State of New South Wales v Hudson

Supreme Court of NSW|2019-02-25|Before: Adams J, Mr P

Judgment

On 22 February 2019, the State of New South Wales ("the State") filed an amended summons seeking certain orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") in respect of the defendant, Ian James Hudson. The ultimate relief sought by the State in its summons is a high risk sexual offender extended supervision order ("ESO") for a period of three years pursuant to ss 5B and 9(1)(a) of the Act.
On 26 February 2019, a preliminary hearing was conducted before me as required by s 7(3) of the Act. At the hearing, the State sought interim orders that two experts be appointed to examine the defendant and also that he be made subject to an interim supervision order ("ISO") for 28 days from 8 March 2019 under ss 7(4) and 10A of the Act respectively.
There is a warrant in existence for the return of the defendant to Victoria to serve the balance of his parole for Victorian sex offences, an estimated 287 days, on the basis of a breach of a condition of parole (the nature of the breach has not been disclosed in documents available to the State). It is anticipated that the defendant is to be the subject of extradition proceedings immediately on his release from custody for the present sentence. As a consequence, the State has sought an expedited hearing of the preliminary application before the date of the defendant's release from custody at the expiry of his index offence sentence.
This matter is complicated by the fact that the defendant's likely time in custody in Victoria would delay the final hearing and the making of any final orders. Any assessment of the defendant by court-appointed experts will need to be delayed until a date to be fixed by the court, in order to have the defendant assessed at a time closer to the date of any final hearing. In addition, it was accepted on behalf of the State that insofar as risk assessment is concerned, there may well be evidence suggestive of a reduction in risk if the defendant completes further treatment in Victorian custody. If such material becomes available it will be tendered at any final hearing.

Overview

A Risk Assessment Report ("RAR") was before the court. It had been prepared by Holly Cieplucha, psychologist, and was dated 6 June 2018. It is sufficient by way of background to extract the "Executive Summary" from that RAR which was as follows: "Mr Hudson is a 39-year-old male who was convicted of sexual intercourse with a person between 14 and 16 years of age, for offences which occurred in April 2008. He has also served a prior sentence in Victoria for similar offences involving a 12-year-old girl, committed after the index offence. Mr Hudson has a prior criminal history for sexual offences as a juvenile in New South Wales as well as other general offending in both New South Wales and Victoria. Mr Hudson's early years were characterised by physical abuse, neglect and possible sexual abuse. He was removed from the family home and moved frequently between foster care, refuges and crisis care. Mr Hudson was diagnosed with Tourette's syndrome around the age of 11 years and demonstrated significant behavioural difficulties throughout his childhood and early adolescence. Mr Hudson commenced offending from the age of 14 years, incurring multiple convictions for sexual and general offending. Based on the current assessment, Mr Hudson's risk of sexual reoffending is estimated to be within the High range, with his highest treatment needs being in the areas of General Social Rejection/Loneliness and Impulsivity. Mr Hudson has commenced an appropriate high-intensity treatment program to address his offending, which he will have likely completed prior to the expiration of his sentence. He has also completed a sex offender program in Victorian Corrections previously. Mr Hudson has been a compliant inmate in custody and has not incurred any institutional charges for misconduct during the current period of incarceration. His current sentence expires on 08/03/2019. … If Mr Hudson were to be considered for an Extended Supervision Order, the mitigation of future risk may be enhanced by ongoing community supervision as well is participation in community-based maintenance or individual risk management sessions with Sex Offender Programs through Forensic Psychology Services."

Relevant Provisions of the Act

The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of, high risk offenders so as to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders "to undertake rehabilitation".
Section 5B(1) of the Act provides that this Court may make an ESO if: "(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in subs (2) as an offender who, when the application for the order is made, is in custody or under supervision: "(a) while serving a sentence of imprisonment: (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order."
Section 7(3)-(5) of the Act provide 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) 2 registered psychologists, or (iii) 1 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(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. The making of an ESO is thus discretionary. Section 9(2) and (3) of the Act provide a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO as follows: "(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence."
Section 10A of the Act provides that this Court may make an order for an ISO if, in proceedings for an ESO 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."
Section 10C(1) of the Act provides that an ISO commences on the day fixed in the order for its commencement (or if no such day is fixed, as soon as it is made) and expires at the end of such period as is specified in the order. An ISO cannot exceed 28 days from the day on which it commences. Section 10C(1A) provides that an offender's obligations under an ISO are suspended during any period the offender is in lawful custody, whether under this or any other Act or law.

Supporting Documentation

I propose to summarise the key matters I have relied upon in determining this application by reference to the mandatory considerations enumerated in s 9(3) of the Act.

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

The defendant is 39 years old. His prior convictions for sexual offences date from when he was only 14 years of age.
When the offender had just turned 14 he approached a 16-year-old from behind in a shopping centre car-park and squeezed her breasts. He admitted being "sexually excited" by the act, when that proposition was put to him by police. The following day he approached another "young girl" who was walking from a shopping centre back to high school and grabbed her around the waist until she apparently said "fuck off", struggled and broke free, at which point he stopped. He was charged with assault. He admitted being sexually excited by this offence as well. He pleaded guilty to indecent assault and common assault and was placed on a good behaviour recognisance for 2 years for each offence.
On 2 October 1993 whilst still subject to the bond the defendant followed a 16-year-old girl home from the swimming pool. He put his left arm around her chest and right hand over her mouth after she screamed, and then let go of her and ran into a park. The defendant was sentenced for common assault to a 12-month control order, with release recommended after 3 months.
In December 1995, then aged 16, the defendant was charged with abduction, two counts of aggravated sexual assault and one count of aggravated act of indecency. The victim, who was 15 years of age, had been walking home at night around 7.10pm when the defendant grabbed her from behind, placed his hand over her mouth and forced her to the ground. He led her to bushland on a vacant block and made her lie on the ground and remove her top. He threatened her and sexually assaulted her by forcing her to commit fellatio to ejaculation (aggravated sexual assault) and then digitally penetrated her vagina (aggravated sexual assault). After that the defendant asked if he could be the victim's boyfriend, and began to kiss her. The defendant told her to get dressed and he left the scene.
The defendant was later placed on a control order. He then assaulted a youth worker in the detention centre. A further charge of assault in 2000 was dismissed under the Mental Health Act 2007 (NSW) s 32. This related to the break-up of the defendant's then relationship. He entered her residence, damaged her property and then assaulted her by pushing her against a wall several times. He was fined in 2002 for behaving in an offensive manner near a school. In 2002 and 2003 he was convicted on other charges of: furnishing false information, receiving stolen property, taking and driving a conveyance, making a false instrument, break and entering and stealing a motor vehicle were dealt with. Further driving offences were dealt with in 2007.

Victorian Offences

The defendant has convictions in Victoria for child sexual assault offences committed between 27 December 2008 and 31 January 2009. At the time of commission of these offences the defendant, who was 29 years old at the time, was working as a dodgem car operator and lived at the back of a truck trailer. Upon meeting the 12-year-old victim in December 2008 he gave her his mobile number and they began contact through text messages and the internet. On 27 December 2008 arrangements were made for the defendant to collect the victim from her home and stay with him in his trailer. After collecting the victim from her home under the pretence of being the father of one of the victim's school friends their sexual relationship began that day. The victim stayed with the defendant for approximately two weeks during which time they had sexual intercourse on numerous occasions with the defendant penetrating the victim anally, vaginally, and orally.
The defendant pleaded guilty to count 1 (a rolled-up count relating to four separate counts of penile/vaginal sexual intercourse); to count 2 (a rolled-up count relating to three separate instances of penile/anal sexual intercourse); to count 3 of penal/oral sexual intercourse; to count 4 (a rolled-up count of production of pornography relating to the photographs, images and videos of vaginal and anal intercourse with the victim taken by the defendant); to count 5 (a rolled-up count of three occasion of procuring a minor for child pornography, which involved the defendant posting a package to the victim on her thirteenth birthday containing a mobile phone capable of video playback and a vibrating sex toy and subsequent to that a video of himself masturbating to her on her phone as well as text messaging the victim encouraging her to make videos and picture herself using the vibrator); to counts 6 to 9 relating to oral/anal/vaginal sexual intercourse with the victim when the defendant borrowed a car and collected the victim; and to count 10 relating to stealing a wheel of the boot of a parked car when he damaged wheels on his car.
Following his plea of guilty, the defendant was sentenced to a total effective sentence of 6 years and 4 months with a non-parole period of 4 years and 4 months commencing from the date of the sentence on 31 July 2009. His Honour Judge Pullen considered that the defendant had reasonable prospects of rehabilitation, provided he completed the sex offender program in custody.

The index offence

On 9 September 2016 Lerve DCJ sitting at Dubbo District Court sentenced Mr Hudson to a total sentence of 3 years 6 months imprisonment, with a non-parole period of 2 years 3 months on one count of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW) (with a further charge under s 66C(3) taken into account on a Form 1. These charges arose from events that occurred in NSW in April 2008. He is currently serving the remainder of this sentence which expires on 8 March 2019.
The defendant pleaded guilty and agreed facts were tendered. The remarks on sentence of Lerve DCJ disclose that he met the victim in April 2008 while working at a fast food outlet in Dubbo. The offender provided his phone number and the two exchanged text messages. The victim was 14 years of age at the time. The offender was 27. She is reported to have told the offender her age.
Two weeks later, the victim left her family home and began to reside with the offender in a caravan while he worked on amusement rides at the Dubbo Showgrounds. The two shared a bed together. The sentencing judge's remarks indicate that, "[o]n one occasion the two of them hugged each other and the offender placed his fingers into the victim's vagina, which conduct relates to the offence on the Form 1 document. The offender and the victim then had penile/vaginal intercourse. The offender was not wearing a condom and ejaculated inside the victim's vagina."
The victim and the offender subsequently travelled with the carnival to and around southern Queensland. While in Queensland the relationship reportedly deteriorated and the victim contacted her mother and returned to Dubbo. By June 2008 the relationship broke down and the victim was reported to have become pregnant as a result of the relationship. DNA analysis following termination of the pregnancy confirmed that the victim was impregnated by the offender. The offender indicated that he was unaware of the pregnancy until informed some time later by his legal representatives.

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

In sentencing for the index offence, Lerve DCJ noted "a number of concerning similarities" between the Victorian offences involving the 12-year-old girl and the offences before his Honour for sentence. Lerve DCJ noted a real need for specific deterrence but found remorse had been demonstrated. The defendant claimed that the sex offenders program he had completed in custody in Victoria had had a very positive effect on him. His Honour could not find that there were good prospects of rehabilitation but the situation was "not hopeless". His Honour was not able to find that the defendant was unlikely to reoffend.

The expert evidence: s 9(3)(b)(c)

Although the court appointed expert reports are not as yet available, a number of reports have been prepared in relation to Mr Hudson since he first came into contact with the criminal justice system. Reports by psychiatrists and psychologists have been provided since 1993.
The reports note a history of possible Tourette's syndrome and cognitive distortions about sexual abuse. A 1993 report suggested that his offending appeared to constitute a sexualised expression of anger, which was a "major concern". Psychiatrists' reports in 1996 found Mr Hudson to be a young man who found it difficult to form relationships and was isolated but there was no clear evidence of any psychotic illness. It was noted in one of these reports that the original diagnosis of Tourette's syndrome had been based on excessive swearing and making noises like a dog barking. Doubt has been raised both as whether Mr Hudson had ever had any true auditory hallucinations and also as to diagnosis of Tourette's syndrome.
Other reports describe behavioural problems without any particular diagnosis. It was noted that the Mr Hudson's placement in a refuge in 1994 was terminated because of this verbal abuse and threats of violence.
Three reports were prepared for the purpose of the defendant's sentencing proceeding for the Victorian sexual offences. Ian Joblin, psychologist, prepared a report dated 1 June 2009. The defendant had told Mr Joblin that he did not know that the victim was 12 years old and thought that she was 17. He also told Mr Joblin that he would have desisted if he had known her age. Mr Joplin observed that the defendant was limited in intellect and concluded that the defendant suffered serious psychological damage during his formative years which continues.
The second report prepared for the Victorian sentencing proceedings was from Dr Danny Sullivan, psychiatrist, on 23 June 2009. Dr Sullivan felt that the defendant presented with borderline intellect. He considered that the defendant had "provided minimising accounts of his relationship with the victim reflecting the cognitive distortions of child sex offenders."
Jane Lofthouse, psychologist, also prepared a report, dated 9 July 2009, for the Victorian sentencing proceedings. She performed a neurological assessment of the defendant. She noted that the defendant appeared not to have had any psychiatric engagement for the past 10 years. She found that the defendant had a reading age of a 10-year-old and displayed issues with his long-term recall. Despite this, he scored in the high average range for his ability to recall verbal information related in a conversational manner. His results on frontal lobe testing indicated a moderate degree of executive dysfunction and he also had a severe level of depression.
Emma Hubner, psychologist, prepared a report for the defendant's sentencing proceedings for the index offence. That report was dated 1 September 2016. A Kaufman Brief Intelligence test found the defendant to fall in the below-average range. Although his psychometric personality test did not show any elevation on the severe personality pathology scales, he had significant scores on the masochistic, dependent, avoidant and depressive scales.
The RAR reports that Mr Hudson's highest treatment needs are in the areas of general social rejection, loneliness and impulsivity. Ms Cieplucha noted that: "Mr Hudson was polite and willing to participate however he appeared to engage in impression management for most of the assessment, minimising or denying behaviours that would reflect difficulties with sexual self-regulation. He provided inconsistent and contradictory information which may have been in order to present himself in a favourable light and understandable, given the purpose of the current assessment."
Despite this, the offender has since acknowledged having committed the index offences and also his abuse of power and the victim's vulnerability, stating at interview, that it was "the wrong thing to do" as "she was only a child and people aren't allowed to have sex with children". The offender described feeling "disgusted" in himself and stated that "this should never have happened". He said he had "betrayed her and her family and let her down". Mr Hudson expressed regret for his actions, stating "if I could turn back the hands of time, I would".
She further noted that the defendant has been assessed as functioning within the borderline range of intelligence and that his expressive language was unsophisticated and simplistic. Despite this, she assessed his comprehension as adequate for the purpose of a psychological assessment.
So far as risk factors were concerned, in Ms Cieplucha's view the familial and peer rejection in early life has led to ameliorating such feelings by developing ageinappropriate relationships. The current and historical sex offences show a history of impulsivity and choosing vulnerable victims opportunistically. Sexual preoccupation has been manifested through casual sexual encounters, use of pornography and use of sex workers. Although he denied being sexually aroused by pre- or post-pubescent children, "his repeated offending suggests some concern regarding arousal to young adolescent girls". The defendant had used sex as a coping strategy and had "cognitive distortions about capacity to consent".
Ms Cieplucha considered that younger females were likely less threatening and boosted his self-esteem and allowed him to feel more in control. She considered that a return to offending would almost certainly involve social isolation, negative emotional states and feelings of rejection and loneliness, which may prompt seeking connection with young adolescent girls to ameliorate these feelings.

Statistical testing: s 9(3)(d)

Another relevant factor to take into account is the results of statistical assessment. A number of these tests have been performed on the defendant. In 2016 the defendant was assessed using the Level of Service Imagery - Risk Assessment. This covers both static and dynamic factors. It categorised the defendant as being in the low/medium category of risk for general offending. The STATIC-99R testing (described by Ms Cieplucha as having moderate predictive accuracy) found him to be well-above-average risk (which is the former "high" category) and his score on the STABLE-2007 testing was 12 which placed him in the high risk category relative to other male sex offenders. A combined STABLE-2007 and STATIC-99R score yielded a well-above-average risk level overall.

Risk management report: s 9(3)(d1)

A Risk Management Report ("RMR") was prepared by Erin Kirkwood dated 20 September 2018. Although RMRs usually set out the proposed post-release accommodation and plans, these matters were not addressed in the report due to the fact that the Victorian warrant is still pending. The defendant has previously been assessed as suitable for the Nunyara COSP.
The monitoring and intervention aims to deal with the risk factors of sexual preoccupation, impulsivity, cognitive distortions and the use of sex as a coping mechanism. This includes weekly interviews and Forensic Psychology Service sessions. It is considered that electronic monitoring may assist management, along with weekly schedules. The RMR noted at page 3 that the defendant's likely response to supervision is not able to be gauged. Monitoring of potential contact with children was required.

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

Mr Hudson has already completed most of the CUBIT program. Although he has not finished this course he has been described as demonstrating a motivation to change as noted in the RMR.
Another course that Mr Hudson has conducted is the Disability Pathways Skills-based Intervention Program ("SBIP") for sex offenders in custody in Victoria.
In a report dated 21 February 2014, Jason Freeland, psychologist, provided the Victorian Adult Parole Board and Community Correctional Services with an overview of the offender's participation in the SBIP for sexual offenders. In assessing the offender's general progress in the SBIP, Mr Freeland noted that, "[a]lthough generally compliant and engaged in sessions, Mr Hudson did at times become defensive and argumentative". He noted that the offender's defensiveness "may be indicative of discomfort associated with challenging his long held and entrenched beliefs in regards to teenage females as potential intimate partners".
While participating in the SBIP at Hopkins Correctional Centre, the offender was found with material involving children in his cell, including photos and names and locations of young females cut from newspapers and also inappropriate references to his victim. When challenged directly about the contraband in the SBIP, the offender conceded he "needed help". Although the offender "appeared to understand the concepts introduced in the program," Mr Freeland concluded that, "his entrenched beliefs regarding children's capacity to consent and more recently [his] resistance to discuss his current relationship, coupled with the discovery of concerning material involving children in his cell, raises concerns regarding his ongoing commitment to change."

Previous level of compliance with supervision orders: s 9(3)(e2)(f)(g)

As for the likelihood that we he would comply with the obligations of an ESO, the State did not rely on any breaches of previous supervision orders but it is noted that the defendant was dealt with in 2016 in New South Wales for failing to comply with child reporting obligations in November 2015.
There was no material before me as to why the defendant is in breach of his Victorian parole conditions.

Consideration

I am satisfied that Mr Hudson is a "supervised offender" within the meaning of s 5I of the Act, in that he is serving a sentence of imprisonment for a serious sex offence. I am also satisfied that he is an "offender" under s 4A, because he committed a "serious sex offence" falling within the terms of s 5(1)(a1) of the Act, for the 2008 index offence and was sentenced to a term of Imprisonment at a time when he was over the age of 18 years. To the extent that it is necessary, I note that he also satisfies these requirements by virtue of his Victorian offences committed in 2008/9 given the operation of s 5(1)(c) of the Act and also for his 1996 convictions for aggravated sexual assault.
I am satisfied that Mr Hudson satisfies the requirements of ss 5B(a) and (b), and the application having been made in January 2019 falls within the requirements of s 5I and s 6(1) of the Act.
The remaining matter for my consideration under s 5B(d) of the Act is whether I am 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.
In determining whether this court should make the orders sought at this preliminary stage the court is required to take into account all of the supporting documentation and assume it would all be proved at a final hearing, without considering what evidence the defendant might ultimately rely upon at the final hearing. The court must then ask itself whether it is satisfied 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. The task is an evaluative one undertaken in the overall context of the primary objective of the Act: to ensure the safety and protection of the community. At this preliminary stage the assessment I am required to make is similar to an inquiry into the existence of a prima facie case.
It has been held that the test of being satisfied to a "high degree of probability" in this context is a standard of proof higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the test is a high one, it is important to note that the court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an "unacceptable risk" of committing a serious sex offence: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].
The phrase "unacceptable risk" is not defined in the Act but has received judicial consideration. In Lynn v State of New South Wales [2016] NSWCA 57 ("Lynn") Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an "unacceptable risk" is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase "unacceptable risk" is to be given its everyday meaning within its context and having regard to the objects of the 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]).
As Beazley P observed in Lynn at [48], the mandatory considerations in s 9(3) of the Act are applicable in the exercise of the statutory power to make an ESO and not to the anterior determination of whether an offender poses an unacceptable risk. Despite this, the criteria in s 9(3) are still relevant to the question of whether a person poses an "unacceptable risk" of committing a serious sex offence if not kept under supervision: per Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [84], followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [48].
In State of New South Wales v Pacey [2015] NSWSC 1983 Harrison J observed at [43]: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
His Honour went on to observe at [44]: "… the difficult task that is to be undertaken necessarily involves a balancing exercise taking into account all of the positive and negative material in the supporting documentation, based upon the assumption that it can ultimately be proved."
I am satisfied that Mr Hudson has exhibited a sexual preoccupation with young teenage females. The material before me satisfies me that he has done this as a way of coping with issues of loneliness and self-esteem. Further, the similarity between the 2008 and 2009 convictions are of concern. He will need further intensive supervision given that he is currently assessed has having a high risk of further sexual offending.
Although he has been a compliant inmate and will shortly finish the CUBIT course, there is material in the RAR that gives rise to some concern as to his lack of insight. The RAR report finds at [36] that: "Despite his acknowledgement of his actions, overall Mr Hudson demonstrated limited understanding of the impact of his offending on the victim. Other than identifying that she may struggle to trust other men in the future, Mr Hudson seemed to lack an appreciation of the emotional and psychological impact on his victim. He denied having knowledge of the fact that she had become pregnant as a consequence of the offence until later informed by his solicitors. When questioned about this at interview Mr Hudson expressed hope that the victim 'is able to move on', but was unable to demonstrate appreciation of the longer term consequences of his actions".
In addition to the relevant 9(3) factors I have addressed above, I have also have regard to s 9(2) of the Act which provides that "In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court."
The defendant has a long history of offending against girls of around the ages of 12 to 15. There is a similarity in relation to his offending given that both the index offences and the Victorian offences arose from the defendant singling out vulnerable victims in the course of his work. His risk factors do not seem to have been substantially resolved.
I am satisfied that it is possible that a court would find that the defendant poses an unacceptable risk of committing a serious sex offence.

The conditions of the ISO

In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
As Beech-Jones J observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]: "In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender … to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender."
The proposed conditions were the subject of submissions at the preliminary hearing before me. A number of conditions were not pressed and objections withdrawn leaving only two conditions in dispute.
Mr Khan raised a concern about a condition that the offender not approach or have contact with anyone who he knows or reasonably believes is under the age of 18, on the basis that the offender may breach that condition by accident if, for example, he was to be served by a person under 18 years of age in a shop of cafe. Mr Khan referred to the decision by Button J in State of NSW v Keith Farringdon [2018] NSWSC 874 that there is an expectation on the part of the court that there will be sensible and practical application of these conditions. It was Mr Khan's submission that the offender would not breach the condition merely by going to the supermarket, for example, and being served by a juvenile who was acting in the course of his or her duty. Despite this position, Mr Aitken did bring to the court's attention the decision of Lonergan J in State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949 in which her Honour varied such a condition as follows: "28. The defendant must not approach or have contact with anyone who he knows or reasonably believes is under 18, other than incidental contact in a public place with a person in the course of that person's duty, unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO." (Emphasis added.)
I indicated to the parties that I proposed to adopt Lonergan J's wording for the proposed condition.
Second, Mr Khan sought to amend condition 35, which requires that if the defendant starts a "relationship" with someone, he has to tell his DSO who may want to tell that person about his criminal history. Mr Khan sought to narrow the definition of "relationship" to either "romantic" or "intimate" relationship. Mr Aitken submitted that its overriding concern is not about the offender being in an intimate relationship with someone, but that he was in any relationship where he might have access to children.
Mr Aitken submitted that the condition is about detection and protection; so that if a person is aware of the offender's criminal history, then that person can take their own steps to ensure additional protection of children who are visiting, for example. Accordingly, it was submitted that "close, personal relationship" would be preferable as a platonic relationship can be a close, personal relationship; it does not necessarily involve some form of intimacy or romance, and that would still potentially expose a child for example who was living with or associating with that other person to risk.
Mr Khan submitted that the offender's specific risk profile is not the forming of relationships with individuals, to ingratiate himself in order to obtain access to young children. He submitted that the difficulty is with the subjective interpretation and meaning of terms like "intimate" and "close, personal" where it becomes unworkable practically. He submitted that "intimate" has a very clear meaning.
It is to be noted that the supporting documentation indicates that Mr Hudson has expressed an intention to resume a relationship on release with his present partner, who has several children under the age of 12 and a daughter aged 14. Given that the final hearing may not be for some time, and it is unclear as to whether he will still be in that relationship at that time, counsel did not raise the issue of whether he could resume that relationship whilst also complying with the conditions of the ISO I have imposed.
Having regard to the respective submissions I indicated that I proposed to insert the word "intimate" before the word "relationship" and Mr Aitken indicated that he had no objection to that wording.
The conditions of the ISO to which Mr Hudson will be subject appear in Schedule 1 to this judgment.

Orders

In consideration of the above, I make the following orders: 1. Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. That Dr Adam Martin and Dr Richard Furst be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 26 April 2019; 2. Directing the defendant to attend appointments with Dr Adam Martin and Dr Richard Furst on dates as advised. 1. The defendant is to attend appointments on the above dates in anticipation of the final hearing occurring on 30 May 2019. The parties agree that should the defendant remain in custody to serve the balance of his Victorian parole, thus postponing the final hearing date, the parties will apply to the Court for supplementary expert reports to be ordered and prepared close to the end of the defendant's sentence. 2. Supplementary expert reports are to be provided to the Court on a date to be fixed in the following circumstances: 1. If the defendant is ordered to serve the balance of his Victorian parole in custody; 2. If the CUBIT report for the defendant is not available at the time the initial expert report is completed and filed. 1. Pursuant to s 10A of the Act the defendant is subject to an interim supervision order from midnight on 7 March 2019 (the time at which the defendant's sentence expires) for a period of 28 days. 2. Pursuant to section 11 of the Act, directing that the defendant comply with the conditions set out in the Schedule annexed to the Summons in these proceedings filed in Court on 25 February 2019, and as further amended by the Court, for the period of the interim supervision order referred to in order 2 above. 3. The matter is to be listed on 29 March 2019 to hear the plaintiff's application for a renewal of orders that the defendant be subject to interim supervision for a period of 28 days. 4. The plaintiff is to file and serve any evidence for the final hearing by 23 April 2019. 5. The matter is to be listed on 26 April 2019 to hear the plaintiff's application for a renewal of orders that the defendant be subject to interim supervision for a period of 28 days, or until judgment is delivered, whichever is sooner. 6. The defendant is to file and serve any evidence for the final hearing by 30 April 2019. 7. The plaintiff is to file and serve submissions on which it relies by 6 May 2019. 8. The defendant is to file and serve submissions on which he relies by 13 May 2019. 9. Any submissions of the plaintiff in reply are to be filed and served by 15 May 2019. 10. The matter is to be listed for hearing on 20 May 2019 at 10:00am with an estimate of one day. 11. The defendant is to advise the plaintiff which experts are required to attend Court to give evidence at the final hearing by no later than 4pm on 14 May 2019. 12. Pursuant to section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) directing the attendance of the defendant by audio visual link at the Supreme Court for the hearing referred to in order 13 above, if the defendant is resident in NSW at the time of the hearing, and requesting that the Victorian Commissioner for Corrections make the defendant available by audio visual link if he is detained in custody in Victoria at the time of the hearing. 13. That access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification by the Registrar of the Court to the parties of the non-party's application for access, and such access will not be granted without the leave of a Justice of the Court. 14. Liberty to apply to relist the matter on one day's notice.

"These proceedings", where that term is used in these conditions, means proceedings by way of application filed in the Supreme Court of New South Wales by the State of New South Wales for an ISO and ESO against the defendant, case number 2019/30902 Part A: Reporting and Monitoring Obligations Monitoring and reporting

The defendant must accept the supervision of Corrective Services New South Wales (CSNSW) until the end of the Order.
The defendant must report to the Departmental Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions given by his DSO or any other person supervising him. Electronic monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of movements
If directed, the defendant must provide a weekly plan (called a "schedule of movements") and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must seek approval from his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 7 The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
Subject to the period of time during which the defendant may be held in custody or required to reside in Victoria pursuant to the enforced extradition referred to in condition 14 below, the defendant must live at an address approved by his DSO (the "approved address").
The defendant must be at his approved address between 9.00PM and 6.00AM unless other arrangements are approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions and requirements
Except if subject to enforced extradition to Victoria, the defendant must not leave New South Wales without the approval of CSNSW.
Subject to conditions 16 and 17 below, in the event that the defendant is extradited to Victoria and held in custody (either serving the balance of his County Court sentence parole and/or awaiting determination of the parole revocation by the Adult Parole Board of Victoria), during the course of any Interim Supervision Order (ISO) or Extended Supervising Order (ESO) imposed by the New South Wales Supreme Court, he must return to New South Wales as soon as possible on release thereafter and no later than within three days of being released from that custody and must report to his DSO immediately on return into New South Wales.
In the event that the defendant is extradited to Victoria and subsequently released from custody to serve the balance of the County Court sentence parole in the community, the defendant must immediately, following the determination to release him to parole, take all necessary steps to request the relevant Minister and relevant designated authority to transfer and register his parole order in New South Wales. The defendant is to do all things necessary to ensure transfer of the parole order is made as soon as possible and that his DSO is kept informed of that process, including: 1. providing and maintaining his consent for such transfer and registration to occur; 2. notifying his DSO of the steps being taken to ensure the transfer and registration occurs; and 3. notify his DSO of his accommodation address in Victoria and contact details.
In the event that the defendant is released to the Victorian County Court sentence parole order referred to in condition 16 above, the defendant must immediately notify his DSO of the conditions of that parole order. If approval is granted for the transfer and registration of that parole order in New South Wales, the defendant must return to New South Wales as soon as possible and no later than within three days of such approval being granted, and: (i) report to his DSO immediately on return into New South Wales; and (ii) report in person to the relevant NSW Community Corrections Office to register, immediately after arrival in New South Wales.
Subject to conditions 14-17 inclusive, the defendant is required to reside in New South Wales for the unexpired portion of any ISO and until such time as a final hearing is conducted and determined.
In the event that the defendant is released to a parole order in the community in Victoria following a determination made by the Adult Parole Board of Victoria, the defendant's obligations under the ISO made in these proceedings, but only so far as conditions 4-8, 10-13, and 22-57 of these Conditions of Supervision are concerned, are temporarily suspended during such time that the defendant is required to reside in the community in Victoria under any such parole order. The suspension of those obligations is contingent upon the defendant complying with condition 16 and 17 above and the obligations will resume immediately on the defendant's re-entry into New South Wales.
If ordered by a justice of the Supreme Court of New South Wales in these proceedings to attend a psychiatric and/or psychological expert assessment during the period of any ISO, and if the defendant is at the date scheduled for such assessment still held in custody in Victoria, the defendant must attend any such assessment by way of audio-visual link. If the defendant at the date of any such scheduled assessment is required to reside in the community in Victoria pursuant to a parole order, the defendant must attend any such assessment in person, to be organised at a suitable location in Melbourne that has an available audio-visual link.
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must not go to a place if his DSO tells him he cannot go there.
Without limiting condition 22, the defendant must not go to any of the following without the prior approval of his DSO: a. Day-care centres, pre-schools and schools; b. Amusement parlours, amusement parks, carnivals and theme parks c. Cinemas; d. Libraries and museums; e. Camping grounds and caravan parks; f. Children's playgrounds, parks, and areas with play equipment provided for the use of children; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or i. Residences where the defendant knows that persons under 18 ordinarily reside j. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).
The defendant must not without prior approval of his DSO attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment. Part D: Employment, finance and education
If the defendant is unemployed, the defendant must make himself available for employment, and if and as directed by the DSO make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
The defendant must not start any job, volunteer work or educational course without the approval of his DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol
The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.
The defendant must submit to testing for drugs and alcohol as directed by his DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Association with children
The defendant must not approach or have contact with anyone who he knows or reasonably believes is under the age of 18 other than incidental in the course of that person's duty unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. Associations with others (not children)
The defendant must not associate with people that his DSO tells him not to.
The defendant must not associate with any people who are consuming or under the influence of illegal drugs.
The defendant must not, without the prior approval of his DSO, engage the services of sex workers.
If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Access to the internet and other electronic communication
The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part H: Search and seizure
If the DSO reasonably believes that a search (of the type referred to in sub‑paragraphs d to g below) is necessary: 1. for the safety and welfare of residents or staff or persons present at the defendant's approved address; 2. to monitor the defendant's compliance with this order; or 3. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: 1. search and inspection of any part of, or any thing in, the defendant's approved address; 2. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; 3. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or 4. search and examination of his person.
For the purposes of the above condition: 1. a search of the defendant means a garment search or a pat-down search. 2. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched. 44. During a search carried out pursuant to condition 42 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: 1. the safety of residents or of staff at the defendant's approved address; 2. the welfare or safety of any member of the public or any other person; or 3. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 45. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 46. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 42 to 45 above. Part I: Access to pornographic, violent and classified material 47. The defendant must not without prior approval of his DSO purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO. Part J: Personal details and appearance 48. The defendant must not change his name from "Ian James Hudson" or use any other name without the approval of his DSO. 49. The defendant must not use any alias, log-in name, or a name other than "Ian James Hudson" or use any email address, other than those known to the DSO under condition 37 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 50. The defendant must not change his appearance without the approval of his DSO. 51. The defendant must let CSNSW photograph him. 52. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part K: Medical intervention and treatment 53. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 54. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 55. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 56. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 57. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 58. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Amendments 08 March 2019 - Order 1(b) and 1(c) deleted New Order 1(b) substituted 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 March 2019

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