State of New South Wales v TD (Preliminary) [2020] NSWSC 1034 (6 August 2020)

Last Updated: 6 August 2020

Supreme Court New South Wales

Case Name:	State of New South Wales v TD (Preliminary)
Medium Neutral Citation:	[2020] NSWSC 1034
Hearing Date(s):	3 August 2020
Date of Orders:	6 August 2020
Decision Date:	6 August 2020
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a) That Dr Richard Furst and Mr Patrick Sheehan be appointed to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations; and (b) That the defendant is directed to attend psychiatric assessment by Dr Richard Furst on 21 August 2020 and psychological assessment by Mr Patrick Sheehan on 26 August 2020. (2) Pursuant to ss 10A and 10C(1) of the Act the defendant is to be subject to an interim supervision order for 28 days ("the interim supervision order") from 24 August 2020 to 20 September 2020. (3) Pursuant to s 11 of the Act the defendant is directed, for the period of the interim supervision order, to comply with the conditions set out in the Schedule. (4) 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. (5) The matter is listed for final hearing on 14 October 2020. (6) Liberty to apply for further orders.
Catchwords:	HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – most orders sought by the state not opposed – relevant statutory factors – disputed condition of proposed order
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), s 3, s 4A, s 5, s 5B, s 5I, s 6(3), s 7(3)-(5), s 9(1)-(3) s 10A, s 10C Children (Criminal Proceedings) Act 1987 (NSW), s 15A, s 33(1)(e) Crimes Act 1900 (NSW), 66C(3), s 66EB(3), s 91H(2) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW),s 10A
Cases Cited:	Attorney General (NSW) v Hayter [2007] NSWSC 983 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales [2016] NSWCA 57 R v [TD] [2018] NSWDC 180 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Pacey (Final) [2015] NSWSC 1983 State of New South Wales v Sharpe [2017] NSWSC 469 State of New South Wales v Simcock (Final) [2016] NSWSC 1805
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) TD (Defendant)
Representation:	Counsel: Mr H El‑Hage (Plaintiff) Dr A Hughes (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2020/00189747
Publication Restriction:	Nil

JUDGMENT

1. By summons filed on 25 June 2020, the State of New South Wales (“the State”) seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant, referred to here as “TD,” including that he be placed on an extended supervision order (“ESO”). TD is 24 years of age and has been convicted of two serious sexual offences. One of these offences was committed whilst he was still a juvenile so he is not to be identified: s 15A Children (Criminal Proceedings) Act 1987 (NSW).
2. As required by s 7(3) of the Act, a preliminary hearing was conducted on 3 August 2020. At the hearing, the State sought interim orders, namely, that two experts be appointed to examine the defendant under s 7(4) of the Act and also that he be made subject to an interim supervision order (“ISO”) for 28 days under s 10A and s 10C of the Act.
3. The State relied upon the affidavit of Lisa Springer sworn 24 June 2020 and a folder of documents which was marked Exhibit 1. This supporting documentation will be considered below. It was tendered in accordance with s 6(3) of the Act, which provides that an application such as this must be supported by specified documentation that addresses the matters to which s 9(3) of the Act refers and must include a “report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence”.
4. For the purposes of the preliminary hearing only, the defendant conceded that the statutory criteria for the making of an ESO were satisfied. Despite this, it is necessary for the Court to be satisfied of the statutory criteria before making the orders sought. The determination of whether the relevant statutory preconditions exist involves an evaluative test that is not capable of being resolved by way of consent. Nonetheless, as Johnson J observed in State of New South Wales v Manners [2008] NSWSC 1242 at [4], the court process is facilitated by the fact that there is no controversy between the parties to be resolved in this respect.
5. Before I turn to consider the supporting documentation it is necessary to first outline the relevant legislative scheme.

The Legislative Scheme

6. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.
7. Section 5B of the Act provides that this Court may make an ESO 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.

8. A “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or “a serious violence offence”. A “serious sex offence” is defined in s 5(1) of the Act and includes, relevantly, an offence against a child carrying a maximum penalty of 7 years imprisonment.
9. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s (2)(a)(ii) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature.
10. Thus, the statutory requirements for making an ESO are that the offender is a serious sexual offender as required by s 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); and that he is still in custody or supervision at the time the application was made. In addition, the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).
11. Section 7(3)–(5) of the Act provide for a preliminary hearing of an ESO application and is in these terms:

(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.

(5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. (Emphasis added.)

12. Section 10A of the Act provides that this Court may make an order for an ISO if it appears to the Court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (Emphasis added.)

13. Thus, the statutory test to be applied at the preliminary hearing in order to make the ISO and order the appointment of court experts is that it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
14. The Court’s power to make an ESO is discretionary. Section 9(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Section 9(2) and (3) of the Act provide a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO as follows:

(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A) (Repealed)

(3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a) (Repealed)

(b) the reports received from the persons appointed under section 7 (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,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(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,

(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(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,

(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,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

The Supporting Documentation

15. An overview of TD’s background and risk factors are set out in the Risk Assessment Report (“RAR”) prepared for the application by Mr Samuel Ardasinski, registered psychologist, on 23 December 2019. The Executive Summary of the RAR is in the following terms:

“[TD] is a 24-year old Australian man of Aboriginal heritage who has committed two sexual offences against 14-year old females known to him, one as a juvenile in 2014 which involved non-consensual sex with an underage girl, and the most recent involving online grooming of an underage girl in 2017. [TD] refused to consent to a referral to custody-based Sex Offender Programs whilst in custody, but readily consented to community-based intervention and he has engaged willingly in appropriate individual intervention through Forensic Psychology Services (FPS), Surry Hills.

Based on empirical actuarial risk assessment measures, [TD] is assessed as posing a High risk of repeat sexual offending compared with other male sexual offenders. However, based on his recent compliance with supervision and an assessment of his 'live' dynamic risks, a risk rating of Moderate-High more accurately summarises [TD]’s likelihood of reoffending sexually. He has been diagnosed with various mental health issues as a juvenile; however he has reported to be functioning well currently and has recently ceased taking all psychotropic medications.

Should [TD] be made subject to an Extended Supervision Order (ESO) under the HRO Act, he would likely continue on the positive trajectory he has commenced since his release. Such an order would provide more time for [TD] to consolidate the gains he is making within his supervisory and therapeutic relationships.”

16. Given that the Court must have regard to the s 9(2) and (3) factors, I propose to briefly summarise the supporting documentation under those headings and then turn to consider whether the orders sought should be made in this matter.

The s 9(3) factors

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

17. The index offence for which TD is currently serving a sentence was grooming a child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act 1900 (NSW). He was sentenced to 3 years imprisonment with a 2 year non-parole period. This was served concurrently with a 12 month sentence of imprisonment for possessing child abuse material contrary to s 91H(2) of the Crimes Act.
18. The circumstances of this offending are set out in the judgment of Handley DCJ: R v [TD] [2018] NSWDC 180. In early 2017, TD was living in Armidale. He knew the victim’s older sister. He contacted the victim via Facebook Messenger and engaged in romantic conversation with her. The messages became sexualised in April 2017, with TD requesting semi-naked, sexualised photos of the victim. These were sent to him and were the subject of the child abuse material charge.
19. It was agreed at sentence that there a degree of coercion or manipulation involved in TD obtaining these images. The victim had told TD several times that she felt uncomfortable sending the photographs and that she did not like it. On at least one occasion, the victim was concerned that he was angry and he responded by telling her that she would make him feel better if she sent him naked photographs.
20. The correspondence between TD and the victim subsequently indicated that he was planning a visit to her home where they would have sexual intercourse. This would occur on the weekend of 28 April - 2 May. When he attended the house on 1 May 2017 he was arrested. In the sentencing remarks of Handley DCJ, his Honour noted that following his arrest (bail refused), TD “on a number of occasions asked the victim to send him photographs of herself and to put money in his account”.
21. In 2013, TD was convicted of sexual intercourse with a person aged 14 years or over and under 16 years contrary to s 66C(3) of the Crimes Act. The victim was aged 14 and left school to meet TD. They talked in a park and kissed, before TD encouraged the victim to enter the parents’ room behind a public toilet block. They had penile-vaginal intercourse. The victim disclosed the incident to her older brother that evening and they attended the local Police station to make a report. Following TD’s guilty plea, he was released on a s 33(1)(e) bond under the Children (Criminal Proceedings) Act for 12 months, without recording of the conviction, on 5 November 2015.
22. Other criminal offending by TD includes an offence of refusing/failing to comply with a direction, for which he was fined, on 7 May 2014. On 17 April 2014, he was charged with stalking/intimidation charges and behaving in an offensive manner near a public place/school. He was placed on a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 18 months for these offences.
23. On 14 June 2014, TD was charged with the offences of taking and driving a conveyance without the consent of the owner, escaping police custody and driving without a licence for which he also received s 9 bonds for 18 months on 5 November 2014. He was also fined.
24. On 18 December 2014, TD committed an offence of providing false/misleading information contrary to the Child Protection (Offenders Registration) Act 2000 (NSW) for which he was sentenced on 19 June 2015 to a suspended sentence of 7 months imprisonment commencing on 19 June 2015 and concluding on 18 January 2016. He failed to disclose that his living address was a youth refuge in which three children were living.
25. On 25 March 2016, TD committed the offences of negligent driving, taking & driving a conveyance without the consent of the owner and driving without a license. He was sentenced on 22 August 2016 and received a s 10A conviction with no other penalty for the negligent driving offence. He was sentenced to imprisonment for 12 months with a non-parole period of 6 months, commencing on 22 August 2016 and concluding on 21 February 2017, for the take and drive conveyance offence. He also received a sentence of 6 months imprisonment, commencing on 22 August 2016 and concluding on 21 February 2017, for driving without a licence.
26. On 8 July 2016, TD was charged with the having custody of a knife in a public place. He was sentenced on 22 August 2016 to imprisonment of 12 months with a non-parole period of 6 months, commencing on 22 August 2016 and concluding on 21 February 2017.
27. On the same day, 22 August 2016, he was called up in relation to the offences committed on 17 April 2014 and 14 June 2014. In relation to the 17 April 2014 offences, TD was sentenced to 3 months imprisonment commencing on 22 August 2016 and concluding on 21 November 2016 for the offence of behave in offensive manner in/near public place/school and to 12 months imprisonment with a non-parole period of 6 months commencing on 22 August 2016 and concluding on 21 February 2017, for the stalk/intimidate intend fear physical harm offence. In relation to the 14 June 2014 offences, TD was sentenced to 12 months imprisonment with a non-parole period of 6 months commencing on 22 August 2016 and concluding on 21 February 2017 for both offences of escape police custody and take and drive conveyance without consent.
28. TD was on parole for the 17 April and 14 June 2014 offences when he committed the index offence. His parole was revoked on 28 April 2017.

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

29. TD was sentenced for the index offence on 5 July 2018 by Mahony SC DCJ. His Honour found that the offending fell within the mid-range of objective seriousness for a charge of that nature. TD was sentenced for the possession of child abuse material on the same date. That offence was assessed at just below the mid-range of objective seriousness.
30. His Honour did not permit a discount for remorse or contrition given TD’s requests to the victim in custody for money and photographs despite his insistence to the Court that he did not intend to continue the relationship. As for TD’s prospects of rehabilitation, his Honour noted TD’s history of mental health diagnoses but stated that there was not sufficient evidence to find that his moral culpability was lowered. As such, both general and specific deterrence were important considerations. He further commented at [78]:

“The offender is still young, and requires rehabilitation in respect of his sexual offending and his mental health issues. There is therefore a need for an extended period of conditional release and supervision to ensure he can take his place as a productive member of his community. Given his criminal antecedents, any assessment of his risk of re‑offending would have to be guarded. It is clear that previous courses undertaken by the offender, relating to his anger management and risk of re‑offending, were entirely unsuccessful.”

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

31. As noted above, Mr Ardasinski prepared a risk assessment report in relation to TD on 13 December 2019. Mr Ardasinski noted that TD was “articulate and friendly” and did not show signs of disorders of thought, delusions or hallucinations. The report further noted that “[TD] appeared intelligent and his responses to questions were polite and he was forthcoming with information”.
32. After summarising TD’s criminal history, Mr Ardasiniki noted that TD appeared to reduce his culpability for his offending:

“[TD] accepted responsibility for his illegal behaviours in the commission of the index offence in interview, however he downplayed any wrongdoing for his actions in his prior sex offence, vehemently asserting that the sex with the victim on that occasion was consensual (despite the victim's age), and he was at a loss as to why she ‘cried rape’.”

33. In his report, Mr Ardasinski observed that TD had previously been diagnosed with the following conditions when assessed by psychologists as a child and adolescent:

(1) Asperger's Disorder

(2) Attention Deficit Hyperactivity Disorder (ADHD)

(3) Conduct Disorder (with Asperger's)

(4) Complex Post-Traumatic Stress Disorder (PTSD)

(5) Generalised Anxiety Disorder

(6) Tourette's Syndrome/Tic Disorder

34. Mr Ardasinski did not see any evidence of these issues and not diagnose them himself. He assessed TD as being “a confident young man with appropriate interpersonal skills”. He then assessed TD according to the STATIC 2002-R, VRAG-R, STABLE-2007 and RSVP (the results of which are discussed further below at [41]-[43]). The dynamic risk factors identified in terms of TD’s risk of sexual reoffending were problems with intimate relationships - capacity for relationship stability; lack of prosocial supports, feeling socially rejected/isolated, antisocial peers, impulsivity and being online.
35. Mr Ardasinski noted that TD’s current family contact is limited, as his mother has only visited him once in Sydney since his release. He has formed an intimate relationship with a woman known to him at school and that relationship was ongoing at the time of the hearing. Mr Ardasinski observed that a number of professional supports for TD have been set up during his parole period and this support would continue if his supervision was extended.
36. As for TD’s risk scenario, Mr Ardasinski considered that:

“[TD]’s most likely scenario for further serious sexual offending would involve his engaging in 'consensual' sexual interactions within the context of an intimate relationship, potentially one which he forms online, with an underage female (who is therefore unable to actually provide consent). This would likely follow a period of stress or distress (e.g. a relationship breakdown, a collapse in social supports), and would be preceded by excessive time spent online. Whilst [TD] is on parole and is restricted from accessing social media, this will limit his opportunities to offend in such a manner.”

37. Overall, TD’s risk was assessed as a “moderate to high risk of reoffending” relative to other adult male sexual offenders. Mr Ardasinski noted that there were “mixed results”, as TD’s static risk factors were high but his dynamic risk factors were moderate. Mr Ardasinski was of the opinion that TD was already in the process of desisting from crime and that an ESO or a Child Protection Prohibition Order (“CPPO”) would be appropriate.

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

38. As noted above, the index offence and the possess child abuse material offence were committed by TD when he was on parole. His criminal history (detailed above) also discloses two breaches of supervision orders. As noted above, he was also convicted of “providing false/misleading information re registration”.
39. The Offender Integrated Management System (“OIMS”) notes regarding his current period of parole disclose that TD appears to be abiding by the terms of his parole. As noted by Mr Ardasinski:

“...he has often notified Community Corrections when running late, he has sought approval appropriately and he has presented as willing to comply and engage in the supervision process. There was a case-note which referenced [TD]’s attempts to avoid any improper contact with the victim, after the victim's mother had contacted [TD] through Facebook.”

40. Despite this, the OIMS notes also disclose that on 9 September 2019, TD attended a job interview where he had been directed to disclose his current circumstances by Community Corrections. On 10 September 2019, the notes recorded that TD had not abided by this direction. On the 3 January 2020, a breach of parole report was submitted outlining TD’s failure to comply with a formal direction to cease social media use and to disable all social media accounts in his name. TD has also been reprimanded for evading chores at his Community Offender Support Program Centre (“COSP”), failing to keep to a pre-arranged budget and not making payments on time, although later OIMS note improvements in these areas.

Statistical testing: s 9(3)(d)

41. TD was assessed by Mr Ardasinski using the STATIC-2002R, VRAG-R, STABLE-2007 and RSVP assessment tools. TD’s score on the STATIC-2002R was 9, which correlates with the Level IVB (High risk) category. His score on the VRAG-R was 29, using 12 static risk factors. This classified him as high risk when compared to other violent offenders. Mr Ardasinski noted, however, that the STATIC and VRAG-R instruments are not sensitive to the changes in an offender's circumstances that may increase or decrease their actual risk of re-offending.
42. When assessed against the 13 items in the STABLE-2007, TD was found to have a moderate density of criminogenic needs relative to other male sexual offenders. This meant that, in accordance with Corrections policy, TD would need a moderate-high level of intervention and/or supervision.
43. When scored according to the list of 22 dynamic risk factors in the RSVP, TD was assessed as being Moderate/Elevated risk category for repeat sexual violence. Overall, based on the results of all of the above tests, he fell into the “Moderate to Moderate-High” risk category for sexual offending relative to other adult male sexual offenders.
44. Mr Ardasinski noted that previous statistical analyses had been carried out in relation to TD. His score on the Level of Service Inventory - Revised (LSI) was in the medium range. TD’s total score on the STATIC-99R, as assessed previously, was 6. This placed him in the “High risk category” relative to other male sexual offenders.

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

45. As was conceded by the State in written submissions, TD was not able to complete sex offender programs in custody before the commencement of his statutory parole period. He commenced individual risk management sessions with a psychologist, Ms Kate Solomon on 12 November 2019 and appears to have continued these sessions to, at least, the date of Mr Ardsasinki’s report. Mr Ardasinki noted in his report that “[v]erbal consultation with his treating psychologist (19/12/19) affirmed that the sessions they had undertaken to date had been productive, and she held little concern about his risk of committing further sexual offences if he were to continue on his current trajectory.”

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

46. A risk management report (“RMR”) was prepared by Ms Ashley-Ann Newby, a Community Corrections Officer. She summarised the risks identified by Mr Ardasinski and outlined a management strategy for TD. This involved weekly face to face interviews to create a comprehensive case plan; announced and unannounced home visits and field visits once a month; weekly contact with TD’s personal and professional contacts; electronic monitoring and submitting a weekly schedule of movements; being directed not to have contact with any person under the age of 18 years without the prior approval of Community Corrections and the imposition of exclusion zones.

Consideration

47. The statutory task is an evaluative one undertaken in the overall context of the primary objective of the Act which is to ensure the safety and protection of the community. At this preliminary stage the court is required to take into account all of the supporting documentation and assume it would be proved at a final hearing. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [20 07] NSWSC 983.
48. The first question is whether I can make an ESO; that is, whether the statutory requirements are met
49. I am satisfied that TD is a “supervised offender” within the meaning of s 5I of the Act, in that he is serving a sentence of imprisonment (currently in the community) for a serious sex offence. I am also satisfied that he is an “offender” under s 4A, because he committed a “serious sex offence” falling within the terms of s 5(1)(a)(i) of the Act. I am also satisfied that TD satisfies the requirements of ss 5B(a) and (b), and the application was made within the relevant time frame.
50. The court must then ask itself whether it is satisfied to a “high degree of probability” that the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision. It has been held that the test of being satisfied to a “high degree of probability” in this context is a standard of proof higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the test is a high one, it is important to note that the court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an “unacceptable risk” of committing a serious sex offence: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].
51. The phrase “unacceptable risk” is not defined in the Act but has received judicial consideration. In Lynn v State of New South Wales [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an “unacceptable risk” is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase “unacceptable risk” is to be given its everyday meaning within its context and having regard to the objects of the Act. The evaluation 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” (at [61]).
52. 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.”

53. Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [7]) that, “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”
54. Having regard to all of the supporting documentation, I am satisfied that it would, if proved, justify the making of an ESO. That is, I am 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.
55. I have given paramount consideration to the safety of the community as requested by s 9(2) and also had regard to the s 9(3) factors summarised above. The supporting documentation demonstrates that the defendant has committed two sexual offences of a similar nature in the past. The repetition of the behaviour is of concern. The grooming offence is particularly troubling given the predatory nature of TD’s conduct. I have read the texts sent to the 14 year old victim and they are manipulative and at times emotionally threatening, especially given that they were sent from a 21 year old man to a 14 year old child.
56. TD has had poor responses to supervision in the past but aspects of the RAR were promising. Although he has been assessed as a high risk of repeat sexual offending compared with other male sexual offenders, he seems to be responding well to supervision. This has led to his “live” dynamic risks improving such that Mr Ardasinski opines that his risk of reoffending sexually or more accurately assessed as “moderate-high”. The fact that there are signs of improvement in the RAR is consistent with the position of the State that TD needs continued supervision
57. If TD was to offend again, the most likely scenario would be in an intimate relationship with an under-age female he has met online following a period of stress or distress. Conditions of the ISO restrict him from accessing social media. I am satisfied this will limit his opportunities to offend in such a manner.
58. For these reasons, I propose to order an ISO for 28 days and also make orders regarding the court appointed experts.

Conditions of the ISO

59. In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
60. As Beech-Jones J observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]:

“In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender ... to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender.”

61. The proposed conditions were largely accepted with the exception of proposed condition 20 which was in these terms:

“If the defendant starts an intimate relationship with someone, has a sexual relationship with someone or commences a friendship with a woman, he has to tell his DSO within 24 hours the name of that person and truthfully answer any questions that the DSO asks regarding that relationship or friendship. Having assessed the nature and progress of the relationship, the DSO may tell the person about the defendant's criminal history. The DSO will notify the defendant of the intended disclosure and defendant must permit it.”

62. Counsel for TD opposed this condition on the basis that it was not directed at one of TD’s risk factors. TD currently has a partner who is 21 years of age and resides in Queensland. He has made her aware of his past offences.
63. Counsel for the State submitted that the circumstances of the grooming offence were opportunistic and manipulative given that the victim was the sister of a friend. It was submitted that condition 20 is directed to deal with the risk that a partner might have friends who have children or who have relatives with children. It was also suggested that condition 20 provides the opportunity for the DSO to tell the partner about TD’s past offending.
64. I have had regard to the competing submissions. I do not propose to impose condition 20. Such a condition is usually imposed when an offender is attracted to young children and seeks to partner with someone with children in order to gain access to them. As a matter of practical reality, given TD’s young age he would have to be dating someone significantly older that himself for them to have 14 year old children. That is not an identified risk factor for TD.
65. Condition 11 already provides that he is not to have any contact with persons under the age of 18 years and condition 30 provides that he is not to access social media (which is how the last offence was committed). I am not satisfied that condition 20 has any extra work to do in those circumstances.
66. I otherwise would impose the conditions sought by the State. Those conditions are attached to this judgment.

ORDERS

67. Accordingly, I make the following orders:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"):

(a) That Dr Richard Furst and Mr Patrick Sheehan be appointed to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations; and

(b) That the defendant is directed to attend psychiatric assessment by Dr Richard Furst on 21 August 2020 and psychological assessment by Mr Patrick Sheehan on 26 August 2020.

(2) Pursuant to ss 10A and 10C(1) of the Act the defendant is to be subject to an interim supervision order for 28 days ("the interim supervision order") from 24 August 2020 to 20 September 2020.

(3) Pursuant to s 11 of the Act the defendant is directed, for the period of the interim supervision order, to comply with the conditions set out in the Schedule.

(4) 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.

(5) The matter is listed for final hearing on 14 October 2020.

(6) Liberty to apply for further orders.

******Schedule of conditions of supervision TD (23378, pdf)Schedule of conditions of supervision TD (23378, pdf)