State of New South Wales v Paton

The Legislative Scheme

1. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.
2. Section 5B of the Act provides that this Court may make an ESO if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (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."
3. A "serious offence" is defined in s 4 of the Act as either a "serious sex offence" or "a serious violence offence". A "serious sex offence" is defined in s 5(1) of the Act.
4. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s (2)(a)(ii) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature.
5. Section 10A of the Act provides that this Court may make an order for an ISO if it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (Emphasis added.)
6. Thus, the statutory requirements for making an ESO are that the offender: is a serious sexual offender as required by s 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); that he was and still is in custody or supervision at the time the application was made and that the applicant was bringing it in time. In addition, the Court must be 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: s 5B(d). The statutory requirement for making an ISO is that it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
7. The Court's power to make an ISO or an ESO is discretionary. Section 9(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) and (3) of the Act provides a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO.
8. Section 7(3)-(5) of the Act provides for a preliminary hearing of an ESO application and is in these terms: (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) registered psychologists, or (iii) qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.
9. Given that I must have regard to the s 9(2) and (3) factors, I propose to briefly summarise the supporting documentation under those headings and then turn to consider the question of the appropriate orders in this matter.

The Supporting Documentation

1. An overview of Mr Paton's background and risk factors are set out in the Risk Management Report prepared by Dr Richard Parker dated 24 February 2020 ("RAR"). The Executive Summary of the RAR is in the following terms: "Mr Paton is a 62 year old man, who suffers from Bipolar Disorder. He is of low average Intellectual ability, He engaged in delinquent activity from his mid teens to 20 years of age, but then avoided any conflict with the law until his mid 30s. However, his offending since that time has been more serious. His most serious offence involved stabbing, detaining and sexually assaulting a female friend in the presence of her infant child. The index offence involves him detaining the 17 year old daughter of a friend and trying to coerce her into sexual activity. An earlier offence of Common Assault appears to have also been an attempt to coerce sexual activity from an adult female. His recent offending has all happened while he is in the manic phase of his Bipolar Disorder. Concerningly, he has ceased to take his medication at these times, despite being aware of the danger to other people. He completed the HISOP program in 2018, but his treating psychologist noted he would require further support to assist in refraining from further offending. He was released to parole in December 2019. His progress so far indicates he requires substantial support to maintain a stable life in the community. While he has excellent support from his family, it is unknown how long they can maintain this, although he is also engaged with some professional supports."

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. Mr Paton's criminal history began in September 1972 with convictions for offences of break and enter with intent, break enter and steal, malicious injury, malicious damage and receiving. In March 1976, he was convicted of smoking a prohibited drug (Indian hemp) and fined $100. At that time, he was also convicted of break, enter and steal and sentenced to a 3 year recognizance on a $300 surety and ordered to pay compensation. In March 1977, he was convicted of vagrancy. In August of that year he was convicted of two counts of break, enter and steal and in September he was convicted of stealing, receiving, break and enter, goods in custody and receiving.
2. In November 1993, Mr Paton was convicted of behaving in an offensive manner whilst being upon enclosed lands and carrying a cutting weapon. This followed from an incident in July 1993 when he attempted to gain entry to the house of a woman that he went to church with. The woman resided in her home with her two children. When police arrived, Mr Paton was found hiding in the backyard with a concealed knife and smelling of alcohol. In a report dated 27 February 1996, Dr Peter Romero (a General Practitioner who had seen the defendant on and off since 1986) stated that, at the time of this offence, the defendant was "plagued by obsessive thoughts of committing violent sexual acts to women whom he fantasied about".
3. In March 1995, Mr Paton was convicted of common assault. He had threatened a sex worker with a knife and detained her for approximately one hour and 45 minutes. He admitted to planning the offence several days beforehand.
4. In October 1995, Mr Paton committed an offence against his pastor's wife. It occurred whilst he was affected by mania. He later admitted to a forensic psychiatrist that he had been thinking about it for two months. Mr Paton persuaded the victim to accompany him to his residence to assist with packing his belongings. She had her three month old child with her. He then detained her and the child for an 8-10 hour period. During this time he threatened to kill them both. He demanded the victim perform oral sex on him, repeatedly stabbing her using a knife. He threatened her, bound her with tape, stuffed her mouth with cotton wool, forced her to ingest tablets, kicked and pushed her and held a pillow over her face. The sexual assault included attempted penile-vaginal penetration, oral penetration, digital penetration, and fondling of the victim's breasts and vagina. Mr Paton then attempted to force the victim and her child to her car but left the scene with the victim's car keys and money when the victim made some noise.
5. Mr Paton was convicted of malicious wounding with intent to inflict grievous bodily harm, aggravated indecent assault, assault, beat and ill-treat, threaten to inflict actual bodily harm with intent to have sexual intercourse; detain with intent to hold for advantage; aggravated sexual intercourse without consent and attempt aggravated sexual intercourse without consent. He was sentenced to 12 years imprisonment, with a non-parole period of 7 years and 6 months.
6. On 27 February 2009, Mr Paton was convicted of the index offence of attempting to choke/strangle with intent to commit indictable offence. He was also convicted of take/detain person with intent to obtain an advantage, namely providing an opportunity for himself to engage in sexual activity with the complainant. The victim was the 17 year old daughter of Mr Paton's school friend and had a learning disability. On 2 March 2008, as the victim was making her way home from the shops, Mr Paton offered her a lift in his car. He took her to his premises and threatened her. He bound her wrists and ankles with tape. He then played a "game" with the victim which involved trying her make the victim remove a five dollar note from his wallet which he put on the floor. He offered her a reward of $50 if she did so.
7. Mr Paton eventually cut the victim free with a box cutter, injuring her hand. He demanded the victim remove her jeans and underwear. He threatened her when she refused to do so. She ultimately removed her jeans and underpants and then put her jeans back on. The offender thereupon had the victim get onto the bed with him and he removed his trousers. He tried to get closer to her in the bed but she kept him at bay. Ultimately, the offender went to sleep. The victim remained awake all night.
8. In the morning, the victim was ordered to get down on her knees, with Mr Paton telling her he was going to kill her. He then compelled the victim to take some of his medication by producing a length of rope and placing it around her neck, commencing to tighten it and choking her. She managed to get her hands to her throat and relieve the pressure of the rope, telling the offender she could not breathe. She swallowed some of the tablets but vomited them back up shortly afterwards. After Mr Paton left the premises he locked the door behind him. The victim was able to escape by cutting a hole in the flyscreen. She sought help at a nearby medical centre where she was observed to be very distressed.
9. In addition to these criminal convictions, Mr Paton has also incurred some minor institutional misconduct charges. A Pre-Release Report dated 21 June 2017 noted: "The offender incurred one institutional misconduct charge since his entry into custody. In March 2012 Mr Paton was charged for Fail to Comply with Correctional Centre Routine and he received 7 days of (sic) buy-Ups, There are no adverse reports regarding the offender although his continued disturbances and call ups in the wing are noted as he has had continued medical and mental health concerns."
10. A further Pre-Release Report dated 10 October 2019 noted that: "On 3 October 2019, Mr Paton received a 14 day restriction from purchasing any Buy-Ups, This was in relation to an incident that occurred on 7 October 2019 when Mr Paton was charged with 'misuse of bell hooter siren whistle'. This relates to an inappropriate/excessive use of the emergency call up system located in the cells. According to Mr Paton, he was experiencing 'severe abdominal pain' and he maintained that the buzzer was only used twice (Ryan, 10/10/2019)."

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

1. Mr Paton was sentenced on 27 February 2009 by Judge Coolahan sitting in the District Court in Newcastle. After outlining the facts summarised above at [23]-[25], his Honour commented that: "As can be seen, the offences are extraordinarily serious. The terror experienced by the victim must have been extreme. The offences, not unnaturally, have affected the victim's enjoyment of life. The nature of this is briefly set out in a victim impact statement compiled by her, with the assistance of her school counsellor, on 6 December 2008. The cold heartedness exhibited by the offender towards the victim and the lack of any apparent empathy or concern for either her or her parents is quite chilling."
2. His Honour then dealt with the various pieces of medical evidence which demonstrated that Mr Paton suffered from bipolar disorder, had been admitted to psychiatric hospitals and treated with numerous mood stabilisers. He also noted that, at least after 1995, Mr Paton was aware that during his manic periods his sexual desire was grossly heightened and that such periods were triggered by ceasing medication. His Honour stated that: "Even if the reasons given by the offender to Dr Seidler for the commission of the offences are correct, it demonstrates a sociopathic attitude on the part of the offender and a willingness to go to extremes at the cost of others to ensure that his needs are met."
3. After addressing the relevant aggravating and mitigating factors, his Honour addressed specific deterrence and the protection of the community, which he stated should assume a "significant role". He noted that Mr Paton appeared to be a troubled individual but commented that: "So far as the objective seriousness of the offences are concerned, in my view the kidnapping offence falls to be determined well above the mid point. This is because of the length of time over which the offence was committed, the circumstances under which it was committed, namely that the victim was moved in a motor vehicle from place to place, from house to house; that she was bound; she was threatened with violence and death; she was only seventeen years of age and was vulnerable in the context to which I have already referred. There is also the extent of the fear and terror which must have been suffered by her over that period and, of course, also by her parents. The second offence, that is the choking offence, in my view is also a very serious offence. Whilst it may have taken place over a short time, it was the culmination of a long and obviously terrifying ordeal suffered by the victim at the hands of the offender. Having a rope placed around your neck in circumstances that occurred here must have been a completely terrifying experience."

The expert evidence: s 9(3)(b)(c)

1. I have already extracted the executive summary from the RAR above at [17]. Section 6(3)(b) of the Act provides that an application for an ESO must be supported by documentation that includes "a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious offence". The RAR was prepared on this basis.
2. In addition to making his own assessment about Mr Paton's risk factors and assessment, Dr Parker referred to previous diagnosis and reports prepared by other experts. Dr Parker noted that when he met Mr Paton there was no evidence of any psychosis or mood disorder.
3. Dr Parker noted that, as early as 15 August 1996, Mr Paton had been assessed by Dr Reid as follows: "The results of the neuropsychological assessment show he is of low average intellectual ability. It is felt his present level of intellectual functioning is not significantly different from his estimated premorbid ability. The assessment of his memory functioning, although limited, showed he had difficulties in learning and retaining new verbal and visual information. Same of his difficulties seem to relate to his inability to attend to the tasks and he appeared to be overwhelmed by information that was greater than his immediate span of attention. His problems with memory seemed genuine."
4. Dr Parker confirmed that, in addition to his intellectual functioning, Mr Paton suffers from a Bipolar Disorder and all of his serious offending appears to have occurred during the manic phases of his Bipolar Disorder, whilst intoxicated.
5. Dr Parker noted that while Mr Paton appears to receive some benefit from medication, he reports ceasing his medication prior to offending. Dr Parker referred to the report by Dr Allnutt dated 16 October 2010 where it was noted: "After he had stopped his medication his mood began to 'improve'. He began to feel 'happy'. By 2 March 2008 his mood was elevated and he was very happy and noticed an increased sex drive. The night prior to the alleged offence he had a high sex drive and recalled that he masturbated six times. He described feeling 'really horny'. He had increased energy, racing thoughts and was having difficulty sleeping ... He felt like he could do anything, that nothing could stop him."
6. Mr Paton reported to Dr Parker that he used to enjoy his manic phases in the past, which would encourage him to stop his medication. He says he does not find these phases enjoyable now. He also agreed that he had heightened libido during his manic phases.
7. As for his history of sexual offending, Dr Parker reported that Ms Susan Pervan, psychologist, had noted the following in her CUBIT Treatment Report dated 15 October 2003: "Mr Paton reported frequenting brothels on a regular basis when he had the finances. Further it is noted that he indicated 'falling in love' with a prostitute that he visited regularly. He seems to have confused sexual contact with Intimacy. He stated that he typically requested 'Filipino' prostitutes as he believed they would not ridicule him about the small size of his penis. His penis size was something that he frequently identified as leading to feelings of inadequacy in relationships."
8. Dr Stephen Allnutt also noted in a report dated 16 October 2008 that Mr Paton reports hypersexuality when in a manic phase. He noted: "His fantasies were usually of sex with a girl of a consensual nature. He admitted that he had had rape fantasies in the past and that this had occurred in 1994 around the time of his last offence. He said rape fantasies occurred when he was manic. When he had a rape fantasy it was about 'having it whether she wanted it or not'. They did not occur when he was not manic. He denied that he had them since. He said when he did have a rape fantasy it was of tying someone up. He could not explain particularly what aroused him about these rape situations. He stated 'it's just my penis gets so hard'. He said when he was not in a manic state he did not have a sex drive. He stated 'when I go manic it's like having a couple of Viagras, when I go high my level of mania is that one to two times is not enough, you got to do it heaps of times'."
9. In a Pre-Release Report dated 21 June 2017, Ms Nikki Manaena, Community Corrections Officer, had noted the following about his alcohol use: "Mr Paton acknowledged that, at the time when the offences occurred, he had been under the influence of alcohol, which he had been abusing heavily leading up to the offence. Drawing on Mr Paton's drug and alcohol history from his psychological report it appeared that alcohol was a form of self-medication during significant times of stress. The offender appeared to have used alcohol heavily throughout his adult life and that it was a major contributing factor to his acts of violence."
10. As for the assessment of Mr Paton's risk, Dr Parker acknowledged the difficulty in assessing risk. He provided a number of statistical tests, which are set out below at [47]-[50] and then identified Mr Paton's criminogenic needs as follows: "1. Entitlement: This refers to the idea that the person's needs/desires trump any concern over other people's well-being. There appears to be a degree of self-centredness in Mr Paton's day-to-day existence, but this seems to be heightened when he is in a manic phase. At that point, he no longer appears to pay any significant attention to the needs and desires of others; 2. Dangerous world: This refers to the idea that the world is a dangerous place, filled with people who will behave malevolently towards the offender. Consequently, this requires the adoption of aggressive strategies to defend against perceived attacks from others. This does not appear to be a significant issue for Mr Paton; 3. Women as sex objects: This implicit theory is based on the idea that '... women are seen to exist in a constant state of sexual reception. They were created to meet the sexual needs of men and women's most significant needs and desires centre around the sexual domain ... One implication of this theory is that there is often a discrepancy between what women say and what they actually want' (Fisher & Beech, 2007, p. 34), The fact that Mr Paton planned to restrain his victims suggests that he does not subscribe to this implicit theory; 4. Male sex drive is uncontrollable: This implicit theory focuses on the idea that the man is not responsible for his sexual behaviour - if he is deprived of a sexual outlet, then he is not responsible for the behaviour that follows. It appears that Mr Paton subscribes to this theory when his sex drive is high, which often coincides with the manic phase of his Bipolar Disorder; 5. Women are unknowable/dangerous: This implicit theory '... proposes that either because of biology or socialisation, women are inherently different from men and that these differences cannot be readily understood by men. One variant of this theory that is less benign occurs with the addition of the corollary that women are unable or unwilling to communicate honestly with men' (Fisher & Beech, 2007, p. 34). Mr Paton's history of domestic violence within relationships and his difficulties in forming and maintaining relationships suggests he subscribes to some variation of this implicit theory; 6. Self-regulation: This refers to the ability/willingness of the person to delay gratification of an immediate desire in favour of a long-term outcome. The concept of impulsivity is closely related, White some sexual offenders appear to be able to regulate their desires in areas other than their sexual desires, for Mr Paton the problem appears to be generalised, While many theorists perceive this phenomenon as evidence of a lack of an ability to self-regulate, that debate is far from settled (Piquero, 2008). Consequently, this may merely be a manifestation of the entitlement implicit theory mentioned above; 7. Intimacy deficits: While Mr Paton has been involved in several relationships, these were marred by his violence, suggesting he did not learn the skills and attitudes necessary for long-term relationships, A lack of intimacy is a noxious state and tends to motivate the person towards other people. Without the skills and attitudes necessary to sustain intimate relationships, Mr Paton may resort to further offending; 8. Social supports: Mr Paton has a highly supportive and dedicated family, who have gone over and above the norm to support him, However, they have been quite stressed by his difficult behaviour and health issues, If their support disappeared he would be socially isolated; 9. Cooperation with supervision: While Mr Paton appears to have been compliant with Community Corrections in the past, it is noted he has reoffended while under supervision. He has only been on supervision for a very short period at the time of this report."
11. As part of his conclusion, Dr Parker observed: "It is considered unlikely that Mr Paton would commit a further serious offence while not in a manic phase. However, while he appears to be able to recognise the onset of a manic phase, he has shown little willingness to deal with this in a responsible manner, tending to rely upon others to intervene."
12. Dr Parker went on to opine that if he was in a manic phase, Mr Paton is likely to fantasise about a female he knows and, if left unchecked, he will likely attempt to force this woman into sexual activity. Dr Paton also opined that it is possible he will act against a stranger noting: "His recent offending has all happened while he is in the manic phase of his Bipolar Disorder. Concerningly, he has ceased to take his medication at these times, despite being aware of the danger to other people."
13. Dr Gordon Elliott prepared a report in relation to Mr Paton on 15 May 2018 in his capacity as a Consultant Psychiatrist at Justice Health. Under a heading "Diagnosis" he observed the following: "Mr Paton now has a conclusive diagnosis of bipolar affective disorder. Although I did not have access to the discharge summaries from his inpatient care, I note how multiple psychiatrists have confirmed the diagnosis. I also note previous reports attributing considerable weight to his episodes of mania as being the key risk factor for the offending behaviour. I note Mr Paton himself previously made such claims during formal assessments. I had some reservations reading this material, as the description of his most recent offence was more suggestive of organised sexual sadism rather than the more disorganised behaviour that might be found in manic patients. Allowing for this, it is likely that his libido does increase during periods of mania and this could be considered one of his risk factors. It is encouraging that he is now referring to broader risk factors as a result of his progression through the CUBIT Program. He spoke more meaningfully of problems with his self-esteem, jealousy and a wish to humiliate his sexual partners to compensate for his own perceived sexual inadequacies."(Emphasis added.)
14. The State relied upon the italicised portion of this passage a number of times in its written submissions. It was noted by counsel for Mr Paton that this comment was made by Dr Elliott without sufficient material and was not repeated in a later report. On this basis, it was submitted, no particular weight should be placed on it. It seems to me that this comment by Dr Elliott was qualified on its face and I do not propose to give it the weight that the State placed on it for the purposes of this preliminary hearing.

Previous level of compliance with supervision orders: s 9(3)(e2)(f)(g)

1. It was common ground that when Mr Paton was released to parole on 20 December 2019 to live with his 97 year old mother, Community Corrections did not assist him sufficiently in this move and appeared to be unprepared (as were his family) for the severity of his physical and mental health problems. This resulted in him being hospitalised shortly after his release. It is reported that he has been doing better as his medication was adjusted and, after brief respite at Nunyara Community Offender Support Program, he has now settled into his mother's house, where he appears to be stable.
2. In the RAR, Dr Parker noted the following observation by Ms Manaena concerning Mr Paton's previous history of compliance: "Mr Paton was first supervised in 1976 an a s 558 Recognisance for the offence of Break, Enter and Steal end in 1977 he was placed on a further Recognisance for further charges of Break, Enter Steal, Receiving and Goods in Custody, CSNSW records are not available form (sic) that time to confirm the offender's compliance. The offender was placed on further Recognisance Orders in 1993 and 1995. it was in 1996 that Mr Paton was incarcerated for the serious offences of Maliciously wound with intent to cause grievous bodily harm, Aggravated Indecent Assault, Assault Beat and ill-treat, Threaten to inflict actual bodily harm with intent to have sexual intercourse, detain with intent to hold for advantage, Aggravated sexual intercourse without consent, Attempt aggravated sexual intercourse without consent x 2, Robbery and Wound with intent to murder ... Mr Paton was released to supervised parole in September 2005 and committed the index offences six months prior to the expiration of that order."

Statistical testing: s 9(3)(d)

1. Mr Paton has been assessed at the LSI-R, Static 99-R, STABLE-2007 and VRAG-R. The LSI-R is an actuarial risk assessment tool administrated to all offenders. It assesses risk according to static or dynamic risk factors. Mr Paton was assessed on 6 March 2017 with a score of 34 out of 54, which placed him in the "medium/high" risk category. 67% of such offenders in this category re-offend within two years of release, according to data collected by Corrective Services.
2. The Static 99R is an actuarial risk assessment tool which evaluates the risk of sexual recidivism among adult male sexual offenders based on their demographic and criminal history. The test contains ten items developed from data from four samples across Canada and the United Kingdom. Mr Paton's score as of 26 February 2019 was 6, which placed him in the "well above average" risk category. Dr Parker's noted in his report that such a score placed Mr Paton in the 94th percentile, with a recidivism rate of 3.8 times that of a "typical" sex offender.
3. The Stable 2007 uses empirically-based risk factors. Mr Paton's total score on 26 February 2019 was 17 out of a possible 26, which is classified as high. Combining the STABLE-2007 and STATIC-39R scores, Dr Parker classified Mr Paton as "well above average risk".
4. Dr Parker also scored Mr Paton against the VRAG-R on 29 January 2020. The VRAG-R is an actuarial risk assessment tool developed to assess the risk of violence for serious offenders. Mr Paton's score was 70% higher than the sample used in the test. 45% of violent offenders with a similar score re-offended violently within five years and 69% within twelve years.

Treatment and rehabilitation programs/available courses: s 9(3)(e)(e1)

1. Mr Paton participated in HISOP between 14 July 2017 and 30 July 2018. HISOP is a custody-based residential therapy program for sex-offenders who are assessed as being at moderate to high risk of offending. The program is delivered in an open group setting and the therapy format is designed to provide the offenders with the opportunity to work intensively on changing the thinking, attitudes and feelings that led to the offending behaviour. The program is of approximately 7 to 11 months duration with a possibility that those with additional needs may remain in treatment for up to 12 months.
2. Mr Paton appears to have participated appropriately in this program, but was held back by a combination of physical and mental health issues. His treating psychologist noted he would require further support to assist in refraining from further offending. The RAR reports that Mr Paton has stated that he did not learn anything from his first time in CUBIT (in 2002/03) but that his second attempt was "150% better". He said he put himself "out on a branch" and asked questions and that his therapist ensured he understood the answers.
3. The following summary is extracted in the RAR concerning Mr Paton's participation in HISOP: "Mr Paton's self-reported difficulties with concentration, and related mental health issues (bipolar disorder) may have impacted on his ability to understand treatment concepts. He struggled with comprehending material when it was more abstract (e.g., the concept of externalising responsibility), and on occasion demonstrated difficulties with following the pace of discussions He was also observed to exhibit some confusion and difficulties with recoil, at times becoming overwhelmed and exhibiting pseudo-seizures, where he experienced shaking, when he did not know how to answer a question or could not articulate his thoughts. Mr Paton's presentation in group appeared consistent with his assessed neuropsychological functioning, which indicated that his deficits were due to a combination of his hydrocephalus, mood and personality factors. He made treatment changes in various risk areas, such as; developing more effective coping skills; increased ability to manage his negative thoughts about himself; accepting responsibility for his decisions rather than taking a victim stance; and managing his aggression. However, he will likely required continued support and efforts within areas relating to social isolation/rejection, problem solving, and with practising strategies related to managing his sexual urges and non-consenting sexual fantasies (Wu, 28/2/2019)."

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community s 9(3) (d1)

1. A risk management report was prepared by Ms Shantelle Hodgkinson from Community Corrections ("RMR"). Based on the information previously collated, Ms Hodgkinson summarised Mr Paton's risk factors as employment, accommodation, companions, alcohol and other drugs, emotional personal (mental health) and attitude orientation.
2. Ms Hodgkinson then outlined a management strategy for Mr Paton. This involved weekly face-to-face interviews to monitor (among other things) Mr Paton's attitude, self-regulation and social supports. She further suggested unannounced home visits, field visits and surveillance by the Departmental Supervising Officer ("DSO") and Extended Supervision Order Investigation Team ("ESOIT") at the offender's residence or other locations in the community at least once per month, as well as weekly contact with third parties involved in his case management.
3. Ms Hodgkinson further proposed that Mr Paton be electronically monitored in the community and continue treatment with a psychologist. In addition, under the management plan, Mr Paton would be required to seek approval prior to attending any private residences, including his siblings, in an attempt to prevent any unsupervised contact with children and abstain from drugs and alcohol. Mr Paton would also be subject to random and regular drug and alcohol testing to ensure abstinence is maintained.

Consideration

1. At this preliminary stage, the Court is required to take into account all of the supporting documentation and assume it would be proved at a final hearing. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983.
2. The first question is whether I could make an ESO; that is, whether if the supplementary documentation was proved, the statutory requirements in s 5B of the Act are met.
3. I am satisfied that Mr Paton is a "supervised offender" within the meaning of s 5I of the Act, in that he is serving a sentence of imprisonment (currently in the community) for a serious offence. The choking offence, for which he received the longer of his current sentences, is not a "serious offence" as defined in the Act. Nor was the kidnapping offence in its terms as at the date of the offence a serious offence. Despite this, I am satisfied that Mr Paton, meets this requirement for the following reasons.
4. Section 86(1) of the Crimes Act provides: Kidnapping (1) Basis offence A person who takes or detains a person, without the person's consent - (a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years.
5. Subsection (a1) was not enacted until 2012, which was after the commission of the offence.
6. Section 5(1)(c1) of the Act provides that a "serious sex offence" includes: An offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act.
7. Section 5(1)(c1) of the Act is enlivened because of the circumstances of the offending. Mr Paton kidnapped a 17 year old girl, forcing her to get into a bed with him, removing his trousers and trying to get close to her. I am satisfied that he did so with the intention of committing the serious indictable offence of aggravated sexual touching under s 61KD of the Crimes Act. That offence would now be an offence under s 86(1)(a1) of the Crimes Act.
8. In addition, as noted above, Mr Paton was previously convicted of the offence of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act (committed against a 29 year old woman in the presence of her 3 month old child in October 1995). This offence is a "serious sex offence" under s 5(1)(a) of the Act (and therefore a "serious offence" under s 4(1) of the Act).
9. I am also satisfied that Mr Paton satisfies the requirements of s 5B (c) of the Act, and that the application was made within the relevant time frame.
10. The final question is whether I am satisfied to a "high degree of probability" that Mr Paton poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision. It has been held that such a standard of proof is higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. What the court needs to be satisfied of is, not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an "unacceptable risk" of doing so: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].
11. In Lynn v State of New South Wales [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an "unacceptable risk" is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase "unacceptable risk" is to be given its everyday meaning within its context and having regard to the objects of the Act. The evaluation is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]).
12. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43], Harrison J observed: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
13. In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate." More recently, in State of New South Wales v Loto [2018] NSWSC 1522, Rothman J observed the following at [14]-[17]: "The ascertainment of a risk and its denotation as 'unacceptable' occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable. For a full discussion, albeit in the context of the Terrorism (High Risk Offenders) Act 2017 (NSW), which is in relevantly identical terms, see State of NSW v Ceissman [2018] NSWSC 508 at [26]-[33]." (Emphasis added.)
14. Having regard to all of the supporting documentation, I am satisfied that, if proved, it would justify the making of an ESO. That is, I am 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. Not only am I satisfied that s 5B of the Act is satisfied, I am also satisfied that if the supporting material was proved, then, having regard to s 9 of the Act it would justify the making of an ESO. I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and also to the s 9(3) factors summarised above.
15. It is of significance that Mr Paton's previous serious offending has occurred at times when he has been in the manic phase of his bipolar disorder and chosen to cease his medication. The actuarial risk assessments set out in the RAR show that Mr Paton has been assessed as posing a high risk of sexual, violent and general recidivism. He has committed sexual and violent offences in the past whilst under periods of supervision. The October 1995 offences were pre-meditated and particularly serious. His offending history reveals a pattern of sexual and violent offending against women known to him. The gravity of the risk that is likely to eventuate is therefore also high.
16. Despite Mr Paton's history, he seems to be progressing well on his supervised parole. Although he was hospitalised shortly after he was released on parole, he is now doing better. His parole conditions have been strict but there is cause for some optimism if he is able to continue to comply with such supervision.
17. For these reasons, I propose to order an ISO for 28 days and also make orders regarding the court appointed experts.

Conditions of the ISO

1. Section 11 of the Act provides that an ESO or ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate" and provides the scope of possible conditions. The discretion to impose such conditions is broad: Wilde v the State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28. This court has noted the need for such conditions to meet the object and purpose of the Act: State of NSW v McQuilton (Final) [2019] NSWSC 265.
2. The determination of the specific conditions will differ in each case. The relevant enquiry is whether they will ameliorate the risk of the offender committing another serious offence according to the risk factors identified in the evidence. In State of New South Wales v Bugmy [2017] NSWSC 855 Fullerton J explained the imposition of conditions as follows at [89]: "The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways."
3. Adams J made a similar observation in New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483, noting that the Court must strike a balance between the relevant considerations, one of which was "the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties" (at [36]).
4. The court must be mindful of the fact that it is an offence to breach a condition of an ISO or ESO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing. As Beech-Jones J observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]: "In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender … to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender."
5. The State initially sought all standard conditions available under an ESO/ISO. In written submissions, Ms Sullivan of counsel contended that not all of them were aimed at Mr Paton's identified risk factors and others were ambiguous. It was submitted that the relevant OIMS notes identify four positive factors which are relevant to this consideration. The first of these was that Mr Paton is aware of the "warning signs" of the manic phase of his bipolar disorder, such as sleep disturbances. Secondly, he had engaged well with Community Corrections Officers and demonstrated that he was willing to abide by conditional supervision. Thirdly, Mr Paton's family (particularly his two sisters) have been very supportive of him and compliant with Community Corrections. Finally, Mr Paton had successfully complied with his parole regime for the last seven months.
6. Mr El-Hage, counsel for the State, accepted some of the suggested changes and deletions and maintained the State's positions on others. The practical effect of this was that there were ultimately only five conditions the subject of argument.
7. Two of the disputed conditions arose from the potential uncertainty as to what might constitute an "emergency". The State had proposed the following condition: "The defendant must not deviate from his approved schedule of movements except in an emergency." (Emphasis added.)
8. Counsel for Mr Paton submitted that there should be an additional carve-out for deviation where there was a "reasonable explanation". She submitted that a condition of this type was imposed by Cavanagh J in State of New South Wales v Matthes (AKA Hackett) (Final) [2019] NSWSC 1360. That condition was in these terms: "The defendant must not deviate from his approved schedule of movements except in an emergency. It will not be a breach of Condition 7 if there is a reasonable explanation for the reason for the deviation either being disclosed by the defendant himself or on enquiry by the DSO or those supervising the defendant."
9. Counsel for the State's objection to this suggested amendment was that it enlarged the scope for deviation from the schedule and created ambiguity. It was noted that Mr Paton has previously committed sexual and violent offences whilst under periods of supervision (or shortly after they have ended).
10. I am mindful of the fact that it is an offence to breach a condition of an ISO or ESO. It seems to me that whether Mr Paton is able to establish an "emergency" as a reason for derogating from his scheduled movements, or whether he is able to provide a reasonable explanation to his DSO for doing so will make little difference for the purposes of managing his risk. He will be subject to electronic monitoring at all times. I propose to adopt the suggested amendment.
11. The second disputed condition was in these terms: "The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order."
12. Ms Sullivan proposed an addition to the above condition by placing the words "unless he provides a reasonable excuse for non-attendance" at the end of the proposed condition.
13. The State agreed to a modification of the condition by adding the words "except in an emergency" at the beginning of the condition but submitted that the proposed carve-out for a "reasonable excuse" is too broad and creates ambiguity.
14. This second dispute concerned the same issue as the first which is the use of the word "emergency" in a condition. I am satisfied that it is appropriate to adopt the suggested change for the same reasons as I did for the first disputed condition.
15. The third contested condition was in the following terms: "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 a DSO. If any of his co-residents invite or permit someone ("the visitor") to enter, remain or to stay overnight at the approved address (or room, if staying in supported accommodation), the offender must inform a DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from a DSO in relation to the visitor." (Emphasis added.)
16. Ms Sullivan proposed an amendment to this condition which, essentially, removed the requirement to "identify" a visitor to the premises but rather to distance from them and seek the approval of a DSO about whether to remain on the premises. This proposed revision accords with the approach adopted by Lonergan J in State of New South Wales v Joensen (Final) [2019] NSWSC 1614.
17. The State pressed this condition as proposed. Mr El-Hage submitted that an officer supervising Mr Paton would need to know the identity of the person so as to enable a proper assessment of any risk to that person. He submitted that under the proposed revision, all the assessing officer could be told is that there is a man or woman in the house, which would frustrate the ability of the officer to properly assess the situation. The State's desire was to "arm the DSO with as much information as possible".
18. The need for such a condition is so as to protect any visitor to the house and provide the DSO with the basis to make a risk assessment in each case. The difficulty with the condition as proposed by the State is that requiring Mr Paton to ascertain the precise identity of every visitor will not always be practical. For example, if a flatmate meets a male or female whilst out one night and brings them back home for the purposes of casual sex, it seems unreasonable to expect Mr Paton to enter that bedroom and obtain the full identity of that visitor.
19. The proposed condition will require Mr Paton to inform his DSO of every visitor. This still addresses the question of risk to a visitor. It seems to me that the more information Mr Paton is able to provide to the DSO the more likely it is that he will be able to continue staying at the premises after notifying his DSO of the visitor. In any event, Mr Paton's risks arise when he is in a manic phase. The suite of conditions proposed should ensure that his DSO is aware of whether he is in such a phase and assess the situation accordingly.
20. The fourth proposed condition disputed by Mr Paton was as follows: "The defendant must not gamble. The defendant must seek assistance in controlling his or her gambling, if directed by a DSO."
21. In lieu of this proposed condition Ms Sullivan proposed this alternative: "The defendant must not gamble. If necessary, a DSO could require the defendant to undertake an appropriate gambling counselling course or program under condition 1 [amended to condition 2]."
22. The State pressed the condition in its original terms. It was submitted that the part of the condition that the defendant wanted removed is directed at rehabilitation, which is an object of the Act. It was also submitted that the State's proposed wording is consistent with the comparable clause in Mr Paton's parole conditions.
23. There was no dispute that it was appropriate to impose a condition that Mr Paton not gamble. The dispute was as to the need for him to be mandated to seek such assistance when condition 2 already provides that he is to comply with all reasonable attractions of his DSO.
24. I would propose two separate clauses. First, that the defendant must not gamble, and the second one in the terms suggested by Ms Sullivan. Although the difference between the condition proposed by the State (consistent with how the condition is expressed in his parole conditions) and that proposed by Ms Sullivan is not significant, I am satisfied that the condition proposed by Ms Sullivan would still meet the risk factors associated with Mr Paton.
25. The final disputed condition was in these terms: "The defendant must submit to a search by a DSO or on behalf of a DSO, of his person and residence and the search and seizure of any vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control."
26. Ms Sullivan proposed the following amendment: "If the DSO reasonably suspects that a search of the defendants approved address, or any vehicle in which he is travelling or which is under his effective control, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to that search all those searches."
27. In support of her submission that this condition was more appropriate, Ms Sullivan relied upon the decisions of Hamill J in State of New South Wales v Steven Single [2019] NSWSC 176 at [51]-[53] and Fullerton J in State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [103]-[108].
28. It was submitted that there was also support for the proposition that the amendment was appropriate in the decision of Basten JA in Baldwin v State of New South Wales [2020] NSWCA 112 at [65]. In that case, the Court of Appeal considered the validity of a condition that a DSO could search an offender if a reasonable belief was formed that it was necessary (according to stated criteria). Once the DSO formed such a belief and directed a search, then the offender was obliged to consent. Complaint was made by the defendant had no way of knowing whether or not such a belief had been formed and, thus, whether they should consent. Basten JA commented at [65]: "…The purpose of requiring a reasonable belief as to specified matters was intended to be protective of the interests of the applicant, by limiting the circumstances in which a search could properly be directed. If the applicant were minded to refuse consent, he would face the risk of committing an offence under s 12 of the High Risk Offenders Act. That circumstance was no different from that faced by a person contemplating resisting arrest, or refusing to comply with the terms a search under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21… ."
29. Having regard to these decisions, I am satisfied that it is appropriate to impose this condition in the amended form as contended for on behalf of Mr Paton.
30. Overall, although the conditions I propose to impose for the purposes of this ISO are less stringent than those initially advanced by the State, they are still numerous and onerous. They are set out in full below. I am satisfied that they strike the appropriate balance as between addressing the relevant risks and not setting Mr Paton up to fail.

ORDERS

1. Accordingly, I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): 1. That two qualified psychiatrists, psychologists (or any combination of such persons) be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. That the defendant is directed to attend those examinations. 1. Pursuant to s 10A and s 10C(1) of the Act, the defendant is subject to an interim supervision order for a period of 28 days to commence on 2 September 2020 and expire on 29 September 2020. 2. Pursuant to s 11 of the Act, direct that for the period of the interim supervision order the defendant must comply with the conditions set out in the Schedule to this judgment. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the 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 of access.

Schedule of conditions of supervision Craig Paton (111904, pdf)

Amendments 01 September 2020 - Minor formatting change 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: 01 September 2020