Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Williamson [2014] NSWSC 939 Hearing dates: 2 July 2014 Decision date: 03 July 2014 Jurisdiction: Common Law Before: Johnson J Decision: An extended supervision order is made for a period of five year subject to the conditions set out in the Schedule to this judgment Catchwords: SERIOUS SEX OFFENDER - application for extended supervision order - Defendant (then aged 20 years) committed sexual offences of utmost objective gravity over nine-month period in 1989 and 1990 - 11 victims of different ages and sexes attacked in variety of circumstances -substantial degree of forethought and preparation - sentenced in 1991 to 24 years' imprisonment with non-parole period of 14 years - Defendant in prison for 22 years before release on parole in 2012 - no evidence of breach of stringent parole conditions or later interim supervision order -Defendant suffering from multiple paraphilias and anxiety disorder - ongoing anti-libidinal medication and psychiatric treatment necessary to reduce risk of reoffending - progress made by Defendant under strict supervision - Defendant (aged 45) still a relatively young man - five year order appropriate - extended supervision order made Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 Crimes (High Risk Offenders) Act 2006 Crimes (Serious Sex Offenders) Act 2006 Protection (Offenders Registration) Act 2000 Cases Cited: State of New South Wales v Atkins [2014] NSWSC 292 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v Richardson (No 2) [2011] NSWSC 276; 210 A Crim R 220 State of New South Wales v Tillman [2008] NSWSC 1293 State of New South Wales v Williamson [2014] NSWSC 519 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Terry John Williamson (Defendant) Representation: Counsel: Mr D Kell; Ms TL Phillips (Plaintiff) Mr MJ Johnston (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2014/102445 Judgment 1JOHNSON J: By Further Amended Summons dated 25 June 2014, the Plaintiff, the State of New South Wales ("the State"), seeks an extended supervision order ("ESO") for a period of five years with respect to the Defendant, Terry John Williamson, under the Crimes (High Risk Offenders) Act 2006. Background to Application 2In a nine-month period between August 1989 and May 1990, the Defendant, then aged 20 years, committed 19 offences of a sexual nature in the Bulli and Corrimal areas. The victims of the offences were 10 females (aged between five and 43 years) and one 11-year-old boy. All the victims were strangers to the Defendant. I will return to the facts of the offences when considering the statutory criteria to be taken into account by the Court on an application of this type. At the outset, however, it should be observed that the Defendant's offences were of the utmost gravity. 3The Defendant came to be sentenced in this Court on 9 December 1991 by Loveday J, a Judge of great experience in the criminal law as a Judge of the District Court and then this Court. His Honour observed, in the course of his sentencing remarks, that: "It is no exaggeration to say that for many months [the Defendant] terrorised a substantial area in the vicinity of Wollongong." 4The then unknown attacker was dubbed "The Bulli Rapist" in the media. That the people of the Illawarra were fearful throughout this period was entirely understandable. 5The Defendant was sentenced by Loveday J to a total effective head sentence of just under 24 years (precisely 23 years 11 months and 29 days) commencing on 17 May 1990 and expiring on 15 May 2014. A non-parole period of 14 years was fixed, expiring on 16 May 2004. 6The State Parole Authority refused parole to the Defendant on several occasions, ultimately releasing him to parole on 16 February 2012. He was then aged 42 years. 7Before his release to parole, the Defendant had undertaken escorted day leave from 14 January 2008 and unescorted day leave from 15 April 2011. He commenced weekend leave in November 2011. One of the parole conditions required the Defendant not to visit the Illawarra region. There were other strict conditions as well. After his release on parole, the Defendant was supervised by Community Corrections. He complied with his parole conditions. 8With the approach of the complete expiry of the Defendant's sentence (and thus the capacity to subject him to parole supervision) on 15 May 2014, the State commenced the present proceedings on 4 April 2014, seeking orders under the Crimes (High Risk Offenders) Act 2006. 9On 7 May 2014, Button J made an order under s.7(4) of that Act, appointing two psychiatrists, Dr Andrew Ellis and Dr Jeremy O'Dea, to conduct separate examinations of the Defendant and to prepare psychiatric reports for the Court. In addition, Button J made an interim supervision order ("ISO") under s.10A of the Act to commence on 15 May 2014: State of New South Wales v Williamson [2014] NSWSC 519. 10The conditions of the ISO are similar to the parole conditions which expired on 15 May 2014. The ISO has been continued, and will expire on 9 July 2014. 11The final hearing proceeded before me yesterday and the matter was stood over until today for decision. 12The Court has been assisted by counsel for the State, Mr Kell and Ms Phillips, and counsel for the Defendant, Mr Johnston. 13The approach of the Defendant to the application is to agree to the making of an ESO on the conditions as sought, with the only contested issue being whether the order should operate for five years, as sought by the State, or three years as nominated by the State in the original application, a period which counsel for the Defendant submits is appropriate in all the circumstances. 14The statutory scheme requires the Court to be satisfied that an ESO should be made, and to determine the length of the order and its conditions. This is so even where there is no opposition (or even consent) to the making of the order: State of New South Wales v Fisk [2013] NSWSC 364 at [17]. 15A proper basis needs to be demonstrated for including conditions, keeping in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached: State of New South Wales v Atkins [2014] NSWSC 292 at [133]-[134]. 16That said, the approach of the parties at this hearing is both helpful and realistic in the circumstances of the case. 17Before moving to consideration of the statutory criteria, it is appropriate to observe that the Crimes (High Risk Offenders) Act 2006 (or its predecessor, the Crimes (Serious Sex Offenders) Act 2006), did not exist in 1991 or, indeed, as would be clear, until 2006. A person in the Defendant's position would have served his sentence to finality, in the absence of legislation of this type, and there was no statute which permitted steps to be taken thereafter to control or supervise such a person. 18The present case provides a useful example of the purpose served by protective legislation of this type. The primary object of the Crimes (High Risk Offenders) Act 2006 is to provide for the making of orders "so as to ensure the safety and protection of the community": s. 3(1). A further object is "to encourage high risk sex offenders to undertake rehabilitation": s.3(2). The purpose of the statute is not to punish the offender further: State of New South Wales v Tillman [2008] NSWSC 1293 at [57]-[63]. 19In circumstances where the Defendant entered custody at the age of 20, and remained there for 22 years before his release on parole (which could then only operate for two years until the sentence expired), the use of orders under the Crimes (High Risk Offenders) Act 2006 appears more than appropriate to promote the safety and protection of the community. By the time of his release on parole, the Defendant had spent more than half his life in prison. Further, as will be seen, there are features in the Defendant's case which demonstrate the need for ongoing supervision in the community, even allowing for his so far successful period of conditional liberty since February 2012. Applicable Legal Principles 20I am satisfied that all technical preconditions under the Crimes (High Risk Offenders) Act 2006 have been met in this case. 21It is then necessary for the Court to determine whether the Defendant falls within the definition of "high risk offender" in s.5B(2) of the Act and whether, having regard to the non-exhaustive list of criteria in s.9(3), an ESO ought be made. In practical terms, these are related questions: State of New South Wales v Fisk at [22]. 22For an offender to be a "high risk sex offender", he must be a sex offender and the Court must be "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision". 23I approach these issues bearing in mind the principles expressed in decisions such as State of New South Wales v Richardson (No 2) [2011] NSWSC 276; 210 A Crim R 220; State of New South Wales v Fisk and State of New South Wales v Atkins. It is not necessary, in the circumstances of this application, to restate those principles. Criteria Under s.9(3) Crimes (High Risk Offenders) Act 2006 24I turn to the criteria to be considered under s.9(3) of the Act. 25The written submissions on behalf of the State approached the criteria in s.9(3) out of their statutory order. I will adopt a similar approach in considering these matters for the purpose of the present decision. Section 9(3)(h) - The Defendant's Criminal History and Patterns of Offending Behaviour 26It is appropriate to refer, at this point, to the 19 sexual offences committed by the Defendant against 11 victims. I have made general reference to these already. 27I adopt gratefully the summary of the offences provided by Button J in State of New South Wales v Williamson at [3]-[34]: "3 The foundation of these proceedings is the fact that, over 20 years ago, the defendant committed a number of exceptionally serious sexual offences. I shall recount their objective features briefly. This recitation is founded on the agreed facts that were tendered in proceedings on sentence in 1991. 4 At about 11 PM on 5 August 1989, a 13-year-old girl was walking home from a social event in Bulli, near Wollongong. The defendant observed her from his motor vehicle. He parked the vehicle, and dressed himself in a balaclava and a pair of gloves that he had with him in the car. He also armed himself with a folding knife. He lay in wait for the victim in the grounds of a high school. She became aware of his presence and tried to run away, but he chased and captured her. She was marched at knife point into the grounds of the high school. There the defendant ordered her to remove her clothes and lie on the ground. He blindfolded her with her own clothing. The defendant then performed oral sex upon the victim and had penile/vaginal sexual intercourse with her. He ejaculated on the ground near her person. After that he permitted her to dress herself, and marched her out of the school grounds. Eventually he released her, but not before ordering her not to tell anybody what had happened or he would 'come and get her'. On returning home the victim made an immediate complaint to her mother. During her ordeal the victim was in fear for her life. 5 On the evening of 17 September 1989, the second victim, a 15-year-old girl, was staying at an address in Bulli. Some time after she went to bed at 9 PM, the defendant gained entry to her bedroom and woke her. He was wearing a balaclava and gloves, was in possession of a torch, and was armed with a knife. A struggle ensued, and the defendant threatened the victim by holding the knife to her throat. He dragged her away from the premises to a park about one kilometre from the point of abduction. 6 There she was ordered to undress, and was blindfolded with articles of her clothing. While still holding the knife to the throat of the victim, the defendant performed oral sex upon her, and thereafter had penile/vaginal sexual intercourse with her. He ejaculated on the grass nearby. The defendant decamped. He left the victim lying on the ground, partly clothed, still blindfolded, and with her hands tied by a portion of her clothing. After some time she freed herself, ran to the nearest house, and complained to the occupant. During the attack, the victim had received a number of cuts to her hands and left breast from the knife wielded by the defendant. 7 In the early hours of 6 November 1989, the third victim, an 11-year-old boy, was sleeping in his bed at his home in Bulli. The defendant drove to the premises in a motor vehicle that he had stolen in the preceding days, and gained entry through a closed window. He was wearing a balaclava and gloves, was carrying a torch, and was armed with a folding knife. The defendant ordered the victim from his bed, took him to the motor vehicle that was parked nearby, and placed him into its boot. The defendant drove to bushland in the area of Mount Kembla. 8 There he removed the victim from the boot, blindfolded him with an item of his own clothing, and placed him in the backseat of the car. The defendant masturbated the victim, performed oral sex upon him, and then forced the young boy to perform oral sex upon the defendant. Later the defendant attempted to have penile/anal sexual intercourse with the victim. 9 The victim was then placed in the boot again, driven around the Mount Kembla area, and ultimately left in bushland. The boy walked for some distance in darkness before coming to a home; there he informed the occupants of his ordeal. 10 In the early hours of 5 February 1990, the fourth victim, a 26-year-old woman, was sleeping in her bedroom. With her was her four-year-old son. 11 The defendant gained entry to the premises by manipulating the security chain on the rear door. He woke the victim from her sleep. He was wearing a balaclava and gloves, and was armed with a folding knife. 12 The defendant ordered the victim to roll onto her back and undress. He then bound her hands behind her back and blindfolded her with articles of her clothing. He informed the victim that he was looking for money and that he intended to have sexual intercourse with her. The victim requested that her son be taken from the room. The defendant complied with that request, but whilst doing so indicated that the child would be harmed if he screamed. 13 The defendant returned to the victim and had penile/vaginal sexual intercourse with her. Thereafter he forced her to perform oral sex upon him, and he ejaculated in her mouth. The victim became physically sick, and was ordered by the defendant to go to the bathroom and wash out her mouth. She complied with that order. By that stage her hands had been unbound but she was still blindfolded. 14 Upon her return, the defendant again forced the victim to perform oral sex upon him. He then fled. The victim informed her next-door neighbour of what had happened. During the crimes, she was 'extremely terrified' for her own safety and that of her son. 15 On 15 February 1990, the fifth victim, a 13-year-old girl, was alone in her family home. She went to bed at about 11 PM. At about 2 AM she heard noises outside her house. She investigated but found nothing, and returned to bed. The noises were caused by the defendant, who had been outside the home and keeping the victim under observation. He established that she was alone in the house, and gained entry by manipulating the lock on the rear screen door. He entered the bedroom of the victim. At the time he was wearing a balaclava and gloves, and was armed with a folding knife. 16 The defendant demanded money from the victim, and searched her room. The victim was blindfolded with her own clothes. The defendant told the victim that he was armed, and instructed her to remove her clothing. She did so. The defendant then had penile/vaginal sexual intercourse with the victim. After that he forced her to perform oral sex upon him. At a later stage he had penile/vaginal sexual intercourse with her again. He left the victim still blindfolded and highly distressed. The victim complained to her mother upon the latter's return to the home early the next morning. 17 Early in the morning of 22 March 1990, the sixth victim, a woman then aged 24 years, was at home with the seventh victim, her five-year-old daughter, along with her two-year-old son. At the time, the sixth victim was seven months pregnant. The sixth victim was in one bedroom with her son. The seventh victim was lying in another, smaller bedroom. At about 3 AM the defendant stood on a garbage can at the side of the house and used a folding knife to manipulate the lock on a window. He entered the home and went to the bedroom of the sixth victim. At the time he was wearing a balaclava and gloves, and was in possession of the knife. 18 The defendant threatened the sixth victim, blindfolded her with material found in the room, and bound her hands behind her back. The defendant then pulled up the sixth victim's nightdress, and cut her pants from her body. He placed his hand on the outside of her vagina. The defendant then left the room to search the house for valuables. While the defendant was absent, the sixth victim worked her hands free and removed the blindfold. The defendant subsequently returned to the sixth victim's bedroom, rebound her hands, and blindfolded her again. While doing this he repeatedly poked the sixth victim with the point of his knife. 19 The defendant then went to the smaller bedroom where the seventh victim, the five-year-old daughter, was sleeping. Her woke her up, and told to take off her nightdress. She did so. The defendant then attempted to have penile/vaginal sexual intercourse with the seventh victim, but was unable to do so because of the size of her body. The seventh victim began to cry. After dressing and undressing the seventh victim, the defendant inserted his penis into her mouth, and ejaculated onto a towel in the bedroom. At a later time he again inserted his penis into the mouth of the seventh victim, while he was alone with her in the smaller bedroom. 20 The defendant then left the premises. At this stage the sixth victim was still bound and blindfolded. After approximately 15 minutes the sixth victim was able to work her hands free and remove the blindfold. She then alerted the local police. Throughout the ordeal the sixth victim feared for the safety of her two children, her own safety, and the safety of her unborn child. 21 Around this time, police investigations had led to the defendant becoming one of a number of suspects. On 30 March 1990 two police officers attended the home of the defendant and spoke with his parents, who permitted the police officers to search the defendant's room. The defendant was also asked to supply police with a blood sample. He obliged, and was conveyed to Wollongong District Hospital for this purpose. 22 Soon after midnight on 15 April 1990 the eighth victim, a 43-year-old woman, was at home alone. Whilst she was bathing, the defendant gained entry to the premises by using his knife to manipulate the lock of a window in the front bedroom. When the victim got out of the bath, she saw the defendant outside the bathroom wearing a beanie (fashioned into a balaclava) and gloves. He was also holding his knife. She closed and bolted the bathroom door, but the defendant quickly forced it open. The victim began to scream and a struggle ensued. In the course of the struggle the victim received a deep laceration to her left hand. The defendant ran from the house. Police attended the premises a short time later to find the victim 'totally distraught'. She was later conveyed to hospital via ambulance. 23 Later that morning, the defendant attended another house nearby. The ninth victim, a 21-year-old woman, and the tenth victim, a woman aged 18 years, were staying in the house while the occupants were away. The defendant placed a garbage container under a downstairs window, climbed onto it, removed the flyscreen, opened the window, and climbed through it. He was wearing gloves and a beanie pulled over his face, and was armed with a knife. 24 The defendant went upstairs to the bedroom where the ninth victim was sleeping. She woke up to see the defendant just outside the bedroom door, and began screaming. The defendant placed his hand over her mouth, and a struggle ensued. The defendant eventually overpowered the victim, and bound her hands with clothing. He asked her for money, and searched a number of rooms on the first floor of the house. He later returned to the bedroom where the ninth [victim] was lying with her hands bound, and proceeded to bind her feet. He then continued to search for money. 25 At this time the ninth victim managed to free her hands and telephone her 22-year-old brother, who lived nearby. Her brother armed himself with a 'kendo sword' and ran to the premises. 26 Meanwhile, the defendant entered the ground floor bedroom where the tenth victim was sleeping. He woke her up and was in the process of binding her hands when the ninth victim's brother disturbed him. After a short confrontation, the defendant ran from the premises. The ninth victim's brother pursued him for some distance before losing sight of him. 27 Police attended the premises shortly afterwards, but were unable to locate the defendant. Neither of the victims was physically injured, but the ninth victim was 'in a state of hysteria' and the tenth victim was 'distressed'. 28 On 27 April 1990 the defendant stole a motor vehicle from outside a home in Corrimal and drove it to Wollongong. On 4 May 1990 he drove the vehicle to the Balgownie area. While driving in that vicinity at about 10:15 PM, the defendant saw the eleventh victim, a 16-year-old girl, walking along the side of the road. He pulled over, grabbed hold of the victim, and attempted to drag her into the motor vehicle. At the time the defendant was wearing a stocking mask and gloves, and was armed with a knife. The victim screamed, and a struggle ensued. During the struggle the leather jacket worn by the victim was slashed across its back, and she suffered injuries to her face, neck, and back. Neighbours were alerted to the struggle by the screams of the victim, and the defendant drove away. Police attended and searched the area without success. 29 Some hours later, at about 12:15 AM on 5 May 1990, police pursued the defendant, who was still driving the stolen motor vehicle, throughout the Corrimal area. The defendant abandoned the motor vehicle and ran into a large building site. He was eventually located and arrested. He was then conveyed to Corrimal Police Station and interviewed with regard to the attack on the eleventh victim. The defendant made full admissions in relation to this incident. 30 The defendant was also interviewed in relation to the attacks committed on the eighth, ninth, and tenth victims. The defendant initially admitted responsibility for these offences, but feigned an inability to give pertinent details in response to questioning. Later in the interview he denied any involvement in those attacks, claiming that he had wanted the 'kudos' of being the 'Bulli rapist'. In a subsequent interview conducted after his second arrest, he told police that he had purposely given incorrect details of these attacks in an effort to divert the investigation away from himself. 31 After the interview on 5 May 1990 the defendant was charged only with the offence committed against the eleventh victim. He appeared at Wollongong Local Court on 7 May 1990. He was granted bail, and released into the custody of his parents on 8 May 1990. 32 On 13 May 1990 the defendant breached bail and stole a motor vehicle. He later abandoned it and stole another one. On 14 May 1990 he stole food and items suitable for camping from a home in the Mount Kembla area, and 'went bush'. The defendant was rearrested on 17 May 1990. At the time he was in possession of items that were undoubtedly possessed with the intention of committing further offences of sexual violence. 33 With regard to all offences, the defendant used a police scanner that was in his possession in order to evade detection. 34 Eventually the defendant admitted to the commission of all offences, and pleaded guilty to them." 28Button J then made the following observations (at [35]-[36]); statements with which I entirely agree: "35 The immense heinousness of the offences committed by the defendant requires no elaboration. Nor does the fact that they must have caused years of psychological suffering to their victims. Nor does the undoubted proposition that for some months persons who lived in that part of New South Wales were terrorised by the possibility of being a victim of the defendant. 36 A number of matters require emphasis. The first is that the offences featured a substantial degree of forethought, planning, and preparation. The second is that the victims of the defendant were both female and male. The third is that the victims were both adults and children. The fourth is that, by their very nature, the crimes of the defendant lead one to reflect very carefully upon the risk of the commission of further such crimes during his lifetime." 29As mentioned in the extract from the judgment of Button J, when the Defendant was finally arrested by police on 17 May 1990, he had certain items with him. In his remarks on sentence, Loveday J indicated that the items were a stocking mask (which he was wearing pushed up under a beanie), gloves, a roll of tape and two knives, which Loveday J concluded were "obviously intended to sexually assault some further person". 30I note that, by this stage, the Defendant was on bail and that a grant of conditional bail on 8 May 1990 had not operated to restrain him from behaving thereafter in the manner identified. 31Apart from a minor stealing charge, the Defendant had no criminal history at that time. However, contained in the evidence now available to this Court is considerable documentary material which discloses the Defendant's acceptance that he had committed offences of a sexual nature prior to the index offences. These included acts of frottage, where he would rub up against other persons on public transport, and also other sexually motivated activity such as the making of obscene phone calls and entering homes of persons to observe them whilst they were sleeping. 32The Defendant's institutional custodial history reveals two conduct charges in 1991 and 1999; one involving an allegation of possession of unauthorised property (Panadeine), and the other damaging property. He is reported to have indecently exposed himself to female corrections officers on a number of occasions in the early period of his incarceration. Section 9(3)(h1) - The Views of the Sentencing Court at the Time of Imposition of Sentence 33Unsurprisingly, Loveday J in his remarks on sentence on 9 December 1991 described the totality of the Defendant's criminality as "horrendous" and "horrific". Loveday J emphasised the element of premeditation, the use of a disguise, a radio scanner and other features. His Honour emphasised as well "the mental stress and anguish caused to the victims" which "must have been very great indeed". His Honour also indicated that the Defendant had "showed no remorse whatsoever" for his victims whilst he was carrying out the crimes. 34In fixing a non-parole period, Loveday J observed that the additional term of 10 years was to allow the Defendant "adequate time to integrate into the community under supervision after a lengthy period of imprisonment". At the same time, Loveday J said: "Before you are in fact granted parole, I would expect that the authorities would have to be satisfied that you do not pose any continuing threat to society." As noted already, the Defendant was not granted parole until the final two years of the sentence. Section 9(3)(f) and (i) - Level of Compliance with Parole and Supervision Obligations 35As already noted, the Defendant was released to parole on 16 February 2012, subject to stringent conditions including electronic monitoring, drug and alcohol testing and compliance with directions to undergo psychological or psychiatric assessment and counselling. These included a condition that he not visit the Illawarra area. 36The Defendant commenced a community-based therapeutic programme with Forensic Psychology Services in March 2012. He had commenced to take anti-libidinal medication whilst in custody in 2004, and continued to take this medication thereafter, including whilst he was subject to parole. 37The accommodation and employment of the Defendant was stable in the period when he was on parole. No breaches of parole were reported. 38The conditions that attach under the ISO are broadly similar to the Defendant's parole conditions, and no breach of that order has been reported. Section 9(3)(g) - Level of Compliance With Reporting Obligations Under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 39The evidence reveals that the Defendant appears to have remained compliant since his release on parole in 2012 with reporting obligations under this legislation. Section 9(3)(e) - Sex Offender Treatment Programs 40During the early years of his sentence from 1990 to around 1997, the Defendant took no steps to address his criminality nor the psychological issues that underpinned it. 41In 1999, the Defendant participated in the Sex Offenders Psycho-Educational Program (SOPE). It was a 16-session group program designed to provide information to offenders and increase their readiness to participate in the Custody Based Intensive Treatment (CUBIT) program. 42The Defendant participated in the CUBIT program from March 2000 to January 2001. In February 2001, he was assessed as having made good progress in CUBIT, having begun to address a number of his risk factors and having developed a useful relapse prevention plan. It was recommended that he needed to improve his coping skills, victim empathy, relationships with women and other aspects, including resolution of his abusive fantasies and the management of his anxieties and social isolation. 43It may be said, however, that after about a decade in prison, the Defendant had commenced to make meaningful progress with respect to custodial programs. 44The evidence indicates a recurring and significant concern involving abusive fantasies on the part of the Defendant, with efforts being made to assist him in this respect. 45The reports of the Court-appointed experts, Dr Ellis and Dr O'Dea, have addressed this issue and I will return to this a little later. 46The Defendant did participate in a custody-based maintenance program whilst he was at the Kirkconnell Correctional Centre and was reported to have made good progress. 47Since his release on parole in 2012, the Defendant has participated in the community-based maintenance program conducted by Forensic Psychology Services. Both Dr O'Dea and Dr Ellis note that treatment records indicate a positive response by the Defendant. Section 9(3)(c) and (i) - the Defendant's Paraphilias and Other Mental Conditions 48The Defendant has been diagnosed by a number of psychiatrists as meeting the diagnostic criteria for multiple paraphilias include sexual sadism, voyeuristic disorder, frotteuristic disorder, fetishistic disorder, exhibitionism, telephone scatologia and paedophilia. 49Dr Ellis reported that the various paraphilic disorders are evidenced in the history of the Defendant's offending behaviour, and his self report of fantasies and other behaviour. Dr Ellis has noted, importantly, that paraphilic disorders are chronic relapsing conditions. 50There are matters detailed in the reports of the psychiatrists and others which point to, and demonstrate, the persistent nature of the Defendant's deviant fantasies. These may be detected in reports dating back to 1991, and in subsequent years, including the reports of Dr O'Dea and Dr Ellis. It is not necessary to recite these aspects in detail. There is no contest that these matters are part of the Defendant's make up. Section 9(3)(i) - Anti-Libidinal and Anti-Anxiety Medication 51The Defendant commenced taking Androcur, an anti-libidinal medication, in May 2004 upon the recommendation of Dr Stephen Allnutt, a most experienced forensic psychiatrist. The Defendant has continued to take that medication. It is clear on the evidence that this is an important aspect of the management of the Defendant's risk of further sexual offending. There is evidence which indicates that since he has been on Androcur, sexual thoughts are less prominent and intrusive. That, of course, is one of the purposes of medication of this type. 52Dr Allnutt has been treating the Defendant in relation to his anti-libidinal therapy since his release on parole, and has monitored and reported in this respect. 53Dr Ellis has observed that the Defendant's anti-libidinal treatment is medically monitored in line with international best practice standards, and there are no contraindications to continuing with Androcur. He noted that with appropriate monitoring, side effects of the medication can be avoided and that the effects of anti-libidnals are reversible with cessation. 54Both Dr O'Dea and Dr Ellis have addressed the importance of the Defendant's continuation with anti-libidinal medication. 55Dr Ellis has recommended that the medication be continued indefinitely. Dr Ellis states that "Anti-libidinal medication is the best treatment to address deviant arousal" and that, in general, "anti-libidinal medication shows the greatest effect sizes in recidivism reduction of all strategies". 56Dr O'Dea considered that: "The ongoing prescription of testosterone lowering medication at a therapeutically adequate and appropriate dose is likely to prove the most effective clinical therapeutic intervention in managing and minimising [the Defendant's] risk of engaging in further sex offending behaviours and committing a further serious sex offence in the community in the long term." 57The evidence reveals that there is a significant and increased risk of the Defendant reoffending if anti-libidinal medication ceased. There is some material before the Court which suggests that the Defendant had expressed a desire to not maintain anti-libidinal medication into the future. Mr Johnston submitted, correctly in my view, that there is no evidence that the Defendant had demonstrated an intention to abruptly cease taking the medication. It is the case that there have been discussions with a number of doctors as to medication and its ongoing use, but there has been nothing to indicate an intention by the Defendant to stop using it. 58The use of anti-libidinal medication by the Defendant is an important part of the management of the risk he poses to the community. The State submitted that if there was cessation of the use of anti-libidinal medication by the Defendant, then the level of risk to the community would be greatly heightened. I accept that submission. However, the evidence does not reveal any apparent unwillingness on the part of the Defendant to take the medication. I approach this application upon the basis that the Defendant will continue to use such medication and that his medical advice will be that that should occur. 59If there was any alteration to the Defendant's approach to the use of anti-libidinal medication, there is of course provision within the Crimes (High Risk Offenders) Act 2006 for the matter to be brought back to Court (s.13B(4)(b) and (6)). However, I do not think, on the evidence before me, that that is a likely event. No submission has been made on his behalf that he will do other than continue to comply with this aspect of his treatment. 60In addition to anti-libidinal medication, the Defendant has been treated since 2004 with a class of medication known as Selective Serotonin Reuptake Inhibitors (SSRI). This medication is directed essentially to control mood and anxiety. It would seem, on the evidence, that this is an important aspect of the treatment of the Defendant as well. 61Given that the Defendant's dynamic risk factors of reoffending have included "feeling lonely and isolated", "problems with social adjustment", "social anxiety" and "experiencing acute mood swings and coping with this by blaming others", the Defendant's use of SSRIs assists to prevent the emergence of certain risk factors that may contribute to relapse or reoffending. Dr Ellis in his report emphasised this aspect. 62The State submitted that, as with risks arising from the Defendant's possible reduction or cessation of his anti-libidinal treatment, potential cessation by the Defendant of his SSRI medication in an unsupervised setting posed an unacceptable risk. There is nothing in the evidence to suggest the Defendant does have in mind the cessation of SSRI usage. That said, however, the supervision and controlled setting applying to him serves to fortify continuation of this aspect, and thus to operate to reduce the risk to the community which would flow from cessation of the use of this medication. Section 9(3)(i) - Alcohol or Drug Usage 63There does not seem to be a history of drug or alcohol abuse. 64However, Dr Ellis observed that alcohol played some role in the offences by promoting disinhibition. Given the Defendant's propensity to anxious and depressed states, abstinence was advised. 65Dr O'Dea expressed the same view. He considered it was prudent that the Defendant remain abstinent from alcohol and illicit substance use in the community in the long term to manage and minimise his risk of engaging in further sexual offences. Section 9(3)(c) and (d) - Risk Assessment 66Risk assessment concerning the Defendant dates back to an examination by Dr Jonathan Phillips in November 1991. Thereafter, there have been psychiatric reports prepared with respect to the Defendant in custody in 2003 and 2004, and a recent psychological report prepared by Ms Anna Woodrow in August 2011. That report assessed the Defendant as constituting a moderate to high risk of reoffending. 67Mr Patrick Sheehan, forensic psychologist, prepared a report dated 11 February 2014 which assessed the Defendant as presenting a moderate to low risk of sexual offending, having regard to actuarial assessment and dynamic risk factors. This assessment was made, in part, by reference to the Static-99 measuring method. 68Mr Sheehan identified a number of risk factors, including the Defendant's sexual violence history, difficulties with psychological adjustment as well as mental disorder in the form of paraphilic disorder and problems with social adjustment. In terms of established dynamic risk factors, Mr Sheehan identifies the Defendant's intimacy deficits, social influences, distorted attitudes, deficits in capacity to self-regulate and poor sexual self-regulation as evidenced by his offending history. In terms of acute dynamic risk factors, Mr Sheehan identified issues in relation to particular victims, hostility, sexual preoccupation, collapse of social supports and rejection of supervision as key risk factors for the Defendant. 69Having regard to both actuarial and dynamic risk assessment, Mr Sheehan assessed the Defendant as being in the moderate-to-low risk category of sexual offending relative to other adult male sex offenders. 70A further risk assessment was undertaken by Professor David Greenberg in his report of 29 March 2014. It should be noted that Professor Greenberg's very thorough report did not involve any recent examination of the Defendant, as the Defendant did not agree to being examined by Professor Greenberg for the purpose of the 2014 report. The position may be contrasted with the reports of Dr O'Dea and Dr Ellis, each of whom (of course) examined the Defendant in accordance with the orders of the Court. 71Professor Greenberg noted the Defendant's considerable progress whilst on parole, and the fact that he was responding positively and co-operatively to his parole conditions and that is certainly a consistent aspect of the evidence before the Court. 72Professor Greenberg identified anti-libidinal medication and psychological therapy as being key components in risk management for the Defendant. Professor Greenberg noted that the Defendant himself reported that he acknowledged the beneficial effect of the medication in assisting him in controlling his deviant fantasies and urges. Professor Greenberg expressed the view that should he discontinue the medication, the Defendant's risk of sexual reoffending will be moderately elevated. 73Professor Greenberg concluded that the Defendant's successful reintegration back into the community will depend upon compliance with ongoing psychological maintenance therapy, compliance with psychiatric medications to suppress his deviant sexual drive and motivation to seek and utilise available supports within the community. Section 9(1)(b) - Reports from Court - Appointed Experts - Dr Ellis and Dr O'Dea 74I have already made extensive reference to the reports of Dr Ellis and Dr O'Dea which are of great assistance to the Court. 75Dr Ellis provided a report dated 10 June 2014. He expressed the view that the Defendant met the diagnostic criteria for multiple paraphilias, including sexual sadism and noted that paraphilic disorders are chronic relapsing conditions. Dr Ellis stated that consideration of the type of possible sexual offence forms part of an estimation of risk and, given the Defendant's history, the likely type of victim would be a child or woman in a situation where they are alone or in a position of vulnerability, and that the likely offence would occur without warning. 76Both Dr Ellis and Dr O'Dea pointed to the limitation of Static-99 actuarial measures in this case because the very passage of time since the commission of the offences in 1989 and 1990 tended to reduce the statistical prospect of reoffending. However, the fact is that until 2012, the Defendant had been in prison. Thus, the passage of time itself provided very limited assistance in any risk assessment. 77Addressing the issue of risk Dr Ellis said: "The Defendant would fall into a group of persons with a risk for serious sexual offending that is statistically moderate in frequency but of a type with catastrophic consequence, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk." 78Dr O'Dea's report of 18 June 2014 also diagnosed paraphiliac disorder. 79With respect to the Defendant's risk of reoffending, Dr O'Dea said: "From a full psychiatric risk assessment and risk management assessment, and on the basis of [the Defendant's] reported sexually deviant urges, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence." 80Dr O'Dea emphasised that the risk of the Defendant committing further serious sex offences was heightened significantly if treatment intervention was not continued in the context of community supervision and monitoring. Section 9(3)(i) - The Defendant's Current Circumstances 81As I have mentioned, the Defendant, since 2012, has complied with parole conditions and the conditions of the ISO. He maintains a stable employment record and stable residence. 82The State submitted, however, that caution was required in reaching any conclusion with respect to what has been (at least for about two years) a stable and compliant picture. Firstly, the State says that the Defendant was living a relatively stable lifestyle at home with his parents when the offences were committed. Secondly, as Button J observed, the Defendant now leads a very isolated life with limited social contact with others. Thirdly, the State submits that this is not a case where the Defendant was found to be suffering from some major psychiatric episode at the time of the index offences, which has since been in some way cured. Rather, the Defendant has been diagnosed as suffering from multiple paraphilias which existed at the time of offending, and have continued since and which are effectively life-long conditions. 83A particular concern advanced by the State is that if something in the Defendant's life at this point started to unravel, his response may well include serious sexual recidivism. 84These submissions have considerable force and I accept them. They fortify the need for a guarded approach, whilst at the same time acknowledging the progress which the Defendant has made in the last two years. Section 9(3)(a) - The Safety of the Community 85As noted earlier at [18], ensuring the safety and protection of the community is the primary object of the statute itself. All other statutory criteria mentioned so far, viewed together, bear upon the primary question of the safety of the community. Everything that I have said so far by reference to the s.9(3) criteria can be brought together in considering this aspect. 86There are a number of aspects of the Defendant and his history which are advanced by the State and which, in my view, have force on this application. 87The Defendant's offending history indicates that he is a versatile offender. His victims have been young and old, mainly female, but with an 11-year old boy included. The victims have been persons offended against in their own homes, or persons targeted in other circumstances. 88Accordingly, there is no single fixed category of victims or fixed category of circumstances in which any risk of recidivism could arise. This is a significant factor. There is difficulty in isolating a likely victim profile or likely offence profile. In these circumstances, supervision conditions are important with respect to monitoring the whereabouts and psychological processes of the Defendant. 89Other aspects of the Defendant's make up are also relevant. As Button J observed, there are still deep unresolved issues with regard to women and aspects of the Defendant's sexuality. There is material that indicates that he can be moody and unpredictable. 90The State emphasises, as well, that although the index offences occurred a long time ago, they demonstrated a sustained and very serious set of offences. If there was repetition of sexual offending by the Defendant, there is the prospect that it would be grave. Dr Ellis used the term "catastrophic" in describing the consequences of further offending (see [77] above). This term is apt and is a significant feature of the application. Section 21A - Victim Statements 91At the hearing yesterday, the State tendered a number of victim statements for the purpose of s.21A Crimes (High Risk Offenders) Act 2006. Statements of five victims were placed before the Court. 92I have had regard to those statements on this application in the manner identified in s.21A. The statements demonstrate the long-term adverse consequences flowing from the harm done to the victims who were attacked by the Defendant so many years ago. Sentencing courts are now well aware of the long-term and likely permanent consequences of sexual offending against victims. The s.21A statements constitute powerful evidence of that very scenario. People who were attacked some 25 years ago still bear grave and permanent psychological scars. 93It is important that this feature be noted on this application. 94At the same time, and understandably, those persons have concerns about the Defendant being in the community without supervision. A consistent theme of the statements is the support of the victims for the use of the Crimes (High Risk Offenders) Act 2006 in the case of this Defendant. As I have said, I have had regard to those statements in the manner permitted under the legislation. Section 9(3)(d1) - Risk Management Report by Corrective Services NSW 95Also before the Court is a risk management report dated 27 February 2014, which relates to aspects of management being undertaken under the ISO, which would be effectively continued under an ESO. There are intensive conditions in place which provide for, amongst other things, reporting, electronic monitoring, a requirement to live in approved accommodation, provision for a curfew (to be applied flexibly), restrictions on employment, provision for non-association with children, provision for medical intervention and treatment obligations, including continuation of anti-libidinal therapy. 96The Court was informed yesterday (T8-9) that the effect of one of these conditions has been (and it may be taken would continue under an ESO) that the Defendant not be permitted to enter the Illawarra region. Conclusion on Application for an ESO 97The variety of factors which have been referred to in this judgment can be brought together. I am well satisfied that the State has demonstrated that the Defendant is a "high risk sex offender" within the meaning of s.5B(2) of the Act. I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. I am satisfied, as well, that an ESO should be made. Duration of ESO 98That brings me to the question of duration. As I have said, the State seeks an order for five years, the maximum period permitted under the Act. The Defendant submits that three years, the period nominated in the original Summons, would meet the needs of the case. 99I emphasise that whichever period was ordered, there is a capacity for the Court to make a further order upon application being made. 100The fact that the original Summons nominated a period of three years does not seem to me to have any real bearing on the application. It would always be a matter for the Court to determine the duration of any order. Further, it is clear that the approach of the State has been affected significantly by the content of the reports of the Court-appointed experts, Dr O'Dea and Dr Ellis. Both have made clear that there are long-term issues concerning this Defendant. 101Counsel for the Defendant has submitted that selection of the period of three years would allow the State to make a further application before that period had expired with the Court, if so minded, being able to direct the preparation of two further independent psychiatric reports of the type provided by Dr Ellis and Dr O'Dea, to assess what ought be done in the circumstances of the Defendant in something short of three years' time. 102I have considered that submission. However, I am well satisfied that, in the circumstances of this case, a guarded long-term approach is required with respect to the Defendant having regard to the gravity of the crimes committed, the lengthy time that he has been in custody, the short period of time that he has been in the community, the diagnoses with respect to him and other factors bearing upon him and the management of the risk which he poses. 103I accept that if the Defendant did reoffend, there is a prospect of very serious offences being committed. There is no sign of that at present, nor has there been for two years, but that in my view is because of the intensive treatment and supervision regime which has applied to him and which should continue to apply. 104I am well satisfied that the ESO should extend for a period of five years. In this respect I have in mind the flexibility of the scheme under the statute itself, as mentioned in State of New South Wales v Tillman at [62]-[66] and State of New South Wales v Atkins at [130]. 105I bear in mind, as well, that the Defendant is still a relatively young man. He will turn 45 next week. The aspects of his personality which have been traversed in this judgment are such that his age itself is a factor which points strongly towards the imposition of a period of five years. Conditions 106I am satisfied that the conditions proposed by the State are appropriate in the circumstances of the case. Orders 107I make the following orders, in accordance with the Proposed Order handed up yesterday. (1)Pursuant to ss.5C(1) and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the Defendant be subject to a high risk sex offender ESO for a period of five years commencing at 10.00 pm on 3 July 2014 on the conditions set out in Schedule A to this Order which I will initial and date. (2)Pursuant to s.11 of the Act, direct that, for the period of the ESO, the Defendant comply with the conditions set out in Schedule A to this Order. (3)Direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard. (4)That the ISO applicable to the Defendant be revoked from 10.00 pm on 3 July 2014. ********** Schedule A (PDF) Schedule A (doc) 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: 28 July 2014