State of NSW v AA

Supreme Court of NSW|2021-08-12|Before: Bellew J, Wilson J, Hoeben CJ

INTRODUCTION

By an amended summons dated 14 July 2021, the State of New South Wales (the plaintiff) seeks (inter alia) the following orders: 1. an order pursuant to ss 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the Act) that AA (the defendant) be subject to an Extended Supervision Order (ESO) for a period of five (5) years from the date of the order; and 2. pursuant to s 11 of the Act, an order directing the defendant, for the period of the ESO referred to in (1) above, to comply with the conditions set out in the amended schedule to the amended summons.
Counsel for the defendant made clear his position at the outset of the hearing, namely that he: 1. conceded that all statutory pre-requisites to the making of an order were satisfied; 2. did not wish to be heard against the making of an order but opposed an order for a five (5) year period; and 3. opposed some of the conditions sought by the plaintiff.
The entirety of the evidentiary material relied upon by both parties was contained in a court book which was admitted and marked exhibit "A".

The Continuing Detention Order

The defendant was the subject of a Continuing Detention Order (CDO) made by Wilson J in this Court on 21 May 2020 pursuant to ss 5C and 17(1)(b) of the Act. [1] That order expired on 20 May 2021 at which time the defendant was released, marking the first occasion on which he had been released into the community as an adult. It followed a lengthy sentence of imprisonment imposed on him when he was 17 years of age. The offending which led to that term of imprisonment being imposed is discussed further below.

The Preliminary Application

A preliminary application was heard and determined by Hoeben CJ at CL. [2] The orders made by his Honour on that occasion included an order pursuant to s 7(4) of the Act appointing experts to examine the defendant, and requiring those experts to furnish reports to the Court on the results of those examinations. Pursuant to those orders, two expert reports (the contents of which are discussed further below) are now before the Court, namely those of: 1. Dr Marcelo Rodriguez, psychiatrist, dated 5 July 2021; and 2. Dr Jeremy O'Dea, psychiatrist, dated 8 July 2021.

The defendant's background

The defendant's background is set out in the previous judgment of Hoeben CJ at CL [3] from which I draw part of the following summary.
The defendant is presently aged 31. He is the second of four children to his parents' relationship, and has four younger half-siblings from his mother's subsequent relationship. He is the sixth of those eight children.
At the age of two, the defendant's father committed suicide by shooting himself in front of the defendant and his mother. The defendant was thereafter raised by his mother, who suffered a cerebral vascular incident and cardiac arrest following an assault in 2014.
The defendant is reported to have been unsettled from an early age. His misbehaviour in primary school resulted in his expulsion, following which he moved to the Shoalhaven region at the age of eight, where his conduct at school continued to be disordered, resulting in his placement in a reform facility. He was diagnosed with ADHD when he was aged 10-11 years.
The defendant commenced High School but continued to display behavioural problems. He was unable to read and write and was expelled from school at the age of 13. He then moved to Sydney to live with his aunt where he is reported to have come under the antisocial, and pro-criminal, influence of his uncle. He committed his first offences in company with that uncle in 2013 and was placed in juvenile detention.
The defendant's poor behaviour continued after his release from juvenile detention, resulting in a return to custody where he completed Year 10. He acquired a number of occupational certificates in activities such as bricklaying, horticulture, first aid, hairdressing, welding and forklift driving. Notwithstanding this, when he was arrested for the index offence at the age of 17 he was reported as having no work history in the community.
The defendant reported smoking cannabis on a regular basis between the ages of 13 and 16. He denied using substances during his first sentence in juvenile detention but reported a relapse after his release. He reported smoking methylamphetamine from 15 to 16 years of age once every few weeks. His juvenile record suggests that he continued to smoke cannabis in detention in 2006 and 2007.
The defendant denied any early experiences of childhood sexual abuse, but reported learning about sex through his uncle who had introduced him to pornography, and who promoted impersonal sex. He was sexually active from the age of 13 years, and reported that he commenced regularly attending brothels from the age of 15. He also reported having an estimated 40 to 50 sexual partners when aged between 13 and 16 years, half of whom were reported to be sex workers. He identified as heterosexual and denied any same sex sexual activity in custody. He was arrested for the index offence at age 17.

The defendant's criminal history

The defendant's first convictions for offences of having sexual intercourse without consent and indecent assault were recorded when he was 13 years of age. Those offences were committed along with offences of armed robbery and assault with intent to rob while armed. The circumstances of this offending were summarised by Button J in State of NSW v [AA] (Preliminary) [4] (when considering a previous application brought by the plaintiff for an Interim Detention Order) in the following terms: 4 The objective features of those offences were as follows. On 25 July 2003, the owner of a convenience store in the south-western Sydney suburb of Canley Vale became suspicious of two males, one of whom purchased an item in the store. When she left the store for the day, she saw the same two males approaching her at a very fast pace. She ran into a shop and screamed for assistance. She left the vicinity and drove to a car park in Cabramatta, where the same two males approached her. One of the males used a 50 cm long stick to force her head down into the console, at which point he took her handbag containing $3,000 cash and mobile phones. 5 In the evening of 28 July 2003, a different woman was working at the same convenience store in Canley Vale. She was in the process of transporting the day's taking from the shop to a motor vehicle. She was accosted by a man in his late 20s armed with a 30 cm long knife. She was forced into the car, and the knife held to her throat. The threat was made that, if she did not cooperate, the man would "cut your tongue out". She was forcibly returned to the shop, and grabbed by a second male person from behind, who was the defendant. He was also armed with a 30 cm long knife. He also made threats of death. Both that victim, and the first female victim associated with the shop, were robbed of the contents of their handbags. 6 Shortly thereafter, the defendant insisted that the victim lift her skirt and expose her underwear. She was crying. He ordered her to "shut up". The defendant then digitally penetrated the vagina of the victim, and shone a torch on that part of her body as he did so. He removed his finger, and fondled the outside of her genitalia. At the conclusion of the ordeal, he ordered her to pull her pants up and "keep quiet". Eventually, the assailants left. The victim was terrified during her ordeal. 7 The defendant was 13 years old at the time of those offences...
The defendant pleaded guilty to those offences and was sentenced on 20 August 2004 to a control order of 18 months with a non-parole period of 12 months. Button J noted that on sentence, the Magistrate had observed that the defendant had been under the "pernicious influence" of his uncle, who had been with him at the time, and who had not only caused the defendant to be affected by marijuana but had also exploited him into becoming involved in the offending. [5]
After his release on parole, the defendant's response to supervision was unsatisfactory, particularly in terms of supervision requirements, and a requirement to undergo sex offender treatment. He was returned to custody on 30 January 2005 for breach of parole. The consequence of that breach was that his parole period was extended for one month.
On 26 October 2006, the defendant committed two offences of aggravated break and enter in company and was sentenced to a further control order for nine months, with a non-parole period of six months. On 5 December 2006, he committed other property offences and was sentenced to a control order of 15 months with a non-parole period of three months. The circumstance of aggravation in each count was the use of a knife to threaten to inflict actual bodily harm.
I turn to the index offences.
On 27 March 2008, the defendant was sentenced to imprisonment for 13 years by Sides QC DCJ in the District Court at Campbelltown following his pleas of guilty to: 1. two counts of aggravated sexual intercourse without consent (the circumstance of aggravation being the use of a knife to inflict actual bodily harm) (counts 1 and 2); 2. armed carjacking (count 3); and 3. detaining a person with intent to obtain an advantage (count 4).
His Honour also took into account, when sentencing the defendant for the offending in count 2, an offence of larceny on a form 1.
The circumstances of this offending may be summarised as follows.
On 14 May 2006, the victim drove her car into a service station. When she returned to her car and entered the driver's seat, the defendant opened the passenger door and leapt inside. He pressed a knife against the victim's throat and ordered her to drive. As the victim drove away, the defendant fondled her breasts and attempted to place his hand inside her pants. The victim refused to undo her pants, in response to which the defendant threatened to cut her throat. The defendant ordered the victim to stop the car and climb into the back seat. The victim refused and the defendant placed the knife against her throat, grabbed her hair and pulled her head against the headrest. He then pulled the victim into the backseat, removed her pants and underpants and digitally penetrated her vagina (count 1), before inserting his penis into her vagina and ejaculating after a short period of penetration (count 2).
The victim was crying loudly and the defendant placed his hand over her mouth to stop the sound. Having ordered the victim to dress, he searched her wallet and took $75 and a pension card. He then ordered the victim to get out of the car and threatened to shoot her if she told anyone what had occurred. The defendant then drove off in the victim's car (count 3). The detention of the victim in the course of that offending formed the basis of count 4.
When sentencing the defendant, his Honour Judge Sides QC was pessimistic about the defendant's future prospects of rehabilitation, despite his young age. Hs Honour remarked: [6] The Young Offender drove off leaving the victim to her own devices to get home. Before letting the victim go, he made clear to her and he had her address and threatened to have her shot if she dobbed him in. When he spoke to the Juvenile Justice officer he claimed the victim consented to intercourse, denied having a knife, and asserted he met the victim [a stranger] by arrangement to buy "weed"...
His Honour continued: [7] Dr Lennings is of the view that, because of the young offender's delayed social development, he is unable to empathise with the victim and therefore display genuine remorse. This appears to be contradicted by the Young Offender's acknowledgement to the Juvenile Justice officer last year that his crimes would have a significant impact on the victim.
His Honour also said: [8] It is of concern that the Offender claimed to the Juvenile Justice Officer that intercourse was consensual. The Juvenile Justice officer describes him as being in complete denial. Clearly he is not prepared to accept responsibility for his crimes. This is of concern in the context of his prospects for rehabilitation. The nature of his prior convictions adds significantly to that concern. ….. Of concern is the Young Offender's inability to control his impulses. It seems that this increases when affected by drugs and/or liquor. He has taken some steps whilst in custody to address his substance abuse. He did not take any such steps whilst in the community between the offences and his arrest. He appears to have insight into the impact of drugs on his moods but that was the case before he committed these offences. Any resolve he has to remain drug and/or alcohol free has not been tested in the community. His inability to control impulses is of concern and if, as he claims, he was affected by drugs when he committed these offences, that only adds to that concern because of the entrenched nature of his addictions, his inability to address them whilst in the community and the risk of relapse when he returns to the community. Notwithstanding the positive steps referred to earlier the Court is pessimistic about the Young Offender's prospects of rehabilitation and not re-offending.
The defendant was sentenced to imprisonment for a period of 13 years, with a non-parole period of 9 years. The sentences were ordered to be served by the defendant as a juvenile offender until he reached the age of 21. An appeal to the Court of Criminal Appeal against that sentence was dismissed. [9]
The defendant was first eligible for parole on 5 March 2016. On 14 January 2016, the State Parole Authority (SPA) determined that he should not be released on the basis that he needed to engage in rehabilitative programs to address his sex offending behaviour.
The defendant sought release on parole on 5 March 2018 (his next anniversary date). On 12 January 2018, the SPA refused to release him, once again on the principal basis that he needed to complete a program to address his sex offending. It was also noted that whilst in custody the defendant had a number of misconduct charges brought against him. In short, the decisions not to release the defendant on parole were based largely upon his unwillingness to address his sexual offending, to discontinue his use of illicit substances, and to improve his custodial behaviour. The defendant's sentence expired on 5 March 2020. He was eventually released following the expiry of the 12 month CDO ordered by Wilson J.

THE EXPERT EVIDENCE

Dr Furst, Psychiatrist, examined the defendant for the purposes of the previous application for a CDO on and provided a report of 12 April 2020. He concluded that the defendant met the criteria for the diagnoses of: [10] 1. personality disorder (antisocial features); 2. substance use disorder (opiates); and 3. attention deficit hyperactivity disorder (ADHD).
Dr Furst expressed the view that the defendant was at a high risk of committing both a future sexual offence and a future violence offence, [11] and was at an equally high risk of general recidivism. He identified a number of risk factors including the existence of pro-criminal peers and associates, a substance abuse/dependence issue, and an antisocial personality.
Dr Furst further concluded: [12] The appropriate duration of any ESO would be 5 years, as his risk factors place him in a high risk category relative to other sexual offenders, an assessment that is unlikely to change significantly over the next 5 years.
Patrick Sheehan, Forensic Psychologist, examined the defendant on 13 April 2020 and provided a report of 17 April 2020. He concluded that the defendant's overall risk of sexual offending was in the moderate to high range, and that the defendant fell in the high risk category for violent behaviour. [13]
Mr Sheehan further concluded [14] that the defendant had a relatively severe personality disorder of an antisocial type which predisposed him to rule violation, exploitative behaviour, lack of empathy, aggression, impulsivity, recklessness, irresponsibility and having an inability to adjust his behaviour in response to sanction. He concluded: [15] In my opinion, [the defendant's] risk of a serious offence cannot be managed without an order being imposed and I believe his behaviour would unravel rapidly upon release in the absence of external controls. Whilst I see an advantage in [the defendant] completing his current treatment program, my view is that [his] risk of a serious offence could be managed under an external supervision order. Were an extended supervision order to be imposed, the chronic and enduring nature of [the defendant's] personality disorder would in my view suggest that a timeframe at the upper end of the five year range would be appropriate.
Pursuant to the orders of Hoeben CJ at CL, Dr Rodriguez examined the defendant on 17 June 2021. In addressing the defendant's attitude towards his sexual and violent offences, Dr Rodriguez said: [16] He maintained that he had learned from his incarceration, and he now understood the concept of consensual sex. He maintained that he did not entertain a sexual perversion associated with raping females. …… In regard to his proneness for violence, he said that he engaged in fights in prison only to protect himself. He said he was often targeted for being a rapist and he need it [sic] to "stand up for myself in order to survive". …… In regard to avoiding general offending, he said he would stay away from associates who are clearly engaged in crime and consuming substances. He said he now had ample family support and he did not want to engage and recidivate as that would hurt them again. He said he had received good support for many years now and found family including brothers, sisters, his aunt Kay, as well as his cousins and his Turkish family as people he could rely upon when life became difficult or stressful.
Dr Rodriguez concluded that the defendant met the criteria for diagnoses of antisocial personality disorder and attention deficit hyperactivity disorder, but noted that he functioned at an average range of intellectual functioning, such that he would not meet the criteria for an intellectual disability. [17] He expressed the view that these diagnoses increased the defendant's risk of committing a further serious offence of a violent or sexual nature, saying: [18] Personality pathology, particularly those diagnosed with psychopathic personality, can significantly contribute to further serious offending as entrenched personality disorder can result in poor encoding of information, including an unempathetic understanding of other people's emotional needs, ego-syntonic behaviour aimed at meeting their own needs, impulsivity and heightened arousal.
In terms of the defendant's assessed risk of committing a further serious offence, Dr Rodriguez said: [19] [The defendant] is at increased risk of committing a further serious offence, particularly, if he relapses into substance abuse and has no other avenue than to commit crime. …… The salient points of contribution to his risk of recidivism sexually and violently are: • a history of child abuse and neglect. • witnessing a traumatic event (i.e. his father shooting himself when he was barely a toddler and his uncle shooting a man during a robbery). • a history of conduct disorder. • antisocial personality disorder/psychopathy. • early onset of criminal offending. • substance use from an early age. • lack of prosocial associates and family supports. • a detrimental relationship with a family member which has led to a conditioning process related to offending and a lack of remorse and empathy. • previous sexual offending of two defenceless victims. • stranger victims. • further victimisation of victims (i.e. stealing, psychological threats). • the use of weapons in the sexual offences. • questionable remorse. • lack of therapeutic benefit from custodial programs. • not having lived in the community on his own. • limited social supports in the community. • poor prospects of employment. • high risk of relapse into substance abuse.
Dr Rodriguez went on to say: [20] Given his history of sexual offending, questionable therapeutic benefit from psychological-based sex offender treatment, his risk may only diminish over time; however, he is a young man and only time in supervised care can determine his long-time risk. As [the defendant] ages, his risk may diminish, although there is no guarantee that he would not develop an interest in a new victim or sexually re-offend. Not using substances of addiction, including alcohol, and needing to engage in crime, and have no contact with antisocial/criminal associates will reduce disinhibition and lower his threshold to offend. The most salient risk factor which is of significant concern is [the defendant's] personality disorder. Individuals who are assessed as psychopathic often continue to engage in antisocial acts and adopt an antisocial lifestyle which may not "burn out" until much later in life, if at all. His risk is therefore significant if he is unable to marshal his antisocial make-up. It is particularly concerning that even in custody [the defendant] as reoffended in various ways and has not adhered to stipulated rules. He has often engaged in drug use (i.e. Buprenorphine for example) and has rejected rehabilitation in many instances. It is therefore difficult to suggest that these attitudes will change significantly in the community. His diagnosis of possible ADHD would increase his risk for impulsive behaviour if not treated. It is well-known that offenders with ADHD pose additional risk factors. His ADHD and impulsivity could improve with stimulant medication.
In assessing the defendant's risk of violence, Dr Rodriguez said: [21] His current clinical presentation indicates risk factors related to limited insight into his offending behaviour and possible minimisation of his risk for violence, possible symptoms of mood instability (with only an improvement in a secure environment and strict supervision), and ongoing instability due to personality vulnerability. [The defendant] presents with a number of risk factors that may perpetuate his risk of reoffending. These include: potential problems with professional services and plan; future problems with personal support unless he is able to radically changes support network to non-criminogenic individuals; potential problems with treatment or supervised response (he has a history of non-compliance with authority, which could potentially resurface); and he faces future problems with stress or coping (i.e. he falls into a high risk group for relapse into substance use and faces difficulties obtaining employment in a competitive job market). ……. [The defendant] is assessed as presenting with a high static (historical) risk factors and future risk factors. He therefore falls into a High-Risk group for violent reoffending.
Although Dr Rodriguez concluded that the defendant posed no identified immediate risk to himself, he concluded [22] that overall, he fell into a group of offenders who are at a high risk for sexual offending against adult women, and that it was likely that he could be an opportunistic sexual predator.
When asked for his views about the defendant's ongoing management, Dr Rodriguez said: [23] I do not believe that [the defendant's] risk could be managed in the community without any order. [The defendant] could be suitably managed with an ESO, which would include a comprehensive risk management plan with strict supervision and monitoring. In my opinion an ESO is appropriate for [the defendant] given the risks outlined by the extensive review of documentation, the risk assessment conducted, empirical evidence from such restrictive measures undertaken elsewhere in the world, and my clinical assessment/interview with him.
Dr Rodriguez concluded that the conditions sought by the plaintiff were generally appropriate for the purposes of addressing the defendant's risk of violent and sexual reoffending. [24]
Dr O'Dea examined the defendant pursuant to the orders of Hoeben CJ at CL and provided a report of 8 July 2021. He did not diagnose the defendant as suffering from a major psychiatric illness. [25] However, against a background of the defendant's long-standing history of alcohol and illicit drug abuse, he expressed the view that the defendant met the criteria for a diagnosis of substance use disorder. [26] He also concluded, on the basis of the defendant's history of antisocial behaviour and substance use, as well as his history of offending, that he satisfied the psychiatric diagnostic category for personality disorder with significant antisocial and psychopathic traits. [27]
In terms of ongoing risk, Dr O'Dea concluded: [28] … [I]t would seem reasonable to consider that [the defendant's] risk of engaging in further violent and/or offending behaviours in the community in the long-term may be significantly high, particularly if he were to return to a criminogenic lifestyle and resume alcohol and/or illicit substance use in the community in the long-term; and be appropriate for specific community risk management, including psychiatric assessment and potential treatment as outlined above.
Dr O'Dea identified a series of risk factors over and above the defendant's history of violence and sex offending, his history of substance abuse and his antisocial personality. These factors included: [29] 1. his young age at the time of his previous offending; 2. the fact that his adulthood up until the present time had been largely, if not exclusively, spent in custody; 3. the use of weapons and violence in his offending; 4. the fact that his victims were previously unknown to him; 5. his history of substance abuse; and 6. his pro-criminal peers and associates present in his upbringing, in custody, and potentially in the community in the future.
Dr O'Dea concluded that it was arguable that there was a high degree of probability that the defendant would pose a significant risk of committing a further serious offence if treatment interventions were not successfully implemented in the context of community supervision and monitoring. [30] That said, Dr O'Dea went on to express the view that the proposed conditions (as contained in the original summons), if successfully implemented, could adequately and appropriately manage the defendant's risk of engaging in further violent offending behaviour and adequately and appropriately manage his risk of committing a further serious offence.
Both Dr Rodriguez and Dr O'Dea supported the making of an ESO for a period of five years.
A risk assessment report provided by Mr Richard Parker, Senior Psychologist on 15 July 2019 noted that the defendant's score on relevant testing placed him at the top of the medium/high range of risk of general reoffending. [31]
In an updated report of 26 October 2020, Mr Parker expressed the view that the defendant's offending was underpinned by an antisocial personality, antisocial attitudes and antisocial associates. He noted that the defendant had high scores on actuarial risk assessment instruments, and suffered from a substance abuse disorder. He also made reference to the defendant's erratic lifestyle. [32] Mr Parker concluded: [33] It is important to note that the identified criminogenic needs for [the defendant] will interact with, and reinforce, each other. His personality pattern and antisocial cognition will make it more likely that he associates with other antisocial people and abuses substances. In turn, antisocial associates and substance use also reinforce his antisocial cognition and personality pattern.
A further report of Mr Parker of 2 February 2021 confirmed these views and said: [34] If he is to adopt a law-abiding lifestyle, he will need to learn how to meet his needs whilst living lawfully in society. This will mean retraining thinking patterns that have existed his entire life. He is unlikely to achieve this without substantial support.
A risk management report of 5 February 2021 considered that the defendant's likely response to supervision was difficult to gauge, given that he had spent most of his adult life in custody. [35] Reference was made in that report to Mr Parker's assessment of risk, as well as an assessment conducted in 2015 which found that the defendant fell into the medium to high risk of general reoffending. [36]

THE SCHEME OF THE ACT

Section 9 of the Act confers a discretion on the Court to make an ESO. In determining whether such an order should be made, the safety of the community must be the paramount consideration. [37] As I have previously noted, there is no issue that the statutory pre-requisites in ss 5B(a), (b) and (c) are met.
Whilst counsel for the defendant did not seek to be heard against the making of an ESO, it remains the case that before doing so, I must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under such an order. [38] In determining whether or not to make an ESO, I must have regard to a number of mandatory considerations, to which I now turn.

The defendant's criminal history, his pattern of offending behaviour and the views of any sentencing court [39]

I have set out relevant aspects of the defendant's history of offending. That history shows a pattern of violent and sexual offending. I have also set out, and had regard to, the observations of Sides QC DCJ when sentencing the defendant for the index offences.

Reports received from the persons appointed under s 7(4) [40]

I have set out parts of the reports of Dr Rodriguez and Dr O'Dea. Their opinions unequivocally support the making of an ESO.

Other expert assessments [41]

I have made reference to the opinions expressed by Dr Furst and Mr Sheehan which also generally support the making of an ESO.

Statistical assessments [42]

The results of a number of statistical risk assessments are contained in the report of Mr Parker of 26 October 2020.
The defendant scored 40 out of a possible 54 on the Level of Service Inventory-Revised (LSI-R) which was completed on 14 April 2015, which placed him at the top of the medium/high range. 67% of offenders assessed in than range were returned to custody within 2 years.
The defendant's score on the Violence Risk Appraisal Guide was equal to, or higher than, the score of at least 99% of the sample. 76% of offenders with a similar score reoffended violently within 5 years, and 87% within 12 years.
The defendant's score on the Violence Risk Scale classified him as a high risk and was commensurate with a group of offenders who had a violent recidivism rate of 49% after 4.4 years at risk. A subsequent reassessment saw a reduction in the defendant's score.

Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community. [43]

I have made reference to the reports of Mr Parker who identified a number of risk factors which require ongoing management.

Treatment or rehabilitation programs that the defendant has had an opportunity to participate in and his willingness and level of participation in such program(s) [44]

The defendant has now completed the Violent Offenders Treatment Program. In his report of 26 October 2020, Mr Parker noted that when the defendant was asked to reflect upon what he had gained from the program, he indicated that he had "learned a lot about the emotions related to anger and had decided to cut ties with people who are actively involved in crime, as he understands the risks from associating with such people". [45] At the same time, the defendant had said that he had initially struggled to remain drug free when entering the program, although he had later found it "quite easy to avoid drugs". [46]

Options (if any) available if the defendant is kept in custody or is in the community that might reduce the likelihood of the defendant re-offending over time [47]

The only identified mechanism which might reduce the likelihood of reoffending is the ESO which is proposed.

The likelihood that the defendant will comply with the order and his level of compliance whilst subject to release on parole and his level of compliance with any obligations to which he has been subject while on release on parole or while subject to an earlier extended supervision order [48]

There are references in some of the reports to the fact that the defendant's likely response to supervision was largely unknown given the lengthy time that he had spent in custody. However, there is no suggestion of any failure to comply with the conditions of the interim order made by Hoeben CJ at CL.

CONSIDERATION

I accept the submission of the plaintiff that in determining whether to make an ESO it is necessary to adopt a two-stage approach. The first stage is to consider whether I am satisfied that the test in s 5B(d) of the Act has been met, which is a prerequisite to establishing the power to make the order sought. Once the requisite power has been established, it is then then necessary to make a separate determination of whether that power should be exercised in favour of making an ESO, having regard to s 9 of the Act. [49]
The opinions of Dr Rodriguez and Dr O'Dea expressly support the conclusion that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Dr Rodriguez took the view that the defendant fell into the high risk category for violent offending, and that there was a high risk that he would engage in sexual offending against women. Those opinions were generally supported by the opinions of Dr O'Dea, along with the various other assessments to which I referred.
Dr Rodriguez and Dr O'Dea both identified the defendant's substance abuse disorder, and his personality disorder, as significant risk factors. Both took the view that the entrenched nature of those disorders was such that there was a need for ongoing external intervention and support in order to properly manage them. Other identified risk factors include his propensity to have antisocial and criminal associates, and a lack of proper insight into his offending.
The opinions of both Dr Rodriguez and Dr O'Dea support the conclusion that the defendant's risk of re-offending is such that he cannot be adequately managed without an ESO being imposed. Dr Rodriguez went so far as to say that the defendant's risk of reoffending could not be managed in the community in the absence of an ESO which included a comprehensive management plan, accompanied by strict supervision and monitoring.
In all of these circumstances, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if he is not kept under supervision pursuant to an ESO. In those circumstances, the discretion in s 5B should be exercised in favour of making the orders sought.

CONDITIONS

Counsel for the defendant raised a number of issues in relation to specific conditions sought by the plaintiff in the event that I determined that an ESO was appropriate. I will deal with these issues individually.

The evidence

It is convenient to set out the respective positions of the parties in relation to these conditions by reference to those which were imposed by Hoeben CJ at CL: Plaintiff's position Defendant's position Condition made at preliminary hearing Schedule of movements Schedule of movements Schedule of movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided three days before it is due to start. 5. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel. Such a summary is to be provided on or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 5. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel. Such a summary is to be provided on or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO).
If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 6. If the defendant departs from any summary provided to his DSO in accordance with Condition 5, the defendant must notify his DSO of his change of plans before doing so unless in an emergency situation. 6. If the defendant departs from any summary provided to his DSO in accordance with Condition 5, the defendant must notify his DSO of his change of plans before doing so unless in an emergency situation. The DSO, or delegated officer, shall not disapprove any such change except where reasonably necessary to address a risk of the commission of a serious offence or compliance with another condition in this ESO.
The defendant must not deviate from his approved schedule of movements except in an emergency. Deleted Deleted

In reaching his determination as to these conditions, Hoeben CJ at CL said the following: [50] 122 The defendant noted that the RMR cited the following rationale for why a "Schedule of Movements" condition is required: "A weekly schedule of movement can be developed with [AA] to proactively assess and manage risk in relation to his proposed activities. A schedule of movements would provide [AA] with the opportunity to plan his activities ahead of time in order to minimise impulsive acts of high risk situations, such as engaging with negative peers. Further, this may encourage dialogue and discuss with [AA] in relation to support networks and engagement prosocial activities. A schedule of movements allows Community Corrections opportunity to assess the risks of any activities or potential associations before they occur. [AA's] proposed schedule of movement may be reviewed or modified to mitigate high risk situations (for example, attending locations identified as being involved in illicit substances use, licenced premises or residences of negative peers). A schedule of movements would also assist in monitoring [AA's] planned attendance at interventions and other activities, to gauge his level of supports in the community and any possible withdrawal or disengagement from such support." 123 The defendant submitted that each of the abovementioned goals could be achieved by using his proposal for scheduling, but it did so without being unnecessarily restrictive. The defendant submitted that a similar type of scheduling condition to that suggested by him was imposed in State of New South Wales v Matthews (AKA Hackett) (Final) [2019] NSWSC 1360 and in State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813. 124 The defendant submitted that none of his offences had any geographical connection between them, nor did they relate to a class of victims that had a particular geographical connection. The defendant submitted that when considering his proposed Conditions 5 and 6, regard should also be had to Condition 4 (Electronic Monitoring) which had the capacity to monitor movements of the defendant to ensure that he was complying with his forecast schedule of movements. 125 I have concluded that the proposed conditions for the Schedule of Movements should be those put forward by the defendant. The conditions allow more flexibility for the defendant and provide a greater level of detail as to what should be included in the schedule.
The plaintiff relied on an affidavit of Kelli Grabham of 12 July 2021 in support of its position in relation to these conditions. Ms Grabham is a High Risk Offender Applications and Operational Governance Officer within the Extended Supervision Order team of Corrective Services NSW.
In her affidavit, Ms Grabham addressed a number of issues, including that of scheduling: [51] [19] Speaking generally, to the extent permitted by the order, discretion will be exercised in such a way such that case-managed offenders are subject to stricter monitoring and more restrictive requirements at the beginning of the life of the order. In a case of an offender subject to multiple ESOs, the mere fact of the expiration of one order and the commencement of the following order would not cause any change to the level of monitoring applied - the level of monitoring would rather "roll over" from one order to the next (in the absence of any reason for change). [20] In general, to the extent permitted by an order, discretion will be exercised such that the order's operation is relaxed over time. This, however, is dependent upon the case-managed offender demonstrating commitment to rehabilitation and/or ongoing compliance, etc, noting also the need for community protection having regard to the particular risk factors involved. [21] Two conditions commonly found in ESOs which are subject to particular CSNSW policies are conditions pertaining to electronic monitoring and the requirement to provide schedules of movements. In my experience, these conditions are generally framed in discretionary terms (the offender must wear electronic monitoring equipment if directed by the DSO…", "If directed by the DSO, the offender must submit in advance a schedule of movements…") These conditions generally work together to foster and monitor compliance with the order. If, for example, an offender subject to an ESO submits a schedule of movements indicating he attends TAFE on Thursday evenings in Randwick, but electronic monitoring equipment shows him attending Pitt Street Mall on a particular Thursday, the ESO team can intervene accordingly. These conditions also provide a means for random surveillance of a case-managed offender.
Ms Grabham specifically addressed the imposition of a condition requiring a defendant to provide a schedule of movements and noted, [52] in particular, that such a schedule has the capacity to promote a person's progress under an ESO, and to assist in developing planning and self-management skills by maintaining structure and providing purpose. [53]
The plaintiff also relied upon the affidavit of Angela Rybak of 24 June 2021 in this respect. Ms Rybak is the Senior Electronic Monitoring Officer (SEMO) of the External and Electronic Monitoring Group within Corrective Services NSW. The primary objective of that group is to monitor offenders who are subject to orders requiring electronic monitoring and external leave. In her affidavit Ms Rybak said: [54] [12] Offenders subject to electronic monitoring are typically required to submit to their supervising officers a weekly schedule detailing their proposed daily movements in advance. The schedule details are reviewed and entered into the electronic monitoring system. The electronic monitoring system can then report to and alert staff about deviations by the offender from the schedule.

Submissions of the plaintiff

Counsel for the plaintiff submitted that the conditions imposed by Hoeben CJ at CL were inappropriate and that the need for close and regular supervision of the defendant meant that conditions providing for a schedule of movements were particularly critical. Counsel further submitted that the conditions imposed by Hoeben CJ at CL were not appropriate because they did not require the defendant to record his movements, but required only that he provide a summary of places that he may go. It was submitted that the use and inclusion of the word "summary" was ambiguous, and would result in the condition being difficult to administer.
It was further submitted that the effect of the conditions imposed by Hoeben CJ at CL was that the defendant was not required to inform his DSO of all of the places to which he was going to go, and was not required to inform his DSO of any of the people with whom he intended to associate. It was submitted that these matters were of particular concern in light of the defendant's antisocial peers, his criminal influences, and his risk of substance abuse.
By reference to the affidavit of Ms Grabham, counsel for the plaintiff further submitted that the conditions imposed by Hoeben CJ at CL did not encourage the defendant to prioritise activities or to keep a particular timetable and that this, in turn, tended to undermine one of the important purposes of a schedule of movements, namely to import structure into a defendant's life and to encourage his or her forward thinking. It was submitted that in all of these circumstances it was appropriate to impose the conditions which were sought by the plaintiff.

Submissions of the defendant

Counsel for the defendant submitted that any goal of creating structure in the defendant's life was capable of being achieved through the imposition of the conditions which the defendant had proposed. Counsel submitted that the added advantage of those conditions was that they could be imposed without additional unnecessary rigidity.
It was further submitted that the success of the conditions imposed by Hoeben CJ at CL was evident from the way in which the defendant had positively engaged in the scheduling process through the course of the interim order which his Honour made. In support of that submission, counsel pointed, in particular, to a series of individual entries in the Offender Information Management System which were in the following terms: 27 May 2021 Discussions were also held around scheduling. Overall [the defendant] appears to be putting in effort to comply with his movements with minimal amendments which DSO acknowledged, however he was wanting to attend "drag racing" events which ran past his curfew - DSO encouraged him to engage in activities within his curfew for the coming months which again [the defendant] appeared to accept without issue. 9 June 2021 PC from [the defendant] advising that he has just finished at VOTP and was picked up by his brother. [The defendant] requested to go to Stockland shopping centre to purchase lunch. Approval was given. 14 June 2021 PC from offender request to attend Greystanes shopping centre to get food with cousins. SEMO has advised we cannot approve request and suggested have cousin bring back dinner for him. 27 July 2021 P/C from [the defendant] requesting to go the shops - in discussion [the defendant] confirmed he is aware of the purpose of only going to the shops every second day (Covid, and forward planning, etc). however advised he is struggling with the planning part and keeps needing to go on the days he is not scheduled to do so, and is not going when it is scheduled.
Counsel submitted that these entries demonstrated that the defendant was consistently attempting to comply with the scheduling conditions. Counsel pointed, in particular, to the note of 27 July which, he submitted, highlighted the fact that imposing more rigid scheduling would be highly unlikely to achieve any greater structure in the defendant's life, and may have the opposite effect.
Counsel emphasised that there had been no issues arising in terms of scheduling during the period of the interim order, and submitted that this was a matter from which the Court could take considerable comfort. It was submitted that the defendant's compliance with the conditions attaching to the interim order supported a conclusion that he had insight into his difficulties with planning and that in these circumstances, the imposition of a stricter level of scheduling may not only be confusing for the defendant but could have the effect of discouraging the positive compliance that he had demonstrated thus far.
Counsel for the defendant also pointed to the fact that the that the defendant's proposal for scheduling included a further protection by providing that the DSO would not disapprove of any such change except where reasonably necessary in order to address a risk of the commission of a serious offence or compliance with another condition of the ESO. It was submitted that the inclusion of such a provision would ensure that the DSO would not refuse an alteration of the schedule unless there is good reason to do so.

Consideration

A primary basis of the plaintiff's position on this issue was that the content of any schedule of movements which the defendant is required to provide under the current conditions is ambiguous. The schedules provided by the defendant are annexed to the affidavit of Priscilla Manio of 2 August 2021. In light of their form and content, I am unable to accept the submission that they are ambiguous. On the contrary, they are quite detailed and require the defendant to provide a significant amount of information in relation to activities in which he proposes to engage.
It is also particularly significant, in my view, that there is no evidence of any issue(s) arising from the defendant's compliance with the conditions attaching to the interim order. In my view, those conditions strike an appropriate balance between the need to provide some structure, and the need to do so with an appropriate degree of flexibility. with an appropriate degree of flexibility in doing so. In my view, a degree of such flexibility is required in order to promote the defendant's reintegration into the community.
In all of these circumstances I proposed to impose conditions in the terms imposed by Hoeben CJ at CL.

CONDITION 9 - CURFEW

The present interim order includes a condition requiring the defendant to be at his approved address between 9.00pm and 6.00am unless other arrangements are approved by a DSO.

Submissions of the plaintiff

Counsel for the plaintiff submitted that the imposition of the curfew was an appropriate measure which, together with scheduling and electronic monitoring, was intended to ensure that there was a degree of structure in the defendant's life. Counsel also submitted that the curfew was intended to assist the defendant's reintegration in the community and facilitate his moving away from impulsive behaviour. It was submitted that the curfew was also intended to assist in reducing the risk of the defendant associating with antisocial criminal elements by limiting his movements at night.
Counsel submitted that it was not to the point that even in the absence of a curfew the DSO retained the power to limit the defendant's attendance at unsuitable late night events. It was submitted that the absence of the curfew added to the risk of the defendant attending unsuitable events without first informing his DSO.
It was further submitted that the defendant's personality disorder, his history of substance abuse, and other identified risk factors, indicated that the 9.00pm curfew was appropriate. Counsel also pointed out that the condition in its current terms enabled the DSO to approve a later start time for the curfew, or a change to the 6.00am restriction.

Submissions of the defendant

Counsel for the defendant submitted that the curfew condition acted as an unnecessary and arbitrary limitation on the defendant's freedom, in circumstances where his movements were already regulated. Counsel pointed to an OIMS note of 10 June 2021 which, he submitted, highlighted the issue and which is in the following terms: Question(s) were also raised around the curfew - They discussed routine events they attend such as the disengaged (Julie competes), as well as sporadic events such as family gatherings or outings which [the defendant] isn't able to attend due to the 9pm curfew. DSO encouraged [the defendant] to provide as much notice of these events to DSO as possible, so long as it is a positive pro-social event that he is attending with a reasonable finish time than [sic] DSO is happy to support his attendance to ESO management. They also advised of the limitations that 9.00pm have on them (citing that [the defendant's cousin] often gets home from work at 8.30 and only sees [the defendant] for 10 minutes before he has to leave), with them stating that even 10pm would be a lot more workable for them- DSO acknowledged this empathetically, and suggested to [the defendant] that he bring this up with his solicitor.
It was submitted that this note reflected the fact that despite the curfew condition allowing the DSO to approve other arrangements, the condition itself acted as a limitation on the discretion afforded to the defendant. It was pointed out that even if this condition were deleted, the DSO would retain the power to limit the defendant's attendance at unsuitable late night events. The defendant's alternative position was that the curfew should be expressed to commence at 10.00pm.

CONSIDERATION

In my view, the curfew is a necessary condition in light of the various risk factors which have been identified. However, the evidence to which counsel for the defendant pointed indicates that in its current terms, the curfew may be having the unintended effect of limiting the defendant's association with those members of his family who appear likely to be a positive influence on him.
In these circumstances I propose to impose the curfew condition, but in terms which will require it to commence at 10.00 pm rather than 9.00 pm.

Submissions of the plaintiff

Counsel for the plaintiff submitted that if I reached that conclusion that an ESO was appropriate, I should make any such order effective for a period of 5 years in the exercise of my discretion under s 9 of the Act. In support of that submission, counsel relied upon the opinions of Dr Rodriguez and Dr O'Dea which supported an ESO of 5 years, and which were consistent with the views expressed by Mr Sheahan and Dr Furst. Counsel specifically pointed to Dr Furst's view that the appropriate duration of any ESO was 5 years because the defendant was in a high risk category relative to other sexual offenders, and that this circumstance was unlikely to change significantly over a five year period.
Counsel further submitted that an ESO for a period of 5 years was rendered necessary by the entrenched and enduring nature of the defendant's risk factors. It was submitted that the evidence established that the defendant required substantial support in order to treat and manage his risk factors, particularly his personality disorders and substance abuse. It was further submitted that the defendant required substantial ongoing assistance in transitioning into the community in circumstances where, prior to his recent release, he had never lived in the community as an adult. It was submitted that all of these factors supported the making of an ESO for a period of 5 years.

Submissions of the defendant

Counsel for the defendant submitted that an order of two to three years duration was more appropriate. In support of the submission, counsel pointed to the fact that the defendant's index offences arose from a period when he was a juvenile and that, as a young man of 31 years of age, he found himself in a position where the overwhelming majority of his life had been spent in custodial institutions. It was submitted that that the proposed order of five years would be "overwhelming" and would "extinguish [the defendant's] motivation to continue down his path of rehabilitation". It was further submitted that in order of shorter duration would encourage the defendant's progression through the various stages of his supervision order in circumstances where, in the event that he failed to meet those requirements, there was nothing preventing the plaintiff from seeking a further order at that point.
The alternative position advanced by counsel for the defendant was that if an order was made for a period of five years, a "sunset clause" of three years in be imposed in respect of the conditions governing electronic monitoring and scheduling. It was submitted that adopting such a course would ensure that the defendant was given increased freedoms as he approached the end of the ESO, such that, assuming that he continued successfully during that period, the need for further supervision would be lessened.

CONSIDERATION

The opinions of Dr Rodriguez, Dr O'Dea, Dr Furst and Mr Sheahan all support the making of an ESO for a five year period. Those opinions are underpinned by the existence of a number of identified risk factors. If the defendant demonstrates progress, there is scope to review the conditions imposed and ease aspects of the supervision regime.
I am not satisfied that any of the conditions should be amended or removed after some shorter period. There is no evidentiary basis for doing so. None of the opinions of the experts support such a proposal. In fact, those opinions are generally contrary to such a course being taken.
For all of these reasons, an order for a period of five years is appropriate.

ORDERS

I make the following orders: 1. Pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is to be subject to an Extended Supervision Order for a period of five (5) years from 18 August 2021. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is directed to comply with the conditions set out in the Annexure to this judgment, for the period of the Extended Supervision Order made in (1) above.

Annexure - Amended Schedule of Conditions (108007, pdf)

Endnotes

State of New South Wales v AA [2020] NSWSC 692.
State of New South Wales v AA (Preliminary) [2021] NSWSC 566.
Commencing at [12].
[2020] NSWSC 172.
At [7].
At ROS 2.
At ROS 2.
At ROS 13.
AA v Regina [2009] NSWCCA 109.
At p. 15.
At p. 16.
At p. 18.
At [89] - [90].
At [108].
At [109].
At p. 14.
At p. 15.
At p. 16.
At p. 16 - 17.
At p. 17.
At p. 18.
At p. 20.
At p. 20.
At p. 21.
At [87].
At [88].
At [92].
At [108].
At [109].
At [110].
At [43].
Executive Summary.
At [75].
At [14].
At p.3.
At p.4
Section 9(2).
Section 5B(d).
Sections 9(3)(h) and (h1).
Section 9(3)(b).
Section 9(3)(c)
Section 9(3)(d)
Section 9(3)(d1)
Sections 9(3)(e) and (e1)
At [7].
At [9].
Section 9(3)(e1)
Section 9(3)(e2) and (f)
See generally State of New South Wales v Russell (Final) [2020] NSWSC 396.
At [122] - [125].
At [19].
At [63] and following.
At [71].
At [12]. 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: 18 August 2021

At a glance

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Judgment (32 paragraphs)

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Legislation Cited (1)

Cases Cited (9)