State of New South Wales v John Owen Conway

Supreme Court of NSW|2011-08-26|Before: Davies J, Simpson J

Judgment 1On 19 September 2007 the Defendant was convicted under s 66A Crimes Act 1900 (NSW) for the sexual assault of his niece then aged 5 years. He was sentenced to a period of 4 years' imprisonment and was released to parole on 27 April 2011. 2The Plaintiff applied on 3 May 2011 for orders under the Crimes (Serious Sex Offenders) Act 2006 (the Act) with a view, ultimately, to having an extended supervision order made for a period of 3 years. The matter came before Simpson J on 14 June 2011. On 17 June 2011 her Honour made orders for the examination of the Defendant by 2 psychiatrists, and for the Defendant to be subject to an interim supervision order for a period of 28 days from 18 June subject to specified conditions. The interim orders have twice been extended. At the conclusion of the hearing I extended the order, by consent, to 17 September 2011, the last date available under s 8(3) of the Act.

The offence 3The Defendant was born on 10 November 1986. The offence was committed on 5 March 2007 when the Defendant was 20 years of age. The victim was the Defendant's sister's child. 4The facts are summarised in the Remarks of the Sentencing Judge as follows: ... [T]he complainant was living at the time in a granny flat at the back of her mother's house in Foster. The complainant had been watching television with her mother. The accused's grandmother heard the complainant screaming. The complainant's grandmother walked towards the end of the shed where the scream was coming from and saw that the complainant was hysterica!, sobbing and screaming. The complainant's grandmother spent three or four minutes trying to calm the complainant down. At the same time the complainant's grandmother saw the prisoner walking out through the gate and down the driveway. She said to the prisoner, "What's going on?" to which he replied, "I don't know" and kept walking towards his car. The prisoner then started his car and drove off. The complainant's grandmother walked over to the complainant and picked her up and said to her, "What happened?" The complainant was still sobbing and through her crying she said, "Uncle John touched my private part." The complainant's grandmother said, "Where?" The complainant pointed to her vaginal area and said, 'There." The complainant's grandmother then said, "What are you doing around the side of the house?" The complainant replied, "Uncle John took me. I didn't want to go but he took me." The complainant's grandmother then called out to the complainant's mother, "[X], come here, come here now." Complaint was made then to her mother. Contact was then made with the Taree Police Station. The complainant was still upset and crying. There was a medical examination and the results were as follows: The posterior fourchette revealed a small (less than 2 millimetre) area of skin loss on the upper edge in the midline position. The hymen was intact. The L wall of the vestibule revealed a small crescent shaped laceration, approximately 3 millimetres in length at the 5 o'clock position. There was no evidence of granulation. Above the laceration there was an area of redness, approximately 5 millimetres in length by 2 millimetres in width. This appeared to be due to a small area of haemorrhage. The doctor formed the opinion that the injuries were consistent with the history as obtained by her of digital vaginal penetration. I go back to an earlier part of the facts where it is says the complainant's mother said, "Are you okay, darling?" The complainant replied, "It hurts." The complainant's mother said, "What hurts?" The complainant replied, "My private part." So, this is a case where there was pain experienced by the complainant, she was extremely upset by what had happened and in addition there was the injury, if I could describe it in that way, as I have just stated. The prisoner said to police that he placed his left index finger inside his niece's vagina for two seconds and that he knew it was the wrong thing to do. He said that at the time of committing the offence he was not thinking and his mind was racing. He admitted that he sometimes gets a sexual urge caused by his thoughts. 5With all the reservations that I shall discuss presently in accepting any matters reported by the Defendant, the Defendant's account of the offence provided to Emma Wallace, a forensic psychologist at Goulburn Correctional Centre is set out below. I reproduce it because it is of significance in relation to the likelihood, and the unacceptable risk, of the commission of further offences by the Defendant. Ms Wallace reports (on 21 October 2009) as follows: 23. When I asked Mr. Conway to describe his current offence to me in detail, he replied "its been a while". He said that his niece (the victim) was living with his mother in Taree, and that he used to go there every day to visit his niece. He said that he bought her a necklace with a cross on it and told her that she was a good girl. A week later he said that he visited again and told her "I'll give you $150 if I can kiss your wee wee". She said no and went outside crying. He said that he was "cranky" because she said no and told her to show him her vagina. He said that he picked her up and held his hand over her mouth because she was screaming. He noted that she couldn't breath and that this scared him, but he continued to hold her and then he put his hand down her pants and "put [his]... finger in". He then dropped her and "ran off". 24. Mr. Conway said that when the Police turned up at his home he "knew straight away what they were there for". He then stated "at the time I knew it was wrong, but at the time I thought it was still okay to do that". When questioned whether he knew it was against the law, he said "yeah, I chose to do it..., because I thought that she would enjoy it, I don't know". He stated "but even if she did say yes, I'd think she'd be scared into saying yes because she thought I was going to hit her". 25. He said that he did not know why he committed the crime but that he had thoughts about doing it in the days leading up to the event. He said he does not know why he chose his niece. When questioned whether he was attracted to her, he gave a delayed response "no, not so much attracted to her... I wasn't attracted to her at all". He said that his niece would have felt "scared, upset [and] cranky". His response to whether he was affected by what he did was "of course she would have been, my whole family was" stating that she would have been "mentally, physically, emotionally upset, tormented and scared now". Then he mentioned that he believes "she is still ok" today. He stated "I could just cuddle her and cry and tell her how sorry I am", and added "I believe that God can heal her. I pray for her and my whole family". Furthermore, as he was providing an account of what happened, he said "poor little girl". However, he did not appear empathetically remorseful towards the victim; his feelings appeared to be more superficial compared to other times when he has spoken about himself and his own worries. It appeared that Mr Conway made such comments because he felt that this is what he should be saying rather than internalising these feelings of remorse. 26. In relation towards how he feels about committing the crime, Mr Conway stated "terrible.... I hate the crime I did. I'm not proud." He further stated "I'm glad she (his niece) told my mum... it gives me a chance to get help." He provided a delayed response to whether he considered his sentence to be fair, he stated "yeah". The delayed response appeared to be him contemplating the best way to respond. Yet he stated that he does not believe that he should have been sentenced to gaol; he stated "I just needed help full stop... but I was willing to take responsibility for what I have done."

The Defendant's background 6The Defendant comes from an extremely dysfunctional family. He is the youngest of three children. His mother and father separated when he was 6 years old and divorced when he was 10 years old. At that time his mother commenced living with her future husband whom she married when the Defendant was 18 years old. The Defendant lived with his mother, step-father and nephew until approximately 2006 when he commenced living by himself in Taree. 7There is evidence that all 3 of the children were sexually assaulted by their father Garry Conway, although there is some doubt about whether the present Defendant was so assaulted. The Defendant's older sister has a son, the product of a rape by their father Garry who sexually assaulted her repeatedly through her childhood. He was convicted and sentenced in respect of those offences. Indeed, as recently as 11 August 2011 Hidden J made an extended supervision order in relation to Garry Conway ( State of New South Wales v Garry Allan Conway [2011] NSWSC 925). 8At times in the past the Defendant has been diagnosed with an obsessive-compulsive disorder (diagnosed when he was 7) and a blood disease called Acute Intermittent Porphyria (diagnosed when he was 16). This is an inborn metabolic disturbance of the blood which results in some psychiatric problems. The Defendant has also been diagnosed with depression. His intelligence quotient was assessed in August 2008 and it was said that he was "functioning in the 1.0 percentile in that 99% of the population have an IQ score higher than the one Mr Conway attained during an assessment". This places his overall function in the mild range of intellectual disability. However, the term "mild" indicates a clinically significant impairment in functioning and not a mild condition (report of Dr Ellis). The Defendant spent most of his schooling in IM (mild intellectual disability) classes. 9Although he has only been convicted of the one offence referred to, there is other evidence largely, but not only, from admissions made by him, of a number of other offences committed against children. 10The report from Theresa Britton, a psychologist with the Forensic Psychology Service refers to some of these other offences: (i) In 1997 at the age of 10 the Defendant came to police attention when it was alleged he had sexually assaulted his 3 year old niece whilst bathing her. The offence was investigated but he was neither arrested nor charged nor convicted; (ii) When he was 13 he apparently sexually assaulted another niece aged 2 years by putting his fingers into her vagina. The matter was investigated by the police but the allegations did not result in arrest, charge or conviction; (iii) In November 2006 at the age of 19-20, the Defendant allegedly incited a 10-year-old girl to commit an act of indecency. He approached her when she was standing on the porch of her house. This matter was apparently not reported to the police until after the Defendant had been charged with the index offence. When it was reported, it was investigated and the Defendant was charged with one count of incite victim under 10 years to commit indecent act. The matter ultimately did not proceed to Court because the victim did not want to give evidence; All of these matters appear on the COPS record concerning the Defendant and have been verified. 11Another Goulburn Correctional Centre psychologist, Viviana Harjai reported that the Defendant admitted to the following: (iv) When aged 17 he attempted to gain the trust of a young girl at a beach, in order to have sex with her. He was asked what he was doing by the police, who took the child back to her parents; (v) He sexually abused his six year old nephew. The nephew informed Mr Conway's mother, who threatened to go to the police and demanded that he stop the behaviour; (vi) He sexually abused his nephew again. His mother found out about this and again threatened to go to the police; (vii) When aged 18 he had sexual intercourse with a girl aged 8 years old. Other reports suggest that there was no intercourse but rather touching and rubbing himself against the victim. 12Additionally, there is a statement from another witness, VH1, who was a friend of the Defendant's from about 2005 to 2007. He also has a learning disability. In his statement made to the police VH1 refers to occasions where the Defendant would ask him to go to find young girls for the Defendant so that the Defendant could have sex with them. He referred to an occasion where VH1 was babysitting 2 young children aged 2 and 4 years. The Defendant asked VH1 to pull down the pants of one of the girls so that he could commit a sexual act upon her. VH1 refused and left the premises with the two children. 13On another occasion he asked VH1 to go into the Little Flippers Day Care Centre at Taree to sign out a child. VH1 made reference to occasions where the Defendant would suggest that they drove in the Defendant's car to places like Taree West Primary School, Taree High School and McDonalds to try to find young girls. These various incidents reported by VH1 occurred at a time when the Defendant was on bail for the offence in respect of which he was convicted. 14There is sufficient material in the array of reports to suggest that things said by the Defendant cannot necessarily be taken at face value. Whether by being deliberately untruthful in the information he supplied or because of a faulty memory for events, perhaps caused or exacerbated by his intellectual disability, a number of matters reported by the Defendant have either later been contradicted by him or shown to be untrue. For example, he has told some of the psychiatrists and psychologists that he has never used illicit drugs whereas he has told others that he experimented with marijuana. He initially denied the charged offence but then later admitted it. He told Ms Wallace that he had never smoked cigarettes but later said that he smoked when he was in custody. He told Dr Ellis that he started smoking when he was 14 and stopped at the end of 2010. He gave inconsistent information to Dr Ellis and Dr Roberts about why he saw a psychiatrist when aged 12. 15In her report of 7 June 2011, Celia Langton, a psychologist employed by the Department of Corrective Services and who was the co-facilitator of the Self Regulation Program at Long Bay Correctional Complex in which Mr Conway participated, said this: 22. Another important issue in Mr Conway's treatment progress was his reluctance to accept and express his own opinions. Mr Conway was often inconsistent in reporting past events (for example, whether or not he was abused as a child) and could rarely express current thoughts or emotions. This meant that information was not always forthcoming from Mr Conway and was often inconsistent. This has made it difficult for facilitators to truly assess the extent of Mr Conway's abuse history, his emotional states, his opinions and his plans. 16I mention these matters because admissions made by the Defendant of sexual acts against other people may not necessarily be grounded in truth. However, there is sufficient external evidence to show that he has in fact committed sexual acts on a number of children over a number of years up to the time of his incarceration. Although he has only been convicted of the one offence it was not an isolated occurrence. The evidence does not disclose why it is that he was not charged with a number of the other offences particularly since some of them were committed when he was 17 and 18 years. I shall refer to the significance of these matters later in the judgment. 17Another reason for mentioning these inconsistencies concerns statements made at various times by the Defendant, but certainly earlier than his incarceration for the index offence, that he realised that what he did was a very bad thing and he was sorry for the victim. I shall discuss this matter and also his mother's approach based upon these statements, later in the judgment.

The Legislation 18Section 5(1) of the Act defines serious sex offence as including: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, ... 19At the time of the offence s 66A Crimes Act (contained in Div 10 of Pt 3) provided: Any person who has sexual intercourse with another person who is under the age of 10 years shall be liable to imprisonment for 25 years. 20Section 9 of the Act provides: 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) An extended supervision order may be made if and only if 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. (2A) 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. (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (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 sex 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 sex 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, (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, (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) Ac t 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 in future commit offences of a sexual nature. 21Section 10 enables an extended supervision order to be made for up to 5 years although sub-s (3) enables a second or subsequent order against the same offender. 22Section 11 provides: 11 Conditions that may be imposed on supervision order An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name.

Legal principles 23In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal said this of the expression "a high degree of probability" found (inter alia) in s 9(2) of the Act: [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. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely" as explained in TSL . 24In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276 I discussed the changes made to the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010. Those changes introduced the consideration of "unacceptable risk". My conclusion at [90] was this: Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk. 25That approach was informed by 2 decisions in the Court of Appeal of Western Australia in Director of Public Prosecutions (WA) v Williams (2007) 176 A Crim R 111 at [63] and Director of Public Prosecutions (WA) v GTR (2008) 198 A Crim R 149 at [27], together with the decision of RA Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [13] - [20]. 26That approach has been followed by Hoeben J in State of NSW v Bastian [2011] NSWSC 641 at [70]-[73] and in State of New South Wales v Scerri [2011] NSWSC 683 at [12]. 27What is less certain, however, is how the other sexual acts committed by the Defendant can be used in determining the present application. Section 9(3)(h) requires the Court to have regard to: 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, 28The issue particularly arises (by reason of the State's submission) whether the other acts detailed are included in the expression "criminal history" in para (h). As noted, when discussing those matters, the Defendant was (with one exception) never charged let alone convicted of those matters. 29The matter was initially raised when an interim order was sought before Simpson J in State of New South Wales v Conway [2011] NSWSC 588. Simpson J said: [21] On behalf of the defendant it was argued that, in considering the matters itemised in s 9(3) as relevant to the determination whether to make an order ought be made or not, the consideration specified in s 9(3)(h) (the offender's criminal history) ought not to include any offences other than those that resulted in conviction or finding of guilt. I do not accept this construction. If it were correct, the words "criminal history", which are the principal subject of the sub-paragraph, would add nothing to that which appears in parentheses; and nor would the words "and any pattern of offending behaviour" that follow the parentheses. [22] In my opinion, it is appropriate to take into account those instances of sexual misconduct to which the defendant has admitted. Having regard, particularly, to the defendant's intellectual disability, it was submitted that an issue arises whether those instances could properly be labelled part of his "criminal history". This was because it could not be assumed that the necessary mens rea accompanied the actions said to constitute the offences. Some of the instances appear to have occurred before the defendant acquired the age of criminal capacity (10 years), and others during the period of doli incapax , in which it is necessary for the prosecution to establish a capacity in the alleged offender to understand the nature of the conduct in question. [23] I accept that a question arises, and may well arise on a final hearing, concerning the extent to which some of the conduct referred to may be taken into account. However, as was conceded on behalf of the defendant, even if it cannot be shown that the defendant could have been convicted of offences in respect of those episodes of misconduct, and that they therefore may not be taken into account as "criminal history", that he engaged in the conduct is clearly relevant to sub-para (i), and, I would add, to sub-para (a). In my opinion, the whole of the conduct that is attributed to the defendant is relevant to the present consideration. (emphasis in original) 30Some support for this approach can be found in Weininger v R (2003) 212 CLR 629 where the High Court was considering whether uncharged criminal acts could be relied upon in an assessment of whether an offender was a person of prior good character at the time of sentence. The accused had no previous convictions but a Statement of Facts was tendered by the prosecution without objection. The Statement recorded that the accused had told an informant of the Australian Federal Police that he was involved in a continuing cocaine importation syndicate. The Sentencing Judge said that although he had no prior convictions, given the evidence of the participation in the cocaine importation, he could not be treated as a first offender with the attendant leniency that that status usually attracted. 31The joint judgment said: [29] Taken in isolation the reference to "first offender" may have been unfortunate. Divorced from its context it appears to suggest that the primary judge was treating the appellant as a person guilty of crimes with which he had not been charged. But set in its context it is evident that the primary judge was doing no more than expressing a conclusion that the absence of prior convictions did not, as ordinarily would be the case, demonstrate absence of prior criminal behaviour. That is, the primary judge concluded from the evidence before her, that what was known of the character and antecedents of the appellant did not show that these offences were the first criminal conduct in which he had engaged. The fact that the primary judge was not persuaded that the appellant was probably a person who had not previously engaged in drug importation or money laundering reveals no error. Her Honour treated what was known of the appellant's character and antecedents as neither working in his favour nor against him. ... [32] Secondly, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the primary judge had not sentenced the appellant for crimes with which he was not charged. Of course it would have been wrong to do so. A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration. 32In State of NSW v Thomas [2010] NSWSC 677 Buddin J was also considering an application for an extended supervision order under the Act. He first discussed the Defendant's criminal record with particular emphasis on sexual offences that had been committed by him. He then went on to say this: [39] The defendant has been charged with a number of other sexual offences which have not resulted in a conviction. In April 1977 he was charged with the rape of a woman in Western Australia but was acquitted. On 17 August 1993 the defendant was charged with an aggravated indecent assault upon a woman in Port Macquarie. He was also found not guilty of this charge. On 17 November 2005 the defendant was charged with two counts of raping an 11 year old girl in Queensland. In a letter that he wrote to the NSW Parole Authority, dated 15 September 2008, the defendant said that the charges had been withdrawn and that the case had been dismissed. The defendant gave a similar account to Dr Lewin. There is no other information available in respect of these charges. It is common ground that the matters which have not resulted in a conviction are relevant only to the risk assessment issues raised by the Static 99 instrument to which reference will be made in due course . (emphasis added) In the light of what was said to be the common ground between the parties, the suggestion that these alleged offences were only relevant to the risk assessment says little about whether they fell within s 9(3)(h) of the Act. 33Ultimately, the matter is one of construction of the words "the offender's criminal history". The words in parentheses make clear that "criminal history" is not limited to convictions, at least because there can be findings of guilt and findings that an offence is proved without a conviction being recorded. It may but will not necessarily include Form 1 offences. 34Little assistance is to be obtained from the last clause of the paragraph ("and any pattern of offending behaviour disclosed by that history") because the words "that history" must be a reference to "criminal history", and the clause is directing attention to patterns of offending behaviour that can be derived from that history rather than patterns of offending behaviour at large. 35I accept that the word "including" might be thought to suggest a non-exhaustive listing by what is contained within the parentheses but this is not necessarily so. In Dilworth v Commissioner of Stamps [1899] AC 99 Lord Watson speaking for the Judicial Committee of the Privy Council said (at 105): The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute .... But the word "include" is susceptible of another construction, which may become imperative if the context of the Act is sufficient to show that it was not merely imposed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent "mean and include", and in that case it may afford an exhaustive explanation that the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. 36That passage was cited and adopted by the Full Court of the Supreme Court of New South Wales in Batchelor & Co Pty Ltd v Websdale (1963) 63 SR (NSW) 49 at 52. The approach of the Full Court was approved in YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 399, 401, 402, 403-404. The matter is ultimately one of proper interpretation. One approach suggested in YZ Finance was to see if the matters following "includes" add anything to the word that precedes it and which might be thought to govern it. If it does not, the conclusion may well be that "includes" is equivalent to "means and includes". In the present case the words in parentheses do not add anything to the words "criminal history". 37In my opinion, the words "criminal history" do not include matters that have not resulted in a determination by a Court of at least a finding of guilt. If the Legislature had intended that matters not so determined were to be included it is likely it would have used a different word from "criminal", perhaps the word "offending". If it was thought to include matters charged but where no finding of guilt was made nor conviction recorded, one would have expected it to say so. A fortiori, where a person was not even charged with a crime, it would be expected that such a matter would have been referred to explicitly, probably inside the parentheses. Except in the most colloquial use of the term "criminal", the word is ordinarily associated with a determination by a Court that a particular behaviour has been found to be a crime or criminal. 38None of this is inconsistent with what was said in Weininger which was concerned with what might be taken into account in sentencing a person for a charged offence. That is highlighted by the fact that a sentencing court takes into account more than offences found to be proved or in respect of which there has been a conviction. The sentencing court looks also to the character and antecedents of the offender to the extent that they are relevant and known to the sentencing court, as the joint judgment makes clear. Form 1 offences are an obvious example, although whether they would then form part of the "criminal history" for the purposes of s 9(3)(h) remains part of the present enquiry. 39In one sense this is an arid enquiry because the other offending behaviour admitted by the Defendant and found to be supported by external evidence (for the reasons I have given) would be required to be considered under s 9(3)(a) and (i) (as Simpson J suggested) because they all go to the likelihood of the offender in future committing offences of a sexual nature.

The psychiatric evidence 40The Defendant was examined by Dr Samson Roberts on 17 June 2011 and by Dr Andrew Ellis on 1 July 2011. From those reports it is apparent that there were only 3 substantive differences between the psychiatrists. The first was that Dr Ellis diagnosed the Defendant as having obsessive-compulsive disorder whereas Dr Roberts did not. Secondly, Dr Ellis was more optimistic (and he expanded on this in the session of joint evidence with Dr Roberts) about using Serotonin Specific Re-uptake Inhibitor (SSRI) antidepressant drugs to control his libido. Thirdly, Dr Roberts assessed him as a high risk of further offending whereas Dr Ellis's view was that he was a moderate risk. The first of them is not a matter of any great significance in terms of the issues at hand. I shall return to the second of those matters later in this judgment. The third matter is the most significant. 41Both psychiatrists accepted that the Defendant had a history of depressive illness requiring antidepressant medication. They accepted that he had mental retardation and that he had Acute Intermittent Porphyria. Although that condition is not a psychiatric condition in itself it is associated with intermittent manifestations of symptoms of a psychiatric nature including disturbances of mood and behaviour. 42Both psychiatrists found that he attracted a diagnosis of paedophilia. 43Both psychiatrists assessed the Defendant using Static-99. Static 99 is an instrument that was developed using a purely actuarial approach to recidivism. It was initially developed in 1999 based on follow up studies from Canada and the United Kingdom. Subsequently there have been 2 additional measures of Static 99 being Static 2002 and more recently Static 99-R. The original sample used to form recidivism rates with Static 99 was collected at a time when general crime rates, including sexual offending rates, were higher than at present. The Static 99-R sample has been updated with new populations that may better reflect current re-offending patterns. Data regarding confidence intervals for this new sample has yet to be published. Fifteen year recidivism data is not available. 44The Defendant's results on that assessment placed him in the moderate to high category for sexual recidivism. That categorisation was consistent with his assessment by psychologists that assessed him at an earlier time. 45Dr Roberts, however, was of the view that the Defendant's overall risk was high. He said: Having regard for his intellectual deficits and the absence of an overt change in his behaviour following extensive psychological therapy, risk factors which may represent the target of therapeutic intervention in other offenders are, in Mr Conway's case, not considered amenable to change. In addition to the factors described above, Mr Conway's metabolic disorder and his propensity to depressive illness have the potential to exacerbate a tendency to disinhibited impulsive conduct to which he is prone by virtue of his intellectual deficits. Based on the above factors, it is my opinion that Mr Conway continues to pose an "unacceptable risk" of omitting a further serious sex offence. 46Dr Ellis, having assessed him using Static 99, went on to discuss clinical considerations in regard to his risk of re-offending. He said intellectual disability was not an independent risk factor, but alters the presentation of the other factors present. He said deviant sexual arousal was consistently identified as the most prominent risk factor for sexual reoffence. The Defendant, he said, presents with a pattern of paraphilic sexual arousal, paedophilia and that arousal was directly related to the victim of his offence. 47Dr Ellis said that there were clinical considerations mitigating against risk such as the lack of personality pathology and lack of substance abuse problems. He said that the Defendant did not have an antisocial personality disorder and noted that he had completed a modified group sex offender treatment program. Dr Ellis went on to say: A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr. Conway, given the particular pattern of sexual arousal, the most likely type of victim would be a child. The offence would likely be one of opportunity and impulse. Children in close proximity to him would be at greater risk. In general, sexual offences perpetrated on children at a vulnerable developmental stage are associated with greater psychological consequences. In considering actuarial and clinical parameters in the absence of any treatment or supervision, Mr. Conway would fall into a group of person with a risk offending that is moderate, and equivalent to a theoretical average offender. Treatment and supervision would likely reduce this risk. 48Both psychiatrists were of the opinion that anti-libidinal medication was indicated. They identified that Porphyria was a problem in that regard because an injectable form of anti-libidinal medication (Medroxyprogesterone known as Depo-Provera) had the potential to induce an attack in Porphyria. To the extent that anti-libidinal drugs should be used Cyproterone would be the appropriate drug but it would require close monitoring in the early phases in consultation with an Endocrinologist or a specialist in Porphyria to ensure that an attack was not induced by its use. 49Both psychiatrists were also of the opinion that the Defendant's comprehension ability (which they said had been documented as analogous to that of a 10 year old child) would not be such that he could reasonably be expected to comprehend the complexities associated with consideration of anti-libidinal medication. It was thought that it might be necessary to obtain an order from the Guardianship Tribunal with regard to the administration of such medication. 50Because of the difficulties of some anti-libidinal medication (and maybe all of it) on his Porphyria, and because of his limited intellectual capacity in understanding all of the matters associated with this form of medication, Dr Ellis favoured an approach using SSRI antidepressant medication. He said it had been used to decrease deviant sexual arousal, fantasy and behaviour. He said that there is evidence in controlled settings that SSRIs achieve this, but there is less evidence that they reduce recidivism as they have been used in this fashion clinically for less time and there are fewer studies. He said that one other benefit is that they are an effective treatment for obsessive-compulsive disorder. Because the Defendant has used this type of medication before and because these medications have limited and readily understandable side effects, he is more likely to be able to understand the use of them. 51Dr Roberts had a number of objections to this approach. The first of these was that the use of SSRIs cannot be monitored by blood tests in the way that the use of anti-libidinal drugs can be. Dr Ellis accepts that this is so and says that only clinical monitoring is possible. I note that in the present case clinical monitoring may be less than appropriate given the unreliability of the Defendant's statements about various things. 52Secondly, Dr Roberts said that the use of antidepressant type medication as anti-libidinals relied on a common side effect of sexual dysfunction. The sexual dysfunction can manifest in 3 ways: it can manifest as a diminished libido; it can manifest as a diminished ability to become aroused; or it can manifest as an inability to orgasm. It may manifest as all of these. He pointed to the fact that at the time of a number of the sexual acts committed by the Defendant he was taking what Dr Roberts described as a drug which is "one of the worst offenders when it comes to sexual dysfunction" - Venlafaxine. The Defendant apparently didn't experience any sexual dysfunction when on this drug. Dr Roberts accepted that that would not mean another drug of this class might not have that effect but whether it would could only be tested by its use. 53With regard to the length of any supervision order Dr Roberts was of the view (Dr Ellis did not say anything about this) that the order should be of maximal duration.

The Defendant's submissions 54The Defendant opposes the application for an extended supervision order. He submits that it should not be made for the following reasons: (i) He has completed the sentence for the index offence; (ii) He has not re-offended since his release on parole; (iii) He has complied with the conditions of his parole and interim supervision order; (iv) He is personally committed not to re-offend; (v) He understands that his offending conduct was 'wrong' and 'hurts people' (vi) He understands that if he re-offends he will return to custody and he does not want this to occur; (vii) He undertook the Self Regulation Program (SRP) while in custody; (viii) His attitude about sexual assault has changed since undertaking the course; (ix) He understands that the sexual assault of children is wrong; (x) He wants to go home and live with his parents (mother and step-father), (xi) There would be no risk to children if he lived with his parents. His parents have moved since the index offence. They live out of town and no children live with them. 55Alternatively, because his main desire is to be allowed to live at home with his mother and step-father, he submits that he should be allowed to do that although subject to an extended supervision order. 56The Defendant submits that the typical offender under the legislation is one who has committed multiple offences, and he points to the second reading speech when the Bill was introduced into Parliament in that regard. By contrast, the Defendant submits that he has only been convicted for a single offence when he was a relatively young man. Furthermore he has made genuine attempts at rehabilitation whilst in prison. 57The Defendant further submits that his perceived risk could be managed with appropriately tailored prohibition orders under the Child Protection (Offenders Prohibition Orders) Act 2004 as opposed to a supervision order under the Act.

Is there an unacceptable risk? 58In my view it is appropriate to take into consideration when determining whether the Defendant poses an unacceptable risk of committing a serious sex offence, the history of sexual acts committed by him against others, largely children, from the time he was aged about 10 years. There is sufficient objective verification of most of the events he has admitted to perpetrating. The Index Offence was, therefore, not isolated, but was the first time (for reasons that are unexplained) that charges were preferred and pursued against the Defendant. These earlier incidents demonstrate not only opportunistic behaviour but, on occasions, forethought and planning. The evidence of VH1 is clear evidence of that. The Defendant's willingness to discuss his intentions, and endeavour to make arrangements with, his friend VH1 might be thought to show a lack of impulse control. 59The evidence of the psychiatrists points strongly to a risk of re-offending. Dr Roberts said in his report: In my opinion Mr Conway represents a high risk of a future serious sex offence. Mr Conway has a longstanding history of inappropriate sexual behaviour. This conduct has recurred despite an apparent understanding of its inappropriateness and therapy aimed at addressing such conduct dating from age 10 years. Mr Conway's conduct has, on several occasions, drawn the attention of the police and yet this has not apparently acted as a deterrent. Furthermore the index offence occurred whilst Mr Conway was under the close supervision of family members who were acutely aware of his predilections. Mr Conway's history of sex offending appears to include both opportunistic components and premeditated components. The account of the index offence includes descriptions of behaviour leading up to the offence reflective of Mr Conway's desire to form a closer relationship with his niece. Other victims however have been approached spontaneously and on other occasions it has been documented that Mr Conway has actively sought out children. Mr Conway's preference is evidently for young girls, however he has a history of sexual behaviour towards young boys. He has approached both family members and strangers. On this basis it is evident that any child with whom Mr Conway has contact is a potential victim and, if there are no children to whom he has ready access, he has the potential to actively seek them out. Mr Conway's cognitive impairment has been a significant factor in undermining his ability to derive benefit from psychological therapy provided to him. This is borne out by the feet that he has continued to indulge sexual fantasies of children such that during the month of June, he has been documented to masturbate to such fantasies of this nature whilst in the shower. Mr Conway has been assessed using the STATIC 99, results of which place him in the moderate to high category for sexual recidivism. His overall risk however is considered high. Having regard for his intellectual deficits and the absence of an overt change in his behaviour following extensive psychological therapy, risk factors which may represent the target of therapeutic intervention in other offenders are, in Mr Conway's case, not considered amenable to change. In addition to the factors described above, Mr Conway's metabolic disorder and his propensity to depressive illness have the potential to exacerbate a tendency to disinhibited impulsive conduct to which he is prone by virtue of his intellectual deficits. Based on the above factors, it is my opinion that Mr Conway continues to pose an "unacceptable risk" of committing a further serious sex offence. 60Dr Ellis's conclusion was this: In considering actuarial and clinical parameters in the absence of any treatment or supervision, Mr. Conway would fall into a group of person with a risk offending that is moderate, and equivalent to a theoretical average offender. Treatment and supervision would likely reduce this risk. 61Theresa Britton said this in her report of 25 March 2011: 84. Mr Conway has self-reported to numerous people a life-long sexual attraction to underage children, and a general hypersexuality. The offending allegedly started in childhood, and escalated during his adolescence in severity, frequency and diversity over time, There is no clear modus operandi; his offending is impulsive and opportunistic. He would be at risk of sexual re-offending against pre-pubescent children, mostly females, under that age of 16 years, The victims could be intra-familial or extra-familial, known to Mr Conway through friends, neighbours, and family members or they may be strangers. The available information suggests that any future recidivism would range from non-coercive sexual touching and/or digital penetration, with offers of money, gifts and or alcohol to placate the victim, to coercive digital or penile/vaginal penetration, He may also attempt to loiter around schools, childcare centres, parks, swimming pools, shopping centres and/or other places where children may congregate to entertain thoughts of luring or kidnapping a child for his own sexual gratification. 85. In the current offence Mr Conway covered the victim's mouth so that her screams could not be heard, he acted without regard for the obvious potential to cause harm, or fear of harm. He later admitted that he continued to offend whilst thinking the victim could not breathe properly. So it warrants consideration that future reoffending could potentially cause serious psychological harm, with a substantial chance of minor to moderate physical harm to a victim. 86. Mr Conway had reported to his treatment providers that he is motivated to remain offence-free; however his risk of reoffending would be exacerbated If he remained un-medicated and unsupervised in the community. He would be at Increased risk of reoffending if he were associating with negative social influences, others who condoned or collaborated with him in minimising the harm of sexual abuse of children, If he continued to mistake feelings of intimacy for sexual arousal. If he continued to hold attitudes or beliefs that children are his peers and equals, can enjoy sexual abuse, and can consent to sexual behaviour with an adult. Under these circumstances, were an opportunity for victim access to present itself, and should Mr Conway be struggling with deviant sexual thoughts about children he would be at increased risk of chronic, persistent, and frequent reoffending. Ms Britton assessed Mr Conway using Static-99R where he was placed in the moderate to high risk category, and also using the Risk of Sexual Violence Protocol. 62Celia Langton, said in her report of 7 June 2011: 10. Throughout his time in the Self Regulation Programme, Mr Conway displayed some deficits in cognitive functioning that do not appear to be fully attributable to his achieved cognitive assessment scores. These include his limited ability to reflect on his past, his thoughts and emotions, to integrate past experiences with new ones, and to perspective take [sic]. It is difficult to tease out the specific causes of his deficits from his intellectual functioning, Hereditary Coproporphyria, abuse history and any other personality issues such as his poorly developed identity and dependence on others. However, it is possible that such factors combine to impact Mr Conway's ability to attend to and use information in a meaningful way. ... 22. Another important issue in Mr Conway's treatment progress was his reluctance to accept and express his own opinions. Mr Conway was often inconsistent in reporting past events (for example, whether or not he was abused as a child) and could rarely express current thoughts or emotions. This meant that information was not always forthcoming from Mr Conway and was often inconsistent. This has made it difficult for facilitators to truly assess the extent of Mr Conway's abuse history, his emotional states, his opinions and his plans. ... 78. For a significant part of treatment, Mr Conway was disengaged from the process. This may be a function of a number of issues as previously discussed, including his medication and lack of trust in professionals impacting on the development of a therapeutic alliance. 79. Mr Conway expressed motivation to change and stated he understood on a general level that child sexual assault was wrong, However, his active participation and progress was impeded by his low self-esteem. This gave him a view of himself as a bad person which resulted in poor self-efficacy with regard to making changes. For example, Mr Conway expressed concern that he would commit another offence during his initial suitability assessment for the Self Regulation Programme, and to a CSNSW Psychologist in October 2007. Additionally, Mr Conway had difficulty integrating the learning and strategies developed during treatment and so had little understanding of his role in achieving change. 80. Mr Conway often appeared to have difficulty understanding why certain rules were enforced or why he was asked to attempt something, particularly treatment-related exercises. This appears primarily due to his slow processing skills and difficulty in conceptualising information due to his intellectual disability. Mr Conway demonstrates difficulty in linking concepts and understanding abstract concepts, meaning he may not comprehend why something applies to him or be able to make plans for adhering to a rule. This difficulty is also linked to his underlying distrust of others in that he questions people's ulterior motives and thus often perceives directions or suggestions to be a threat. 81. As a result of Mr Conway's distrust of others and concerns about being " falsely accused" , he expressed hostility towards service providers such as parole and his post-release support agency, the Community Justice Programme (OP). He initially refused to engage with CJP. 82. Mr Conway often stated his motivation to avoid offending, however his lack of understanding of his offending at times led to active choices that increased his risk. Mr Conway did not seem to be aware of how these behavioural choices may lead him to offend, His expressed desire to work with incestuous families in the future is likely an example as this places him in a high risk situation whilst apparently attempting to avoid further victimisation of children. 63Ms Langton's views are particularly significant because, as I have said, she was the co-facilitator of the Self Regulation Program in which Mr Conway participated between 15 February 2010 and 18 April 2011. The Defendant points to Mr Conway's completion of the SRP as being a factor to justify no extended supervision order. In addition to the foregoing, Ms Langton in her progress report of 17 March 2011 (only a month before the completion of the program) said this: Still has outstanding treatment issues in ail dynamic risks areas identified in his assessment of suitability. However, he has made some gains in al of these areas, particularly In intimacy deficits. He reported that his sexual pre-occupation has reduced, particularly his thoughts about children. He does acknowledge that he continues to have these thoughts at times. His assessment of his situation seems accurate given our observations of his behaviour. His attitudes about sexual assault have changed somewhat in that he now understands that incest is not common and is damaging. He also states that since his conviction he has learnt that sexual assault of children is wrong, and that they don't enjoy it. ... Mr Conway is very motivated not to re-offend. However, he has issues in self-efficacy in terms of making changes and an external locus of control, and his intellectual disability impacts on his ability to generalise treatment gains, This means that while he is motivated to not re-offend, he cannot always see his role in this process. As a result, for much of the treatment programme, little progress was made . (emphasis added) 64It is clear that both the psychiatrists, and the psychologists who examined him, thought that his sexual history including the other sexual acts that he perpetrated on other children, were significant in assessing his risk. They all seemed to regard those matters as significant for the likelihood that he might in the future commit offences of a sexual nature. Even Dr Ellis, who thought that treatment and supervision would be likely to reduce the risk of re-offending, still regarded him to be a moderate risk of re-offending based in part, at least, on his sexual history. There was no evidence to the contrary. In those circumstances it seems to me that those are matters that constitute other information that is available as to the likelihood that he would in the future commit offences of a sexual nature under s 9(3)(i). 65In my opinion, the Defendant's history of behaviour including sexual acts committed by him, the diagnoses made of him of paedophilia and mental retardation, and the somewhat qualified success he has had with regard to the SRP whilst in custody, all combine to cause me to be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Statements he has made acknowledging his wrongdoing, and statements of his intentions for future behaviour have to be treated with a considerable degree of caution in the light of the unreliability of his statements in the past and the conclusions of the psychologists about his difficulty in processing skills and conceptualising information, and his lack of understanding of his offending at times. 66His mother gave evidence of her belief that the Defendant has changed so much that she did not believe he would re-offend. She said that her husband, the Defendant's stepfather, was also of that view. She later modified that by saying that she could see a big difference in him, and she did not think he was a high risk but a very low to moderate risk. 67The evidence suggests that the Defendant and his mother are, and have been, close. Whilst not discounting a mother's assessment of a son with whom she is close, I accept the evidence of Dr Ellis (who was clearly sympathetic to every attempt to improve the bond between Defendant and his mother to assist in his rehabilitation) when he said that the attachment of parents to their children can sometimes lead to blind spots in their appraisal of their own children. There are other matters which I shall discuss presently when considering where the Defendant should live, that lead me to the view that I should not accept his mother's assessment of the Defendant's likelihood of re-offending. 68With some minor differences between them, the views of the psychiatrists and psychologists are very similar in the risk that they see of the Defendant re-offending and the need for some further years of assistance, treatment and professional support.

The length of the order 69The Plaintiff seeks a 3 year supervision order. Dr Roberts thought that the maximum period allowed should be ordered. The Defendant appeared to accept that, if an order was made, 3 years was the appropriate time although the Defendant wanted some flexibility built into the conditions to enable a review of those conditions earlier than the 3 year period. The Plaintiff subsequently agreed to the inclusion of a condition to enable such review, in these terms: 36. At the expiration of 12 months from the making of this Extended Supervision Order or such shorter period as the Commissioner may advise, and at the end of each 12 month period thereafter, the conditions the subject of the defendant's order will be reviewed by the Commissioner with a view to possible adjustment of the risk management plan and/or consideration by the State of an application to the court to vary the conditions if considered appropriate. For the purpose of the review, the Commissioner may consult with (either jointly or separately) any treating psychiatrist or psychologist and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer including the Departmental supervising officer. 70Although my initial inclination was to accept Dr Roberts' view that, despite what was sought, the period of the order should be for 5 years, I am satisfied that the risk the Defendant currently presents can be dealt with by the making of an order for 3 years. The regime which is proposed, at least in the first instance, is somewhat akin to a term of imprisonment albeit outside traditional prison walls. The Defendant will be under line of sight supervision (in the first instance) and if it is deemed appropriate at some time within the period of the order, would be subject to electronic monitoring. This is a relevant matter for consideration: State of New South Wales v Tillman [2008] NSWSC 1293 at [60]; New South Wales v Manners [2008] NSWSC 1376 at [90]. 71He is still a young man who has made some small progress since being incarcerated. For the Court to require a longer period than is sought (although I consider by virtue of ss 9, 10 and 11 of the Act such a course is open) would be to place little or no faith in the arrangements and programs that have been put in place to assist in the Defendant's rehabilitation. Although the primary object of the Act is to ensure the safety and protection of the community, the secondary object of encouraging serious sex offenders to undertake rehabilitation should not be lost sight of. It seems legitimate to give greater emphasis (whilst not detracting from the primary object of the Act) to the supplementary object in the case of an offender as young as the Defendant. 72Bearing in mind the conditions to be imposed I consider a 3 year order is appropriate.

Conditions of the Order 73The principal areas of dispute between the Plaintiff and the Defendant concerning the conditions proposed by the Plaintiff fall into 4 areas. The first relates to the place where the Defendant should live. The second relates to electronic monitoring. The third concerns home visits and the fourth concerns anti-libidinal medication.

(a) Accommodation 74The proposal is that the Defendant should reside at accommodation operated by the Mercy Centre in Woolgoolga. This is a facility classified by the Community Justice Program as an Intensive Residential Support model. The accommodation is in a rural location, some distance from the road, with up to 5 clients and Mercy Centre support persons on site. The doors are locked at all times. There is 24 hour supervision. When a person in the Defendant's position is allowed into the community, a support person remains 3 paces from him. There is a rostered "awake" night shift which means that support persons are awake throughout the night and regularly check on sleeping clients. 75Various plans and programs are to be put in place that provide activities and work for the Defendant as well as consultations with a psychologist. The plan involving work and leisure activities envisages that the Defendant will not be confined to the property where he resides but will involve visits to places like parks, botanical gardens and the beach. His mother will be able to contact him and is permitted to visit him by arrangement. 76Both the Defendant and his mother desire that the Defendant lives with her and her husband at her house, which is a rural property some kilometres out of town between Tenterfield and Casino. The property is a remote one, away from schools and other places where children are to be found. The Defendant's mother says that her grandchildren do not visit her at the property and have not done so for some time. 77One particular reason for this desire on the part of the Defendant and his mother is the time it takes her to drive from the property to Woolgoolga where it is intended that the Defendant reside. It is said to be about a 3 hour drive. Neither the Defendant's mother nor her husband is in good health, and it is difficult for them to travel that distance in a car without at least some breaks being taken. In addition, because they are not in the best of health their desire is that the Defendant should assist them in working to get the property back to being a working farm. In that way, it is said, the Defendant will be fully occupied. His mother promises to supervise him and not let him leave the property without her accompanying him. 78In my opinion it is not appropriate the Defendant live with his mother at her property. It is evident, particularly from Ms Langton's reports, that the Defendant only made limited progress in the SRP whilst he was incarcerated. She, Ms Britton, and the psychiatrists, consider that the Defendant needs a great deal more assistance in dealing with his diagnosed problems and his sexual offending. The programs that have been devised, and are being devised, for the Defendant are designed not only to help him deal with those matters but to facilitate his movement back into the general community. The experts do not consider he is ready to move back into the general community in any unsupervised way. With the best will in the world his mother is in no position to do that. She does not possess professional skills to afford him the treatment and behaviour modifications that he will receive living at the Mercy Centre. 79There are other matters indicating that residing with his mother would not be satisfactory at the present time. The first is that he committed a number of the offending acts, including the index offence, when supposedly under some sort of care or oversight of his mother. The reports suggest that on 2 occasions when he sexually assaulted his nephew, whilst she threatened to go to the police, she did not do so. She says that she does not recall those incidents. I accept, nevertheless, that she did report the index offence to the police. 80The second matter of concern is whether or not she would have the control over the Defendant that she believes that she has. She certainly appears not to have had that control during his teenage years and up to the time when the index offence was committed. In any event, the issue of control and supervision brings into relief a concern that Dr Roberts expressed about the conflict of her dual role as a supervisor, effectively on behalf of the State, and her role as his mother and a support person. 81The third matter, and coupled with the second, is that his mother, for understandable reasons, has a different view of his likely risk of re-offending from the view that all of the professionals hold. She was not aware of the view of the psychiatrists and psychologists until I put it to her when she gave evidence. She said, however, that their view did not change her view about his likely risk of offending. Although she said that she would be prepared to accept the advice of the psychiatrists and psychologists as to what conditions of supervision were required in relation to the Defendant, her firmly held view about his low risk of offending is a bad starting point for the degree of supervision of him that she was likely to apply. 82One of the reasons the Defendant's mother gives for her view that he has changed is that she said he now acknowledges that what he did was wrong, and that he has only done this since he participated in the courses whilst in prison whereas he had not acknowledged it previously. This is inconsistent with what the Sentencing Judge said in her Remarks on Sentence (para [4] above) and it is inconsistent with what appears in his ERISP at answers 76, 123 and 131. On the other hand, in the light of what Ms Wallace reported (para [5] above) coupled with the inherent problem of accepting the Defendant's statements at face value, I do not consider the Defendant's mother's basis for her belief as having very much validity. 83I accept the views of Dr Ellis and Dr Roberts of the importance of the Defendant's relationship with his mother and stepfather. Nevertheless, at the present time, the views of the experts point strongly to it being inappropriate that the Defendant should reside with his mother and his stepfather. The only evidence about the possibility of electronic monitoring if he did so suggested that there would be difficulties because of the location of the property. That, however, seems to me to be a minor consideration. The significant matters are his present likely risk of offending and his considerable need for professional assistance to provide some hope of rehabilitation.

(b) Electronic monitoring 84Proposed conditions (3) and (4) require the Defendant to wear electronic monitoring equipment and to inform the Departmental Supervising Officer of the Defendant's movements in advance - a condition associated with the electronic monitoring requirement. 85Condition (5) then says that conditions (3) and (4) do not apply if the Defendant resides at Community Justice Program Intensive Residential Support accommodation and is subject to line of sight supervision. It also accepts the need for notification of the Defendant's movement in advance if the Defendant were to require urgent medical attention. 86The Defendant is opposed to wearing electronic monitoring. There is the further issue raised about whether he is capable of using it and understanding notions such as inclusion and exclusion zones, together with the need on some but not all occasions to carry the second part of the equipment with him. 87Mr Johnston of counsel who appeared for the Defendant accepts that immediate concerns about the conditions requiring electronic monitoring equipment to be worn are moderated by condition (5). The intention is that whilstever the Defendant resides at the Mercy Centre at Woolgoolga and is subject to line of sight supervision he will not need to wear electronic monitoring equipment. At some point, however, those responsible for him may take the view that he need not be subject to line of sight supervision in which case electronic monitoring equipment would need to be worn. 88There is the further issue, as the result of a modification of conditions concerning home visits, arising out of the fact that it may not be possible to monitor electronic equipment at the Defendant's mother's property. 89The intention of the conditions attaching to the extended supervision order is that at least for the first 12 months the Defendant will be residing at the Mercy Centre at Woolgoolga subject to line of sight supervision. However, even if it was considered appropriate to modify that requirement within the 12 month period, there seems to me little justification for not imposing a requirement for the Defendant to wear electronic monitoring equipment until such time as those making decisions for him are satisfied that his risk is such that it is no longer necessary. The wearing of electronic monitoring equipment by those subject to extended supervision orders is by no means unusual and can be regarded as the norm except where more restricted supervision (such as is intended here for the first 12 months) is put in place. 90That is not to say that the ability to use electronic monitoring equipment should be the deciding factor in relation to home visits. I shall discuss that matter in the next part of the judgment. Whilst I accept the difficulty, by reason of the Defendant's impaired intellectual ability, to understand all of the subtleties associated with the use of electronic monitoring equipment, I am confident that those responsible for the Defendant in the CJP will be able to explain the matter in a way that is sufficiently understood by the Defendant. I note in that regard that the Departmental Supervising Officer for the Defendant, Kathy Maloney, has prepared a list of simple supervision conditions which provide a good summary of what the detailed conditions provide. With one exception, where some simplification was necessary, the psychiatrists were of the view that these conditions were well expressed for someone with the Defendant's intellectual impairment. In the same way, I am confident that Ms Maloney could prepare something which would enable the Defendant to have a sufficient understanding of the use of electronic monitoring equipment if and when the need for its use arises.

(c) Home visits 91By reason of the evidence of the psychiatrists concerning the importance of the support of the Defendant's mother and family, and after hearing from the Defendant's mother herself, the Plaintiff has, commendably, put forward some modified conditions to allow for the possibility of home visits from time to time. Proposed condition 6A provides: 6A: For the duration of the extended supervision order the defendant may undertake overnight (ie weekend) visits to his mother and step father at their property in northern NSW ("the property") if and as approved in advance by the Departmental Supervising Officer. In assessing the suitability of the defendant undertaking such overnight visits to the property, the Departmental Supervising Officer shall have regard to, but not be limited by, the following considerations: i. the views expressed in court on 26 August 2011 by Dr Ellis and Dr Roberts as to the benefits of such visits occurring on a monthly basis; ii. the views of the defendant's treating psychologist(s); iii. the availability of electronic monitoring of the defendant whilst at the property (per conditions 3 to 5); iv. the consent of the defendant's mother and/or step father to the Departmental Supervising Officer or any other departmental officer entering the property for the purpose of conducting an initial assessment of the property, testing and installation of electronic monitoring equipment, conducting unannounced visits (per condition 7), conducting drug and/or alcohol testing of the defendant (per condition 22), and inspecting any electronic devices at the property (per conditions 31 to 34). Note : The Departmental Supervising Officer may refuse the Defendant permission to visit his parents unless prior to the commencement of each visit, the defendant's mother signs a written undertaking in the following terms: i. the defendant will be kept under line of sight supervision by herself and/or the defendant's step father during his transport to and from the property and at all times during the visit; ii. the defendant will not leave the property during his visit unless approval is given in advance by the Departmental Supervising Officer or if the defendant requires urgent medical attention; iii. no child under 18 years will visit the property during the visit of the defendant; iv. if the defendant breaches any of the conditions she will immediately notify the Departmental Supervising Officer and the Officer in charge of the nearest police station. 92On the other hand, the Defendant proposes as follows: 6A. The defendant must be permitted to visit his parents (xxxxxxxx) at least a minimum of one weekend (Friday afternoon to Sunday afternoon) per month (or such greater period as may be approved by the Departmental Supervising Officer) at xxxxxxx ('the property'). 6B. The defendant must remain under the line of sight supervision of one of his parents during his transport to and from the property, unless directed to the contrary by the Departmental Supervising Officer. 6C The defendant must remain on the property during his visits unless approval is given in advance by the Departmental Supervising Officer or if the defendant requires urgent medical attention. 6D The defendant must not be on the property at the same time as a child under the age of 18 years. NB The Departmental Supervising Officer may refuse the Defendant permission to visit his parents unless prior to the commencement of each visit one parent signs a written undertaking in the following terms: (i) the defendant will be kept under the line of sight supervision during his transport to and from the property; (ii) the defendant will not leave property during his visit unless approval is given in advance by the Departmental Supervising Officer or if the defendant requires urgent medical attention; (iii) no child under 18 will visit the property during the visit of the defendant; (iv) if the defendant breaches any of conditions 6B, 6C or 6D they will immediately notify the Departmental Supervising Officer and the Officer in charge of the nearest police station. (emphasis added) 93The difference, in substance, between what each side proposes is that the Defendant's version mandates a visit to his mother's property one weekend per month, although visits may be more frequent. The Plaintiff's version leaves it to the DSO to consider whether it is appropriate and lists matters to be taken into account by the DSO. 94I do not have any doubt that the Plaintiff's proposal is the appropriate one. It would be inappropriate for me to require a monthly home visit when I do not have (and nor does anyone at the present time) all the necessary information to decide if the Defendant is ready to be allowed to go on such a visit. Such a matter could only be decided by the DSO after a consideration of reports that she receives from the Mercy Centre and, perhaps, from the input of any psychologist, psychiatrist or social workers who have examined the Defendant's behaviour in the preceding period. The starting point for this is that at the present time the Defendant is an unacceptable risk of committing a further serious sex offence although it is not necessary to decide whether the risk is more likely than not. He has only been residing in the present conditions since 1 June 2011. He has not yet been assessed by the psychologist who will be looking after him and there has not been a full implementation of the plans prepared for him. It is entirely premature for home visits to be mandated at the present stage. When they are appropriate is specifically a matter for the DSO acting on all appropriate advice. 95Further, in circumstances where no evidence has been given by the Defendant's stepfather the suggestion that he, as 'one parent', should be able to sign a written undertaking in the way described is unacceptable.

(d) Anti-libidinal medication 96I accept the 2 main concerns of the psychiatrists with the use of anti-libidinal drugs, being their interaction with the Defendant's Porphyria and his ability to understand complexities associated with them. However, the difficulty in monitoring his use of SSRIs (because it cannot be done by blood tests and because of his unreliability in reporting), and the difficulty in knowing in advance which such medication would have the desired effect, particularly in the light of the Defendant's own use of such a drug when he committed offences, leads me to conclude that Dr Roberts' view (paras [51] and [52] above) is to be preferred. If any anti-libidinal drugs are to be used, in the first instance my opinion is that there should be a trial of Cyproterone if the Defendant's doctors consider that to be appropriate rather than experimentation with SSRI anti-depressants. In expressing this opinion I should make it quite clear that this is a matter ultimately for medical judgment. My concern is that the prescription of SSRIs followed by no overt sexual behaviour and/or a reported reduction in sexual desire or thoughts may lead to a false sense of security for those supervising the Defendant. If it is necessary to get a specific order from the Guardianship Tribunal to deal with consent to the use of these drugs, then that will need to be done.

Other conditions 97With one further minor amendment I consider that the proposed conditions are necessary and appropriate. The minor amendment is to condition 31 to remove the word "child" so that the Defendant is prohibited from accessing the internet to view or download any form of pornography. I note that this was agreed between the parties at the final day of the hearing. 98In relation to condition 36 and any further application to the Court the parties have leave to approach my Associate to re-list the matter at any time it is thought appropriate with a view to varying any of the conditions.

Conclusion 99I make the following orders: (1) Pursuant to s. 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act") the Defendant be subject to an extended supervision order for a period of 3 years from the date of the order. (2) Pursuant to s 11 of the Act, for the period of the extended supervision order, the Defendant is directed to comply with the conditions set out in the Schedule to this Order. (3) Direct that access to the Court file in respect of any document shall not be granted without leave of a Judge of the Court. If any application is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to enable them to be heard. (4) Liberty to apply on two day's notice.

Oversight For the purpose of these conditions, the Departmental Supervising Officer is the person 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"), of which Corrective Services NSW is a division. The Community Compliance and Monitoring Group ("the CCMG") and Probation and Parole are each part of Corrective Services NSW. The Community Justice Program ("CJP") is a program run by Ageing, Disability and Home Care ("ADHC") which is a division of the Department of Family and Community Services. A. Reporting and monitoring obligations

During the period of this order the defendant must accept the supervision and guidance of the Departmental Supervising Officer.
The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other departmental officer who may from time to time be involved in supervision of the defendant.
If directed by the Departmental Supervising Officer, the defendant must wear electronic monitoring equipment and must comply with all instructions given by officers of the Department in relation to the operation of such equipment. The defendant must not tamper with or remove such equipment. At the end of twelve months from the date of this order, the Departmental Supervising Officer must review this condition and must, following such review, not unreasonably refuse to discontinue the use of the electronic monitoring equipment.
If directed by the Departmental Supervising Officer and at a time directed by that officer, the defendant must inform the Departmental Supervising Officer of his movements in advance by providing a schedule in writing (or as otherwise directed by the Departmental Supervising Officer) and except in case of emergency, must notify the Departmental Supervising Officer of any proposed change at least 24 hours in advance.
Conditions 3 and 4 do not apply if the defendant resides at Community Justice Program Intensive Residential Support accommodation and is subject to line of sight supervision. Furthermore, condition 4 does not apply if the defendant requires urgent medical attention and he is either unable to inform the Departmental Supervising Officer of his proposed movements in advance or is unable to obtain prior approval from the Departmental Supervising Officer for any proposed change in advance. B. Accommodation
For the duration of the extended supervision order the defendant must reside at such accommodation as is approved in advance by the Departmental Supervising Officer. 6A: For the duration of the extended supervision order the defendant may undertake overnight (ie weekend) visits to his mother and step father at their property in northern NSW ("the property") if and as approved in advance by the Departmental Supervising Officer. In assessing the suitability of the defendant undertaking such overnight visits to the property, the Departmental Supervising Officer shall have regard to, but not be limited by, the following considerations: i. the views expressed in court on 26 August 2011 by Dr Ellis and Dr Roberts as to the benefits of such visits occurring on a monthly basis; ii. the views of the defendant's treating psychologist(s); iii. the availability of electronic monitoring of the defendant whilst at the property (per conditions 3 to 5); iv. the consent of the defendant's mother and/or step father to the Departmental Supervising Officer or any other departmental officer entering the property for the purpose of conducting an initial assessment of the property, testing and installation of electronic monitoring equipment, conducting unannounced visits (per condition 7), conducting drug and/or alcohol testing of the defendant (per condition 22), and inspecting any electronic devices at the property (per conditions 31 to 34). Note : The Departmental Supervising Officer may refuse the Defendant permission to visit his parents unless prior to the commencement of each visit, the defendant's mother signs a written undertaking in the following terms: i. the defendant will be kept under line of sight supervision by herself and/or the defendant's step father during his transport to and from the property and at all times during the visit; ii. the defendant will not leave the property during his visit unless approval is given in advance by the Departmental Supervising Officer or if the defendant requires urgent medical attention; iii. no child under 18 years will visit the property during the visit of the defendant; iv. if the defendant breaches any of the conditions she will immediately notify the Departmental Supervising Officer and the Officer in charge of the nearest police station.
The defendant must accept home visits at the approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other departmental officer.
For 12 months from the date of this order, the defendant must be at his address between the hours of 9 pm and 6 am the following morning, unless his presence at another place during those hours has been approved in advance by the Departmental Supervising Officer.
The defendant must not leave New South Wales without the prior written permission of the Commissioner or his delegate. C. Community Justice Program
If directed by the Departmental Supervising Officer, the defendant must participate in the services determined by the CJP to be appropriate and must not unreasonably withhold his consent to participate in activities which form part of those services. D. Employment
The defendant may only enter into employment arranged or approved by the Departmental Supervising Officer and must not enter into or undertake employment unless it has been so arranged or approved.
If deemed necessary by the Departmental Supervising Officer, the defendant must make his employer aware of his offending history. E. Treatment obligations
The defendant must engage a general practitioner as soon as reasonably practicable and must notify the Departmental Supervising Officer of the identity and address of the general practitioner.
The defendant must disclose to his Departmental Supervising Officer the identity of any other medical or mental health practitioner, including psychologists, whom he consults.
The defendant must accept psychological and psychiatric assessment and treatment, including counselling and psychological therapy, as directed by the Departmental Supervising Officer on the advice of the CJP, the Department, a Local Health District ("LHD"), Justice Health or otherwise.
If directed by the Departmental Supervising Officer, the defendant must undergo a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted and/or arranged by the CJP, the Department, a LHD, Justice Health or otherwise to determine what is required for treatment, including in respect of the defendant's potential for alcohol and/or drug abuse and potential for sex offending.
Without limiting the preceding paragraph, if prescribed by a medical practitioner the defendant must accept sex drive reduction medical treatment or any other therapy, including anti-libidinal treatment, as may be provided by Justice Health, an LHD or any medical practitioner. Note : In relation to condition 17, it is noted that participation in treatment does not include requiring the defendant to take any medication that may be prescribed without his informed consent. Should the defendant not have capacity to give consent, the medical practitioner may seek consent from the Guardianship Tribunal or another substitute decision maker authorised by law.
The defendant must not take any medication or substance which may affect any anti-libidinal medication being taken by the defendant unless the defendant's treating psychiatrist prescribes such medication. F. Conditions relating to the disclosure of information
The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his general practitioner, any other medical practitioner, his treating psychologists or psychiatrists, any treating LHD, Justice Health and the CJP.
The defendant must consent to his general practitioner, any other medical practitioner, his treating psychologists or psychiatrists, any treating LHD, Justice Health and the CJP sharing information about him, including reports on his progress and information he has disclosed during treatment, with each other and with the Departmental Supervising Officer and other departmental officers involved in his supervision.
The defendant agrees to all sharing of information between the Departmental Supervising Officer, the Department, his general practitioner, any other medical practitioner, his treating psychologists or psychiatrists, any treating LHD, Justice Health and the CJP. G. Alcohol and other drugs
If directed by the Departmental Supervising Officer, the defendant must not consume any alcohol or illicit drugs, must not abuse prescription medication and must not use prescription medication not prescribed to him. The defendant must submit to drug and alcohol testing as directed by the Departmental Supervising Officer. H. Relationships and Associations
The defendant must not approach or have any unsupervised contact with children aged 16 years or under.
Without limiting condition 23, the defendant must not associate with any persons as reasonably directed by the Departmental Supervising Officer.
Without limiting condition 23, the defendant must not, without the prior permission of the Departmental Supervising Officer, contact or communicate by any means with, or attempt to contact or communicate by any means with, the victim of the offence for which the defendant was sentenced on 19 September 2007 at Taree District Court.
Without limiting condition 23, the defendant must not attend any child care centres, any schools attended by children 16 years or under, any amusement parlours attended by children 16 years or under, any playgrounds or parks attended by children 16 years or under, any sporting facilities or swimming areas attended by children 16 years or under or any caravan parks or houses where children 16 years or under ordinarily reside unless accompanied by a person approved in advance by the Departmental Supervising Officer to attend that location with the defendant on that occasion.
Should the defendant propose to enter into a relationship with another person, be that relationship at an intimate level or at the level of friendship, whom he knows, or comes to know, is the parent or guardian (or otherwise a person with care or control, such as a teacher) of a child 16 years of age or under, he must notify the Departmental Supervising Officer as soon as reasonably possible. The Departmental Supervising Officer may direct the defendant to disclose his offence history to that other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of a person aged 16 years or under. I. Personal details and appearance
The defendant must not change his name from John Owen Conway, use or be known by any other name without prior approval of the Departmental Supervising Officer.
The defendant must not, without the prior approval of the Departmental Supervising Officer, change his facial appearance, including facial hair or the colour of his hair, and must not alter the length of his hair to the extent that he cannot be reasonably recognised.
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. J. Internet and pornography
The defendant must not use an electronic device for the purpose of accessing the internet to view or download pornography.
The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to or use of the internet including any direction to use a parental lock or other device or software on any electronic device that may restrict access to, or permit access only to, certain web sites.
The defendant must not attend any internet cafe or internet kiosk without the prior approval of the Departmental Supervising Officer.
If directed by the Departmental Supervising Officer, the defendant must: (a) permit the Departmental Supervising Officer and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental Supervising Officer ("Computer Technician"), to access and inspect any electronic device owned by the defendant (including the temporary removal of the electronic device from the defendant's place of residence for the purpose of inspection); (b) take all available steps to permit the Departmental Supervising Officer and the Computer Technician to access and inspect any electronic device used by, but not owned by, the defendant; (c) provide the Departmental Supervising Officer and the Computer Technician with any requested assistance to enable them to access and inspect any electronic device owned or used by the defendant, including providing them with any required passwords; (d) permit the Departmental Supervising Officer and the Computer Technician to make copies of any files or materials on any electronic device 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. I. Review
At the end of each six monthly period that the defendant is 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 psychiatrist or psychologist and the defendant.
At the expiration of 12 months from the making of this Extended Supervision Order or such shorter period as the Commissioner may advise, and at the end of each 12 month period thereafter, the conditions the subject of the defendant's order will be reviewed by the Commissioner with a view to possible adjustment of the risk management plan and/or consideration by the State of an application to the court to vary the conditions if considered appropriate. For the purpose of the review, the Commissioner may consult with (either jointly or separately) any treating psychiatrist or psychologist and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer including the Departmental supervising officer.

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 September 2011

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Judgment (18 paragraphs)

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