State of New South Wales v Wilmot

Supreme Court of NSW|2019-06-21|Before: Lonergan J

Solicitors: Crown Solicitor's Office (Plaintiff) P White (Defendant) File Number(s): 2019/97095 Publication restriction: Nil

Judgment

By Summons filed on 28 March 2019, the State of New South Wales ("the State"), brought proceedings pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act") against Wayne Wilmot, the defendant, seeking in the alternative on an interim basis an interim detention order ("IDO") pursuant to s 18A of the Act or an interim supervision order ("ISO") pursuant to s 10A of the Act as well as an order pursuant to s 15(4) of the Act for psychiatric and psychological examination.
Final relief in the form of an order for continuing detention ("CDO") for 2 years, or order for extended supervision ("ESO") for 5 years was also sought.
This Court is obliged to conduct a preliminary hearing within 28 days of the filing the application, with further time allowed at its discretion: s 7(3) and s 15(3) of the Act. The hearing proceeded over 2 days, 17 and 21 June 2019, and given that the defendant's custody expires on 26 June, a decision was required with alacrity.
In short I am empowered by s 18A of the Act to make an IDO if it appears that the offender's current custody will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO.

Nature of a preliminary hearing

At the preliminary stage the Court does not have to be satisfied that the matters in the supporting documentation will be proved. The Court is only required to be satisfied that if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof of "a high degree of probability". This does not involve resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function at the preliminary stage to predict the ultimate result or to assess the ultimate result. [1]
The relevant threshold has also been described as "similar to the requirement for a prima facie case to be made out in committal proceedings" [2] and "not a stringent test". [3] It is appropriate to give weight to risk avoidance at the preliminary stage. [4] The Court is best placed to assess the defendant's risk upon receipt of the expert opinions.
Determining the preconditions at the preliminary stage is to be resolved without considering what evidence might be called by the defendant at an interim or final hearing as such evidence would not cast light upon what is alleged in the supporting documentation. [5]
If the relevant threshold is met at the preliminary hearing, the Court is required to order that psychiatric and/or psychological examinations be undertaken of the defendant: s 15(4). Otherwise, the State's application must be dismissed: s 15(5).

Statutory scheme and principles

As set out in s 3(1) of the Act, its primary object 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". A secondary object is to encourage those offenders to undertake rehabilitation.
The Court is empowered by s 18A of the Act to make an IDO if appears to the Court, first, that the offender's "current custody" [6] will expire before the proceedings are determined; and secondly, that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO. The test for the making of a CDO which is as set out in s 5C, and for the making of an ESO as set out in s 5B, is further described below.
The Court is also empowered to make an ISO by s 10A of the Act, if the offender's "current custody" will expire before the proceedings are determined and it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
An IDO and an ISO cannot exceed 28 days, but can be renewed from time to time, but so as not to exceed a total period of 3 months: ss 18C, 10C. Threshold statutory criteria
Having regard to s 5C and Pt 3 of the Act, the Supreme Court may make a CDO against an offender where the following elements are satisfied: 1. the defendant is an "offender" (as defined in s 4A) who is serving or has served a sentence of imprisonment [7] for a serious offence (defined as either a serious sex offence or a serious violence offence); 2. the offender is a "detained offender" or "supervised offender", being relevantly a person who is in custody or under supervision while serving a sentence of imprisonment for a serious offence or under an existing ISO, ESO, IDO or CDO: ss 13B; 3. the application is made in accordance with Part 3 of the Act: s 13A; and 4. the Supreme Court is satisfied to a high degree of probability that the offender poses an "unacceptable risk of committing a serious offence" if not kept under supervision under a CDO: s 5C.
Following amendments to the Act in 2017, [8] the substantive test used to determine the granting of a CDO under s 5C has been modified and now is whether the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
Under s 17(1) of the Act, the Court can dispose of a CDO application in one of three ways: (i) by making a CDO; (ii) by making an ESO; or (iii) by dismissing the application.
In determining whether or not to make a CDO or an ESO, the safety of the community is the paramount consideration for the Court: ss 17(2) (CDO), 9(2) (ESO). When determining an application for a CDO, the Court may regard any matter it considers relevant but must take into account any relevant matters enumerated at s 17(4)(a)-(k).
The Supreme Court may make an ESO against an offender where the following elements are satisfied (see s 5B): 1. the defendant is an "offender" (as defined in s 4A) who is serving or has served a sentence of imprisonment [9] for a serious offence (defined as either a serious sex offence or a serious violence offence) either in custody or under supervision in the community; 2. the offender is a "supervised offender", being relevantly a person who is in custody or under supervision while serving a sentence of imprisonment for a serious offence or under an existing ISO, ESO, IDO or CDO: s 5I; 3. the application is made in accordance with Part 2 of the Act: s 6; and 4. the Supreme Court is satisfied to a high degree of probability that the offender poses an "unacceptable risk of committing a serious offence" if not kept under supervision under an ESO: s 5B.
The Court can dispose of an ESO application by making an ESO or by dismissing the application. The factors listed in s 9(3) must be taken into account, together with any other matters the Court considers relevant.
The statutory preconditions have been conceded in the written submissions provided by counsel for the defendant. The defendant is 46 years old and has been sentenced to imprisonment by way of fulltime detention following his conviction for a serious offence, as defined in s 5(1)(c1), that offence being identified as the offence he committed in company in 1988 which it was accepted would translate to the current offence of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW).

Unacceptable risk of committing a serious offence - principles

The principles were usefully collected in the written submissions of the plaintiff. Counsel for the defendant conceded they were accurately expressed. I set them out in full in the following paragraphs.
Pursuant to ss 5B(d) and 5C(d) of the Act, the Supreme Court may make a CDO or an ESO only if satisfied to a high degree of probability that the offender poses an "unacceptable risk" of committing a serious offence if not kept in detention (CDO) or under supervision (ESO) under the order. Having regard to the authorities that consider the meaning of "unacceptable risk", the following observations may be made as to this test.
First, it was observed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") that a determination of whether a particular risk is an "unacceptable" one falls to be determined in the particular statutory context in which the question arises. [10] The phrase "unacceptable risk" is to be given its everyday meaning within its context and having regard to the objects of the Act. [11] Thus an evaluation of whether an offender poses an "unacceptable risk" for the purpose of the Act must be undertaken having regard to its primary protective purpose, namely to "ensure the safety and protection of the community". In addition, s 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
Secondly, the authorities stress the importance of not putting a gloss on the words "unacceptable risk". A determination as to whether a risk is unacceptable is an "evaluative task" [12] to be made in the relevant circumstances and the required state of satisfaction requires the exercise of a "discretionary judgment". [13] Unacceptability of a particular risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate. [14] The Court may legitimately conclude in some situations that a person poses an "unacceptable risk" for the purposes of the statutory test, even if the likelihood of them committing a serious offence (if not kept under supervision or in detention) is determined to be low, [15] where consequences of the risk should it eventuate are very serious. In this regard, it has been acknowledged that "the potential long term adverse effects associated with child sexual abuse is a matter now well accepted by the courts". [16]
I interpolate here that as currently observed by counsel for the defendant, there is no suggestion the defendant engaged in sexual abuse of children - his offending is all violent and/or violent sexual offending against unaccompanied women.
Thirdly, the expression "high degree of probability" in ss 5B(d) and 5C(d) of the Act indicates that the Court must be satisfied of the existence of a relevant risk to a higher degree than would be the case if the normal civil standard of proof applied, although not to the criminal standard of beyond reasonable doubt. [17] The "high degree of probability" does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk. [18]
Fourthly, the structure of the Act would appear to require that the Court first undertake a determination of whether an offender poses the relevant "unacceptable risk", having regard to the relevant standard (that is, whether it could impose a CDO or an ESO), prior to considering whether or not it should make a CDO or an ESO (having regard to the factors in ss 17(4) and 9(3) for a CDO or an ESO respectively). It is only once the Court has made a determination that an offender poses an unacceptable risk of the relevant kind that the question of whether to make a CDO or an ESO is to be addressed. [19] While it appears that the Court is not mandated to consider all of the matters referred to in ss 9(3) and 17(4) of the Act in determining whether or not it is relevantly satisfied as to the requisite unacceptable risk (as distinct from whether or not it should make the order sought), those matters are ones that are nevertheless apt to inform the application of the test. [20]
Fifthly, the impact of a CDO on the offender's liberty is not properly regarded as a relevant factor in assessing "unacceptable risk", which focuses rather on the assessment of factors relevant to the content of the risk itself. [21] While that matter may be open to be taken into account for the purposes of the Court's exercise of its discretion of whether to make a CDO, [22] as regards an ESO, "discretionary factors would need to be strong before the Court, at an interim proceeding, would refuse an order, after necessarily concluding that the allegations, if proved, amounted to an unacceptable risk posed by a defendant at a highly probable level". [23]

Determination of whether or not to make a CDO or ESO

As noted above, in determining whether or not to make a CDO or ESO under the Act, the safety of the community must be the paramount consideration of the Court: s 17(2).
Pursuant to s 17(4) of the Act (for a CDO) and s 9(3) (for an ESO), in deciding whether or not to make a CDO or an ESO, the Supreme Court must have regard to the following matters, in addition to any other matter it considers relevant: "(a) (Repealed) (b) the reports received from the persons appointed under section 15(4) [or section 7(4), in the case of an ESO] 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 serious 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 serious offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (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, (e1) if the offender is kept in custody or is in the community (whether or not under supervision) - any options available that might reduce the likelihood of the offender re-offending over time, (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order [for an ESO, this paragraph refers to "the likelihood that the offender will comply with the obligations of an extended supervision order"], (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which the offender is or has been subject while on release on parole or while subject to an interim supervision order or an 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 commit a further serious offence, (j) in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order - the nature of the failure to comply with those requirements and the likelihood of further failures to comply, (k) in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender - whether circumstances have altered since the making of the order and whether those altered circumstances mean that the risk of the offender committing a serious offence would be unacceptable unless a continuing detention order were made."
Section 17(4) in relation to a CDO has two further factors to be considered at (j) and (k) in addition to those that are also required to be considered under s 9(3) in respect of an ESO.
Counsel for the plaintiff correctly observed that at this stage of proceedings, consideration of ss 9(3)(b) and 17(4)(b) does not arise as those provisions refer to the reports of the experts appointed by the Court after a preliminary hearing under ss 7(4) and 15(4). Additional matters which do not arise for consideration at present are: 1. ss 9(3)(f) and 17(4)(f), (j) and (k) - the defendant has not previously been subject to an ESO or CDO and was not released on parole. 2. ss 9(3)(g) and 17(4)(g) - the defendant has not been subject of any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004.

Evidence in the supporting documentation of the "matters" required to be considered under s 9(3) or s 17(4)

Prior criminal history and pattern of offending - ss 9(3)(h), 17(4)(h)

The defendant has a history of committing sexual offences against adult women and, [REDACTED], adult males. The defendant has also committed other offences of violence against women. Key aspects of the defendant's offending history are set out below, in chronological order.

Sexual intercourse without consent and related offences: 20 January 1987

The defendant committed his first recorded sexual offence at just 13 years of age.
On 20 January 1987, the defendant approached the adult female victim, RB, from behind as she walked through Minto Park at about 3:30 pm. He threw her to the ground and made threats to kill her and covered her mouth. He removed her clothing. During the attack the defendant touched the victim's vagina, performed cunnilingus, attempted to engage in penile-vaginal intercourse, and attempted to place his penis in the victim's mouth. [24] He was apprehended at the scene, where he stated 'I've…got a problem' and 'this is not the first time I've done this'. [25]
The defendant was subject to a control order, imposed by the Children's Court when he committed the offences. He later entered pleas of guilty to offences of sexual intercourse without consent, [26] attempted sexual assault, [27] assault with intent to commit felony, namely sexual assault, [28] and indecent assault. [29] On 26 March 1987, he was dealt with by Campbelltown Children's Court and committed to an institution.

Obscene exposure and related offences: 19 July 1987

On 19 July 1987 the defendant assaulted and robbed a female victim, CR, of her handbag in a public street in Campbelltown. Before assaulting the victim, the defendant pulled down his tracksuit pants and exposed his penis to her. The defendant was charged with offences of common assault, robbery and wilful and obscene exposure. He was later dealt with by Campbelltown Children's Court, on 30 July 1987 (assault and robbery) and 25 February 1988 (obscene exposure) and a control order for two years with conditions imposed for the assault and robbery, and a two-year probation order imposed for the wilful and obscene exposure.

Indecent assault: 20 July 1987

On 20 July 1987, the defendant, then aged 14 years old, followed the adult female victim, HS, as she pushed her 18-month old son in a pram. As the victim entered an oval near Campbelltown Shopping Centre at about 2 pm, the defendant approached her from behind. He threw the victim to the ground and threatened to kill her when she screamed that she was pregnant. He placed his hand over her mouth and struck her in the face (causing a bloody nose). He touched her vagina over the top of her pants and attempted to pull her pants down. The victim's infant son, who was in his pram, cried. The victim kept screaming and the defendant desisted and ran away. [30] He was charged with indecent assault and pleaded guilty. On 25 February 1998, Campbelltown Children's Court ordered that he be subject to two years' probation, to be supervised by the Department of Youth and Community Services.

Detain with intent to gain advantage, robbery in company, sexual intercourse without consent (4 counts), receiving and obtaining financial advantage by deception: 8 September 1988

On 8 September 1988, the defendant, then aged 15 years old, travelled to Sutherland Railway Station with a female co-offender and male co-offenders. A plan was formed beforehand to randomly abduct a woman to sexually assault her.
In the early evening the victim, Janine Balding, exited the station and was walking to her car. Male co-offenders abducted her at knife point and forced her into the backseat of her car. The defendant drove the car whilst the victim was sexually assaulted in the back seat.
The defendant drove to an isolated spot off the F4 Freeway, where the victim was removed from the car and sexually assaulted further times by the male co-offenders. The victim was then bound, gagged and thrown over a fence. She was then dragged screaming for about 100 metres and held under water in a dam until she drowned. Her naked body was left in the dam. This was done by the male co-offenders without the defendant's involvement (he remained in the car). Some of the victim's personal items were shared and her ATM card used to withdraw money later that same day. The defendant was on bail. He was taken into custody on 10 September 1998 [31] .
On 22 March 1990, Justice Wood sentenced the defendant to a total term of imprisonment of 9 years and 4 months, with a 7 year non-parole period (NPP). The defendant was released to parole on 16 October 1996 [32] .

Robbery: 14 August 1997

On 14 August 1997, the adult female victim,V4, was walking along a street at night in Ashfield. [33] The defendant, then aged 24 years old, ran at the victim from about seven metres away, pushed her down to the concrete paving and stole her handbag. [34] He was on parole when. he committed the offence. He later pleaded guilty to robbery. On 9 June 2000, Judge Graham sentenced the defendant to a term of imprisonment for three years for this offence. His Honour also sentenced the defendant for other offences.

Common assault: 2 October 1997

On 2 October 1997, the defendant approached the adult female victim, DV, in a park in Ashfield as she walked her dog. He walked and spoke with her for a short time. He attempted to kiss her and pushed her shoulders causing her to fall to the ground. She got up and they left the park and went their separate ways. [35] When interviewed by police, the defendant stated that as he and the victim walked "she was just talking, like just being so close and…like eyes kept wandering on to me…we just laughing…she tried to grab me hand sort of thing". [36] He later admitted his guilt for this offence - and it was dealt with as part of a Form 1 when Judge Graham sentenced him for other offences on 9 June 2000.
The defendant was released to bail after being charged with the offences committed on 14 August and 2 October 1997. His parole was not revoked because of the charged offences.

Detain with intent to gain advantage, sexual intercourse without consent (3 counts): 2 June 1998

On 2 June 1998 the defendant, then 25 years old, was sitting at Leightonfield railway station in Villawood at about 6:00am when the 19 year old female victim, SM, a railway employee, arrived at the station for work. As the victim unlocked the station office to enter the defendant rushed from behind striking her to the face. He forced her inside and made her lie on her stomach, tied her hands behind her back and blindfolded her. He removed the victim's clothing and indecently touched her breast area, forcibly performed cunnilingus on her and forced his penis into her mouth. He ejaculated on her face, and then rubbed and smeared his semen over her lips and face. He left her tied up on the floor in the office. [37] The defendant was not charged with this offending until 2004 when a DNA match was identified. He was on bail for the 1997 offences at the time of offending. His parole had expired on 10 January 1998.
On 27 February 2006, Judge Marien sentenced the defendant for offences of detaining and three counts of sexual intercourse without consent following pleas of guilty being entered. Judge Marien sentenced the defendant to a total term of imprisonment of 12 years, with 9 year NPP. Judge Marien remarked that there were "chilling similarities in the nature of his offending … against defenceless women". [38] Judge Marien said that he was satisfied, beyond reasonable doubt, there was a high risk the defendant would re-offend upon release from custody.
On 1 March 2007, the Court of Criminal Appeal (Sully, Bell and Buddin JJ) dismissed an appeal against the sentence imposed by Judge Marien. [39]

Malicious wounding and detain with intent to gain advantage: 29 June 1998

On 29 June 1998 the defendant, whilst still on bail, drove to Glenfield railway station (alone) and pulled his car up beside the 20-year old female victim, V3, who was about to exit her parked car to enter the train station. When the victim opened her driver's side door he lunged at her, pushing her into the front passenger seat and thrusting himself into the driver's seat. A struggle ensued. The defendant had a knife and suffered cuts to his face in the struggle. As the defendant looked for the ignition keys, V3 opened the passenger side door and fled the car. The defendant fled the scene and was apprehended later that day (and has remained in custody since then). He denied committing the offence. [40]
On 9 June 2000, Judge Graham sentenced the defendant for offences including the detaining of the victim near Glenfield railway station and the malicious wounding of her, and for the robbery committed on 14 August 1997. For the offence of detain for advantage the defendant was sentenced to a term of imprisonment of 6 years, with four years NPP. For the offence of malicious wounding, the defendant was sentenced to imprisonment for four years. Judge Graham imposed an effective total term of imprisonment of 9 years, with a 7 year NPP.

Sexual intercourse without consent and indecent assault: [REDACTED]

[REDACTED]
The defendant denied the offences and was found guilty after trial. [41] On 27 November 2015, Judge Townsden sentenced to a total term of imprisonment of 5 years, with 3 years and a 9 month NPP. He is serving the sentence imprisonment imposed for the sexual intercourse without consent (Crimes Act, s 61I) - which is a term of imprisonment of four years (commencing on 27 June 2015 and expiring on 26 June 2019), [42] with two years and a 9 month NPP (which expired on 26 March 2018).

Institutional misconduct findings

The defendant has also incurred proven disciplinary offences on about 20 separate occasions during his period of incarceration. The offences include damage property, fighting, possession or creation of prohibited goods and intimidation. [43] He incurred an institutional charge on 19 January 2018 for the possession of a gaol-made weapon.

Views of sentencing court: s 9(3)(h1), (i)/s 17(4)(h1), (i)

In sentencing the defendant on 22 March 1990 for the offences committed regarding Janine Balding, Justice Wood found the defendant to be 'highly institutionalised' and to lack the social skills and problem-solving abilities for stable community living [44] remains relevant. The defendant was described as having no family or pro-social supports in the community and historically as having failed in forming deep intimate relationships. Those findings remain relevant.
In sentencing the defendant on 9 June 2000 for the offences committed in 1997 and on 29 June 1998, Judge Graham noted the psychiatric opinion of Dr Milton that the commendable efforts of in custody therapeutic providers during the period 1989 to 1996 had "made no difference" and Dr Milton's opinion that the defendant was "quite incapable of engaging in rehabilitation". His Honour considered the defendant's prospects of rehabilitation to be "very guarded". [45]
In sentencing the defendant on 27 February 2006 for the 2 June 1998 offences, Judge Marien found that the victim "was subjected to extreme brutality and sexual violation" by the defendant. [46] That offending had had a devastating impact on the victim's well-being. His Honour appeared to accept the psychiatric opinion of Dr Yvonne Skinner [47] that the defendant suffered a severe personality disorder with borderline and anti-social traits and a substance abuse problem (said to be then in remission) and described Dr Skinner's view of the defendant's prospects of rehabilitation as not being 'optimistic'. His Honour further said: "On all the material before me, and particularly as the Crown described, the chilling similarities in the nature of the offending by this Offender against defenceless women, I am satisfied beyond a reasonable doubt that there is a high risk that he will re-offend upon release." [48]
On 1 March 2007, the Court of Criminal Appeal dismissed the defendant's appeal against the severity of the sentence imposed by Judge Marien. Bell J (with whom Sully and Buddin JJ agreed) relevantly said: "The applicant has a criminal history including for the commission of serious offences of violence against women. He has failed to comply with the conditions of parole and bail. He has an underlying severe personality disorder with borderline antisocial traits. His history of alcohol abuse may have influenced his criminal behaviour and he lacks insight into this condition. Dr Skinner considers that when he is out of the structured prison environment the applicant is likely to have difficulty in coping. It was open to the Judge to assess the applicant's prospects of rehabilitation as he did." [49]
In sentencing the defendant on 27 November 2015 [REDACTED], Judge Townsend found that the defendant continued to show a lack of insight into his offending behaviour, that he presented as "institutionalised", and there was a clear need for intensive intervention in the community upon his release. [50]

Compliance with parole and supervision obligations: s 9(3)(f), (i)/s 17(4)(f), (i)

The defendant has a history of violating parole, supervision and conditional release obligations.
He has committed numerous offences whilst in the community on release to parole or conditional release order (e.g. control order) or whilst on bail. That includes the offences committed on 19 July 1987 (subject to parole order), 8 September 1998 (on bail), 14 August 1997 (on parole), 2 October 1997 (on parole), 2 June 1998 (on bail), and 29 June 1998 (on bail).
In addition, based on her review of Probation and Parole records, Ms O'Neill describes the defendant's time on parole between October 1996 and January 1997 as "chaotic". The relationship he was in whilst on release was characterised by breakups and infidelity. Although he attended supervision sessions, he failed to disclose the fact of his being charged with further offences. [51]

Sex offender treatment or rehabilitation programs: s 9(3)(e)/s 17(4)(e)

In late 2000 the defendant participated in the Education for Sex Offenders program, an 8 session custodial psycho-education program aimed at introducing sexual offenders to issues relating to their offending and to increase their motivation for treatment. The defendant was reported to have participated well without encouragement but: [52] "Throughout sessions, he appeared to have difficulty with the concept of thinking errors. He stated that he does not understand society's standards for sexual contact and demonstrated difficulty understanding issues of consent, denying the need to gain verbal consent. He expressed the belief that his perspectives gained as a "street kid" are reflective of the views of general culture. He demonstrated difficulties in understanding women's rights and the difference between sexually abusive behaviour and flirting. He also expressed the belief that women fantasise about being raped, and that if he feels aroused about a woman, then he has the right to do what he wants. However, he did state that he is aware he has difficulties understanding issues about rape."
On 6 March 2001 the defendant was assessed by a Corrective Services psychologist. He acknowledged having violent thoughts when he saw women "either behaving or dressed provocatively" and sometimes even when he was alone or when no stimulus was present. [53]
On 31 August 2005 the defendant confirmed in writing his acceptance of a placement in the CUBIT Adapted Programme (12-months duration). This meant delaying in his application for release until his completion of the same. [54] That offer of placement was rescinded following the laying of fresh criminal charges for the 2 June 1998 offending. [55]
Between 24 September 2009 and 18 February 2010, the defendant completed 13 sessions of about 16 sessions in the PREP program, a motivational program aimed at increasing an offender's motivation and readiness to participate in sex offender treatment programs. The defendant engaged well but expressed 'concerning' cognitive distortions surrounding women, victimisation and sexual behaviour that the facilitator considered required therapeutic intervention. [56]
In June 2012 the defendant was interviewed about entering the CUBIT programme. [57] He identified his problem as being his "reaction to some women". He reported confusion over what triggered his reaction stating it may be "slutty clothing". There were women he wanted to hurt through violence and these thoughts could "happen in a second". He was unsure of what contributed to his decision to hurt one female but not another, noting there were occasions he was alone with women in a lift or in other circumstances where had thoughts of hurting them "because of how they are walking down the street".
In a pre-treatment CUBIT interview, he was questioned about his prior offending. In an apparent reference to his offending on 29 June 1998, he said: [58] "There was a female [at] a train station that I had a yarn [with] and we did some sexual stuff ("she sucked my dick"). I didn't think there was a sexual assault. She didn't give me any indications. She let me into where she hands out the tickets. She was kissing me back. The only thing she said when I was laying on top was 'just don't put it in my vagina' & I didn't. And she sucked me off instead."
The defendant engaged in fifteen sessions of the CUBIT program during 2012. [59] On 31 August 2012 the defendant was placed on a behaviour management plan and suspended from the program for three months owing to his problematic behaviours including inappropriate behaviour to young female nursing staff, namely purposefully exposing his genital area, aggressive behaviours towards a TAFE teacher and violent behaviour towards his primary therapist during a group session (charged with intimidation misconduct offence). [60]
At this time the defendant was still considered motivated to address his offending behaviour. His eligibility to resume CUBIT was to be reviewed in the latter part of 2012. However, he ultimately did not resume CUBIT at that time following the laying of fresh charges [REDACTED].
On 6 June 2018 the defendant commenced group work in the HISOP program (formerly known as CUBIT). [61]
On 16 November 2018 the HISOP facilitator reported that the defendant continued to attend and participate in all group sessions and to try to complete tasks. The defendant was also reported to be interacting with therapeutic and custodial staff appropriately and attending community activities. [62]
As at 8 February 2019, when Dr Richard Parker completed his risk assessment report (RAR), the defendant was still engaged in the HISOP. He was continuing to struggle with some concepts and had been placed on a Behaviour Management Plan in October 2018 and February 2019. In Community Correction's view, the defendant's willingness to undertake intervention and his motivation to change were questionable. His attitude towards the program was said to be "unconstructive" and he considered it "ineffectual in assisting with his release and reintegration". The defendant reported to Dr Parker that he found the program unhelpful as it was "living in the past". [63]
As at 22 May 2019, the defendant remained in the HISOP program, with outstanding treatment goals, and at that stage it was anticipated that he will be in the program until his sentence expiry on 26 June 2019. [64] There was evidence that after verbal aggression directed towards another inmate on 23 May 2019 he was placed on a behaviour management plan (Exhibit J - Affidavit of Brett Thomson sworn 14 June 2019). More recently, according to the affidavit of Ms Matsuo, Director of Programs, the defendant was removed from HISOP for the following reasons: "a. Ongoing difficulty manage his aggressive/intimidating behaviour and communication style: Mr Wilmot's limited ability to regulate his emotions and manage his behaviour and communication style was identified as a treatment need at the outset and remains problematic. b. Level of Insight: Mr Wilmot generally displays poor insight into his own behaviour and he remains resistant to planning for the future. c. Limited opportunity to discuss sexual offending behaviour: Mr Wilmot continues to report lack of recall or refuses to speak about the index offences. (Mr Wilmot has spoken about the 1998 offence but maintains that it was consensual.) d. Recent decline in behaviour: Mr Wilmot's problematic behaviour outlined above has been managed adequately in the unit using external strategies and structure of the environment. However his ability to self-manage his behaviour even within this environment has deteriorated in recent weeks. This may be in response to stress related current court proceedings." Ms Matsuo confirmed that he has "effectively completed treatment" but has ongoing needs in managing his risk and would benefit from a "step-down process".

Expert assessment and results of any statistical or other assessment: s 9(3)(c), (d)/s 17(4)(c), (d)

The defendant was diagnosed in his early adult life as possibly suffering from schizophrenia, or some other psychotic illness, based on reports he made about hearing voices. Over time, a consensus of sorts developed that the defendant does not suffer from a psychotic illness although the management of difficult behaviours can be assisted with antipsychotic medication. [65]
The defendant has been diagnosed by numerous psychiatrists and psychologists as having a severe personality disorder with antisocial and aggressive traits, or an antisocial personality disorder. [66] This personality disorder manifests in manipulative and aggressive behaviours, along with a propensity to violence and resistance to authority. The defendant also abused illicit substances, with intoxication likely to cause a greater loss of inhibition.
Psychiatrists and psychologists who have assessed the defendant and provided opinions as to his functioning and risk of re-offending include the following.
Dr Rod Milton (consultant psychiatrist): Dr Milton assessed the defendant in 1999. The defendant reported to Dr Milton that, before his arrest, he had established a normal life, that the authorities had taken an unfair attitude to him, and he did not know "how they can say I am a violent man". When asked if he thought it would be all right to sexually assault a woman, the defendant stated "You're looking at it in the law's kind of way. In the law's way it wouldn't be right, but if you've had a hard time with women growing up, you'd probably think in your own mind it was all right".
Dr Milton assessed the defendant as "chronically a very dangerous person" whose risk was likely to persist into the foreseeable future (decades rather than years). The defendant was incapable of rehabilitation and saw others as being responsible for his offending. No treatment could be offered. An environment that provided support, restrictions, limitations on his antisocial behaviour and medication occasionally (when he broke with reality) was "the one likely to do the most for him". [67]
Dr Yvonne Skinner (psychiatrist): Dr Skinner assessed the defendant in 2006. She detected no signs of cognitive difficulty or psychotic phenomena during assessment. In Dr Skinner's view, he did not suffer schizophrenia or any other psychotic illness. Nor was he being prescribed antipsychotic medication. Although he reported hearing voices, his description of those did not fit that of auditory hallucinations of mental illness. The Defendant had an underlying severe personality disorder with borderline and anti-social traits arising from his background of emotional and physical abuse. He also had a problem with substance abuse (in remission). His personality and substance abuse problem influenced his offending with his substance intoxication causing a loss of inhibition. On release from the structured environment of prison, with drugs being available, he will find it difficult to cope and would require assistance. [68]
Ms Ruth Allen (psychologist): Ms Allen assessed the defendant in 2015. [69] The defendant reported to Ms Allen he had seen a counsellor whilst on release to parole in 1996 to 1997 whom he trusted, but she had then spoken of her own rape experience and wore tight clothes and "giving him body messages" which unsettled him. When discussing his offences committed on 2 June 1998 (at the train station), he said he had "considered that she was sending body signals that she was sexually interested in him" but he now understood he misread the signals. He stated he had stopped when she said "no".
In Ms Allen's view, the defendant did not have the cognitive or emotional insight to identify the seriousness of his offences or their impact on others. He appeared to confuse his emotional needs with sexual needs by "misreading the signals". His emotionally isolated and abusive childhood had left him with a core experience of abandonment and no adequate parental figure to impart him sufficient understanding of healthy relationships. He would require a high level of support and monitoring on release, otherwise he would become isolated without support.
Ms Laura O'Neill (forensic psychologist): Ms O'Neill prepared a psychological risk assessment report, dated 17 May 2018, at the request of the State Parole Authority [70] . Ms O'Neill interviewed the defendant four times, extending over some 7 hours, in March and April 2018. Ms O'Neill reported that he presented with a limited range of emotions and poor insight generally. He denied responsibility for the index sexual offences [REDACTED] and minimised the gravity of the offending. Ms O'Neill said: "[The defendant] denied responsibility for the index offences. [REDACTED] Despite denying the offences, [the defendant] also minimised the seriousness of the offending, [REDACTED]."
Of his prior sexual offending, Ms O'Neill reported: "[The defendant] also significantly minimised his prior sexual offending. Attempts to elicit detailed information about his prior sexual offences were unfruitful as [the defendant] denied responsibility for his offences and minimised his behaviour. With regard to his juvenile offending, [the defendant] stated that he could not recall them and that 'it wouldn't have been anything major...it wasn't rooting...maybe touching someone'. When questioned about his obscene exposure charge, [the defendant] reported that he was charged after urinating in public. He reported that he plead guilty to the sexual assault against the female railway employee as he confused it with a consensual sexual encounter he had with a female. He stated that when he saw the victim in court after pleading guilty to the offence, he realised that she was not the woman whom he'd had sex with. During discussions about his alleged offending, [the defendant] commented that he thought it was wrong that the law saw non-consensual penile-oral intercourse as the same as non-consensual penile-vaginal intercourse, and stated that 'there's a lot of people that think the same way'. It appears that these attitudes may be used to justify his offending behaviour. Throughout discussions, [the defendant] continued to deny that he has forced himself sexually on anyone, stating that 'most people just do it (engage in sexual behaviour with him)…they don't give any sign that they don't want it'. When challenged, he did acknowledge that others 'most probably' were intimidated by him. Despite this acknowledgement, he then proceeded to state that they should have made their lack of consent known. On another occasion, he reported that if a person does not say no, and further sexual behaviour occurs, then they must be consenting. These comments indicate that [the defendant] has significant treatment needs regarding understanding consensual sexual behaviour and the minimisation of his offences."
Ms O'Neill assessed the defendant's risk of sexually re-offending by reference to actuarial and other instruments.
Using the STATIC-99R actual risk assessment tool, the defendant scored a '9', which put him in the category of "Well Above Average" risk, being the equivalent to the former category of 'High Risk Level'. The rate of recidivism for individuals with that score is estimated to be about 7 times higher than the rate of recidivism of the 'typical' sex offender.
Using the STABLE-2007 risk assessment tool, the defendant scored a '19' which indicated a high density of criminogenic needs relative to other sexual offenders. The stable dynamic risk factors indicated for him included: 1. capacity for relationship stability - lack of a significant long-term partner and a history of mistrust and superficial relationships. 2. hostility towards women - significant file information evidenced his hostility to women. He acknowledged problems communicating with them and appeared to sexualise his encounters with them, including innocent behaviours (e.g. talking to him). He appeared to alternate between idealisation and devaluation of women. 3. impulsivity - this has been a factor in his past offending and in his difficulties with relationships. 4. poor problem-solving skills - he blames others for his problems and minimises his role in situations. He also had vague plans for the future. 5. negative emotionality - this is the strongest risk factor. He sees himself as a victim of the system and ruminates on perceived injustices and appears vulnerable to emotional collapse when stressed. These attitudes have led to offending. 6. sexual preoccupation - he has extensive sexual offending behaviour, [REDACTED], suggestive of sexual preoccupation. He admitted a 'fairly high sex drive in the past'. Although he reported decreases in that drive in the past five years with less frequent thinking about sex, that appeared contradictory to recent concerns of staff [REDACTED]. Given his primary interest is in adult females, his sexual drive might change on release to the community when surrounded by individuals within his primary interest group. 7. sexual deviance - his offending on at least eight sex offence victims, two of which would be considered deviant under the STABLE-2007 definition, indicate deviance as a risk factor.
In terms of stable dynamic risk factors somewhat or partially present: 1. significant social support and general social rejection - he appeared to have difficulty trusting others and has developed few relationships. Whilst he has a few current support people, some of whom are considered positive, he reported being happy having alone time. 2. lack of concern for others - he presented in his discussion of others as self-focused and showed limited victim empathy. 3. sexual coping - there is some suggestion he engaged in some sexual offending whilst upset (an issue requiring further exploration in treatment). 4. poor co-operation with supervision - he continues to demonstrate poor attitudes towards authority figures throughout his life although appears motivated to gain release and willing to engage in recommended programs.
In Ms O'Neill's view, the defendant presented as highly institutionalised and lacking in specific skills and knowledge about life in the community. He had recently reported anxiety about the prospects of release. He had not engaged in external leave programs. Such leave would be critical to reducing his anxiety and improving his prospects of re-integration on release.
Ms O'Neill said in her assessment: "The results of the current assessment estimate that [the defendant] presents as being a high risk of future sexual offending based on the combined risk rating from his Static-99R and STABLE-2007 risk assessments. He has a high level of treatment needs, including addressing his attitudes toward women, understanding of consent. his sexual self-regulation, poor coping and problem solving skills, impulse control management, and his perception that others are responsible for his problems."
More proximate risk factors were difficult to determine. His perception of rejection by a female may lead to increasing hostility to women and impulsive acts to get his needs met. He may also cease associating with positive supports.
Ms O'Neill considered his completion of the CUBIT program before release was a priority. His pattern of externalising responsibility for poor behaviour to others means he avoids changing his behaviour. Ms O'Neill considered this will pose a challenge in the CUBIT therapy and for those supervising.
In terms of future recommendations, placement in the Nunyara Community Offender Support Program (COSP) would be an appropriate short-term accommodation placement upon release, and thereafter other support accommodation such as that provided by Foster House. Staff should continue to monitor his behaviour to female and male staff and co-residents. The defendant also required the assistance of an intensive case management service such as the Community Restorative Centre to assist his transition into the community. Conditions mandating abstinence from drugs and alcohol were also recommended.
Dr Richard Parker (senior psychologist): Dr Parker assessed the defendant in February 2019, to prepare the Risk Assessment Report ("RAR"). Regarding his offending on 2 June 1998, the defendant claimed this was a consensual encounter where "one thing led to another" and that he thought nothing of it at the time. [71]
Using the Psychopathy Checklist-Revised (PCL-R), Dr Parker assessed the defendant as scoring in the 'high' range of psychopathy. That score was on the cusp of the figure commonly used for diagnosis of psychopathy in North America (at [36]). The psychopathic personality may be more concerning than a diagnosis of antisocial personality disorder regarding the person's capacity to inhibit his potentially harmful behaviours in future. Essentially, psychopathy supplies disinhibition or a willingness to break rules. [72]
In terms of actuarial and risk assessment instruments, Dr Parker recorded the defendant had been assessed: 1. in January 2007, using the Level of Service Inventory-Revised (LSI-R), to fall within the High-Risk range of general reoffending. This actuarial instrument indicates a level of risk of general and violent recidivism within 12 months of release and an offender's needs in terms of supervision. [73] 2. in May 2016, using the STATIC-99R, to score '8' which placed him in the 'well-above average risk' category, the risk range formerly called 'high'. His score fell in the 99th percentile, with about 1% of sex offenders having a similar score. Sexual recidivism rates of individuals with the same score would be expected to be 7.3 times that of the 'typical' sex offender. [74] 3. in June 2018, using the STABLE-2007 (which assesses criminogenic needs of an offender relative to other sex offenders), to score '19', which placed him in a high-risk category. Combining the STABLE-2007 and STATIC-99R scores to generate an 'overall risk level', The defendant's scores put him in the 'well above average risk' category. [75] 4. in February 2019, using the VRAG-R (actuarial instrument about violent offending), to fall in the ninth of nine bins. Of the violent offenders falling within that bin with a similar score, 76% of reoffended violently within 5 years and 87% within 12 years. [76]
Regarding self-regulation, the defendant appeared unable or unwilling to regulate his desires generally and not just in relation to his sexual desires. [77]
Regarding intimacy deficits his childhood was marked by a lack of stable and competent care-givers. He had spent the majority of his adult life in custody and there had been an absence of long-lasting relationships involving deep levels of intimacy. [78]
Regarding social supports, the defendant had not had contact with his mother since the early 1990s. He had no contact with his siblings and has very limited contacts in the community. The Nunyara COSP appears to be the most suitable accommodation placement on his return to the community.
Regarding supervision, the defendant had superficially complied with Community Corrections and reverted to serious offending within a year of his release. His behaviour in custody since then suggested this pattern "may well be repeated". [79]
Dr Parker said at [100]-[101]: "Through his upbringing and lengthy incarceration, [the defendant] has developed a set of deep-seated antisocial beliefs. I believe it is these, rather than any underlying deviant sexual arousal, that drive his sexual and non-sexual offending. His psychopathic personality means that the normal inhibitions which restrain most people from offending, and most offenders from committing certain types of offences, are not operative, or are of lesser strength. For most people, guilt operates in a pre-emptive manner to dissuade people from behaviours they judge morally wrong (Parker, 2011) - the absence of guilt removes an important restraint against offending. Motivation to offend is best construed as net motivation - a surplus of drive motivations over restraint motivations, in the presence of opportunity (Parker, 2011). People with high scores on the PCL-R experience less internal restraint to crime and violence; consequently, less motivation is required for crime and violence to occur. Hence, while [the defendant] may not actively seek to sexually or violently offend, the threshold for it to occur is relatively low. The actuarial instruments used in this report place [the defendant] at a high risk of sexual, violent and general recidivism."
Dr Parker further said: "He is currently participating in the HISLOP program, but is unlikely to finish this much before the end of his sentence. He is assessed as being high risk of committing further offences, if released unsupervised at the end of his current sentence." [80]
Regarding risk scenarios, Dr Parker said: "[The defendant] has sexually offended in the community [REDACTED]. While the presence of antisocial peers is a risk factor, he has mostly offended on his own. His personality and his antisocial cognition would appear to be rather constant factors, which underpin his offending. A risk scenario would appear to be any opportunity where a potential victim is alone and [the defendant] is unsupervised." [81]

Report from Corrective Services NSW: s 9(3)(d1)/s 17(4)(d1)

A Corrective Services NSW (CSNSW) "Risk Management Report", dated 3 March 2019, has been prepared by reference to ss 9(3)(d1) and 17(4)(d1) (RMR).
The RMR outlines a risk management plan to assist in the supervision and case management of the defendant, should he become subject to an ESO. Subject to making ESO and imposing requisite conditions, the risk management plan includes: 1. reporting obligations, including interviews with the defendant at his place of residence and unannounced field visits; 2. provision for electronic monitoring with the provision of a schedule of movements; 3. provision for the defendant to reside at approved accommodation; 4. provision for a curfew to be applied flexibly; 5. provision for treatment obligations, including participation in CSNSW's Forensic Psychology Services (FPS) community-based maintenance program (although some noted that the defendant had indicated he would not attend FPS and his preference was to engage with a private psychologist independent of CSNSW).
As to approved accommodation, Mr Corcoran reported the defendant had been approved for placement at Nunyara COSP, a CSNSW operated accommodation centre designed to assist offenders with life skills and their reintegration into the community. Mr Corcoran noted that "it is yet to be determined if the risks outlined in [his report] can be managed within that accommodation centre." [82]
The report notes, in various respects, potential limitations of the management strategy to be applied to the defendant.

Options for reducing likelihood of reoffending: s 9(3)(e1)/s 17(4)(e1)

The Mental Health Act 2007 (NSW) provides a regime to treat non-compliant patients in the community and the possibility of involuntary admission for treatment if such persons pose a sufficient risk to themselves or others. This regime is not available to manage the risks posed by the defendant, taking account that he does not suffer from a diagnosable mental illness.

Likelihood of compliance with ESO: s 9(3)(e2)/s 17(4)(e2)

The defendant's offending history, and his unsatisfactory performance while previously on parole or other forms of conditional liberty, are such as to raise significant concerns as to the likelihood of him complying with an ESO.
Dr Parker observed that the defendant has not been in the community for over twenty years and is institutionalised. In Dr Parker's view, given the defendant's attitudes and personality profile, it is difficult to know whether he would comply with the conditions of an ESO and whether that level of supervision will prevent future offending. [83]

Submissions of the plaintiff as to why an IDO should be made 1. the defendant is assessed as presenting a high risk of sexual recidivism by reference to both static and dynamic risk factors; 2. the defendant has an offending history that can fairly be described as horrendous. In the short period in which he was in the community in 1996 to 1998 he committed violent sexual assaults on no less than four occasions. All offences were committed on vulnerable female victims in public places. The chronicity of the defendant's offending history heighten the risk of his commission of a future serious offence; 3. the defendant is a versatile offender, [REDACTED]; 4. the defendant denies responsibility for the index sexual offences and minimises his prior sexual offending. He lacks insights into his sexual offending and his risk of recidivism; 5. the defendant has a severe personality disorder with antisocial and aggressive traits, or an antisocial personality disorder. This personality disorder manifests in manipulative and aggressive behaviours, along with a propensity to violence and resistance to authority; 6. the defendant has a history of violating parole and supervision requirements. He has committed offences while on parole, on bail, and in breach of probation/supervision orders imposed by the Children's Court; 7. the defendant has spent the majority of his adult life in custody, is institutionalised, and has had no period of supervised parole (or even pre-release leave) regarding his most recent period of incarceration (of over 20 years).

Having regard to the above considerations, there is a real and unacceptable risk of the defendant committing another serious offence if not kept detained. Given his offending history and past non-compliance with parole and bail conditions, it could not be said with any conviction that the defendant would be likely to abide by an ESO (or ISO). Further, and as noted in the RMR, an ESO (or ISO) will not allow 24 hour monitoring and there will be opportunities for the defendant to reoffend.
In State of New South Wales v Sturgeon [2019] NSWSC 559, Garling J said that, having regard to the protective nature of the Act and its primary object, "it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case". [84]
The discretion to make an IDO is enlivened if the Court is satisfied that the defendant's custody will expire before the proceedings are determined and the matters alleged (if proved) justify making an ESO or CDO: s 18A. The power is not contingent power on the Court's satisfaction that the matters allege justify making a CDO rather than an ESO.
It is appropriate for the Court, when dealing with the making of interim orders, to give weight to 'risk-avoidance'. [85] The Court will be best placed to assess the defendant's risk, and whether his risk of future serious offending might be adequately managed in the community, upon receipt of the expert opinions.
In the short time that he has spent in the community as an adult, the defendant committed numerous serious sex offences. All were committed whilst he was subject to conditional release (eg parole or bail). Some offences were impulsive spur of the moment acts whilst others appeared, at least to an extent, premeditated and planned. Many of his past offences have been committed brazenly in public places.
The cognitive distortions underlying that offending continue to be relevant as does his anti-social personality disorder. He appears unable or unwilling to regulate his desires generally and not just in relation to his sexual desires. [86] Normal inhibitions which restrain most people from offending are not operative, or are of lesser strength, in his case. Persons in the community will be at unacceptable risk if they come into unsupervised contact with him, even if that contact is momentary or of short duration.
In Dr Parker's opinion, it is difficult to know whether the defendant would comply with the conditions of an ESO and whether that level of supervision would prevent future offending. [87] In Mr Corcoran's opinion, it is not yet known if the defendant's risks can be managed within the COSP. [88]

Submissions of the defendant as to why an ISO should be made as opposed to an IDO

In his written submissions, the defendant submitted that in exercising its discretion to impose an ISO over an IDO should bear in mind the statement of Allsop CJ in Hands v Minister for immigration and Border Protection [2018] FCAFC 225 ("Hands") at [3]: "By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament."
There was also a (misconceived) submission that Lynn at [129] provided guidance that was support for the proposition that the Court should impose the "least restrictive form of order that can mitigate the risk": "The second step, not reached until the court is comfortably satisfied that the offender presents a heightened risk of further offending, absent supervision, involves a determination of what conditions may be imposed with the purpose of diminishing the risk to an acceptable level. It is self-evident that this will involve a "balancing" exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective. If the evidence suggested that effective supervision (described as "adequate supervision" in s 5G(1)) would not be provided by an extended supervision order, the State might consider an application for a continuing detention order: none was sought in the present case."
Further it was submitted that the defendant had been incarcerated for 21 years, he was not given the opportunity of day release or any supervised release to test his capacity for reintegration, he faces the prospect of further incarceration or supervision "neither of which will be directly attributable to any criminal offence omitted by him", and because of the statutory regime (presumably a reference to the potential maximum penalty if he breaches any ESO), is "in jeopardy" for the maximum penalty of 5 years imprisonment for "prescribed behaviours which could trigger such a sentence" despite those behaviours "not ordinarily being criminal".
In oral submissions it was argued that I should be satisfied an ISO is sufficient as there was a reference to the defendant's behaviour "on the wing" being appropriate and positive in January 2018 and March 2019. Also, in May 2019, the defendant signed a document indicating his willingness to cooperate with a Behavioural Management Plan in HISOP. He has also now in effect completed the requirements of HISOP, according to Ms Matsuo.
It was further submitted that regarding recent behavioural issues, I should take into account the likely destabilising effect of this litigation - as noted may be the case by the psychologist in HISOP. In favour of ISO, it was highlighted that COSP has said that they are able to accommodate the defendant on release. The defendant made efforts to seek parole last year thus showing an interest in release and cooperation with process but parole was refused. In terms of the defendant's previous breaches of parole and bail it was submitted that I should bear in mind that this conduct was over 20 years ago.

Determination

I am satisfied to a high degree of probability that the material relied upon by the State establishes that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
I reject the submission made on behalf of the defendant that I should determine that the risks presented by the defendant can be dealt with by an ISO. The defendant has demonstrated clearly and as recently as February 2019, his ongoing denial and minimisation of the significance of his violent sexual offending. He has a history of noncooperation with parole and bail conditions, not just by not complying with reporting or similar, but by actually committing further violent and/or violent sexual offending when on bail and parole. He also has escaped custody in the past, albeit many years ago now.
Reliance on Hands is misplaced in the context of the legislative scheme underlying this application. Reliance on Lynn is also misplaced. Lynn was there dealing with the question of the "least intrusive conditions" in an ESO, in a case where application for a CDO had not been made. The Court there was not dealing with the question of whether an ISO rather than an IDO should be made.
Whilst counsel for the defendant had little positive material to find amongst the material tendered in support of the application, a couple of positive notes in the case notes - even recently - about incidents of appropriate behaviour in custody or signing a behavioural support plan in May 2019 is not evidence that persuades me that the defendant will cooperate with conditions of an ISO when considered against the background of all the other material. I accept that there may be some de-stabilising effect on behaviour in recent weeks given the application before this Court, but this is simply yet another demonstration of the defendant's ongoing difficulty in regulating his behaviour.
The combination of his psychiatric and psychological profile, his appalling criminal history and pattern of offending, the results of risk assessments by experts, his repeated denials and/or chilling minimisations of his violent sexual offending as recently as February this year, his victim-blaming and externalising of responsibility for his behaviour, his lack of insight, his personality disorder, his antisocial and aggressive traits and behaviours persuade me that the safety of the community is best served by the making of an IDO. Of particular relevance here is Dr Parker's observation that the threshold for sexual or violent offending is relatively low and the risk of offending is basically any opportunity where a potential victim is alone and the defendant is unsupervised.
I have no confidence at all that the defendant would be likely to abide by an ISO. The impetuous violent opportunism of his offending in the past, particularly given what seem to be unchanged prevailing attitudes to his offending behaviour would not be adequately addressed by the monitoring and supervision conditions proposed.

Orders

I make the following orders: 1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. appoint one qualified psychiatrist and one registered psychologist, to conduct separate psychiatric or psychological examinations of the Defendant, as appropriate, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. direct the Defendant to attend those examinations. 1. Pursuant to s 18A of the Act that the Defendant be subject to an interim ''detention order from 26 June 2019 for a period of 28 days. 2. Pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the Defendant to a correctional centre for the duration of the interim order referred to in order 2 above.
Note that on 17 June 2019, the following order was made: 1. Access to the Supreme Court's file is restricted in respect of this proceeding such that access would only be permitted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party's application for access and have been afforded an opportunity to be heard.

Endnotes

State of New South Wales v Sturgeon [2019] NSWSC 559 (Sturgeon) at [5] per Garling J; Attorney General for New South Wales v Tillman [2007] NSWCA 119 (Tillman) at [98].
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11] per RA Hulme J.
State of New South Wales v Lynn [2013] NSWSC 1147 at [17]-[18] per Button J.
Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7]; Sturgeon at [47].
Sturgeon at [6] referring with approval to Tillman at [98].
See s 5I.
Section 4A provides that in order for a person to be an "offender", they must have been sentenced to imprisonment, to be served by full time detention or intensive correction order.
Crimes (High Risk Offenders) Amendment Act 2017 (NSW).
Section 4A provides that in order for a person to be an "offender", they must have been sentenced to imprisonment, to be served by full time detention or intensive correction order.
Lynn, per Beazley P (Gleeson JA agreeing) at [51]-[61]; per Basten JA at [132].
Lynn at [58] per Beazley P; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] per Harrison J (Kamm).
Lynn at [51] per Beazley P.
Lynn at [82] per Basten JA.
State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] per Harrison J; State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] per Wilson J.
Kamm at [43].
State of New South Wales v Jones [2018] NSWSC 459 at [213].
Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
State of New South Wales v Jones [2018] NSWSC 459 at [207]; State of NSW v Fisk [2013] NSWSC 364 (Fisk) at [22], Kamm at [26] and [42], State of NSW v French (Final) [2017] NSWSC 1475 (French) at [42].
See Fisk at [22], Kamm at [42], French at [41].
State of New South Wales v Donovan (2015) 90 NSWLR 389; Lynn at [44], [55]-[58] per Beazley P; [128] per Basten JA; [148] per Gleeson JA.
See Lynn at [48] per Beazley P, at [131] per Basten JA, at [149] per Gleeson JA.
State of NSW v Ceissman [2018] NSWSC 508 at [38] per Rothman J (considering an application for an order under the Terrorism (High Risk Offenders) Act 2017, but having regard to the authorities under the Act.
RB WS 20.1.1987: EW-1 tab 37.
SB WS 20.1.1987 [4]: EW-1 tab 39 p.349-50.
Crimes Act 1900, s 61D(1) (as then in force).
Crimes Act 1900, s 61F (as then in force).
Crimes Act 1900, s 58 (as then in force).
Crimes Act 1900, s 61E(1).
HS WS 20.7.1987: EW-1 tab 30.
Indictment and statement of facts: EW-1 tabs 24-25.
Wood J ROS 22.03.90: EW-1 tab 27.
Graham DCJ ROS 9.6.2000: EW-1 tab 14 p.182-83.
In her statement to police the victim alleged the defendant had used a knife which he held to her throat during the robbery (EW-2 tab 21 [5]-[6], p.162-63) but this was not part of the facts agreed to for conviction/sentence
Statement of facts: EW-1 tab 16 (it is noted the defendant was initially charged with indecent assault - DV alleged in her statement to police that the defendant pinned her on the ground and attempted to undo her top and pants: DV WS 2.10.1997: EW-1 tab 17).
The Defendant ROI 06.10.97 A23: EW-2 vol 1 tab 23 pp195-96.
Judge Marien ROS 27.2.2006: EW-1 tab 11.
Judge Marien ROS 27.2.2006: EW-1 tab 11 p 158.
Wilmot v R [2007] NSWCCA 30.
Judge Graham ROS 09.06.00: EW-1 tab 14.
Judge Townsden judgment: EW-1 tab 7.
Judge Townsden ROS 27.11.15: EW-2 tab 5.
Inmate Profile Document: EW-1 tab 2.
Wood J ROS 22.03.90: EW-1 tab 27 p 308.
Judge Graham ROS 09.06.00: EW-1 tab 14 pp 206-08.
Judge Marien ROS 27.2.2006: EW-1 tab 11 p 163.
Skinner psychiatric report 3.2.2006: EW-1 tab 71.
Judge Marien ROS 27.2.2006: EW-1 tab 11 p 156-58.
Wilmot v R [2007] NSWCCA 30 at [44]: EW-2 tab 9.
Judge Townsden ROS 27.11.15: EW-2 tab 5 p 36-37.
O'Neill psychological report 17.5.2018 (pp 5-6): EW-1 tab 103.
ESOP report Oct 2000: EW-1 tab 124(p 774 of the bundle).
Psychology progress note 6.3.2001.
Consent to decline parole 31.8.2005.
Referral and Application for CUBIT/CORE programme 27.9.2005: EW-1 tab 131.
PREP report 18.2.2010 (Tulloh): EW-1 tab 131.
CUBIT progress notes 25 to 27.6.2012.
CUBIT records (handwritten notes).
CUBIT progress notes: EW-1 tab 132.
CUBIT suspension report 6.9.2012: EW-1 tab 134.
CUBIT progress notes 6.6.2018: EW-1 tab 138.
SORC report 4.12.2018 [14]: EW-1 tab 123 pp 647-648.
RAR [57]: EW-1 tab 5.
Email report of 22 May 2019 of Nicole Ahern, Chief Psychologist, Intensive Therapeutic Programs CSNSW
See for example Dennis report 25.9.1995, Forbrooke psychiatric report 13.5.1997, Roberts psychiatric report 5.11.1998, Milton psychiatric reports, Skinner 3.2.2006, Allen psychological report 7.5.2015.
Ibid.
Milton psychiatric reports 06.09.97, 24.09.99, 05.11.98 and 04.06.99: EW-1 tabs 67-70 (Dr Milton's report 05.11.98 summarises in depth the defendant's psychiatric treatment history prior to 1999).
Skinner report 3.2.2006: EW-1 tab 71.
Allen psychological report 7.5.2015; EW-1 tab 102.
O'Neill report 17.5.2018: EW-1 tab 103.
RAR [48]: EW-1 tab 5.
RAR [38]-[39]: EW-1 tab 5.
RAR [37]: EW-1 tab 5.
RAR [74]-[76]: EW-1 tab 5.
RAR [79]: EW-1 tab 5.
RAR [81]: EW-1 tab 5.
RAR [89]: EW-1 tab 5.
RAR [90]: EW-1 tab 5.
RAR [92]: EW-1 tab 5.
RAR p 3 and [107]: EW-1 tab 5.
RAR [104]: EW-1 tab 5.
RMR 3.3.2019: EW-1 tab 6.
RAR [109]: EW-1 tab 5.
Sturgeon at [7] referring with approval to Tillman at [32].
Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7]; Sturgeon at [47].
RAR [89]: EW-1 tab 5.
RAR at [109].
Risk Management Report dated 3.3.2019, p 3.

Amendments 17 September 2021 - Para 11 line 2 amended "determination" to "detention" Para 12 line 3 amended "EDO" to "ESO". 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: 17 September 2021

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

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