State of New South Wales v Golding

Supreme Court of NSW|2018-07-04|Before: Hulme J

Solicitors: NSW Crown Solicitor's Office Legal Aid NSW File Number(s): 2018/136841

Judgment

HIS HONOUR: This is a preliminary hearing of an application by the State of New South Wales under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") for various orders, including an extended supervision order ("ESO"), against Mr Laurence Golding.
At this hearing the State is seeking the appointment of two experts to conduct examinations of Mr Golding and to provide reports to the Court and an interim supervision order ("ISO") to take effect when Mr Golding is released from his current period in custody.
Mr Golding opposes the application.

Some principles derived from case law

The test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [82] (Basten JA).
The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] (Beazley P). Those objects are: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof; it is "beyond more probably than not" but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at [44] and [55]-[58] (Beazley P), [128] (Basten JA), [148] (Gleeson JA).
I agree with what Harrison J said in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43] about the provision in s 5D (formerly in s 5B(3)): "… [I]t is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low."
A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J).
The test in s 10A ("the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that "'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO".
There does not appear to be controversy about this. What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and to consider whether those facts would justify the making of an ESO.

Offender's general background

Mr Golding was born in Gympie in Queensland and was the eldest of his parents' three children. His parents separated when he was aged 10 and the children remained with his mother. Mr Golding told a psychologist in 2011 that his father was physically and emotionally abusive towards himself and his mother. He denied experiencing any sexual abuse. His father died in 2006. His mother remains living in Queensland and he remains in contact with her by telephone.
Mr Golding completed primary and high school in rural Queensland. After completion of Year 12 he embarked upon, but did not complete, a Diploma in Business through TAFE. He commenced a Bachelor of Business at university at age 22 but failed subjects and did not complete it. His employment history has been in unskilled positions and rather sporadic. He seems to lack any enthusiasm or commitment, describing himself to the psychologist in 2011 as "a shit house employee" who was lazy and did not like working.
Mr Golding also appears to be a poor manager of his personal finances; illustrated by his spendthrift attitude to a significant inheritance from his father's estate in 2007. He has ascribed his financial problems to gambling as well as drug and alcohol issues.
The 2011 psychological assessment included that Mr Golding reported a significant history of drug and alcohol use. (I note that he provided a broadly consistent account in a 2012 assessment by Dr Jonathon Adams, forensic psychiatrist.) Alcohol use had commenced recreationally in his teenage years but escalated in his 20s and continued into his 30s. He had also used a range of drugs including speed, cocaine, ecstasy and cannabis. He described such drug use as infrequent and said it was usually in the context of alcohol use. He identified his motivation for alcohol and drug use as escape, boredom and as a coping mechanism. He said it lowered his inhibitions and promoted sociability to the point where he found it hard to talk to women when not under the influence.
Mr Golding has not had any long-lasting relationships, intimate or platonic. He had close friendships in the past but lost contact with people due to his itinerancy. He had his first consensual sexual encounter at the age of 20 and estimated in 2011 that he had since had in excess of 200 sexual partners, mostly within an impersonal context (prostitutes; one-night stands) after drinking excessively. He also reported spending a substantial amount of time viewing adult heterosexual pornography (6-10 hours a day at times when he could afford it).
Mr Golding told the psychologist in 2011 that he can generally manage his sexual impulses with the exception of when he has used alcohol or when he does not have an "outlet" (namely, attending sex shows, having sex with prostitutes or accessing pornography).
He told Dr Adams in 2012 that he had a "reasonably high libido". Dr Adams considered Mr Golding's psychosexual history was in keeping with the paraphilic disorders of exhibitionism, voyeurism and frotteurism. Mr Golding told him that there were four factors which were relevant: alcohol; boredom; lack of money; and homelessness. He described alcohol as his primary concern. Dr Adams considered that Mr Golding required long-term close monitoring of his mood and paraphilic sexual fantasies, urges and behaviours.

Criminal history

Mr Golding's criminal history comprises many instances of both sexual and non-sexual offences. The following is a very brief summary of some of those which were highlighted in the submissions of counsel for the State.
On 5 October 2004 Mr Golding approached a woman in a public place in Currumbin, Queensland, and asked, "how about it?" He called out as she ran away, "show me your tits". He later told police that he was hoping that the victim would have sex with him. (JL-1/15)
On 28 February 2005 a 28 year old woman was walking along the river boardwalk in Brisbane City when Mr Golding approached her, took his penis out and masturbated directly in front of her. (JL-1/19 (p167))
On 11 April 2005 two women aged 24 and 27 were followed by Mr Golding as they walked back to their apartment in Spring Hill (Brisbane) at about 4.50am. When they closed the glass security door of their apartment complex they turned and saw him masturbating. (JL-1/19 (p 164))
On 16 April 2005 Mr Golding stood outside a woman's home in Spring Hill and, as she looked out the window, he masturbated and ejaculated, flicking his hand so as to cause semen to spill on her window and some to enter the house. (JL-1/18)
On 14 May 2005 another woman in Spring Hill had called police regarding a man being in her yard and Mr Golding was arrested. He returned to the victim's home the same day and she saw him looking into her bedroom window. (JL-1/19 (p173))
On 16 and 20 May 2005 Mr Golding stole a woman's underwear which was hanging on a washing line at the rear of a home in Spring Hill. (JL-1/19 (p155-160))
On 21 May 2005 he masturbated in front of a woman sunbaking in the Brisbane City Botanical Gardens. When arrested he was found to be in possession of five pairs of women's underwear. (JL-1/16)
On 12 September 2005 a woman who lived in Spring Hill was disturbed by Mr Golding standing across the road from her home staring at her. She later saw him at her window staring at her. He ran away when she screamed but she then noticed that he had manipulated her flyscreen so as to keep it open and there was a sticky fluid on the ground outside her door. Two days later she was disturbed during the night and the following morning found a piece of paper pushed into the flyscreen containing explicit sexual references to her. The note was signed, "The phantom puller". When later arrested for these offences Mr Golding said that he vaguely remembered being at the woman's home and he remembered that she was not wearing much and that he had masturbated. (JL-1/19 (p152))
On 9 November 2005 he stood in front of a 19 year old woman in the grounds of the Queensland University of Technology and masturbated. (JL-1/17)
On 22 November 2005 he stood in front of a 21 year old woman seated on a ferry wharf near the Queensland University of Technology and masturbated while smiling and smirking at her. (JL-1/p146)
On 28 November 2005 Mr Golding masturbated in front of a woman seated at a ferry terminal in Brisbane. She described him as sniggering and laughing throughout and he ejaculated in front of her. (JL-1/20)
On 21 November 2007 in Townsville Mr Golding entered a home occupied by a 16 year old female and stole a wallet before leaving. The victim saw Mr Golding in the garden and he told her that he was looking up her skirt and "You look like a nice 17 year old". As she turned to go back inside the house he walked towards her and said, "show me your tits and I'll leave". He then masturbated in front of her and ejaculated on the back steps. On 16 February 2015 he received sentences of 6 months' imprisonment in respect of both of those offences. (JL-1/24)
On 11 May 2008 in Saint Lucia (Brisbane) Mr Golding gained entry to a woman's house and confronted her and her housemate in the hallway while exposing his penis and masturbating. On 16 February 2015 he received a suspended sentence of imprisonment for 6 months. (JL-1/25)
On 10 January 2010 in Adelaide Mr Golding came up behind a woman who was sitting on some grass listening to music with headphones. She felt a splatter on her back and turned to see Mr Golding who then walked away. She realised that the splatter on her back was semen. Mr Golding was extradited from Queensland to South Australia for that offence on 22 May 2015. He told police that he had been drinking the night before the offence and was drunk. He said he saw a girl sitting on a riverbank and was aroused. He then stood behind her and masturbated. On a charge of indecent assault Mr Golding was initially sentenced on 2 March 2016 to a suspended term of imprisonment for 3 months 2 weeks. Mr Golding left South Australia during the currency of the bond and, as a result, it was revoked on 9 September 2016 and he was ordered to serve the term of the sentence. (JL-1/27-29)
On 13 April 2010 Mr Golding came up behind a woman who was going up an escalator at Central Railway Station in Sydney. He pulled the woman's hair causing her to turn around. He then leaned forward with his face in her hair and touched or rubbed the back of her knee. He then touched her firmly on the vagina over her clothing. He was described as smiling and laughing to himself. He was charged with an offence of indecent assault. (JL-1/12)
On 16 May 2010 a 15 year old girl caught a train in the Hunter Valley region. She had noticed Mr Golding looking at her before she got on the train and after being on the train for some time he stood up and came and stood behind her and masturbated. She felt something touching her shoulder and then felt something "wet and warm" hitting her neck. She turned and saw him with his pants down and his erect penis exposed. Mr Golding was charged with indecent assault of a person under the age of 16, the only offence in his criminal history that constitutes a "serious sex offence" as defined in s 5 of the Act. (JL-1/12)
For those two matters Mr Golding was sentenced in the Local Court on 28 July 2010 to imprisonment for 6 months and for 14 months respectively. On appeal the non-parole period for the latter offence, an offence of indecent assault upon a person under the age of 16, was reduced from 10 months and 15 days to 8 months. (JL-1/13-14)
On 29 April 2010 (that is, in between the two offences above) Mr Golding broke into a unit on the ground floor of a security complex in Glebe at about 3am. He went to an adjacent unit where the victim, a Swedish national residing in Australia was asleep together with two friends who were visiting her from Sweden. He stole some money and then lay down next to the bed in which two of the women were asleep. The victim woke when she felt a "tickling" sensation on her genitalia. She saw an arm retract when she opened her eyes. She called out, believing it to be one of her friends, and then reached for her phone. She used the torch function to illuminate Mr Golding who was lying beside the bed with his pants pulled down to his knees. He remained there and she turned the torch back off and lay still, too frightened to say anything. Mr Golding then got up and decamped, pulling up his pants before making his way out the door. (JL-1/22)
Mr Golding was sentenced in the District Court on 23 March 2012 for offences of aggravated break enter and steal and with indecent assault. Zahra SC DCJ imposed a sentence of imprisonment for 5 years with a non-parole period of 3 years dating from 10 December 2010.
During the sentence proceedings in the District Court Mr Golding gave evidence that he had no recollection of the offences and that he had been drinking alcohol in the days leading up to them. He said it was most likely that he was seeking money. He told Dr Adams that he had recently separated from his partner and that in the months prior to the offending he had viewed pornographic material on the internet, including a website entitled "Sleep Creep" and another relating to "public ejaculation". His Honour was unable to determine whether Mr Golding intended to commit the indecent assault when he entered the apartment, although he had grave suspicions that he did.
Mr Golding was in the custody of Corrective Services NSW from 20 May 2010 until 25 September 2014. He undertook and completed the Custody Based Intensive Treatment ("CUBIT") program from April 2013 until June 2014 (see below at [64]). Upon his release on parole he was immediately extradited to Queensland where he was returned to custody for breaching his parole in that State in May 2008. He also received sentences of imprisonment in the Brisbane Magistrates Court on 16 February 2015 for the offences committed in November 2007 and May 2008 (see above at [39]-[40]).
Upon being released on parole in Queensland, Mr Golding was extradited to South Australia where he received the suspended sentence of 3 months and 2 weeks on 2 March 2016 that on 9 September 2016 was converted to a full-time term of imprisonment (see above at [41]).
In July 2016 Mr Golding travelled from South Australia to Queensland. Although he was in email contact with the Australian National Child Offender Register, he refused to provide details of his accommodation or his location thereby breaching his obligation to report any interstate travel exceeding 7 days. (It also constituted a breach of the conditions of his suspended sentence.) For an offence of failing to comply with his reporting obligations he was sentenced on 27 September 2016 to imprisonment for 9 weeks. (JL-1/30-31)
It seems to be the case that Mr Golding was released from prison in South Australia in early 2017 and returned to New South Wales soon after.
On 12 March 2017 Mr Golding boarded a train at Wynyard Station and sat across the aisle from an adult woman. He stared at her before putting both of his hands down his pants and commencing to masturbate while continuing to stare at her. This continued for about 10 to 15 minutes before he stood up and got off the train, smiling and waving towards the victim as he did. (JL-1/32)
Later that day Mr Golding was at a bus stop in Frenchs Forest where he spoke briefly with two 13 year old girls. When they got on a bus he followed and sat directly in front of one of the girls. He continually looked at one of them and spoke to them briefly. He then exposed his erect penis. When they looked away he then covered himself and got off the bus. (JL-1/32)
In relation to those two offences, Mr Golding later explained that his failure to maintain his self-management was due to his level of intoxication. (JL-1/p56)
Mr Golding was initially sentenced on 5 July 2017 to an aggregate term of imprisonment for 18 months with a non-parole period of 9 months in the Local Court but on appeal to the District Court on 22 August 2017 the overall sentence was reduced to an effective term of 14 months expiring on 17 July 2018 with a non-parole component of 8 months expiring on 17 January 2018. (JL-1/33-34)

History of non-sexual offending

Mr Golding's criminal history includes numerous convictions for offences not of a sexual nature. They include dishonesty offences, such as larceny and fraud; assault; breach of probation; escape lawful custody; failing to appear in court; and failing to comply with reporting obligations. The sentences imposed have included conditional orders as well as full-time imprisonment.

Release on parole and return to custody

Mr Golding was released on parole on 17 January 2018 on the condition that he live at the Nunyara Community Offender Support Program ("COSP") Centre. He has been described as being immediately resistant to supervision and reticent to engage with the Community Corrections Officers. On 18 January he left and was scheduled to return at 4.00pm. He failed to return. (JL-1/39-40)
Mr Golding's parole was revoked by the State Parole Authority on 19 January 2018. He was apprehended in Victoria on 3 February at the Crown Casino where he was in possession of numerous identification and bank cards, driver licenses and bank statements in the names of other people. He gave police a false name. He was found in possession of a notebook in which he had written things suggesting thoughts of absconding overseas. He was sentenced to a term of imprisonment for 14 days for a proceeds of crime offence relating to the false identity items found in his possession. (JL-1/35).
Following completion of his sentence in Victoria, Mr Golding was extradited and re-entered Corrective Services NSW custody on 21 February 2018. On 25 February 2018 he was sentenced to 2 months' imprisonment for an offence of failing to comply with reporting obligations under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). (EM-1/5)
On 29 March 2018 the State Parole Authority declined to rescind its revocation of Mr Golding's parole.
In a letter to the State Parole Authority dated 9 April 2018, by which he sought a reconsideration of his parole, Mr Golding wrote the following as to why he needed supervision in the community: "There are many factors involved in my offending behaviour and among these are homelessness, poor or unsuitable accommodation options, gambling issues, alcohol issues, poor financial planning, anxiety, worry, depression, poor relationship skills, lack of employment skills. None of these are an excuse to offend and none by themselves can be used to explain why I breached parole. Unfortunately when these factors are combined my mind and emotions become confused, negative, scattered and stressed and I make poor decisions such as not turning up to my address or wanting to escape from my problems by gambling, drinking or sexual behaviour which can be offensive and or illegal." (EM-1/p20)
Mr Golding also suggested that it was in the interest of community safety that he be under the supervision of Community Corrections, albeit this was in the context of advocating for a release on parole before the expiry of his sentence: "In relation to public safety I refer to the section 135(1) of the Crimes (Administration of Sentences) Act 1999 that it is in the interest of the community for me to be under supervision of Community Corrections. Under s 135(2)(c) the Parole Authority should take into account the risk of releasing me at the end of my sentence without a period of supervised parole and without re-dress of some of the factors that led to the offending and the breach of parole. … It would be much better for me as well as the community that I have some supervision before being completely finished my sentence so that I can get assistance and address the issues that lead to offending."
Mr Golding's present sentence is due to expire on 18 August 2018. (EM-1/4) However, subsequent to the hearing the Court was advised that the State Parole Authority is to have a hearing on 10 July 2018 in relation to a review of the revocation decision made earlier this year.

Report of Dr Calinda Payne 16 July 2014

Dr Calinda Payne is a forensic psychologist who prepared a report dated 16 July 2014 in relation to Mr Golding's completion of the Custody-Based Intensive Treatment ("CUBIT") on 18 June 2014. The report described Mr Golding's participation as "excellent" and indicated he had a strong motivation to engage in treatment. Under the heading "Sexual self-regulation" the report stated: "Mr Golding demonstrated the ability to regulate his sexual functioning and if he continued to apply the strategies he has learnt in treatment he should be able to further solidify the changes he has reported and manage his sexual functioning successfully in the future. His ability to do so would be enhanced by intervention which allows him to discuss his success and failure."
Under the heading co-operation with supervision, the report included: "Overall Mr Golding is generally compliant with supervision and presents as eager to maintain an offence free lifestyle. In the past non-compliance has been associated with further offending. If Mr Golding continues to apply the self management plans he has developed, especially regarding emotional, sexual and social functioning, and relapse prevention strategies associated with substance abuse, gambling and sexual offending, he should be able to maintain his ability to cooperate with supervision and successfully comply with the conditions of parole."
Finally, under the heading conclusions and recommendations, the report stated: "The changes Mr Golding has made throughout treatment, especially improvements in the areas of sexual self-regulation and emotional regulation, represent a decrease in dynamic risk. However, taking into account both static and dynamic risk factors, the risk rating of High on the STATIC-99R is considered as accurately representing Mr Golding's current risk."

Risk Assessment Report

Mr Samuel Ardasinski, a senior psychologist with Corrective Services NSW provided a Risk Assessment Report dated 15 December 2017.
Mr Ardasinski assessed Mr Golding's risk of sexual re-offending using the STATIC-99R assessment tool which yielded a "well above average" score. Using the STATIC-2002R tool there was a result placing Mr Golding in the "high risk range". Mr Ardasinski also conducted a Dynamic Risk Assessment using the STABLE-2007 tool which yielded a result suggesting a high density of criminogenic needs relative to other male sex offenders. Combining the results of each of those three assessment tools, Mr Ardasinski found Mr Golding was at a level which indicated he required a high degree of intervention and/or supervision.
The report includes discussion of what are considered to be the dynamic factors relevant or potentially relevant to an assessment of Mr Golding's risk of sexual re-offending. Mr Ardasinski identified the following: ● Deviant sexual interest (exhibitionism) with chronic course, sexual preoccupation - hyper sexuality and use of sex as coping. ● Substance abuse (alcohol consumption and drug use) and gambling to cope with loneliness and social skills deficits and boredom, then attempting to meet women. ● Lack of interpersonal intimacy skills, lack of meaningful relationships, social isolation and loneliness, lack of work history or work ethic, homelessness. ● Victim access, lack of consideration as to impact of offending on self or others.
In relation to the last of those factors Mr Ardasinski described Mr Golding's risk as "chronic" if he has access to attractive females when he is in a state of sexual arousal.
Mr Golding's family was identified as a potential protective factor but due to various issues, living with them is not a practical option. He also identified housing and participation in a community based maintenance program, as well as remaining abstinent from alcohol and drugs, as protective factors.
Mr Ardasinski said the following as to the most likely scenario for further sexual offending by Mr Golding: "Mr Golding's most likely scenario for further sexual offending would involve exhibitionistic exposure and/or masturbating in public, mostly likely on public transport, which would likely be preceded by a period of homelessness and/or a return to substance abuse. It remains less likely that Mr Golding would escalate to hands-on contact offending, despite his history of same in 2010, however if he accessed pornography which promoted a new form of sexual offending which appealed to Mr Golding, or if the opportunity presents itself (e.g. with a female person in his target victim range at home alone and with an unlocked entry point) such offending may eventuate, since he has committed break-and-enters before. If Mr Golding maintains stable housing and abstains from alcohol use, however, the risk of a further serious sexual offence eventuating would be moderated greatly."
As to Mr Golding's overall risk of further sexual offending, Mr Ardasinski stated: "The management of risk usually involves the offender improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. In Mr Golding's case, he has developed insight into his pathways to offending and has abundant psychological resources. With appropriate support and guidance, he may not require an extensive period of additional intensive supervision if he can access meaningful employment, stable housing and have his mental health needs met into the future. The overall totality of evidence suggests that Mr Golding falls in the High risk category of sexual offending relative to other adult male sexual offenders. Since even Mr Golding's most serious sexual offending has never involved penetrative sexual activity, it appears possible that while any future sexual violence could approach the threshold of a "serious sexual offence" as defined in the Crimes (High Risk Offenders) Act 2006, the risk for serious physical harm is minimal. In the likely scenario for future sexual offending involving indecent exposure or masturbating in public, which may or may not result in a serious sex offence according to the HRO Act, Mr Golding has demonstrated poor judgement and an inability to distinguish between his preferred target victim cohort ("attractive adult women, aged 18-30") and post-pubescent teenage girls. Indecently assaulting a young teenage victim, for example (as I understand s61M of the NSW crimes Act 1900 to refer to) [sic], would constitute a serious sexual offence as defined in the Crimes (High Risk Offenders) Act 2006. The risk of a serious sexual offence appears manifold if Mr Golding's judgement is impaired further with alcohol intoxication." (Emphasis in original)
As part of his conclusions, Mr Ardasinski stated: "It remains the case that without oversight from CSNSW, Mr Golding will continue to present a heightened risk of returning to sexual offending if he becomes homeless, he drinks to excess or gambles away all his money and he gains access to a potential victim on public transport. If that victim were under the age of 16, a serious sex offence may eventuate."
Mr Ardasinski's report, as noted previously, was written prior to Mr Golding's release on parole in January this year. By way of an update he provided an affidavit sworn on 8 June 2018. Mr Ardasinski essentially remained of the same opinion as previously expressed. However he indicated that the breach of parole which amounted to a rejection by Mr Golding of supervision was a further concern as a risk factor for future sexual offending. He quoted the authors of the STABLE-2007 Coding Manual as having stated: "Offenders who resist rules, place themselves in risky situations, engage in rule violations, express a defiant attitude towards authority figures, and who display oppositional behaviour towards those in a supervisory role are at an increased risk to reoffend… Non-compliance with rules and authority is a core feature of criminal conduct… studies consistently find that non-cooperation with supervision is associated with sexual recidivism."
Mr Ardasinski also noted the discrepancy between Mr Golding's level of compliance and positive engagement in treatment (e.g. the CUBIT program) and his level of antagonism and rejection of supervision as documented in the more recently available materials concerning the breach of parole and absconding interstate. Mr Ardasinski said: "This contradiction in Mr Golding's presentation between settings, in my opinion, adds weight to the conclusion that his unpredictability increases his risk of further offending, both sexual and otherwise."

Risk Management Report

Ms Carly McMillan, a Community Corrections Officer, has prepared a Risk Management Report dated 18 January 2018. The report has been endorsed by Ms Janelle Farroway, the High Risk Offender Application and Operational Governance Officer.
A risk management plan for Mr Golding was formulated on the basis of his risk factors together with information contained in Mr Ardasinski's report. It was proposed that a management strategy would be employed with features including: * Weekly face-to-face interviews. (The report sets out the approach that would be taken in such interviews.) It is noted that a limitation of this strategy is that Mr Golding had not previously been supervised on a community order in this State and his response to supervision is unknown. (Unfortunately, his response was made known almost immediately with him absconding on parole.) * Scheduled and unannounced home visits, field visits and surveillance by the ESO Investigation Team would be conducted at least once per month. The limitations of this strategy were that Mr Golding could not be monitored 24 hours per day and he may engage in inappropriate behaviour when not being monitored. * Liaison would be maintained with various "stakeholders" involved in Mr Golding's management; for example, COSP staff, Forensic Psychology Services, the ESO Investigation Team, Corrections Intelligence Group, any doctor, employment network provider and his mother. * Electronic Monitoring would assist in management of Mr Golding's movements and adherence to a schedule of movements and curfews. The submission of weekly schedules of movements are thought to be useful in providing Mr Golding with the opportunity to develop forward planning, minimise impulsive acts, to plan pro-social activities and provide opportunities for pro-social relationships. A curfew is thought desirable in assisting him to develop structure to his activities and limit his exposure to risk related activities.
Other features were referral to psychological services (FPS) and drug and alcohol services; alcohol and drug testing; management of contact with children; and non-association and place restrictions.
The report notes that the risk management plan would be reviewed every two months and updated as necessary.

Past performance when subject to restrictive obligations

Aside from decamping immediately after release on parole earlier this year, Mr Golding's previous opportunities of being released on conditional liberty in the community have been far from successful.
He was released on probation in 2006 but was convicted in 2008 of breaching that order. In 2007 he was convicted of failing to appear in accordance with a bail undertaking. In 2009 his parole in Queensland was cancelled after he failed to gain entry into a residential rehabilitation program and relapsed into alcohol abuse and gambling. There were issues about his accommodation and refusing to submit to a urine test. He stopped reporting as required and it was then discovered that he had given a false residential address.
Mr Golding was convicted in 2016 in South Australia and in 2018 in New South Wales for failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act or equivalent. He was also re-sentenced in South Australia in 2016 for breaching conditions of a suspended sentence.

Submissions for the State

Counsel for the State provided very helpful written submissions in which it was contended that all of the statutory preconditions were established by the evidence.
As to the ultimate issue, whilst it was acknowledged that most of Mr Golding's repeated sexual offences have not involved physical contact with victims, they have sometimes done so, including a number in which he has ejaculated onto his victims. He had also committed an offence in which he entered a residence and indecently assaulted the female resident while she was sleeping.
It was submitted that, even if Mr Golding did not pose a risk in relation to children, he continues to pose a risk of committing sexual offences against young women in the 18-30 age group. It was accepted, however, that he had not committed a serious sex offence (as defined) against such a person.
Reference was made, however, to two offences that were committed against children, one being a serious sex offence. This indicated that there was a potential for further offending against children, whether intentionally or by mistake (for example, because of intoxication). If such an offence involved contact it would very likely come within the category of a serious sex offence.
Counsel also noted that Mr Golding has continued to sexually offend, including against children, after having completed the CUBIT program. This was said to demonstrate that "more will need to be done to prevent him committing further sexual offences in the future".

Submissions for Mr Golding

It was conceded that the various preconditions to the making of an order were established. However, acknowledging that Mr Golding may be a risk, perhaps even a high risk, of committing a further offence, it was not conceded that there was "a high degree of probability that [he] poses an unacceptable risk of committing another serious offence if not kept under supervision": s 5B(d).
Counsel submitted that the standard tools for "risk assessment" do not distinguish between the risk of committing a further sexual offence and the risk of committing a "serious sex offence".
The following positive factors were emphasised: 1. Mr Golding has been cooperative in the process. 2. The Risk Management Report included that Mr Golding could be adequately supervised in the community. 3. Mr Golding had participated in various treatment and rehabilitation programs and had received positive reports upon completion. Such programs included CUBIT, Getting SMART, and SMART Recovery. He had also participated in Alcoholics Anonymous and meditation. 4. Whilst there are various entries on Mr Golding's criminal history there is only one that amounts to a "serious sex offence" and that was in 2010. This was said to suggest that any future offence is unlikely to be in that category. 5. The District Court sentence imposed in 2012 included a reduction of the non-parole component of the sentence.
It was submitted that the present application appeared to be an effort to create a substitute for parole. There were other options for supervision; for example, an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).
The passage in the Risk Assessment Report where Mr Ardasinski said it was "less likely that Mr Golding would escalate to hands-on contact offending" (see above at [72]) was emphasised by counsel. Mr Ardasinski there said that such offending may eventuate if Mr Golding accessed a certain type of pornography. Counsel submitted that there was no evidence that would found such speculation.
Counsel also referred to Mr Ardasinski saying that Mr Golding's offending has "never involved penetrative sexual activity" and the "risk for serious physical harm is minimal".

Determination of whether orders should be made

There are some quite significant arguments against the proposition advanced by the State that an ESO should be made. However, as indicated earlier, that is not the question presently before the Court. The question is whether the facts assumed to have been established by the evidence would justify the making of an ESO on the basis that there is a high degree of probability that Mr Golding poses an unacceptable risk of committing another serious offence if not kept under supervision by an ESO.
I am satisfied that the answer to the above question is in the affirmative. I am particularly mindful of the following matters: 1. Mr Golding has an entrenched history of committing sexual offences, albeit only one falls into the category of a "serious sex offence". 2. The offences have all been committed against victims who were total strangers, generally selected opportunistically, or at random. 3. The offences have occurred with a concerning level of frequency, the most significant explanation for gaps between offences being incarceration. 4. Sex offending continued even after Mr Golding had completed a most intensive sex offender's rehabilitation program (CUBIT) in 2013-2014. 5. Over the years Mr Golding has persistently demonstrated a lack of ability to self-regulate. He has made no discernible gain from having participated in rehabilitation programs in relation to drug and alcohol issues, the latter being his most concerning dynamic risk factor. He attributed his most recent sex offending to intoxication. 6. Mr Golding's absconding from the Nunyara COSP Centre in January this year, the day after he was released on parole, further demonstrates his inability to self-regulate. It is also indicative of a persisting attitude of living for the moment with either no insight or concern as to the consequences. Moreover, rejection of the authority of supervision was seen by Mr Ardasinski as elevating the level of risk of future sexual offending. 7. A significant proportion of Mr Golding's sexual offences have occurred when he was intoxicated with alcohol. On the material before the Court, there seems no basis for confidence that this will not recur. There is force in the contention by the State that there is a significant risk that such offending could involve victims under the age of 16, whether by intent or otherwise: see, for example, the offences concerning the two 13 year-old girls last year. Any form of contact in such offending would likely give rise to at least an offence against s 61M(2); a "serious sex offence" as defined. 8. Mr Ardasinski has assessed Mr Golding as presenting a high risk of future sexual offending, albeit the assessment is not specific for serious sex offences as defined.
Releasing Mr Golding into the community at the end of his sentence without any supervision is fraught with risk (somewhat of the type he envisaged in his recent letter to the State Parole Authority). The option of imposing conditions under the Child Protection (Offenders Prohibition Orders) Act, as counsel for Mr Golding suggested, is not an attractive alternative in addressing the level of risk he presents. Mr Ardasinski pointed out in his report (at [56]), orders can be made under that statute prohibiting Mr Golding from doing certain things but they are limited in their ability to require him to do things (like remain in employment which would be a risk management strategy to alleviate the dynamic risk factor of boredom).
While it is true that Mr Ardasinski did opine, "it remains less likely that Mr Golding would escalate to hands-on contact offending", he did continue in that part of his report (at [49]) to express concern about what might occur if Mr Golding accessed pornography which promoted a new form of sexual offending which appealed to him, or if a female in Mr Golding's target victim range was at home alone with an unlocked entry point. Mr Ardasinski also said in that context that if Mr Golding maintained stable housing and abstained from alcohol use the risk of further serious sexual offending would be moderated greatly. However, those things are most unlikely to occur without extensive and close supervision for the foreseeable future.
I am satisfied pursuant to s 10A of the Act that an ISO should be made.

Conditions of the ISO

In the event that the Court determined to make an ISO, counsel submitted that any conditions should be limited to those necessary to reduce risk and that reflect the level of identified risk. She cited, for example, State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37]-[38] where I had accepted a submission that "conditions ought not be imposed that are unjustifiably onerous or simply punitive". I remain of that view. However, it is necessary to bear in mind as well that it may be appropriate to impose conditions that do not themselves directly relate to an offender's risk but are appropriate nonetheless because they promote the efficacy of an order containing other conditions which do.
Counsel raised a concern about 34 of the 59 proposed conditions set out in a Schedule to the Summons. It was contended that some were simply irrelevant to Mr Golding and the nature of any perceived risk he presents while amendments were suggested to others.
Mr Golding will not be subject to an ISO for very long given there is a maximum period of 3 months: s 10C(2). In these circumstances it will suffice to give short reasons as to my conclusions. If either party wishes to re-agitate an issue there will be an opportunity at the final hearing.
Condition 4. This will be deleted. A requirement for the defendant to attend the nearest police station to inform police of the existence of the order is unnecessary. The supervising ESO officers can do that.
Conditions 5 to 8. These relate to electronic monitoring and provision of a schedule of movements. Given Mr Golding absconded straight after he was released on parole in January this year, these conditions would appear to be very much required. He cannot be supervised if the officers do not know where he is.
Condition 11. This condition provides for a curfew "unless other arrangements are approved by his DSO". This does not bear directly upon risk. It will, however, assist in supervision of Mr Golding generally in the context of an ISO and having regard to the current proposal that he will live in a COSP Centre for the initial period after his release from custody.
Condition 19. The words and punctuation ", without prior approval of his DSO," should be added after the words, "The defendant must not".
Conditions 20 and 22. These conditions relate to employment and financial affairs. They have efficacy in relation to risks associated with Mr Golding's past homelessness and chaotic lifestyle. For example, if he is unemployment and is not directed to do something productive, he will likely become bored. Mr Ardasinski, and Mr Golding himself, have identified boredom as a factor relevant to past offending.
Condition 26. The suggested exclusion of cafes from a prohibition on entering licensed premises without approval is not warranted at this point. The consumption of alcohol is a substantial risk factor.
Condition 27. A prohibition on attending "premises where alcohol is illegally sold, or where illegal drugs are sold" was criticised as nonsensical. The State did not clarify what was meant except to suggest the inclusion of words to the effect that Mr Golding must have knowledge of the facts. This condition is too vague to be included.
Conditions 31 to 32. These prohibit association with persons who are under the influence of drugs or alcohol. I agree with the suggestion that the words "who he knows are" should be inserted before "under the influence".
Condition 33. This prohibits Mr Golding engaging the services of sex workers without prior approval of his DSO. The State's submission against the objection to this condition was rather muted. It would seem in the circumstances of this case to be a condition that would put a hurdle in the way of something that might alleviate, rather than escalate, the offender's risk: see above at [25]. This condition will be deleted.
Condition 34. This condition is concerned with Mr Golding commencing an "intimate relationship". The objection is to the vagueness of the term "intimate". Further it was pointed out that none of the prior offending has concerned a person with whom Mr Golding was, or had been, in a relationship and nor has any of it occurred in a domestic setting. There is force in these submissions but I propose to leave the condition for the moment and it may be further considered at final hearing.
Condition 35. This condition requires prior permission before entering into certain types of associations. It is a condition that might be clarified at final hearing but for the short period of the ISO it can remain.
Conditions 38-42. These conditions relate to internet access and other electronic communications. Internet use has been a factor in at least one of Mr Golding's past offences (accessing the websites "Sleep Creep" and that which related to "public ejaculation"). The conditions should remain for the purposes of the ISO.
Conditions 43-47. These conditions provide for search and seizure. They indirectly relate to the efficacy of the overall regime of supervision and should be included in the ISO.
Condition 48. This condition relates to pornography. The State suggested that the prohibition upon R18+ might not be justified. It will be removed from the condition but otherwise it will remain as is.
Condition 51: A condition preventing a change of Mr Golding's appearance was said to lack particularity. It is sufficiently clear in my view and should remain as is.
Conditions 54-58: These conditions come under a heading "Medical intervention and treatment". Condition 55 requires Mr Golding to attend psychological and psychiatric assessments and the like as directed by his DSO. That should remain. Conditions 54, 56-58 have the effect, as counsel for Mr Golding put it, of going behind doctor/patient confidentiality without appropriate justification. I agree and they should be deleted. Condition 59 is concerned with Mr Golding agreeing to "agencies that are involved in [his] supervision including, but not limited to, his DSO and CSNSW" sharing information. Who the other "agencies" in this case will be is unknown. The need for Mr Golding to agree to the DSO sharing information with other employees in his/her organisation is unclear. Condition 59 will be deleted.

Orders

Two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales.
The defendant is directed to attend the examinations in order 1.
Pursuant to s 10A of the Act the defendant is made the subject of an interim supervision order commencing on 10 July 2018, for a period of 28 days.
Pursuant to s 11 of the Act the defendant is directed to comply with the conditions set out in the schedule to this order for the period of the interim supervision order.
Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party's application for access, and without the leave of a Justice of the Court.
Liberty to restore on 3 days' notice.

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: 09 July 2018

Crimes Act 1900(NSW)s 61M(2)

Crimes (High Risk Offenders) Act 2006(NSW)ss 3, 5, 5B(d), 5D, 7(4), 9(2), 10A, 11

At a glance

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