State of New South Wales v Baldwin

[2019] NSWSC 1882

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Baldwin [2019] NSWSC 1882

Hearing dates:

13 December 2019

Date of orders:

19 December 2019

Decision date:

19 December 2019

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) Pursuant to s 5B and s 9(1)(c) of the Crimes (High Risk Offenders) Act 2006, the defendant, Wayne Norman Baldwin, be subject to an Extended Supervision Order (“ESO”) for a period of two years from the date of these orders.

 

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, direct the defendant, for the period of the ESO, to comply with the conditions set out in Annexure A to these orders.

 

(3)   Access to the Court file not be granted to a non-party to the proceedings without the leave of a Judge of the Court, save as to the following documents:

    (a) all Court orders;
   (b) all reasons for judgment;
   (c) transcript of the proceedings;
   (d) written submissions;
   (e) the text of any affidavit read in the proceedings other than the Victim Statement dated 10 December 2019.

Catchwords:

HIGH RISK OFFENDERS – application for an Extended Supervision Order – defendant has multiple convictions for sexual abuse of young boys – second supervision order – intrusive conditions – risk posed – community safety paramount – privilege against self-incrimination – conditions requiring consent to search and seizure – whether engages privilege – whether privilege abrogated by statute – clear statement rule

Legislation Cited:

Child Protection (Offenders Registration) Act 2000
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:

Anton Piller KG v Manufacturing Processes Limited [1976] 1 Ch D 55
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Environmental Protection Authority v Caltex (1993) 178 CLR 477
Gemmell v Le Roi Homestyle Cookies Pty Limited (in liq) (2014) 46 VR 583
Long v Specifor Publications Pty Limited (1988) 44 NSWLR 545
Lynn v State of New South Wales [2016] NSWCA 57
Meneses v Directed Electronics OE Pty Limited [2019] FCAFC 190
R v Wayne Baldwin [2004] NSWCCA 21
State of New South Wales v Baldwin [2016] NSWSC 1141
State of New South Wales v Baldwin [2016] NSWSC 1498
State of New South Wales v BG [2019] NSWSC 200
State of New South Wales v Dillon [2018] NSWSC 1626
State of New South Wales v Grooms (Final) [2019] NSWSC 353
State of New South Wales v John Owen Conway [2011] NSWSC 976
State of New South Wales v John Raymond Holschier [2016] NSWSC 234
State of New South Wales v McQuilton [2019] NSWSC 265
State of New South Wales v Sleeman [2018] NSWSC 562
State of New South Wales v Steven Single [2019] NSWSC 176
State of New South Wales v TT [2018] NSWSC 358
State of NSW v Wayne Norman Baldwin [2019] NSWSC 1327
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Wayne Norman Baldwin (Defendant)

Representation:

Counsel:
S Climo (Plaintiff)
A Hughes; J Lucy (Defendant)

  Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2019/263513

Judgment (Revised from transcript)

1. By prayer 5 of a summons filed 23 August 2019, the State of New South Wales (the State”) seeks an extended supervision order (“ESO”), under the Crimes (High Risk Offenders) Act 2006, (the “HRO Act”) for a period of 2 years against the defendant, Wayne Norman Baldwin. This judgment addresses that claim for relief and certain other forms of the relief that were sought.

2. On 14 October 2016, I made an ESO against Mr Baldwin for a period of 2 years and 10 months (State of New South Wales v Baldwin [2016] NSWSC 1498; Baldwin (No 2)). Earlier Wilson J had made an interim supervision order in relation to Mr Baldwin (State of New South Wales v Baldwin [2016] NSWSC 1141; Baldwin (No 1)).

3. As the defendant has, since that time, served periods in custody for breaching the ESO that I imposed, the term of that ESO has been extended such that it now expires on 20 January 2020.

4. Prayer 1 of the summons filed by the State sought orders under s 7(4) of the HRO Act for the appointment of a psychiatrist and a psychologist to examine Mr Baldwin and for him to attend the examinations. Orders to that effect were made by Cavanagh J on 26 September 2019 (State of NSW v Wayne Norman Baldwin [2019] NSWSC 1327). Prayers 2, 3 and 4 of the summons sought various forms of relief by way of interim supervision orders and interlocutory orders. Those prayers for relief were not ultimately pressed, as at the relevant time Mr Baldwin was in custody.

The HRO Act

5. Section 3 of the HRO Act provides:

“(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)   Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.”

6. Section 5H of the HRO Act enables the State to make an application for an ESO against an “offender”, although this is qualified by s 5I(1) so that it is only applicable in respect of a “supervised offender”.

7. Section 5I(2) provides, inter alia, that a “supervised offender” is an offender who when the application for the order is made is in custody or under supervision under an existing ESO. There is no issue that this condition has been established in this case. Section 6(1) of the HRO Act provides that an application for an ESO “may not be made until the last 9 months of the offender's current custody or supervision”. The summons was clearly filed in that period. Section 6(3) required the application to be accompanied by material that addressed the requirements in s 9(3) and to include a report from a suitably qualified expert assessing Mr Baldwin’s likelihood of committing a serious offence. These provisions were also complied with. Section 7 of the HRO Act specifies various procedural requirements that must be complied with prior to a final hearing. Again, there was no issue that these requirements were satisfied.

8. Section 5B provides that the Court “may” make an ESO if:

“(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b)   the person is a supervised offender (within the meaning of section 5I), and

(c)   an application for the order is made in accordance with section 5I, and

(d)   the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

9. It follows from what I have stated that s 5B(b) and (c) are satisfied. In relation to s 5B(a), a “serious offence” is defined by s 3 to be either a "serious sex offence" or a “serious violent offence”. Section 5(1) defines a "serious sex offence" as including an offence under Division 10 of Part 3 of the Crimes Act 1900 where, in the case of an offence committed against an adult or a child, the offence is punishable by imprisonment for 7 years or more. Section 5(1)(d) extends the definition to include an offence that, at the time it was committed, was a serious sex offence for the purpose of the HRO Act. I will later outline Mr Baldwin's criminal history. It includes the commission by him of two counts of indecent assault upon a child under the age of 16 years contrary to former s 61M(2) of the Crimes Act 1900. That provision has been repealed, but it was found within Division 10 of Chapter 3 of the Crimes Act and such an offence carried a maximum penalty of 10 years imprisonment. As I will explain, Mr Baldwin received a custodial sentence for these offences. It follows that Mr Baldwin is an “offender” who has served a sentence of imprisonment for a serious offence in custody and thus, s 5B(a) is satisfied.

10. In relation to s 5B(d) the concept of an “unacceptable risk” of the specified type is expanded upon by s 5D, which provides:

“For the purposes of this Part, the Supreme Court is not required to determine 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.”

11. In this regard, the phrase “unacceptable risk” in s 5B(d) and 5D is to be given its everyday meaning within its context and having regard to the objects of the HRO Act (see Lynn v State of New South Wales [2016] NSWCA 57 at [55] to [58]); “Lynn”). I have already outlined what the objects of the HRO Act are.

12. Section 9(1) provides that the Court “may” determine an application for an ESO by making an order or dismissing the application. Section 9(2) provides that:

“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.”

13. Section 9(3) provides

“9(3)   In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a) (Repealed)

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)   the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

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

(e)   any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

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

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

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

(g)   the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h)   the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

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

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

14. The factors enumerated in the statutory predecessor to s 9(3) have been held to be relevant to the exercise of a power to make an ESO, but not to the anterior determination of whether an offender poses an unacceptable risk (see Lynn at [48]). The same applies to s 9(2) and 9(3) in their current form.

15. Section 11 of the HRO Act deals with the conditions that might be imposed as part of an ESO. It provides:

11(1)   An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender:

(a)   to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)   to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b)   to make periodic reports to a corrective services officer, or

(c)   to notify a corrective services officer of any change in his or her address, or

(d)   to participate in treatment and rehabilitation programs, or

(e)   to wear electronic monitoring equipment, or

(ea)   to reside at an address approved by the Commissioner of Corrective Services, or

(f)   not to reside in or resort to specified locations or classes of locations, or

(g)   not to associate or make contact with specified persons or classes of persons, or

(h)   not to engage in specified conduct or classes of conduct, or

(i)   not to engage in specified employment or classes of employment, or

(j)   not to change his or her name, or

(k)   to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m)   to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n)   to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.

(2)   An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

16. At this point, three matters should be noted about s 11. First, the operative criteria for the imposition of a condition is that the Court considers it to be “appropriate”. In Lynn it was held that in addressing whether to exercise the discretion to make an ESO, consideration should be given to the appropriate conditions which might be imposed before considering whether such an order is otherwise appropriate (see Lynn at [149] per Gleeson JA). Further in Lynn at [124], Basten JA stated:

“The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps which are not appropriately described as temporal stages, one consequent of the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violent offences; (ii) the appropriate conditions which might be imposed as part of an extended supervision order; (iii) the likely effect of such an order in removing or diminishing the risk; and (iv) if an order is otherwise appropriate whether there are factors personal to the offender which would militate against making the order.”

17. Second, s 11(1) expressly provides that the particular types of conditions listed in s 11(1)(a) to (n) do not limit the type of conditions that can be imposed.

18. Third, a number of the types of conditions listed in s 11(1)(a) to (n) clearly contemplate the provision of information by the offender to the supervising authorities. They include obligations akin to the reporting obligations imposed under Part 3 of the Child Protection (Offenders Registration) Act 2000 (HRO Act, s 11(1)(l)). Those reporting obligations include an obligation to provide information about such matters as a person's address, the name of each person that resides at the address, the make, model, registration, colour of their car, as well as details of tattoos or permanent distinguishing marks (see Child Protection (Offenders Registration) Act 2000, s 9(1)).

19. At the hearing of this matter, it was contended on behalf of Mr Baldwin that he did not present an “unacceptable risk” as referred to in s 5B(d) of the HRO Act. It was otherwise submitted that the proposed conditions that were sought were generally too onerous and should not be imposed, and in one particular respect, infringed his privilege against self-incrimination such that there was no power to impose them.

20. To address those issues, it is first necessary to set out Mr Baldwin’s personal background and criminal history, as well as the effect of the material tendered at the hearing.

Personal and Criminal Background

21. Mr Baldwin was born in 1946. He is now 73 years old. One of the reports commissioned under s 7(4) of the HRO Act was from Dr Kerry Eagle, forensic psychiatrist. Dr Eagle’s report describes Mr Baldwin has having been raised in Sydney in a stable home. However, Mr Baldwin reported being sexually assaulted by a cousin when he was 12 years old. After finishing year 10, Mr Baldwin joined the Royal Australian Navy (“RAN”). He was engaged within the RAN for about 10 years. He also reported being sexually assaulted by older navy personnel. Mr Baldwin was present during the collision of the ‘HMAS Melbourne’ and the ‘HMAS Voyager’ and assisted in the retrieval of bodies. Later, he was diagnosed with post-traumatic stress disorder (“PTSD”) and alcohol dependency. Mr Baldwin was medically discharged in 1981. He worked in various positions thereafter. In 2008, Mr Baldwin underwent prostate surgery which was said to have an effect on his sexual function. He underwent further surgery in 2010 and reported to Dr Eagle that he was unable to gain or maintain an erection.

22. The following summary of Mr Baldwin’s criminal history of sexual offending against boys in the period 1994 to 2008 is taken from the judgment of Wilson J in Baldwin (No 1) at [11] to [15]:

“11.   The defendant’s record of sexual offences against children began with a conviction in 1978 for an offence of indecent assault, the victim of which was a 15 year old boy. The offence recognised acts of both fellatio (which at the time constituted an indecent assault rather than an act of sexual intercourse, as it would now be), and fondling the victim’s genitals. The defendant was sentenced to a term of 6 months hard labour, to use the then current terminology.

12.   In 1994 the defendant was convicted in Queensland of a number of sexual offences, all of them a type of indecent assault. The offences had been committed over a two year period against two children aged, respectively, 12 and 14 years old. The defendant had been in a position of authority over the children and had abused that trust to assault them.

13.   After serving the sentence imposed upon him in the Southport District Court, being a total effective term of 12 months imprisonment with eligibility for release to parole after 4 months, the defendant offended again in New South Wales. He was convicted in Byron Bay Local Court of an aggravated indecent assault committed in May 1994 and sentenced to a further term of imprisonment, a period of 19 months with a non-parole period of 4 months. The victim was a young teenage boy.

14.   Perhaps in the context of a sexual relationship with a 16 year old boy, the defendant incurred his next criminal conviction, for an offence of loitering near a school being a convicted sex offender. The offence, which appears to have occurred when the defendant was waiting at the school of a 16 year old child with whom he was involved, was committed in September 2007. The defendant was convicted of the offence at the Burwood Local Court in March 2009 and sentenced to 9 months imprisonment, with a non-parole period of 2 months.

15.   Soon after, he was convicted of further offences of a sexual nature, being dealt with in the Sydney District Court for two counts of using a carriage service to transmit child pornography, and one count of possessing child pornography. The defendant had sent two emails to a boy of 14 years which contained a number of images of children engaged in acts of sexual intercourse. He was also found to have material of that nature in his possession when a search warrant was executed upon premises connected with him.”

23. The offence involving transmitting child pornography referred to in this extract was committed in 2007. The statement of facts concerning those offences suggests that the images that Mr Baldwin sent depicted boys aged 8 and 9 engaged in sexual acts with adults. For those offences, Mr Baldwin received a sentence of 22 months imprisonment with a non-parole period of 14 months. His non-parole period expired on 11 May 2009 and his overall sentence expired on 11 January 2010. Within months of the sentences expiring, Mr Baldwin nevertheless committed the indecent assaults and other offences referred to earlier. For those offences, Mr Baldwin was sentenced by Ellis DCJ on 16 December 2010. His Honour described those offences as follows:

“The facts are set out in the agreed statement of facts, but shortly stated, the offender befriended the young victim who was aged 13 years and he suffers from Asperger's Syndrome. The first count and the matter on the Form 1 took place on 27 April 2010 when the victim was in the offender's car. Count 1 involved the touching of the offender's penis on the outside of his clothing, and the squeezing of it, and count 2 involved incitement of the victim to perform a sexual act on the offender.

Count 4 related to a more serious incident on Monday, 3 May 2010. It involved the offender pulling down his own pants and then pulling down the victim's pants and underpants and standing behind the victim, grabbing him around the waist, bending him over and placing his penis on the outside of the victim's anus and saying to the victim, ‘Call me master’.

In relation to the fifth count, which is contrary to the Child Protection (Offenders Registration) Act 2000, because of his prior convictions for sexual matters, he was required to advise the authorities of the fact that a person under the age of 18 years was residing close to him. That offence does not relate to this victim, but to the older friend of the victim who lived within the same building as the offender. It was initially through the auspices of that other 17 year old lad that the offender became acquainted with the victim in this matter.”

24. The two counts of indecent assault referred to earlier in this judgment are the offences described as counts 1 and 4 in this extract from the judgment of Ellis DCJ. The reference to count 2 is to a charge of inciting a person under 16 years of age to commit an act of indecency contrary to s 61N(1) of the Crimes Act. As indicated by this passage, this was dealt with in accordance with the procedure set out in Division 3, Part 3 of the Crimes (Sentencing Procedure) Act 1999.

25. In his sentencing judgment, Ellis DCJ described count 4 as involving “serious criminality”, although it was not “in the worst case category”. His Honour found the offence was aggravated because the victim suffered from Asperger's syndrome and because of the degree of “grooming” involved in the offence. (It appears that count 3 on the indictment was not proceeded with in light of Mr Baldwin’s pleas to the other charges.)

26. The total effective head sentence that Mr Baldwin received for these offences was 6 years and 3 months commencing on 10 May 2010. His sentence expired on 9 August 2016. Mr Baldwin was released on parole on 15 February 2015. Prior to the expiry of his head sentence, he was made subject to an interim supervision order by Wilson J (Baldwin (No 1)).

27. Otherwise I note that Mr Baldwin’s criminal record includes convictions for offences of dishonesty, including false pretences and embezzlement.

28. As I have already stated, on 14 October 2016 I imposed an ESO. One of the conditions of the ESO was that Mr Baldwin follow all reasonable directions given by his departmental supervising officer (“DSO”). On 25 November 2016, a DSO directed Mr Baldwin not to make any contact with any convicted sex offender. Contrary to the direction, between 26 November 2016 and 31 December 2016, Mr Baldwin participated in a number of telephone conversations with a convicted sex offender who was in custody. The subject matter of their conversation included sexual matters. For breaching these conditions of the ESO, Mr Baldwin was convicted of an offence under s 12 of the HRO Act. On 23 January 2017, he received a bond under s 9 of the Crimes (Sentencing Procedure) Act.

29. Mr Baldwin was later called up for a breach of that bond in October 2018 and was resentenced to a 2 year community corrections order. The conduct that was the breach of the bond in October 2018 gave rise to a further charge of contravening the conditions of his ESO. It seems that a neighbour left a small child with Mr Baldwin in his car and at a shopping centre. For this offence, which involved his having contact with a child, Mr Baldwin received a sentence of imprisonment for 6 months. On appeal, this was reduced to 1 month's imprisonment.

30. On 9 August 2019, Mr Baldwin was arrested and charged with breaching the ESO. It appears that he was refused bail. On 29 November 2019, Mr Baldwin was sentenced to a period of 3 months and 20 days imprisonment. That sentence expired that day. The police facts for that offence state that Mr Baldwin received permission to have contact with the mother of the child that he was friendly with, but only on condition that any contact had to occur in a public place. Mr Baldwin was directed not to enter the child’s residence. It was also an express condition of his ESO that no child could enter his apartment, and that he was otherwise not to have contact with a child. Contrary to those conditions, on a number of occasions, he attended the mother and child’s apartment and the mother brought the child into his apartment. The police facts describe the young child as having become “extremely comfortable with the accused”.

31. At this point, three further matters should be noted about the period during which Mr Baldwin was being supervised under his ESO. First, one matter of concern to those supervising Mr Baldwin has been his ongoing contact with a male now in his mid-20s referred to as ‘M1’. A case note report dated 30 December 2016 recalls Mr Baldwin stating that ‘M1’ is 23 years old and he has known him for about 7 years. Although it is unclear, it appears that Mr Baldwin met ‘M1’ during the period he was associating with young males at the time he committed the indecent assaults in 2010, and that Mr Baldwin had known ‘M1’s’ mother.

32. Mr Baldwin received approval under the ESO to meet ‘M1’ in public, but there is a concern about ‘M1’ visiting Mr Baldwin’s home. In the end, although the origins of the friendship with ‘M1’ are of relevance to assessment of the risk posed by Mr Baldwin of committing further offences, any current friendship that Mr Baldwin has with ‘M1’ is of little relevance given M1’s age.

33. Second, in June 2018, Mr Baldwin disclosed that 6 months previously he was regularly accessing adult gay pornography on the internet.

34. Third, during submissions, counsel for the State referred to various case notes which record Mr Baldwin’s dissatisfaction with group counselling being conducted by Forensic Pathology Services (“FPS”) because, according to Mr Baldwin, it did not involve any discussion of his offences. However, Mr Baldwin appears to have rejected a suggestion that instead of group sessions he attend one‑on‑one sessions.

35. On behalf of the State, it was submitted that this attitude, especially his resistance to one-on-one counselling, were supportive of Mr Baldwin presenting an unacceptable risk. While I do consider that Mr Baldwin does present such a risk, I did not derive much assistance from these case notes. Mr Baldwin’s reasons for rejecting group counselling appear to suggest that he has some interest in addressing his own risk of reoffending.

36. Generally, I note that almost 500 pages of case notes were tendered. In submissions, I was taken to less than 10 pages and the bulk of those were in response to queries that I raised. Presumably this material is tendered on the basis that it falls within s 9(3) of the HRO Act. If that is so, it reveals yet another unsatisfactory and inefficient aspect of the operation of the HRO Act so far as concerns applications to this Court.

Section 21A Victim Statement

37. Section 21A(1) of the HRO Act provides that, as soon as is practicable after an application for an order under the HRO Act is made, the State’s representatives are to provide written notice of the application to each “victim” of the offender, or in the case of a victim who is under 18 or lacks legal capacity, their parent or guardian. The balance of s 21A makes provision for the making of a statement by or on behalf of the victims to the Court which conveys their “views about the order and any conditions to which the order may be subject” as well as “any other matters prescribed by the regulations” (s 21A(2)). No regulations addressing this topic have been prescribed.

38. For the purpose of the section, “victim” is defined to mean a victim recorded on the victim's register in respect of Mr Baldwin for the purposes of s 256(2)(b) of the Crimes (Administration of Sentences) Act 1999. It appears that such notice was given. A statement was provided to the Court from the mother of the victim of the indecent assaults committed by Mr Baldwin in 2010. The statement is a distressing reminder, if any reminder is needed, of the devastating effect on young people and their families of the depraved conduct of offenders like Mr Baldwin. In this case, Mr Baldwin’s victim has, according to his mother, suffered severe mental health problems and drug addiction. Not surprisingly, she wholeheartedly supports the imposition of an ESO with conditions that exclude Mr Baldwin from entering the area of New South Wales, or even coming near the area of New South Wales, where the victim and his family reside, which provide for a schedule of movements and electronic monitoring and, if necessary, provide for restrictions on alcohol usage and access to the internet.

39. I will return to address the conditions shortly. At this point, it suffices to state that the conditions sought by the State address the issues raised by the victim’s mother. Although there is no provision for exclusion zones per se, the conditions sought concerning Mr Baldwin’s movements, if granted and imposed, would operate in a similar, and in fact, more restrictive manner.

Alleged Conduct That Did Not Yield a Conviction

40. By reference to various authorities, the State contended that regard could and should be had to evidence of sexual abuse said to have been perpetrated by Mr Baldwin, but which did not yield a conviction (specifically, State of New South Wales v John Owen Conway [2011] NSWSC 976 at [30]; State of New South Wales v Sleeman [2018] NSWSC 562 at [14]; State of New South Wales v Dillon [2018] NSWSC 1626 at [53]; and State of New South Wales v TT [2018] NSWSC 358 at [108]). In particular, the State referred to Mr Baldwin’s alleged sexual abuse, including the rape of a teenage male between 1981 and 1984. In 2002, Mr Baldwin stood trial on 26 charges relating to that male and was convicted on 21 of them. However, his convictions were set aside on appeal and a retrial ordered on 20 counts (see R v Wayne Baldwin [2004] NSWCCA 21).

41. In the end result, the Crown declined to prosecute the matter for the second time. It is unnecessary to describe the alleged conduct of Mr Baldwin in any detail beyond noting that it was extremely serious. That said, it is difficult to attribute much weight to it, given that it did not result in a conviction and that there was no real attempt to re‑litigate the substance of the complaints made against Mr Baldwin in these proceedings. In the end result, it suffices to state that that material only confirms what is overwhelmingly demonstrated by the other material, namely, a long-standing pre-disposition of Mr Baldwin to commit serious sexual offences against or involving teenage boys.

Reports Under s 7(4)

42. In his report dated 22 November 2019, a psychologist, Mr Sheehan, noted that Mr Baldwin described his sexual preference of being “towards males aged 15 to 18 years”. Mr Sheehan reports Mr Baldwin denying that he was attracted to pubescent or pre-pubescent males. However, Mr Sheehan said that Mr Baldwin was “unable to explain himself” when it was pointed out that some of his victims were as young as 12 years old, and as noted, his on-line sexual abuse material included material depicting sex acts involving males as young as 8 years old.

43. Mr Sheehan diagnosed Mr Baldwin as satisfying the criteria for an alcohol use disorder. He also stated that while Mr Baldwin would “technically” meet the criteria for a paedophilic disorder, the more accurate disorder diagnosis was “other specified paedophilic disorder; hebephiliac”. Using the “Static-99R” tool for assessing the risk of reoffending, Mr Sheehan placed Mr Baldwin in the “high risk” or “well above average risk” categories which he reduced to “above average” on account of Mr Baldwin’s period in the community without sexual offending.

44. Mr Sheehan also undertook an assessment of the dynamic risk factors relevant to Mr Baldwin using the Risk of Sexual Violence Protocol (“RSVP”). Mr Sheehan identified Mr Baldwin’s history of sexual violence, psychological adjustments, mental disorder (specifically his paraphilia) and his social adjustment as factors affecting the assessment of the risk Mr Baldwin poses. Under the heading “Overall Risk”, Mr Sheehan concluded:

“Mr Baldwin is assessed as within the “high” or “well above average” risk category with regard to actuarial factors, with remission to the “above average” range in recognition of his time in the community without reoffending sexually. There are a number of identifiable dynamic risk factors that would appear to be correlates of offending in Mr Baldwin’s particular case. Despite his advancing years, his supervision performance since 2015 does not allow confidence that he is in a position to independently manage his risk of sexual reoffending. The overall evidence leads me to estimate Mr Baldwin’s risk of committing a sex offence to be at the higher end of the risk spectrum relative to other adult male sexual offenders. The characteristics of his prior sexual offending suggest that any future sexual offending would be more likely to meet the threshold for a serious sexual offence (namely, targeting a male child).”

45. In her report dated 29 November 2019, Dr Eagle noted a previous diagnosis of Mr Baldwin as suffering from PTSD, and like Mr Sheehan, diagnosed him as having an alcohol use disorder. Dr Eagle described Mr Baldwin as likely having a “paedophile” disorder. Dr Eagle’s assessment of Mr Baldwin using the Static-99R assessment tool as well as the “STABLE 2007” tool was the same as Mr Sheehan’s, save that Dr Eagle would not have reduced his assessed risk of reoffending from “well above average” on account of his period of not reoffending. Dr Eagle concluded that his conduct durig that period was referable to the ESO regime being imposed on him.

46. Dr Eagle considered that Mr Baldwin had “limited insight into the factors associated with offending” and has “limited meaningful pro-social relationships, and [that] his social isolation are significant risk factors”. Dr Eagle concluded that Mr Baldwin poses a risk of committing a further serious offence.

Other Psychiatric or Psychological Assessments (HRO Act, s 9(3)(b))

47. One of the factors to which consideration must be given are the other psychiatric or psychological assessments. Tendered on this application were the following reports which answered that description: A risk assessment report dated 14 June 2019 prepared by Mr Richard Parker, a senior psychologist with the Serious Offenders Assessment Unit; an ESO completion report dated 30 April 2019 prepared by Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit, and by Cherice Ciepluch, Chief Psychologist with the Risk Management Programme; a risk assessment report dated 24 November 2015 prepared by Richard Parker; a report of Dr Anthony Samuels, consultant psychiatrist dated 29 August 2016; a supplementary report of Dr Anthony Samuels dated 23 September 2016, and a report of Dr Jonathan Adams, forensic psychiatrist, dated 29 September 2016.

48. It is unnecessary to describe the content of these reports in detail because they are very much consistent with reports of Mr Sheehan and Dr Eagle which I have described. In particular, various parts of those reports refer to Mr Baldwin's lack of insight into his offending, the actuarial assessments of his risk of reoffending which are largely unchanged over time, and the necessity for Mr Baldwin to be supervised to minimise his risk of reoffending.

Risk Management Report (HRO Act, s 9(3)(d1))

49. A risk management report dated 12 July 2019 prepared by senior Corrective Services (New South Wales) (“Corrective Services”) personnel was tendered. It identifies Mr Baldwin’s risk of serious offending in similar terms to that identified by Mr Sheehan and Dr Eagle. It recommends an approach to mitigating the risk by the use of an ESO with the conditions of the kind previously imposed, as well as weekly interviews, unannounced visits, compliance checks, electronic monitoring, movement restrictions, searches to monitor compliance and referrals to expert practitioners where appropriate.

Participation in Treatment Programmes (HRO Act, s 9(3)(e))

50. Mr Baldwin completed the custody-based residential therapy programme known as “CUBIT” between February and November 2014. The report of his participation in the programme was moderately positive, noting that he “developed greater insight into his internal processes” and that he began to “challenge unhelpful thoughts related to fearing rejection and approval seeking”. However, consistent with the other material that I have described, the reports indicate that he was still assessed as having a relatively high prospect of reoffending. The material also indicates that Mr Baldwin completed a program to address substance abuse and as noted, has been attending group sessions with FPS since his release.

Unacceptable Risk

51. In light of the above material, it is appropriate to return to the test stated in s 5B(d) of the HRO Act, namely whether the Court is satisfied to a high degree of probability that Mr Baldwin poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

52. Counsel for the State, Ms Climo, referred to a number of matters that were said to be demonstrative of the existence of such a risk, including the diagnoses of the psychologists and psychiatrists, the various static assessments undertaken of Mr Baldwin’s risk of reoffending (which all point to at least above average risk of him doing so), his limited insight into the risk factors associated with his offending, the unlikelihood that he would attend for treatment absent being supervised under an ESO, his relatively poor compliance with the existing ESO conditions which has led to him obtaining access to children, and his display of so called “grooming behaviour”, including ingratiating himself to parents of children.

53. Save for one matter, these submissions should be accepted. The material overwhelmingly demonstrates that Mr Baldwin has a long-standing sexual attraction to teenage boys, and where the opportunity presents, he is prepared to act on that attraction and abuse them. The only sustained period in which it appears that he has not acted on that attraction is in recent years under a strict, almost draconian, regime imposed by the ESO. The combination of the relatively short duration of the ESO imposed in 2016 with its strict terms represented an opportunity for Mr Baldwin to demonstrate that he should move to a less draconian regime by complying with those conditions for that limited period, and thereby demonstrating self-restraint. He did not take that opportunity.

51. The one matter of exception to Ms Climo's submission concerns whether the State has demonstrated that, during the period of the ESO, Mr Baldwin engaged in so called “grooming behaviour”. His interaction with a young mother led to Mr Baldwin having access to her daughter who was a toddler. However, Mr Baldwin’s past history of offending does not reveal any sexual interest on his part in young females of her age. In the end result, I was left unsatisfied that those interactions were undertaken as part of some overall objective of obtaining access to children to sexually abuse them, although it is possible he might have believed that his interacting with a young mother might, in turn, have led him to meet other mothers who had sons. Nevertheless, Mr Baldwin must have known that his actions were a breach of the conditions of his ESO and the consequences for him if those breaches were detected. His preparedness to engage in that conduct knowing it was non-compliant with his ESO points strongly to the existence of the ongoing risk.

52. In their written submissions, counsel for Mr Baldwin, Dr Hughes, who appeared with Dr Lucy, submitted that the test in s 5B(d) was not satisfied. The submissions noted that Mr Baldwin’s last conviction was in May 2010, that he is of advancing age, namely 73, and has, as stated, erectile dysfunction. It is submitted that he complied with his parole conditions and that while he breached his ESO by having contact with children, those children “did not fit Mr Baldwin’s sexual offending profile”. The submissions pointed to his compliance with the CUBIT programme and his attendance at FPS sessions. It was submitted that the existing ESO regime was strict and was, in fact, impeding Mr Baldwin’s rehabilitation.

53. It is the case that Mr Baldwin has not committed a sexual offence for a number of years. That only reflects the fact that he has been in custody and then the subject of a strict ESO regime. His medical condition was not an impediment to his offending in 2010. He has maintained an interest in sexual matters through his access to pornography. Overall, his condition does not appear to be either a disincentive or impediment to his, at least, touching a child now if the opportunity presented itself. I have addressed the other aspects of Mr Hughes' submissions above.

54. Otherwise, I share the scepticism inherent in those submissions of the effect of the strictness of the current regime to Mr Baldwin’s overall rehabilitation. However, I doubt that any such rehabilitation is truly possible. My assessment is that, for want of a better phrase, Mr Baldwin is, in effect, constitutionally predisposed to be a paedophile and that the only means of truly mitigating the risk he poses is either his detention, which is not sought, or his supervision until he is physically incapable of acting on his desires. It follows that I am satisfied that the test in s 5B(d) of the HRO Act is made out.

Conditions

58. I have already referred to s 11 of the HRO Act, which confers the power to impose conditions. As noted, it is necessary to address the terms of the proposed conditions before ultimately deciding whether or not to make the ESO. As I will explain, one matter of principle emerged concerning whether s 11 authorises the imposition of a condition that infringes in a particular respect on an offender's privilege against self-incrimination. This is addressed below.

59. At the hearing of the proceedings, the State handed up a revised set of imposed conditions marked as MFI 1 which reflected the discussions between the parties and narrowed the scope of the dispute. In their written submissions, counsel for Mr Baldwin referred to the observations of Fagan J in State of New South Wales v BG [2019] NSWSC 200 at [36] and [39], and State of New South Wales v McQuilton [2019] NSWSC 265 at [104] (“McQuilton”) in which, amongst other matters, his Honour expressed concern about the imposition of highly intrusive and draconian conditions which are not tailored to the individual circumstance of an offender, as well as a necessity for the exercise of a reasonable level of discretion in prosecuting breaches of those conditions.

60. His Honour noted that the imposition of such regimes may frustrate rather than assist an offender in rehabilitation. His Honour noted that the primary objects of the HRO Act in s 3(1) of ensuring community safety and the other object of encouraging the undertaking of rehabilitation "are not inconsistent” in that the “[e]xercise of Corrective Services discretions in such a way as to foster rehabilitation will contribute to the protection of the community” (McQuilton at [104(7)])

61. Save that I would state that the relevant objectives are not necessarily inconsistent, I accept the force of Fagan J’s comments and share his concerns. In say, a case where the combination of highly intrusive conditions and zealous enforcement practices resulted in an offender serving custodial sentences for infractions that are very much unrelated to their offending, neither the objectives of community protection nor the rehabilitation of the offender will be furthered. However, that statement is not apposite to this case. I do consider it likely that the imposition of an ESO with the proposed conditions will result in Mr Baldwin continuing to be very socially isolated. I also consider the prospect of him now establishing what Corrective Services describe as “pro-social” relationships to be very remote. However, as stated, and for want of a better description, I consider Mr Baldwin to be overall constitutionally a paedophile; that is, someone who will always be attracted to under aged males, and prepared to act on his desires unless supervised or deterred. The only effective means of mitigating the risk posed by him is through the conferral of highly intrusive conditions, although at the same time, such action is likely to significantly reduce, if not eliminate the possibility that he might somehow rehabilitate himself, especially via forming healthy social relationships. Thus, this appears to be a case where there is an actual, or at least potential, conflict between the objectives specified in s 3(1) and 3(2) of the HRO Act. In such a case, the objective of s 3(1) of ensuring the safety and protection of the community is paramount.

62. In the end result, the only realistic means by which this apparent impasse can be broken is by Mr Baldwin complying with a strict regime for a defined period so as to potentially prove that he is capable of being trusted, and thus, warrant the relaxation of that strict regime at a later time. This did not occur under the last ESO. However, it might occur under the present one. Thus, the object of rehabilitation in s 3(2) of the HRO Act is not being much furthered by the conditions of the ESO, but is instead potentially being furthered by the limited term of the proposed ESO, namely, 2 years as opposed to the maximum of 5 years.

63. Against that background, I turn to the proposed conditions.

64. Proposed conditions 1 to 3 confer a general power of monitoring and supervising Mr Baldwin on Corrective Services, including an obligation on Mr Baldwin to comply with any reasonable direction, enforcement and implementation of the ESO, or any other condition. No submission specific to this condition was made on behalf of Mr Baldwin. Save for the references in the draft to “ISO”, which will be deleted, these conditions will be imposed. The same applies to proposed condition 4 which concerns electronic monitoring.

65. Proposed conditions 5 to 9 oblige Mr Baldwin to provide a schedule of movements and to travel only in accordance with that schedule. Mr Baldwin’s objection to the strictness of this regime is partially addressed by proposed conditions 6AA and 6AB, which exempt the need for approval if he visits certain pre-approved places. Given the risk posed by Mr Baldwin, I consider these conditions are appropriate. I note that, in effect, these conditions address a number of the issues raised in the victim statement described earlier.

66. Proposed conditions 10 to 14 concern Mr Baldwin's accommodation. Proposed condition 12 allows him to stay at an approved address overnight. This condition was redrafted to allow pre-approval of addresses for Mr Baldwin to stay at places other than his home. These conditions are appropriate.

67. Proposed conditions 15 to 18 impose place and travel restrictions. Proposed conditions 19 to 21 concern the necessity to obtain approval before commencing work or a business. Proposed conditions 22 to 25 regulate Mr Baldwin's use of drugs and alcohol. Again, no specific submissions were put in opposition to these conditions and they all appear appropriate.

68. Proposed condition 26 prohibits Mr Baldwin having contact with persons he knows or reasonably should know are under 18 years of age other than incidental contact in a public place or with the written permission of a relevant officer. Proposed conditions 27 to 31 regulate his contact with adults. Proposed conditions 29 and 30 provided that, if he commences an intimate relationship or a friendship with a person who has the primary care and responsibility of a person under the age of 18, he is obliged to inform his DSO, who may then advise that other person of his criminal history. Proposed condition 30 obliges Mr Baldwin to consent to that disclosure.

69. Mr Hughes submitted that proposed condition 29 was drafted too widely because it extended to persons with responsibility for any child rather than just teenage boys, they being, so it was said, the object of Mr Baldwin’s paedophilic tendencies. I do not agree that it is too wide. As previously noted, Mr Baldwin has been convicted of possession of child pornography depicting boys as young as eight engaged in sexual acts with adults. Further, it is a relatively small step to leverage a friendship with a parent of, say, very young children to accessing stepchildren or cousins that fit the relevant profile, or family or friends with children that fit that profile.

70. Otherwise, Mr Hughes appeared to suggest that these conditions would not be effective to avoid any disclosure of Mr Baldwin’s criminal record being a breach of Federal or State privacy legislation. The Court was not taken to the provisions of the legislation in question, so the submission cannot be addressed further. Ultimately, it is a matter for the State whether a “forced” consent to disclosure by Mr Baldwin is sufficient. It suffices for me to state at this point that I consider these conditions to be appropriate.

71. Proposed conditions 32 to 38 regulate Mr Baldwin's use of the internet and electronic devices. Proposed conditions 43 to 47 concern his personal details and appearance. Again, no specific submission was put in opposition to these conditions. I consider them to be appropriate.

72. Proposed conditions 48 to 53 concern medical intervention and treatment. Proposed condition 48 requires Mr Baldwin to notify the DSO of any health practitioner he consults. Proposed condition 49 requires him to attend all psychological and psychiatric examinations that the DSO advises him to attend. Proposed conditions 50 and 51 require him to take all medication prescribed to him and advise his DSO of what has been prescribed. Mr Hughes objected to this condition on the basis it was unconnected to any risk he posed. However, I consider there is a direct link between this condition and monitoring his drug and alcohol usage, which clearly is a risk factor.

73. Proposed condition 52 states:

“The defendant must agree to his health care practitioners sharing information in connection with his management and supervision under these conditions, with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling, including the practitioner's general opinion as to development of his insight into offending risk factors and attitudes to reduce his risk of offending.”

74. Objection is taken to this on the basis that it would amount to a significant breach of Mr Baldwin’s privacy and is not apparently authorised by the State and Federal privacy legislation. Again, the reference to a potential breach of the privacy legislation was not developed. Otherwise, given that this condition is only referable to disclosing what occurs in therapy or counselling and the potential connection between that and mitigating the risk he poses, I consider it to be appropriate.

75. Another proposed condition to which objection is taken is one which obliges the disclosure of Mr Baldwin’s criminal history to any health care professional. Given the risk posed by Mr Baldwin and the necessity for such a health care professional to be aware of his past, I consider this condition to be appropriate.

Privilege Against Self Incrimination

76. This leaves proposed conditions 39 to 42, which were the subject of detailed submissions by Dr Lucy on behalf of Mr Baldwin. Those conditions provide:

“39.   If the DSO reasonably believes that a search (of the type referred to in sub‑paragraphs d to f below) is necessary:

a.   for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

b.   to monitor the defendant’s compliance with this order; or

c.   because the DSO reasonably suspects the defendant has either breached the conditions of this ESO or engaged in conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must consent to:

d.   search and inspection of any part of, or any thing in, the defendant’s approved address;

e.   search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

f.   search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

g.   search and examination of his person.

40.   For the purposes of the above condition:

a.   a search of the defendant means a garment search or a pat‑down search.

b.   to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

“Garment search” means a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body.

“Pat-down search” means a search of a person where the person’s clothed body is touched.

41.   During a search carried out pursuant to condition 39 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant’s possessor or not, which the DSO reasonably suspects will compromise:

a.   the safety of residents or of staff at the defendant’s approved address or secondary pre-approved overnight address;

b.   the welfare or safety of any member of the public or any other person; or

c.   the defendant’s compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

42.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 37 to 40 above.”

77. Section 11 of the HRO Act has already been set out. Section 12 of the HRO Act provides:

“A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence. Maximum penalty 500 penalty units or imprisonment for 5 years, or both.”

78. Leaving aside whether these proposed conditions impermissibly infringe Mr Baldwin's privilege against self-incrimination, Dr Lucy submitted that they were unworkable and intrusive such as they should not be imposed. Dr Lucy submitted that so much of condition 39 which refers to the DSO having a reasonable belief was of little benefit to Mr Baldwin as, at the time that the permission to enter was sought, he would not have any knowledge the DSO’s belief or whether it was reasonable or not. That may be so, but it does not render the reference to reasonable belief as an exercise in futility. It can be expected that such a precondition will act as a restraint on the DSO exercising the powers referred to in the conditions, specifically the power to require entry, capriciously. Instead, a DSO seeking to invoke these clauses will have to specifically advert to why the powers are being exercised. Should an alleged breach by Mr Baldwin in failing to allow entry result in a prosecution under s 12 then the onus will be on the prosecution to prove beyond reasonable doubt that the DSO held the requisite belief and that it was reasonable.

79. Dr Lucy also submitted that subparagraphs 39(d), (e), (f) and (g) of proposed condition 39 were too wide and could result in such searches being conducted based on a concern over a minor breach of any condition, such as a visitor remaining on his premises for a relatively short period contrary to condition 13. If anything, this only raises an issue about the scope of those other conditions, rather than proposed conditions 39 to 42. I do not consider it warrants a rejection of proposed conditions 39 to 42. Mr Baldwin’s criminal history and his tendencies have already been outlined. The possibility that in a relatively short period of time he could sexually abuse a child that is present in his home is very much real. These conditions provide a means to intervene and ensure it is not occurring. Given Mr Baldwin’s circumstances, they are not too wide.

80. Otherwise, Dr Lucy took issue with so much of the conditions that effectively obliged the defendant to consent to searches and seizures by querying whether it was effectively “under duress” and thus effective. However, as I will explain, like an “Anton Piller” order (see Anton Piller KG v Manufacturing Processes Limited [1976] 1 Ch D 55 at 60), or a search order under pt 7.42 of the Federal Court Rules, if such provisions have the force of law then Mr Baldwin must still in fact consent to the search or seizure. If he refuses consent then the search is not authorised and amounts to a trespass, although in the case of an Anton Piller order the refusal amounts to a contempt of court (see Long v Specifor Publications Pty Limited (1988) 44 NSWLR 545 at 547 to 548 of Powell JA), and in this case such a refusal may amount to an offence under s 12 of the HRO Act.

81. Dr Lucy’s principal argument concerning the lack of power to impose these conditions had two steps. The first step was that, as the conditions operate to require a consent to search and seizure, they infringe Mr Baldwin’s privilege against self-incrimination. The second step was that the HRO Act, and specifically the power to impose conditions conferred by s 11, does not evince an intention to abrogate that privilege, at least so far as search and seizure conditions are concerned.

82. I accept the first step in the argument. As noted, like Anton Piller orders, proposed conditions 39 to 42 operate to require permission be granted to a search and seizure which would otherwise be a trespass to Mr Baldwin's property or person. If Mr Baldwin does not in fact consent then the relevant actions of the DSO would be a trespass, albeit Mr Baldwin would face a sanction for refusing his consent. This is so because s 11 of the HRO Act only empowers the making of an order “directing an offender” to comply with a condition. It does not empower the Court to make any form of order which, by its terms, authorises a DSO to enter property per se. Like an Anton Piller order, in this respect it stands in contrast to what is authorised by a search warrant (see Long supra at 548B per Powell JA and Meneses v Directed Electronics OE Pty Limited [2019] FCAFC 190 at [79]). As proposed conditions 39 to 42 require an offender to take a step, that is provide consent, which may lead to the discovery of evidence that exposes him to prosecution for an offence, specifically an offence of contravening s 12 of the HRO Act, then they purport to abrogate the offender's privilege against self-incrimination (see Environment Protection Authority v Caltex (1993) 178 CLR 477 at 502 and Meneses at [90]).

78. In relation to the second step in Dr Lucy’s argument, the privilege against self-incrimination is clearly a relevant right, privilege or immunity that is subject to a principle of construction taken to be part of the “principle of legality”; namely, that an intention to abrogate it must be “clearly manifested by unmistakable and unambiguous language” (see Coco v The Queen (1994) 179 CLR 427 at 437; [1994] HCA 15; Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309 at [21]; [2004] HCA 40; and X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [86] to [87] per Hayne and Bell JJ). Dr Lucy submitted that there was no such clear intention manifested in the HRO Act. Counsel for the State, Ms Climo, submitted to the contrary.

79. A consideration of the principle of legality and its application to these types of conditions has been undertaken in other cases in this Court to which I was referred; namely, State of New South Wales v John Raymond Holschier [2016] NSWSC 234 at [42] (“Holschier”); State of New South Wales v Steven Single [2019] NSWSC 176 at [37] to [51]; (“Single”), and State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [103] to [113] (“Grooms”). In each of those cases the contention that the imposition of conditions, such as proposed conditions 39 to 42, where there was no specific authorisation for such conditions to be found in s 11 was contrary to the principle of legality was rejected ([id]).

80. Dr Lucy submitted that those cases should be distinguished because, in each case the argument proceeded on what was contended to be the false premise that these conditions are analogous to search warrants and thus the Court did not address the matter on the basis that such conditions purport to abrogate the privilege against self-incrimination (see, for example, Single at [44]). Dr Lucy submitted that the necessity for a clear statement is that much stronger once it is appreciated that it is the privilege against self-incrimination that is being abrogated; or, alternatively, at least once it is appreciated that it is that privilege that is abrogated then at the very least a different analysis is warranted.

81. I am doubtful that the former contention is correct in that by treating the conditions as akin to a search warrant both Single and Grooms were addressing the proposed conditions on the basis that the offender’s property rights and personal integrity were violated. If there is a hierarchy of fundamental rights in this context, something I am doubtful of, those rights stand in at least equal importance to the privilege against self-incrimination. However, I accept there is considerable force in the alternative submission; namely, that once it is appreciated that it is the privilege against self-incrimination that is being abrogated by the proposed conditions, then a different analysis is, or at least may be, warranted. Accordingly, I will address Dr Lucy’s argument on the basis that it is not contrary to Holschier, Single and Grooms.

82. As noted, Ms Climo’s contention was that the HRO Act necessarily abrogated any privilege against self-incrimination that might otherwise be claimed by an offender to resist the imposition of a particular condition imposed under s 11.

83. The terms of s 11 are set out above. The relevant power is to provide that the ESO “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. The balance of the section specifies particular forms of conditions that may be imposed, but s 11 makes it clear that they expressly do not limit the general scope of the power that is conferred.

84. As noted, a number of the particular subsections of s 11 are specifically directed to require the provision of information by the offender which could incriminate them, or to require the provision of consent by the offender to some form of search which could yield incriminating evidence. Thus, s 11(1)(c) authorises the imposition of a condition requiring the offender provide periodic reports. Section 11(1)(n) authorises the imposition of a condition requiring the provision of information in relation to employment or financial affairs. Section 11(1)(a1) authorises a condition that requires an offender to grant permission to access a computer in their premises or in their possession. The potential for that to yield incriminating evidence is obvious. Section 11(1)(a) specifically authorises the imposition of a condition requiring an offender to permit a “visit” by a corrective services officer to their residential premises and to permit the officer to “enter” those premises. This provision specifically authorises a condition requiring the offender to consent to what might otherwise be a trespass. The potential for an officer who so visits and enters to observe evidence that could incriminate an offender is obvious. Further, s 11(1)(l) authorises conditions which impose “any obligation” that could be imposed on an offender under Part 3 of the Child Protection (Offenders Registration) Act if the offender were a registrable person. I have already noted that those obligations include a requirement to provide information. Again, that could clearly include material that is potentially incriminating, such as the details of any car they own or possess.

85. Section 16 of the Child Protection (Offenders Registration) Act confers on police officers a power of entry and inspection of the residential premises of a registrable person for the purposes of verifying any relevant information reported by the registrable person. Unlike proposed conditions 39 to 42, that power is akin to a search warrant in that it does not operate to require a registrable person to consent to such an entry or inspection. In those circumstances, I am doubtful that provision answers the description of “any obligation that could be imposed on the offender” within the meaning of s 11(1)(l) of the HRO Act, and thus it can be put aside.

86. Nevertheless, it follows that various subsections of s 11(1) specifically and unambiguously authorise the imposition of conditions that, to a large extent, necessarily abrogate any privilege against self-incrimination that might otherwise be invoked by a relevant offender. Nevertheless, Dr Lucy submitted that the HRO Act should only be construed as abrogating the privilege to the extent expressly contemplated by those subsections and no more (citing Gemmell v Le Roi Homestyle Cookies Pty Limited (in liq) (2014) 46 VR 583 at [63]). However, as noted, the specific subsections of s 11(1) are expressly stated to not limit the general power to impose conditions. Further, given the context and the balance of the provisions of the HRO Act, I do not accept that there is somehow preserved some small residual aspect of the privilege against self-incrimination that cuts across the power to impose conditions that are “appropriate”.

87. As noted, s 12 creates an offence for failing to comply with s 11. Section 12 does not contain any provision contemplating that there is a reasonable excuse or similar for failing to comply with a condition. More importantly, it must be remembered that the HRO Act creates a post-parole detention and supervision regime whose primary object is the safety and protection of the community. It puts that scheme into effect by co-opting the judicial arm of government into the process of prospective risk assessment but, nevertheless, leaves the administration of the HRO Act, including the post-parole supervision of the offenders, to Corrective Services. Such a regime of supervision, with its primary object of community safety, is incompatible with the offender retaining a privilege of self-incrimination to avoid the disclosure of information or evidence as to their compliance or non-compliance with the conditions under which they are being supervised.

88. Otherwise, it is worthwhile noting where a conclusion that such conditions could not be imposed may lead. If conditions such as proposed conditions 39 to 42 could not be imposed and therefore those powers could not be invoked in circumstances, say, where there is a strong suspicion that an offender is harbouring children in their premises, then the conclusion may follow that the level of risk posed by an offender is such that their continuing detention is warranted rather than their being supervised in the community. Persons who are detained in custody may not have their privilege against self-incrimination abrogated but, no doubt, they have much other and greater concerns. All this serves to illustrate how the structure and purpose of the HRO Act, as well as its subject matter, namely post-offence supervision, manifests to the requisite degree a clear intention to exclude the suggestion that any aspect of the power conferred by s 11(1) is subject to the continued existence of the offender's privilege against self-incrimination.

89. Finally on this topic, I note that Ms Climo contended that it was premature for the Court to address this argument and that, in effect, it is an argument that only arises if Mr Baldwin is charged with an offence under s 12 of the HRO Act. I do not agree. Mr Baldwin should not be left in a state of uncertainty as to his position by running the gauntlet of refusing to comply with a condition and then waiting for a prosecution to be commenced to find out whether he is entitled to claim the privilege against self-incrimination. If I had upheld Ms Lucy's arguments then the conditions would have to have been modified by subjecting them to a properly made claim invoking the privilege. In any subsequent prosecution for a breach of the orders, it would have then been incumbent on Mr Baldwin to make good his claim. That said, such an exception would appear to destroy the efficacy of the orders and thus illustrate the conclusion I have reached that the privilege is necessarily abrogated.

Conclusion

95. It follows from the above that, having regard to Mr Baldwin’s criminal history and circumstances, the imposition of the proposed conditions is likely to materially result in a substantial reduction of his risk of re-offending.

96. As noted, in determining whether to make an ESO it is necessary to have regard to the matters listed in s 9(3) of the HRO Act. I have already addressed ss 9(2), 9(3)(b), 9(3)(c), 9(3)(d), 9(3)(e), 9(3)(h), 9(3)(h1) and 9(3)(i). The above discussion also addresses the factors listed in ss 9(3)(ei) and 9(3)(f). The criterion in s 9(3)(g) does not appear to be relevant. All these factors point in favour of making an ESO on the terms proposed.

97. Finally, I note that prayer 6 of the summons seeks the following order:

“An order restricting access to the court’s file in respect of any document should not be granted to a non-party without the leave of a judge of the court and if any application for access is made by a non-party in respect of any document the parties are to be notified by the registrar so as to allow them an opportunity to be heard in respect of the application for access.”

98. The basis for this order was not addressed in the State’s written submissions. As best I can ascertain, it appears to be directed to the preservation of the confidentiality of the medical and other material concerning Mr Baldwin, as well as material that might identify Mr Baldwin’s victims.

99. To the extent that the “file” includes these reasons, Cavanagh J’s reasons, the orders made, the party’s written submissions, the text of the affidavits other than the victim’s statement, or the transcript of the proceedings, then there is no basis for any such order. All those matters concern topics that were addressed in open court and there is no basis for any restriction on their use. In relation to the balance of the material, which principally consists of the exhibits and the annexures to the affidavit, I will make an order restricting its release without the leave of a judge of this Court. However, I will not superimpose on the power to grant any such leave some obligation to afford natural justice. It is not the role of one judge of this Court to direct another judge on such matters.

100. Lastly, I note that the timing of this application, the constraints imposed by the HRO Act and the exigencies of the work of this Court, especially at this time of year, meant that only oral reasons could be delivered today. It may be that written reasons cannot be produced and published before the end of court term, although every effort will be made to do so. This circumstance is through no fault on the part of the defendant or his legal representatives. It is appropriate to note these matters in case an inability to obtain a written form of this judgment impairs the conduct of any appeal that Mr Baldwin may decide to bring against this judgment.

101. Accordingly, the Court makes the following orders:

(1) Pursuant to s 5B and s 9(1)(c) of the Crimes (High Risk Offenders) Act 2006, the defendant, Wayne Norman Baldwin, is subject to an extended supervision order for a period of 2 years from the date of these orders.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act2006, direct the defendant, for the period of ESO, to comply with the conditions set out in Annexure A to these orders.

(3)   Access to the court file not be granted to a non-party to the proceedings without the leave of a Judge of the Court, save as to the following documents:

(a)   all court orders;

(b)   all reasons for judgment;

(c)   the transcript of the proceedings;

(d)   written submissions;

(e)   the text of any affidavit read in the proceedings other than the victim's statement dated 10 December 2019.

102. Sealed copies of the orders will be distributed to the parties immediately.

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Decision last updated: 20 December 2019