disconnected from family and Aboriginal culture". As noted above, he also told Ms Bruce, a solicitor at Legal Aid, that electronic monitoring causes great embarrassment and stress that stops him from going out and that it is hard for "Aboriginal people to meet up and live their life and connect because of these orders". Counsel for Mr Fernando posited that if it is to be accepted that his isolation and hopelessness increase the risk of reoffending, electronic monitoring may have a perverse effect and elevate the chance of offending.
4. Apart from the embarrassment caused to Mr Fernando, I am satisfied that electronic monitoring meets his risk factors given his cognitive decline. His NDIS workers may be present during the day, but electronic monitoring is a protective factor should Mr Fernando go out on his own at night.

Scheduling

1. The State seeks the following scheduling conditions: "5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency."
2. Mr Fernando submitted that scheduling should not be a requirement. In the alternative, he proposed "dry scheduling" conditions as follows: "5. If directed by his DSO, the defendant is to provide a summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, the dates of travel, but not his travel route or precise timetable. If so directed, the defendant is to provide that summary no later than noon of the Monday immediately following the issue of the directions. It must be an honest summary of the defendant's anticipated movements. 6. A DSO must not withhold approval of the defendant's attendance at any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order. 7. It will not be a breach of this condition if the defendant departs from the summary, provided the defendant notifies his DSO of his change of plans before doing so, or if that is not possible, as soon as is reasonably practicable afterwards."
3. Mr Fernando also proposed restricting the DSO's power to withhold approval to ensure alterations are not refused unless there is good reason to do so: that definition was used by Rothman J in State of New South Wales v Davis [2021] NSWSC 837.
4. Having initially opposed the proposed condition 6 by submitting that it does not afford sufficient degree of flexibility as to the reasons that might underpin a decision not to approve a particular activity, the State proposed that withholding of approval be termed as "unreasonable" withholding of approval. In addition to that, the State raised the inconsistency between the operation of the alternative condition 7 with the latter part of the State proposed condition 6 that any change must be sought 24 hours in advance.
5. I am satisfied that dry scheduling requires a defendant to note their activities and when they will be completed without the requirement to nominate precise times. It is a less onerous regime that minimises the chance of a technical breach.
6. I am also satisfied that this proposal helps the goal of establishing a routine without being unnecessarily restrictive and allows for monitoring by the DSO: similar conditions were used in State of New South Wales v Matthews (AKA Hackett) [2019] NSWSC 1360 and by Hoeben CJ at CL in State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813.
7. Although Dr Elliott expressed concern about Mr Fernando's ability to comply with scheduling, I am satisfied that he can do so with the help of his NDIS workers. If he has a dry schedule, which is prepared with the help of his NDIS workers, I am satisfied that he will be able to comply. If he has to telephone to check, so be it. I am satisfied dry scheduling is sufficient to meet the identified risk. I propose to add the word "unreasonably" to condition 6.

Contact with his grandchildren

1. The State proposes the following condition: "30. The defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can and he is with someone who has been approved in writing by his DSO. 31. The defendant must not communicate with anyone who knows is under 18 unless his DSO tells him he can."
2. Mr Fernando proposed alternative conditions: "30. The defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can and he is with someone who has been approved in writing by his DSO. This condition does not apply to the defendant's grandchildren who he can see provided he is in the company of a parent or his sister, Cheryl Lancelot. 31. The defendant must not communicate with anyone who knows is under 18 unless his DSO tells him he can This condition does not apply to the defendant's grandchildren."
3. Mr Fernando submitted that given Dr Elliott's doubts about the diagnosis with paedophilia and noting the pattern with the index offending of assaults of pubescent girls, the prohibition of any contact with a person under the age of 18 without prior written approval from a DSO is unduly onerous. It was submitted that there would be no real or appreciable risk if Mr Fernando was allowed to spend time with his grandchildren with his adult children present.
4. The difficulty with the condition proposed by Mr Fernando is that he still has not told his adult daughters of his past sexual offending. There is a concern that although his daughters may permit him to see his grandchildren, if that is not with informed consent they may not be as concerned about his access being supervised as they would be if they were aware of the true situation. On one view, they may well know of or suspect the nature of his offending in any event; especially given the circumstances of his breach of the ESO, but there was no material before the court which would permit me to conclude that that is in fact the case.
5. I have considered the OIMS notes in relation to Mr Fernando's prevarication on the question of whether to disclose his offending to the parents of his grandchildren. He was prepared to for some time and then changed his position. I can understand his reluctance, but I am not prepared to impose a condition that he be around children when the parents of those children are ignorant of information relevant to that decision.
6. I propose to impose the condition advanced by the State. If Mr Fernando tells the parents of his grandchildren about his offending, then the DSO no doubt will permit him to see them if supervised. It is entirely a matter for Mr Fernando.

Access to pornographic, violent and classified material "48. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO."

1. It was submitted that none of the experts considered watching adult pornography in moderation to be a particular risk factor. Whilst he was recently on his ICO, he was permitted to view adult pornography and no problems arose from that, although it was monitored. It is to be accepted that Dr White describes a potential risk factor in this way at [75] of her report: "Most prominent risk scenarios are likely to occur in the context of inadequate supervision and formal support or ability to withdraw from the same, drug and alcohol use, interpersonal stress, medication non-compliance, and deterioration in is mental health. Risk scenarios are likely to be contact sexual offences against pubescent female victims, although could also be adult females, involving actual or attempted penile vaginal intercourse. They may be strangers or acquaintances for example a neighbour with pubescent/adolescent children or a family friend. Offences would be opportunistic and impulsive, with no thought of the consequences although may be a result of him seeking out a victim e.g. school girl. He is likely to use a weapon or use physical and psychological coercion to obtain compliance. Offences are more likely in the context of heightened sexual preoccupation, such as being fuelled by stimuli such a pornography, child abuse material or rumination on previous offences." (Emphasis added.)
2. It was suggested that the condition imposed by Weinstein J in State of New South Wales v Colb (Final) [2023] NSWSC 969 should be imposed in relation to Mr Fernando. It is in these terms: "The defendant must notify a DSO as soon as practicable if he has purchased, possessed or possesses, accessed, obtained, viewed, participated in or listened to material classified or material that could be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material as directed by a DSO with respect to concerns related to the risk of committing a serious offence."
3. I note that there are already conditions 35-38 regarding access to the internet and a power under condition 46 for his DSO to inspect his telephone. I am satisfied that that is sufficient without condition 48 being required. It is to be accepted that some moderation of his access to pornography is necessary given Dr White's identification of excessive viewing as being a risk factor. The existing conditions provide his DSO with the power to control his internet use. I would delete condition 48.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) I order that Mr Fernando be subject to an extended supervision order for a period of two years from 31 August 2023. 2. Pursuant to s 11 of the Act, I direct that Mr Fernando, for the period of the extended supervision order, comply with the conditions set out in Schedule to order 1. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

State of NSW v Fernando.Schedule of Conditions (99465)

Endnotes

1. A Janca and C Bullen, "The Aboriginal concept of time and its mental health implications" (2003) 11 Australasian Psychiatry 60.
2. Ibid 60, 62. 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: 31 August 2023