State of New South Wales v Irwin

Supreme Court of NSW|2014-04-14|Before: Adamson J, Program J

Introduction 1The State of New South Wales seeks a continuing detention order (CDO) under s 5D of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) against Mr Irwin for a period of two years. In the alternative it seeks an extended supervision order (ESO) under s 5C of the Act for a period of five years on the conditions set out in the schedule to the summons. Mr Irwin does not oppose an ESO for five years on those conditions.

Evidence 2The State relied on the following affidavits and the documents exhibited to them: (1)Affidavits of Paul Nash (Solicitor from Crown Solicitors Office with carriage of the matter) affirmed 23 October 2013, 5 December 2013 and 28 March 2014; (2)Affidavit of Patrick Sheahan (forensic psychologist employed by Corrective Services NSW) affirmed 4 November 2013; (3)Affidavit of Wayne Zahra (Team Leader, Clinical Services at Community Justice Program) affirmed 7 November 2013; (4)Affidavits of Zouhier "Ziggy" Abedine (Manager of ESO Team in Corrective Services NSW) affirmed 5 November 2013 and 31 March 2014; (5)Affidavit of Christie Smithers (Community Corrections Officer within the ESO Team who was Mr Irwin's Departmental Support Officer on his release in February 2014) affirmed 28 March 2014; (6)Affidavit of Julie Bates (ESO Unit Leader) sworn 3 April 2014; (7)Affidavit of Wendy Richman (ESO Unit Leader) affirmed 4 April 2014; (8)Affidavit of Beau Thornton (Area Manager of the House With No Steps and Community Justice Program support worker for Mr Irwin from 9 November 2013 until 20 December 2013) affirmed 4 April 2014; (9)Affidavit of Vanessa Lui (Operations Manager of House With No Steps) affirmed 7 April 2014; (10)Affidavit of Jeffrey Halacas (Community Justice Program support worker for Mr Irwin from 20 December 2013) affirmed 11 April 2014; (11)Affidavit of Jennifer Gray (Throughcare and Placement Officer at the COSP facility) affirmed 14 April. 3The reports of the court-appointed experts (forensic psychiatrists) were also tendered: (1)Reports of Dr Andrew Ellis dated 26 January 2014 and 11 April 2014; (2)Reports of Dr Jeremy O'Dea dated 6 February 2014 and 14 April 2014. 4The transcript of an Electronically Recorded Interview of Suspected Person (ERISP) in which Mr Irwin participated on 19 March 2014 was also tendered. 5Mr Johnston, who appeared on behalf of Mr Irwin, read the affidavit of Damien Beaufils affirmed on 14 April 2014.

Mr Irwin's background and mental state 6Mr Irwin was born in Sydney 1976 and is now 37 years old. The following history is taken from the history he gave to the court-appointed experts. He has never met his father. His mother's various partners physically and sexually abused him. He has two half-sisters and one half-brother. 7He attended school until he was 15. He was in classes for intellectually disabled children. He found school boring and was often bullied. He engaged in oppositional behaviour and truancy. When he was 12 he was sent to boarding school during the week, which was a relief because it gave him some respite from his mother's partners. He left home at 15 and lived in refuges, with relatives, and also on the streets. He had a housing commission property for a short period when he was 17. The longest he has ever lived in one residence was six months. He had a partner with whom he lived for three months. 8He has no vocational qualifications. He was employed in unskilled positions including delivering newspapers. His longest period of employment has been two and a half months. 9Mr Irwin is described as having a "Mild Intellectual Disability", a term which is apt to mislead since it means that he operates within the extremely low range, which means that only one per cent of the general population would function at a lower level. Observations of Mr Irwin by therapists have confirmed this assessment. 10In addition to the history of sex offences set out below, Mr Irwin has a criminal history that includes resist arrest, goods in custody, drive whilst unlicensed and common assault.

The sentences imposed on Mr Irwin and the time he has spent in custody 11Mr Irwin has been convicted of the following sex offences (the facts of which are set out in more detail below): Date of offending Offence Sentence Time in custody 1997 Aggravated indecent assault of 10-year old boy Two years recognisance expiring 23 June 1999 Nil (recognisance to be of good behaviour). 13 April 2000 Indecent assault of a person under 10 years (fondling of 6-year old boy outside his clothing) Four-year sentence that expired on 13 April 2004 with a non-parole period of two years that expired on 13 April 2002. 14 April 2000- 13 April 2002 Late 1999, early 2000 Aggravated sexual assault of boy aged 11 years (5 counts): fondling victim at offender's residence Nine months imprisonment commencing from 14 April 2002. 14 April 2002 -13 January 2003 November 2008 Possess child pornography (three counts) One year and five months (expired 26 April 2010) with a minimum term of one year and 21 days (expired 20 December 2009). 30 November 2008-20 December 2009 June -November 2011 Contravene prohibition order (three counts) (index offences) Two years (expired 8 November 2013) with a minimum term of one year and six months (expired 8 May 2013) 9 November 2011- 8 November 2013 November 2013 Breach of ISO conditions Three months fixed term from 26 November 2013 until 25 February 2014 26 November 2013- 25 February 2014

Mr Irwin's criminal record prior to the index offences 12The 1997 offence was committed when Mr Irwin accompanied a ten-year-old boy and his family on a beach trip to the Central Coast of New South Wales. Mr Irwin took the ten-year-old victim to the shower facilities and offered to wash him. When the victim refused Mr Irwin exposed the victim's penis by pulling aside his swimwear. Mr Irwin kissed the victim on the neck, touched and rubbed the victim's genitals through his swimwear and exposed his own genitals. The victim ran from the shower and advised his carers who reported the matter to police. He was granted bail. 13The late 1999/ early 2000 offences were committed on an 11- year old boy who would come to Mr Irwin's house to watch pay television. During these visits Mr Irwin placed his hands down the victim's pants and fondled his penis, endeavoured to kiss him and attempted to buy the victim's silence by giving him toys. The sentence for this offence commenced upon the expiry of the non-parole period for the April 2000 offence. 14The April 2000 offence was committed when Mr Irwin, who was employed as a door-to-door salesman, approached the victim's parents to ask permission for their six-year old son to accompany him on his work route. One afternoon, after finishing work, Mr Irwin brought the victim to another male's residence where he fondled the boy's genital area outside his clothing. The victim reported the matter to his father as soon as he collected him. Mr Irwin was charged the following day. He denied the offence. He was refused bail and remained in custody on remand until he was convicted and sentenced. 15In 2002, while in custody, Mr Irwin attended an Adapted Custodial Based Intensive Treatment (CUBIT) programme, which was to last for about twelve months. The Adapted CUBIT programme was designed for offenders with literacy problems, borderline intellectual disabilities or other special needs who have committed sexual offences and who have limited adaptive skills in the gaol environment. Mr Irwin was discharged from the programme after two months because of his behaviour. In 2003, he again attempted an Adapted CUBIT programme again. His mood swings compromised his participation. After three months he was temporarily suspended for breach of confidentiality. During his period of temporary suspension he assaulted another offender, which led to his being discharged from the programme. 16Some time after Mr Irwin's sentence expired in 2004 he moved to the Northern Territory for a period during which he was apparently convicted of further offences, the detail of which is not revealed by the evidence. 17By the time of the commission of the 2008 offences of possession of child pornography Mr Irwin had returned to New South Wales. The offending material was discovered when the police seized a number of computers, hard drives, disks and mobile phones. The other relevant items that were found were two Santa suits, 'Santa for Hire' signs and about 90 lollies. Mr Irwin was refused bail and remained in custody from 30 November 2008 until the expiry of his non-parole period for an unrelated offence of damage property by fire/ explosive. His parole period for the unrelated offence expired on 25 October 2010. 18In early 2010 he was assessed as being suitable for a programme known as Self Regulation Program: Sexual Offending (SRP), which replaced CUBIT. He carried out some modules in the course of treatment but was described as having made minimal progress. 19Before his release, Mr Irwin was accepted into the Community Justice Program (CJP), which provides support services, including accommodation, to disabled offenders in the community. CJP is run by the Ageing Disability and Home Care Division (ADHC) which is part of the Department of Family and Community Services. 20From about the time of his release Mr Irwin resided in Intensive Residential Support (IRS) accommodation in Orange provided by CJP which was staffed 24 hours a day. As he was no longer on parole he was free to come and go from the residence as he wished. 21On 22 December 2010 the Local Court at Orange made a prohibition order under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) that included a stipulation that Mr Irwin not associate or contact any person under the age of 18 years and that he not associate with other child sex offenders. 22In late March 2011, Mr Irwin moved back to the Northern Territory and was, as a consequence, suspended from CJP. On his return to New South Wales on 25 May 2011 he resided in a group home provided by CJP as part of its On-Site Supported Living (OSSL) package. There was one staff member on duty 24-hours a day. Such accommodation provided less intensive supervision than the IRS accommodation in which he had previously resided.

The index offences 23According to police facts, in June 2011 Mr Irwin contacted an intellectually disabled 17-year old girl through a social networking site. He continued to contact her over the ensuing months. The message content included Mr Irwin expressing the desire to have sex and children with her. In November 2011 Mr Irwin travelled from Orange to Sydney and moved into a residence with other convicted child sex offenders. Some of the message content indicated that he intended to meet with the female in person. He was also in on-line contact with another intellectually disabled 17-year old female to whom he expressed his love and stated: "u r hot babe". 24The police contacted Mr Irwin while he was en route to Sydney and reminded him of the content of the prohibition order. He misled police about his whereabouts and persisted in his association with other child sex offenders and his contact with the 17-year old female. He told staff at the CJP residence that he was travelling to Sydney to visit a relative and to conduct business. When police contacted him again in Sydney, they asked him what he was doing in Sydney. He told them that he was attending a Herbalife conference. The evidence revealed Herbalife to be a franchise business that sold health supplements. The police were unable to identify any such conference. While in Sydney, Mr Irwin visited a previous stepfather who had been convicted for sex offences. This constituted a further breach of his prohibition order that prohibited contact with other sex offenders. 25On 10 November 2011 Mr Irwin was arrested and charged with three counts of contravene prohibition order arising from this conduct. He was refused bail. On 23 January 2012 Mr Irwin was convicted in the Orange Local Court of three counts of contravene prohibition order and sentenced to a period of two years with a non-parole period of one year and six months. The non-parole period expired on 8 May 2013 but parole was revoked because of concern about the adequacy of post-release accommodation and the management of the risk of his re-offending. 26CJP prepared a risk management plan (entitled "Incident Prevention and Response Plan") dated 23 September 2013 which was to operate in respect of Mr Irwin, but which was not implemented because it was superseded by the orders made in these proceedings.

Events following the commencement of these proceedings

The making of ISOs and the arrangements for Mr Irwin's accommodation and supervision 27The State of New South Wales (the State) commenced these proceedings by summons filed on 24 October 2013. At the time of commencement of proceedings, Mr Irwin was a "detained sex offender" within the meaning of s 13B(1) of the Act because he was serving a sentence for an offence of a sexual nature. The proceedings were commenced within the six-month period prior to the expiry of the sentence: s 13B(3). 28On 7 November 2013 Barr AJ made an interim supervision order (ISO) for a period of 28 days subject to the conditions set out in the schedule to the summons: State of New South Wales v Irwin [2013] NSWSC 1773. One of the conditions required Mr Irwin to wear a Global Positioning System (GPS) device so that his movements could be tracked and ascertained at any given time. It also provided for the provision in advance of a weekly schedule setting out his proposed movements. The schedule is programmed into a system which tracks his GPS device and alerts staff if there is deviation from the schedule. 29On 25 October 2013, while Mr Irwin was still in custody, he was visited by Mr Thornton, who was employed by House With No Steps, a non-governmental organisation that provides support for people with disabilities to live in the community, and Trudy Cusack, a CJP psychologist. House With No Steps contracted to provide CJP services in the Sydney metropolitan area from July 2013. The purpose of the visit was so that CJP could assess Mr Irwin's needs on his release from custody. 30Mr Thornton and Vanessa Lui, the operations manager of House With No Steps, attended a case conference on 7 November 2013 to learn about Mr Irwin's history and develop strategies for dealing with his behaviour. The importance of "line of sight" supervision when on an excursion was highlighted. There was also discussion about the need for Mr Irwin to be accompanied when he went to the bathroom. 31Mr Irwin was released from custody on 9 November 2013 to reside at the Nunyara Community Offenders Support Program (COSP), which is run by Corrective Services NSW. CJP offered IRS accommodation to Mr Irwin upon his release. However as there was a place for him at the COSP facility, which provides closer supervision, the CJP offer was not accepted. 32Vicki McCarthy was appointed as Mr Irwin's Departmental Supervising Officer (DSO) upon his release. A DSO is a person authorised by the Commissioner of Corrective Services to manage and supervise a sex offender's compliance with an ISO, or ESO, as the case may be. The DSO is the primary point of contact for the offender and all persons involved in that person's supervision. 33CJP offered to provide Mr Irwin up to 35 hours of support per week to accompany him on outings outside the COSP facility and to help him to prepare his weekly schedule. 34CJP staff are support workers who are not specifically trained to deal with sex offenders or the enforcement of ESOs although they may be called upon to chaperone such offenders who are subject to ISOs or ESOs. According to Wayne Zahra, Team Leader, Clinical Services at CJP, CJP's principal aim is to minimise re-offending and intervene to improve the behaviour, quality of life, and vocational and social skills of offenders. CJP administers various types of accommodation which are less intensive than COSP including group houses, such as the IRS residence in Orange in which Mr Irwin resided after his release from custody on 7 October 2010. 35Upon Mr Irwin's release on 9 November 2013, Mr Thornton was appointed as his CJP support worker. 36On 9 November 2013 Mr Irwin was issued with a formal written direction that he was not to use Facebook and, if he had been, to close down all Facebook accounts and cease all use of Facebook. 37There were further meetings concerning Mr Irwin on 12 November 2013 which were attended by Mr Abedine and Ms McCarthy from Corrective Services NSW and Mr Thornton, Ms Cusack and Ms Lui from CJP and House With No Steps. The need to submit weekly schedules in advance was explained. The CJP representatives were given a copy of the COSP rules and the schedule of conditions of the ISO. The requirements of "line of sight" supervision were also discussed and the need for Mr Irwin to be accompanied to a disability toilet was agreed upon. There was also discussion about the desirability of Mr Irwin going on outings during school hours when there was less likelihood of his encountering children.

The COSP accommodation 38The COSP accommodation is staffed 24-hours a day by approximately 4 departmental officers. It is operated by Corrective Services NSW to provide transitional accommodation for periods of up to six months for about 45 offenders who are subject to ISOs or ESOs. There is a security guard at the door of the facility. The gates are locked in the evening. According to Mr Abedine: "If a person absconds from the COSP it would be immediately detected." 39Mr Abedine also opined that while Mr Irwin was within COSP he would not consider him to be a risk to the community.

Breach of COSP residence condition prohibiting sexual activity 40The COSP resident terms and conditions included a prohibition on sexual activity at the COSP. Mr Irwin breached this term on 18 November 2013 when he had intercourse with another resident in the cubicle of a bathroom on the COSP premises. 41A report of the weekly case management meeting recorded that Mr Irwin told staff that he could not help himself and that the other resident had initiated the contact. He admitted that he knew it was against the rules of COSP but that his urges had been too strong to resist since he had not had sex for such a long time. Mr Irwin was directed to have no further contact with the man with whom he had had intercourse.

The November 2013 breach 42On 18 November 2013, Mr Irwin's supervising officer, Ms McCarthy, was notified that Mr Irwin was using Facebook. When he was asked about it, he said, "It's a way to contact old friends." A check of his Facebook page on 25 November 2013 revealed it to be still operative. 43This conduct was alleged to constitute a failure to comply with a direction as well as a breach of a condition not to use an internet based social networking service. The second condition was also said to be breached by his using email addresses. 44On 26 November 2013 Mr Irwin was arrested and charged pursuant to s 12 of the Act with breach of the ISO arising from the circumstances set out above. He took part in an ERISP in the course of which he acknowledged that he had a Facebook account as well as an email address. He explained that he had created the account in order to begin selling herbal products through a company known as "Herbalife". Mr Irwin did not apply for bail. 45On 4 December 2013 Mr Irwin pleaded guilty to the charges and was sentenced by the Local Court at Waverley to a fixed term of imprisonment for three months from 26 November 2013 to 25 February 2014. 46Subsequently, on 10 December 2013, Mr Irwin instructed and authorised his solicitor, Joanne Pollack, to close his Facebook account and cancel it. He instructed her that he had wanted to close it down earlier but that he did not have internet access at the COSP facility and therefore could not close it down. Ms Pollack de-activated Mr Irwin's Facebook account on 10 December 2013. The evidence does not reveal whether this was the only Facebook account that was then operative. 47The present proceedings were listed before Barr AJ on 6 December 2013 for renewal of the ISO for a further 28 days. However, because Mr Irwin was in custody, Barr AJ issued an order in the following terms: "That pursuant to s 10C of the Act the interim supervision order made by the Court on 7 November 2013 be extended by a further 28 days to commence on the day the defendant is released from custody (including on appeal bail) on or after 7 December 2013." 48Mr Johnston, who appeared on behalf of Mr Irwin, submitted to Barr AJ, and to me, that s 10C of the Act did not authorise the Court to commence a period of renewal of an ISO except consecutively upon the expiration of an existing period and that, accordingly, because the ISO was not validly made, it could not have been breached. It would not be appropriate for me to come to a different view from that of Barr AJ (see State of New South Wales v Irwin, unreported, 6 December 2013, Barr AJ) unless I am satisfied that his Honour was clearly wrong. I am not satisfied that the Act did not authorise the ISO made by Barr AJ. 49In these circumstances, I need to examine the conduct that is relied upon by the State as amounting to breaches by Mr Irwin of conditions of the ISO. However, it is the underlying conduct that is of principal importance in so far as it affects an assessment of the present and future risk posed by Mr Irwin. Accordingly, whether such conduct amounts to a breach of a condition of the ISO is of lesser significance, although his level of compliance with the ISO is a relevant consideration (s9(3)(g) and s 17(4)(f) of the Act) that must be taken into account. 50On 20 December 2013, while Mr Irwin was in custody, Mr Thornton visited him with Jeffrey Halacas, another employee of House With No Steps, who was to take over as his support worker on his release. On this occasion Mr Irwin told Mr Halacas more than once that he was going to get a simple phone without internet access or a camera. 51Shortly prior to Mr Irwin's release in February 2014 Mr Halacas met with Ms Lui and Tracey Bartimore (an acting support manager at House With No Steps) to provide Mr Halacas with the COSP Rules and the conditions of the ISO. He was instructed to explain these rules and conditions to Mr Irwin. At this meeting, the risks posed by Mr Irwin having access to the internet were discussed. Mr Halacas was instructed to arrange for Mr Irwin to agree to have an internet block placed on his telephone on the day of his release. 52The plan was that Mr Halacas was to spend five hours a day, three days a week with Mr Irwin. Mr Halacas was to spend an additional three hours a day, three days a week on administration associated with Mr Irwin. The principal purpose of Mr Halacas accompanying Mr Irwin when he was outside the COSP premises was to prevent Mr Irwin re-offending. The association was also intended to provide Mr Irwin with a positive distraction, good company and a good example as well as assisting him with practical matters such as banking and attending medical appointments.

Period following Mr Irwin's release from custody on 25 February 2014 53The effect of the order made by Barr J on 6 December 2013 was that the ISO was effective as at 25 February 2014 and was due to expire on 24 March 2014, unless renewed. On 19 March 2014 Davies J ordered, pursuant to s 10C of the Act, that the ISO made on 6 December 2013 (that took effect from 25 February 2014) be renewed to take effect on and from 25 March 2014 for a period of 28 days. This ISO expires on 21 April 2014. 54On 25 February 2014 Mr Irwin was released from custody, having served his term for the November 2013 offences. Upon his release, George Denton became his DSO and, shortly thereafter, Christie Smithers took over that role. Julie Bates, an ESO Unit Leader, gave him a written direction not to associate with the person with whom he had previously had sexual intercourse with in the COSP facility as well as other written directions prohibiting the use of Facebook and associating with persons under 18 years or sex offenders, other than the residents of COSP. She also explained those written directions to him. 55Ms Gray, the Throughcare and Placement Officer at the COSP facility, also gave him written directions about his movements around COSP and his interaction with other residents. 56On 26 February 2014, Mr Halacas took Mr Irwin out shopping for a phone. Despite the intention he had earlier expressed of getting a phone without internet access, Mr Irwin was adamant that he wanted an LG smartphone. Mr Halacas drafted an agreement, which they both signed, that Mr Irwin would have an internet block placed on his phone. Mr Halacas heard Mr Irwin speak on the telephone, apparently to his service provider, to arrange the block. This measure, however, is voluntary and can be reversed at any time. 57On 27 February 2014 Ms Smithers received a report that the person with whom Mr Irwin had previously had sexual intercourse at the COSP facility had reported that, in breach of the prohibition against further contact, Mr Irwin had sent him a text message. Later the same resident reported receipt of another text from Mr Irwin which read: "I hope we r still friends. I will put a smoke in the laundry ok. Can only text when we want 2 talk. Text me back when u have a smoke." 58Later that day the same resident reported that Mr Irwin had telephoned him. The following day Mr Irwin was given a written direction not to contact the resident. 59On 28 February 2014 Ms Smithers spoke with Mr Irwin about the written direction. He confirmed that he understood the prohibition. That day Mr Irwin spoke with Ms Smithers about his plan to advertise and promote his business under the business name, "SLI Nutrition Plus". The initials "SLI" are Mr Irwin's own initials. He told Ms Smithers that he could access email under the supervision of Mr Halacas in a public library. Ms Smithers then said to him: "You can't start your business until I have discussed it with the Unit Leader and the ESO Manager and let you know the outcome." 60When Ms Smithers saw Mr Irwin on 4 March 2014 he told her that he wanted to get out of COSP and live in alternative accommodation. Ms Smithers also discussed this proposal with Mr Halacas who told her that he had seen Mr Irwin several times since his release and that he had no concerns about Mr Irwin at that time. 61On 12 March 2014 Ms Smithers tried to contact Mr Irwin by telephone. The call was diverted to voicemail. Ms Smithers heard a message to the effect: "Hi, you've called SLI Nutrition Plus." 62On 14 March 2014 Ms Smithers visited Mr Irwin at COSP and told him that she would let him know the following week whether he was approved to conduct the Herbalife business. On the same day another sex offender, who was also subject to supervision but who no longer resided in the COSP facility, told Ms Richman that Mr Irwin was attempting to recruit him to become a customer of Herbalife so that he could earn commissions. The other offender wanted his number deleted from Mr Irwin's phone because Mr Irwin had been calling and texting him repeatedly about Herbalife. 63Later, on 18 March 2014, Ms Smithers was again redirected to the same voicemail message. When she asked him about this, he told her that he had been on the phone to Herbalife following up on a purchase he had made which had apparently been delivered to the wrong address. She reminded him that she had not approved the business. He said that it was a personal order and that he was getting ready in case he was given approval to operate the business. When Ms Smithers reiterated the lack of approval, he insisted that he was not operating the business. 64On 19 March 2014 Ms Smithers and Ms Richman visited COSP. When they arrived Kim Ward, the manager of COSP, informed them that Mr Irwin had refused to provide his mobile phone to her. Ms Richman then asked to see Mr Irwin's mobile phone because she was concerned that he was running the Herbalife business and accessing Facebook. He said in response that he had requested a starterpack from Herbalife so that he would be ready to run his own business. He showed them a card which identified him as an authorised independent distributor for Herbalife. Mr Irwin said that he had not been advertising. Ms Richman put to him that the advertising material included the COSP address as his current address. He said that he had used it because he had to give an address in order to receive the starter pack. 65When Ms Richman inspected Mr Irwin's phone she saw in the search history the search words "young boys having sex". 66When Ms Richman questioned Mr Irwin about what his phone indicated, he said, "I couldn't spell. It's a mistake." However, staff tested him and found that he could spell the words "young", "boys" and "sex". He gave a further explanation that he had been searching for wrestling videos as one of the previous residents of the COSP facility had been a wrestler and he wanted to see if there were any videos of him. According to the police facts, he also stated that he had typed in "young boy" when completing this search as the wrestler had been a young person at the time. 67When Ms Richman asked him about Facebook, Mr Irwin said that he had forgotten the password and had not been accessing the page. He also told her that he had asked his solicitor to delete that account. 68Later in the course of conversation with Ms Richman, Mr Irwin told her that he had gone to the beach that day. When Ms Richman told him that it was not on his schedule, he said that Mr Halacas had taken him there. She subsequently called the Electronic Monitoring Unit (EMU) and requested a record of his movements according to the GPS. The police were then called and Mr Irwin was arrested and taken into custody. 69Ms Richman prepared a breach report to which she annexed screenshots from a website for "SLI Nutrition Plus". One screenshot contains text that includes the following: "I'm Scott Irwin your friendly independent Herbalife Distributor you can phone me on [xxxx] or email [xxxx] and make your order." 70Other pages contained photographs of Mr Irwin in connection with text about Herbalife. 71That evening police conducted an ERISP. In the course of the ERISP, Mr Irwin said that he had asked his solicitor to shut down his Facebook account while he was still in custody and that he did not realise that it was still open. He denied that he had accessed it since November 2013 when he was arrested and taken into custody for breaching his ISO. 72Mr Irwin denied typing in "Young boys having sex". He also said that his fingers were too big for the buttons and that he always pushed the wrong button. He also said that he had been browsing the internet because he was planning to start up a Herbalife business. When he was asked by the police how a search relating to Herbalife could result in a search for "young boys having sex" he proffered the explanation that he had lent the phone to another inmate, Paul Bilton, on more than one occasion. 73When police asked him about the earlier version he had given in which he had referred to wrestling, he said that he looked at something on Youtube that looked as if people were wrestling although on closer examination it looked as if the men were having sex with their clothes on. 74In the ERISP the following exchange occurred: Q94 So you've never looked up pornography on that phone? A Not on that phone, no. Because I know if I do it is a breach. 75Mr Irwin said that he had told his DSO that he wanted to operate the Herbalife business and was still awaiting approval. He admitted that he had ordered a product for himself and received the starter pack. He then explained to police that he had wanted to start the business from the time he was in Orange and had constructed a website to promote the business.

The alleged breaches in March 2014 76On 20 March 2014 Mr Irwin was charged with four offences of "fail to comply with the terms of the ISO". He was refused bail. He has been in custody since that time. Mr Johnston informed me from the bar table that Mr Irwin is defending those charges which are not likely to be heard until about June 2014. 77The four offences particularised in the Court Attendance Notice (CAN) are: (i) Between 9.25 and 10.00 am on 19 March 2014 did fail to comply with Interim Extended Supervision Order by not adhering to his schedule and thereby being in breach of condition 5. (ii) Between 1.45pm and 3.45 pm on 19 March 2014 did fail to comply with his Interim Extended Supervision Order by possessing pornography on his mobile phone. (iii) Between 1.45 pm and 1.50 pm on 19 March 2014 did fail to comply with his Interim Extended Supervision Order by not disclosing his employment with Herbalife thereby being in breach of condition 16 of the order. (iv) Between 1.45 pm and 1.50 pm on 19 March 2014 did fail to comply with his Interim Extended Supervision Order on 21 November 2013 by having an active Facebook account. 78Whether, and how, Mr Irwin has breached an ISO is relevant, under the Act, to whether a CDO or ESO is granted, and on what conditions. However I do not regard it as strictly necessary for me to make findings on the basis of the evidence before me, whether Mr Irwin has breached the ISO as alleged, since the relevant consideration, for the purposes of s 9(3)(f) and s 17(4)(f) of the Act is: "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 interim supervision order or an extended supervision order". 79The evidence established that circumstances of the first offence particularised in the CAN arose when Mr Halacas took him to La Perouse for about half an hour. This trip was not in accordance with a schedule submitted by Mr Irwin on 13 March 2014 which indicated that he intended to remain in the Maroubra area and that he intended to leave the COSP facility at 9 am and return by 1 pm. It had been Mr Halacas's idea to take Mr Irwin to the beach at La Perouse since Mr Irwin did not have any money to spend on the scheduled shopping expedition. Mr Halacas was, at the time, unaware of the condition that he not deviate from the schedule, and did not intend to cause Mr Irwin to be in breach of it. Mr Irwin appears not to have appreciated the consequences of going outside the area if Mr Halacas accompanied him. Indeed the breach was detected when Mr Irwin returned to COSP from his outing and mentioned to Ms Richman that he had been to the beach. 80Mr Halacas gave evidence that he first learned of the potential consequences for Mr Irwin when a detective telephoned him from Maroubra Police Station that evening. Mr Halacas was subject to disciplinary action as a result. I do not regard this breach as adding to the risk which Mr Irwin poses. It is, however, some evidence that Mr Halacas was not given sufficient instruction initially about the need to adhere to the scheduled movements. 81The evidence relating to the second alleged breach is set out above. Mr Halacas gave evidence that he had not seen Mr Irwin access the internet with his phone and said that Mr Irwin had agreed to an internet block on his phone and had signed a document addressed to the service provider to that effect. As referred to above, Mr Halacas was with Mr Irwin when he rang the service provider to ask for an internet block to be placed on his phone. 82I accept the State's submission that the inconsistent versions given by Mr Irwin to explain the entry "young boys having sex" indicate a consciousness of guilt and amount to an implied admission that he was involved in at least trying to access pornography on the internet. The applicable standard of proof for these proceedings is the civil standard. I infer that any internet block that might have been placed on Mr Irwin's phone in the presence of Mr Halacas had been removed by 19 March 2014. 83The third alleged breach arose from a search conducted of Mr Irwin's room, following the discovery of the entry on his mobile phone. The search revealed numerous documents relating to a business known as Herbalife, as well as a starter pack and some products. Mr Irwin was prohibited from engaging in employment without the approval of his DSO. No such approval had been obtained. The evidence in support of that breach is set out above. 84I was initially attracted to the submission that Mr Irwin might genuinely have believed that, while consent for him to start the business was still outstanding, he was entitled to take preparatory steps without being in breach of the ISO. However, I consider, on the basis of all the evidence, that Mr Irwin deliberately proceeded to set up the business and that it was a matter of chance that he had not actually engaged in any transactions with members of the public when the material was discovered. That he had already obtained an identification card, advertised on the internet and recorded a voicemail message on his mobile phone goes, in my view, beyond preparation. I regard this conduct as a further indication that Mr Irwin cannot be trusted to abide by conditions or directions and that it is only by continued checking and supervision that his compliance with such conditions and directions can be enforced. 85The fourth alleged breach relates to an internet search that was conducted on Mr Irwin's name which located an active Facebook account in the name of Scott Irwin which included a recent photograph that clearly depicted Mr Irwin. It is possible that this was another account that was extant but not cancelled in December 2013 when Mr Irwin instructed Ms Pollack to close his Facebook account. In the absence of evidence that Mr Irwin had actually used the Facebook account, I am not disposed to regard this alleged breach of being of significance.

The Act 86Section 3 of the Act provides: Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation. 87The protective purpose is fundamental: Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873 at [10]; Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 (Tillman) at [10]. The legislative purpose of the Act is protective, not punitive. 88Section 5B provides: High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 89In Cornwall v Attorney-General for the State of New South Wales [2007] NSWCA 374 the Court of Appeal said at [21]: "The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..." 90Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Section 5D empowers the Court to make a CDO if the offender is a high risk sex offender and the Court is satisfied that adequate supervision will not be provided by an extended supervision order. 91Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an "unacceptable risk". Where supervision imposed by an ESO would be inadequate to manage what would otherwise be an unacceptable risk, a CDO ought be made: s 5D. Supervision can only be regarded as "adequate" if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk. 92Section 9 provides that the following are to be taken into account in determining whether to make an ESO: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) [court-appointed experts] 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 relevant 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 relevant offence, . . . (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, (f) 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, . . . (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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). 93Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for interim supervision orders (ISO) to be made in certain circumstances. 94Section 11 provides for the conditions that may be imposed on an ESO. 95Section 13A provides that the State may apply for a CDO in respect of offenders, including a high risk offender. The application may be determined by making an ESO, a CDO or by dismissing the application. The relevant matters are listed in s 17(4) and replicate those in s 9 for making an ESO. 96Section 18A authorises the Court to make an IDO if the offender's current custody will expire before the proceedings are determined and an ESO or CDO would be justified, if the matters alleged in the supporting documentation were proved. 97Section 18D provides that an ESO ceases to have an effect during the operation of a CDO or IDO. Section 19 provides that a detention order may be varied or revoked. 98These proceedings are to be conducted as civil proceedings: s 21. 99Section 25B provides that nothing in the Act prevents this Court from making an ESO in respect of a person at the same time as it makes a CDO in respect of such person. The ESO, in that event, commences on the expiry of the CDO.

Patrick Sheehan 100Mr Irwin was assessed by Patrick Sheehan, a senior forensic psychologist employed by Corrective Services NSW, for the purposes, and in advance, of these proceedings. Mr Sheehan's report dated 2 September 2013 (based on an assessment interview on 30 August 2013) documents Mr Irwin's offending and social history with a view to assessing the risk posed by Mr Irwin to potential victims upon his release from custody. 101Mr Sheehan diagnosed Mr Irwin as suffering from Paedophilic Disorder on the basis of the offences he has committed, including possession of child pornography, and his acknowledgement of primary (though not exclusive) sexual interest in prepubescent and pubescent boys. 102During the interview on 30 August 2013, Mr Irwin told Mr Sheehan that he wanted to take anti-libidinal medication and said: "I just want to get onto something that stops me from having sexual thoughts all the time, and coming back to gaol." 103In his report, Mr Sheehan documented Mr Irwin's conduct in the previous year in gaol which included the following: inappropriate sexual touching of other inmates; sending sexual letters to another sexual offender; engaging in sexual activity with another participant in a treatment unit for intensive case management of sex offenders; issuing a general invitation for intercourse in the prison yard; asking another offender if he could sniff his underwear; and attempting to kiss other offenders. When he was confronted by prison staff about his conduct, he responded that having sex was the only way he could control his emotions. Mr Irwin also told staff that, if released into the community, he would re-offend against children aged between 11 and 14 years and recorded this intention in a document. Mr Irwin told Mr Sheehan that during some periods he thinks about sex all day and masturbates up to ten times per day. 104Mr Sheehan also recorded that Mr Irwin remained in telephone contact with other convicted sex offenders who had been released. He had even persisted in phoning one offender, notwithstanding that his number was no longer in service. Mr Irwin explained to Mr Sheehan that he did not have any friends who were not sex offenders. 105Mr Sheehan calculated Mr Irwin's risk of sexual re-offending by reference to an actuarial risk assessment known as Static-99R. His total score was 11 (out of a possible 12) which placed him in the high risk category relative to other male sex offenders. Mr Sheehan described the score of 11 as "unusually high". Individuals with such a score had a rate of recidivism between 51.6% and 59.7% over five years and between 59.7% and 69% over ten years. 106Mr Sheehan said of Mr Irwin's offending: Mr Irwin's sexual offending history is chronic in terms of persistence over the life span, periods of escalated offending frequency and early onset. His offending has limited diversity in terms of offence type ranging from touching offences to child pornography, and offences committed in the home or in public spaces. He has offended on public transport, public spaces and in private dwellings. His convictions do not reflect any clear pattern of escalating invasiveness or seriousness, however his recent behaviour in custody does suggest an escalation in risk. There is no evidence of physical coercion, but grooming behaviours are indicated, such as buying gifts, making acquaintance with the victim's parents, misrepresenting his behaviours to gain victim compliance. He has acknowledged carrying a "Santa suit" in his car to facilitate access to children. 107Mr Sheehan opined that Mr Irwin's principal coping mechanism is sexual diversion: by masturbating, viewing pornography, fantasising or approaching people around him for sexual contact. His focus, according to Mr Sheehan, is the relief brought by sex, without regard to the consequences for himself or others. Mr Irwin harbours a belief that boys are non-judgmental and supportive and that sexual relations between men and boys are normal. 108Mr Sheehan adjudged that Mr Irwin believed sexual contact to be the primary component of intimate attachment. His poor comprehension of social norms and his inability to make friends led to a desperation for sexual contact. He has no family contact. His social contact, apart from with caseworkers, tends to be limited to other sex offenders. Mr Sheehan was unable to establish whether this reflected an interest in further sex offending or a desire to associate with those who are not in a position to make a moral judgment against him. I do not consider that a third possibility can be entirely discounted: the only people he knows are sex offenders because of the custody arrangements in prisons which segregate such offenders from other offenders and the characteristics of residents at the COSP facility. 109Mr Sheehan considered Mr Irwin's tendency to engage in impulsive behaviour and his incapacity to act in his own interests, or to act with regard to consequences, to be substantial risk factors. Mr Sheehan was sceptical of Mr Irwin's statement that anti-depressant had reduced his libido and was unable to exclude the possibility that it was said to create a favourable impression. 110Mr Sheehan opined that there was a high risk of Mr Irwin re-offending by reference to both static and dynamic assessment. He considered anti-libidinal medication to be indicated. 111Notwithstanding that Mr Sheehan's report was provided to the State on 2 September 2013, the State has not referred Mr Irwin to a Justice Health psychiatrist for him to be assessed for anti-libidinal medication. Nor has it taken any step to progress the administration of such medication to Mr Irwin despite Mr Irwin's stated preparedness to consent to such medication. Accordingly, whether such medication will be effective to reduce the risk has not been determined, although the evidence of the psychiatrists referred to below is that it is indicated and provides the best, and perhaps the only, way of reducing the risk of re-offending, apart from incarceration or close supervision.

Dr O'Dea 112Dr O'Dea interviewed Mr Irwin at his rooms for two hours on 25 November 2013 and at Parklea Correctional Centre for a further hour on 30 December 2013. On the second occasion Mr Irwin told him that his mother had been murdered on Christmas Day by her ex-husband. I note that Mr Hammond informed me that the State had been unable to ascertain whether this had occurred. Mr Johnston did not propound it as a truthful history or seek to rely on it in any way. 113Mr Irwin told Dr O'Dea that his libido was reduced since he had taken anti-depressant medication. 114Dr O'Dea noted 8 instances of institutional misconduct while Mr Irwin was in custody, the most recent of which was for intimidation on 1 April 2013. The State has identified 11 such institutional misconduct offences in the evidence. 115Dr O'Dea described Mr Irwin's presentation in the following terms, which he regarded as consistent with his psychiatric diagnosis of Mild Developmental Disability: Mr Irwin presented as a relatively physically fit and healthy man, looking older than his stated age. He was unshaven, with poor dentition, and wore glasses. He appeared of limited intelligence, speaking in simple, poorly formed sentences, and spoke with a mild dysphonia. He was relatively engaging and superficially co-operative, talking at length and in detail about his history. However, his responses appeared at times superficial with evidence inconsistencies and contradictions. He did not appear unduly anxious or agitated and no psychosis was evident at interview. He was able to display adequate range of appropriate emotional responses. He appeared to display limited insight into his apparent problems and limited empathy for the potential effects of his behaviours on others. 116Dr O'Dea opined that there was a significantly high degree of probability that Mr Irwin would be likely to commit a further "serious sex offence" within the meaning of s 5(1) of the Act in the community in the long term unless he is detained or supervised. Dr O'Dea referred to the likelihood as commensurate with what was said by the Court of Appeal in Tillman referred to above. He said that if Mr Irwin had recently attempted to access pornography, such conduct would be consistent with the on-going significant risk he poses. The risk derived in part from Mr Irwin's specific and identified attraction to young boys which, if acted upon, would inevitably amount to criminal conduct. 117Dr O'Dea considered there to be no point in requiring Mr Irwin to engage in custody-based treatment. He opined that the only practical way of reducing his significant ongoing risk of re-offending (apart from incarceration or close supervision) would be the administration of anti-libido medication to lower his testosterone levels. Such medication affects deviant sexual urges and non-deviant sexual urges indiscriminately. 118In a supplementary report dated 14 April 2014 Dr O'Dea placed greater emphasis on the need for testosterone-lowering medication to manage the risk posed by Mr Irwin. He described such medication as "the single most likely effective intervention in managing his risk" and the "best risk management in the least restricted environment". He agreed that it was a "central, critical plank of his ongoing psychiatric treatment". He said in oral evidence that such medication can have a positive effect as early as one week after commencement. 119In oral evidence Dr O'Dea opined that the process of trialling anti-libidinal medication was significantly more time-consuming when the recipient was in gaol because of the practical barriers specific to gaol. The principal cause of the delay was the waiting period of months before a bone density scan could be done on a prisoner at a public hospital. Such a scan could be done much more quickly if a person is not in custody.

Dr Andrew Ellis 120Dr Ellis diagnosed several psychiatric conditions: Paedophilic Disorder, Intellectual Disability, Alcohol Use Disorder, Post-traumatic Stress Disorder and Anti-Social Personality Disorder, of which he considered the first to be of primary concern. 121In his report dated 26 January 2014 Dr Ellis opined that Mr Irwin's risk of committing a serious sex offence is high and that specific treatment with anti-libidinal medication and supervision would probably reduce the risk. He considered that Mr Irwin was likely to be a good candidate for the medication and that it could be effective to reduce his sex drive, arousal and fantasies. Dr Ellis did not consider there to be any obvious contraindications to the use of such medication. Indeed he considered the clinical indication for its use to be "very strong". Dr Ellis said that in his experience many people report feeling much better on such medication because they are not experiencing constant deviant sexual fantasies. 122Dr Ellis observed that if it were considered that Mr Irwin would not have the mental capacity to consent to the administration of such medication, the matter should be referred to the Guardianship Tribunal for substitute consent. Dr Ellis concurred with Dr O'Dea's comparison between the time required to trial anti-libidinal medication if Mr Irwin were in custody rather than in the community. 123Dr Ellis did not recommend further detention and said: He has not benefited from custodial treatment programs, is isolated in gaol in protection wings with little access to rehabilitative activity, and his mental state is more fragile. His risk would be unchanged on release from this environment. 124Dr Ellis considered Mr Irwin's psychiatric disorders to be chronic and likely to persist beyond any period of supervision. Of recent breaches and alleged breaches Dr Ellis said in oral evidence: Again, [if] the allegation of accessing child pornography is true, it is an indication that there is a heightened interest currently in paedophilic fantasy and that is of concern. The engaging in covert sexual activity with another resident of a COSP, which I think is against the general policy of the COSP to have sexual relationships and also against his conditions on the supervision order to report any relationships, it shows impulsivity and impairment in judgment which is, again, of concern. 125In his supplementary report dated 11 April 2014, Dr Ellis said that if Dr Irwin had not yet commenced anti-libidinal medication this should be attended to as a matter of urgency. He summarised his conclusions about the risk posed by Mr Irwin as follows: With close community supervision, including escorted leave from any residential facility the underlying risks could be adequately managed. Therefore a continued detention order is not recommended, unless for a short duration of months in order to establish treatment with anti-libidinal medication and secure an alternate disability-oriented residential facility.

The threshold question 126I am satisfied on the basis of the uncontroverted opinions of Mr Sheehan, Dr O'Dea and Dr Ellis that the State has established to a high degree of probability that Mr Irwin poses an unacceptable risk of committing a serious sex offence if not kept under supervision. Accordingly the question arises whether any order ought be made and, if so, whether an ESO ought be made for the supervision of Mr Irwin in the community or a CDO ought be made in circumstances where I am not satisfied that adequate supervision can be provided by an ESO.

Whether a CDO ought be made and on what terms 127In determining whether to make a CDO or ESO, the Court must consider each of the matters listed in s 9 and s 17(4) of the Act as well as any other matters considered relevant. The matters of principal relevance in the present case are: Mr Irwin's offending history; his conduct while under supervision; his compliance with obligations under Child Protection legislation; the report from Corrective Services NSW as to the extent to which Mr Irwin can be managed in the community; the risk assessment report of Mr Sheehan and the views of the court-appointed experts; whether there is any effective treatment; Mr Irwin's intellectual disability and the prospects of anti-libidinal medication ameliorating the risk. Each of the relevant matters has been addressed above in the narrative of facts. 128I consider that the safety of the community (the primary object of the Act) will be compromised if no order is made under the Act. Although it is 14 years since Mr Irwin has committed a "serious sex offence" within the meaning of s 5(1) of the Act, he has committed offences of a sexual nature and displayed a continuing pattern of highly antisocial, impulsive behaviour. He appears to have a continued appetite for paedophilic sex and displays a degree of sexual pre-occupation. His mental health has been implicated in most of his offending history. He has failed to comply with supervision imposed and has breached at least some of the conditions of his ISO in November 2013 and March 2014. His institutional misconduct and overtly sexual behaviour while in prison and at the COSP facility also indicates both an inability and an unwillingness to comply with rules, particularly relating to sexual conduct and association. 129I also infer that there is a risk that those charged with Mr Irwin's supervision (particularly those such as CJP support workers who do not necessarily have experience with sex offenders) will be beguiled into thinking that his compromised intellect means that he is incapable of deception. However, his conduct in misleading police as to the purpose of his visit to Sydney from Orange in November 2011 and his more recent conduct with Herbalife and the use of his mobile phone and Facebook account indicate the extent to which he is both willing and able to mislead those with the responsibility of enforcing the conditions of his supervision. When allegations of breach are put to him, Mr Irwin is also prepared to concoct self-serving versions with a view to exculpating himself and blaming others. 130Mr Irwin is unable, because of mental illness, poor intellect and the intransigence of his proclivities, to learn to control his impulses by offence-specific treatment. The unchallenged evidence of Drs O'Dea and Ellis is there is no point in requiring him to undertake any such treatment. In these circumstances it was not suggested that it would be appropriate to impose a CDO to require Mr Irwin to undertake such treatment in custody. 131The only purpose of imposing a CDO would be to ensure the safety of the community until Mr Irwin can be treated with anti-libidinal medication with a view to lowering his testosterone levels and therefore reducing his sexual desire and preoccupation. 132Mr Hammond submitted on behalf of the State that unless and until Mr Irwin has been assessed for, has been prescribed with, and has commenced anti-libidinal medication and has demonstrated settled, appropriate behaviour, a CDO is necessary because he cannot be adequately supervised in the community. Mr Hammond relied on the events of November 2013 and March 2014 in support of the proposition that supervision in the community was ineffective to ameliorate the risk. 133Mr Johnston submitted in response that, although there were some actual and alleged breaches during the period of the ISOs, there was no actual harm done because the conditions operated in an effective and timely way to detect conduct that had a potential for harm in order that harm could be prevented. He submitted that although Mr Halacas unwittingly caused Mr Irwin to be in breach, the actual breach was of no moment because Mr Halacas kept Mr Irwin within his line of sight at all times. Mr Johnston contended that the detection of actual and apparent breaches showed that the system of supervision in place actually worked to prevent harm. He submitted that the COSP facility is highly regulated and apt to prevent and detect breaches and that the line-of-sight supervision provided by Mr Halacas afforded sufficient protection to the public, such that further detention was not required to ameliorate the high risk of re-offending. 134Mr Johnston also emphasised the effectiveness of random inspections, the presence of a support person such as Mr Halacas when Mr Irwin left the accommodation, as well as the GPS device that was monitored externally. 135It is a substantial step to order Mr Irwin's continued incarceration beyond the expiry of his term of imprisonment. Although it is said to be crucial for the mitigation of the risk Mr Irwin poses to the public for him to take anti-libidinal medication, the evidence does not reveal that the State has done anything to advance his taking of such medication since it was first raised by Mr Sheehan in a report prepared for the purposes of these proceedings dated 2 September 2013. Yet, despite its inaction, the State submitted that the risk of Mr Irwin re-offending could not be sufficiently mitigated unless this Court made a CDO so that the medication could be trialled before he is released from custody into the highly constrained environment of the COSP facility. 136Had Mr Sheehan's recommendation been implemented in a timely way, Mr Irwin could have been trialled on anti-libidinal medication and assessed before this hearing. If the medication had had the desired effect described by Drs O'Dea and Ellis, the State would presumably not have contended for the making of a CDO against Mr Irwin. 137A CDO ought not be regarded by the State as a period of grace to allow it to attend to what might have been done in the period of incarceration before an offender, such as Mr Irwin, was due to be released. This is not to say that the State's conduct ought preclude the making of a CDO in this, or any other, case. It is the protection of the public that is the primary purpose of the Act. The State is the relevant custodian of the public interest in this respect. 138The further deprivation of liberty entailed by a CDO is, however, an important relevant consideration against making such an order, although it is not referred to in s 17(4) of the Act. Another relevant consideration is that, as is apparent from the unanimous evidence of Drs Ellis and O'Dea, a trial of anti-libidinal medication can proceed much more smoothly and quickly outside prison than inside. The delays that are occasioned by required medical tests, such as a bone density scan, can mean that the time from first assessment and trial until the desired reduction in testosterone levels would be significantly longer if Mr Irwin were to remain in custody. 139When I raised this matter with Mr Hammond, who appeared on behalf of the State, he said: I am instructed that if your Honour was to make a continuing detention order for a shorter period of time, perhaps three to four months, the State gives an undertaking that Justice Health would be approached, in effect, to fast track the anti-libidinal treatment or the referral to a psychiatrist for the purposes of Mr Irwin being assessed and commencing anti-libidinal medication. 140I do not regard the State's undertaking as sufficient to overcome the substantial disparity between the speed within which Mr Irwin could undertake a trial of anti-libidinal medication in the community, as opposed to the delays that would be occasioned were he to remain in custody. Furthermore the undertaking is expressed in such general terms that I cannot assess what difference it will make to the time estimates given by Drs Ellis and O'Dea. 141I am not satisfied that adequate supervision will not be provided by an ESO. I am persuaded that the risk posed by Mr Irwin is ameliorated by the making of an ESO with the conditions proposed in the schedule to the summons. The COSP facility is so highly regulated that a breach, even if it occurs, is likely to be detected. It is highly unlikely that Mr Irwin will have the opportunity to commit a further sex offence while subject to the proposed conditions. I am fortified in this view by the evidence of Mr Abedine as to the conditions in the COSP facility. In these circumstances it is not necessary to make a CDO against Mr Irwin since adequate supervision will be provided by an ESO. 142Mr Irwin will need to reside in secure highly supported accommodation for the safety of the community. Mr Hammond confirmed on the second day of the hearing (some question having been raised on the first) that there is a place for Mr Irwin at the COSP facility which will be available to him when released from custody, either upon a grant of bail, or at the expiry of any sentence that might be imposed on him if he is convicted of any breaches of the ISO, in respect of which charges are currently outstanding. Although I accept that it is unlikely that Mr Irwin could remain in the COSP facility in the long-term, it is likely that he will at least be able to remain there throughout any trial of anti-libidinal medication. If the medication has the effect that Drs O'Dea and Ellis expect it to have, the risk will be ameliorated within a few months and consideration can be given to less restrictive accommodation. 143The conditions in the schedule to the summons are comprehensive and reasonable. I am satisfied, on the basis of the evidence, and in particular the risk management report dated 4 October 2013 prepared by Mr Abedine, that the conditions are appropriate and sufficient to mitigate the relevant risk posed by Mr Irwin.

Orders 144I make the following orders and directions (1)I make an extended supervision order, pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 (the Act) for a period of five years from the date of this order. (2)I direct, pursuant to s 11 of the Act, that, for the period of the extended supervision order, Mr Irwin comply with the conditions set out in the schedule to these reasons. Schedule EXTENDED SUPERVISION ORDER: CONDITIONS APPLICABLE TO SCOTT LEE IRWIN Oversight For the purpose of these conditions, the Departmental Supervising Officer is the corrective services officer authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Attorney General and Justice ("the Department"). Corrective Services NSW is a division of the Department. The COSP is the Community Offender Support Program ("COSP") managed by the Department. The Community Justice Program is a program run by the Department of Ageing, Disability and Home Care a division of Family and Community Services, NSW. Reporting and monitoring obligations 1.For the duration of the supervision order, the defendant must accept the supervision of Corrective Services NSW. 2.The defendant must report personally once a week to the Departmental Supervising Officer or otherwise as directed by that officer. 3.The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 4.The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental Supervising Officer and comply with all instructions given by a corrective services officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. 5.If directed by the Departmental Supervising Officer, the defendant must inform the Departmental Supervising Officer of his movements in advance by providing a schedule. The schedule must be: a.in writing; b.for a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental Supervising Officer; and c.given to the Departmental Supervising Officer at least 3 days in advance of the schedule period. 6.The defendant must notify the Departmental Supervising Officer of any change to the schedule at least 24 hours in advance, unless a shorter period is approved by the Departmental Supervising Officer. 7.Condition 6 does not apply in the case of emergency, including if the defendant requires urgent medical attention, and he is unable to notify the Departmental Supervising Officer. 8.If directed by the Departmental Supervising Officer, the defendant must be accompanied by a corrective services officer or a member of staff from the Community Justice Program, whilst he is away from his accommodation. 9.The defendant must respond accurately to the best of his knowledge and ability to all enquiries by his Departmental Supervising Officer, or any other corrective services officer who may from time to time be allocated to the defendant's case, about his whereabouts and movements generally. Accommodation 10.For the duration of the order the defendant must reside at accommodation approved by the Departmental Supervising Officer. 11.Except with the prior approval of the Departmental Supervising Officer, the defendant must not permit any person to reside either temporarily or a permanent basis, for any period at the defendant's approved accommodation. 12.Except with the prior approval of the Departmental Supervising Officer, the defendant must not stay overnight, or for any other temporary period, at a place other than approved accommodation. 13.The defendant must permit entry and accept visits at his approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 14.If directed by his Departmental Supervising Officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified by the Departmental Supervising Officer) unless his presence at another place during those hours has been approved by his Departmental Supervising Officer. 15.The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate. Restrictions on employment and other activities Employment 16.The defendant must not engage in volunteer work, practical training as part of an educational or vocational course, or paid or unpaid employment (including self employment) other than that which has been approved by the Departmental Supervising Officer. 17.The defendant must notify his Departmental Supervising Officer of: a.the nature of his employment or proposed employment; b.any offer of employment; c.the hours of work each day; d.the name of his employer or proposed employer; and e.the address of the premises where he is or will be employed. 18.Without limiting condition 3 above, if directed to do so by the Departmental Supervising Officer, the defendant must make his employer aware of his offending history and that he is subject to an extended supervision order and the terms of the order. 19.The defendant must agree that, if the Departmental Supervising Officer considers it appropriate to do so, the Departmental Supervising Officer may disclose to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and the terms of the order. Non-associations generally 20.The defendant must not associate with any persons specified by the Departmental Supervising Officer. 21.Without limiting condition 20 above, except with the prior permission of the Departmental Supervising Officer, the defendant: a.must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act (except in the course of living in the COSP Centre or other Departmental facility or attending the community-based maintenance program conducted by the Forensic Psychology Services section of Corrective Services NSW); b.must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victims of the sexual offences for which the defendant was sentenced on:24 June 1997; 1 December 2000;22 December 2000;23 February 2001; 23 January 2012. 22.Should the defendant enter into a relationship with another person("the other person"), involving sexual or intimate contact, he must notify the Departmental Supervising Officer at the earliest opportunity. The Departmental Supervising Officer may disclose the defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person or any child of or related to that person, or who from time to time be in that person's care, custody or control. 23.Should the defendant propose to befriend another person whom he knows to be the parent or guardian (or otherwise a person with care and control eg teacher) of a child under the age of 18 years or whom he knows to be sibling of child under that age, he must notify the Departmental Supervising Officer as soon as reasonably possible. The Departmental Supervising Officer may disclose the defendant's offence history to the other person if the person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the children under the age of 18 years being related to that person, or who from time to time be in that person's care, custody or control. 24.The defendant must obtain written permission and approval in advance from his Departmental Supervising Officer prior to joining or affiliating with any club or organisation. 25.The defendant must not frequent or visit any place or district specified by the Departmental Supervising Officer. Non-association with children 26.The defendant must not: a.approach, associate, initiate, encourage, request or maintain any contact with a child under the age of 18 years; b.use any other person to approach, associate, initiate, encourage, request or maintain any contact with any child under the age of 18 years; c.attend any schools, pre-schools, day care centres, amusement parlours, amusement parks, theme parks, camping groups, caravan parks, children's playgrounds, parks and playing fields; or d.attend any such further place, where children or a child may from time to time be present, as the Departmental Supervising Officer may direct, unless the defendant: e.has prior written permission of the Departmental Supervising Officer; and f.is in the presence of an appropriate adult, being a person previously approved in writing by the Departmental Supervising Officer for the purpose of this condition. Alcohol and drugs 27.The defendant must not, without prior approval of the Departmental Supervising Officer: a.possess or consume any alcohol (including any alcohol-based products such as methylated spirits); b.possess or consume any illicit drugs; c.possess any prescription medication other than prescription medication specifically prescribed to the defendant by a medical practitioner in the quantities prescribed, or abuse prescription medication or other forms of medication. 28.The defendant must submit to drug and alcohol testing as directed by the Departmental Supervising Officer or any other officer, who from time to time is allocated to his supervision. 29.The defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental Supervising Officer. 30.The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental Supervising Officer. Access to the Internet and pornography 31.(a) The defendant must not possess or view pornography (including child pornography) and must not access, or attempt to access, pornography by any means. (b) Without limiting sub-paragraph (a), the defendant must not access the internet to view or to download pornography. 32.The defendant must provide his Departmental Supervising Officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 33.The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to the internet by him, and without limitation the Departmental Supervising Officer may direct the defendant to use on any computer or other device (including mobile phone or tablet computer) a parental lock or other device or software that may restrict access to or permit access only to certain web sites. 34.If and as directed by the Departmental Supervising Officer, the defendant must: a.permit the Departmental Supervising Officer, and any person ("the technician") employed or engaged by or on behalf of the Department, to access and inspect any computer or other device (including mobile phone or tablet computer) owned by the defendant, including the temporary removal of the computer or other device from his place of residence or his person for the purpose of inspection; b.take all available steps to permit the Departmental Supervising Officer and the technician to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant; c.provide the Departmental Supervising Officer and the technician with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) owned or used by the defendant, including providing them with any required passwords; d.permit the Departmental Supervising Officer and the technician to download, or make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending. 35.The defendant: (a)must not access, join and / or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services, without approval from the Departmental Supervising Officer; and (b)in circumstances where the defendant accesses, joins and / or connects to any internet based social networking service, the defendant must inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service to which he joins and / or connects, including web-based , e-mail, instant messaging services and on-line community services. Access to classified material 36.The defendant must not purchase, possess, access, obtain, view, participate or listen to material classified as Refused Content, X18+, R18+, Restricted Category 1 and Restricted Category 2, or any other material as directed by the Departmental Supervising Officer. Vehicles 37.The defendant must notify his Departmental Supervising Officer of the make, model, colour and registration number of any vehicle: a.owned by him; or b.driven or to be driven by him, whether hired or otherwise obtained for his use. Recording images 38.The defendant must not use or attempt to use equipment for the purposes of recording still or moving photographic images of persons reasonably known by the defendant to be the age of 18 years or under. Search and Seizure 39.If the Departmental Supervising Officer reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a.for the safety and welfare of residents or staff at the defendant's approved accommodation; b.to monitor the defendant's compliance with the extended supervision order; or c.because the Departmental Supervising Officer reasonably suspects the defendant's behaviour or conduct is associated with an increased risk of the defendant committing a serious sex offence; then the Departmental Supervising Officer may direct, and the defendant must submit to, a: d.search and inspection of any part of, or any thing in, the defendant's approved accommodation; e.search and inspection of any part of, or any thing in, any vehicle owned or hired by the defendant; and/or f.search and examination of his person in his approved accommodation. 40.For the purposes of paragraph 39.f: a.a search and examination of the defendant means either a garment search or a pat-down search, or both; and b.to the extent practicable a pat-down search will be conducted by a Departmental Supervising Officer of the same sex as the defendant, or by a corrective services officer of the same sex as the defendant under the direction of the Departmental Supervising Officer. NOTE: "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. 41.During a search carried out pursuant to paragraph 39, the defendant must allow the Departmental Supervising Officer to seize any thing found in the defendant's approved accommodation, any vehicle owned or hired by the defendant, or on the defendant's person, whether in the defendant's possession or not, which the Departmental Supervising Officer reasonably suspects will compromise: a.the safety of residents or of staff at the defendant's approved accommodation; or b.the welfare or safety of any member of the public; or c.the defendant's compliance with the extended supervision order; or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence. Personal details and appearance 42.The defendant must not change his name from Scott Lee Irwin or use any name other than Scott Lee Irwin without the prior approval of the Departmental Supervising Officer. 43.The defendant must not, without the approval of the Departmental Supervising Officer, change his appearance to the extent that he cannot be easily recognised. 44.If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental Supervising Officer. 45.The defendant must provide his Departmental Supervising Officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed). Medical intervention treatment obligations 46.The defendant must undergo a comprehensive assessment, as recommended by a treating or consulting clinician, to determine what is required for treatment in respect of the defendant's potential for sex offending. 47.The defendant must accept psychological and psychiatric treatment as may be provided or recommended by a treating clinician. 48.The defendant must take any anti-psychotic, anti-libidinal (including SSRI's) or other prescribed medication if and as prescribed by a medical practitioner. The note at paragraph 53 below applies. 49.The defendant must not take any medication or substance which, to the defendant's knowledge, may affect the effectiveness of any medication prescribed under condition 48 being taken by the defendant, unless the defendant's treating medical practitioner prescribes such medication. 50.If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, he is to notify his Departmental Supervising Officer within 24 hours of ceasing to take the medication. 51.The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by a treating clinician. 52.If directed by his Departmental Supervising Officer, the defendant must accept and participate in maintenance or other rehabilitation programs as may be offered to him, including the maintenance program provided by the Forensic Psychology Services. 53.It is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in conditions 48 and 49) do not include participation in treatment, or requiring the defendant to take any medication that may be prescribed, without his informed consent. Disclosure of information 54.The defendant must disclose to the Departmental Supervising Officer the identity of any treating or consulting clinician that he consults, as soon as reasonably practicable. 55.The defendant must consent to his Departmental Supervising Officer and other officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment. 56.(a) The defendant must agree to the disclosure of all information between: (i) his Departmental Supervising Officer; and / or (ii) other officers from the Department (including from Corrective Services NSW); and / or (iii) officers employed as part of the Community Justice Program; and / or (iv) any treating or consulting clinicians, (b) The disclosure by any treating or consulting clinician is limited to circumstances where that treating or consulting clinician believes the defendant: (i) is at risk of committing a further serious sex offence; or (ii) is demonstrating behaviours that may lead to the commission of a further serious sex offence; or (iii) is at risk of endangering the safety and welfare of any other person; or (iv) is with the consent of the defendant. 57.The defendant must provide his Departmental supervising officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 58.The defendant must provide his Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection. 59.The defendant must provide his Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet or other electronic communication service. FURTHER THE COURT NOTES & RECOMMENDS Review of grievance 60.In the event the defendant is aggrieved by any decision of the Departmental Supervising Officer, he may set out his grievance, in writing, to the Commissioner of Corrective Services who is to consider his grievance and make appropriate directions as to supervision, if required. The Departmental Supervising Officer will ensure that the defendant is provided with appropriate assistance to allow the defendant to adequately set out his grievance. Review of order 61.At the expiration of 6 months from the date of this order (and at the end of each six monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear the electronic monitoring equipment will be reviewed by the Departmental Supervising Officer and, for this purpose, the Departmental Supervising Officer may consult with (either jointly or separately) any treating or consulting clinician and must consult with the defendant. 62.The conditions of the extended supervision order to which the Defendant is subject shall be reviewed by the Commissioner: a.on each occasion a review is conducted under condition 61; and b.at the expiry of 12 months from the date on which a decision is made (if any) that the defendant is not required to wear electronic monitoring equipment and at the end of each 12 month period thereafter. 63.The purpose of a review under condition 61 is for the Commissioner to consider any possible adjustments of the conditions of the extended supervision order and/or consideration by the State as to whether an application should be made to the Court to vary the conditions if considered appropriate. For the purposes of this review, the Commissioner may consult with (either jointly or separately) any treating or consulting clinician and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer. 64.Following a review under condition 61 or condition 62, the reviewer must notify the defendant in writing of the result of the review.

Amendments 11 March 2016 - Schedule to orders - Interim Supervision order corrected to Extended Supervision Order. 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: 11 March 2016

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Judgment (21 paragraphs)

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Legislation Cited (3)

Cases Cited (5)