State of New South Wales v Ryan

Supreme Court of NSW|2023-08-31|Before: Walton J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/152361

JUDGMENT

By an Amended Summons filed in Court on 31 August 2023 ("the Amended Summons"), 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 Mr David Ryan ("the defendant") be the subject of an extended supervision order ("ESO") from the date of the order for a period of 3 years from the date of the order upon conditions set out in a Schedule to the application entitled "The Amended Schedule of Conditions of Supervision" ("the Schedule").
The defendant accepted that the formal requirements for making an ESO were met, namely, that the matters in s 9(3) of the Act indicated that an ESO should be made and that the Court would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious offence if he is not kept under supervision.

Interim Orders

On 28 June 2023, following a preliminary hearing of the matter, Campbell J made orders appointing qualified experts to conduct examinations of the defendant and to produce reports and imposed an Interim Supervision Order ("ISO") on the defendant commencing from 3 July 2023 for a period of 28 days: State of New South Wales v Ryan [2023] NSWSC 236 ("Ryan No 1").
On 24 July 2023, Yehia J made an order renewing the ISO from 31 July 2023 for a period of 28 days. On 18 August 2023, N Adams J made an order renewing the ISO from 28 August for a period of 28 days.

Objects

The Act's primary object is to ensure 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 ESO application: s 9(2).
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.
It was agreed at the hearing that s 5B(a)-(c) are satisfied in this case as stated in Ryan No 1 at [6]-[10].

Section 5B(d) and the assessment of s 9 of the Act

The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of "high risk violent offender" and "high risk sex offender" that existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendment continue to be relevant (see State of New South Wales v Thurston [2018] NSWSC 421 (Garling J at [116]-[117]); and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 (Walton J at [56]-[60]).
As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 (Walton J at [20]-[39]) (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (Walton J at [43]-[54]). By way of emphasis or elaboration, some further observations may be made.
First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely "drastic" consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 ("Kamm") (Harrison J at [41] and [43]).
Secondly, I accept the passage of the judgment of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 ("Pacey") and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
Reference may also be made to the discussion of the test under s 5B(d) in State of New South Wales v Ceissman [2018] NSWSC 508 (Rothman J at [26]) which reads: [26] It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the HRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.
Thirdly, the requisite finding under s 5B(d) may be made in an appropriate case that involves a single serious offence. In Kamm, Harrison J observed (at [44]): [44] Finally, while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.
Finally, I refer to the judgment of Harrison J in Pacey (at [53]): [53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.
The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of "protective measures".
In the assessment of whether the defendant poses an unacceptable risk of committing another serious offence under s 5B(d), it is appropriate for the Court to consider the considerations under s 9 of the Act in addition to any other matter it considers relevant: see Kamm at [42]; State of New South Wales v Fisk [2013] NSWSC 364 (Beech-Jones J (as his Honour then was)).
Section 9 of the Act provides as follows: 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order - (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).
Again, I note that the parties are agreed that the defendant poses a risk under s 5B(d). The defendant did not oppose the making of an ESO.
Ultimately, this is a question for the Court but, on the evidence before the Court I have reached the requisite state of satisfaction for the purposes of s 5B(d). I am satisfied, per s 9(2) of the Act, that the safety of the community will be best served in the making of an ESO.
I turn now to consider the factors under s 9(3) of the Act in that context.

The Defendant's Background

The defendant is a 52-year-old man. He has a history of child-related offending dating back to 1994, with the majority of his offending committed between 2009 and 2017. This includes Victorian offences of failing to comply with reporting obligations, grooming for sexual conduct with a child under 16, possession of child pornography and commit indecent act with/in the presence of a child, and South Australian offences involving possession of and obtaining access to child pornography and a similar offence of grooming.

Criminal History and Patterns of Offending Behaviour - s 9(3)(h)

The index offence of contravene prohibition order, pursuant to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("CPOPO Act"), was committed on 2 November 2021 in Goulburn, NSW ("the index offence"). The defendant's initial sentence was 20 months imprisonment with a 14-month non-parole period commencing on 4 November 2021 and expiring on 3 July 2023. Following an appeal before Arnott DCJ in Goulburn District Court, the non-parole period was reduced to 12 months, but the sentence was not otherwise varied. The non-parole period expired on 3 November 2022, but parole was revoked following the defendant attending a church with children present three days later (having been issued with a direction on 3 November 2022 not to enter, loiter, or remain in the vicinity of, inter alia, a church known to be frequented by children under 18 years of age).
The defendant has only one conviction in NSW being the index offence. The rest of his past offending occurred in Victoria and South Australia.
The defendant's criminal history in those jurisdictions includes indecent act offences, stalking, possess child pornography (aggravated offence) (x4), communicate to make child amenable to sexual activity (basic offence) (x6), obtain access to child pornography (basic offence) (x3), obtain access to child pornography (aggravated offence), grooming, and unlawful assault and assault emergency worker on duty.
During an unscheduled visit at the defendant's residence on 26 July 2023, his laptop was seized and subsequently searched by community corrections officers with relevant expertise. The search revealed that the defendant: 1. had extensively searched for rape themed pornography, including "gang rape", "hardcore rape stories", "erotic rape and kidnap stories", "extreme gang rape videos hardcore", "mum and daughter raped together", "young girls, incest, and teen sex". The defendant had searched the internet using search terms such as "mum watching twin daughters getting gangraped", "daughters gangraped while mummy watches", "mum watches daughters get gangraped hardcore", "scream n cream hardcore porn", "girls being gangraped hardcore", "rape porn hardcore", "hardcore forced witness girlfriends gangraped", "hardcore forced witness gangraped", "hardcore naughty girls being gangraped", "naughty girls gang raped", "rape tube", "mass rapes hardcore", "wife watches twin stepdaughters being raped", "mummy watches her twin daughters being raped hardcore videos", "husband made to watch wife and daughter get gangraped hardcore", "mum and nerd twin girls gangraped together hardcore", "mum and daughter gang raped together", "twin girls gang raped in the jungle", "rape videos hardcore", "hot erotic rape and kidnap stories hardcore", "twin girls getting raped hardcore videos", and "twin girls getting raped". The defendant conducted these searches following his release to the community on 3 July 2023; 2. made searches (on several occasions) relating to locations where either child pornography or sexual acts with children are legal, such as "is child porn illegal in Indonesia", "countrys were (sic) making of child porn is legal", "is the making of child porn legal in Japan", "is the making of child porn legal in hata", and "list in what countrys is it legal to make child porn". These searches have focused on Indonesia, Japan and Russia. These searches were also made following his release to the community; 3. made searches for material relating to minors. The defendant used the following search terms: 1. "kids who love minor attracted adults"; 2. "young girls who love child sex offenders"; 3. "would you hire a minor attracted person to look after your children." 4. "hiring minor attracted adults to work with children"; and 5. "would you hire a sexually active minor attracted person to look after children that are either above or below the age of attraction".

Expert Reports Provided Pursuant to s 7(4) - s 9(3)(b) of the Act

Dr McSwiggan

In preparing her report, Dr McSwiggan had access to the documents filed in these proceedings and also interviewed the defendant. The defendant made the following comments during that interview: 1. The defendant referred to "so called child pornography" offences that were not offences because it was "based on artistic merit… it wasn't sexual at all." He denied having a sexual interest in children or teen pornography. "I do not look at actual child pornography, I might look at young people nude but to me that's not pornography...it's not sexual." He detailed the differences which he summarised as "if they are just sitting there, it's not pornography." He denied any sexual motivation for his actions but agreed he found the images "beautiful." 2. The defendant said "he had the interest (to have sex with the child) but his former wife had the initiative. He did not discount if the same situation arose today (a minor wanting sexual contact) he would act differently." 3. The defendant described himself as "asexual" and masturbates "every six to 12 months." He looks at porn when "bored" and is interested in females. He stops being interested after they have become naked and prefers no male involvement.
Dr McSwiggan observed that the defendant "did not appear to demonstrate features consistent with (an untreated) major psychotic illness such as Schizophrenia or a major mood disorder such as Depression. The defendant did present with fixed interests and rigid beliefs. He has developed a belief system (rejection of government/authority) that supports his offending."
Dr McSwiggan opined that the defendant "operates at a normal level of intellect and academic achievement (reading, world knowledge)." However, Dr McSwiggan also found that the defendant's capacity to comprehend higher level social communication appeared generally limited and his capacity to mentalise and attribute emotion to others was simplistic and narrow.
Dr McSwiggan found that the defendant fulfilled the criteria of a Paedophilic disorder (13 years and under), non-exclusive type, based on the 1994 contact offence. The defendant has shown over a long period of time a sexual interest in pubescent girls. Dr McSwiggan stated that the defendant has features consistent with Hebephilia (pubescents < 16 years) (not a DSM 5 diagnosis) which would contribute to his risk of committing another serious sex offence.
Dr McSwiggan made the following observations concerning the risk of further offending: Mr Ryan's fixed belief that he has not offended would be what contributes to his risk of repeat offending. His contact offence pivoted to online offending without a partner. If grooming a child or teen meets the criteria for committing a "serious sex offence" then Mr Ryan would remain at risk. His statements indicate he has no internal containment for his offending behaviour. His does not accept any wrongdoing, and subsequently has no starting point to change his future behaviour. Custody has not been a significant deterrent for Mr Ryan.
Dr McSwiggan observed that psychological intervention to promote stability and structure may reduce the defendant's underlying risk factors of accessing unlawful pornography and interacting online with minors. She considered that whether such a reduction in risk could be achieved is "speculative based on his repeat offending and fixed beliefs."
According to Dr McSwiggan: 1. The defendant is in the second highest risk category of sexual offending (being Level IVb), using the Static-99R assessment tool. His risk of sexual offending is "well above average." 2. Applying the Child Pornography Offender Risk Tool (CPORT), the defendant scored higher than 93% of the CPORT reference sample, that score was more than double the mean score.
According to Dr McSwiggan, the expectation is that a substantial proportion of persons with a Level IVb risk profile will reoffend over the long term, with a greater risk of recidivism sooner after release.
Dr McSwigan observed that when persons with a Level IVb risk profile are released into the community, they are likely to require intensive community supervision that is focused on monitoring for community safety, enhancing compliance, and strengthening treatment/service engagement, participation, and retention.
Dr McSwiggan addressed the defendant's specific risk factors at [75]-[76]: Based on factors considered relevant to sexual recidivism, his risk relates to his denial of offending, poor response to supervision, poor response to treatment, problems with intimate and non-intimate relationships and continued interest in minor females. This would most likely to arise within some relationship structure (minor of woman he became known to), grooming (online or otherwise) and/ or collecting images of minors. His entrenched attitudes will be difficult to significantly shift given his inflexible personality. The interview around his current attitudes and beliefs supported his identified dynamic risks. His disclosures during the interview showed a fantasy life around 'ideal' minors. He dismisses others (most of the community) for not agreeing his sexual interests are acceptable.
Dr McSwiggan considered that the child protection orders currently in place are not sufficient to manage the risk of reoffending and do not have the oversight and frequency of checks available under an ESO.
The only proposed condition about which Dr McSwiggan expressed concern is condition 46, specifically, the last sentence in that condition ("The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him"). Dr McSwiggan did not consider that it is reasonable to require the defendant to disclose his criminal history to "any healthcare professionals treating him such as a dentist or podiatrist".

Dr O'Dea

In Dr O'Dea's opinion, the defendant (i) may meet the psychiatric diagnostic criteria for a personality disorder with significant antisocial traits and (ii) would meet the psychiatric diagnostic criteria for Post Traumatic Stress Disorder ("PTSD") related to his history of trauma. Dr O'Dea considered the defendant to also meet the "psychiatric criteria for an additional psychiatric diagnosis of at least a mood disorder". Dr O'Dea states that the mood disorder "would be best understood as a chronic elevated or manic mood disorder, that would meet the criteria for the psychiatric diagnosis of a Bipolar Affective disorder, with a differential diagnosis of a Schizo-affective disorder".
Dr O'Dea diagnosed the defendant as having Heterosexual Paedophilic, and Hebephilic disorders: …..his conduct in relation to his repeated sex offending related at least pubescent and post pubescent female children, and his limited ongoing sexual relations with adults since his marriage; would point to a predominant, if not exclusive, heterosexual hebephilic component to his sexuality, as well as a potential heterosexual paedophilic component to his sexuality. … ….heterosexual paedophilia is a Paraphilic Disorder, and can also be a chronic and relapsing condition, particularly if associated with prior recidivism, in adult males with vulnerable personalities and major mental illness, as in Mr Ryan's case; with both heterosexual paedophilia and heterosexual hebephilia often requiring assertive long term psychiatric treatment and management in the community, with specific treatment with testosterone lowering medication, in addition to or in lieu of psychotherapy.
Dr O'Dea recommended that the defendant be referred to a community psychiatrist for assessment and treatment of his mood disorder and PTSD, with such treatment likely to involve antipsychotic and mood stabilising medication and psychotherapy. Dr O'Dea stated the following: Whilst such psychiatric treatment may not fundamentally change Mr Ryan's core beliefs or his sexual orientation, it is likely to assist in managing at least disinhibition and problems with judgment and behavioural control, it is likely to assist in managing his community risks. … Psychological therapies alone have not shown to be effective in reducing recidivism in individuals with Pedophilic Disorders, in particular in individuals with limited intelligence, such as Mr Ryan.
Dr O'Dea recommended the use of select medication to treat the defendant's Paedophilia and Hebephilia: ….the judicious use of testosterone lowering (or anti-libidinal) medication (such as Cyproterone Acetate, Androcur®; Medroxy Progesterone Acetate, Depo Provera®, or the GnRH analogue medications, such as Leuproreline, Lucrin®) is considered the most appropriate and effective therapeutic intervention in treating paedophilia and/or hebephilia; and would be indicated in Mr Ryan's ongoing community forensic psychiatric treatment and risk management.
Dr O'Dea concluded that: …it would seem reasonable to assume that he has a significant 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, with this risk the appropriate focus for specific, structured and assertive risk management, including assertive psychiatric treatment and risk management, in the community in the long term.
Similarly, Dr O'Dea opined that: ….it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Ryan would be likely to commit a further "serious sex offence" (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if a structured, supervised and assertive community psychiatric treatment program were not successfully implemented. Whilst it is not possible, or clinically appropriate from a psychiatric perspective, to place a percentage likelihood of Mr Ryan committing a further "serious sex offence", the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in "Tillman v Attorney General for New South Wales [2007] NSWCA 327". That being said, I would consider that Mr Ryan' 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, would be adequately and appropriately managed at this stage in the community with successful implementation of the psychiatric treatment and risk management program, including successful prescription of antilibidinal medication, together with a structured and supervised community management program, as detailed in the Schedule of Conditions of Supervision as detailed in the Summons of Karen Smith affirmed on 10 May 2023.
Dr O'Dea considered that the risk of the defendant committing a further serious sex offence is a long-term risk and an ESO of "at least" five years is warranted. According to Dr O'Dea, the defendant should be referred to an experienced forensic psychiatrist for assessment and treatment, as part of the risk management regime to be implemented.

The Risk Assessment Report - s 9(3)(c) and (d)

In preparing the RAR, Mr Mystakidis interviewed the defendant for over two hours face-to-face and then for a further period over AVL.
Mr Mystakidis noted that a 2018 psychological assessment identified that the defendant had no insight into his offending or its likely effects and was unlikely to benefit from sex offender treatment. The defendant also expressed a disdain towards police, parole supervision and housing authorities, suggesting that they discriminated against him due to his "sexuality". The defendant showed no intention to change his mindset. In the interview, Mr Mystakidis noted a similar attitude. The defendant claimed he viewed child pornography "artistically".
The RAR records that the defendant has been diagnosed with Paedophilic disorder. The defendant has also been suggested to meet diagnostic criteria for Delusional disorder, PTSD, Adjustment disorder, borderline personality disorder and Paranoid disorder.
According to an assessment conducted on 18 October 2022, the defendant has deficits in social and communication domains. The defendant does not fulfill the full criteria for autism spectrum disorder, despite previous psychological reports which indicated that he presented with signs and symptoms consistent with that diagnosis.
In September 2022, a psychometric assessment of intellectual functioning placed the defendant in the "Low Average" range, consistent with the opinion of psychologist Robert Timms in 2018 that Mr Ryan's IQ was "within the normal range". The defendant had previously been reported to have a Borderline Intellectual disability (DSM-IV) in 2000 and a "Low Average" intellectual ability in 2013.
Mr Mystakidis observed that the "clinical issues" for the defendant which emerge from the reports and medical records includes delusional beliefs, specifically of being persecuted by individuals and government agencies, grandiosity, depression, anxiety/fear (of being sexually and physically assaulted), trauma symptoms, suicidal ideation, and misandry.
Mr Mystakidis, like Dr McSwiggan, found that when he applied the STATIC-99R to assess the defendant's risk of sexual re-offending and the STABLE-2007 to identify stable dynamic risk factors, the defendant was placed in the well above average risk level, Level IVb.
The defendant's score on the STATIC-99R was 6. The rate of recidivism for individuals with a score of 6 is over 3.77 times higher than the "typical" sex offender. Individuals in this risk category "often have many criminogenic needs" which are mostly "chronic and severe". This is consistent with the defendant's total score of 18 on the STABLE-2007 (another sex offender scoring system assessing stable dynamic risk factors), which suggests "a high density of criminogenic needs relative to other male sex offenders".
Mr Mystakidis concluded that the following dynamic risk factors were relevant or potentially relevant to the defendant's risk of sexual re-offending: trauma history, resultant attachment deficits and personality issues, problems with intimate and non-intimate relationships, loneliness, fear and rejection, emotional identification with children, lack of concern for others, impulsivity and poor problem-solving, negative emotionality (including towards government agencies) and minimisation of offences, sex as coping and sexual deviance (including possession of child pornography), and compliance with supervision.
The defendant reported that he masturbated more when he felt lonely, depressed or stressed.
Matters which were potential protective factors included absence of substance abuse problems; no hostility towards women; and apparent low sex drive or sexual preoccupation.
The defendant's apparent amenability to psychological intervention was also raised, but the plaintiff noted that it was problematic in terms of insight, acknowledging guilt and the defendant's continued belief that his attraction to children was acceptable.
Potential risk scenarios included a context of sexual preoccupation, deviant sexual fantasy, lack of social supports and subsequent feelings of rejection and low self-esteem. Sex offending may include grooming underage females online and possession of child sexual abuse material. Declining mental health and social isolation may also create an acute increased risk.

The Risk Management Report - s 9(3)(d1)

The RMR found, like the RAR, that the defendant's response to the institutional environment had been poor and his response to supervision was considered unsatisfactory.
The RMR gave the defendant a 'high-risk rating' if released to the community.
The RMR noted that the defendant was estranged from his family and had predominantly lived an itinerant lifestyle. The defendant had no identified post-release accommodation and had apparently suggested that, because of his antipathy towards adult males, he would wish to live on a moored boat.
If released to the community, the proposed risk management strategies include arranging suitable accommodation, encouragement to take part in pro-social activities, utilisation of Practice Guide to Intervention exercises to develop goals, self-awareness skills to manage high-risk situations, scheduled and unannounced home and field visits, field surveillance, monitoring of third party contacts and electronic monitoring, having a schedule of movements, promoting education and/or employment, non-association conditions, monitoring of internet and social media access, permitting searches of his premises and devices; and promoting engagement with psychological services.

Other Section 9 Factors

The defendant has not participated in any offence-specific programs whilst he was incarcerated for the index offence. He did complete all sessions of a program titled 'Intervention Hub-Emotional Wellbeing' and attended supportive counselling to address cognitive distortions and problem-solving issues: s 9(3)(e).
The defendant has demonstrated an unwillingness to address his interest in adolescent girls and has repeatedly demonstrated risk factors including deviant sexual interest towards children and emotional identification with them (perceiving them as adult-like and capable of being sexual aggressors towards adults). Mr Mystakidis noted that the defendant reported that he had completed the 'Better Life' program which addresses issues of consent by children when he was in custody in Victoria. Mr Mystakidis stated that the defendant regarded the program as "discriminatory" and had written to the Serious Offenders Register in Victoria expressing frustration that programs were not organised for him: s 9(3)(e).
The defendant's response to community supervision has been poor. Following his release to parole for the index offence on 3 November 2022, he resided at an approved temporary accommodation and attended scheduled appointments with police and community corrections. However, in interactions with community corrections, the Child Protection Register and Kings Cross Police, the defendant continued to reject his status as a registered person, denied having committed an offence (based on legitimate "minor attraction" to adolescent girls), and expressed his intention to move overseas to avoid discrimination by government agencies: (s 9(3)(f)).
The defendant allegedly breached his parole on 6 November 2022, three days after his release on 3 November 2022. The alleged breach is significant because of the similarity to his index offence. He attended a church in Darlinghurst where approximately 15 children aged under 14 years of age were attending a service. The defendant arrived at the end of the service and approached the Minister for assistance, acknowledging that he was a sex offender and should not have been present. The breach of parole report recounts that he was "fixated" on the children playing. This constituted a failure to comply with a direction requiring that he, inter alia, refrain from entering, loitering or remaining in the vicinity of child-related facilities, including churches known to be frequented by children under 18 years: s 9(3)(e).
The defendant's parole was revoked on 10 November 2022 because he presented a "serious and immediate risk to the safety of the community." The State Parole Authority declined to rescind this decision at a review hearing.
Mr Mystakidis noted that there were multiple counts of the defendant breaching bail in South Australia by virtue of reoffending (some 29 in total). The Risk Mitigation Plan, prepared on 31 October 2022, suggested that the defendant had moved from town to town and from State to State to evade monitoring.
The defendant's breach of a Victorian Interim Protection Order (by the commission of the NSW index offence) suggests a significant disregard for compliance with these obligations, as does his alleged breach of parole in relation to his NSW index offence sentence more recently: s 9(3)(g).
The defendant's continued belief that it is appropriate to approach children, his views about consent, his long history of possession of child pornography and of grooming children, together with his unwillingness to comply with relevant restrictions, all point to a significant risk to community safety if not supervised closely: s 9(2).
Combined with the expert reports as to risks including those concerning children, these factors result in the Court being satisfied to the requisite standard that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision via an ESO.

Principles

The defendant referred to the decision of Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 as to how the Court should assess the appropriateness of a disputed condition urged by the State in the context of the scope, purpose and objects of the Act (see State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 ("Wilkinson") (Hoeben CJ at CL (as his Honour then was)) at 44) and State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 ("Boney") (Walton J at [119]), and the more recent cases dealing with the appropriateness, or otherwise, of various standard conditions including search and seizure, employment, association and disclosure of criminal record.
In considering the imposition of conditions, I note the following principles from Wilkinson set out by Hoeben CJ at CL (as his Honour then was) at [44]: [44] i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83]. ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68]. iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]. iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38]. vi) Conditions must not be unjustifiably onerous or punitive, "[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855 at [89]. vii) Conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]. viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].
Despite the current matter being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127], in which the principles for the imposition of conditions are applicable. Those principles are as follows: [119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 ("Wilde") held that s 11 vests the Court with a "broad" discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]). [120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to "facilitating rehabilitation" even when they do not personally require an offender to "undertake" rehabilitative steps (at [49]). [121] The Court of Appeal further held at [53]-[54]: [53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. [54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups. [112] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 ("Sturgeon") at [99]: [99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed: (1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10]; (2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is "fit and proper": State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96]; (3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48]; (4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court's conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53]; (5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45]; (6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37]; (7) a condition cannot be simply an expression of the State's paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89]. [123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed "there must be some sort of identification of the unacceptable risk and how that condition goes to it". [124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 ("Farringdon"). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements. [125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending "and thereby aiding his rehabilitation" (at [37]). In applying the "test" set out in Wilde at [53]-[54], his Honour bore in mind "that one can expect the 'Departmental Supervising Officer' (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion" (at [46]). [126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]): [59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way. [Original emphasis.] [127] With respect, I accept Button J's statement of principles in Farringdon.

Conditions in Dispute

Before the final hearing, pursuant to the Amended Summons, there were four contested conditions. During the hearing, this was narrowed to a dispute only as to condition 4.
Condition 4 is in the following terms: 4. The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.
The defendant submitted the following with respect to condition 4: 1. Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) makes this a criminal offence and there is no justification for duplication of it in the ESO. The defendant would be subject to criminal prosecution if he was to intimidate or abuse staff. He would be potentially subject to prosecution for assault, as well as intimidation. 2. Similar conditions were not made in State of New South Wales v KW (Preliminary) [2023] NSWSC 397 at [11]-[15] per Fagan J; and State of New South Wales v Ayoub (Preliminary) [2023] NSWSC 479 at [27]-[28] per McNaughton J.
The State submitted the following regarding condition 4: 1. The condition is for the protection of the safety and well-being of staff involved in the supervision of the defendant; it is not directed to the public at large. The condition is also directed to safeguarding the proper operation of the supervision regime. 2. Secondly, the condition encompasses categories of conduct that interfere with the supervision of the defendant. 3. Thirdly, unlike s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the condition extends to threatening and abusive conduct. As Campbell J stated at [41] of Ryan No 1: …the condition is broader than s 13 and its appearance in the conditions should emphasise to Mr Ryan, particularly having regard to his anti-authoritarian traits the need to treat those responsible for his supervision with curtesy and respect. If he cannot manage that state of mind, he must not engage in threatening, intimidating or abusive behaviour.

Consideration

The words at the end of condition 4, "cause the staff member to fear for their safety and/or interfere with or impede supervision" have the effect of conditioning and/or limiting and/or restricting the scope of the primary aspect of the condition, namely, to engage in threatening, intimidating or abusive behaviour.
The condition is for the protection of the safety and well-being of staff involved in the supervision of the defendant; it is not directed to the public at large. The condition is also directed to safeguarding the proper operation of the supervision regime.
With respect, I agree with the observations of Campbell J extracted at [80] above.
I reject the submission that this condition duplicates and extends the criminality imposed upon the defendant. I grant condition 4.

Duration of the ESO

The duration of the ESO was contested at the final hearing.
The following submissions were made by the State in this respect, in summary: 1. An ESO should be imposed for a period of three years. 2. Duration is a matter for the Court: State of New South Wales v Brooks [2017] NSWSC 215 ("Brooks"). In Brooks, the defendant was diagnosed with a Paedophilic disorder and Personality disorder. In that case, N Adams J referred to what Justice Hulme said in State of New South Wales v Manners [2008] NSWSC 1376, that the length of the term of the order should be determined by reference to the objects of the Act (in the absence of any provision which expressly indicates how the term is to be calculated). 3. In that context, the determination of appropriate duration is to be made by reference to the consideration of the objective to ensure safety and protection of the community as a primary consideration, but nonetheless bearing in mind the secondary consideration of rehabilitation. 4. In Brooks, (at [85]), N Adams J concluded the following: [85] It seems to me that the most important consideration guiding the exercise of the Court's discretion with respect to the duration of an ESO is the safety and protection of the community. That approach accords with the primary object of the legislation. The rehabilitation of the defendant is a secondary object; necessarily it will yield to the safety and protection of the community in cases where those two objects conflict. 1. The State also referred to her Honour's observation at [86]: [86] Although the material before the Court on this application suggests that the defendant has made some progress towards independent living in the last five years, nothing in the expert evidence, save for the reduction in sexual drive and preoccupation induced by the intramuscular administration of the anti-libidinal medication Depo-Provera, indicates that the risk posed by the defendant to children has declined over that period of time. 1. It was submitted that this Court should come to the same view, by reference to the evidence in this case.
The defendant made the following submissions regarding the duration of the ESO: 1. The decision as to the length of the order is a legal one, not a clinical one. 2. Two years is a significant period in which to monitor the defendant in the community and provides significant scope for professional intervention. This period provides a greater incentive for the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment. 3. It is always open to the plaintiff to seek a further ESO at the end of the period if the plaintiff considers it necessary. 4. The safety and protection of the community and the rehabilitation of a person can exist together: Brooks at [85]. In considering the duration of the ESO, the Court should ensure a balance between motivating the defendant to engage in treatment as well as ensuring the protection of the community. 5. The defendant will be subject to 53 conditions and more intense supervision than he has ever been subjected to before.

Consideration

In relation to the duration of any order imposed, Dr O'Dea opined that an ESO of "at least 5 years" duration is appropriate (with 6/12 monthly reviews). In his report, at [101], Dr O'Dea found that "it would seem reasonable to assume that the [the defendant] has a significant risk of engaging in further sex offending behaviour in the community in the long term." Dr O'Dea's view was that it is unlikely that in three, four or five years' time, the defendant would have progressed to a stage where the risks associated with offending might have dissipated.
In cross-examination, Dr O'Dea emphasised the above view. He stated that "… my view is that the risk or the risk management needs are long term and greater than five years… it's unlikely that in three years or four years Mr Ryan would be at a stage where he would be - his risks would be able to be adequately managed without supervision of some description."
Dr O'Dea's opinion, whilst not determinative on the issue, is highly relevant: see State of New South Wales v De La Torre [2011] NSWSC 1263 (Garling J) at [85]-[96].
Dr McSwiggan stated at [76] of her report that the defendant's attitudes will be "difficult to significant[ly] shift given his inflexible personality." In oral evidence, Dr McSwiggan offered a conditional view about the duration of the ESO. She stated that the ESO should be two years however, also affirmed that "it is likely the defendant will engage in conduct that would breach conditions of the order and inevitably translate to him being subject to an order that is paused for some period as to mean that it will not expire until later beyond the two years."
Dr McSwiggan was not entirely clear in this respect, but she seemed to suggest that, at a theoretical level, a period of 2 years may be suitable, but the expected practical operation of the order is that it will be for a greater (undefined) period.
With respect, I agree with N Adams J's observation in Brooks that where there is any conflict between the objects of safety and protection of the community and the rehabilitation of the defendant, the former takes precedence.
There is no sign of diminution of the defendant's view that it is appropriate to approach children or his views about grooming. He is unwilling to comply with restrictions, evidenced by his history of non-compliance with parole conditions and his denial of having committed any offence based on his 'minor attraction' to underage girls.
Dr O'Dea's evidence is persuasive where he opines that it is unlikely the risks would abate within three years and may require a larger period of up to 5 years.
The duration of the ESO should be 3 years.

DIRECTIONS

The State shall bring in Short Minutes of Order reflecting this judgment by 12:00pm on 20 September 2023.

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 September 2023

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

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