State of New South Wales v O'Donnell - [2018] NSWSC 563 - NSWSC 2018 case summary — Zoe

NSWNSWSC

State of New South Wales v O'Donnell

[2018] NSWSC 563

Supreme Court of NSW|2018-04-20|Before: Hulme J, Basten JA, Beazley P

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-04-20

Before

Hulme J, Basten JA, Beazley P

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

Solicitors: Crown Solicitor's Office Legal Aid NSW File Number(s): 2018/24252

[2]

Judgment

HIS HONOUR: The State of New South Wales has applied for an extended supervision order ("ESO") under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") in relation to Mr David O'Donnell.
Mr O'Donnell opposes the application. He accepts that the statutory preconditions for the making of the application are established but he contests the ultimate issue in relation to the making of an extended supervision order, namely that there is "a high degree of probability that [he] poses an unacceptable risk of committing another serious offence if not kept under supervision under the order": s 5B(d) of the Act.
Section 5D of the Act provides that a Court asked to make an ESO: "is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence".
Aside from having regard to the "Objects of the Act" set out in s 3 (see below), it is important to note that s 9(2) provides: "In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court."
The test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [82] (Basten JA). The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] (Beazley P). Those objects are: "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. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."

[4]

Conspiracy to murder and other offences on 14 May 1998

On 6 December 2000 the defendant was sentenced in the District Court by Price J (as his Honour then was) to 10 years' imprisonment with a non-parole period of 6 years for the following offences arising out of an incident on 14 May 1998: a) Conspiracy to murder (s 26 of the Crimes Act 1900 (NSW) - a "serious violence offence" under s 5A(1)(b) of the Act) b) Four counts of aggravated sexual assault (s 61J of the Crimes Act - a "serious sex offence" under s 5(1)(a)(i) and (ii) of the Act) c) Malicious wounding with intent to inflict grievous bodily harm (s 33 of the Crimes Act - a "serious violence offence" under s 5A(1)(a) and (2A)(c) of the Act d) Attempted malicious infliction of a grievous bodily disease with intent to cause a grievous bodily disease (s 36(b) of the Crimes Act (since repealed) - arguably a "serious violence offence" under s 5A(1)(b) of the Act) e) Unlawful imprisonment (Common Law misdemeanour)
Price J described in his sentencing remarks how on 14 May 1998 the defendant and a co-offender approached a male prostitute in Darlinghurst with a plan to rape and kill him. The prostitute told the defendant and co-offender that he did not do anal sex but agreed to give the offenders oral sex for a fee. He went with them to their house at Ermington where consensual oral sex occurred. The co-offender then grabbed the victim's legs and turned him over. The victim protested and the co-offender backed off until the defendant called him "weak as piss" and said, "you can't even get this one".
The co-offender then grabbed the victim's testicles, squeezed and twisted them. The victim was screaming as the defendant repeatedly hit him on the back of the head with an object believed to be a baton and told the victim to "shut up". The co-offender and then the defendant had anal intercourse with the victim. The defendant also used his hand to penetrate the victim's anus and his nails cut the victim.
The co-offender proceeded to have anal intercourse with the victim again and the defendant encouraged him to ejaculate inside him, knowing that the co-offender had the human immunodeficiency virus (HIV) and was not wearing a condom.
After being raped, the victim had a shower. When he tried to leave the co-offender hit him on the crown of his head with a shifting spanner which split the victim's head open and brought him to his knees. The victim asked, "What are you going to do with me?" The co-offender said, "We're taking you for a ride". The defendant added, "We are going to kill you". The defendant tied the victim's wrists behind his back using a belt and a towel was used as a blindfold and a blood mop. The defendant hit the victim's feet with the shifting spanner, threatening him to stop moving his feet or the defendant would hit him in the face.
The defendant and co-offender led the victim bound and blindfolded to a car parked in the driveway of the premises. When the victim asked, "Where are you taking me" he was told, "We're going out to the bush". A struggle occurred in the car and the victim was able to escape. He was chased across the front lawn and tackled to the ground. The co-offender repeatedly hit him with a wrench and the defendant kicked his face.
Supplementing that summary by drawing upon the victim's account, neighbours heard the incident and approached the defendant and co-offender yelling, "Stop or you'll kill him". They were told that the victim was trying to break into their house and to call the police.
The non-parole period for the defendant's sentence for these offences expired on 1 April 2006. However, he was not released on parole until 9 October 2008.

[5]

The defendant's accounts concerning the 1998 offences

The defendant pleaded not guilty but was convicted after a jury trial. He has given different accounts as to what occurred on the night of 14 May 1998.
In a report prepared for the sentence proceedings by Mr Gregory Fathers, psychologist, it was said that the defendant denied the substance of the charges. He admitted engaging in oral and anal intercourse. He claimed a condom was used at all times. Generally, he claimed that he had "too much to drink" and that his recollection of the night was "blurred". However, I note that the sentencing judge rejected the proposition that the defendant was acutely intoxicated; he found that the offences were committed for his, and his co-offender's, gratification.
In a report prepared for the State Parole Authority dated 17 May 2006, Ms Victoria Bel, psychologist, included that the defendant "vehemently denied the offences apart from physically assaulting the victim (in self-defence)". The defendant maintained to Ms Bel, in effect, that the sexual contact was consensual; the victim had stolen money from the co-offender; and that the victim had initiated the violence in the car and that he had responded in self-defence. He also claimed to have been "very drunk".
The defendant clearly had no empathy for the victim. When asked by Ms Bel what effect his offences had on the victim he said: "The sexual assault shouldn't have any effect because I don't believe it happened … Being hit on the head with the shifting spanner would have an effect … I don't know how he would be feeling … It would have caused him some pain; it depends on when he would have had another shot … Appearance wise he didn't seem too badly affected when I saw him at court."
It is somewhat concerning that the defendant largely maintained such an account in his more recent interviews with the two court-appointed experts and the author of the Risk Assessment Report. The written submissions for the plaintiff summarises the position correctly in my view: "The defendant has consistently, and continues to: (a) externalise responsibility for the conspiracy to murder offences to his co-offender; (b) severely minimise accountability for his actions that evening; and (c) have limited victim empathy: '[the defendant] did not offer any concern or remorse for his actions during our discussion, seemingly due to maintaining that the sexual acts were consensual and acts of violence were in response to the victim stealing money' (Hare report, at [83])."

[7]

The defendant's accounts concerning the index offence

A report by Ms Anna Robilliard, psychologist, dated 13 October 2015 was tendered on the defendant's behalf at the sentencing hearing before Norrish QC DCJ. It included that the defendant said he had been drinking heavily to try and alleviate his emotional distress arising from the death of his mother the previous year. He said that he knew the victim but could not remember much about the incident because he was drunk. He could not remember touching the victim but added, "I'm very touchy feely when I'm very drunk" and "It sounds like something I would do or have done in the past". He said he felt bad about the offence because he made a young boy feel uncomfortable; it would not have happened if he had been sober. Around that period he had been drinking very heavily and was not showering, eating, sleeping or visiting his family regularly.
A Pre-Sentence Report by a Senior Community Corrections Officer dated 1 September 2015 included the defendant's account that on the day of the offence he had been treated insensitively by a staff member at a local employment agency which resulted in him losing his temper and being escorted from the interview. He went home and consumed an unspecified amount of alcohol, claiming that it was an attempt to ease his distress. He told the officer that he could not remember the offence in detail; he was intoxicated at the time.
To the court-appointed experts and the author of the Risk Assessment Report the defendant maintained that he was intoxicated and could not recall the index offence. He said that when he is drunk he invades people's personal space. He claimed that he did not know the victim (contrary to what he had previously said and what appeared in the agreed facts). It is of note that Ms Hare wrote: "Whilst [the defendant] continues to deny sexual motivation for [the index] offence, I am of the opinion that in his disinhibited state [the defendant] sought sexual gratification to manage his negative affect. He openly acknowledged a history of physical boundary violations under the influence of alcohol, and as such, this offence was precipitated by his misuse of alcohol, lack of insight into the harm that sexual contact between adults and young people can cause (mainly based on his own experiences), poor boundaries and limited understanding of sexual consent, dysfunctional coping, and absence of insight into his vulnerability to offend against young people whom he had encouraged to frequent his residence."

[8]

Conduct while on parole

The non-parole period of the sentence imposed for the index offence expired on 20 July 2016. The State Parole Authority revoked the parole order before the defendant was released on the basis that no suitable accommodation had been identified. Parole was later reinstated and the defendant was released on 26 August 2016 on the basis that he would live at the Nunyara COSP Centre.
It is the case that the defendant has not been charged, let alone convicted, of any further offence since he was released on parole. However, the submissions for the plaintiff drew attention to the following aspects of his conduct in that period.
On 30 November 2016, Corrective Services NSW received a call from a constable attached to the transport command at Central railway station reporting that the defendant had been seen on three separate occasions in the toilets "loitering and likely to be offending or having consensual sex". On one occasion he was seen holding his penis outside his pants and moving from cubicle to cubicle. Dr Parker reported that the defendant denied that he was engaging in casual sex in the toilets, claiming he had diarrhoea from the medication he was taking.
On 16 February 2017 the defendant left the Nunyara COSP Centre and took up accommodation in the Central West of the State. He continued to attend regular counselling sessions with Forensic Psychology Services ("FPS") in Sydney.
The defendant attended Mardi Gras which was held in Sydney on Saturday 4 March 2017. He had not sought prior approval. When confronted with this he denied having attended. However, he had been seen by an employee of the Nunyara COSP wearing a wrist band indicating that he had been a participant in the parade. He was given a written warning.
Concern was expressed at group counselling sessions at FPS during March 2017 about the defendant wearing t-shirts bearing slogans, "Party Animal" and "Born to be Wild". When questioned about the appropriateness of this, and the messages that the clothes conveyed to others, he is said to have become defensive.
There is a case note dated 22 March 2017 concerning a telephone call received by Community Corrections from the woman who had allowed the defendant to live in her home in the Central West. She complained that he was going out until all hours of the night and had been drinking alcohol.
Concern was expressed in a note of an FPS counselling session on 18 July 2017 about the possibility of the defendant being sexually preoccupied. The following week, he spoke of a culture of drinking at the boarding house where he lived where there were numerous university students as residents. He spoke of their intoxication and how their parties would move from one unit to another throughout the night until early morning. In this context he said that he left the door to his room unlocked. A Community Corrections case note includes: "The discussion [that the defendant had with FPS] seems to indicate the [defendant] is failing to recognise his boundaries and may be having trouble regulating his emotions."
On 27 October 2017 there was a discussion between a Community Corrections officer and a psychologist at FPS. The latter confirmed that the defendant had still not completed his self-management plan where he was required to identify his risk factors. As a result, the defendant could not progress to the maintenance group program.
An alcohol breath test on 25 November 2017 initially yielded a reading of 0.035 but on retesting there was a zero result. It seems to be accepted that the first reading was caused by the defendant's medication. Subsequent testing on three occasions in the following fortnight all resulted in zero readings.

[9]

The apprehended personal violence proceedings ("the APVO matter")

On 11 November 2017 an incident occurred at the defendant's boarding house which resulted in proceedings being commenced for him to be the subject of an apprehended personal violence order ("APVO"). On that day the "person in need of protection" ("PINOP") moved into the boarding house. The defendant went to PINOP's room and invited him to his own unit to watch movies. The PINOP accepted the invitation. They first went to a hotel before returning to the defendant's room. There they drank alcohol until the PINOP became very drunk; he said words to the effect of "I'm pissed". The defendant touched the PINOP's upper leg but the PINOP swiped his hand away and said, "Stop".
Sometime later, the defendant knelt in front of the PINOP, pulled his shorts down and performed fellatio upon him. He then manoeuvred the PINOP's penis into his anus and had sexual intercourse with him. The PINOP said, "No, I've had enough". He pushed the defendant away but the defendant knelt in front of him pleading, "Please". The PINOP responded, "No means no", and returned to his own room.
There was contact between the defendant and the PINOP on a number of occasions in the course of the next month or so. Nothing untoward in relation to the defendant's behaviour was alleged. It is said, however, that since the incident the PINOP had been suffering mental health issues and had spent some days in a mental health facility until 21 December 2017.
On 21 December 2017 the defendant told a Community Corrections officer that he had the PINOP in his room; the PINOP drank alcohol but he did not; he kissed the PINOP and they began to fondle each other's genitals; he performed oral sex on the PINOP; and when the PINOP asked the defendant if he could have anal sex the defendant told him that he did not want to and the PINOP became upset. However, on 9 February 2018 the defendant told a different Community Corrections officer that "he had only kissed the victim after the victim had been drinking".
On 8 January 2018 the defendant consented to the making of a final APVO without admissions.

[10]

Subsequent events

On 21 December 2017 the defendant was given 15 days' notice to vacate the boarding house where he had been staying. He became distressed about the prospect of finding alternative accommodation and the possibility of being returned to gaol. He found temporary accommodation with a friend in a southern suburb of Sydney but he had to move out of there on 16 February 2018. He then lived in short term accommodation arranged by Housing NSW until he was arrested on 21 February 2018 on a warrant for breach of parole. He has remained in custody since that time.
A report was submitted by the defendant's supervising Community Corrections officer to the State Parole Authority on 15 February 2018 recommending that parole be revoked. The breach was alleged to be of the condition that he "Obey all reasonable directions". It was said that third party inquiries had revealed that the defendant had consumed alcohol on three occasions in the past two weeks and had presented as highly intoxicated on one occasion; this being contrary to a written direction prohibiting him from consuming alcohol whilst on parole because of it being an identified risk factor for him. It was also reported that he had been attending licensed venues in Darlinghurst.
The Breach of Parole Report includes that the defendant's response to supervision had been "somewhat superficial". It appeared that he continued to engage in risk related behaviour and it was "of serious concern … that Mr O'Donnell is allegedly engaging in alcohol use despite it being directly related to his serious sexual offending and despite being prohibited from doing so".
Reference was also made in the Breach of Parole Report of concern expressed by the defendant's FPS therapist, a Ms Britton. She had advised on 10 February 2018 that the defendant had been in a maintenance program for the past 12 months but there were significant concerns about his ongoing predatory and risky behaviour. In relation to the APVO incident (see above), the therapist advised that the defendant was "aware that sexual behaviour towards an intoxicated person is not ok as the person is unable to consent if they are intoxicated". She had also advised that the defendant was "aware that it is a risk for him to engage in sexual behaviour with strangers or with people who are under the influence of AOD". The case note of this information provided by the therapist also includes: "- T. Britton informed that the offender avoids answering questions, states that due to having a blood borne disease his 'brain is compromised', he gets angry or emotional and shuts down when pushed or challenged about things. She advised that as a result, a great deal is unknown about him about his activities and relationships. - T. Britton stated that the offender needs to engage in individual intervention with an FPS therapist to develop a self management plan regarding how he conducts himself as a result of the AVO matter. - T. Britton stated that the offender claims that he is 'handsy' and 'bad with personal space' however it appears that he is selective with this and only invades the personal space / touches young vulnerable males whom he is sexually interested in. T. Britton identified the following as risk factors for the offender: - Sex with strangers - Sex with people under the influence of AOD - Gaining access to young, intoxicated / vulnerable people alone - Relationships - being in a relationship and what he does in one."
It is concerning that these comments were made after the defendant had engaged over such a lengthy period of time with the therapeutic program offered by FPS.
The Breach of Parole Report stated that "it would appear that the offender is engaging in offence parallel behaviour" and that there were "significant concerns for the safety of the community at this juncture".

[11]

Earlier reports

Dr Jonathan Carne, psychiatrist, and Mr Gregory Fathers, psychologist, assessed the defendant prior to his sentencing for the 1998 offences. Dr Carne diagnosed learning difficulties with a possibly low average IQ, alcohol abuse and marijuana abuse. He noted that the defendant had a poor recall of the events relating to the offences which he (the defendant) attributed to being heavily intoxicated at the time. The history obtained from the defendant included that his heavy drinking had consequences including blackouts, angry outbursts and falls.
The account the defendant provided to Mr Fathers as to the offences has been referred to earlier (at [21]). Mr Fathers found the defendant to be of below average intelligence. This was said to have the result that thinking and judgment would be impaired and, coupled with drug and alcohol use, his cognitive abilities would be further impaired. He found the defendant to be impulsive and emotionally labile. Mr Fathers said that the defendant "would be disinhibited under the influence of drugs and low cognitive abilities would further deteriorate with poor judgment being shown". He also said that "impulse gratification would be an imperative for him" and that "there are significant clinical features which need further investigation".
Mention has been made above (at [22]) of a report by Ms Victoria Bel dated 17 July 2006. Ms Bel applied the Static-99 risk assessment instrument and found the defendant was in the "medium-high" category of risk for re-offending. Dynamic risk factors she considered relevant to the defendant confirmed that he posed a "significant risk of re-offending".
Mr Fathers also provided a report for consideration in relation to a parole determination in 2006. It included that he had rated the defendant under Static-99 as a "moderate/low" risk.
The report of Ms Anna Robilliard of 13 October 2015 (see above at [30]) included her assessment of the defendant's intelligence being on the border between "below average" and "average". Her assessment under Static-99R placed him in the "Moderate-Low" risk category. She found that the defendant had "some important dynamic factors that contributed to reduced risk of sexual reoffending". These included that he had been "offence free for about ten years"; he had secure accommodation close to significant family attachments; his sisters were supportive and concerned for him; he had part time employment available; his physical and mental health had improved since April 2015 under treatment at St Vincent's Hospital; and he maintained that he had stopped drinking alcohol.
Ms Robilliard also considered that the index offence in May 2014 occurred at a time when the defendant was in poor physical and mental health due to the effects of long-term untreated HIV. Impulsivity and lack of insight were two aspects of the neurological effects of HIV which may have contributed to his disinhibited conduct and lack of consequential thinking, in addition to the effects of intoxication. She said that he expressed appropriate remorse and some insight into his past behaviour and had made a very positive change in his decision to stop drinking alcohol which would have a marked impact on reducing his risk for sexual recidivism.
Ms Robilliard's report should be considered with some circumspection. Her assessment under Static-99R is at odds with that instrument having been deployed by Ms Anne Young, senior psychologist with Corrective Services NSW, at around the same time with a finding that the defendant was in the "High" risk category. When Ms Young saw him on 3 September 2015 she found: "some long standing themes were still evident - a lack of insight into his own behaviour, a tendency to externalise responsibility, a tendency to minimise the problematic nature of his alcohol consumption, a failure to identify risky behaviour and denial that this was occurring (his house being a 'local hang out' for youth to come to smoke cigarettes and drink alcohol)."
A Pre-Sentence Report tendered to Norrish QC DCJ in the sentence proceedings for the index offence included that the defendant was assessed according to the Level of Service Inventory-Revised actuarial risk/needs assessment tool as a "Medium to High" risk of re-offending.
The defendant was interviewed by Ms Tamara Gradden, psychologist, on 20 December 2016 and she provided a report dated 22 March 2017. She administered the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) but it yielded discrepancies in the results between its five domains. She proceeded to discuss them individually and concluded: "Mr O'Donnell's overall performance on the RBANS is consistent with how he presented during the assessment. A person with his results is likely to have problems with functioning in daily life, such as being able to maintain attention to new information presented during conversations or in text, learn and retain new information and remember appointments. These are all reflective of problems Mr O'Donnell described experiencing. Given this, the implications for Mr O'Donnell's daily functioning include the potential to experience problems with completing tasks required of him, such as attending appointments or completing treatment programs, and difficulties integrating into the community because of problems with forming and maintaining relationships."

[14]

Dr Richard Parker

Dr Parker's Risk Assessment Report concluded with the following: "Mr O'Donnell is a 42 year old man who has committed two very different sexual offences - one against an adult male, in company with a co-offender, and the other against a 15 year old boy. His high scores on actuarial risk assessment instruments and his lack of response to treatment are cause for concern. Given Mr O'Donnell's history of compliance in custody, and the absence of any offending while sober, it is considered unlikely that he would engage in serious sexual offending while sober. While he appears to be sexually preoccupied, he appears willing, and able, to refrain from sexual offending when not intoxicated. As his alcohol abuse continued, despite the consequences of his first sentence, it likely forms an important function, such as easing the discomfort of shame (Nathanson, 1992). Consequently, a key task is to learn how to deal with this distress, without resorting to alcohol. Whether Mr O'Donnell has learned to do this remains to be seen. In the event that Mr O'Donnell is subject to an Extended Supervision Order, it is likely that he will benefit from intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and ongoing participation in CSNSW maintenance programs located at Forensic Psychology Services (FPS). Mr O'Donnell would need to reside in, or near, the Sydney Metropolitan area if he were required to continue to participate in FPS. Ongoing electronic monitoring may assist in the case management of Mr O'Donnell by alerting staff to any non-approved movements. Weekly schedules would allow supervising officers to monitor his activities. Successful management would assist in containing those behaviours associated with risk, especially alcohol abuse and access to potential victims. The goal would be to encourage further development and maintenance of a stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision. In the event that no order is imposed, Mr O'Donnell's order will expire on 30 May 2018. If this happens, it is considered likely that Mr O'Donnell would continue to live a lifestyle with limited intimacy in his relationships and engage in binge drinking on occasions. Whether the potential risk of Mr O'Donnell being left unsupervised in the community would be considered 'unacceptable' is a matter to be determined by the Court."
Dr Parker's affidavit provided more up-to-date information. Since his two reports the APVO matter had occurred, the defendant's parole had been revoked and the Act had been amended. Dr Parker maintained his opinion that the defendant's risk of reoffending is "high".
The allegations in the APVO were considered by Dr Parker to be highly relevant: (a) because they described behaviour that, if proven in court (which I interpolate they were not), would constitute further sexual offending; and (b) because the incident was said to involve the defendant drinking alcohol, an established risk factor for him. Even without the allegations having been proven in court, Dr Parker noted that the defendant admitted that he had engaged in sexual behaviour with a person who had been drinking, this being a person he had only just met. Dr Parker said this demonstrated a cavalier attitude towards consent, a concept the defendant should have been intimately familiar with after completing an intensive sex offender treatment program.
Dr Parker also added that he considered the defendant's HIV status, along with his cavalier attitude towards sexual encounters, raised the risk of him causing grievous bodily harm by passing the virus on to others (which could constitute a "serious violence offence").

[15]

Dr Richard Furst

Dr Furst found that the defendant met the criteria for the diagnosis of the following condition: ● Alcohol Use Disorder (binge pattern) ● HIV/AIDS ● HIV associated neurocognitive disorder (HAND)
HAND was described as a neurological disorder associated with HIV infection and Acquired Immune Deficiency Syndrome (AIDS). It results in cognitive impairment. Brain imaging was said to typically reveal significant volume reductions in the frontal white matter areas of the brain which are associated with frontal-executive function, abstract reasoning and impulsivity. The condition is chronic and progressive.
At an early point in his report, Dr Furst indicated a correct understanding of the term "serious sex offence" as defined in s 5 of the Act. He also understood the question for the Court to be whether it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, whether sexual or violent in nature, if not kept under supervision (s 5B(d) of the Act). Later in the report, in addressing a question that had been posed for him as to whether the defendant posed a risk of committing another "serious offence" if left unsupervised, he said (in part): "In my opinion, Mr O'Donnell poses a moderate-high risk of committing a further serious offence of a sexual nature. Mr O'Donnell also poses a moderate risk of committing a serious offence of a non-sexual [violent] nature in the future."
In the course of describing how the defendant's risk factors might change or fluctuate over time and what effect this might have on his likelihood of reoffending he said: "The main factors that would increase his risk of offending would include his HIV/AIDS related neurocognitive impairment progressing, creating further risks in terms of frontal-executive dysfunction, impulsivity and disinhibited behaviour, especially if he discontinues medical treatment and/or in the context of intoxication. His low level of intelligence [baseline in the 13th Percentile], coupled with the effects of HIV/AIDS on his cognitive function, particular memory and attention deficits, coupled with his low level of insight into his offending and personal risk factors, and his pattern of denial/minimization with respect to his offending make it unlikely he will attain any tangible benefits from any psychological treatment programs that he engages in, both in relation to his sexual offending and alcohol abuse. Other risk factors of relevance include social isolation, homelessness, financial problems, emotional dysregulation, acute intoxication with alcohol and lack of adequate supervision. Prolonged engagement with community treatment services, improved attitudes, developing greater insight into his past offending and personal risk factors, ongoing medical management of his HIV/AIDS and abstinence from alcohol are relative protective factors, both in relation to sexual and non-sexual violence."

[16]

Ms Caroline Hare

Ms Hare was of the following opinion as to the defendant's risk of committing another "serious offence" as defined: "Based upon my assessment of Mr O'Donnell's current static risk and dynamic risk/treatment needs, I am of the opinion that if he is released on 20/05/2018 unsupervised into the community, he poses a high risk of committing another 'serious offence' as defined by the Act. I consider the risk he poses to be chronic. It is my opinion that the most likely scenario in which Mr O'Donnell would sexually reoffend reflects him committing a sexual boundary violation with a male who is in some way vulnerable (for example by way of situation or age). The boundary violation could range from sexual touching to rape, although in a one-on-one scenario, I believe it is unlikely that Mr O'Donnell would utilise physical force. In terms of what would motivate this event, I believe that Mr O'Donnell would likely be experiencing negative affect (thoughts/feelings of worthlessness, low self-esteem, anger), which he would seek to relieve through sexual contact (possibly due to his confusion between sex and emotional intimacy). Such a situation would likely occur opportunistically, although Mr O'Donnell is liable to engage in low-level 'grooming' behaviours in the more immediate build-up to put the potential victim at ease, for example supplying him alcohol. If Mr O'Donnell engaged in alcohol consumption himself, I am of the opinion that his risk of committing a sexual boundary violation in the above scenario would increase significantly. Warning signs that he is at risk of engaging in the above scenario could include: experiencing heightened negative affect over a sustained period; absence of adaptive coping; increased socialising with vulnerable males; drinking alcohol; engaging in cause sex with unknown males. I believe that a less likely, but possible, scenario in which Mr O'Donnell might also reoffend could involve violently sexually assaulting another male in the company of an intimate partner. This situation is highly situation specific and would involve Mr O'Donnell developing a romantic relationship with a deviant sexual partner and engaging in increasingly risky sexual practices for joint gratification. The motivation for the offence would likely be sexual gratification, to maintain connection with his partner and to ease negative affect, although the likelihood of this scenario occurring is in my opinion much lower than the first scenario outlined above."

[18]

Oral evidence of the experts

The three experts gave concurrent evidence at the hearing of the application. It was a very useful exercise. Again, I do not intend to summarise it; it will suffice to mention some particularly pertinent matters. Foremost to mention is that none of the experts retreated from the assessments in their reports of the level of risk the defendant presents of committing a further serious offence.
A suggestion was made that the level of offending in relation to the index offence was of a relatively low order involving the defendant "crossing boundaries". Dr Furst responded by making the point that it was a serious offence: aggravated indecent assault involving a 15 year-old boy with a disability. It was Ms Hare who had introduced that term, but she explained that she was not speaking of that offence; she was speaking of "boundary crossing" as a risk factor in relation to the potential for the defendant to commit serious offences.
Ms Hare agreed that "in the current circumstances" there was no significant risk in relation to the type of offending that occurred in 1998. Dr Furst responded by saying that the issue is the defendant's risk of offending in a serious way and he remained of the view that there is a medium to high risk. It was not possible for an assessment to be made of the defendant's risk of committing a sexual offence of a particular nature, whether it be a rape, an indecent assault or some other type of sexual assault.
An issue was raised as to the defendant neglecting himself as a result of grief he experienced following the death of his mother in late 2013. He was hospitalised in 2015 when his health had deteriorated substantially. But Dr Furst made the point that at the time of the index offence in 2014 the defendant was commuting to work, drinking and smoking; he was suffering grief but he was not suffering from a major depressive disorder or other major psychiatric disorder.
There was a discussion about the report of Professor Andrew Carr and his diagnosis of the HIV Associated Neurological Disease (HAND). Dr Furst agreed that following treatment the defendant received following his hospitalisation in 2015, his physical health improved substantially. But he said the defendant's mental health issues arising from HAND had persisted. He said the symptoms in terms of cognitive disturbance would not just persist but would most likely worsen. Dr Furst stressed that it is important not to conflate the successful treatment the defendant has received for physical symptoms of his condition with progress of his AIDS-related dementia (mistranscribed as "aged related dementia"). He said that it was not the case that if the defendant takes his antiretroviral medication his brain function will improve; it will deteriorate.
A passage in Dr Furst's report is relevant to this. He reviewed the neuropsychological report by a Ms Tamara Gradden relating to her assessment of the defendant on 20 December 2016 (see above at [62]). Dr Furst then wrote: "Overall, Mr O'Donnell has significant cognitive deficits, especially in relation to his attention and delayed memory, likely the function of his HIV associated neurological disorder (HAND). Given those results, difficulties would be expected in relation to daily function, completing tasks required of him in treatment programs [including CUBIT], attending appointments, integrating into the community, forming and maintaining relationships. I note 'Treatment' for his memory problems was recommended by Ms Gradden; however, given his cognitive deficits are likely to be the result of his chronic HIV/AIDS in the form of HAND and have been present since around 2013 or 2014, and he is already under specialist care through Professor Carr at St Vincent's Hospital, I am of the opinion there is unlikely to be any effective treatment currently available that would improve his memory, which limits the capacity of Mr O'Donnell to attend to and benefit from any structured psychologically-based programs available to Mr O'Donnell for his offending and/or alcohol-related issues, either in custody or in the community."
While it may be the case that the defendant's cognitive function will decline as Dr Furst anticipated, the rate at which this might occur in the years to come is impossible to know. Accordingly it is appropriate to confine my regard to his present level of cognitive function.
Dr Furst was quite emphatic about there being a connection between the defendant's cognitive function and the risk of offending; including that "it also might make him more impulsive and disinhibited especially if intoxicated". He amplified that: "Yes so furthermore, this is in terms of his frontal executive dysfunction, impulsivity and [disinhibited] behaviour and low level of intelligence coupled with his cognitive function, particularly memory and attention deficits and low level of insight into his offending. So the pattern of denial [and] minimisation make it unlikely he will attain any tangible benefits from treatment programs. So the same kind of comment, same opinion but basically I think the cognitive deficit is central to cognitive deficit seems to have or it does have I should say are likely to make him more impulsive, are likely to affect his decision making and consequential thinking and will make it more difficult for people to stop him from acting in such a way."
A significant point that was sought to be made in the cross-examination of the experts was that the potential for the defendant to offend was greater in 2014 (at the time of the index offence) than now. Dr Furst said: "I would say that the risk factors that existed in 2014 are the same or worse now as they were in 2014 despite treatment."
Dr Parker made the point that unlike other types of offending, in relation to high risk sex offenders and high risk violent offenders: "Even our most determined offenders seem to manage quite substantial periods without further charges."
Ms Hare said: "There's definitely the presence of ongoing risk factors which is one I have given weight to in this assessment. Although he doesn't have a charge of any offences, the most recent allegation [the November 2017 APVO matter], regardless of whether it turns out to have been an offence or not, indicates high risk behaviours for Mr O'Donnell that are linked to his offence pathway. So I agree he … hasn't had any offences or hasn't been charged with any offences. I spoke to him about that most recent incident and he talked to me about not understanding that an adult would be unable to provide their sexual consent if they were intoxicated and that speaks to his risks. So whilst there haven't been charges or convictions, there has been concerning behaviour that elevate[s] the risk."
On the question of how alcohol might impact upon the defendant's risk, Dr Furst said: "The factors relating to his risk are so plentiful, even removing alcohol as a risk factor … it wouldn't change my assessment from my current review of the material."
Ms Hare said: "In terms of my consideration of Mr O'Donnell's risk, I haven't identified alcohol as one of the significant risks in reaching my conclusion that he is at high risk of reoffending. I have considered it but it is not one of the factors I have rated highly based on his self report and I found him high risk. If he were drinking as you say at every opportunity, that would add an extra risk factor. It wouldn't change my assessment from high risk. It is high risk with his current - with how he reported to me currently which is he has been largely maintaining abstinence from alcohol. I think it is an aggravating factor but there's a plethora of other risk factors that raises him to high risk."
Dr Parker said: "I suppose the issue is I look at that as an acute risk factor; that the risk of him offending is high. If he did reoffend I would think it fairly likely that he would be consuming alcohol around the time of that reoffence. If a reoffence were to happen, I think it is likely alcohol would be involved, even if he may have been sober for an extended period of time beforehand. … So that I suspect, at least in the past when he has been sober, he has been capable of exhibiting a degree of restraint. I suspect that alcohol is part of the process on the way to an offence and if he can stay sober, his chances of not reoffending are greater. The issue is can he stay sober for a long period of time."

[20]

Whether there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO

Counsel for the defendant placed considerable reliance upon the fact that there has been no suggestion of brutal sexual violence of the type that was involved in the 1998 offences having been repeated in the ensuing 20 year period. Counsel portrayed that incident as having been the product of the defendant being in a "toxic" relationship at the time with his co-offender. Further, reliance was placed upon a characterisation of the index offence in 2014 being of a lower order of seriousness and there being no other charges, let alone convictions.
Against this, however, is that the experts are virtually unanimous in their assessment of the risk the defendant presents of committing a serious offence if not kept under supervision. The nature of the prior offences, most obviously the 1998 offences, and the fact that the defendant does not appear to have made any real gains from having undergone quite extensive rehabilitation programs, do not augur well for the safety of the community if the defendant were to be released into the community unsupervised. The fact that he maintains a version in relation to the 1998 offences that denies his culpability for their brutality is quite troubling.
The 2014 offence occurred in circumstances where the defendant allowed his home to be used as a "hang out" for young people to smoke cigarettes and drink alcohol. There is nothing to indicate that the defendant has developed any insight about the risk inherent for him in living with such an arrangement. Pertinent to this are the circumstances in which he was living in mid-2017: in a boarding house with intoxicated and partying university students on the premises where he habitually left his door unlocked. The circumstances of the APVO matter where, on one of the defendant's accounts, he engaged in sexual activity with an intoxicated male co-resident are pertinent as well.
The dynamic risk factors identified by the experts are significant; they remain extant to this day and would seem to be unlikely to dissipate in the ensuing years. They include, as Ms Hare listed them in her report: i. Poor emotional regulation skills for negative affect, including reliance on dysfunctional coping, such as alcohol and sex; ii. Limited insight into his offence pathway, closely linked with his failure to accept personal responsibility (meaning that risk management feels outside his control) and associated ineffective self-management plans; and, iii. Problems within intimate relationships, including poor understanding of sexual boundaries and sexual consent, confusing sex and intimacy, and engagement in casual sexual liaisons.
Dr Furst described as an "additional special risk factor" the defendant's HIV Associated Neurocognitive Disorder which has impaired his attention and memory function and which is also likely to make him more impulsive and disinhibited, especially if intoxicated. This risk factor is one that will endure, given Dr Furst's evidence that the defendant's brain function will not improve.
Counsel for the defendant highlighted the fact that his client had completed a number of rehabilitative programs over the years but the fact remains that the risk factors endure.
Counsel also referred to the defendant being under stress in the period before his parole was revoked and there were no further charges. However, Ms Hare pointed out that there had been "concerning behaviour" nonetheless and Dr Furst maintained that he had had regard to this but it did not alter his assessment of risk. Counsel for the plaintiff pointed out that this was a period in which the defendant was under supervision and the issue raised in s 5B(d) is the risk "if not kept under supervision".
The strength of the expert opinions are such that I am driven to conclude in terms of s 5B(d) that there is a high degree of probability that the defendant does pose an unacceptable risk of committing another serious offence if he is not kept under supervision under an ESO.