State of New South Wales v Stevenson - [2019] NSWSC 778 - NSWSC 2019 case summary — Zoe

NSWNSWSC

State of New South Wales v Stevenson

[2019] NSWSC 778

Supreme Court of NSW|2019-06-13|Before: Hulme J

At a glance

AI case summary

Result

appellant. Extended supervision order granted for three years with modified conditions: (1) prior approval of schedules of movements not required (but may be reinstated on breach); (2) electronic monitoring...

Key principles

The paramount consideration in determining whether to make an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) is the safety of the...
The Court must be 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 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...
Despite significant protective factors including a stable relationship, employment, abstinence from alcohol for over six years, and compliance with supervision, the Court found a...

Issues before the court

Whether the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence...

Plain English Summary

The Supreme Court of NSW ordered that Jason Stevenson be subject to an extended supervision order for three years to manage his risk of committing further sexual offences against children. While Mr Stevenson had made progress—staying sober, holding down jobs, and being in a stable relationship—the Court found he still posed an unacceptable risk due to his ongoing sexual interest in children and history of dishonesty about his fantasies. However, the Court rejected some of the State's proposed conditions, ruling that Mr Stevenson should be allowed to live with his girlfriend (as the relationship helped reduce his risk) and that he should not have to get prior approval for every movement or be electronically monitored, given he had generally complied with supervision and experts questioned whether these strict measures were necessary. The Court emphasised that such intrusive conditions should only be used when clearly needed.

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Judgment (18 paragraphs)

[1]

Solicitors: Crown Solicitors (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/40665

[2]

Judgment

HIS HONOUR: This judgment concerns an application by the State of New South Wales for the Court to order that Mr Jason Stevenson be the subject of an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for a period of three years.
It should be noted that the State initially sought an ESO for a period of twelve months. An Amended Summons was filed by leave at the final hearing; the amendments being concerned with extending the ESO to three years and fine-tuning some of the proposed conditions.
An interim supervision order (ISO) was made after a preliminary hearing: State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492. Orders were also made for the appointment of experts to provide reports in relation to Mr Stevenson. The Court now has the benefit of the reports of Dr Adam Martin, forensic psychiatrist, and Ms Jenny Howell, psychologist. They gave evidence concurrently at the final hearing on 13 June 2019.
There is no controversy about any of the statutory prerequisites for the making of an ESO except for the ultimate issue: whether the 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": s 5B(d) of the Act.
Two statutory provisions are worth noting at this point. First, s 5D provides that the 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". Secondly, a "serious offence" relevant to the context of this case is a "serious sex offence" as defined in s 5(1) of the Act.
I do not intend to repeat much of what was written in the preliminary hearing judgment. This judgment should be read in conjunction with it. However, I will refer to some matters that seem to be of particular significance.
Mr Stevenson's index offences were committed in January-February 2010. They comprised five offences of having sexual intercourse with a person aged 14 to 16. In their essence, he had "consensual" intercourse with a 15-year-old child on a number of occasions over a three week period. He was sentenced in the Local Court on 19 August 2011 to imprisonment for 20 months with a non-parole period of 13 months. The magistrate found that the offences were at the lower end of the scale of seriousness for such offences.
Mr Stevenson has not been convicted of any other offences that had a sexual aspect as an element. He has, however, committed offences which nonetheless had a sexual aspect to them. There have also been some incidents which, while not amounting to criminal offending, give rise to concern.
In 2005, when Mr Stevenson was aged 18, he assaulted school girls on two occasions - one aged 13 and the other aged 7 - by grabbing them and trying to drag them away before they escaped. In an interview in 2013, he told Dr Andrew Ellis, forensic psychiatrist, that he had sexual fantasies about school-aged girls. He said that he engaged in this fantasy and masturbatory behaviour as younger girls "like me for who I am". The 2005 offences occurred in the context of him engaging in this fantasy and he "couldn't keep it in any more". He told Dr Ellis that he attempted to grab the schoolgirls in an attempt to initiate some kind of sexual activity with them. [1]
He said much the same thing about his interest in school-aged girls to Dr Jeremy O'Dea, forensic psychiatrist, in 2013, but he denied that the offence with the 13-year-old girl was motivated by this interest, and claimed not to remember the offence with the 7-year-old girl. [2]
Dr Ellis made a number of diagnoses, including "paedophilia, attracted to females, non-exclusive type" and concluded that Mr Stevenson "would fall into a group of persons with a risk of offending that is high, and greater than a theoretical average offender". [3]
Dr O'Dea found there was evidence of Mr Stevenson having a sexual interest in pre-pubescent children and a homosexual paedophilic interest. He assessed Mr Stevenson's risk of committing a further serious sex offence as significantly high. [4]
There are other episodes in Mr Stevenson's history that are consistent with him having a sexual interest in, or at least him having engaged in sexually-based thinking about, under-aged girls. These episodes are described in the preliminary judgment. [5]
Mr Stevenson was the subject of an ESO imposed by Price J on 8 August 2013: State of New South Wales v Stevenson [2013] NSWSC 1070. It was for a four year period but he was twice sentenced to terms of imprisonment for breaching the order. The latter breaches occurred at the tail end of the order after the stringency of the conditions was reduced. Periods in custody extended the term of the order so that it did not expire until 8 October 2018. Thereafter, he was on parole until 6 May 2019.
Mr Stevenson is presently subject to the ISO imposed on 3 May 2019. He is also subject to the provisions of the Child Protection (Offenders Registration) Act 2000 (NSW) and a child protection prohibition order (CPPO) made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). That order will not expire until 2023.
Mr Stevenson has been in custody serving sentences of imprisonment on four occasions: 23 June 2011 to 20 October 2012; 22 February 2013 to 20 May 2013; 30 October 2013 to 24 July 2014; and 7 February 2018 to 6 October 2018. He completed his only formal rehabilitation program, a 10 month "Self-Regulation Program - Sexual Offending", in 2011-2012. As best as I can gather from his history, he has not been in the community without any form of supervision since at least 2010.
Mr Stevenson has had a problem with alcohol in the past. In 2013, he was diagnosed by Dr Ellis as meeting the criteria for "alcohol dependence disorder". [6] He was then in remission in a controlled environment (prison). He claims to have been abstinent for more than six years. He is a regular attendee at Alcoholics Anonymous (AA) meetings.
Mr Stevenson has been in a relationship with a mature woman since early last year. She is aware of his criminal history. She attended court with him at the final hearing.

[3]

The evidence

In its case, the State tendered the usual large volumes of documentary material, most of it the same as that within the usual large volumes of documentary material that it tendered at the preliminary hearing. There is clearly a need for the volume and the duplication of material tendered by the State in proceedings of this type to be sensibly reconsidered: see the observations of Hamill J in State of New South Wales v Schmidt [2019] NSWSC 764 at [13]-[14]. One of his Honour's remarks was that it was "unhelpful" for the State to tender voluminous file notes made by Corrective Services officers. [7] In the present case, there were over 500 pages of such notes, many duplicating the hundreds of pages tendered at the preliminary hearing. No more than ten were referred to in submissions.
The defendant's case involved the reading of affidavits sworn by Mr Stevenson and his partner, Ms Janelle Roach.
Mr Stevenson's affidavit included his account of the various hiccups he had experienced since the making of the ISO. By and large, his time subject to the ISO has been without any incident of concern. His supervision had been transferred from a team at Campbelltown to one at Blacktown and he has been getting along well with his direct supervisor. Having to provide a schedule of movements in advance for approval and having to submit to electronic monitoring are the two aspects of supervision that cause the most anxiety for Mr Stevenson. That is not surprising considering the length of time he has been subjected to such conditions. He said "I haven't deviated from my schedule or got into trouble for going places I'm not allowed to". [8]
Mr Stevenson also provided an account of his recent loss of employment and what he had said about it to the two court-appointed experts.
Mr Stevenson lives in a suburb near Liverpool and his partner lives at Campbelltown. They want to live together but this has not been permitted. In addition to frustrating their desire to live with each other, they both find this financially stressful. Mr Stevenson has been told that "they" want him to take the relationship slowly and have only allowed him to stay with Ms Roach two nights per week. He has been told that the issue will be the subject of further consideration in about three months.
Mr Stevenson hopes to be able to move to the regional country centre where his family live. His partner gets along well with them and wants to make the move with him. They cannot make any plans about this because of the restrictions of his supervision.
Mr Stevenson said that he has been in contact with his general practitioner and has been prescribed medication for his anxiety which has been partially successful. He also continues to see a psychologist who he is comfortable with and who he plans to continue seeing even if there is no ESO.
Mr Stevenson also confirmed that he had been attending AA meetings regularly since he was released from gaol last October. He thinks that he should keep this up for the rest of his life.
A report of Dr Mark Milic, clinical and forensic psychologist, dated 10 June 2019 was annexed to Mr Stevenson's affidavit. Dr Milic confirmed that Mr Stevenson had been seeing him since 2014 for approximately 10-15 consultations per year. He said he last saw him on 9 June 2019.
Ms Roach confirmed in her affidavit that she had been in a relationship with Mr Stevenson since early last year. She said she is aware of his criminal history and of the ESO proceedings. She had read the reports of the two court-appointed experts. She is aware of the prohibition upon Mr Stevenson having any contact with children.
Ms Roach provided an account of Mr Stevenson's recent termination from his employment. She had discussed the issues which arose with his departmental supervising officer. She added that if she thinks he is getting "off track or going back to his old ways", she would be comfortable speaking to people about it including his family, his psychologist and, if needed, the police. [9]
Ms Roach also gave an account of the difficulties and frustrations they are experiencing in their relationship because of the intrusion of supervision. She confirmed that a supervising officer had advised, "[y]ou need to take it slow", [10] and that she had recently been told that the question of them being permitted to live together is going to be revisited in another three months' time. She also confirmed that the pair would like to move to be nearer to Mr Stevenson's family.
Another source of frustration is the requirement to obtain approval for schedules of movements and electronic monitoring. She says there has been some inconsistency in the application of rules in relation to how precisely the movements need to be spelt out; for example, when he plans to go to a shopping centre, and whether he needs to provide specific details of which shops he wants to go to for approval.
Neither Mr Stevenson nor Ms Roach were cross-examined on their affidavits.

[5]

Ms Jenny Howell's report of 4 June 2019 [11] and evidence at the hearing

Ms Howell interviewed Mr Stevenson on 24 May 2019. It emerged during her evidence that she also attended his home on a Saturday. [12]
Ms Howell attempted to make a cognitive assessment using the Wechsler Abbreviated Scale of Intelligence - Second Edition. The results were a Verbal IQ of 55, Performance IQ of 84 and a Full Scale IQ of 68. The latter was "not a useful descriptor of his overall functioning" because of the large divergence between the two component scores. [13] Nevertheless, he may be regarded as having a mild intellectual disability. [14]
Ms Howell assessed Mr Stevenson with the Static-99R instrument and found that he was in the "Well Above Average risk level" of being charged with or convicted of a further sexual offence. [15] As the name suggests, this is an assessment confined to static factors that will remain largely unchanged over time.
The STABLE-2007 actuarial measure yielded a result suggesting "a moderate level of criminogenic needs relative to other male sex offenders". [16]
The Risk of Sexual Violence Protocol enabled Ms Howell to identify dynamic risk factors associated with Mr Stevenson's risk of sexually re-offending across all five of the instrument's domains.
Ms Howell considered that Mr Stevenson exhibited some of the diagnostic criteria for Borderline Personality Disorder and Antisocial Personality Disorder.
In addressing a question posed in her letter of engagement as to whether Mr Stevenson poses a risk of committed a further "serious offence", [17] and, if so, the level of such risk, Ms Howell's report contains a discussion of relevant aspects but does not provide a direct answer. She summarised the result of the testing she carried out as suggesting "his risk is in the Well Above Average range to commit a further sexual offence". [18] She described his sexual offending as being "chronic in terms of frequency and persistence, diversity in terms of victim age, [and] the degree of relationship to the victim". [19]
She also said that "Mr Stevenson's risk of recidivism can be managed effectively in the community under an Extended Supervision Order". [20]
Although she did not include it in her report, Ms Howell said that Mr Stevenson had told her that he had, in the past, experienced intrusive fantasies around teenage girls. [21] Whilst she said in her report that he did not meet the diagnosis for paedophilia, when confronted with the facts concerning the carriage service offence on 13 June 2010, [22] she appeared to concede that might not be correct. [23]
When pressed for an opinion about the level of risk of further serious offending, she referred to the static and dynamic factors. Factors she identified as "protective" were his current relationship; that Mr Stevenson had not been drinking for over six years; and the prospect of him being in full-time employment (although he had recently lost a job, he had a new job to start on the Monday following the hearing). [24]
Ms Howell was asked to consider the scenario of Mr Stevenson being out in the community subject only to registration under the Child Protection (Offenders Registration) Act and the CPPO. [25] Her responses were to the effect that the additional monitoring, interaction, and supervision afforded by an ESO were necessary to manage his risk of committing a further sex offence. She said: "WITNESS HOWELL: I think the risk is ‑ I don't know whether the word is "lessened" but I think it's we'd be more able to monitor it and support him, more able to provide treatment and understand how that is going, more able to support him around his day‑to‑day life if he is under an ESO because there is feedback and there is comment and there is interaction with real people. I think if there's no interaction, one of the things that Mr Stevenson requires in some respects is being able to talk about thoughts and he's relatively impulsive and he also struggles with managing emotion, he struggles with managing decision making. I think the ESO is able to support him around those issues. Whereas the child protection prohibition order doesn't have the level of interaction with an individual who understands where you are at, what the order is about and what things you are required to do and can help you manage those. LEWER: And is that support necessary to manage his risk of committing a further sex offence? WITNESS HOWELL: I think so."
During the course of cross-examination and in the context of questions about some of the proposed conditions of an ESO, Ms Howell indicated that she agreed with Dr Martin about risk. (Dr Martin's opinion is set out below at [49].)

[6]

Dr Martin's report, 5 June 2019 [26] and evidence at the hearing

Dr Martin interviewed Mr Stevenson on 29 May 2019.
In his report, Dr Martin included an account of what Mr Stevenson said about his prior offending. It is of some significance that Mr Stevenson denied that the assault offences concerning the school girls in 2005 were sexually motivated (in contrast to the account given to Dr Ellis in 2013). In relation to the index offending, he claimed that the victim told him that she was 17 and he believed that until she later told him she was 15. He was unable to recall if he had continued the sexual relationship after he found out her true age.
Although he did not have any formal test data available, he said that Mr Stevenson's presentation language skills were consistent with a person with fairly low intelligence. He considered he "probably can be diagnosed with paedophilic disorder". This was based upon collateral information as Mr Stevenson denied paedophilic interest. He also diagnosed "alcohol use disorder, currently in remission". He said that Mr Stevenson's criminal history was "highly suggestive" of his having an anti-social personality disorder.
As to the risk of Mr Stevenson committing a further "serious offence", Dr Martin wrote: [27] "In my opinion, Mr Stevenson should be considered generally at high risk of future serious sexual offending, although this risk will vary depending on amount of support he receives, his level of monitoring and supervision, and will be partially dependent on changeable factors such as relationship status and his capacity to abstain from alcohol. In my opinion, the most relevant factors in relation to future risk are his history of offending, both sexual and non-sexual, history of alcohol use (which represents a chronic vulnerability as people who have been dependent on alcohol are prone to relapse), and a history of poor coping skills, emotional dysregulation and vulnerability to stress. His history of sexual interest and behaviour in relation to young women is of most concern. There are multiple separate examples of concerning behaviour involving teenage girls (eg having pornographic image of young teenage girl on his phone, 2012, and having a 16 year old homeless girl in his bed while at the COSP, 2013). His history is strongly suggestive of problems with sexual regulation which has been directly linked to offending. The risk factors are likely to be enduring over many years. Without assertive management and supervision, it would not be surprising if there were to be further problems of a sexual nature including the likelihood of future sex offending. Risk might be reduced by him engaging in a stable age-appropriate relationship. Risk will be reduced by external measures such as limiting his contact with people under the age of sixteen. If he were to relapse into alcohol use, this would increase his risk of problematic sexual behaviour. The risk factors can be mitigated to an extent by him continuing to engage in appropriate psychological or psychiatric treatment."
Dr Martin considered that the risk of serious sexual offending "can be significantly mitigated by supervision through an ESO in the community". [28]
In his oral evidence, Dr Martin further explained the basis of his assessment of Mr Stevenson's high risk of serious sex offending in the future: [29] "I haven't made a prediction of his future behaviour because it is impossible to predict what an individual is going to do. You can say that he has a large number of factors which have been associated in groups with future problematic behaviour, and those factors are the history of sexual offending, the history of relationship problems, alcohol use in the past, the problems he has had regulating his emotions with anxiety and depression. There are other issues such as previous breaches, there's other antisocial behaviour, shows, demonstrates to me that he has got some problems with impulsivity and controlling his behaviour. Putting those together and considering other risk assessments, including Ms Howell's risk assessment which I didn't have access to at the time but I have reviewed, but looking at the other risk assessment reports and the other psychiatry reports, it's pretty consistent that people have shown ‑ have found that he has got a large number of factors which put him in a group which would be considered at high risk."
Dr Martin did not regard registration under the Child Protection (Offenders Registration) Act or the CPPO as an adequate safeguard against risk because there was no monitoring or supervision; intervention would only occur after a breach had occurred. [30]

[7]

Cross-examination of both experts

Dr Martin agreed, as did Ms Howell, that whilst a stable relationship was important (as militating against further offending), the intrusion of supervision and the current stipulation that he not be permitted to reside with his partner risked undermining it. [31] Ms Howell said quite specifically, "it is my view that they should be able to live together. I think it is a protective factor for him". [32] Dr Martin agreed, assuming the relationship was a stable one. [33]
The experts agreed that it would be productive for Mr Stevenson to be seeing a counsellor skilled in relation to sex offending. He has been consulting a psychologist on a fairly regular basis, but that seemed to be more concerned with general coping skills. [34]
Dr Martin readily accepted that there were a number of positive protective factors in Mr Stevenson's favour, but he said: [35] "But the risks are ‑ you know, there is no way of getting around this, but those risks aren't going to go away in the coming years. I think he is going to remain at risk, based on his history and the risk factors I've highlighted."
Towards the end of their evidence, the experts were invited to comment about the level of risk presented by Mr Stevenson in light of the significant period of time that had elapsed - almost six years - since his last transgression that related to teenage girls. [36] Ms Howell responded by reference to the various protective factors she had described earlier, saying she thought they "probably do moderate the need for an ESO and the number of conditions of that ESO". [37] Dr Martin acknowledged that the static factors would always be there; it was the dynamic factors which were important. He said: [38] "But my view is that I do regard him as at significant risk of future offending, sexual offending, unless there is adequate oversight monitoring management. The reasons are there is a whole range of problematic sexual behaviours and some of them have involved children and we know that a certain proportion of people are likely to repeat that behaviour and the question which can't be answered is without the supervision thus far, would he have repeat offended. And I think there is a strong chance that he may well have done, but who knows."

[9]

Submissions as to whether an ESO should be made

The written submissions for the State provided a useful discussion of a variety of relevant matters and concluded with the submission: [41] "…that given the defendant's chronic and long-standing sexual interest in teenage girls, his mixed success while supervised and limited treatment gains to date, the defendant continues to pose an unacceptable risk for the commission of a further sexual offence, should his supervision under the ISO lapse".
The submissions for Mr Stevenson highlighted the significant period of time that has elapsed since he had committed any offence with a sexual element in relation to an underage female. They also highlighted the fact that of all the breaches, either of the conditions of parole or the prior ESO, the last that concerned an association with teenage girls was in October 2013.
It was submitted that breaches of the previous ESO have been "of a management nature rather than of his re-offending". [42] I note in relation to this, however, that many conditions of an ESO that might be characterised as "of a management nature" are usually there because they assist in the management of an offender's risk of committing a further serious offence. Breach of such conditions can therefore reveal much about the offender's acknowledgement of his/her risk factors.
Much weight was placed upon the extent to which Mr Stevenson has been able to reintegrate into the community following his release on parole last October: his employment; his relationship with Ms Roach; his engagement with counselling; and his continued abstinence from alcohol and regular attendance at AA meetings. It was submitted that factors such as these will continue the course of rehabilitation even if no ESO was made. I noted in the preliminary judgement another factor of significance in this regard; Mr Stevenson's application to have a condition added to his CPPO prohibiting his access to and use of social media, an identified risk factor. [43]
It was submitted that the manner in which Mr Stevenson had dealt with his recent loss of employment (having found a new job already), in addition to the pressure that the circumstances giving rise to that loss of employment placed on his relationship, tends to provide evidence of his ability to confront difficult situations without reverting to the patterns of behaviour that led up his previous offending.
It was submitted that a further protective mechanism now in place is that Mr Stevenson has people around him who are aware of his background and his offending history. Mr Stevenson's employer at the bakery where he was expected to start work last week had employed him prior to his re-entering prison early last year, and that employer was prepared to re-engage him notwithstanding knowledge of his history. Similarly, Ms Roach is obviously well aware of all of the details and has demonstrated that she is prepared to talk not only to Mr Stevenson, but also to his family if difficult issues arise.

[10]

Determination as to whether an ESO should be made

In determining whether to make an ESO, the paramount consideration is the safety of the community: s 9(2) of the Act. It is also necessary to have regard to the matters listed in s 9(3) of the Act. I have done so.
The State accepted that Mr Stevenson had been compliant with the conditions of his parole and of his ISO. [44] But it is a concern that he has been under fairly strict supervision in the community for a very lengthy period of time. When the conditions of his previous ESO were relaxed in their stringency in the latter half of 2017, he fairly quickly lapsed into breach. Notably, however, the breaches were of regulatory-type conditions like failing to inform his supervising officer of a relationship he had commenced. That is not to ignore the fact that such conditions were in place as part of a regime to manage risk. However, there has been no suggestion of Mr Stevenson showing any interest in teenage girls which was at the core of his prior offending.
There are a number of features that militate against the making of an ESO. The index offences occurred a considerable time ago, and they were found by a magistrate to be towards the lower range of seriousness for offences of their type.
Mr Stevenson clearly has a number of stabilising features in his life now that were not present - and certainly not in the present combination - in the past. This is a reference to matters like those referred to above at [61].
The constraints imposed upon Mr Stevenson by the Child Protection (Offenders Registration) Act and the CPPO, to which he will remain subject to for the next four years are significant matters. They provide a continuing reminder to him of the need to avoid situations of risk, with the threat of further imprisonment if he falls into breach. It is necessary, however, to have regard to Dr Martin's concern about the lack of monitoring and supervision provided under these regimes.
Acknowledging all that has been put in the submissions of Mr Stevenson's counsel, particularly those just mentioned, it is necessary to also pay heed to the expert assessments, particularly that of Dr Martin, as well as those of Dr Ellis and Dr O'Dea in 2013. There is a consistency in their concerns about Mr Stevenson's risk of committing further serious sex offences, although Dr Martin readily acknowledged that the risk had abated somewhat in more recent years.
Despite the abatement of his risk, Dr Martin maintained that the chronic and enduring condition of paedophilia may dispose Mr Stevenson to the urges, fantasies, and behaviours of child sexual offending for some time to come.
Mr Stevenson's preparedness to be frank and candid about his thinking in this regard is concerning. Recent events concerning the lies he told about the reason for losing his employment were the subject of much discussion during the course of the final hearing. Both experts said, in effect, that untruthfulness is not unexpected in speaking with offenders about sexual offending. Ms Howell endeavoured to explain it, in part, by reference to Mr Stevenson's limited cognitive abilities. But that raises a concern in itself. It demonstrates that if situations arise in which Mr Stevenson finds himself at risk of reverting to the urges, fantasies, and possibly the behaviours of sexual offending as in the past, he is less likely to disclose it and more likely to deflect questioning and conceal the truth.
The subject matter of Mr Stevenson's recent dishonesty was relatively peripheral to the management of his risk. Of more concern is his preparedness to acknowledge that he has, in the past, had intrusive thoughts and fantasies of offending against children. He told Dr Ellis that such thoughts were pertinent to his offending in 2005 against young girls. Yet at around the same time, he denied it to Dr O'Dea in relation to one of those incidents and said he could not remember the other. More recently, to Dr Martin, Mr Stevenson denied any attraction to children and denied that those offences were sexually motivated.
Not having said anything about it in her report, it came as rather a bombshell when Ms Howell disclosed in her oral evidence that Mr Stevenson had in fact told her, in the context of discussing the 2005 offences, that he was having intrusive sexual fantasies about teenage girls at the time. [45]
In summary, Mr Stevenson acknowledged the intrusive child sexual fantasies that were instrumental in his 2005 offending to one expert in 2013 and in 2019, and then completely denied those fantasies to other experts in each of those years. This seems to leave a very large question as to exactly how much progress Mr Stevenson has in fact made in accepting and managing his risk of committing a further serious sex offence.
Despite all of the positive matters that have been advanced on Mr Stevenson's behalf, there remains in my view a high degree of probability that he still poses an unacceptable risk of committing another serious offence if he is not kept under supervision.
Satisfaction of the criteria in s 5B(d) is not the end of the matter. There remains a discretion as to whether to grant the State's application or not. I am persuaded that the discretion should be exercised in favour of making an ESO.

[14]

Prior approval of a schedule of movements and electronic monitoring

The Risk Management Report of Ms Erin Kirkwood, Senior Community Corrections officer, endorsed by Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer, dated 4 December 2018, explained how various measures could be deployed in order to manage the various risk factors that pertain to Mr Stevenson. Schedules of movements would be provided by him for approval and electronic monitoring would be used to ensure his compliance. The latter would also be used to ensure he does not enter any high risk locations, mainly areas that children may frequent such as schools or shopping centres, but other areas as well, such as where anti-social peers might be encountered.
Ms Howell was of the view that conditions requiring an approved schedule of movements and electronic monitoring could not be supported. She cited Mr Stevenson's employment involving overtime being required at short notice as a practical example of difficulties that might be encountered. [48] Dr Martin agreed, subject to the comments in the following response: [49] "I agree with what Ms Howell said. I am not sure how much the actual schedule and the electronic monitoring adds to actually reducing that risk. What people are worried about is future sex offending and I am not sure that that actually ‑ that particular intervention adds an awful lot, although I would say that question is better put to the people that are actually responsible for executing the supervision. I mean for me the main issue is his associations and possibility of him coming across a ‑ I don't know, a homeless or a vulnerable 16‑year‑old, making a connection at work or elsewhere and forming an association and inappropriate relationship. So the association part of the conditions is most important. I don't ‑ I'm not sure the scheduling, for instance, or the electronic monitoring particularly decreases that. I mean it could be argued that electronic monitoring, scheduling prevents him getting into high risk areas, attending amusements parks or places where vulnerable children might be. I can understand the logic of that. But I do get the sense that he has by and large adhered to most conditions already. I think the reason ‑ I am speculating but I would say that the reason that conditions aren't lifted over time is because people are very risk averse and don't want to be found responsible for relaxing conditions and then being responsible for a future sex offence, say. I would generally agree that the conditions should be reduced over time and certainly would acknowledge that it is very distressing for an individual to be monitored and it is a big imposition to have to schedule every last movement of over a week and adhere to that absolutely religiously. It is a difficult balancing exercise."
In re-examination, Ms Howell maintained her view. Dr Martin summarised that scheduling and electronic monitoring could reduce risk if there was a risk of Mr Stevenson attending places where children are. But he added, "[w]hether that is necessary in this case I am not entirely convinced." If a "sunset clause" were to be added, he considered a period of "say six months" to be appropriate. [50]
I accept that these two conditions are the ones that Mr Stevenson (and his partner) have found to be particularly frustrating. They are undoubtedly intrusive. He has been subjected to this form of oversight by the State now for a considerable period. When such conditions were released in August 2017, he fairly soon lapsed into breach, but the breach was not of a type that raised concern about further serious sex offending.
In many high risk offender cases, there is a clear need for approved schedules of movements and electronic monitoring to aid a supervisory regime designed to manage the risk of further serious offending and thereby promote the safety of the community. It is, however, extremely intrusive upon a person's liberty and should only imposed where such a clear need is established. The doubts expressed by the experts in this case as to the utility of such conditions are persuasive.
Various conditions of the ESO proposed by the State have not been the subject of dispute. They include conditions prohibiting Mr Stevenson from being in certain places where children are more likely to be encountered such as schools, playgrounds and playing fields. Electronic monitoring can be useful in ensuring compliance with such place restrictions. However, given the lengthy period in which Mr Stevenson has up until now been subject to such monitoring there will be a time limit for which electronic monitoring will be in place, subject to a provision that it may be reinstituted if any breach were to occur.
The requirement for Mr Stevenson to obtain prior approval of his weekly movements, and prior approval of any proposed deviation from such movements, will not be imposed. However, provision will be made for it to be instituted if any breach were to occur. The proposed condition requiring him to be truthful in answering questions from his DSO about his movements and activities will be modified to include questions about his past movements and activities, as well as current and future activities.

[18]

Endnotes

Exh BM-2, p 478 (Dr Andrew Ellis, Report, 15 June 2013).
Exh BM-2, pp 489, 492 (Dr Jeremy O'Dea, Report, 19 June 2013).
Preliminary judgment at [41].
Preliminary judgment at [42].
Preliminary judgment at [31]-[36].
Exh BM-2, p 479 (Dr Andrew Ellis, Report, 15 June 2013).
"OIMS notes" derived from the "Offender Integrated Management System".
Affidavit, Jason Leslie Stevenson, 11 June 2019 at par 46.
Affidavit, Janelle Roach, 11 June 2019 at par 18.
Ibid at par 25.
Exh A (Jenny Howell, Report, 4 June 2019).
Tcpt, 3 June 2019, p 12(43), p 37(37).
Exh A, p 8.
Tcpt, 3 June 2019, p 39.
Exh A, p 9.
Exh A, p 10.
The quotation marks may be taken to invoke the definition of this term in the Act.
Exh A, p 13.
Exh A, p 13.
Exh A, p 14.
Tcpt, 3 June 2019, p 15.
See preliminary judgment at [31]-[33].
Tcpt, 3 June 2019, p 16(34).
Tcpt, 3 June 2019, p 21(34).
Tcpt, 3 June 2019, p 23(26) - p 24(8).
Exh B (Dr Adam Martin, Report, 5 June 2019).
Exh B, pp 14-15.
Exh B, p 15.
Tcpt, 3 June 2019, pp 9(46)-10(9).
Tcpt, 3 June 2019, p 11(15)-(20).
Tcpt, 3 June 2019, p 28.
Tcpt, 3 June 2019, p 28(45)-(46).
Tcpt, 3 June 2019, p 29(12)-(15).
Tcpt, 3 June 2019, p 31.
Tcpt 3 June 2019, p 33(21)-(23).
This concerned the breach of his ESO by being found in the company of a 12-year-old and a 16-year-old girl in October 2013.
Tcpt, 3 June 2019, p 42(13).
Tcpt, 3 June 2019, p 42(30).
Preliminary judgment at [58]-[68].
Exh BM-2, p 94 (Dr Samuel Ardasinski, Report, 8 November 2018 at par 62).
Plaintiff's written submissions (PWS) at pars 113-114.
Defendant written submissions (DWS) at par 14.
Preliminary judgment at [68].
PWS at par 62.
Tcpt, 3 June 2019, p 14.
Tcpt, 3 June 2019, p 12(3)-(18).
Tcpt, 3 June 2019, pp 24(10)-25(44).
Tcpt, 3 June 2019, pp 37-38; 47(1).
Tcpt, 3 June 2019, p 38.
Tcpt, 3 June 2019, p 46(41); 47(3).
Affidavit, Janelle Roach, 11 June 2019 at par 24. 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: 02 July 2019

State of New South Wales v Stevenson

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