State of New South Wales v Hackett

Supreme Court of NSW|2022-04-01|Before: Adams J, Cavanagh J

Judgment

By summons filed on 11 February 2022 the State of New South Wales ("the State") seeks a second extended supervision order ("ESO") against the defendant, Kain Hackett, under the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act"). A previous ESO for a period of two years was imposed by Cavanagh J on 10 October 2019: State of New South Wales v Matthews (AKA Hackett) (Final) [2019] NSWSC 1360 ("Hackett Final"). That order was suspended for a short time due to the defendant being imprisoned for breaches of that ESO and expires on 11 April 2022.
A preliminary hearing was conducted before me on 1 April 2022. At that time, the State sought orders appointing relevant experts pursuant to s 7(4) of the CHRO Act and an interim supervision order ("ISO") pursuant to s 10A of the CHRO Act. The defendant opposed the making of any interim orders on the basis that the "unacceptable risk" test had not been satisfied.
Ms Johnston of counsel appeared for the State and Ms O'Reilly of counsel appeared for the defendant. The State's evidence comprised an affidavit of Johanna Fisher affirmed 10 February 2022 and exhibit JF-1; a further affidavit of Johanna Fisher affirmed 15 February 2022; an affidavit of Hermione Nicholls affirmed 4 March 2022; and an affidavit of Kelli Grabham affirmed 4 March 2022. Although three lever arch folders of material were tendered, the following documents were identified by Mr Johnston as being the "key" documents on the preliminary application: 1. The Risk Management Report ("RMR") dated 6 January 2022 prepared by Lauren Alnaser, community corrections officer; 2. The Risk Assessment Report ("RAR") dated 26 November 2021 prepared by Holly Cieplucha, psychologist; 3. An "ESO Completion Report" dated 24 August 2021 prepared by Ms Cieplucha; 4. The decision of Cavanagh J, Hackett Final; 5. Offender Integrated Management System ("OIMS") notes; 6. The report of Dr Kerrie Eagle, forensic psychiatrist, dated 28 August 2019 prepared for the first ESO application; 7. The report by Dr Emma Collins, clinical and forensic psychologist, dated 28 August 2019 prepared for the first ESO application; 8. The RAR dated 9 April 2019 prepared by Mr Samuel Ardasinski, psychologist, for the first ESO application; and 9. The RMR dated 24 April 2019 prepared by Mr Marc Corcoran, community corrections officer, for the first ESO application.

Factual background

The defendant was born in 1973 and is currently 48 years of age. He is the only child of his parents' union. His parents separated when he was about 12 months old, and the defendant reported being exposed to verbal and physical abuse from his stepfather as well as being sexually abused by friends of his stepfather.
The defendant left home when he was around 14 years old. Since this time, he has had a largely itinerant lifestyle with no fixed accommodation. He left school prior to completing Year 9 and worked for some time as an escort. Since the age of 19 he has received the disability support pension. He has not sought employment since the imposition of the ESO by Cavanagh J on 10 October 2019.
The defendant began binge drinking alcohol from around the age of 16 until the age of 31. Principally, the defendant has abused methamphetamine since 2013, and from 2004 to 2010 he described having a benzodiazepine addiction.
The defendant suffers from schizophrenia, an intellectual disability, borderline personality disorder and substance use disorder primarily involving the use of stimulants. In 2019, Dr Eagle considered the defendant's mental illness and substance abuse disorder to be "severe" and as giving rise to erratic sexual behaviours often involving unsolicited sexual advances toward others. Dr Collins considered that the defendant displayed symptoms of psychosis, particularly in connection with drug use.
Around the time of the defendant's conviction for the 2004 offences (set out below), he was assessed by Dr Stephen Allnutt, forensic psychiatrist, as having a chronic psychotic disorder.
Dr Gordon Elliott, consultant psychiatrist, provided a report to the Fairfield Local Court dated 14 November 2018 for the purposes of determining whether the defendant was mentally ill within the meaning of the Mental Health Act 2007 (NSW). Dr Elliott found that the defendant had a relapsing psychotic illness, being either chronic schizophrenia or recurring substance-induced psychosis, but that the defendant was not a mentally ill person such as to require admission to a mental health facility. The defendant's mental condition has fluctuated significantly including under his current ESO. This is an important aspect of the present application and will be addressed in more detail below.

Criminal history

Not all of the defendant's criminal history pertains to sexual offending.
In 1990, when the defendant was 17 years old, he was convicted for attempt steal and sentenced to a supervised bond for a period of 12 months. Other convictions, dealt with by way of fines, were common assault, enter enclosed lands (both in 1996), mid-range PCA (in 1998) and other driving offences (in 2001). In 2014 and 2019, the defendant was convicted for drug possession offences. In 2017, the defendant was charged with armed with intent to commit an indictable offence, and in 2019 with stalk/intimidate with intent to cause fear of physical or mental harm. On both of these occasions, the defendant was referred for mental health assessment under s 33(1)(B) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("MHFP Act") (now repealed). The defendant also has been convicted on several occasions (in 2015, 2016 and 2018) for failing to comply with reporting obligations since being placed on the Child Protection Register in 2015 under the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPOR Act").
Since being subject to an ESO from 10 October 2019, the defendant has continued to offend including by breaching the ESO itself. I will set out details of these breaches below.

The defendant's sexual offending

In 2005, the defendant was convicted of aggravated sexual assault in company and detain in company without consent with intent to obtain advantage (which occasioned actual bodily harm) (the "index offence" or the "2004 offences"). One count of robbery in company was taken into account on a Form 1. He was sentenced to 8 years imprisonment with a non-parole period of 6 years. He was released on parole on 7 June 2011. These convictions arose out of events which occurred on 29 August 2004. I have taken the following summary from the Remarks on Sentence of Judge Armitage who sentenced the defendant on 23 November 2005.
On 29 August 2004 between 2.30am and 3.00am, the victim, then aged 18 years, was walking home from the Wyong Leagues Club when the defendant and his co-offender (who was driving the vehicle) offered him a lift. After a short period, when the vehicle pulled over, the victim attempted to leave their company. At this point, the co-offender pushed the victim back into the car, pointed a knife at him and said, "[y]ou move or do anything stupid and I'll slit your throat." The defendant then began to fondle the victim's penis and groin area and said, "[y]eah don't do anything stupid he's got a knife."
Following this, the co-offender went about restraining the victim by several means: attempting to force a rubber ball into his mouth; putting a strip of tape across his mouth; binding his wrists with rope; placing a hood (an old car seat cover) over his head; and forcing him into the boot of vehicle. The car then drove off, stopped briefly after about 10 minutes to allow the co-offender to confiscate the victim's mobile telephone, and then continued for around 30 minutes.
The vehicle stopped in bushland and the victim was taken from the boot. At this point, either the defendant or the co-offender rubbed the victim's genitals, pulled his pants down and removed the hood. The defendant was masturbating himself. The co-offender forced the victim to the ground and put a dog collar around his neck, before trying to force his penis into the victim's mouth, unsuccessfully. The victim's eyes were then taped, and he was forced back into the car boot. The vehicle drove on some distance.
Once again, the vehicle stopped in bushland. The victim was removed from the car boot and first the co-offender and then the defendant forced him to fellate them, accompanied by threats and acts of violence. The defendant also took hold of the victim's penis, which he masturbated and sucked. The defendant and co-offender then masturbated themselves and the co-offender ejaculated onto the victim.
The victim's wallet was returned, and he was left tied to a tree with his eyes taped over. The co-offender told the victim to wait for an hour, to dispose of the tape and rope and not to report what had happened, again on threat of violence. Both men then left the area.
The defendant was arrested on 23 September 2004. After initially denying his involvement in the events, he pleaded guilty in 2005. Earlier that year the co-offender had committed suicide in custody. It was accepted that the co-offender was the principal in the offending.
The defendant was subsequently convicted in December 2014 for a separate series of sexual offences which took place on 25 June 2014: inciting a person 16 years or over to commit act of indecency; grooming a child for unlawful sexual activity; stalking/intimidating with intent to cause fear of physical or mental harm; behaving in an offensive manner in/near public place (two counts); and inciting a person under 16 years to commit act of indecency. The defendant was sentenced to 12 months imprisonment with a non-parole period of 9 months for these offences.
The statement of facts for these 2014 offences disclose that a 15-year-old boy (the first victim) entered a public toilet block at the Crescent Head Tourist Park at around 12.00pm on 25 June 2014 and observed the defendant and another man engaged in consensual oral intercourse. The victim entered a toilet cubicle and the other man left. Shortly afterwards, the defendant reached (and later looked) under the cubicle on two occasions to show the victim pornographic pictures on his mobile telephone, including a photo of a young girl aged about 7-10 years, and also invited the victim to join him in the shower cubicle. The victim left the toilet block and reported the matter to police.
The defendant left the area and approached a second victim at the greenkeepers shed, whereupon he sat down inside the shed and offered to fellate the victim. Police later located the defendant sitting in bushland nearby and arrested him.
It was the offending which occurred in the public toilet block which caused the defendant to become a registrable person under the CPOR Act.
The defendant has also been charged with further sexual offences arising from two alleged incidents of public masturbation at railway stations in 2016 and 2017. In 2016 the defendant entered a public toilet in Central railway station and was seen masturbating in one of the cubicles with the door open. In 2017 the defendant was seen masturbating on the platform at Newtown railway station. On the first occasion the defendant was found not guilty, and on the second occasion he was referred under s 33(1)(B) of the MHFP Act for a mental health assessment and admitted to St Vincent's hospital.

Parole and ISO/ESO

The defendant has been subject to multiple periods of conditional liberty since his conviction for the 2004 offences. He first became eligible for parole on 23 October 2010 but was not released until 7 July 2011. During the balance of the defendant's parole, ending on 23 October 2012, the defendant attended Nepean Detox Centre to address concerns arising from his misuse of benzodiazepines.
On 24 March 2015, the defendant commenced a parole period of 3 months in relation to the 2014 offending. Shortly after his release from custody, he disclosed the use of methamphetamine.
The defendant was again subject to parole between 23 October 2015 and 23 February 2016 relating to his conviction for breaches of reporting obligations under the CPOR Act. He breached the parole conditions on several occasions through illicit substance use (amphetamine, methamphetamine and benzodiazepines), inappropriate sexual conduct at his accommodation and failure to attend or meaningfully engage in treatment with Forensic Psychology Services ("FPS"). His parole was revoked on 15 February 2016.
The defendant was released on parole in 2019 in relation to a conviction on 21 November 2018, again for breach of reporting obligations under the CPOR Act. During this period of conditional liberty, the defendant was found to be in breach of his parole conditions on six occasions for: drug related offences (two occasions); failure to attend FPS appointments; returning positive drugs tests (two occasions: methamphetamine, benzodiazepines); and the stalk/intimidate offence which occurred in March 2019 and for which he was arrested on 9 June 2019.
On 21 June 2019, Fagan J granted the State's application for an ISO: State of New South Wales v Matthews AKA Hackett (Preliminary) [2019] NSWSC 770 ("Hackett Preliminary") and, as stated above, on 10 October 2019 the defendant's current ESO was imposed by Cavanagh J.
The defendant has breached the current ESO. On 1 May 2020, the defendant was charged with one count of enter enclosed land and was convicted on 27 July 2020. He was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 3 May 2020, the defendant disclosed use of methamphetamine to his departmental supervising officer ("DSO"). He was referred for mental health assessment under s 33(1)(B) of the MHFP Act and admitted as an inpatient to a secure ward at Concord Hospital between 5 and 26 May 2020.
In August 2020, it was revealed that the defendant had been using an interactive chat function on his mobile telephone and had not disclosed intimate relationships he had previously been engaged in.
In relation to this events, on 10 September 2020 the defendant was sentenced to an aggregate term of imprisonment of 12 months with a non-parole period of 6 months for two counts of fail to comply with ESO, contravene prohibition order, possess prohibited drug and possess/attempt to, prescribed restricted substance. He was released on parole on 19 February 2021.

Legislative scheme

The primary object of the CHRO Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders so as to ensure the safety and protection of the community. Another object of the CHRO Act is to encourage such offenders "to undertake rehabilitation".
The test for the making of an ESO is contained in s 5B of the CHRO Act, which provides that: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) 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.
A "serious offence" is defined in s 4 of the CHRO Act as either a "serious sex offence" or "a serious violence offence". The State contends that the defendant poses a risk of committing a serious sex offence. A "serious sex offence" is defined in s 5(1)(a)(ii) of the CHRO Act to include any Pt 3 offence committed in circumstances of aggravation, which includes the defendant's 2004 offences.
Section 5I(1) of the CHRO Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in subs (2)(b) to include an offender who, when the application for the order is made, is under an existing ESO.
Section 10A of the CHRO Act provides that this Court may make an order for an ISO if it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (Emphasis added.)
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 CHRO Act; is a supervised offender (within the meaning of s 5I of the CHRO Act); that he was and still is in custody or supervision at the time the application was made; and that the application was commenced within time as required by s 6 of the CHRO Act. 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). The statutory requirement for making an ISO is that it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
The Court's power to make an ISO or an ESO is discretionary. Section 9(1) of the CHRO 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 CHRO Act provides mandatory considerations to which the Court must have regard in determining whether to make an ESO. I shall consider the supporting documentation relevant to these factors below.
Section 7(3)-(5) of the CHRO Act provides for a preliminary hearing of an ESO application and is in these terms: (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) registered psychologists, or (iii) qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.

Section 9(3) factors

In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3). Those factors are as follows.

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: s 9(3)(b)

As this is a preliminary hearing, these reports have not yet been obtained. Despite this, Dr Eagle and Dr Collins provided reports for the previous ESO application. I have read those reports.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(3)(c)

Relevant extracts from the executive summary of the most recent RAR are as follows (paraphrased): 1. The defendant presented with a range of complexities including personality dysfunction, diagnosis of schizophrenia and substance use disorder and has been assessed as functioning in the mild range of intellectual disability. 2. The defendant's mental health has fluctuated significantly over the course of the ESO, such that he has had multiple psychiatric admissions in response to suicidal ideation and reported psychotic symptoms. 3. The defendant's risk of sexual reoffending has been assessed as falling in the "well above average range" using an actuarial risk assessment measure and in the "high" range using a dynamic risk assessment compared to other male sexual offenders. His higher criminogenic needs are in the areas of capacity for relationship stability, general social rejection, impulsivity, poor problem solving, sexual preoccupation and cooperation with supervision. 4. If the defendant were subject to a further ESO, the mitigation of future risk may be enhanced by ongoing intensive community supervision and support. He could also continue to participate in individual risk management sessions with a Corrective Services NSW senior psychologist. This would require consideration as to whether his risks of serious offending can be adequately managed in community settings with intensive supervision. If no order is imposed, the defendant will be at unconditional liberty after 11 April 2022. He will have no support from any monitoring by Corrective Services NSW. Whether this would be considered unacceptable in the context of the CHRO Act is a matter to be determined by the Court.
Also included in the most recent RAR was the following passage from Mr Ardasinski's original RAR (footnotes omitted): "Mr Hackett's most likely scenario for further sexual offending would involve his use of the methamphetamine 'Ice' (potentially fostering auditory hallucinations and/or paranoid delusions which may have some form of sexual component...), attendance at a public toilet or similar amenities block and masturbating to gain sexual gratification due to the state of arousal brought about by his Ice use and delusions. If an underage (or otherwise vulnerable) male were to enter the toilet block at the time, Mr Hackett may proposition him for sex, and dependent on the victim's level of resistance, may commit some form of 'hands-on' indecent touching or expose the victim to pornography on his mobile phone in order to groom them into sexual contact… Ultimately, when Mr Hackett is under the influence of the methamphetamine 'Ice', there are myriad risks of sexual misbehaviour and misadventure. As was opined in his treatment report […], the circumstances which led to the commission of Mr Hackett's first, and arguably most serious, sex offence, are less likely to recur - he was working as a male escort at the time, his client was the principal in the offending and Mr Hackett was a 'follower' in the commission of the offence. However, where Mr Hackett to begin to associate with criminal others and use 'Ice', within such a scenario, there remains the possibility by virtue of Mr Hackett's masochistic tendencies and sexual preoccupation, that he may become involved in something more serious again in the future. Also noted in the SRP Treatment Report: 'In situations where Mr Hackett feels lonely and anxious/fearful and he believes others hold control, he is more likely to commit a further sexual offence'."

The results of any statistical or other assessment: s 9(4)(d)

The defendant has had a plethora of actuarial tests administered to assess his risk of sexual and other re-offending. The most recent tests administered to him are as follows: 1. The Level of Service Inventory-Revised-(LSI-R) is an actuarial risk instrument consisting of both static and dynamic risk factors related to general reoffending. The defendant was assessed using this test on 2 March 2021. His score fell in the "medium/high range" of risk/need for general and violent offending. This score was "overridden" to "high" on account of his supervision as an ESO offender. 2. Static Risk Factors (Actuarial Assessment-Sex Offending)-Static-99R. The defendant has been assessed using this actuarial risk assessment tool on a number of occasions. At the time of the initial application his score was 8 (as set out in Mr Ardasinski's report dated 15 March 2019). Ms Cieplucha rescored the defendant for the purpose of the current proceedings and his score remained at 8, which is a risk described as "well above average" - 98.5% of sexual offenders would score below the defendant's score. The rate of recidivism for individuals with a score of 8 is estimated to be about 7.32 times higher than that of the "typical" sex offender. 3. Static Risk Factors (Actuarial Assessment-Violent Offending)-VRAG-R. This is an actuarial risk assessment tool specifically designed to assess the risk of future violence of a given offender. The defendant scored 23 in a test administered on 26 November 2021. That places him in the eighth of nine "bins" with the ninth bin being the highest. This classifies him as having a "high" risk compared to other violent offenders, being a "high" risk of violent recidivism. 4. Dynamic Risk Factors-Stable-2007. This is a tool developed to assist clinicians in identifying "stable dynamic" risk factors. The defendant was assessed for the purposes of the RAR on 5 August 2021 and his total score was 16 which suggests a high density of criminogenic needs relative to other male sex offenders. This score can be combined with the Static-99R score to generate a composite assessment of risks and needs. Combining the defendant's scores places him in the "well above average" risk level. 5. Risk of Sexual Violence Protocol (RSVP). The defendant was assessed against a specific list of 22 dynamic risk factors. The results suggested that he fell in the "moderate/elevated" risk category for repeat sexual violence.

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(d1)

The RMR of Lauren Alnaser sets out the conditions which, in the opinion of Community Corrections, would be sufficient to manage the defendant's risk in the community. Based on his identified risk factors, risk scenarios and prior offending, the RMR sets out the proposed conditions in addition to the compulsory conditions under the CHRO Act, namely the mandatory monitoring and reporting obligations and place and travel restrictions.
Those proposed conditions include a schedule of movements with a curfew and electronic monitoring that would include establishment of exclusion zones to ensure the defendant's compliance with the schedule of movements. A non-association condition was proposed to manage his relationships that would include not having contact with any person under the age of 18 years. An electronic communications and internet access condition was proposed to enable monitoring of any issues in relation to his use of social media accounts, and a search and seizure condition to assist with compliance with the order.
Drugs and alcohol and medical intervention and treatment conditions were proposed to ensure the defendant's continued abstinence from illicit drugs and alcohol and to enable monitoring of his mental health. A further condition to engage in community-based interventions such as regular contact with a private psychologist, should he choose not to engage with FPS, was proposed to support his reintegration in the community and address his outstanding criminogenic needs.

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: s 9(e)

The defendant completed the Self-Regulation Program - Sexual Offending (SRP-SO) on 8 March 2011 when he was in custody for the 2004 offences. He has engaged in individual maintenance sessions at FPS in the community.
The OIMS notes record that the defendant's commitment to psychiatric/psychological treatment through FPS appears to have waned last December. An entry on 13 December 2021 records a conversation between Damien Rivkin (the defendant's private psychologist) and a NSW Department of Corrective Services staff member. The State relied upon this entry as being problematic for two reasons. First, Mr Rivkin advised that he had not seen the defendant face to face since before June 2021 (due to COVID restrictions) and that, even via telephone, he had not been speaking to the defendant regularly. Secondly, Mr Rivkin also advised that the defendant was seeking to stop engaging with his FPS psychologist, Lauren Cooper, as he did not feel comfortable discussing the psychological aspects of sexual preoccupation with a female.
In the OIMS entry of 23 December 2021 Ms Cooper provided a "Summary of Offender's Engagement with FPS Risk Management Intervention Services". She noted that on 7 December 2021 the ESO team had been informed by the defendant's solicitor that he wished to cease engagement with Ms Cooper citing poor rapport and discomfort. As such, the defendant was considered to have withdrawn consent to participate in FPS services at this time. Ms Cooper also stated that the defendant's ability to meaningfully participate in psychological treatment had been limited, due to his tendency to minimise risk issues, poor self-awareness and evasiveness on topics such as sexual self-regulation.
I have considered the material before me and, on balance, I accept Ms O'Reilly's submission that the defendant did not withdraw consent to engage with FPS per se. Rather, he sought to change from a female to a male FPS treating psychologist. An OIMS entry dated 29 December 2021 records that the defendant was provided with a new FPS referral form and advised that a male treating psychologist would commence in the new year. The defendant was recorded to have expressed a willingness to engage with a male psychologist. An OIMS entry dated 20 February 2022 noted that the defendant confirmed feeling more comfortable with his male FPS therapist "Daniel" and communicated openly with him.
Mr Cataldi's affidavit annexed a letter from Mr Rivkin dated 29 March 2022 in which Mr Rivkin advised that he had seen the defendant over two periods: April 2016 to mid-2017 and from March 2019 to the date of the letter in his capacity as a clinical psychologist. Mr Rivkin stated that the defendant "is committed to adhering to regular psychiatric and psychological treatment and getting his life back on track". The letter was otherwise directed to how the restrictions imposed by the ESO contribute to the defendant's disturbed mood, social isolation and sense of loneliness/alienation, and therefore "serve as an obstacle to his recovery and [cause] him unnecessary emotional distress".
On these more recent developments, the State characterised the defendant's engagement with psychological/psychiatric services as "sporadic", while conceding that the defendant has regular telephone calls with Mr Rivkin. On behalf of the State it was also submitted that it was too early to know whether the defendant's change in FPS psychologist from Ms Cooper to "Daniel" would be effective.

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: s 9(e1)

The defendant was previously subject to a Community Treatment Order ("CTO") which lapsed in September 2021. Even though he is not on a CTO anymore he does remain supported by Community Mental Health Services. In July 2021 he was accepted for support under the National Insurance Disability Scheme (NDIS). As part of this assistance, an organisation called "New Horizons" engages with him five times a week to support his community engagement.
In addition, the defendant remains on the Child Protection Register under the CPOR Act. He is not currently subject to any reporting obligations because of the current ESO. Were the defendant no longer to be subject to an ESO the obligations under the CPOR Act would resume.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(e2)

As stated above, the defendant breached his current ESO and was sentenced to imprisonment in relation to those breaches.

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: s 9(f)

The defendant's history of non-compliance with the conditions of his parole and his ESO are summarised above [26]-[34].

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

The defendant's criminal history is summarised above at [11]-[25].

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

I have read the remarks on sentence of Judge Armitage in the District Court on 23 November 2005 in relation to the defendant's 2004 offences.
Although his Honour observed that "the facts relied upon by the Crown disclose a truly appalling course of conduct on the part of [the defendant and the co-offender]", his Honour went on to find that "the case does not fall into the very worst category". His Honour accepted the diagnosis of psychiatrist Professor David Greenberg (who had assessed the defendant on 29 October 2005). That diagnosis was: "in essence poly substance abuse/dependence; depressive disorder, panic attacks and personality disorder" (and perhaps an underlying bipolar mood disorder). It would appear that the defendant's schizophrenia had not been diagnosed at that point in time.
In the defendant's favour, Judge Armitage found that he was a follower not a leader. His Honour noted that he did not have a significant record of prior convictions and had indicated some degree of contrition. Ultimately, his Honour said: "In my view it is not possible to say that the [defendant] is unlikely to reoffend. However, his prospects of rehabilitation appear to me to be reasonably good."
Those observations were made by his Honour nearly 17 years ago. Regrettably, his Honour's favourable assessment of the defendant's rehabilitation prospects was not ultimately realised.

The State's submissions

Ms Johnston identified the central issue in this preliminary application as being whether I would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sexual offence if not kept under supervision, accepting at this interim stage as proved the matters in the supporting documentation.
The State submitted that the fact that the existing ESO imposed by Cavanagh J "is working" - in the sense that the defendant has not engaged in further sexual offending - does not mean that its continuation would be unnecessary. To the contrary, the State accepted that it might be precisely because the defendant has been subject to the order that further such offences have not occurred.
Counsel for the State drew my attention to the defendant's breaches of his existing ESO (giving rise to corresponding convictions) as mentioned above at [31]-[34]. One breach related to the defendant's use of a "gay chat line" on his mobile telephone called "FastMeet" which was used as a means to conduct intimate relationships with several men, undisclosed to his ESO team. The second breach related to the defendant's use of crystal methamphetamine ("ice") in breach of his ESO obligation to refrain from drug use. The State submitted that the drug use was of particular concern given that consumption of ice was a feature of the 2004 and 2014 sexual offending.
The State also identified the defendant's unstable mental health as another serious risk factor in relation to sexual offending. In particular, it was noted that the defendant has been admitted on 12 occasions across four facilities in relation to mental health concerns over the course of the current ESO. The State also described a marked deterioration in the defendant's mental health in the weeks prior to the current application (indeed, likely triggered by the stress of the application itself) such that the defendant has been in treatment facilities from early this year.
One incident of particular concern was a self-harm attempt on 27 February 2022 (recorded in an OIMS entry) which involved the defendant slitting his wrists. This was reported not by him but by his companion, Shirley - an elderly neighbour who plays a significant role in monitoring and facilitating the defendant's day-to-day activities.
It was submitted that the defendant's unstable mental health, especially in circumstances where he has had interrupted engagement with psychologists/psychiatrists, means that he might revert to sex as a coping mechanism. The "most significant risk scenario" was identified as being that advanced by Mr Ardasinski in the first RAR (extracted above at [46]) - similar in nature to the 2014 offending - namely, that the defendant might be present in a public toilet block and engage in opportunistic behaviour in the form of masturbation or indecent touching of, for example, a minor who entered the block at this time. Concurrent consumption of methamphetamine and accompanying hallucinations/delusions would heighten this risk, as would attendance at sex clubs.
It was submitted that, if I were minded to grant the ISO, I would impose the conditions set by Cavanagh J in respect of the defendant's current ESO, and additional, more onerous conditions (eg electronic monitoring) - discussed below.

The defendant's submissions

The defendant opposed the interim order. In the event that an ISO were granted, objection was taken to the proposed conditions, in particular to the scheduling and electronic monitoring conditions.
It was submitted that the defendant's methamphetamine consumption was in May 2020 and the State has not identified any other methamphetamine use throughout the rest of the ESO. Moreover, the illicit consumption was self-reported and when it was referred to police the defendant made admissions.
As for his admissions to mental health facilities, it was submitted that this shows that the defendant recognises when he needs help. It was submitted that one of his major coping mechanisms is to self-admit to a facility. This was put as a factor militating against the Court finding that the defendant is an unacceptable risk of committing a further serious sexual offence.
As for the fact that the defendant appears to have a lot of idle time, it was also submitted that he has recently enrolled in an animal care course at TAFE and wants to volunteer for the RSPCA.
It was submitted that if I were minded to grant the interim relief sought, I would impose conditions on the ISO in terms similar to those imposed by Fagan J in 2019 in respect of the first ISO.

Consideration

At this preliminary stage, the Court is required to have regard to the supporting documentation and assume it would be proved at a final hearing. It has been held that the task of the Court at a preliminary hearing is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983. As Garling J observed in State of New South Wales v Sturgeon [2019] NSWSC 559 at [6]: "The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney‑General of NSW v Tillman [2007] NSWCA 119 at [98]."
I turn to the terms of s 5B of the CHRO Act. Given the nature of 2004 offences summarised above, I am satisfied that the defendant 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: s 5B(a). As for s 5B(b), I am satisfied that the defendant is a "supervised offender" within the meaning of s 5I of the CHRO Act, in that he is currently on an ESO. I am also satisfied that the defendant satisfies the requirements of s 5B(c) of the CHRO Act, and that the application was made within the relevant time frame. The defendant accepted that the requirements of s 5B (a), (b) and (c) of the CHRO Act were met in this matter for the purposes of the preliminary hearing.
The only real dispute in this preliminary application is whether I am satisfied that if the material was proved it could establish to a "high degree of probability" that the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision: s 5B(d). It has been held that such a standard of proof is higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
As for what is meant by the phrase "unacceptable risk", in Lynn v State of New South Wales [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [58] that the phrase is to be given its everyday meaning within its context in and having regard to the objects of the CHRO Act. The evaluation is "directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]). In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate".
I have had regard to the supporting documentation in the context of the relevant statutory factors and I am satisfied that, if proved, that material would enable the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another "serious sex offence" if not kept under supervision under the order. In arriving at that conclusion, I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and to the s 9(3) factors summarised above.
I have had regard to the defendant's ten dynamic risk factors as identified in the RAR as follows: 1. The defendant has committed a serious sexual assault in the past; 2. The defendant has trouble forming healthy personal attachments. His inability to establish any stable intimate relationships has led to feelings of loneliness and depression and a desire to seek out impersonal connections in high-risk environments such as sex clubs. He claims to have had over 10,000 casual sexual partners; 3. The defendant has a major mental illness; 4. The defendant has poor cognitive problem-solving skills; 5. The defendant has a history of emotional physical and sexual abuse as a child which has contributed to his personality dysfunction and feelings of abandonment; 6. The defendant has had problems with substance use in the past; 7. The defendant is sexually preoccupied and uses sex as a coping mechanism; 8. The defendant has a long history of unemployment and lack of activities in his life; 9. The defendant has problems with self-awareness including a tendency to downplay the presence of certain risk factors; and 10. The defendant has a history of non-compliance with previous supervision orders.
I have had particular regard to the potential risk scenario for the defendant set out above at [46]. I have also had regard to what the defendant told Ms Cieplucha about his previous offences. I find these accounts to be illuminating as to his risk factors. In relation to the 2004 offences, he told Ms Cieplucha that he had taken ecstasy beforehand and described that experience as "beautiful". He described feeling as though "everything was beautiful… the victim was beautiful… I never knew he was in danger". Similarly in relation to the 2014 offences he told Ms Cieplucha that he thought the first victim was of "legal age", that he "found him attractive" and "tried to get onto him". He acknowledged being under the influence of ice at the time, resulting in increased sexual arousal. The defendant otherwise acknowledged to Ms Cieplucha that he experienced both heightened sexual arousal from methamphetamine but also an exacerbation in his psychotic symptoms.
Although it is to be accepted that there has only been one reported case of the applicant using methamphetamine over the past two years, he has been on an ESO during that time which appears to be working. He may well resort to such drugs again in times of stress if no longer on an ESO. This is a significant risk factor for him when combined with his mental health and the other dynamic risk factors I have set out above.
I have had regard to the factors that might militate against making the orders sought at this preliminary hearing. In particular I have had regard to the fact that the index offence occurred nearly 18 years ago, that the breaches of the recent ESO were not significant and were self-reported, that the defendant has some insight into his mental health in that he is able to admit himself as a voluntary patient when he feels unwell and the fact that there have been no recent serious sexual offences.
The difficulty for the defendant is that since the imposition of the first ESO by Cavanagh J there has been no significant improvement. On the contrary, the defendant has had numerous admissions to mental health facilities and there have been some breaches of that order. The ESO completion report describes his response to supervision as borderline and superficial. There does not seem to have been any significant improvement in his identified risk factors during this time. Although he has not committed any further serious sexual offences, that may well be due to the fact that he is subject to an ESO.
Applying the relevant test for a preliminary hearing, I am satisfied that it has been established on the material before me.
The next question is whether I would impose the same conditions as Fagan J did (as the defendant submitted) or whether I would accede to the State's submission to impose conditions more onerous even than those imposed by Cavanagh J.
Section 11 of the CHRO Act provides that an ESO or ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate" and provides the scope of possible conditions. The discretion to impose such conditions is broad: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65. This Court has noted the need for such conditions to meet the object and purpose of the CHRO Act: State of NSW v McQuilton (Final) [2019] NSWSC 265.
Although, ultimately, the State did not press some of the disputed conditions, the parties nonetheless joined issue in relation to the proposed conditions concerning electronic monitoring and the provision of a schedule of movement. Although Cavanagh J did not impose any electronic monitoring condition and did impose only limited scheduling requirements, Ms Johnston submitted that there was a sufficient basis to include both these more onerous conditions.
The basis for the State's contention that more onerous conditions were warranted was a combination of: the two breaches of the ESO, the defendant's unstable mental health and an entry that appeared in the OIMS notes from New Horizons, the defendant's NDIS provider.
The OIMS notes disclose that when the New Horizons team was taking the defendant on group visits to public places his case worker observed him to frequent a particular public toilet and enter it when other people were inside. The New Horizons worker Jennifer Sharkey advised the ESO team in September 2021 that the defendant was observed first to meet someone in the park, and then go into the toilet alone. There was no suggestion he went into the toilet with this other man. It seems to me that this is more consistent with meeting someone to collect an item, perhaps drugs, than for meeting someone for sex, given that he did not enter the toilet block with the person he was meeting.
It was submitted that if a condition requiring electronic monitoring was imposed it might capture information as to what the defendant is doing in the park. Thus, the State sought electronic monitoring in order to determine whether a pattern of movement emerges.
I accept Ms O'Reilly's submission that the purpose of imposing a condition of electronic monitoring cannot be for the purpose of investigation on behalf of the State. Rather it would be to ensure early prevention of sexual offending. In any event, as Ms O'Reilly pointed out, if the State intended to seek more onerous conditions based on this OIMS note, an affidavit should have been obtained from Ms Sharkey.
I have had regard to the State's submission but I am not satisfied that a case has been made to impose more onerous conditions on the defendant than those imposed by Cavanagh J in respect of his current ESO. Nor has the defendant established on the material before me that his conduct has improved such as to warrant a reduction in the conditions presently in force. I propose to impose the same conditions as Cavanagh J.

ORDERS

In consideration of the above I make the following orders: 1. Pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to an interim supervision order for a period of 28 days commencing on the expiry of the defendant's current extended supervision order. 2. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. The Court appoints two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations by a date to be fixed. 2. I direct the defendant to attend those examinations. 1. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to these orders for the period of the supervision order referred to in Order 1 above. 2. Access to the court file in respect of any document in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar, so as to allow them an opportunity to be heard in relation to the application for access. Schedule of conditions - Kain (AKA Darren) Alexie Hackett (148919, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2022

Mental Health (Forensic Provisions) Act 1990(NSW)

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