State of New South Wales v Moore

Supreme Court of NSW|2020-08-28|Before: Wilson J

Solicitors: Crown Solicitors Office NSW (Plaintiff) Legal Aid NSW (Defendant)

Crown Solicitors Office NSW (Public interest immunity claim) File Number(s): 2020/203111 Publication restriction: Nil

Judgment

HER HONOUR: On 2 June 2016, Bradley Moore was sentenced before the District Court of New South Wales sitting at Newcastle for the offences of using a carriage service to procure a person under the age of 16 years for sexual activity, and possessing child abuse material. For the former offence, contrary to s 474.26(1) of the Crimes Act 1914 (Cth), a sentence of 4 years imprisonment was imposed, with a non-parole period ("NPP") of 2 years and 6 months specified. For the latter offence, contrary to s 91H(2) of the Crimes Act 1900 (NSW), a term of 2 years imprisonment was imposed, cumulative by six months on the federal sentence. The defendant was eligible for release to parole on 7 March 2019, but he was not released.

The State's Case

The State read the affidavits of Daniel Payton of 26 June 2020, and of Ann-Marie Najjarin of 5 July 2020, 26 June 2020, and 26 August 2020 (from which Annexure D was excluded after objection was taken to it). Ms Najjarin produced a quantity of documentary material, including a copy of the defendant's criminal history, the facts and evidence of his sexual crimes, the remarks of the judge who sentenced the defendant in 2016, reports of psychiatrists who have assessed him from time to time, material from the defendant's NSW Corrective Services ("NSWCS") file, a risk assessment report, and a risk management report.
Some of the more salient parts of the evidence are set out below.

Criminal History

The defendant was first convicted for a criminal offence when he appeared before the Wallsend Court of Petty Sessions (as the Local Court was then known) in September 1981 for offences of possessing and smoking Indian hemp, and possessing utensils to smoke the drug. He was convicted and fined.
In October 1988, the defendant was convicted of three counts of indecently assaulting a person under 16 and under authority, and sentenced to two community service orders of 200 hours each and a recognisance pursuant to s 558 of the Crimes Act 1900 for a period of 4 years, conditional upon accepting the supervision of the Probation and Parole Service.
In May 1999, the defendant was found not guilty after trial by jury of a number of charges, including one of sexual intercourse without consent, and two of committing an act of gross indecency with a male under 18 years.
He was convicted of an offence of obtaining money by deception in 2005 and placed on another good behaviour bond, for 2 years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), conditional upon the acceptance of psychiatric treatment and counselling.
The offences for which he is presently serving the final days of his sentence were imposed on 2 June 2016. A correction (the nature of which is not presently important) was made to the sentence by the sentencing court later, on 21 October 2010. When at liberty awaiting sentence for those offences, the defendant breached his bail and was arrested. The facts of the breach are of some relevance.

The Facts of the Defendant's Sexual Crimes

The 1988 convictions relate to offences committed by the defendant when he was a resident of a commune located near Kempsey. The three young boys against whom he offended were also residents (with their respective families) of the commune. The defendant had befriended the boys and their parents and was regarded as a trusted family friend.
The first of the victims was a 13 year old boy who was staying overnight at the defendant's house, intending to shoot rats with him. He slept in the defendant's bed with him. Neither wore nightclothes. At some stage during the evening the defendant began to fondle the boy's penis. The child protested; he was frightened and "froze" with fear.
Another commune resident, an 11 year old boy, visited the defendant's home early one morning, to find the defendant in bed. He climbed into the defendant's bed with him. The defendant began to tickle the boy, and then to touch him in the area of his penis. A short time later, the boy's 14 year old brother arrived at the house, and the younger boy got out of the defendant's bed. His brother got into the bed. The defendant began to cuddle and tickle the boy on his lower back and bottom, placing his hand inside the boy's clothing. Soon after, both boys left the house.
The matter came to light after the boys all spoke together about the defendant's assaults upon them. They told their families, and police were involved. The defendant was interviewed, and made admissions to the assaults, although portraying each as a mutually desired encounter; the final two being gestures of affection rather than acts done for sexual gratification.
The 1998 matters, of which the defendant was acquitted, involved alleged sexual activity with two boys, during which the defendant provided cannabis to the boys. There was an issue at trial as to the defendant's knowledge of the ages of the boys.
The current sentence relates to offences uncovered by police after a complaint was made about the defendant's on-line activities. He was arrested and charged on 2 May 2015.
When at liberty awaiting the determination of those charges the defendant was arrested for breaching his bail. Conditions of bail prohibited the defendant from being alone with children aged under 18 years, or going within 100 metres of any place frequented by children. He was also precluded from possessing any internet capable device or accessing the internet.
In February 2016 the defendant attended a shopping complex and approached a group of boys, handing out his card and offering the boys a sum of money in exchange for their mobile telephone numbers. One boy took the money and provided his number.
Over the following fortnight the boy, aged 16 years, received numerous text messages from the defendant, who referred to the boy as "babe" and "sweet". The defendant sent messages such as "I love you", asked him to send "sexy pics" of himself, asked him about having a "hard" "dick" on awakening, ending messages with "suck you later". He also met the boy on a number of occasions and gave him gifts such as a pair of Nike Ultra Air Max shoes, alcohol and jewellery.
The defendant used a new Samsung Galaxy internet capable mobile telephone to communicate with the boy. When he was arrested at his home for breaching bail, the defendant tried to hide the Samsung phone. He refused to disclose the access code for the phone to police.
The text exchanges between the defendant and the boy are in evidence as an annexure to the affidavit of Detective Senior Constable Payton; they make for disturbing reading, particularly having regard to the conditions of bail which then prohibited conduct of this very nature.
The index offences involved the identification of the defendant as a person using on-line social media platforms to approach boys. Police used a covertly fictitious on-line character, a 14 year old boy, to investigate the defendant's activities. Over a 10 week period from March to May 2015 the defendant engaged in explicit sexual conversations with the fictitious 14 year old, describing sexual acts he would like to perform on the boy, and sending pictures to him, such as an image of what he said was his penis, and an image of a naked pre-pubescent boy. The defendant also sent the fictitious boy a new pre-paid mobile telephone to use to communicate with him, telling him at one stage that "we will have to be a secret you are under age". In one Skype communication the defendant filmed himself via webcam masturbating during the conversation whilst the fictitious 14 year old was on-line.
He ultimately arranged to meet the fictitious boy for sex, of a nature he described in explicit (and disturbing) detail, and was arrested at the meeting place. When his (parents') home was searched, a quantity of child abuse material was found on a laptop computer (an estimated 284-714 images) and on an external hard drive (between 1238 and 2776 images). Some of the images depicted penetrative sexual acts between a child and an adult, this being the second most serious type of child abuse imagery. They showed what the sentencing judge described as "young prepubescent boys", assessed as such by reference to their "small stature and lack of genital hair".

The Sentencing Remarks

In sentencing the defendant for these crimes her Honour Judge Syme concluded that the defendant had been well aware of the criminality of his conduct in engaging sexually with the (fictitious) 14 year old boy. Her Honour did not accept the defendant's claims to others that he had no paraphilic tendencies and had not believed that the boy would engage in sexual activity with him. She concluded, to the contrary, that the defendant was attracted to underage males, and had a very real intention to carry out the sexual activity he described so vividly in communications and conversations with the boy persona. He Honour viewed the federal offence as a serious example of an offence of its type.
Of the child abuse offence the sentencing judge observed that the images involved young boys and were of a "very distasteful nature". She concluded that it was an offence of moderate seriousness.
Her Honour thought that the defendant, "[…] shows little insight into the consequences of his offending. He shows, I find, a callous disregard to the victims of the child abuse material and no insight into the probable consequences for a child who he thought he was procuring for penetrative sexual activity. He apparently has little insight into the personal consequences for children often being forced, or convinced to participate in the activities depicted in the child abuse material or for the consequences for young people who are convinced by online activity to make themselves available for sexual activity."
Referring to the defendant's mental illness, her Honour noted that he had been diagnosed with a bi-polar disorder, which he had probably had since his mid-twenties. Although the defendant generally took prescribed medications, sometimes he did not, and it was against a background of the defendant's failure to take necessary medication that the offences occurred. Some life events, including the death of a much loved dog, had caused the defendant's condition to deteriorate, and he ceased to be compliant with treatment, instead utilising a home-made "neural stimulator". This device may have caused the defendant to become manic, and he reported to his psychiatrist that he "felt a stirring in his loins". In circumstances where the defendant had lost a considerable amount of weight after bariatric surgery, the sentencing judge concluded that the defendant viewed sexual encounters with a young person as a possibility.
The sentencing judge was concerned at the defendant's lack of insight, and his failure to comply with a necessary medication regime. She thought specific deterrence had a significant role to play in the imposition of sentence. Her Honour could not assess the defendant's prospects of rehabilitation; much depended on the defendant undertaking treatment in custody, and future compliance with psychiatric treatment.
An appeal by the defendant against the asserted harshness of the sentence was dismissed by the Court of Criminal Appeal, with Beazley P (with whom Garling J and Hidden AJ agreed) observing that the sentence imposed by Syme DCJ was a lenient one: Moore v R [2018] NSWCCA 26 at [32].

Past Psychiatric Assessments

Psychiatric and psychological assessments were prepared in readiness for those occasions in 1988, 2005, and 2016 when the defendant faced sentence.
Mr Nicholls, psychologist, saw the defendant between March and August 1988 at roughly the time the 1988 offences were before the courts. He concluded that the applicant was "not necessarily a paedophile".
Dr Leonard Lambeth, psychiatrist, saw the defendant ahead of his sentence hearing for the 1988 offences. The defendant gave the doctor an account of the offences which significantly contradicted the facts as presented before the sentencing court, and minimised or denied any criminality (despite having pleaded guilty). He portrayed the first victim as "ahead of his years with regard to his sexuality" and claimed to have done no more than masturbated whilst the boy happily did likewise, with no mutual touching involved. He described giving the other two victims "a cuddle" and claimed nothing sexual had occurred. He blamed the charges upon "enmity" from members of the commune who objected to his stricter views about child rearing.
Dr Lambeth, who thought the defendant was "open and frank" about his conduct with the boys, without minimising what had occurred, concluded that the defendant had a Borderline Personality Disorder characterised by "identity disturbance" evidenced by "his so-called bi-sexuality". The doctor concluded that the defendant was "not a paedophile" and did not constitute a threat to boys.
Dr Anthony Slowiaczek treated the defendant from 2004 to 2016, with in excess of 100 consultations in that time. He regarded the defendant as "quite psychiatrically impaired" with a long history of depression and a life of "significant despair and suicidal ideation".
A number of reports written by Dr Slowiaczek are in evidence. The diagnosis given by the doctor has changed over time, commencing with Major Depression, through a Borderline Personality Disorder, to a Bi-Polar Disorder and a mild Psychotic Disorder.
At the time of the offences of which the defendant was convicted in 2016 Dr Slowiaczek reported that the defendant had lost his dog and been grief stricken, with that grief manifesting - probably due to the use of a homemade "neural stimulator" - in a manic episode. He lost weight following bariatric surgery and began using the internet to engage with others. The defendant told Dr Slowiaczek that he "was going back on the market". The doctor concluded that the defendant was in "an abnormal mental state" at the time of the commission of the offences. He opined that the defendant required "sexual offender rehabilitation for his paedophilia".

Sentencing Reports

Having been remanded in custody as a consequence of the breach of his bail in March 2016 the defendant was seen by Emily Baron, a "Provisional Psychologist" within NSWCS, for a risk assessment. She thought the defendant showed "distorted thinking" concerning teenage males; he told her he had "smoked pot" with one of the 1998 complainants, and shared a bed with one of the 1988 victims, and saw nothing odd or wrong about this conduct. He claimed to have ceased taking medication for his mental illness because of problems with swallowing following surgery; Syme DCJ specifically rejected this assertion, regarding it as an untruthful statement.
He denied targeting boys on-line, asserting to Ms Baron that he used the internet to view pornography and engage with males. The defendant took "some responsibility" for the offending behaviour, but minimised the criminality of his conduct and denied sexual interest in children or teenagers. (The sentencing judge also rejected this assertion.) Ms Baron thought that "there may be some paedophilic interests present" and assessed the defendant (using the STATIC-99R tool) as within the "moderate-high category" for risk of recidivism. She thought treatment was indicated for the defendant.
A pre-sentence report prepared for the sentencing court in June 2016 reported that the defendant denied any sexual interest in children and both minimised the seriousness of his offending conduct, and tended to blame his manic state for what he had done. The author of the report concluded that the defendant posed a "medium - high" risk of reoffending, using the Level of Service Inventory - Revised actuarial tool ("LSI-R").

CSNSW Reports and Notes

As the defendant approached the end of the NPP of the sentence imposed upon him he was assessed for suitability for release to parole. A report of February 2019 noted that the defendant did not accept responsibility for his offending conduct, claiming to have been "groomed" by the on-line covert police operative. He denied having sought contact with a child and said he had not known what was happening, blaming police for "luring" him into sexualised chatting. It was noted that "male children may be at risk" from the defendant, and it was considered that he should be supervised when in the company of children. He was regarded as "requiring High Intensity Sex Offender Programme" ("HISOP").
The defendant had not incurred any institutional offences during the course of his sentence and his conduct in custody had not been a cause of concern. When subject to supervision in the community his response had been satisfactory.
Supervision on release to parole was needed at a high level in the opinion of the report authors, the defendant having been assessed as posing a medium/low risk of reoffending according to the LSI-R and, on psychological assessment, presenting a "well above average" risk of committing a further sex offence.
Ultimately, parole was refused as the defendant had not completed the HISOP.
There is some evidence that the defendant did not undertake a sex offenders programme until forced to by the denial of parole, because he refused to accept that he needed treatment of that nature. Although he consented to undertake such a programme soon after he was sentenced in 2016, he insisted that it was not necessary. In a written document completed in August 2016 the defendant, in giving a description of "what happened", referred to his offence as one he was "entrapped" into, asserting "entrapment is evil tactics". He gave as the person responsible for his sexual offending, "entrapment by officers - my mental health at the time […] the real criminals here the Police".
In a submission in support of parole, the defendant asserted, however, that he had not undertaken HISOP at an earlier time because the programme was only offered at the Long Bay Complex, and he regarded his safety as in jeopardy at that prison, and for that reason had consistently refused to be transferred there.
A pre-release report of November 2019, written at a time after the defendant had commenced the HISOP, observed that his attitude to his offending conduct had changed, and he had expressed himself as "ashamed and contrite" about the offending. Notwithstanding the newly found remorse, the authors noted that: "While it is positive that Mr Moore has begun to develop some insight into his offending behaviour, further development is required. His treating psychologist identified that he continues to exhibit manipulative and grooming behaviours, particularly in relation to cell-mates. It is concerning that it appears that he continues to target young and vulnerable inmates in a manipulative manner."
It was considered that, whilst the defendant had begun to have some understanding of risk factors, he continued to minimise his crimes and blame external factors for them. Supervision of him would be required.
Parole was, again, refused. The reasons for the refusal were that the defendant had not completed HISOP, and he continued to engage in grooming and manipulative behaviour, particularly towards young and vulnerable prisoners.
In his own written submissions in support of a grant of parole the defendant complained of "manifest injustice" in the denial of parole, and asserted that parole was his "hard earned right". He referred to mistakes made by the court when he was sentenced, and labelled his detention as "torture". In one submission he said: "Do you have any comprehension or empathy for the accumulative mental anguish that this situation, coupled with all the details I have related in this submission/appeal, is having on me and mine. It is almost criminal how the system allows cruel and torturous impersonal punishment or custodial correction and rehabilitation to a man like me that is more based on revenge than correction. I have suffered enough…PLEASE LET ME GO HOME."
A Progress Report relevant to the defendant's completion of the HISOP was prepared on 24 April 2020. The defendant began the programme in July 2019. His attendance was good and he understood the programme content, but his engagement with it fluctuated, and he experienced significant interpersonal problems with other participants. He engaged in conduct not approved by programme facilitators, such as pinning a "collage" of images of adolescent males to his wall, many of whom wore only swimwear. This and his conduct to others engaged with the programme was such that he was formally warned about it, made subject to behaviour management plans and, on one occasion, suspended.
The defendant was noted to have difficulty in regulating his own conduct and his interactions with others. He was perceived to attempt to manipulate cell placements to secure younger cellmates, and to cultivate younger prisoners.
Notes made from time to time by CSNSW staff record complaints about the defendant intimidating cellmates, requiring cell placements to be frequently altered. Staff formed the view that the defendant was endeavouring to manipulate matters with a view to being housed alone in a one person cell. An assertion by him in October 2017 that a new cellmate had thrown boiling water over him causing injury was referred to police; after investigation police concluded that the injuries were self-inflicted and the incident fabricated. The defendant relied upon this "assault" upon him in submissions seeking parole. He asserted that he had been "left permanently scarred" by it, falsely complaining that he had been denied access to police at the time.

Risk Assessment Report

On 12 February 2020, Mandy Lau, Acting Senior Psychologist of the Serious Offenders Assessment Unit prepared a Risk Assessment Report ("RAR") in relation to the defendant, at the request of CSNSW, and in anticipation of an application under the Act (which requires a risk assessment report). The recommendations expressed by Ms Lau are supported by Cherice Cieplucha, chief psychologist of the Risk Management Programmes.
Ms Lau met with and interviewed the defendant on three occasions; on 20 January 2020, 21 January 2020 and 24 January 2020, for approximately five hours. She was also provided with relevant documentary material.
At the time of the interview, the defendant was a 58 year old Caucasian male. He presented "objectively euthymic and he appeared reactive in affect", becoming tearful when discussing the loss of his pet dog in 2014. He responded to all questions, although Ms Lau noted that his responses to difficult questions were vague or avoidant at times, and it required a number of attempts to redirect him. He stated that he believed he had developed "very good" insight into his offending. He was concerned that Ms Lau did not share this impression from the first two interviews. He had read through his brief twice before the third interview to ensure that he was presenting himself in a manner he believed most accurately reflected his level of insight and current risk level.
The defendant gave a history to Ms Lau. He described an uneventful childhood, growing up with his parents and one younger sister. He had a close relationship with his family. He denied any physical, emotional or sexual abuse. He stated that his parents are aware of his prior sexual offence convictions and current offences, but unaware of his prior sexual offence charges. His parents remain supportive of him. He reported an intention to reside with them upon release and assist them with daily living tasks due to their elderly age.
The defendant described no issues with forming and maintaining positive relationships throughout his primary years, but described himself as a loner in high school. He reported satisfactory academic achievements. He completed high school and was offered opportunities to go to university, but chose to enter the workforce instead. He worked as a salesman in flooring businesses, before joining his primary school headmaster to operate a business selling hats. This business failed in the early 1990s which led him to file for bankruptcy. Following an injury in 2004 (caused by a criminal assault), he reported an inability to work for a number of years due to his mental health condition and relied on the Disability Support pension as his primary source of income. In 2007, when his condition had improved, he started a dog club, which led him to start a dog-sitting business, which he continued until he was arrested for these offences.
The defendant reported using cannabis as a young adult, and continuing to use it throughout most of his life. He reported using methamphetamines for a period in the early 1990s. He told Ms Lau that he had ceased use of any illicit substances since the assault in 2004. Ms Lau stated that there seems to be limited evidence to suggest that his offending is directly related to substance use. It was noted that he had previously reported smoking cannabis with at least one of the alleged victims of his prior sexual offence charges. Ms Lau noted that, in his pre-group interview for HISOP, the defendant disclosed difficulties in socialising with others and stated that he would use cannabis as a way of introducing himself to other people or to "get into their pants".
The defendant reported no long-term relationships. He stated that he preferred casual sexual relationships. His longest relationship lasted approximately 18 months with a male partner. He stated that during this relationship he continued to engage in casual sexual relationships with strangers. He reported forming a romantic relationship with a female peer during his senior years of high school, his only relationship with a female, although he reported some casual sexual relationships with female partners during his younger years.
The defendant moved to Coffs Harbour following his first series of sexual offence convictions, in his late twenties. He engaged in a relationship with a 19 year old male partner who was involved in drug dealing, terminated due to his partner's infidelity. In his 30s, he reported engaging in another relationship with an 18 year old male partner, with whom he resided briefly, before the relationship ended due to dishonesty and his partner supposedly using his car to commit illegal activities. He spoke of visiting Bali in his late thirties, where he met a 22 year old male, whom he financially supported to come and stay with him in Australia for 8 weeks.
The defendant reported not having been in a relationship since the age of 43 due to the psychological effects of the serious assault which occurred in 2004, depression and low self-esteem. The defendant told Ms Lau that he intentionally avoids forming relationships with similar aged peers as he believes that people over the age of 30 are unwilling to engage in casual relationships. He reported no intentions to "actively develop any intimate romantic relationships upon his release". Ms Lau stated that the defendant's lack of meaningful significant relationships, and his relationship with his pet dog, as well as perception about relationships, suggested that he experienced intimacy deficits.
Ms Lau noted that the defendant had previously described his pet dog as his "greatest love" and "soul mate". Ms Lau pointed to the report of Dr Slowiaczek dated 25 May 2016, where it was stated that the defendant had expressed suicidal intentions upon his dog's death so that he could be buried with him and be "together forever". An Offender Integrated Management System, or "OIMS" case note, dated 27 May 2019 stated that the defendant had given the author an impression that his dog, named JD, was a human partner; it was noted that the defendant "advised he has never been married however has been in one significant relationship with a man named Jaydee (deceased 2014 - age 38). He indicated that he was with Jaydee for 14 years until his passing due to cancer […]".
The defendant reported that over his lifetime he estimated that he had had over 100 sexual partners, most of whom were strangers. He stated that, in addition to seeking sexual partners at "beats" and nude beaches, he frequently waited outside drinking venues to offer lifts to strangers with an aim that he may be able to engage in sexual activities with them along the way. He denied that these partners were coerced.
The defendant stated that his pattern of sexual activities continued until he was diagnosed with cancer at aged 26, when he underwent surgery before moving to a farming commune to live an "alternative" lifestyle. He described commune life to be "very open and casual". During this period, he committed his first series of sexual offences involving three victims aged between 11 and 14 years old, forcing him to leave the commune as a result of these offences. Whilst in his late thirties, he reported befriending two young males aged 17 and 19 years and engaging in "casual sex" with the older male. At some point, these two males made sexual allegations against him. (The alleged victims were 15 and 17 years old.)
Ms Lau noted that, from the defendant's description of his pattern of sexual activities, sexual preoccupation was likely a relevant factor throughout most periods of his life. She also noted that he used sexualised language to describe his sexual partners, activities and preference. The defendant told Ms Lau that, up until he was 30 years old, he had a sexual preference for males between the ages of 16 to 20 years old. He told Ms Lau that his current sexual preference is males between the ages of 20 to 30 years old. Ms Lau noted that, during his participation in treatment, he continued to identify a sexual preference for young males between the ages of 14 to 20 years old and young-looking men, and that it was uncertain whether he reported a more mature age group during the risk assessment in order to portray himself in a more favourable light. Ms Lau noted it was also possible that treatment had assisted him in being mindful in not sexualising young people. However, pictures of teenage or young males in swimwear were found with the defendant, which he claimed were selected because he was sexually attracted to them. Ms Lau stated that "this appears to be some evidence to suggest the sexualisation of young males remains a relevant risk area".
Ms Lau traced the defendant's mental health history, relying on psychological and psychiatric reports provided to her. He was diagnosed with anxiety and reactive depression in 1988 by community psychologist Mr Nicholas. Dr Lambeth, psychiatrist, in 1988 opined that the defendant suffered from a Borderline Personality Disorder, impacting on his sense of self, his coping skills, and relationship stability. Ms Lau noted that, from both reports, it was unclear whether there was a relationship between the defendant's mental health and his offending.
In 2004, the defendant began seeing Dr Slowiaczek, and continued to see him until his incarceration in 2016. He was diagnosed with a severe Major Depressive Disorder and a Borderline Personality Disorder. In Dr Slowiaczek's report of 25 May 2016, he diagnosed the defendant with Bipolar disorder, and mild psychotic features including occasional paranoid thinking, constant auditory hallucinations and idiosyncratic spiritualism. Following the death of his dog, Dr Slowiaczek described the defendant to have become highly energised and more spiritual, and to have triggered a manic episode. It was during this period of time that the defendant engaged in online activities that contributed to his sexual offence convictions.
In relation to his sexual offences, the defendant admitted to Ms Lau that he struggled to accept his offending. Of the 2015 offences he claimed that he accepted responsibility for his actions and no longer perceived the circumstances leading to his charges to be "unfair" or viewed himself as a victim of "police entrapment". Ms Lau noted however that treatment progress notes suggested the defendant continued to minimise his behaviour and refer to the index offence as "entrapment" until, at least, the early stages of treatment in 2019.
The defendant denied masturbating during his communications with the assumed identity, and denied that his intention to meet was for sexual activities. He expressed distorted thinking in relation to the meeting, and claimed to have made attempts to cease online communications with the assumed identity, alleging that the assumed identity was persistent in maintaining contact. Ms Lau noted that the defendant's intentions to meet with the assumed identity had changed throughout his incarceration, at one stage claiming that his intention was innocuous, planning to watch a movie; at another stage denying plans entirely, and in another statement appearing to acknowledge he was pursing the assumed identity for sex.
In relation to the offence of possession of child abuse material, the defendant claimed that all of the images he collected were of persons over the age of 16 years old. He claimed that he had assumed the age of consent for NSW applied to collection of sexual images (only discovering otherwise during a recent treatment group session). For this reason, he was unaware that his possession of the images would be considered child abuse material, and claimed the age of the subjects were 16 to 18 years. [The sentencing judge found otherwise.]
Of his supervision in the community, Ms Lau noted that the defendant's only contact with Community Corrections was when he was sentenced to a 4-year supervised recognizance and a 200 hour Community Service Order for the 1988 offences. Records showed that he successfully completed this within three months and that he engaged in psychological counselling to address his offending behaviour. His response to supervision was also deemed satisfactory and terminated after 12 months for this reason.
In custody, the defendant has not incurred any institutional misconduct charges. The defendant had obtained employment for most of the time prior to commencing the HISOP programme, with exceptions when injured following an asserted incident with hot water, and another unclear 7 month period in 2018. There were generally no adverse work reports relating to the various positions that he held.
The defendant participated in the HISOP in 2019. During the initial stages of treatment, the defendant appeared to display some challenging behaviour both in and outside of group sessions, including interpersonal conflicts with other inmates, poor problem-solving skills in response to institutional issues, disrespectful behaviour towards other inmates, and engagement in attention-seeking behaviour in sessions. He was noted to be dismissive of feedback from others initially, but his responses improved as he progressed through treatment. The defendant took notes during some group sessions, which, when reviewed, were about other group members and inappropriate, unhelpful and a breach of confidentiality. He initially lacked insight into this behaviour and denied the inappropriateness of his actions, later acknowledging it following completion of a further task aimed to address this behaviour. Ms Lau noted that it appears that the defendant continues to experience difficulties with forming or managing interpersonal relationships.
Ms Lau was made aware that the defendant was subject to a Behaviour Support Plan from 7 January 2020, after he was found with a collection of magazine pictures of males on posters on his cell wall, the majority in beach and swimwear. When Ms Lau asked the defendant about the pictures, he claimed that he collected them after a discussion with his HISOP treating psychologist regarding sexuality, and claimed the majority of the photos were males between 20 to 30 years old, some reminding him of previous sexual partners. He justified the images as not inappropriate, as they were taken from surfing magazines readily available at the library.
Various risk assessments were administered to the defendant in custody. An assessment in 2019 by Community Corrections Officer Ms Unicomb using the LSI-R, an actuarial risk instrument that provides an indication of a level of risk of general and violent recidivism, placed the defendant's risks/needs as falling within the "low-medium risk category for general and violent offending". The STATIC Risk Factors actuarial risk assessment instrument ("STATIC-99R"), that ranks offenders according to their relative risk for sexual recidivism and produces estimates of future risk, was used by CSNSW psychologists to assess the defendant on three occasions. On 21 June 2016, the defendant scored 5; on 24 August 2018 he scored 7 and on 31 August 2018 he scored 6.
Ms Lau readministered the STATIC-99R and found the defendant's score to be 6, placing him in the "Well Above Average Risk" level, or level IVb. She noted that the authors of the STATIC-99R had indicated that level IV offenders "would be perceptibly higher risk than the typical offender". Risk factors identified include the absence of live-in intimate relationships, previous charges and convictions, a conviction for a non-contact sexual offence, and victim profiles. Ms Lau noted that the rate of recidivism for individuals with a score of 6 "is estimated to be 3.77 times higher than that of the 'typical' sex offender". The limitations of this instrument were also noted.
Assessment of dynamic risk factors, by administration of the "STABLE-2007" tool, returned a score of "17", which is suggestive of a "high density of criminogenic needs relative to other male sexual offenders." The risk areas that were identified to be relevant to the defendant included sexual pre-occupation, deviant sexual interest, intimacy deficits, poor problem-solving and negative emotionality.
Combining the score results from both the STABLE-2007 and STATIC-99R tools, a composite assessment of risks/needs was generated for the defendant in the "well above average" risk level. Ms Lau noted that, in accordance with CSNSW policy, "this combined assessment of risk/needs level would suggest [the defendant] will require a High level of intervention and/or supervision, according to the principles of Risk/Needs/Responsivity".
Ms Lau opined that a number of risk areas are relevant to the defendant, including sexual self-regulation. The defendant's description of frequent impersonal sexual activities suggested that sexual preoccupation was likely a relevant factor throughout most periods in his life. The defendant reported an increase in sexually motivated activities after experiencing a low sex drive for a number of years after the assault in 2004. Within an 11 week period before his arrest, the defendant described his internet use as increasing significantly, viewing sexualised images of young males and engaging in sexualised communication and activities that led to the index offence.
Ms Lau also opined that intimacy deficits were a risk factor for the defendant. The defendant reported a lack of intimate friendships throughout his life, and felt that his relationships with others had been transactional, obtaining sex from younger partners for financial or material benefits from him. He said that he did not desire intimate relationships with others, and also described a lack of intimate adult friendships. He also reported that his current personal support network consists of his parents, sister and sister's husband. He described a close relationship with his sister and her husband, but minimal contact with them whilst he is in custody. In relation to the defendant's plan to reside with his parents upon his release, Ms Lau noted the advanced age of his parents, stating they may be unlikely to be able to actively assist the defendant in monitoring and managing his risk of reoffending, nor play an active role in supporting his self-management of risk areas. His mother continues to minimise his offences, and the defendant reported that his parents remain unaware that he faced sexual charges at trial in 1998.
General self-regulation is another risk factor, particularly negative emotionality. Ms Lau noted that it appears he might still hold a perception that the circumstances that led to his arrest were unfair. Throughout his participation in the HISOP programme, it was noted that the defendant had been involved in interpersonal conflicts with some of the other inmates. Ms Lau believed that the defendant has a tendency to ruminate on perceived injustice that he may be subjected to by the justice system. He also appears to primarily demonstrate deficits in relation to problem-solving and interpersonal relationships. He failed to recognise how factors such as his choice of partners and relationship skill deficits had contributed to his lack of intimate relationships, instead attributing this to him being too trusting of others and taken advantage of. Ms Lau noted that, during HISOP, progress notes described the defendant with poor problem-solving skills in response to common issues in custody, including how to manage his frustration from lock-in and cellmate complaints, despite having been incarcerated for some years by that point.
Ms Lau opined that, although the defendant had not received any further charges for sexual offences since 1998 until his current convictions, this appeared to be more reflective of psychological and physical issues that he experienced following the assault in 2004, and restricted access to the target age group after returning to reside with his parents, "rather than a reflection of active self-management". As evident from his current offences, Ms Lau stated that, when the defendant's mood improved or became elevated, and "he discovered a new avenue that allowed him to access the target age group, he resumed his offending behaviour by offering some form of support to build trust with the victim in aim to pursue the victim for sex".
Ms Lau concluded that the defendant may continue to choose young sexual partners, and his potential victims may be pubescent or vulnerable young males. He may offer support to potential victims to establish trust, and justify seeking sex from them as part of a transactional relationship. Alternatively, the defendant may "use online activities to meet his sexual needs, particularly if he is unsuccessful or perceives that he would be unsuccessful in meeting a sexual partner of his preference in person". Ms Lau noted that he appeared to continue to endorse inappropriate sexual interest in pubescent males, and given this, "he may be more likely to view sexualised images of people who match these physical characteristics". This may "in turn increase his risk of seeking child abuse material".
Ms Lau noted that, if the defendant resided with his parents upon release, this would limit an avenue for victim access by limiting "his opportunity to offer accommodation as a mean of material support to potential victims." However, Ms Lau stated that the advanced age of his parents and their attitude towards his offence, may mean that their ability to mediate the risk of reoffending would not extend beyond limiting physical access to their home or in their presence. The defendant's access to formal support from CSNSW "may also assist him in mediating his risk of offending". Ms Lau noted, however, that these supports are only available during any period when he is under supervision.
In summary, Ms Lau concluded that the defendant falls in the Well Above Average risk of sexual re-offending. She noted that, although his first series of sexual offence convictions were approximately 30 years ago, "official records and his self-report suggest involvement in a number of problematic behaviours in the meantime".
Ms Lau concluded that an additional period of supervision would allow the defendant an opportunity for gradual integration into the community with the benefit of professional supports. She noted that a network of professional supports may be crucial in assisting the defendant in "managing his risk areas as the personal support network that he has identified appears to lack a thorough understanding of his sexual offending and [the defendant] has yet to develop a high level of insight into his identified risk factors to effectively self-manage his risk". Ms Lau stated that the defendant's risk of engaging in similar behaviour "may be increased without any form of supervision".

Supplementary Risk Assessment Report

On 22 May 2020, Ms Lau prepared a supplementary risk assessment report at the request of the Crown Solicitor's Office. Ms Lau was asked to respond to two questions, namely: 1. Whether Mr Moore meets the criteria for paedophilia; and 2. Whether the assessments of risk using STATIC-99R and STABLE-2007 (separately and in combination) also capture the risk of reoffending with respect to possession of child abuse material (or whether it is limited to contact offences).
In answering these questions, Ms Lau summarised the opinions of three mental health professionals, who had previously had contact with the defendant, specifically in relation to any evidence that suggests deviant sexual interest in a particular age group. The reports of those experts are noted above, at [34]-[39].
Ms Lau outlined the diagnostic criteria for Paedophilic Disorder, according to the Diagnostic and Statistical Manual of mental Disorder - 5 ("DSM-5") as: "A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally age 13 years or younger) B. The individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty. C. The individual is at least age 16 years and at least 5 years older than the child or children in Criterion A."
Ms Lau stated that all of the victims of the defendant's sexual offence charges and convictions are aged 14 years or older, with the exception of two victims from his fist series of sexual offending (who were aged 11 and 13 years old). Ms Lau opined that the defendant does not meet the criteria for Paedophilic Disorder.
She noted however, that, given the defendant's sexual preference for males with youthful physical features and his prior "contact" sex offences against adolescents, it appeared that he had maintained a sexual interest in young males since the late 1980s.
In relation to the question posed to Ms Lau regarding whether assessments of risk using STATIC-99R and STABLE-2007 capture risk of reoffending as concerns the possession of child abuse material (or whether it is limited to contact offences), Ms Lau concluded that possession of child abuse material would be considered a sexually motivated offence and captured as one form of sexual recidivism predicted by both assessments of risk. Ms Lau stated that the normative sample used to develop the STATIC-99R assessment tool included a small number of offenders whose only known sex offences were non-contact, and thus, the STATIC-99R predictions of risk are relevant for non-contact sex offences. When interpreting the results of the STABLE-2007 test, the workbook included all crimes and the assessment was normed on a sample of offenders who had either a current or previous charge or conviction for a sexual offence, defined as a contact or non-contact offence, that are considered sexually motivated. Thus, the STABLE-2007 assessments of risk would also include possession of child abuse material.
The opinions and recommendations expressed in Ms Lau's supplementary report are supported by Samuel Ardasinkski, senior psychologist from the Serious Offenders Assessment Unit.

Risk Management Report

On 13 March 2020, Danielle Ottaway, a Community Corrections Officer within the Extended Supervision Order Team, prepared a Risk Management Report ("RMR"), in accordance with s 9(3)(d1) and 17(4)(d1) of the Act. Ms Ottaway's report was endorsed by Kelli Grabham, High Risk Offender Applications and Operational Governance Officer, within the Extended Supervision Order Team on the same date.
Ms Ottaway interviewed the defendant, contacted his treating psychologist, and reviewed CSNSW records and other relevant documentary material, including the RAR prepared by Ms Lau on 12 February 2020.
Ms Ottaway noted that the defendant had had limited contact with Community Corrections, only having been subject to one period of supervision in 1988-1989; where his response was deemed satisfactory and he engaged in treatment with a psychologist (terminated after 12 months). Ms Ottaway also noted that an assessment undertaken using the LSI-R on 14 November 2019 found the defendant to fall in the Low-Medium risk level for general reoffending, and a psychological risk assessment undertaken by Ms Lau on 6 February 2020 assessed the defendant to fall in the Well Above Average risk category of sexual offending. Ms Ottaway referred to the risk factors identified by Ms Lau's RAR, noting that these factors and the information contained in the RAR formed the basis for the risk management plan.
Ms Ottaway concluded that, in relation to the identified risks, management strategies to manage risks would include weekly face-to-face interviews; conducted with the defendant at home, at a Community Corrections Office or at another location in the community, with a focus on the development of a comprehensive case plan, and monitoring and challenging the defendant's attitudes, particularly towards his offending behaviour. The defendant would be encouraged to engage in pro-social community activities, to develop an increased awareness of the risks associated with reoffending, to challenge any criminalised and sexualised thoughts, and to encourage him to develop and maintain a law-abiding lifestyle.
The defendant's schedule would also be discussed, and he would be encouraged to plan appointments and appropriate pro-social activities to avoid high risk situations associated with his offending behaviour, particularly contact with children. It was also noted that, given the defendant's use of social media in his past offending behaviour, interviews would provide the opportunity to conduct device searches to identify any child access and anti-social associations (if permitted by order conditions).
The main limitation of this approach is the defendant's capacity to be forthcoming about his thinking and behaviour, which is unknown given that he has not been subject to Community Corrections supervision since 1989.
Home visits, field visits and surveillance by the Extended Supervision Order Investigation Team ("ESOIT") would occur, at a minimum, monthly, and involve both scheduled and unannounced visits. These would be coupled with field surveillance and observations.
The utility of field visits can be adversely affected by the availability of resources and, given the proposal to reside at his parents' home in the greater Newcastle area, Ms Ottoway observed that there would not be the same "wrap around services" available in Sydney 24 hours a day, or access to Forensic Psychology Services, also in Sydney.
Weekly contact would be maintained with third parties, such as the ESOIT, medical practitioners, and the defendant's parents, to identify issues of concern, and monitor progress and order compliance. Again, this strategy is reliant on the defendant being forthcoming about his thoughts, behaviours, actions or intentions; and the willingness of third parties to be similarly forthcoming.
Electronic monitoring, schedules of activities and curfews would also provide tools by which to monitor the defendant's movements and activities. This would allow certain areas to be identified as high risk and "exclusion zones", sending alerts to CSNSW in the event that the defendant enters them. Submitting a weekly schedule of movements for consideration and approval would ensure that activities are safe and appropriate for the defendant to participate in prior to approval being provided. There are limitations to the efficacy of such measures: they would not prevent or detect high risk behaviour or offending within approved locations, and are dependent upon electronic monitoring and the defendant's compliance with it.
Ms Ottoway proposes continued referral to CSNSW psychological services to address the defendant's sexual offending, discuss progress and identify concerns regarding his behaviour or risk. The defendant would be encouraged to incorporate strategies learnt into his daily life to assist in managing his risk of re-offending. Concerns have been raised regarding the defendant's exhibition of manipulative and grooming behaviours against cellmates, which may raise concerns about the level of insight the defendant has developed and preclude him from participating in group based therapeutic interventions in the community.
Ms Ottoway also recommends referral to psychiatric services and directing the defendant to engage in an assessment to determine his treatment needs. This would involve ongoing contact with a prescribed psychiatrist to provide specialist assessment of the effectiveness of medication, and medication compliance. A limitation of this is the defendant's history of non-compliance with mental health treatment in the lead up to his 2015 offences.
Subjecting the defendant to random and targeted drug and breath testing to ensure abstinence from alcohol and illicit substance use was also recommended by Ms Ottoway. There are limitations to the efficacy of such measures including if testing does not occur proximate to drug or alcohol use, in which case it will not be detected.
Restrictions can also be placed on the defendant's engagement with children, such as requiring him to seek approval prior to attending any private residences; and for various activities; putting in place restrictions on attendance at facilities and locations where young people are known to gather. This strategy could be used alongside others such as electronic monitoring, the use of exclusion zones and weekly schedules of movements in attempt to ensure compliance with such restrictions. If permitted, Community Corrections could also undertake searches of telecommunications devices to determine whether the defendant is engaging in prohibited contacts or conduct. However, the defendant is unable to be subject to visual surveillance 24 hours a day. Furthermore, preventing the defendant from having any contact with any child in any capacity is unrealistic given their presence in the community.
Ms Ottoway considers that the defendant should be issued clear directions not to associate with any person convicted of child sex offences, as well as directions prohibiting him from having contact with any child (unless with approval from the Departmental Supervising Officer), and restricting access to the internet and social media to prevent contact with children. This would need to be monitored closely by Community Corrections and the ESOIT through covert observations, and if permitted by the Court, searches of the defendant's telecommunications devices and computers. The effectiveness of such strategies could be limited if the defendant chose not to comply with relevant directions.
The risk management plan would be regularly reviewed.

The Defendant's Case

The defendant read the affidavits of Beryl Moore of 19 August 2020 and Simon Etherington of 27 August 2020.
Mrs Moore is the defendant's mother. She and her husband continue to support the defendant and intend that he reside with them on the expiration of his current sentence. They are both in their eighties and propose that the defendant assist them with household and garden maintenance. Mrs Moore deposes that the defendant has a considerable amount of support in the local area, with many medical service providers located within close proximity to the family home.
Mr Etherington is instructed by the defendant in the present proceedings. He has liaised with the defendant's family to ensure that appropriate treatment will be available to the defendant for his mental illness at the expiration of his sentence. To that end a referral was obtained from the defendant's general practitioner to a psychologist, and appointments have been made for the defendant to see a Newcastle area psychologist at regular intervals throughout September and October 2020. At this stage, no psychiatrist has been identified who can take the defendant as a patient, his long term doctor, Dr Slowiaczek, having retired.

The State's Submissions

The State argues that, there being no issue that the statutory preconditions relevant to the application are satisfied, the Court should conclude that the defendant poses an unacceptable risk of committing a serious offence if not supervised in the community, and thus that an ISO should be made at this preliminary stage.
The State points to the defendant's offending history and, significantly, to the evidence that suggests that he has never accepted the wrongness of his conduct, regularly minimising his criminality and blaming others, such as the police for the 2015 offences. It is submitted that the defendant has a continuing sexual interest in children, evidenced by some of his statements in the course of treatment, such as that he had "a sexual interest in children / teenagers"; and a complete lack of insight into the criminality of acting on that interest. It is argued that, absent supervision, that combination makes for an unacceptable risk that the defendant will again sexually offend against children. Were that risk to eventuate, the consequences would be terrible, with likely life-long damage to any child victim.
That there is unacceptable risk is supported by risk assessments of the defendant that suggest he poses a well above average risk of sexually reoffending.
Whilst the State acknowledges that there are other supervisory regimes to which the defendant will be subject as a registered child sex offender, those regimes are not as comprehensive as the regime that applies under an extended supervision order, and only the close supervision provided by an order under the C(HRO) Act is adequate to monitor the defendant.

The Defendant's Submissions

The defendant argues that actuarial risk assessment tools are unreliable and little or no weight can be placed upon them.
He argues that he has completed community based sentencing orders without incident, completed the HISOP in June 2020, and conducted himself in custody in such a manner that he has never been charged institutionally. His conduct evidences a clear capacity to comply with regulation of his behaviour, and statutory regulation of his conduct is available without need for the more stringent and intrusive regime provided by an order under the Act.
He points to the supervisory regimes in place by operation of the Child Protection (Offenders Registration) Act 2000 (NSW), the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), and the Child Protection (Working with Children) Act 2012 (NSW), and argues that the supervision he will be subject to is adequate to ameliorate such risk as may exist.
Further, the defendant submits that he has strong family support, and will be residing with his parents, for whom he will be undertaking some work, which will occupy him in a useful way. He has medical and psychological support available, and is committed to maintaining appropriate medical treatment for his mental illness. Those additional supports lessen the risk he may be considered to pose and it cannot be concluded to the requisite standard that he poses an unacceptable risk.

Consideration

The application must be determined bearing in mind the primary objective of the C(HRO) Act, as provided by s 3(1): 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. […]
The application having been filed within the timeframe required by s 6(1), at this preliminary stage the Court may make orders if satisfied that the defendant's current custody will expire before the matter is finally determined, and "the matters alleged in the supporting documentation would, if proved, justify the making" of an extended supervision order: s 10A. If not so satisfied, the summons must be dismissed. In State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492 at [19] R A Hulme J expressed the test thus: "[…] What the Court is required to do is proceed upon the assumption that the facts alleged in the supporting documentation are proved and consider whether those facts would justify the making of an ESO."
An extended supervision order may be made if those matters in s 5B are satisfied.
There is no issue as to those matters set out at s 5B(a), (b), and (c). As an adult who has been convicted of a serious sex offence as defined by s 5(1)(b5) of the C(HRO) Act the defendant satisfies the definition of an offender set out at s 4A of the Act. In that he was serving a term of imprisonment at the time the State filed the present application, he is a supervised offender for the purposes of s 5I(2)(a)(i) of the Act. Thus, the defendant satisfies s 5B(a), (b) and (c).
The dispute between the parties is as to whether the evidence satisfies s 5B(d) of the Act, which is in these terms: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: […] (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
To make an order the Court must be satisfied "to a high degree of probability" that the defendant poses an "unacceptable risk" if unsupervised in the community.
The term "high degree of probability" has been held to be a standard of proof which is higher than that which applies to civil claims, but less onerous than the criminal standard of proof: Attorney-General (NSW) v Tillman [2007] NSWSC 605 at [27]; Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [5] and [18].
In State of New South Wales v Holschier (No 2) [2018] NSWSC 1921, at [23], Hoeben CJ at CL, citing the decision of Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, said: "23. As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the 'risk' of the offender 'committing a serious [sex] offence if he or she is not kept under supervision' (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word 'unacceptable' - which means, relevantly, 'so far from a required standard, norm, expectation etc as not to be allowed' - is one that 'requires context in which, or parameters against which, the unacceptable risk can be measured' (see Lynn at [50]). (c) While the HRO Act does not specify 'the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made', this 'must be so' because '[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made' (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO."
The gravity of the consequences of the particular risk manifesting is a relevant consideration in determining whether or not the risk is an unacceptable one. The more severe the consequences, the more likely it will be that the risk is unacceptable, even if the likelihood of the risk manifesting is low.
The relevant risk is that the defendant will commit a serious sex offence, most likely a sex offence committed against a boy. As the State submitted, the devastating and far reaching consequences to children of being used for the sexual gratification of adults is increasingly well recognised and understood: R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [57]. It may be accepted that, if the defendant were to sexually assault or otherwise sexually engage with an underage boy, the outcome for that boy will be an adverse one, and likely severely adverse.
It is clear that there is risk.
On all of the evidence the defendant is an offender who minimises or negatives altogether his criminal conduct, or blames others for his actions. He has no insight into his criminal perversity, and there is at least some reason to conclude that his participation in the HISOP was motivated entirely by a desire to be granted parole, rather than by any true acceptance that he required treatment for it. He seems to have taken little from the programmes. It must be at least a possibility, perhaps even a strong possibility, that the defendant will pursue sexual activity with male children and teenagers upon release from custody. If he did that successfully, the consequences would be terrible.
There are, as the accused submits, statutory regimes already in existence which will provide a degree of supervision to the defendant upon his release.
The defendant is a registrable child sex offender for the purposes of the Child Protection (Offenders Registration) Act. That has consequences for his life in the community and will require him, upon release later this month, to report to the Commissioner of Police (NSW) and provide particular information to the Commissioner. The information required pursuant to s 9 of that Act is considerable, and includes his residential address and details of others who reside there, details of any internet service he may use, all email addresses and internet usernames, the details of any telephone service he may have or use, and advice of any proposed travel out of New South Wales.
Police have some limited powers to search a registrable person's residence for particular reasons, without warrant: s 16C.
The defendant's obligations under that legislation are ongoing, subject to any order made pursuant to the CHRO Act, for some fifteen years. Failure to comply with the obligations is a criminal offence carrying a maximum penalty of 5 years imprisonment upon conviction: s 17.
The Child Protection (Offenders Prohibition Orders) Act empowers the Commissioner to make an application to the Local Court for a "child protection prohibition order", being an order under Part 2 prohibiting a registrable person from specified conduct. This power can be used to seek orders, for example, prohibiting the defendant from attending places where children regularly assemble, such as schools, parks, public swimming pools, or similar places, as provided for by s 8.
To make an order relevant to a registrable person the Local Court must be satisfied of those things referred to in s 5: 5 Local Court may make child protection prohibition order (1) The Local Court may make a child protection prohibition order prohibiting a person from engaging in conduct specified in the order if it is satisfied that the person is a registrable person and that, on the balance of probabilities: (a) there is reasonable cause to believe, having regard to the nature and pattern of conduct of the person, that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and (b) the making of the order will reduce that risk. (2) The Local Court may make an order under this section against a young registrable person only if, in addition to the matters set out in subsection (1), it is satisfied that all other reasonably appropriate means of managing the conduct of the person have been considered before the order was sought. (3) In determining whether to make an order under this section against a registrable person, the Local Court is to consider the following: (a) the seriousness of each offence with respect to which the person is a registrable person, (b) the period of time since those offences were committed, (c) the age of the person when those offences were committed, (d) the age of each victim of the offences when they were committed, (e) the difference in age between the person and each such victim, (f) the person's present age, (g) the seriousness of the person's total criminal record, (h) the effect of the order sought on the person in comparison with the level of the risk that a further registrable offence may be committed by the person, (i) to the extent that they relate to the conduct sought to be prohibited, the circumstances of the person, including the person's accommodation, employment needs and integration into the community, (j) in the case of a young registrable person, the educational needs of the person, (k) any other matters it thinks relevant. (4) The Local Court is not required to be satisfied that the person is likely to pose a risk to a particular child or children or a particular class of children. (5) If a registrable person against whom an order is sought is already subject to a prohibition order and no application has been made to revoke the existing order, the Local Court must, if it decides to make the order: (a) revoke the existing order and replace it with a new order (which may contain matters relating to the existing order), or (b) vary the existing order to include the matters with respect to which it has decided to make the order. (6) An order is not invalidated by a failure to comply with subsection (5).
A prohibition order of this nature can be made for a period of 5 years: s 6. Contravention of a prohibition order is a criminal offence carrying a maximum penalty upon conviction of 5 years imprisonment, and/or a fine.
The Child Protection (Working with Children) Act 2012 (NSW) will prevent the defendant from working with children.
It may be that these statutory protections are, ultimately, adequate to monitor and ameliorate the risk the defendant poses.
Further, the defendant has some community based support which may provide some restraint upon his conduct. He will live with his elderly parents; that fact alone will limit the defendant's capacity to invite children into his home, as he did with respect to the 1988 offences. Although not presently offered by a psychiatrist, the defendant also has treatment support through his general practitioner and a psychologist. That support may be regarded as a means of lessening the likelihood of the defendant becoming non-compliant with an appropriate medication regime, as he did in 2015.
However, those measures are ultimately dependent upon the defendant. His parents will not be his supervisors and, that they may not notice any illegal activity, much less be expected to prevent or report it, is suggested by the circumstances of the 2015 offences. Absent an order for a Community Treatment Order under the Mental Health Act 2007 (NSW) - which there is no basis to conclude could be made against the defendant - compliance with recommended medical treatment to manage his mental illness is a matter for the defendant, as it was in 2015. No doctor will compel him to accept medication, or report any failure on the defendant's part to accept treatment.
At this preliminary stage the Court must proceed on the basis that the matters alleged in the documents supporting the State's application can be proved. On that basis, the RAR alone provides a basis for concluding that the defendant poses an unacceptable risk of the commission of a serious sex offence against a child.
I accept entirely that there are real issues as to the validity of actuarial tools used to measure the risk of the commission of a relevant crime, and which were used in this instance. None of the instruments used to assess the defendant target the specific risks with which the C(HRO) Act is concerned; none rely upon a database which directly reflects the defendant's circumstances. At any final hearing it may be that the evidence of risk postulated relevant to the defendant on the basis of such measures is discounted altogether or given limited weight. At this preliminary stage that is not an approach open to the Court.
The risks postulated by the RAR are given some real weight when viewed against the background of the facts alleged against the defendant relevant to the 2016 breach of bail.
Those facts establish, if proved, that the defendant, at a time when he was subject to bail conditions imposed upon him by the District Court, defied the conditions to loiter in an area where boys might be found, make contact with boys by offering money to them, and then pursue an identified boy, including by internet contact and by meeting with him, evidently for sexual purposes. Conduct of that nature points to a man who cannot regulate his sexual perversity, even when subject to bail conditions and with his liberty at stake. The risk posed to the boys then approached by the defendant are clear. A risk of that nature for the future is unacceptable.
It follows that, on the basis that the matters alleged in the supporting documentation to the application are proved, I am satisfied to the necessary degree of satisfaction that the defendant does pose an unacceptable risk of committing another serious offence if unsupervised in the community.
Whilst the Court has discretion not to make an ISO I would not exercise that discretion by declining to do so. In my opinion, there would be some contrariness in refusing to make an order for supervision after having concluded that the community - and specifically children - are exposed to an unacceptable risk of serious sexual crime perpetrated by the accused if he is not supervised.
It remains to consider conditions of the ISO.

Conditions of an ISO

Issue is taken with proposed conditions 7, 14 (in part), 18 (in part), 19, 21-26, 27, 31, 33, 34, 35, and 42(d).
With respect to proposed condition 7, which concerns deviation from a schedule of movement, the defendant argues that it is unduly harsh and restrictive. He contends that it should be adequate if any deviation is notified to the DSO within 24 hours of it having occurred.
I accept that the provision is restrictive, but its intent and purpose would be frustrated if deviations could be notified retrospectively. This condition is necessary to prevent the defendant, when out at an approved location for an approved activity, such as a shopping centre for grocery shopping, from going to a different location or undertaking an unapproved activity, such as attending a nearby games hall to play the sort of games children might be present playing. This condition is required.
Those supervising the defendant could not properly do so if he could deviate from the schedule and provide retrospective advice concerning the deviation. It would mean that deviations picked up by electronic monitoring for example would be meaningless, and the supervising officer could not tell immediately if there was a risky deviation.
The portion of proposed condition 14 that is disputed would require the defendant to inform his supervisor of any person his parents invited into the house, including care workers or trades people. I accept that this is not necessary, and unduly burdensome, and the condition will be amended.
Proposed condition 18 restrains the defendant from attending particular places, such as amusement parlours. The defendant objects to the inclusion of "day-care centres" and "pre-schools" as there is no evidence that his offending has ever related to children of the age to attend such places. That is so but, since there is no need whatsoever for the defendant to go to a day care centre or pre-school, I see no hardship in preventing him formally from doing so. To do so does tend to ameliorate risk.
The defendant disputes the need for proposed condition 19, which would prevent him from going to places of entertainment connected with lawful sexual activities. I accept that this condition is not directed to any known risk factor for the defendant, and it is not likely to mitigate risk in any real way. That proposed condition will be deleted.
Proposed conditions 21-26 all seek to regulate the defendant's employment and financial activity. He submits that, since he is likely to be in receipt of the disability support pension in the community, as he was prior to incarceration, these conditions have no legitimate application to him. With the exception of condition 23, I accept that submission; there is no need for proposed conditions 21, 22, 24, 25, or 26. In that the defendant is alleged to have used expensive gifts to facilitate the commission of the 2015 offence (a brand new mobile telephone provided to the "14 year old boy" with whom the defendant thought he was engaged), and to establish a relationship with a 16 year old boy in breach of bail in 2016, there is a need for the defendant's supervisor to monitor his income and expenditure. Proposed condition 23 will remain.
Proposed condition 27 prohibits the defendant from possessing or using alcohol, illegal drugs, or prescription drugs not prescribed to him. The defendant argues that there is no nexus between drugs and alcohol and his sexual offences and, as his parents sometimes have alcohol, the condition is unduly restrictive.
There should be no need for any person to have illegal drugs or non-prescribed prescription drugs and I see no hardship in these aspects of the condition. As to the use and possession of alcohol, there is a nexus between matters alleged against the defendant with respect to his breach of bail and alcohol - that he provided alcohol to the 16 year old boy with whom he was engaged in 2016. Since the condition does not prevent the defendant's parents from having alcohol or drinking alcohol (and nor could it), this condition will be imposed.
Proposed condition 31 prevents the defendant from having contact with children. He submits that, in going about day to day life he will inevitably if innocently have contact with children, and this condition needlessly places him at risk of breaching the order. In its present form I accept that there is such risk; the condition will be imposed in amended form to ensure that incidental contact is not caught by its terms.
Proposed condition 33 is objected to on the basis that it would stop the defendant from sitting with his parents at dinner if they were "consuming alcohol". That is clearly not the intent of the condition and it will be imposed in an amended form.
Proposed condition 34 would prevent the defendant from engaging the services of a sex worker. Since doing so is not, in some circumstances, an offence, and there is no link between the defendant's past crimes and resort to sex workers, this condition will not be imposed.
Proposed condition 35 would require the defendant to tell his supervisor if he started "a relationship" with a person. The defendant argues that "a relationship" is not necessarily romantic or sexual, and would require him to report new friendships. That is so but, bearing in mind that the defendant was able to get access to the three children he abused in 1988 because of his friendship with the parents of the children, there is a legitimate purpose to the condition. It will be imposed.
Proposed condition 42(d) permits the defendant's supervisor to search and inspect any part of or any thing in the defendant's residence. He argues that this is an unacceptable infringement of his parents' right to privacy, and should be amended so that only search or inspection of the defendant's bedroom or property is authorised.
It is true that this condition allows the privacy of others with whom the defendant may reside from time to time to be infringed upon, and that is to be regretted. However, to limit the condition to a search of only the defendant's bedroom, or inspection of only a thing that was clearly the defendant's property and not that of another resident, is to provide a ready means of concealing any illicit item. For example, a laptop used to store child abuse material could be kept stored in the bedroom of another resident, and thus be entirely out of reach of detection by the defendant's supervisors. That cannot be allowed.
Ultimately, if those with whom the defendant resides during the term of the order object to the inconvenience to and impositions upon them that living with a supervised offender brings, they have the choice not to reside with him.
The conditions imposed upon the defendant pursuant to the interim order are stringent. Those who will supervise him will have considerable power and authority to monitor and regulate the defendant's conduct. With that power and authority comes a considerable degree of responsibility, including a responsibility to discharge the statutory duties the person or persons will have in a reasonable manner. A sound measure of common sense will be required, to properly supervise the defendant, and to avoid any unnecessary indignities being inflicted upon his parents in the course of that supervision.

orders

The Court makes these orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act: 1. Appointing one qualified psychiatrist and one registered psychologist, or any combination of such persons, as agreed between the parties, to conduct separate psychiatric or psychological examinations (as the case requires) of the defendant and to furnish reports to the Supreme Court on the results of those examinations; and 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 7 September 2020; 2. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and 3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule annexed to these reasons. 1. The parties are given liberty to approach the High Risk Offenders List Manager within 5 working days from today so that a suitable date for hearing of the application for final orders can be fixed; 2. The parties are to provide a draft of Short Minutes of Order via email to my Associate, within 6 working days from today, setting out a timetable for the provision of expert reports to the Court, and for filing and service of evidence and submissions. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

BRADLEY MOORE Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services. "Defendant" means Bradley Moore, the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being 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; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

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 comply with any reasonable direction given by the DSO, or any other person supervising (including monitoring) him, for the administration of the ISO/ESO or any condition of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must 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 and notify his DSO of any intention to change the defendant's address or living arrangements.
The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
If the defendant is living alone, he must not permit any person to enter and remain, or to stay overnight, at his approved address without the prior approval of his DSO.
If the defendant is living with co-residents, he must not invite any person to enter and remain, or to stay overnight, at his approved address (or room, if staying at supported accommodation) without the prior approval of his DSO. If any of his co-residents invite or permit someone, other than a health professional or tradesperson attending the residence to provide a service, ('the visitor') to enter, remain or to stay overnight at the approved address (or room, if staying in supported accommodation), the offender must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor.

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 of CSNSW.
The defendant must not go to a place if his DSO tells him he cannot go there.
Without limiting condition 17 above, the defendant must not go to any of the following without prior approval from his DSO: 1. Day-care centres, pre-schools and schools; 2. Amusement parlours, amusement parks and theme parks; 3. Cinemas; 4. Libraries and museums; 5. Camping grounds and caravan parks; 6. Children's playgrounds, parks, and areas with play equipment provided for the use of children; 7. Pools, playing fields and sporting facilities; 8. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or 9. Residences where the defendant knows that persons under 18 ordinarily reside; 10. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).
The defendant must not attend any place where alcohol or drugs are illegally sold.

Part D: Employment, finance and education

The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol

The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
The defendant must submit to testing for drugs and alcohol as directed by his DSO.
The defendant must not enter any licensed premises without the approval of his DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association Association with Children

The defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. This condition does not apply to incidental contact with persons who may be under 18 in the course of ordinary day to day activities. Associations with Others (not children)
The defendant must not associate with people that his DSO tells him not to.
The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol, other than his parents.
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 I: 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 J: Search and seizure

If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: 1. for the safety and welfare of residents or staff or persons present at the defendant's approved address; 2. to monitor the defendant's compliance with this order; or 3. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: 1. search and inspection of any part of, or any thing in, the defendant's approved address; 2. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; 3. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or 4. search and examination of his person.
For the purposes of the above condition: 1. a search of the defendant means a garment search or a pat-down search. 2. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. 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 condition 42 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: 1. the safety of residents or of staff at the defendant's approved address; 2. the welfare or safety of any member of the public or any other person; or 3. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
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 conditions 42 to 45 above.

Part M: Personal details and appearance

The defendant must not change his name from "Bradley Moore" 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 "Bradley Moore" or use any email address other than those known to the DSO under condition 37 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
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 and actively participate in all psychological and psychiatric assessments or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
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.

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: 03 September 2020

(NSW), the Child Protection (Offenders Prohibition Orders) Act 2004(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (9)

Cited By (1)