State of New South Wales v Ryan

Chronology of the offending

1. The defendant is a 48 year old man, born in Queensland. He is the youngest of five children, and his parents separated when he was two or three years old. He was predominantly raised by his father due to his mother's inability to care for him and his siblings because of mental health issues. The defendant described having a strict and unstable home environment whilst growing up, which included physical and sexual abuse and neglect.
2. The defendant has a lengthy history of offending, including sexual offending. He has been convicted on five occasions for sexual offences against seven pre-pubescent victims, six male and one female, aged between five and 12 years old, in Queensland and New South Wales. He has been in and out of custody since the age of 19 and has spent most of his adult life incarcerated.
3. On 29 September 2003, the defendant was not prepared to be referred to the Custody-Based Intensive Treatment program ("CUBIT program") or undertake any sex offending related programs. On 6 January 2004, it was noted that the defendant "persistently refuses to complete the sex offender program". The defendant was in continuous custody between 20 May 2005 and 8 May 2009. In January 2008, the same month he became eligible for parole, the defendant's consent to be referred to participate in the CUBIT program was sought and obtained by Corrective Services New South Wales. A second referral was made in July 2008. He was refused parole in the same month.
4. The defendant was assessed as suitable to complete the CUBIT program on 5 August 2008, and commenced the program in January 2009. His sentence expired and he was released from custody on 8 May 2009. He was described as "engaging in a positive manner, motivated and conscientious in completing assigned task[s] as well as work that had not yet been requested; but experienced some challenges". His task work was described as "realistic, though limited", and it was noted that his responses often reflected a limited understanding of the issue in question, on which he could elaborate only after careful questioning. It was noted that he was likely to have considerable difficulty managing his risk of future sexual offending.
5. On 20 April 2012, the defendant was sentenced, following pleas of guilty to the following offences against three male victims aged between seven and nine years old: 1. sexual intercourse with person under the age of ten years contrary to section 66A of the Crimes Act 1900 (NSW); 2. two counts of indecent assault person under 16 years of age, contrary to section 61M of the Crimes Act.
6. These offences, for which he was sentenced in 2012, are "serious sex offences" pursuant to s 5(1)(a)(i) of the Act, as they were offences under Div 10 of Pt 3 of the Act, and offences against a child punishable by imprisonment for seven years or more. Further offences of aggravated indecent assault (victim under 16 years) and commit act of indecency with victim under 10 years were taken into account on a Form 1. The defendant was sentenced to a total of ten years and six months imprisonment, with a non-parole period of seven years, commencing on 11 August 2010.
7. The defendant was referred to complete a custodial sex offender program on 22 March 2013, and was assessed as suitable on 12 November 2013. He followed up this referral on 27 June 2016, 9 January 2017 and 24 March 2017 as he had not been offered a place. On 9 June 2017, the defendant was refused parole, in part because he had not completed the sex offenders program whilst in custody and because post-release planning and accommodation had yet to be finalised. On 4 July 2017, the defendant met with the parole unit and confirmed he did not seek a review of that decision because he understood he needed to complete a sex offender treatment program before release would be recommended.
8. The defendant commenced the CUBIT/High Intensity Sex Offender Program on 31 July 2017. He spent 12 months completing the program and was released to parole on 6 December 2018, with approximately 2 years and three months left to serve. Prior to his return to prison, the defendant participated in the community-based "Maintenance" program with the Forensic Psychology Services between January and April 2019.
9. On 12 April 2019, the defendant was returned to custody for breaches of the conditions of his parole. On 11 April 2019, staff at Nunyara COSP, where the defendant was residing, located a second phone he had not declared, and he was directed to remain at the COSP. The Police Facts allege that in the morning of 12 April 2019, he packed his belongings and left the COSP. He went to work, where he removed his electronic monitoring bracelet and threw it into a gully at the rear of the industrial estate. The defendant was not rostered to work on this day but asked another driver if he could "hitch" a ride with him to the Central Coast. He left in a truck with his co-worker. Police requested that the truck carrying the defendant return to the depot. A short time later, the truck carrying the defendant returned, and he was arrested shortly thereafter. He was charged with destroy/damage property, for which he received a sentence of one month imprisonment and his parole was revoked.
10. Whilst in custody, the defendant was charged with a series of offences committed in March and April 2019. On 17 September 2020, he was sentenced for failure to comply with reporting obligations, use carriage service to solicit child abuse material, contravene prohibition order, possess child abuse material and use carriage service to send indecent material to a person. He received a total effective sentence of two years and 11 months to expire on 16 March 2023, to be released on a recognisance order on 16 March 2022 after serving 23 months' imprisonment. The defendant was released on 16 March 2022, but was arrested again on 23 March 2022.
11. On 24 August 2022, the defendant was convicted of possessing child abuse material and three counts of contravening a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("the CPOPO Act"). He was sentenced to 12 months' imprisonment, commencing on 23 March 2022 and concluding on 22 March 2023, with a non-parole period of nine months, which expired on 22 December 2022. The police facts allege that the contraventions of the prohibition order arose from the defendant sending and receiving letters from two other registrable persons and his possession of a book titled "One People Many Journeys" which contained images of children both clothed and naked. The police facts allege that the possess child abuse material offence related to an exchange of letters between the defendant and another registered sex offender in which they outlined their sexual acts with children.
12. On 22 March 2023, the day of the expiration of his previous sentence, the defendant was arrested and charged with further offences. The defendant approached and spoke to a young male for approximately 30 seconds at Parramatta Westfield. After he was arrested, his phone was searched and police located 36 images depicting young males, aged between five and 16 years. Twelve of those images depicted young males standing naked with their penises exposed and seven of the images depicted young males posing alone or in a group in a sexually suggestive manner. He was remanded in custody until he was sentenced for two counts of contravening a prohibition order under the CPOPO Act, and one count of possessing child abuse material. These offences are the index offences. He was sentenced to an aggregate term of imprisonment of 20 months, commencing from 22 March 2023 and expiring on 21 November 2024, with a non-parole period of 12 months, which expired on 21 March 2024.
13. Given the reasonably short non-parole period, the defendant was admitted to the Short Sentence Intensive Program ("SSIP") at Goulburn Correctional Centre on 28 November 2023, completing the program requirements on 19 March 2024. As part of the SSIP, the defendant completed Getting EQUIP'd CONNECT, Aboriginal Cultural Strengthening Program and NEXUS 3.
14. On 26 March 2024, an application for a Child Protection Prohibition Order came before Waverley Local Court and an interim prohibition order was made in the defendant's absence. On 22 May 2024, an application to annul that order was refused at Waverley Local Court.
15. On 22 April 2024, the defendant was charged with five counts of fail to comply with reporting obligations, and one count of contravene prohibition order under the CPOPO Act. The defendant was granted bail on 22 April 2024, and was released on bail on 24 April 2024. On 25 June 2024, the charges were mentioned at Waverley Local Court. On 4 October 2024, the defendant entered pleas of guilty to the five counts of fail to comply with reporting obligations. He was found guilty of the charge of contravening prohibition order under the CPOPO Act. These matters have been listed for sentence on 29 October 2024.
16. On 8 July 2024, the defendant was arrested and charged with one further count of contravene prohibition order under the CPOPO Act. He was remanded in custody and has entered a plea of guilty. The agreed facts indicate that the defendant contravened the prohibition order by having contact with another registered sex offender. This matter has also been listed for sentence on 29 October 2024.
17. On 22 August 2024, the Sydney District Court allowed an appeal against the Local Court's refusal to annul the interim prohibition order. The interim prohibition order was annulled, and the matter remitted back to Waverley Local Court. On 29 August 2024, at Waverley Local Court, a further interim prohibition order was made. The matter was next listed for mention on 29 October 2024.
18. The defendant's "current custody or supervision" under the Act will expire on 21 November 2024, unless the defendant receives a further sentence of imprisonment for the offences outlined above at [24] and [25] for which he is to be sentenced on 29 October 2024.
19. The Court must determine whether the orders for examination by experts and the ISO should be made under ss 7 and 10A of the Act respectively. If I am satisfied the statutory pre-conditions are met, the question is whether, upon the final hearing of this summons, if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, the Court would be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d) of the Act. In this case, the serious offence is a serious sex offence as defined in ss 4 and 5 of the Act.
20. As noted, the defendant is not contesting the imposition of the ISO, albeit the Court is still to be satisfied it is an appropriate order to make. The defendant concedes that the application is valid; in that it was brought within the appropriate time, it is supported by the requisite documentation and the defendant is an offender against whom such an application may be brought.

The statutory scheme

1. The Act provides a comprehensive statutory scheme outlining the legal test for both preliminary and final supervision orders. In an earlier judgment in the State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561, I set out a summary of the statutory scheme at [7]-[18] and I refer to those portions again. I have taken those matters into account. I am satisfied that the statutory pre-conditions have been met.
2. Further, I am of the view that if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, they justify the making of an ESO. Amongst other things, I have taken into account that the defendant's sexual offending history is long, repetitive and serious. The defendant has acknowledged a deviant sexual preference for children, and he has limited protective factors or support in the community. I also note that numerous evaluations of the defendant demonstrate a high risk of committing a sex offence, within the meaning of the Act. When viewed alongside the defendant's offending history and the matters in the supporting documentation, they, if proven, satisfy me to a high degree of probability that the defendant poses an unacceptable risk of serious sexual offending if not supervised.
3. The only contest which remains for determination is in relation to some of the conditions sought by the plaintiff pursuant to s 11 of the Act.

The proposed conditions

1. It can be observed that the bulk of the proposed conditions for the ISO are not in issue, or amendments have been agreed either prior to the hearing or during the hearing. Accordingly, I will not deal with the uncontentious conditions further, other than to note that I am of the view that they are appropriate. The only conditions I will deal with in this judgment are those that are still opposed by the defendant, in whole or in part, or in order to make clear what was latterly agreed. I note that conditions 10 and 23 are no longer pressed by the plaintiff, and that condition 9 is not pressed if the scheduling conditions (conditions 5, 6 and 7) are imposed.

Conditions 5, 6 and 7

1. The first three contentious conditions are 5, 6 and 7.
2. The plaintiff proposes 5 should read: "If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start."
3. Proposed condition 6 is: "If the defendant wants to change anything in his schedule of movements once it is approved by a DSO [Departmental Supervising Officer], he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period."
4. Condition 7 is proposed to read: "The defendant must not deviate from his approved schedule of movements except in an emergency."
5. The plaintiff submits that the proposed conditions 5, 6 and 7 are appropriate because they permit proactive risk assessment of the defendant's proposed activities and provide scope for a DSO to limit exposure to high-risk environments. They work in tandem with electronic monitoring, to allow supervising personnel to assess whether the defendant is, in fact, adhering to his plans and/or, whether he is engaging in unplanned or impulsive activities that may be suggestive of risks. They provide the DSO some oversight of his movements and input into a structured routine and ensure his identified risk factor of cooperation with supervision is being addressed through proactive strategies.
6. The defendant opposes the imposition of these three conditions and points to the defendant's cognitive difficulties, poor problem-solving skills and susceptibility to spiralling negative emotionality. He submits that the suite of conditions 5-7 is overly onerous and risks exacerbating some of his risk factors. He submits, to the extent this condition would address his risk factors, the outcome could be achieved by the combination of electronic monitoring, place restrictions, a requirement to truthfully answer questions and a general discretion to issue directions. They propose what has become known as "dry scheduling", which is a much less onerous form of providing a plan of movements, and it is proposed that the dry schedule would more properly fit in with the defendant's cognitive state. The plaintiff, having been provided with these arguments, still presses that the original conditions be imposed.
7. I am of the view that it is appropriate to impose conditions 5, 6 and 7 as originally proposed by the plaintiff. Whilst I acknowledge Mr Ryan's cognitive difficulties, they have in fact been factored into the way he has been managed in relation to scheduled activities whilst he was on parole. I have evidence before me that the defendant's supervising team, in relation to his parole, took his cognitive difficulties and poor problem-solving skills into consideration and worked with him to prepare him to comply with his then current scheduling requirements.
8. It is also submitted on behalf of the plaintiff, and I accept, that in the past not every deviation from the schedule would result in a breach action; for example, a deviation that occurred on 20 June 2024 was dealt with via a practice guide for intervention by the defendant's then supervising officer. That intervention was used as an opportunity for the defendant's DSO to have a conversation with him about behavioural change.
9. It is also, in my view, appropriate to impose the conditions as sought, particularly given the defendant's history of opportunistic and impulsive offending. I accept that if the scheduling conditions were not made in the way sought, the utility of the electronic monitoring is also substantially undermined, and the team is unable to monitor the defendant in real time in the community. I also accept that it may assist the defendant develop a routine. It can be used as a tool to assist in planning and structuring his time, and to anticipate his movements and permit the proactive risk assessment of locations and activities that have been proposed by him. It also allows for the random surveillance of the defendant and compliance checks which, given the defendant's history of offending in public places, provides an important way to monitor his associations and interactions and behaviour in the community.

Condition 8

1. As to 8, as agreed between the parties, that condition would now read: "The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements. Approval must not be unreasonably refused; and if refused, the defendant must be notified of the ground(s) for that decision where reasonably possible."

Condition 9

1. As I noted, if I made the scheduling conditions (conditions 5, 6 and 7), proposed condition 9 was not pressed by the plaintiff.

Condition 16

1. The next contested conditions are 16, 17 and 18. I will deal with condition 16 first.
2. It is proposed by the plaintiff that condition 16 read: "The defendant must not frequent or visit any place or district specified by a DSO".
3. The defendant objects to the words "or district" in the proposed condition. It is put that the words "or district" are overly onerous and should not be in place, given that the least restrictive conditions necessary to achieve the purposes of the legislation is the guiding principle.
4. The plaintiff presses for the original condition because, on some occasions, it will be necessary for a DSO to exclude a Local Government Area, rather than an individual location. It would allow a DSO to restrict the defendant's attendance at multiple locations in an area, where individuals identified as being at risk from the defendant may, for example, reside and attend school, without identifying their precise address. It is also submitted that the defendant would be provided with clear detail about a restricted district with a detailed map, often annexed to any formal directions that are issued.
5. I am of the view that cogent reasons have been put forward as to why the condition in the original form sought by the plaintiff is required. I make the condition as originally sought by the plaintiff.

Condition 17

1. It is proposed by the plaintiff that condition 17 read: "Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO: (a) Day-care centres, pre-schools and schools; (b) Shopping centres; (c) Amusement parlours, amusement parks and theme parks; (d) Cinemas; (e) Libraries and museums; (f) Camping grounds and caravan parks; (g) Children's playgrounds, parks and areas with play equipment provided for the use of children; (h) Pools, playing fields and sporting facilities; (i) Concerts, theatre shows, movies, events and activities intended for the entertainment of children; (j) Residences where the defendant knows that persons aged under 18 years ordinarily reside; (k) Community organisations or businesses which provide public access to computer or tablet devices connected to the internet either for payment or for no charge (other than employment agencies)."
2. The defendant proposes amendments to that proposed condition 17. The amendments are these: 1. To delete (b) "Shopping centres"; 2. To delete (d) "Cinemas"; 3. To delete within (e) the words "Libraries and"; 4. To delete (f) "Camping grounds and caravan parks"; 5. To delete in (h) the word "Pools"; 6. To have (i) read instead: "Activities intended for the entertainment of children, including concerts targeted to children, theatre shows targeted to children, movies targeted to children, and events targeted to children"; and 7. To add at the end of (k) the word "library" within the brackets so that the brackets at the end of (k) would read "(other than employment agencies and library)."
3. It is also proposed to add a condition 17A to read as follows: "Without limiting condition 16 above, the defendant must only go to the following (unless with prior approval of a DSO) during school hours on school days: (a) Libraries; (b) Cinemas; (c) Pools."
4. The proposed amendments are opposed by the plaintiff. The plaintiff submits that by requiring the defendant to obtain prior approval before he frequents the locations, a DSO is able to undertake a risk assessment and consider the ways in which the offender's exposure to potential victims can be managed. The form of the condition, as originally proposed by the plaintiff, does not prevent the defendant from attending the locations but, rather, allows a DSO to comprehensively risk assess the activity and manage the risk appropriately. The plaintiff also submits that proposed condition 17A does not consider the potential for activities, such as children's reading groups at libraries, or children's swimming classes at pools, that may occur during school days.
5. The defendant contends that it is appropriate to propose, again, a less restrictive condition to comply with the principle underpinning the imposition of conditions that they should be the least restrictive possible.
6. I have carefully considered that argument, but I am of the view that the condition as proposed by the plaintiff should be imposed. I note, as contended by the plaintiff, it is not proposed that the defendant not be allowed to go to those areas, simply that the risk assessment is enabled by allowing the DSO to conduct a risk assessment, which is appropriate. In my view, condition 17A does not protect the children of our community appropriately, given the activities of the defendant in the past for which he has been found criminally responsible. I note that even though, for example, the school term might be in operation, there is a cohort of children, who are often the most vulnerable children in our society, who do not attend school every day. Those children would still be vulnerable to the defendant if he was at the places prescribed by condition 17 without appropriate supervision, or without the DSO being able to assess, in advance, the appropriateness of him attending. I impose condition 17 in the form originally proposed.

Condition 18

1. As to proposed condition 18, that is proposed by the plaintiff to read: "The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO." This is opposed in its entirety by the defendant.
2. The plaintiff contends that it is appropriate, as it permits the DSO to prevent the defendant from attending or frequenting locations which could potentially amplify risk or place him in an offending scenario. The condition also provides oversight for the DSO to manage sexual pre-occupation, which has been noted to be a risk factor for the defendant.
3. The defendant contends that this condition is not supported by the evidence. The defendant contends that the risk with which the Court is concerned is of sexual re-offending against children, which is not addressed by this condition. Further, it is submitted that to the extent that it would assist in monitoring any fluctuations in his sexual pre-occupation, that aim can adequately be achieved by a combination of other conditions, such as electronic monitoring and the obligation to truthfully answer questions about his location and activities.
4. I have considered proposed condition 18 very closely in light of the submissions made by both parties and also the concession made before the hearing commenced this morning that condition 27 was to be amended, such that it would now read: "the defendant must notify his DSO within 48 hours, if he engages the services of sex workers."
5. The first observation I make is that the amended condition 27 does not sit easily with the current proposed condition 18. The second observation I make is that whilst sexual pre-occupation is obviously of concern to those supervising him, or who would be supervising him, it is children who are the focus of his offending and not adults. He is already being very closely monitored by the scheduling condition that I will impose, together with his electronic monitoring. In my view, the combination of those factors, together with the form of the amended condition 27 and the fact that this is an interim order which has a limited timeframe, persuade me that it is not appropriate to impose proposed condition 18. I decline to impose proposed condition 18.

Condition 22

1. The next condition in contention is proposed condition 22.
2. That condition, as proposed by the plaintiff, is: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO."
3. It is opposed by the defendant in its entirety. It is contended, on behalf of the defendant, that there is a dearth of evidence that an obligation to disclose information about his financial affairs, as directed, would address any of the defendant's identified risk factors. In circumstances where he has a particular vulnerability to feelings of victimisation and grievance, the condition has the potential to diminish his rapport with those supervising him, and undermine the efficacy of the order overall, in exchange for what appears to be very limited pay-off in terms of risk reduction or rehabilitation.
4. The plaintiff, on the other hand, contends that the condition provides a risk management tool to detect any purchases which may demonstrate an increase in sexual pre-occupation, grooming activity, or payment for the subscription to social media applications that could be used to contact child victims.
5. I acknowledge the argument made skilfully on behalf of the defendant in relation to his particular vulnerability to feelings of victimisation and grievance. But, in my view, the condition should not cause him to feel victimised as: 1. It can be observed that he must only provide information relating to his financial affairs if is he is directed to do so by a DSO and, therefore, the information will not necessarily be required every day or every week, or at any regular interval; and 2. Contrary to the arguments put on behalf of the defendant, in my view, it is an appropriate and very effective risk management tool because it can be used as a very "light touch", if I can put it colloquially, to be able to monitor inappropriate activities before they get out of control.
6. In my view, it is appropriate to include proposed condition 22.

Condition 46

1. The penultimate condition for consideration was 46, although that has been broadly agreed that it could now read: "The defendant must not use any other name other than Craig Anthony Ryan, Craig Ryan, C Ryan or C A Ryan without notifying a DSO."
2. The previous criticism, before the original proposed condition was amended during the hearing, was that it was not necessary because of statutory obligations in relation to the defendant having to get approval from the Commissioner of Police prior to changing his name. This condition now is only directed to using another name. As I understand it, in that way, it is not opposed as has now been drafted. I impose condition 46 as I have indicated it would now read.

Condition 47

1. That leads me then to the last contentious condition which is the proposed condition 47. As currently proposed by the plaintiff, the condition is: "The defendant must not significantly change his appearance without the approval of a DSO."
2. An alternative has been proposed by the defendant, that the defendant must notify the DSO within 48 hours if he significantly changes his appearance. It is put by the plaintiff that the original wording is the appropriate wording because, as the defendant currently presents, he has a goatee and long hair. It is submitted that he can change his appearance with relative ease and, if he changed his appearance without prior notification, he would be very hard to surveil or generally monitor.
3. The defendant's argument is that the proposed alternative condition is sufficient for the DSO's purposes if it is notified within 48 hours, and it would be overly onerous if he takes it upon himself to, for example, remove his beard and he has not sought prior permission.
4. In my view, the original wording is the appropriate wording. I understand that it does prevent him from impulsively, for example, removing his beard one morning, but given the nature of this defendant's past offending against children in the community, it is appropriate that any significant change in his appearance needs the prior approval of the DSO in order to properly protect the community.
5. Otherwise, I impose the conditions as ultimately sought and not opposed by the defendant. The conditions I impose are in the annexure to this decision.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant be subject to an Interim Supervision Order commencing on 21 November 2024 for a period of 28 days, known as the "Interim Supervision Order". 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is, for the period of the Interim Supervision Order, to comply with the conditions set out in the Schedule of Conditions of Supervision. 3. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. Appoint two qualified psychiatrists, two registered psychologists, or any combination of two such persons, to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court of New South Wales on the results of those examinations by a date to be fixed by the Court; and 2. That the defendant attend those examinations.

Annexure - Schedule of Conditions of Supervision (48872, docx)

Amendments 17 October 2024 - Insert annexure to judgment 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: 17 October 2024