State of NSW v TD

Supreme Court of NSW|2020-10-14|Before: Adams J

Judgment

By summons dated 25 June 2020, the State of New South Wales (the plaintiff) seeks an order that the defendant, TD, be subject to a 2 year Extended Supervision Order ("ESO") under ss 5B, 5I, 9(1)(a) and 11 of the Crimes (High Risk Offenders Act 2006 (NSW) ("the Act").
TD is a 25 year old Aboriginal man who has been convicted of two sexual offences concerning 14 year females. One of these offences was committed whilst he was still a juvenile so he is not to be identified: s 15A Children (Criminal Proceedings) Act 1987 (NSW). The first offence involved him having sexual intercourse with a 14 year old girl when he was 17 years of age. The second offences involved him "grooming" a 14 year old girl for the purposes of unlawful sexual activity when he was 21 years old.
On 3 August 2020, a preliminary hearing was conducted before me. TD did not oppose the making of an interim supervision order ("ISO") at that time. Nor was there any opposition to orders being made, pursuant to s 7(4) of the Act, that two experts, Mr Patrick Sheehan and Dr Richard Furst, be appointed to conduct examinations of the defendant and produce reports to the court. I was satisfied at that time that it was appropriate for those orders to be made: State of New South Wales v TD (Preliminary) [2020] NSWSC 1034.
The final hearing in this matter proceeded before me on 14 October 2020. TD opposed the imposition of an ESO.
The State relied on a folder which was marked Exhibit A which included the summons, an affidavit of Lisa Springer sworn 24 June 2020, an affidavit of Sarah Najjar affirmed 25 September 2020, submissions, short minutes of order, a copy of the preliminary judgment and the sealed expert reports of Dr Richard Furst and Mr Patrick Sheehan dated 13 September 2020 and 28 August 2020, respectively. Both Dr Furst and Mr Sheehan gave evidence concurrently at the hearing. At the conclusion of the hearing I reserved my decision.
For reasons I have set out below, I am not persuaded that the relevant statutory test has been met in this matter.

The Legislative Scheme

The primary object of the Act is to provide for the extended supervision and continuing detention of "high risk" sex offenders and "high risk" violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act. Although this is the primary object, s 3(2) of the Act provides that "another" object is to encourage such high risk offenders to undertake rehabilitation.
The Court's power to make an ESO is discretionary. Section 5B of the Act provides that the Court "may" make an order for a supervision of a person in the community if four pre-conditions are made out.
First, the person must be an "offender" who is serving (or who has served) a sentence of imprisonment for a "serious offence" either in custody or under supervision in the community: s 5B(a) of the Act. "Offender" is defined in s 4A of the Act as a person who is at least 18 years of age and who has at any time been sentenced to imprisonment for a "serious offence", either by way of full-time detention or intensive correction in the community.
Section 4(1) of the Act defines "serious offence" so as to include a "serious sex offence". "Serious sex offence" is comprehensively defined in s 5 of the Act which relevantly provides as follows: (1) For the purposes of this Act, a serious sex offence means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), ....
As stated above, on 5 July 2018 the defendant was sentenced for the offence of groom child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act. That offence is in Division 10 of Part 3 and is thus a "serious sex offence" within the meaning of s 5(1)(a) of the Act. I am satisfied that TD is an "offender" who has served a sentence of imprisonment for a "serious offence".
Secondly, the person must be a "supervised offender" (within the meaning of s 5I): s 5B(b) of the Act. The definition includes an offender who, when the application for the order is made, is under supervision while serving a sentence of imprisonment for a serious offence: s 5I(2)(a)(i) of the Act. The defendant was on parole with respect to the index offence when this application was made by the State. I am satisfied that the defendant is a "supervised offender" and he did not contend otherwise.
Thirdly, an application for an ESO must be made in accordance with s 5I: s 5B(c) of the Act. Section 5I provides that the defendant must be a "supervised offender" at the time that the application is made. Given that the summons was filed before the expiry of the defendant's term of imprisonment, I am satisfied that an application was made in accordance with s 5I and the defendant did not contend otherwise.
The fourth statutory pre-condition to the making of an ESO is that the Court must be satisfied to a "high degree of probability" that the offender poses an "unacceptable risk" of committing another "serious offence" if not kept under supervision: s 5B(d) of the Act. It was this fourth statutory pre-condition which was the subject of considerable dispute in this matter and of which I was not ultimately satisfied.
Section 9(1) of the Act provides that an application for an ESO may be determined by either the making of an ESO or by dismissing the application. Section 9(2) of the Act provides that in determining whether or not to make an ESO, "the safety of the community must be the paramount consideration of the Supreme Court".
Section 9(3) of the Act provides that in determining whether or not to make an ESO the court "must" have regard to the matters enumerated in s 9(3) "in addition to any other matter it considers relevant". Given the mandatory requirements in s 9(3) of the Act, I propose to summarise the material relied upon by the State by reference to those matters. Before I do so, I will first set out a brief chronology of the events in the defendant's life relevant to this application and then consider them in more detail under the s 9(3) headings.

TD's background

TD was born in regional NSW. His parents separated when he was four years old. He is not in touch with either of them. He attended the local primary school. He was of approximately average academic ability but he had difficulty concentrating and was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD").
By the age of 16 years he had also been diagnosed with Asperger's Disorder, Tourette's Syndrome, Tic Disorder, Oppositional Defiant Disorder and Generalised Anxiety. A child psychiatrist also diagnosed complex Post-Traumatic Stress Disorder, apparently arising from acute episodes of bullying at school.
TD undertook high school studies at the local Catholic College from Year 7 - 11. He did not drink alcohol at high school and did not use illicit drugs, being focused on health and fitness. He started truanting frequently from Year 8 and was expelled during Year 11 when he engaged in a physical fight with a teacher. There were significant problems with his mother, who split from his stepfather and found a new partner when TD was aged between 15-16 years. He was asked to leave the home aged 17 years. He went to live with the family of a school friend.
He repeated the latter half of Year 10 at another high school but was expelled during the first term of Year 11 after he and several other students assaulted a younger student. He was a keen footballer, including playing in the New England region and more recently playing first division Rugby Union.
There is a family history of mental illness, his father being diagnosed with schizophrenia.
TD is currently in a relationship with a woman he met in high school. They have been together since October 2019.
He has a 4 year old son from a previous relationship.

The offender's criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

In 2013, TD was convicted of sexual intercourse with a person aged 14 years or over and under 16 years contrary to s 66C(3) of the Crimes Act. The victim was aged 14 and left school to meet TD. TD encouraged the victim to enter a public toilet in a park where they engaged in penile-vaginal intercourse. After the victim disclosed this to her older brother, she made a complaint to police. Following TD's guilty plea he was released on a s 33(1)(e) bond under the Children (Criminal Proceedings) Act for 12 months, without recording of the conviction, on 5 November 2015.
The index offence for which TD is currently serving a sentence is grooming a child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act. The background to this offending was summarised by Mahoney DCJ in R v [TD] [2018] NSWDC 180 at [6]-[12]. In brief, the victim was 14 years of age and TD knew her through her older sister. In mid-March 2017, he made contact with her through Facebook messenger. She told him that she was 14 years of age and he told her that he was 21 years old. Mahoney DCJ summarised the following events this way: "By the end of March 2017, the communication between the offender and the victim consisted overwhelmingly of romantic messages, proclamations of love and 'romantic nicknames'. The communications quickly became sexual in nature, with the offender and victim exchanging lengthy and explicit messages about having sex and performing sexual acts upon each other, from early April 2017."
The two then arranged for TD to stay at the victim's house between 28 April and 2 May 2017. The two discussed the sexual acts that would occur during that stay. TD then requested nude photographs of the victim. Sixteen of these were sent and were classified as "Category 2, Other Child Abuse Material". As Mahoney DCJ observed: "On a number of occasions the victim told the offender that she felt uncomfortable sending him nude photographs, that she did not like it and that she felt insecure about her body and sending the photographs. The offender pressured her into doing so, and on at least one occasion, when the victim thought she had made him angry and was worried she had upset him, he told her that she would make him feel better if she sent him nude photographs of herself."
TD was arrested when he arrived at the victim's residence on 1 May 2017. Whilst in custody, bail refused, he contacted the victim on a daily basis, asking her to send him photographs of herself and to put money into his account. TD was sentenced to 3 years imprisonment with a 2 year non-parole period. This was served concurrently with a 12 month sentence of imprisonment for possessing child abuse material contrary to s 1H(2) of the Crimes Act. The child abuse material was naked photos of the same victim.

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

In sentencing TD for the index offence Mahony SC DCJ found that the offending fell within the mid-range of objective seriousness for a charge of that nature. His Honour found that the s 66EB(3) offence was objectively serious, providing the following reasons at [72]: "There was a significant divergence in ages, namely, the offender was 21 years and the victim was 14 years of age at the time of the offending. From the commencement, the offender was aware that the victim was 14 years of age. The offending conduct took place over a period of four weeks between 30 March 2017 and 1 May 2017, during which time, the volume of messages amounted to 648 in total. The communications escalated quickly to become extremely sexually explicit at the behest of the offender. The offender was persistent and manipulative in his requests for explicit photographs from the victim, and at times expressed anger when the victim would not accede to his requests. He was aware that the victim did not want to send photos as he had requested, and had indicated her discomfort at the prospect of sending sexually explicit photographs of herself. The offender expressed explicitly the various ways he intended on having sex with the victim. In doing so, he took advantage of the victim's emotional immaturity; His motive was patently clear in that he intended on having sexual intercourse with the victim, knowing she was 14 years of age, and not capable of consenting to having sexual intercourse with him, and It is immaterial, in assessing the objective seriousness of the offending, that no sexual intercourse took place."
TD's criminal history meant that he was not entitled to leniency. His Honour noted TD's "troubled childhood" of bullying. However, he noted that, despite TD's history of mental illness as a child, he could not make a finding of reduced moral culpability because of the paucity of medical evidence at the time of sentencing. He also found that TD was a suitable vehicle for general deterrence.
His Honour made a finding of special circumstances on the basis that TD required rehabilitation and was young. He also noted that "[g]iven his criminal antecedents, any assessment of his risk of re-offending would have to be guarded. It is clear that previous courses undertaken by the offender, relating to his anger management and risk of re-offending, were entirely unsuccessful."

Previous level of compliance with supervision orders: s 9(3)(e2)(f)(g)

TD was released to parole on 24 August 2019. He was placed on strict parole conditions at that time which included electronic monitoring. He remained on those conditions until the ISO I imposed on him commenced on 24 August 2020. Since that time, his conditions have included wearing electronic monitoring equipment, providing a weekly schedule of movements and seeking approval from a DSO if he needs to deviate from this schedule. He has, thus, been under intense supervision since 24 August 2019.
As for his compliance with supervision, the affidavit of Ms Najjar dated 25 September 2020 annexed the Offender Integrated Management System ("OIMS") notes for the period 29 May to 22 September 2020. They relevantly reveal that the defendant regularly informed his supervising team of his whereabouts, including when he would complete his activities early, and sought a permission to depart from his pre-approved weekly schedules of activities when needed. The notes from 29 May 2020 to 22 September 2020 demonstrate that TD continuously sought permission from his DSO whenever he wished to deviate from his agreed schedule. By way of example, the OIMS notes dated 14 June 2020 indicate that TD contacted Corrective Services approximately four times to advise that he was running late to a scheduled activity, that he had completed a scheduled activity early and the expected time of arrival at his residence. On 10 September 2020, he called Corrective Services to query whether they had called him, as he had received a call from a private number.
The OIMS notes also record that the defendant was polite and presented positively and cooperatively during his reviews and that there were no issues or charges in relation to him. A few minor incidents were noted, namely: 1. TD attended a job interview on 9 September 2019 and was directed to disclose his current circumstances by Community Corrections. He did not abide by this direction. 2. A breach of parole report was submitted on 3 January 2020, outlining a failure to comply with a formal direction to cease social media use and to disable all social media accounts in his name. 3. TD was also reprimanded for evading chores at his Community Offender Support Program Centre ("COSP") in 2019, failing to keep to a pre-arranged budget, and not making payments on time. It was later noted that this had improved.

The expert evidence: s 9(3)(b)(c)

Section 6(3)(b) of the Act provides that an application for an ESO must include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) "that assesses the likelihood of the offender committing a further serious offence".
A report complying with that requirement was prepared by Mr Samuel Ardasinski, registered psychologist, on 23 December 2019 and headed "Risk Assessment Report" ("RAR"). I considered it in some detail in my preliminary judgment. The Executive Summary of the RAR is in the following terms: "Based on empirical actuarial risk assessment measures, [TD] is assessed as posing a High risk of repeat sexual offending compared with other male sexual offenders. However, based on his recent compliance with supervision and an assessment of his 'live' dynamic risks, a risk rating of Moderate-High more accurately summarises [TD]'s likelihood of reoffending sexually. He has been diagnosed with various mental health issues as a juvenile; however he has reported to be functioning well currently and has recently ceased taking all psychotropic medications."
As for TD's risk scenario, Mr Ardasinski considered that: "[TD]'s most likely scenario for further serious sexual offending would involve his engaging in 'consensual' sexual interactions within the context of an intimate relationship, potentially one which he forms online, with an underage female (who is therefore unable to actually provide consent). This would likely follow a period of stress or distress (e.g. a relationship breakdown, a collapse in social supports), and would be preceded by excessive time spent online. Whilst [TD] is on parole and is restricted from accessing social media, this will limit his opportunities to offend in such a manner."
This RAR was critical to my preliminary consideration of this application and the orders I made on 6 August 2020.
The additional report of Mr Sheehan and Dr Furst were before me by the time of the final hearing. They can be summarised as follows.

Report of Patrick Sheehan dated 28 August 2020

Mr Patrick Sheehan completed a report on 28 August 2020. He interviewed TD for 2.5 hours. He reported that TD had good concentration, showed good recall of dates, and was "not grandiose, although he did show some haughtiness. At times he would overplay his success or professional standing in a way that was out of keeping with his circumstances." He further commented that: "[TD] has a complex psychiatric history, with a range of developmental, behavioural and personality disturbances generating widespread disorder in his early life and escalating in severity from the age of 17 to 21 years, during which time the index offences were committed. [TD] was released to parole in August 2019, and has been subject to intensive supervision for over 12 months. His response to his current period of supervision has been mostly favourable and he has obtained several milestones of community adjustment through independent residence, social engagement and a stable intimate relationship. … [TD] has made good use of his parole period and his improved stability is encouraging. It is possible that he is growing out of the problems that so badly undermined his earlier adjustment. However, in my view it is too early to confidently conclude that these improvements will be maintained over time, based solely on the basis of this limited period of positive functioning. On the balance of the available information I have estimated [TD]'s risk of a serious sexual offence to be in the moderate to high risk category of the risk spectrum. There may be scope to further adjust [TD]'s risk estimate to lower levels over the following few years should he continue to capitalise on his current stability (improving insight, obtaining employment/training), particularly if gains are maintained under reduced levels of supervision (such as removal of electronic monitoring)."
Mr Sheehan then summarised TD's upbringing, education history and family circumstances. As for his employment, Mr Sheehan noted that: "[TD] reported a negligent history of employment…Much of his employable years have been too chaotic, also interrupted by periods in custody. He has never held a drivers' licence. File reports and current presentation reveal [TD]'s habit of mispresenting his employment when asked, seeking to elevate himself in the eyes of others and himself."
Mr Sheehan noted a long history of poor social adjustment. TD had known his current partner since high school, with the relationship becoming romantic from October 2019. Although TD was attracted to the two 14 year old victims, he denied a particular interest in this age group.
In relation to TD's "very complex" psychiatric history, Mr Sheehan noted that his early adulthood and adolescent behaviour could be indicative of Antisocial Personality Disorder. Despite this, he noted that the full range of factors indicative of such a disorder was not present. There were also indicators of Narcissistic Personality Disorder. Mr Sheehan observed that: "[TD]'s sexual offences infer sexual psychopathology, with two 14 year old victims recorded. He does not meet the diagnostic criteria for Pedophilic Disorder as the victims were outside the age range specified for this disorder. I note that [TD]'s first sexual offence occurred when he was aged only 17 years. His offences may be more a feature of his indiscriminate sexual behaviour as opposed to a fixated deviant interest, but there may be grounds for a diagnosis of Other Specified Paraphilic Disorder (Hebephilia)."
Later, when discussing TD's results as assessed against the RSVP (detailed further at [62] below), Mr Sheehan noted that TD appeared to have a number of psychopathic traits. These were "Superficial, Grandiose, Deceitful, Irresponsible, lacks goals, doesn't accept responsibility, lacks empathy, impulsive, adolescent antisocial behaviour, adult antisocial behaviour, poor behaviour controls, adolescent antisocial behaviour, adult antisocial behaviour". However, in light of TD's recent improvement under supervision and historical diagnoses of Autism Spectrum Disorder, Mr Sheehan did not diagnose TD with psychopathy.
Mr Sheehan then summarised TD's offending, institutional adjustment and supervision history, highlighting a note from a psychological session on 29 July 2020 that: "…Another noted issue in the session was the unchanged nature of his risk factor related to not caring about others. He stated during the session that he is 'never' going to care about others and what they think. Furthermore, he was unable to agree that everyone deserves a level of respect. He stated that he does not want friends, and he sees his selfish view of the world, in which he puts his own needs above everyone else, as potentially being a positive attribute (Solomon, 29 July 2020)."
In terms of TD's overall risk, Mr Sheehan noted the following: "[TD]'s risk of sexual reoffending is assessed as within the Well Above Average risk category with regard to actuarial factors. There are also a number of identifiable dynamic risk factors that would appear to be correlates of offending in [TD]'s particular case. Factors related to lifestyle instability, impulsivity, low intimacy, parasitic and exploitative relationships, unstable self image, extreme self-centeredness, impaired social appraisal and lack of consequential thinking, and hypersexuality would all seem the most salient contributors to risk, having worked in concert to produce his prior sex offences in 2013 and 2017. The evidence does support the view that the majority of [TD]'s dynamic risk factors have shown attenuation over the past year. It remains unclear to what extent this improvement may be attributable to intensive supervision or perhaps reflecting [TD]'s own process of maturation and personality stabilisation as he moves deeper into adulthood. In this sense it is possible that [TD]'s problems will remain relegated to his earlier development and not form an enduring feature in adulthood."
He opined that the most likely further sexual offending would be in the context of a relationship and occur because of TD's desire for "adulation, validation and sexual gratification". In conclusion, he noted that TD had made good use of his parole period, but noted that this was a limited period of positive functioning.

Report of Dr Richard Furst of 13 September 2020

Dr Furst interviewed TD for 90 minutes on 21 August 2020. In his report, he detailed TD's demographic details, offence-related issues and criminal history. In terms of recent progress, he noted that TD had been living with his partner for the past few months and intended to obtain a job in the racing industry. Dr Furst assessed him as "alert and engaging throughout the assessment period, being lucid, logical and expansive".
After reviewing the offender's criminal history, Dr Furst assessed TD as not displaying indications of a major mental disorder, signs of a depressed mood or as meeting the criteria for the a diagnosis of a persistent depressive disorder or of a major depressive disorder. He commented that: "In my opinion, there is evidence of inattention, under-performance at school, coupled with behavioural problems, anger issues and problems with authority figures, and some early problems in his social/emotional regulation skills. The basis of those problems is unclear, possibilities including temperamental/trait deficits, emotional reactions to being bullied, personality and attitudinal problems, impulsivity, and/or the effects of negative influences of delinquent peers in Armidale in his adolescence."
Dr Furst identified TD's dynamic risk factors as: capacity for relationship stability; lack of prosocial supports; feeling socially rejected/isolated; antisocial peers and impulsivity and "being online". He noted, however, that these risk factors had "probably diminished somewhat" over the past 12 months. In Dr Furst's assessment, this was because TD had largely complied with supervision, did not appear to be condoning sexual offending against children, did not appear to have current sexual preoccupation, was not presenting as antisocial or psychopathic, was in a relationship and was socially engaged through playing football. He concluded that: "Having regard to be identified dynamic risk factors, the lack of any male or stranger victims, the lack of any violence in his sexual offending (or otherwise) and [TD]'s positive progress over the last 12 months, I am of the opinion that he probably falls in the moderate or average range relative to other male sex offenders with respect to his risk of re offending in a sexual manner He is also unlikely to offend against a male victim, a prepubescent child or a stranger victim."
Dr Furst was not of the opinion that TD should complete a specific sex offender treatment program such as MISOP/HISOP. Nor was he of the opinion that an ESO was required.
He stated that further psychological treatment would enable TD to address his personal risk factors and stated that this might be achieved by TD seeing his local GP and being referred to a clinical psychologist pursuant to a mental health care plan, or potentially attending Relationships Australia.

Joint expert evidence

Mr Sheehan and Dr Furst gave evidence together before me on 14 October 2020. In terms of dynamic risk factors, Mr Sheehan stated that he had taken into account the improvements in TD's life, which had led to greater stability. He was also of the opinion that such stability would continue if TD was placed on a reduced level of supervision.
Mr Sheehan stated that his concern was that if TD's supervision was removed, it is unclear if TD's stability would continue. He commented that: "…The point that I've attempted to make is that we are not sure, is I'm not sure when I look at his good positive self‑regulation at the moment to what extent that is an artefact of the intensive supervision, which has not moved much in the last year, or his own development. Because his offences occurred at these younger ages, it could be that he developed out of that. But I don't know that. It's a possibility. He may well, if he was off supervision, continue to go down that line, to continue to consolidate these gains and increase his stability in the community and live well. But at this early stage I could not state that confidently. I just state it as a positive and an unknown at this point."
Mr Sheehan accepted that the current supervision regime had resulted in an attenuation of TD's risk factors. Nonetheless, he stated that, in his experience, the best results are obtained when supervision is curtailed gradually over time. Such a system allows the supervisee to demonstrate their ability to manage their risk over time. He stated that TD was currently under fairly intensive supervision and that he would have more confidence in TD if his autonomy was gradually given back to him. He was of the view that an ESO would be more appropriate than a Child Protection Prohibition Order ("CPPO") for managing TD's risk.
Dr Furst was of the opinion that TD's risk factors had improved. He attributed this to TD's current relationship. Like Mr Sheehan, Dr Furst was not confident that his risk had disappeared entirely. He attributed TD's improvement to the supervision and the disincentive it provided to commit offences as well as TD's continuous engagement with psychological therapy.
When questioned by TD's counsel, Mr Sheehan agreed that TD's progress would rely on his capacity to remain offence-free, to stay away from antisocial peer groups and to engage in prosocial activities, in addition to any potential supervision. He agreed that TD had demonstrated "real motivation" in these areas.
Mr Sheehan was presented with Dr Furst's conclusion that "[a]n assessment of current dynamic risk factors probably places [TD] in the low to moderate risk category relative to other male sex offenders." He stated that although there were some differences between his assessment and Dr Furst's assessment, there was a "broadly consensual" view that TD was within the moderate range.
In terms of TD's sexual behaviour, Mr Sheehan agreed that if TD had simply committed the earlier "statutory rape" offence (see above at [23]) then TD would not be assessed for paraphilia. However he stated that: "…the tools are also specific to say that if there goes on to be another offence, to be an offence later on, then the first offence is then to be considered a sex offence. When the first offence occurs it is ambiguous as to whether this is a genuine disordered sexual behaviour or a repeat behaviour that's going to continue to undermine the person's adjustment later, but when the second offence occurs it contextualises that earlier offence as part of a broader pattern. "
Mr Sheehan stated that TD's risk of committing a serious sexual offence would likely involve "a very idiosyncratic specific interest in 14-year-olds". Dr Furst added that: "The reassuring thing seems to be that offenders charged with this category don't seem to go on to a lot of serious offending. That's probably a summary of the literature so far. That reassures me to a degree, but it does not mean there won't be predatory type behaviour online or other behaviour for this defendant or other people.
Ultimately, there was very little disagreement as between the experts. That difference could best be described as the exact risk posed by TD, even though both agreed that he fell within a "moderate" category".

Statistical testing: s 9(3)(d)

Mr Sheehan assessed TD against the Static-99R. As he explained in his report, the Static-99R provides an estimate of future risk based on a number of risk factors present in any one individual. The total score (obtained by adding all the items) ranges from 3 to 12. Mr Sheehan assessed TD as having a score of 7, which placed him in the "high risk" or "well above average risk" category.
Mr Sheehan also assessed TD using the RSVP, which involved judging TD's risk according to 22 dynamic risk factors. He listed TD's dynamic risk factors as being: 1. Sexual Violence History; 2. Psychological Adjustment; 3. Mental Disorder; 4. Social Adjustment; and 5. Manageability.
Dr Furst similarly assessed TD against the Static-99R, while noting its limitations. His total score was 6, which placed him in the "well above average risk" category. When comparing recidivism rates from samples taken from NSW, Dr Furst observed the following: "…although a score of 6 on the Static-99R is classified as well above average compared to the average risk of the entire group of sex offenders, the observed recidivism rate amongst the 231 individuals who scored 6 in the sample was 20.3% for after 5 years of community follow-up [i.e. only 47 of the 231 individuals scoring 6 re-offended], meaning that far more individuals did not re-offend compared to those who re-offended." (footnote omitted)
Dr Furst also suggested that offenders who only offend online, for example by accessing child pornography, are different to those who physically offend against children. The latter group, according to Dr Furst, had a higher amount of antisocial traits and were a "higher risk group."
TD was assessed by Mr Ardasinski on 13 December 2019. Mr Ardasinski used the STABLE-2007, STATIC-2002R, VRAG-R and RSVP as assessment tools. When assessed against the 13 items in the STABLE-2007, TD was found to have a moderate density of criminogenic needs relative to other male sexual offenders.
TD's score on the STATIC-2002R was 9 when assessed by Mr Ardasinski. This placed him in the Level IVB (High risk) category. His score on the VRAG-R was 29, using 12 static risk factors. This classified him as high risk when compared to other violent offenders.
When assessed with the RSVP, TD was estimated as Moderate/Elevated risk category for repeat sexual violence. Mr Ardasinski judged TD as within the "Moderate to Moderate-High" risk category for sexual offending relative to other adult male sexual offenders. He did note that this was based on TD's dynamic risk profile and that dynamic risk factors are amenable to change through participation in treatment or other intervention.

Treatment and rehabilitation programs/available courses: s 9(3)(e)(e1)

TD was not able to complete a structured sex offender program due to the length of his sentence. During his period on remand he undertook an anger management course and re-offending course. TD then completed individual sessions with a psychologist, Ms Kate Solomon. This continued over several months from 12 November 2019.
As Dr Furst noted in his report, the FPS Psychology Service Progress Notes indicated that TD had made positive progress and was able to reflect on the causes of his offending in the past. In his report, Dr Furst was of the view that TD did not require treatment with psychotropic medication. However, he noted that: "I note that a Self-Management Plan was developed in sessions with Ms Solomon and it was opined that further psychological treatment would enable [TD] to address his personal risk factors at greater depth, e.g. gaining the resources/skills to deal with the challenges of intimate relationships, problem solving, social skills and developing healthier attitudes towards others. I note that such issues are frequently addressed by counsellors and psychologists working in non-forensic settings, such as Relationships Australia specialising in relationship/couples counselling and clinical psychologists across Australia and the World assisting individuals with problem solving, improving social skills, and tackling negative and/or self-defeating attitudes/cognitive distortions, typically employing Cognitive Behaviour Therapy (CBT), mindfulness and relaxation techniques. Therefore, I would suggest that irrespective of potential future involvement with FPS, [TD] would benefit by seeing his local GP and being referred to a clinical psychologist pursuant to a mental health care plan and/or attendance at Relationships Australia with his current partner…"
In her affidavit dated 25 September 2020, Ms Najjar deposed that correspondence received from the Senior Police Lawyer, Senior Sergeant Matthew Price, confirmed that the Child Protection Register Team were no longer considering a CPPO for the defendant.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community s 9(3) (d1)

A report was prepared for the purposes of the preliminary hearing: State of New South Wales v TD (Preliminary). As I noted at [46] of that judgment, Ms Ashley-Ann Newby, a Community Corrections officers, explained that a management strategy for TD would likely involve comprehensive supervision, including weekly interviews and non-contact orders from Community Corrections.

The State's submissions

It was submitted that although the court-appointed experts are highly significant to the court's consideration, their evidence is not the only material that the court is to have regard to. The State submitted that the court should look at the matter holistically. Reliance was placed on the nature of the most recent offence which involved a degree of manipulation and emotional abuse and was committed whilst the defendant was on parole.
It was submitted that it was open to the court to conclude that it is the intensive supervision, including close monitoring and scheduling, that has contributed in a material way to the attenuation of the dominant risk factors. The State accepted that there had been improvement in the defendant, and there had been a continuation, at least to some extent, of those risk factors identified in the various expert reports. It was also accepted that TD had gained motivation.
The State noted that both experts agreed, even after the conclusion of their oral evidence, that the defendant continues to possess at least some risk factors. As for their evidence generally, it was submitted that their reports were "nuanced". The State urged the court to have regard to those nuances and not to deal just with their conclusions. By way of example, it was noted that Mr Sheehan took the view that there should be a lower degree of supervision and that this would probably lead to a reduction of risk but he could not be confident as to the result if there was to be no supervision at all. Mr Sheehan also made an observation that the defendant did not seem to have full insight into the offending in connection with the first of the two major offences.

TD's submissions

It was submitted that the statutory test was not satisfied in this matter.
It was noted that, although the State placed significant reliance on Mr Ardasinski's RAR at the preliminary hearing, the State had backed away from that report to some extent at the final hearing.
It was submitted that the State had failed to grapple with the finding the court was required to make as to risk based on the expert evidence of both Mr Sheehan and Dr Furst. It is for the State to discharge the application and establish the matters to the court's satisfaction. It was noted that Mr Sheehan's evidence was not that Dr Furst's view is unreasonable.
It was submitted that it was common ground that TD has made gains and that if he continues with these gains his risk is going to be significantly lower than on the actuarial scores. The evidence is not that he cannot maintain those gains without supervision nor has there been a good reason proffered why he would not maintain those gains. It was submitted that the State's position did not reflect the relevant statutory test; that is, the position of the State was that an ESO should be made unless the court positively found that TD will not maintain the gains he has made without supervision.
The court's attention was drawn to sentences imposed for contraventions of an ESO in other cases. It was submitted that the State had been zealous in prosecuting for minor breaches. In 60 cases in the last 12 months, 93 % of offenders have been imprisoned. Counsel for TD submitted that this created the statistical risk that if TD breached an order in a way other than committing an offence he could be returned to prison. If this occurred his positive progress could be derailed and such an outcome could not be consistent with the aims of the legislation which is the protection of the community through successful rehabilitation.

Consideration

The determination of this application turns on whether I am satisfied to a "high degree of probability" that unless TD is placed on an ESO he poses an "unacceptable risk" of committing a "serious sex offence" as defined. His particular risk has been assessed as engaging in "consensual" sexual interactions within the context of an intimate relationship with a female who is around 14 years of age. Such an interaction would likely follow a period of stress or distress, such as a relationship breakdown. I am required to evaluate the risk of TD re-offending in that particular respect based on the material put before the court.
It has been held that the term "high degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court of Appeal observed at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..."
The phrase "unacceptable risk" is not defined in the Act, although s 5D provides: "For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence."
It has been held that the phrase "unacceptable risk" in the Act should be given its everyday meaning within its context and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Beazley P at [58], with whom Gleeson JA agreed). The test is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82] (Basten JA).
In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed (at [43]): "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
These observations were echoed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (at [71]), where her Honour observed that "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J observed the following at [14]-[17]: "The ascertainment of a risk and its denotation as "unacceptable" occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable. For a full discussion, albeit in the context of the Terrorism (High Risk Offenders) Act 2017 (NSW), which is in relevantly identical terms, see State of NSW v Ceissman [2018] NSWSC 508 at [26]-[33]." (Emphasis added.)
I have had regard to all the mandatory factors in s 9(3) of the Act as well as s 9(2). I have summarised these above. I have had particular regard to the expert evidence of Dr Sheahan and Dr Furst, and the defendant's recent progress as reflected in the OIMS notes.
There was ultimately very little disagreement between the two court-appointed experts. I found Mr McGorey's cross-examination of Mr Sheehan particularly helpful. Mr Sheehan conceded two things in cross-examination. The first was that motivation is required for improvement. Mr Sheehan observed that he has seen a lot of defendants in proceedings such as these in relation to whom he would not have the same degree of optimism that he would be able to succeed without an ESO as TD. To put this another way, Mr Sheehan's evidence was that, unlike other offenders, he could not state with any certainty that TD would not do well if he was not being supervised.
Secondly, Mr Sheehan's evidence was that most defendants on release do not commence pro-social relationships so quickly. TD is in a pro-social relationship with a woman his own age. In this way, two of the factors assisting TD are his own motivation and his pro-social relationship. It could not be said that it is solely the ESO which has been the cause of his rehabilitation.
Another pertinent aspect of Mr Sheehan's evidence was his observation that if TD had only committed the first of the two sexual offences there would be no reason for concern, or, as he put it, "we wouldn't be here". That is because a sexual relationship between a 17 year old and a 14 year old is not usually considered an episode of paedophilia. It was the second offence when TD was 21 and the victim was 14 that raises the questions of unacceptable risk in this matter. In this context the fact that TD does not express the same level of remorse for the first offence as for the second is to some extent understandable.
It was the conclusion of Dr Furst that TD did not require an ESO in order to continue his rehabilitation. Mr Sheehan did not specifically address this question because he considered it to be the legal test for the court. In this context Mr Sheehan ultimately conceded that he, Mr Ardasinski and Dr Furst had reached a broad "consensus": "Look, there are some differences within the three risk assessments that are tendered of Mr Ardasinski, of Dr Furst and myself. On a spectrum of risk, no one has said he's low, no one has said high. They seem to land between the moderate, which is the middle of that spectrum, to slightly further up between the moderate and high and high range. I do consider that broadly consensus. I would consider that to be somewhere within the confidence interval that's reasonable in assessing risk given the uncertainties of that."
All three relevant experts assess the level of risk as in the moderate range. That assessment is relevant to whether I am satisfied to a "high degree of probability" that unless TD is placed on an ESO he poses an "unacceptable risk" of committing a "serious sex offence." I accept the submission of the State that the question is not to be determined solely on the reports of the court-appointed experts. The number of mandatory factors in s 9(3) of the Act makes that clear. But the fact remains that the weight of the evidence of the court appointed experts militated against the need for an ESO in this matter and they both had regard to most of the other matters enumerated in s 9(3) of the Act in their evidence. This raises the question of what additional material the State relies upon in order to satisfy the relevant statutory test.
The statutory test would not be met in this matter if the court was satisfied that the defendant poses an unacceptable risk of committing any type of offence, sexual or otherwise, unless supervised; it must be a "serious" sex offence of the type identified in the State's application. That risk scenario is very narrow. It is not suggested that TD would force a female under the age of 16 (but above the age of 14) to have sexual intercourse with him. It is not suggested that he is at risk of engaging sexually with females under the age of 14. There is no identified risk that he would use violence or force. His sole risk is that if he was under stress he would groom a female of 14-15 years of age online in order to have sexual intercourse with him.
TD committed sexual offences when he was 17 and 21 respectively. He is now 25 and in a pro-social relationship. His explanation for the second offending was that he sought admiration and attention and thought that a young partner would look him with more adulation than a partner his own age. The age gap between TD and 14 year old females will widen with the effluxion of time. There is no doubt that there are still aspects of his personality that troubled the court appointed experts, such as his grandiose ideas. But these matters do not address the risk contemplated as unacceptable in the Act.
I have had regard to all of the defendant's risk factors and how they are being managed. Taking all of the material before me at its highest, it is possible that the defendant will engage in further general criminal activity if not supervised. But that is not the test. I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not supervised.

ORDERS

I make the following orders: 1. The summons is dismissed. 2. The Interim Supervision Order due to expire on 14 November 2020 is revoked. 3. The plaintiff is to pay the defendant's reasonable costs of the proceedings on the ordinary basis.

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: 11 November 2020

Crimes (High Risk Offenders Act 2006(NSW)s 3(1)(2), 4(1), s

Crimes Act 1900(NSW)s 66C(3), s

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (4)

Cases Cited (9)