State of New South Wales v Shields - [2024] NSWSC 1668 - NSWSC 2024 case summary — Zoe

NSWNSWSC

State of New South Wales v Shields

[2024] NSWSC 1668

Supreme Court of NSW|2024-12-13|Before: McNaughton J, Sweeney J, Yehia J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-12-13

Before

McNaughton J, Sweeney J, Yehia J

Catchwords

[2017] NSWCA 189 Lynn v State of New South Wales (2016) 91 NSWLR 636

Source

Original judgment source is linked above.

Catchwords

[2017] NSWCA 189 Lynn v State of New South Wales (2016) 91 NSWLR 636

Judgment (47 paragraphs)

[1]

JUDGMENT

The defendant, Thomas John Shields, is a 48 year old man who has been convicted of both contact and non-contact sexual offending against children. The offences were committed in 2002-2003 and 2018. He is currently subject to an Interim Supervision Order ("ISO") which is set to expire on 24 December 2024. He has been subject to an earlier Extended Supervision Order ("ESO").
The plaintiff, the State of New South Wales, has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act'") by way of amended summons filed on 15 November 2024. The plaintiff seeks final relief in the nature of a two-year ESO subject to certain conditions. The making of the order is opposed by the defendant. Should the order be made, the defendant opposes the inclusion of some of the conditions and/or proposes alternative wording.
On 12 September 2024, following a preliminary hearing, Sweeney J made orders pursuant to ss 10A and 10C of the Act for the defendant to be subject to an ISO commencing on 29 October 2024 for a period of 28 days. On 14 November 2024, Yehia J ordered that the defendant be subject to a further ISO commencing on 26 November 2024 for a period of 28 days.
The final hearing of the plaintiff's application came before me on 13 December 2024. Mr Tembe of counsel appeared for the plaintiff, and Ms Kennedy of counsel appeared for the defendant. I am grateful for their assistance.
The following documentary material was read without objection: 1. On behalf of the plaintiff: 1. affidavits of Catherine Moore sworn on 5 July 2024, 29 August 2024 and 15 November 2024; 2. an affidavit of Angela Rybak affirmed on 31 October 2024; 3. an affidavit of Jessie-Slattery McDonald affirmed on 15 November 2024 (other than paragraph 44); and 4. an affidavit of John Banton affirmed on 11 December 2024. 1. On behalf of the defendant: 1. an affidavit of Tracy Reynolds affirmed on 2 December 2024 (being an affidavit of 54 pages including annexures).

[3]

The statutory scheme

As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of (relevantly) high risk sex offenders so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders to undertake rehabilitation.
The objects of the Act are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].
Section 5B of the Act specifies the circumstances in which the Court may make an ESO (often referred to as the "threshold requirements"): 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 [to be read as s 6 [1] ], 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.
"Serious offence" is defined in s 4 of the Act as a serious sex offence or a serious violence offence. In this matter, the relevant type of serious offence is a serious sex offence. A "serious sex offence" is defined in s 5 of the Act.
Section 5D of the Act provides that the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
The meaning of "unacceptable risk" is not defined in the Act and its meaning was considered by Beazley P of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51]: "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. What the court, therefore, must find to be unacceptable is the 'risk' that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).
An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).
The impact an ESO may have on the defendant's liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That factor, however, may be relevant to the exercise of the Court's discretion pursuant to s 9 of the Act: Lynn at [44], [56]-[58] (Beazley P), [126]-[128] (Basten JA), [148] (Gleeson JA).
In determining whether or not to make an ESO, s 9(2) of the Act provides that the safety of the community must be the paramount consideration of the Court.
Section 9(3) of the Act sets out a list of factors which the Court "must also have regard to […] in addition to any other matter it considers relevant" in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d), and also the exercise of the discretion in s 9 of the Act.

[5]

Relevant offences

Over a month between November 2002 and December 2002, and again in August 2003, the defendant committed a series of sexual offences against a 13 year old girl. Those offences were committed while he was living in Victoria. They involved the defendant kissing the victim on the mouth and having the victim masturbate him on two occasions, as well as him kissing and licking her vagina on two occasions. He did not penetrate her vagina. He was interviewed in 2003, charges were issued in 2005. He moved out of Victoria to NSW in 2004 and was finally charged in 2006. Following some delay, the defendant pleaded guilty to five counts of commit indecent act with child under 16 years of age, and was sentenced on 20 May 2009 to three years and six months' imprisonment with a non-parole period of two years, commencing on 16 August 2007. At the same time, he was made subject to reporting conditions pursuant to the Sex Offenders Registration Act 2004 (Vic) for the remainder of his life.
Between 2004 and 2005, the defendant was convicted of four offences arising out of domestic relationships, where he received sentences ranging from fines to imprisonment.
On 29 May 2013, the defendant was convicted and fined in Mildura for failing to comply with reporting obligations, although it is unclear whether that relates to reporting obligations under the Sex Offenders Register.
On 27 May 2014, the defendant was served with notice of his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), as he had relocated from Victoria to NSW. The defendant was subsequently convicted of the following breaches of failing to comply with the child protection legislation: 1. on 8 September 2017, the defendant was charged with fail to comply with reporting obligations in addition to a charge of providing false/misleading information about his address. This related to the defendant residing elsewhere than his reported address, with his partner; and 2. on 10 May 2018, the defendant was again charged with fail to comply with reporting obligations, along with his index offences outlined below at [24]-[34].
In 2015, the defendant was charged with a property offence again involving a domestic relationship. At the time, the defendant was living out of his car. He visited his partner's home, and they argued over him accessing her phone without permission. After the defendant punched the bedroom door once causing a small hole, she asked him to leave. He agreed. A short time later he returned and asked her to move her car so he could leave, which she did. At some point the defendant hit her car with his, causing the front number plate to be dented.

[6]

Index offences

On 25 October 2018, the defendant was arrested following an investigation by authorities into his online activity.
It was determined that between 9 May 2018 and 11 September 2018, the defendant had been using fictitious online identities to engage with two different online identities he believed were 14 year old girls (who were, in fact, police officers with assumed online identities).
The first instance involved an investigator from Arizona, United States. On 9 May 2018, the defendant contacted the online identity "S" and introduced himself as a 22 year old man, adopting the identity "Kerser". He said his girlfriend was away and it would be good if "S" was there with him. Between 9 May and 2 August 2018, Kerser sent "S" explicit messages, photographs and videos.
The defendant requested "S" transmit naked pictures in May 2018 and had sent various images including photographs of his erect penis, masturbated via a live stream link and sent highly sexually explicit messages to "S". Later that month, there were further conversations that were sexually explicit, including an acknowledgement of the age of "S" and his statement that "we just have to be careful if authorities find out we are bringing you here to have sexual relations with us we are fucked". The defendant recounted a story of having sexual intercourse with his girlfriend's 12-year-old sister and continued to ask the identity for nude images. Between May and September 2018, the defendant contacted the female identity and sent sexually explicit photographs, videos and communications.
On 25 May 2018, the defendant also adopted the online identity "Karen9016" and purported to be a person called Caitlin. The defendant contacted "S" purporting to be a female who had a sexual relationship with Caitlin's cousin who then sent an image of what they claimed was their cousin's penis, and an image depicting an unknown adult male. The following day "S" told Kerser that she had met a girl on social media who was Australian and liked older men. The girl was in fact an online identity assumed by NSW Police, "P".
Offences relating to the second online identity began on 25 June 2018. The defendant contacted "P" and asked her age. He was advised "P" was 14 years of age and he claimed he was 24 years of age and liked younger females. He transmitted sexually explicit pictures and videos and asked for nude images to prove "she" was real. There were further online conversations in September 2018, during which the defendant described having sexually assaulted his 12 year old stepdaughter. He said he had "taken" the virginity of his cousin when she was 11 years old, asked for nude images of "P" and sent an explicit image of his penis. He suggested they meet in person; however, a meeting did not eventuate.
Following his arrest on 25 October 2018, the defendant made some admissions and disclosed that he had invented fictitious details in his communications with "S" and "P".
On 11 October 2019, the defendant was convicted of the following index offences: 1. two counts of use carriage service to groom persons believed to be under 16 years for sex, pursuant to s 474.27(1) of the Criminal Code (Cth) ("Criminal Code"); 2. two counts of use carriage service to solicit child pornography, pursuant to s 474.19(1) of the Criminal Code; and 3. one count of fail to comply with child protection registration reporting obligations, pursuant to s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW).
On 11 October 2019, the defendant was sentenced by Graham ADCJ at Albury District Court to the term of imprisonment of 3 years and 6 months to commence on 25 October 2018, with a non-parole period of 2 years, to expire on 24 October 2020. He was not released to parole.
On 25 February 2022, the plaintiff brought proceedings seeking an ESO for the defendant. He was released at the expiration of his sentence on 25 April 2022 subject to an ISO imposed by Wright J on 20 April 2022. On 5 July 2022, Garling J imposed an ESO on the defendant for a period of two years.

[7]

National Disability Insurance Scheme ("NDIS") Support

As recorded by Ms Cieplucha, Senior Psychologist, Corrective Services NSW ("CSNSW"), in a Risk Assessment Report, dated 20 March 2024, the defendant was referred to the NDIS around August 2022. The application was initially declined. However, he was subsequently assessed as having met access requirements in December 2022 for a moderate to severe hearing impairment. Following a review of his plan outlining his psychosocial impairments in June 2023, an updated plan with a greater level of funding was approved to be implemented from 21 June 2023.
In the Joint Statement of Agreed Facts ("Agreed Facts") tendered at the hearing, it was recorded that the NDIS support included 45 hours of specialist behavioural intervention, and 20 hours of behaviour management plan including training in behaviour management strategies. The defendant has seen Howard Colin-Thome, psychologist at Leichhardt Psychology Practice, since August 2023 and had attended 20 sessions by mid-June 2024. Mr Colin-Thome described him as "travelling well".
On 11 July 2023, the defendant underwent an occupational therapy functional capacity assessment at the Integration Support Centre (ISC) for the NDIS. Following that assessment, a report was prepared which notes that he experiences functional impairments arising from his psychosocial disabilities that considerably impact his everyday life and functioning. I note that they include, but are not limited to amotivation, mental rigidity, impaired social/interpersonal and communication skills, agitation and restlessness, withdrawal and social isolation, fatigue and lethargy, fluctuations in mood, high levels of anxiety and panic attacks, feelings of helplessness and worthlessness, decreased participation in personal and instrumental activities of daily living, feelings of isolation, boredom and emptiness, physical and verbal aggression, PTSD symptoms including hypervigilance, intrusive thoughts, low mood, preoccupation with negative thoughts and flashbacks, irrational and impulsive decision making, difficulties with regulating emotions, significant self-neglect, self-harming behaviours and suicidal ideation.
The report also found the defendant's disabilities had affected his cognitive functioning in a number of areas that "significantly impact on his ability to initiate, engage and execute activities of daily living […] and are especially evident regarding his ability to self-manage his health/medical needs, personal and financial affairs". These areas were: attention and concentration; memory and recall; planning, organising and assembling; processing and understanding information; reasoning, learning, problem-solving, decision making and judgment; monitoring and watching behaviour to ensure that it is socially acceptable; and communicating thoughts, feelings and ideas in ways that others can understand.

[8]

Alleged offending July 2023 - intimidate

On 27 July 2023, the defendant was arrested and charged with one offence of intimidate with intent to cause fear contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). He has pleaded not guilty to that charge and the matter is next listed for hearing at Campbelltown Local Court in April 2025.
It is alleged that on 30 May 2023, the complainant, aged 20 years old, was a passenger, with her mother, on an intercity train when it pulled into Campbelltown train station. Her mother had come to Sydney to collect the complainant who had been staying in Sydney with a friend. The complainant and the defendant were known to each other as he had been in a previous relationship with that friend. The complainant and her mother were meant to board the train from Campbelltown, however, due to information told to them about the defendant, the pair changed their minds and boarded at Central station. The defendant attended Campbelltown train station and remained there for 2 hours. When the train pulled into Campbelltown train station, the complainant recognised the defendant sitting on a waiting chair on the platform, some distance away. As the train came to a stop, the complainant confirmed to her mother that it was the defendant. The defendant recognised the complainant and began pointing in her direction and made a motion with his hand like he was "cutting his throat". The complainant also thought the defendant was saying "You're dead" by reading his lips. This caused the complainant to feel scared and to shake.
On 20 June 2023, the defendant spoke about this alleged offence in his Forensic Psychology Service Maintenance Group. The records note the following: "[The defendant] openly acknowledged that [the complainant] has a 'learning disability' and the 'cognitive ability of a 12 year old' and speaks with a speech impediment, but denied that this was immediately obvious to him when questioned by other group members. Acknowledged that he was attracted to [the complainant] but denied that it was sexual, advising that it was more an observation that she is attractive and nothing more. When queried whether it progressed to a relationship, he denied that this was the case, but acknowledged that they told each other that they liked each other. When queried he indicated that he did not think it would have progressed to being a relationship if her family had not gotten involved."

[9]

Events of August 2023 - 2 x fail to comply with ESO

On 31 July 2023, during a visit by Department Supervising Officers ("DSOs") to the ISC, the defendant asked the DSO their view on his forming a relationship with a 42 year old woman he had recently met through a friend, named AB (a pseudonym). The defendant told the DSO that AB had two children, X, a female aged 18 and Y aged 9 (autistic). The DSO indicated that they could not give an opinion without more information. The defendant provided the DSO with AB's phone number.
On 4 August 2023, the defendant spoke to a DSO by phone. The defendant advised he had broken off his relationship with AB, with AB advising that she did not want the defendant to go to prison. The Offender Information Managements System ("OIMS") note records the defendant's tendency to catastrophise and his difficulty problem solving. The defendant expressed concern about the possibility of being breached and indicated a sense of hopelessness, and that he would "give up" on his relationship and friendships. OIMS notes record that "[the defendant] then started catastrophising, stating he would self-harm and would do what needs to be done to land back in jail." The notes also record that a DSO spoke to AB on that day and had no concerns with her cognitive ability or her understanding of the ESO.
Later that day, DSOs visited the defendant at the ISC where he was living. They gave him non-association directions in relation to all his female supports, including AB and another woman through whom he had met AB. The defendant had a strong emotional reaction to this, began yelling, punched the interview desk and punched the screen door and left the room. The DSO approached the defendant in the courtyard and asked if he would like to continue the conversation in private. The defendant told the DSO to "get fucked. I should just kill myself". The DSO directed the defendant not to leave the ISC for 24 hours or he would be in breach of his ESO.
A DSO Manager spoke to the defendant by phone later that afternoon, seeking to explain that the non-association order with AB may not be permanent. OIMS notes record: "[…] [the defendant] was volatile during this call - raised voice, swearing and accusing ESO of wanting him to fail and to cause enough stress for him to kill himself. He rallied between stating he would go back to jail rather than be torn away from those he loves to speaking of self-harm if he was told no contact could be had. […] [the defendant] could be heard closing doors, he advised manager nothing mattered anymore and he was ending it. […] Noises could be heard confirming [the defendant] had done something, Manager advised [the defendant] ambulance would be sent with him stating he would not see them. He then claimed if Police turned up it would be suicide by cop as he would give them a reason to shoot him."
At this time, the defendant was in his room and was cutting himself with a sharp piece of metal. ISC staff were alerted and entered his room, confirming with the manager on the phone that they were now with the defendant. ISC staff commenced negotiating with the defendant to stop self-harming and hand over the sharp object. After a short time, the defendant complied. ISC staff began administering First Aid and asked the defendant to place a towel over his injury to stem the bleeding, which he did.
The DSO attended the room, and when the defendant saw him, he lunged in his direction, but there was an ISC worker between them. The OIMS note records him saying words to the effect of "fuck you and fuck ESO. You're lucky Eddie is here to stop me from killing you". He accused the DSO of "fucking his life" and making threatening remarks. The ISC worker placed his hands on the defendant's chest to prevent him from approaching the DSO, who immediately vacated the area. Immediately following the DSO's departure, the defendant became passive and compliant again.
Police, ambulance and a community mental health team subsequently attended upon the defendant. He underwent a mental health assessment and was cleared to remain at the ISC. ISC staff implemented a risk management plan which involved checking on the defendant every 60 minutes. This plan continued through 5 August, into the morning of 6 August 2023.
During one of the 6 August 2023 checks in the early hours of the morning, the defendant said he was concerned he would be arrested for trying to hit the DSO, and that he should not have disclosed his relationship with AB. The ISC staff said if he had not, the DSO may have had safety concerns. The defendant stated: "I know, but it's cut me off from my support network and that's when I go off because it's a breach of my human rights."
Later that same day, at about 9:30am, two other DSOs conducted a scheduled visit with the defendant at the ISC. During the conversation with them, the defendant suddenly stood up and said "fuck ESO bunch of dogs" and walked out of the room, slamming the door and going outside before returning to his room.
In a welfare check conducted by ISC staff at approximately 10:15am, the defendant was found to be self-harming by cutting his arm with a sharp implement again. He was spoken to by the same ISC worker and agreed to cease self-harming. He went outside where ISC kept an eye on him until the ambulance arrived at about 10:30am. While ambulance officers were administering treatment to the defendant, police arrived, and the defendant became angry and agitated. He picked up a brick and said things like "you are going to have to kill me" and "Any cunt come near me, I'm [going to] smash this over em" before throwing the brick onto a metal table causing a loud noise. He then came out with a metal pole, about a metre long. Police facts included an allegation that while he was outside holding the pole, he saw two DSOs inside a nearby building and yelled in their direction "I'll smash this fucking pole over your fucking head. You weak fuck". The defendant denies saying this, and neither of the two DSOs recorded hearing the threats.
At some point that morning, the defendant was evicted from the ISC.
The defendant was ultimately conveyed to hospital as an involuntary patient for a mental health assessment, and was discharged later that day. The psychiatric registrar noted that the defendant "describes his self-harm as a mechanism of externalising his inner emotions in a 'safe manner' and, not wanting to hurt others despite his recurrent threats." The registrar's impression was "Acute crisis in the context of further supervision order restrictions and imminent homelessness […] Further hospitalisation at this time is unlikely to be beneficial nor is it able to mitigate chronic risk factors for self-harm, suicide, misadventure or harm to others, and would albeit likely contribute to further maladaptive coping".
On 9 August 2023, the defendant was arrested by Police at his emergency accommodation and charged with two counts of failing to comply with an ESO.
On 10 August 2023, the defendant pleaded guilty and was sentenced for these two counts to a period 9 months' imprisonment, with a non-parole period of 3 months. The defendant was released to parole on 5 November 2023.
In early 2024, the defendant experienced a number of significant health problems resulting in hospitalisation, significant surgery, use of incontinence pads and a walking frame.

[10]

Attempts to engage with a Men's Shed

It can be acknowledged that DSOs are very busy and have many demands on their time. However, in this particular case, it is necessary, in my view, to include the following account (based essentially on the Agreed Facts). This account indicates an apparent failure (or at the very least unexplained substantial delay) on the part of the DSOs to assist the defendant to engage with suitable social opportunities which have been recognised as being important to his rehabilitation.
Men's sheds are run by a community-based, non-profit, non-commercial group to provide a safe and friendly environment for all men. Its primary activity is the provision of a safe and friendly environment where men are able to work on meaningful projects at their own pace in their own time in the company of other men. A major objective is to advance the well-being and health of their male members.
On 28 February 2024, the idea of the defendant participating in the Men's Shed at Kyeemagh was raised by his NDIS worker by email to his DSO. The DSO responded that checks would need to be conducted prior to approval being given.
On 10 March 2024, the defendant stated to his DSO he would be interested in joining a Men's Shed to work on renovating a small boat and develop friendships.
On 24 March 2024, the defendant's NDIS caseworker requested an update from the DSO. On 26 March 2024, the DSO said the Kyeemagh Men's Shed was unsuitable but provided no reasons, and no alternative was suggested. There was no record in the OIMS notes of any inquiries, investigations or discussions about the proposal between 28 February and 26 March 2024.
On 31 March 2024, the NDIS caseworker suggested to the DSO the St George Men's Shed as an alternative to the Kyeemagh Men's Shed. No response was received.
On 30 April 2024, the defendant's solicitor wrote to the DSO about a number of matters including a suggestion that the defendant attend the Hurstville Men's Shed in the company of a support worker.
On 9 May 2024, a DSO visited the defendant. The notes include that the defendant indicated "given his current circumstances he will not go anywhere without his support. He opined that ESO are setting him up to fail given that he is not allowed to associate with people […] [the DSO] attempted to re-direct discussion on opting to engage with prosocial people". There is no record of any pending Men's Shed approval being discussed.
On 14 May 2024, the defendant's solicitor sent a further email to a DSO inquiring whether there was any update on the issues raised in her 30 April 2024 email.
On 22 May 2024, the DSO responded to the solicitor apologising for the delay and inquiring whether responses were still sought to all of the queries given the change in the defendant's circumstances since 30 April 2024. If so, the DSO undertook to seek responses and provide an answer as a matter of priority.
On 28 May 2024, the solicitor responded confirming that a response was still sought in relation to approval to attend the Men's Shed. No response was received.
On 29 May 2024, during a home visit, a DSO observed the defendant to be "quite down and upset". The DSO encouraged the defendant "to get out and about and into the fresh air and do an activity".
On 13 June 2024, during a home visit, the defendant raised that he was trying to get into the Men's Shed. The DSO noted that the defendant was to discuss the Men's Shed with his usual officer.
On 19 June 2024, the defendant's solicitor forwarded her previous email correspondence regarding approval to attend the Men's Shed to a new DSO; and advised that due to his having moved to accommodation in a different area, the relevant Men's Shed was now Canada Bay.
On 21 June 2024, the defendant's solicitor received a response stating that the DSO was awaiting information from Police in relation to both locations of the Men's Shed and that she and the defendant would be informed as soon as that information came through.
There is no record of any inquiries, investigations or discussions about approving the defendant's proposed attendance at the St George Men's Shed between 31 March 2024 and 21 June 2024.
On 28 June 2024, the defendant's DSO sent an email to other members of the supervising team requesting checks be completed on the Men's Shed at Canada Bay. It was noted that concerns were held regarding this location as another person who attended that shed was also subject to the Child Protection Register (for life) and had similar offences to the defendant. The DSO responded that joining this Men's Shed would not be supported and "an alternative will be sought". This is the first record of any inquiries on OIMS being made regarding approval for the defendant to attend a Men's Shed.
There is no OIMS record of:

consideration being given to the proposal that the defendant attend the group only in the company of a caseworker;
a request being made for a check on the St George Men's Shed at any time; or
(over this period) any investigations into alternative structured social or leisure activity to the Men's Shed being proposed to the defendant.

On 2 December 2024, the defendant asked his DSO to have the Hurstville (Carss Park) Men's Shed reassessed. This was to be conducted by his new supervising team which was due to be allocated in the week starting 9 December 2024.

[11]

2024 failure to attend Forensic Psychology Services ("FPS") group sessions - fail to comply with ESO

Over the course of the previous ESO, the defendant expressed to DSOs many times that he was unwilling or unable to participate effectively in group sex offender therapy. He has resisted engaging with FPS group therapy when discussed with him by a DSO and has repeatedly expressed a preference for individual offence focussed therapy.
In early 2024, the defendant's referral to FPS was placed on hold because of his significant health problems. On 15 February 2024, the defendant was issued with a formal direction to attend FPS (in accordance with condition 50). The referral was reactivated, and he had the following appointments (based on the Agreed Facts): Date Event 18 April 2024 Recommenced maintenance group. 30 April 2024 Defendant called FPS to advise he could not attend as he would be searching for accommodation due to eviction from the Community Offender Support Program ("COSP") the next day. 9 May 2024 Called and advised FPS he was unable to attend as he was homeless. Following his eviction from COSP, the defendant was in temporary accommodation which expired every seven days, requiring him to contact or attend Housing NSW to seek approval for further temporary accommodation. At times, he was required to vacate his accommodation before checkout in the morning, attend Housing NSW in person and move back in, or into new accommodation, later in the day. The defendant phone FPS on 14 May 2024 and advised them of his need to attend appointments with Housing every Thursday morning. They provided him with a letter for Housing NSW explaining the need for him to attend FPS and asking them to reschedule the Housing NSW appointment. 16 May 2024 Attended. 23 May 2024 Missed as the defendant was in hospital (discharge papers sent to DSO). 30 May 2024 Missed as the defendant informed DSO on 5 June 2024 that he had been unwell. 6 June 2024 Missed due to a property viewing (the defendant advised his DSO on 5 June 2024 and confirmed by email from real estate agent; DSO reminded the defendant that FPS was a requirement of his order but it appears form the OIMS notes that the DSO did not direct him to reschedule the viewing). 13 June 2024 Missed as the defendant told the DSO that morning he would not attend, again stated he would go if the sessions were individual but that in group he "puts walls up".

[12]

On 19 June 2024, FPS advised the DSO of four unexplained absences - 23 May, 30 May, 6 June and 13 June. From the OIMS notes, it does not appear that FPS advised the DSO of the weekly Housing NSW appointments clashing with FPS nor that the DSO advised FPS of the above explanations. The DSO said that management would be informed for breach discussion and a plan moving forward.
Following this, the defendant missed two further appointments without explanation (on 20 and 27 June 2024).
On 1 July 2024, the defendant had a dispute with his disability support worker and "sacked" him. On 2 July 2024, he was assigned a new support worker named "Mac" (who he had worked with before and considered a friend). On 3 July 2024, he was informed Mac could not be assigned to him, and he requested to be assigned an NDIS registered case worker.
The defendant missed further appointments: on 4 July 2024 (without explanation, although he had been in hospital on 3 July, as advised to the DSO he had been brought to hospital with severe abdominal pain); and 11 July 2024 (without explanation, although he was in temporary accommodation with the associated difficulties identified in the above table).
A written warning was issued to the defendant on 12 July 2024 in relation to the last eight sessions being missed, with no acknowledgment of the explanations he had provided to DSOs. He missed a further appointment on 18 July 2024 because of transport issues which he told FPS about.
On 24 July 2024, the defendant notified the DSOs that he was in hospital, and his temporary accommodation (which was due to expire that day) could not be extended while he was in the hospital. The DSOs managed to extend his accommodation.
On 25 July 2024, DSO and ESO Police discussed that the defendant was to be arrested the following day for breaching his order by failing to attend FPS, however, if he attended or made contact with FPS that decision may change. DSO informed ESO Police that FPS was not running that week because of staff training. The decision was made to arrest the defendant the following day.
On 26 July 2024, the defendant was arrested by ESO Police and charged with fail to comply with the ESO in relation to his non-attendance at FPS. He pleaded guilty and was sentenced on 16 August 2024 to a sentence of 7 months imprisonment with a non-parole period of 1 month dating from 26 July 2024 and expiring on 25 August 2024.

[18]

Report of Dr Carollyne Youssef (Forensic Psychologist)

Dr Youssef is a forensic psychologist who was appointed pursuant to s 7 of the Act.
Dr Youssef interviewed the defendant in a four and a half hour session on 18 October 2024.
Dr Youssef assessed the defendant using the following risk assessment tools, as follows: 1. STATIC-99R: well above average risk of re-offending; 2. STABLE-2007: high level of stable dynamic risk needs, including general social rejection, impulsivity, poor problem-solving, negative emotionality and co-operation with supervision; 3. RSVP-V2 (Risk of Sexual Violence Protocol): identified relevant dynamic risk factors including the following: 1. extreme minimisation or denial of sexual violence - the defendant acknowledges his sexual offending but minimises his role, by claiming that his victims looked older, or attributing his offending to substance abuse; 2. problems with self-awareness - the defendant underestimates the range and significance of each risk factor to his offending; 3. sexual deviance - the defendant has hebephilic sexual interests; that is, sexual interest in early adolescent children, and in particular females; 4. problems with sexual health - the defendant has reported sexual dysfunction as a result of his Klinefelter syndrome - considered a disturbance in his ability to experience satisfying sexual behaviour, which may contribute to his substance use in a bid to overcompensate for his low libido, which in turn increases his risk; 5. problems with intimate relationships - the defendant finds adult women intimidating which has contributed to his attraction to pubescent females. It was also noted that the defendant seeks vulnerable women who have children, suggesting a disregard or lack of insight in relation to the risks associated with these associations; and 6. personality disorder. 1. SAPROF-SO (Structured Assessment of Protective Factors for Violence Risk - Sexual Offence Version): identified the following relevant protective factors: 1. internal capacity - the defendant has not been able to demonstrate a reasonable period of being able to manage his stressors effectively and he requires further work with respect to developing adaptive coping strategies. His coping mechanisms are limited, and he has maladaptive schemas dominating across domains of the self and others/world, leaving him vulnerable to self-defeating thoughts and schemas. The defendant would benefit from further therapeutic support to develop strategies for safely negotiating inadvertent high-risk situations, and to ensure that his sexual expression is not being used to cope with negative situations or preventing him from establishing more emotionally fulfilling connections with others; 2. prosocial identity - the defendant does not appear to be placing himself in high-risk situations since his release; 3. prosocial connection - this is "perhaps" the defendant's most deficient protective domain as he does not work, nor engage in any routine structured activities; 4. stability - lifelong issue with housing and finances [albeit I note that since Dr Youssef prepared her report, the defendant has obtained long-term stable housing]; and 5. professional-provided support - whilst he is currently seeing a psychologist through the NDIS, this does not provide the offence-focussed intervention that he requires.
Dr Youssef concluded that the defendant was in the "Well Above Average" category for recidivism, and there was a "High" likelihood of sexual recidivism, assuming no special management plans were implemented. She opined that he would be at a moderate imminence of sexual offending, and a low-moderate severity of sexual violence (dependant on whether the offence is contact or non-contact), if there are no management plans in place. She stated the case prioritisation rating suggests that the defendant will require a "High" level of effort to implement special management plans that could feasibly and effectively prevent sexual recidivism. Dr Youssef supports the need for an ESO and is of the view that the likelihood of the defendant being able to address his own risk in the community remains low. She noted that some paraphilias are very important motivations for sexual offending, particularly (relevantly) hebephilia. Dr Youssef supports the imposition of an ESO and stated: "The likelihood of [the defendant] being able to [manage his risk] without a further period of intensive support and supervision in the community, considering his general resistance and outstanding needs, remains low." (Emphasis added.)
As for risk scenarios, Dr Youssef identified both an online sexual offence, involving grooming, similar to his index offences, and a contact sexual offence, both involving pubescent females. Unlike Dr Marcelo Rodriguez (discussed below), she did not predicate the contact offence occurring upon the relapse into substance abuse (albeit she contemplated it). I note that the defendant told Dr Youssef that he was sexually frustrated and lonely, and that he engaged in the interactions underpinning the index offending, despite being in a relationship with a woman at the time, to feel less sexually frustrated and less lonely. He indicated that it was when that woman was away for a period of time that he would go online and chat to the online identities.
Similar to Dr Rodriguez's observations, Dr Youssef observed the defendant to be actively engaged in the interview process, attempting to answer questions put to him but was "somewhat guarded when discussing topics related to his offences and sexual interests".
I note that he denied to Dr Youssef, as he had to Dr Rodriguez, wanting to engage in sex, rather, he wanted a meaningful relationship. This, however, is in contrast with the defendant downloading an Artificial Intelligence Application to engage in sexualised conversations when he felt lonely. In one conversation, the defendant was conversing with the bot who was simulating a young virgin female, related to him, and the conversation describes a scene where, despite her protests and crying, the defendant describes penetrating her.
I further note that the defendant told Dr Youssef that he was attracted to teenage girls and their bodies. He also stated: "many young girls want to be with older men, but not the other way around".
The defendant continues to identify his primary risk factor as substance abuse, and since he no longer uses substances, he is not concerned that he will reoffend. Dr Youssef, however, also noted that the defendant also identified the following as risk factors for him: "access to chatrooms, loneliness, isolation and 'seeing a mature teenage girl'." (Emphasis in original.). Dr Youssef noted the following: "A notable risk factor for Mr Shields is his sexual interest in pubescent females, which is amplified in the context of a sense of defectiveness and volatile relationships with women. Whilst his sexual interest in pubescent females is not exclusive, in the context of his chronic sense of emptiness, instability and loneliness, this enhances that risk. Should [the defendant] experience feelings of rejection or loneliness while having access to underage females, it could significantly heighten his risk of offending. If risk factors remain unaddressed or worsen, the likelihood of future offending behaviour will increase. It is essential that [the defendant] makes proactive efforts to broaden his social support. His current lack of support reinforces his dependence on intimate relationships." (Emphasis added.)
Dr Youssef opined that the defendant needed to address his treatment needs, as opposed to maintenance, for a period of 12 months. Importantly, like Dr Rodriguez, she recommended he sees a psychologist who can treat him for his sexual disorder. She noted that since mid-2023, he had been seeing a general psychologist, Mr Howard Colin-Thorne through his NDIS funding. He currently sees him fortnightly as he is also seeing his behaviour support practitioner. She noted that the defendant identified his current NDIS staff as his only supports, including his psychologist, his behaviour support practitioner, support coordinator and his support worker. He said otherwise he does not have anyone else. His interests lie in fishing, electronics, car stereo systems, drawing and tattooing. His plans were to "get off the ESO" as he felt it was obstructive to his reintegration.
Dr Youssef noted that the defendant said he would be open to seeing FPS if could participate in individual sessions rather than group sessions, but further noted that file information indicated that the defendant was offered individual sessions by FPS but only participated in one phone interview and no more. He said he did not find the groups helpful at all. He would find it more useful if he saw someone once every 2-4 weeks to check in on how he was managing his risk factors.
Dr Youssef agreed with the plaintiff's proposed conditions. She noted the importance of the Gambling Condition, as gambling may be a possible substitute for his substance abuse and "emotional dysregulation may be heightened, resultant from the stressor caused by gambling". The defendant said he could spend "hours […] most of the day" on games on his phone and noted that gambling was a problem for him. There was a case note in relation to the defendant self-excluding from gambling apps due to "gambling problems".

[19]

Report of Dr Marcelo Rodriguez

Dr Rodriguez interviewed the defendant in a three hour session on 16 October 2024. He also concluded that the defendant poses a risk of committing a further serious sexual offence, and that risk cannot be managed in the community without an ESO being imposed. He stated: "Synthesis of risk for sexual offending Overall, the combined Structured Professional Judgement approach suggests that [the defendant] possesses many risk factors shared by a group of offenders who are at a High Risk for sexual offending. I agree with others that if [the defendant] re-offends, he is most likely to perpetrate: a) An online non-contact offence against a post pubescent female. b) If he relapses into substance abuse, which increases sexual drive, he could perpetrate a contact sexual offence against a post pubescent female. With increasing age, good treatment, supervision, and high support in employment, finances, access to treatment and safe accommodation will likely ameliorate [the defendant's] future risk […]."
Dr Rodriguez noted the defendant would not discuss certain aspects of his life such as his childhood, and also that the defendant tried to control the interview, would only answer some questions, and used psychological defence mechanisms such as minimisation. He concluded, though, by assessing that he was cooperative and showed restraint.
Dr Rodriguez opined the defendant would attract the following diagnoses: 1. Borderline Personality Disorder ("BPD"), originating from a history of trauma, neglect and disadvantage; 2. Antisocial Personality Disorder (ASPD), characteristic of hostility and oppositional behaviour with clinicians and Corrective Service Officers/ESO team; 3. Complex-PTSD, from being a victim of child sexual abuse; 4. Depression; 5. Substance Use Disorder; and 6. Paraphilic Disorder.
Although Dr Rodriguez stated that any paraphilic disorder is "currently dormant given his self-report of significantly attenuated sex drive", it can be noted that he said to Dr Rodriguez that he had not masturbated for eight years and was suffering from erectile dysfunction. This account can be compared to that provided to Dr Youssef that it was closer to eight months, and that he stopped because he could not climax. Further, in September 2024, he was found to have an empty box of condoms in his room which he told officers were used by him to masturbate. Dr Rodriguez later opined that his paraphilic disorder "will not change significantly", although his sex drive may attenuate with age. Dr Rodriguez stated it was not possible to predict the potential length of the defendant's future offending.
Dr Rodriguez agreed with the same risk factors identified in other reports, highlighting the defendant's serious personality disorder, his demonstrated sexual attraction towards young females and his history of substance abuse. He also noted the following: "His personality vulnerability which results in impulsivity, poor decision making and disregard for society, causes concern. His social isolation, loneliness and instability appears to continue resulting in depressive states, as well as the perennial risk of relapsing into substance abuse. He experiences hypervigilance and hyperarousal and feels rejected. He seems to have engaged in pursuits that increased his isolation and amplified his self-doubt and low self-esteem. He manifests persistent and intractable mood dysregulation when his judgement becomes impaired. Given his personality structure, and his demonstrated attitudes, there are inherent and chronic difficulties supervising and monitoring Mr Shields, particularly when under mood dysregulation."
Dr Rodriguez does not recommend the offender seek treatment from CSNSW but from a private psychologist experienced in sex offender treatment, including treatment for his BPD and Complex-PTSD. He also recommends psychiatric treatment and long-term psychotherapy.
He considered the conditions proposed by the plaintiff, however, noted the following: 1. Condition 6 (electronic monitoring): the defendant should be given the opportunity to work towards the removal of the electronic monitoring within 12-18 months; 2. Conditions 7-9 (schedule of movements): he was not in favour of these conditions noting that the defendant has functioned without restrictions. However, noted if there was a breach for example, because of not attending a medical appointment, he should return to strict scheduling; 3. Condition 13 (visitor staying overnight): Dr Rodriguez did not agree with this, noting that a consenting adult, who is not a vulnerable person, should be allowed to stay if the defendant wishes; 4. Condition 16 (nominated non-visitation locations): Dr Rodriguez did not agree with all the places he would not be allowed to visit, noting that the defendant should be able to visit some of the listed locations without approval for the sake of rehabilitation and his psychological wellbeing; 5. Condition 17 (sale of sexually explicit material) and 28 (sex worker): Dr Rodriguez did not agree with these conditions noting they were not required as the defendant has not offended against adult women; 6. Condition 53 (requirement for assessment or counselling): Dr Rodriguez did not agree with this condition noting that the condition should be mandated by a professional mental health provider rather than a DSO; 7. Condition 56: however, it does not appear Dr Rodriguez read this condition accurately.

[21]

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the defendant committing a further serious offence, the willingness of the defendant to participate in any such assessment, and the level of the defendant's participation in any such assessment (s 9(3)(c))

As part of the 2022 ESO proceedings, two court-appointed experts provided reports for the final hearing in July 2022: Dr Calum Smith, Forensic Psychiatrist and Patrick Sheehan, Forensic Psychologist. Both assessed the defendant at the time as posing a risk of committing a further serious sex offence which could be managed in the community under and ESO.
Both reports were substantially consistent with the reports of Dr Youssef and Dr Rodriguez. Dr Smith opined that his concern that the defendant's insight into circumstances which might trigger offending behaviour was "somewhat lacking". Dr Sheehan described a persistent history of mental and emotional instability, substance abuse and personality disturbance. Dr Sheehan noted that the (then) absence of stable residence was the most immediate consideration, but "more broadly there is in my view a substantial risk of [the defendant] deteriorating and making poor decisions that would elevate his risk of sexual offending."
The most recent Risk Assessment Report is by psychologist Holly Cieplucha, dated 20 March 2024. As summarised by Sweeney J in the recent ISO judgment at [17]-[29] (omitting some portions): "Ms Cieplucha said [the defendant] has previously been diagnosed with borderline personality disorder and substance use disorder. A diagnosis of hebephilia has previously been considered. More recently he has presented with depression and anxiety. She said [the defendant] has completed the EQUIPS [Explore, Question, Understand, Investigate, Practise to Succeed] Foundation and Real Understanding of Self Help (RUSH) Programs and the High Intensity Sex Offender Program to address his sexual offending. She said while in the community he has participated in community based sex offender programs/group maintenance and individual risk management intervention sessions, engaged with community based psychologists and he has access to professional supports through the NDIS. She said [the defendant's] response to supervision under his ESO had been mixed: he has demonstrated a propensity for aggressive outbursts towards his supervising officers and has disregarded formal directions, he has struggled to maintain housing stability, has not secured employment and lacks a stable routine; he has limited social support network and has a tendency to seek out friendships with vulnerable women with cognitive impairments who have children. Using risk assessment tools, his risk of sexual reoffending has been assessed as in the well above average risk range. She said if the defendant were subject to a further ESO, the mitigation of future risk may be enhanced by intensive community supervision and strict monitoring to prevent his opportunity for victim access, and he would remain eligible to participate in group maintenance sessions with community based sex offender programs or individual risk management sessions with a Corrective Services Senior Psychologist. […] Ms Cieplucha said when discussing his Victorian offences the defendant made admissions of arousal towards 13 to 14 year old girls. Ms Cieplucha said: '[The defendant] has a history of sexual offending against post-pubescent females and has continued to make admissions of arousal towards 13 to 14 year old girls. Despite his reports of lowered sex drive at present, this remains of relevance to future risk management.' […] Ms Cieplucha said although [the defendant] does not appear to have engaged in substance abuse over the duration of the order he has demonstrated impulsive behaviour, particularly in relation to financial instability and gambling, housing stability and general emotional control. Ms Cieplucha said: 'Based on his most recent sexual offending, [the defendant's] most likely scenario for future sexual offending would involve non-contact sexual offences. It is likely that he would form a relationship with a younger female either in person or online in a chat room and engage the victim in sexualised conversations that could involve transmission of sexually explicit material. Victims would most likely be females around the age of 13 or 14. He is unlikely to use physical coercion to facilitate an offence but would likely encourage secrecy about their interactions. He may also attempt to meet the victim to commit a contact offence. This would most likely involve kissing and sexual touching, however, could progress to penetrative sexual acts. The likely motivation for his behaviour would be for sexual gratification to cope during periods of loneliness, or when he experiences an emotional collapse… He may report experiencing low self-esteem, feeling lonely or be insecure in a relationship and be fearful of rejection. His risk of sexual offending would escalate in the context of illicit drug use when his sexual arousal is increased, and his decision making capacity and judgment are impaired.' […] Despite being subject to an Extended Supervision Order since 2022, he continues to present with a high density of criminogenic needs. His response to supervision has been mixed… although he has not perpetrated any acts of sexual violence, based on his history and outstanding needs, it is possible that he could commit a future 'serious sexual offence' as defined in [the Act]. […] 'The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when Mr Shields is not under any form of legal restraint.'"

[23]

Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, the willingness of the defendant to participate in any such programs, and the level of the defendant's participation in any such programs (s 9(3)(e)); Options (if any) available if the defendant is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the defendant re-offending over time (s 9(3)(e1))

The defendant has completed EQUIPS Foundation in custody in June 2020, and EQUIPS Addiction in August 2020. In June 2021, he completed the Real Understanding of Self Help ("RUSH") program. He had positive reports from each of these programs.
He also participated in the High Intensity Sex Offender Program (HISOP) between January 2021 and February 2022, but this was partly affected by COVID. He progressed slowly initially and was more motivated around August 2021, albeit there were concerns about how he was treating staff in the program. He was then placed on the Behaviour Management Agreement, with his overall progress described as "mixed".
It can also be observed that the defendant has apparently maintained abstinence from drugs and alcohol despite limited relevantly targeted counselling supports.
As noted, the defendant has had access to and NDIS package through which he has engaged at least two community-based psychologists and has had a number of counselling sessions.
As also noted, there have been problems with the defendant in engaging with FPS group sessions, and he has also had limited engagement with one-on-one sessions, despite being offered the option.
The defendant has also been enrolled in a maintenance group at CSNSW facilitated Community Sex Offender Programs ("ComSOP") on a fortnightly basis. The defendant's ComSOP therapist has advised (as at August 2023) that the defendant's attendance was inconsistent and his contribution to the sessions is largely superficial which prevents him from benefitting fully from the group process.
As to community supports, as noted above, the defendant has minimal supports in the community outside his NDIS supports, and to an extent, his father and stepmother. Although not in a relationship at present, relationships have not been protective in the past, given both the index offending and the offending in 2002-2003 was committed whilst he was in a relationship.

[28]

The ESO should be made

I have already found that the matters in s 5B(a)-(c) of the Act are satisfied.
As to s 5B(d), I acknowledge, as conceded by the defendant, it is not in issue that there is some risk that the defendant will commit further offences. The Act is not concerned with general reoffending, or even sexual reoffending that is not within the definition of a serious sex offence. I have noted the criticisms made by the defendant of the experts' alleged failure to consider appropriately that the defendant is obtaining significant NDIS assistance and is subject to reporting obligations under the relevant legislation. Further, I also note that since the reports were completed, the defendant's housing instability has resolved. I have also considered the types of offences considered by the experts as most likely to be perpetrated by the defendant, and that Dr Rodriguez only considers there is a risk of contact offending should he relapse into substance abuse.
Contrary to the contention put by the defendant, however, in my view it is clear that the experts took into account the level of NDIS assistance as well as reporting obligations at several points in their reports.
Having considered the defendant's skilful submissions carefully, on the basis of the material referred to above, I am satisfied to a high degree of probability that unless supervised, the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, specifically of committing a serious sex offence involving a female pubescent child.
In particular, in noting the opinion of both of the experts, I also take into account the combination of disorders and conditions suffered by the defendant in the context of his chronic sense of emptiness, instability and loneliness. Although he has achieved housing stability, he has yet to achieve financial stability, regular fulfilling activities or a stable friendship group. Whilst he has been abstinent from stimulants for some time, stable on psychotropic mediation and engaged with his own psychologist, this stability is relatively recent, and has been achieved whilst subject to the supervision of an ISO or ESO.
I acknowledge that a common cause of his severe mood dysregulation, stress and negative attitudes is the defendant's frustration with being subject to the ESO. I also acknowledge that it would appear that sometimes the DSOs have been slow to consider, let alone approve, activities such as the Men's Shed (even if in the company of a support worker) which would clearly be beneficial to the defendant. This responsiveness problem, it is to be hoped, is capable of remediation, not least because of the issues which have been brought to light by these proceedings. It is clear the particularities of the defendant's disabilities require ongoing skilful and nuanced handling for optimal results.
In coming to my decision I am obliged to consider the safety of the community as the paramount consideration pursuant to s 9(2) of the Act.
Whilst the NDIS supports are valuable and may, incidentally, eventually help the defendant to reduce his risk profile, they are crafted to assist him with his disabilities and his health. They are not targeted at addressing his offending behaviour. Nor are they targeted at protecting, in a practical way, vulnerable members of the community, in particular girls in their early teenage years.
As highlighted by all the experts, the defendant is affected by a complex combination of disorders and conditions as I have set out in some detail above. When his vulnerabilities are viewed in combination with his past conduct of criminality involving pubescent female children (or apparent children), his ongoing admitted attraction to them, his minimisation of his criminality and his impulsivity, together these factors lead me to form the satisfaction to a high degree of probability that there remains an unacceptable risk of the defendant committing another serious sexual offence if he is unsupervised.
I now turn to whether, having made that finding, I should exercise my discretion to make an ESO. The defendant submits that the Court should exercise its discretion to decline to grant the relief sought as, it is contended, this is one of a rare class of case in which the imposition of an ESO may increase the risk the he commits a further serious sex offence by exacerbating those factors which have been identified as causal, and may undermine his efforts at rehabilitation and at building those factors that have been identified as protective for him.
Again, whilst cogent matters have been highlighted, these do not outweigh the paramount consideration of community safety. In my view, it is undoubtedly appropriate in this case that an ESO be made in order to mitigate the unacceptable risk of the defendant, notwithstanding his comparatively recent engagement with NDIS support services which seem to provide him with some real benefits.
When looked at as a whole, I do not accept the defendant's submission that a further ESO would exacerbate rather than reduce the risk of the defendant re-offending. The structure and supervision provided by an ESO is simply not available via the NDIS. Nor does it provide him with offence focussed therapy. Further, the involvement of the NDIS is comparatively recent. Whilst his housing also now appears to be settled, he has yet to develop a stable routine or a stable supportive social network which he could maintain in the long term.
The threshold provision, s 5B of the Act, is therefore satisfied. Further, on the basis of the matters identified above, I am of the view that pursuant to s 9 of the Act, I should make an extended supervision order, subject to conditions.

[38]

Proposed Condition 16

The plaintiff proposes a condition that the defendant not go to certain places without the prior approval of a DSO. The locations which the defendant does not oppose being included (and which are sought by the plaintiff) are High Schools; amusement parlours, amusement parks and theme parks; public pools and playing fields; concerts, theatre shows, movies events and activities intended for the entertainment of children; or residences where he knows that persons under 18 usually reside.
Locations which the defendant contends should not be included in the list (and which are also sought by the plaintiff) are:

cinemas;
libraries and museums;
camping grounds and caravan parks;
children's playgrounds and parks;
non-public pools and sporting facilities; and
internet cafes or places where internet access is provided through a shared or public device.

First, as to cinemas, it is contended by the defendant that this need not be included in the list as a direction could be issued pursuant to Condition 15 to prevent, for example, the defendant from attending the cinema during school holidays. In any event, the offending risks are where there is a relationship in existence, rather than random offending with people previously unknown to him.
I note too that the defendant is subject to electronic monitoring and may need to provide an indication as to his anticipated movements. I am not of the view that this location needs to be included in the condition as any risk can be addressed less restrictively through other conditions.
As to libraries and museums, in my view these are in a slightly different category to cinemas. Whilst the defendant points to the same arguments as he submitted in relation to cinemas, I am of the view that libraries and museums can be places where people (such as the defendant) can stay for lengthy periods of time, and return, without attracting attention. I am of the view that these places could present a risk if the defendant started to develop relationships with unsupervised young teenage girls in these settings. I will retain these locations in the condition.
As to camping grounds and caravan parks, it is put on behalf of the defendant that this would prevent him from participating in his favourite pastime of fishing as these places are the most affordable accommodation options. Further, Condition 15 could provide a safety net; in that, he could be given a direction not to go to those locations during school holidays when there would be more children there.
I note, however, that some families live permanently in caravan parks, and in certain circumstances, people may live in camping grounds for extended periods of time. It may be that such families would have children. I am of the view that these locations should be included in the condition.
As to children's playgrounds and parks, it was first submitted that children's playgrounds did not attract the age cohort at risk from the defendant. It was further submitted that parks was so general that on its face it could include national parks where he may engage in fishing activities.
I am of the view that it is necessary to include both of these locations in the condition. Young teenagers can frequent children's playgrounds as they can be regarded as safe spaces to congregate without adult supervision. Parks should be included as some of these locations could include places where young teenagers congregate either generally, or sometimes with a view to finding a willing adult to purchase alcohol for them. The defendant could conceivably be a target for a such a request.
It is not too onerous to have the defendant seek approval to attend a park for the purposes of fishing. In my view, given the safety of the community is the paramount consideration, this part of the condition should be worded as sought by the plaintiff.
As to sporting facilities, I am of the view that given the number of young teenage children who may be attending such facilities, not always fully supervised, it is appropriate to include this location in the condition.
As to internet cafes or places where Internet access is provided through a shared or public device (which was modified from an earlier proposal by the plaintiff), I agree with the defendant that this current wording (that is, "shared or public device") may capture Wi-Fi routers (as a "device"). Whilst I note that that the plaintiff contends that this is not a correct reading of the term "device", I am of the view that the proposed condition, as worded, is ambiguous and capable of misinterpretation. I am of the view that this condition may be so broad that it may capture shopping centres and other like places and would be impractical. Further, I agree with the defendant that the proposed (unopposed) Conditions in Part I sufficiently address the risk. I therefore decline to include this part of the proposed condition.

State of New South Wales v Shields

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (47 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (14)