State of New South Wales v Mills

Rothman J's findings as to whether the defendant was a High Risk Sex Offender

1. As I have said above, his Honour rejected the defendant objection to jurisdiction, as it were, that given the relief sought was a high risk violent offender extended supervision order, the court was not empowered to impose conditions relating to an unacceptable risk of the commission of a serious sex offence if not kept under supervision (at [60] - [61]). Essentially, his Honour decided "on an application for an ESO utilising the provisions of s 5F of the Act, [the Court] can impose conditions which relate to issues arising from other offending that would, ordinarily and otherwise, require an application under s 5C of the Act".
2. His Honour stated the facts in relation to the defendant's sex offending in the following terms: [11] The defendant was unable to complete the Violent Offenders Therapeutic Program ("VOTP") and it was for that reason that the defendant was referred to the CUBIT programme. One, at least, of the issues of concern in the defendant's behaviour was the display of inappropriate attitudes towards female [custodial] staff and "sexualised behaviours". [12] During the period that the defendant was governed by the terms of the [Interim Supervision Order], to which earlier reference has been made, the defendant committed, relevantly for the purposes of dealing with the issues between the parties, two offences, being offences of indecent assault. The circumstances of that offending is described in the evidence. The evidence is the subject of objection, with which objection I will deal later in these reasons. [13] Apparently, the defendant went to a shopping mall and saw a movie. The Case Note file reports conduct thereafter in the following way: Mills reported that there was so much 'young arse' around the shopping centre that all he wanted to do was [to] be able to feel it. Mills made admissions to the offences stating that he 'used an open palm and touched two girls on the arse'. He also said, 'He only saw the girls from behind and I thought they were older than they were' also making reference to the victim's height. He claimed that he could not tell the difference between an adult and a child from standing behind. He justified his actions by stating that given his length of time that he has spent in custody, he thought the victims were older than their actual ages. He continued on claiming that everywhere he goes, he sees 'young pussy' everywhere and after his period of incarceration it is consistently on his mind. He blamed COSP and Community Corrections for not allowing him to visit a brothel. [14] Earlier in the Report there was reference to a comment by the defendant that threatened violence towards a Police Officer because he had arrested him for the foregoing later offences in the presence of his mother and at his mother's residence. The Report refers to "demonstrated anger, increasing his tone of voice". [15] The full facts, being the Police version of events, in relation to the offences in question refer to the two victims being 13 and 14 years of age, respectively. Each offence is similar in nature and is not inconsistent with the facts that the defendant admitted. In each case the defendant has grabbed the victim on the buttocks with his hand. Further, in each case the defendant has said to the victim, words to the effect: "Has anyone ever told you, you have a great ass [sic] or bum [respectively]?
3. Rothman J stated his reasons for not being persuaded that there was an unacceptable risk of the commission of a serious sex offence in the following terms (at [55] - [57] and [62]): [55] As to the issue of the sex offences committed subsequent to the application, there are some factual issues with which the Court must deal. First, the offences with which [the defendant] was charged are two offences of indecent assault of a person under the age of 16 in contravention of s 61M(2) of the Crimes Act. [56] The material before the Court involves an explanation by [the defendant] that he was unaware of the young age of each of the two victims. That explanation has been reiterated earlier in these reasons. [The defendant] was convicted of those offences after a plea of guilty, which even if at the minimum level, involves proof of all of the elements of the offence: Meissner v R (1995) 184 CLR 132, per Dawson J at 157; [1995] HCA 41. [57] The difficulty with the alleged belief in the age of the victim is that the circumstances of the act of indecency and assault are such that, even if the defendant believed each of the victims was over 16, it would render him liable for a contravention of s 61M(1) of the Crimes Act and would still be a serious sex offence within the definition in s 5 of the Act. As a consequence, [the defendants'] convictions, subsequent to the index offence, amount to offences which are serious sex offences within the meaning of the Act and would have allowed the State to make application accordingly. Nevertheless, the State did not. … [62] In the event that the Court is wrong on the foregoing [conclusion about jurisdiction], I should note my conclusions as to the sex offending. The Court makes clear that it is not satisfied to a high degree of probability that [the defendant] poses an unacceptable risk of committing a serious sex offence, if not kept under supervision. That lack of satisfaction concerns only the question of the sex offending assessed without regard to the unacceptable risk of committing a serious violence offence. Ms Fernando of counsel, for the defendant, points out in written submissions, with respect, that [57] may contain legal error. Were the victims over 16 years of age s 61M would not apply as no other circumstance of aggravation was available. The applicable offence would have been a contravention of s 61L, like s 61M, now repealed. When in force, counsel argues, an offence contrary to s 61L was not a serious sex offence as the maximum penalty was imprisonment for five years. Nothing turns on this as the defendant pleaded guilty to two serious sex offences. It is not necessary for me to look into this further.

Applicable statutory provisions

1. The objects of the Act are set out in s 3: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
2. Section 5D (of the Act as amended) set outs the conditions which must be satisfied before the Court may make an extended supervision order. For present purposes it is sufficient to refer to paragraph (c) which is in the following terms: The Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. And s 5E which provides: For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
3. Section 9 confers a discretion on the Court to determine an application for an extended supervision order by either making the order, or dismissing the application. Importantly under s 9(2) in the exercise of that discretion, "the safety of the community must be the paramount consideration of the Supreme Court". Section 9(3) specifies mandatory relevant considerations to which the court must have regard in exercising the discretion. It is not necessary to detail them for present purposes.
4. If the Court exercises its discretion to make an extended supervision order it is empowered by s 11 to "direct [the] offender to comply with such conditions as … the Court considers appropriate". Paragraphs (a) - (n) provide a non-exhaustive list of the type of directions the Court may require the offender to comply with.
5. Non-compliance with the requirements of an extended supervision order is a criminal offence by force of s 12, the maximum penalty for which includes a term of imprisonment of 5 years.
6. Section 13, which is central to the current application, is in the following terms: (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.
7. I think it also appropriate to bear firmly in mind s 21 which is in the following terms: 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.

Relevant legal principles

1. Ms Fernando referred me to two decisions dealing with the scope of the power conferred on the Court by s 13. In State of New South Wales v Kay [2018] NSWSC 1235 Wilson J was dealing with an application to vary an existing order, which the defendant had breached, by the imposition of additional conditions. At [66] her Honour pointed out, "the wording of [s 13(1)] is such that the Court's discretion is unfettered, subject to the objects and provisions of the Act". Given the nature of the variation sought, her Honour found it necessary to lay emphasis upon the provisions of s 11.
2. In State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52 Walton J was dealing with, inter alia, an application by an offender to revoke an existing order. Understandably, his Honour emphasised s 13(1B), the opening words of which his Honour said "are clearly designed to preserve the broad discretion residing in the Court under s 13(1) as referred to in Kay". His Honour also emphasised the requirement "that circumstances have changed sufficiently to render the order unnecessary" (at [21] - [22]). His Honour recognised (at [23]) that in Kay "s 11 predominated". While s 11 was "not immaterial" to his Honour's task, Walton J considered that in the case of an application for revocation "the relevant inquiry must be wider". His Honour emphasised that s 13(1B) required a comparison. The Court was to consider "whether the circumstances operating at the time of the [original] determination of the application have sufficiently changed to … render the existing order unnecessary".

Decision on whether power to vary engaged

1. My task is somewhat different from that required in either Kay or Schmidt. For my purpose it is relevant to observe that s 13 does not expressly confer a power to review or reconsider an extended supervision order, but powers of review and reconsideration may well be implicit in a power to "vary or revoke" subject to such limitations as may be found in the language of the Act, and s 13 in particular. In this regard it may also be important to bear in mind that the maximum term of an order is 5 years from the day on which it commences, which need not be continuous as the order is suspended during periods when the offender is in lawful custody: s 10(1A) and (2). And s 10(3) provides: "Nothing in this section prevents the … Court from making a second or subsequent extended supervision order against the same offender."
2. Section 21 is not unimportant. It is set out above at [20] and I will not repeat it here. However, it raises a question about whether extended supervision orders (or continuing detention orders) are final for the purpose of the doctrine of res judicata. This may have some importance in the present case where the State is seeking a finding that is inconsistent with a finding made by Rothman J. Whether the order made and entered by Rothman J is a final order for the purpose of res judicata may inform the scope of the s 13 power in the present circumstances. I am being asked to re-visit the finding made by his Honour on new evidence not available to lead at the hearing before his Honour.
3. An extended supervision order is obviously a final order for the purpose of an appeal, which is not determinative of the question. Section 22 of the Act provides an appeal as of right to the Court of Appeal from any determination of the Supreme Court, "to make, or to refuse to make, an extended supervision order", inter alia. Such an appeal lies "on a question of law, a question of fact or a question of mixed law and fact." And, there was no appeal challenging Rothman J's finding that he was not satisfied to the requisite high degree of probability that the defendant posed an unacceptable risk of committing a serious sex offence if not kept under supervision.
4. A judgment may be final for the purpose of res judicata yet subject to revision by the court or tribunal which made it. As the learned author of Spencer Bower and Handley Res Judicata, Fourth Ed. (2009) wrote (p 74 [5.15]): Where a statute empowers the tribunal to rescind or vary its decision, but indicates that it is final in the meantime, it creates a res judicata. The principles were stated by Isaacs J [in Ainslie v Ainslie (1927) 39 CLR 381 at 390]: 'The true rule is to see whether or not the legislature has by its enactment left the order entirely floating, so to speak, as a determination enforceable only as expressly provided and in the course of that enforcement subject to revision, or whether the order has been given the effect of finality unless subsequently altered.' Isaacs J pointed out immediately following the quoted passage that the question could only be determined "by construing the Act as a whole." His Honour also said that "power to vary" is not determinative.
5. I am of the view that an extended supervision order is final for the purpose of the res judicata but may be renewed or extended under s 10(5) and varied or revoked under s 13. Extended supervision orders very significantly restrict an offender's right to be at liberty after the completion of his or her sentence. This curtailment of liberty is very substantially based upon the Court's satisfaction that an unacceptable risk of future serious offending exists. These powers are exceptional and are not easily covered by the expression used by Isaacs J of "entirely floating". And this is so notwithstanding that the s 11 conditions are often couched in terms conferring a discretion on the officers of Corrective Services New South Wales as to the manner of implementation.
6. In my judgment that orders made under s 9 of the Act are final for res judicata purposes affects the nature of the power conferred by s 13 and the manner of its exercise. For instance, if a summons seeking relief by way of an extended supervision order was dismissed because the Court was not satisfied to the requisite high degree of probability that the offender posed an unacceptable risk of committing another serious offence if not kept under supervision, absent appeal, would it be open to the State to bring a second application seeking the same relief based on the same evidence, effectively in defiance of the Court's previous order? I think not. Clearly a determination whether to make or refuse an extended supervision order under s 9 of the Act is a final order.
7. Even so, where an order has been made, rather than refused, s 13 confers an express power to vary or revoke. The question in the present case is whether that power to vary, which is invoked in this case, may be exercised in contradiction of the finding made by Rothman J. In my judgment it may.
8. As Isaacs J pointed out in Ainslie the express power to vary is not determinative of the question of whether Rothman J's orders were final. However, s 13 makes clear that the matter may be revisited. Given the nature of the question which arises in this case, I am not of the view that it is appropriate to approach the s 13 power as though it conferred an unfettered discretion. 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, as Ms New of Counsel for the State submitted, and Ms Fernando accepted, 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. I have expressed myself in this way because the State accepts that the new conditions it seeks, many of which were rejected by Rothman J, are appropriate to address a risk of serious sex, rather than violent, offending.

Arguments of the parties

1. The State submitted, as I have recorded above, that to vary the existing extended supervision order by imposing conditions designed to manage the risk, it must establish by admissible evidence a material change in circumstances since the hearing before Rothman J. The relevant additional circumstances may be summarised as follows: 1. The breaches of the ISO in October 2017 including absconding to Queensland; 2. Two incidents reported to police involving three secondary schoolgirls being approached by the defendant, asking their names and seeking their phone numbers; 3. The defendants admission to the use of illicit drugs and alcohol when subject to the ISO; and 4. A body of evidence demonstrating an ongoing sexual preoccupation and the persistent sexualisation of females. The State also argues when evaluating the risk of serious sexual offending posed by the defendant, it is appropriate for the Court to consider the whole of the evidence, including the facts established before Rothman J with the benefit of the hindsight provided by the changed circumstances.
2. The defendant accepts, as he must, that circumstances have changed to the extent that the October 2017 breaches established a risk of absconding and schedule deviation. However, he argues he does not pose an unacceptable risk of serious sex offending and accordingly the conditions specific to addressing that risk are not justified. In the alternative, the defendant submits that in any event, the conditions imposed by Rothman J are sufficient to manage the risk.
3. The defendant would accept that new evidence, in the sense of evidence not available at the time of the hearing before Rothman J, establishing a material change in circumstances is sufficient to justify a variation in the ESO.

Determination

1. It is unnecessary for me to focus upon the s 9(3) mandatory considerations beause Rothman J exercised the Court's jurisdiction to make an extended supervision order and that question is not being re-ventilated before me. The question is whether having regard to changed circumstances, and on review of previous circumstances relevant to the risk of the commission of a serious sexual offence, the ESO should be varied to add to the conditions the defendant has been directed to comply with under s 11 of the Act.
2. A significant factor which stands out on reviewing the facts in this case is that the defendant since the completion of his sentence for murder on 17 August 2016 and his release on 18 August 2016 has been unable, so far, to comply with the conditions of either an ISO or an ESO for more than about 5 weeks in toto. He had been at liberty for no more than 12 days when he committed the two counts of aggravated indecent assault. After his release from custody on parole on 30 September 2017 for that offending he absconded on 23 October 2017. Naturally this was not only a breach of the ISO, but it was also the commission of three serious criminal offences under s 12 of the Act. The conditions breached included condition 15 prohibiting the defendant from leaving New South Wales without the prior approval of his Department Supervising Officer ("DSO"); condition 30 prohibiting him from spending the night otherwise than at his approved address; and condition 8 forbidding the defendant from deviating from his approved schedule of movements submitted under condition 6, except in an emergency.
3. These are serious breaches of his ISO, bearing in mind that the extended supervision order did not come into force until 30 October 2017, the day he was arrested in Queensland and extradited to New South Wales. These facts constitute a material change in circumstances which, in my judgment, alone adequately demonstrate that that the conditions imposed by Rothman J proved insufficient to adequately supervise the defendant in the community. Although the risk of serious violent offence did not materialise during his absence, I am of the view that the circumstances provide telling evidence of the need to add additional conditions for the purpose of managing the risk identified by Rothman J, whether or not the State has established to the high degree of probability necessary that he poses a risk of serious sexual offending.
4. Rothman J did not find it necessary to impose conditions permitting electronic monitoring although he did impose a requirement for the defendant to provide a weekly schedule of movements (see [71] - [72]). The circumstances that have now transpired amply demonstrate that the defendant does require electronic monitoring as well as a schedule of movements. This finding is bolstered by the consideration that the defendant was over an hour late in returning to his accommodation on 20 October 2017 and over two hours late on 21 October 2017. Rothman J's decision was under consideration on these dates. The defendant gave the excuse on 21 October that he was late due to track work on the rail network. There is a degree of probability that his lateness on each of these occasions was deliberate to deflect early suspicion of his absence when he absconded on 23 October 2017, as planned.
5. His flight was certainly planned. When his room was inspected on 23 October 2017 later in the afternoon after he had been missed, it was obvious that the majority of his belongings had been removed. Another resident of the accommodation remarked to staff "you know he was planning this for ages, right?"
6. The current evidence demonstrates, in my own view a compelling case for the imposition of electronic monitoring. The updated risk management report of Janelle Farroway dated 15 November 2018 indicates that the process of electronic monitoring is intended to progress through four stages of gradually reducing intrusiveness as offenders demonstrate compliance and progress. Compliance in the context of electronic monitoring is reviewed every two months as part of a case plan review. Scheduling of movements and the curfew are gradually lifted so that they not required in stages 3 and 4. Electronic monitoring is not required in stage 4.
7. Ms Farroway explains that electronic monitoring works in conjunction with the schedule of movements and the curfew. In the absence of electronic monitoring it was, to adopt Ms Farroway's words, "challenging to ensure that [the defendant] was compliant with his schedule of movements". During his short periods of supervision in the community, the defendant was residing at the Integrated Support Centre at Campbelltown and his curfew was monitored by staff on site. When he progresses to residing independently, at least initially, a curfew will also be an important condition, as Rothman J recognised.

The risk of serious sexual offending

1. The relevant history of sexual offending as found by Rothman J is recited at [12] above. I will not go over this ground save to repeat that the indecent assaults on the two young teenage girls were serious sex offences for the purposes of the Act.
2. Dr Jeremy O'Dea, forensic psychiatrist, was one of the court-appointed experts whose evidence was before Rothman J in the substantive proceedings. I regard it as important to bear in mind that the primary diagnosis of the defendant made by Dr O'Dea was of anti-social personality disorder with significant psychopathic traits. The expert pointed out that such conditions are usually enduring conditions. The various manifestations of the disorder include "repeated failure to conform to lawful behaviours, deceitfulness and impulsivity" (report 27 June 2017 [86]). Dr O'Dea expressed the following opinion in relation to the risk of sex offending (22nd June 2017 [90]): Although the index sex offence may also be conceptualised, at least in part, in the context of [the defendant] general anti-social personality, with significant psychopathic traits, and his significant and ongoing substance abuse; his psycho-sexual history, including his reported significant sex drive, his reported sexual frustration in custody, his pornography and masturbatory history, his reported paedophilic fantasies, (given that he has subsequently denied this paedophilic component of his sexuality, and the index sex offence, would point to at least a potential of a paraphilic disorder in general, if not a specific paedophilic or frotteuristic disorder. Frotteuristic disorder, according to Dr O'Dea, is "characterised by recurrent, intense sexually arousing fantasies, sexual urges, or behaviours, involving touching or rubbing against a non-consenting person". These manifestations are evident in the index sex offence. Dr O'Dea considered the defendant to pose a significant risk of, inter alia, sex offending behaviours "including of committing … a serious sex offence".
3. Mr Patrick Sheehan, forensic psychologist, provided three reports dated 26 August 2016; 21 September 2016 and 16 June 2017 respectively. He too diagnosed a personality disorder which he defined in terms materially identical to Dr O'Dea. Like Dr O'Dea he considered the defendant's condition had "all the hallmarks of antisocial personality disorder". Report 28th August 2016 [49]. Such a disorder is manifested in "a pervasive pattern of disregard for and violation of the rights of others".
4. In his second report he regarded the indecent assault offences as "deeply concerning" (21 September 2016 [22]). In the light of them he was "inclined to reverse" his previous suggestion to remove supervision conditions pertaining to managing a sexual risk.
5. In his third report of 16 June 2017 [24] he expressed the opinion that the indecent assault offences "cast a more serious complexion" on the defendant's management issues. Applying the applicable actuarial assessment tools for this area and reviewing the defendant's conduct he estimated the risk of sexual re-offending to be in the moderate to high range. He considered the risk of serious sex offending to be "realistic". Mr Sheehan said the risk was "embedded" in the behavioural disinhibition and impulsivity associated with his anti-personality disorder. In his view, the defendant was subject to "a general sexual pre-occupation that is opportunistic in nature" and "encouraged by impaired social judgment" (16 June 2017 [39]).
6. Turning to look at the behaviour of the defendant, his cell mates were concerned about his behaviour when he was in custody in August 2017. He was disinhibited about masturbating himself in their presence.
7. The conditions of his original ISO included restrictions upon purchasing pornography which he baulked at stating he wished to buy such material for masturbation (OIMS 30 September 2017). When discussing the indecent assault offences with a corrections officer on 8 October 2017 he declined to accept that he was a registrable sex offender. He explained his offending by saying he made "a stupid choice". He denied a sexual interest in teenage girls.
8. However, on 10 October 2017 another incident of concern occurred which called the defendant's disclaimer into question. While traveling on a train the defendant kept staring at three year 11 schoolgirls dressed in their school uniform who were sitting in the same train-carriage. The defendant then sat near the girls and attempted to engage them in conversation. The schoolgirls gave their first names to the defendant. When they all alighted at the same stop they noticed he was waving goodbye to them.
9. On 13 October 2017, the defendant argued with his DSO about restrictions on his movements. In particular he seemed to be keen to attend a beach or a local pool. While saying he was not a sex offender, he kept talking about girls and missing sex. He said he looks at girls all the time, notwithstanding the attempts of the officer to redirect the conversation. He also sought permission to visit the zoo.
10. On the same day as this conversation, the defendant approached two of the three schoolgirls he had seen on the train three days earlier as they were walking to school. He asked where their other friend was. He also asked them for their phone numbers and provided his given name and his phone number to the girls. This "coincidence" of a second meeting worried the girls and they reported the matter to the Deputy Principal when they arrived at school. The Deputy contacted police who interviewed the girls and made inquiries identifying the defendant.
11. In an interview with a member of his supervising team on 14 October 2017 he again discussed the nature of the activities he wished to engage in. The officer became suspicious that he wished to attend a beach, a pool, mini-golf or the zoo to generate contact with young girls. Notwithstanding his interaction with the school girls, which he did not disclose, he was insistent that he did not pose a risk to teenage girls. He denied being attracted to underage females. This, of course, is contradicted by him approaching the schoolgirls as I have described. He also commented about a woman he had met on the train and stated he had thought about having sex with her. It was unclear whether this is a reference to one of the schoolgirls or to another person. The officer considered that the defendant was "highly sexually pre-occupied".
12. During a conversation with a community corrections officer about the conditions of his then ISO, the defendant expressed the view that he felt he was being treated "like a high risk sex offender". He said: He sees girls all the time and he thinks sexual thoughts but he doesn't act on them and he has proven he can go out in the community and not assault anyone. He said that young girls approach him and talk to him "because of [his] god body".
13. Other matters of concern relate to material found in his possession when he was arrested in Queensland. Of very significant concern to me is that he was found with notes in his handwriting containing the personal details including addresses, telephone numbers and dates of birth of each of the victims of the previous indecent assault offences. The defendant's notes also included lists of "internet network sites for YTP". According to the report of Mr Samuel Ardasinski, a Senior Psychologist with the Serious Offenders Assessment Unit, one meaning of this initialisation listed in urbandictionary.com is "young teen pussy". Among the websites named on the defendant's list were "teenfunXvideo.com" and "jailbaitgallery.com" which the psychologist states refer to webpages with images depicting young-looking female models posing as underage girls.
14. Mr Ardasinski administered the usual actuarial measures of risk assessment used for ranking male sexual offenders. He expressed his conclusions as follows: (ESO Variation Report [55]): Based on actuarial measures of risk for ranking male sexual offenders with regards to their risk of reoffending (now that [the defendant] has been convicted of at least one serious sexual offence against teenage victims), [the defendant] is in the second highest category for sexual reoffending when taking into account static factors alone, but when considering his current dynamic risk, his risk is assessed as high. If he were to reoffend sexually, it may involve an opportunistic offence such as that committed by him in 2016 against unsuspecting teenage females at a Sydney shopping centre. However, [the defendant] sexual misbehaviours in custody over a period of over 20 years can also be considered within the matrix of risk in which he finds himself. (Original emphasis.)
15. This body of evidence persuades me that circumstances have changed very significantly since Rothman J's judgment of October 2017. This body of evidence persuades me to the statutory high degree of probability that the defendant poses an unacceptable risk of serious sex offending if not kept under an extended supervision order having conditions appropriate to manage that particular risk. The risk is related to his Anti-Social Personality Disorder and the impulsivity, disinhibition and flaunting of authority associated with it. In the context of what is his obvious pre-occupation and, contrary to his disavowals, his fixation on young women including teenage girls, as Mr Ardasinski says, the risk could readily materialise opportunistically. In my assessment, during his short periods at liberty since August 2016 he has been fixated on teenage girls as sex objects. This has manifested itself by him attending places where he is likely to come across young women who are likely to be vulnerable due to their age and lack of experience. His impulsivity, disinhibition and frotteuristic aspects of his disorder do suggest to me a high risk at the very least of the commission of further sexual touching offences and some risk of more serious sexual assault. All of this is unacceptable given his apparent inability to accept lawful direction.

Conditions

1. I have already explained that because the defendant absconded in breach of the ESO in October 2017, I am strongly in favour of imposing a requirement of electronic monitoring. This view is reinforced by my conclusion concerning the unacceptable risk of sexual offending. I record that electronic monitoring is strongly supported by Mr Ardasinski and Ms Farroway in their reports for reasons they have set out at length which it unnecessary for me, in the circumstances to repeat. Moreover the OIMS casenotes reveal a certain recalcitrance on the part of the defendant to comply with departmental supervision, which seems likely to continue. He will doubtless resent electronic monitoring and may well continue to attempt to "buck the system". However, I regard electronic monitoring as an important condition of supervision having regard to the risks he presents and bearing in mind the paramount consideration of community safety, notwithstanding the defendant general right to be at liberty.
2. The State seeks the imposition of condition 16A creating exclusion zones which the defendant must not enter without prior approval. These are mostly places of public resort such as outdoor recreational areas, amusement parlours, cinemas and like places which persons under 18 may frequent. The condition also extends to private residences where the defendant "knows or ought reasonably to know that persons under 18 ordinarily reside".
3. All new conditions proposed are opposed by the defendant. The defendant argues that given the need to submit a schedule of movements on a weekly basis for prior departmental approval these restrictions are unnecessary because the same effect can be achieved through the approval process.
4. The State read an affidavit of Annette Caffery, Manager of the Extended Supervision Order Team employed by Corrective Services NSW. Ms Caffery favours the imposition of these conditions. She explains the imposition of the condition would require the defendant to specify his intended attendance at such places of public resort which would enable a risk assessment to be carried out and counselling to be provided in relation to those matters in an attempt to avoid the risk escalating if approval is in fact provided. Mr Ardasinski does not support the imposition of this condition. He points out that the index offending occurred in a shopping centre, not one of the places of resort listed in the proposed condition. He also points out that the presence of teenage females on trains and in other public places to which the defendant would necessarily have access when in the community render the condition "obsolete", by which I took him to mean of no practical effect.
5. From my review of the material the approval process in respect of the schedule of movements was thorough and detailed. Approval was withheld from attendance at beaches, pools, mini-golf and the zoo on the ground that these were places of resort where young people including teenage females would be encountered. This discretionary approach is appropriate until the defendant settles in to the routine of supervision and becomes more accepting of it. But I am not satisfied that proposed condition 16A is appropriate and I will not impose it.
6. Proposed condition 16B prohibits, without prior approval, the defendant's attendance at sex shops, sexually explicit entertainment or brothels. It was a previous requirement of the schedule of movements that approval for attendance at brothels was required and generally, it must be said, granted. It's notable, perhaps, that the defendant did not always avail himself of the approval when given. Ms Caffery favours this condition again to enable risk assessment and counselling. The need to seek express approval would enhance monitoring to avoid any escalation of risk.
7. Mr Ardasinski states (report [51]), "the empirical evidence does not support a blanket ban on "legal" (adult) pornography in the risk management of child sex offenders in the community, with some suggestions [in the literature] that there is no link between exposure to pornography and sexual violence." Some researchers have suggested that permitting access to legal adult pornography may have a beneficial effect in directing a person's attention away from inappropriate objects of sexual desire thus reducing the risk.
8. Clearly the issue here relates to the concern that has emerged about the defendant's fixation with teenage girls. That risk needs to be managed particularly having regard to the interest in pornographic material made manifest on the list recovered at the time of the defendant's arrest in Queensland. It should also be pointed out that there are specific restrictions on the purchase or possession of what might be referred to as "hard-core" pornography. In my view those conditions are better directed towards management of the risk. I will not impose condition 16B.
9. Rothman J imposed a condition restricting the consumption of alcohol so that the defendant was not permitted to have more than the prescribed concentration of alcohol of 0.05 per cent in his bloodstream at any time. A more restrictive condition is proposed requiring prior approval before alcohol may be consumed. The justification for this, as I understand it, is that even with random alcohol and drug testing it will not always be possible for the DSO to know whether a low reading obtained was the mere residuum of excessive consumption previously or represented compliance. Moreover, inappropriate alcohol consumption would be likely to enhance the impulsivity and disinhibition associated with his personality disorder thereby increasing the risk. In this regard his recalcitrance about supervision should be borne in mind. Mr Ardasinski acknowledges that the defendant's conduct since his release to his ISO could favour a more restrictive condition in relation to drug and alcohol use. But on balance he is of the view that "the conditions as they stand ought to be sufficient to be protective".
10. The defendant submits that the condition as formulated by Rothman J remains apposite.
11. On balance I agree that the existing alcohol condition ought to remain. However, given the defendant's admission about illegal drug use preceding his index sex offending, I am of the view that proposed conditions 20A and 20B are appropriate. Doubtless, as Rothman J reasoned illegal drug use or non-prescription use of medications are crimes in any event, but a condition reinforcing that consideration, in my judgment, has utility. I propose to impose conditions 20A and 20B.
12. Proposed condition 22 prohibits the defendant's entry into licensed premises without prior approval. However, I am not persuaded the proposed condition is appropriate. I will leave in place the existing condition which permits the DSO to specifically disapprove in writing of the defendants entry to particular licenced premises appearing on the Schedule of movements.
13. Proposed conditions 23A and 23B seek to limit contact with persons under 18 years of age. Conditions like these are appropriate given his risk relates in particular to teenage girls. Condition 23A restricts contact unless in the presence of an approved chaperone and 23B permits disclosure if the defendant forms a relationship with a person who is the parent or guardian of a person under the age of 18. The condition as proposed requires notification to the DSO and permission to the DSO to disclose "the defendant's criminal history".
14. The defendant says the non-association condition is meaningless because it is, in part, predicated upon an objective test of "reasonably ought to know" and is unworkable because persons under 18 are often employed in retail and contact with them is unavoidable. There is force in some of these arguments.
15. The condition anyway ought to be restricted to females rather than all persons under 18. There is no evidence of any risk to young males, notwithstanding some material suggesting an attachment to a young male in prison.
16. I am of the view that the objective test is unworkable and cannot stand. The phrase "ought reasonably to know" necessarily imports the objective standard of the reasonable man. To be appropriate the conditions need to take the defendant as he is. I would make proposed condition 23A read as follows: The defendant must not deliberately approach or make contact with any female who he knows or suspects, is, or may be, under 18 without prior approval of his DSO who is entitled to approve of the approach or contact only if the defendant is in the company of a pre-approved chaperone. Incidental contact with a female under 18 in the give and take of ordinary life such as in her capacity as a shop assistant when the defendant is making a bona fide purchase does not constitute a breach of this condition.
17. The proposed condition 23B authorises the DSO to disclose the defendant's criminal record to a parent of an 18 year old female. Given the risk I have identified I am of the view that a condition of that nature is appropriate. However, rather than disclosure about the defendant's criminal history as such I think it appropriate to permit disclosure of the consideration that the defendant is under an ESO, the reasons for the ESO and the nature of the conditions so far as they pertain to contact with females under 18 years of age. Moreover, "associates" is too weak a connection to justify the disclosure. It seems to me disclosure is justified as appropriate to the risk "if the defendant commences to form a relationship with a person who is the parent or guardian of a female under the age 18 years". I would amend proposed condition 23B to read as follows: If the defendant commences to form a relationship with a person who is the parent or guardian or has care and control of a female child under the age of 18 years, he must notify the DSO of that circumstance as soon as possible. The DSO may want to tell the person that the defendant is under an extended supervision order, the reasons for it and the conditions relating to contact with females under the age of 18 years and the defendant must permit that disclosure.
18. Proposed condition 25A forbids the defendant from associating with people who are consuming or under the influence of alcohol without prior approval. For the reasons I have already expressed, I am satisfied the existing restrictions on alcohol consumption by the defendant are appropriate. It should not be overlooked that the full suite of conditions are intended to operate not only individually but as a whole. The alcohol consumption conditions will be bolstered by electronic monitoring, field visits, the schedule of movements and random drug and alcohol testing. I do not propose to order the observance of proposed condition 25A.
19. 26A prohibits the defendant from using the services of sex workers without prior approval. It has already been the case during his short periods of leave in the community that it has been necessary for him to include proposed visits to brothels on the schedule of movements. They have generally been approved. I have already recorded what Mr Ardasinski has said about the role that sex workers may play in establishing a healthy attitude to normal sexual relations on the part of the defendant. I am of the view that the existing arrangements are satisfactory for that purpose. I decline to order proposed condition 26A.
20. Amended condition 40 and the proposed condition 40A deal with, as I pointed out above, the purchase and possession of classified, hard-core pornography and violent material. As I have already said, given the contents of the list found in his possession in relation to pornography depicting persons at least posing as young females under the age of consent, I am of the view that these new conditions are justified and I will include them in the order.
21. For these reasons I make the following finding and orders: 1. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under an extended supervision order; 2. Under s 13(1) of the Crimes (High Risk Offenders) Act 2006, the extended supervision order (ESO) made by Justice Rothman on 25 October 2017 is varied so that the conditions of the ESO as ordered by Justice Rothman in order 3 and set out in the schedule to his Honour's orders are replaced with the conditions set out in Schedule A to this judgment; 3. Under s 11 of the said Act, direct that the defendant is to comply with the conditions set out in schedule A for the term of the ESO.

Schedule A - AMENDED CONDITIONS OF SUPERVISION Patrick Michael Mills Part A: Reporting and Monitoring Obligations Monitoring and Reporting The defendant must accept the supervision of Corrective Services NSW ("CSNSW") until the end of the Order. The defendant must report to the Department Supervising Officer ("DSO") or any other person supervising him as directed by the DSO. The defendant must follow all reasonable directions by his DSO or any other person supervising him. 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. Electronic Monitoring 4B. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided at least 3 days before it is due to start. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. The defendant must not deviate from his approved schedule of movements except in an emergency. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation The defendant must live at an address approved by his DSO. The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions The defendant must not leave New South Wales without the approval of CSNSW. The defendant must surrender any passports held by the defendant to the Commissioner. The defendant must not go to a place if his DSO tells him he cannot go there. Part D: Employment, finance and education If the defendant is unemployed, the defendant must make himself available for education, training or participation in a personal development program as directed by the DSO. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol The defendant must not, while governed by these orders, have a prescribed content of alcohol, being that amount prescribed as the maximum amount allowable for a person who is entitled to drive a motor vehicle on a public road (namely, 0.05). 20A. The defendant must not possess or use illegal drugs. 20B. The defendant must not possess or use prescription medication, other than as prescribed. The defendant must submit to testing for drugs and alcohol as directed by his DSO. The defendant must not enter any licenced premises to which his DSO objects. Such objection shall be made in writing (including text message) within 24 hours of the provision of the weekly plan that includes said licenced premises under condition 5 herein, or 6 hours in advance of intended attendance, notified in accordance with condition 6. Under no circumstances is attendance at licenced premises to be included in "An emergency" in accordance with condition 7. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Association with Children 23A. The defendant must not deliberately approach or make contact with any female who he knows or suspects, is, or may be under 18 without prior approval of his DSO who is entitled to approve of the approach or contact only if the defendant is in the company of a pre-approved chaperone. Incidental contact with a female under 18 in the give and take of ordinary life such as in her capacity as a shop assistant when the defendant is making a bona fide purchase does not constitute a breach of this condition. 23B. If the defendant commences to form a relationship with a person who is the parent or guardian or has care and control of a female child under the age of 18 years, he must notify the DSO of that circumstance as soon as possible. The DSO may want to tell the person that the defendant is under an extended supervision order, the reasons for it and the conditions relating to contact with females under the age of 18 years and the defendant must permit that disclosure. Associations with Adults The defendant must not associate with people that his DSO tells him not to. The defendant must not associate with any people who are consuming or under the influence of illegal drugs. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Weapons The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998. The defendant must not carry on his person, at any time he has left his residence, any knife, syringe or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint. Part H: Access to the internet and other electronic communication The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part I: Search and seizure If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f g below) is necessary: for the safety and welfare of residents or staff or persons present at the defendant's approved address; to monitor the defendant's compliance with this order; or because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: search and inspection of any part of, or any thing in, the defendant's approved address; search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; 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 search and examination of his person. For the purposes of the above Condition: a search of the defendant means a garment search or a pat-down search. to the extent practicable, a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW or NSW Police of the same sex as the defendant under the direction of the DSO. 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. During a search carried out pursuant to the above conditions, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: the safety of residents or of staff at the defendant's approved address; the welfare or safety of any member of the public or any other person; or the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 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 the above conditions. Part J: Access to pornographic, violent and classified material 40. The defendant must notify his DSO if he has purchased, is in possession of or has accessed or obtained material that is classified or could be classified as X18+, Category 2 Restricted and Category 1 Restricted. 40A. The defendant must obey any reasonable directions of his DSO in relation to the access, viewing, possession or purchase of the material identified in condition 40 above. Part K: Personal details and appearance The defendant must not change his name from "Patrick Michael Mills" or use any other name without the approval of his DSO. The defendant must not use any alias, log-in name, or a name other than "Patrick Michael Mills" or use any email address other than those known to the DSO under Condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. The defendant must not change his appearance without the approval of his DSO. The defendant must let CSNSW photograph him. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part L: Medical intervention and treatment The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. The defendant must take all medications that are prescribed to him by his healthcare practitioners. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Amendments 28 March 2019 - Attached Conditions Condition Part E Drugs and alcohol - fourth paragraph amend condition 6 to read condition 5; amend condition 7 to read condition 6; amend condition 8 to read condition 7. 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: 28 March 2019