State of New South Wales v Webster

Background facts

1. If the threshold test in s 5B is met, the matters to be considered are listed in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.
2. To the extent to which the evidence at the ESO hearing on 12 October 2016 does not differ from that at the ISO hearing before me on 18 July 2016, I have replicated some of the narrative from my earlier judgment where it is relevant to the question whether to grant an ESO, and, if so, for what period.

Background

1. The offender was born in 1955. He was convicted of larceny in 1974 and other offences of a similar nature in 1975, 1977 and 1982.

1979 offence of common assault

1. On 15 December 1979 the defendant approached a female who was waiting at the bus stop. According to the victim's statement, he threatened her with a knife and forced her to accompany him for the purposes of requiring her to masturbate him. She broke away from him and reported the matter to police who charged the defendant with abduction and assault and ill-treat. He was committed for trial on indictment in the Parramatta District Court. On 16 September 1980 he was sentenced for common assault. A term of two years hard labour was imposed with a non-parole period of 9 months and 15 days commencing on 16 September 1980 and concluding on 30 June 1981.

1982 offences of abduction and common assault

1. In the morning of 28 September 1982 the defendant threatened a woman in a public street with a knife and abducted her in his car. As he was driving to another place to sexually assault her, she jumped out of the moving car as it slowed to turn a corner and reported the matter to police. On 30 August 1983 the defendant pleaded guilty to abduction with intent to carnally know and common assault. On 7 December 1983 he was sentenced by Gee DCJ to a total term of 10 years from 15 August 1983 with a non-parole period of 4 years and eight months.

1989 offence of assault while in custody

1. On 15 May 1989 the defendant assaulted a prison officer at the Goulburn Training Centre, where he was in custody. He was charged with assault occasioning actual bodily harm. He was convicted and sentenced to six months hard labour, such sentence to date from the expiry of his then current sentence.

Sexual offences in 1995 and 1996

1. On 26 November 1995, at about 10pm, the defendant telephoned the victim in response to an advertisement in the paper for "massage services". He made a booking and went to her home at about 11pm. He threatened her with a knife and sexually assaulted her. She reported the matter to police who arrested the defendant shortly afterwards. He was charged with threaten to inflict actual bodily harm with intent to have sexual intercourse. He was granted bail. While he was on bail he committed a further three offences of a similar nature. On 6 January 1996 at 3am he arranged for a woman who was to perform "massage services" to come to his house. He threatened her with a knife and sexually assaulted her. The victim reported the matter to police who arrested the defendant on 6 January 1996 and charged him with three offences: threaten to inflict actual bodily harm with intent to have sexual intercourse; aggravated sexual intercourse; and assault occasioning actual bodily harm.
2. The defendant was assessed by Dr Susan Hayes on 26 June 1996, following which Dr Hayes prepared a pre-sentence report dated 28 June 1996. She took a history of his disrupted childhood. His parents separated when he was six months old. He was brought up by his grandmother. He took up boxing and got into many fights in the playground. He had no friends. He wanted to do the Higher School Certificate but instead began an apprenticeship with BHP as a fitter and turner. This did not work out. The defendant's father brought him to Sydney. He abused alcohol and drugs, including heroin. He was unable to explain to Dr Hayes why he had committed the offences for which he was to be sentenced. Dr Hayes concluded: "Whatever the reason for Mr Webster's actions, the fact that he has little insight into his own actions and motivations is indicative of the need for long term counselling. He needs counselling not only in relation to his sexual behaviour and relationships with women, but also in relation to his self-esteem and coping behaviour generally. Whilst Mr Webster has been successful in overcoming his heroin addiction mainly on his own, with six months counselling, achieving insight into his own behaviour is a task in which he will need considerable assistance both through programs designed specifically for sex offenders and also programs designed for anger management and coping skills."

The sentence imposed by Karpin DCJ for the 1995 and 1996 offences

1. The defendant remained in custody until he was sentenced for the four offences referred to above by Karpin DCJ on 10 December 1996. The total sentence commenced on 6 January 1996 and expired on 24 December 2006. In the remarks on sentence, his Honour described the facts of the offences as "disturbing". Of the victim of the first offence, his Honour said: "The immediate effect on the victim was shock and bruising for which she received treatment. . . She reports some substantial consequences of the attack which was made on her, in terms of fearfulness and hysteria and emotional distress, including inability to sleep at times and fear or continuing in her occupation and indeed, of leaving her house. None of these might seem to be very surprising consequences of the attack to which she was subject."
2. Of the victim of the second offence, his Honour said: "She reports a number of consequences of the assault upon her including fear of men and a loss of trust in people generally, problems with flashbacks and irrational mood swings. She has lost a substantial amount of weight. She was particularly concerned, as a consequence of these events, that her daughter might discover her mode of occupation."
3. His Honour concluded: "Clearly, the offences are extremely serious. There was initially neither co-operation nor any indication of contrition. . . . It is clear that people in the community require protection and that the victims in each case should be able to carry out their chosen work without finding themselves placed at risk as these two women were. The objective circumstances of each of these offences calls for a severe penalty. . . . [when providing for a lengthy additional term, his Honour said] it will be essential that the prisoner's return to the community be carefully monitored to ensure that when he is released from custody on the next occasion, he is in a fit position to deal with problems which arise from living in the community with a view to ensuring that he does not, once again, fall into criminality and therefore return to the present system."
4. His Honour also made reference to the need for counselling which had been recommended by Dr Hayes, whose report was tendered at the sentence hearing.

The period of custody from 1996 until the defendant's release in 2000

1. While the defendant was in custody he attended a 16-session group-based program known as Sex Offender Psycho-Educational (SOPE) Program which he undertook from 27 July 1998 until 8 December 1998. After finishing this program he undertook and completed the Custody Based Intensive Therapeutic (CUBIT) Program. The CUBIT Program is offered to moderate to high risk sex offenders and is designed to help offenders change the thinking, attitudes and feelings that led to their offending behaviour. He completed the CUBIT Program in February 2000.
2. After completing the CUBIT Program, the defendant engaged in a "Transitional Program" from March 2000 until December 2000 which involved weekly maintenance meetings.
3. The defendant was assessed by Dr Anne Young, a psychologist, on 29 May 2000, with a view to determining whether he was suitable for conditional release. Dr Young noted that the defendant had completed the CUBIT Program in February 2000 and that his participation had been consistently high. She considered him to have "developed a realistic relapse prevention plan with appropriate intervention strategies".
4. The minimum term expired on 24 December 2000 after which the defendant was released to parole. Between January 2001 and February 2003 the defendant participated in approximately 42 group sessions run from Forensic Psychology Services (FPS). These sessions were interrupted by a period in custody following the offending behaviour referred to below.

Offending conduct in October 2002

1. On 4 October 2002, while he was still on parole for the sentence imposed by Karpin DCJ, the defendant breached his parole by committing a further offence. He threatened a woman whose de facto husband (who was then in custody) was a friend of his. According to her witness statement, the defendant told her that if she did not have sex with him, he would tell her family that he had had an affair with her while her de facto was in gaol. He grabbed her around the throat with two hands and shook her before letting go. The next day she phoned her de facto (who was still in gaol) who advised her to report the matter to police. The defendant pleaded guilty to the offence of common assault. He was returned to custody for a short period. On 23 January 2003 a community service order was made in the Burwood Local Court for 200 hours of community service.

Sexual offences in May 2004

1. On 20 May 2004 the defendant approached a woman on a train bound for Penrith and engaged her in conversation. He asked her where she lived to which she responded "Granville". When she disembarked at Clyde, the defendant got off the train and followed her. He threatened her with a knife, dragged her to a nearby laneway, and demanded money and jewellery. The defendant instructed her to take his penis out and stroke it. She complied as he was threatening her with a knife. She tried to grab the knife, as a result of which she cut her hand. He continually said to her, "Don't fuck with me, I can't get girls any other way". He told her to put his penis in her mouth. The victim tried to calm him down and continued to try to get the knife. A dog began to bark, as a result of which a light came on. The victim heard a male voice. The defendant paused, at which time the victim was able to run away and get help. Police found the defendant at Clyde Station and arrested him. He pleaded guilty to robbery armed with offensive weapon and assault with an act of indecency in the Local Court and pleaded not guilty to threaten to inflict actual bodily harm with intent to have sexual intercourse. The defendant changed his plea to the last offence to guilty in the District Court.
2. On 12 July 2004 an application was made by the assigned officer of the Burwood District Office for the community service order to be revoked on the grounds of the charges referred to above, as a result of which he was taken into custody.
3. A pre-sentence report dated 26 July 2005 was prepared in respect of the defendant by Dr Peter Ashkar who addressed risk factors and the potential for rehabilitation in the following terms: "The current assessment reveals a number of factors that have contributed to Michael's offending behaviour, Contributing acute dynamic factors include negative mood state (e.g. sadness and anger) and problematic substance (alcohol) use. Contributing stable dynamic factors include intimacy deficits, negative social influences, problems with general self-regulation (e.g., testing known risk factors, breaking conditions of community supervision), and problems with sexual self-regulation (e.g., using sex as a method of coping with negative emotions). CLINICAL OPINION Michael's current offending behaviour is the combined result of individual (i.e., personality, emotional regulation) and contextual (i.e., relationship, substance use, antisocial peers) factors. Personality change, enhancement of emotional regulation, substance use intervention, and dissociation from antisocial peers is required in order to minimise his risk of engaging in similar types of offending behaviours in the future. Michael has the intellectual resources and social skills to benefit from intervention. The current assessment provides no evidence of clinical psychopathology or neurological impairment. His offending prognosis will depend on his willingness to affect positive change. At this point he appears motivated to do so."
4. Dr Ashkar addressed the need for supervision to manage the risk the defendant poses and said: "Michael appreciates the role that antisocial and criminal peers play in his offending behaviour. He nonetheless remains extremely vulnerable to their influence. It will be extremely important for Michael to maintain his distance from these people until such time that he is able to demonstrate a rejection of antisocial values and beliefs. The pursuit of employment, prosocial peers, and other prosocial interests will help to provide Michael with the resilience he needs to affect and sustain positive change. Regular supervision is recommended upon his release into the community to ensure his adaptive social functioning (e.g., treatment compliance, effective management of his substance use, dissociation from antisocial peers, employment stability)."

Remarks on sentence for 2004 offences

1. On 29 July 2005 Armitage DCJ sentenced the defendant for a total term of 11 years with a non-parole period of 9 years for the three offences referred to above to which he had pleaded guilty. The term commenced on 29 July 2005 and expired on 28 July 2016, with a non-parole period of nine years which expired on 28 July 2014 (the individual sentences are set out in the table below). Judge Armitage set out the following extract from the victim impact statement in the remarks on sentence: "Mental Illness or Nervous Shock In the fourteen months since the offence I have found my ability to handle stress considerably decreased as a result of being a victim. This has impacted considerably on my studies. After being a straight distinction student I have had to withdraw from subjects because I could not handle juggling the intense stress and workload of a job and the same amount of part time study. I have had to change some life plans as a result. I have also had to cope with feeling far more vulnerable and less confident. This experience has changed who I am, how I see myself and my relationship to the world. It has significantly impacted on the last fourteen months of my life changing what I would have been doing and where I want to be career wise and in my personal life. An assault this personal will have a reverberating effect on my life for years to come. It has done significant damage."
2. The sentencing judge addressed the impact of the victim in the following passage in the remarks on sentence: "That is a clear indication of very considerable emotional harm. I concede that there is no psychological or psychiatric evidence of that, but I think I can take into account as a lay matter from the victim's statement, which was not suggested is in any way untrue by the defence submissions (and rightly so) that the victim has experienced considerable emotional harm as a result of the offences."
3. In the further remarks on sentence given on 12 August 2005 (to correct an error in the original sentence imposed), Armitage DCJ said: "What you did was so dangerous that the young girl could very easily have been killed. There was a struggle with a knife and your intention was obviously to have sexual intercourse with her."
4. The defendant sought leave to appeal against the sentence. The Court of Criminal Appeal granted leave and allowed the appeal, but only so as to set aside the parole order (which was made without power). The appeal against sentence was otherwise dismissed: Webster v R [2006] NSWCCA 346. Justice Sully (Beazley JA, Hislop J agreeing) said: "[9] In my opinion, this submission [that the sentence was manifestly excessive] can be disposed of shortly and on the basis of the following propositions: . . . [6] The learned primary Judge took the view, and in my respectful opinion correctly so, that the criminal antecedents of the applicant were of particular concern. The applicant had a long and bad criminal record. It included convictions in December 1996, and in the Parramatta District Court, of four offences: an offence of threatening to inflict actual bodily harm by a weapon with intent to have sexual intercourse; a second offence of threatening to inflict actual bodily harm by a weapon with intent to have sexual intercourse; an offence of aggravated sexual intercourse without consent; and an offence of assault occasioning actual bodily harm. In respect of those matters various sentences of imprisonment were passed upon the applicant, their aggregate effect being a total sentence of 11 years comprising a minimum term of 5 years and an additional term of 6 years. The applicant was at liberty on parole at the time he committed the offences of 20 May 2004. It is trite that criminal offences are to be treated as being the more serious by reason of the fact that they were committed in breach of parole. [7] The remarks on sentence, read fairly overall, place great emphasis upon the need to sentence the applicant in a way giving proper recognition to the imperative need to protect members of the public, and especially members of the public described by his Honour as "innocent young girls", from offences of the kind committed by the applicant in May 2004. [10] I am unpersuaded that the measure of accumulation upon which the learned sentencing Judge settled, was appellably excessive. The overall result was, undoubtedly, a severe one, but so it ought to have been, given the nature of the particular offences; and given, also, the troubling features of the particular offender's criminal antecedents."

Courses completed by the defendant while in custody from 2005

1. In 2008, at the Wellington Correctional Centre, the defendant completed the 12-session "Getting SMART" program which was designed to assist offenders with alcohol and substance abuse. In 2009 he completed the Controlling Anger and Learning to Manage it (CALM) Program
2. On 28 January 2014 the defendant was offered a place in the CUBIT Program (it being six months before his earliest release date). He declined the place on the basis that he had already done the CUBIT Program and considered that he still had the skills and awareness from having completed it.

Reports on the defendant during most recent period of custody

1. The defendant became eligible for parole on 29 July 2014. As a result, the defendant was referred to Sarah Willie of Corrective Services New South Wales for the purpose of preparing a report as to his suitability for release.

Report of Sarah Willie dated 21 May 2014

1. Ms Willie, in her report dated 21 May 2014, referred to the clinical notes of a Senior Psychologist of the Department of Community Corrections, which recorded that the defendant had been assessed as being a high risk for sexual offences and that he had declined to engage in further sex offender treatment programs (noting that he had completed CUBIT in February 2000). Ms Willie advised the State Parole Authority that the defendant's release was not recommended "as a result of the serious nature of the index offence [threaten grievous bodily harm with intent to have sexual intercourse]; his assessed high level of risk of committing like offences; his refusal to again complete the CUBIT program and the fact that he has no suitable accommodation". Bruce Pearce, the Acting Unit Leader of Wellington Community Corrections, supported Ms Willie's recommendations. He noted the concern that "the offender does not appear to have any insight as to the effect of his offending behaviours on the victim in this matter".
2. On 4 July 2014 the State Parole Authority refused the defendant's application for parole because he had not participated in treatment programs. He did not seek parole again. As a result the defendant remained in custody until the expiry of his sentence on 28 July 2016.

Risk assessment report dated 11 November 2015 by Samuel Ardasinski and Danielle Matsuo

1. On 2 November 2015, Mr Ardasinski and Danielle Matsuo carried out a psychological risk assessment in respect of the defendant which placed him in the high risk category of sexual offending. In the risk assessment report dated 11 November 2015 Mr Ardasinski and Ms Matsuo identified the factors which tended to increase the risk of re-offending in the following passage: "Michael appreciates the role that antisocial and criminal peers play in his offending behaviour. He nonetheless remains extremely vulnerable to their influence. It will be extremely important for Michael to maintain his distance from these people until such time that he is able to demonstrate a rejection of antisocial values and beliefs. The pursuit of employment, prosocial peers, and other prosocial interests will help to provide Michael with the resilience he needs to affect and sustain positive change. Regular supervision is recommended upon his release into the community to ensure his adaptive social functioning (e.g., treatment compliance, effective management of his substance use, dissociation from antisocial peers, employment stability)."
2. Ms Ardasinski and Ms Matsuo described the risk posed by the defendant in following terms: "If Mr Webster were to return to a lifestyle characterised by alcohol misuse and/or problem gambling; if he becomes frustrated within the context of an intimate relationship or some other relevant stressors (financial hardship, association with criminal acquaintances, etc.); if he allows himself to indulge in deviate sexual fantasy in this context; if he encounters a vulnerable young adult female or makes the decision to contact an escort in this state, the potential for sexual or other violence approaching the threshold considered under the Crimes (High Risk Offenders) Act 2006 may be considered of significant concern."
3. They said further: "Successful risk management would involve containment of those behaviours associated with risk (such as alcohol use, intimacy issues, sexual preoccupation and weapon use)."

Risk management report of Vicki McCarthy dated 8 January 2016

1. A report dated 8 January 2016 was prepared by Vicki McCarthy, Senior Community Corrections Officer, for the purposes of s 9(3)(d1). Ms McCarthy noted the assessment by Mr Ardasinski and Ms Matsuo referred to above. She identified a number of risk factors, including the history of sexual violence and difficulties of social adjustment. She developed a risk management plan, including: the imposition of curfew; unannounced field visits; electronic monitoring combined with the submission of a weekly schedule; a referral to FPS; random drug and alcohol testing; and a prohibition on access to prostitutes or escorts.

The defendant's most recent release

1. The defendant was released from custody on 28 July 2016 to live in the Nunyara Community Offender Support Program (COSP) facility at Malabar. He agreed to certain terms and conditions applicable to residents of the COSP facility, including condition 11 which requires residents to allow staff to search their rooms and personal belongings at any time without interference.
2. On 24 August 2016 the defendant's room was searched and his phone examined. They found a number of website addresses on the internet search history which indicated that they were pornographic sites. According to the Facts Sheet, the defendant told police, after having been cautioned: "I was just looking for pics to see if my body still worked."
3. As he was speaking he pointed to his groin area. Subsequent viewing of the websites accessed showed images of sexual penetration, which attracts a classification of R18+. Viewing such sites constitutes a breach of condition 46 of the ISO imposed on the defendant.
4. On 25 August 2016 the defendant was arrested and cautioned. He declined to be interviewed. The matter came before the Waverley Local Court on 7 October 2016. The defendant pleaded guilty to an offence of failing to comply with an ISO, was convicted and was directed to enter into a good behaviour bond for 12 months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 7 October 2016 and accept the following conditions: he must be of good behaviour and appear before the court during the bond term if required.

Report of Dr Samuels dated 12 September 2016

1. Dr Samuels assessed the defendant on 19 August 2016 over the course of an hour and a half. He considered that the defendant tended to "minimise, deny and rationalise what occurred" and "displayed a considerable lack of empathy for his victims". Dr Samuels found that it was difficult to get in-depth answers from the defendant, despite the length of the interview.
2. The defendant told Dr Samuels that he is currently living in a COSP facility but would like to relocate to Queensland to be with his sister, find a job and have a "fresh start".
3. Dr Samuels opined: "In essence, Mr Webster is a violent criminal whose sexual offending is generally opportunistic in the course of other offending. However, there is no doubt that some elements of his sexual offending are related to feelings of suppressed anger and rage towards his victims, particularly when he feels that he has been rejected or exploited in some way."
4. Dr Samuels considered: "In terms of DSM-VV diagnosis, he probably does fulfil criteria for a Sexual Sadism Disorder (DSM-VV Code 302,84) in that he has been aroused by the suffering of his victims and has had deviant sexual fantasies in regard to aggressive and humiliating sexual acts. He certainly has, in the past, met criteria for Polysubstance Misuse involving alcohol, Heroin and other drugs. He has been in custody for many years and at this point these conditions would appear to be in remission although I would regard him as being vulnerable to relapse. The fact that he wanted to go onto Methadone suggests that he has at least some insight into this vulnerability. He certainly has features suggestive of a personality disorder with mixed features; predominantly antisocial but with narcissistic elements as well."
5. Dr Samuels considered that the defendant presents a high risk of committing a further sexual offence. His view was based on his clinical risk evaluation, his analysis of static and dynamic risk factors, protective factors and actuarial risk factors.
6. When addressing the factors that affect the risk posed by the defendant to potential victims, Dr Samuels recorded the defendant's own assessment that when he feels pressured into doing certain things or feels put down or rejected, he tends to become frustrated and to seek a release for his frustration through using substances, attending brothels or engaging in gambling behaviour. Dr Samuels concluded: "Any of these scenarios would place Mr Webster at high risk of sexual re-offending, particularly if he were carrying a weapon and there was access to a vulnerable victim."
7. Dr Samuels adverted to the risk posed by the imposition of an ESO and considered that a potential consequence of the close oversight associated with an ESO is that the defendant might feel "put upon" and "might act out with potentially serious consequences". Dr Samuels advised that "even minor breaches [of the ESO] should be taken very seriously as they may be signs that he is going to not comply with the provisions in a potentially more serious way".
8. When asked to comment on the appropriateness of the conditions proposed for an ESO, Dr Samuels specifically endorsed condition 29 (that he must not engage the services of sex workers) and 32 (that he must not gamble), which he considered to be risk areas.
9. Dr Samuels suggested that a five year ESO would be appropriate as the defendant presents as a physically robust man in good health who would pose a risk for "some years".

Report of Dr O'Dea dated 22 September 2016

1. Dr O'Dea interviewed the defendant on 29 August 2016 and 1 September 2016 for a total period of three hours. He noted that the defendant displayed "limited insight and remorse and convey[ed] a limited commitment to change".
2. On the basis of the defendant's history of sex offending and reported sadistic sexual fantasies, Dr O'Dea diagnosed him with Sexual Sadism Disorder. Dr O'Dea described the risks associated with this disorder as being "long term, significant and unlikely to be attenuated without specific and ongoing psychiatric treatment". He also noted Substance Abuse Disorder. He did not diagnose any major psychotic illness.
3. Dr O'Dea considered that judicious use of anti-libidinal medication would be appropriate to manage the risk posed by the defendant. However, I note that there is no indication that the defendant would consent to such medication. Accordingly, it is not necessary to consider it further.
4. Dr O'Dea considered that the conditions proposed regarding a prohibition on sex workers and the requirement that the defendant not take non-prescription drugs or alcohol were required because of the association between the defendant's objectification of his sexual partners, substance abuse and his offending behaviour.
5. Dr O'Dea considered that, but for the imposition of an ESO on conditions such as those proposed, there would be a significantly high degree of probability that the defendant would pose a significant risk of committing a further "serious sex offence", as defined in s 5(1) of the Act.
6. Dr O'Dea concluded: "Mr Webster's risk of engaging in further sex offending behaviours in the community, and of committing a further serious sex offence in the community, is likely to be long term, and potentially of at least 5 years duration. Therefore from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on his progress."

Whether the defendant is a high risk sex offender

1. The defendant is a "high risk sex offender" if I am satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2).
2. I am satisfied on the basis of the risk assessment undertaken by Mr Ardasinski and Ms Matsuo, when read in light of the defendant's substantial and longstanding criminal history, and the opinions of Drs Samuels and O'Dea referred to above that the defendant is a high risk sex offender. He is a supervised sex offender in that he was, at the time the summons was filed, serving a sentence of imprisonment for a serious sex offence: s 5I(2)(a). The statutory requirements for the present application are met as the summons was filed within the last six months of the defendant's current period of custody.

Relevant matters

1. The matters referred to in s 9 are to be taken into account in determining whether to make an ESO. I propose to address each relevant matter in turn, although I will address the safety of the community (s 9(3)(a)) last as this factor largely derives from the others.

The reports from experts appointed under s 7(4) of the Act and the level of the defendant's participation in such examinations (s 9(3)(b))

1. The reports of Drs O'Dea and Samuels are considered above. They both consider the defendant to pose a high risk of sexual re-offending, which can adequately be controlled by an ESO with appropriate conditions such as those proposed by the plaintiff. Each of the experts considered that the maximum term provided by the Act, five years, would be an appropriate duration for an ESO, there being no real prospect of the risk attenuating (other than through the ESO) during that period.
2. Drs O'Dea and Samuels broadly agree on the relevant diagnoses and, in relation to the diagnosis of Sexual Sadism Disorder, they agree that it is a long-term, entrenched disorder which is not particularly susceptible to treatment or amelioration.
3. They both considered that the defendant apparently participated well in the lengthy examinations they conducted. On the other hand, they both had difficulty gaining "in-depth" or satisfactory answers to questions concerning the defendant's offending behaviour, which both attributed to the defendant's lack of insight to the seriousness of his conduct and its effect on the victims.

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

1. The reports of Dr Hayes, Dr Young and Dr Ashkar referred to above are to be considered under s 9(3)(c). They indicated that the defendant has been willing to participate in such assessments. Dr Hayes' observations about the defendant's lack of insight would appear to remain relevant. Dr Young's optimism about the salutary effect of the CUBIT Program would appear to be, in hindsight, misplaced. Dr Ashkar's report provides some basis for considering that the risk posed by the defendant can be adequately managed in the community with supervision.

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence (s 9(3)(d))

1. The risk assessment report of Mr Ardasinski and Ms Matsuo referred to above assessed the risk posed by the defendant to be high by reference to static and dynamic risk factors.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1))

1. The reports of Ms Willie dated 21 May 2014 and Ms McCarthy dated 8 January 2016 address the ways in which the offender could reasonably and practicably be managed in the community. Ms Willie was pessimistic about the prospect that the defendant could be appropriately managed in the community if parole were granted. However, Ms McCarthy addressed the mechanisms that could be put in place through conditions imposed on an ISO or ESO which, in her view, could reasonably and practically manage the otherwise unacceptable risk posed by the defendant.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs (s 9(3)(e))

1. The narrative set out above indicates that the defendant has undertaken several programs, including the SOPE Program in 1998 and the CUBIT Program which he completed in 2000. By and large the defendant has, until recently, engaged in such programs to an apparently significant extent. His participation has been regarded as substantial. Notwithstanding his participation in such programs, his offending behaviour has continued. This tends to suggest that more is required to manage the risk he poses than the mere completion of programs. His recent refusal to undertake the CUBIT Program on the ground that he has already done it and does not need it tends to indicate a lack of insight, having regard to the defendant's substantial further offending since he completed the CUBIT Program in February 2000.
2. I note that neither of the court-appointed experts (Drs O'Dea and Samuels) considered that further engagement in such programs would significantly ameliorate the continuing risk posed by the defendant.

The level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier ESO (s 9(3)(f))

1. While the defendant was on parole for the offences committed in 1995 and 1996, he committed the common assault offence for which he was ordered to perform 200 hours of community service. Before he had completed the requisite number of hours, and while he was still on parole for the offences committed in 1995 and 1996, he committed the offences for which he was sentenced by Armitage DCJ and which led to the current period of imprisonment. The defendant's recidivism tends to indicate that the offender has not been compliant with conditions of his parole and that such constraints as have applied to him when on parole have been insufficient to control the risk he poses.
2. About four weeks after his release from custody this year, the defendant accessed pornographic material in breach of condition 46 of the ISO made by this Court. He pleaded guilty to the offence and was, as set out above, dealt with by the Waverley Local Court. In my view, this was not a minor breach. That the defendant, notwithstanding the clear condition of the ISO which prohibited his viewing such material, was prepared to do so is a powerful indication of the continuing risk which he poses. I have referred above to Dr Samuels' view about the approach to be taken to minor breaches. The need to adopt a vigilant approach to breaches which cannot be categorised as minor would appear to be even greater.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history (s 9(3)(h))

1. The defendant has a lengthy criminal history. The offences involving violence and of a sexual nature which are most relevant to the present application are summarised below. Date of offending Offence/ Provision of Crimes Act 1900 Sentence 15 December 1979 Common assault/ s 61 Total term of 2 years hard labour with non-parole period of 9 months and 15 days 28 September 1982 Unlawful and carnal knowledge and abduction; common assault/ s 89 and s 61 Total term of 10 years to date from 15 August 1983; non-parole period of 4 years and 9 months 15 May 1989 Assault occasioning actual bodily harm/ s 59 Six months hard labour to date from expiry of previous sentence 26 November 1995 Threaten to inflict actual bodily harm with intent to have sexual intercourse/ s 61K(b), S 61J Total term of 8 years; minimum term of 4 years to commence from 6 January 1996 and expire on 24 December 1999. Additional term of 4 years from 25 December 1999 to 24 December 2003. 6 January 1996 Threaten to inflict actual bodily harm with intent to have sexual intercourse/ s 61K(b), s 61J, s 59 Total term of 11 years. Minimum term of 5 years from 6 January 1996 to 24 December 2000. Additional term to commence on 25 December 2000 and expire on 24 December 2006. Aggravated sexual intercourse/ s 61K(b), s 61J Assault occasioning actual bodily harm/ s 59 Fixed term of 2 years from 6 January 1996 to 5 January 1998 4 October 2002 Common assault/ s 61 200 hours of community service; revoked as a result of subsequent offending before it was completed 20 May 2004 Robbery Armed with Offensive Weapon/ s 97(1) Fixed term of 4 years and 6 months commencing on 29 July 2005 and expiring on 28 January 2010. Assault with Act of Indecency/ s 61L Fixed term of 2 years and 3 months commencing on 29 July 2008 and expiring on 28 October 2010. Threaten to Inflict Actual Bodily Harm With Intent to Have Sexual Intercourse/ s 61K(b) Imprisonment for 8 years with a non-parole period of 6 years commencing on 29 July 2008 and expiring on 28 July 2014, with the additional term expiring on 28 July 2016.

1. The circumstances of his offending conduct are summarised in the narrative above. As a result of his offending, the defendant has spent approximately 19 out of the last 20 years in gaol.
2. The defendant's offending reveals the following pattern. He selects, apparently spontaneously and at random, a young adult female who is vulnerable, either because she is walking along a public street, or catching public transport in an area where there are few people, or because she is a sex worker. He threatens the woman with a knife in order to have sexual intercourse with her, or to have her perform sexual acts on him. Aside from possession of a knife, his degree of planning is slight. He apparently shows no regard for the safety of the woman and considers himself to be entitled to use her sexually irrespective of her fear, refusal and her attempts to run away. The nature and duration of the defendant's offending tends to show that he has little or no capacity to form intimate relationships or to engage in consensual sexual activity. His offending history suggests that he acts on impulse to satisfy a sexual desire without regard to the consequences for his victim, or himself. He appears to have little or no capacity to manage his own risk, regulate his conduct, or control his sexual impulses.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1))

1. The sentencing remarks of Karpin DCJ indicate the extent to which the defendant poses a danger to the community and her Honour's concern about the need for the defendant to be supervised on release into the community as a way of ensuring that he does not re-offend.
2. The sentencing remarks of Armitage DCJ and Sully J (with whom Beazley JA and Hislop J agreed) which are set out above indicate a concern about the danger posed by the defendant to the victim and the extent to which the public needs to be protected from him.

Any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) (s 9(3)(i))

1. The defendant's criminal history is set out above. As indicated, he was convicted of common assault arising from his conduct on 15 December 1979 and 4 October 2002. The nature of the charges for which the plea was accepted does not incorporate the sexual element of his conduct (derived from the witness statements) as set out in the narrative above. I have taken these additional matters into account under s 9(3)(i), but not to any significant extent as they were not reflected in agreed facts.

The safety of the community (s 9(3)(a))

1. The matters referred to above tend to establish that the defendant, if released without supervision, or without adequate conditions as to supervision, would pose an unacceptable risk to the safety of adult females. Those women who are alone in a public street or on public transport, particularly in situations where other members of the public are not present, and those who provide sexual services for a living are in jeopardy from the defendant.

Conclusion

1. Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, I am satisfied that the defendant, being a sex offender, poses an unacceptable risk of committing a serious sex offence in the absence of any supervision: State of New South Wales v Donovan at [24] and Lynn v State of New South Wales [2016] NSWCA 57 at [55]. Accordingly, I am satisfied that the defendant is a high risk sex offender within the meaning of s 5B of the Act. I note that, although the extent to which the defendant's liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions, it is irrelevant to the determination of whether the defendant poses an unacceptable risk: Lynn v State of New South Wales at [44], [55]-[58] (per Beazley P), [128] (per Basten JA) and [148] (per Gleeson JA).
2. I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to make an ESO pursuant to ss 5C and 9(1)(a) of the Act on the conditions which have been agreed by the parties (referred to below). I am not satisfied that there are any factors personal to the offender which would militate against the making of the order.

The parties' submissions

1. It was contended on behalf of the defendant that it was not necessary for an ESO to be for the maximum period of five years permitted pursuant to s 10(1A). Mr O'Neil submitted that the objects of the Act could be met with a supervision order of between three and four years' duration. He contended that there was much to be said for encouraging and fostering the close relationship between the defendant and his sister, Lisa, who lives in Queensland. He relied on the evidence of Mr Ardasinski to the effect that it may be that the relative distance from his sister in 2004 was a causative or contributing factor in his offending behaviour in 2004. Mr O'Neil drew on an analogy between a carrot (to provide the incentive) and a stick (to provide punishment) and contended that an order for a period shorter than the maximum of five years would provide an appropriate and effective incentive for the defendant not to re-offend and to comply with the other conditions of his ESO.
2. Mr O'Neil referred me, by way of example, to decisions of this Court in State of New South Wales v Johnson [2016] NSWSC 267 (Hidden J) and Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170 (Button J) in which ESOs for a period less than five years had been made. He also relied on what Hidden J said in State of New South Wales v Conway [2011] NSWSC 925 at [27]-[28]: "[27] I have not found this important question easy to resolve. It is common ground that, in determining the length of an extended supervision order, I should impose an order for the minimum period which achieves the objects of the Act. The basis of Mr Sheehan's view that any re-offending by the defendant would be likely to occur within 3 years of his release is not apparent from his report. I can see the force of the reasoning of Dr Samuels and Dr Allnutt for the desirability of a longer period of supervision. [28] Nevertheless, as Dr Allnutt properly observed, this decision is a legal one, not a clinical one. After careful consideration, I am persuaded by Mr Johnson's submission that 3 years is a significant period in which to monitor the defendant in the community, and provide significant scope for professional intervention. That lesser period, in my view, would provide a greater incentive to the defendant to pursue his rehabilitation and, in particular, to commit himself genuinely to treatment. It should be borne in mind that, by s 10(3) of the Act, this Court could make a further extended supervision order, and s 13 provides for the revocation or variation of an order on the application of the State or the defendant. That being so, the position can effectively be reviewed at the end of the 3 year period."
3. Mr Fernandez submitted that the weight of Mr Ardasinski's opinion, given orally in cross-examination at the final hearing, on the appropriate length of an ESO to be made as a result of the plaintiff's application was substantially diminished by the fact that he had not been privy to the reports of Drs O'Dea and Samuels.

Consideration

1. The diagnosis of Sexual Sadism Disorder is, by its nature, entrenched and tends not to be susceptible to treatment. The long-term risk that the defendant poses to the community is not to be underestimated. His lack of insight into his own risk and the opportunistic impulsivity of his offending behaviour are factors which tend to suggest that rational considerations play little part in his offending behaviour. His inappropriate, criminal and dangerous responses to the frustration of his wishes or desires are, largely, irrational. I regard the prospect that the risk posed by the defendant to the community (and in particular adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as remote, if not entirely fanciful.
2. Although Mr Ardasinski spoke of the benefits of the defendant's reintegration into the community after a lengthy period in custody, he did not address (and was apparently unaware of) the diagnosis of Sexual Sadism Disorder made by the two court-appointed experts. In these circumstances, I do not consider that his oral evidence under cross-examination as to the benefits of making an ESO for a term shorter than five years can be given any significant weight. Nor is his evidence sufficient to displace the combined effect of the two court-appointed experts as to the expected duration of the risk posed by the defendant.
3. These observations ought not be understood as undermining the important role played by the Departmental Supervising Officer in moderating particular conditions as time goes on to give greater latitude to the defendant if his compliance with the ESO is adjudged to warrant it. I understand this flexibility to be a significant means by which the risk posed by persons such as the defendant is ameliorated and managed by Departmental Supervising Officers.
4. There may be cases where it is appropriate to wait and see what progress, if any, is made over a lesser period, such as three years. However in many cases, including, in my view, the present, this approach will not be appropriate. The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. It can hardly be considered beneficial to engender hope in a defendant so as to incline him to modify his conduct on the basis of the "reward" of an ESO for a shorter term in circumstances where there is a well-established long-term risk, such as would lead the plaintiff to bring a further application for, and this Court to grant, another ESO. This occurred in the case of Mr Steadman, in respect of whom a further ESO, for a period of five years, was made following the expiry of the ESO for three years made by Button J: Attorney General for the State of NSW v Steadman (No 2) [2016] NSWSC 606.
5. The risk posed by the defendant is unlikely to abate and is not apt to be controlled by any rational thought-processes of which the defendant is capable. The risk he poses is largely the consequence of an entrenched psychiatric disorder which is not susceptible to treatment. There is no reason to suppose that there will be any significant amelioration of what I have found to be the unacceptable risk posed by the defendant in the next five years. It would not, in my view, be appropriate in these circumstances to grant an ESO for a period less than the five-year maximum permitted by the Act.

Conditions

1. At the commencement of the hearing on 12 October 2016 the parties announced that they had agreed to an amendment to condition 32 in the schedule to the summons. In its original form, condition 32 read: "The defendant must not gamble."
2. The amended form of condition 32 is: "The defendant must not gamble unless approved by his DSO [Department Supervising Officer]."
3. Mr O'Neil informed me from the bar table that the defendant wishes to engage in "pro-social" gambling, and instanced the purchase of raffle tickets at fund-raisers and participating in a Melbourne Cup sweep. He submitted that it was appropriate that I give some encouragement to this type of gambling in these reasons since such activities had the potential to assist the defendant to re-integrate into the community after his lengthy period of custody (from 2004 until 2016).
4. I am conscious of the opinions referred to above, including of Mr Ardasinski and Ms Matsuo as well as of Dr Samuels, in which experts have expressed the opinion that gambling has been associated with frustration which has led to offending behaviour. The opinions of those experts do not differentiate between forms of gambling. I am not satisfied that a useful distinction can be drawn for present purposes between raffle tickets on the one hand and poker machines on the other. The effect of the amended condition 32 is to put the question in the hands of the defendant's Departmental Supervising Officer, rather than to impose an outright prohibition on gambling per se. I am satisfied on the basis of the parties' submissions and agreement, that it is appropriate to do so.

Orders

1. I make the following orders: 1. Make an extended supervision order, pursuant to ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), for a period of five years commencing on 14 October 2016 and expiring on 13 October 2021. 2. Direct the defendant, pursuant to s 11 of the Act, to comply with the conditions set out in the schedule to these reasons for the period of the extended supervision order. 3. Order that the interim supervision order made on 12 October 2016 expire and cease to have effect from the time of the making of order (1) above.

SCHEDULE EXTENDED SUPERVISION ORDER CONDITIONS APPLICABLE TO MICHAEL PAUL WEBSTER

Monitoring and Reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3. The defendant must follow all reasonable directions by his DSO or any other person supervising him.
4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring 5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements 6. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period 8. The defendant must not deviate from his approved schedule of movements except in an emergency. 9. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation 10. The defendant must live at an address approved by his DSO. 11. The defendant must be at his approved address between 9:00PM and 6:00AM unless other arrangements are approved by his DSO. 12. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 13. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 14. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions 15. The defendant must not leave New South Wales without the approval of CSNSW. 16. The defendant must surrender any passports held by the defendant to the Commissioner. 17. The defendant must not go to a place if his DSO tells him he cannot go there. 18. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, or where alcohol or drugs are illegally sold.

Part D: Employment, finance and education 19. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 20. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 21. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. 22. The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO.

Part E: Drugs and alcohol 23. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 24. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 25. The defendant must not enter any licensed premises without the approval of his DSO. 26. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association 27. The defendant must not associate with people that his DSO tells him not to. 28. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 29. The defendant must not engage the services of sex workers. 30. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 31. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Gambling 32. The defendant must not gamble unless approved by his DSO. 33. The defendant must seek assistance in controlling his or her gambling, if directed by the DSO.

Part H: Weapons 34. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998. 35. The defendant must not carry on his person, at any time he has left his residence, any knife or other cutting instrument.

Part I: Access to the internet and other electronic communication 36. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. 37. The DSO may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 38. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 39. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 40. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately.

Part J: Search and seizure 41. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 42. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 43. During a search carried out pursuant to condition 41 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 44. The defendant must allow CSNSW to search any phone, tablet device, data storage device, computer or online applications (including emails, websites and social media accounts) that he may use. 45. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 41 to 44 above.

Part K: Access to pornographic, violent and classified material 46. Unless approved in writing by the DSO, the defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part L: Personal details and appearance 47. The defendant must not change his name from "Michael Webster" or use any other name without the approval of his DSO. 48. The defendant must not use any alias, log-in name, or a name other than "Michael Webster" or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 49. The defendant must not change his appearance without the approval of his DSO. 50. The defendant must let CSNSW photograph him. 51. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part M: Medical intervention and treatment 52. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 53. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 54. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 55. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 56. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 57. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. 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: 14 October 2016