State of New South Wales v King

Supreme Court of NSW|2021-11-17|Before: Davies J, Hulme J

Judgment

On 17 February 2015, RA Hulme J ordered that Ronald Dean King (hereinafter called "the applicant") be subject to an extended supervision order for a period of five years: R v King [2009] NSWCCA 117. By reason of various incarcerations since the making of that order and pursuant to s 10(2) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), the ESO will expire on 4 July 2023.
By a notice of motion filed 23 July 2021, the applicant seeks an order pursuant to s 13(1) of the CHRO Act that the ESO be revoked. The State of New South Wales opposes the revocation of the ESO, but submits that it would be appropriate to vary a number of the conditions of the ESO.
Section 13 of the CHRO Act provides: 13 Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. (2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate.
In State of New South Wales v Kay [2018] NSWSC 1235, Wilson J said at [66]: The wording of the section is such that the Court's discretion is unfettered, subject to the objects and provisions of the Act.
In State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52, Walton J said: [24] The word "unnecessary" in the context of s 13(1B) simply means not necessary. The word affixes to the word "order" or the words "render the order", each of which bring forth conceptually that what is under consideration, namely, whether the circumstances existing at the time when the extended supervision order was made have changed such as may properly result in a conclusion that extended supervision order is no longer necessary. As the provision concerns, inter alia, revocation, then axiomatically the provision concerns an existing extended supervision order which it may be presumed was made conformably within the requirements of Pt 2 of the Act. [25] It follows that the question raised by s 13(1B) is whether the "circumstances" which existed at the time of the making of an extended supervision order have changed sufficiently to render it unnecessary, having regard to the provisions of Pt 2 of the Act, for the extended supervision order to continue to operate. [26] The word "circumstances" is a broad concept which in the context used in s 13(1B) means the state of affairs surrounding or affecting the defendant applicable to the determination made or to be made under s 9(1) of the Act having regard to the requirements of, inter alia, Pt 2 of the Act (as those provisions or requirements should be understood under the authorities of this Court: see, for example, as discussed in State of New South Wales v Cook (Final) [2019] NSWSC 51 ("Cook") at [22]-[29].

Background to the making of the ESO

The index offence was one of sexual intercourse with a child under the age of 10. A brief summary of the facts appears in the judgment of RA Hulme J in State of New South Wales v King [2015] NSWSC 74 at [11] as follows: The index offence was one of sexual intercourse with a child under the age of 10. Offences of committing an act of indecency with a person under 16, stealing property in a dwelling-house, and taking and driving a conveyance without the owner's consent were taken into account in sentencing. The facts, as summarised in the written submissions by counsel for the State, were: "On 22 November 2007, when aged 23, the offender entered a residence and walked into a bedroom where a four year old female was asleep. The offender turned off the night-light and removed his pants and underwear. He then removed the child's clothes and underwear and penetrated her vagina with his finger. The child woke up and told him to go away. The offender masturbated while leaning over the child, and ejaculated onto the bedclothes. He then left the room leaving behind his underpants. DNA evidence ultimately identified the offender in the offence. The offender was said to be heavily intoxicated at the time of the offence. In addition to being charged with Sexual intercourse with person under the age of 10 years, the offender was also charged with Commit act of indecency with person under 16 years, Steal property in dwelling house, and Take and drive conveyance without consent of driver. In this, it will be seen that the index offence took place in the context of breaking and entering a home, and in the context of theft."
The applicant received a suspended sentence good behaviour bond, but a Crown appeal on the ground of manifest inadequacy resulted in the Court of Criminal Appeal sentencing the applicant to imprisonment for seven years with a non-parole period of four years and six months: R v King [2009] NSWCCA 117. There was evidence that the applicant was affected by alcohol at the time of the offending, and that was regarded by the Court of Criminal Appeal as an aggravating factor.
Although this was the only sexual offence for which the applicant had been convicted in his lengthy criminal history, there were two other offences of break and enter which involved the applicant being in the bedroom of female children (aged respectively 7 and 11), and in the former case with the applicant getting into bed with the child. In neither case was a sexual offence committed.

The making of the ESO

After Hulme J had considered the applicant's index offence and his criminal record generally, his Honour discussed the applicant's compliance with his parole obligations. His Honour noted that the applicant struggled to comply with his obligations not to consume alcohol and other drugs, to attend appointments and take medication, not to deviate from his schedules, and to abide by the rules of his accommodation.
The applicant had completed a number of programs both in custody and in the community, but was considered by the psychologist, Mr Samuel Ardasinski, to have participated in the community-based program only superficially, and not to have incorporated what he learned about risk management in the behaviour he subsequently demonstrated in the community, including in his recreational drug use and his unhealthy attitudes towards sex. Mr Ardasinski expressed concern about whether the defendant had the capacity to self-manage his real risk of reoffending in any future release to the community without intensive supervision and ongoing support.
On the risk of reoffending, the applicant had been examined by the psychiatrists, Dr Jeremy O'Dea and Dr Andrew Ellis. The applicant told Dr Ellis that he was aware of a sexual attraction to younger females, and although he still had those thoughts at the time of the examination, he felt that he was able to ignore them. That led Dr Ellis to diagnose the applicant with a paraphilic disorder (paedophilia).
Both Dr Ellis and Dr Jeremy O'Dea diagnosed the applicant with a substance use disorder, arising from his long use of alcohol and illicit drugs. The applicant had first used cannabis in primary school, and that quickly escalated to daily use. He was ultimately expelled from high school for cannabis use. He was heavily dependent on alcohol from the age of 18 and would regularly experience "blackouts". He developed a reliance on prescription drugs, and experimented with illegal drugs including ecstasy, speed, ice and heroin.
Both psychiatrists thought that the applicant had a high risk of committing serious sex offences.
Similarly, the Risk Assessment Report (RAR) from Mr Ardasinski dated 23 July 2014 assessed the applicant's risk of sexual reoffending in a high risk category. Mr Ardasinski identified the following dynamic factors that were potentially relevant to the applicant's risk of sexual reoffending: • Substance abuse; • Relationships and unhealthy peer associations; • Possible deviant sexual interest; • Impulsivity and poor capacity to plan; • Poor stress coping and cultural disconnection; • Poor work ethic and self-esteem issues; • Compliance with supervision; • Lack of community support and suitable accommodation.
Justice Hulme accepted the unchallenged reports of the experts, and was satisfied that there was a high degree of probability that the applicant posed an unacceptable risk of committing a serious sex offence if he was not kept under supervision. His Honour accepted the view of the psychiatrists that the ESO should be in place for a period of five years.

Events subsequent to the making of the ESO

As mentioned earlier, since the ESO was put in place, there have been a number of breaches by the applicant of the conditions of the ESO. In some cases warnings were given, but in a number of other cases the applicant was charged with failure to comply with the requirements of an ESO, an offence against s 12 of the CHRO Act. The breaches for which the applicant was convicted are as follows: Offence date Type of breach Sentence 13 May 2015 Positive drug test for methylamphetamine Section 12 bond with three months' supervision 8 November 2015 Consuming methylamphetamine Four months' imprisonment commencing 20 November 2015 and concluding 19 March 2016 14 August 2016 - Two positive drug tests for methylamphetamine and one for cannabis Six months' imprisonment commencing 26 August 2016 and concluding 25 February 2017 26 August 2016 15 March 2017 - Consuming methylamphetamine Seven months' imprisonment commencing 16 March 2017 and concluding 15 October 2017 with a non-parole period of 3 months commencing 16 March 2017 and expiring 15 June 2017 16 March 2017 4 July 2017 Positive drug test for methylamphetamine Six months' imprisonment commencing 4 July 2017 and concluding 3 January 2018 2 May 2018; 6 May 2018 Accessing pornography; contact with person in breach of direction x 2 Nine months' imprisonment commencing 7 May 2018 and concluding 6 February 2019 3 May 2019 Consuming methylamphetamine Six months' imprisonment commencing 6 May 2019 and concluding 5 November 2019 5 July 2020 Permitting a person to enter and remain in dwelling; failing to take medication, consuming methylamphetamine Aggregate sentence of nine months' imprisonment commencing 10 July 2020 and concluding 9 April 2021 with a non-parole period of three months commencing 10 July 2020 expiring 9 October 2020 1 January 2021 Consuming alcohol Three months' imprisonment commencing 1 January 2021 concluding 31 March 2021

The result of these periods of incarceration is that, since the making of the ESO, the applicant has spent 1224 days in custody and 1296 days in the community.
Mr Ardasinski conducted a further assessment of the applicant by telephone on 19 October 2021 and prepared a further RAR dated 22 October 2021. Mr Ardasinski noted that the applicant had undertaken years of intervention. He had participated in a high intensity treatment program aimed at addressing his sexual offending from 2011 to 2012. He had also completed programs of lesser intensity to address his extensive substance abuse history. He reported that the applicant had engaged quite well in the programs. However, there had been some problems.
The applicant had wanted to go into residential rehabilitation. There had been difficulty finding a place which was prepared to take him in view of his history, but he was ultimately accepted into a culturally appropriate residential treatment program at Oolong House in Nowra. However, after less than a month in the 16-week program, the applicant was seeking to discharge himself. When he was told he would breach of his ESO if he did so, he was subsequently terminated from the program for smoking cigarettes on the premises.
Mr Ardasinski concluded that it did not appear that the applicant was committed to maintaining abstinence from alcohol or other drugs, and he said that the extent of the applicant's insight into his offending behaviour was still somewhat limited. In that regard, Mr Ardasinski had noted the various breaches of the ESO which had led to the charges against him that have been detailed.
Mr Ardasinski said that the applicant had been assessed as presenting an overall high risk of sexual reoffending relative to other male sexual offenders. However, his dynamic risk had reduced over the years that he had been subject to supervision.
In his initial RAR, Mr Ardasinski had opined that the risk of the applicant's repeat sexual offending would be most significantly increased in situations in which he was affected by drugs or alcohol, engaging in casual or impersonal sex, and breaking into houses at night. However, Mr Ardasinski noted that despite the applicant's use of drugs and alcohol whilst on the ESO, he had not reoffended sexually.
Mr Ardasinski noted that the applicant had been open in his disclosures during sessions at the Forensic Psychology Service that he had previously malingered by faking psychotic symptoms in order to be prescribed an atypical antipsychotic medication, Seroquel, whilst in custody, in order to help him sleep.
Mr Ardasinski reviewed the dynamic risk factors that he had identified in his earlier report, in the light of developments since that time.
He said that the applicant had demonstrated that substance use, mainly in the form of an addiction to methylamphetamine, had been an ongoing issue throughout the term of his ESO. However, there had been far fewer breaches for alcohol use than would have been conjectured at the time of his release. He said that while substance abuse remained a risk factor of concern, it was only when the applicant was using substances within the context of his other risk factors that a high risk situation was likely to unfold which might result in sexual impropriety or reoffending.
In relation to the applicant's relationships and unhealthy peer associations, Mr Ardasinski noted that the applicant had shown that he gravitated towards antisocial people, and had acknowledged in engaging in a number of casual, sexual relationships over the course of the ESO. That indicated that there was still a level of sexual preoccupation, a high sex drive, and occasional use of sex to cope with feelings of inadequacy, which were all present at the time he offended.
However, Mr Ardasinski disagreed with the diagnosis of the two court-appointed expert psychiatrists that the applicant fitted the diagnostic criteria for paedophilia. He said that, given the applicant's sexual activities with consenting peer-aged females over the course of his ESO and lack of any other evidence to the contrary, he did not believe that sexual deviance was a relevant factor in the applicant's risk profile.
Mr Ardasinski said that the applicant's drug use demonstrated his tendency for impulsivity, and that that remained unchanged from his earlier assessment.
Mr Ardasinski noted that the applicant had no social supports in Sydney, that he had an issue with wanting to work to support himself, and that he had little insight into the self-esteem benefits of working for a living. He said an abundance of idle time had been a risk issue for the applicant.
In relation to compliance with supervision, Mr Ardasinski said that the applicant tended to comply with the elements of supervision which suited him and he disregarded those aspects of the process with which he did not agree.
Mr Ardasinski noted two recent assessments of the applicant's dynamic risks. The first was an assessment using the Level of Service Inventory - Revised (LSI-R) on 2 November 2020. The applicant remained in the High Range of risks/needs. The applicant was also assessed using the STABLE-2007 instrument on 10 September 2021. He remained in the category of High Level of criminogenic needs. However, his score had reduced, and he was one point above the threshold for the Moderate Risk category.
Mr Ardasinski assessed the applicant using the STATIC-2002R protocol on 18 October 2021. The applicant's score was 7, which fell within the highest risk category. That score aligns with the risk category of Level IVb Well Above Average risk on the STATIC-99R. Combining the STABLE-2007 and the STATIC-2002R placed the applicant in the highest category risk, being again Level IVb Well Above Average risk.
Mr Ardasinski identified the following dynamic factors which were relevant to the applicant's risk of reoffending: • Substance abuse • Relationships and unhealthy peer associations • Possible deviant sexual interest • Impulsivity and poor capacity to plan • Poor stress coping and cultural disconnection • Poor work ethic and self-esteem issues • Compliance with supervision • Lack of community support and suitable accommodation
Significantly, when dealing with "possible deviant sexual interest". Mr Ardasinski said: The court-appointed experts in Mr King's ESO proceedings both indicated that Mr King would meet the diagnostic criteria for paedophilia, by virtue of his sexual offending. While this was accepted by the Court, I respectfully disagree with this diagnosis. I no longer ascribe to the view that Mr King holds an entrenched deviant sexual interest in children. Given his sexual activities with consenting, peer-aged females over the course of his ESO and the lack of all other evidence to the contrary, I do not believe that sexual deviance (a well-known risk factor for sexual reoffending) is a relevant factor in Mr King's risk profile. As mentioned above, however, a high sex drive, use of sex as a coping mechanism and a sense of sexual entitlement are all relevant to the issue of risk, and these do appear to remain relevant for Mr King even up to the present day. Sexual self-regulation deficits are linked to sexual recidivism, almost as strongly as sexual deviance.
Mr Ardasinski noted that over the course of the ESO, the applicant had associated with peers who condoned substance use, and with some of whom he had engaged in casual sex. He noted that the applicant obtained and maintained employment and some short-term jobs. He said that the applicant had not demonstrated being intoxicated in a low-density housing area with opportunity to break in late at night, a risk scenario identified by Mr Ardasinski in his earlier RAR. Mr Ardasinski said that he did not believe the applicant was of a mind to commit break and enter offences at his present age. However, if the applicant was to return to his home town and engage in substance use, there would be a question whether he might be tempted to revert to such criminality after all of the years that had passed since he had engaged in that type of offending.
Mr Ardasinski considered that there might be a rehabilitative benefit to removing some of the more onerous conditions of his ESO which have limited the applicant's capacity to reintegrate. These would include moving him to stage 3 of electronic monitoring with no schedules, and providing support for him to relocate to the Maclean area, which had been a desire of the applicant over a number of years.
Mr Ardasinski concluded: Should Mr King not be approved to reside permanently with this parents in Maclean, consideration should be given to an amendment to the abstinence conditions on Mr King's ESO which creates an alternate pathway (alternate to charging him for a new offence each time) in the event that Mr King is again found to have abused illicit drugs. Introducing a 'warning' mechanism may provide some rehabilitative benefit.

Course of the proceedings

The present application has had a somewhat chequered history. It was set down for hearing on 17 November 2021 by Bellew J on 27 July 2021. On 17 November 2021 Dr Hughes of counsel for the applicant sought an adjournment. The basis was this. The applicant had for some time been requesting that he be permitted to move to Maclean where his family lived and from where he came. The State was agreeable to the applicant moving to live in the Maclean area, subject to certain conditions. Enquiries were being made as to the suitability of this move, but those enquiries had not concluded. The applicant submitted that if things worked out in that regard, the application would not proceed. The adjournment was not opposed. The application was thereafter fixed for hearing on 26 April 2022.
In the meantime, arrangements were made for the applicant to have two visits to Maclean where he was able to see his family.
At the hearing on 26 April 2022, where Mr Wilcox of counsel appeared for the applicant, it was made clear that it had not been possible to find the applicant accommodation in the Maclean area because of the shortage of rental properties, partly due to recent serious flooding in that area. Although this was not said to be the fault of the State, the applicant pursued his application for a revocation of the ESO on the basis that his continued supervision was incapable of achieving the purpose of the orders.

Submissions

Mr Wilcox submitted that the most significant change of circumstance was that the RAR by Mr Ardasinski in October 2021 no longer agreed with the diagnosis of paedophilia arrived at by Drs Ellis and O'Dea in their reports. Mr Wilcox submitted that, as Mr Ardasinski had noted, although the applicant had consumed illicit drugs on a number of occasions, no sexual offences had been committed. In that regard, Mr Wilcox drew attention to s 9(3)(e2) of the CHRO Act to submit that the fact, that the applicant's repeated drug infractions meant that he was not complying with the ESO, was a matter to be weighed when considering whether the ESO should remain in place.
Mr Wilcox submitted that the central issue was the defendant's desire to return to the Clarence Valley area.
In earlier written submissions on behalf of the applicant prepared for the hearing in November 2021, there were said to be a number of problems with the way applicant's ESO had been administered and supervised. It was submitted that the ESO Team had adopted a punitive approach, that it had focused on breaching the applicant for drug use, and focused on increased testing. The submissions were critical of the ESO Team for not focusing attention on actively addressing the factors precipitating the applicant's substance abuse, nor supporting him to access relevant therapeutic programs. The submissions were also critical about the failure to arrange residential rehabilitation in respect of his drug and alcohol issues. Complaint was made that, when the applicant left Oolong House in November 2020, he was never referred to other support services, nor was his request to move home to the Maclean area considered by the ESO Team.
The submissions were critical of the ESO Team's attitude to the management of the applicant's mental health. The submissions drew attention to what was said by a clinical nurse consultant with Justice Health NSW, Susan Hebblewhite, in a report of 20 August 2020, that the applicant had never had a formal neuropsychological assessment to establish cognitive impairment. Ms Hebblewhite also said it was unclear why the applicant had not been considered for referral to a residential program.
The submissions were also critical of the fact that the applicant was required to remain at COSP or ISC accommodation, despite his reluctance to do so because of the prevalence of drug use at those locations. The submissions pointed to the beneficial period that the applicant spent in accommodation with his parents in Punchbowl between January and May 2018. That was said to be an indication that the applicant's family were a protective influence on him.
The submissions drew attention to what was said to be the lack of culturally appropriate support for the applicant, particularly because he is required to remain in Sydney, away from his family and country in the Maclean area.
It was submitted that, even accepting that the CHRO Act has the protection of the community as its dominant purpose, the way in which the ESO has been administered, favouring control over support, has been detrimental to the applicant's re-engagement in the community and, accordingly, to the protection of the community over the longer term.
The written submissions were critical of the failure to exercise a discretion not to prosecute whenever there was a breach, particularly in relation to the applicant's drug use. However, Mr Wilcox quite properly accepted that whether or not the applicant was prosecuted for breaches was generally in the discretion of the police and not the ESO team.
Mr Wilcox said that the applicant was not necessarily criticising those supervising the applicant. It was not clear, therefore, to what extent the earlier written submissions, prepared by other counsel, were no longer put forward as part of the applicant's case. Mr Wilcox said when asked about this: Yes, I note the submissions made in chief by the applicant and several of these were debunked due to, to use that word, in the plaintiff's initial submissions, so where those are addressed in my learned friend's written submissions, I don't press the defendant's submissions any further in those respects.
Since all of the applicant's initial submissions were answered by the State in its submissions, it remained unclear what of the applicant's earlier submissions were not pressed.
Mr Wilcox drew attention to what was said by Hamill J in State of New South Wales v Carr [2020] NSWSC 643 at [29] as being relevant to the present applicant: Some of the reports suggest that the impact of the order and the way it is being enforced may be counterproductive to Mr Carr's rehabilitation. I am quite sure that it has been. Mr Wilcox submitted that in relation to the applicant's repeated drug use, the impact of the order had not been rehabilitative of the applicant.
For all of those reasons, Mr Wilcox submitted that the circumstances had changed sufficiently from 2015, that the ESO was no longer necessary and that it ought to be revoked. Mr Wilcox submitted, in the alternative, that if the ESO was not to be revoked, the applicant welcomed the variations that the State had suggested.
The State submitted that circumstances had not changed sufficiently as to render the ESO unnecessary or inappropriate. However, the State accepted that variation of some of the conditions of the ESO was appropriate in the circumstances. In that regard, the State provided a table of variations to the conditions imposed by RA Hulme J when making the ESO.

Legal principles

The principles that guide a decision in respect of applications under s 13 of the CHRO Act were well summarised by Lonergan J in State of New South Wales v Banks (Preliminary) [2021] NSWSC 1246 at [13]: [13] Authorities of this Court that considered the application of s 13 of the Act in different contexts to those prevailing here were set out in Mr Harris's written submissions: [33] The Court may at any time vary or revoke an ESO or ISO on the application of the State or offender: s 13(1). The power to vary includes variation of the term of an order. However, the period of an order must not be varied so that the period is greater than that otherwise permitted under Part 2: s 13(1A). That period must not exceed 5 years from the day the order commences, plus periods during which the order is suspended: s 10(1A). Alternatively, it is open to the State to bring a new application for a further ESO: s 10(3). [34] The power in s 13 has been exercised to revoke orders, where a defendant no longer presents an unacceptable risk: see State of NSW v Myers [2018] NSWSC 1789; State of NSW v Schmidt (Preliminary) [2019] NSWSC 52; State of NSW v Carr [2020] NSWSC 643. [35] In Schmidt, Walton J held that, where an application is brought to revoke an ESO (or where a variation is in substance an application to revoke), the exercise of discretion is conditional on satisfying the Court that the circumstances have changed sufficiently to render the order unnecessary (cf. s 13(1B), at [22]). That question requires consideration of the reasons for judgment given when imposing the original order (at [27]). [36] The Court has observed that the power in s 13(1) may be exercised to vary an existing order by extending the term of the order: see State of NSW v Brooker [2014] NSWSC 1349 at [35]; State of NSW v Sines (No 3) [2017] NSWSC 985 at [72]; State of NSW v Conway [2011] NSWSC 925 at [28]. In the present case, Rothman J referred to the fact that the Department would be in a better position to assess any ongoing need for supervision, and the conditions, at the end of a 3-year order: State of NSW v Banks [2016] NSWSC 926 at [66]. However, it does not appear that power in s 13(1) has ever been exercised to extend the term of an ESO. [37] The power in s. 13 has also been exercised to vary or add conditions: see State of NSW v Bowdidge [2019] NSWSC 85; State of NSW v Kay [2018] NSWSC 1235; State of NSW v Mills [2019] NSWSC 298. [38] In Kay, Wilson J varied an existing ESO, which the defendant had breached, by imposing additional conditions. Her Honour held (at [66]) that the discretion conferred by s. 13(1) is "unfettered, subject to the objects and provisions of the Act". [39] In Mills, Campbell J considered an application to vary an ESO that had been made by Rothman J to add further conditions, including conditions which Rothman J had rejected. Campbell J held that, while an ESO may be renewed or extended under s 10(5), or varied or revoked under s 13, an ESO is a final order for the purpose of the res judicata doctrine. For this reason, his Honour held (at [30]): The Court would not be empowered to come to a contrary conclusion on the basis of the same evidence and arguments that were presented to Rothman J. Section 13 does not permit forum shopping. Rather, reading s 13 as a whole in its full statutory context I am of the view, … [that] the power to revisit the finding made by Rothman J for the purpose of considering whether the order he pronounced should be varied depends upon the demonstration of a material change in circumstances since the original order was made. And it is necessary for the State to prove to the statutory standard of a high degree of probability, that on the whole of the evidence currently available, including the relevant changed circumstance, the offender now presents an unacceptable risk of committing a serious sex offence if not kept under supervision.' [40] The latter requirement, to prove "unacceptable risk", was found in Mills in circumstances where the original ESO had been based on an unacceptable risk of serious violent offending, whereas the State asserted that there now existed an unacceptable risk of serious sexual offending (at [7]). Nonetheless, it is submitted that any variation must be demonstrated to be an appropriate exercise of discretion, in light of the provisions of the Act, including its objects, the test of unacceptable risk, and the other requirements contained in Part 1A and 2. [41] Accordingly, an application to vary an existing ESO requires the State to demonstrate: (a) first, a material change in circumstances, and (b) second, that the variation is an appropriate exercise of discretion, considering the requirements the Act.

Standard of proof

A preliminary question, not considered in Banks or the other authorities, is the question of onus of proof. The parties accepted that the applicant has the obligation to persuade the Court that circumstances have changed sufficiently to render the order unnecessary: State of New South Wales v Boatswain [2014] NSWSC 1446 at [113]. The more difficult question is, to what standard must that be proved.
The State submitted in the present case that a combination of s 21 of the CHRO Act and s 140 of the Evidence Act 1995 (NSW) means that the applicant need only establish the sufficient change of circumstances on the balance of probabilities.
Section 21 of the CHRO Act provides: 21 Nature of proceedings Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.
Section 140 of the Evidence Act provides: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
In State of New South Wales v Schmidt (Preliminary) the issue was raised, with the State submitting that the applicant bore that onus to the civil standard (in reliance on s 21 of the CHRO Act and s 140 of the Evidence Act), and that the Court must be satisfied to a "high degree before determining to revoke". In the result, Walton J did not have to determine the standard of proof because his Honour (at [31]) was not satisfied (presumably on the balance of probabilities) that circumstances had changed sufficiently.
In State of New South Wales v Mills [2019] NSWSC 298, the defendant had been made subject to an ESO as a high risk violent offender, prior to the enactment of the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) which effectively aligned serious offenders, where previously they were dealt with either as serious violence offenders or serious sex offenders. Subsequently, and after the Amendment Act came into force, the State made application under s 13 of the CHRO Act to have extra conditions added to the ESO, on the basis that the defendant posed an unacceptable risk of committing a serious ex offence. Unsurprisingly, Campbell J said at [8]: Given the essential inter-relationship between the identification of the risk and the imposition of appropriate conditions under s 11, the State accepts that it needs to establish to the statutory high degree of probability that the defendant does pose an unacceptable risk of committing a serious sex offence if not kept under supervision.
Sections 5B, 5C and 5D of the CHRO Act can all be considered to be provisions that fall within the "to the extent" clause in s 21. Section 13 is silent on the issue of standard of proof. However, in my opinion, there must be implied into s 13 a requirement that means that any order made under that section does not have the effect of weakening the requirement contained in s 5B or s 5C. It would be entirely unsatisfactory if an applicant could show on the balance of probabilities that an ESO should be revoked because circumstances had changed, where the State would be required to establish to a high degree of probability that an ESO should be imposed (or maintained) in those same changed circumstances.
If an applicant demonstrated on the balance of probabilities that circumstances had sufficiently changed, the Court's power under s 13(1) would be enlivened. However, it is a power that may, not must, be exercised. At least, the Court would need to consider at the discretionary stage whether the Court remained satisfied to a high degree of probability that the applicant still posed an unacceptable risk. The interplay of ss 5B and 5D means that the State does not need to establish that matter on the balance of probabilities ("more likely than not").
The Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 made reference to the interplay between what was then s 5E(2) and (3), now ss 5B and 5C (on the one hand) and s 5D (on the other). Justice Beazley (with whom Gleeson JA agreed) said: [28] Before the primary judge, the appellant argued that there was a tension between the provisions of subs 5E(2) and (3). That tension was said to arise from: "… the requirement in subs (2) of satisfaction to a high degree of probability that an offender poses an unacceptable risk of committing a serious violence offence, on the one hand, and the provision in subs (3) that there need not be a determination that the risk be more likely than not, on the other": at [67] [29] The primary judge, at [68], rejected that argument, stating: "Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence." [30] His Honour, referring to the observation of R A Hulme J in New South Wales v Thomas (Preliminary) [2011] NSWSC 118, at [16], that a risk "may be less likely than not but still be an unacceptable risk", continued, at [68]: "What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind."
Similarly, Basten JA said: [142] When the primary judge came to articulate his own approach, he did so in the context of a submission that there was a tension between the requirement of subs 5E(2) and subs 5E(3). The primary judge correctly rejected the submission, which failed to distinguish between the high degree of satisfaction required of the Court and the characterisation of the risk. He continued: "[68]…In my view, the relationship between the two subsections is explained by the authorities to which Davies J referred in Richardson, particularly in the passage from the judgment of RA Hulme J in Thomas at [15]-[20] set out above. Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence. As RA Hulme J put it, that risk may be less than likely but still be unacceptable. What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind."
If at the discretionary stage of the s 13 application the Court considers whether the applicant continues to pose an unacceptable risk, it must be so satisfied to a high degree of probability, even if it does not consider that the risk is more likely than not to eventuate. In that way, from a practical point of view, an applicant seeking to revoke an order under s 13 will have to persuade the Court that, because of the change of circumstances, the Court cannot be satisfied to a high degree of probability that the applicant continues to pose an unacceptable risk. That is the work "sufficiently" has to do.
On that basis, mere proof on the balance of probabilities that circumstances have changed to render the order unnecessary will not be enough. To show they have changed "sufficiently to render the order unnecessary" assumes the standard of proof in ss 5B and 5C.
Section 140 of the Evidence Act is not transgressed, because the requirement of proof by the applicant to that extent derives from ss 5B and 5C. In any event, the CHRO Act was not enacted for some 11 years after the Evidence Act. Even without s 21 of the CHRO Act, provisions such as ss 5B and 5C would effectively modify s 140 of the Evidence Act.
Notwithstanding the foregoing, the position of the standard of proof for s 13 applications would benefit from legislative clarification.

Change of circumstances

In his report to the Court in 2015 Dr O'Dea said this in relation to the applicant's ongoing risk of offending: 70. I note that Mr King has not reported awareness of a specific or strong sexual interest in female children, and was reportedly severely intoxicated at the time of the index offence. Whilst the index offence may at least in part be understood in the context of disinhibition whilst intoxicated, and as opportunistic as part of a robbery of a house to get car keys to drive home, on the basis of the sexual component of the index offence being against a female child, and 2 previous sets of offences of a potentially similar manner involving female children, it would seem reasonable to assume at least the potential for Mr King to have a specific and/or strong sexual attraction to female children, that should be further explored and actively managed in the community in the long term. 71. Whilst abstinence from alcohol, cannabis and other illicit substances would be a crucial component of any psychiatric risk management program in the community in the long term, focus on Mr King's overall sexuality in general, and his specific sex offending; behaviours in particular, including any paedophilic component of his sexuality, would seem a central component of this risk management program in the community in the long term. … 73. Whilst Mr King has repeatedly reported contrition and remorse for his actions in relation to the index offences, he did not convey to me a clear, consistent and convincing commitment to addressing the required treatment initiatives in an insightful and compliant manner that would satisfy me that his attitude to his offending behaviour would in and of itself be significantly effective in assisting his to manage his risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006. However, a specific aim of successful implementation of the proposed psychiatric risk management program, in conjunction with further maturing by Mr King, would be to improve this attitude. 74. Whilst Mr King has been convicted of one serious sex offence as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, on the basis of his history of repeated offending, including at least 2 prior sets of offences of a potentially similar nature, his history of substance use disorder yet to be assuredly under control, his personality, and his progress in custody and on parole in the community, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, with this risk the appropriate focus of specific and structured risk management, including psychiatric treatment and risk management, in the community in the long term. 75. As above, it would appear crucial that Mr King remain abstinent from alcohol, cannabis and other illicit drug use in the community in the long term in order to manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006. … 78. Indeed, if Mr King were to continue to use alcohol or illicit psychoactive substances in the community, then his risk of engaging in further sex offending behaviours in the community, at least in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, may be considered to be unacceptably high. … 87. More specifically, it would seem reasonable to consider that there would be a significantly high degree of probability that Mr King would be likely to commit a further "serious sex offence" (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if these above outlined treatment interventions above, and in particular abstinence from alcohol and illicit drug use were not successfully implemented in the context of community supervision and monitoring. Whilst it is not possible, or clinically appropriate from a psychiatric perspective, to place a percentage likelihood of Mr King committing a further "serious sex offence", the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in "Tillman v Attorney General for New South Wales [2007] NSWCA 327".
In his report to the Court in 2015, Dr Andrew Ellis said: Substance use is prominent in this case with dependent levels of consumption of at least three different substances. He reports being intoxicated for the offences. Substance use may serve to disinhibit underlying deviant sexual arousal. The offences are not consistent with intoxication alone due to the similarity across time and for the index offence the level of sexual arousal displayed. A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr. King, given the particular pattern of sexual arousal, the likely type of victim would be a female in a situation where they were alone or in a position of vulnerability. A likely offence would be without warning. The associated intimidation and loss of a sense of bodily integrity would be of the type where serious psychological injury is foreseeable. He was displaying a pattern of escalating behaviour which may have led to more risk of physical injury. In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr. King would fall into a group of persons with a risk of serious sexual offending that is statistically high in frequency and of a type with serious consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce the risk. … From a psychiatric perspective a period of five years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid psychiatric conditions of personality and substance use impact upon the likely treatment and supervision response. It is most likely that a period of 24 months will be required to secure stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. A further 36 months of regular treatment in a psychological program, coupled with regular review of medication, such as antidepressants, anticraving medication and antilibidinals should they be prescribed would be necessary. The psychological program should focus on methods for controlling deviant sexual arousal. This period is estimated based on his current mental state, paraphilia, personality disorder and current attitudes to supervision that will be unlikely to change in the short term.
Events since the making of the ESO disclose a number of matters of some significance in terms of the applicant's risk of further serious sexual offending. First, his substance use disorder is not under control. He has been convicted a large number of times for using methylamphetamine, and there is strong evidence to suggest that in the intervening period the applicant has not always been honest with the DSO and others on the team in relation to his consumption of illicit drugs. Further, although it had been put on the applicant's behalf in submissions made in 2021, that the support of his family was likely to be of assistance in helping him to remain abstinent from drugs, a drug test on his return from Maclean in early February 2022 disclosed his use of methylamphetamine again.
In his judgment, RA Hulme J said: [7] As an adult, the defendant's criminal history continued unabated with convictions for similar types of offences. There are a number of drug possession offences and it seems clear that substance abuse was an underlying factor in relation to much of the offending. … [17] Generally as to the defendant's criminal history I accept the submission of counsel for the State that it indicates "an ongoing and entrenched pattern of poor self-regulation and ongoing substance abuse."
Dr O'Dea considered that abstinence from illicit substances was a crucial component of any psychiatric risk management program in the long-term.
This issue is made worse by the fact that when, after many attempts were made to have the applicant admitted to residential rehabilitation and he was finally accepted by Oolong House, the evidence suggests that he deliberately sabotaged his stay there by repeatedly breaking the rules of that institution. He had indicated when he first went to that place that he did not wish to stay there. He was finally discharged from Oolong House after only about seven weeks. He has continued to use methylamphetamine, with the latest known instance in early February 2022 at or immediately after the time he was permitted to travel to the Maclean area to see his family.
Associated with the drug taking is the fact that the applicant appears to have limited insight into his drug and alcohol issues. In case notes made between November 2021 and April 2022, the applicant said that he had no need of drug and alcohol counselling, that there was no hurry for it, and that he would simply not "use".
Secondly, his approach to his sexual behaviour has been problematic. One indication of this was his relationship with a Christine McIntosh in May 2018. The applicant had disclosed to the ESO Team that he was having a sexual relationship with Ms McIntosh, and that she stayed overnight in contravention of the terms of his ESO. This occurred whilst he was living with his parents in a property at Punchbowl.
Subsequent checks revealed that Ms McIntosh had convictions for drug- related offences and violent offences, had a significant history of using drugs and alcohol, and had a prior relationship with a child sex offender. On that basis, it was concluded that she was not a pro-social associate for the applicant. The DSO advised the applicant that he only had approval to meet her in public places, and that he did not have permission to continue his sexual relationship with her or to have her attend his residence. The applicant was insistent on having a sexual relationship with her.
The applicant subsequently disclosed that he had engaged in sexual intercourse with Ms McIntosh in public toilets at a shopping centre in Bankstown, a few weeks before the disclosure on 28 March 2018. The applicant was given both an oral and a written direction to cease all contact with Ms McIntosh. On 6 May 2018, after Ms McIntosh disclosed that she was still in contact with the applicant, a search of the applicant's phone revealed that he continued to have contact with her. Her details were saved in his phone under a different name.
There was evidence that the applicant had engaged in casual sexual relationships with two other women apart from Ms McIntosh, and in respect of one (in addition to Ms McIntosh), the applicant was given written directions not to associate.
In May 2018 one of the breach offences for which the applicant was convicted and sentenced was accessing pornography, including a site named "Freeteenagegirlsexclips". The State drew attention to that matter to respond to the submission on behalf of the applicant that he had not endeavoured to have any contact with children. I accept the State's submission that there is strong likelihood that the conditions of the ESO, including electronic monitoring and restrictions in accessing certain types of locations, are likely to have been the reason for the applicant's lack of endeavour in that regard. However, the accessing of the teenage girls porn site is support for the opinion of Dr Ellis that the applicant's paraphilic disorder, namely paedophilia, is a chronic relapsing condition.
I have had regard to what Mr Ardasinski has said, particularly with his disagreement that the applicant continues to suffer from paedophilia. However, to the extent that this opinion differs from that of Dr Ellis (and on the assumption that Dr Ellis would at the present time be of the same opinion as in 2015), I do not think that this is a sufficient indication that there has been a sufficient change of circumstances. Mr Ardasinski does not comment on the applicant's accessing of the teenage girls porn site. In any event, as noted above at [35], Mr Ardasinski, having expressed his disagreement with Dr Ellis and Dr O'Dea, went on to say: [H]owever a high sex drive, use of sex as a coping mechanism and a sense of sexual entitlement are all relevant to the issue of risk, and these do appear to remain relevant for Mr King even up to the present day. Sexual self-regulation deficits are linked to sexual recidivism, almost as strongly as sexual deviance.
The risk that was found in relation to the applicant was of committing a further serious sex offence; it was not confined to one involving underage people, although it is accepted that it was such an offence, and two other incidents, that focused attention on that particular type of offending. It is apparent from Mr Ardasinski's RAR of 22 October 2021 that the applicant still falls within the well above average risk of offending, and that the dynamic factors also identified by Mr Ardasinski, both in 2014 and 2021, relevant to the applicant's risk of sexual reoffending, remain largely operative.
Thirdly, there is the lack of stability, particularly in relation to accommodation, in the applicant's life since the imposition of the ESO. It will be observed that one of the reasons given by Dr Ellis for a five-year order was that the applicant needed a period of 24 months to secure stable, independent accommodation, and maintain a stable mental state and regular meaningful activity both occupational and social in the community. That has not happened. One obvious reason for that is because of the number of times the applicant has been returned to custody for non-compliance with the ESO.
Fourthly, it appears that the applicant has only been diagnosed with schizophrenia in 2020. That is a significant development since the ESO was put in place. That diagnosis seems to have been affirmed in a recent assessment of the applicant by Dr Sue Morgans on 30 March 2021, despite the applicant's denials of psychotic symptoms. In any event, the assessment disclosed the applicant's reluctance to take the medication that was recommended for his mental health conditions. The notes taken by Dr Morgans tend to disclose that the applicant has limited insight into some of the matters identified by Mr Ardasinski as the dynamic factors affecting his criminogenic needs. Dr Morgans noted: Risk assessment: Re sexual offending, very important that he is treated … Not acutely psychotic at present, but considering the continued condition, treatment = important
When Dr Morgans offered the applicant the drugs which she recommended, he refused two of them and demanded on two occasions, "give me fucking Avanzas". Ultimately, Dr Morgans noted that the applicant had to be escorted from her room because of his intimidating behaviour.
Section 3(2) of the CHRO Act provides that another object of the Act is to encourage high risk offenders to undertake rehabilitation. A second aspect of the applicant's submissions was, in effect, that maintaining the ESO, particularly with its present conditions, was inimical to his rehabilitation. That was particularly because he was prosecuted for breaches, with the result that he was returned to custody on a number of occasions, and was thereby prevented from moving to the stability and regularity that was considered important, as Dr Ellis made clear.
I accept that an offender's rehabilitation is important, not least for the reason that it will reduce the risk that the CHRO Act is concerned about. However, the primary object of the CHRO Act is to ensure the safety and protection of the community. The Court could only reach the view that circumstances have changed sufficiently to render the order unnecessary if it was no longer satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. In most, but possibly not all, cases, the Act's object of the rehabilitation of offenders will best be dealt with by a variation of the conditions imposed, where it cannot otherwise be found that the offender no longer poses the risk in the way s 5B(d) provides.
The applicant, in substance, points to two circumstances that have changed. The first is the opinion of Mr Ardasinski concerning the applicant's paedophilia, a view that differs from that of Dr Ellis. In my opinion, there is some doubt about this matter. Dr Ellis's view is that paedophilia is a chronic relapsing condition, and the applicant's accessing of the teenage girls porn site, an incident not discussed by Mr Ardasinski, is some evidence to support Dr Ellis's opinion.
The second circumstance is that, despite the unresolved issues of drug taking and sexual regulation, there has been no evidence of further offending. While that is true, at least part of the reason for that must be that the applicant has been subject to the ESO. However, even if that is put to one side, the evidence has remained consistent since 2014 by all of the experts, Mr Ardasinski included, that whilstever the applicant's consumption of illicit drugs continues and his lack of sexual regulation is unresolved, the applicant remains at too high a level of risk of committing a further serious sex offence.
For these reasons, I cannot be satisfied that circumstances have changed sufficiently to render the order itself unnecessary. That is because I am still satisfied to a high degree of probability that the applicant poses an unacceptable risk of committing another serious sex offence if not kept under supervision under the order. This is not one of the rare cases where I can accept that the rehabilitation that will be achieved for the applicant in the short term by revoking the order, will mean that he will not pose the unacceptable risk by doing so.
A number of the matters raised in the written submissions filed on behalf of the applicant tended simply to be criticisms of the way that the ESO was being administered by the ESO Team. The written submissions also failed to take account of the fact that it is the police and not the ESO Team that generally makes decisions about whether prosecution should occur for breach of conditions. As I noted earlier, it was not clear if Mr Wilcox was adopting all that had been said in those written submissions prepared by other counsel, because the focus of Mr Wilcox's submissions was otherwise, as I have set out.
Generally speaking, an application under s 13 should not be regarded as the opportunity to criticise the administration of the ESO, because that is not a matter with which the Court is concerned, unless it can provide a justification for varying the conditions. A number of the complaints in those submissions could not be seen as providing support for the variation of conditions. The State's submissions provide detailed and lengthy responses to those criticisms, but it is not necessary to deal with those matters further. It should not be taken, by my recording of those submissions on behalf of the applicant, that I accept their basis.

Conditions

The State accepts that by reason of the length of time the applicant has been subjected to the ESO, albeit close to half of that time has been spent by him in custody, it is appropriate to vary some of the conditions attached to the ESO. This also has regard to what Mr Ardasinski has said about the applicant likely receiving some benefit if he was permitted to live with his family in the Maclean area.
The State did not file a notice of motion seeking to vary the conditions. Nor did the applicant's notice of motion giving rise to this judgment seek other than a revocation of the ESO. Nevertheless, I have regarded the submissions made by the State as an oral application to vary the conditions.
Section 13 of the CHRO Act does not require that there be a change of circumstances before an order can be varied, for example, by the changing of conditions. I referred earlier at [4] to the fact that Wilson J said in Kay that the discretion is unfettered, subject to the objects and provisions of the Act. However, as noted earlier, it would be a rare case that conditions would be changed without some change of circumstance.
As I also noted earlier, there have been some changes in circumstances since the ESO was put in place. Although those circumstances were not such as to justify the revocation of the ESO, I am satisfied that those changes, taken together with the time the applicant has been subject to the ESO, make it appropriate to vary the conditions in the way the State has put forward. Those proposed variations are accepted by the applicant.
The conditions as varied are annexed to this judgment. The varied conditions are highlighted and underlined.

Conclusion

Accordingly, I make the following orders:
I dismiss the defendant's notice of motion filed 23 July 2021.
On the oral application of the plaintiff, I vary the conditions attached to the Extended Supervision Order made by RA Hulme J on 17 February 2015.
Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the remaining period of the extended supervision order, comply with the conditions set out in the Schedule annexed to this judgment. EXTENDED SUPERVISION ORDER CONDITIONS APPLICABLE TO RONALD DEAN KING OVERSIGHT For the purpose of these conditions, the Departmental supervising officer is the officer of Corrective Services NSW allocated to manage and supervise the defendant pursuant to this order. The Departmental supervising officer may change from time to time. The Department is the Department of Communities & Justice ("the Department"). Corrective Services NSW is a division of the Department. For the purpose of these conditions, a serious offence is a serious sex offence. For the purpose of these conditions, the Variation Date is the date on which this order is varied. The conditions are divided into the following parts: Part A. Reporting and monitoring obligations Electronic monitoring Schedule of movements Part B. Accommodation Part C. Place and travel restrictions Part D. Employment, finance and education Employment & finance Education Part E. Non associations Non-associations generally Relationship Children Club affiliations Part F. Access to the Internet Internet use Social networking services Part G. Access to Pornographic, Violent and Classified Material Part H. Access to Weapons Part I. Alcohol and drugs Part J. Gambling Part K. Search and Seizure Search of computer Part L. Personal details and appearance Part M. Medical intervention & treatment obligations Medical intervention Other treatment Part N. Disclosure of information Medical and psychological information Telecommunication and internet service provider Vehicle details Forms of identification Part A. Reporting and monitoring obligations 1. The defendant must accept the supervision of Corrective Services NSW. 2. The defendant must report to the Departmental supervising officer or to another person nominated by the Departmental supervising officer at such times and places as the Departmental supervising officer or nominee may from time to time direct. 3. The defendant must comply with any reasonable direction given by the Departmental supervising officer or any officer of Corrective Services NSW who may from time to time supervise the defendant. 4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. NOTE: The manner in which these conditions are implemented by the Departmental supervising officer (or any officer of Corrective Services NSW who may from time to time supervise the defendant) may be adjusted based on ongoing assessment of the defendant's risk. This may include the frequency at which a condition is enforced, approvals given to the defendant, prohibitions imposed and the third parties to be contacted. Electronic monitoring 5. The defendant must wear electronic monitoring equipment if directed by the Departmental supervising officer. 6. The defendant must comply with all instructions given by the Departmental supervising officer or any officer of Corrective Services NSW in relation to the operation of electronic monitoring equipment. 7. Whilst subject to electronic monitoring, the defendant must not tamper with, remove, or interfere with the operation of such equipment. Schedule of movements 8. If directed by the Departmental supervising officer, the defendant must If, following the Variation Date, the defendant is charged with or convicted of an offence of failing to comply with a condition of this order, or is issued with a formal warning in writing by the Departmental supervising officer or any officer of Corrective Services NSW for failing to comply with a condition of this order, the Departmental supervising officer may direct the defendant to inform the Departmental supervising officer of his movements in advance: a. either orally or in writing; b. for a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental supervising officer; and c. at least 3 days prior to the commencement of the schedule period. 9. The defendant must notify the Departmental supervising officer of any change to the schedule at least 24 hours in advance, unless a shorter period is approved by the Departmental supervising officer. 10. Condition 9 above does not apply in an emergency and the defendant is unable to notify the Departmental supervising officer, including if the defendant requires urgent medical attention. 11. The defendant must truthfully answer to the best of his knowledge and ability to all questions by the Departmental supervising officer, or any officer of Corrective Services NSW about the defendant's whereabouts and movements generally. Part B. Accommodation 1. The defendant must reside at an address approved by the Departmental supervising officer. NOTE: The defendant must be permitted to reside in the Clarence Valley local government area ("Clarence Valley LGA") unless, following the Variation Date: a) he is charged with or convicted of an offence of failing to comply with a condition of this order; b) the Departmental supervising officer reasonably believes that residing in the Clarence Valley LGA may be associated, whether directly or indirectly, with an increase in the risk of the defendant committing a serious offence; or c) no accommodation is available, or has been assessed as suitable for the defendant by Corrective Services NSW, in the Clarence Valley LGA. 2. If the defendant resides at a residential facility, the defendant must obey all reasonable instructions given by the residential facility staff that are necessary to ensure the good order of the residential facility or the safety and welfare of residents, staff or visitors to the facility. 3. If directed by the Departmental supervising officer, the defendant must not permit any person over the age of 18 years to enter and remain, or to stay overnight, at the defendant's approved address without informing the Departmental supervising officer at least 24 hours beforehand. The defendant must not permit any person under the age of 18 years to enter and remain, or to stay overnight, at the defendant's approved address without the prior approval of the Departmental supervising officer. 4. The defendant must not stay overnight at any place other than his approved address without prior approval of the Departmental supervising officer. 5. The defendant must permit the Departmental supervising officer or any officer of Corrective Services who may from time to time supervise the defendant, to visit the defendant at the defendant's approved address at any time and, for that purpose, to enter the premises at that address. 6. If directed by the Departmental supervising officer, the defendant must be at his approved address between 9pm and 6am (or such other hours as may be specified by the Departmental supervising officer) unless the defendant's presence at another place during those hours has been approved by the Departmental supervising officer. Part C. Place and travel restrictions 1. The defendant must not go to any place or areas nominated by the Departmental supervising officer. NOTE: If the defendant is not residing in the Clarence Valley LGA, the defendant must be permitted to visit the Clarence Valley LGA for a period of up to three days (or longer at the Departmental supervising officer's discretion), unless the defendant fails to provide his Departmental supervising officer with at least seven days' notice of the proposed visit and/or the Departmental supervising officer reasonably believes that visiting the Clarence Valley LGA may be associated, whether directly or indirectly, with an increase in the risk of the defendant committing a serious offence. 2. The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate. 3. The defendant must surrender any passports held by the defendant to the Commissioner. 4. Without limiting condition 1 above, the defendant must not: a. Go to any of the following places: i. schools, pre-schools and day care centres; ii. amusement parlours, amusement parks and theme parks; iii. cinemas; iv. concerts, theatre shows and movies intended for the entertainment of children; v. camping groups and caravan parks; vi. children's play equipment, children's playgrounds, parks and playing fields; or unless the defendant: b. has prior written permission of the Departmental supervising officer; and c. if directed is with an appropriate adult who has been approved in writing by the Departmental supervising officer for the purpose of this condition. 5. The defendant must not attend any brothels, disorderly houses (as declared under Part 2 of the Restricted Premises Act 1943), adult bookstores, sex shops, topless bars, strip parlours, massage parlours, adult theatres or any place where sexually explicit material or entertainment is available. 6. The defendant must not enter any licensed premises except for restaurants, cafes, cinemas and theatres without notifying his Departmental supervising officer at least 24 hours beforehand, and is not permitted to drink alcohol without the prior approval of the Departmental supervising officer. 7. The defendant must comply with any direction made by the Departmental supervising officer regarding the possession, storage and use of vehicle. 8. The defendant must keep a driving log if directed by the Departmental supervising officer. 9. The defendant must not hitchhike or pick up anyone who is hitchhiking. Part D. Employment, finance and education 1. If the defendant is unemployed, the defendant must enter available employment if and as directed by the Departmental supervising officer or make himself available for employment, education, training or participation in a personal development program as directed by the Departmental supervising officer. Employment & finance 2. The defendant must not engage in employment activities except with the prior approval of the Departmental supervising officer. Employment activities are: a. paid or unpaid employment (including self employment); b. volunteer work; c. practical training as part of an educational or vocational course; or d. operate or carry on any business, including any steps preparatory to the operation of a business. NOTE: Subject to the note to Condition 4 below, approval will only be withheld if the Departmental supervising officer considers that the employment activities may be associated, whether directly or indirectly, with an increase in the risk of the defendant committing a serious offence. 3. The defendant must notify the Departmental supervising officer of: a. the nature of the defendant's employment activities or proposed employment activities; b. any offer of employment activities; c. the hours of employment activities each day; d. the name of his supervisor or employer and the proposed address where the employment activities will take place; e. if directed by his Departmental supervising officer, details of the defendant's income and expenditure; and f. details of any trust in which the defendant is a beneficiary. 4. The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may contact any supervisor, employer or prospective employer of the defendant, for the purpose of obtaining information relating to the defendant's employment activities. NOTE: If the Departmental supervising officer considers it appropriate for the defendant to disclose to any prospective employer information relating to the defendant's criminal history and / or that the defendant is subject to this order and the terms of the order, and the defendant refuses to make such a disclosure, then it is a basis upon which the employment may not be approved. 5. If the defendant executes any legal instrument that confers upon the defendant control of any money or assets of another person or organisation, he must inform the Departmental supervising officer within 48 hours and provide all such details as the officer may require. 6. If the defendant executes any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, or deed, he must inform the Departmental supervising officer within 48 hours and provide all such details as the officer may require. 7. If the defendant forms any corporation, partnership, unincorporated association or registers a business names, he must inform the Departmental supervising officer within 48 hours and provide all such details as the officer may require. Note: The above prohibition in conditions 5 and 6 above does not include the execution of a will, documents relating to the obtaining of social security benefits. Education 8. The defendant must not engage in any educational courses without the prior approval of the Departmental supervising officer. 9. The defendant must notify the Departmental supervising officer of: a. the details of the proposed educational courses he proposes to undertake; b. the frequency and the duration of the proposed educational courses; c. the name of the person who is or will be responsible for the defendant's educational courses ("the supervisor"); and d. the address of the premises where the defendant will undertake educational courses. 10. The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may contact the defendant's supervisor for the purpose of obtaining information relating to the defendant's educational courses. NOTE: If the Departmental supervising officer considers it appropriate for the defendant to disclose to any prospective supervisor information relating to the defendant's criminal history and / or that the defendant is subject to this order and the terms of the order, and the defendant refuses to make such a disclosure, then it is a basis upon which the educational course may not be approved. Part E. Non associations Non-associations generally 1. The defendant must not associate, contact or communicate with any persons specified by the Departmental supervising officer. 2. The defendant must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victim/s of the offences for which the defendant has been convicted on 5 February 2009. 3. The defendant must not engage the services of sex workers. 4. Without limiting condition 1 above, the defendant must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act without the prior approval of the Departmental supervising officer except when living in approved accommodation, undertaking any educational programs, employment activities, maintenance, treatment or rehabilitation programs approved by the Departmental supervising officer. Relationship 5. The defendant must notify the Departmental supervising officer of any relationship he proposes to enters with another person ("the other person") involving sexual or intimate contact no later than 24 hours after the relationship involving sexual or intimate contact has commenced. 6. The defendant must consent to the Departmental supervising officer disclosing the defendant's offence history and that the defendant is on this order (and details of the order) to the other person if the Departmental supervising officer is satisfied that to do so is necessary or desirable in the interests of the safety of: a. the other person; or b. any child who from time to time is in that person's care, custody or control. Children 7. The defendant must not: a. approach, associate, initiate, encourage, request or maintain any contact with a child under the age of 18 years; b. communicate with any person under the age of 18 years by any means including through SMS text messaging, electronic devices, the internet and written communication; or c. use any other person to approach, associate, initiate, encourage, request or maintain any contact with any child under the age of 18 years; unless the defendant: d. has prior written permission of the Departmental supervising officer; and e. is in the presence of an appropriate adult, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition. 8. The defendant must not use or attempt to use equipment for the purposes of recording still or moving photographic images of persons reasonably known by the defendant to be the age of 18 years or under. Club affiliations 9. The defendant must obtain written permission from the Departmental supervising officer prior to joining or affiliating with any club or organisation. Part F. Access to the Internet Internet use 1. The defendant must comply with any direction given by the Departmental Supervising Officer about access to the internet by the defendant on any computer or other device (including mobile phone or tablet computer), including but not limited to: a. the use of parental lock or other device or software that may restrict access to or permit access only to certain web sites; b. the times and places that the defendant is permitted to access the internet; c. accepting the presence of an appropriate person, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition; d. restricting the use of the internet for specified purposes; and e. the use of Skype or any Voice over Internet Protocol (VoIP) or other similar services without the prior approval of the Departmental supervising officer. 2. The defendant must provide the Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection. 3. The defendant must provide the Departmental supervising officer with his email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet. 4. The defendant must provide a list of any communication devices and data storage devices in the defendant's possession and advise the Departmental supervising officer of any change to the inventory immediately. Social networking services 5. The defendant must not access, join and / or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services ("internet based social networking services"), without the prior approval of the Departmental Supervising Officer. 6. If the defendant is approved under condition 5 above to access, join and / or connect to any internet based social networking service, the defendant must: a. inform the Departmental Supervising Officer of his login identification name and password for any internet based social networking service the defendant joins and / or connects to; and b. comply with the rules and conditions of that service. Part G. Access to Pornographic, Violent and Classified Material 1. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the Departmental Supervising Officer. Part H. Access to Weapons No conditions in this part are relevant to the defendant. Part I. Alcohol and drugs 1. The defendant must not possess or consume any illicit drugs. 2. The defendant must not possess any prescription medication other than that prescribed to the defendant by a medical practitioner in the quantities prescribed. 3. The defendant must not abuse prescription medication or other forms of medication. 4. The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits) without the prior approval of the Departmental supervising officer. 5. The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any officer of Corrective Services NSW who from time to time supervises the defendant. 6. The defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental supervising officer. Part J. Gambling No conditions in this part are relevant to the defendant. Part K. Search and Seizure 1. If the Departmental supervising officer reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the Departmental supervising officer may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 2. For the purposes of paragraph 1.g: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by any officer of Corrective Services NSW of the same sex as the defendant under the direction of the Departmental supervising officer. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 3. During a search carried out pursuant to condition 1 above, the defendant must allow the Departmental supervising officer to seize anything found, whether in the defendant's possession or not, which the Departmental supervising officer reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 4. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to conditions 1 or 3 above. Search of computer 5. If and as directed by the Departmental Supervising Officer, the defendant must: a. permit the Departmental Supervising Officer or any other person, to access, inspect and remove any computer or other device (including mobile phone, tablet computer or other storage device (including a SIM card)) used by or owned by the defendant, including the temporary removal of the computer or other device from the defendant's place of residence or his person for the purpose of inspection or the imaging of the contents of the computer; b. take all available steps to permit the Departmental Supervising Officer or any other person to have access to and inspect any computer or other device (including mobile phone, tablet computer or other storage device (including a SIM card)) used by or owned by the defendant; c. provide the Departmental Supervising Officer or any other person with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone, tablet computer or other storage device (including a SIM card)) used by or owned by the defendant, including providing them with any required passwords; d. permit the Departmental Supervising Officer or any other person to make copies of any files or materials on any computer or other device (including mobile phone, tablet computer or other storage device (including a SIM card)) used by or 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. 6. The defendant must not attempt to destroy or interfere with any computer or other device (including mobile phone, tablet computer or other storage device (including a SIM card)) that is the subject of access or inspection carried out pursuant to conditions 1 to 5 above. Part L. Personal details and appearance 1. The defendant must not change his name from Ronald Dean King or use any name other than Ronald Dean King without the prior approval of the Departmental supervising officer. 2. The defendant must not, without the approval of the Departmental supervising officer, change his appearance to the extent that the defendant cannot be easily recognised. 3. The defendant must allow himself to be photographed by or on behalf of the Departmental supervising officer. 4. The defendant must provide the Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed). Part M. Medical intervention & treatment obligations 1. The defendant must undergo any assessment as recommended by his medical or other professional consultant to determine what is required for treatment in respect of the defendant's potential risk for re-offending. Medical intervention 2. The defendant must, if so directed by the Departmental supervising officer, undergo psychiatric treatment, psychological treatment, other medical treatment or other medical assessment at a place or places determined by the Departmental supervising officer. 3. The defendant must take any prescribed medication, including but not limited to anti- psychotic, anti-libidinal (including SSRI's) or other prescribed medication as prescribed by the medical practitioner. 4. The defendant must not take any medication or substance which, to the defendant's knowledge, may reduce the effectiveness of medication or treatment prescribed under conditions 2 and 3 above being taken by the defendant, unless the defendant's treating medical practitioner prescribes such medication. 5. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the Departmental supervising officer within 24 hours of ceasing to take the medication. 6. The defendant must attend medical consultations, physical examinations, pathology testing, and medical imaging as directed by a treating clinician. Other treatment 7. The defendant must, if so directed by the Departmental supervising officer, undergo psychological assessment, counselling and any other treatment at a place or places determined by the Departmental supervising officer. NOTE: It is noted that the "reasonable directions" in Part A and the participation in treatment under this Part do not require participation in treatment, or taking of any medication that may be prescribed, without the defendant's informed consent. Part N. Disclosure of information Medical and psychological information 1. The defendant must disclose to the Departmental supervising officer the name of any medical or other professional consultant that the defendant consults, as soon as reasonably practicable. 2. The defendant must consent to the Departmental supervising officer and officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of the defendant's assessment and treatment. 3. The defendant must agree to the disclosure of all information between: a. the Departmental supervising officer; and / or b. officers from the Department (including from Corrective Services NSW); and / or c. any medical or other professional consultant. NOTE: In relation to disclosure of information relating to the defendant's treatment, the nature of the defendant's consent under condition 3(c) above is limited to circumstances where the medical, other professional consultant believes the defendant is at risk of: a. committing a further serious offence; b. is demonstrating behaviours that may lead to the commission of a further serious offence; c. is at risk of breaching a condition of the defendant's supervision relevant to (a) and (b) of this note; or d. is with the consent of the defendant. Telecommunication and internet service provider 4. The defendant must provide the Departmental supervising officer details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. This includes phone numbers, land line numbers and the service provider of those numbers. 5. The defendant must provide the Departmental supervising officer details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 6. The defendant must consent to the disclosure of the defendant's personal information held by any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used by the defendant, to the Departmental supervising officer. Vehicle details 7. The defendant must notify the Departmental supervising officer of the make, model, colour and registration number of any vehicle, including any maritime vessel which he owns, drives or intends to drive. Forms of identification 8. The defendant must show the Departmental supervising officer, or any officer of Corrective Services NSW who may from time to time supervise the defendant, his driver's licence and other personal identification as requested. 9. If the defendant changes the details of any current form of identification or obtains any further forms of identification, the defendant must provide the Departmental supervising officer with such details.

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: 15 July 2022

Crimes (High Risk Offenders Act 2006(NSW)

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

Crimes (High Risk Offenders) Act 2006(NSW)ss 3, 5B, 5C, 5D, 9, 10, 11, 12, 13, 21

At a glance

Court

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Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (19)

Cited By (1)