State of New South Wales v Rogers

Supreme Court of NSW|2018-12-10|Before: Walton J, Davies J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/212255

Judgment

HIS HONOUR: By an amended summons filed in court on 10 December 2018, the State of New South Wales ("the State") sought, by way of final relief, an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that Darren Clarence Rogers ("the defendant") be the subject of an extended supervision order for a period of 5 years from the date of the order upon conditions set out in Amended Schedule A to the amended summons.
By the same summons the State sought interim relief. Interim orders were made by Davies J on 28 August 2018: State of New South Wales v Rogers [2018] NSWSC 1314 ("Rogers No 1"). Those interim orders included an interim supervision order for a period of 28 days, commencing on 11 October 2018. The interim supervision order has been renewed on two subsequent occasions, by consent, for a further 28 days on 8 November and 6 December 2018, respectively. (It may be noted that the defendant had been on parole until 11 October 2018).
By the final hearing of the matter, the defendant's position, as stated by his counsel, Ms Sharyn Hall, was that he formally opposed an extended supervision order being made but did not wish to be heard with respect to the preconditions required under s 5B of the Act or the exercise of the court's discretion as to the making of an extended supervision order save as to two aspects of the proposed conditions, namely, the length of the order (the defendant contended for a period of 3 years and a sunset clause, with respect to conditions 4-8, concerning the imposition of electronic monitoring and the schedule of movements). That concession does not relieve the Court of any consideration of the requirements for s 5B or the discretionary considerations under s 9 although the consideration of those matters will, in the circumstances, be more compact.

FACTUAL BACKGROUND

For the purposes of the interim hearing Davies J had before him the following evidence from the following persons by way of affidavit: 1. Ms Tracey Howe, solicitor for the State, affirmed 10 July (together with one folder exhibited as exhibit TH-1) and 2 and 3 August 2018, respectively; and 2. Dr Richard Parker, Senior Psychologist at the Serious Offenders Assessment Unit, sworn 2 August 2018. (Dr Parker issues a report dated 8 February 2018).
His Honour's assessment of the factual background was not disputed and may be adopted without reservation. In Rogers No 1, his Honour stated (at [12]-[22]): [12] The defendant was born on 23 October 1965 and is now aged 52 years. His criminal record commenced in 1980 when he was 14 years of age. Most of the offending involved property, motor vehicle and personal violence offences although, as far as I can ascertain from his criminal history, the personal violence offences were not offences involving serious violence. [13] The defendant has been convicted on two occasions of committing serious sex offences. On 19 July 1999 he broke into a home unit in on near Clayton, a suburb of Melbourne. The victim was alone in the unit. She heard a loud noise at about 3:20am which was the defendant breaking into her unit through the laundry door. The defendant grabbed the phone which she had picked up and told her to lie on her stomach, saying that he just wanted to rob the place. Having searched for money he returned to the bedroom, pulled the bedclothes and her pyjamas off her. He then digitally penetrated her vagina and subsequently penetrated her vagina with his penis until he ejaculated. [14] He pleaded guilty to those offence as well as offences of burglary, theft, aggravated burglary and robbery, and the possession of heroin. For the digital rape he was sentenced to five and a half years' imprisonment and for the penile rape he was sentenced to six years and nine months' imprisonment. The total effective sentence for all of the offending was nine years and seven months' imprisonment with a minimum term of seven years and seven months. The index offence and subsequent offending [15] The index offence was also committed in conjunction with a break, enter and steal offence on 12 December 1995. As mentioned it was a count of aggravated sexual intercourse without consent. A further offence of aggravated sexual assault was taken into account on a Form 1. The defendant's involvement in these offences was not known until a cold case notification from DNA was found in April 2009. At the expiration of the defendant's non-parole period in Victoria he was arrested and extradited to NSW. He pleaded guilty to the NSW offences and was sentenced by Judge Frearson SC in the District Court on 1 October 2010. [16] As in the offending in Victoria, the defendant broke into a home unit occupied by a woman. The woman emerged from her shower and was grabbed from behind by the defendant who held a knife to her throat and told her he would use it if he had to. The defendant forced the victim onto a bed. While still holding the knife to her throat he first digitally penetrated her vagina and then subsequently had penile vaginal intercourse for a period of ten minutes culminating in his ejaculating inside her. He held the knife against her for the whole period of the sexual assaults. The knife in fact caused a 1.5cm scratch to her neck. [17] The defendant was sentenced for the aggravated sexual intercourse without consent to a non-parole period of four and a half years with an additional term of four years. It is that sentence which will expire on 11 October 2018. [18] The defendant was released to parole on 11 October 2017. [19] On 20 December 2017 he was arrested and charged with custody of a knife in a public place. He was granted bail and apparently complied with his reporting arrangements and complied with conditions relating to the protection of the victim. He was found not guilty of that offence. [20] On 28 March 2018 the defendant was charged with stalk or intimidate with intent to cause fear of physical or mental harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On 29 March 2018 the State Parole Authority revoked the defendant's parole. [21] On 25 July 2018 that charge was dismissed at Newtown Local Court. However, an apprehended domestic violence order was made against the defendant by consent and without admissions. [22] On 28 July 2018 the defendant was again released to parole.

FURTHER FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN SECTION 9(3)

The further evidence received at the final hearing was as follows: 1. Affidavit of Ms Angela Rybak, sworn 9 November 2018; 2. Affidavit of Ms Janelle Farroway, affirmed 12 November 2018; and 3. Affidavit of Ms Howe, affirmed 12 November 2018.

Risk Assessment (s 9(3)(c))

The observations in Rogers No 1, regarding Dr Parker's risk assessment, are not in dispute and, in my view, with respect, amply summarise the effect of Dr Parker's opinions as expressed in his report of 8 February 2018. That summary is in the following terms (at [24]-[36]): [24] Dr Parker found that the defendant's antisocial behaviour appeared to have developed in difficult family circumstances but had been sustained throughout a variety of environments. The family background was that his father had an affair with the father's wife's sister who lived nearby, as a result of which the defendant was born to the wife's sister. The defendant's mother died of some sort of drug overdose when he was aged about six years. He was brought up by an aunt and uncle who the defendant described as "religious freaks". He was physically abused by them during his childhood. [25] Dr Parker said that although the defendant's types of offending had varied, the common theme was the defendant doing what he wanted without concern for other members of society. Dr Parker said the defendant's sexual offences would appear to be an extension of his general antisocial behaviour rather than any particular predilection for sexual offending. His abuse of prescription medication appeared to have played a role, probably as a disinhibiter. His antisocial cognition appeared to be the driving force behind all of his offending. His early offending led to multiple contacts with the justice system and, consequently, bred a specific form of hatred for authority figures. [26] Dr Parker said that despite completing an intensive treatment program, the defendant did not appear to have realised that society's treatment of him was a reaction to his disregard for its laws. Dr Parker noted that the defendant's behaviour in custody was poor and that poor behaviour continued since his release on parole. Dr Parker said that the defendant struggled to acknowledge his sexual offending as being the result of any particular choice. Rather, the defendant attributed the offending to his substance abuse. [27] Dr Parker noted that since being incarcerated in NSW the defendant had not been detected using drugs. He was subject to urinalysis on eight occasions. He told Dr Parker that apart from a couple of puffs of marijuana during his current incarceration he denied using any drugs since early in his incarceration in Victoria. [28] The defendant claimed to have been diagnosed with paranoid schizophrenia at some time when in custody prior to 1990. However, more recent assessments did not support such a diagnosis. Both Dr Parker and a Victorian psychologist who assessed him scored him in the upper end of the high range of psychopathy. Dr Parker noted, however, that there is debate in the literature about how useful a diagnosis of psychopathy is in assessments of risk and treatment recommendations. [29] While in custody in Victoria Dr Parker noted that the defendant commenced a sex offender program but was removed after only three sessions for verbally assaulting a staff member. When he was transferred to NSW custody he completed the CUBIT program, but only after being suspended on multiple occasions. [30] Dr Parker reported that the defendant's response to community supervision in the periods since he was first released in October 2017 has been poor. [31] Dr Parker assessed his risk of re-offending using the Level of Service Inventory - Revised, the Static 99-R, the Stable 2007 and the Violence Risk Appraisal Guide. On all of these instruments the defendant scored in the high or very high categories. [32] Dr Parker noted that five implicit theories among rapists have been identified. These are: (1) Entitlement; (2) Dangerous world; (3) Women as sex objects; (4) Male sex drive is uncontrollable; and (5) Women are unknowable/dangerous. [33] Of these theories, Dr Parker thought that the first was the most likely explanation for the defendant's behaviour, but that theory (2) was of significance, and that (3) and (5) may play a part in the defendant's offending. [34] Dr Parker said that the one positive note appeared to be the defendant's abstention from substance abuse. He said that if the defendant was able to continue to abstain from substance abuse, his chance of avoiding a return to the type of antisocial lifestyle where the sexual offences occurred is improved. [35] Dr Parker was subsequently provided with the defendant's NSW criminal history, documents concerned with the charge of stalk or intimidate, the defendant's breach of parole report and Corrective Services case notes concerning the defendant from 27 January 2018 until 21 July 2018. Dr Parker swore an affidavit on 2 August 2018 saying that, having read that material and reviewed his Risk Assessment Report, he adhered to his assessment of the defendant's overall risk of future violent, sexual and general offending, his risk of committing a further serious offence (either sexual or violent), and the likely scenario for future serious offending. [36] The risk management report prepared by the Community Corrections Officer and endorsed by the High Risk Offender Applications and Operational Governance Officer on 16 March 2018 noted that the defendant was released to supervised parole in October 2017 to reside at the Nunyara Community Offender Support Program in Malabar. He was subject to electronic monitoring. On 6 November 2017 he was placed on a management plan by COSP Management for ongoing non-compliance and unacceptable behaviour. Thereafter he was issued with a 14 day eviction notice due to his non-compliance with his management plan. He then obtained independent accommodation in a boarding house in the Newtown area.

Reports of Court Appointed Experts (s 9(3)(b))

By virtue of the interim orders, Mr Patrick Sheehan, Forensic Psychologist, and Dr Andrew Ellis, Forensic Psychiatrist, prepared reports for these proceedings dated 23 October and 4 November 2018, respectively.
Their reports were the subject of uncontentious summary in the written submissions of the State, from which I draw in the following summary of the expert reports.

Report of Dr Ellis dated 4 November 2018

Dr Ellis assessed the defendant at a single 2 hour appointment on 10 October 2018.
In relation to the index offence in NSW, the defendant had no memory of the offence itself, although he was regularly carrying out burglaries. He told Dr Ellis that he was watching pornography with a burglar theme to it, but that it was a random event that the victim was home. He thought that anger towards his aunt may have motivated the offence. The defendant said that he would regularly carry scissors to cut fly screen to rob houses, and thought he was more likely to have used scissors than a knife to threaten the victim, although he accepted it was possible.
As to the 1999 sexual offence in Victoria, the defendant told Dr Ellis that he needed money, and had been planning to rob a drug dealer with a co-offender. When they did not have petrol money to get to the location of the drug dealer, he was angry. The defendant said that he took benzodiazepines and kicked down the door of the victim's house for petrol money. He described his memory of the offence being "fuzzy" but said that he raped the victim. The defendant described his motivation as self-destruction.
The defendant told Dr Ellis that he wanted to see a psychiatrist and have rationalisation of his psychotropic medication. He also indicated a desire to see a psychologist, but not one from Corrective Services. He said that he did not think he had a sexual disorder and that he did not think he required medication to control his sex drive, but would undergo assessment and further discussion about it.
Dr Ellis noted that the defendant tended to "externalise blame and control for events in his life", and noted that he used language that objectified women and that he described hyper-vigilance and re-experience of trauma through nightmares. In Dr Ellis' opinion, the defendant met the criteria for anti-social personality disorder, post-traumatic stress disorder and substance use disorder (relating to cannabis, benzodiazepines, opioids and stimulants). In relation to the substance use disorder, Dr Ellis noted that it was in "early remission under supervision". Dr Ellis considered that the transient psychotic symptoms that the defendant has previously presented with are more likely to have been substance induced psychosis rather than an independent psychotic disorder.
Dr Ellis also noted that there was the potential for a psychosexual disorder such as sexual sadism, given that the defendant's behaviour in committing the offences is too methodical to be explained by him being intoxicated. He also noted that the defendant's offending may also be explained by impulsive anger and entitlement rather than a specific arousal.
Dr Ellis assessed the defendant using the STATIC-99R actuarial risk assessment, which placed the defendant in the well above average risk category with a score of 7. Dr Ellis noted that the defendant's offence history was "suggestive but not definitive" of deviant sexual arousal which Dr Ellis described as the most prominent risk factor for sexual re-offending. In this regard, Dr Ellis noted the similarity of the offences, and that the defendant continued to show poor insight around motivations for offending, poor self-awareness, difficulties with stress and coping, impoverished relationships with others, poor planning and previous lack of cooperation with supervision. He noted that the defendant's current attitude to supervision was equivocal. Dr Ellis stated that anti-libidinal medication is the best treatment for deviant arousal of any paraphilic pattern and that behavioural techniques may reduce deviant arousal.
Dr Ellis also noted that antisocial personality is another factor consistently identified with sexual re-offending. He considered that the defendant's antisocial style of interaction had continued and that it was too early to assess the defendant's claims that he has given up physical aggression. Dr Ellis also noted that whilst substance use is "more modestly correlated with sexual offending, in this case it is related to the sexual offences and may serve to disinhibit underlying sexual arousal towards objectification, violence and humiliation".
Whilst Dr Ellis noted the defendant's participation in group sex offender treatment and that people who completed the treatment tended to have more control over their behaviour, the defendant displayed little understanding of his motivations to offend and limited strategies to avoid re-offending. Dr Ellis considered the defendant's participation in previous treatment to be "Marginal".
Dr Ellis considered that the victims of the defendant's offences were likely adult females who were alone and in a position of vulnerability. Whilst the offending may be opportunistic, Dr Ellis considered that his past participation in burglary increases the chances of finding such victims, and that substances may further disinhibit such behaviour. Dr Ellis concluded as to risk, "[the defendant] would fall into a group of persons with a risk for sexual offending that is statistically high in frequency and greater than a theoretical average offender. Specific treatment and supervision would likely reduce the risk."
Dr Ellis noted that the defendant could benefit from "evidence based medical treatment" for post-traumatic stress disorder ("PTSD"), and the potential effects of the SSRI medications on the defendant's PTSD and any paraphiliac urges. Dr Ellis also considered that the defendant may benefit from mood stabiliser medication to moderate impulsivity and the potential for anti-craving medication such as naltrexone.
Dr Ellis considered that a period of 5 years for an extended supervision order would be reasonable in order to "improve function in the community, and refine the appraisal of risk". He noted that both paraphilias and personality disorders were chronic relapsing conditions that were resistant to treatment and rehabilitative efforts. Dr Ellis considered that the defendant's "psychiatric disorders were chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point." Dr Ellis supported all of the proposed conditions.

Report of Mr Patrick Sheehan dated 23 October 2018

Mr Sheehan assessed the defendant at a single interview of 1 hour and 45 minutes on 18 October 2018. Mr Sheehan stated that the defendant was not cooperative with the interview, threatened to leave and told Mr Sheehan he was getting angry when Mr Sheehan persisted. Mr Sheehan was unable to administer a structured clinical interview and said that the interview only continued by allowing the defendant to speak freely with the occasional leading question.
Mr Sheehan indicated that the defendant reported a poor memory and was unable to answer questions concerning his childhood and sexual offending. Overall, Mr Sheehan said that the defendant was "digressive, tangential and persistently contradicted himself". He described the defendant as "inflexible in his thinking" and was an apparently unreliable historian who spoke impressionistically. Mr Sheehan noted his intense hatred of authorities and stated that his "discourse promoted a dystopian world view, reflecting themes of hopelessness, powerlessness and intropunitiveness". The defendant attributed petty or malevolent motivations to others. Mr Sheehan also noted grandiose elements to his presentation and that the defendant made a number of violent statements but said that Mr Sheehan should not interpret them literally.
During the interview with Mr Sheehan, the defendant was noted to express inflexible views, including his statement that he would not be able to establish any form of social development whilst subject to supervision. In relation to his employment plans, whilst the defendant told Mr Sheehan that he had employment opportunities in Albury and Melbourne, he also told Mr Sheehan that he had promoted post-release employment plans during CUBIT "just to tick a box".
The defendant reported a low libido and denied sexually deviant interests.
In relation to the index and 1999 sexual offences, the defendant said that previous comments about the offences had been taken out of context. The calmness he had said he had seen in the victims was probably blurred by the drugs, before saying that he did not really remember the offences or the thoughts and decisions that drove the offending. He denied ever having "purposefully sexually fantasised about themes of a burglar having consenting sex with a victim" and stated that all he had previously said was that some porn had that story, and "it could have been that influence that allowed me to do it. I never said it was my fantasy". The defendant was noted to have expressed remorse for the offences and said "Obviously, I feel for the victims and their family".
Mr Sheehan noted that at the completion of the CUBIT program the defendant had identified an offence pathway and warning signs to indicate he was struggling to manage his risk factors. In Mr Sheehan's opinion, "several of these factors would seem present currently". Mr Sheehan also noted that the defendant spoke in interview in "an extremely disparaging way of his earlier female CUBIT therapist", including her character, looks and suggested that she engaged in bestiality. As to his participation in the Community Maintenance Program, when asked what he obtained from treatment, the defendant replied, "I'm satisfying the conditions, which is rewarding. Ticking all the boxes".
Mr Sheehan noted the defendant past difficulties with supervision and that, in interview, the defendant expressed cynical views regarding staff from Community Corrections and was unable to recognise any shared goals. Mr Sheehan also noted that the defendant has made requests that seem poorly reasoned given his offence history. Overall, Mr Sheehan considered that the defendant made contradictory statements regarding his plans to cooperate with an extended supervision order imposed on him, expressing variously that such an order was unnecessary and an impediment to community adjustment, that he would begrudgingly comply, that he did not want to comply, and threatening to cut off his "GPS anklet" if he got sick of it.
After considering his psychiatric history, and varying accounts of his current functioning, Mr Sheehan expressed the view that the defendant's substance abuse history would meet the criteria for substance use disorder (polysubstance disorder (moderate), in sustained remission), and that his abuse of substances appear to have been key factors in much of his offending history, including potentially the sexual offences. Mr Sheehan also concluded that there was clear evidence to suggest pervasive personality pathology. Mr Sheehan considered this to be severe and the primary presenting feature in the case. In Mr Sheehan's opinion the defendant displays a cluster B presentation, which is said to be a combination of features associated primarily with antisocial personality, also borderline personality disorder, and to a lesser extent narcissistic personality disorder. Mr Sheehan also considered that he may also have symptoms of paranoid personality disorder. Mr Sheehan did not diagnose any paraphilia, but noted several historical concerns regarding deviant sexual interests.
Mr Sheehan assessed the defendant in the "High Risk" or "Well Above Average Risk" category on the STATIC-99R actuarial instrument, and noted that his score of 7 placed him in the 97th percentile in the study's sample population.
In relation to risk factors under the Risk of Sexual Violence Protocol ("RSVP"), Mr Sheehan assessed the dynamic risk factors as follows: 1. Sexual violence history: this was a risk marker rather than a causal factor, Sheehan described his history of sexual violence as "chronic" but not "diverse". 2. Psychological adjustment: Mr Sheehan noted that such factors may represent causal risk factors or predisposing or perpetuating factors. He noted that, whilst the defendant had never made statements condoning the offence, he supported a range of attitudes that support or condone sexual violence, and the defendant maintained hostility towards women. Mr Sheehan also noted ongoing problems with self-awareness and self-appraisal and that his decision making remained somewhat poor and aimed towards self-defeating outcomes. He also noted ongoing problems with stress/coping and a low distress tolerance with a range of pathological coping behaviours. 3. Mental disorder: Mr Sheehan noted there was some limited evidence of deviant sexual interest in the rape scenario fantasies that had been identified in the CUBIT program. Mr Sheehan also noted ongoing serious problems with violent ideation and serious problems with polysubstance abuse. Whilst there have been diagnoses of psychotic mental illness, Mr Sheehan noted that the prevailing opinion was that the defendant was not mentally ill. Mr Sheehan also assessed the defendant on the Hare psychopathy checklist, stating that this identified traits consistent with the construct of psychopathy (impulsivity, grandiosity, poor behavioural controls, lack of goals, deceitfulness, irresponsibility and both adolescent and adult antisocial behaviour). Mr Sheehan stated that his score was in a range that pointed towards the presence of psychopathy of the RSVP. 4. Social adjustment: Mr Sheehan stated that problems with social adjustments may precipitate sexual violence by expressing vulnerability to like stressors. Such factors are considered risk markers and also have a potential causal or indirect role. In Mr Sheehan's view the defendant had serious problems with intimate and non-intimate relationships, in terms of low intimacy, distrust, instability, conflict and hostility as well as serious problems with employment and a broad history of sexual criminality. 5. Manageability: Mr Sheehan stated that these factors may precipitate sexual violence by increasing exposure to destabilising factors. Mr Sheehan described the defendant's future planning as poor in terms of his ability to make and implement realistic pro-social plans, although there was some recent improvement. He also noted serious problems in participating in treatment, internalising treatment insights and maintaining gains after completion of treatment. Mr Sheehan also noted serious problems with institutional and community supervision. In Mr Sheehan's view, whilst there were positive aspects to the defendant's current supervision, his file information revealed disengagement, pushing of boundaries and poor judgement.
In Mr Sheehan's view, the defendant's sexual offending was "arrived at primarily as a function of his broader antisocial functioning, not from a discreet independent system of sexual deviancy. That is, his impulsivity and his broader pattern of exploitative behaviour and aggression". Mr Sheehan also noted elements of deviant fantasy, but concluded that they were also tied to his antisocial characteristics. Mr Sheehan noted that the defendant's hostility toward women remained clearly evident and that this may also have played a contributing role.
If the defendant were to sexually reoffend, in Mr Sheehan's opinion, this would be most likely in the context of a broader return to criminality and possibly substance abuse. He noted that the defendant's life may become chaotic doing this process, with a build-up of problems, association with active offenders and a focus on immediate needs without consideration of long term consequences. Mr Sheehan also expressed the view that the defendant would likely have ceased cooperating with supervision, may place himself in high risk situations and carry objects that could be used to break into dwellings and also as a weapon. He opined that the most likely victim would be a lone female in her own home, but that "with impulsive and opportunistic offences, the context could be broader, driven by opportunities presented". He noted that there may be some violence towards the victim, and the presence increased the likelihood of serious harm, although he considered it unlikely that the defendant would plan to do so. Mr Sheehan described the future risk posed by the defendant as "chronic in nature" and opined that his history suggests that "his behaviour could unravel in a two or three month period".
Mr Sheehan concluded that overall he estimated the defendant's risk of committing a sex offence as in the "high" category relative to other adult male sexual offenders. Mr Sheehan noted inadequate participation and ownership of treatment goals, expressed reservations regarding his ability to integrate treatment insights into his behavioural repertoire, and considered that there had been insufficient positive change to the underlying dynamic risk to justify a reduction in his risk estimate. In relation to the risk of committing a serious sex offence, Mr Sheehan considered this to be less certain, but considered that "the circumstances of his past offending would be seen to add weight to the possibility of an offence outcome that would meet the criteria for a serious sex offence". Mr Sheehan considered that "[the defendant] does not permit any confidence that he is in a position to independently manage his risk of a serious sexual offence at this time, in the absence of intensive supervision". He considered that whilst the defendant has expressed opposition to an extended supervision order, in the absence of such an order "there is a heightened risk of a series of cumulative poor decisions that would lead to escalation of risk factors."
As to the period of supervision, Mr Sheehan considered that due to the defendant's risk factors being chronic, and in some cases contemporaneous, "it is unrealistic to imagine that even with his genuine effort, he would be able to overcome these difficulties in a short period". Mr Sheehan considered that this "points to the higher end of the five year range and certainly no less than three years would be realistic". He noted that, whilst antisocial personality factors attenuate in middle and later life, and this may occur over the coming decade, there was no guarantee that this will occur. Mr Sheehan noted the possibility of a limit to long term benefits of supervision and that the defendant may be no further advanced in achieving positive community immersion at the conclusion of an order. He recommended that the defendant be given a clear and transparent understanding of what would need to be achieved so that further orders would not be sought, with quantifiable goals.
Mr Sheehan expressed some reservations with respect to some of the conditions proposed by the State but none of those fall within the categories remaining in dispute.
Both Dr Ellis and Mr Sheehan used the STATIC-99R actuarial instrument, as discussed above, and scored the defendant at 7, placing him in the "well above average risk" or "high risk" category.

Results of Other Expert Assessments (s 9(3)(c))

In addition to the report of Dr Parker of 8 February 2018, the Court received in evidence the 2017 CUBIT discharge reports of Dr Calinda Payne and Ms Aimee Press, together with the following reports: 1. Report of Dr Lester Walton, psychiatrist, dated 26 February 2001; 2. Victorian extended supervision order assessment report of Mr Michael Davis, psychologist, dated 17 July 2009; and 3. Psychiatric report of Dr Olav Nielssen, psychiatrist, dated 5 June 2010.
Dr Payne opined that the defendant met the criteria for anti-social personality disorder and demonstrated little motivation to engage in therapy in order to make changes that would reduce his risk of reoffending. Upon applying the STATIC 99-R and STABLE-2007 assessment tools, Dr Payne assessed the defendant as having a high level of stable dynamic needs and overall in a very high category for supervision and intervention compared with two other sexual offenders. Ms Press, a psychologist, opined that the defendant had ongoing risk management needs and it was unlikely that further custodial based interventions would moderate that risk. She also noted that the defendant tended to minimise his own risk factors and would require significant ongoing monitoring and ongoing contact with a psychologist on release.

Risk Assessment Report by Corrective Services (s 9(3)(d1))

A risk assessment report dated 16 March 2018 was prepared by Mr David Weir, Community Corrections Officer, and endorsed by Ms Janelle Farraway, High Risk Offender Application and Operational Governance Officer.
The report was written prior to the defendant's parole being revoked and noted that the defendant was living in independent accommodation in a boarding house in Newtown and was reliant on Centrelink benefits. Amongst the management strategies, which were addressed in a report were electronic monitoring, schedules and curfews. The report, noted that the risk management plan would be reviewed every two months.

Treatment or Rehabilitation Programs (s 9(3)(e))

Reference has been made earlier to the completion by the defendant of the CUBIT Program in July 2017 and the discharge reports in that respect. It may be noted he was removed from the program in 2016, after assaulting another inmate. He later completed the program via individual sessions.
The defendant also completed the Getting Smart Program in August 2012 although he was found the next day to be apparently intoxicated, refused to provide a urine sample and a strip search revealed a concealed weapon.

Level of Defendant's Compliance with Obligations under Previous Orders (s 9(3)(f))

The defendant was released to parole on 11 October 2017. That parole expired on 11 October 2018, at which time he became subject to the interim supervision order. During the period 29 March to 28 July 2018, the defendant's parole was revoked.
It may be noted, in that respect, that the defendant's parole was revoked on 29 March 2018, after being charged with the offences of the possession of a knife in a public place on 20 December 2017 and stalk and intimidate on 28 March 2018. As earlier mentioned, both charges were dismissed.
The defendant was released back to parole on 28 July 2018, following the rescission of the revocation of his parole.
The defendant's conduct overall during his parole and interim supervision order is detailed in the affidavit of Ms Farroway. Whilst there had been no alleged breaches of his parole conditions or interim supervision order, Ms Farroway noted that the defendant's behaviour under this period of supervision had been variable, and the defendant struggled to accept the conditions applicable to him, as well as with the supervision process.

Objectives

The Act's primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community "must be the paramount consideration" when determining an extended supervision order application: s 9(2).

Preconditions

Section 5B of the Act is in the following terms: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
As mentioned, there was no dispute that the first three pre-conditions were met in the present matter. That concession was well made for the following reasons: 1. The defendant is an "offender" because he is over the age of 18 years and has previously served full-time imprisonment for a "serious offence". 2. Section 5(1) sets out a number of categories of offences that constitute a serious sex offence. Those categories relevantly include: 5 Definitions of "serious sex offence" and "offence of a sexual nature" (1) For the purposes of this Act, a serious sex offence means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: … (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises) 1. The offence for which the defendant was convicted was a count of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act 1900 (NSW). The circumstances of aggravation were that at the time of the commission of the offence the defendant threatened to inflict actual bodily harm on the victim by means of an offensive weapon being a knife. The offence is within Division 10 of Part 3 of the Crimes Act. 2. The defendant is a "supervised offender" as he was serving a full-time sentence of imprisonment for the "serious offence" at the time the summons was filed on 10 July 2018 (see s 5I(2)(a)).

Section 5B(d)

The relevant principles, in this respect, were discussed recently in State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 at [16]-[19]. I adopt those principles for the purposes of this matter.
Pursuant to s 5B(d) the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
This conclusion is based upon the history of the defendant's offending including its nature and character, the risk management report by Corrective Services, the defendant's progress whilst on parole and the expert opinion of Dr Ellis, Mr Sheehan and Dr Parker. In that latter respect, I note that the experts have opined that there is a high risk of committing further sex offenses given, as counsel for the State, Mr I Fraser, submitted, "the chronicity and continuation of [the defendant's] risk factors". In particular, attention should be given to the defendant's anti-social personality, his potential psychopathic personality traits, his impulsiveness and poor social adjustment, his continued views that support sexual violence against women and the limited gains the defendant was considered to have made from treatments. Attention may also be directed to his substance use disorder.

Extended Supervision Order

Having regard to the factual background of this matter, the various factors discussed under s 9(3) of the Act and the aforementioned conclusion reached under s 5B(d), an extended supervision order should be made. The remaining issues concern aspects of the conditions which will apply under that order.

Duration

The parties accepted that the determination of this disputed question required the balancing of expert opinion which pointed to the chronic nature of the defendant's psychiatric disorders and the corresponding chronicity of risk factors and the making of a form of order which is most likely to be productive of rehabilitation.
On the one hand, the opinions of Dr Ellis and Mr Sheehan urged an extended supervision order longer than 3 years.
Dr Ellis considered a period of five years for an extended supervision order to be "reasonable" from a psychiatric perspective. He noted the chronicity of paraphilias and personality disorders. He considered his psychiatric disorders to be chronic and likely to persist beyond any period of supervision, although they may be better controlled at that point.
In Mr Sheehan's opinion, any extended supervision order should not be less than 3 years in duration, and that the chronicity of his risk factors, and the fact that some were contemporaneous, pointed towards the higher end of the 5 year range.
On the other hand the counsel for the defendant pointed to the advantages to the community of the defendant engaging with any order made and encouraging, in accordance with the objects of the Act, rehabilitation.
The submission by counsel for the defendant, Ms Hall, in this respect, was of substance and bears repetition. It is extracted below: 9. It is conceded that [the defendant] presents a difficulty in relation to his management as a result of the attitudes he holds towards Corrective Services. As was identified by Dr Ellis in his report dated 4 November 2018, "[t]aping into his self interest in remaining in the community may be sufficient to secure his cooperation". 10. However, it is submitted that the difficulties that the defendant has demonstrated from a management perspective do not of themselves necessitate a longer order. The purposes of the legislation are protective in nature. The recent amendments make it clear that community protection is the paramount consideration for the Court: s 9(2) of the Act. Section 3(2) also recognises the rehabilitation of an offender to be part of the objects of the legislation. 11. Each of the purposes of the legislation are better and more likely to be achieved in the case of [the defendant] where his co-operation has been able to be realised. This is not going to be done in circumstances where he considers he is subject to the most restrictive order available-this includes the length being the maximum available to the Court. … 14. The recognition of the longstanding nature of the psychological and psychiatric issues that [the defendant] experiences, means that there is a careful balance to be struck in the management of [the defendant]. There is a significant advantage to the community in [the defendant] being supervised. However, it is important that this supervision-involving as it would no doubt, aspects designed to address rehabilitation-needs to be such that it triggers the self-interest identified by Dr Ellis and set out above. Indeed, Mr Sheehan also recognises the "limit to long term benefit of supervision in [the defendant's] case should he resist the case management aspect of supervision". 15. The community has an interest in [the defendant] engaging in the order. Should the Court accede to the request of the State, there is a risk that the inherent distrust that [the defendant] feels for those involved in his supervision will be amplified and any chance of triggering his self-interest in compliance will be lost. 16. Furthermore, both of the Court appointed experts recognise the long standing and pervasive nature of the conditions experienced by [the defendant]. Any expectation that these conditions would be resolved during any period of supervision provided for under the Act is unrealistic. An order of three years would provide the optimum opportunity for those who supervise [the defendant] to maintain his interest in complying and more importantly, engaging. … 18. It is not intended to suggest that [the defendant] should accrue some benefit-being a shorter order than is otherwise indicated-by virtue of his attitude. But rather that the Court has an interest given the objects of the Act, to construct an order which is going to offer the best form of protections to the community while, as a secondary consideration, encouraging the rehabilitation of an offender who is clearly identified as institutionalised and who has very little byway of social supports to assist him to reintegrate into the community. [Footnotes omitted.]
Reference may also be made to the observations of Davies J in Rogers No 1 at [41]-[44]: [41] Interestingly, in his affidavit, Dr Parker gave as one reason for supporting a schedule of movements, that it would assist the defendant to establish meaningful routines and provide incentive for him to engage in prosocial activities. In his Risk Assessment Report Dr Parker said: 96. It is likely that the intensive intervention and supervision provided under such an order would be a constant source of aggravation to [the defendant], given the intensity of his attitudes towards authority. This may lead to offences (breaches or assaults against staff) as a reaction to the restrictions of the order. If required to wear electronic monitoring equipment, his enmity towards this may result in him absconding. That is a view I share, given the defendant's history of offending and Dr Parker's view that entitlement was an explanation for at least his sexual offending and possibly his offending generally. [42] Nevertheless, the defendant is currently subject to electronic monitoring as part of his parole arrangements. I am satisfied that the conditions sought as part of the ISO should be made including electronic monitoring. [43] This is a difficult case because of the defendant's entrenched anti-authority views. In that way, the more restrictive his life and movements are made, the more likely he is to fail. Indeed, when interviewed, there was a reluctance by him to be released. He indicated that he would rather remain in custody. [44] I consider that those managing the defendant will need to monitor him very carefully during the term of the ISO so that, by the time of the final hearing, those persons would be better informed to advise the Court about the extent of the permanent restrictions that should be applied during the ESO. In that regard, as I suggested at the hearing, there is some benefit in delaying the final hearing of this case until as late as is practicably possible. The hearing date for the final hearing is the latest date that can reflect my concerns in that regard.
On balance, whilst not under-rating the opinions of Dr Ellis and Mr Sheehan, I consider the submissions of the defendant, in this respect, should be accepted.
The defendant should not accrue a benefit by virtue of his attitudes but the making of a 3 year extended supervision order is, in my view, in conformity with the objects of the Act. The making of an order for a shorter duration (3 years) enhances the prospects of conformity with the orders and the prospects of rehabilitation, both of which represent, in the circumstances of this case, the best form of protection for the community. Plainly, there is a significant case for supervision of the defendant to control risks based upon psychiatric opinion but, as the defendant submitted, any expectation that these conditions would be resolved during any period of supervision provided for under the Act is unrealistic. An order of three years would provide an optimum opportunity for those who supervise the defendant to maintain his interest in complying and more importantly engaging with the defendant with a view to rehabilitation.

Electronic Monitoring and Schedule of Movements

There is a very substantial basis for the granting of conditions for electronic monitoring and schedule of movements, which, as earlier mentioned, are not opposed by the defendant, save in one respect, namely, the incorporation of a sunset provision.
The State put the submission in favour of these conditions succinctly in the following submissions: 58. Ms Farroway provides evidence regarding the utility of these conditions at [67] to [83] of her affidavit. Mr Sheehan expressed specific support for both electronic monitoring and scheduling, indicating that it forces an individual to forward plan, rather than live spontaneously, which is particularly important for [the defendant]. Mr Sheehan also noted that scheduling had revealed the absence of prosocial goal directed activity, and that the scheduling can be used to work towards therapeutic goals. 59. It is noted that [the defendant] himself indicated to Dr Ellis that being subject to electronic monitoring "gives him an external incentive to not offend", although he wished to have more flexibility. Dr Ellis expressed the view that a weekly schedule would be of benefit in promoting routine and advanced problem solving. 60. It is submitted that in [the defendant's] case, these conditions are particularly important to assist in the introduction of structure to his day to day life, as well as ensuring he undertakes pro-social activities. The conditions also ensure that [the defendant] is not in high-risk locations or environments, as well as providing something of a deterrent to him committing any offences, which may in turn lead to the commission of a serious offence.
The defendant contended that the sunset condition was appropriate as it offered the defendant further encouragement in terms of his compliance with the order. Furthermore, it enabled him to better adjust to life in the community in circumstances where he is not overtly familiar with the area he will reside, being not from Sydney originally. Reference was made to the potential for a condition such as electronic monitoring to be "counter-productive" and to "exacerbate the defendant's frustrations". Reliance, in that respect, was placed on the judgment of Hamill J in State of NSW v Carr [2014] NSWSC 1348 at [45]. It was acknowledged, in mentioning that matter, his Honour was clearly having regard to the community's interest in having the defendant comply with the conditions of the order.
As earlier mentioned, the State opposed the imposition of the sunset clause essentially because the imposition of the clause removed the ability to respond to changes in risk and, to that extent, imposed an arbitrary requirement whereby the defendant's risk was determined in advance.
Whilst it is correct that a sunset clause has been imposed in some previous matters (see for example, State of New South Wales v Holloway (No 2) [2017] NSWSC 1517 (R A Hulme J) and State of NSW v Weribone [2016] NSWSC 1474 (Bellew J)), the Court has also declined to include such a limitation (see for example, State of New South Wales v Farringdon [2018] NSWSC 874 (Button J); State of New South Wales v Golding (Final) [2018] NSWSC 1437 (R A Hulme J); State of New South Wales v Strudwick [2018] NSWSC 1798 (Button J); and State of New South Wales v TT (Final) [2018] NSWSC 358 (Johnson J)).
I accept that the granting of a sunset clause may, consistently with the approach taken with respect to the duration of the order, further encourage compliance with the order. However, significant differences arise with respect to assessment of whether or not to grant this condition.
One factor under consideration with respect to the issue of the duration of the orders was the likelihood of the defendant's underlying disorders and risks lasting well beyond the date any order that may be made commensurate with the requirements of the Act. That factor does not operate with respect to this condition.
In the present case, it appears to me that the predominant consideration is the desirability of providing flexibility in the operation or application of the conditions as contemplated in the form of proposed orders 4 and 5.
Given the risk factors identified for the defendant, it is appropriate that the conditions provide a reasonable ability to respond to changes in risk. Whilst the proposed clause allows for the reimposition of electronic monitoring in the event of a breach of the extended supervision order, I accept the submission of the State that this is insufficient to address the paramount consideration of the Act as there are indicators of risk that may become apparent (falling short of a breach of a condition) which could warrant the reimposition of electronic monitoring).
I also note that those supervising offenders via extended supervision orders, have in place a system for the ongoing review of electronic monitoring and scheduling. As part of that system, the levels of monitoring are reviewed at least every two months, and decreased if considered appropriate. The system allows for monitoring to be adjusted (up or down) in light of an offender's level of compliance and their level of risk.
In my view, conditions 4-8 should be made in accordance with Amended Schedule A to the amended summons.

CONCLUSION

In the circumstances, I consider the requirements of s 5B have been satisfied and pursuant to s 9(1)(a) of the Act an extended supervision order should be made effective from 19 December 2018 for a period of 3 years. Further, I consider that pursuant to s 11 of the Act, the conditions set out in Amended Schedule A to the amended summons should apply and the defendant should be directed to comply with those conditions.
The State should bring in short minutes of order reflecting this judgment by 4pm on 20 December 2018.

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: 19 December 2018

At a glance

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Judgment (20 paragraphs)

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Cases Cited (9)