State of New South Wales v Webster - [2016] NSWSC 1463 - NSWSC 2016 case summary — Zoe

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State of New South Wales v Webster

[2016] NSWSC 1463

Supreme Court of NSW|2016-10-12|Before: Adamson J

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Source facts

Court

Supreme Court of NSW

Decision date

2016-10-12

Before

Adamson J

Source

Original judgment source is linked above.

Judgment (55 paragraphs)

[1]

Introduction

By summons filed on 27 June 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Michael Webster (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act.
The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing two psychiatrists to examine the defendant and report to the Court on the examinations.
On 18 July 2016 I heard the plaintiff's application for an ISO and for orders under s 7(4) and made orders, including an ISO, and published reasons: State of New South Wales v Webster [2016] NSWSC 999. The ISO has since been renewed twice. The renewed ISO was due to expire on Wednesday 12 October 2016 and was extended by order made on 12 October 2016.
The defendant did not oppose the making of an ESO and accepted that it was open to the Court to be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, the defendant contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of three or four years' duration would be sufficient.

[2]

Evidence

The plaintiff relied on the following evidence: 1. Affidavit of Azam Bulbulia affirmed 27 June 2016 (including Exhibit AYB-1); 2. Affidavits of Paul Nash affirmed 5 October 2016, 10 October 2016 and 12 October 2016; 3. The following reports of the experts appointed by the order under s 7(4) referred to above: a report of Dr Anthony Samuels dated 12 September 2016 and a report of Dr Jeremy O'Dea dated 22 September 2016.
Samuel Ardasinski, a psychologist who specialises in the risk assessment of sex offenders for the Department of Justice and who prepared a risk assessment report dated 11 November 2015 with Ms Matsuo, was required for cross-examination by the defendant. He gave evidence of the beneficial effect on the defendant of contact with one of his step-sisters, Lisa, who lives in Queensland, and who accompanied the defendant to the hearing on 12 October 2016. He agreed that if an order was made for a shorter time than five years, this may aid the defendant's reintegration into the community and provide an incentive for him to comply with conditions and refrain from offending. Mr Ardasinski referred to the circumstance that the defendant had been on parole from December 2000 and did not commit a serious sex offence until May 2004, some three and a half years after his release. He calculated, on the basis of the defendant's prior conduct, that the ESO should be for a period of at least three and a half years but that an ESO for this period would provide some assurance that the defendant had been rehabilitated. In re-examination, Mr Ardasinski confirmed that he had not been privy to the reports of either of the court-appointed experts, Drs Samuel and O'Dea.
Mr O'Neil, who appeared on behalf of the defendant, did not object to any of the plaintiff's evidence, much of which comprised material that had been produced pursuant to orders under s 25 of the Act (referred to below) and was therefore admissible under s 25(3).
The defendant adduced no evidence. It is not appropriate for me to draw any inference against the defendant by reason of his not giving evidence as the Act does not displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts: State of New South Wales v Donovan [2015] NSWCA 280 at [115]-[119] per Beazley P and Macfarlan and Leeming JJA. The applicable law The Act
Section 3 of the Act provides: "Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation."
The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental, as is evident from the wording of s 3(1).
Section 5B provides: "High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence."
Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision provided by an ESO is sufficient to counter what would otherwise be an "unacceptable risk". Supervision can only be regarded as "adequate" if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.
Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision (under an ESO) is, relevantly, a supervised sex offender: s 5I(2).
Section 7 deals with pre-trial procedures and what is to occur following the preliminary hearing. It relevantly provides: "(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application."
Section 9(3) provides that the following (as well as any other matter I consider to be relevant) are to be taken into account in determining whether to make an ESO: "(a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further 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, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order)."
Section 10 provides that an ESO can be made for a total of five years. Section 11 provides for the conditions that may be imposed on an ESO.
These proceedings are civil proceedings and, to the extent to which the Act does not provide otherwise, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: s 21.
Section 25 provides that the plaintiff may, by written order, require the production of documents that relate to the behaviour, or physical or mental condition, of any offender. Any document produced in answer to an order is admissible in proceedings under this Act.

[8]

Sexual offences in 1995 and 1996

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.
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."

[9]

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

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."
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."
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."
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.

[12]

Sexual offences in May 2004

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.
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.
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."
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)."

[13]

Remarks on sentence for 2004 offences

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."
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."
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."
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."

[17]

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

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)."
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."
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)."

[20]

Report of Dr Samuels dated 12 September 2016

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.
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".
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."
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."
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.
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."
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".
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.
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".

[21]

Report of Dr O'Dea dated 22 September 2016

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".
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.
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.
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.
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.
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."

[30]

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))

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.

[36]

The parties' submissions

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.
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."
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.

[37]

Consideration

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.
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.
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.
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.
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.

[52]

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.