Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Cook (Final) [2019] NSWSC 51 Hearing dates: 22 November 2018 Date of orders: 10 December 2018 Decision date: 06 February 2019 Jurisdiction: Common Law Before: Walton J Decision: The Court made the following orders: (1) pursuant to s 5B and s 9(1)(a) of the Act that the defendant shall be subject to an extended supervision order ("the extended supervision order") for a period of 3 years from 10 December 2018; and (2) pursuant to s 11 of the Act, direct that the defendant, for the duration of the extended supervision order, comply with the conditions set out in Schedule to the further amended summons filed on 22 November 2018. Catchwords: CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – orders Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (High Risk Offenders) Amendment Act 2017 (NSW) Cases Cited: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Cook [2004] NSWCCA 52 State of New South Wales v Bugmy [2017] NSWSC 855 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Cook [2018] NSWSC 1386 State of New South Wales v Dillon (Final) [2018] NSWSC 1626 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Pacey [2015] NSWSC 1983 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thurston [2018] NSWSC 421 State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Daryl Norman Stanley Cook (Defendant) Representation: Counsel: D New (Plaintiff) A Cook (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/220938 REASONS FOR Judgment 1. By a further amended summons filed in Court on 22 November 2018 ("the application"), the State of New South Wales ("the State") sought an order that Daryl Norman Stanley Cook ("the defendant") be subject to an extended supervision order for a period of 3 years from the date of the order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the further amended summons (those conditions are set out in Annexure A to this judgment). BACKGROUND The Offences 1. The defendant has committed two "serious sex offences" as defined under s 5(1)(a) of the Act: 1. On 14 September 2011, following a DNA match, the defendant was arrested and charged with respect to four counts of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW), as to an offence committed in 1993 ("the 1993 offence" and the offence the subject of this application). The circumstances of aggravation were that the victim was under the age of sixteen. The defendant was, in fact, not found guilty of the offence until 15 June 2012. On 29 August 2012, he was sentenced to an aggregate sentence of 7 years imprisonment, with a non-parole period of 5 years and 3 months, commencing from 14 September 2011. 2. In 6 April 2001, the defendant committed an offence contrary to s 61K of the Crimes Act of threaten to inflict actual bodily harm on a person by means of an offensive weapon, namely, a knife, with intent to have sexual intercourse with her. The victim was seventeen at the time. He was sentenced to 8 years' imprisonment (non-parole period of 6 years), commencing on 11 April 2001, the day of the defendant's arrest ("the 2001 offence"). (The 1993 and 2001 offences shall be hereinafter, collectively, referred to as "the offences"). 1. I now turn to an overview of the offences. The 1993 offence 1. The following summary is based upon the remarks on sentence of Judge Flannery SC on 29 August 2012: 1. On 30 April 1993, the victim ("V1"), who was fifteen at the time, went to town at about 6.30pm. She met up with some friends at the Amusement Centre and at some stage, she and her friend ("M1"), went to the cinema in Horton Street to go to the toilet. When they were outside the cinema complex, they were asked by the defendant, who was standing against the front doors, whether they would like to have a joint. They refused. 2. At about 9pm, V1 decided to go home, as she had run out of money. By then it was dark. As she was walking over the bridge near the Red Carpet Motel in Port Macquarie, she heard the sound of coins or keys jangling and turned to see what the noise was. She saw the defendant running and moved over to let him go past. When she was almost across the bridge, she was grabbed by the defendant, who put his hand around her mouth and neck. She screamed, kicked and punched him in the mouth. He then pulled her down to the bottom of an embankment, told her to be quiet and said that he had a knife. He then took a small pocket knife out of his pocket, put it to the back of her neck, behind her left ear and said he was not going to hurt her, he just wanted to talk. She was "freaking out", hysterical and struggling to get away. When they got to a fence, he pushed her down and started kissing her and sticking his tongue down her throat. She tried to get away from him by kicking and pushing him. He then hit her in the mouth with his fist, which caused her lip to split. He then touched her all over and asked if it felt good. She was crying and asking him to let her go. He then tried to take off her belt and jeans while she was fighting with him. He said "I want to suck your pussy". 3. After he had pulled her jeans down, he inserted his finger or fingers in her vagina (count 1). She was crying and asking him to stop. He kept saying, "Doesn't it feel good". He then pulled down her pants and lay on top of her and inserted his penis inside her vagina (count 2). It hurt. She asked him to let her go and he said, "I can in five minutes". She was crying and trying to push him off. He took his jumper off and put it over her face. He then kissed her and put his tongue down her throat and then performed cunnilingus on her (count 3). 4. He then put her legs over his shoulders and his penis into her vagina again (count 4). She was crying and asking him to let her go. At some stage she recognised his voice as the voice of the man who had offered her a joint outside the cinema. It was too dark for her to recognise him otherwise. He then told her to get dressed and to walk in a particular direction and not to look at him. 5. As a result of the commission of the 1993 offence, V1 had a split lip, a bruised hand, from where she hit the defendant, a slight abrasion behind her ear and bleeding from her vagina for three days. Three earrings were also pulled out of her ear. 6. On 14 September 2011, after the police were advised that the defendant's DNA profile matched the DNA profile of the samples taken from V1 on 30 April 1993, the defendant was arrested and charged. The defendant entered pleas of "not guilty" and elected to be tried by Judge alone. He was found guilty and sentenced ten days later. The 2001 offence 1. On 19 July 2002, the defendant was found guilty by jury verdict. On 20 November 2002, he was sentenced by Acting Judge Mahoney to 12 years' imprisonment, with a non-parole period of 9 years, commencing from 12 July 2001. 2. On 12 March 2004, following an appeal brought by the defendant, the verdict of guilty for the 2001 offence was set aside and a new trial ordered: R v Cook [2004] NSWCCA 52. 3. The Court found the defendant made good two grounds of his appeal, namely, that there was a miscarriage of justice and that the defendant did not receive a fair trial in that: 1. the trial judge erred in admitting evidence of flight (R v Cook at [49]); and 2. having admitted evidence of flight, the trial judge erred in not directing the jury how they were to use that evidence of flight as part of the circumstantial case (R v Cook at [52]). 1. On 1 November 2004, following the remittal to the District Court, the defendant was again found guilty by jury verdict. 2. The following summary of the circumstances of the 2001 offence is based upon the remarks on sentence of Judge Keleman on 17 December 2004: 1. On 5 April 2001, the victim ("V2"), who was 17 at the time, went into Port Macquarie for a night out with two of her friends, arriving at around 9.30pm. They went into a kebab shop in the main street of Port Macquarie, a location where young people meet to socialise. Her two friends then went off to a nearby night club and V2, who was underage and precluded from accompanying them inside those premises, remained at the kebab shop talking to friends. 2. After a period of time, V2 walked with one of her male friends to a nearby marina to see if any of their other friends were there. Not many of their friends were there so they returned to the kebab shop, arriving back at about 12.30am. On this occasion or the earlier occasion that she had been at the kebab shop that evening, one of her male friends introduced her to the defendant who was there at the kebab shop, after which she went and sat with one of her male friends on one of the two seats located on the footpath a short distance from the kebab shop. The defendant came and sat on the adjoining seat. 3. Sometime later, but before 2am in the morning, the defendant walked up to V2 outside the kebab shop and asked her if she would have sex with him that night, to which she replied, "No". She then walked away from the defendant and spoke to one of her male friends and told him she was going to the toilet. V2 then proceeded to walk to the public toilets situated in a nearby bus terminus. On the way there, she stopped outside a nightclub where she spoke to the mother of one of her girlfriends for a few minutes. She then left her girlfriend's mother and proceeded towards the public toilets, and in doing so she walked past the entrance to the Coles store which faced the Coles car park where she observed, outside the entrance doors to the store, the defendant talking to the store security guard. 4. As she was proceeding through the car park she heard the defendant's footsteps close behind her and as she increased her walking pace so did the defendant. She then took out the mobile telephone she had with her and phoned her male friend whom she had informed earlier that she was going to the toilet and asked to speak to one of her two girlfriends ("W1"), with whom she had travelled into Port Macquarie that evening. During that conversation she asked W1 to come down to the toilets as she was being followed. 5. V2 walked into the female toilets and locked the toilet cubicle and sat on the toilet. She then heard the defendant's footsteps entering the female toilets and she then sent a text message at about 2.10am to the same male friend she had telephoned minutes earlier, asking him to come to the toilets. 6. A short time later she saw the defendant's hands appear in an opening a fair way up in the wall of the toilet cubicle she was in. The defendant then entered the toilet cubicle through the opening and landed in the toilet cubicle on his feet beside V2. She screamed. The defendant pulled out a cap from behind his back and removed from it a knife with a blade of about twenty centimetres in length. He put the blade of the knife against her throat. She screamed again, and he then put his hand over her mouth. The defendant told her to shut up and do as he said or she would "cop it". The defendant then, told her to come for a walk to the park with him and he would not have to use "this" as he held the knife to her throat. 7. The defendant then unlocked the toilet cubicle door as she pulled up her pants. When he opened the cubicle door she observed that he had another knife, which he described as a boning knife, sticking out the back of his jeans. He then told her that she was to walk out with him and pretend that they were boyfriend and girlfriend and that they were in love. The defendant then, standing behind her with his hand held over her mouth and the knife pressed to her throat, proceeded to take her out of the female toilets. On the way out V2 was able to observe the defendant in the mirror of the washbasin area and noticed he had two tattoos on his lower left arm as the sleeves of his shirt had been rolled up. He also said to V2 words to the effect, "Look what you make me fucking go through. See what you fucking do to me". 8. The defendant then walked V2 out of the toilet block while holding the knife to her throat and his hand over her mouth. At that point in time V2 believed that she was better off if she was able to remain near the bus terminus as she believed she had a better chance of being seen by someone there, so she stumbled and fell to the ground on her knees. The defendant then pushed her onto her back and then hopped on top of her with his legs on either side of her. 9. After he pushed her to the ground he again pressed the knife to her throat and held his hand over her mouth. He then referred to her home address where she had been living until only days before and also made reference to her ex-boyfriend with whom she had only broken up with a week or two before. He then said to her words to the effect, "You are going to fuck me right now. We are going to do it". The defendant then grabbed V2 on her vagina over the outside of her jeans and then put his hand back over her mouth. She then bit his hand, causing him to take his hand away, and then she screamed. She then heard W1 call out and saw her running towards them. The defendant then got up and grinned at V2 and said that if she went to the police she would cop it. V2, who had also stood up, continued to scream and ran off in the direction of the Coles store while the defendant ran off in the opposite direction, pursued briefly by W1, who then returned to the Coles store where the distraught V2 had met the security guard who came to her aid after hearing her screams. Police arrived shortly after, following which V2 was taken to the police station where she made a statement. 10. On 11 April 2001, police located a plastic bag which contained a number of items of clothing including the shirt and shoes worn by the defendant when he attacked V2, which plastic bag he had left with a casual employer two days before on 9 April 2001. The defendant was arrested later on 11 April 2001. 1. Further details as to the defendant's criminal history and patterns of offending behaviour will considered below as part of the Court's mandatory consideration under s 9(3). Course of Proceedings 1. By a summons filed on 18 July 2018 ("the summons"), the State sought the following relief: Preliminary hearing orders 1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and b. Directing the defendant to attend those examinations, Interim Orders 2. An order: a. pursuant to s. 10A of the Act, that the defendant be subject to an interim supervision order from 13 September 2018 ("the interim supervision order"); and b. pursuant to s. 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and c. pursuant to s. 11 of Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons. Final relief 3. An order: a. pursuant to s. 5B and s. 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of 3 years from the date of the order; and b. pursuant to s. 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this Summons. Other orders 4. An order that access to the Court's file for any document shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. 1. The summons was the subject of a preliminary hearing before Button J on 2, 3 and 28 August 2018. On 28 August 2018, his Honour granted leave to the State to file an amended summons in Court (the amendments concerned particular conditions set out in the Schedule to the amended summons). His Honour reserved his decision. 2. By a judgment issued on 11 September 2018: State of New South Wales v Cook [2018] NSWSC 1386 ("the preliminary hearing"), Button J made orders, which included, inter alia, that the defendant be the subject of an interim supervision order from 13 September 2018 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant was to comply with the conditions in the Schedule attached to his Honour's judgment. 3. That interim supervision order was renewed pursuant to s 10C(2) of the Act for a period of 28 days on the same conditions, on two subsequent occasions: 1. On 9 October 2018, Davies J renewed the defendant's interim supervision order to commence from 11 October 2018 and expire on 7 November 2018; and 2. On 5 November 2018, the Duty Judge renewed the same in Chambers, with consent of the parties, to commence from 8 November 2018. 1. At the final hearing on 22 November 2018, before the Court as presently constituted, the State sought and was granted leave to file a further amended summons in court; the amendments concerned the conditions set out in the Schedule to the further amended summons. The matter proceeded upon the application. 2. Prior to the final hearing, the matter was brought before Bellew J for directions on Monday, 20 November 2018. On that occasion, the defendant addressed the Court with respect to the difficulties in acquiring evidence from the defendant's general practitioner as to his physical health ("medical evidence"). The defendant sought an extension of time to file and serve that evidence by the end of that same day, which was not opposed. The solicitor for the defendant, Ms Bridget Kennedy, confirmed that, in the event the report was not available, the defendant would proceed without it and file and serve submissions by the same date. His Honour granted an extension to 5.00 pm on 20 November 2018. 3. At the final hearing, counsel for the defendant, Ms Angela Cook, confirmed that the defendant was unable to obtain the aforementioned medical evidence. Instead, the defendant relied, in that respect, upon the evidence as to the defendant's physical health referred to in the material tendered by the State. 4. On 5 December 2018, with consent of the parties, the interim order was renewed for a further period of six days or until the proceedings were finally determined, commencing on 6 December 2018 (being the third and final available renewal available under the Act, only until 11 December 2018). 5. On 10 December 2018, the Court made the orders which appear below and indicated that the reasons for judgment would appear in due course. 6. The orders were as follows: 1. pursuant to s 5B and s 9(1)(a) of the Act that the defendant shall be subject to an extended supervision order ("the extended supervision order") for a period of 3 years from 10 December 2018; and 2. pursuant to s 11 of the Act, direct that the defendant, for the duration of the extended supervision order, comply with the conditions set out in Schedule to the further amended summons filed on 22 November 2018. (The Schedule is annexed to this judgment). 1. These are the reasons for decision with respect to those orders. STATUTORY FRAMEWORK AND LEGAL PRINCIPLES Objects of the Act 1. The Act's primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community "must be the paramount consideration" when determining an extended supervision order application: s 9(2). 2. The word "ensure", which is referred to in the object of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [61]. Application of the Act 1. The State may apply for an extended supervision order against "an offender" pursuant to Pt 2 Div 1 s 5H. The proceedings are to be conducted as civil proceedings pursuant to s 21 of the Act. 2. There are four preconditions to the making of an extended supervision order reflected in s 5B of the Act. That provision is as follows: 5B Making of extended supervision orders—unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is 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, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. Unacceptable risk 1. The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of "high risk sex offender" as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (Garling J in State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117]; and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60]. 2. As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, two observations may be made. 3. First, there may be instances when a person is held to pose an unacceptable risk even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely "drastic" consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 ("Kamm") at [41] and [43] (per Harrison J)). 4. Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "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." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate." FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 9(3) Evidence before the Court 1. The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act, which included, inter alia, the following: 1. reports and records produced by Corrective Services NSW ("CSNSW"); 2. reports from the court appointed experts: Dr Katie Seidler, Forensic Psychologist (dated 22 October 2018), and Dr Jeremy O'Dea, Forensic Psychiatrist (dated 23 October 2018); 3. a Risk Assessment Report (dated 29 January 2018) produced by Mr Samuel Ardasinski, Senior Specialist Psychologist with the Serious Offenders Assessment Unit of CSNSW, together with a Supplementary Risk Assessment Report (dated 19 June 2018). 1. The State also relied upon the following evidence by affidavit: 1. Ms Johanna Fisher, solicitor for the Crown Solicitor's Office, affirmed 13 July (together with exhibit JF-1), 23 July, 2 August, 9 August (together with exhibit JF-2) and 5 November 2018, respectively; and 2. Ms Annette Caffery, Manager, Extended Supervision Order Team at CSNSW, affirmed 23 July, 5 November and 19 November 2018, respectively. 1. The defendant relied upon the evidence tendered by the State without objection. No evidence was adduced by the defendant. 2. During the course of proceedings, only Drs Seidler and O'Dea were required for cross-examination. Background Matters 1. The defendant is a 58 year old man. 2. He has been in custody almost continuously since 1972 when he was 12 years old. 3. The following summary of the defendant's developmental background is based upon the psychologist report of Ms Barbara Aldrich, dated 2 September 2002. As to his family life, the following was noted: 1. The defendant was the youngest of three children born to the marriage of Cecelia and Norman Cook. He has two older sisters, Rhonda and Debbie. 2. The defendant's father was described as "a very bad alcoholic and a cruel womaniser". He reportedly would bring his girlfriends home and sleep with them in the matrimonial bed. He would expect the defendant's mother to look after them. The defendant's parents broke up in 1962 – the defendant was two years old at the time. 3. The defendant's mother had a relationship with Stanley Haddon, shortly after leaving the defendant's father. They had a son, Richard. Apparently, Mr Haddon was "a very sadistic man as well as a violent alcoholic". The defendant said that he was targeted by Mr Haddon's "brutality". Mr Haddon also beat the defendant's mother and sister. The defendant said that he often took the blame for things that his sisters did because he could not bear to see them beaten. 4. The physical violence of Mr Haddon was described as including: hitting with closed fists, suffocation, "flogging with a stock whip", shooting at the defendant and chasing the defendant with a butcher's knife. Certain particular events were recalled by the defendant: Mr Haddon got angry and shot and buried the defendant's dog, that same night he "chopped up a bicycle" that the defendant had won. 5. The defendant reported extreme abuse was a "daily" occurrence and "that most of this severe abuse occurred when he was between the ages of about ten and fourteen years". 1. As to the defendant's background and offending, Ms Aldrich provided the following summary: He was first incarcerated when he was eleven years of age. He was committed in general terms for his first offence when he was eleven and this first time in an institution was for 18 months. Once he was incarcerated he continued to attract custodial sentences for any subsequent appearances before the court. He has calculated that he has spent 25 years in jail between 1972 and the present. [The defendant] seems to have spent most of his adolescence in one institution or another. He reports that when he was about 12 or 13 he was living at Mittagong Boys Home. He says that the manager and the dentist repeatedly sexually assaulted him. This amounted to him being forced to masturbate these men, being masturbated by them and attempted anal penetration. These assaults happened on numerous occasions over six or seven months. Aside from the sexual molestation, it is well known how harsh the conditions and treatments were in the boy's homes of this era. He says that he was never able to tell anyone about his treatment at these homes, and this led to his having many psychological problems as a child and adolescence. He chewed his nails and wet the bed nightly and he reports having been a very anxious child. [The defendant] was placed in the adult jail when he was 17 years of age. While he was in Maitland jail in 1979 he says that he was raped, assaulted and stabbed by another inmate. His assailant had been forcing his cellmate to have sex with him and [the defendant] hit him one night when he had had enough of watching these assaults and being silent. This man apparently went wild and stabbed [the defendant] in the chest, leg and arm before knocking him unconscious and raping him as well. This man was a known and convicted rapist and [the defendant] believes that he should never have been in a cell with him. Corrective Services evidently documented this rape, but no action was ever taken as [the defendant] was advised not to press charges for his own safety. It was after this sexual assault that he began to use heroin when he was next released. He says that he had never used any illicit drugs prior to this, but a friend had told him that it would take away all of his emotional pain, it did, in fact, take away his pain and he continued to use heroin up until about 1988. He says that he managed staying clean without help until about four years ago. At that time he was experiencing a lot of emotional problems and he was thinking of going back to heroin. He reports that he got on the methadone program to avoid going back to heroin. … Whilst he has been in jail this time his maternal grandmother, whom he was very close to died. She had been one of the few people who had maintained contact with him over the years. Her loss has been devastating for him. He was not allowed to attend her funeral. 1. Finally, with respect to his experience with relationships, Ms Aldrich reported: Despite his years of incarceration, [the defendant] has managed three significant relationships. When he was about 20 he formed a relationship with Kerry Kens a New Zealand woman he met. This was a very brief relationship as he was sent back to jail. They had a son, Luke. Kerry was apparently killed in a motor vehicle accident in 1984 and their son died of leukaemia four months later. [The defendant] is still very distressed by these events. … He reports that he has had other, insignificant liaisons over the years. Criminal Offending 1. The defendant's criminal history consists of a mixture of violent, sexual and other offences dating back to 1972. Details of the defendant's criminal history are recorded in the following documents: 1. Criminal History - Bail Report document; 2. Inmate Profile document; and 3. Conviction, Sentences and Appeals documents. 1. The defendant was first brought before the Children's Court at about 11 years of age. The defendant's subsequent convictions include, inter alia, offences of interpersonal violence, assault with intent to rob, common assault, contravene ADVO, stalk/intimidate with intent to cause fear of physical/mental harm, property damage, stealing, break-and-enters, robberies, driving offences and several counts of escape lawful custody. Sexual Offending First charge for a sex offence – the 1980 charge 1. The defendant was charged with rape on 4 January 1980 ("the 1980 charge"). He was found not guilty by jury verdict on 15 September 1981. The State contended that this charge is, from a clinical perspective, relevant to risk. 2. The alleged offence, with respect to the 1980 charge, appeared to involve a sexual assault in company of a young woman who was driven by the defendant and two associates to a park in the middle of the night, before being driven back home again. The defendant was aged 19 when he was charged with this alleged offence. In the comments and observations attached to the summary of facts for this alleged offence, it was noted: "[i]n cases such as this, the absence of evidence of a struggle by the girl and the lack of any physical injury are generally regarded as being synonymous with 'a weak Crown case'". 3. Mr Ardasinski did not discuss this rape charge in his interview with the defendant because he was found not guilty. He did, however, identify the charge as a matter relevant to risk. Both Drs Seidler and O'Dea noted the charge and verdict in the context of their respective summaries of the prior offending of the defendant. 4. The Court is not in a position to make a finding of fact in relation to the unproven allegation against the defendant. That evidence may only establish an allegation of rape was made, with respect to a young female, and to that end, it is limited to the defendant's risk of re-offending. This will also be relevant to the application of the paramount consideration in s 9(2) of the Act. Thus, the evidence with respect to the unproven charge is applicable to the assessment in that limited respect and for the purposes of making the evaluative judgment. As this Court observed in French at [72]: [72] … the Court … must make an evaluative judgment as to whether the defendant is a high risk sex offender. As the discussion of principles above recognises, that evaluative judgment involves, inter alia, an assessment of that kind being made within the context of the objects of the Act; the principal object being to ensure the safety and protection of the community. It is appropriate that the Court examine all relevant material bearing upon the making of that judgment… First conviction for a sex offence – the 1981 offence 1. On 27 February 1981, the defendant was charged with assault with intent to rape. He pleaded guilty to the alternative charge of assault occasioning actual bodily harm ("the 1981 offence"). The plea as to the alternative charge was accepted in full discharge of the indictment. The defendant was sentenced to one year hard labour by Williams J on 11 September 1981 in Penrith. Second conviction for a sex offence – the 2001 offence 1. The 2001 offence is the defendant's second conviction for a sex offence (although it chronologically occurred after the 1993 offence) and was summarised earlier in this judgment. 2. The defendant denied committing the 2001 offence to Dr O'Dea, Dr Seidler and Mr Ardasinski. By the defendant's account, the victim owed him money for marijuana that he had sold her, the victim fabricated the sexual assault for revenge and he was charged as part of a police conspiracy. He maintained this account notwithstanding a strong Crown case against him, which included evidence of the defendant being in the area on that night and identification evidence. Third conviction for a sex offence – the 1993 offence 1. The 1993 offence was a historical offence and, as previously mentioned, appears as the defendant's third conviction for a sex offence as a result of later obtained DNA evidence. 2. The defendant's attitude towards the 1993 offence differed amongst the court appointed experts and Mr Ardasinski, as follows: 1. The defendant told Dr O'Dea that he thought the victim was inviting him to have sex with her. 2. The defendant told Dr Seidler that he asked the victim if he could have sex with her and when she refused he raped her. 3. The defendant accepted responsibility for the 1993 offence to Mr Ardasinski. He stated that the reason for his not guilty plea was because he was embarrassed in front of his mother. 1. In an earlier psychological report by Mr Mark Howard dated 26 June 2012, the defendant claimed the sexual intercourse was consensual and the defendant did not know the victim was 16 years old Breach of reporting obligations – "offence of a sexual nature" 1. On 10 May 2011, the defendant was fined for a breach of s 17 of his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) ("the CPOR Act"). This was an "offence of a sexual nature" under s 5(2)(f) of the Act. 2. The defendant had been living with a woman and her children (an 11 year old girl and a 14 year old boy) for 3 months and on weekends the defendant's partner stayed with the defendant and she had three children aged 14,11 and 7. Neither of these women were aware of the defendant's criminal history or his obligations under the CPOR Act. The defendant failed to notify police of these living arrangements. Views of Sentencing Court The 2001 offence 1. Judge Keleman in his remarks on sentence, as to the 2001 offence, stated: The present offence was committed by the defendant engaging in what can only be described as predatory and violent conduct which was planned and premeditated, and which involved the defendant attacking a seventeen-year-old girl at night with a knife at a time when and a place where he believed she would be totally vulnerable and defenceless, and in circumstances where he intended that his use of his knife for a considerable period of time would instil sheer terror... 1. His Honour also found the defendant had poor prospects of rehabilitation because "of his poor history of response to supervision whilst on parole and the commission of the present offence in circumstances where it is claimed that his life was stabilising". 2. Judge Keleman noted that the reports of Dr Westmore and Ms Aldrich detailed that the defendant is "extremely institutionalised" and that because of this the defendant would require significant professional support on his release to reduce his risk of re-offending. His Honour noted that, in the opinion of the authors of those reports, the defendant, although showing some positive rehabilitative signs, held an unrealistic view of how hard it would be to reintegrate in the community. 3. The remarks on sentence of Acting Judge Mahoney, prior to the retrial, may be noted. First, his Honour found the defendant's prospects of rehabilitation to be an "unlikely eventuality". In that respect, he observed: Any realistic evaluation of his past criminal record could not lead to any other conclusion. All the indications are that he is prepared to resort to threats of violence to get his own way. He displays no appreciation of the need to obey the law or to respect other people's rights. He is 42 now. His psychologist [Ms Aldrich] reports that he is prepared to mend his ways now, but I note that he said the same thing to Dunford J in June 1995. The 1993 offence 1. Judge Flannery noted the comments of Mr Howard, psychologist, that the various dynamic aspects of risk associated with the defendant's offending at the time have altered to some degree over the intervening years, that the defendant has aged, has not been convicted of related offences for more than a decade, he has abstained from substance use and attempted to achieve stability in the community. Notwithstanding that assessment, Judge Flannery described the defendant's prospects of rehabilitation as "guarded". 2. His Honour also considered that the material suggested that the defendant's degree of stability was related to his desire to make his mother proud of him. Parole Release on Parole on 22 April 1993 1. The 1993 offence occurred eight days after the defendant's release on parole. Contraventions of Apprehended Domestic Violence Orders in 2000 and 2001 1. The defendant has contravened apprehended domestic violence orders on 3 November 2000, 11 December 2000 and 11 April 2001. Decision to refuse parole on 1 March 2007 1. The non-parole period for the 2001 offence expired on 10 April 2007. A Pre-Release Report was prepared on 14 November 2006 by Mr Graeme Chaseling, Parole Officer at Parklea Parole Unit. The report did not recommend release on parole. Mr Chaseling submitted, in this respect, "the Police are better equipped to ensure the safety of the community than this Service, and a multidisciplinary approach may complicate, rather than reinforce surveillance of [the defendant]". 2. The report also revealed the defendant's negative attitude towards Community Offender Services and parole. The defendant maintained that "he was innocent of the charges for which he was convicted, and that in his view, any willingness to co-operate with Community Offender Services would be an admission of guilt". Further, the defendant was reported to have said "that he did not want to be released to Parole, because his refusal to accept supervision would bring additional legal difficulties upon him. Even if release to Parole was forced upon him, he said, he would not accept supervision". 3. On 1 March 2007, the defendant's release to parole was refused for the following reasons: Unable to adapt to normal lawful community life, risk of reoffending, no post-release plan, need to address offending behaviour (AOD / violence / sex offending), does not seek parole. Consider due date. That is stand over to 14 February 2008 for Probation and Parole Officer's report and correctional centre report for parole consideration. Parole Authority requites the reports not later than 1 February 2008. Decision to refuse parole on 15 April 2008 1. On 5 February 2008, Ms Nerrissa O'Neill, Probation and Parole Officer at Kempsey District Office produced a Supplementary Pre-Release Report. Her opinion was supported by Mr Graeme Haggerty, Unit Leader/Manager at Kempsey District Office. As to the defendant's attitude towards "conditional liberty", she reported: When initially approached regarding his option to apply for further consideration, [the defendant] indicated that he was not interested however reconsidered that stance within the hour and decided to apply He expressed that he did not believe he would gain parole and stated "… if I re-offend it will be your fault because you have not given me to opportunity to reintegrate". [The defendant] also indicated if it is the Authority's intention to refuse his parole he has no desire make an appearance to appeal that decision and stated "they can punch it". He went on to say "… I'll just do the rest of my time two years will be a pinch of piss and then I get out and they can't make me do a thing". [the defendant] has historically indicated that he would not comply with parole conditions however, did not make that assertion on this occasion. He has stated that he will comply with reporting instructions and attend a specialist psychologist as directed however asserted that he is "not guilty of a sex offence. I will see them but I am not a sex offender". When asked if he was prepared to participate in interventions relating to violence and alcohol and other drugs issues he stated that he does not believe he has an Alcohol and other Drug Issue, nor is he a violent person. 1. Ms O'Neill did not recommend the release of the defendant on conditional liberty: [The defendant] continues to deny his responsibility for his offending; he refuses to participate in programs that have been identified as appropriate for addressing his criminogenic needs despite having been assessed as being at High risk of sexual recidivism, He has continued to acquire institutional misconducts and externalises blame for his current situation. Although [the defendant] has expressed that he is now prepared to co-operate with Probation and Parole Supervision and comply with any conditions placed upon him if granted conditional liberty he has unashamedly stated that he is not phased he is not granted parole. Taking into consideration [the defendant's] refusal to accept responsibility for his offence and his continued refusal to consider participating in appropriate programs conditional liberty cannot be recommended at this time. Should [the defendant] reconsider his stance on program participation, engage in and complete same then a positive recommendation may be forthcoming. 1. On 3 April 2008, Ms O'Neill produced another Supplementary Pre-Release Report. She noted that the defendant "did not wish the Authority to reconsider its intention to refuse his parole". Further, she reported that the defendant "made statements that inferred if he does not succeed when he is released into community living that it will be responsibility and fault of others rather than his own". Ms O'Neill maintained her recommendation opposing parole. 2. On 15 April 2008, the defendant's release on parole was refused for the following reasons: The State Parole Authority has sufficient reason to believe that if released from custody at this time [the defendant] would not be able to adapt to normal lawful community life: risk of reoffending; need to address offending, behaviour (AOD/Violence/Sex offending). Release from custody from 2009-2011 1. The defendant's sentence for the 2001 offence expired on 10 April 2009. Following his release, the defendant resided with his mother in Tweed Heads. 2. The defendant was convicted of the following offences at Tweed Heads Local Court: 1. stalking or intimidation with intent to cause fear of physical or mental harm, on 28 October 2010; and 2. drive whilst disqualified from holding a license, on 23 December 2010. He received a s 9 bond with respect to each conviction. 1. On 14 September 2011, he was charged and arrested with respect to the 1993 offence, a historical offence. 2. The defendant did not re-offend, with respect to a serious sex offence, in that period. Provisional decision to grant parole on 7 November 2017 1. The non-parole period for the 1993 offence expired on 13 December 2016. 2. On 13 October 2016, the State Parole Authority formed a decision not to release the defendant to parole owing to the "[n]eed [for the defendant] to complete a program to address offending behaviour of sex offending". 3. On 7 November 2017, the State Parole Authority confirmed its provisional decision to grant parole ("subject to Commissioner's submission"). In a Stand Over notice addressed to the Governor of the Junee Correctional Centre, the authority noted that, having regard to s 135(1) and (2)(a)-(k) of the Crimes (Administration of Sentences) Act 1999 (NSW), "it is satisfied that release to parole is in the public interest". In particular, the following observations were made: The likelihood of [the defendant] engaging in treatment prior to his sentence expiration is considered to be low, and the Authority form[ed] the view that releasing the offender, to engage in interventions within the community context whilst subject to conditional liberty is to the batter protection of the community than releasing the offender at sentence expiration. 1. The Authority also identified the following as "critical issues": [The defendant] can be described as institutionalised and would require support upon his release. The Authority is aware that parole has previously been denied for [the defendant] to participate in sexual offending intervention, however, circumstances now preclude this possibility. When weighted against [the defendant] remaining in custody until the expiration of his sentence and unable to make any therapeutic gain with release to the structure of ISC and access to said intervention, the Authority determines that release of [the defendant] is in the public interest. 1. On 22 November 2017, Ms Jennifer Priest, Community Corrections Officer at Long Bay Correctional Complex, produced a Supplementary Pre-Release Report. Ms Priest, cited the defendant's progress in custody, the availability of suitable accommodation and his eligibility to participate in a weekly treatment program facilitated by Forensic Psychology Services ("FPS"), in making a recommendation for release to parole. 2. By a further Supplementary Pre-Release Report dated 29 November 2017, Ms Priest confirmed that the defendant had accepted a treatment offer to participate in the Custody Based Intensive Treatment program ("CUBIT") at Metropolitan Special Programs Centre ("MSPC"), which was of "approximately 6-10 month in duration". The defendant was transferred to MSPC on 27 November 2017. 3. On 28 November 2017, during an interview with Community Corrections, the defendant advised that he was prepared to remain in custody to complete the CUBIT program and signed the relevant paperwork reflecting that decision. Ms Priest reported: "To his credit, [the defendant] has agreed to participate in the program and therefore does not seek release to parole at this juncture". Further, in support of Ms Priest's report, Mr Robert Messitt observed: It is positive to note that [the defendant] has accepted a treatment offer and it has been confirmed that he will have adequate time left on his sentence to complete such. His requires to remain in custody to complete the program also demonstrates his willingness to engage in treatment. Interim Supervision Order 1. The defendant was released from custody on 13 September 2018. As earlier mentioned, he was the subject of an interim supervision order from the date of his release. The affidavit of Ms Caffery, Manager, Extended Supervision Order Team at CSNSW, affirmed 5 November 2018, set out a summary of the defendant's behaviour and compliance whilst subject to the interim supervision order. She deposed that her account was informed by, inter alia, her communications with the defendant's Departmental Supervising Officer ("DSO") Mr Peter Edsall, Unit Leader at Lismore Community Corrections Office. Mr Edsall has been the defendant's DSO since the commencement of the interim supervision order and was in regular contact with Ms Caffery. 2. Ms Caffery set out an account of defendant's medical history. A summary of her evidence follows: 1. On 30 September 2018, the defendant was admitted to Tweed Heads Hospital after reporting "acute abdominal pain". 2. On 3 October 2018, the defendant underwent a Magnetic Resonance Imaging scan. 3. On 5 October 2018, the defendant was discharged from hospital. 4. The defendant told the DSO that he was diagnosed with "pancreas divisum", which causes episodes of pancreatitis. The DSO was yet to confirm the diagnosis and its impact on the defendant's health. 5. The defendant has had medical issues with his eyes and his been seeing Dr Purser at Queen Street Medical Centre in Murwillumbah. 6. Dr Purser is the defendant's GP and prescribes the defendant's methadone. 1. At the time of Ms Caffery's affidavit, she also deposed "the DSO is attempting to have the defendant provide the DSO with copies of any medical reports that the defendant received while being on the ISO". None were since provided. 2. Ms Caffery also provided an account of "[t]he DSO's observations of the defendant's physical limitations". That is extracted, in full, below: 16. I understand that the DSO has observed the defendant walking with the aid of a walking stick. The DSO has observed the defendant have issues navigating obstacles such as steps, crossing the road during traffic, and walking long distances. 17. The DSO has not seen the defendant use a wheelchair or walking frame since leaving custody. 18. The DSO has also noticed that the defendant's vision seems impaired at times. 19. The DSO told me that he has been able to manage the defendant under the ISO. The defendant's location and the defendant's medical matters have not affected that management. 1. As to the defendant's compliance during his period under the interim supervision order, Ms Caffery deposed: 20. The defendant has breached his ISO on 12 and 24 October 2018 for deviating from his approved schedule of movements. Both instances relate to the defendant stopping at shops on the return journey to home without prior approval. These matters were referred to Tweed Heads Police on 26 October 2018 and I am yet to receive a formal response from them. 21. The defendant has otherwise been compliant with all other conditions of supervision and reporting whilst subject to the ISO. Behaviour in Custody 1. The following summary was prepared by Mr Chaseling and is derived from the Pre-Release Report dated 14 November 2006: Correctional Centre Behaviour Since 1980, [the defendant] has been involved in 36 instances of institutional misconduct. During his most recent period of incarceration, he has had four instances of institutional misconduct, including: • 17/04/2008, Fail to comply with correctional Centre Routine, for which he received 28 days off buy-ups. • 09/02/2006, Possess Drug, for which he received 14 days off phone calls. • 08/01/2006, Fail Urine Test, for which he received 84 days off contact visits. • 01/10/2005, Fall Urine Test, for which he received 42 days off contact visits. The drug related nature of three of the above offences indicates that [the defendant] may have unresolved addiction issues. [It's] questionable whether the two earlier punishments were a specific deterrence, as [the defendant] has not received any visits since 30th March 2005. Nevertheless, a perusal of [the defendant's] institutional misconducts during previous periods of incarceration revealed a pattern of more serious institutional misconducts, including fighting, intimidation, abusive language, etc, which indicated that he has moderated his behavior in more recent years. Custodial staff confirmed this, describing [the defendant] as reliable and compliant albeit a bit of a nuisance sometimes, as he is generally to be found in or around the wing office. Staff attributed this to [the defendant's] fear of other inmates, as he is known amongst inmates, staff said, as an informant. Participation in Pre-Release Leave Programs By virtue of his E (escapee) classification and protection status, [the defendant] is ineligible for Pre-Release Programs. PROGRAMS AND SERVICES IN CUSTODY Psychological Although generally unwilling to engage in programs, [the defendant] self refers to the psychologist on occasions, when he worries about his mother. According to the psychologist and area manager, he has been doing this for a long time, although his mother, he stated, is reasonably well at the moment It appears, from conversations with the inmate and staff, that [the defendant] is somewhat emotionally needy. In interview, the psychologist, Area Manager and Unit Custodial staff described [the defendant] as "institutionalized". Indeed [the defendant] described himself thus during an informal conversation, as did his honor [sic] in the sentencing remarks. This conclusion appears to be based upon [the defendant's] frequent and lengthy periods of incarceration throughout his life, together with traumatic childhood events whilst institutionalized. [The defendant's] poor history of reintegration into the community during periods of liberty appears to confirm this conclusion. It may be reasonable to conclude that [the defendant] may require intensive support and supervision to assist him to successfully reintegrate into the community, notwithstanding his reluctance to accept supervision. Given his reluctance in this regard, it is difficult to suggest how [the defendant] may be assisted to succeed upon his release from custody. Employment [The defendant] is employed as the wing sweeper in the protection unit of Parklea Correctional Centre. He has held this position for approximately two years. The area manager described [the defendant] as a "trusted and reliable" inmate. 1. On 5 February 2008, Mr Haggerty produced a Supplementary Pre-Release Report. He observed the following: Correctional Centre Behaviours: Since the matter was last before the Authority [the defendant] has acquired 4 further institutional charges. 30 March 2007 Possess Create Prohibited Goods 28 days off Buy Ups 3 April 2007 Possess Create Prohibited Goods 7 days off contact visits 21 April 2007 Intimidation 3 days In cells 9 July 2007 Possess Create Prohibited Goods 1 day off television When asked about the above offences, the inmate denied having any institutional charges. [The defendant] recently applied for continued SMAP status. The inmate initially became a SMAP inmate as a result of assisting Police investigations in the past and evidently considers it is necessary to remain segregated for his own protection. [The defendant] said that he wished he had never helped the authorities. Education: [The defendant] has participated In Education whilst at MNCCC from September 2007 until December 2007. Employment: [The defendant] Is the hairdresser In the SMARPed and reports are that he takes this responsibility seriously. Programs: [The defendant] has limited access to programs due to his SMAP status, additionally; his continued denial of guilt further impinges on his ability to be included in CUBIT or CORE as does the inmates outright refusal to participate. 1. On 22 November 2017, Ms Priest confirmed that the defendant's classification was approved on 17 November 2017 for him to progress "from an E2 Medium Security (Escapee) Inmate to a C1 Minimum Security Inmate". 2. As to the defendant's behaviour in custody, Ms Priest observed: "[the defendant] has not incurred any Institutional Misconduct's since the provision of the Anniversary Report dated 8 October 2017" (being a period of almost 2 months at the date of her report). 3. Ms Priest also reported that, on 13 November 2017, a Custodial Officer at Junee Correctional Centre advised that the defendant "mixes well with other inmates, has had the same cell mate the whole time he has been in Junee, no issues with them, maintains a walking stick and has some mobility issues, no trouble within the Unit pretty quiet compliant to routine and direction". 4. Mr Ardasinski made the following observation as to the defendant's behaviour and progress in custody: 18. [The defendant] has been largely managed on protection whilst incarcerated, and since he has cumulatively served such a lengthy period in custody, he exists quite comfortably in the custodial environment. The majority of his case-notes indicate that he is mostly a compliant inmate, with few issues raised from a security standpoint He has been described as "short tempered" at times (e.g. Watene, 12/2/17, OIMS), but his demeanour and attitude towards custodial staff appears to have improved markedly since he was first incarcerated for the current charges in 2011. 19. [The defendant] has received a number of institutional misconducts over the years, but only three (3) during his current term of imprisonment: Fail to Comply with Correctional Centre Routine (26/8/12), Disobey Direction (11/6/18) and Stealing (22/3/17). 20. [The defendant's] mobility issues, which are associated with his chronic back pain, have restricted his capacity to undertake custody-based employment during this sentence. Educational and other programs have also been avoided during the current term of imprisonment, until his commencement in his current treatment program. 1. Mr Ardasinski also reported that, during his time in custody, the defendant turned "on his fellow prisoners as an informant, which resulted in his not sitting neatly within either the 'us' or 'them' camp in prison settings". Reports of Court Appointed Experts Diagnoses by the Court Appointed Experts 1. There was a great deal of consensus as to the diagnoses of the defendant, namely, antisocial personality disorder and substance use disorder, by Drs O'Dea and Seidler (collectively, "the Court appointed experts"). Their opinions, in this respect, are summarised below. Additionally, their respective views in relation to the defendant's account of depression, anxiety and his recent medical history are also noted. I will return to the divergence of opinion between the Court appointed experts, with respect to risk, separately, under a subsequent heading. Antisocial Personality Disorder 1. The Court appointed experts unanimously opined that the defendant's serious sex offending is less about "sexual deviance" and related to his "antisocial personality disorder". Dr O'Dea, in this respect, opined: [The defendant's] overall criminal history, including his history of sex offending, including of committing serious sex offences as defined by [the Act] may be best understood in the context of his general antisocial personality, with significant psychopathic traits, his substance abuse at the time of the offences and his overall criminal lifestyle. 1. Dr Seidler opined: I understand [the defendant's] sexual offending behaviour to be a function of his generalised antisocial proclivity, which has been manifest in impulsivity, egocentricity, callousness, recklessness and a lack of consequential reasoning and self-regulation skills. 1. The Court appointed experts noted that personality disorders are enduring conditions with limited amenability to treatment and fundamental change. Dr O'Dea opined that such personality disorders are considered modifiable with external support controls such as the extended supervision order conditions. 2. Dr Seidler commented that antisocial personality disorder is known to decline in its effect with advancing age (referred to as "burn out") and considered that the defendant may be showing signs of this. However, she noted, "[a]lthough [the defendant's] tendency to commit crimes is probably in the process of decline, his personality structure remains unchanged...". 3. The Court appointed experts unanimously opined that the defendant's antisocial personality disorder is a risk factor, notwithstanding the defendant's possible "burn out" age. Substance Use Disorder 1. The Court appointed experts had regard to the chronic history of the defendant's illicit drug use, in particular, cannabis and heroin. 2. Dr O'Dea diagnosed the defendant with a substance use disorder (cannabis and heroin). He described the diagnosis as being in good control but considered it was still a risk factor; noting, in that respect, that the defendant must remain abstinent to minimise the risk of sexual re-offending. 3. Dr Seidler noted that the defendant had been drug abstinent for over 20 years, but noted "he has been on a blockade dose of methadone and therefore, [the defendant's] ability to physiologically maintain drug abstinence is as yet untested". 4. Dr Seidler also observed: [The defendant] reported he no longer experiences cravings to use and feels confident that he no longer has a need to use or an interest in using illicit drugs. Further to this, [the defendant] also identified the association between illicit drug use and crime and this has further cemented his motivation to remain drug abstinent. Anxiety and Depression 1. Dr O'Dea also noted the defendant's history of anxiety and depression. He noted the defendant had "responded well to antidepressant medication" and opined, with respect to the defendant's anxiety disorder, that "with ongoing treatment… is likely to remain under good control and not significantly adding to his risk of re-offending". 2. As to the same, Dr Seidler noted: Documentation provided to me suggests that [the defendant] has a history of anxiety and depression, as well as Posttraumatic Stress Disorder. However, he did not provide a clear account of a history of these conditions, such that a diagnosis could confidently be made. Recent Medical Problems 1. As the defendant's medical history, Dr O'Dea made the following observation: I also note [the defendant's] significant medical history, with particular problems with mobility related to his musculoskeletal problems, and his recent history of significant problems with his pancreas. Whilst I am not aware of the exact nature and extent of these medical problems, if there are significant disability and impairment related to these medical problems, this may ameliorate, at least to some extent, [the defendant's] overall risk of committing a serious sex or violent offence. 1. As to the same, Dr Seidler noted the account of the defendant: [The defendant] is in ill health currently and it is clear that physical health concerns are having an ongoing and debilitating impact on [the defendant's] functioning. Firstly, [the defendant] offered that he has cataracts on his eyes. He claimed that his right eye is completely blind, whilst he has partial sight in his left eye. His eyes also weep frequently, which is why [the defendant] was repeatedly wiping his face throughout the interview. [The defendant] explained that he has a 'degenerative something' in his back, which is causing his spine to be 'crumbling in places' with four damaged vertebras. He also has chronic arthritis in his knees. [The defendant] reported that he suffers with moderate to severe pain on a daily basis, in addition to which he uses a walking stick to walk. [The defendant] added that he has been taking methadone for about twenty years, since becoming abstinent of illicit drugs, and he finds this useful in pain management. According to his account, [the defendant] has been diagnosed with an 'enlarged heart' and he takes some medication for this, although [the defendant] was unsure which one. [The defendant] noted that this condition is monitored by his General Practitioner. [The defendant] told me that he takes a number of medications each day but the only one he could recall is Citalopram, which is an antidepressant. He has been taking this medication for the better part of a decade and [the defendant] claimed that it is useful in managing his mood. [The defendant] has sleep apnoea but he claimed that he cannot afford to obtain a CPAP machine to manage this condition. Currently, [the defendant] is surviving financially on the Disability Support Pension. Dr O'Dea's evidence: risk of committing a further serious offence 1. On 5 October 2018, Dr O'Dea interviewed the defendant for 3 hours by audio visual link, noting the defendant presented as a relatively fit and healthy man. 2. Dr O'Dea considered the defendant's risk of engaging in further serious sex offending "significantly high". He opined: It is generally agreed that the best predictors of future sex and/or violent offending behaviours are past sex and/or violent offending behaviours, particularly in the context of a specific and significant Personality Disorder, ongoing substance abuse, and in the case of sex offending behaviours, significant sexual deviance; with advancing age, medical impairment and disability, and abstinence from illicit substance use, as in [the defendant's] case, mitigating factors for this risk. However as these mitigating factors, particularly if not successfully managed, may not sufficiently ameliorate [the defendant's] risk; It could be argued that [the defendant] has a significant risk of engaging in further sex and/or violent offending behaviours in the community in the long term, including of committing a further serious sex and/or violent offence, as defined in [the Act]. I note that [the defendant] has completed the CUBIT program. It is unlikely that psychological sex offender or other treatment programs alone, either in custody or in the community, will have a significant impact on reducing [the defendant's] risk of engaging in further sex and/or violent offending behaviours in the community in the long term, including of committing a further serious sex and/or violent offence, as defined in [the Act]. [The defendant] will require to remain totally abstinent from alcohol, cannabis, and other illicit drug use, in the community in the long term, in order to manage and minimise his risk of engaging in further sex and/or violent offending behaviours in the community in the long term, including of committing a further serious sex and/or violent offence, as defined in [the Act]. 1. Dr O'Dea also opined: Whilst [the defendant] expressed remorse for his actions in relation to at least some of the sex offences, he displayed limited depth to his emotions, in particular empathy for the victims, often apparently projecting responsibility for events onto others rather than himself, in a somewhat self-serving manner. 1. Dr O'Dea was cross-examined at length about the impact of the defendant's physical status and/or limitations upon his opinion set out in his report. He accepted that such factors would impact upon his conclusions with respect to risk, however, they are only "one parameter of looking at his overall risks". 2. As to whether or not an acceptance of the DSO's observations – namely, the defendant was walking with a walking stick and he had difficulty navigating obstacles such as steps and walking long distances – would change his ultimate opinion in his report, he gave the following evidence: Well, it doesn't change the ultimate opinion in the sense that it doesn't really give me enough information to be definitive about what is the cause of his problems with mobility that the DSO had observed. And, as I said in my report, that it would be, you know, dependent on the actual nature and extent of his problems. And you know, the question would need to be answered as to how we understand, from a medical point of view, the problems he experienced in walking up steps and other mobility areas that have been described by DSO, and whether it's a temporary or permanent problem or is related to one condition or another or it's related to his chronic obstructive pulmonary disease. I mean, we could look at all sorts of things. You know, he may have had a superimposed chest infection at the time. And so that's why it'd be important to get a clearer picture of what the nature and extent of his medical problems are before making definitive statements in that regard. 1. Dr O'Dea only conceded that such evidence "could" impact upon risk assessment and would depend upon "the nature and extent" of the relevant condition: such as whether a condition was "more transient than permanent" and appreciating the fact that "medical conditions do fluctuate". Hence, he said he could not provide a precise comment. 2. Dr O'Dea also gave evidence that in the absence of "knowing the nature and extent of the medical conditions which may ameliorate his risk, then it makes it less definite for me to say how much that would ameliorate his risk and, of course, therefore the ultimate issue of whether it would ameliorate it or reduce it below a threshold that I'm asked to consider in the implementation of an ESO". 3. Counsel for the defendant sought to enlist, during cross-examination, Dr O'Dea's opinion as to the defendant's medical conditions, but Dr O'Dea did not accept he was in a position to express any "definitive" opinions in that respect. Dr O'Dea stated his opinion was limited, in that regard, for two reasons: "(1) because of the [conduct of the interview by] AVL, but also (2) because of, you know, my area of expertise. I wasn't - and I didn't make a definitive assessment of those medical conditions". Further, he stated that whilst those conditions may have an impact on the defendant's risk issues, such as risk assessment and risk management, the significance of that impact would depend upon the nature and extent of those conditions. 4. During re-examination, Dr O'Dea clarified the "other parameters" that informed his opinion as to the risk of sexual recidivism. He opined: Well, I guess the parameters are looking at trying to understand the nature of his sex offending in the past. And, of course, as I've made reference to, it may be related to his antisocial personality disorder and substance use at the time. But it may also be related to his sexual urges. And also it may be related to, even though he denies this, to deviant sexual urges such as coercive or sadistic sexual urges. And I'm mindful of the fact that he has been alleged to have I beg your pardon, he's been convicted of these things on more than one occasion. And that might point to some underlying or innate, if you like, sexually deviant urges. And if that's the case, they might also act in a way to promote him engaging in coercive sexual activity. And, of course, the one group is young women in the street in public who he pursues. But there may be other groups that particularly if he's in a retirement village, that may be vulnerable if in fact that's the case. Now, of course, I am setting up a hypothetical there but that's the kind of thing I was referring to. Dr Seidler's evidence: risk of committing a further serious offence 1. On 11 October 2018, Dr Seidler interviewed the defendant for two and three quarter hours by audio visual link. 2. Dr Seidler noted the defendant's institutionalisation is a risk factor in that it has limited the defendant's capacity for social skills and reciprocal connections with others and the defendant has limited coping skills in terms of coping with emotional distress and significant stress. She reported the defendant said his isolation from the community was a context for the 1993 offence. 3. Dr Seidler distinguished between the defendant's risk of serious sex offending and general offending. She opined that the defendant is at high risk of future criminal conduct noting that: [T]he most salient contributors to this risk being his Antisocial Personality Disorder, which is also associated with his history of antisocial attitudes, peer connections and behaviour, such that he has never been able to establish a consistent prosocial routine in the community. On an ongoing basis, this risk is likely to be potentiated by [the defendant's] tendency to impulsivity, poor emotional coping, and lack of prosocial or concrete life plans. 1. However, Dr Seidler considered that, whilst the defendant's risk of general future antisocial conduct is high, his risk of sexual violence is lower and in the "moderate range" having considered the defendant's age, his physical health status, the antiquity of the offending and that the defendant completed CUBIT. (Dr Seidler also noted that the risk assessment tool, which produced a result of "moderate", does not account for the defendant's physical capacity and/or illness). 2. During examination-in-chief, Dr Seidler opined that antisocial personality disorder underpinned both the defendant's serious sex offending and general offending. As to the "two different degrees of risk" identified above, Dr Seidler gave the following explanation: Because, as I alluded to before, the pieces of a jigsaw puzzle, there are multiple pieces of the jigsaw puzzle that you have to look at when you consider risk of any future criminal violence, sexual or otherwise. … [W]e have got a jigsaw puzzle here and the biggest, fattest piece is the antisocial personality disorder. It is the most significant contributor but that jigsaw puzzle is also made up of other pieces and some of those pieces increase risk and some of those pieces decrease risk. Now, an antisocial personality disorder expresses itself primarily through crime of any description, okay. There are certain factors that contribute more specifically to sexual crime; sex drive, physical capacity, virility, social opportunity if you like, those things are much less present, if not absent for [the defendant] now which attenuate that big piece of the jigsaw puzzle, if you like, so even though that is still there in that jigsaw puzzle and even though it is still the biggest part the risk comes down because there are other pieces of that jigsaw puzzle that attenuate the effect of that large one … 1. As to the defendant's age and physical health status, Dr Seidler accepted that those factors "would reduce [the defendant's] risk of serious sex offending" but were not as relevant to his risk of "general offending". Dr Seidler opined: … one of the core features of antisocial personality disorder is essentially selfishness, you know, I just want what I want and I am going to go out and get it. If you are 30 and you are sexually aroused and you feel like having sex clearly that is a big risk factor within the context of antisocial personality disorder but if you are 50 and you don't feel like having sex and you are not particularly sexually driven then that takes that selfishness away in terms of sexual risk. 1. During re-examination, as to attenuation of aspects of the disorder over age, Dr Seidler explained that "the behaviour starts to disappear. But the personality stayed or effect remains". 2. Dr Seidler also commented that the defendant's has a "strong degree of institutionalisation" and his mother's death will probably destabilise the defendant and this may increase his risk of re-offending if he is not supported during this time. 3. Dr Seidler did not consider that the defendant's prior substance abuse was a factor that increased his risk of sexual recidivism. She opined, "I am not convinced at this age, at this stage of life with everything else is as it is for him, that a return to drug use would significantly increase his risk of sexual crime, it will increase his risk but I am not sure it would be a significant contributor". 4. During examination-in-chief, Dr Seidler accepted that the defendant demonstrated "a superficial understanding of consent and sexual boundaries" and that such a factor is relevant to an assessment of the defendant's risk, but not necessarily a likelihood of him re-offending. 5. During cross-examination, Dr Seidler further expanded upon her approach to assessment of risk, namely, her differentiation between the "theoretical risk" and the "practical risk": Q. Taking into account his health, his age and other issues of mobility, at the end of the day is he still a moderate risk? A. Good question. So, he's still a moderate risk. But those factors work on that moderate risk to make a moderate risk less likely to be expressed in the future. If that makes sense? … Q. In terms of the consideration of risk of the defendant, is his antisocial personality disorder something that would have a greater role to play if the defendant was of younger years? A. I think there are two. If I can answer the question this way: There are, sort of, two aspects of the antisocial personality disorder. There's the behavioural aspect of it and then there's the psychological aspect of it, if you like. I think what we see is that the behavioural aspect attenuates over age over time, sorry. As somebody ages, the person is less likely to abuse, to rob people and, you know, assault people. So, just because of an antisocial lifestyle, and all sort of things, what remains is the personality or the psychological aspect of the antisocial personality disorder. I think we certainly see it in this case, that antisocial aspect to his personality is still there. But the behaviour has, what we can see, attenuated over the last number of years. So, whilst the disorder is still there, the risk for him I think that the behavioural components are dying off. … Q. … In terms of the scoliosis and the degenerative back condition, is that relevant to that practical risk as opposed to and/or a theoretical risk? And if so, what significance? A. Well, it's not relevant in a theoretical risk, except so far as it may for some individual, for example, have reduced his sex drive or interest in sexual activity due to back pain. I think the relevance in this case is practical, in the sense that [the defendant] would have an impaired ability to carry out offences at this point in his life that was similar to offences he committed previously in his life. Q. Would the use of a walking stick, if the defendant was a person using a walking stick in respect of his mobility, is that something that would have a significance in terms of any risk either theoretical or in practice? A. Again, for me, it has no relevance from a theoretical stand point. But in terms of I don't know what the right word is a criminological stand point of being, he will carry out an act of pursuing a person down a street, and subduing them, that he could sexually assault them, it may be hard. It will obviously give him a weapon. It depends on how they use a walking stick and how capable they are, I suppose. 1. Dr Seidler was aware that the defendant suffered from scoliosis. 2. In light of the evidence of the defendant's mobility and physical health, Dr Seidler opined that such evidence did not impact upon the "theoretical risk" but was relevant to the "practical risk": "it's harder for him to engage in an act of sexual violence. Not impossible. Just harder". 3. Dr Seidler reached the following conclusion: It is my view that he is a generalist offender rather than a violent or sexual offender per se, at least with respect to his motivations in crime. That is, I understand [the defendant]'s sexual offending behaviour to be a function of his generalised antisocial proclivity, which has been manifest in impulsivity, egocentricity, callousness, recklessness and a lack of consequential reasoning and self-regulation skills, rather than being driven by sexual deviancy issues per se. This will be reflected in the comprehensive risk assessment for [the defendant], which will be outlined further below. Further to this, it is worth commenting that [the defendant] is now approaching 60 years of age and he claimed to have made a commitment to a non-offending lifestyle so that he can be around for his aging mother in her final years of life. This is commendable and impresses as genuine and would also be consistent with the common phenomenon observed with ASPD in that it tends to "burn out" through later middle age. 1. Dr Seidler also provided an opinion as to whether or not an extended supervision order should be made, however, accepted such a determination is a question for the Court. She confirmed that her opinion as to the imposition of an order and a duration of 3 years concerned the management of "a general notion of risk". 2. During cross-examination, as to the duration of an order, she in part moved back from her initial opinion that "to manage the risk of future sexual offending, the risk assessment in this case would suggest that a period of three years is unnecessary and could be reduced, possibly to around 12 months to facilitate". She opined: "[if] [y]ou are purely talking about management risk of future sexual violence. Then I don't think 12 months is applicable. I think there is no need for an order". 3. It may observed that Dr Seidler is not a doctor of medicine and expressed very few of the reservations expressed by Dr O'Dea as to the appropriateness of correlating risk with the defendant's physical attributes in the absence of medical opinions bearing upon that question. 4. The defendant's physical status is not irrelevant but there are real difficulties in applying limited, anecdotal information, regarding the same, to the evaluation of unacceptable risk under s 5B(d) in the absence of medical opinion. Dr O'Dea's cautious approach, in that respect, is preferable. Psychologist Assessment by Registered Psychologist: Mr Ardasinski 1. As to the relevant supporting documentation mandated in s 6(3), an application for an extended supervision order must include a report prepared by an appropriate health professional that assesses the likelihood of the offender committing a serious offence (s 6(3)(b)). The Risk Assessment Report of Mr Ardasinski, together with the Supplementary Risk Assessment Report, addressed this issue and also provided evidence and opinion as to related issues, in broad terms, under s 9(3). 2. Mr Ardasinski interviewed the defendant for three hours on 18 January 2018 at the Metropolitan Special Programs Centre at the Long Bay Correctional Complex to discuss with him the potential for an application by the Department of Justice NSW for an extended supervision order under the Act. 3. On 29 January 2018, Mr Ardasinski prepared a Risk Assessment Report in relation to the defendant pursuant to s 6(3)(b) of the Act. 4. In preparation for the report Mr Ardasinski reviewed, inter alia, the following documents: the electronic cases notes contained in the Offender Integrated Management System ("OIMS"); the defendant's CSNSW Psychological Files, including CUBIT treatment progress notes; facts sheets for the 1993 offence and the prior sexual offence charges; the defendant's bail report; and psychological and psychiatric reports. 5. Mr Ardasinski made the following observations: 1. As to the defendant's presentation, he observed the defendant "looked older than his stated years" and "walked with the assistance of a walking stick, demonstrating a noticeable limp and being vocal in the discomfort he felt at sitting down and then returning to stand". 2. With regard to the 1993 offence, the defendant admitted to having committed the offence, and suggested that he had only pleaded not guilty to avoid embarrassment in front of his elderly mother, who had been "proud" of his more recent efforts to avoid re-offending. He accepted responsibility for his part in the offence, and did not engage in victim blaming or minimise his involvement in the crime. He stated: I done something stupid that I shouldn't have done and I deserve to be punished for it… I believe in karma though - knew it would come back to bite me, and it did… no use crying over spilt milk… virtually stood over the girl… I stood over her and I took it… never done any of that sort of thing - used to bag people that used to do it... if it was up to me, and you did that to my daughter, I'd cut your prick off… have forgiven myself, can't apologise enough. 1. The defendant also accepted full responsibility for the 1993 offence when he was required to disclose his offence within the context of his therapeutic CUBIT group. 2. With regard to the 2001 offence, the defendant's attitude towards that offence was one of denial, which was consistent with his account in group (see CUBIT progress notes dated 18 December 2017), whereby he stated, "if I was guilty I'd say it" and reported that it was police corruption citing some infamous corrupt police officers names, and this has been his consistent attitude since his arrest. The defendant's rationale for why the victim of the 2001 offence "falsely" accused him of sexual assault was that the victim "owed me $60 for pot" and maintained that this was the reason he had never participated in programs during his previous sentence, and he was therefore released with no supervision at the end of his last sentence in 2009. 3. As to the 1981 conviction, the defendant suggested that there was no sexual intent in this offence, and indicated that he had only entered a plea of guilty to the alternative charge in order to expedite sentencing, stating that he was given assurances by his legal representative that he would only get a 12 month sentence, which was to be served concurrently with other sentences he was serving. 4. Based on a review of the defendant's custodial history, it seems the defendant has only ever survived for a few months in the community, either on parole or at the expiry of his sentence on unconditional liberty, before returning to custody. 5. The defendant was at pains to highlight that he did not re-offend in 2011 when he was returned to prison for the "cold case" for which he was currently serving a sentence (at the time of the interview). The defendant indicated that he felt he was leading a prosocial existence and was finally making his "mother proud". Mr Ardasinski accepted, in this respect, that "it appear[ed] that [the defendant] was indeed existing prosocially between the date of his last release from custody (10/4/09) and his arrest for the historical index sex offence (14/9/11) better than any period previously, at least superficially". 6. The defendant's criminal trajectory has progressed to more serious offending from relatively minor offences as a juvenile, as is often seen in recidivistic individuals with a lengthy prison history. In this respect, Mr Ardasinski opined: Crime became a "way of life... the life of an outlaw" (Clark, 12/12/88) for [the defendant] in his 20s and 30s. He spent a good portion of these decades of his adult life in custody for progressively more serious offences, progressing from thefts and break-and-enter offences to robberies, serving increasingly lengthier prison terms as a result. Upon his release from prison on 21/8/87 for offences of BE&S, [the defendant] reoffended rapidly upon his release and committed a string of armed robberies (Shadbolt J, 13/3/89): "He was last sentenced to six and half years' penal servitude. He obtained release on the early release scheme three months before he was due to be released by way of parole. Within the space of a fortnight he commenced this rampage of crime. Five weeks later he was arrested and returned to prison." He committed the index offences eight days after being released from that term (Howard, 26/6/12), then, not having been caught for the 1993 index sex offence, [the defendant] proceeded to spend the subsequent eight years in and out of prison for minor offending before returning to prison for his longest sentence in 2001 for his prior conviction for sexual offending. [The defendant] then spent the majority of his 40s in prison serving that sentence, and the majority of his 50s in custody serving his current sentence. He will be aged 57 when his current sentence expires. 1. The defendant's response to community supervision has been described as poor in the documentation which has been prepared by NSW Community Corrections. Mr Ardasinski cited the following note (Muddle, 9 May 2001): [The defendant] has been known to this Service for over two decades during which time he has been subject to periodic supervision which invariably focused on encouraging him to address his long-standing substance abuse, his indiscriminate choice of associates and poor lifestyle choices in an endeavor to assist him to achieve some degree of stability. Given [the defendant's] tendency to externalize blame combined with his perception of being victimized by legal authorities, significant intervention efforts have proved unsuccessful, as evidenced by [the defendant]'s recidivism. Consequently [the defendant] has spent a greater portion of his life in custody than he has in the community. 1. Given the length of time the defendant has spent in custodial settings since the age of 12, and the degree of institutionalisation which he has demonstrated as a result, ongoing supervision in the community may provide assistance to an effective reintegration process for the defendant. 2. The defendant would benefit from "ongoing supervision and professional support, the long-term aim would be to foster problem-solving and stress-coping abilities in [the defendant] such that he no longer requires the assistance of external bodies to contain his risk of sexual or other offending. Such supervision could minimise risk of behaviour that may otherwise result in a sexual offending scenario, provided [the defendant] is willing to engage fully in that process". Risk Assessment 1. Mr Ardasinski considered and applied various types of rating scales to predict the risk of the defendant engaging in further sex offending behaviours in the community in the long term, namely, Level of Service Inventory - Revised ("LSI-R"), Static Risk Factors: STATIC-99R and STATIC-2002R, and Dynamic Risk Factors: STABLE-2007 and Risk of Sex Violence Protocol ("RSVP"). The results of each assessment are discussed in turn below. LSI-R 1. The defendant had previously been assessed for risk of general re-offending using the LSI-R by Community Corrections. This is an actuarial risk instrument noted to be a good indicator of general re-offending (i.e. not limited or specific to sex offending). 2. The records indicated this instrument was administered to the defendant on 26 October 2011. By that assessment, the defendant's "risks/needs" fell into the "Medium-High" range, relative to other male offenders. STATIC-99R 1. Mr Ardasinski assessed the defendant's risk of sexual re-offending using the STATIC-99R for actuarial statistical risk assessment. The STATIC-99R is an instrument specifically designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. Mr Ardasinski noted its "moderate predictive accuracy". 2. The defendant was previously assessed on 27 June 2011. The defendant received a score of 4, which placed him in the "Moderate-High" risk category. Mr Ardasinski noted that earlier assessment did not identify the 1981 conviction as a sexually-motivated offence, which he described as an "error", and the instrument has been further revised since 2011. 3. Mr Ardasinski assessed the defendant on 9 January 2018. The defendant received a score of 5, which placed him in the "Moderate-High" risk category, relative to other male sexual offenders. He observed that scores between 4 and 5 on the STATIC-99R fall into the category referred to as "Above Average" or "Level IVa". In light of that result, Mr Ardasinski stated: The rates of sexual recidivism for sexual offenders within the 'routine' normative samples who had the same total score as [the defendant] were between 13.8 and 16.6 per cent over five years. Another normative sample, pre-selected for its high risk/needs, saw individuals who had the same total score as [the defendant] reoffending at a rate of between 18.0 and 24.8 per cent over five years, and between 26.7 and 37.9 per cent after ten years. 85 per cent of sexual offenders in the routine sample would score below [the defendant]'s score. 1. Mr Ardasinski observed, "[t]he rate of recidivism for individuals with a score of 5 is estimated to be almost three times higher than that of the 'typical' sex offender". STATIC-2002R 1. Mr Ardasinski also assessed the defendant's risk of sexual re-offending using the STATIC-2002R, another form of actuarial statistical risk assessment. 2. The STATIC-2002R is an empirical actuarial risk assessment tool for adult male individuals convicted of sexual offences. The scale has 14 items grouped into 5 main subscales: age at release, persistence of sex offending, sexual deviance, relationship to victims and general criminality. The total score for STATIC-2002R can range from -2 to 13. The STATIC-2002R also has moderate predictive accuracy in ranking offenders according to their relative risk for sexual recidivism. 3. The defendant's score on the STATIC-2002R was 6, which placed him in the "Moderate" risk range. The new risk category assigned to a STATIC-2002R score of 6 aligns with the revised STATIC-99R risk category of Level IVa. Mr Ardasinski noted: 1. the rates of sexual recidivism for sexual offenders within the STATIC-2002R "routine" normative samples who had a score of 6 on the STATIC-2002R were between 16.9 and 21.6 per cent over five years; 2. another normative sample, pre-selected for its high risk/needs, saw individuals who had a STATIC-2002R score of 6 re-offending at a rate of between 18.9 and 27.0 per cent over five years; and 3. 84.8 per cent of sexual offenders in the routine sample would score below the defendant's STATIC-2002R score. 1. The rate of recidivism for individuals with a STATIC-2002R score of 6 is estimated to be almost three times higher than that of the "typical" sex offender. 2. Mr Ardasinski also accepted the limitation of "instruments such as the STATIC-99R or STATIC-2002R". He said: The recidivism estimates and relative rankings provided by the STATIC-99R and STATIC-2002R are based on groups of individuals and therefore these estimates/rankings will not necessarily directly reflect the recidivism risk of an individual offender. When comparing group data to individual cases it is important to note that factors and circumstances unique to an individual may not have been captured within the normative group and therefore caution must be exercised when making such a comparison. Similarly, the STATIC instruments are not sensitive to the changes in an offender's circumstances that may increase or decrease his actual risk of re-offending. Further, it is noted with regard to the recidivism rates mentioned above, and the normative data for most risk assessment instruments used within this field, that the 'reoffending' considered in the normative sampling for STATIC-99R or STATIC-2002R was not necessarily required to meet the criteria of serious sexual offence as defined by the NSW Crimes (High Risk Offenders) Act 2006. That is, the sexual reoffending predicted by risk assessment tools in a criminal population may broadly relate to a range of sexual misbehaviours which may not be considered 'serious' sexual offences (or sexual offences at all, according to the criminal threshold in New South Wales). [Original emphasis.] 1. At this juncture, it may also be noted that Dr Seidler conducted assessments utilising both the STATIC-99R and STATIC 2002R, with the same results as Mr Ardasinski: 5 on the STATIC-99R and 6 on the STATIC 2002R. STABLE-2007 1. The STABLE-2007 is a tool developed to assist clinicians in identifying stable dynamic risk factors. Several dynamic factors have been consistently found to be related to sexual re-offending. These factors are intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. 2. The STABLE-2007 consists of 13 items related to psychological, interpersonal and sexual functioning, which are added together to create a total score. These stable risk factors are persistent characteristics that remain relatively stable over time, but are amenable to change through effortful intervention, such as treatment and supervision. These factors are specifically addressed within the treatment program structure within CSNSW Sex Offender Programs. 3. The defendant's total score on the STABLE-2007 was 9, suggesting a "Moderate density of criminogenic needs", relative to other male sexual offenders. Mr Ardasinski observed: The area of most clinically significant concern for [the defendant] when considering his STABLE-2007 assessment was his Capacity for Relationship Stability - [the defendant] has struggled to form warm and caring relationships when living in the community, despite having a desire to do so. Combining STABLE-2007 and STATIC-99R or STATIC-2002R 1. Mr Ardasinski reported that the STABLE-2007 can be combined with the STATIC-99R or STATIC-2002R to generate a "composite assessment of risk/needs". The combination of both scores, in the case of the defendant, placed him in "Level IVa" or "Above Average" risk. Mr Ardasinski opined, "[i]n accordance with CSNSW policy, this combined assessment of risk/needs level would suggest [the defendant] requires a Medium level of intervention and/or supervision, according to the principles of Risk/Needs/Responsivity". RSVP 1. The RSVP is a structured professional judgment tool whereby the offender is considered against a specific list of 22 dynamic risk factors deemed important in the scientific and professional literature. The factors relate to the five domains of: Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment and Manageability. The factors are not mutually exclusive. 2. In light of the RSVP (and STABLE-2007), Mr Ardasinski identified the following risk factors for sexual offending (or "crimogenic needs") as relevant to the defendant: 1. Relationship and intimacy deficits, lack of prosocial peers; 2. Institutionalisation and mental health problems resulting from child abuse; 3. Substance abused issues; 4. Antisocial lifestyle – non-sexual criminality, supporting self through crime, being in the criminal element; 5. Lack of work ethic and work skills; 6. Denial/minimisation; and 7. Poor co-operation with supervision. 1. As to those factors, Mr Ardasinski provided a comprehensive review in relation to the defendant. Some of his observations included: 1. "[The defendant] has been in and out of custodial settings since his adolescence, and this has resulted in a level of institutionalisation which would make it difficult for him to adapt to a normal, lawful community existence, individuals who have experienced trauma and re-traumatisation through the prism of institutionalisation may also display symptoms of the traumatic response, such as hypervigilance, irritability and aggression. [The defendant's] relationships, and the suggestions of domestic abuse within them, are indicative of an individual with issues adapting to the community". 2. "[The defendant] was using cannabis when he was last at liberty in the community, and there still therefore remains the risk that a return to problematic drug use could heighten his risk of repeat offending and a return to the criminal element". 3. "[The defendant's previous] periods of community living have ultimately ended with his becoming involved in further crime and returning to prison. The antisocial attitudes which permit the continuance of such a lifestyle would ordinarily, by now, be quite entrenched and would require some radical difference the next time he is released to shift them - his participation in high-intensity treatment and his newfound compliance with the supervision process may indicate that his attitudes are beginning to shift". 4. "[The defendant] has never fully engaged with his community supervisors - he has reoffended, usually quite rapidly, upon his release. His most recent period which included a period under community supervision (in 2010-2011, as much as [the defendant] minimised this in interview) appears to have been a genuine attempt to utilise the supervision process appropriately, and as he was returned to custody on relatively minor offences only, and then charged with a historical sex offence, it may be that [the defendant]'s history of poor compliance with supervision is over". 1. In addition to the above assessment, Mr Ardasinski made the following observations as to risk: 66. If [the defendant] were to again return to a community existence, a new offence could result from a number of different scenarios, although since [the defendant]'s recorded offending history has only involved two official sexual offence convictions, the possibilities for repeat serious sexual offences are more limited. It cannot be discounted entirely that [the defendant] may engage in a sexual attack upon a random female stranger, possibly a teenager, walking alone at night, as he was convicted of doing in 1993 and 2001. However [the defendant] was aged 40 when he last offended sexually, and he is now 57. Since [the defendant] has a back condition which limits his mobility and his last offences involved physical coercion to gain victim compliance, it appears less likely that an offence with a similar trajectory would eventuate unless [the defendant's] health conditions improved such that he regained some of the strength he possessed as a 40-year old in order to subdue his prey. 67. It may be that [the defendant's] sexual offending trajectory leads to a different form of offending, which relies less on physical coercion but instead psychological coercion he has been described on numerous occasions in OIMS case-notes and other reports as having the capacity to manipulate others for his own gain. However, [the defendant] has demonstrated that he is not a 'specialist', but rather a 'generalist offender, perpetrating more driving offences, thefts and other offences of interpersonal violence than his sexual offences, and so it must also be considered that the likelihood of a repeat serious sexual offence is lower than his risk of other offending. On the balance of the evidence, I would consider it unlikely that [the defendant] would return to sexual offending after so many years, even though he has spent over 14 of the last 17 years in prison since he last committed a sexual offence in 2001. He did not sexually reoffend in the two years he lived in the Tweed Heads community between 2009 and 2011, and the empirical literature suggests that a general offender's greatest risk period is within the first few months of release to the community (Blumstein and Nakamura, 2009). 1. In light of the evidence, it was suggested that the defendant falls in the "Moderate risk category" of sexual offending relative to other adult male sexual offenders. Mr Ardasinski observed: "[s]ince [the defendant's] most recent sexual offending has been 'serious' in nature, it is possible that any future sexual violence or other criminal offending could approach the threshold of a "serious sexual offence" as defined in [the Act]". However, on the balance of the evidence, Mr Ardasinski considered that if the defendant were to re-offend, "[he] is more likely to engage in non-sexual criminality than a new sex offence upon his release to the community, with his history of robberies and other such offending more prevalent on his record, and his history as a habitual traffic offender being more recent". 2. Mr Ardasinski's conclusions included the following: As noted, [the defendant] has not committed any serious sexual offence for over 16 years, and it has been almost 25 years since he committed the index sex offence. It is more likely that [the defendant] will re-involve himself in the drug scene or other criminal element in the community, associate with criminal others and be apprehended for non-sexual offending such as a driving offence or contravening an AVO. The evidence before me suggests that [the defendant] would continue to exist in the community without resorting to sexual violence. However, there may still be the potential that he reverts to the criminal thinking which preceded his serious sexual offences of 1993 and 2001 when he opportunistically assaulted teenage female victims in close proximity to regional town centres, should his situation destabilise to a great enough extent and he felt he did not have the requisite supports to manage his risk factors. I consider this scenario unlikely, but possible, particularly if his mother passed away and [the defendant] felt he no longer had a reason to live crime-free in the community. Whether this would be considered "unacceptable" in the context of [the Act] is a matter to be determined by the Court. Other Reports by Psychiatrists and Psychologists 1. In addition to the earlier referred to reports of Drs O'Dea and Seidler and Mr Ardasinski, the following reports were before the Court as an annexure to the affidavit of Ms Fisher dated 28 March 2018: 1. Psychological Reports of Ms Aldrich dated 2 September, 6 November 2002 and 30 November 2004 ("the Aldrich reports"); and 2. Psychological Report of Mr Howard dated 26 June 2004 ("the Howard report"). The Aldrich reports 1. The Aldrich reports were produced for the defendant's sentencing hearing with respect to the 2001 offence. Ms Aldrich opined on the defendant's struggles associated with institutionalisation. However, she held a positive view as to his prospects of rehabilitation, with the caveat being the defendant is provided the right support and intensive treatment. On 6 November 2002, she reported: "with his history of abuse and early incarceration, and concomitant institutionalisation [the defendant] is a high needs client. He would (and will) need some very close supervision and intensive treatment". 2. On 30 November 2004, she opined that the defendant's "institutionalisation has gotten worse" and his support appears to have "decreased". Ms Aldrich opined that such a combination has "repeatedly led to a failure of his re-integration into the wider community and has driven him back to what was familiar. This must be avoided this time as adjustment will become harder as he gets older". The Howard report 1. The Howard report was prepared for the defendant's sentencing hearing in relation to the 1993 offence. Mr Howard scored the defendant significantly high on the anxiety scale of the Millon Clinical Multiaxial Inventory III tool. He noted, such a result manifests in mood dysregulation and anxiety symptoms and commented that the defendant continued to experience a "moderate-severe" level of distress which appeared to be reactive to current stressors, such as the failing health of his mother at the time. Response from CSNSW as to Management in the Community 1. On 28 February 2018, Ms Erin Kirkwood, Senior Community Corrections Officer of the Metropolitan Extended Supervision Order Team, prepared a Risk Management Report pursuant to s 9(3)(d1) of the Act that was endorsed by Ms Janelle Farroway, High Risk Offender Applications and Operational Governance Officer ("the Risk Management Report"). Prior management by Community Corrections 1. The Risk Management Report provided a summary of the defendant's previous management by Community Corrections at CSNSW whilst on release to parole. Part of that report is extracted as follows: [The defendant] has been known to Community Corrections for a number of decades, with his prior response to supervision being regarded as poor. As noted within the Risk Assessment Report (Ardasinski, 2018 para 16): "he has rarely managed to live in the community for more than a few months at a time before committing new offences which have resulted in further incarceration. His parole has been revoked on several occasions, with [the defendant] failing to adapt to a normal, lawful community existence upon his release - he has spent a great deal of his life in the community within the criminal element, associating with criminal peers, being involved in the drug scene, supporting himself through criminal activity such as thefts, break-and-enters and robberies and being generally antisocial". [The defendant] was last released from custody on 10 April 2009, however was not subject to parole supervision, having elected to serve his full term of imprisonment. In November 2006 at the time of consideration for parole eligibility date (10 April 2007), [the defendant] declined to engage with Community Corrections for the purpose of assessing his readiness for release. [The defendant] also indicated that "in his view, any willingness to co-operate with Community Offender Services would be an admission of guilt [the defendant] said that he did not want to be released to parole, because his refusal to accept supervision would bring additional legal difficulties upon him. Even if release to parole was forced upon him, he said, he would not accept supervision", (Chaseling, 2006 pg. 5). [The defendant] returned to custody on 14 September 2011, in relation to the offences for which he is currently incarcerated. While [the defendant] was initially eligible for release in December 2016 and this was considered by the State Parole Authority (SPA) in October 2016, SPA declined to grant release on the basis of [the defendant's] need to complete programs relating to his sexual offending. In October 2017, [the defendant's] release was re-considered by SPA who formed a provisional decision to grant parole, subject to submissions from the Commissioner of Corrective Services NSW (CSNSW) The matter was further considered in December 2017 and January 2018 following these submissions, at which time SPA then formed a decision to refuse parole until such time that [the defendant] completes a program relating to his sexual offending. Post Release Plans 1. In terms of potential community support on release the Risk Management Report recorded: During the aforementioned proceedings in consideration for [the defendant]'s release to supervised parole, he initially nominated to reside with his mother and stepfather in the Tweed Heads area. This accommodation was assessed as unsuitable in September 2017 on the basis of concerns relating his co-resident's insight into [the defendant]'s risk, in addition to Community Corrections ability to effectively monitor [the defendant] at his proposed accommodation, due to its proximity to the responsible Community Corrections location. A referral was made to CSNSW Integration Support Centre (ISC) by CSNSW Community Corrections staff accordingly and [the defendant] was deemed as suitable for a placement Due to being refused parole by the State Parole Authority in January 2018, [the defendant]'s placement at the ISC is now deferred and currently inactive, In discussion with ISC management, (16 February 2018), it was advised that [the defendant] remains eligible for placement if made subject to an Extended Supervision Order, however his continued suitability will be contingent upon a further review of his overall custodial conduct in coming months. In discussion with [the defendant] in relation to post release accommodation, he strongly opposed residing anywhere but the residence of his mother, despite having previously consented to a referral to CSNSW Integration Support Centre (ISC). [The defendant] made statements in interview with the undersigned on a number of occasions, stating that he would decamp and return to his mother's residence even if not approved by CSNSW upon his release from custody, regardless of any legal repercussions he may face as a result. [the defendant] has indicated he will be seeking to be granted the Disability Support Pension upon his eventual release from custody, in light of his "long standing health needs and his level of institutionalisation"(Ardasinski, 2018 para 59). Risk of Re-offending 1. As to general re-offending, CSNSW conducted an assessment using the LSI-R on 26 October 2012. The assessment found the defendant to fall in the "Medium to High risk level for general re-offending". (As to the risk of sexual re-offending the Risk Management Report diverted attention to the Risk Assessment Report of Mr Ardasinski, discussed above). Risk Management Plan 1. The risk management plan outlined in the Risk Management Report was informed by, inter alia, the dynamic risk factors identified by Mr Ardasinski, which were informed by the information in the Risk Assessment Report. 2. In light of that material, the Risk Management Report set out a risk management plan for the defendant. It addressed the details and limitations with respect to the following suggested management strategies: 1. interviews with the defendant; 2. field visits; 3. third party contacts; 4. monitoring, schedules and curfews; 5. referral to CSNSW psychological services; 6. referral to psychiatric services; 7. referral to alcohol and other drug services; 8. alcohol and other drug testing; 9. contact with children under 18 years of age; and 10. non-association and place restrictions. 1. Each management strategy sought to manage and/or monitor an individual or combination of the following risks associated with the defendant: 1. relationship and intimacy deficits; 2. lack of prosocial peers; 3. institutionalisation and mental health problems resulting from child abuse; 4. anti-social lifestyle – non-sexual criminality, supporting self through crime, being in the criminal element; 5. denial/minimisation; 6. poor co-operation with supervision; and/or 7. substance abuse issues. 1. It was further recommended that, following implementation, the risk management plan be subject to review every two months and updated as necessary to reflect any significant changes to the defendant's circumstances. Treatment and Rehabilitation Programs CUBIT 1. The defendant participated in the CUBIT program and completed the program between 4 December 2017 and 13 September 2018. He was previously ineligible to participate in the program owing to his classification as an "Escapee". 2. As to the defendant's participation in the program, Mr Ardasinski reported: Discussion with [the defendant's] treating therapist (Weaver, 18/1/18) indicated that [the defendant] had been participating relatively well in group for the month that he had been attending since commencing treatment in December 2017. It was too early in the treatment process to predict how he would progress further in CUBIT. 1. Dr O'Dea noted, in the absence of access to a CUBIT progress report, a report by Ms Nicole Weaver, Psychologist, dated 31 May 2018, may be referred to. She observed the defendant to be engaging in the program and, despite some challenging behaviours, showing some progress (as at the date of her report). Notwithstanding that observation, Dr O'Dea opined that it is unlikely that CUBIT will have a significant impact on reducing the defendant's risk of engaging in further serious sex offence in the long term in the community. 2. The court appointed experts placed different weight, in their assessment of risk, upon the defendant's completion of the program: 1. Dr O'Dea considered that, although the defendant completed CUBIT, he continued to have "limited insight into his role in the offences, limited remorse for his actions in relation to the offences and limited empathy for the victim of the offence"; and 2. Dr Seidler opined that such completion is a factor that reduces the defendant's risks. She noted, the defendant told her he gained self-awareness from the program and an emotional appreciation of the impact of his behaviour on others. SUBMISSIONS BY THE PARTIES – EXTENDED SUPERVISION ORDER The State 1. The State made the following submissions: 1. The defendant meets the threshold requirements under s 5B for an application to be made for an extended supervision order and when s 9(2) and (3) factors are considered the Court should grant the extended supervision order. 2. The Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence in the absence of supervision (and support) because: 1. The defendant is a 57-year-old man who has been in custody almost continuously since 1972 when he was 12 years old. This institutionalisation evidences that he requires proven support structures to reintegrate in the community before being confident that the defendant's release is in the interests of the safety of the community. The State supported this submission with reference to that fact the defendant's serious sex offences occurred soon after he was released on parole, in particular, the 1993 offence occurred within 8 days of his release. 2. The nature of the defendant's serious sex offences shows a history of targeting teenage girls at night, chasing them down when they are alone, holding a knife to their throats and raping them. The State contended such as risk is "intolerable" and the consequences are "drastic to the victims". Further, as the 1993 and 2001 offences were committed 8 years apart, this suggests an entrenched aspect to the defendant's pattern of offending. 3. The unanimous opinion of the experts was that the defendant has antisocial personality disorder (characterised by repeated failure to conform to lawful behaviours, deceitfulness and impulsivity) and that this disorder underpins the pathways to the defendant's serious sex offending. (The State included reference, in this respect, to the court appointed experts and Mr Ardasinski). 4. The defendant's diagnosis of substance use disorder. Whilst noting that the defendant has been in remission for a considerable period of time and on methadone for a significant period, the State contended that this disorder remains relevant "in the context of his institutionalisation, his anxiety and his antisocial personality disorder". The State supported this submission with reference to the defendant's mother and her current position as a "protective factor" for the defendant: "the defendant looks to making her proud as his motivation for reintegration in the community". Accepting that fact, the State contended that the possibility of his mother's death is relevant as a potential "destabilising influence which will elevate his anxiety and depression and in the context of his institutionalisation this may elevate his risk of returning to illicit substances to cope… which will significantly elevate his risk of offending". 5. Without supervision, the defendant's extreme institutionalisation puts him at a very high risk of returning to his habitual and chronic criminal behaviour. The experts all agree (including Ms Aldrich and Mr Howard) that the defendant requires intense supervision and structure to reduce his risks of re-offending. This is currently provided under an interim supervision order (and intended to be provided under an extended supervision order) and will be rapidly lost, it was contended, if an extended supervision order is not granted. 1. As to the divergence of opinion between the court appointed experts and Mr Ardasinski, with respect to risk assessment, namely, Dr O'Dea opined that absent supervision there is a "high degree of probability" the defendant poses a risk of further serious offending, whereas Dr Seidler and Mr Ardasinski considered the defendant presents a high risk of recidivism of general re-offending but in the "moderate" range for sexual offending. The State contended the opinions of the latter "appear to consider the likelihood of sexual reoffending… rather than the degree of probability of the risk the defendant presents". The likelihood of sexual re-offending, it was submitted, is not the sole measure of risk evaluation under s 5D. 2. Even if the Court found there was a moderate risk of recidivism, this is outweighed by the "nature of the risk". In this respect, the State submitted: "the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious sex offence if not supervised" (original emphasis). 3. Supervision would be the effective, justified and reasonably appropriate measure to reduce the defendant's high risk of sexual re-offending and an extended supervision order would be protective in that regard (see s 3 of the Act). 1. As to the Dr Seidler's two-pronged approach to risk assessment, namely, the theoretical risk versus the practical risk, the State contended that her approach conflated the task before the Court. The State submitted that the consideration of the "theoretical risk" – or the identification of the risk itself – is that which the Court is asked to evaluate under s 5B(d). The "likelihood" of that risk eventuating – that is, the expression of the risk – is dealt with separately under s 5D. The State contended, "the expression of the risk, it may be low but that doesn't deny in the outcome that he is not an unacceptable risk for s 5B(d) purposes, and that's precisely why s 5D was enacted, to guide the court to say you're not just considering the likelihood of reoffending, and that's of course where the physical limitations may take on more relevance, you're considering the clinical opinions of risk, the nature of the risk, the way it's presented, the s 9(3) factors, [or] to use Dr Seidler's words 'the jigsaw puzzle' that's presented". 2. During oral submissions, the State identified further factors, that arose in the course of evidence, that may inform the evaluative judgment under s 5B(d), which included: 1. Dr Seidler's opinion with respect to the defendant's "superficial understanding of consent and sexual boundaries" – notwithstanding his participation and completion of the CUBIT program. 2. The defendant's exposure to sexual and physical violence in his youth, which Dr Seidler also opined would have had a profound impact on the defendant's understanding of relationships and acceptability of violence within them. 1. As to the defendant's likelihood of compliance with obligations under the extended supervision order, the State noted the defendant's compliance with parole, evidenced by his criminal history, has been poor. The State also made reference to the Bail Report and noted the defendant has a history of escape lawful custody convictions (1978, 1981, 1984, 1985, 1990 and 1994). However, the State accepted that "the experts' views, corroborated by the defendant's conduct, evidences a shift in his attitude to supervision". In light of such evidence, the State submitted, "[t]he defendant shows a likelihood of complying with conditions of an ESO". 2. Turning to the breach of reporting obligations in 2011, the State conceded that such an offence is not indicative of a high risk of further serious sex offending. However, it was contended, that the defendant's attitude towards the breach revealed his "lack of insight" into his high risk scenario and his classification as a child sex offender, which warrants oversight. 3. Taking all of the mandatory considerations into account, the State contended that the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious sex offence, if not kept under the supervision of an extended supervision order. In addition to those factors, it was further submitted, the unacceptable risk test is met and an extended supervision order should be granted because: 1. The continued use of methadone demonstrates an ongoing dependence on a substance to help the defendant cope; 2. Should the defendant be challenged with an emotionally stressful situation (such as the passing of his mother), his substance use disorder and anxiety issues elevates his risk of returning to illicit drugs and this elevate his unacceptable risk of serious sex offending; 3. The defendant has persistently denied the 2001 serious sex offence notwithstanding the overwhelming Crown case against him and he externalised blame to the victim of the 1993 offence (suggesting she invited him, by her actions, to insert his penis into her vagina). These attitudes suggest that caution is warranted regarding the defendant's expressions of purported remorse and that he holds misogynistic views; 4. Though the defendant has participated in CUBIT his skills are relatively new and untested in the community; 5. The statistical assessment tools still put the defendant in the above average or moderate risks of sexual re-offending; and 6. Although the experts note the defendants physical limitations may ameliorate his risks of serious sex or violent offending, the experts still place the defendant in a moderate risk category or higher because of his antisocial personality disorder, institutionalisation and other dynamic risk factors. 1. Finally, the purpose of an extended supervision order is protective and the safety of the community is the paramount consideration: s 9(2). The State submitted, young girls may be the target of the defendant's sexual re-offending. Their safety is a paramount consideration when determining if an extended supervision order should be granted. The Defendant 1. The submissions of the defendant may be summarised as consisting of three contentions: 1. The defendant opposed the making of an extended supervision order. 2. Specifically, the defendant did not concede that the Court would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision. 3. In the event that the Court makes an extended supervision order: 1. The Court could make an extended supervision order for "a shorter duration"; and 2. The Court "would not make an order in respect to all of the conditions sought by the State". 1. The defendant made the following concessions: 1. The defendant is an "offender" as defined in s 4 of the Act: 1. he is a person over the age of 18 years: s 4A(a); and 2. he is a person who has been sentenced to imprisonment to be served by way of full-time detention following the person's conviction for a serious offence: 4A(b). 1. The defendant was sentenced in 2012 to a term of imprisonment for 7 years for four counts of aggravated sexual intercourse without consent contrary to section 61I, Crimes Act. The circumstance of aggravation was the age of the victim (15 years). It is conceded that this offence falls within the definition of "serious offence": see ss 4 and 5A(1)(a). 2. At the relevant time, the defendant was a "supervised offender" as defined in s 5I of the Act. 1. Whilst counsel for the defendant conceded that the "the defendant may be at risk committing a further offence", it was contended that this was not necessarily offending within the ambit of the Act, namely, "another serious offence". In the same light, it was submitted that the evidence before the Court does not establish "to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d)". 2. As to s 5B(d), the defendant contended there were three separate evaluative decisions to be made by the Court: 1. a finding of unacceptable risk; 2. a high degree of probability; and 3. determination of whether that risk is of the commission of a serious offence. 1. All three evaluative decisions, it was submitted, are "inherently speculative in nature" requiring an assessment of a future risk that does not yet exist. The Court should only make an extended supervision order in the event all three are satisfied and "to cure these issues of institutionalisation, socialisation and adjustment to the community". 2. In respect of the defendant's risk of committing a further serious offence, the defendant relied upon the following: 1. The defendant was in the community between 10 April 2009 and 14 September 2011. It was submitted that period of time is instructive to the evaluative judgment as to the risk of committing a further sex serious offence. During that period of approximately 2 years and 5 months, there was "no further sex offence, or no further serious sex offence". In this respect, the defendant relied upon the defendant's characterisation as a "generalist" offender by the court appointed experts. 2. There is a significant time lapse since the last serious sex offence, namely, over 16 years ago. Further, the serious sex offences occurred roughly two and a half decades ago. 3. The change to the physical capacity of the defendant (discussed below) has "severely compromised" his capacity to offend as he had historically or in a serious sexual way. The defendant had a different physical capacity at the time of the last serious sex offence to what he has today. It does not appear that the defendant is capable of following, chasing and physically subduing a victim. In that light, it appears that the "risk" lacks a physical possibility such that the Court would not be satisfied to the standard of a high degree of probability. Further, the consequences "are likely to be contained and restricted by virtue of the defendant's compromised physical ability". 4. A high risk of committing "general offences" does not bring the defendant within the ambit of the Act. 5. As to the risks associated with substance use, reliance was placed on the fact the defendant has been drug abstinent for over two decades. He is on a "blockade" dose of methadone. 6. The defendant has completed CUBIT and is considered "treated". 7. The following aspects of the evidence of Dr Seidler were emphasised: 1. Dr Seidler opined that antisocial personality disorder tends to "burn out" through later middle years. In light of the observation, counsel for the defendant noted the defendant is approaching 60 years of age and, it was contended, he is "genuinely committed to a non-offending lifestyle". 2. Dr Seidler outlined the health issues of the defendant at paras 37-43 of her report (Dr O'Dea also makes reference to the health issues at paras 70-72 of his report). 3. Dr Seidler concluded that the defendant's risk of sexual violence is in the moderate range. She opined: In my view, it is difficult to conceptualise how [the defendant]'s risk for future sexual abuse might manifest now other than, based on the history, suggesting that perhaps an impulsive act of sexual abuse against a vulnerable female victim will be the most likely outcome. However, I do not believe that this is now a likely possibility for [the defendant] and whilst he has a serious criminal history and is highly antisocial, I am not convinced that [the defendant] should be considered a high risk sex offender. 1. Dr Seidler noted that the risk assessment tools do not include items related to the defendant's health and physical capacity. It was contended that such limitations are relevant in that they impair his ability to physically carry out an act of violence, control and aggression. 1. Dr O'Dea referred to matters that may mitigate the defendant's risk, namely, "advancing age, medical impairment and disability, and abstinence from illicit substance use". Dr O'Dea appeared to "link" the defendant's risk of committing a further sex offence with the "progress" of the defendant's medical conditions. 1. The defendant also disputed the relevance of the State's submission as to the potential impact of the defendant's mother's death as a factor relevant to risk assessment. The defendant submitted, "[t]here's no evidence before the court that the mother is elderly or frail or unwell, the evidence before the court in the OIMS is to the effect that the mother is a person who's providing some support to the defendant and in particular driving him to various appointments of that kind". 2. The defendant also placed significant reliance upon the observations of Mr Ardasinski in his Risk Assessment Report. A summary of those observations is extracted below: 1. The defendant walked with the assistance of a walking stick. 2. The defendant did not re-offend in 2011 when he was released to the community: "[i]t appears that [the defendant] was indeed existing prosocially between the dates of his last release from custody (10/4/09) and his arrest for the historical index sex offence (14/9/11) better than any period previously, at least superficially". 3. Mobility issues have restricted the defendant's capacity to undertake custody-based employment. 4. There would need to be some moderation in his risk of offending in the future by virtue of the reduced mobility and obesity. 5. The defendant's desire to participate in treatment appeared related to his desire to better himself and abide by the decisions of "the system". 6. It was too early in treatment to predict how the defendant would progress further in CUBIT. 7. It may be that the defendant's poor compliance with supervision is over. 8. It may be that the defendant's sexual offending trajectory leads to a different form of offending, which relies less on physical coercion but instead psychological coercion. 9. It must be considered that the likelihood of a repeat sexual offence is lower than his risk of other offending. 10. "[O]n balance ... I would consider it unlikely that [the defendant] would return to sexual offending after so many years, even though he has spent over 14 of the last 17 years in prison since he committed a sexual offence in 2001. He did not sexually re-offend in the two years he lived in Tweed Heads in the community between 2009 and 2011, and the empirical literature suggests that a general offender's greatest risk period is within the first few months of release to the community". 11. "[The defendant] has aged considerably (which is central to the risk factor in many cases of sex offending) he has abstained from substance use for a number of years attempted to achieve stability in the community… prosocial functioning and development indications of psychological resolution or prior experience of trauma in recent years and current treatment of affective symptoms". 12. "[T]he evidence before me suggests that [the defendant] would continue to exist in the community without resorting to sexual violence. However, there may still be the potential that he reverts to the criminal thinking that precede his serious sexual offences of 1993 and 2001 when he opportunistically assaulted teenage female victims in close proximity ... should his situation destabilise to a great enough extent and he felt he did not have the requisite supports to manage his risk factors. I consider this scenario unlikely, but possible, particularly if his mother passed away". 1. As to the change to the physical capacity of the defendant, counsel for the defendant identified the aspects of the evidence relied upon, in that respect, summarised in a document titled "Defendant Medical Evidence Summary" (provided by agreement on 23 November 2018). That document included a table which is extracted in full below: Document Date Page Content Justice Health Records (annexed to affidavit of Johanna Fisher 5 November 2018) 22 May 2017 18 '…asking for a walking aid' Justice Health Records 2 June 2017 18 '… back pain – has scoliosis …. Walks with a stick – difficulty mobilising – may need a walker' Justice Health Records 10 November 2017 21 'Patient has scoliosis in the back, 4x damaged vertebrae, and unable to work' Justice Health Records 28 November 2017 42 'back pain scoliosis – needs walker' Justice Health Records 10 January 2018 21 '….grinding in knee … scoliosis in back …' Justice Health Records 6 March 2018 24 'Vertabral damage. Scoliosis' Justice Health Records 13 March 2018 85 'scoliosis … L knee pain 2 years getting worse marked crepetis/ scoliosis marked reduction, abd and rotation' Justice Health Records 27 March 2018 26 'Note extensive degeneration in back' Justice Health Records 28 March 2018 11 'Mobilises with aid of a walking stick' Justice Health Records 8 April 2019 12 'Walk with a stick', 'Must be bottom bunk, ground floor' Justice Health Records 8 June 2018 30 'Physical health: enlarged heart, hypertension, scoliosis' OIMS Notes (annexed to affidavit of Annette Caffery 5 November 2018) 11 September 2018 106 Approved for special transport OIMS Notes 19 September 2018 113 "Offender remains requiring the use of a walking stick and presents as having eyesight deficits and some hearing impairment…requires some medical interventions around his physical health…specialist attention to his eyesight and possibly other physical health care." OIMS Notes 26 September 2018 115 "…on going issues with his back and continues to appear to have impaired mobility. His eyesight is also poor as he had difficulty navigating the area." OIMS Notes 30 September 2018 116 "…offender will be going to hospital…an ambulance has been called, he has a lot of pain around his liver area…" OIMS Notes 30 September 2018 116 "emergency department…at the hospital, still awaiting a doctor, not yet admitted." "…Tweeds Hospital requesting Offenders TAG to be removed for MRI…" OIMS Notes 2 October 2018 117 "…advised to call CCO Peter on is work mobile…Telephone call to Peter made however no contact made." "someone from Tweed to remove the tag however they would not have the equipment…equipment removal needs to be approved." OIMS Notes 5 October 2018 120 "…discharged from hospital and returned home." OIMS Notes 11 October 2018 122 "…continues to suffer physical pain…also has other ongoing physical health issues including eye-sight, mobility, back and knee problems." OIMS Notes 26 October 2018 127 "Echocardiogram appointment on 8/11 at 3pm Cardiologist appointment on 12/11 at 2:30pm" OIMS Notes 27 October 2018 127 "…provided a list of his medications and these were recorded on the test sheet." OIMS Notes 31 October 2018 128 "…needs to go and get a CAT scan…" 1. The defendant relied upon the above submissions, with respect to the defendant's physical capacity, in reply to the plaintiff's contention that the risk of recurrent offending is "intolerable" and the consequences "drastic". First, the defendant contended that, in light of the above evidence, it appears that the "risk" lacks a physical possibility such that the Court would not be satisfied to the standard of a high degree of probability. Second, as to the consequences, the defendant submitted they "are likely to be contained and restricted by virtue of the defendant's compromised physical ability". 2. Reference was also made to the remarks of Button J at the preliminary hearing and in his judgment at [23]-[24]: [23] A question arose on that day as to the mobility of the defendant, as a result of various physical ailments, and the prophylactic effect on offending that could have, bearing in mind the modus operandi of the two sets of offences of April 1993 and April 2001. The proceedings were adjourned until 28 August so that that could be explored. [24] On the latter occasion, the evidence before me was that the defendant does indeed use a walking stick or a walking frame to move about in prison. On occasion, he uses a wheelchair. He suffers from scoliosis (a no doubt painful deviation of the spine) and from crepitus in one knee (a grating of bone on bone associated with arthritis in older people). But there is no suggestion on the evidence that he is a permanently or even very largely confined to a wheelchair. 1. It should also be noted, the defendant conceded that "[w]e don't have any medical material before the Court by way of a separate report". However, reliance is placed upon the above summary and the "unchallenged evidence of the DSO as to his observations of the defendant in terms of his fragility and mobility" (namely, the defendant's use of a walking stick and his difficulties navigating obstacles, such as steps). 2. Following the cross-examination of Dr O'Dea, the defendant made the following submission: Dr O'Dea's position in my submission is that there are a number of variables that are raised on the evidence that is available. The variables are not answered to a sufficiently requisite standard that he is able to say either way, but he accepted that those variables that do exist, he has health issues but we don't know precisely what they are, he has ailments, we don't know precisely what they are, he has mobility issues, we don't know the precise extent of those mobility issues. At the end of the day, the opinion in my submission is that those variables are relevant to his opinion, those variables remain unanswered to the extent that Dr O'Dea required them to be answered on the evidence, and his opinion ultimately would be affected by whatever the answer to those variables are. 1. As to divergence of opinions between the court appointed experts and Mr Ardasinski and the approach to be taken by the Court, the following submission was advanced: [I]n my submission the court could make a finding and an assessment of what's required in s 5B(d) by taking into account and considering all of the evidence, all of the evidence of the different experts in terms of the, yes, there's in my submission variations and variations that are significant, but the court doesn't necessarily need to prove, to prefer one or the other, because it's a question as to whether taking into account all of the material the court is satisfied of those different features, and the court in my submission can comfortably accept the opinions and evidence of Mr Ardasinski and Dr Seidler in the assessment of the 5B(d) criteria, particularly in combination with the other features such as the lapse of time, the period in the community, the age and some mobility issues. 1. If the Court was minded to grant an extended supervision order, the defendant submitted that the order could be for a duration in the range of 12 months and on less onerous conditions than those sought by the State. CONSIDERATION Section 5B(d) 1. The decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51]. 2. Section 5B of the Act provides this Court may make an extended supervision order if: the person is an "offender" who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); the person is a "supervised offender" (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this Court is satisfied to "a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". 3. As to the question of whether the defendant is an "offender" and "supervised offender", for the purposes of the Act, the defendant made the following concessions: 1. The defendant is an "offender" as defined in s 4 of the Act: 1. he is a person over the age of 18 years: s 4A(a); and 2. he is a person who has been sentenced to imprisonment to be served by way of full-time detention following the person's conviction for a serious offence: 4A(b). 1. The defendant was sentenced in 2012 to a term of imprisonment for 7 years for four counts of aggravated sexual intercourse without consent contrary to section 61I, Crimes Act. The circumstance of aggravation was the age of the victim (15 years). It is conceded that this offence falls within the definition of "serious offence": see ss 4 and 5A(1)(a). 2. At the relevant time, the defendant was a "supervised offender" as defined in s 5I of the Act. 1. Additionally, as noted earlier, there is no dispute that the application was made in accordance with s 5I of the Act. The issue in dispute in these proceedings is whether or not the State has met the threshold test in s 5B(d). 2. I earlier discussed the relevant principles, in this respect, at [26]-[29] of this judgment. 3. Further, the nature of the risk posed by the defendant is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition: Lynn at [126]. The assessment must be based on an absence of protective measures. The "criterion of unacceptability depends upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent [and/or sex] offenders": Lynn at [126]. 4. Having regard to the entirety of the evidence I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order. 5. That evaluative judgment is based upon the following considerations, which derive from the earlier discussion of background matters: 1. The nature of the risk is in part derived from both the 1993 and 2001 offences. The defendant has engaged in two serious sex offences both of which involved an offence against young females aged between 15 and 17. I accept the State's characterisation of the offending as "violent, impulsive and unpredictable". The 1993 and 2001 offences had the following common features: the victims was unknown to the defendant; the victims were young females; the victims suffered actual bodily harm; the victims were followed and chased down by the defendant; a knife was used to threaten the victims; the victims were physically subdued by the defendant and the offences were carried out at night when the victims were walking alone. The sentencing court described the 1993 offence as a "serious [example] of the offence of aggravated sexual intercourse without consent" and the 2001 offence as "predatory and violent conduct which was planned and premeditated", respectively. 2. Three conclusions may readily spring from that consideration. First, Dr O'Dea, whose expert opinion I prefer for reasons given below, opined that it is generally agreed in the psychiatric profession that the best predicator of future sex offending is past sex offending behaviours. Whether based upon the above historical analysis of the offences or the consensus of psychiatric opinion, the consequences to a victim of the risk materialising is, as the State contended, likely to be "drastic". 3. The occurrence of the offences 8 years apart represents an entrenched pattern of offending. Dr O'Dea emphasised that managing and minimising the risk posed by the defendant, with respect to further sex offending, is "long term". Mr Ardasinski observed that the defendant's previous period of community living had "ultimately ended with his becoming involved in further crime and returning to prison". He opined, the defendant's "antisocial attitudes which permit the continuance of such a lifestyle would ordinarily, by now, be quite entrenched and would require some radical difference the next time he is released to shift them". He noted the defendant's recent change in attitude might indicate "his attitudes are beginning to shift". 4. The consideration in (3) above, is consistent with expert opinion as to the underlying causes of the defendant's sexual offending. The court appointed experts both agreed that the defendant's serious sex offending is less about sexual deviance and, in fact, related to his antisocial personality disorder, a disorder which underpinned the pathways to the defendant's serious sex offending. Antisocial personality disorder, it was noted, is characterised by repeated failure to conform to lawful behaviours, deceitfulness and impulsivity. Such disorder, it was also noted, has limited amenability to treatment and fundamental change. Dr Seidler, in this respect, observed the attenuating impact of age upon behaviour although there was no change to the underlying personality disorder. 5. The defendant was diagnosed with substance use disorder. The defendant has been in remission for a considerable period of time and on methadone. Dr O'Dea described the defendant as being in "good control". However, Dr O'Dea considered that the substance use disorder still represented a risk factor and Dr Seidler considered it could not be ignored even though the disorder was not a significant risk factor. 6. I accept the submission by the State that the disorder remains relevant in the context of the defendant's institutionalisation, his anxiety and his antisocial personality disorder. Dr Seidler observed, the defendant acknowledged a link between his criminal offending and illicit substance use. Dr O'Dea opined, the defendant must remain abstinent to minimise the risk of sexual re-offending. I agree. 7. Substance use disorder is "chronic" and a return to such pattern of behaviour would elevate the risk posed by the defendant, with potentially drastic consequences upon victims. 8. The State also relied upon the potential destabilising influence of the death of the defendant's mother. Both Dr O'Dea and Mr Ardasinski recognised such an event to be relevant to the assessment of risk. Whilst that submission may be accepted in its terms, I am not, in the absence of evidence, to speculate upon such an eventuality. 9. The reports of the court appointed experts and Mr Ardasinski revealed that the defendant continues to display limited insight into his offending. As to the 1993 offence, the defendant only accepted "guilt" in his account to Mr Ardasinski. He stated that the reason for his not guilty plea was because he was embarrassed in front of his mother. However, the defendant's account of the same was not consistent with the court appointed experts. As mentioned earlier, the defendant told Dr O'Dea that he thought the victim was inviting him to have sex with her, and told Dr Seidler that he asked the victim if he could have sex with her and when she refused he raped her. Further, in an earlier psychological report by Mr Howard, the defendant claimed the sexual intercourse was consensual (he also claimed he did not know the victim was 16 years old). 10. It is true, as submitted by the defendant, that there has been a significant time lapse since the last serious sex offence, namely, over 17 years ago. Such a period must be understood in context. First, the defendant was in custody for the majority of that time. Second, regard must be had to his conduct during his brief period in the community between 10 April 2009 and 14 September 2011. As to the same, I note, Mr Ardasinski considered the defendant's conduct in that period to be less significant in light of the fact "[the defendant] did not sexually reoffend… between 2009 and 2011, and the empirical literature suggests that a general offender's greatest risk period is within the first few months of release to the community". However, during that time the defendant breached his reporting obligation under the CPOR Act. Thus, whilst the defendant did not commit a "serious sex offence", I accept the submission by the State that such an offence is properly described as an "offence of a sexual nature". Having regard to the seriousness of the defendant's earlier sexual offending, such an offence remains relevant to the assessment of risk, particularly in circumstances where the defendant had access to vulnerable people, which included, inter alia, an 11 year old girl, and made a deliberate decision to not make the necessary disclosures. 11. The court appointed experts and Mr Ardarsinski were unanimous in their recognition of the defendant's institutionalisation and its relevance to the defendant's risk of re-offending. This factor is more potent when considered in conjunction with the defendant's antisocial personality disorder. Mr Ardasinski opined that as a result of the defendant's institutionalisation it will be "difficult for him to adapt to a normal, lawful community existence". Ms Aldrich also previously observed a lack of support in the community has "repeatedly led to a failure of his re-integration into the wider community and has driven him back to what was familiar". She also opined the "adjustment will become harder as he gets older". The experts all agree (including Ms Aldrich and Mr Howard) that in this light the defendant requires intense supervision and structure to reduce his risks of re-offending. 12. The defendant's completion of CUBIT, whilst commendable, must, on the evidence before the Court, attract minimal significance as to the reduction of risk. Whilst Dr Seidler opined that the completion of that course is a factor that reduces the defendant's risks and noted the defendant told her he gained self-awareness from the program, as noted above, the defendant continued, notwithstanding the program, to demonstrate limited insight into his opinion. Dr O'Dea opined the defendant continues to display "limited insight into his role in the offences, limited remorse for his actions in relation to the offences and limited empathy for the victim[s] of the offence[s]". The completion is a positive step towards rehabilitation but it has not, in my view, ameliorated the risk posed by the defendant. 13. Further, notwithstanding the defendant's recent shift in attitude towards treatment and supervision, the defendant has a lengthy history, as indicated by reports to and from both CSNSW and the Parole Authority, of displaying a negative attitude towards such authorities and supervision. 14. There is a divergence of several opinions amongst the experts as to risk assessment. Dr O'Dea opined that absent supervision there is a "high degree of probability" the defendant poses a risk of further serious offending, whereas Dr Seidler and Mr Ardasinski considered the defendant presents a high risk of recidivism of general re-offending but in the "moderate" range for sexual offending. The State contended the opinions of the latter "appear to consider the likelihood of sexual reoffending… rather than the degree of probability of the risk the defendant presents". The likelihood of sexual re-offending, it was correctly submitted, is not the sole measure of risk evaluation under s 5D. Both Dr Seidler and Mr Ardasinski considered the Act in their respective assessments and accepted that there was a continuing and persistent risk associated with the defendant's anti-social personality disorder but placed less emphasis on the need for supervision because their assessment of the risk of re-offending. In any event, for reasons given below, the weight to be given to their opinions is affected by a number of factors in that respect. 15. The opinion of Dr Seidler and Mr Ardasinski are predicated on two foundations which warrant less weight being attached to their opinions for the purpose of the evaluative judgment required under s 5B(d). 1. First, both opinions were predicated upon an acceptance of the physical attributes of the defendant both in terms of age and medical disability, which were said to ameliorate the risk. Whilst the personality disorder was always present, Dr Seidler, in particular, opined that the defendant's risk is "attenuated by his age and physical health status" and reported that "his limitations are relevant in that they impair his ability to physically carry out an act of violence, control and aggression". Dr O'Dea properly accepted that, whilst such factors were relevant to a risk assessment, in the absence of evidence as to the nature and extent of any such physical condition (which I will discuss below, was not before the Court), it could not (and should not) impact upon his assessment. (It may be noted that Mr Ardasinski did accept that "[t]here would need to be some moderation in his risk of offending in the future by virtue of the reduced mobility and obesity", he also opined "[i]t may be that the defendant's sexual offending trajectory leads to a different form of offending, which relies less on physical coercion but instead psychological coercion"). 2. Secondly, as was evident from counsel for the defendant's unsuccessful attempts to establish a medical foundation for those opinions through Dr Seidler and Dr O'Dea, there was no medical foundation for those opinions. It is true, the defendant's catalogue of a series of descriptions of the defendant's physical state (in addition to Dr Seidler's and Mr Ardasinski's observations), represented, anecdotally, that the defendant was suffering afflictions in the period between May 2017 to October 2018. Dr O'Dea appropriately expressed caution about extrapolating from that limited information to a conclusion that the disabilities or medical ailments, which were undiagnosed, or the defendant's age represented such an impediment or mitigating factor as to lower the risk of further serious offending to a moderate (or lower) level. There was no medical evidence before the Court as to the nature and severity of the complaints raised by the defendant, their longevity or the consequential impact upon risk. Extended Supervision Order 1. Putting aside the conditions that attracted some controversy during the proceedings, which I will return to below, I consider there is ample basis to make the extended supervision order sought by the State, having regard to the conclusion reached above, that the defendant meets the definitions and test under s 5B and, further, having regard to the various factors considered by this Court for the purposes of s 9(3) of the Act under the heading, "Findings of Fact and Conclusions as to Factors Under s 9(3)". Without unnecessarily repeating or derogating from that earlier analysis, I consider an extended supervision order is warranted having regard to the factors discussed above, in particular, the following factors: 1. the nature and gravity of the 1993 and 2001 offences; 2. the potential type and nature of any offence committed in the event of re-offending and the potential for consequences for victims; 3. the opinion of the court appointed experts, based upon clinical assessments, as to the necessity for supervision (including appropriate conditions) and ongoing treatment of the defendant; 4. non-compliance and failures by the defendant whilst on parole and/or subject to supervision; 5. the defendant's negative attitude (up until recently) towards authority and supervision; 6. the defendant's limited insight into his offending; and 7. the defendant's challenging behaviour in prison, in particular, his record which include several convictions in relation to attempting to escape lawful custody. 1. Those factors are also relevant to the granting of the conditions sought by the State. It should be re-emphasised, in that respect, that the court appointed experts generally supported the conditions proposed. I will deal with particular objections by the defendant below. CONDITIONS Submissions – General 1. The parties made submissions regarding the making of conditions with respect to an extended supervision order. 2. The State, in this respect, relied upon the opinion of Dr O'Dea. He opined that the proposed conditions and anticipated plans in the Risk Management Report of Ms Kirkwood would address the defendant's risk of further serious sex offending. Dr Seidler opined that some conditions were unnecessary given the defendant's "past sexual offending". 3. The State, in this respect, relied upon the decision of the Court of Appeal in Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 (at [53]): Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. 1. In the event the Court was minded to grant the extended supervision order sought, the defendant initially advanced the submissions developed at the preliminary hearing. It was contended the order should be for a duration in the range of 12 months and the conditions should be limited to those necessary to reduce risk. The conditions should reflect the level of identified risk of this particular defendant rather than standard conditions that are ordinarily imposed. It was contended that the conditions proposed by the State were onerous and the Court should have regard to the relevant authority. 2. The defendant's submission was supported by reference to the following authorities: State of New South Wales v Burns [2014] NSWSC 1014 at [59]; State of New South Wales v Green (Final) [2013] NSWSC 1003; and State of New South Wales v Bugmy [2017] NSWSC 855 at [89]. 3. Further short submissions were advanced by both parties at the final hearing, which were directed to particular controversies regarding conditions. Those submissions are reflected in the discussion below. Submissions – Particular Issues 1. The primary focus of the defendant's contentions, as to the conditions sought by the State in Annexure A to the further amended summons, were as follows: electronic monitoring (conditions 4-6); schedule of movements (conditions 7-10); and access to the internet and electronic communications (conditions 38-41). I shall address each issue seriatim. Electronic monitoring and schedule of movements 1. The defendant contended that the Court would not be satisfied to the relevant threshold that the conditions relating to both electronic monitoring and the schedule of movements were required to mitigate against the risk of further serious sex offending. 2. Further, as to the duration of the sunset clause proposed at condition 5, it was contended by the defendant, that should the Court be minded to make an extended supervision order, with the conditions proposed by the State, condition 5 would require reconsideration depending upon the duration of the order, particularly if the order was for a duration less than 3 years. 3. The State relied, in this respect, upon the observations and findings of Button J at the preliminary hearing (at [38]-[40]), extracted below: [38] As for the disputed conditions, the first three of them pertain to electronic monitoring. Counsel for the defendant submitted that that is simply uncalled for, in light of the passage of time since the commission of the last sexual offences in 2001, the degree of optimism in the risk assessment report, and the period already spent living quietly without incident. [39] I respectfully accept all of that. But the fact is that, on two separate occasions, whilst out and about in the evening, the defendant inflicted horrific sexual violence on two young females, which unquestionably had grave, perhaps lifelong, psychological consequences for its victims. One of those incidents was denied for a time, and one of them has never been admitted. More generally, over the years the defendant has shown himself capable of other acts of profound violence as well. He also possesses a longstanding proclivity to abscond, demonstrated by his repeated convictions for escape. In all the circumstances, I think that electronic monitoring, in the measured terms proposed, is indeed appropriate. [40] For the same reasons, I consider that the provision of a schedule of movements is also apposite. 1. The State contended that both court appointed experts recognised the utility of electronic monitoring. Reference was also made to the defendant's accommodation in a retirement home, with "vulnerable" people; an observation that was also regarded as a relevant consideration to risk assessment, by Dr O'Dea. 2. As to the same, the State submitted such a measure was "appropriate" and responded to "specific facts" of this case. The State made reference to the particular operation of the condition, namely, with compliance, the defendant's risk would be deemed less and "then the stages of supervision can progress". 3. Turning to the schedule of movements, the State submitted that such conditions assist with risk reduction through the provision of structure. It was contended, in this respect, that the defendant lacked the skills or motivation to implement routine on his own. When Dr Seidler questioned the defendant on his plans for his future the defendant's answers were "vague" and the defendant told Dr Seidler that "he does not intend to do anything consistently productive with his time". This will elevate his criminogenic risks. 4. Regard was also had to the affidavit of Ms Caffery. She deposed how particular conditions propose to reduce the defendant's risk of re-offending. First, electronic monitoring and a schedule of movements reduce the risk of impulsive offending (a behaviour of antisocial personality disorder) and enable the ESO Team to intervene when necessary to prevent access to potential victims. The State submitted, this is relevant to the defendant's circumstances: "[t]he defendant has a history of several offences of escapes lawful custody and lives on the border of NSW and Queensland. He has expressed to the experts resentment for being on the ESO and there is a risk, in the event he no longer has his family as a protective factor, of evading the jurisdiction". 5. In advancing its submissions, the State noted the opinion of Dr O'Dea that the provision of schedules in advance has utility but can be difficult for offenders. As to this difficulty, the State highlighted the "flexibility" of the conditions and referred to a selection of instances in the OIMS case notes in which the defendant's schedule was modified on 27 September 2018, 30 and 31 October 2018. 6. With respect, I consider the reasons given by Button J in the preliminary hearing for ordering the conditions in the Schedule to the amended summons regarding electronic monitoring and the schedule of movements provisions are compelling. The material provided in the final hearing merely reinforced those conclusions. 7. When that evidence as to electronic monitoring and the schedule of movements is taken together with, inter alia, the evidence of the defendant's substantial criminal background, which includes several convictions of escape lawful custody; his well-documented difficulties and poor attitude towards authority and with supervision (albeit with more recent improvement); and his location at Tweed Heads on the border of NSW and Queensland, the conditions sought by the State are appropriate. The measures will enhance the safety to the community by encouraging compliance, particularly having regard to the operation of a sunset clause and the imposition of structure and routine vis-à-vis the schedule. The encouragement of an avoidance of deceptive behaviour, will reduce the risk of re-offending. Access to the internet and electronic communications 1. The defendant contended, in this respect, "there is no associated risk with this defendant using any form of social media or electronic devices to further in any way his capacity to commit a further serious offence". The defendant then proceeded to distinguish the defendant from other types of sex offenders, to which such conditions may be required: If this was a sex offender before the Court who had a history of grooming people, children on line, or meeting people on Tinder and then committing sexual offences, there would be less weight to any objection to these conditions. But this is a man who is living in a retirement village with his mother, no indication during the period of the currency of the interim supervision order there has been any difficulty whatsoever with internet or access to the internet or any efforts at grooming or anything of that kind. 1. As to that submission, I note the findings of Button J at the preliminary hearing (at [43]-[44]): [43] The final conditions that were in dispute pertained to monitoring of access by the defendant to the internet, and his use of other electronic communications. The point was soundly made by counsel for the defendant that neither the internet, nor mobile phones, nor any other electronic or digital device or method of communication were part of the sexual offending of the defendant. [44] So much may be accepted. But at the time of at least some of that sexual offending, mobile phones were not widely available, and the internet was in its infancy. Quite apart from that, regrettably, over many years, by way of his offending against property, the defendant has shown himself to be a chronically dishonest and untrustworthy person. At least for the period of the ISO that I will impose, I consider that restriction and monitoring of his use of the internet and other forms of electronic communication are indeed appropriate. 1. The State, in this respect, primarily contented that such conditions provide "a measure of oversight in relation to who he is communicating with, perhaps for the purposes of monitoring his substance use disorder, should he re-engage with selling drugs as he did in 2011". 2. On balance, I find that it is appropriate to impose these condition in the terms proposed by the State and without further modification. Whilst accepting the defendant did not previously have access to internet at the time of his offending, I reach this decision having regard to the scope, purpose and objects of the Act, and find it is appropriate to impose such conditions, particularly as a form of oversight in light of the remarks of Button J at the preliminary hearing and the submissions of the State, so as to address the risk of future sexual offending. Duration 1. As to duration, the State submitted that the appropriate period for an extended supervision order is 3 years. This was supported by the aforementioned evidence of nature and extent of the defendant's past offending, identification of the risk of further offending, and the defendant's antisocial personality disorder. 2. I turn firstly to the opinion expressed by the court appointed experts. Dr O'Dea supported an extended supervision order for a duration of 3 years, which "should be regularly monitored, reviewed and modified as appropriate every 6 to 12 months, dependent on his progress". He considered that the defendant required management and supervision in the long term and also commented that the proposed conditions and anticipated plans in the Risk Management Report would address the defendant's risk of further serious sex offending. 3. In contrast, Dr Seidler opined that supervision for 3 years was unnecessary with respect to the defendant's risk of sexual recidivism and opined that the duration could be reduced to 12 months. It may be noted, Dr Seidler commented that, if an extended supervision order was addressing "general risk" then a duration of 3 years would be justified in the light of the defendant's "antisociality and... institutionalisation". Thus, Dr Seidler considered supervision of moderate intensity would manage the defendant's risk "although [the defendant] may need greater intervention and active management in relation to his general criminal risk". 4. Mr Ardasinski opined that the defendant would benefit from "ongoing supervision and professional support" and "the long-term aim would be to foster problem-solving and stress-coping abilities in [the defendant] such that he no longer requires the assistance of external bodies to contain his risk of sexual or other offending". He did not express an opinion as to the specific length of either supervision or support. 5. As to duration, the defendant made the following submission: [I]f the Court was satisfied to the relevant threshold in being so satisfied, the Court might just be over the line, or the Court might be very far over the line. If the Court is very far over the line, that might extend to a longer order. If the Court is just over the line, noting the age of this defendant, the obvious health issues, even though they are not particularised in any greater way, the Court in my submission would err towards the lesser period. 1. The State submitted it is difficult to reconcile the opinion of Dr Seidler, in this respect, given the defendant's antisocial personality disorder, which according to Dr Seidler, was the dynamic risk factor that leads him to commit serious sex offences. 2. The State also submitted that the opinion of Dr Seidler exceeded the scope of her appointment: "[w]hat Dr Seidler was appointed to assist the court with was an assessment of his risk, not how that should be dealt with in terms of time, and that's why it's often a legal question". 3. Counsel for the State maintained that "there is an ability for the defendant to seek a variation or a revocation under s 13 and then to put before the court why the ESO is no longer necessary because of a change in circumstances, but for your Honour to shorten the duration on the possibility that that risk may change is inviting speculation on the fluctuation of risk, whereas at this stage your Honour is just being invited to consider the risk upon the evidence before the court". In reply to the State's contentions, with respect to the capacity for an order to be varied by a mechanism of the Act, the defendant submitted: "That potential option for the defendant within the legislative regime does not in any way facilitate the Court getting over the relevant threshold in terms of whether or not an order should be made and if the Court does get over that threshold, then it gets over it either just, comfortably or incredibly comfortably". It does not assist. 4. In light of the evidence before the Court, I consider the appropriate period for an extended supervision order to be that proposed by the State. The order, therefore, should be made for 3 years. In the event that medical evidence emerges as to the nature, extent and duration of any physical afflictions of the defendant that would shed further light on the nature and extent of the risk and, in particular, the appropriate duration for supervision, then an application for variation may be made by the defendant. CONCLUSION 1. The orders made and entered with respect to this matter on 10 December 2018 were made for the foregoing reasons. ********** Annexure_A (397 KB, pdf) 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: 07 February 2019