State of New South Wales v Ambrym (Final) [2020] NSWSC 612 (22 May 2020)

Last Updated: 22 May 2020

Supreme Court New South Wales

Case Name:	State of New South Wales v Ambrym (Final)
Medium Neutral Citation:	[2020] NSWSC 612
Hearing Date(s):	20 May 2020
Decision Date:	22 May 2020
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of three years commencing on 28 May 2020. (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to these orders for the period of the extended supervision order. (3) Access to the Court’s file for any document shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
Catchwords:	HIGH RISK OFFENDER – final hearing – application for extended supervision order (ESO) – interim supervision order previously made – ESO not opposed – Court independently satisfied of need for ESO – conditions and length of ESO a matter of dispute – terms of electronic monitoring condition – monitoring condition to provide incentive for the defendant to strictly comply with his schedule of movements – regard to protection of community and rehabilitation of offender – ESO imposed for 3 years with conditions
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Ambrym (Preliminary) [2020] NSWSC 298 State of New South Wales v Grooms (Final) [2019] NSWSC 353 State of New South Wales v Lynn [2015] NSWSC 665 State of New South Wales v Richardson (No 2) (2011) 210 A Crim R 220; [2011] NSWSC 276 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Colin James Ambrym (Defendant)
Representation:	Counsel: C Melis (Plaintiff) E Anderson (Defendant) Solicitors: Crown Solicitor’s Office (NSW) (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2020/60731

JUDGMENT

1. HIS HONOUR: The plaintiff, the State of New South Wales, commenced proceedings by summons filed on 25 February 2020 against the defendant, Colin Ambrym, seeking interim orders for an interim supervision order (“ISO”) and final orders for an extended supervision order (“ESO”) for a period of five years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), and subject to conditions that were annexed to the summons.
2. At that time the summons was filed, the defendant was serving the balance of parole of a sentence of imprisonment which would expire on 2 April 2020.
3. On 30 March 2020, R A Hulme J made orders imposing an ISO and for the preparation of reports to be furnished to the Court pursuant to s 7(4) of the Act: State of New South Wales v Ambrym (Preliminary) [2020] NSWSC 298. The defendant was released from custody on 3 April 2020, at which point the ISO began operating. On 22 April 2020, Bellew J renewed the ISO for a further 28 days from 1 May 2020.
4. The application for an ESO is not opposed. However, the length of the ESO and some of the conditions to be attached to it are matters of dispute. Nevertheless, I am required by the terms of the legislation to be independently satisfied as to the necessity of an ESO.

Background to the application

5. The defendant is a 35-year-old Indigenous man who was born in North Queensland in 1984. Court and forensic reports that detail or summarise the defendant’s relevant background are to the following effect.
6. The defendant is the third eldest of nine children. He was born and raised on an Aboriginal mission near Cairns. Forensic reports suggest that the defendant is an unreliable historian, but it appears that, in the words of psychologist Patrick Sheehan:

“... [the defendant] was exposed to a lifestyle of persistent substance abuse and community violence. He said that he internalised these community standards and had believed that ‘alcohol and violence was a way of living’.”

7. At age 9, the defendant’s mother moved to Albury, taking him with her. Thereafter, he was raised by his mother, his aunts and his grandmother in Albury, and had little contact with his father throughout the remainder of his childhood or adolescence. He experienced racism and reportedly came to react to this with violence. The defendant began to drink alcohol and smoke cannabis from the age of approximately 12, which became heavier throughout his teens and 20s. He was expelled from school in year nine, reportedly for “bashing someone”, and throughout his life, he has had little employment, his last position being in 2008.
8. The defendant’s criminal history dates back to the Children’s Court when he was aged 14, appearing for being carried in a conveyance without consent. When aged 17, he was convicted of common assault and destroying or damaging property. In 2004, when he was aged 19, he was convicted of an assault occasioning actual bodily harm against his then girlfriend, committed whilst under the influence of alcohol. The defendant has been in a continuing relationship with his current partner since 2007, when he was aged about 23. They have a child, now aged nine years. In 2011, he received a 12 month suspended sentence for an assault occasioning actual bodily harm, committed when he was aged 26, on his current partner.
9. The defendant received his first custodial sentence of imprisonment in the Local Court at Albury, for a conviction for affray, committed when he was aged 29. The sentence was 12 months imprisonment with a non-parole period of 6 months, one of the conditions of parole being that he accept the supervision and guidance of the Community Offenders Service and comply with all their reasonable directions, including counselling and treatment regarding education, drug and alcohol rehabilitation, anger management and drug or alcohol testing.
10. Whilst on bail for the affray charge, in June 2014, the defendant committed the index offence, which was aggravated sexual assault, contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was the deprivation of the complainant’s liberty. He was sentenced to 5 years and 6 months’ imprisonment, to commence on 3 October 2014 and expiring on 2 April 2020, with a non-parole period of 3 years and 6 months that expired on 2 April 2018. In his remarks on sentence in the District Court at Wagga Wagga, Lerve DCJ recounted the agreed facts, which were to the following effect. The complainant, who was aged 15 at the time, was alone in her home at Albury. The defendant entered the premises through a closed but unlocked back door. When the complainant noticed the defendant, he was carrying a number of her personal items including her laptop computer, a gaming console and her mobile phone. When the defendant saw her, he put down the items and placed his hand over her mouth to stop her from making a noise. He told the complainant he was not going to rape or harm her and said he was going to leave, but that first he was going to tie her up, and told her to take off her jacket for that purpose. The complainant did so, hoping the defendant would then leave. The defendant asked her how old she was, to which she replied that she was aged 15. The defendant proceeded to place his hand inside her underwear and inserted his finger into her vagina. At that point, the complainant’s father arrived home, and the defendant ran from the premises. During the police investigation, the defendant was identified as a suspect from his fingerprints on the complainant’s computer and his DNA being identified on the complainant’s underwear.
11. The defendant was released to parole on 2 April 2018, subject to Child Protection Register provisions, and resided at the Campbelltown Integration Support Centre (“ISC”). On 6 December 2018, the State Parole Authority revoked parole for the index offence following notification by police of the defendant committing an act of indecency. On 4 February 2019, the defendant was convicted of committing an act of indecency with a person aged 16 years or over, and stalking or intimidating with the intention of creating fear of physical harm. The offences were committed on 16 November 2018, 7 months into his parole period. The police facts are to the effect that he masturbated in front of a 16-year-old girl who he did not know, whilst on a public bus. He stood up and approached the complainant, speaking to her in an attempt to gain her attention while he masturbated. He received a total sentence of 10 months imprisonment, commencing on 17 December 2018 and concluding on 16 October 2019, with a non-parole period of 7 months. The defendant has said that he had taken methamphetamine before this offence. I note that in a drug test conducted on 8 August 2018, he had tested positive for amphetamine, which may be consistent with that claim.
12. As the defendant’s parole for the index offence was revoked, he served the balance of parole in custody, being a further 16 months in custody. On 20 May 2019, as the date approached for his release on parole for the indecency and stalking offences, the defendant signed a letter stating that he did not wish to be considered for release, because he wished to return to Albury upon his eventual release. I note his family resides in that area. On 19 August 2019, he signed a further letter stating that he did not wish to be released but would remain in custody until April 2020.
13. He was released at the expiration of his head sentence on 3 April 2020 and initially was required to reside in a motel in Greater Sydney as a temporary placement. Since 16 May 2020, he has been residing with his partner in Wagga Wagga.

The relevant legislative provisions

14. I am satisfied that the application complies with the threshold statutory requirements for the bringing of an application for an ESO. Sections 5B(a)-(c) of the Act provide:

“5B Making of extended supervision orders—unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I ...”

15. In compliance with s 5B(a), the defendant is serving a sentence of imprisonment under supervision in the community for a serious offence, which is defined in s 4 to include a serious sex offence. Pursuant to s 5(1)(b) of the Act, the index offence is a serious sex offence. The defendant qualifies as a “supervised offender” within the meaning of s 5I, which relevantly provides as follows:

“5I Application for extended supervision order
(1) An application for an extended supervision order may be made only in respect of a supervised offender.
(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

(a) while serving a sentence of imprisonment:

(i) for a serious offence,

...
(3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.”

16. The key provisions for the final hearing are as follows:

“5B Making of extended supervision orders—unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:
...
(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.
...
5D Determination of risk
For the purposes of this Part, the Supreme 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.
...
9 Determination of application for extended supervision order
...
(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.”

17. The gravity of the consequences of the risk manifesting has been recognised as a factor that, even if the likelihood is low, may nevertheless constitute an unacceptable risk: see, for example, Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [142] per Basten JA, 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 of the Act, observed, at [68]:

“In my view, the relationship between the two subsections is explained by the authorities to which Davies J referred in [State of New South Wales v Richardson (No 2) (2011) 210 A Crim R 220; [2011] NSWSC 276], particularly in the passage from the judgment of RA Hulme J in [State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118] at [15]- [20] ... 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.”

18. If the statutory provisions for an ESO are satisfied, there is nevertheless a discretion implied by the word “may” in s 5B to not make an order.
19. Section 9(2) is consistent 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, in accordance with s 3(2), is to encourage offenders who come within the Act to undertake rehabilitation.
20. The term “another serious offence” in s 5B(d) may include a serious sex offence or a serious violence offence, pursuant to the definition of “serious offence” in s 4. The definition of a “serious sex offence” pursuant to s 5(1) includes all offences in Div 10 of Pt 3 of the Crimes Act 1900 (NSW).
21. Section 9(3) requires the Court to have regard to certain matters in determining whether the defendant poses an unacceptable risk, which are now relevantly considered.

Section 9(3)(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

Section 9(3)(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

22. Reports have been tendered by three forensic experts. Rochelle Pateman, in her capacity as Acting Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services New South Wales (“CSNSW”), prepared a Risk Assessment Report dated 15 November 2019. Dr Richard Furst, forensic psychiatrist, and Patrick Sheehan, forensic psychologist, prepared reports dated 3 May 2020 and 24 April 2020 respectively, pursuant to the orders made by R A Hulme J following the preliminary hearing.

Ms Rochelle Pateman’s report

23. Ms Pateman interviewed the defendant by audio-visual link on 30 October 2019. Ms Pateman thought the defendant’s mental state during the interview appeared to be stable. His cognitive functioning had previously been assessed using the Weschler Abbreviated Scale of Intelligence – Second Edition (“WASI-II”) as falling in the Low Average range. She did not consider him to have a personality disorder.
24. The defendant told Ms Pateman that he plans to remain abstinent from alcohol upon his release but she thought that:

“... [the defendant] lacked a realistic plan to do so. For example, he denied that attending family events where alcohol will be consumed would be a possible risk factor for relapse. He also initially denied the need to attend alcohol specific counselling but later agreed that it may be helpful upon release.”

Similarly, he appeared to be in denial about the extent of his past drug use, in particular, of methamphetamine.

25. Ms Pateman noted that the defendant was yet to participate in an appropriate custody-based treatment program for his sexual offending, and had specific concerns in relation to the risk of further sexual offending involving alcohol and methamphetamine abuse and opportunistically sexually offending against stranger teenage females who are alone. She concluded, as to likely risk scenarios for the defendant:

“[The defendant’s] most likely scenario for further sexual offending would involve him being under the influence of alcohol and methamphetamines and opportunistically sexually offending against a stranger teenage female who is alone. It is likely that this will occur in the context of emotion dysregulation, relationship difficulties and overwhelming stress (e.g. financial difficulties, high service engagement requirements and pressure from supervising bodies). [The defendant] may experience a sense of hopelessness, isolation and rejection, precipitating alcohol use to cope with negative emotionality and attempts to re-establish a connection with antisocial peers in an effort to belong. It is anticipated that [the defendant’s] issues may be further exacerbated by his relapse into alcohol use and potentially aggressive behaviour, leading to increasing alcohol consumption to cope. When under the influence, it is likely that [the defendant] may impulsively use methamphetamines upon being offered it by peers.”

Dr Richard Furst’s report

26. Dr Furst interviewed the defendant via audio-visual link on 21 April 2020. He questioned the defendant about his offences. In relation to the index offence, the defendant said that he was drinking heavily and smoking cannabis at the time, and he had taken methylamphetamine for the first time. He acknowledged his guilt, but denied any recollection of the offence. In relation to the act of indecency committed on a bus on 16 November 2018, he said: “I had a bad day and I was drinking. ... It’s pretty bad.... I need help with drugs and alcohol”. Dr Furst considered that he lacked insight into the motivations for his sexual offending, claiming amnesia for both episodes.
27. Dr Furst agreed with Ms Pateman that the defendant posed a risk of further sexual offending involving alcohol and methamphetamine abuse and opportunistically sexually offending against stranger teenage females who are alone. He added that feelings of stress, hopelessness, isolation and rejection are also areas of potential concern in relation to the defendant’s future risk of reoffending.
28. Dr Furst diagnosed the defendant as having an Alcohol Use Disorder and a Substance Use Disorder. He considered that the defendant’s level of intellectual functioning is in the lower than average range. Dr Furst administered the Static-99R instrument to the defendant, which placed the defendant in the “well above average risk” category of sexual reoffending, matching the result obtained by Ms Pateman.
29. Dr Furst’s opinion as to the risk of the defendant committing a serious offence was as follows:

“[The defendant] has risks of re-offending relating to both non-sexual violence and sexual offending. His risk of violent offending appears to be mostly related to interpersonal conflict whilst intoxicated, rather than ingrained antisocial or pro- criminal attitudes. Based on a review of his previous history of violent offending and his profile on the [a management tool used by CSNSW to determine an offender’s level of supervision called “LSI-R”], his risk of re-offending in an aggressive/violent manner (but not necessarily with a serious violent offence) likely falls in the medium-high range compared to other male offenders.
It is concerning that [the defendant] re-offended whilst supervised, both in 2014 and in 2018, and that his level of insight in relation to this personal risk factors is lacking.
It is also concerning that his level of engagement is generally poor, [the defendant] attending only three of six scheduled appointments with [Forensic Psychology Services], Surry Hills, when on parole in 2018.
Furthermore, he returned a positive urine drug screen in August 2018 that forced him out of the Campbelltown ISC and he was probably using methylamphetamines over the following three months until his parole was revoked.
[The defendant’s] risk in relation to sexual offending was assessed in detail by Ms Pateman, incorporating the Static-99 and STABLE-2007 instruments, coupled with other relevant dynamic considerations. Overall, I would concur with Ms Pateman’s assessment that [the defendant’s] overall risk level in relation to his future risk of offending in a sexual manner is ‘well above average’.
A consideration of his previous offences on 21 June 2014 and 16 November 2018 suggests [the defendant] is attracted to teenage girls and also suggests his offending has been opportunistic rather than premeditated. I was unable to find sufficient evidence of sexual deviance or sexual pre-occupation to warrant the diagnosis of a specific paraphilic disorder, such as pedophilia.
Alcohol consumption and/or substance abuse [the use of methylamphetamine] were also noted as relevant factors contributing to his offending in 2014 and 2018. I do not believe he suffered blackouts, the amnesia he still purports in relation to both sexual offences being much more likely to be feigned and represent a form of denial/minimisation.
Furthermore, the victimization of strangers is a more concerning prognostic factor in relation to his future risk of reoffending, stranger victims being a well recognised risk factor in this respect.”

30. In the absence of the option of a residential drug and alcohol rehabilitation program (see [42] below), Dr Furst was of the opinion that an ESO was necessary, because the defendant had previously committed sexual offences despite being subject to bail restrictions and parole supervision in 2014 and 2008 respectively. Dr Furst stated:

“Therefore, ongoing supervision, including scheduling, monitoring, treatment and direction is probably necessary to mitigate and manage [the defendant’s] risk of sexual re-offending and his risk of non-sexual violent re-offending, such as through the use of a ESO.”

Patrick Sheehan’s report

31. Mr Sheehan interviewed the defendant via audio-visual link on 22 April 2020. The defendant related a history of heavy drinking to Mr Sheehan, saying he had sometimes consumed 60 or more drinks and a quarter of an ounce of cannabis in a day. He would use methylamphetamine when drunk, and associated it with his sexual offending. Mr Sheehan noted that the defendant’s partner remained very supportive of him, although they had not lived together since 2014. The defendant spoke by phone with his child on a daily basis. He expressed a simplistic view that his problems would be solved by him being permitted to relocate near his family, even though the index offence occurred whilst he was residing in that milieu and his earlier problems with violence and substance abuse were also associated with that milieu. Mr Sheehan said:

“[The defendant] seemed genuine when he said ‘I don’t want to fail again’, but has few specific plans to manage his future risk or relapse, particularly as he encounters inevitable hardship.”

32. Mr Sheehan was of the opinion that the defendant had a Substance Use Disorder and also qualified for an Antisocial Personality Disorder with Avoidant/Dependent features. He thought it unlikely that the defendant had an “intellectual impairment”, but did not administer tests to determine his level of intellectual functioning.
33. Mr Sheehan said:

“I note that there are also valid cultural factors that make it difficult for [the defendant] to work within the framework imposed by CSNSW (or ESO), with a desire for mobility (a nomadic lifestyle) and less defined social boundaries (having people stay over and staying in the homes of other people) being culturally normative for an Aboriginal man.”

34. Mr Sheehan noted that when the defendant was on parole in 2018, he responded poorly to supervision. He was obliged to engage with an alcohol and drug use counsellor and a community-based psychologist, but failed to do so. He also failed to notify the Child Protection Register of his details as obliged, and left his accommodation for several weeks, without notifying the authorities as to his whereabouts, which he was required to do (“CPPO breach”).
35. Mr Sheehan concluded, in relation to the defendant’s risk of re-offending:

“[The defendant’s] risk of sexual reoffending is assessed as within the Well Above Average risk category with regard to actuarial factors. In my view this category accurately reflects [the defendant’s] risk. There are also a number of identifiable dynamic risk factors that would appear to be correlates of offending in [the defendant’s] particular case. Factors related to lifestyle instability, antisocial associations, interpersonal conflict, substance abuse, impulsivity, poor coping, high libido and sexual disinhibition would all seem the most salient contributors to risk, having worked in concert to produce his prior sex offences in 2014 and 2018. The extent to which this risk extends to a serious sex offence as defined in the Crimes (High Risk Offenders) Act 2006 is more difficult to determine given that his more recent offences were exhibitionism (which to my understanding is not a serious offence), but the victim profile does add weight to the possibility of an offence outcome that would meet the criteria for a serious sex offence, being against a young person. I note that both episodes of offending were interrupted by external factors (the return of the victim’s father in the index offence, and the victim leaving the bus in the most recent offence), with the implication that it remains unclear as to how [the defendant’s] sexual offences might have unfolded in the absence of interruption. He is most at risk towards lone mid teenage female strangers, in circumstances where he is substance affected and in some form of personal crisis. The offences may or may not involve physical contact or sexual penetration. The presence of a weapon would appear unlikely. [The defendant] does have a history of non-sexual interpersonal violence against female partners and male community member with whom he is in conflict. He remains at risk of this type of violence, but in my view there are no indicators to promote the view that such violence would escalate to a serious violence offence.”

Section 9(3)(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

36. Dr Furst, Mr Sheehan and Ms Pateman all administered the Static-99R, which is an actuarial risk assessment tool that is utilised to assess the risk of future sexual offending. All three experts obtained a result that placed the defendant at the “well above average” risk category of future sexual offending.
37. Ms Pateman also assessed dynamic risk factors, including cognitive and attitudinal factors incorporating the STABLE-2007 assessment tool. This yielded a total score of 12 out of 13 items, which indicated “a high density of criminogenic needs”. Areas of particular concern included hostility towards women, impulsivity, poor problem-solving skills, and lack of cooperation with supervision. Other areas of concern were noted to include negative emotionality, deviant sexual preference, significant social influences, and capacity for relationship stability. Mr Sheehan assessed dynamic risk factors by administering the Risk of Sexual Violence Protocol (“RSVP”) judgment tool, and noted a number of identifiable dynamic risk factors, as extracted at [35] above.

Section 9(3)(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

Section 9(3)(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

38. In 2015, the defendant consented to a referral to a custody-based sex offender program, being the High Intensity Sex Offender Program (“HISOP”), but was released to parole before receiving treatment.
39. In January 2018, the defendant completed the Explore, Question, Understand, Investigate, Practice, Succeed (“EQUIPS”) program, which is a 20 session module-based addiction program offered by Corrective Services New South Wales (“CSNSW”). He completed a further 15 sessions of the same program between April and May 2019.
40. Whilst on parole in 2018, the defendant attended four sessions at FPS in Sydney, for counselling, as part of his conditions of parole. Mr Sheehan noted that:

“[The defendant’s] poor insight and limited acknowledgement regarding his sexual offending are evident in the notes. Facilitators ultimately determined that [the defendant’s] treatment needs were ‘not sex offending specific’, but related to broader issues with substance abuse and possible mental health problems (21 November 2018). Ongoing treatment at FPS was not offered. Unfortunately, [the defendant] sexually reoffended during the week prior to that treatment recommendation being made.”

41. When returned to custody, the defendant refused to partake in a custody-based sex offender program.

Section 9(3)(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

42. Dr Furst was of the opinion that the defendant’s risk could, and should, be managed in the community, although an extended supervision order would not be Dr Furst’s first preference. Dr Furst stated:

“In my opinion, the primary focus in relation to [the defendant’s] future treatment, from both a clinical and risk management perspective, should be focused on measures to ensure abstinence from alcohol or other drugs of abuse.
Without specific and structured interventions, I regard it as more likely than not [the defendant] will relapse into drinking alcohol and/or using illicit drugs over the next several months. This would probably be the case regardless of where he resides. If [the defendant] continues to reside in Sydney he will probably struggle with the stress of social isolation and a lack of social, family or cultural connection, being a trigger for previous drinking/drug use. If [the defendant] returns to the Albury-Wodonga area, he will associate with family and friends who still drink and use drugs.
Therefore, [the defendant] is the type of offender who will be at fairly high risk of breaching his ESO conditions in the near future, even if he does not offend in a violent or sexual manner. He is also unlikely to engage individual counselling such as would be offered through FPS.
In order to avoid an ongoing cycle of incarceration through ineffective community management, drinking, drug use and anticipated breaches, I would strongly suggest that [the defendant] be placed in a longer-stay residential drug and alcohol rehabilitation facility, preferably an indigenous rehabilitation setting, and preferably not having female co-residents.
Such an approach would also likely assist him in gaining more independent living skills, training and/or work experience prior to returning to his family in Albury-Wodonga.
The use of anti-craving agents and aversive agents in the management of his alcohol dependence should also be strongly considered, such as Naltrexone, Acamprosate or Disulfiram. Specialist drug and alcohol input is indicated in this respect.”

43. Ms Pateman made recommendations for the defendant to be referred to the community-based Sex Offender program provided by FPS, but I note that as he is now residing in Wagga Wagga, that would not presently be an option. Ms Pateman also recommended that the defendant could participate either in the EQUIPS addiction program as provided by CSNSW, or alternatively, be referred to a local drug and alcohol service to engage in substance-related intervention.

Section 9(3)(e2): the likelihood that the offender will comply with the obligations of an extended supervision order

44. I am pessimistic that the defendant will comply with the obligations of an ESO, since he is, in my view, under-resourced to do so.

Section 9(3)(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

Section 9(3)(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

45. I have noted that the defendant was on parole when he committed the indecency offence in 2018 and other breaches of his parole conditions, and the CPPO breach in relation to where he was living at that time.

Section 9(3)(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

46. This has already been noted above.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender

47. In the remarks on sentence for the index offence, Lerve DCJ accepted that the defendant was heavily intoxicated at the time, and directed that a condition of his parole be that he:

“... obey all reasonable directions of the Department of Community Corrections in relation to ongoing treatment and counselling for alcohol abuse and participation in a sex offender’s program.”

48. Similar directions in relation to drug and alcohol counselling were made by the sentencing courts following the defendant’s convictions in 2005 for assault occasioning actual bodily harm and in 2014 for affray. His Honour observed:

“I note that [the defendant] has substantial family support. There is the letter from his partner, and I note a number of [the defendant’s] family here in court present today.
I have already found on the balance of probabilities [the defendant] is remorseful, however on the totality of the material before me I am simply unable to find on the balance of probabilities that [the defendant] is unlikely to re-offend or that there are good prospects of rehabilitation.”

Section 21A(4): a victim’s statement

49. I take into account a victim’s statement that has been tendered by the plaintiff.

Conclusion as to whether an ESO is warranted

50. Pursuant to s 5B of the Act, and having regard to the forensic expert evidence as to the level of risk posed by the defendant, the material on which those opinions are based and other relevant matters set out at ss 9(2), (3) and (4) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision when he is released back into the community.
51. In view of the level of risk posed by the defendant of committing another serious offence and the need for treatment and supervision, I decline to exercise my discretion to not make an order for an ESO.

Proposed length of the ESO

52. The plaintiff seeks an ESO of five years’ duration, in light of the deep-seated nature of the defendant’s issues that leave him at risk of committing a further serious offence, as defined in the Act. The defendant submits that five years is excessive, and relies upon the opinions of Mr Sheehan and Dr Furst that a shorter period is appropriate.
53. In his report, Dr Furst said:

“The duration of [the defendant’s] ESO is a matter for the court to determine based on the available evidence and clinical/supervision requirements. A lengthy order is probably unnecessary, [the defendant] potentially becoming demoralised at the prospect of a long period of supervision. A short order is unlikely to achieve the desired goals, including time required for his potential admission to a structured residential drug and alcohol rehabilitation facility. Therefore, I am of the opinion that a period of 3 years is both reasonable and optimal in the circumstances.”

54. Dr Sheehan said:

“I understand that the State of NSW seeks a supervision order of five years. In the event that it is determined that [the defendant’s] risk of a serious sexual offence is ‘unacceptable’ in the absence of supervision, I would suggest that a figure between three to five years would be realistic, given that the features of risk are chronic and unlikely to be resolved in the short term. Some compromise in the making of the ESO may be helpful in obtaining [the defendant’s] willing cooperation with the order, which is a central element to its’ effectiveness.”

55. It may appear counter-intuitive to fix an ESO for a shorter period than that which is sought when the defendant’s issues are as profound as the forensic experts have found them to be, and which I accept. However, those same experts propose a shorter period as an incentive for the defendant to submit to the onerous conditions of the ESO, and I consider that to be a sound strategy. If the defendant does respond positively to a shorter period, the prospects of a better outcome from the perspective of the protection of the community are enhanced.
56. I am of the opinion that it is necessary for the ESO to be for a period of three years.

Proposed conditions of the ESO

57. The defendant opposes some of the conditions that are proposed by the plaintiff to the ESO.

Electronic monitoring

58. The plaintiff proposes a condition in the following terms (with “DSO” referring to the defendant’s departmental supervising officer):

“The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.”

59. Although it is expressed to be discretionary, the defendant’s movements are already subject to electronic monitoring, and it is apparent that they will continue to be so. The plaintiff has submitted that the Department’s intention is that he will be electronically monitored until, ideally, the last 12 months of the ESO.
60. The defendant accepts that there is a present need for electronic monitoring, but submits that the condition should have a “sunset” provision, so that the defendant is encouraged to comply with his movement schedule by knowing that it is for a limited period of time, and proposes the following wording:

“The defendant must wear electronic monitoring equipment as directed by his DSO or any other person supervising him.
If the defendant is not charged with any offence or of breaching the ESO or with any other criminal offence for a period of 12 continuous months from the date of commencement of the ESO, the defendant will no longer be required to wear the electronic monitoring equipment.
If electronic monitoring is removed because of the previous condition, but the defendant is subsequently charged with any offence of breaching the ESO or with any other criminal offence, the DSO or any other person supervising him may reapply the electronic monitoring.”

61. The plaintiff opposes the revised condition. The plaintiff noted that in the week prior to the hearing, the defendant had detoured from his schedule to a caravan park. In submissions made before R A Hulme J at the preliminary hearing, which I understand to be maintained at this stage, the plaintiff submitted that when the defendant was on parole in 2018, his situation deteriorated to a point that he ceased contact with services that he was obliged to attend and his whereabouts were unknown. Should his compliance again deteriorate, his whereabouts could be established instantly. Another benefit would be an assurance that he was not at locations that could facilitate opportunistic attacks, as was the case with the index offence and the indecency offence in 2018.
62. Mr Sheehan was of the opinion that there should be a “timeframe” on the cessation of electronic monitoring. Referring to the scheduling and monitoring conditions generally, Mr Sheehan said:

“These conditions are reasonable and necessary. [The defendant] will find the scheduling requirements extremely difficult to comply with, being antithetical to the spontaneous way he has lived. However, his spontaneity is an important risk factor that he will need to overcome, with the assistance of scheduling. In my view there should be a timeframe specified as to when electronic monitoring could be removed, to increase transparency and give [the defendant] something to work towards.”

63. The proposition that there be a form of temporal restriction to the use of electronic monitoring, in order to encourage the defendant to comply with the strict scheduling that the conditions entail, is attractive, and not without precedent: see, for example, State of New South Wales v Grooms (Final) [2019] NSWSC 353 per Fullerton J. However, in my opinion, the wording proposed by the defendant does not afford the supervising authorities sufficient flexibility to resume electronic monitoring after that period expires, if it would clearly be appropriate to do so. If, for example, the authorities were to become justifiably suspicious that the defendant may be detouring from his schedule of movements for a purpose that would involve a serious breach of conditions, the draft condition proposed by the defendant would not permit them to resume electronic monitoring. Indeed, the circumstances proposed by the defendant that would permit a reintroduction of electronic monitoring (being charged with a criminal offence or a breach of conditions) would likely lead to him being returned to custody, rendering a power to reintroduce electronic monitoring as otiose.
64. I am of the opinion that the condition for electronic monitoring must provide an incentive to the defendant to strictly comply with his schedule of movements. The effect of the condition is that he may be subject to electronic monitoring for a period of 12 months. If, at the end of that period, his DSO has not had a significant concern as to his adherence to his schedule during the last nine months of that period, the electronic monitoring is to cease. If his DSO has had a significant concern in that eight-month period, the DSO or supervising authority may, in its discretion, continue electronic monitoring in periods of up to six months. The DSO has a discretion to continue each period of up to six months of electronic monitoring if there was a significant concern as to the defendant’s compliance with his movements schedule and geographical restrictions at any point during the previous period of up to six months.
65. If, pursuant to these conditions, electronic monitoring ceases, it may be re-introduced if a significant concern as to the defendant’s compliance with his conditions, in terms of his schedule of movements or geographical restrictions, arises.
66. This condition is intended to have the effect of encouraging the defendant to adhere strictly to his schedule of movements in the period of electronic monitoring. It also allows for some “teething issues” in the first three months of the period, without restricting the supervising authorities in any way from deploying their usual range of responses to non-compliance with movement obligations at any point of the ESO.

The address at which the defendant is to reside

67. As noted earlier, on 16 May 2020, the defendant and his partner moved in together. This was to an address in the Riverina area that has been approved by the defendant’s DSO. The condition proposed by the plaintiff as to where the defendant is to reside is as follows: “The defendant must live at an address approved by his DSO”. The defendant proposes instead:

“The defendant must live at (the current address), or such other address as may from time to time be approved by his DSO. Preference should be given to an address in the Riverina area, if possible."

68. At the preliminary hearing, R A Hulme J modified the plaintiff’s proposed condition to read:

“The defendant must live at an address approved by his DSO. Preference should be given to an address in the Riverina area, if possible.”

69. I essentially accept the condition proposed by the defendant. In my opinion, it retains the same degree of control for the DSO that it has under the condition to the ISO and at the same time, assists the defendant with a degree of formal acceptance of his current residential arrangement, as well as a concession that he highly values his family ties, which are in the Riverina area.
70. That said, I am conscious of Dr Furst’s view, which I accept, that the defendant’s family ties in the past have entailed temptations to the heavy consumption of alcohol and the use of drugs. Accordingly, it may be that at a future point, his DSO considers that time away from family influences is appropriate, which may involve a move away from the Riverina area.

Seeking employment

71. The plaintiff seeks a condition as follows:

“If the defendant is unemployed, the defendant must make take all reasonable steps to make himself available for employment, education, training or participation in a personal development program as directed by the DSO.”

72. The defendant opposes this condition as drafted, because, while it is desirable that the defendant be in employment, on its face the defendant could breach the condition, which is a criminal offence, by failing to “take all reasonable steps to make himself available for employment”. The plaintiff notes that employment is only one of the activities that are addressed by the condition, so that if employment is unavailable, the defendant can pursue one of the other activities. The plaintiff submits that a requirement that he pursue lawful activities which will occupy his time will assist him in maintaining his orientation away from the use of alcohol or drugs.
73. The forensic experts have expressed a degree of pessimism as to the defendant’s prospects of not committing further offences when released. All of them have drawn a strong connection between his abuse of alcohol and drugs and his serious criminal behaviour. While I acknowledge the importance of the defendant not being idle, to my mind, addressing that issue must be the priority in crafting appropriate conditions of an ESO. I will modify the condition so that it is in the following terms (noting that Condition 23 refers to an obligation to attend and participate in drug and alcohol rehabilitation programs as directed by his DSO):

“If the defendant is unemployed, the defendant must make take all reasonable steps to make himself available for education, training or participation in a personal development program as directed by the DSO, and is encouraged to make himself available for employment, subject to condition 23.”

Disclosing confidential healthcare information

74. The plaintiff proposes the following condition:

“The defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioners general opinion as to the development of his insight into offending risk factors and attitudes to reduce his risk of offending.”

75. R A Hulme J added the following note to this condition:

“NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant’s engagement with and treatment by healthcare practitioners.”

76. The defendant submits that, even with the addition of the note, the condition is likely to discourage the defendant from communicating candidly with healthcare practitioners. I have referred to the forensic experts identifying an absence of candour, as well as a lack of insight, in the defendant, in what he has told them. For example, the defendant’s claim that he has amnesia in respect of the index offence and the indecency offence is disbelieved. No doubt the defendant’s progress in therapy will partly depend on him developing a relationship of trust with his therapists. In my view, that is not threatened by the condition in the terms sought, and underscored by the added note. I propose to adopt the terms of that condition.

Approval of overnight visitors and contact with persons under 18

77. The defendant is presently residing with his partner. Their plan is that, in due course, their nine-year-old son will join them. In an affidavit read at the hearing, the defendant’s partner stated: “I also want to make sure that the DSO approves [our son] staying with us.” The defendant, however, effectively submits that DSO approval should not be required for that to occur, since the material concerning the defendant’s relationship with his son is to the effect that he enjoys a caring relationship with him. Further, the victims of his sexual offences were teenage girls who were unknown to him.
78. In my opinion, for this purpose, a narrow view of past offences and victims is inappropriate. The defendant has a history of violent offences, as well as of sexual offences. His past victims of violence have included close family members or persons with whom he had romantic connections. Although those past acts of violence do not come within the definition in the Act of a “serious offence”, since none of them constitute a “serious violence offence” as defined, in my opinion, they are nevertheless relevant as past indicators of violent acts generally when he has been affected by alcohol and/or illegal drugs. It is appropriate that the DSO approve the reintroduction of his son to the household.
79. The defendant submits that, to the extent that the proposed conditions would also require permission from the DSO for certain other family members to have contact with him, visit or stay overnight, they also should not require prior DSO approval. These family members include two of the defendant’s sisters, one of whom is an adult and the other who is aged 14 years, and the older sister’s child, who is aged 8 years.
80. As noted earlier, the defendant’s contact with his family is both an asset and potentially a liability, to the extent that through some members, it may again expose the defendant to accepted on-going behaviour of the use of alcohol and illegal drugs. These three members of his family do not come within that category, and by the same token, it has not been suggested that the DSO would withhold permission for the defendant to have contact with them. Tendered at the hearing was an affidavit affirmed by his older sister to the effect that she enforces a “no alcohol and drugs” policy in her household. However, the defendant was residing in that household at a time that she had such a policy when he was charged with the index offence. I am of the view that DSO approval should remain a requirement for such contact and visits.

Conclusion

81. As noted earlier, it will be a challenge for the defendant to comply with the obligations of an ESO, when he is, in my view, under-resourced to do so. Dr Furst’s view that the defendant needs the benefit a residential rehabilitation drug and alcohol program is compelling, but that would require the defendant’s agreement and commitment for it to occur and for it to be successful. He is also without the benefit of a sex offender program. I accept the evidence to the effect that, for the moment, the defendant is convinced that he will resolve his issues when he has the benefit of family support.
82. If that should fail, it would be appropriate, in my view, for the supervising authorities to seek to encourage the defendant to commit to a residential rehabilitation drug and alcohol program, preferably tailored for indigenous persons, rather than responding to breaches of conditions in the usual way, which would simply re-cycle the defendant through the prison system.

Orders

83. I make the following orders:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of three years commencing on 28 May 2020.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule to these orders for the period of the extended supervision order.

(3) Access to the Court’s file for any document shall not be granted to a non-party without leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

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ESO Conditions Colin Ambrym (92138, pdf)