State of New South Wales v Wilde - [2014] NSWSC 305 - NSWSC 2014 case summary — Zoe

NSWNSWSC

State of New South Wales v Wilde

[2014] NSWSC 305

Supreme Court of NSW|2014-03-28|Before: Hall J

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Source facts

Court

Supreme Court of NSW

Decision date

2014-03-28

Before

Hall J

Source

Original judgment source is linked above.

Judgment (52 paragraphs)

[1]

Overview 1The State of New South Wales ("the State") applies for a "High Risk Sex Offender Extended Supervision Order" ("ESO") in respect of the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"). 2Proceedings were instituted pursuant to a summons filed by the plaintiff on 13 December 2013. The State's application proceeds upon the basis that the defendant is a high risk sex offender. 3The order sought in the summons seeks: (i) An Extended Supervision Order for a term of five years. (ii) That the order incorporate 65 conditions as set out in the document marked MFI 1. 4The defendant opposes the relief sought by the State. He contends: (i) That no Extended Supervision Order should be made. (ii) Alternatively that none of the conditions sought by the State should be imposed as they are unjustifiably onerous on the defendant's liberty.

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The Statutory Jurisdiction 5In the submissions on behalf of the defendant it was accepted that there is no jurisdictional issue in relation to the application brought by the State. In that respect it was properly conceded that the defendant is a "supervised sex offender" as defined in s 51(2) of the Act. 6The making of an ESO requires the resolution of two conflicting interests or considerations. There is on the one hand, the issue of the safety of the community, which is a primary object of the Act: s 3(1). On the other, there is the liberty of an offender following the period of his sentence. In particular, in this respect, the limitations upon the liberty of a defendant resulting from the operation of an ESO and the conditions which such an order imposes is a significant consideration. Plainly, in determining how these often conflicting interests are to be resolved, there is a need for the determination by the Court as to whether an application under s 5H of the Act for an ESO is supported by cogent evidence on the matters required to be considered by the provisions of the Act. 7The determination by the Court as to whether an ESO ought be made in a particular case involves an assessment by the Court on the evidence of a future possibility, namely, of a risk of a particular kind or kinds of offending and a determination as to whether such risk is "unacceptable" within the meaning of s 5B(2) of the Act. An application under the Act requires consideration of the factual matters set out in s 9(3) in addition to "any other matter it considers relevant": s 9(3). 8Section 5B of the Act provides: 5B 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. (my emphasis) 9The Act requires that an application must be supported by relevant documentation: s 6(3)(a) and (b). Those provisions are in the following terms: "(3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing: (i) a further serious sex offence (in the case of an application for a high risk sex offender extended supervision order), or (ii) a further serious violence offence (in the case of an application for a high risk violent offender extended supervision order). (4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. 10Section 11 provides that an ESO may direct an offender to comply with conditions "as the Supreme Court considers appropriate, including, (but not limited to) requiring the offender to: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name." 11Given the significance of the matters that may be the subject of conditions imposed under s 11 of the Act, it is, as submitted on behalf of the defendant, necessary for a Court determining an application to give effect to the phrase "considers appropriate" in s 11 in considering the "directions" to be made pursuant to the conditions of the ESO. I acknowledge the validity of the submission made on behalf of the defendant in these proceedings that although the discretion of the Court acting under s 11 is a broad one, it must be exercised in conformity with the legislative purpose of the Act: Defendant's Written Submissions at [12]. 12It was there noted that in State of New South Wales v Green (Final) [2013] NSWSC 1003, RA Hulme J at [36]-[38] accepted the following propositions concerning the imposition of conditions: (i) Any conditions attaching to an order ought to specifically address issues relevant to currently identified risk factors in relation to future offending; (ii) Conditions should be limited to addressing conduct regarding the risk of future serious sex offences as opposed to criminal offences generally; and (iii) Given the dual objectives of the Act, the conditions ought not to be unjustifiably onerous or simply punitive. 13In addition, attention was drawn in the written submissions for the defendant to the observations made in State of New South Wales v Fisk [2013] NSWSC 364 at [96]-[99] by his Honour Beech-Jones J in relation to the exercise of the discretion under s 11 in the following terms: "96 In determining whether it is appropriate to include a particular condition, it is necessary to bear in mind that the effect of their inclusion is to expose the offender to criminal sanctions if they are breached. Thus, a proper basis needs to be demonstrated for including the condition in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J) ... ... 99 The imposition of "appropriate" conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high-risk sex offender committing either serious sex offences, or at least offences of a sexual nature. Although it has already been adverted to, this requires consideration to be given to the relevant offences that Mr Fisk may be at risk of committing" 14I accept the following submission made on behalf of the defendant: "Accordingly, the Court must be satisfied as to the appropriateness of any given condition in the context of mitigating the defendant's demonstrated risk of committing future serious sex offences, as opposed to simply being punitive."

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(a) Offending and custodial history 15The defendant has been convicted of sexual offences occurring in 1981, 1983 and 1991. These offences have all involved the defendant forcing women to submit to sexual intercourse at knifepoint. 16The defendant was arrested and charged on 26 March 1981 in relation to the first of what is a series of sexual offences, and that offence occurred on 23 March 1980. At the time of arrest the defendant was 19 years old and subject to a four-year good behaviour bond for break, enter and steal. 17In respect of that first offence, the defendant pleaded guilty to one count of rape and one count of common assault. He was sentenced by Nagle J on 18 November 1981 to five years imprisonment with a non-parole period of two years. 18As a result of escaping from custody whilst in prison, the defendant was not released on parole until 22 June 1983. 19In the months following his release the defendant was acquitted of a charge relating to indecent assault and breaking, entering and stealing. The defendant was, however, found guilty of an offence relating to larceny of a motor vehicle. 20On 2 October 1983, that is, only four months after his release, the defendant was charged in relation to incidents relating to two different females alleged to have occurred in September 1983. The defendant was found guilty of the charges relating to the second female, which included threatening to inflict actual bodily harm with intent to have sexual intercourse. 21In relation to this offence and an additional charge of motor vehicle theft, Mathews DCJ (as her Honour then was) sentenced the defendant to a period of 10 years imprisonment, with a non-parole period of 6 years. 22Mathews DCJ referred to the circumstances of the offence as being "appalling to say the least", and considered the treatment of the victim to be "with the greatest of degradation and depravity". 23The defendant unsuccessfully appealed to the Court of Criminal Appeal. 24He was released on parole on 24 October 1991. 25On 7 November 1991 the defendant was charged with offences relating to break and enter, aggravated indecent assault, and malicious wounding. 26Ducker DCJ found the offences to be "premeditated, and utterly despicable", and considered that the defendant "took advantage of a lone woman in what should have been the safety of her own home to inflict upon her the most degrading humiliating physically painful and distressing non-consensual acts". His Honour also remarked upon the defendant not showing the slightest sign of remorse or contrition, and of his attitude throughout being one of "truculent self-concern" and "total indifference to the suffering of his victim". 27In addition, Ducker DCJ remarked that the defendant "exudes a sense of latent, only barely concealed violence, which does not bode well for his future, nor that of the community when he is released", and further, that: "the present offences were premeditated, cold blooded, humiliating, and terrifying to the victim. And the prisoner emerged, by his commission of these acts, as a dangerous sexual predator who, so long as he was at large within the community, represented a considerable threat to women" 28Ducker DCJ further observed: "The use of knives to intimidate; the apparent need to degrade and humiliate the victims; the choice of victims of lone women in their own homes; the tying up of their hands; the subjecting of his victims to bizarre behaviour (one woman being required to 'bark like a dog' and another being required 'to groan and pretend that she enjoyed it'); the cuts inflicted on the victims; and the resort to bizarre attempts to excuse his conduct by using a similar story, in order to try, perhaps to persuade the victim not to complain, or to otherwise assuage the indignation and desire for retribution of the victim". 29The defendant was found guilty of these offences, and was sentenced by Ducker DCJ on 11 June 1993 to a period of 16 years imprisonment, with a non-parole period of 12 years. During sentencing, Ducker DCJ commented that, "there would need to be an extraordinary change...before he would represent other than a considerable risk if released into the community". 30The defendant was released from custody on 12 September 2008. 31Since this time the defendant has not been charged with any offences. The defendant has, however, since then been subject to various detention and supervision orders, which are detailed below. 32The defendant is presently 52 years of age. Since the age of 19, the defendant has effectively been in the community for a period of only three years.

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(c) Compliance with detention and supervision orders 41Mr Patrick Sheehan, in a Risk Assessment Report prepared for Corrective Services on 14 November 2013, details extensively the extent to which the defendant has complied with and/or breached various conditions of the ESO. I do not propose to address all of these in this judgment, particularly having regard to constraints as to time for the making of orders in the present application and for delivery of this judgment. 42However I note, in particular, the following breaches: (1)On 18 March 2009 the defendant was allegedly in possession of a knife while residing at the Nunyara Community Offender Support Program ("COSP") inside Long Bay Complex. The defendant argued that he was in possession of the knife in order to cut fruit and meat. (2)On 16 October 2009 the defendant verbally abused and used threatening language to staff at the COSP, in breach of a condition of the ESO. The defendant was subsequently sentenced to a period of six months imprisonment. (3)On 1 May 2010 the defendant was convicted of failing to comply with a condition of the ESO by attempting to contact a WIRES staff member via Facebook, and sentenced to a period of nine months imprisonment. (4)On 15 November 2011 the defendant attended the private residence of a female and allegedly requested to be allowed into the house. This was considered to be a deviation from his weekly schedule, and the defendant was subsequently arrested. The defendant entered a plea of guilty and was sentenced to a period of imprisonment for a period of 12 months with a non-parole period of nine months. 43In the defendant's written submissions a number of explanatory or mitigating factors were relied upon as follows: (1)There is no suggestion the defendant has been violent on any occasion since being placed on an ESO. (2)Many of the breaches were "technical" in nature. (3)When examined in their proper context the breaches do not necessarily point towards a risk of the defendant committing serious sex offences. (4)In respect of the first breach, there is no suggestion it was anything more than mere possession of a knife. (5)In respect of the second breach, it is open to infer that such threats were manifestations of angry bluster. (6)In respect of the third breach, there is nothing in the facts to suggest the Facebook friend request was attended by threats or harassment. (7)In respect of the fourth breach, the defendant submits this was a technical breach, and that it appears the Magistrate accepted it was not attended by any sinister intent and did not possess a criminal quality.

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(a) Report of Professor David Greenberg 46Professor Greenberg provided a report dated 2 March 2014, which has been marked as Exhibit "B" in the proceedings. 47This report follows Professor Greenberg's examinations of the defendant on 5 and 14 February 2014, in which Professor Greenberg observed the defendant to be "cooperative and polite". However, it was also noted that: "With regard to his second and third convictions, he maintained that he was innocent and refused to discuss aspects of these offences. He also refused to participate in any discussion into his insights into his sexual offending behaviour. He refused to discuss aspects of his family, sexual and some details of his personal history": Ex B at pp 14-15. 48Professor Greenberg expressed the opinion that the defendant does not have any evidence of any major psychiatric illness such as a psychotic disorder, major mood disorder, or anxiety disorder. Further, that he was unable to diagnose the defendant with sexually deviant (paraphilic) disorder due to the defendant's unwillingness to discuss his prior convictions: Ex B at p 15. 49Professor Greenberg, however, was able to reach a primary diagnosis of "severe entrenched Chronic Personality Disorder with antisocial and narcissistic features" at the "upper range of severity". This disorder, he said, is "chronic, stable and difficult to change": Ex B at p 25. Persons with such a disorder, Professor Greenberg observes, have: "...inflexible patterns of behaviour and have difficulty acknowledging their problems arise within their own personality. They often view the world and everything external to themselves as the cause of their problems rather than owning that the root of their problems lies within themselves": Ex B at p 15. 50With regard to whether the defendant poses a risk of committing further serious sex offences, Professor Greenberg noted that the defendant scored an "8" on the STATIC 99-R assessment scale, which falls within the "high risk category": Ex B at p 18. Professor Greenberg also noted that only 1.5% of all sex offenders would have the same or higher score than the defendant on this scale. Accordingly, he said: "Mr Wilde's risk of "high risk category risk" category is relative to other sex offenders. However his risk of sexual reoffence relative to the general male population without sexual charges or convictions should be regarded as 'higher'": Ex B at p 19. 51Professor Greenberg also assessed the defendant on the Sexual Violence Risk-20 instrument. As a result of this assessment Professor Greenberg considered the defendant's "dynamic risk factors" and concluded that the ultimate issue of whether the defendant will re-offend cannot be stated with any scientific degree of certainty. However, Professor Greenberg noted at page 23 of his report: (1)The defendant's significant static and dynamic risk factors heighten his risk of sexually re-offending. (2)The defendant's current risk for likelihood of committing a further sexual offence would be in the "high risk" category range over the long term. (3)This risk of sexual re-offending is in the high end of risk category relative to other sex offenders. (4)Relative to the general male population, the defendant's risk must be considered much higher in view of the fact that he already has a pattern of convictions for serious sexual offences. 52In respect of the conditions proposed by the State, Professor Greenberg considered these to be "clearly markedly onerous". Further, that: "There have been some minor gains which should be regarded as significant for Mr Wilde with regard to living arrangements, pro-social activities and engagement with psychological services. His Risk Management Plan which is reviewed on a six-monthly basis must provide Mr Wilde with incremental incentives to adopt pro-social behaviour and shift external controls to him adopting more internal controls on his antisocial attitudes, thoughts and behaviours. In my opinion, these conditions are more likely than not to assist a non-recidivistic reintegration into the community": Ex B at p 25 (emphasis in original). 53Accordingly, Professor Greenberg reached the conclusion that the "ESO conditions should allow flexibility for staff professional judgment and for Mr Wilde to be rewarded for adopting positive pro-social goals". Further, that "a period of several years would be justified and in keeping with this diagnosis": Ex B at p 25.

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(b) Report of Dr Anthony Samuels 54Dr Samuels provided a report dated 21 February 2014, which has been marked as Exhibit "A" in the proceedings. 55It should be noted that when the defendant attended on Dr Samuels on 31 January 2014 he presented as "hostile" and "his manner was intimidating and threatening": Ex A at p 19. 56During this appointment the defendant "flatly refused to sign a consent form to participate in the assessment process". Dr Samuels therefore was limited to a "very brief encounter", and was unable to conduct a full interview or examination of the defendant. Accordingly, his report is based on his limited observations and the materials that were provided to him. 57Following a review of the material, Dr Samuels expressed the opinion on page 19 of his report that: (1)There is no evidence the defendant suffers from an affective or psychiatric illness or that he is intellectually disabled; (2)There is evidence of sexual sadism and the significance or purpose of the dildos in his possession is unclear; (3)The presence of a paraphilic disorder cannot be confidently diagnosed or excluded without the opportunity of discussing his sexual offending behaviour; (4)He clearly has antisocial and possibly narcissistic personality features and is likely to score in the range that suggests features of psychopathy. 58Dr Samuels found that "there is a likelihood that he could commit a further serious sex offence", based upon static risk factors and dynamic risk factors, and that this risk is "moderate to high": Ex A at pp 19-20. In respect of this, Dr Samuels observed: "Of greatest concern to me is the fact that even whilst on supervision orders he has continually challenged authority, attempted to evade monitoring, has been caught with a knife and dildos, changed his name, has used aliases to set up computer accounts, and has attempted to enter the home of a female. He has also never fully participated in sex offender treatment and refuses anti-libidinal medication": Ex A at p 20. 59Dr Samuels also expressed the opinion that the defendant's personality factors underpin a lot of his physically aggressive and sexualised behaviours, and was of the view that these behaviours are entrenched, and that "these drives are persistent": Ex A at p 20. 60Accordingly, Dr Samuels concluded that: "I think it is likely that he will pose a risk of both physical and sexual aggression towards others for the foreseeable future unless physical illness, acquired disability, age related factors or other events and circumstances alter his risk profile": Ex A at p 20. 61Dr Samuels agreed with the State that a "5 year order would seem appropriate at this time": Ex A at p 21. 62However, in respect of the conditions sought, Dr Samuels noted these "would appear to be appropriate but his history, recent behaviours, attitude and demeanour suggest that ensuring his compliance will be challenging".

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(a) Risk Assessment Report 64On 14 November 2013, Mr Patrick Sheehan (Senior Forensic Psychologist) and Ms Danielle Maestro (Director, Sex and Violent Offender Program) prepared a Risk Assessment Report. 65This report noted that: "Mr Wilde has proven a difficult person to manage throughout his ESO. He has for the best part remained resistant and hostile to the supervision process, with little insight into his effect on other people or why supervisors might be concerned by his behaviour": p 13. 66The report did state, however, that "there may be sufficient scope to suggest that supervision has been impactful in reducing Mr Wilde's risk", having regard to the fact that the defendant has not sexually re-offended whilst the present supervision order has been in force. The report also highlighted the various programs the defendant participated in whilst in custody. 67Having regard to the defendant's static and dynamic risk factors, the report concluded the defendant's overall risk as falling within the high risk category with regard to actuarial factors. 68In particular, the report stated: "Like most offenders, Mr Wilde's history does not suggest that he would sexually act out on every opportunity. Were he unequivocally committed to undertaking another sexual offence, he could have done so during his current supervision order. There are likely to be instances where Mr Wilde shows better judgement, does not experience sufficient sexual arousal, or his offence cycle is interrupted by some external factor. The future risk is chronic in nature in that over time as he was exposed to these risk factors without intervention or interruption, there would be less impediments to a sexual offence": p 29 (emphasis added). 69The report additionally recorded Mr Sheehan's opinion: "In my opinion, the overall totality of evidence suggests that Mr Wilde remains in the high risk category of sexual offending relative to other adult male sexual offenders. There has been no identifiable resolution of the factors associate with previous episodes of offending. He is at most escalated risk of engaging in offences related to threatening adult women in their own homes and threatening them with knives, which might meet the technical threshold of the Crimes (High Risk Offenders) Act 2006": p 29. 70The determination of relative risk was decided as a result of the defendant having more elements of risk and less protective factors than other male sexual offenders: p 30. 71In respect of the likely consequences of a further supervision order not being made, the report observed: "It may be that Mr Wilde could independently remain offence free, however, the available evidence suggests to me that his social judgment and decision making continues to be impaired, and in combination with violent/angry thoughts, Mr Wilde remains vulnerable to placing himself in high risk situations": p 30.

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(b) Risk Management Report 72A Risk Management Report was prepared in December 2013 by Kylie Smith (Community Corrections Officer, Extended Supervision Team, Campbelltown Community Corrections), Julie Bates (Unit Leader, Extended Supervision Team, Campbelltown Community Corrections) and Ziggy Abedine (Manager, Extended Supervision Team). 73The report detailed the defendant's criminal history, response to supervision, and his breaches of the extended supervision order. The report also observed that the defendant has been resistant to the conditions of his current supervision order, has limited social skills, and has "required intense supervision and a great deal of patience and one to one intervention": p 10. 74The report noted the conclusions in the Risk Assessment Report that the defendant falls within the high risk category for sexual re-offending. The report formulates a risk management plan which focuses on removing opportunities for further offending through intensive monitoring of the defendant and situations that may lead to offending behaviour, so as to practicably manage the defendant in the community. 75This plan suggested: (1)Reporting obligations; (2)Unannounced and random visits, in addition to regular weekly home visits; (3)Electronic monitoring in conjunction with the provision of a schedule of movements; (4)Residing only at accommodation approved by the defendant's nominated departmental supervising officer; (5)Imposition of a curfew; (6)Monitoring of all interactions with the community; (7)Abstinence from illicit substances and alcohol; (8)Restriction on defendant's access to weapons; (9)Participation in monthly one-on-one counselling sessions with the therapeutic manager of Forensic Pathology Services. 76The report observed that electronic monitoring and the implementation of a curfew "are considered vital tools in the management of Mr Wilde as he would be required to account for movements which would assist in providing him with a structured lifestyle": p 9. 77The report also proposed that these conditions be reviewed every six months to determine the necessary degree of supervision and monitoring. 78In summary, the report concluded that: "Given Mr Wilde's history of violent sexual re-offending against adult females, his likelihood of re-offending has been assessed to be in the high risk category. Mr Wilde presents with a history of non compliance and resistance in regard to community supervision and treatment which, when coupled with only a short period of independent living within the community since August 2013 raises serious concerns as to his ability to lead a law abiding lifestyle were he to remain in the community unsupervised": p 9.

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(a) Plaintiff's submissions 86The State submitted that the Court should make a further extended supervision order for a period of five years, subject to the proposed conditions it annexed to its written submissions. 87It submitted that without supervision the defendant presents a significant risk to the community. Further, that when considering all aspects of his conduct and presentation, including his past sexual offending and his actions over the past five years whilst subject to the present supervision order, the Court would determine that his risk of committing a further serious sex offence remains high should he not be kept under supervision. 88In support, the State referred to the psychological reports as well as the defendant's offending history and prior breaches of the extended supervision order. 89Despite acknowledging the defendant's recent positive changes, it is argued that these appear to rely heavily upon the support of two particular members of the Christian Motorcycle Club, namely, Ms Bonser and Mr Pearson. The State submitted that the capacity for this relationship to endure in the long term is "tenuous", and that there is a disconnect between the abovementioned Club and the defendant by reason of his pagan and witchcraft beliefs. 90In addition, the State noted that whilst some of the defendant's risk factors may have been resolved, there has been no identifiable resolution of the factors associated with previous episodes of offending. Further, it submitted that the defendant is at a "most escalated risk of engaging in offences related to threatening adult women in their own homes and threatening them with knives". In this respect, the State relies upon the Risk Assessment Report at page 29. 91In respect of the defendant's recent lack of offending, it was the State's submission that this "is a result of the intensive supervision he has been subject to", and whilst there may be potential in the future to reduce aspects of supervision, the defendant's improvements at this stage "are too little and too late to allow a Court to be satisfied that his risk has sufficiently ameliorated to remove supervision".

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(b) Defendant's submissions 92The defendant opposed the making of a further extended supervision order. In the alternative, he opposed the imposition of the conditions sought by the State, which he contended amount to an unjustifiably onerous imposition on his liberty. 93With the exception of the four breaches of the defendant's extended supervision order that were previously discussed, Mr Pararajasingham of counsel who appeared on the application on the defendant's behalf, in his helpful written submissions, noted that the fact that the defendant complied with the conditions attached to the extended supervision order imposed by Price J (apart from the four abovementioned breaches): "...demonstrates a marked change in attitude towards his obligations which militates against any identifiable risk. Separately, it also undermines the need for the imposition of any conditions above and beyond those that the defendant is currently subject to": Defendant's written submissions at p 6. 94Mr Pararajasingham relied upon what was referred to as the defendant's "recent pro-social advancement", including his relationship with volunteer supports persons Ms Anne Bonser and Mr Barry Pearson, who he met in mid-2012. Since this time, Ms Bonser and Mr Pearson have been: "...actively involved in reintegrating the defendant into society through general socialising attending appointments with the defendant, introducing the defendant to a weekly bible study group, inviting the defendant to take part in community motorbike rides and teaching the defendant various life skills, most recently about mechanics and electronics": Defendant's written submissions at p 7. 95It was submitted that this relationship with Ms Bonser and Mr Pearson is not tenuous. In support of this submission, reliance was placed upon Ms Bonser's affidavit sworn 24 March 2014. 96It was also noted that the defendant was invited to spend Christmas in 2013 with a family he had come to know through his time in custody. 97These relationships, the defendant submitted, "demonstrate that the defendant is on the path towards normalised integration into the community and point away from the likelihood of the defendant committing further serious sex offences". 98Alternatively, it was submitted that should the Court impose an extended supervision order, the defendant's development "ought to be encouraged and supported through the imposition of the least onerous conditions which would enable the defendant to pursue his various avenues of social congress with minimal interference and disruption". 99In addition, Mr Pararajasingham submitted that the defendant has reduced some of his dynamic risk factors, and that "it is open on the material to infer that the defendant has improved his ability to self-monitor and inhibit anti-social thoughts". In support of this, the defendant cited the recent pro-social advances, as well as the sessions with Ms Jenny Howell, a private therapist. 100In respect of the conditions proposed by the State, the defendant submitted that many of these appear to be directed to the prior breaches of conditions. The defendant argued that: "This not only distracts from the purpose behind the imposition of conditions which must be directed towards mitigating an identified high risk of serious sex offending but amounts to a necessarily onerous incursion into the defendant's liberty": Defendant's written submissions at p 14. 101Further, it was submitted that whilst the defendant's prior conduct are matters that "may well be at their highest manifestations of an anti-social trait or a personality order", these: "...do not alone, or in combination with any other matters, warrant the making of an ESO which is directed towards a very specific and high level risk of sexual reoffending, and ought not to be utilised as a means of simply 'keeping tabs' of a belligerent and overbearing person": Defendant's written submissions at p 15. 102Accordingly, it was submitted that if this Court does make an extended supervision order, that "only those conditions deemed appropriate in light of the legislative purpose behind the Act ought to be imposed".

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(a) The requirement that the offender must be a "high risk sex offender" 103As previously noted, this Court may, on application by the State, make an order for the supervision of an offender if the offender is a "high risk sex offender". This requires the Court to be 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": s 5B. 104In reaching this conclusion, the Court is not required to determine that the risk of a person committing a serious sexual offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sexual offence: s 5B(3). 105The defendant's prior convictions evidence that he is a "sex offender", and Price J has previous found that the each of the offences committed by the defendant was a "serious sex offence": Attorney General for the State of New South Wales v Wilde [2007] NSWSC 1490. 106Factors to be taken into account when assessing whether the defendant is a high risk sex offender include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists: Director of Public Prosecutions (WA) v Williams [2007] WASC 206; (2007) 176 A Crim R 110 at [63]. This involves a balancing exercise between the likelihood of a serious sex offence being committed in the future, and on the other hand, the serious consequences for the offender: State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) A Crim R 220 at [90]. 107I note that in Director of Public Prosecutions (WA) v Williams, supra, this Court (Davies J) concluded that although the defendant posed a low risk of committing a serious sex offence, the risk remained unacceptable. 108It has already been observed that the offences committed by the defendant were serious sex offences that involved the use of a knife, and were somewhat similar in their nature. 109The defendant has only spent approximately three years out of prison and in the community since he was 19 years old. 110Since 2008, he has been subject to continuous detention orders and extended supervision orders. His breaches of the conditions of these orders has resulted in him serving further time in prison. 111In considering whether an offender meets the requirements of s 5B, regard may be had to the relevant factors listed in s 9: State of New South Wales v Fisk [2013] NSWSC 364 at [84]. 112Although the defendant has provided an affidavit of Ann Bonser sworn 24 March 2014, which details the various pro-social activities the defendant has engaged in since his release as well as his support network, it is necessary as earlier discussed, that I have regard to the reports ordered pursuant to s 7(4). In their reports, both Professor Greenberg and Dr Samuels agree that there is a high risk the defendant will re-offend, and that the defendant should be subject to some form of an extended supervision order. 113I accept the opinions expressed by both Professor Greenberg and Dr Samuels, which are consistent with Mr Sheehan's stated conclusions. 114Having regard to the relevant reports and the defendant's offending history (including the relevant breaches of conditions imposed upon him), I am satisfied that the defendant is a high risk sex offender, and poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

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(b) Determination of the State's application for an extended supervision order 115In determining whether to make an extended supervision order, the Court is required to have regard to the relevant factors enumerated in s 9 of the Act in addition to any other matter it considers relevant. These include, but are not limited to: (1)The safety of the community; (2)Psychological reports pursuant to s 7(4) or any other psychiatric, psychological or medical reports, and the offender's level of participation in any such examinations or assessment; (3)Any reports prepared by Corrective Services; (4)Any treatment or rehabilitation programs the defendant has participated in; (5)The level of the defendant's compliance with obligations to which he is, or has been, subject; (6)The offender's criminal history; (7)The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender; (8)Any other information that is available as to the likelihood that the offender will in the future commit offences of a sexual nature. 116Whilst I accept that the defendant has made progress in recent years since his release from prison, and in particular, has not committed any further sexual offences in this time, I cannot accept that this does has not occurred by virtue of the defendant having been subject to an extended supervision order during this time. 117In this respect, I note in particular the conclusion reached in the Risk Assessment Report: "The future risk is chronic in nature in that over time as he was exposed to these risk factors without intervention or interruption, there would be less impediments to a sexual offence": p 29. 118I have had regard to each of the matters referred to in s 9(3)(a), (b), (c), (d), (d1), (f), (h) and (h1) and to the other material tendered in evidence to which I have referred above. 119The evidence establishes that the defendant has a high risk of re-offending, and I am satisfied that an extended supervision order should be made. The duration and conditions of this order will be addressed below.

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Conditions of the Extended Supervision Order 126The Court may direct an offender to comply with such conditions the Court "considers appropriate". This accords with the primary object of the Act, which is to "ensure the safety of the community": s 3(1). 127Section 11 of the Act provides a non-exhaustive list of the types of conditions that may be imposed on high risk sex offenders. These include: (1)To permit any corrective services officer to visit the offender at the offender's residential address at any time and to, for that purpose, to enter the premises at that address. (2)To permit any correct services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender. (3)To make periodic reports to a corrective services officer. (4)To notify a corrective services officer of any change to his or her residential address. (5)To wear electronic monitoring equipment. (6)To reside at an address approved by the Commissioner of Corrective Services. (7)Not to reside in or resort to specified locations or classes of locations. (8)Not to associate or make contact with specified persons or classes of persons. (9)Not to engage in specified conduct or classes of conduct. (10)Not to engage in specified employment or classes of employed. (11)Not to change his or her name. 128It was the defendant's submission that the Court must be satisfied as to the appropriateness of any given condition in the context of mitigating the defendant's demonstrated risk of committing future serious sex offences. 129The State annexed to their written submissions a list of the conditions sought. 130In its written submissions on pages 27 to 29 the State highlights certain conditions it proposes and the reasons for them, including the perceived need for electronic monitoring due to the defendant's history of deviating from schedules. 131Mr Pararajasingham drew particular attention to the following proposed conditions: (1)Conditions C(3) and E(4), which relate to a prohibition on associating with outlaw motorcycle gangs, organised criminal networks and criminal organisations; (2)Condition G(1), which relates to access to pornographic, violent and classified material; (3)Conditions I(1)-(3), which relates to the possession or consumption of illicit drugs and alcohol; (4)Condition K(5), which relates to the rights of the Departmental Supervising Officer or any other authorised person to access, inspect, and remove the defendant's computer or other devices. 132I will address the defendant's submission on these proposed conditions, as well as my findings in relation to them below. 133In summary, I have concluded that the conditions referred to below are appropriate to ensure the "supervision" of the defendant during the term of the extended supervision order I will impose. The fact that the conditions may be of a kind appropriate for a range of offenders does not carry the conclusion that they are not appropriate in the defendant's case.

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Proposed Conditions C(3) and E(4) 134In response to concerns raised regarding the wording of conditions C(3) and E(4), the State amended these conditions to now read as follows: C(3): The defendant must not attend any premises that [are frequented by members and/or associates] he knows to be frequented by any person he knows to be a member and/or associate of any Outlaw Motorcycle Gang, Organised Criminal Network, or Criminal Organisation (as declared under the Crimes (Criminal Organisations Control) Act 2012) E(4): The defendant must not associate with any [member and/or associates] person he knows to be a member and/or associate of any Outlaw Motorcycle Gang, Organised Criminal Network, or Criminal Organisation (as declared under the Crimes (Criminal Organisations Control) Act 2012), without the prior approval of the Departmental supervising officer). 135In its written submissions, the State observed that the defendant has stated a desire to engage with such persons and clubs as identified in proposed conditions C(3) and E(4) and accordingly, that such conditions are essential, noting the anti-social behaviours that prevail in those organisations: State's written submissions at p 29. 136In its reply to the amended condition set out above, the defendant maintained his submission that this condition has no proper basis, on the grounds that "no rational link has been established between the existence of outlaw motorcycle gangs, organised criminal networks and criminal organisations and the incidence of serious sex offences". 137I would accept this condition in its amended form addresses relevant risk factors associated with anti-social behaviours that limits the prospect for rehabilitation and re-integration of the defendant into the community. 138The Act specifically foreshadows the making of conditions to prohibit a serious sex offender from associating with specified persons or classes of persons, and I would consider that proposed conditions C(3) and E(4) in their amended form assists in upholding the objects of the Act.

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Part K. Search and Seizure (45)If the Departmental supervising officer 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 any other person present at the defendant's approved address; (b)to monitor the defendant's compliance with this order; or (c)because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the Departmental supervising officer may direct, and the defendant must submit to, a: (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; and/or (f)search and examination of his or her person. (46)For the purposes of paragraph (f): (a)a search of the defendant means either or both a garment search or a pat-down search. (b)to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by an officer of Corrective Services NSW of the same sex as the defendant under the direction of the Departmental supervising officer. 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. (47)During a search carried out pursuant to condition 1, the defendant must allow the Departmental supervising officer to seize any thing found in the defendant's approved address, any vehicle owned, hired by or under the control of the defendant, or on the defendant's person, whether in the defendant's possession or not, which the Departmental supervising officer 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 Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence. (48)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 1 or 3.