State of New South Wales v Rigby

Background

1. The defendant is 42 years of age. He is the youngest of four children and has reported that he was raised in a supportive family environment and had a "good childhood". His behaviour was relatively stable until his early teen years, when he "began to exhibit uncontrollable behaviour" and "gravitated towards antisocial peers". [1]
2. The defendant has a criminal history, commencing with several property offences as a juvenile. Since December 2002, when the defendant was 24 years old, he has spent the great majority of his time in custody.
3. On 20 June 2013, the defendant pleaded guilty to all offences that were preferred in two indictments: 1. The first indictment related to offences committed against a victim, V1, who was the defendant's niece. The offences included two counts of aggravated act of indecency towards the victim, who was seven years of age at the time. These offences involved the defendant masturbating while sitting next to V1; and a further five counts of aggravated indecent assault against V1, four of which took place when V1 was seven or eight years of age and a final count occurring when V1 was ten; 2. The second indictment addressed offences committed against V2, who was also a niece of the defendant. Those offences comprised four counts of aggravated indecent assault, committed when V2 was nine years of age.
4. On 27 February 2014, the defendant was sentenced in the District Court to an overall term of imprisonment of 9 years, commencing 29 January 2012, with a non-parole period of 6 years. The defendant's sentence expired on 28 January 2021.
5. The defendant has a history of other sexual offences dating back to 2002, including a serious sexual offence against an adult woman at a train station, involving both penile-vaginal penetration and forced oral sex. For those offences he was sentenced to 8 years' imprisonment.
6. The defendant was also convicted of an act of indecency in 2010, involving sitting opposite a woman on a train and masturbating. For that offence, the defendant was sentenced to 12 months imprisonment.
7. In addition to the defendant's history of sexual offending, he has committed a number of other offences, including breaking and entering offences; larceny; and robbery in company.
8. It is necessary to explain that the defence to this application for an ESO relies in part upon an exercise of the discretion reposed in the Court not to issue an ESO, notwithstanding satisfaction of the statutory preconditions.
9. The defendant submits that the discretion not to issue an ESO should be exercised because of the admitted psychiatric issues from which the defendant suffers. The proposition is that these issues are better managed under other regimes, including through the ongoing care of the Community Mental Health Team. Nevertheless, it is necessary to deal with those matters that relate to the preconditions and the facts otherwise relied upon by each of the parties.

Evidence

1. The plaintiff relies upon the following documentation: the Affidavit of Jessica Leigh Murty, affirmed 14 September 2020; the Exhibit to the aforementioned Affidavit, Exhibit JM-1; a second Affidavit of Ms Murty, affirmed 30 November 2020; an Affidavit of Aftab Khan, affirmed 15 January 2021; the report of Carollyn Youssef, dated 31 January 2021; a third affidavit of Ms Murty, affirmed 5 February 2021; an Affidavit of Kelli Grabham, affirmed 5 February 2021; and the report of Jeremy O'Dea, dated 8 February 2021.
2. The defendant relies upon two Affidavits: one of Julian Mufale, sworn 10 November 2020 and an Affidavit of Jonathan Wilcox, affirmed 17 February 2021, and the Exhibit to the aforementioned Affidavit, Exhibit JW-1.
3. The Court appointed Psychologist, Ms Carollyne Youssef, and Psychiatrist, Dr Jeremy O'Dea gave evidence and were cross-examined, albeit under the practice normally applied to evidence in conclave.
4. Dr O'Dea diagnosed the defendant as suffering from Severe Chronic Treatment Resistant Schizophrenic Illness, complicated by a history of Substance Use Disorder. Dr O'Dea pointed out that these are associated with repeated offending behaviours, in particular repeated sex offending behaviours.
5. Dr O'Dea noted that the defendant's schizophrenic illness has been characterised by auditory hallucinations; persecutory and somatic delusions; disorder in the form and content of the defendant's thinking; disorganised and disinhibited behaviour; and poor insight into his illness.
6. Notwithstanding the diagnosis that the defendant's schizophrenic Illness is "treatment resistant", Dr O'Dea went on to say that the treatment has had some effect. It is appropriate to recite some paragraphs of Dr O'Dea's report of 8 February 2021 in which Dr O'Dea says: "[88] I note that Mr Rigby's schizophrenia has responded, at least to some degree, to ongoing and assertive psychiatric treatment, including with Clozapine, the most effective of the antipsychotic medications that is indicated in the treatment of severe chronic treatment resistant schizophrenia. However, at our interview, he continued to display significant negative signs and cognitive impairment associated with his diagnosis of schizophrenia, including a blunted affect, and disorder in the form and content of his thinking, including with limited insight. [89] Schizophrenia, in particular the severe chronic treatment resistant schizophrenic illness from which Mr Rigby suffers, is a major psychiatric illness, that is often manifested by significant and long term cognitive impairment, behavioural disturbance, general impairments and disabilities, and resistance to treatment. [90] I note that Mr Rigby's Substance Use Disorder, including at least alcohol, cannabis and amphetamine abuse, remains reportedly and apparently in remission. [91] Substance Use Disorder is usually an enduring condition with significant risk of relapse and usually requires strong commitment and engagement by the patient in a long term structured and supervised treatment program to endeavor [sic] to effect significant and lasting change, that may not always occur. [92] Notwithstanding Mr Rigby's general and sex offending behaviours, I did not diagnose him as suffering an additional personality disorder. [93] The index sex offences, in conjunction with Mr Rigby's reported awareness of at least some sexual attraction to female children, would point to a heterosexual paedophilic component to his sexuality, and would satisfy the psychiatric diagnostic category of Pedophilia [sic], Sexually attracted to female children, Non exclusive type. [94] That being said, it would seem reasonable to consider that Mr Rigby's sex offending behaviours, and at least his problems with supervision on parole in the past, could be understood as directly related to his disorganised thinking and behaviour, his disinhibition, and his general lifestyle, related to his history of a chronic treatment resistant Schizophrenic Illness complicated by Substance Use Disorder; rather than as exclusively related to a Paraphilic Disorder."
7. Dr O'Dea proceeds to make clear, in the foregoing report, that Mr Rigby suffers from a "mental illness", as that term has been defined by s 4 of the Mental Health Act 2007 (NSW) and is a "mentally ill person" as defined in s 14 of the Mental Health Act. Dr O'Dea expresses the opinion as to supervision in the following terms: "[96] Whilst Mr Rigby's schizophrenic illness has not responded fully to treatment and not reached full remission, I consider that ongoing assertive, comprehensive, structured, supervised and monitored community psychiatric treatment of his schizophrenic illness, heterosexual paedophilia and substance use disorder, is the least restrictive and most appropriate psychiatric risk management of these conditions, and his risk of re-offending, including of committing a further serious sex offence as defined by Section 5A of the New South Wales Crimes (High Risk Offenders) Act 2006."
8. Ms Youssef's report of 31 January 2021 is not inconsistent with the diagnosis determined by Dr O'Dea. Ms Youssef's report deals, as well, with a summary of risk and Ms Youssef expresses the view, based on the tests conducted, summarised in her report, and the other circumstances in her report, that the defendant's risk of sexual reoffending as being "Well Above Average". [2] Ms Youssef points to particularly salient dynamic risk factors, including: limited insight into mental health and risk factors; poor general self-regulation (e.g. poor coping skills, negative emotionality, poor problem-solving, difficulty in planning); intimacy deficits, demonstrated by a lack of relationships both intimate and non-intimate; deficits in sexual self-regulation; and a poor self-reflective capacity regarding internal processes.
9. The Report refers to protective factors relating to future risk, which Ms Youssef expresses in the Report as qualifying the risk of offending and these were: an active attempt and improvement in his internal capacity and coping; his ongoing attempts to manage his urges and try to exercise self-control, particularly through adherence to medication; financial and housing stability; a prosocial identity; and his professional support in the psychological/psychiatric area by professional service providers.
10. Nevertheless, Ms Youssef, as did Dr O'Dea, comments on the limited insight possessed by the defendant into his offending behaviour, supported by his expression of his beliefs as to his mental health and forced medication being the sole causes of his offending behaviour.
11. Ms Youssef also expressed the view that the defendant meets the diagnostic criteria for schizophrenia, as described in DSM-5 [3] and described the illness as severe, enduring and chronic and described the range of problems that may be suffered as a consequence of that illness. Ms Youssef also referred to certain studies that suggest a complex relationship between schizophrenia and sexual offending behaviour and expressed the view that if the defendant's mental health deteriorated, his psychiatric condition "… may exacerbate any sexual coping behaviour, through its disinhibiting effects on his sexual thoughts and urges, or the influence of delusions…." [4]
12. In discussing the paraphilic disorders, Ms Youssef repeats part of the definition of paraphilia as contained in DSM-5 and as meaning "any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human adult partners". [5] Ms Youssef considers that the defendant meets the diagnostic criteria for Exhibitionistic Disorder as well as for Paedophilic Disorder.
13. Ms Youssef expresses the view that the defendant poses a risk of committing a further serious sexual offence which risk is "Well Above Average", but those risk factors may be ameliorated if the defendant were to increase his protective factors. Nevertheless, the risk factors were identified as: limited insight into mental health and risk factors; poor general self-regulation; intimacy deficits; poor sexual self-regulation; and a poor self-reflective capacity regarding internal processes. Another exacerbating factor is his mental health, particularly if left unmanaged.
14. Returning to the report of Dr O'Dea, in so far as it deals with risk assessment, Dr O'Dea makes the general point, well-known to the Court: "… it is generally agreed that the best predictors of future sex offending behaviours are past sex offending behaviours, particularly in the context of untreated or under treated major psychiatric illness; such as, in Mr Rigby's case, schizophrenia, complicated by ongoing substance abuse, and specific significant sexual deviance." [6]
15. In the following paragraph, Dr O'Dea expresses the opinion: "It would seem reasonable to assume that Mr Rigby will require to remain in long term and successful treatment of his schizophrenic illness and remain totally abstinent from alcohol and other illicit drug use, in the community in the long term, in order to manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High-Risk Offenders) Act 2006." [7]
16. It is a fair comment to note that the differences that seem to exist, if any, between the opinions expressed by Dr O'Dea, on the one hand, and Ms Youssef on the other hand relate, seemingly, to Dr O'Dea's concentration on therapeutic effect and Ms Youssef's concentration on risk of reoffending.
17. There are other reports, some of which were relied upon for the purpose of the issuing of the ISO. There is a Risk Assessment Report dated 15 May 2020 by Ms Rochelle Pateman, Psychologist. Both static and dynamic risk assessments were performed, the conclusion from which was that the risk of sexual reoffending falls in the "Well Above Average" risk level relative to other men who have offended sexually and the defendant is a "medium" risk of general offending.
18. The most likely risk scenario in relation to the defendant's risk of reoffending by further sexual attacks would be in relation to children and most likely as a result of accessing child abuse material, either online or otherwise or be the result of the grooming of a female child victim with whom he has regular access. [8]
19. Ms Pateman expresses the view that if an ESO were in place in relation to the defendant then there may be a mitigation of future risk as a result of the ongoing community supervision. Nevertheless, Ms Pateman made clear that the community supervision should be in conjunction with ongoing support from Community Mental Health.

Statutory preconditions

1. The defendant concedes that he is a person in respect of whom an ESO could be made and, in that respect, that s 5B of the Act is satisfied, save and except as to the unacceptability of risk.
2. Notwithstanding the agreement of the defendant, it is necessary for the Court to satisfy itself as to the jurisdiction to issue the orders. The Court is comforted, in that regard, by the fact that the Court, differently constituted, has already issued an ISO, after consideration of the statutory preconditions.
3. In order for the Court to issue an ESO, it must be satisfied that the defendant is an offender who is serving or has served a sentence of imprisonment for a serious offence. That service of a sentence must be either in custody or under supervision in the community. [9]
4. Further, the defendant must be a "supervised offender" as defined in s 5I of the Act and the application must be made in accordance with s 5I of the Act. Lastly, being the only issue in contention, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if an ESO is not made. [10]
5. As earlier stated, a "serious offence" is defined to include a "serious sex offence". A serious sex offence is defined in s 5 of the Act and includes offences under Div 10 of Pt 3 of the Crimes Act 1900 (NSW). The index offences on which the State of New South Wales relies are serious sex offences within the meaning of the Act.
6. The application was in the form specified by the Act and included a Risk Assessment Report and documentation addressing the matters referred to in s 6(3) and, in turn, s 9(3) of the Act. Further the time constraints required by the provisions of s 6(1) of the Act have been satisfied.
7. For the foregoing reasons, the Court is satisfied, subject to the issue associated with the requirements of s 5B(d) of the Act, of the statutory preconditions to the making of an ESO. In other words, the defendant was an offender serving a sentence of imprisonment for a serious offence either in custody or under supervision; the defendant was a supervised offender within the meaning of s 5I of the Act; and the application for the ESO has been made in accordance with s 5I of the Act.

Principles on Unacceptability of Risk

1. As earlier indicated, for the Court to make an order for an ESO in relation to the defendant, the Court must be satisfied "to a high degree of probability" that the defendant poses as an unacceptable risk of committing another serious offence if the ESO were not issued. [11] The State of New South Wales submits that the assessment of the unacceptability of the risk must be based upon an absence of protective measures. In so doing, the State of New South Wales relies upon comments in Lynn. [12]
2. The reference to the comments of Basten JA in Lynn is, in the view that I take, misunderstood. In Lynn, supra, the Court was concerned with determining whether there was an unacceptable risk and, particularly, whether the adverse consequences upon the defendant were entitled to be taken into account in the assessment of the unacceptability of the risk. In analysing that aspect, Basten JA makes clear, as is, with respect, obvious from the terms of the statute, that the assessment of the unacceptability of the risk is an assessment made in the absence of an ISO or ESO.
3. His Honour refers to that assessment as having to be based "on an absence of protective measures". [13] But the assessment of the unacceptability of the risk is an assessment of the risk posed by the defendant, if an ESO (or, at an earlier stage, an ISO) were not to issue. The Court is entitled, if not required, to take into account that which would be applicable in the absence of an ISO or ESO.
4. To use an example that the Court as presently constituted utilised on an earlier occasion: if there were legislation which validly required all offenders, who had committed a crime of the kind committed by the defendant in these proceedings, to be handcuffed to a police officer at all times, once they had been released into the community, then that circumstance would inform the necessity for an ESO or ISO otherwise to apply. The assessment is necessarily to be made on the basis that no ISO, nor ESO, governs the conduct or activity of the defendant. However, other regimes applying independently of the Act are factors to be considered in determining whether an offender or defendant represents an unacceptable risk, as well as when it comes to the point of an exercise of discretion as to whether to make or not to make the order.
5. In order to come to the conclusion that there is a high degree of probability that the defendant poses an unacceptable risk, the Court need not be satisfied that the risk that the defendant would commit a serious offence is "more likely than not". [14] There is, in my view, no tension between the two requirements: satisfaction to a high degree of probability; and risk of re-offending being not necessarily more probable than not.
6. In determining whether there is to a high degree of probability an unacceptable risk of committing another serious offence, the Court is required to apply a matrix which considers the likelihood of the commission of a serious offence and the degree of harm that may be inflicted as a result of the commission of such an offence, if it were to be committed. The degree of harm that would be committed, if a further serious offence were to be committed, may be such that the risk becomes unacceptable and the Court is satisfied to a high degree of probability that the risk is unacceptable.
7. The foregoing arises from the task required of the Court in assessing whether an unacceptable risk is posed. As has been stated on a number of occasions, there is a matrix of considerations that are required to be taken into account in such a determination.
8. First, there is the probability that the risk will manifest. In other words, is it likely that a serious offence will be committed by the defendant? In using the term "likely" the Court is not concerned with the civil standard of proof, namely that the risk that a serious offence will be committed is more probable than not. It is concerned only with the existence of a sufficiently substantial probability to be referred to, in its ordinary usage, as "likely".
9. The "likelihood" should be at the upper end of the scale of likelihood, but not necessarily exceeding 50%. It must be probable in the sense that it is more than merely possible that the defendant will commit further serious offences. [15]
10. The second aspect of the matrix or calculus to be applied is the seriousness of the harm that will ensue if the risk that is likely were to manifest. There is a need to evaluate the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk.
11. Conversely, where the manifestation of the risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of the manifestation of the risk is low, but not insignificant.
12. A risk that is insignificant is not an unacceptable risk because the risk is not likely. A risk that is not likely is not a risk to which the Court can ever apply the second factor, being the seriousness of the harm that would be occasioned by any manifestation of the risk, to the exercise of the discretion. The only risks of reoffending that are capable of consideration for the purpose of determining whether the risks are unacceptable are those risks of reoffending that are not insignificant and which, on the material before the Court, would be likely or not "merely possible".
13. As the Court said in another context, [16] if, on the one hand, the risk was a detonation of a nuclear missile involving the death of millions, only a very slight probability or likelihood may be required to render the risk unacceptable. On the other hand, if the manifestation of the risk was a minor contusion, even a very high probability of its manifestation may not render the risk unacceptable.
14. Once the Court has evaluated the risk of re-offending and the consequence of any re-offending, the Court is required to be satisfied "to a high degree of probability" that the offender poses an unacceptable risk. The high degree of probability does not relate to the existence of the risk or the likelihood of its manifestation, but whether the risk posed by the offender is unacceptable. [17] The task is evaluative. [18]
15. A risk would be "acceptable", if it were "tolerable or allowable; not a cause for concern". [19]
16. The effect of the ESO on the defendant is not a matter that is relevant to the determination of whether there is an unacceptable risk of the commission of a relevant offence. [20] The issue of the effect on the defendant of the operation of the ESO is a matter that may be relevant to the determination, by the Court, in its discretion, of whether it is appropriate to make an order for an ESO. It is not relevant to the determination of whether there is an unacceptable risk.
17. The discretion to issue an ESO, or not to issue it, arises from the terms of s 9(1) of the Act. In the exercise of that discretion, the safety of the community must be the paramount consideration of the Court. [21]
18. The assessment of whether or not the risk is unacceptable, as the standard required by the Act, is made on the defendant to assess the risk, if an ESO were not to issue. With those principles in mind, it is necessary for the Court to determine whether an ESO is appropriate and, if so, the conditions that ought to apply under it.

Consideration

1. In some respects, the application by the State of NSW is extremely easy, and uncontroversial. In other respects, it is a more difficult exercise of the Court's discretion in this area.
2. The uncontroversial aspect relates to the obvious satisfaction of the requirement of the Act for the making of the orders. The defendant has been assessed by a number of persons each of whom has expressed the view, based on static, dynamic and expert interview methods. Those assessments describe the defendant's risk of re-offending by the commission of another serious sex offence as "Well Above Average" compared to other like offenders.
3. The term "Well Above Average" used to be described as "High". The nature of the offending that was likely to occur would occasion significant injury and damage. The "likelihood" of offending has been measured against other like offenders; not the general public.
4. The nature of the index offences and the re-offending that is likely are extremely serious. The index offences have been outlined. They involve serious sexual misconduct against girls of a very young age.
5. On the face of the past offences, they were not opportunistic, but involved a degree of planning and forethought. I accept that they were the product of the defendant's mental illness and his affected ability to make rational judgments and exercise self-control. [22]
6. As already outlined by reference to the reports of Dr O'Dea and Ms Youssef, the defendant suffers from "a severe chronic treatment resistant schizophrenic illness". Further, the defendant also has a certain lack of insight into his mental issues and his offending. The impression the Court has is that the defendant's insight has improved, but the lack of insight remains an issue.
7. Clearly, in the absence of some treatment or regulation, the defendant poses an unacceptable risk of committing another serious sex offence. Further, that risk has been shown to a high degree of probability.
8. All of the foregoing is relatively uncontroversial. The major issue is the effect of the defendant's mental illness and the treatment of that condition on the making of an ESO. The defendant submits that the better option is to allow the defendant to be treated, or continue to be treated, under the Mental Health Act 2007 (NSW) and the Child Protection (Offenders Registration) Act 2000 (NSW) (hereinafter "the Offenders Registration Act").
9. The relationship between the Act and the Offenders Registration Act was recently the subject of analysis by the Court, [23] as presently constituted. That analysis was predicated on a submission, similar to the submission in these proceedings, to the effect that the Offenders Registration Act was a sufficient regime, the operation of which affected the unacceptability of risks and/or the discretion reposed in the Court to issue an ESO.
10. In Richardson, supra, the Court said: "[75] 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. [76] 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. [77] 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. [78] 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. … [80] 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. [81] 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. [82] 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. [83] 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. [84] 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. [85] 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. [86] 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. [87] 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. [88] 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. … [101] 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. [102] 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. The defendant is entered on the Child Protection Register." (Footnotes omitted.)
11. I adhere to those comments. In Richardson, there were also issues relating to the effect on "unacceptable risk" of the provisions of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (hereinafter "the Prohibition Orders Act").
12. The conclusion in Richardson is not necessarily significant in these proceedings. Each case is different.
13. Further, there is no suggestion in these proceedings that the Prohibition Orders Act operated or was relevant to the defendant. Nevertheless, the availability of Prohibition Orders is raised, even though there is no evidence of any intention to obtain such orders.
14. On the other hand, the Mental Health Act must be considered in these proceedings, but was irrelevant in Richardson.
15. The Court must consider the unacceptability of the risk and the discretion to issue an ESO in the circumstance of the continued effect of the Mental Health Act and the Offenders Registration Act. It is necessary to deal with the operation of the Mental Health Act.
16. There was initial opposition by the defendant to be bound by a Community Treatment Order. Eventually the defendant was bound by an order under s 67 of the Mental Health Act for a Forensic Community Treatment Order.
17. The order was made on 28 April 2016 and continued on 13 October 2016. Further such orders issued on 12 January 2017, 18 April 2017 and 20 July 2017. At those times, by definition, the defendant was either in custody or detention in prison or a Mental Health Facility.
18. On or after 17 February 2018, the defendant has been in the community and has not been subject to a Forensic Community Treatment Order; nor a Community Treatment Order. Nevertheless, a psychiatrist, Mr Patrick Moran, with the Community Mental Health has stated that a Community Treatment Order will be sought, if an ESO does not issue.
19. Further, the defendant has received and is receiving assistance paid by the National Disability Insurance Scheme (NDIS). On the forgoing basis, the defendant submits that the ESO should not issue and particularises the following factors: 1. The defendant has been on parole since 26 September 2019 and an ISO since 28 January 2021 and has not reoffended. 2. The defendant is stable on his medication regime for treatment of his serious mental illness and is receiving ongoing care from the Community Mental Health Team. 3. The defendant has been compliant with his mental health medication. 4. The defendant's substance use is in remission. 5. Since his release from custody the defendant has been compliant with his treatment regime for his serious mental illness and it has not been necessary to admit the defendant to hospital for treatment as an involuntary patient. 6. If an ESO were not made there is evidence from the defendant's treating team that they intend to apply for a CTO to continue to manage his mental health treatment. Any CTO that was made by the MHRT could be made for intervals of up to 12 months each time. 7. A CTO is managed by the CMHT attached to a declared Mental Health Facility in the community. (See s 57(2) MHA). 8. A condition of the CTO could include testing for illicit substance use. 9. If the defendant breached his CTO, breach action could be initiated by the CMHT resulting in the defendant's recall to hospital. If necessary, Police and/or Ambulance are empowered to detain the defendant to take him to a Mental Health Facility. 10. A breach of a CTO allows for the patient to be recalled and be detained and assessed at a hospital (s 58 MHA). 11. Where the defendant is subject to a CTO in the community and his mental health deteriorates or breach action is taken, then the defendant can be detained in a declared Mental Health Facility and assessed as to whether further detention in that Facility is the least restrictive care. (See s 61(4) MHA). 12. The defendant also now has the support of an NDIS package.
20. The defendant also relies on the significance of the continuing condition to which s 14(2) of the Mental Health Act refers. In that regard the defendant relies on the availability of rendering the defendant an involuntary patient or binding him to a Community Treatment Order. Essentially, the defendant submits that the "appropriate treatment of the defendant's schizophrenia is critical to his future risk of reoffending" and that the regime under the Mental Health Act "could adequately protect the community". [24]
21. I accept for present purposes that the regime under the Mental Health Act is more directed at the mental health of the defendant than is the regime under the Act. I also accept that successful treatment of the defendant and his rehabilitation would obviate or at least ameliorate the risk of reoffending.
22. Dr O'Dea's evidence seems to support the continuation of his professional treatment, which I accept. However, I do not see the issuing of an ESO as interfering with any treatment regime and there is no evidence that the ESO would prevent or hinder any recommended treatment programme. On the contrary, the proposed Conditions require the continuation of treatment or therapy under any Mental Health Care Plan or Community Treatment Order.
23. The other difficulty with the submission is that it depends on the proposition that the treatment of the defendant will be successful, either wholly or sufficiently to reduce the risk to a significant degree. Yet the evidence is that the defendant's condition or one of his conditions, namely, the Schizophrenic Illness, is treatment resistant. The Court's impression, earlier stated, is that the treatment has been partly successful and that is also described by Dr O'Dea. [25]
24. Nevertheless, the illness is still "treatment resistant" and the Court cannot, with any confidence, predict a sufficient response to treatment that would significantly ameliorate the unacceptability of the risk.
25. Further, the Court must assess the issue in present circumstances, as they currently apply. At present there is no Community Treatment Order in place. However, even if there were an order in place, the comments in the immediately preceding paragraph apply.
26. The purposes of sentencing are very different from the purposes of an Order under the Act. Yet the underlying principles applied to mental or psychiatric conditions have relevance. While the Court is not here concerned with punishment or deterrence, protection of the community and ensuring "the safety and protection of the community" are similar purposes or objects.
27. In Engert, [26] the Court of Criminal Appeal discussed the relevance of mental illness to the process of sentencing and said: "In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system." [27]
28. As can be seen, relevantly for the current proceedings, where, as here, the mental or psychiatric condition is causative of serious offending, there may be increased concerns in relation to the need for protection of the public. In exercising its jurisdiction under the Act, the Court must bear in mind the primary object of the Act, which is to ensure the safety and protection of the community. [28]
29. Thus, where there is a conflict between the therapeutic needs of the defendant and the safety of the community, the latter must prevail. However, as stated, the ESO sought, including the Conditions ultimately requested and as to be issued by the Court, do not, in my view, involve a conflict between the defendant's therapeutic needs and the safety of the community.
30. Overall, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence. I make that assessment, notwithstanding my earlier comments, having regard to the high probability that a Community Treatment Order would be in place and binding on the defendant. I do so without regard to the effect of the ESO and weighing the likelihood of the commission of such an offence with the seriousness of the offence and the harm that would be inflicted if such an offence were to be committed.
31. The expert evidence supports the application for an ESO of an extended duration. The experts express the view that five years' duration is appropriate or that a minimum of four years' duration is necessary. The ESO, which I will issue, will be for five (5) years.
32. Lastly, if it is not already expressed, I consider that the Court's discretion under s 9 of the Act, to make an ESO, should be exercised. I have had particular regard to the therapeutic needs of the defendant and the optimal protection of the community being effected by his rehabilitation. I intend to grant leave to vary the conditions that I shall impose to the extent that any such condition prevents or hinders the therapeutic treatment recommended by the defendant's treating psychiatrist or psychologist.

Conditions

1. During the course of the period leading up to the hearing of the matter, there has been substantial agreement as to the Conditions to be imposed, should an ESO issue. I accept the parties' agreement as appropriate and will, as a consequence, deal only with those issues that need comment or are not agreed. The Condition numbers to which reference is hereafter made are those in the Amended Summons filed in Court on 22 February 2021 and MFI 1.
2. The definition of "healthcare practitioners" and "associate" shall be inserted as varied by the State. Further, the Court imposes the requirements for a weekly plan and the ancillary conditions relating thereto.
3. As a consequence, the Court shall impose Conditions 5, 6 and 7 in the terms proposed by the State. The Court notes that Condition 6 requires the defendant to seek approval; it does not require the approval to have been granted and, it would seem, that in the absence of disapproval the "approved schedule" to which Condition 7 relates is the approval submitted under Condition 5, as varied by notification under Condition 6, unless the variation notified has been disapproved.
4. The wording of Condition 15 is a little unusual. On one interpretation of the Condition proposed, after amendment, the defendant is not prohibited from frequenting or visiting a particular place specified by the Departmental Supervising Officer (hereinafter "DSO"), the defendant is only prohibited from frequenting or visiting such a place or district if, as well as the prohibition specified by the DSO, the DSO believes on reasonable grounds that it is necessary to give such a direction for the purposes proposed by the State in its amended form. However, it seems that the reasonable reading of the proposal is that the prohibition will not be specified unless the DSO believes those matters that are outlined in the Condition.
5. In relation to Condition 27, I have omitted from the agreed condition the word "children" as it is redundant. It is females under the age of 18 with whom the defendant is prohibited from associating, other than in the exceptions outlined in the condition itself.
6. In relation to Condition 28, the difference between the alternative wording proposed by the defendant and the amended version proposed by the State is that the necessity to give such directions, under the version of the State, is not only for the purpose of reducing the risk of the commission of further serious offences, but also the facilitation of the treatment or monitoring of the defendant under the Order. I accept that alternative wording proposed by the State.
7. In relation to Condition 30, the only issue in contention is that contained in paragraph (a). The difference between the parties is whether there should be a prohibition on associating with persons whom the defendant knows are consuming or under the influence of alcohol, without prior approval. I accept the proposition put forward by the State as a disciplining process necessary for the reduction in the risk of reoffending, which, on the expert reports, is exacerbated by the consumption of alcohol.
8. In relation to Condition 32, the difference between the defendant's position and the amended position of the State relates to, again, the DSO's disclosure being reasonably necessary, and also, to facilitate treatment or the monitoring under the Order. I accept the appropriateness of the State's amended proposal.
9. The difference between the parties in relation to Condition 33 relates solely to whether the permission from the DSO must be in writing. Given that writing now includes a text message, the obtaining of permission in writing does not seem particularly onerous and the State's proposal will be adopted.
10. Condition 36 is agreed and requires significant conditions on the use of any electronic identity, login name or the like in terms of electronic media. Proposed Condition 37 restricts the defendant from using an electronic device with access to the Internet prior to the disclosing of that device to the DSO. Given the conditions imposed in Condition 36, I take the view that Condition 37 is unnecessary and will not be imposed.
11. Condition 46 is agreed and will be ordered, with the amendment sought to Condition (f).
12. It is necessary to deal with the difference between the parties to Condition 50. The difference between the parties does not seem to be particularly significant. The State seeks to have the defendant notify any change in the defendant's appearance before effecting that change; the defendant seeks to have any change in the defendant's appearance notified as soon as practicable after making the change.
13. The difference is marginal. On the one hand, I can readily accept, to use an obvious example, that the defendant may want to grow a beard or shave one off, without first seeking approval. The growth of a beard takes a little while, in which case the difference probably matters not one jot. The removal on the other hand can be almost instantaneous.
14. On the other hand, a more significant change in appearance could be effected without approval in circumstances where there must, necessarily, be a hiatus between the making of the change and the notification to the DSO. In all the circumstances and given the other restrictions as to proscribed locations and the like, it seems to me appropriate to require notification of the DSO. This does not require approval; only notification.
15. As a consequence, even if, spontaneously, the defendant desired to change the colour of his hair or remove a beard or moustache, all that would be required would be a text message to the DSO. I do not consider that to be an inappropriate restriction but the absence of it may lead to difficulties in monitoring other restrictions and the risk associated with reoffending.
16. Lastly, it is necessary to deal with the terms of Condition 60. The difference between the parties relates to the circumstances in which the DSO is capable of disclosing the defendant's criminal history to healthcare professionals who are treating him. I do not consider it unreasonable for the DSO to be confined in that regard to disclosure that is necessary to reduce the risk of the commission of a serious sex offence or because it is necessary for the defendant's treatment. This, essentially, is the proposal of the defendant and it is the defendant's proposal that will be implemented.
17. As earlier stated, the reference to condition numbers is a reference to the condition number contained in MFI 1 which was a Schedule of the proposals of the plaintiff and the defendant's reaction to those proposals, together with any response. For reasons associated with the deletion of some conditions, the ultimate Order issued by the Court will be differently numbered than the conditions to which reference has been made. Nevertheless, the foregoing condition number references can be obtained from the amended summons and from MFI 1 and, it would seem, would be readily identifiable from the discussion associated with the conditions above.

Conclusion

1. After the initial drafting of these reasons for judgment, but before the necessary proofing of them, the three-month limitation on the period of the ISO was to have expired. As a consequence, the Court issued the orders that reflect the foregoing and reserved the ultimate release of the reasons.
2. For reasons of transparency, the Court has not altered in any substantive way the reasons for judgment as originally proposed, but makes clear that for the foregoing reasons, the Court issued the orders reflecting the foregoing on 27 April 2021.
3. The Court made and entered the following orders on 27 April 2021: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant shall be subject to an Extended Supervision Order for a period of five years from the date of the order; 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed, for the period of the Extended Supervision Order, to comply with the Conditions as set out in in the Schedule of Conditions of Supervision (attached); 3. Access to the 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 for access; 4. Leave is reserved to the defendant to apply to the Court for variation of any condition that interferes with the therapeutic treatment undertaken by the defendant on the recommendation of his treating psychiatrist.

Endnotes

1. Court Book, Exhibit B, p 51 (Risk Assessment Report at 7).
2. Court Book, Exhibit A, Tab 15 (Report of Carollyn Youssef, 31 January 2021 at [70]).
3. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5), (5th ed, 2013, American Psychiatric Association) ("DSM-5").
4. Court Book, Exhibit A (Report of Ms Youssef, 31 January 2021, at [77.2.2]).
5. DSM-5, p 685.
6. Court Book, Exhibit A, Tab 5 (Report of Dr O'Dea at [97]).
7. Ibid at [98].
8. Court Book, Exhibit B, Tab 5 (Risk Assessment Report, JM-1 at [71]).
9. Crimes (High Risk Offenders) Act 2006 (NSW), s 5B and definition of "offender" and "serious offence" in ss 4-5.
10. The Act, s 5B(d).
11. Ibid s 5B(d).
12. Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126].
13. Ibid.
14. The Act, s 5B(d).
15. Tillman v Attorney General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327; TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199; Cornwall v Attorney General for New South Wales [2007] NSWCA 374.
16. State of NSW v Ceissman [2018] NSWSC 508 at [31].
17. Cornwall v Attorney General for New South Wales, supra at [21].
18. State of New South Wales v Thurston [2018] NSWSC 421; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57.
19. Lynn v State of New South Wales, supra, at [50]-[51].
20. State of New South Wales v Donovan [2015] 90 NSWLR 389; [2015] NSWCA 280; Lynn v State of New South Wales, supra, at [50]-[51].
21. The Act, s 9(2).
22. Rigby v R [2006] NSWCCA 205 at [71].
23. State of NSW v Richardson (Final) [2020] NSWSC 1809 ("Richardson").
24. Court Book, Exhibit A, Tab 13 (Defendant's Written Submissions at [65]).
25. Court Book, Exhibit A, tab 16 (Report of Dr O'Dea, 8 February 2021, at [88], recited at [18] above).
26. R v Engert (1995) 84 A Crim R 67.
27. Ibid at 71 (Gleeson CJ, with whom Allen and Sully JJ agreed).
28. Crimes (High Risk Offenders) Act 2007 (NSW), s 4 and s 9(2). 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: 05 May 2021