State of New South Wales v Alliband (Final)

[2021] NSWSC 29

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Alliband (Final) [2021] NSWSC 29
Hearing dates:	8 December 2020
Date of orders:	11 December 2020
Decision date:	01 February 2021
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	Extended supervision order imposed for 2 years and 6 months
Catchwords:	HIGH RISK OFFENDER – final hearing – application for extended supervision order – assessment of whether defendant poses an unacceptable risk –extended supervision order imposed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	State of New South Wales v Arthur Alliband [2020] NSWSC 1585
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Arthur Alliband (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) S McGee (Defendant) Solicitors: Crown Solicitor of New South Wales (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2020/199086

Judgment

1. HER HONOUR: By an amended summons dated 23 October 2020, the State of New South Wales (the State) sought a final order under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant, Arthur Alliband, be subject to an extended supervision order (ESO) for a period of 4 years from the date of that order. At that time, the State sought a further order, under s 11 of the Act, directing the defendant to comply with a series of conditions in the Schedule annexed to the summons.

2. In a further amended summons, filed on 7 December 2020 in advance of the final hearing of the summons, the State modified the orders sought by the amended summons by seeking an ESO of 3 years instead of 4 years. The further amended summons also seeks an order pursuant to s 11 of the Act that the defendant be directed to comply with a range of conditions, itemised in an Amended Schedule of Conditions annexed to the summons.

A history of the proceedings

3. On 11 December 2020, after a final hearing of the summons that was heard on 8 December 2020, I made final orders in the ultimate disposition of the summons, including 58 conditions to which the defendant will be subject over the duration of an ESO of 2 years and 6 months’ duration. At that time, and with the end of the 2020 legal term pending, I indicated I would furnish reasons for my decision at a later date. What follows are my reasons.

4. A preliminary hearing of the amended summons dated 23 October 2020 was convened before Wilson J, at the conclusion of which her Honour made a series of interim orders, including an order pursuant to s 10A of the Act that the defendant be subject to an interim supervision order (ISO) from 24 October 2020 for a period of 28 days, and a further order pursuant to s 11 of the Act that he comply with a series of conditions, which were a modification to the Schedule of Conditions annexed to the amended summons.

5. On 10 November 2020, her Honour published her reasons for making those orders[1] .

   1. State of New South Wales v Alliband [2020] NSWSC 1585.

6. Having concluded that interim orders should be made, her Honour made orders pursuant to s 7(4) of the Act for the appointment of a qualified psychiatrist and registered psychologist to conduct separate psychiatric and psychological examinations of the defendant, and to furnish reports to the Court in advance of the final hearing. Dr Pulman, a clinical neuropsychologist and forensic psychologist, and Dr Samuels, a consultant psychiatrist, furnished reports dated 11 November and 18 November 2020, respectively.

7. Wilson J also listed the matter for final hearing on 8 December 2020 and gave directions to the parties, inter alia, for the filing and serving of written submissions. The parties filed and served written submissions by that date and have otherwise complied with the orders made by her Honour for service of evidence in advance of the final hearing.

The final hearing

8. In written submissions filed by Ms McGee, counsel for the defendant, in advance of the final hearing, the Court was advised that the defendant accepted the Court would be satisfied that he poses an unacceptable risk of committing a further serious offence, specifically a serious sex offence within the meaning of ss 4(1) and 5(1) of the Act, if not kept under supervision under an ESO. That concession was sensibly and appropriately made.

9. What remained in dispute between the parties at the final hearing was the duration of the ESO and the form and content of the conditions the State sought to have the Court impose under s 11 of the Act for the duration of the ESO.

10. That being the case, and since the evidence relied upon by the State in support of the interim orders is, in large part, the same as the evidence relied upon for final orders [2] , evidence which was comprehensively reviewed by Wilson J in her reasons for judgment and not in dispute, it is sufficient for the purposes of this judgment to refer to that body of evidence in a summary way.

    2. The reports of Dr Samuels and Dr Pulman were tendered on the final hearing as was the HISOP treatment report of 7 December 2020.

The evidence relied upon by the State

11. The orders sought by the State arise in the context of two discrete episodes of sexual offending in February 2014 and February 2016, in both instances involving the defendant’s sexual abuse of young females aged 13 years and 16 years respectively. The complainant aged 16 also had an unspecified “vulnerability” and was either being managed by, or under the supervision of, “a carer” at the time she was sexually assaulted, although not under the direct supervision of her carer at that time.

12. The defendant was aged 24 and 26 respectively at the time he committed the sexual offences against the young females. He is now aged 31.

13. The defendant has a previous criminal record involving property offences of various kinds, and of increasing seriousness, following his first interaction with the criminal justice system as a child in 2007. Non-custodial sentences were imposed for some of these offences; others were dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The offences committed against the female child in February 2014 were the first recorded offences of sexual offending.

14. The defendant was dealt with in the District Court for the offending in 2014 after he entered pleas of guilty to two counts of sexual intercourse with a child aged between 10 and 14 years. Concurrent sentences of imprisonment totalling 31 months were imposed. A non-parole period of 18 months was fixed. The non-parole period expired on 29 February 2016.

15. The second series of offences (which included the index offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW)) were committed the day after the defendant’s release to parole for the offending the subject of the first series of offences.

16. He was arrested the following day and returned to custody to serve the balance of parole.

17. He was sentenced in the District Court in 2016 for that offending. A sentence of 4 years and 6 months, commencing on 1 July 2016 and expiring on 31 December 2020, was imposed. A non-parole period of 2 years and 11 months was imposed. The non-parole period expired on 30 May 2019. The defendant was not released to parole at that time. He was ultimately released to parole on 23 October 2020. The sentence imposed in the District Court in 2016 will expire on 18 December 2020.

18. The facts relating to the commission of the sexual offences (including the index offence), including the sentencing remarks of both District Court judges, are set out in [28]-[47] of Wilson J’s judgment. I gratefully adopt her Honour’s summary of the facts in her sentencing remarks which should be read as part of this judgment.

19. I also gratefully adopt her Honour’s summary of the psychiatric assessments in which the defendant has participated prior to his most recent assessment by the court-appointed experts at [48]-[64] of her judgment.

20. In that regard, I note that the defendant commenced the High Intensity Sex Offender Program (HISOP) on 3 September 2019. That is a program which is facilitated in the CUBIT Residential Unit at the Long Bay Correctional Complex. It is overseen by treating psychologists. The defendant participated in that program until 9 October 2020. A HISOP treatment report dated 7 December 2020 was served on the parties prior to the final hearing of the summons. Although the HISOP treatment notes were available at the preliminary hearing before Wilson J, the treatment report was not. Neither was it available at the time the court-appointed experts prepared their reports in November 2020. Dr Samuels and Dr Pulman have since been provided with the report and were invited to comment upon it in the course of giving their evidence in a concurrent session on 8 December 2020.

21. I also note that a Risk Assessment Report was prepared by Ms Rouse, Acting Senior Psychologist of the Serious Offenders Assessment Unit, in February 2020 at the request of the Commissioner, Corrective Services New South Wales (CSNSW) in anticipation of an application by the State for orders under the Act. On 6 March 2020, a Risk Management Report was prepared by Alexandra Crichton, a Community Corrections Officer within the ESO Team, in accordance with ss 9(3)(d1) and 17(4)(d1) of the Act.

22. Wilson J summarised the content of those reports, together with various risk assessments that have been administered whilst the defendant was in custody, at [72]-[113] of her judgment. I gratefully adopt her Honour’s summary of that material.

23. For present purposes, it is sufficient to note that after Ms Rouse utilised various actuarial risk assessment instruments, and after considering various risk assessments administered by others, the defendant yielded a “Well Above Average” risk of sexual offending, suggesting that he would require a high level of supervision on his eventual release from custody, and a high level of intervention to address what Ms Rouse identified as “his outstanding criminogenic needs”. Ms Rouse identified various risk factors, some of which are associated with the defendant’s traumatic childhood. They included impulsivity and problem-solving deficits, intimacy deficits and a tendency to identify emotionally with children or young adults. She regarded that tendency as consistent with his presentation in the interview as “immature and naïve”.

24. Ms Rouse considered the commission of the index offence on the first day of his release to parole, together with the presence of multiple dynamic risk factors, suggest that the defendant “will require ongoing management and supervision”.

25. It is also sufficient for present purposes to note Ms Crichton’s view that, having regard to the contents of the Risk Assessment Report prepared by her in March 2020, strategies designed to manage the risk of the defendant reoffending should include monitoring his mental health, including a referral to psychological services to address what she described as his ongoing feelings of grief and loss, and the development of a case plan to assist him to address and manage his risk factors, including restrictions on his contact with children and prohibiting him from entering places identified as “high risk”.

Additional evidence tendered on the final hearing

26. In addition to the State’s tender of the HISOP treatment report of 7 December 2020 at the final hearing, the State also relied upon a number of affidavits affirmed by Ms Jessica Murty, solicitor, annexing various documents and other materials, produced by either or both of the Commissioner of the New South Wales Police Force or the Commissioner of Corrective Services pursuant to orders issued under s 25 of the Act, including case note reports maintained by Corrective Services New South Wales. Those affidavits were also read in support of the orders made in the preliminary hearing. An affidavit by Ms Kelli Grabham, a High Risk Offender Applications and Operational Governance Officer with the ESO Team, affirmed on 17 November 2020, was also read in support of the application for final orders and at the preliminary hearing.

27. Two further affidavits, one affirmed by Ms Murty on 8 December 2020, the day of the final hearing, and one affirmed by Ms Grabham, also on that date, were tendered by the State without objection.

28. In her affidavit, Ms Grabham reported that on 7 December 2020 she accessed the CSNSW Offender Information Management System and printed certain case notes in relation to the defendant’s conduct and progress whilst subject to the ISO. Those notes were annexed to her affidavit. The only report of significance was the result of a cursory search of the applicant’s internet history on his mobile phone which revealed that on 1 and 2 December 2020 he had accessed multiple pornographic sites without notifying his Departmental Supervising Officer (DSO) within 24 hours of doing so, as he was obliged to do under the ISO. The phone was seized and subjected to further interrogation. That interrogation revealed that the titles of the pornography sites viewed by the defendant were strongly suggestive of his interest in viewing sexual activity with underage females. When questioned, the defendant said he had accessed the pornographic sites because he was “bored” and that he had been viewing pornography approximately once or twice a week.

29. The case notes also record that on 5 December 2020, during an unannounced visit at the residence of a friend of the defendant who was known to the defendant’s DSO, the defendant disclosed that he had consumed alcohol during his birthday lunch that day which might register on the breath testing equipment. A negative result was returned on the administration of the breath test.

The oral evidence of the court-appointed experts and their reports

30. Before dealing with the resolution of the matters in dispute in the final hearing (namely the duration of the ESO and the conditions to be imposed), what follows is a summary of the reports of the court-appointed experts, Dr Pulman and Dr Samuels. Given the large degree of concurrence in their views, and the fact that they gave concurrent evidence at the final hearing, it is sufficient that I proceed by way of a summary of their evidence.

31. In the evidence given in concurrent session, the State invited both experts to consider the question of the duration of the ESO in light of the HISOP treatment report of 7 December 2020 and Ms Grabham’s most recent affidavit, and invited further elaboration for the opinions expressed in their reports that an ESO of 2 years or a minimum of 2 years’ duration was reasonable and appropriate. It will also be necessary to refer to some of their evidence in greater detail to the extent that their views inform the resolution of other issues in dispute in the ultimate disposition of the summons, including the proposal for the management of risk by the imposition of court-imposed conditions for the duration of the ESO.

The report of Dr Samuels

32. Dr Samuels interviewed the defendant in person for one hour on 18 November 2020. He noted that although the defendant has established some community associations since his release to parole, he has had no contact with his father who is in a nursing home. He has not sought to re-establish contact with his 12 siblings. His mother is deceased. Both of his parents had mental health and drug and alcohol issues. The defendant was not prepared to describe in detail the physical and sexual abuse reported by him in previous psychiatric assessments or in custody-based risk assessments.

33. Dr Samuels noted the defendant was educated to Year 10 with a very limited employment history thereafter. He noted the defendant had past relationships and has a number of children to different partners. Two of his children are deceased.

34. The defendant admitted drug use in custody before commencing the HISOP treatment program but denied using alcohol since his release. He told Dr Samuels he tried smoking cannabis but disliked its effects.

35. Dr Samuels considered that the defendant presented as functioning with low to normal IQ without any overt symptoms of an autism spectrum disorder. He considered the defendant may meet the criteria for Attention Deficit Hyperactivity Disorder. Significantly, Dr Samuels also considered it was highly likely the defendant displayed behaviour consistent with complex trauma arising from childhood abuse and parental neglect, systemic and unstable housing, limited education and significant emotional losses, including the death of some of his children and the removal of others into State care.

36. The defendant told Dr Samuels he was bisexual but had a preference for females. He denied an interest in young girls. Although Dr Samuels did not diagnose a paraphilic disorder, he considered there may be a level of minimisation or denial in the defendant’s claims to have been unaware of the age of the young females against whom he has offended in the past. Dr Samuels did, however, identify what he considered a “risk scenario” as an opportunity to offend against a young female, accompanied by a series of factors which may heighten that risk, including loss of support, isolation, difficulties with housing, depression, anxiety, employment issues, and drug or alcohol use. These matters, together with the nature of the defendant’s offending on his release to parole in 2016, heightened Dr Samuels’ concerns in relation to the defendant’s future recidivism and the commission of another serious sex offence.

37. Although not favouring a statistical assessment of the likelihood of the defendant committing a further serious sex offence, ultimately Dr Samuels considered the defendant remained at a high risk of committing an offence of that kind, with psychometric testing placing the defendant in the “well above average risk of sexual offending”.

The report of Dr Pulman

38. Dr Pulman interviewed the defendant in two scheduled appointments on 17 November 2020 for a total duration of four hours. The defendant gave a broadly consistent account of his childhood, his education and his employment history to that given to Dr Samuels. He also described a similar substance abuse history. He told Dr Pulman that he was finding it difficult to remain drug-free and was hoping to have access to an opioid substitution program.

39. With respect to Dr Pulman’s assessment of risk, in contrast to Dr Samuels, Dr Pulman used the conventional tools of statistical assessment which positioned the defendant in the well above average risk range of sexual reoffending, with a score 6.9 times higher than the risk of reoffending for a “typical” sex offender. Dr Pulman acknowledged the qualified predictive validity of the statistical tests however, after combining those results with her clinical judgment, she determined the defendant’s risk level of sexual reoffending to be “high”. She did not distinguish between the defendant’s risk of future sexual offending generally and the risk of him committing a serious sex offence as defined in the Act. She noted the defendant’s history of sexual offending, and the views he expressed from time to time during the HISOP treatment program which suggested he had gained some insight into his offending behaviour. She also noted his complex psychiatric history and his history of poor social adjustment.

40. Dr Pulman considered that amongst the various risk factors, the defendant’s executive dysfunction rendered him vulnerable to poor impulse control and addictive behavioural tendencies. She strongly recommended he participate in long-term psychotherapy, a focused drug and alcohol rehabilitation program and a sex offender maintenance program.

41. Dr Pulman also noted the defendant’s results on assessments directed to measuring his current intellectual functioning as showing “significant differences between indexes, making his Full-Scale IQ a potentially misleading representation of his true intellectual abilities”. Notwithstanding that qualification, Dr Pulman concluded that, overall, the defendant “is functioning in the Average range of intellectual ability”, qualified by “demonstrated specific cognitive deficits in working memory, which relies on attention and concentration abilities, and in executive function, mainly around inflexible thinking”.

38. In her submissions, Ms McGee emphasised Dr Pulman’s explanation for the origin and significance of these specific cognitive deficits in the following passage from her report (references omitted and emphasis added):

[The defendant’s] observed deficits of working memory and executive function, when interpreted in the context of his background of childhood abuse and neglect, are consistent with a diagnosis of Complex PTSD/trauma. A significant body of research supports that complex trauma exposure is associated with structural and functional alterations in early brain development, resulting in devastating effect on behaviour, cognition and psychological wellbeing across the lifespan. Reduced working memory/ sustained attention and reduced executive function have been commonly observed together with psychiatric disorders including addiction, depression and anxiety, anti-social behaviour, self-harming behaviours, personality disorders and dissociative disorders. [The defendant] has been diagnosed with all of these disorders at some point in his adult life.

43. The issue of the defendant’s intellectual functioning as a potential risk factor, and how it should be addressed and managed in the medium to long-term, was addressed by both doctors in their evidence.

44. Dr Pulman was taken by Ms McGee to that part of her report, extracted above, in which she stated that the defendant “showed significant differences between indexes, making his Full-Scale IQ a potentially misleading representation of his true intellectual abilities”. Dr Pulman was asked whether, in light of those observations, and despite there being no evidence of intellectual impairment or disability, the defendant’s ability to fully comprehend what is expected of him, both under court-imposed supervision orders and more generally in the community, might be adversely affected by trauma induced maladaptive capabilities in executive functioning. She gave evidence that to her observation the defendant has demonstrated difficulties using the knowledge and insights he has gained through participation in the HISOP program, not as a result of unwillingness or a lack of commitment to embrace prosocial attitudes and behaviours, but because achieving long-term changes in behaviour in individuals who have entrenched executive functioning deficits are not surprising. She gave the following evidence:

I think it is overall, if I could draw on the results of the neuropsychological assessment that was conducted, we can see that whilst overall if you were to rate intellectual ability, you are rating [the defenfant] in the low average to average range, but he has these higher order reasoning or executive deficits which gives him a fairly immature approach to life and his low self-esteem, poor development of self-concept. He does tend to relate, from a maturity perspective, to adults or younger females than his own age, but I think that that is supported, what he says there about life experience rather than biological age, he is identifying with younger women, and it would suggest, from the neuropsychological test results, he has that degree of immaturity and would feel perhaps more comfortable, more confident in their presence, than he would with adults, adult females of his own age.

So he is, from my perspective, looking at associating with more vulnerable type of females that might have experienced the kind of life that he experienced as a child himself and he associates with them and feels more comfortable, and I think in that sense there is that ongoing risk that he would continue, without specifically having a sexual deviant interest per se in younger women, his association with them gives him a degree of comfort and confidence in approaching them and sexual offending, the risk of sexual offending.

45. Dr Pulman gave evidence with which Dr Samuels agreed that what she described as “relapses with respect to alcohol use and access to pornography” (a reference to the case notes produced by Ms Grabham) were foreseeable in light of the defendant’s transition from a highly structured custodial environment into a less structured environment, reinforcing the need for sex offender treatment and drug and health alcohol treatment to be included as “critical components” of the defendant’s management under supervision in the community. While both experts acknowledged as a positive factor the defendant’s successful passage through the HISOP treatment program, they confirmed that the program itself had highlighted strengths, weaknesses, deficits and areas of risk, and that passage through a program of that kind in a custodial setting is only the first step of an ongoing process of a participant’s successful transition back into the community without sexual recidivism.

46. Both experts were of the considered view that the defendant’s adherence to a strict treatment maintenance program, administered by the State in accordance with its obligations to supervise him under the ESO, should include a structured course of psychotherapy to address his childhood trauma and the psychosocial vulnerabilities that it has generated when the applicant is ready to confront his past. Both experts were of the view that a treatment program of that kind requires a long-term commitment which may require review and extension, even after a period of years. It was in that context that they offered their views about the length of the ESO.

The length of the ESO

47. For the purposes of preparing their reports, both Dr Pulman and Dr Samuels were invited to consider the length of the ESO. Although expressed in slightly different ways, they were ultimately of the shared view that upon their review of the evidence available at the time of the preparation of their reports, and in their assessment of the risk of the defendant committing another serious sex offence in light of that evidence, coupled with the need to ensure the defendant has the opportunity to participate in a treatment program and to benefit from that treatment, an ESO in the order of 2 years’ duration was appropriate. Both experts confirmed their view that during the currency of the ESO ongoing assessments should be made to determine whether the court-imposed interventions on the defendant’s liberty have had a positive impact, and whether substantive behavioural changes have been made, with a view to modifying or changing some or all of the conditions.

48. In submissions filed by the defendant in advance of the final hearing, Ms McGee submitted, consistently with the views expressed in the reports of Dr Samuels and Dr Pulman, that a supervision order of 2 years’ duration was both sufficient and appropriately reflecting the objects of the Act.

49. The State maintained its submission that an ESO of 3 years’ duration was necessary having regard to the high risk of the defendant’s reoffending by the commission of a further serious sex offence, a risk which had been assessed by both of the court-appointed experts in their furnished reports and confirmed in their evidence as current and continuing.

50. The State invited both of the experts to confirm their risk assessment in light of the defendant’s recent access to pornographic sites as evidence of his continued sexual preoccupation with teenage girls, despite having informed Dr Samuels that he had previously used pornography but claimed no interest in continuing to do so.

51. Dr Samuels gave evidence that he was not particularly surprised at the applicant’s access of pornography. Dr Samuels did not place great weight or reliability on the defendant’s claim to be disinterested in pornography. He said, “in these matters [which I take to be a reference to his experience in interviewing sexual offenders] that’s a very common response”. Dr Pulman also considered there was an element of predictability in the defendant’s access to pornography which focused on the sexual activity of underage females. She was concerned that he will likely access that material in the future and, for that reason, it is an ongoing risk that needs to be managed. She went on to say, in light of the defendant’s previous offending history, including having offended sexually against an underage female within hours of being released to parole, there is a pattern of behaviour which, without close scrutiny, is strongly suggestive of a sexual preoccupation with young females. Dr Samuels also noted the defendant’s use of a particular modus operandi in his sexual offending which seems to invoke disinhibition through the use of alcohol or other substance also increases the likelihood of the recurrence of some reoffending is ongoing and needs to be managed.

52. Both experts also regarded substance abuse generally as a critical risk factor that needs to be managed and that the defendant should be encouraged to identify alternative methods of coping with stress in his life to avoid the potential relapse into substance abuse with its disinhibiting effects.

The conditions to which the defendant will be subject under the ESO

53. In its written submissions, the State notified its intention to seek an order for the imposition of all of the proposed conditions of supervision itemised in the amended schedule of conditions annexed to the amended summons.

54. The number and form of those conditions was the subject of ongoing discussion between the parties prior to the hearing. In the result, Ms McGee annexed a table to her written submissions filed on 7 December 2020 which set out the conditions proposed by the State, the defendant’s attitude to the condition proposed, including an alternative form of the condition where it was opposed, and the plaintiff’s ultimate response to those proposals. That table became the subject of focused submissions at the final hearing.

55. The dispute between the parties at the conclusion of the hearing was narrowed further to include whether some of the proposed conditions should be imposed at all (Conditions 9, 38, 40, 41, 43 and 57) or whether they should be imposed in the form proposed by the State or according to the amendments suggested by the defendant (Conditions 16, 17, 30, 36, 44, 46, 56 and 58).

56. At the conclusion of the hearing, I invited the State to propose a further amendment to two of the conditions in dispute (being Conditions 16 and 56, as to which objection was taken) and to provide a note reflecting the State’s final and considered position.

57. By email on 9 December 2020, the Court was advised of the State’s final position. I have resolved to the view that Conditions 16 and 56 should be imposed in the form that reflect the State’s final position. I am satisfied that in their present form they fairly accommodate the concerns raised by the defendant and are otherwise an appropriate condition of supervision to impose in accordance with s 11 of the Act.

58. In the result, the only issues which remained in dispute before final orders were made were the length of the ESO and whether Conditions 9, 17, 30, 36 38, 40, 41, 43, 44, 57 and 58 in the amended schedule to the further amended summons should be imposed and, if they are to be imposed, the form in which they should be expressed.

59. Those conditions can be meaningfully grouped into conditions which propose that:

1. The defendant be subject to a curfew (Condition 9);

2. Should the defendant attend any premises used solely or mainly for the sale or display of sexually explicit material or sexually explicit entertainment, whether he is obliged to notify the DSO 24 hours in advance of attending or within 24 hours of having attended (Condition 17);

3. Similarly to (b) above, if the defendant engages the services of a sex worker, whether he is obliged to notify the DSO within 24 hours of securing those services or within 24 hours of having secured those services (Condition 30);

4. The defendant provide the details of telephone numbers, service provider account numbers and details for the use of the internet and email addresses, usernames and/or any relevant passcodes, pin codes and passwords used by the defendant and that he not use any coded or encrypted messaging application or service and consent to a DSO remotely inspecting any internet account used by the defendant, including the internet service provider account in order to monitor compliance with the order and consent to the service provider sharing that information with the DSO (Conditions 36, 38, 41 and 43);

5. The defendant must not access or connect to any social networking service or application without the prior approval of a DSO (Condition 40);

6. The defendant must submit to the search of his person, residence or vehicle and any computer electronic and communication to such device or any storage facility under his control (Condition 44);

7. The defendant must agree to any information about his management and supervision being shared between those persons and agencies involved in his supervision, including, but not limited to, a DSO, members of the NSW police force involved in investigating compliance with the ESO and CSNSW (Condition 57);

8. The defendant must agree to the disclosure of his criminal history to any healthcare professional treating him (Condition 58).

60. Dr Pulman and Dr Samuels were invited to express their views about some of the conditions in dispute. Their evidence was focused principally upon the extent to which the defendant’s access to pornographic material should be qualified, conditioned or supervised in order to minimise the risk of the defendant committing another serious sex offence, and the extent to which the defendant’s use of electronic media generally, and social network platforms or applications in particular, should be qualified or conditioned with the same objective.

61. Although the question whether conditions of that kind should be imposed is a matter for the evaluative judgment of the Court, the evidence of the experts was of assistance in informing that evaluative judgment.

62. In his report, Dr Samuels suggested that restrictions on the defendant’s access to the internet and other electronic communication platforms were appropriate given that either or both a computer or remote device could be utilised to make contact with vulnerable young women. In his evidence, Dr Samuels expressed a further concern that the defendant might utilise electronic devices to download images of sexual violence or images of underage or teenage girls, heightening his risk of acting on those preoccupations and making contact through the internet with potential young females as sexual partners. He confirmed that when his concerns were expressed in his written report it was largely a theoretical concern which had materialised, at least to some extent, by the defendant’s access of particular pornographic sites while subject to the ISO.

63. While both Dr Samuels and Dr Pulman acknowledged that access to social media is for many people a way of normalising social relationships, and that a total prohibition on the defendant’s use of social media might be counter-productive for that reason, some close monitoring of his use of that media was important, perhaps to the extent of prohibiting access to particular pornographic sites, in particular sites involving the depiction of young females engaging in sexual activity and images depicting sexual violence, with the provision of clear sanctions for a breach of those conditions. That said, both experts acknowledged the difficulties involved in monitoring and enforcing a condition of that kind where the defendant may, for example, be attempting to legitimately access age-appropriate pornographic material but inadvertently view other materials of a more deviant pornographic kind. Both experts also noted the potential therapeutic benefit in accessing adult heterosexual pornography.

64. In large part and, as I understand it, in recognition of the evidence of the experts and their insights into the difficulties in monitoring the defendant’s use of electronic devices without an absolute prohibition on their use (a condition which was not ultimately advanced by the State in any event), the parties reached what I regarded as a sensible compromise, both in the form of what became Condition 46 in the final orders (dealing with the defendant’s access to pornographic materials in various restricted categories). A number of other conditions imposed as part of the Court’s final orders (Conditions 31-40) deal, inter alia, with the obligation on the defendant to obey all reasonable directions of a DSO as to his use of the internet and electronic devices, a use which must be disclosed to a DSO after the device has been seen and approved for use by that officer, coupled with an absolute prohibition on the defendant’s use of encoded or encrypted messaging applications or services and a prohibition on joining or connecting to any social networking service or application without the prior approval of a DSO.

65. The Court has, of course, the legitimate expectation that over the duration of the ESO, the DSO involved in the supervision of the defendant from time to time in coordination with the various statutory agencies which have overarching responsibilities for his supervision and for the implementation of the court orders, will monitor, manage, maintain and review the defendant’s progress in adhering to the court-imposed conditions, and that some of the conditions that are to be imposed at this time, in particular his adherence to a curfew which I have imposed over the defendant’s opposition, and the wearing of electronic surveillance equipment which was not opposed, might be varied or relaxed altogether.

66. I have resolved to a compromise between the State’s insistence on an ESO of 3 years’ duration and the defendant’s consent to an ESO of 2 years’ duration by imposing an ESO of 2 years and 6 months’ duration. I am satisfied that in all the circumstances that reflects the competing statutory objectives enshrined in the Act.

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Endnotes

Decision last updated: 02 February 2021