Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Aravena [2019] NSWSC 1912 Hearing dates: 19 February, 13 May 2019 Date of orders: 13 May 2019 Decision date: 13 May 2019 Jurisdiction: Common Law Before: Rothman J Decision: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant shall be subject to an Extended Supervision Order for a period of 3 years; 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act, the defendant is directed for the period of the Extended Supervision Order to comply with the Conditions as set out in Schedule A to the Extended Supervision Order; 3. An order that access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Catchwords: HIGH RISK OFFENDER – Application for ESO – agreement on making of order – Court still needs to be satisfied of jurisdiction – ESO made – 3 year duration – resolution of issues between parties as to terms of certain Conditions Legislation Cited: Crimes (High-Risk Offenders) Act 2006 (NSW), ss 4A, 5(1)(a1), 5B(d), 5D, 5I, 6, 7, 9, 10A, 11, 15(4), 17(4) Cases Cited: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Lidster [2020] NSWSC 275 State of New South Wales v Thurston [2018] NSWSC 41 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Alexander Aravena (Defendant) Representation: Counsel: J Emmett (Plaintiff) Z Khan (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/357889 Publication restriction: Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Judgment 1. HIS HONOUR: On 19 February 2019, the Court, as presently constituted, issued an Interim Supervision Order (hereinafter "ISO") and delivered ex tempore reasons for same. On 13 May 2019, the matter returned to the Court for the purpose of making an Extended Supervision Order (hereinafter "ESO"). On that date, an ESO was made, effective from that date for a period of three years. 2. The Court prescribed conditions pursuant to the terms of s 11 of the Crimes (High-Risk Offenders) Act 2006 (NSW) (hereinafter "the Act") which bound the defendant, Alexander Aravena, for the period of the ESO. There was significant agreement between the parties as to the conditions to be applied and the State of New South Wales, being the plaintiff, handed up a Second Further Amended Schedule A (MFI 2) which set out the areas of agreement and those matters that were the subject of discussion. The Court, ex tempore, dealt with each of the conditions that were not otherwise agreed and imposed the orders, as earlier stated, operating from 13 May 2019. 3. At the time, the Court reserved its formal reasons and a draft of said reasons was prepared, but, due to administrative oversight, never published. Those reasons were short and have now been revised, once the Court was made aware that the reasons for judgment had not been published. 4. On 19 February 2019, the Court issued reasons, ex tempore, in the following terms: "Before the Court is an application by the State of New South Wales seeking by summons an Extended Supervision Order (hereinafter "ESO") for a period of 3 years against the defendant Mr Alexander Aravena under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter "the Act"). The plaintiff seeks, prior to the making of an ESO, an Interim Supervision Order (hereinafter "ISO"), for 28 days operating from the date of the expiry of the defendant's current custody which is 12 March 2019 pursuant to s 10A of the Act. The summons seeks and sets out conditions of supervision that the plaintiff seeks to be applicable under the ISO, which conditions have been amended following discussion between the parties. I congratulate both the State and the defendant for the level of cooperation that existed and exists, and for the manner in which both the submissions have been dealt with, and indeed, the issue of the conditions have been dealt with. On the basis of the amendment to the conditions contained in the schedule, and now handed to the Court, and perhaps as a matter of caution marked for identification '1' in the proceedings, there is no opposition by the defendant to the making of an interim supervision order in those terms and with those conditions. It is necessary nevertheless for the Court to be satisfied, given the nature of these orders, of the jurisdictional substratum that gives rise to the making of an order. The Court must necessarily consider and be satisfied that the making of an ESO pursuant to s 7(4) of the Act would be warranted, if all the matters that are alleged for the purposes of the ISO were proved. The principles applying in relation to the grant of an ISO were discussed by the Court in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57; State of New South Wales v Banks [2016] NSWSC 926; State of New South Wales v Thurston [2017] NSWSC 1760 at [14] – [20]. I apply those principles. The defendant is a 48 year-old man, with a history of offending including sex offences. He is currently serving a sentence of 5 years' imprisonment for one count of recklessly inflicting grievous bodily harm with intent to have sexual intercourse, contrary to the provisions of s 61(a) of the Crimes Act 1900 (NSW). That offence occurred in 2014. As earlier stated, he is due to be released from custody on 12 March 2019. The foregoing offence under s 61K of the Crimes Act is the index offence upon which the State relies in relation to the making of an ESO and necessarily an ISO. The plaintiff, according to material now before the Court, shows that the defendant has not received any or any satisfactory treatment in relation to the sex offences or sex offence, and that the sex offending is a relatively recent occurrence. It submits that ongoing supervision and treatment is needed to treat the risk which it submits is unacceptable. The plaintiff relies on a number of exhibits; exhibits JP1-1 and JP1-2 and JP2 have been tendered in the proceedings. They include a risk assessment report by Mr Ardanski, a senior psychologist at the Senior Offenders Assessment Unit. Mr Ardanski, albeit given the limitations of an assessment of this kind at this point in time, assesses the defendant as posing a high risk of future sexual offending, based on actuarial measures of risk, including, and especially, statistical measures, which, as I have said in previous judgments relating to these matters, have serious limitations. However, Mr Ardanski also goes on to say that the future risk of sexual offending would be ameliorated by ongoing community supervision as well as by participation in community based programs. I accept that assessment for present purposes. There is also a risk assessment report or risk management report by a community directions officer Ms Ottaway of 2 October 2018, which assesses the risk of sexual reoffending at moderate to high, and general reoffending at high risk. It also specifies the risk to be managed to be substance abuse, increasing sexual preoccupation, reoccupation with pornography, sexual entitlement, lack of interpersonal intimacy skills, hostility towards women, and other factors. Exhibit JP2 includes an inmate profile, a conviction, sentence and appeals report, which the Court takes into account in dealing with the matters now before it. I have no doubt at this point in time on the material before the Court, at least assuming for present purposes that the matters alleged are proved, that the defendant's status is such that the preconditions of a statutory kind necessary for the making of an interim supervision order have been satisfied, and that the material that has been relied upon by the State of New South Wales would, again if proved, warrant the making of an extended supervision order. It is noteworthy that the defendant's sexual offending has escalated; the index offence was committed during the parole period, and I take that into account in dealing with whether or not the risk is unacceptable in the absence of amelioration by the conditions associated with an interim supervision order and/or extended supervision order. As earlier stated, the defendant does have convictions prior to the index offence. He has been convicted relevantly of a number of violent offences but in particular with indecent assault in 2012. The purpose of an order in relation to this Act is not punitive. The Court possesses a discretion not to make an order, even though there be an unacceptable risk, given a balance between the nature of the order and conditions that are prescribed, and the risk that may otherwise be disclosed. Nevertheless, bearing in mind that exercise, it seems on the material before the Court that it is appropriate for an order to issue. One other matter, I will make comment about, and that is that Pt D of the conditions relates to employment, finance and education. As I understand the attitude of the State of New South Wales, those conditions are not intended as a form of conscription. Rather, it emphasises the importance, in the rehabilitation process, of worthwhile and appropriate employment, and on that basis, that condition is not the subject of criticism by the Court, and can be a subject of conditions in the ISO that I now make. The Court will issue orders to the effect of an ISO on the defendant on the conditions handed up and marked for identification '1' in the proceedings." 1. As can be seen from the foregoing, there was no opposition to the issuing of an ISO on 19 February 2019. Similarly, there was no opposition to the issuing of an ESO on 13 May 2019. 2. The principles on the issue of an ESO have been rehearsed on many occasions (see for example State of New South Wales v Lidster [2020] NSWSC 275, and, in particular, [9]-[30]) and were outlined, albeit in brief, at the ISO stage. The Court has made it clear that the function of the Court is to determine whether, pursuant to the provisions of s 7 of the Act, the Court is in a position to satisfy itself of the preconditions for the making of an order. As grateful as the Court is for the degree of cooperation between the parties and the level of agreement, the Court must nevertheless satisfy itself of the preconditions. 3. Those preconditions include that the defendant is a "supervised offender" as defined in s 5I of the Act and that the application was made in time, in accordance with s 6 of the Act. The Court relies upon that which it has recited in its reasons for judgment on the making of the ISO. 4. For obvious reasons, associated with the test established by s 10A of the Act, the Court must be satisfied that the preconditions for an ESO have been made out in order to make an ISO. It continues to be satisfied of those factors and does not repeat the analysis undertaken for the purpose of making the ISO. 5. The Court also relies upon the analysis of the circumstances of the defendant and the nature of the offence, which the State utilises as the index offence for the purposes of the making of the ESO. 6. Fundamentally, the Court must have regard to those matters prescribed by s 9 of the Act in determining whether it should, pursuant to s 9(1) of the Act, make an ESO. As noted at the time that the ISO issued, some of the matters to which the legislature refers in s 9(3) of the Act are unavailable at the time that an ISO issues. Nevertheless, some preliminary assessments were before the Court at that time, but the reports of the qualified psychiatrist or psychologists, ordered by the Court at the time that the ISO issued, were not. 7. Since that time, those reports have come before the Court. Before dealing with the reports in question, it is important to note the basis upon which the Court imposes an ESO. 8. First, the jurisdiction of the Court depends upon the satisfaction of the Court that the defendant "poses an unacceptable risk of committing another serious offence if not kept under supervision": s 5B(d) of the Act. The satisfaction of the Court must be to "a high degree of probability" (s 5B(d) of the Act) but the Court is not required to determine that the risk is more likely than not, in order to determine that there is an unacceptable risk: s 5D of the Act: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57; State of New South Wales v Thurston [2018] NSWSC 41. 9. The determination of whether a defendant poses an unacceptable risk does not involve the exercise of discretion. It is an evaluative task in which the Court considers a number of factors. 10. The determination involves an evaluation of the probability that the risk will manifest and, related thereto, the harm that will ensue if it does manifest. As a consequence of the foregoing, an insignificant risk that a further serious offence may occur is not a risk with which the Court should be concerned, but, once the risk is not insignificant, the Court is required to look at whether the result would involve serious harm. 11. The Court must then determine whether, bearing in mind the foregoing exercise, the defendant poses an unacceptable risk. In other words, the Court evaluates the risk of further serious offending and the harm that would be occasioned by further offending to determine whether the risk is "unacceptable". In so doing, constraints on the liberty of the defendant are not considered, notwithstanding the extraordinary nature of the jurisdiction that is exercised. 12. Notwithstanding that the constraints on the liberty of the defendant are not factored into the determination of whether an unacceptable risk arises, those constraints may be a matter that the Court considers, and the Court should consider, in determining whether, pursuant to the terms of s 9(1) of the Act, the Court exercises its discretion and makes an ESO or dismisses the application. While the Court is capable of taking into account, and should take into account, the constraints on the liberty of the defendant, the primary and paramount consideration in the exercise of its discretion under s 9(1) of the Act, is the safety of the community. 13. The Court is required to take into account those matters prescribed by s 17(4) of the Act in determining whether or not to make an ESO. The Court, as presently constituted, does not repeat each of those conditions. 14. Nevertheless, I now have reports from the persons appointed under s 15(4) of the Act to conduct examinations on the defendant. Before dealing with those reports, it is sufficient for the Court to note that the Court continues to be satisfied that the defendant is an "offender" within the meaning of s 4A of the Act in relation to the index offence, for which he was convicted on 5 September 2014 in the District Court. The offence is a serious sex offence (see s 5(1)(a1) of the Act). 15. At the time that the application for an ESO was filed, the defendant was subject to parole for the index offence. That parole expired on 12 March 2019. As a consequence of the foregoing, the defendant is a "supervised offender", within the meaning of s 5I(2)(a)(i) of the Act. 16. Further, the ESO application was made within time, being within nine months of the expiration of the current supervision and, accordingly, the technical preconditions have been met for the making of an ESO. 17. The Court has before it a report of Dr Andrew Ellis, psychiatrist, dated 4 April 2019 which is the result of Dr Ellis' interview of the defendant on 22 March 2019. It is unnecessary to deal with a number of the preliminary matters or historical matters to which Dr Ellis refers. 18. It is sufficient to note that there was medication for insomnia; the holding of a number of part-time jobs while on parole; the use of alcohol since the age of 12; the heaviest year for the consumption of alcohol was 2004; the use of heroin between 1993 and 1999; experimentation with cannabis and ecstasy; and the defendant had no memory of the 2006 offence. The defendant's description to Dr Ellis of the index offence was at odds with the Court's findings in relation to that offending. 19. After noting the limitations associated with static assessment tools, Dr Ellis noted that the defendant scored in the well-above average risk category and identified the features of the offending in 2006 and the index offence as matters that raised potential for deviant sexual arousal and physical coercion. Dr Ellis also noted that the defendant has poor insight into the motivations for offending and this has led to limited cooperation in treatment and rehabilitation. Dr Ellis also made clear that employment, on its own, was an insufficient protective factor, given the poor self-awareness and difficulties with stress and coping. 20. Dr Ellis also noted antisocial personality orientation as another risk factor. Dr Ellis considered that each of the proposed conditions under s 11 were "necessary and desirable" from a clinical perspective. 21. Dr Katie Seidler, psychologist, assessed the defendant on 28 March 2019, after a lengthy interview. She found the defendant dismissive at times and had not been offered the usual treatment for sexual offenders until shortly before his parole, so that course, CUBIT, had not been completed. 22. Similar issues, as were raised by Dr Ellis, were noted by Dr Seidler, although certain issues relating to schooling were given greater weight by Dr Seidler. She also noted the lack of social life due to the monitoring and supervision that he was undergoing. She referred to his previous intimate relationships and the report noted that he had, seemingly, been a selfish partner with limited capacity for intimacy. 23. Dr Seidler considered that the defendant's account of his offending was "limited in terms of responsibility, empathy and insight". She also considered that the defendant's "sexually abusive behaviour is a function of his entitled attitudes in relation to sex, in addition to his sexual desire for sexual encounters with strangers". She considered that particularly dangerous. 24. Dr Seidler also dealt with static assessment and the Risk of Sexual Violence Protocol and the dynamic risk factors. Taking into account all those issues, including his clinical history, Dr Seidler was of the opinion that the defendant posed a moderate to high risk of sexual re-offending, compared to other sexual offenders. She considered the defendant had adjustment disorder with anxiety and presented traits of antisocial personality disorder. Dr Seidler took the view that the risk scenario was greatest in situations similar to the defendant's previous sexual offending. 25. For the reasons set out by the plaintiff in its written submissions at [6], together with the reports of Dr Ellis and Dr Seidler, the Court is of the view that the defendant poses an unacceptable risk of serious sexual reoffending in a serious sex offence and that an ESO should issue. 26. I discussed with the parties during the course of the proceedings the respective issues between them as to certain conditions. The Court was concerned to ensure an appropriate set of conditions that would sufficiently ameliorate the risk that I have found is unacceptable, bearing in mind that the paramount concern of the Court is the safety of the community. 27. Within that paramount parameter, the Court is mindful that it should prescribe conditions that allow the defendant to undertake rehabilitation and, otherwise, live as normal a life as possible. The conditions that were in dispute were Conditions 5, 6, 7, 12, 17, 21, 48 and 49. 28. During the course of the proceedings there was significant refinement and an even greater degree of consensus. I consider that the defendant's attitude disclosed a greater self-awareness than seems to have been the position during the expert interviews. This gives the Court some greater confidence in the amelioration of the risk by overly burdensome conditions. I congratulate the parties in that regard and, particularly, the defendant, who was, necessarily, required to provide instructions. 29. Remaining issues related, to some extent, to minor aspects, which were the subject of discussion during proceedings. The terms of the conditions relating to the weekly schedule were amended to clarify that the condition related to locations rather than timing, which was the subject of some amendment by the Court. I altered the wording of Conditions 5, 6 and 7 to reflect that understanding. 30. The remaining issue in Condition 11 was the curfew of 9:00 pm, which the defendant sought to amend to 10:00 pm. I consider there is merit in much submitted on behalf of the defendant. The order I will make will extend the curfew to 10:00 pm, if the defendant is in the company of his partner. It will also accommodate the working of overtime or an additional shift unless the employment is expressly approved only for daylight hours. Otherwise, the curfew will remain at 9:00 pm. 31. The terms of Condition 8 will also reflect the capacity of the defendant to work overtime or an additional shift and will be amended accordingly. 32. Condition 13 will, with some minor amendments, reflect the defendant's proposal and require the DSO's refusal of approval to be on reasonable grounds, which, on request, will be conveyed, to the defendant. 33. I turn then to Condition 18 as proposed in MFI 2. Again, this will require the DSO to act reasonably. In other words, the grounds for prohibition of attendance at a particular place or activity will need to be on reasonable grounds, which, if requested by the defendant, will be provided to him in writing either at the time of the direction or as soon as practicable after the request. 34. Next, the terms of Condition 21, where second appearing, dealing with directions of the DSO prohibiting jobs or courses, are agreed, for which the parties, once more, are to be congratulated. Again, it will implement the requirement for reasonableness on the part of the DSO. Over and above the agreed version, I intend to place a time on the provision of reasons by the DSO, being at the time of the notification or as soon as practicable thereafter. 35. The only remaining issues relate to Conditions in respect of medical treatment and medication, being, fundamentally, Conditions 47, 48 and 49. I have formed the view that the defendant should not be compelled to undertake unreasonable and unmanageable costs. 36. Further, the requirement to take medication prescribed for relevant issues or conditions should also apply to medication that has an effect on such issues or conditions, even though the purpose of the latter medication may be different. Similarly, the requirement in Condition 49 to notify his DSO within 24 hours of cessation of relevant medication, should clarify that medication, which addresses the issues or conditions specified, or may have an effect on the specified conditions or states, is required to be notified. 37. Otherwise, for the reasons adumbrated during the proceedings, the duration of the ESO should be three (3) years. Those reasons include that the advice of each of the appointed experts suggest that period as reasonable for the purpose of ameliorating the risk and achieving rehabilitation. 38. For the foregoing reasons, orders were made on 13 May 2019, which orders were entered on 15 May 2019. ********** 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: 24 April 2020