Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Jones (Final) [2020] NSWSC 461 Hearing dates: 7 April 2020 Decision date: 29 April 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) Pursuant to s 17(1b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be the subject of a continuing detention order for a period of 1 year to date from 29 April 2020. (2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court to issue a warrant for the committal of the defendant to a correctional centre for a period of 1 year. (3) Access to the Supreme 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 of access. Catchwords: HIGH RISK OFFENDER – final hearing – application for continuing detention order or extended supervision order – interim supervision order previously made – whether unacceptable risk of committing another serious sexual offence – whether sufficient resources to maintain high level of supervision in the community – continuing detention order imposed Legislation Cited: 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] NSWCA 57 State of New South Wales v Donovan [2015] NSWCA 280 State of New South Wales v Jones [2018] NSWSC 459 State of New South Wales v Jones [2020] NSWSC 51 State of New South Wales v Lynn [2015] NSWSC 665 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Michael David Jones (Defendant) Representation: Counsel: D New (Plaintiff) E Kerkyasharian; R El-Choufani (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/331867 Judgment 1. HIS HONOUR: The State of New South Wales ("the plaintiff") commenced proceedings by summons filed on 23 October 2019 against the defendant, Michael Jones, seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The summons sought orders that two qualified psychiatrists and/or psychologists be appointed to separately examine the defendant and furnish reports to the Court, that he be ordered to attend the examinations, and that he be subject to either an interim detention order ("IDO") or, alternatively, an interim supervision order ("ISO") for a period of 28 days. By way of final relief, the summons sought a continuing detention order ("CDO") for a period of two years, or alternatively, an extended supervision order ("ESO") for a period of five years. Finally, the summons sought an order that access only be granted to the Court's file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard. 2. A schedule to the summons sets out proposed conditions of supervision, should the court determine that an ESO is the appropriate order. At the hearing of this matter, which occurred on 7 April 2020, the plaintiff was granted leave to file an amended summons, the only amendments being to the proposed conditions of supervision. The recent court history of the matter 1. The defendant has a criminal history involving paedophilic offences against boys. On 16 April 2018, N Adams J made an order that the defendant be subject to a CDO for a period of 12 months, commencing on that date and expiring on 15 April 2019: State of New South Wales v Jones [2018] NSWSC 459 ("N Adams J's 2018 judgment"). However, whilst still subject to the CDO, the defendant was convicted on 8 February 2019 of two counts of production and possession of child abuse material contrary to s 91H of the Crimes Act 1900 (NSW). The defendant was sentenced to a total sentence of 2 years imprisonment, expiring on 8 June 2020, with a non-parole period of 18 months. He became eligible for parole on 8 December 2019. 2. On 23 October 2019, the plaintiff filed the summons that is the subject of these proceedings. The interim orders that were sought regarding the appointment of psychiatrists and/or psychologists were determined by Walton J, and an ex-tempore judgment was delivered on 6 December 2019, with his Honour making those orders. His Honour was also satisfied, taking the material before him at its highest, that an ESO was warranted. However, the State Parole Authority ("SPA") had declined to grant the defendant parole, so the need for an IDO or ISO did not arise at the time. 3. On 31 January 2020, the SPA granted the defendant parole, ordering that he be released no later than 4:00pm the following day, being 1 February 2020. On the same day, the plaintiff filed a notice of motion seeking an order that the defendant be subject to an IDO or ISO commencing on that date for a period of 28 days. Also on the same day, R A Hulme J, sitting as Duty Judge, made an order for an ISO for a period of seven days. The conditions of the ISO were modified on 3 February 2020. 4. On 7 February 2020, I heard the notice of motion. I imposed an ISO for a period of 28 days, commencing on that date and expiring on 6 March 2020: State of New South Wales v Jones [2020] NSWSC 51. On 4 March 2020, the defendant's ISO was renewed by Bellew J for a period of 28 days commencing on 5 March 2020. On 31 March 2020, Bellew J made orders renewing the ISO for a further period of 28 days, commencing on 2 April 2020. That period expires on 30 April 2020. Background to the application 1. The defendant was born in 1965 and is aged 55. Court and forensic reports that detail or summarise the defendant's relevant background are to the following effect. 2. The defendant was born in Belfast, Northern Ireland, the second of four children, and brought up in a strict Catholic household. The family moved between Belfast, England and Australia during his childhood due to his father's employment, before they settled in Australia in 1977. The defendant commenced high school in Sydney. The defendant describes a close relationship with his mother and two sisters, and a difficult relationship with his brother. His father was frequently away for work. His parents are both now deceased. He currently has little contact with his family, apart from one sister. 3. The defendant claims that, at the age of 9, while the family were living in England, he was riding his bicycle along a deserted lane when he was pulled off by a stranger and sexually assaulted. The defendant has described the incident as being traumatic. 4. In 1981, at the age of 16, the defendant joined the Royal Australian Air Force ("RAAF") after completing his year 10 studies. He was based in Wagga Wagga, where he completed an apprenticeship and was then deployed to work as an aviation technician at the RAAF base in Richmond, New South Wales. He also claimed to have been deployed to Cambodia as part of a UN peacekeeping force. He left the RAAF after being convicted of his first offences. 5. The defendant was also employed with St John's Ambulance for a period of time, and as a security officer for a period of two years until 2001, when he was charged with further offences. Since then, he has not been employed. 6. The defendant has had few friendships or romantic relationships. He has reported some difficulties in forming friendships and most of his sexual relationships have been brief. 7. The defendant has reported no history of drug or alcohol abuse. He has not smoked cigarettes or used illicit substances before, and has not consumed alcohol for many years. 8. The defendant sought psychiatric assistance from Justice Health while in custody, and was diagnosed with depression. He was prescribed antidepressant medication. He also has a history of attempted suicide. The defendant's criminal history pre-dating the index offence 1. Between 1987 and 1988, the defendant committed child sexual assault offences in NSW against five male victims between 13 and 16 years of age. The defendant was aged between 22 to 23 years at the time. The offending occurred while the defendant was a member of the RAAF and a Scout Leader of the victims with the local Boy Scout group. The defendant groomed the boys by taking them on camping trips, having sexual discussions with them and showing them pornographic material. The nature of the offences involved touching the victims' penises, performing oral sex on them or engaging in mutual oral sex. Police executed a search warrant on the defendant's premises and seized a computer printout of a diary which contained detailed entries of the defendant's sexual activities with the victims. The defendant was sentenced on 29 November 1991 to 7 years imprisonment with a non-parole period of 4 years. 2. The defendant was released to parole on 28 November 1995. His parole was revoked on 5 June 1997 because he groomed a 14-year-old boy while he was employed with St John's Ambulance. The defendant was aware that the boy had been abused by his father. 3. In May 1998, while in custody, the defendant was found with a list of internet addresses to child pornography websites. The defendant's sentence expired on 28 November 1998, and he was released unconditionally. On 7 March 2001, the defendant received a suspended sentence in Brisbane District Court of 3 years for acts of indecency and wilful exposure to a 16-year-old boy that occurred in 1989 and 1990. 4. On 10 September 2004, following his conviction at trial, the defendant was sentenced to 14 years imprisonment with a 9 year non-parole period for two charges of persistent sexual abuse of two brothers, aged 11 and 14 years, and one charge of publishing child pornography. The offences occurred over a period of nine months between 1999 and 2000, when the defendant was aged 34 and 35. The defendant had befriended the victims and their parents while they were staying at a hotel where the defendant resided. The offences were discovered when authorities in the United States of America alerted the Australian Federal Police that offensive material was being transmitted over the internet, which was associated with an email address linked to the defendant. Two hard disks and a CD that was seized from the defendant's address were found to contain 588 photographs involving the two boys performing various sexual acts. His computer, when forensically examined, was found to contain diary entries setting out in graphic detail the seduction of the two boys. 5. On 22 April 2005, the defendant was sentenced in the District Court to 2 years imprisonment to expire on 6 January 2015, with a non-parole period of 15 months to expire on 6 April 2014 for two counts of break, enter and steal and one count of obtaining money by deception. 6. On 16 December 2008, while in custody, the defendant wrote coded letters listing boys and girls aged seven and eight years old who "enjoyed" sexual acts. On 7 July 2011, the defendant was found in possession of magazine cut-outs of children. On 11 April 2017, the defendant was released to parole. The following month, he was issued a direction not to access the internet and prohibiting him from accessing social media applications or websites. The defendant repeatedly breached these conditions, re-installing Facebook on his mobile phone, and using it to communicate with three 15-year-old boys. In subsequent discussions with the defendant's Community Corrections Officer, he admitted that he had been accessing Facebook from his sister's residence. The index offence and subsequent history 1. On 9 June 2018, whilst subject to the CDO ordered by N Adams J on 16 April 2018, the defendant was charged with the offence for which he was convicted on 8 February 2019, again involving the production and possession of child abuse material. The defendant had created a diary detailing narratives of sexual offending against young boys, including anal penetration and group sex with boys aged between 8 and 14, including some that he had carried out and for which he had been convicted. As noted earlier, the sentence imposed for those offences expires on 8 June 2020. His non-parole period of 18 months expired on 8 December 2019. 2. On 3 January 2020, police allegedly seized over 800 A4 pages of handwritten material from the defendant's prison cell. 3. On 31 January 2020, while this application was pending, the defendant was granted parole by the SPA and released the following day. On 31 January 2020, the State of New South Wales filed a notice of motion seeking an order that the defendant be subject to an IDO, alternatively, an ISO commencing on that date for a period of 28 days. On 1 February 2020, further material, including individual pages of material and two diaries, were found in the defendant's possession. It is alleged that part of the material makes reference to a number of schools, including primary schools. During a search of his possessions on that date, a cut-out picture of a choirboy was found within the pages of a magazine, having been placed there. He also had cut-outs of children at inter-school sporting events. 4. The notice of motion came before me for hearing on 7 February 2020. The defendant had been residing at a Corrective Services Integrated Support Centre ("ISC") since 1 February 2020. I ordered that the defendant be subject to an ISO with strict conditions, including that he not leave the ISC unaccompanied, unless with the approval of a Departmental Services Officer (DSO). 5. On 3 April 2020, consequent to the material allegedly seized from his cell on 3 January 2020, the defendant was arrested and charged with producing and possessing child abuse material, in the form of a handwritten novel. According to the police facts, the main character is an adult named Michael who is a federal agent and a teacher at a boarding school. The material refers to persistent and relentless sexual abuse of boys through acts of oral and anal sexual intercourse and indecent assaults. In some instances, the main character offends against multiple boys at once. He portrays himself as the protector of abused children that have been gang raped by adults. The relevant law 1. There are certain preliminary statutory requirements for an application for a CDO. Section 5C of the Act states: "5C Making of continuing detention orders—unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention 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 detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order." 1. The defendant does not dispute that the plaintiff's application is in accordance with the requirements of ss 5C(a), (b) and (c), and I so find. The defendant is over 18 years old, he has been sentenced to imprisonment for "serious sex offences" as defined in the Act, and when the application for the imposition of the CDO was filed, the defendant was a "detained offender" in custody for an offence of a sexual nature, coming within the definition in s 13B(2)(a)(ii) of the Act. 2. Section 14 of the Act provides that an application for a CDO must be supported by documentation that addresses each of the matters set out in s 17(4) of the Act. Those matters include a report prepared by Corrective Services New South Wales ("Corrective Services"), commonly known as a Risk Management Report, that considers "the extent to which the offender can reasonably and practicably be managed in the community": s 17(4)(d1). The application must also include a forensic report assessing the likelihood of the offender committing a "further serious offence" (commonly known as a Risk Assessment Report): s 14(3)(b). The definition of "serious offence" in s 4 means a serious sex offence or a serious violence offence. 3. This leaves the key provision of s 5C(d) for consideration, namely, whether the court "is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept in detention under the order". Section 5D provides that the court is not required to determine that the risk of an offender committing a serious offence is "more likely than not", in order to determine that there is an "unacceptable risk" of the person committing such an offence. 4. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, at [43], Harrison J observed: "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." 1. The gravity of the consequences of a breach of an ISO or ESO condition has been recognised in other formulations as a factor that, even if the likelihood is low, may nevertheless constitute an unacceptable risk: see, for example, Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [142], citing with approval a passage from State of New South Wales v Lynn [2015] NSWSC 665 in which Hidden J, referring to the pre-amendment counterparts to the current provisions at s 5C(d) and s 5D, observed, at [68]: "In my view, the relationship between the two subsections is explained by the authorities to which Davies J referred in Richardson [State of New South Wales v Richardson (No 2) (2010) 210 A Crim R 220; [2011] NSWSC 276], particularly in the passage from the judgment of RA Hulme J in Thomas [State of New South Wales v Thomas [2011] NSWSC 118] at [15]-[20] set out above. Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence. As RA Hulme J put it, that risk may be less than likely but still be unacceptable. What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind." 1. Section 17(2) of the Act provides that, "[i]n determining whether or not to make a CDO, the safety of the community must be the paramount consideration", consistently with the stated primary object of the Act in s 3(1), which is "to ensure the safety and protection of the community". A secondary object of the Act, as provided in s 3(2), is to encourage offenders who come within the Act "to undertake rehabilitation". 2. The amendments to the Act removed an express requirement that, before the court could make a CDO, it had to be satisfied that adequate supervision would not be provided by an ESO, which was interpreted to mean the particular ESO that was proposed as an alternative to the CDO: State of New South Wales v Donovan [2015] NSWCA 280 at [24]. Nevertheless, a consideration of whether an offender could be safely placed in the community under the auspices of an ESO generally remains a consideration. An application of s 17(2), that is, the safety of the community being the paramount consideration of the court, is an exercise that requires the court to contemplate the alternative to the imposition of a CDO, which inevitably is the defendant continuing to reside in the community. The terms of s 5C(d) also require the court to consider the alternative of release into the community which, as a matter of common sense, is with the benefit of available constraints and resources. As well, s 17(4) was amended to include the following matters that the court must take into account in determining whether to make a CDO or ESO: "(e1) if the offender is kept in custody or is in the community (whether or not under supervision)—any options available that might reduce the likelihood of the offender re- offending over time, (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order …" 1. Another amendment was the addition of s 17(5), which provides: "(5) In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences." 1. I note that the power to make a CDO in s 5C is discretionary. The court may make an order for a CDO if the four prerequisites are satisfied. The matters for consideration pursuant to s 17(4) of the Act Section 17(4)(b), (c) and (d): forensic reports 1. The determination of a CDO application requires forensic reports to be taken into account, in accordance with the following provisions: "17 Determination of application for continuing detention order … (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: … (b) the reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence." 1. On 6 December 2019, Walton J ordered that reports be prepared for the final hearing, pursuant to s 15(4) of the Act, by registered psychologists and/or qualified psychiatrists. The key findings of these reports are outlined. The psychologist's report 1. A report was obtained from Dr Marcelo Rodriguez, psychologist, which is dated 15 March 2020. He met with the defendant on 5 March 2020 and interviewed him for three hours. Dr Rodriguez was of the opinion that the defendant qualified for the diagnosis of paedophilic disorder. He stated: "This condition is permanent and relapsing if the conditions are present, such as opportunity when unsupervised with male children." 1. Dr Rodriguez commented that the defendant did not attempt to present in a positive light and provided a plausible history. However, the defendant did not provide details of his sexual offences, tended to leave out important aspects of his past behaviour and provide implausible explanations, such as that he did not derive sexual arousal during some of his offending. Dr Rodriguez concluded that the defendant's rigidity and denial of his offences were characteristic of a personality disorder. He said: "It is possible that such defence mechanisms were developed at a young age due to a traumatic past, such as being a victim of sexual assault at age 9. This condition is life-enduring, although with therapy it is modifiable, although change is not always possible." 1. Dr Rodriguez noted that the defendant gave a history of suffering a head injury, with a loss of consciousness, in 2016 and that he has not been neuro-psychologically tested. Dr Rodriguez said that the defendant manifested mild cognitive deficits associated with memory, and recommended neuroimaging and neuropsychological assessment, as cognitive deficits, particularly in executive function, could result in additional risk factors to offending. As well, an organic brain injury would be detrimental to likely treatment outcomes addressing his sex offending. 2. Dr Rodriguez noted that in 2014, the defendant completed a 10 month program for sex offenders, the Custody-Based Intensive Treatment program, known as CUBIT. His participation was deemed to have been superficial and the defendant had sexually re-offended afterwards. 3. Dr Rodriguez administered two risk assessment tests on the defendant, one being an assessment of static factors ("STATIC-99R") and the other of dynamic factors ("RSVP"). He concluded that, overall, the defendant falls into a group of offenders who are at a high risk for sexual re-offending. 4. Dr Rodriguez expressed the opinion that the defendant's risk of re-offending can be managed in the community. He said: "I do not believe that additional custodial sex offender treatment or further incarceration would be of additional benefit to [the defendant]. Further incarceration would result in further institutionalisation and serve little purpose of any chance that [the defendant] has of rehabilitation and, ultimately, a reduction of sexual recidivism." 1. Dr Rodriguez recommended an ESO for a period of five years, with comprehensive supervision and monitoring to prevent access to potential victims, after which time he should be reassessed for his risk of sexual re-offending. The psychiatrist's report 1. Dr Yolisha Singh, psychiatrist, prepared a report dated 16 March 2020. Dr Singh interviewed the defendant on 6 March 2020 for a period of approximately 1 hour and 45 minutes. 2. Dr Singh diagnosed the defendant as having a paedophilic disorder and a post-traumatic stress disorder, likely resulting from the sexual abuse perpetrated against him as a child, and combat experience while deployed in Cambodia as part of a UN peacekeeping force. She was also of the opinion that the defendant may have autism spectrum disorder and that he has some personality vulnerabilities and presents with traits of a narcissistic personality disorder. 3. Dr Singh considered that the defendant had poor insight into his paedophilia, as he did not express the view that his offending behaviour was wrong, but rather, said that he had failed to fulfil society's expectation. 4. Dr Singh decided against deploying a static risk assessment tool, expressing the view that in her opinion, they were of little utility as they have low to moderate positive predictive value. She administered the RSVP dynamic risk assessment tool and another tool that is designed to assess protective factors for violence, known as SAPROF, which is intended to be used in combination with a valid risk assessment tool to complement the assessment of the risk of future violent or sexually violent behaviour. The application of this tool disclosed that the defendant has a dearth of protective factors. She concluded that, overall, he falls into the high-risk category in terms of an elevated future risk of serious sexual re-offending. 5. Dr Singh declined to express a view as to whether the defendant could be managed in the community under an ESO, stating that it was a matter to be determined by the court. However, she noted that if he was subject to an ESO and if he was compliant with the conditions of such an order his likelihood of not re-offending would be enhanced, because it would allow him to continue to the next stage of the therapy being provided by his treating psychiatrist, Dr Parker. She expressed the opinion that the longer the period of time that a person can spend in the community without re-offending, the less likely he or she is to re-offend. In view of the defendant's history of breaching previous orders, his persistent offending whilst incarcerated and his pervasive deviant sexual interests and lack of insight into his offending behaviour, she was not confident that he would adhere to the conditions of an ESO. Equally, she considered that a CDO is unlikely to mitigate the defendant's risk of future offending beyond the period that the CDO is in place. 6. Dr Singh also considered that the defendant might benefit from an increase in his current antidepressant medication and that there may be merit in him trialling an anti-libidinal medication that suppresses testosterone. A report by his treating psychiatrist Section 17(4)(e): any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs Section 17(4)(e1): any options available that might reduce the likelihood of the offender re- offending over time 1. In the hearing of the plaintiff's notice of motion on 7 February 2020, I considered reports prepared by the defendant's treating psychiatrist, Dr Richard Parker. Dr Parker was also the author of a number of risk assessment reports concerning the defendant. The same reports have been tendered by the plaintiff on this hearing, and I repeat a paragraph from my earlier judgment in relation to those reports: "[16] Dr Parker has been providing treatment to the defendant since May 2018. By July 2019, he had seen the defendant on 39 occasions. The nature of the treatment that he has provided to the defendant has four stages, set out in a report by him dated 22 July 2019 at para 7. The first stage is identified as 'learning to pay attention to your thinking and reporting it objectively'. The second is 'learning the connection between your thinking and your behaviour (that is, which thoughts push particular behaviours)'. The third is 'developing alternative thinking that allows you to follow the law and feel good about that'. The final stage is 'practising that alternative thinking until you can do it when it counts'. For some time, Dr Parker has been of the view that the defendant has effectively completed the first two stages, but the latter two stages cannot be advanced until such time as he is returned to the community. In so saying, Dr Parker acknowledges that there is a risk of the defendant re-offending when he is ultimately returned to the community." 1. Dr Parker gave short evidence in the hearing of this matter, the effect of which was that he had read some of the material that is the subject of the current charges and believed that he had a good understanding of the nature of it. The charges had not changed his opinion that he supported the defendant being subject to an ESO. He said: "Q. And you are aware that some documents were found in his possession on 1 February when he went into the Campbelltown ISC? A. Yes, I am. Q. Do those developments change your opinion? A. No, the process that I am going through … the risk of offending really only produces right near the end of the process … when someone is competent it is step 3, it is … what, providers often talk about if someone is showing insight into their problems … and the problem with that … is that it is not enough to avoid re offending. What is needed to avoid re offending is a really well practiced script to deal with all the situations in the day-to-day moments so that I wouldn't expect his risk to reduce until he was quite competent in step 4, so until then the risk is basically unchanged. Q. But is it your view that the risk can be managed on an extended supervision order? A. The type of offending he does and taking the differences between the types of offences recently, so the produced child abuse material, I think for looking at specifically getting to a serious sexual offence in something involving contact with the child, the supervision mechanisms with an ESO, with … relatively tight conditions, would reduce the risk of that happening quite substantially, nothing can eliminate it. He may still do offences like produce child pornography and offences of a similar ilk, obviously the … process I am doing aims to reduce the risk of both of those occurrences, but I believe that a tight ESO with schedules of movement, electronic monitoring and arrangements, sensible conditions, would be able to contain the risk. It doesn't do anything for the long term, but the aim is … if we get him competent in step 4, then that reduce[s] the long term risk, but in the meantime, prior to that, the ongoing risk remains the same, but I believe an ESO can suppress the likelihood of further offences. Q. So to be clear, is it your view that you support an ESO? A. Yes, I do." A risk management report Section 17(4)(d1): report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community 1. The plaintiff has tendered an affidavit of Kelli Grabham, who is a member of the ESO team of Corrective Services, which was affirmed on 25 March 2020. In her affidavit, she sets out the logistical and resource demands that have been occasioned by the conditions of the ISO that I imposed. In order to ensure that the defendant is accompanied whenever he leaves his place of residence, two DSOs are required to be with him. She stated: "This is not a viable long-term solution but it has been implemented for the moment knowing that the ISO is a short-term order of 28 days or up to 3 months pending the final hearing. If an ESO were to be issued by the court, this level of supervision could not be maintained in the long-term." 1. Ms Grabham stated that the ISC does not provide ongoing long-term accommodation; a normal length of stay is for up to 3 months. The ESO team could not provide the current level of case management and risk reduction if and when the defendant enters independent accommodation, and he does not qualify for the high degree of support accommodation and living services which are available to prisoners who, for example, have a diagnosis of intellectual disability. She noted the limitations of electronic monitoring and scheduling conditions on a person living in independent accommodation, in particular its limitations in relation to opportunistic contact that may occur with children in the community. Finally, she notes that the ESO offenders who are residing in the community are generally only seen by DSO staff once a week. The defendant's level of compliance Section 17(4)(e2): whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order Section 17(4)(f): the level of the offender's compliance with any obligations to which he has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order Section 17(4)(g): the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 1. The defendant's history, as reviewed, discloses a poor history of compliance with the obligations of conditional liberty and, for that matter, compliance whilst in custody. Dr Parker, who has been the defendant's treating psychiatrist since May 2018, concedes that re-offending of the type of offence with which he is presently charged may still occur whether he is subject to a CDO or ESO, although with strict conditions attached to an ESO, offences involving contact with children are unlikely. However, I infer that the unlikelihood is contingent upon the conditions being so strict, at least until the therapy led to a significant improvement in his trustworthiness, that there would be no opportunity for him to commit such offences. The defendant's criminal history Section 17(4)(h): the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history Section 17(4)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender 1. As already noted, the defendant has an extensive criminal history of paedophilic offences, with a significant degree of consistency in their nature and level of seriousness. He has committed offences over a period of time of such as creating and possessing child abuse material and committing the most serious of sex acts on young children, including children who he knew to be vulnerable. It is suggested by Dr Singh and Dr Rodriguez that, as he ages, the defendant's risk of committing paedophilic offences may reduce. He is presently aged 55. The parties' submissions 1. The plaintiff submits that there are a number of factors that, in combination, lead to a conclusion that the defendant poses an unacceptable risk of committing a further serious sex offence unless detained. These factors are as follows: 1. The defendant's criminal history, including his pattern of offending in the community on parole and while in custody demonstrates that he is a determined child sex offender; 2. The forensic experts' diagnoses of the defendant's paedophilia and their assessments that he poses a high risk of sexual re-offending; 3. The defendant's superficial participation in the CUBIT program and the fact that he re-offended after completing program; and 4. The defendant's conduct on parole, in particular his disinclination to deal honestly and openly with his supervisors and to willingly comply with the obligations of an ESO. 1. Accordingly, with the safety of the community being the paramount consideration, the inevitable conclusion is that detention is the only measure that will contain the defendant's risk. 2. In oral submissions, the plaintiff placed emphasis on s 17(5) of the Act, which was added by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW). Counsel referred to the second reading speech in which the Attorney General, the Honourable Mark Speakman SC, noted that the objective of the amendments was to strengthen the test for deciding whether to impose a CDO: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273. The Attorney General said: "… the test will be reframed so that an offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised." 1. The defendant's submissions referred to the evidence to the effect that the defendant's treatment cannot progress further in custody. Dr Parker's therapy is at a point where the defendant needs to be residing in the community for his treatment to advance to the next stage. He noted that Dr Rodriguez supported the defendant's release for this reason and that all three experts were of the view that further incarceration will not reduce the defendant's risk of re-offending. Accordingly, the appropriate order is that the defendant be subject to a lengthy ESO. 2. The defendant referred to N Adams J's 2018 judgment, in which her Honour observed that the defendant could not be kept in custody indefinitely and that ultimately an ESO would best protect the community. 3. The defendant submitted that the evidence before the court in the form of file notes suggests that the defendant has demonstrated his ability to recognise his risk of offending and the factors that contribute to his offending. The defendant also referred to the fact that since the defendant was released to an ISO on 1 February 2020, there have been no reports of breaches of conditions, which is encouraging. 4. The defendant submitted that he is institutionalised, having spent 75 per cent of the last 28 years in prison and that a CDO would exacerbate that situation. 5. In relation to the report of Ms Grabham, the defendant submitted that the ISO is only a temporary solution to the issue of accommodation and therefore her concerns are of limited relevance. It was submitted that the accompaniment of the defendant by two DSOs was disproportionate to the level of risk that the defendant posed and therefore unnecessary, certainly in the long-term. Consideration 1. I note at the outset that the current charges against the defendant are not proved, but are allegations. Nevertheless, on that limited basis, I take them into account. 2. I accept the evidence of all three forensic experts to the effect that the defendant poses a high risk of sexually re-offending against children. Taking into account his criminal history, the demonstrated failure of the CUBIT program and his history of non-compliance with directions, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in custody. 3. That being so, I now turn to consider whether it is appropriate to make a CDO. In making that determination, it is appropriate to have regard to all of the matters listed in s 17(4) of the act and the discretionary nature of the power to make such an order. 4. The three forensic experts agreed that the continuing therapy provided by Dr Parker presents a real opportunity for successful treatment, if not with the prospect of curing his paedophilia, at least eliminating his criminal behaviour associated with it. 5. However, it is accepted in particular by Dr Rodriguez and Dr Parker, that in view of the high level of risk that the defendant presently poses, any ESO that was imposed would need to have strict conditions attached to it. In my view, this would include, for so long as ESO authorities deem it to be necessary, a condition that he not leave his residence, whether it is the ISC or a residence in the community, unless accompanied by ESO staff. The affidavit of Ms Grabham presents real difficulties in relation to this necessary condition. I accept her evidence that the ESO staff do not have sufficient staff to ensure that the defendant is accompanied when he leaves his accommodation for more than three months. He has already been subject to an ISO for that period. In my view, if that degree of supervision was to be provided for another three months there is no guarantee that at that point, the ESO team would be confident that he could reside independently in the community, being visited by his DSO only once per week, and not provide an unacceptable risk to the safety of the community. 6. It is trite to observe that if the defendant re-offends against children, the consequences for those victims and their families would be disastrous. In my opinion, that is an unacceptable risk that requires me to take into account the lack of resources to ensure that the defendant is not in the community unaccompanied, for so long as the relevant authorities deem it necessary. 7. I have no doubt that, in terms of the need to continue the defendant's treatment and thus maximise the opportunities for diminishing the risk he poses to the community, it is necessary for him to be returned to the community subject, at least initially, to strict supervision. However, based on the evidence before me, I accept that the resources do not presently exist to ensure that he would be subject to the necessary level of supervision for an extended period, and thus that level of risk cannot be sufficiently mitigated. In my view, there is a real risk that the defendant would exploit opportunistic contact with young boys if he is either living independently or away from the ISC whilst unaccompanied. 8. It is particularly concerning that the defendant's history discloses a stubborn reluctance to openly deal with supervising authorities. As well, his history of diarising his experiences and fantasies which, it is alleged he has maintained in recent times, is strongly suggestive of a failure thus far to develop alternative ways of thinking, in terms of his paedophilia. 9. For these reasons, I conclude with considerable reluctance that it is necessary for the defendant to be subject to a CDO for a further period. I appreciate that, so long as the absence of resources continues to be an issue, it is unlikely that the defendant will qualify for an ESO, unless and until there is found to be a fundamental change in his criminal processes of thinking about him physically interacting with young boys, to a point that he can be trusted to circulate in the community unaccompanied. 10. As to the duration of a CDO, the effect of my conclusion is that it will become apparent to the defendant that it is now up to him to make sufficient progress in a custodial setting to allow relevant authorities to be confident that at least a degree of trust in his unsupervised behaviour is appropriate. That is something that is unlikely to occur overnight, but on the other hand, I think a period of two years is unnecessarily long for the defendant to respond to the opportunity. Orders 1. For these reasons, I make orders as follows: 1. Pursuant to s 17(1b) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be the subject of a continuing detention order for a period of 1 year to date from 29 April 2020. 2. Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court to issue a warrant for the committal of the defendant to a correctional centre for a period of 1 year. 3. Access to the Supreme 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 of access. ********** 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: 29 April 2020