STATE OF NSW v McCARTHY [2009] NSWSC 1407 | Case summary

STATE OF NSW v McCARTHY [2009] NSWSC 1407 | Case summary | Zoe

(5) The relevant statutory provisions in this case 12 The statutory provisions that are central to the present application are those contained in Part 2, Extended Supervision Orders, including, in particular, those contained in s.9 and s.11 of the Act. 13 Section 9 provides:- " 9. Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order:- (a) by making an extended supervision order, or (b) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matters it considers relevant:- (a) the safety of the community, (b) the reports received from the persons appointed under s.7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 , (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature." 14 In relation to the above provisions of s.9, s.9(2) provides for a threshold issue, namely, that an extended supervision order may not be made unless the Court is satisfied, to a high degree of probability, that the offender is likely to act in the way stipulated unless kept under supervision. 15 The provisions of s.9(3) come into operation once the threshold issue to which I have referred has been satisfied. Those provisions require the Court to make a determination following upon an evaluation of specified matters, including in particular, those expressly stipulated in s.9(3). In addition, the Court must have regard to "… any other matter it considers relevant". 16 The maximum period stipulated in s.10(1)(b) of the Act for the term of an order is five years from the date on which the extended supervision order commences. The section does not specify any specific criteria by which the term of an order is to be determined. 17 The provisions of s.11 enable the Court to prescribe conditions that the Court considers appropriate. Such conditions may include "directions" that impose requirements on an offender to do or not to do certain things. Section 11 is in the following terms:- "11 Conditions that may be imposed on supervision order An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or

(7) The threshold issue under s.9(2) 22 The provisions of s.9(2), which have been extracted above, provide for, what I have earlier referred to as, a threshold issue. The Court may not make an extended supervision order unless it is satisfied "to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision". 23 Mr David Thiering of counsel, who appeared on behalf of the defendant, in his written outline of submissions dated 30 November 2009 stated that the defendant, in relation to s.9(3) of the Act, did not oppose the making of an extended supervision order but did object to certain conditions sought by the State and opposed the length or the term of the order proposed in the application. 24 In the detailed written submissions from Dr Kell for the State, reference has been made to the relevant case law, including, in particular, the decision of the Court of Appeal in Tillman v Attorney General for New South Wales [2007] NSWCA 327. 25 I have also had regard to the provisions of s.9(3) and to other case law cited in submissions in relation to that provision. I am satisfied that the threshold issue has been met, that is to say, I am satisfied to the requisite standard that the defendant would be likely to commit a further serious sex offence if he is not kept under supervision. 26 In the State's Written Outline of Submissions, the State submitted that the evidence strongly supports the making of an extended supervision order s.9(1) of the Act and, furthermore, that the Court would be justified in imposing an order for a term of five years. The s.9(3) factors were addressed in the State's written submissions. 27 Mr David Thiering of counsel who appeared on behalf of the defendant made no submissions suggesting that there was no basis for the making of an extended supervision order under s 9(1). He did, however, put in issue the State's application that the order be made for a term of five years. Submissions were also made in relation to certain proposed conditions upon which an extended supervision order should be made. These are examined below. 28 The defendant's assessed risk of sexual recidivism arises against a background involving his exposure and involvement in a number of life experiences and events that led to the development of a complex range of factors that have contributed to what was referred to in evidence as a "relatively severe personality pathology": Mr Sheehan's report at p.10. 29 The defendant has been variously diagnosed as "Anti-social Personality Disorder" (Dr Sheehan's report at p.10), and as having a "severe personality disorder … with anti-social and narcissistic features": )Dr Samuels' report at p.33) and as falling within a category of "Multiple paraphia": Dr Robert's report at p.25. 30 The defendant has been specifically assessed by reference to both static and dynamic risk factors. Static 99 is an actuarial risk assessment. Dynamic risk factors involve an assessment of factors related to sexual recidivism, namely, intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. 31 The assessment in relation to the defendant is that he is within a high risk category of sexual offending: Mr Sheehan's, Volume 1, p.25.

• There was clear evidence that he suffered from a severe personality disorder and that this was a significant risk factor for re-offending. 39 The specialist medical evidence from Dr Samuels and Dr Roberts addressed the question of risk assessment and the limitations associated with risk prediction. 40 Dr Samuels observed that short term risk prediction was clearly more accurate than longer term risk prediction. 41 The main purpose of the risk assessment undertaken by Dr Samuels was not to apportion a specific numerical figure but "… to make a determination in relation to the level of risk management that is required" (p.39). 42 Dr Samuels observed that the defendant fell into a category of offenders with a high risk of recidivism. Accordingly, it was suggested that in order to minimise his risk of sexual recidivism over the next five years, close monitoring and supervision would be required and that the types of interventions that will be needed to be put in place will be determined by his perceived level of risk. 43 Dr Samuels addressed the proposed conditions included in the amended summons and made comments upon them. In general terms, he supported the conditions as appropriate. 44 In relation to the term or duration of any proposed order, Dr Samuels expressed his view that it was imperative that the extended supervision order last for at least five years. He based this upon the fact that the defendant was assessed as being in a very high risk group of sexual offenders. At present, he observed, "… there is no clear reason to suggest that his level of risk is going to diminish significantly in the course of the next five years …" (at p.42). 45 Dr Samuels, in his oral evidence said (transcript, 3 December 2008, p.12), that, given the defendant's high risk of sexual recidivism and his unwillingness to use anti-androgen or anti-libidinal type medications "the most appropriate way forward (was) very close monitoring and supervision". He did not see the need for that particularly changing over the next five years. He considered the risk elements as including:-

(b) The evidence of Dr Samson F Roberts 48 Dr Roberts, in his principal report dated 5 November 2009, stated that he had formulated his opinion set out in the report based on his clinical assessment of the defendant on 29 October 2009 and a review of the material identified in his report. 49 Dr Roberts noted that the defendant had been classified within the high risk range for recidivism based on the use of actuarial instruments and that the risk of re-offending generally was considered to emanate from what he refers to in his report as the defendant's "attitudinal issues" (p.26). 50 It is to be noted that, whilst the defendant had participated in the CUBIT programme (at p.26):- "… it is not apparent that such attitudes which have been entrenched for decades have changed appreciably or in a sustained manner. Furthermore, Mr McCarthy's response to treatment has not been adequately tested in the community setting." 51 In relation to the question of the term or duration of an extended supervision order, Dr Roberts referred to the courses that the defendant had undertaken including the CUBIT programme. The defendant said he considered the CUBIT programme was of limited value with regard to diminishing the likelihood of re-offending. However, the defendant acknowledged to Dr Roberts that there were benefits arising from that programme (see in this respect, paragraph [66] below). Dr Roberts observed (at p.28):- "… based on a gross assessment of Mr McCarthy's intellect, he is considered to have the ability to participate successfully in therapy directed at moderating certain attitudes which are considered maladaptive for re-integration into the community. It is not evident that Mr McCarthy has benefited appreciably from therapy undertaken thus far. Furthermore, therapy undertaken during the course of exposure to the real life challenges and opportunities which form part of community living is expected to be of critical importance in translating information learned in the artificial structure of a custodial setting into a positive long-term prognosis." 52 Dr Roberts added that it was expected that a period of ongoing therapy of at least five years' duration would be required if long-term risk is to be mitigated, although he added:- "… However, a review of Mr McCarthy's progress during that time may lead to a re-evaluation of his needs in this regard." 53 In oral evidence, Dr Roberts explained the basis for his opinion as to the term or duration of the extended supervision order. These included the following:-

• The fact that the defendant felt he had not generally benefited from the CUBIT programme, although he had reported benefits from some aspects of it (transcript, 3 December 2009, pp.33 to 34). 54 Dr Roberts addressed the issue of therapy undertaken by the defendant whilst in the community as discussed in his report of 5 November 2009. In that respect, he stated in evidence (transcript, p.34):- "Though I am always concerned about the generalised ability of programs in a custodial setting to the broader community … I want to see some success in the broader community with respect to certain aspects of behaviour and interpersonal relationships. It is also necessary to put in place a process of on-going therapy and on-going support within a more normal environment to ensure that there is on-going support and a development of healthy interpersonal relationships and healthy community living." 55 In relation to Dr Roberts' reference to on-going therapy which he considered was desirable for the defendant within the community, he elaborated (transcript, p.36):- "I see two aspects of therapy in this sort of a situation. First of all, there is the therapy aimed at mitigating immediate risk and secondly there is therapy aimed at assisting the individual to return to successful community living to the best of their ability. I do believe Mr McCarthy's intellect is such that he would be able to participate in therapy. There is a degree of frustration evident in the context of current circumstances which has the potential to impede progress, impede immediate progress. Therapy broadly speaking can be divided up as either individual therapy or group therapy. There are advantages and disadvantages in each. Individual therapy is more readily tailored to the needs of the individual client. Group therapy has the significant benefit of dispelling the sense of being entirely unique or alone in whatever circumstances that the individual finds himself, and it also has the advantage of accessing the group dynamic as a therapeutic tool. I would suggest that in the early stages therapy would require a mixture of both in ideal circumstances, that being group and individual therapy and it would ideally take place on a regular basis." 56 Dr Roberts added that frequency of on-going treatment would involve once a week or once a fortnight sessions depending upon the services available. He said he was speaking subject to the availability of resources and that, over time, therapy would become a less frequent occurrence (transcript, p.37). 57 On-going therapy, as he explained it, would involve "periodic checkings and it may also involve "a change in the form of therapy" (transcript, p.37). 58 Leaving to one side the question of the availability of resources, Dr Roberts stated that, in his professional judgment, his recommendation would be that the defendant (transcript, p.38):- "… be referred to the Community Mental Health Team, Community Forensic Team for an assessment by their clinicians and a collaborative approach to determining what the most appropriate course of therapy will be. I would be cautious to stipulate too firmly what I think is appropriate if they have not got the resources …" 59 He went on to state that he considered that an initial programme of combined group therapy, as well as individual therapy, with a view to on-going revision of need and on-going development of a plan to the future, would be warranted in the immediate future (transcript, p.38). 60 Dr Roberts said that he expected the Community Health Team would include a psychiatrist and a psychologist. 61 Dr Roberts also stated that he considered that there should be reviews made at relatively frequent intervals in order to ensure that whatever programme was in place it was serving a purpose (transcript, p.41). He said that the interval would be linked according to the particular programme that was in place. 62 In explaining why he considered five years to be an appropriate period for the term or duration of an order, Dr Roberts stated:- "The period of 5 years is what I would envisage would be required in terms of monitoring and ongoing contact with psychological services to counteract what has happened over the last decades and to ensure that Mr McCarthy's future does not include incarceration."

(c) Evidence of Mr Patrick Sheehan 63 Mr Sheehan, psychologist, prepared a risk assessment report dated 7 August 2009. In his affidavit affirmed 7 October 2009, he said that he assessed the defendant "… as presenting a high risk of sexually re-offending relative to other adult male sex offenders". 64 In particular, he confirmed that the defendant had been classified as in the high risk category with regard to static variables using the Static-99 test. 65 Mr Sheehan also addressed both the CUBIT programme and the Community Based Maintenance Programme conducted by the Department of Corrective Services. 66 In relation to the issue of self-regulation, Mr Sheehan noted that, following the defendant's return to CUBIT on 6 July 2009, he had shown poor ability to self-regulate but that (at affidavit affirmed 7 October 2009, paragraph 49):- "… since returning to CUBIT, he has shown a different and more functional range of behaviours and coping styles. He has had no disciplinary infractions. There are instances where Mr McCarthy has been able to interrupt old coping routines by challenging his behaviour and practising alternative methods …" 67 Mr Sheehan expressed his opinion as to the defendant's requirements following release from custody in paragraph 57 of his affidavit in the following terms:- "In my view, when Mr McCarthy is released from custody, supportive resources, supervisory conditions and monitoring would be required to enhance the likelihood of him being able successfully to manage his risk of sexual recidivism …" 68 He also stated in relation to supervision conditions:- "58. It would be desirable that the conditions should generally provide the Departmental supervising officer with the capacity to relax restrictions over time, or as circumstances otherwise require, if Mr McCarthy is demonstrating an increasing ability to manage his risk of recidivism and relapse. Conversely, the conditions should provide the Departmental supervising officer with the capacity to tighten any relaxed restrictions in response to any deterioration in Mr McCarthy's progress." 69 Mr Sheehan stated in his report dated 7 August 2009 that there was sufficient evidence to suggest that the defendant had, over the course of his life, "… supported a range of distorted anti-social attitudes that have played a role in his episodes of sexual offending" (report, p.19). Mr Sheehan additionally observed (report, p.19):- "Mr McCarthy has exhibited life-long deficits with his ability to regulate himself in the community and in custody." 70 He considered that his repeated criminal behaviour, poor decision making and resistance to taking responsibility for his behaviour and other matters referred to in the report "… are all perhaps best viewed in the context of his anti-social personality disorder and psychopathic traits" (report, p.19). 71 Mr Sheehan, however, also stated (report, p.20):- "… With ongoing support and concerted effort, Mr McCarthy may be able to improve his self-regulation …" 72 He also added (report, p.22):- "Ongoing supervision may assist Mr McCarthy by enforcing that he does not engage in high risk behaviours at times when his own self-management is inadequate. Mr McCarthy would benefit from on-going therapeutic assistance to build on any commitment to change that he has already made and to assist him to generalise these intentions and alternative coping strategies to the community, should he be amenable to such intervention. The Community Maintenance programme is available in Sydney to facilitate this goal." 73 Mr Sheehan also observed that, having regard to the fact that the defendant has less than two years' experience of community life (report, p.22):- "… he will require extensive assistance to adapt. It is recommended that any management plan be designed to be minimally restrictive, but rather to be supportive of and to encourage the establishment of a balanced and responsible lifestyle. The level of restriction and/or autonomy afforded to Mr McCarthy should remain dynamic, reflecting changes in his own ability to manage his risk behaviour as evidenced by his behaviour over time."

(d) The evidence of Ms Colette Davies 74 Ms Colette Davies holds the position of Senior Compliance and Monitoring Officer with the Community Compliance Group (CCG) based at Campbelltown. The CCG is a division of the Department of Corrective Services. 75 In the event that the Court makes an extended supervision order in respect of the defendant, Ms Davies would hold the position of Departmental Supervising Officer. 76 Ms Davies stated in her affidavit affirmed 14 October 2009, in relation to accommodation (proposed condition 7), that for the duration of the order the defendant must reside at accommodation approved by the Departmental Supervising Officer. It is proposed that the defendant would reside at a COSP centre for a period of up to six months, subject to suitable alternative accommodation being identified and approved. 77 Offenders subject to an extended supervision order who reside in a COSP centre are case managed by the CCG. It was initially proposed that the offender would reside at the Campbelltown COSP centre. 78 In her evidence, she stated that the defendant is currently residing at premises supplied by the Community Offenders' Support Programme (COSP). The programme is to assist him for a period of time to develop some stability in the community and also to provide him with a departmental programme. The intention is to assist the defendant to transition into the community. 79 In addition to accommodation, Ms Davies addressed specific proposed conditions including those concerning employment (proposed condition 11), the imposition of a curfew (proposed condition 9), a schedule of movements (proposed condition 6) and electronic monitoring (proposed condition 5). 80 The rationale and purpose of the proposed conditions were outlined in her affidavit attached to which is a generic "management plan" for the defendant. 81 The defendant obtained employment in November 2009 and the conditions of employment and other matters have been reviewed by Ms Davies' colleagues.

(2) The progress that had been made by the defendant in a detention setting and the reality that the defendant's progress would only be tested following his release on an interim supervision order. I have identified earlier the particular matters that arise in this respect in the present case. 86 In Tillman (supra), Johnson J observed that, when making decisions under the Act, it was appropriate to bear in mind the restrictions upon the liberty of a person which may result. This included loss of liberty in cases involving a detention order and to conditional and supervised liberty under an extended supervision order where failure to comply with the requirements of such an order was a criminal offence under s.12 of the Act. 87 In Tillman (supra), his Honour also observed that he did not consider the principles that applied to the setting of a term of imprisonment when an offender was sentenced had application to fixing the term of an extended supervision order under the Act. In this respect, it was noted that the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular, s.3A of that Act required a number of circumstances to be taken into account which do not arise in fixing a term of an extended supervision order. The Court was to be guided by the objects in s.3 of the Act to ensure the safety and protection of the community and to encourage serious sex offenders to undertake rehabilitation. 88 The term of the extended supervision order in that case was a period of five years. His Honour did not consider that such a term would have a negative impact on the defendant's prospects of rehabilitation. 89 The conditions of the extended supervision order imposed in Tillman (supra) were framed, as Johnson J observed, so as to contain "an element of flexibility". In that respect, his Honour stated:- "[64] … The Act provides incentive or encouragement for a person to maintain progress towards rehabilitation. The conditions of the order will provide a framework in which an objective measurement of rehabilitation may be made. At the same time, the terms of the order will serve to protect the community. All of this will occur, in this case, in the context of a person released from a decade in custody facing a range of challenges which will test the progress he has made, and allow him to demonstrate progress in a non-custodial, but nonetheless supervised, context. This will be a long-term project." 90 On the issue of the term of a supervision order, Hulme AJ (as his Honour then was) in State of NSW v Manners [2008] NSWSC 1376 observed:- "82. It is reasonable to conclude that the length of the term of the order should be determined by reference to the objects of the Act set out in s.3. Thus, I should determine this issue with reference to what is appropriate to 'ensure the safety and protection of the community' as the primary consideration, but also bearing in mind the secondary consideration of encouraging the defendant to undertake rehabilitation." 91 In Manners (supra), his Honour referred to specialist medical evidence that established a high level of risk of the offender engaging in further sex offending and that such an assessed risk was "… the most significant consideration in the determination of the appropriate term of the order. Their agreement (referring to Dr O'Dea and Dr Lewin) of the need for the defendant to engage in appropriate treatment programmes on a long-term basis, at least for 5 years, militates in favour of making an order of that length". 92 Hulme AJ also observed that the types of restrictions that would be placed upon the defendant would be quite significant but that it must be borne in mind that, provided that he makes appropriate positive responses, there would be some relaxation of conditions as time elapsed. That, his Honour observed, was regarded by the experts as an important component of the offender's supervision. 93 His Honour determined, in the circumstances of that case, that a term of five years would not operate as a disincentive to pursue rehabilitation. 94 In State of NSW v Hayter [2009] NSWSC 611, Buddin J cited the observations of Johnson J in Tillman (supra) and considered that they were apposite to the circumstances in Hayter (supra) and that the conditions proposed in that case would, themselves, contain an element of flexibility. They would, in any event, provide a mechanism for at least some measure of internal review. His Honour added:- "… importantly, the defendant can avail himself of the remedy provided for in s.13 of the Act to apply at any time to vary or revoke the order. Finally, of course, I must keep firmly in mind the objects of the Act." 95 An order was also made in Hayter (supra) pursuant to s.9(1)(a) of the Act to order operate for a period of five years

(11) Submissions 97 In relation to the duration or term of an extended supervision order, Dr Kell, in his submissions on behalf of the State, observed that a number of matters that are relevant to the making of such an order are also relevant to the question of the term of the order. Accordingly, the chronicity of the offending conduct was said to be directly relevant to the term of the order which the State contended in this case should be for a five year period. It was contended in that respect that there was an abundance of material to support such a term. 98 It was further submitted on behalf of the State that it was in appropriate for the Court to set a shorter term on the basis that the State has available to it the possibility of applying for a further order at a point of time in the future should a longer term be indicated. 99 The State, accordingly, submitted that, if the evidence supports a five year term as an appropriate one, then the Court would be justified in adopting a five year term for the making of an order rather than for a shorter period of time on the basis that the State could apply for a variation in the future. 100 Reliance, in particular, was placed upon the fact that the evidence, including, in particular, that of Dr Samuels, was that the defendant did have a severe personality disorder of a long-standing nature and that that was a matter of particular relevance in determining the term of the extended supervision order. 101 In summary, the State submitted, that the chronic nature of the offending history, the severe personality disorder and the written and oral evidence of Dr Roberts and Dr Samuels pointed strongly towards making an order for a five year term. 102 In this respect, it was submitted that it was reasonably anticipated that a period of ongoing therapy of five years' duration would be required. In this respect, the evidence that the defendant was in a very high risk group of sexual offenders pointed to that conclusion. 103 In the present case, by reason of the fact that the defendant has refused to consider taking anti-libidinal medication, a five year term was, in all the circumstances, an appropriate one. 104 Mr Thiering, on behalf of the defendant, put to Dr Samuels that, in a period of two years "the Court would be in a much better position to say where he (the defendant) is on the continuum at that time …". Dr Samuels responded that two years "wouldn't be a great deal" although an absence of offending or subversive or manipulative conduct would be "reassuring". That, he observed, however, also could reflect the appropriateness of the monitoring rather than fundamental change. 105 He did not consider two years was long enough for "substantial change" to occur (transcript, p.29). He added that a lot could occur over a five year period and that "there may well be reasons to … downgrade the risk assessment or review the risk assessment" (transcript p.29). 106 In the Defendant's Written Outline of Submissions, Mr Thiering on behalf of the defendant observed that any action by this Court on the application made by the State would be action taken in the knowledge that the provisions of the Child Protection (Offenders' Registration) Act 2000 and the Child Protection (Offenders' Prohibition Orders) Act 2004 will operate for life in respect of the defendant, he being a repeat offender. 107 Mr Thiering observed that these provisions required the defendant to notify police as to his place of residence and imposed on him ongoing obligations to report to police and restrictions on name changing and working with children. The legislative provisions also provided for offences and imprisonment in the event of breach. 108 Mr Thiering submitted that such legislative conditions in and of themselves provide very significant protection for the community and that the length of any extended supervision order in the present case "… should be determined taking these into account, especially where the purported object is protection of the community" (p.3). 109 Mr Thiering contended that the evidence indicated that the defendant had made considerable progress in his rehabilitation to date when measured against his offending history and his custodial offence history. It was further submitted that, whilst the progress had not all been "one way", it was generally positive. 110 Mr Thiering further contended that the length of the order should also take into account the secondary object of the Act in encouraging the defendant along the path to rehabilitation. He said that that objective could be achieved in two ways. Firstly, by not imposing an order for a term that is or might be perceived to be in itself punitive rather than protective or rehabilitative. Secondly, by providing a tangible target which is not too distant in time to provide motivation for the defendant to continue his rehabilitation. 111 Finally, Mr Thiering submitted that the Act contemplated the possibility that the State could make a further application at some point in the future under the provisions of s.10(3) of the Act. He submitted that, if the Court considered a shorter term than five years was appropriate, there need be no concern that, at the end of whatever period was imposed, the defendant would be simply pushed out into the community if, in the opinion of the CCG or the Probation and Parole Authority, he was unready for that. 112 Accordingly, it was contended that it was appropriate to impose a shorter term in respect of the order sought and to allow the benefit of such shorter period to be measured, rather than an order being based on prediction. If further orders were required to be made, then they would be made appropriate to the circumstances as at the time they were being considered.

(12) Proposed conditions 27A 113 The State seeks the inclusion of an order in terms of s.27A, which is in the following terms:- "If and as directed by the Departmental supervising officer, the defendant must:- (a) Permit the Departmental supervising officer to access and inspect any telephone (including any SIM Card) owned by the defendant and any records relating to such telephone (including any SIM Card); (b) Allow the Departmental supervising officer to make copies of any records relating to any telephone (including any SIM Card) owned by the defendant that the Departmental supervising officer reasonably believes may be relevant to the management of the defendant's risk of re-offending; (c) Provide the Departmental supervising officer with any requested assistance to enable him or her to access and inspect any telephone and SIM Card owned or used by the defendant, including providing him or her with any required password; and (d) Take all reasonable steps to permit the Departmental supervising officer to have access to and inspect any telephone used by, but not owned by, the defendant." 114 The defendant challenged the basis for the making of a condition in terms of the above proposal, in particular, that in proposed clause 27A(b). 115 In support of the imposition of the conditions, Dr Kell relied upon the defendant's history involving the use of the telephone as being an integral component of some of his sexual offending. This, it was said, was a contrasting matter to other cases. The proposed conditions, accordingly, have not been sought in other matters that have come before the Court under the Act. 116 In more recent years, the defendant was convicted (on 3 May 2004) in the Lismore Local Court of three counts of using a carriage service (Telstra) in an offensive manner contrary s.85ZE(1)(b) of the Crimes Act 1914 (Cth). 117 The offences involved in the telephone calls included details of a sexual nature and which included reported (but fictitious) statements of violent sexual conduct having been engaged in by the caller, particularly, in relation to the alleged abduction and rape of the teenage daughter of one of the victims. 118 In the remarks on sentence, the Magistrate observed:- "There was evidence given of tendency or similar fact evidence where there was a lot of phone calls made to other people, not as serious - well of a lesser scale if you want to talk about how serious, but to other people. All from the same place all obviously by you." 119 It was contended that these matters supported the making of proposed condition 27A as an appropriate condition. 120 It was also submitted on behalf of the State that the inclusion of proposed condition 27A formed part of "a package of risk management" (transcript, p.91). It was submitted that such a condition could serve as having a deterrent effect which, in a matter such as the present, was an important matter. An offender, like the defendant, it was submitted, may be assumed to be less likely to use a telephone for inappropriate purposes if he was aware that the telephone could be accessed and records made available. Such a condition, in that sense, provides, it was submitted, some measure of protection and serves an important deterrent effect. 121 Mr Thiering for the defendant agreed that the appropriate test for the imposition of a condition was as to whether it was an "appropriate" one. 122 In relation to proposed condition 27A, Dr Roberts directly addressed this proposed condition. He expressed his view that, given the defendant's particular history of making threatening telephone calls of a sexual nature, such a condition to be "an important supervision condition". 123 In cross-examination, Mr Thiering directed Dr Samuels' attention to proposed condition 27A(b). Dr Samuels stated that sub-paragraph was not directed to rehabilitation but to monitoring. He added that, whilst there may be good legal or departmental reasons why those responsible for the defendant would wish to know who the defendant was talking to (a matter not within his field of expertise) it would, he considered, have "a monitoring and possibly a deterrent effect" (transcript, p.26). 124 Dr Roberts expressed a similar view to Dr Samuels on proposed condition 27A. He said in evidence he thought the condition "would help him remain vigilant with respect to his own conduct, and to keep in the forefront of his mind that there is a risk of engaging in similar conduct in the future" (transcript, p.36). 125 Dr Roberts acknowledged in cross-examination that sub-clause (b) of the proposed condition was a "significant intrusion into Mr McCarthy's day-to-day functioning …" but that the whole process of supervision was an intrusion of significance. He added that he could not imagine that checking his phone records would make the defendant "feel any or substantially more exposed than he would otherwise". 126 Dr Roberts also stated in evidence (transcript, p.15) that the features he identified that constitute the defendant's personality disorder go to both the issue of "risk" and "duration of risk". He added that many of the "personality characteristics" he referred to dissipate over time but he saw no reason to suggest that, in the case of the defendant, they would "melt away in the next five years".

(13) Conclusions 127 Having regard to the totality of the evidence including the defendant's history of offending, the large body of psychiatric and psychological evidence, I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision. 128 Following consideration of the evidence in relation to the particular matters specified under s.9(3) of the Act, I consider that an extended supervision order should be made under s.9(1) of the Act with respect to the defendant. 129 In determining the term of such an order for the purposes of s.10(1), the Court should fix a term having regard to the circumstances of the case. In that respect, I consider that the evidence of Dr Samuels and Dr Roberts which strongly supports a term of five years should be accepted. It is clear from the opinions they have expressed that a long-term process is required to work towards the treatment and rehabilitation of the defendant in the community. Whilst the defendant has made some progress including having entered into employment since his release from custody, the evidence emphasises the reality that the defendant's progress will only be tested and established over a five year period. 130 Having regard also to the objects in s.3 of the Act and the fact that there will be an element of flexibility in the proposed conditions constituting framework in which an objective measurement of rehabilitation will be made, I consider that the extended supervision order should be made for a period of five years. On the evidence, I do not consider that such a term will have a negative impact on the defendant's prospects of rehabilitation. 131 Section 11 of the Act gives the Court a discretion, as part of an extended supervision order, to set conditions as the Court considers appropriate. As Johnson J observed in Tillman (supra), the phrase "considers appropriate" indicates the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: at [68]. His Honour there also observed that the Court's power to impose particular conditions depends in turn upon the scope of the Act, in particular, the provisions of s.11. There has been no particular controversy concerning the conditions proposed by the State other than those contained in proposed condition 27A. 132 I have concluded that the proposed conditions, including, in particular, proposed condition 27A sought in the notice of motion filed on 4 December 2009, are appropriate conditions pursuant to s.11 of the Act in respect of the extended supervision order to be imposed.

STATE OF NSW v McCARTHY

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