State of NSW v Leddin

Supreme Court of NSW|2022-05-31|Before: Bellew J

INTRODUCTION

By a summons filed on 18 March 2022, the plaintiff seeks various orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). For present purposes, the relevant orders sought are those in paragraphs 1 and 2 of the summons which are in the following terms: 1. an order pursuant to s 7(4) of the Act: 1. appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by date to be fixed by the Court; and 2. directing the defendant to attend those examinations; 1. an order: 1. pursuant to s10A of the Act, that the defendant be subject to an interim supervision order ("the interim supervision order"); 2. pursuant to s10C(1) of the Act, that the interim supervision order be for a period of 28 days, commencing from 00:00, on 8 June 2022; and 3. pursuant to s11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule to this Summons.
The plaintiff relied upon the following affidavits in support of the orders sought, which were opposed by the defendant: 1. Jessica Van Lieven of 17 March 2022; 2. Jessica Van Lieven of 24 May 2022; and 3. Samuel Ardasinski of 19 May 2022.
The orders sought were opposed by the defendant.
Counsel for the defendant accepted that the relevant statutory pre-conditions were satisfied. Specifically, it was accepted that: 1. the defendant is an "offender" for the purposes of the Act; 2. he is a "supervised offender" given that he was, until 8 June 2022, serving a sentence of imprisonment for a serious offence, namely an offence of aggravated sexual assault, which is a serious sex offence; and 3. the application had been made by the plaintiff within 9 months of the expiration of the defendant's current custody or supervision.

THE INDEX OFFENDING

The circumstances of the index offending are set out in an agreed statement of facts and may be summarised as follows. [1]
At about 9:00pm on 12 April 2006, the defendant went out with his brother Daniel, and a friend, Josh Meiselbach (Meiselbach), to celebrate his birthday which had fallen on the previous day. They went to a hotel in Wagga Wagga for short time before moving to another hotel where the defendant drank numerous middies of beer and several shots of rum. The defendant then left his brother and Meiselbach and went to another hotel for short time before going for a walk around the Wagga Wagga CBD.
At about 2:15am on 13 April 2006 the complainant left the Victoria Hotel located in Baylis Street, Wagga Wagga, having met friends there a couple of hours earlier. She went to a taxi rank, where there was a long queue. As she lived a relatively short distance away, the complainant decided to walk home.
The complainant walked south along Baylis Street, towards the Wagga Wagga Railway Station overpass known as "Mothers Bridge". She stopped and leant on a handrail in order to put on some socks. Whilst doing so, she was approached by the defendant who startled her. She said to the defendant: What the fuck are you doing? You scared the shit out of me. The defendant replied: Oh sorry, I didn't mean to.
The defendant continued walking along the bridge but slowed down, looking back at the complainant who was still putting her socks on. The complainant then commenced to walk along the bridge, with the defendant walking several steps ahead of her. At that point the defendant turned and said to the complainant: I've got to walk ten miles to Ashmont, it's gunna take me ages. The complainant said: Can't you get one of your mates to pick you up? The defendant said: No, they're all smashed… whereabouts do you live? The complainant said: Just around the corner.
The defendant and the complainant continued to walk across the bridge, with the defendant in front. When they reached the other side, the complainant walked past the defendant and continued in front of him as she walked up Railway Street. She then realised that the defendant was walking directly behind her at what she estimated was a distance of "about half a step", and quickened her pace. The defendant continued to follow her across Macleay Street and into Erin Street.
As the complainant stepped onto the roadway in Erin Street, the defendant punched her, firstly to her right eye and then to the bridge of her nose, causing a laceration that began to bleed heavily as her eye closed over. As the complainant was bent over on the roadway, the defendant said something to her. The complainant responded by saying: What the fuck? You just hit me. I need help.
The defendant responded by punching the complainant to the right cheek. The complainant began to scream, and lost her shoe on the roadway. The defendant then said to her: If you don't stop screaming I'm going to squeeze my hands around your throat.
The complainant stopped screaming. The defendant then took hold of her, picked up her shoes and handbag, and forced her towards Edmondson Street and into the grounds of Kildare Catholic College. Whilst doing so, the defendant said to the complainant: If you tell anyone about this, I'm going to kill you and then find your family and kill them - everyone of them.
The defendant then forced the complainant onto a grassed area inside the fence line of the College, and said: Take your fucking pants off.
The complainant took off her socks, and the defendant said: No, take your fucking pants off.
Fearing for her life, as well as the infliction of further injury, the complainant removed her leggings from under her skirt. At that point, the defendant pushed the complainant to the chest, causing her to fall backwards, before ripping her underpants from her legs. The defendant then knelt down in front of the complainant, undid his pants and said: How do you want me to fuck you?
The complainant did not reply.
The defendant then lent down and forced the complainant's legs apart before beginning to lick the outside of her vagina, then penetrating her vagina with his tongue. The defendant licked the complainant's genital area extensively for several minutes. [2]
The defendant then moved his body up onto the complainant and forced his erect penis into her vagina, causing her pain. [3] He then said: You know what's going to happen to you if you tell anyone?
The complainant did not respond.
The defendant then grabbed the complainant by the hair and pulled her closer, saying: You are going to die.
The complainant responded: I am going to die.
At that point, the defendant kissed the complainant on the mouth before moving back down between her legs. He licked her vagina for a short moment before again inserting his penis, which was semi-erect, inside her vagina and moved his penis in and out of her vagina [4] before withdrawing it. He then began licking the complainant's vagina again, before inserting his penis into her vagina on numerous occasions. [5] At one point, the defendant withdrew his penis and began to masturbate himself to an erect state, before re-inserting his penis into the complainant's vagina. [6]
The defendant then asked the complainant her name, and told her that he could check her wallet for confirmation. At this point, he became agitated at being unable to maintain an erection and said: You're gunna stay here all night if you have to, until I get it.
The defendant then said to the complainant: Put your arse up, put it up.
As he said that, he forced the complainant's legs back over her head and licked her anus for some time. He then inserted his erect penis into the complainant's anus before his erection subsided. [7] At this point, the complainant's phone rang, and the defendant said: You know what happens to you if you answer your phone when you leave here?
The complainant replied: I'm going to die.
The defendant said: And your family too.
The defendant then put the complainant's legs back down and inserted two fingers into her vagina, causing a sharp pain and extreme discomfort. [8] When doing so, the defendant said: Do you like that?
The complainant did not reply.
The defendant then made another attempt to have intercourse with the complainant by inserting the tip of his penis into her vagina. [9] However, he was unable to have intercourse due to the fact that his penis was in a flaccid state.
At this point, the complainant could hear friends a short distance away on Edmondson Street, towards the school grounds. The defendant said to the complainant: You know that if you tell anyone I'm going to find where you live, fuck you so hard, chop your head off and then kill your family.
At that point the defendant again tried to put his penis into the complainant's vagina. [10]
As the complainant's friends came closer, the defendant told the complainant to "shut up". He brought the complainant to her feet and she began to put her leggings and underpants back on. The defendant snatched them from her, stating: Don't fuckin' put those back on.
A short struggle took place, following which the complainant managed to break free and run towards her friends who were also walking along Edmondson Street. The defendant chased her in an attempt to detain her but once she ran into the street light, he retreated and ran off through the school grounds, taking the complainant's underpants, leggings and one of her shoes with him.
With the assistance of her friends, the complainant attended Wagga Wagga Base Hospital and the police were notified. DNA profiles were obtained from an anal swab taken from the complainant, and from the back inside portion of her skirt.
On 9 June 2006 police executed a search warrant on the defendant's residence, at which time he was arrested and cautioned. He denied the offences, and denied knowing the complainant:
The defendant's DNA was later matched to DNA which was recovered from the complainant's skirt. The defendant also matched a detailed description given by the complainant in terms of (inter alia) height and build. Clothing located at his residence was similar to that described by the complainant. The defendant declined the opportunity to participate in a line up. However, a photographic identification was conducted with the complainant on 13 June 2006, at which time she identified the defendant as her assailant.

THE SENTENCE PROCEEDINGS

The defendant pleaded guilty before the Wagga Wagga District Court to a series of offences and asked the sentencing judge to take into account further matters contained in a Form 1.
When recounting the facts of the offending, the sentencing judge described them as "startling and disturbing", [11] before saying: [12] I do not accept that he does not have any memory of these events in any event. The facts reveal [the defendant] acted with considerable deliberation and whilst he may well have been affected by alcohol, there is nothing in the facts that speaks of [the defendant] having any justification, on the available evidence, for not having any memory at all of what he did. In my view, [the defendant's] assertions of a lack of memory is just a convenient means of him avoiding taking responsibility for his conduct. In that regard I note that there is some suggestion of [the defendant], particularly through the psychologists interview with him for his case, taking responsibility for his conduct, expressing regret and contrition. One can see little evidence of contrition or regret in this matter beyond those assertions recently made to his psychologist. It is impossible for me to conclude in the absence of any evidence from [the defendant] whether any expressions of regret or contrition are genuine. Certainly, there was nothing in his conduct when interviewed by police to reflect any contrition or regret on his part. In my view the delay in him entering a plea of guilty to anything in relation to these matters, bearing in mind one might have thought the Crown case was overwhelming, reflects the fact that there is little contrition in the sense of regret for what he has done to the victim. There may well be regret by [the defendant] for the situation in which he finds himself but that is a totally different matter altogether.
The sentencing judge continued: [13] His criminal history requires some examination. He first started to appear in the Children's Court when he was approximately sixteen years of age and has a large number of findings of guilt for largely offences of dishonesty and motor vehicle offences, as well as some other minor offences. In fact he has many findings of guilt for offences of dishonesty before he turned eighteen. In December 1997 he was convicted in the Children's Court and sentenced to nine months terms of confinement by way of a control order for what appear to be three offences of "sexual assault". I am informed however that these are offences of what formally (sic) were called carnal knowledge and were offences committed when [the defendant] was seventeen and with a young woman who was his girlfriend who was fourteen. In December of 2000 in the District Court having appealed against a term of imprisonment for driving whilst disqualified. He was given a hundred hours community service but that community service was revoked by the District Court in June 2001. He has a conviction for wilful and obscene exposure for which was placed on a two year good behaviour bond and in June 2000 he was also, on that occasion, convicted and sentenced to one month's imprisonment for contravening an apprehended domestic violence order and his appeal against sentence was unsuccessful. He was convicted at the Wagga Wagga District Court on 5 June 2001 for aggravated breaking and entering and committing an indictable offence inflicting actual bodily harm and an offence of assault, occasioning actual bodily harm. In sentencing him in relation to those matters [the sentencing judge] also took into account two offences of indecent assault on female victims under the age of sixteen years and an offence of assaulting a police officer in the execution of his duty. [The sentencing judge] sentenced [the defendant] in respect of the aggravated breaking and entering matter to a total sentence of four years and nine months, with a non-parole period of two years and three months. Thus he found special circumstances. For the assault occasioning actual bodily harm he sentenced [the defendant] to two years imprisonment apparently concurrent with the sentence imposed for the more serious offence. The more serious offence took into account the two matters on Form 1. The remarks on sentence of [the sentencing judge] are brief, partly because his Honour adopted what had been said by [another sentencing judge] in sentencing a co-offender, and I do not have [that Judge's] comments. I note in relation to the offence, however, of breaking and entering in circumstances of aggravation that his Honour categorised it as a very grave crime, one categorised as a home invasion, it involved [the defendant] having consumed a quantity of alcohol and claiming to have smoked some marijuana. It involved an assault which was described as savage on a man who was a double amputee. It was a case where [the defendant] apparently in company with someone else, as I understand it, mistakenly believed the occupants of the premises had something to do with the supply of drugs. ….. The indecent assault matters I have the facts of, they involve digital penetration or attempted digital penetration of two young girls who, as I understand the matter, were aged approximately thirteen and eleven or twelve. The offence occurred at a family gathering, [the defendant] committed the offence of assaulting the police officer when they came to arrest him in relation to these matters. He threatened police with a pipe and had to be forced to the ground. The details of those matters show [the defendant's] capacity for violence in the past in circumstances where he sought to raise the issue of his ingestion of alcohol as a relevant matter to those circumstances. [The defendant's] criminal history does him no credit, does not entitle him to any leniency at all. I note that he was subject to parole, albeit that that parole period was close to expiration and thus these various matters were committed while subject to conditional liberty. ……. With regard to his criminal record, I appreciate that it is important not to double dip when one is considering the aggravating factors that are required under s 21A of the Crimes (Sentencing Procedure) Act. Certainly, in due course, the sentence I impose must reflect that significant aggravating factor that these very serious offences were committed whilst on parole. I cannot conclude that his record of convictions constitutes an aggravating factor as such. But when one looks at his criminal history, the observations of the High Court in Veen (No 2) v The Queen (1988) 164 CLR 365, particularly at 477 to 478, are of some importance. The criminal history of [the defendant] is, in my view, relevant to show that the offences with which I am concerned which, to be fair, are of a different character than the offences for which he has previously been convicted, cannot be seen as necessarily an uncharacteristic aberration and these offences demonstrate a continuing attitude of disobedience of the law. In this latter case, retribution, deterrence and protection of society will warrant that a more severe penalty is warranted. The prior criminal history of [the defendant] illuminates his moral culpability in this particular case, and, in my view, in part, although the facts of this case themselves very eloquently demonstrated, it shows his dangerous propensity and also in my view shows a need to impose condign punishment. But as I say, the facts of this matter in that regard speak for themselves.
The sentencing judge later returned to the issue of the defendant's criminal history and said the following: [14] [The defendant], just returning to his criminal history very briefly, has of course other convictions for which he has received varying terms of imprisonment. I note that he has further since been taken into custody being sentenced to four months imprisonment on 21 December 2006 for an offence of common assault. That offence was one I am told from the bar table involving his uncle. It seems in the scheme of things that the offence was relatively minor, certainly it is not suggested that it is an offence involving the assault upon a random victim as occurred in this matter.
The sentencing judge, in addressing the defendant's objective criminality, said the following: [15] This offence of detaining someone for advantage is one of the more serious offences of its type. The contemplation of [the defendant] was to commit it [sic] is quite clear a number of offences upon the victim when he detained her albeit I could not conclude that he anticipated doing all that he did to her. He had her detained not temporarily but for what could be called a substantial period of time. He detained her over a significant distance, or at least a substantial distance and the detention was accompanied by threats of violence of an extreme nature and I also bear in mind that the termination of the detention as the Crown pointed out was not because of any change of heart on the part of [the defendant]. In fact there was no change of heart on the part of [the defendant]. He pursued her when she finally escaped. It is itself a most serious offence of its type.

STATUTORY CONSIDERATIONS

For the purposes of determining whether I can 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, I must take into account a number of mandatory considerations set out in s 9(3) of the Act, in addition to any other matters that I consider to be relevant.

The defendant's criminal history, any pattern of offending and the views of the sentencing court: s 9(3)(h),(h1)

I have set out the facts of the index offending above, along with the observations of the sentencing judge. The seriousness of such offending was expressly accepted by counsel for the defendant in the hearing before me. The defendant also has a number of other matters on his criminal history which were assessed by the sentencing judge to which I have had regard.

Expert assessments: s 9(3)(c), (d)

A report of Samuel Ardasinski, Forensic Psychologist, dated 19 November 2021 forms part of the evidence before the Court. In his executive summary, Mr Ardasinski stated the following: [16] [The defendant] has been assessed as posing a high risk of sexual reoffence, according to empirical actuarial tools factoring in static or dynamic risk factors. He has moderated his risk somewhat through completion of requisite offence-specific programming in custody, but there still remains a need for ongoing supervision. The main concern is the length of time Mr Leddin will have served in continuous CSNSW custody by the time he is eventually released, and the minimal time on supervised parole that he will have access to by the time he sentence expires. It is likely that another two to three years under supervision would allow for a fuller reintegration into lawful society after so many years in gaol. … If [the defendant] were to be subject to an Extended Supervision Order, the mitigation of future risk may be enhanced by ongoing community supervision as well as ongoing participation in community-based programs and/or individual risk management sessions with CSNSW Psychology as well as counselling for his substance abuse. This would require consideration as to whether his risks of serious sexual or other offending can be adequately managed in community settings with intensive supervision.
In addressing what was described as the defendant's institutional adjustment, Mr Ardasinski reported: [17] [The defendant], from the outset, appeared to settle into good routines in custody and exhibited a solid work ethic throughout his time in custody. He was often described as quiet and polite but, more so in the years since he has been refused parole, there have also been behavioural difficulties shown with aggression and "standovers" of other inmates. When I assess [the defendant] in 2011, he had had one institutional misconduct charge for fighting in 2009; since 2012, [the defendant] has accrued a further 26 charges; five more for fighting, assaults or intimidation, but the vast majority for use of illicit substances (or refusal to be tested for same). It is not clear from the materials available to me whether [the defendant] became more aggressive and behaviourally non-compliant in these later years, or his custody-based supervisors became more adept at detecting and recording his misbehaviours (e.g. through increased drug-testing in custodial settings).
Mr Ardasinski reported that since being in custody, the defendant had completed the Core EQUIPS foundation program on 1 May 2020. [18] He also completed the EQUIPS-Addiction program twice, once in 2018 and once in 2020. [19]
Mr Ardasinski further reported that the defendant had expressed interest in participating in treatment. He had completed necessary referral documentation as far back as 2010, and was found suitable for admission into the High-Intensity Group Program (now called "HISOP", previously just called "CUBIT") in 2011. The defendant's group therapist had observed [20] that his engagement with the course had been satisfactory, that he was an active group member who generally provided meaningful feedback to others, that he completed task work in a timely manner, and that he had been the inmate delegate for a number of months and had demonstrated concern for other community members. It was further noted: [21] … [the defendant] has demonstrated some better problem solving and coping strategies, which are both significant risk factor for him. He has also recently started accepting responsibility for range of behaviours within his relationships that were unhelpful (aggression, intimidation) and appears motivated to continue working on these issues on release… Given the length of time he spent in custody, he will require assistance in adjusting to life in the community, as well as some support in putting his self-management plans into practice in the community environment, particularly when things don't go the way that he wishes.
Mr Ardasinski concluded: [22] The totality of the material available to me suggests that [the defendant] falls in the Medium to High risk category for further sexual offending, including serious sexual offending, with his highest risk scenarios being when he is frustrated by situations outside of his control and he feels as though his efforts to resolve issues in a prosocial way have failed. In accordance with CSNSW policy, this combined assessment of risk/needs level would suggest [the defendant] will require a high level of intervention and/or supervision, according to the principles of Risk/Needs/Responsivity (Andrews & Bonta, 2010) when he is released from custody.
In terms of risk factors, Mr Ardasinski identified [23] substance abuse, problems with planning, a lack of realistic goal-setting, impulsivity and poor behavioural controls, proneness to boredom, poor employment history, poor work ethic, difficulty sustaining stable intimate relationships, trust issues, fear of rejection, poor communication of emotions, dismissive attachment style, attitudes condoning domestic violence, co-operation with supervision, personality traits and sexual self-regulation. At the same time, Mr Ardasinski accepted that the defendant: 1. appeared to have gained greater control over his drug cravings whilst in custody; 2. had pledged to remain abstinent from all alcohol use upon his release; 3. had engaged in further intervention, goal-setting and planning for his release; 4. had demonstrated a much improved work ethic to that which he had displayed in the community prior to the index offending; 5. appeared to have maintained a respectful relationship with a new partner for two years, notwithstanding the fact that their contact had been sporadic; 6. was generally compliant with instructions; 7. had engaged well in the programs set out in his case plan, (something which Mr Ardasinski regarded as a positive sign); 8. was, as a consequence having formed a new relationship with an intimate partner, be likely to engage in casual sex, or other maladaptive means of achieving gratification.
Mr Ardasinski went on to say: [24] [The defendant's] most likely scenario for further serious offending, on the basis of his history and the trajectory of his offending, is likely to be within the context of drinking alcohol to excess or returning to drug use. This may occur as a coping mechanism for some setback, and [the defendant] has demonstrated the tendency to use avoidance and other maladaptive coping strategies when he has been frustrated by some external variable over which he has limited control. This would follow on from [the defendant] trying to resolve an issue in a prosocial away and having limited success. He is unlikely to again attack a stranger, and I consider it more likely he would target an acquaintance who he perceives has wronged him directly, or in the past. It is possible that [the defendant's] ex-partner may be a target of retaliatory violence if [the defendant] perceives that he is due to be returned to custody and feels he has less to lose. He may commit acts of domestic violence within the context of substance misuse also, so this would need careful monitoring on release.
In terms of the overall risk presented by the defendant, Mr Ardasinski expressed the following view: [25] The management of risk usually involves [the defendant] improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. The overall totality of evidence suggests that [the defendant] falls in the Moderate - High risk category for sexual offending, including serious sexual offending, relative to other adult male sexual offenders. This is a risk which is likely manageable within a supervised community setting.
Mr Ardasinski went on to say: [26] In the event that no order is imposed, after the 8/6/2022, [the defendant] would be at unconditional liberty. If he is released to parole in December 2021, as foreshadowed by the State Parole Authority's intention to grant parole, [the defendant] will have just over six months' parole supervision after fifteen-and-a-half years in continuous CSNSW custody. He would have no support from, or any monitoring by, CSNSW. He may be able to return to the community and not pose a significant risk of repeated sexual violence, especially since he would no longer be subject to an exclusion zone which restricts him from visiting his parents and partner and other family who reside in Wagga Wagga. However, his risk assessment results indicate he poses a relatively high risk of repeat sexual violence, and while he has completed treatment, he has had little time to consolidate those gains. While the reasons for the making of this exclusion zone as part of [the defendant's] parole order have not been made available to me, there was likely some good reason for it being made and it may be necessary for longer than the period [the defendant] is subject to parole. Whether this would be considered "unacceptable" in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court.

Rehabilitation programs - s 9(3)(e)

Mr Ardasinski noted that the defendant had shown a willingness to participate in rehabilitation programs at an early stage and, as previously noted, had completed EQUIPS Addiction programs on two occasions, namely in December 2018 and July 2020. He had the opportunity to participate in HISOP in 2019. Although he commenced that program, he was suspended for a period due to syringes being found in his cell but approximately 12 months later he recommenced the program and his engagement was regarded as satisfactory.

Level of compliance with parole conditions and likelihood of compliance with obligations - s 9(3)(e2),(f)

The index offending was committed by the defendant in breach of parole. That was not the first occasion on which the defendant had breached parole by further offending. There is also evidence to support the opinion of Mr Ardasinski that the defendant's previous engagements with community corrections, and his response to supervision, has been poor. However, Mr Ardasinski acknowledged that to use those instances as a predictor of future behaviour would be speculative.
Accepting Mr Ardasinski's view that the defendant's behaviour in custody might be a more reliable predictor of future behaviour, it is relevant that the defendant accumulated a total of 29 institutional misconduct charges over the 15½ year period in which he remained in custody, 19 of which were brought within the last 5 years. Generally speaking, those charges related to drug use (or suspected drug use) and violence to varying degrees. The last of those charges was on 4 October 2021 for an offence of creating or possessing prohibited goods. That was the defendant's first institutional misconduct offence for a period of 12 months. That history must also be assessed bearing in mind the evidence that the defendant commenced a regime of Buvidal depot injections in June 2020 which had an obviously positive effect on his behaviour.
Consistent with that general picture, case notes compiled within the last 12 months point to a marked improvement in the defendant's behaviour, attitude and general well-being. Whilst I do not propose to recount the contents of the entirety of those notes, the following are significant.
On 15 March 2022, a Senior Psychologist at CSNSW confirmed that the defendant appeared "to be readjusting back into the community well and have expressed no concerns". The defendant's progress resulted in psychological appointments being arranged at fortnightly as opposed to the previously monthly intervals. At the time, the following was noted: [The defendant] has reported adjusting and coping well in the community with no mental health concerns. [The defendant] denied any concerns through safety or the safety of others. The Author stated [the defendant's] sessions have progressed from fortnightly to monthly, for follow up regarding mental health and coping.
At a review on the following day, the following was noted: [The defendant] attended the office for his supervision appointment on time. Nikei from ITS was present for the interview. [The defendant] expressed he had just got back from the induction at Thurgoona Men's Shed. He stated he was eager to start to gain life skills and meet pro social people. [The defendant] appeared to be in an excited and happy mood and was proud to announce he had passed his drivers licence test. Shane expressed he believes he is going well and achieving all his goals. I asked [the defendant] if he completed his home task and he stated he had and put it in place. He stated he ran into someone from prison who appeared to be substance affected who wanted to hang out with him. [The defendant] stated he told him he couldn't as he was busy and had appointments to go to. [The defendant] described the situation as going well as he was still polite and honest with putting an end to it quickly. I commended [the defendant] for doing this. [The defendant] confirmed he has an appointment with Dr Toby at the Lavington Doctors to commence a MHCP on the 22/03 at 4pm. … Nikei confirmed [the defendant] has been going well, she stated he has achieved the three gaols [sic] they had for him however was willing to assist further until his 12 weeks were up. She stated they were looking into a few education/employment course [sic] to help [the defendant] along with cooking classes. She confirmed she had paid for the Men Shed for [the defendant] for a year and will supply him with boots, PPE gear and work clothing. … The worksheet was explained to [the defendant], and he struggled to identify situations where he acted impulsively and regretted it. I explained to [the defendant] it did not have to be offence related and gave him examples. [The defendant] was then able to recognise he often acts impulsive and buys a lot of ice cream and often eats large amounts then becomes sick. I asked [the defendant] what some simple rules could he follow to help manage this impulsive situation. On discussion the rules he came up with was to have a shopping list when he goes down the street, to not shop when he is craving ice cream or when he is hungry and avoid the ice cream aisle unless he must go down there. [The defendant] also discussed another example of him use [sic] to eat out a lot and how it would waste his money. He identified him planning meals for the weak [sic] and being organise [sic] assists with him not deciding to get take away. I told [the defendant] they were great examples and reminded him to set rules with impulsive situations to help avoid making the same mistakes again.
In a review on 5 April 2022 the following was noted: Nikei confirmed [the defendant] engaged well for the entire 12 weeks, she stated they completed the three goals that were provided at the start and more. Nikei stated she completed her exit interview with [the defendant] and he expressed no concerns. I asked Nikei if she had any concerns for [the defendant] moving forward and she said that the only concern was the lack of support now the program has finished and once parole finishes. A discussion was had around other supports in place such as AWH, St Vincent de Pauls CCP, family and Men's Shed. … A discussion was had around setting up regular activities for him is good, so he keeps routine when he finishes parole and has less support.
A note of 6 April included the following: The worksheet was explained to [the defendant], and he demonstrated good insight into early signs of stress. He stated his neck and jaw tighten and his eyes can water. The behaviour he identified that changes when he is stressed was smoking more cigarettes, can't sit still, not being able to concentrate and over thinking things.…… He stated he is comfortable doing everything now and does not socialise with many people besides his family and the Men's Shed. I asked [the defendant] if he was nervous about Tafe and he stated he was not and was actually looking forward to it.
At an interview on 19 April 2022, the following was noted: [The defendant's partner] stated [the defendant] is going well, doing much better than she expected he would after being incarcerated for such a long time. I asked her if she had any concerns for [the defendant] and she stated she did not. I asked how his attitude has been and she expressed he has been motivated and still wanting to do better himself. I asked her if he had any plans after his parole expires and she stated [the defendant] is looking forward to being able to go back to Wagga to visit his grandparents grave and continue to build better relationships with his family. She confirmed he does not want to reside in Wagga only visit to see his family. I asked how his AOD use has been going and she stated he hasn't used or drank alcohol, and she would be extremely disappointed and surprised if he had. She expressed they have a good relationship where they communicate openly towards each other.
Finally, a note of 2 May 2022 recorded the following: [The defendant] is doing well keeping all his appointments and taking the lead in his recovery choices. [The defendant] has made many independent positive decisions regarding his forward planning. [The defendant] has moved along well.

Reports of Corrective Services NSW - s 9(3)(d1) and (e1)

A report of 1 October 2021 which was prepared for the purposes of considering the defendant's release on parole noted (inter alia) that he: 1. appeared to recognise the impact of his offending on the victim; 2. had expressed a willingness to engage in intervention to address his offending behaviour, noting that he would like to engage with a psychologist in the community; 3. identified that he could further utilise a psychologist for any reintegration needs; 4. was willing to engage with an alcohol and other drug counsellor; and 5. identified that he would remain on his pharmacotherapy program upon release.
The report went on to state: [27] [The defendant's] behaviour in custody appears to have improved. He has received no further institutional misconduct charges and he has not been the subject of any further urinalysis testing. Records indicate no adverse behaviour and positively, [the defendant] is the inmate delegate for the wing.
The overall assessment and recommendations were expressed in the following terms: [28] [The defendant] continues to progress through the High Intensity Sex Offender Program. It is positive that he has begun to demonstrate insight into his offending behaviour and appears to be working on developing strategies to mitigate his risk of re-offending in the community. While Community Corrections have developed an appropriate post-release pathway for [the defendant], it remains that he has yet to complete HISOP. The completion[n of this self-management plans will assist both [the defendant] and Community Corrections to manage his risk in the community. Community Corrections recommends that a parole order is made for [the defendant] no earlier than 1 December 2021. This will provide [the defendant] with ample time to opportunity [sic] complete HISOP.
In a progress report to the State Parole Authority in March 2022, the following was reported: [29] [The defendant] has been engaging well in supervision and has attended each appointment as directed. He has maintained a positive and motivated attitude towards positive changes in the community and has incurred no breaches since his release. [The defendant] has demonstrated meaningful steps to address his criminogenic factors. He has been actively engaged with ITS (Transitional Coach) for additional case management support, assisting with referrals to external services such as Alcohol other Drug support, Housing and more recently Men's Shed and seeking enrolment to an anger management program. [The defendant] is engaged with Alcohol and Other Drug Counselling to assist with relapse prevention. [The defendant] engages with a CSNSW psychologist once a fortnight to assist him with his mental health and transitioning into the community. His psychologist reported no current concerns and stated he appears to be readjusting to the community well. … All third-party contacts with external services confirm [the defendant] engages well and is determined to make change. Due to his due-diligence and engagement with the Department of Housing he was able to secure his own stable accommodation in a limited market. He has pro-social support from his family and his partner who have confirmed he is going well and are happy with his progress. [The defendant] is currently unemployed however has expressed he is eager to seek employment. He has commenced the process and has future appointments scheduled with employment agencies. Overall [the defendant] has been compliant with his order, additional conditions, officer directions and electronic monitoring. [The defendant] appears to have a good mindset about abstaining from Alcohol and Other Drugs which third-party checks confirm. A random field visit was conducted where a breath and drug wipe test were completed with no illicit substances detected and a nil reading for alcohol. Mr Leddin is actively engaged with his integration into the community and appears to be stable and well supported. The only concern noted is that a thorough assessment has not been completed to determine risk factors specific to sexual re offending and appropriate case management strategies. Given his parole period is continued until June 2022, there is still the opportunity for this to be completed and appropriate case management to be implemented. [The defendant's] readjustment to the community has been without issue.

THE RELEVANT PRINCIPLES

The sole issue for determination is whether the evidence is capable of satisfying me, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision. The principles which apply to that determination include the following: 1. whether a particular risk is an unacceptable one is a determination to be made in the particular statutory context in which the question arises; [30] 2. the phrase "unacceptable risk" is to be given its every day meaning within its context, having regard to the objects of the Act; [31] 3. the evaluation and determination of whether an offender poses an unacceptable risk for the purposes of the Act is to be undertaken having regard to the primary protective purpose of the Act, namely, to ensure the safety and protection of the community; [32] 4. the determination of whether a risk is unacceptable is an evaluative task which involves the exercise of discretionary judgment; [33] 5. it is open to conclude that a person poses an unacceptable risk even if the likelihood of that person committing a serious offence if not kept under supervision is determined to be low, if the consequences of the risk, should it eventuate, may be very serious; [34] 6. the expression "a high degree of probability" in s 5B(3) of the Act indicates that the Court must be satisfied of the existence of a relevant risk to a higher degree than the ordinary civil standard of proof, although not to the criminal standard; [35] and 7. 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 an unacceptable risk. [36]

Submissions of the plaintiff

Counsel for the plaintiff emphasised that the index offending was, on any view, a serious episode of sexual offending characterised by significant violence, both actual and threatened. Counsel also pointed to the fact that such offending had occurred against a history of prior offending of a sexual and violent nature, which had, on occasions, occurred in circumstances where the defendant had been under some form of supervision. Counsel also relied upon the fact that the consequences for the victim of the defendant's offending were catastrophic.
Counsel placed considerable emphasis on the risk assessment of Mr Ardasinski and his opinion as to the defendant's risk of re-offending. Counsel further submitted that beyond that assessment, the evidence supported a conclusion that the defendant presented an ongoing risk which stemmed partly from the fact that he had spent little of his adult life in the community.
Counsel also pointed to the defendant's history of conduct both in and out of custody which, it was submitted, suggested that he had a preparedness to engage in conflict and violence. Counsel submitted that there was evidence that the defendant engaged in impulsive behaviour, had poor behavioural controls and a difficulty in managing his strong emotions.
It was submitted that in all of these circumstances, there was a real and unacceptable risk of the defendant committing a further serious offence if he was not kept under supervision. Counsel submitted that having regard to the paramount consideration of community safety, and the need to ensure the defendant's reintegration, both for the safety of the community and for his own rehabilitation, the Court could be satisfied that the evidence justified the making of an extended supervision order.

Submissions of the defendant

Counsel for the defendant acknowledged the objective seriousness of the index offending, describing it as "horrific". [37] However, counsel submitted that on the whole of the evidence it was open to conclude that since that time, the defendant had: 1. engaged well with supervision; 2. maintained a positive and motivated attitude; 3. adhered to his conditions of parole; 4. demonstrated that he had taken meaningful steps to address his criminogenic factors; 5. had the benefit of pro-social support from his family and his partner; and 6. expressed his eagerness to seek employment to the point where he had actually commenced the process of finding work.
Counsel submitted that it was evident that although the defendant previously had issues in terms of his behaviour in custody, those issues had been largely overcome by the time he was recommended for release on parole. Counsel emphasised that at that time, the defendant did not face any further institutional misconduct charges and that the "revision" of his behaviour in custody was demonstrated, in particular, by the fact that he had been nominated as the inmate delegate for his wing. Counsel submitted that the entirety of the evidence supported the conclusion that the defendant was properly regarded a "model parolee", and that there was nothing in the evidence that indicated that he was an unacceptable risk.
To the extent that the plaintiff relied on the defendant's criminal history, counsel pointed out that some 16 years had passed since the index offending, and that the more recent conduct and attitudes displayed by the defendant demonstrated that he no longer had a general tendency towards disobedience of the law. It was submitted that although the defendant's criminal history was obviously relevant it was incapable, at least by itself, of supporting a conclusion that he posed an unacceptable risk of committing a serious offence if not kept under supervision.
Counsel submitted that the report of Mr Ardasinski was generally of low probative value, and pointed out that it had been prepared prior to (and thus without reference to) the evidence of the most recent conduct of the defendant. Counsel submitted that even taken at its highest, the report did not provide a realistic assessment of any risk posed by the defendant at the current time and was certainly not sufficient to ground a finding that he posed an unacceptable risk. Counsel further submitted that the report left open the clear possibility that the defendant was able to return to the community without posing a significant risk of repeat sexual violence. It was submitted that viewed in its entirety, the evidence supporting that conclusion had in fact occurred at this point.
Counsel also took issue with the terms in which Mr Ardasinski had expressed his ultimate conclusions. In particular, counsel cited the fact that Mr Ardasinski had expressed the view that the risk assessment results "indicate" that the defendant "poses a relatively high risk of repeat sexual violence". [38] Counsel submitted that the strength of any such "indication" was not clear, nor was the basis for the conclusion itself, such that to use those conclusions that there was an unacceptable risk would be a "quantum leap". Ultimately, counsel submitted that even when the report of Mr Ardasinski was taken at its highest, it was of little probative value because it entirely failed to take into account the excellent conduct displayed by the defendant since his release.

CONSIDERATION

There is unequivocal evidence that in the past 12 months or thereabouts, the defendant has responded well to assistance and treatment, and that his rehabilitation is both ongoing and positive. There is not a single negative observation in any of the notes to which I have referred. [39]
Further, as recently as March of this year, [40] it was reported that the defendant had engaged well with ongoing supervision and had taken a series of steps to address his criminogenic factors, and that independent sources had confirmed the defendant's positive engagement, and his determination to make positive change. Importantly, this progress was achieved with the ongoing and pro-social support from his family and his partner. All of these matters led to the conclusion that the defendant's readjustment to the community had been "without issue." [41] Such matters are, in my view, somewhat inconsistent with the proposition that the defendant poses the requisite unacceptable risk.
I accept that Mr Ardasinski identified a number of risk factors which, prima facie, might tend to support the opposite view. However, there are a number of factors which, in my view, affect the weight to be placed upon Mr Ardasinski's ultimate conclusion.
To begin with, Mr Ardasinski's assessment was undertaken some time ago. The various case notes and related material to which I have referred post-date his report.
Further, even accepting that Mr Ardasinski identified certain risk factors, he also identified a series of other factors, [42] all of which are unequivocally favourable to the defendant, and which tend completely against the proposition that I could be satisfied to the requisite standard that the relevant unacceptable risk is made out. There is, in my view, something of a displacement between accepting the existence of such favourable factors, and concluding that the defendant falls into the moderate to high risk category for repeat sexual offending. In those circumstances, I have come to the view that limited weight should be placed on Mr Ardasinski's opinions.
There is no doubt that the index offending was, as counsel for the defendant described it, horrific. Whilst the nature of that offending is obviously relevant, it is not determinative of the issue which is before me. Taking into account all of the relevant factors, particularly the defendant's recent progress in the community, and for the reasons set out above, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision.
The plaintiff took no issue that in the event that such a conclusion was reached and the proceedings were dismissed, it would be appropriate to make an order for costs in the defendant's favour.

ORDERS

For these reasons I make the following orders: 1. The proceedings are dismissed. 2. The plaintiff is to pay the defendant's costs, as agreed or assessed.

Endnotes

Exhibit JVL-1 to the affidavit of Ms Van Lieven of 17 March 2022 commencing at p 98.
Count 2.
Count 3.
Form 1, Counts 1 and 2.
Form 1, Counts 3 - 8.
Form 1, Count 9.
Count 4.
Form 1, Count 12.
Form 1, Count 10.
Form 1, Count 11.
Exhibit JVL-1 at p 104.
Exhibit JVL-1 at p 111 - 112.
JVL-1 at p 112.
JVL-1 at p119 - 120.
JVL-1 at p 128 - 129.
CB at 53 - 54; Exhibit JVL-1 at p 53-54.
CB at 58; Exhibit JVL-1 at p. 58.
(EQUIPS standing for "Explore, Question, Understand, Investigate, Practice, Succeed).
CB at 60.
CB at 61 - 62.
CB at 62.
CB at 66.
CB at 66 - 68.
CB at 69.
CB at 69.
CB at 70 - 71.
CB at 191.
CB at 195.
CB at 182 - 183.
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] - [61]; [132].
Lynn at [58].
Lynn at [138].
Lynn at [51]; [82].
State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43].
Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
Cornwall at [21].
T8.8.
CB 70.
At [58]-[64] above.
At [68] above.
At [68] above.
At [51] above. 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: 12 December 2022

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