State of New South Wales v Richardson

Supreme Court of NSW|2020-12-09|Before: Rothman J, Hoeben CJ

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2020/234715

Judgment

HIS HONOUR: By Amended Summons filed 9 October 2020, the plaintiff, the State of New South Wales, applied for an Extended Supervision Order ("ESO"), being an order of the Court under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). An Interim Supervision Order ("ISO") issued on 20 October 2020 binding on the defendant, Mark Richardson, and was issued by order of Hoeben CJ at CL. [1]
The Amended Summons upon which the Court operated in issuing the ISO was further amended at the hearing of the proceedings for final relief and the Court granted leave, by consent, to amend the Summons further. The Further Amended Summons, filed in Court and dated 8 December 2020, is the document upon which these proceedings are now continued.
Pursuant to the orders of Hoeben CJ at CL, the defendant was examined by a Psychologist, Mr Patrick Sheehan and a Forensic Psychiatrist, Dr Richard Furst.

Expert Reports

The report of Mr Patrick Sheehan, dated 13 November 2020, is extremely relevant. Mr Sheehan expresses the view that there is "little doubt" that the defendant has a disorder of sexual behaviour of a polymorphous type, which encompasses Exhibitionistic Disorder, Voyeuristic Disorder, Frotteuristic Disorder and, possibly, Transvestic Disorder. Mr Sheehan considers that the defendant's participation in treatment has been suboptimal and reflects only partial engagement.
Mr Sheehan expresses the view that the presence of brain injury cannot be completely discounted but notes that the defendant's sexual behaviour is not consistent with the presence of impaired intellectual functioning. This, he says, is primarily due to the offending conduct being less consistent with impulsive acts of disinhibition and more closely aligned, over time, with carefully planned events.
Mr Sheehan scored the defendant on the static and dynamic systems and, like all other experts in this area, expresses some qualifications on the significance of these scores. Nevertheless, the defendant's score on the STATIC-99R was 7, placing him in the high risk or well-above average risk of reoffending. Mr Sheehan identifies the following dynamic risk factors and is of the opinion that there is no identifiable evidence that they have reduced over time: sexual violence history (convictions spanning 35 years); psychological adjustment (the defendant has a long history of minimising his offending); mental disorder; social adjustment; and manageability.
Mr Sheehan considers that the defendant would appear to be more at risk of offences against young women and Mr Sheehan is of the view that the defendant's risk of committing a sex offence is at the "upper end of the risk spectrum", relative to other adult male sexual offenders.
Further, Mr Sheehan is of the opinion that the proposed supervision conditions are adequate to manage the defendant's risk of sexual recidivism, as they seek to minimise escalation of background factors. Mr Sheehan states that these conditions can be effective in containing the risk of grooming or planned offences.
Mr Sheehan also states that, given the enduring nature of the defendant's risk factors, an order for an ESO at the "upper end" of the five-year range would be most appropriate, but that an order for three years may be sufficient to achieve the goals of an ESO. The opinion expressed by Mr Sheehan is that the appropriate length of the order would be at the upper end of three years.
According to the plaintiff, Mr Sheehan qualifies this view by the need for the defendant to cooperate. This view must be considered in the context that Mr Sheehan expresses the opinion that there is no evidence that the dynamic risk factors have reduced over time and there remains a serious possibility of the defendant committing a serious sex offence.
Dr Richard Furst, Forensic Psychiatrist, compiled a report, dated 20 November 2020. Dr Furst diagnosed the defendant as having Paraphilic Disorders, being: Exhibitionistic Disorder; Voyeuristic Disorder; and Toucheristic Disorder. Dr Furst also diagnosed the defendant as having a Personality Disorder with avoidant and schizoid traits.
Dr Furst states that the defendant's personality disorder is enduring and characterised by "low self-esteem, poor coping mechanisms, interpersonal difficulties, intimacy deficits, dysfunctional thought patterns, avoidance, denial, projection of blame and manipulation".
Dr Furst expresses the view that the presence of paraphilic disorders in addition to a history of prior sexual offending is an "ominous predictor" of the defendant's risk of committing future sex offences. Individuals with a personality disorder, according to Dr Furst, "tend to lack empathy, often fail to take responsibility for their own behaviour, are generally testing of limits and difficult to work with, are hard to correct and often lack insight into their problems".
A STATIC-99R assessment was conducted by Dr Furst. In that assessment the defendant received a score of 7, placing him well-above the average for risk of reoffending, compared with the typical offender of this class. The defendant's total score of 46 on the STABLE-2007 reflects that his clinical or dynamic risk of offending in a sexual manner is significantly higher than the average male sex offender.
Dr Furst also expressed the opinion that the defendant would benefit from a more intensive level of supervision and treatment, such as that which is available from an ESO. Dr Furst stated that the following factors make voluntary treatment without an ESO inadequate in managing his risk of future offending: the enduring pattern of sexual deviance; the criminal versatility of his sexual offending; his opportunistic offending; his lack of insight; and the level of manipulation involved in the offending.
There is, according to Dr Furst, a real question as to the utility of psychological treatment or further specific sex offender maintenance treatment plans in the community. That question arises from the lack of evidence that such programs reduce the risk of reoffending, significantly in male sex offenders. It also arises from the fact that the defendant has a significant lack of insight into his offending, a lack of commitment and also from the defendant's dismissive attitudes towards treatment.
Notwithstanding the opinion expressed, Dr Furst recommends that the defendant see his General Practitioner to be referred to a Forensic Psychiatrist, so that the defendant can commence treatment with anti-libidinal medication. Dr Furst considers that the conditions outlined in the preliminary judgment of Hoeben CJ and CL are appropriate to mitigate the defendant's risk and challenging personality profile, because the defendant requires assertive supervision, monitoring and restrictions.
Anti-libidinal medication will not be prescribed without the defendant's consent, which has not been given. Nor will it be given.
The opinion expressed by Dr Furst includes that the defendant poses a risk of committing a further "serious offence" and Dr Furst stated that the defendant has a pattern of sexual deviance and related sexual offending, spreading over four decades.
Further, Dr Furst indicated that the defendant has not learned very much from his previous offending. As a consequence, it is difficult to determine whether the defendant's previous pattern of sexual deviance and related offending will decline. Dr Furst notes, as is the consistent evidence of experts in this area, that paraphilic and personality disorders are enduring conditions that predict higher rates of reoffending and, as such, a duration of five years for an ESO is indicated.
The Risk Assessment Report, dated 27 April 2020, together with the Risk Management Report, dated 29 May 2020, are before the Court and have been summarised by the plaintiff in its Written Submissions at [63] to [87]. Those reports are in or to the same effect as the reports from the Psychologist and Forensic Psychiatrist, to which the Court has already referred.

The defendant's time in the community and the history of compliance

The defendant has been the subject of several good behaviour bonds and other periods during which he has enjoyed conditional liberty. The behaviour bonds commenced in or about 1983.
A number of these good behaviour bonds have been breached, either by re-offending or non-compliance with supervision. In June 1983, the defendant breached a recognizance. Notwithstanding the foregoing, there have been periods of parole with significant conditions, which the defendant completed satisfactorily.
As to the index offence, the defendant was eligible for parole for the sentence imposed for that offence on 17 November 2019. At its meeting on 18 October 2019, the State Parole Authority refused parole to the defendant on the basis that he needed to complete the High Intensity Sex Offenders Program ("HISOP"), which is designed to address sex offending behaviour. The defendant requested a review of that decision and, by letter dated 12 November 2019, the defendant continued to insist that he believed the victim was older and that he was given inconsistent information regarding assessment for the program.
The plaintiff submits, with which submission the Court as presently constituted agrees, that the letter demonstrates that the defendant continues to lack insight into his offending and continues to minimise the offence. In a letter dated 18 February 2019, addressed to the Sex Offender Program, the defendant stated that the sentence imposed upon him by the judge was "incorrect" and "without foundation".
The defendant was ultimately released to parole on 30 June 2020 and, as a result, resided at the Nunyara Community Offender Support Program Centre. During this time, the defendant had difficulties complying with his Schedule of Movements and the conditions imposed upon him. He also made numerous complaints about the conditions placed upon him. The parole order expired on 17 November 2020.
The defendant's participation in various programs has been described as "reluctant" and there are numerous reports before the Court which emphasise the defendant's aggressive behaviour towards staff and other matters evidencing a "very poor attitude".
On 3 September 2020, the defendant was arrested by police after being charged with two counts of fail to comply with reporting obligations as per the Child Protection (Offenders Registration) Act 2000 (NSW) ("the Offenders Registration Act"). The alleged offences, which have not yet been finalised, involve an allegation that the defendant gained access to two public libraries' Internet services, between 31 July 2020 and 1 September 2020. These matters are next before a court on 28 January 2021 and are apparently listed for sentence.

Evidence and submissions

As already indicated, the Court has before it the report of Patrick Sheehan, dated 13 November 2020, and the report of Dr Richard Furst, dated 20 November 2020, each of which has already been the subject of reference. Other evidence includes three Affidavits of Isabel Kallinosis, affirmed 10 August 2020, 4 September 2020 and 2 October 2020; the Affidavit of David Yang, affirmed 30 November 2020; the Affidavit of Rochelle Pateman, affirmed 30 November 2020; and the Affidavit of Kelli Grabham, affirmed 30 November 2020. Each of the foregoing Affidavits and the two reports are adduced by the plaintiff either in support of the orders it seeks or otherwise in accordance with the requirements of the Court. Each of them forms part of Exhibit A in the proceedings.
Also forming part of Exhibit A in the proceedings is the Affidavit evidence of the defendant, which consists of: the Affidavit of Hayley Le, affirmed 7 December 2020; the Affidavit of Mark Richardson, the defendant, affirmed 7 December 2020; and the Affidavit of the Ninette Guilia Maddrell, affirmed 6 December 2020. Each of those Affidavits was read without objection and there was no cross-examination of any witness.
Many of the submissions upon which the plaintiff relies have already been the subject of notation in these reasons for judgment. The plaintiff relies on what it describes as the defendant having an established and persistent pattern of sexual offending of the kind already described and over the period already noted. The plaintiff submits that the breadth and pervasiveness of the offending leads to a multi-layered risk profile, indicative of entrenched sexual deviancy.
As a consequence of the reports to which the Court has already referred and the history of offending, the plaintiff submits that the defendant poses an unacceptable risk of committing another serious sex offence, if not kept under supervision by an ESO. The unacceptable risk posed is based upon a number of factors, including: 1. The risk assessments conducted support the conclusion that the risk posed by the defendant currently falls within the well-above-average range to high-risk range; 2. The defendant has a chronic and enduring risk profile, associated with the capacity to manipulate others, evidenced, at least in part, by his failure to disclose to his wife the offending in question; the use of false names; and the use of a fictitious role as a modelling agent; 3. The lack of demonstrated progress in addressing criminogenic needs through offence specific treatment programs; 4. The defendant's limited insight and reluctance to acknowledge the identified risk factors; and 5. A need for further intensive treatment regarding minimising the risk of reoffending.
The plaintiff also relies upon the report of Mr Sheehan and, in particular, the recognition by Mr Sheehan that an escalation of sexual conduct, including sexual intercourse offences, is a possibility, as well as offences involving excessive force. The plaintiff points to Mr Sheehan's opinion that, despite the diversity of the defendant's sexual offending, the predominant risk posed is a risk of committing a further sexual offence against young women.
Further, the plaintiff relies upon the risk of the defendant committing a sex offence being at the upper-end of the risk spectrum relative to other adult male offenders.
According to the plaintiff's submissions, the defendant has, at times, committed serious offences, involving sexual violence and the use of weapons including knives. The plaintiff submits that there remains a concern that the defendant may use violence in order to be able to satisfy his sexual urges. The risk of committing a serious offence, according to the plaintiff's submissions, is heightened by this propensity to resort to violence in connection with sexual offending.
The plaintiff submits that the Court is not entitled to take into account the regime under the Offenders Registration Act in determining whether the risk is an unacceptable risk. In the plaintiff's submission, the role of the Offenders Registration Act is limited to the Court's exercise of discretion as to whether to make an order, once an unacceptable risk has been determined.
In that regard, the plaintiff submits that the regime under the Offenders Registration Act falls well-short of the identified need for ongoing monitoring and supervision of the defendant. The regime provides for only a limited capacity to monitor the defendant's access to vulnerable individuals and for conducting searches of the defendant, which are confined to an annual event.
Similarly, according to the plaintiff, the requirements for disclosure of information are limited in scope and there is no capacity to monitor electronic devices regularly. While there is an additional regime available under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("the Prohibition Orders Act"), no such orders exist and the orders, themselves, the plaintiff submits, are insufficient to ameliorate the risk to a level where it is no longer unacceptable or such that, in its discretion, the Court would not bind the defendant to an ESO.
Specifically, the plaintiff points to the fact that the orders made under the Prohibition Orders Act do not allow for Electronic Monitoring. Even if it were to allow for such monitoring, the Police, who enforce such orders, do not have the resources to monitor electronically any person covered by such an order.
Similarly, the restrictions on accommodation; place and travel restrictions; and non-association are significantly more limited than those that can be and should be, according to the plaintiff, imposed upon the defendant under an ESO.
The plaintiff submits, specifically, that the conditions of the ESO should include Electronic Monitoring; the provision of a Schedule of Movements; restrictions on accommodation; restrictions on place and travel; non-association conditions; a restriction on the possession of weapons; and restrictions on access to the Internet and other electronic communications, together with search and seizure conditions.
The defendant opposes the making of an ESO generally and, if such an order is made, opposes some significant conditions sought by the plaintiff. In opposing the making of an ESO binding on the defendant, the defendant submits that he is not at risk of committing a serious sexual offence and, therefore, an ESO should not issue. In some respects, that submission, made, presumably, on instructions, is itself a concern.
The defendant points to what is said to be a significant period between the commission of earlier serious sexual offences and the latest serious sexual offence: a period of 22 years. The defendant submits the more recent offending occurred in the context of serious life stressors, such as a relationship breakdown and custody issues. The defendant is now living independently, attempting to develop himself professionally and is at a more advanced stage of life. These factors go, it is submitted, to attenuate any risk that he may previously have posed.
The defendant submits that, in the absence of an ESO, he will be subject to the conditions imposed under the Offenders Registration Act. Initially, the submission was that that regime would apply for 15 years, which period would not include any period under which the defendant was governed by the terms of an ESO.
As a consequence, the making of an ESO would have the additional effect of extending the period during which the defendant would be suffering from conditional liberty. The defendant submits that the regime imposed under the Offenders Registration Act imposes onerous reporting conditions, including residence and travel restrictions (Pt 3 of the Offenders Registration Act); the right of police to enter the defendant's premises (Div 7A of the Offenders Registration Act); and imposes gaol terms of up to 5 years for non-compliance (Div 8 of the Offenders Registration Act).
The defendant submits that the Offenders Registration Act, and the availability of orders under the Prohibition Orders Act, are matters that the Court is required to consider in determining whether the defendant poses an unacceptable risk.
Moreover, as already stated, the defendant submits that the period for which no serious offending occurred, together with the more advanced age of the defendant are factors, together with the other regimes, that would require the Court to come to the view that the defendant no longer presents an unacceptable risk of committing a serious sexual offence.
Further to the foregoing, whether or not it is taken into account in determining whether there exists an unacceptable risk, it is said that these factors also inform the exercise of discretion and the Court ought to exercise its discretion and refuse the making of an ESO binding upon the defendant.
First, the defendant says that, as a result of the alternative regime, there is a lack of utility in the making of the ESO. There is also a lack of utility associated with the context of the defendant having undertaken past treatment programs and his history of past compliance with conditions of parole and with the ISO that has been made by the Court.
Secondly, the defendant submits that the rigorous supervision sought to be imposed on the defendant by the conditions of an ESO will be counter-productive in the defendant's case.
As to the conditions of an ESO, if the Court is otherwise against the defendant's submission that an ESO ought not to be made, the defendant submits that the appropriate duration of any such ESO would be less than three years. That submission is put on the basis that the defendant will remain subject to the Offenders Registration Act and the possibility of prohibition orders issuing under the Prohibition Orders Act, when the ESO expires; gains from treatment will be minimal, on the reports before the Court; the focus of any supervision order should be on the rapid establishment of accommodation and work returns, which can be achieved in the very short term; and relies upon the opinion expressed by Mr Sheehan and that a three-year ESO "may be enough in achieving the goals of the supervision order".
Over and above the foregoing, the defendant opposes conditions relating to Electronic Monitoring; the requirement for a Schedule of Movement; the accommodation restriction; the employment, financial and educational restrictions; and the restrictions related to association.
The defendant submits that there is no evidence that the defendant has any issues with drugs, alcohol or anti-social peers. These are the usual reasons for the imposition of Electronic Monitoring. The defendant submits, accordingly, that such an order is redundant in the face of conditions that allow for restrictions to locations and people.
As to the Schedule of Movements, there is, according to the defendant, little or no evidentiary support for the proposition that the defendant requires any assistance in developing a structure in his life, in planning his week ahead, or to ensure constructive and appropriate activities are incorporated in order to develop planning and self-management skills. On the contrary, the defendant is capable and does live independently; has worked in professional fields; and is self-sufficient in all aspects of his day-to-day life.
The proposed conditions of the ESO will require the defendant to reside at an address approved by his Departmental Supervising Officer ("DSO"). The defendant submits that there is little or no evidence to suggest that he has any history of living in anti-social locations or with anti-social peers. Nor is it suggested, on the evidence, that his residence, either currently or in the past, is or has been associated with risk. If he were not subject to an ESO, the defendant would still be required to report his address, and any changes to it, to the Police, under his obligations under the Offenders Registration Act.
Over and above the foregoing, as to employment, finance and education restrictions, the defendant submits that there is no evidence that the defendant has had any difficulty in working or in seeking professional employment. Further, unemployment, lack of training or education are not contributing factors to the defendant's offending or associated with the risk, if any, that he poses.
In a similar vein, the defendant submits that the obligations imposed upon him under the Offenders Registration Act achieve the same or similar goals that are sought to be achieved by the restrictions on association or, more accurately, conditions requiring non-association. There is no need, in the context of the defendant and his particular aspects, to promote pro-social relationships and therefore the restrictions on association should not be conditions imposed upon the defendant.

The offender registration regime

In the course of the submissions before the Court, the plaintiff submitted that the regime imposed as a consequence of the Offenders Registration Act is irrelevant to the determination of whether the defendant poses an unacceptable risk of committing another serious offence. As I understand this submission, the plaintiff relies upon the use of the terms "if not kept under supervision under the order" in s 5B(d) of the Act to submit that the unacceptability of risk is assessed without regard to any countervailing circumstances.
In part, this submission is based upon comments by the Court of Appeal. [2] In that regard, the State of New South Wales submits that the determination by the Court of whether a person poses an "unacceptable risk" is the gateway to the power to make various orders and requires the Court to make an assessment of the likelihood in the absence of any supervision. [3]
The judgments of the Court of Appeal in each of Donovan and Lynn concerned an issue as to whether the effect of an ESO (or ISO) on a defendant was a factor to be taken into account in the determination of whether there existed an unacceptable risk. The reference, particularly in Donovan, cited with approval in Lynn, that the assessment of the unacceptability of the risk is made in the absence of any supervision is a reference to any supervision under the Act.
Contrary to the submission of the State of New South Wales, the phrase "if not kept under supervision under the order" refers to an order under the Act and requires the Court to turn its mind to whether the offender poses an unacceptable risk of committing another serious offence if no order were made under the Act. As a consequence, regimes that apply to the offender, otherwise than under the Act, are relevant to the determination of whether the offender poses an unacceptable risk in the absence of, for example, an ESO.
To take a bizarre and extreme example, if a regime existed under some legislation (assuming, for present purposes, validly) that every offender of a particular kind was required to be shackled to a police station, the fact that the offender would then be shackled to a police station would be a circumstance that applied to the offender, if no order were made under the Act, and would inform the degree of probability of the offender posing an unacceptable risk of committing another serious offence.
The Offenders Registration Act is a regime that, without any order under the Act being issued, would apply to the offender and would inform whether the Court would be satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing another serious offence, in the absence of an order under this Act.
The foregoing view of the relevance of the offender registration scheme to the determination of unacceptable risk seems to accord with the view taken by the Court on previous occasions. [4]
The issue that the Court must determine is whether it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence, if the Court were not to make the ESO. In determining that question, the Court must consider the circumstances that apply to the offender or that would apply to the offender if an ESO were not made.
As a consequence, the regime under the Offenders Registration Act is relevant to the assessment of unacceptability of risk under s 5B(d) of the Act. It is also relevant to the exercise of discretion by the Court as to whether an order ought to be made, even if the offender poses an unacceptable risk.
I accept that, given the primary purpose of the Act, the circumstance that the offender poses an unacceptable risk will rarely, if ever, lead to the exercise of the discretion not to make an order. The operation of the Offenders Registration Act and the availability of prohibition orders may, in some circumstances, bring a particular defendant within those rare or unusual circumstances.
It is necessary, briefly, to examine some of the restrictions imposed under the Offenders Registration Act and the Prohibition Orders Act, and its operation on the defendant in these settings. Currently, the Offenders Registration Act does not apply to the defendant, because the Offenders Registration Act does not apply in circumstances where the offender in question is bound by an ISO or an ESO. Given that the Court has bound the defendant to an ISO, the Offenders Registration Act does not currently apply its regime to the defendant.
The Offenders Registration Act, which was first promulgated in 2000, requires the registration, relevantly, of a person who has committed a registrable offence, which, for present purposes, includes certain sexual offences against a child. Relevantly for present purposes, the defendant is a person who has been convicted of an offence that involves sexual intercourse with a child, being a person under the age of 18 years, which offence is not a Class 2 offence and, as a consequence, the defendant is a person sentenced in respect of a Class 1 registrable offence. [5]
The primary object of the Offenders Registration Act includes the protection of children from serious harm and, in particular, physical and psychological harm caused by physical or sexual assault.
A person who is found guilty of an offence prescribed as a Class 1 offence is required to comply with the reporting obligations of the Offenders Registration Act. The defendant is subject to such obligations and has already been charged with breaching them.
A registrable person, once sentenced, must be given notice of the reporting obligations and the consequences that arise if the person fails to comply with those obligations. Detention is allowed for the purposes of the provision of a notice, including a notice for the alteration of obligations. The Offenders Registration Act is enforced by Police; not Corrective Services.
By operation of s 9 of the Offenders Registration Act, relevant personal information must be reported by a registrable person and such information consists of the person's name and any pseudonym; date of birth; address, including any alterations of address; the name and date of birth of each child, who, generally, resides in the same household; the details of employment; affiliation to any club or organisation; make model and registration number of motor vehicles; tattoos and other permanent distinguishing marks; and a number of other aspects.
By s 9(1)(m) of the Offenders Registration Act, the registrable person is required to provide to Police details of any telephone or carriage service used, or intended to be used, by the person and by s 9(1)(n) the registrable person is required to provide details of any Internet service used or intended to be used.
Other requirements include the provision of details of email addresses; Internet usernames; instant messaging usernames; chat room usernames; any other username or identity used or intended to be used by the registrable person; and other information prescribed by the regulations. [6]
The reporting and contact provisions prescribed by ss 9(1A) and 9(1B) require the registrable person to inform the Police of each child with whom they have had contact, but only in circumstances where the registrable person is supervising or caring for the child; visiting or staying at a household where the child is present; exchanging contact details with the child; or attempting to befriend the child. Contact includes physical and oral communication.
During the course of the submissions, there was discussion as to the duration of the reporting obligations under the Offenders Registration Act. Initially, the defendant submitted that the Act applied for 15 years but was extended by any period of time equal to that period during which the Offenders Registration Act was suspended in operation. Any period during which the defendant was governed by the terms of an ISO or ESO was a period during which the Offenders Registration Act provisions were suspended.
The basis upon which that submission was advanced was that the offence with which the defendant was convicted and sentenced was a Class 1 offence, as defined in the Offenders Registration Act. As such, by operation of the provisions of s 14A(1)(b) the reporting obligations subsisted for 15 years.
However, the defendant has committed both a Class 2 and a Class 1 offence. Some of the early offences would, at least, be classified as a Class 2 offence.
As a consequence, but for issues associated with retrospectivity, the defendant is in the situation where he is a registrable person that may be governed by the terms of s 14A(1)(c) of the Offenders Registration Act.
The definitions of Class 1 and Class 2 offences includes a provision that describes the offence as an offence "that, at the time it was committed, … was a Class 1 offence for the purpose of this Act; or … in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition." The same definition applies to Class 2 offences, the necessary changes being made.
As a consequence, it would initially seem that a registrable person is registrable as a consequence of offences committed before the commencement of the Offenders Registration Act. If that be so, and assuming that the defendant is a registrable person as a consequence of earlier Class 2 offences and he subsequently committed and was found guilty of a Class 1 offence, the reporting obligations on the defendant would be for the remainder of his life. There are aspects which would qualify that view.
First, the terms of s 14A(1)(c) of the Offenders Registration Act requires the person to be "a registrable person in respect of" particular offences. It is unclear whether that term can be utilised in relation to the earlier offences committed by the defendant.
Secondly, by operation of s 14A(2), the life-long reporting obligations do not apply unless the registrable person was given notice of the person's reporting obligations under the Offenders Registration Act or a corresponding Act before the person committed the subsequent offence.
While the facts are not before the Court, the inference must be, given the age of the earlier offences and the date upon which the index offence was committed, that no such notice was provided to the defendant and the provisions of s 14A(1)(c) do not apply to impose a life-long reporting regime.
On one view, the above issue is important. The defendant relies upon the fact that, if an ESO issues, the period of reporting obligation is extended by the duration of the ISO and ESO. If the reporting obligation is for life, that is an irrelevant consideration.
I operate on the basis that it has not been shown that a life-long reporting obligation is imposed upon the defendant and the reporting obligation is that contained in s 14A(1)(b) of the Offenders Registration Act, which is for a period of 15 years that is calculated, amongst other bases, without taking into account any period during which the defendant has been governed by the terms of an ISO and may be governed by the terms of an ESO. As a consequence, any ESO that issues from this Court will have the effect of extending the reporting obligations pursuant to the Offenders Registration Act for a period that is equal to the duration of the ESO.
The requirement on the registrable person to report to Police the issues, or some of them, earlier outlined arises annually. The 15 year period commenced when the defendant ceased to be in government custody, i.e. when parole was granted.
The right of Police to enter, without notice, the residential premises occupied by the defendant is limited to two such entries in the first 12 month period of the 15 years and one such entry during each following 12 month period. [7]
The failure to comply with the reporting obligations or other aspects of the regime, without reasonable excuse, involves a criminal offence which is punishable by 500 penalty units or imprisonment for five years, or both. [8] The defendant is entered on the Child Protection Register.
The defendant has also relied upon the Child Protection (Offenders Prohibition Orders) Act, in this judgment referred to as the Prohibition Orders Act, but no prohibition orders have issued and the defendant is not governed by any such order.
A prohibition order may be granted on the application of the Commissioner of Police and will continue for a period up to but not more than five years, in the case of the defendant. There is capacity to issue interim prohibition orders. Such prohibition orders can prohibit association with specified persons or kinds of persons; being in specified locations or kinds of locations; engaging in specified behaviour; and/or being employed in specified employment.
Nevertheless, in accordance with the analysis to which I have already referred, the Court is required to determine whether the defendant poses an unacceptable risk in the absence of an ESO. In the absence of an ESO, at the moment, there are no prohibition orders and, it would seem, as a consequence, that which may be taken into account is not the extent to which prohibition orders go, but the possibility that the Commissioner of Police may apply for such an order and that the Local Court would grant it. Otherwise, the existence of the Prohibition Orders Act seems to be irrelevant to the determination of whether the defendant is an unacceptable risk.

Unacceptable risk and Consideration

There are four preconditions to the issue of an ESO by the Court. They are prescribed by the terms of s 5B of the Act. There is no issue between the parties that the first three of those preconditions have been satisfied.
Notwithstanding the agreement of the parties, it is necessary for the Court to be satisfied of the four conditions to which s 5B of the Act refers. Given the extent of agreement as to the first three such preconditions, the Court can be brief on those issues.
Plainly, on the circumstances that have already been mentioned, the defendant was, at the time that the plaintiff made application for an ESO, a person who has served a sentence of imprisonment for a serious offence and, relevantly, both in custody and under supervision in the community.
Further, the defendant was, at the time that the application for the ESO was made, in custody, which term includes on parole. [9] Secondly, the sentence that was being served by the defendant was a sentence of imprisonment for a serious offence and for an offence of a sexual nature, although only one of the two is necessary.
As a consequence, the application was made in accordance with s 5I of the Act. Lastly, the person is and was a supervised offender, as already noted, within the meaning of s 5I of the Act.
Thus, the Court is satisfied that conditions (a), (b) and (c) of s 5B of the Act have been satisfied. The Court, while independently coming to that view, gains comfort from the agreement of the defendant as to those issues.
The next issue is the question whether the Court is satisfied that the offender poses an unacceptable risk of committing another serious offence if an ESO is not issued. The Court must be satisfied to a high degree of probability that the offender poses such an unacceptable risk. However, the Court is not required to find, on the balance of probabilities, that the risk of the offender committing a serious offence will manifest. [10]
The relationship between s 5B(d) and s 5D of the Act does not create tension. It requires that the Court determine to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, if there be no supervision order. But it does not require that the manifestation of that risk is more probable than not.
As has been explained on a number of occasions, the determination of whether an offender poses an unacceptable risk involves a matrix which balances the risk that the offender will commit another serious offence with the consequences of that offence; if committed. Thus, an offender may pose an unacceptable risk because the consequences of the serious offence that is at risk of being committed are great, even though the risk of them being committed is not great, nor more probable than not. Conversely, where the risk of another serious offence being committed is high, then less serious consequences are needed for the risk to be unacceptable, to a high degree of probability.
The determination of the unacceptability of the risk of committing another serious offence requires the Court to assess those aspects and, if the Court becomes satisfied to a high degree of probability that the offender, as a consequence of the assessment, poses an unacceptable risk of the kind to which the Act refers, s 5B(d) of the Act has been satisfied.
I reiterate that each of the experts classify the defendant as "well above average risk of reoffending" compared not with the general community but with the typical offender. Dr Furst, as has been stated, calculates that the defendant's clinical/dynamic risk of reoffending in a sexual manner is "significantly higher than the average male sex offender". Mr Sheehan's opinion is to the same effect
It is unnecessary to repeat or extract large portions of the two reports, but it is necessary to refer, in particular, to a number of aspects and to extract same. Mr Sheehan refers to the multitude of expert reports and various treatments of the defendant over the past 40 years. In particular, he refers to the specific internal processes that have underpinned the defendant's sexual offending and that they remain unclear.
Mr Sheehan refers to one recurring theme pertaining to "early feelings of inadequacy having played a role in the early manifestation of deviant sexual behaviour". The form of the deviant sexual behaviour has been diverse. Each, however, is a form of non-consenting sexual interaction possibly designed to overcompensate for feelings of inadequacy.
The aforesaid diversity, in Mr Sheehan's view, makes prediction of the type of offence that is likely to be conducted less reliable, compared to offenders who have a more idiosyncratic and focused offending history, but makes the risk of offending greater. He is assessed as being "within the high risk or well above average risk category".
Mr Sheehan has reviewed the schedule of conditions initially proposed (or proposed at the time of his report), which at that time consisted of 56 conditions and he considers them "adequate to reasonably manage Mr Richardson's risk of sexual recidivism". Supervision conditions, Mr Sheehan says, are less effective in preventing spontaneous offences against strangers, but can be effective in containing the risk of grooming or planned offences.
The index offences were ones that involved planning and grooming. Mr Sheehan also considers the monitoring and reporting conditions reasonable and necessary. Similarly, the accommodation conditions are, in the view of Mr Sheehan, reasonable, as are the place and travel restrictions, the employment conditions and the non-association conditions.
Further, the Internet and other electronic communication conditions have a utility as to the other "ancillary" conditions relating to search and seizure, personal details and appearance, and, possibly, medical intervention.
In terms of risk, it may be appropriate to recite an extract of Mr Sheehan's report: "Mr Richardson's convictions for sexual violence span a period of 35 years which I would regard as chronic in terms of persistence. At times he has offended in dense clusters. He has multiple victims. There is diversity of offending in terms of relationship to victims (known versus strangers), victim age (child, adult), and offence type (voyeurism, exhibitionism, frotteurism, rape) and degree of coercion (from minimal invasiveness, to grooming, to threats of violence using a weapon). There is evidence of both physical coercion and psychological coercion. There is evidence of escalation in the past (moving from low impact to high impact offending), but this would seem to have plateaued many years ago."
Essentially, Dr Furst is in or to the same effect. In answer to question two, posed to Dr Furst, Dr Furst said: "The presence of a personality disorder is also concerning in relation to the future risk of reoffending in a sexual manner, as people with such disturbed/disordered personality structures tend to lack empathy, often fail to take responsibility for their own behaviour, are generally testing of limits and difficult to work with, are hard to correct and often lack insight into their problems."
The foregoing opinion has, on the evidence, particular relevance to the situation in which the defendant finds himself. Further, in answer to question five, Dr Furst opines that the defendant "would likely benefit from the more intensive level of supervision and treatment available through an ESO, in accordance with the proposed risk management plan/risk management report". Dr Furst goes on to say that the defendant "has an enduring pattern of sexual deviance, criminal versatility in his sexual offending, has been an opportunistic offender, lacks insight and is manipulative, features that would make voluntary treatment without an ESO inadequate in relation to managing his risk of future offending in the community."
Dr Furst expresses the view that the conditions imposed by the Court in the ISO are appropriate in the circumstances.
I have taken into account the regime that would apply and does apply in the absence of an ESO. The reporting requirements and the supervision available under the Offenders Registration Act are, in my view, insufficient to ameliorate the risk of reoffending to which the experts have referred.
The regime in the Offenders Registration Act is not geared to an individual that has an unacceptable risk of serious sexual reoffending. It is geared to a continuing regime on sexual offenders generally. The Police do not have the resources to supervise in the manner that occurs in relation to an ESO and annual reporting or annual (or in the first 12 months biannual) searches are an insufficient degree of supervision to ameliorate what is otherwise and what continues to be an unacceptable risk, in the absence of an ESO.
The offending for which there is a risk is extremely serious. The index offence is evidence of the serious consequences of the offending of this kind.
In my view, the age of the defendant is not a sufficient ameliorating factor to allow the Court to come to the conclusion that the defendant does not pose an unacceptable risk. The unacceptability of the defendant's risk is also informed by the lack of insight of the defendant into his offending.
Further, if the age of the defendant is said to be an ameliorating factor because of the lower sexual drive as a person ages, the refusal of the defendant to agree to anti-libidinal medication tends to qualify any such diminution and also demonstrates the defendant's lack of insight into his offending and his history of offending.
Bearing in mind the task that the Court must perform in balancing the risk posed by the offender and the consequences of the manifestation of that risk, the Court, as presently constituted, is satisfied to a high degree of probability that the defendant poses an unacceptable risk and would continue to pose an unacceptable risk, if an ESO did not issue imposing conditions on him of an appropriate kind.
Further, having determined that, in the absence of an ESO, the defendant poses an unacceptable risk, the Court determines that it is appropriate to exercise its discretion and issue an ESO binding on the defendant. Neither the age of the defendant nor the regime under the Offenders Registration Act qualify that view. Nor do any of the other issues raised by the defendant.

Conditions

The conditions that the Court imposes must be relevant, directly or indirectly, to the amelioration of the risk that is determined to be unacceptable. Nevertheless, the conditions do not have to have a demonstrated link or direct relevance to past offending. Rather, the Court should impose those conditions that, having regard to the scope, purpose and objects of the Act, are appropriate to address the risk of future offending. [11]
It is necessary to turn to the specific issues associated with the conditions to be imposed. I deal with them by reference to the schedule to which the plaintiff referred and which was Marked for Identification (MFI) "1". Conditions 1, 2 and 3 are not opposed. It would not matter if they were. They are appropriate and general conditions which are necessary in the ESO.
The defendant submits that Electronic Monitoring and/or the Schedule of Movements are related and that the defendant does not have issues with drugs, alcohol or antisocial peers nor with scheduling and planning his week ahead.
Electronic Monitoring is not confined to issues with drugs, alcohol or antisocial peers. On the contrary, Electronic Monitoring is most often used to ensure that persons who suffer, as does the defendant, with issues associated with paraphilia can be monitored to ensure that they are not in a location that is otherwise restricted.
While it is true that the locations and people are restricted by other conditions, the Electronic Monitoring (and to a lesser extent the Schedule of Movements) ensures compliance with those restrictions. In my view, given the risk and its polymorphous nature, Electronic Monitoring, as directed by a DSO, is an appropriate condition.
So too is the Schedule of Movement. Notwithstanding that the defendant is a professional accountant and works consistently with that professional occupation, the Schedule of Movement will allow the DSO to ensure, through that and in combination with the Electronic Monitoring, the whereabouts of the defendant at any particular time and, should it be thought necessary, the presence of the DSO, or a delegate of the DSO, at a place where the defendant is supposed to be, for the purpose of ensuring compliance with the conditions imposed upon him.
Nevertheless, in relation to condition 7, such a condition is not only unnecessary but, in my opinion, inappropriate when coupled with condition 6. It is appropriate that the defendant provide a weekly plan at least three days before its commencement. Further, it is appropriate for the defendant to notify the DSO of any alteration to the plan, at least 24 hours in advance, except in the case of an emergency. Once the notification has occurred, the onus should shift to the DSO to disapprove the alteration and, unless the DSO so disapproves within 12 hours of the notification, the defendant should be entitled to operate on the basis that the alteration to the schedule has been approved.
As amended in MFI 1, I consider that the conditions in 8, 10, 11 and 12 are reasonable and appropriate. Condition 9 is not pressed and should not be imposed upon the defendant.
Condition 13 raises a difficult issue. There are two aspects to condition 13. The first is the requirement to notify the DSO of any visitor and the second is to render it impermissible for a person to stay overnight without prior approval of the DSO. The latter aspect is an appropriate condition to be imposed on the defendant.
The former aspect is an appropriate condition if it is confined to persons under 18 years of age. As a consequence, condition 13 will read: "The defendant must promptly notify a DSO of any visitor, under 18 years of age, entering and remaining at his approved address and must not permit any person, of any age, to stay overnight at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of the DSO."
I note that the exemption for persons who ordinarily reside at his approved address seems unnecessary given the permission that is otherwise required in relation to such persons. Nevertheless, no issue has been raised in relation to that aspect.
Condition 14 is imposed. Condition 15 was not imposed at the preliminary hearing or in the ISO, but, given the requirements in relation to the Schedule of Movements, it seems neither to add to, nor detract from, the requirements imposed upon the defendant. It would be odd if the defendant could not be prohibited from visiting a school or TAFE College, which are the subject of other conditions. Thus, other places, other than the obvious ones of schools and the like, may be in the same or similar category.
In relation to condition 16, the defendant opposes a number of the locations listed under the proposed condition. The Court is not an auctioneer and should not act as one. Sometimes the dispute between the parties as to the nature of the conditions seems to invite that role. As amended in MFI 1, with certain amendments to which I will now refer, condition 16 seems to be reasonable and appropriate given the nature of the risk with which we are dealing in relation to the defendant.
In paragraph 16(a), the word "being" should be altered to be "ordinarily". Further, in relation to sub condition 16(g), the restriction on attendance at pools and sporting facilities should be confined to those used, at the time that the defendant enters them, for children's sporting activities or which, at the time that the defendant enters them, are reasonably foreseeably to be used for children's sporting activities.
Condition 18 will be imposed but will not require "the approval of a DSO". Instead, it will require the defendant to notify a DSO. The conditions in Part F will be imposed in the terms contained within MFI 1, subject to the following exception. In relation to condition 27, it will not be imposed in the current form. Instead, the following condition will be imposed: "The DSO may disclose the defendant's criminal history to another person if the disclosure is reasonably necessary to deal with the relevant risk of the defendant to the community and the person. Prior to any disclosure of this kind, a DSO must advise the defendant of an intention so to do and the reasons therefor and allow the defendant to inform the person instead."
The conditions in Part G, Part H and Part I will be imposed in the terms contained within MFI 1.
The defendant opposes the imposition of condition 44 which refers to pornographic material and material that is in a restricted class. Not all such material is sexual. Condition 44 will be imposed with the following variations: confining the limitation to those categories restricted "on the basis of sexual content"; and also by deleting the term "serious offence" and inserting in lieu thereof the words "serious sexual offence".
The whole of Part K will be imposed.
The defendant has made clear that he does not agree to undertake anti-libidinal medication. Conditions 49, 50, 54 and 55 will be imposed. Condition 51 is not pressed by the plaintiff. In relation to condition 52, the words "any anti-libidinal medications or other" will be deleted and otherwise condition 52 will be imposed. Condition 53 will not be imposed as it may interfere with the doctor patient relationship. Condition 56 will be imposed but confined to a healthcare professional that is treating him for psychological or psychiatric conditions or sexual dysfunction or other issues relevant to the risk.

Conclusion

There are other issues that should be noted. First, as already expressed, the defendant has not benefited from treatment. Secondly, the paraphilia is enduring. Thirdly, the index offence involved planned, premeditated and prolonged grooming before the offence occurred.
Fourthly, the defendant has little or no insight into his wrongdoing. Fifthly, he has refused or rejected anti-libidinal medication.
The index offence occurred after over two years of grooming. The result was that a highly vulnerable young person was sexually exploited and fell pregnant. There are a number of consequences that flow from these issues.
First, a two to three-year period is not, in the history of the defendant, a long period. A period of that length without offence does not imply rehabilitation. Secondly, periods, even long periods, without charge do not, in the case of this offender, ameliorate the risk. Particularly in the absence of anti-libidinal medication, the risk is augmented unless there is appropriate close supervision and the capacity to monitor movements, locations and social contact.
The foregoing has informed the decisions relating to the Schedule of Movements, the inadequacy of the Offender Registration Scheme and the necessity for electronic monitoring. It also informs the need for a longer duration for the ESO. The Court is limited to a period of five years and it will be imposed for that period. It may be renewed under the Act, about which I make no comment.
The Court has come to the conclusion that the defendant poses an unacceptable risk, if an ESO does not issue binding him to the conditions proposed in the foregoing reasons for judgment. The conclusion reached by the Court has been reached to a high degree of probability.
It seems that the conditions to which I have referred are the conditions that are appropriate for the purposes of the ESO and an order issues giving effect to these reasons for judgment. 201216 - Schedule - State of NSW v Richardson (20-234715) (43889, docx)

Endnotes

State of NSW v Richardson (Preliminary) [2020] NSWSC 1442.
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57; State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280.
Lynn, supra, at [55], referring to Donovan, supra, at [24].
State of New South Wales v Stevenson (Final) [2019] NSWSC 778 at [68]-[76], per R A Hulme J and State of New South Wales v GJO (Final) [2020] NSWSC 1412 at [73]-[79], per Beech-Jones J.
See the Offenders Registration Act, s 3 definition of "child"; "Class 1 offence"; "Class 2 offence"; "registrable offence" and s 3A as to the meaning of "registrable person".
Child Protection (Offenders Registration) Act, s 9(1)(p) and (q).
Child Protection (Offenders Registration) Act, s 16C(ii).
Child Protection (Offenders Registration) Act, s 17.
Crimes (High Risk Offenders) Act 2006, s 5I.
Crimes (High Risk Offenders) Act 2006, s 5D.
Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28.

Amendments 16 December 2020 - Typographical error corrected 29 January 2021 - Typographical error corrected 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: 29 January 2021

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